posted 22 days ago on techdirt
Two years ago, Techdirt wrote about an industry study of Spain's "Google tax", which requires a Web site to pay for sending traffic to publishers when it quotes snippets of their texts. Just as everyone who actually understands the Internet predicted, Spain's new law had a disastrous effect on the publishing industry there, especially on smaller companies. Despite that unequivocal evidence, the law is still in place, and it's a further sign of how pointless it is that only now has the Spanish Center for Reprographic Rights (Cedro) finally managed to sign up its first deal with a news aggregator, called Upday (original in Spanish). Cedro is claiming that this "pioneering" move possesses a "strategic importance" because it recognizes the rights of those whose publications appear elsewhere as snippets. The fact that it has taken so long to find anyone willing to accept that point is bad enough, but it gets worse. Upday operates across Europe, and was launched in Spain at the beginning of March this year. It turns out to be a partnership between Axel Springer and Samsung. As Techdirt readers may recall, the giant publishing group Axel Springer is one of the biggest supporters of the Google tax in Germany. Initially, it tried to take a hard line against the US search company. But Axel Springer was soon forced to back down humiliatingly and offer Google a free license to post snippets from its publications. A two-week experiment without search engine leads caused Web traffic to Axel Springer's sites to plunge. So, far from being a "pioneering" move that validates the whole snippet tax approach in Spain, Upday's deal with Cedro is simply a key German supporter of this daft idea trying to give the impression that the moribund Spanish Google tax is still twitching somewhat. It's pretty clear why Axel Springer and Cedro would be keen to do that now, after years of nothing happening in Spain. The European Union is currently revising the main EU Copyright Directive. Article 11 of the proposed text is an EU-wide version of the snippet tax, despite the fact that the idea has failed miserably everywhere that it has been tried. The agreement between Upday and Cedro will presumably be used as "evidence" that the Google tax is "working" in Spain. The fact that it is a "circular" deal between German and Spanish supporters of the idea proves the exact contrary. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Leaked NSA exploits have now been the basis for two massive cyberattacks. The first -- Wannacry -- caught hospitals and other critical infrastructure across several nations in the crossfire, using a tool built on the NSA's ETERNALBLUE exploit backbone. The second seems to be targeting Ukraine, causing the same sort of havoc but with a couple of particularly nasty twists. This one, called Petya, demanded ransom from victims. Things went from bad to worse when email provider Posteo shut down the attacker's account. Doing so prevented affected users from receiving decryption keys, even if they paid the ransom. It soon became apparent it didn't matter what Posteo did, no matter how clueless or ill-advised. There was no retrieving files even if ransoms were paid. Two separate sets of security researchers examined the so-called ransomware and discovered Petya is actually a wiper. Once infected, victims' files are as good as gone. No amount of bitcoin is going to reverse the inevitable. The ransomware notices were only there to draw attention to the infection and away from the malware's true purpose. Both cases are considered to be attacks by nation states. Inconsistently-applied patches -- most of them released with zero information by Microsoft -- have led to an insane amount of damage. Through it all, the NSA -- whose tools were leaked -- has remained consistently silent. There's been no indication if the agency is working to mitigate the ongoing threat or whether it's far more concerned with discovering who left behind the malware toolkit first exposed by the ShadowBrokers. It's unlikely we'll hear much being said publicly by the agency, but Rep. Ted Lieu has sent a letter to NSA chief Mike Rogers demanding answers. The letter [PDF] points out both attacks have been based on NSA exploits (ETERNALBLUE and ETERNALROMANCE). Lieu also states he fears the attacks seen in the past few weeks are only the "tip of the iceberg." The agency's refusal to discuss the attacks apparently isn't going to fly anymore. Lieu makes two requests: the first is for the agency to see if it has some sort of magic "OFF" switch just laying around. My first and urgent request is that if the NSA knows how to stop this global malware attack, or has information that can help step the attack, NSA should immediately disclose it. If the NSA has a kill switch for this new malware attack, the NSA should deploy it now. It's far more likely the NSA has information it would rather not share than it is the agency has a way to shut down this attack, much less prevent future variations on its ETERNAL theme. But that's directly related to the second part of Lieu's request: work with companies whose software is being exploited to prevent further attacks. If the NSA still has security holes it's hoping won't be patched anytime soon, the current situation would seem to call for a rethink of its exploit-hoarding M.O. What may be in order is the NSA stepping up and playing defense. It has stated a desire to be a larger cog in the US cyberwar machinery, but often seems more interested in playing offense than pitching in to help on the defensive end. That may need to change quickly if the NSA isn't going to be seen as more of a problem than a solution. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
It appears that many people don't remember this, but the RIAA used to be a major force in protecting free speech and the First Amendment. It had many good reasons to do so, after all, since free speech is very important to all of the artists that the RIAA's labels work with. Artistic expression -- especially in the musical realm -- has frequently come under attack by politicians and, for decades, the RIAA was actually a really important player in standing up for the First Amendment. See, for example, this 1992 article in the LA Times from then RIAA President Jason Berman, in which he lists out all the ways that the RIAA has been fighting censorship. Yes, these are all specific in protecting musicians, but they were some really important First Amendment arguments to be made in these areas: In 1990, the RIAA kept lyric labeling legislation off the books in 22 states by implementing a state government relations program that became the RIAA's second-highest-funded program, dedicated a full-time RIAA executive, consumed more than 80% of the association's public relations efforts, mobilized grass-roots campaigns involving local retailers, artists, legislators and consumers and brought expert witnesses to testify before state legislatures. Again in 1991, the efforts of the RIAA's state government relations program defeated similar legislation in more than a dozen states. This year, the program has been broadened by recruiting local legislative councils in 14 states resulting in defeated measures in New York, West Virginia, Arizona, Illinois and Missouri while the battle continues in Massachusetts, Louisiana and Michigan. Throughout all of this activity, we've been a key player in opposing a federal bill creating third-party liability for sexual violence alleged to have been caused by music and other forms of entertainment. We are a founding member and the principal funder for Rock the Vote, the music industry grass-roots organization aimed at defeating censorship and promoting participation by young people in the democratic process. We formed the Coalition Against Lyric Legislation, an organization comprising more than 60 groups rallying to fight freedom of expression. In addition to our amicus brief on behalf of 2 Live Crew, which raised the key issues leading to their exoneration in the 11th Circuit appeal, we contributed to the cost of the defense in the case, and have also committed legal and financial assistance to retailers in Nebraska and Florida. Finally, we are proud to stand with the Washington Music Industry Coalition to seek a judicial declaratory ruling that the recently enacted erotic music statute is unconstitutional and should be stricken from the books. And that's just one article -- the first I found via a quick Google search. If you were interested in these issues in the 1980s, the RIAA was very involved in protecting the First Amendment. So it's fairly ridiculous (if entirely expected) that the modern RIAA is destroying that historic legacy of protecting free speech by now cheering on global internet censorship. As we've discussed, Canada recently launched a horrific attack on free speech, by saying that it can issue injunctions blocking entire sites globally on mere accusations of infringement. Let's repeat that: the Canadian court is saying that, even before a trial has determined if there is actual infringement, it can order sites (in this case Google) to block entire websites (not just pages involved in the infringement) -- and that it can do so globally. As we pointed out, this precedent is horrifying. What will happen when China demands all stories about Tiananmen Square be blocked globally? Or what happens when Saudi Arabia or Iran demands that pages supporting democratic reforms or LGBTQ rights must be taken down globally? And yet, rather than condemn an overly broad ruling that will lead to global censorship, the RIAA sullied its own historical legacy and cheered on this global censorship ruling, claiming that it was "a win." Canadian Supreme Court decision “a win for fans, creators & the legitimate online marketplace,” more from @RIAA on landmark ruling pic.twitter.com/uQ4P7FZ2GS — RIAA (@RIAA) June 28, 2017 And, yes, it doesn't take a genius to figure out why the RIAA is so wishy-washy on free speech. Those earlier issues involved protecting musicians. Now, with the internet, it wants to stomp out free speech on the off chance that some of it might infringe copyrights and make RIAA members' business models somewhat trickier. But that's sad. A principled organization should stand up for what's right -- and not what's politically expedient. And, really, this ruling will almost certainly come back to bite the RIAA as well. Not only will it lead to new, helpful, innovative platforms facing global censorship, is it that hard to believe that some countries may try to censor RIAA-connected artists, using this ruling as precedent? These days, the bosses at the RIAA have got so much "piracy-on-the brain" that they seem completely unable to (1) stick to a principled position on the First Amendment or (2) see how cheering on global censorship might come back to bite them as well. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Learn how to unlock all of Windows 10's secrets and capabilities and earn CPD credits while doing so with the Windows 10 CPD Professional Certification Bundle. Pay what you want and you get access to two courses teaching you all about Skype and the Windows Apps Store. If you beat the average price, you unlock 6 more courses covering Office 365, File Explorer, OneDrive, the Hub, Cortana, Edge, and more. You'll be a Windows 10 expert in no time. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
ProPublica recently obtained some internal documents related to Facebook's hate speech moderation. Hate speech -- as applied to Facebook -- isn't a statutory term. Much of what Facebook removes is still protected speech. But Facebook is a private company and is able to remove whatever it wants without acting as a censorial arm of the government. That being said, there's a large number of government officials around the planet who feel Facebook should be doing more to remove hate speech -- all of it based on very subjective views as to what that term should encompass. It's impossible to make everyone happy. So, Facebook has decided to apply a set of rules to its moderation that appear to lead to completely wrong conclusions about what posts should be removed. A single image included in the ProPublica article went viral. But the explanation behind it did not. The rules Facebook uses for moderation lead directly to increased protections for a historically well-protected group. [If you can't read/see the image, the slide says "Which of the below subsets do we protect?" with the choices being "female drivers," "black children," and "white men." The answer -- to the great internet consternation of many -- is: "white men."] Given Facebook's general inability to moderate other forms of "offensiveness" (mainly female breasts) without screwing it all up, the answer to this quiz question seems like more Facebook moderation ineptitude. But there's more to it than this one question. The rest of the quiz is published at ProPublica and it shows the "white men" answer is, at least, internally consistent with Facebook's self-imposed rules. Facebook must define "hate speech" before it can attempt to moderate it, since there are no statutes (at least in the United States) that strictly apply to this content. Here's how Facebook defines it: Protected category + attack = hate speech These are the protected categories: Sex Race Religious affiliation Ethnicity National origin Sexual orientation Gender identity Serious disability/disease Here's what's not considered "protected" by Facebook: Social class Occupation Continental origin Political ideology Appearance Religions Age Countries "White men" have both race and sex going for them. Any "attack" on white men can be deleted by Facebook. "Black children" only have race. Age is not a protected category. An attack on black men would be deleted but black children are, apparently, fair game. The same goes for white children. In the category "female drivers," only the "female" part is considered protected. The quiz goes on to explain other facets of hate speech moderation. Calling for acts of physical violence against protected categories is hate speech. If any component of the group targeted is "unprotected," the call for violence will be allowed to stay online. The rules also cover "degrading generalization," "dismissive" speech, cursing, and slurs. If any of these target a protected class (or quasi-protected class, i.e., migrants whose nationality may be in flux), moderators can take down the posts. The QPCs have only slightly more protection than entirely unprotected classes, so they can receive more posted abuse before hate speech protections kick in. These rules lead to all sorts of things that seem unfair, if not completely wrong: In the wake of a terrorist attack in London earlier this month, a U.S. congressman wrote a Facebook post in which he called for the slaughter of “radicalized” Muslims. “Hunt them, identify them, and kill them,” declared U.S. Rep. Clay Higgins, a Louisiana Republican. “Kill them all. For the sake of all that is good and righteous. Kill them all.” Higgins’ plea for violent revenge went untouched by Facebook workers who scour the social network deleting offensive speech. But a May posting on Facebook by Boston poet and Black Lives Matter activist Didi Delgado drew a different response. “All white people are racist. Start from this reference point, or you’ve already failed,” Delgado wrote. The post was removed and her Facebook account was disabled for seven days. Religions are unprotected. Races are. That's why this happens. At best, it would seem like both should be taken down, or the less violent of the two remain intact. But that's not the way the rules work. People who criticize Facebook's moderation efforts are asking for something worse than is already in place. To right the perceived wrongs of everything listed above, the rules would have to be replaced by subjectivity -- setting up every moderator, all over the world, with their own micro-fiefdom to run as they see fit. If people don't like it now, just wait until thousands of additional biases are injected into the mix. That's the other issue: Facebook is a worldwide social platform. Protecting white men may seem pointless here in the US, but the United States isn't the only country with access to Facebook. “The policies do not always lead to perfect outcomes,” said Monika Bickert, head of global policy management at Facebook. “That is the reality of having policies that apply to a global community where people around the world are going to have very different ideas about what is OK to share.” This is the unfortunate byproduct of a job that's impossible to do to everyone's satisfaction. Blanket rules may seem dumb on a case-by-case basis, but the alternative would be even worse. If a company is going to proactively protect sexes and races, it's inevitably going to have to stand up for white men, even if the general feeling is white men are in no need of extra protection. 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posted 22 days ago on techdirt
A few years ago, large ISPs began taking advantage of a lack of competition in the broadband market by imposing arbitrary, unnecessary and confusing usage caps and overage fees. Initially, these companies tried to claim that this was necessary to manage congestion on their networks. As data emerged indicating that this claim was bullshit, large ISPs were ultimately forced to acknowledge as much and back away from the claim. Shortly after that, ISPs instead began claiming that these glorified price hikes were necessary as a simple matter of "fairness," and the industry narrative-du-jour became that it only made sense that heavier users should pay more money for broadband. This excuse was bullshit too; Americans already pay some of the highest prices for broadband of any developed nation under the flat-rate pricing model, which any large ISP earnings report will show you is perfectly profitable. And if "excessive consumption" really was a problem, it was a problem caused solely by a small number of users that could easily be shoved toward business-class tiers. It didn't require saddling everyone with confusing and expensive surcharges. These days, after being hammered for years for bogus justifications, large ISPs no longer even provide a reason for these rate hikes. Take Cox Communications for example. The company has quietly announced it would be expanding usage caps into several new markets, charging users $10 per each additional 50 GB of data users consumed over a one terabyte limit. The e-mail being sent to users, which is getting widespread attention on Reddit, doesn't even really bother to offer a justification for the price hike, suggesting ISPs aren't even trying to defend the practice any longer: Several news outlets and reporters (including myself) tried to get Cox to explain its reasoning for the hikes, and the company simply refused. Of course there's a simple reason ISPs no longer try to justify this behavior: they don't have to. Consumers in captive markets can't vote with their wallets, and cable providers are slowly but quietly enjoying a growing monopoly over next-gen broadband as telcos refuse to keep pace and upgrade their DSL networks. The end result is the ability for these companies to impose massive new rate hikes that not only result in users paying more money for the same-exact service, but help incumbent ISPs penalize the use of would-be streaming competitors. Zero rating an ISPs own services -- while still penalizing competitors like Netflix -- adds another layer of anti-competitive adventure to the proceedings. But fear not! Cox did tell some news outlets that the company would soon be letting users avoid the caps and enjoy the same unlimited connection they had yesterday... for an added, unspecified cost. Many people quickly get bogged down in debate over whether or not a terabyte is fair, losing sight of the fact this wouldn't be happening in a competitive market. And with a current FCC clearly intent to turn a blind eye to both a lack of competition and the predatory behavior that results from it (be it violations in privacy or net neutrality), there's plenty more anti-competitive shenanigans where this came from. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
The DHS and TSA are just going to keep making things worse. Despite there being almost no evidence of terrorists targeting planes, the DHS is looking to expand its laptop ban to cover even more incoming flights from foreign airports. The Trump administration said Wednesday it will ban large electronics on flights to the United States altogether — on board, and in checked bags — unless airlines comply with new directives to ramp up passenger and baggage screening. The mandate, announced by Homeland Security Secretary John Kelly, would affect 280 last-point-of-departure airports and as many as 2,000 daily international flights to the United States and potentially throw a huge wrench into business travelers' plans. The original plan only targeted 10 airports -- mostly in the Middle East. This expansion would cause even more passengers to either leave their laptops/tablets behind, as this ban would prevent them from being placed in checked luggage. What the DHS is looking for is transplanted security theater performances by foreign airline personnel. Not much was explicitly listed in DHS head John Kelly's speech on Wednesday, but a few DHS officials offered to fill the factual gaps in Kelly's rhetoric. DHS officials said the agency is broadly pushing airlines and airports to "take the next step" in beefing up security — meaning using more canine teams, adopting more advanced screening technology and enrolling in a Customs and Border Protection pre-clearance inspection program. And, as always, the burden will be borne by travelers. Airlines are being given some time to make these changes, but there doesn't appear to be a hard deadline for compliance. If foreign airlines don't live up to the DHS's expectations, passengers will presumably be informed about the fate of their electronic devices after they've already taken them to the airport. The DHS encourages foreign travelers to keep themselves apprised of these changes, but doesn't say how they're supposed to obtain this information when making travel plans. All that's being recommended is staying in "close contact" with their airline of choice, which sounds like the sort of pen pal relationship no one's in any hurry to engage in. European officials are trying to stay on top of the DHS's constantly-shifting demands -- not out of fear of terrorist attacks, but because the laptop ban itself would make flying less safe. European Commission officials have been especially vocal about their wish to avoid the ban and have repeatedly pointed out the fire risks associated with stacking laptops with flammable lithium batteries in planes' cargo holds… I guess that's why Kelly wants a total ban. That solves the exploding battery problem, but does nothing for thousands of non-terrorists who need to bring their work with them when visiting the US. There's no room for logic in security theater. What the US determines to be security best practices will be foisted on the rest of the world -- even though there's nothing in the history of the DHS and TSA suggesting faster, harder "security" will do anything more than irritate travelers. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Having been told "no" twice by the Second Circuit Court of Appeals, the DOJ is asking the Supreme Court to overturn the decision finding Microsoft did not need to hand over communications stored in foreign data centers in response to a US warrant. The Appeals Court told the DOJ that statutory language simply didn't agree with the premise pushed by the government: that US-issued warrants should allow the law enforcement to dig through "file cabinets" not actually located at the premises (United States) searched. The court noted jurisdictional limitations have always been part of the warrant process (although recent Rule 41 changes somewhat undercut this). That the information sought is digital rather than physical doesn't change this. The court suggested the DOJ take it up with Congress if it doesn't like the status quo. The DOJ has proposed legislation but likely feels a Supreme Court decision in its favor would be a swifter resolution. The DOJ's 207-page petition [PDF] actually only contains about 30 pages of arguments. The bulk of the petition is made up of previous court decisions and oral argument transcripts covering the DOJ's losses at the lower level. The Table of Contents gets right to the point, utilizing the section header "The panel's decision is wrong" to set the tone for its rehashed arguments. The DOJ quotes the dissenting judges from the Appeals Court's decision, one of which makes the ever-popular "appeal to 9/11" argument: Judge Raggi also emphasized the exceptional importance of this case and the “immediate and serious adverse consequences” of the panel’s ruling. “On the panel’s reasoning,” she explained, if the government had been able to show in early September 2001 probable cause to believe that the 9/11 perpetrators “were communicating electronically about an imminent, devastating attack on the United States, and that Microsoft possessed those emails,” a federal court would not have been able to issue a Section 2703 warrant if Microsoft had stored the emails outside the United States, “even though [Microsoft’s] employees would not have had to leave their desks in Redmond, Washington, to retrieve them.” All well and good, if you like that sort of thing, but the facts of the case are far less dire: In December 2013, the government applied for a warrant requiring Microsoft to disclose email information for a particular user’s email account. See App., infra, 2a, 8a-10a. The government’s application established probable cause to believe that the account was being used to conduct criminal drug activity. This is how most arguments for expansions of law enforcement reach and grasp go: talk about how it will be used to stop terrorists; actually use it to hunt down normal criminals. The petition admits Congress meant for domestic laws to only be applied domestically before arguing certain "applications" of US law should be seen as permissible inversions of Congressional intent. The DOJ argues Microsoft's United States offices should permit worldwide searches of its data centers. Once again, the government's arguments that stored communications are no different than paper files in a file cabinet (made when it wants broadly-written electronic storage searches to be seen as no more intrusive than a residence search) works against it. This interpretation of the Stored Communications Act means any service provider anywhere could be made to hand over documents stored overseas as long as they have a US office where a warrant can be served. This would be the case even if the service provider has no US storage locations and nothing more than a US-based "storefront" for convenience. Microsoft has already responded with a lengthy blog post. It points out the better way forward is not to have the Supreme Court reinterpret a 30-year-old law, but rather to work with US service providers and Congress to build a better law that addresses the world as it is now. The litigation path DOJ is now trying to extend in parallel to legislative progress seeks to require the Supreme Court to decide how a law written three decades ago applies to today’s global internet. The previous decision was soundly in our favor, and we’re confident our arguments will be persuasive with the Supreme Court. However, we’d prefer to keep working alongside the DOJ and before Congress on enacting new law, as Judge Lynch suggested, that works for everyone rather than arguing about an outdated law. We think the legislative path is better for the country too. The post also points out cooperation with foreign law enforcement is a much faster process than has been portrayed by the DOJ, which insists it takes "weeks" to see results of these cooperative efforts. Following the Charlie Hebdo attack, Microsoft was able to turn over US-stored communications to French law enforcement in under an hour. What the DOJ doesn't seem to understand (or genuinely just doesn't care about) is a decision granting it the power to seize communications from anywhere in the world would result in foreign governments expecting the same treatment when requesting communications stored in the US. Should people be governed by the laws of their own country? If the decision in our case were reversed, it would subject every person in the world to every other country’s legal process. The email of a person who lives and works in Dublin would be subject to an American warrant issued by a U.S. court just as an American would be subject to an Irish warrant. Our customers tell us they want to be governed by the laws of their own government, and they deserve the certainty of knowing what laws govern their data. If the Supreme Court decides to grant the DOJ's petition, this won't be argued until the next session, leaving the DOJ plenty of time to work on its legislative proposals. Hopefully, it's actually working with US service providers on this, rather than thinking it's the only stakeholder of importance in the legislative process. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The saga of Zillow's totally bullshit legal threat has lasted all of three days. Following a terrible (and still wrong) attempt at damage control, Zillow has sent a note to all the reporters who have covered the story to say that it won't be taking legal action: We have decided not to pursue any legal action against Kate Wagner and McMansion Hell. We’ve had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won’t use photos from Zillow moving forward. It was never our intent for McMansion Hell to shut down, or for this to appear as an attack on Kate’s freedom of expression. We acted out of an abundance of caution to protect our partners – the agents and brokers who entrust us to display photos of their clients’ homes. Even this response is bullshit. Note, first of all, there still isn't any apology there. Second, notice that they're still prattling on about how the action was justified and are also happy that McMansion Hell won't be using images from Zillow, even though the site and its founder, Kate Wagner absolutely could do so if doing so meets the standards of fair use (which all of the examples I've seen on the site so far almost certainly do). Third, "decided not to pursue legal action against Kate Wagner." Well, no fucking duh. This is because any lawyer with an ounce of knowledge on these topics has already explained that you have no actual legal claim here at all. Fourth, this was not done "out of an abundance of caution" or "to protect" your partners. It appears to have been done in a fit of anxious cluelessness, in a manner that made Zillow look terrible and petty -- not to mention clueless on the law. Still, good on EFF for getting involved and helping out. EFF has a blog post about this issue and has posted the incredibly thorough debunking letter it sent Zillow, explaining how Zillow has literally no legal leg to stand on. And it also makes quite clear that Wagner has every right to continue to use images from Zillow -- but that she is choosing not to do so going forward (it's a little unclear if she intends to replace older images sourced from Zillow). Either way, Zillow still comes out of this looking like shit. The fact that it never apologized and still seems to think that the legal notice was the right thing to do (not to mention that it's still focused on whether or not Wagner will make use of these images) suggests that Zillow has not even remotely learned a lesson here. This does not speak well of Zillow as a company. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Paul Levy has tracked down yet another abuse of the court system to illegitimately erase factual news articles from the internet. The person behind the bogusly-obtained court order is Megan Welter, who achieved national fame and national infamy within the space of a few days back in 2013. The case that we just entered involves Megan Welter, a young woman who achieved a degree of publicity success in the summer of 2013 with the story of how an Iraq war veteran had become a cheerleader for the Arizona Cardinals football team. A few days later, she learned how fickle the media can be: it got its hands on a less flattering situation: in a fit of jealous rage at her boyfriend’s communication with one of his exes, Welter called the police claiming that he was abusing her physically. But when the police arrived, the boyfriend persuaded them, through cellphone video as well as Welter’s own on-the-scene admissions, that it was Welter herself who was the assailant. The upshot was that Welter was arrested and charged, and that story, based in part on the boyfriend’s statements to the police, received national coverage in the print and broadcast media, as well as on various sports-related blogs and web sites. Many of these sites carried bodycam video from the responding police, plus the cell phone video that the boyfriend provided to the police; a few even linked to a detailed police report describing Welter’s own self-incriminating statements. Despite it being almost two years past the statute of limitations, Welter engaged the services of Kelly/Warner LLC to file a defamation lawsuit. The complaint [PDF] contains nothing but conclusory claims about the supposed libel. (Basically, "false statements were made and were false.") The complaint was accompanied by a proposed injunction, which included a list [PDF] of 107 URLs --including YouTube videos and a variety of other websites -- Welter wanted delisted. But Welter still needed somebody to trigger this judicially-abusive chain of events. She, along with her lawyer, leaned on the ex-boyfriend. The proposed stipulation included a signature line for Ryan McMahon, Welter’s boyfriend on the day of the controversial incident, and a paragraph in which McMahon purported to “admit” that the statements about Welter attributed to him in the various news stories were false. McMahon signed the form, possibly after being misled by Welter's lawyer. (Levy notes her legal rep said he had an email chain showing McMahon's voluntary and knowing participation in the lawsuit, but refused to turn it over to Levy.) Welter's lawyer used this single signature to attempt to nuke 107 pieces of content not created by McMahon. Obviously, as Levy points out, the lawsuit wasn't filed to get her ex-boyfriend to shut up. It was filed to whitewash the unpleasant parts of her recent history. The way to accomplish this was through a tricky manipulation of the well-established principle that injunctive relief extends to the “agents” of an enjoined defendant and, indeed, to others who connive with the defendant to propagate his wrongdoing. The stipulated injunction included several prohibitions of publication by “defendant’s” agents — in context, the “defendant” was plainly McMahon – but it defined the term “agents” as including anybody whose publication was “enabling” the publication of the 98 online articles based in part on McMahon's contemporaneous statements, as well as nine YouTube videos (most of which were copies of TV stories) identified in the complaint. Moreover, McMahon’s admission included the proposition that “all or substantially all of the statements made in URL’s are false and defamatory.” And on that basis, all of the defendants responsible for those online articles, as well as the “agents” as broadly defined, were commanded to take them down. [...] And, just in case they did not comply with these orders, the order called for Google and other search engines to take the URL’s identified in the order out of its database so that the content would not be searchable (here, again, the basic element of the fraudulent Richart Ruddie orders). Even though numerous websites (including ABC News, CBS News, Sports Illustrated, and USA Today) were claimed to have published defamatory material, not a single one was listed directly as a defendant. The filing insisted all of these well-known sites -- most of them carrying writer bylines -- are only referred to as "unidentifiable" Does. This internet-nuking order [PDF] should never have made it past a judge. But it did. Now Levy has filed a motion to vacate [PDF] on behalf of Avvo, one of the 98 sites listed in the attachment to the proposed order. It points out several flaws in the complaint and injunction, the first of which is the obvious statute of limitations violation. Beyond that, the complaint has numerous fatal flaws, including its failure to show how statements made by her ex-boyfriend to the police are somehow false now that she wants them scrubbed from the internet. It appears Judge Patricia Starr isn't bothered by the plaintiff's questionable legal tactics. The only thing she finds irritating is this case's potential to add to her workload. Since we filed the papers late yesterday, I received a recording of the telephonic hearing. That recording makes Judge Starr look even worse. The only reason she called the hearing, she said, was that she was worried that the terms of the stipulation could keep the case on her docket longer than it had to be; she wanted to know whether that problem could be fixed. And she wanted assurance that entry of the order would be the end of the case. She evinced no concern about the free speech rights of the absent defendants. Worse, this free speech-ignoring injunction-granting came after hearing from the single named defendant, who contradicted the claims made in the lawsuit. McMahon was on the telephone, and he said, toward the end of the very short hearing, “Even though she did these things, I really believe that everybody deserves a fresh start. And if it ever happened to me, I would want someone to do this for myself. So I am okay with that. I guess that I hope she learns her lesson, and she takes care of it and doesn't do it again.” So this state court judge had no compunction about issuing a sweeping injunction against nearly a hundred absent defendants even though the individual defendant, appearing without counsel before her, contradicted the “admission” in the stipulation that the URL’s were entirely or mostly false by saying, “she did these things.” The court system can be abused by disingenuous plaintiffs seeking to erase their web pasts, but it shouldn't be encouraged by judges who suspect something is off, but are more interested in clearing their dockets. Permalink | Comments | Email This Story

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Earlier this week, we wrote a little bit about the 20th anniversary of a key case in internet history, Reno v. ACLU, and its important place in internet history. Without that ruling, the internet today would be extraordinarily different -- perhaps even unrecognizable. Mike Godwin, while perhaps best known for making sure his own obituary will mention Hitler, also played an important role in that case, and wrote up the following about his experience with the case, and what it means for the internet. The internet we have today could have been very different, more like the over-the-air broadcast networks that still labor under broad federal regulatory authority while facing declining relevance. But 20 years ago this week, the United States made a different choice when the U.S. Supreme Court handed down its 9-0 opinion in Reno v. American Civil Liberties Union, the case that established how fundamental free-speech principles like the First Amendment apply to the internet. I think of Reno as "my case" because I'd been working toward First Amendment protections for the internet since my first days as a lawyer—the first staff lawyer for the Electronic Frontier Foundation (EFF), which was founded in 1990 by software entrepreneur Mitch Kapor and Grateful Dead lyricist John Perry Barlow. There are other lawyers and activists who feel the same possessiveness about the Reno case, most with justification. What we all have in common is the sense that, with the Supreme Court's endorsement of our approach to the internet as a free-expression medium, we succeeded in getting the legal framework more or less right. We had argued that the internet—a new, disruptive and, to some large extent, unpredictable medium—deserved not only the free-speech guarantees of the traditional press, but also the same freedom of speech that each of us has as an individual. The Reno decision established that our government has no presumptive right to regulate internet speech. The federal government and state governments can limit free speech on the internet only in narrow types of cases, consistent with our constitutional framework. As Chris Hanson, the brilliant ACLU lawyer and advocate who led our team, recently put it: "We wanted to be sure the internet had the same strong First Amendment standards as books, not the weaker standards of broadcast television." The decision also focused on the positive benefits this new medium had already brought to Americans and to the world. As one of the strategists for the case, I'd worked to frame this part of the argument with some care. I'd been a member of the Whole Earth 'Lectronic Link (the WELL) for more than five years and of many hobbyist computer forums (we called them bulletin-board systems or "BBSes") for a dozen years. In these early online systems—the precursors of today's social media like Facebook and Twitter—I believed I saw something new, a new form of community that encompassed both shared values and diversity of opinion. A few years before Reno v. ACLU—when I was a relatively young, newly minted lawyer—I'd felt compelled to try to figure out how these new communities work and how they might interact with traditional legal understandings in American law, including the "community standards" relevant to obscenity law and broadcasting law. When EFF, ACLU and other organizations, companies, and individuals came together to file a constitutional challenge to the Communications Decency Act that President Bill Clinton signed as part of the Telecommunications Act of 1996, not everyone on our team saw this issue the way I did, at the outset. Hanson freely admits that "[w]hen we decided to bring the case, none of [ACLU's lead lawyers] had been online, and the ACLU did not have a website." Hanson had been skeptical of the value of including testimony about what we now call "social media" but more frequently back then referred to as "virtual communities." As he puts it: "I proposed we drop testimony about the WELL — the social media site — on the grounds that the internet was about the static websites, not social media platforms where people communicate with each other. I was persuaded not to do that, and since I was monumentally wrong, I'm glad I was persuaded." Online communities turned out to be vastly more important than many of the lawyers first realized. The internet's potential to bring us together meant just as much as the internet's capacity to publish dissenting, clashing and troubling voices. Justice John Paul Stevens, who wrote the Reno opinion, came to understand that community values were at stake, as well. In early sections of his opinion, Justice Stevens dutifully reasons through traditional "community standards" law, as would be relevant to obscenity and broadcasting cases. He eventually arrives at a conclusion that acknowledges that a larger community is threatened by broad internet-censorship provisions: "We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of 'narrow tailoring; that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked that the speech restriction at issue there amounted to ' 'burn[ing] the house to roast the pig.' ' The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community." The opinion's recognition of "the Internet community" paved the way for the rich and expressive, but also divergent and sometime troubling internet speech and expression we have today. Which leaves us with the question: now that we've had two decades of experience under a freedom-of-expression framework for the internet—one that has informed not just how we use the internet in the United States but also how other voices around the world use it—what do we now need to do to promote "the Internet community"? In 2017, not everyone views the internet as an unalloyed blessing. Most recently, we've seen concern about whether Google facilitates copyright infringement, whether Twitter's political exchanges are little more than "outrage porn" and whether Facebook enables "hate speech." U.K. Prime Minister Theresa May, who is almost exactly the same age I am, seems to view the internet primarily as an enabler of terrorism. Even though we're now a few decades into the internet revolution, my view is that it's still too early to make the call that the internet needs more censorship and government intervention. Instead, we need more protection of the free expression and online communities that we've come to expect. Part of that protection may come from some version of the network neutrality principles currently being debated at the Federal Communications Commission, although it may not be the version in place under today's FCC rules. In my view, there are two additional things the internet community needs now. The first is both legal and technological guarantees of privacy, including through strong encryption. The second is universal access—including for lower-income demographics and populations in underserved areas and developing countries—that would enable everyone to particulate fully, not just as consumers but as contributors to our shared internet. For me, the best way to honor the 40th anniversary of Reno v. ACLU will be to make sure everybody is here on the internet to celebrate it. Mike Godwin ([email protected]) is a senior fellow at R Street Institute. He formerly served as staff counsel for the Electronic Frontier Foundation and as general counsel for the Wikimedia Foundation, which operates Wikipedia. Permalink | Comments | Email This Story

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With the telecom sector seeing the Trump administration as somewhat of a blank check, the industry is busy considering all manner of mergers and acquisitions that would have been blocked under any number of previous administrations for being competition-killers. Verizon has made an offer to buy Charter (Spectrum), Sprint has been trying to merge with T-Mobile, AT&T's pushing for approval of its acquisition of Time Warner, Altice USA is gobbling up smaller providers hand over foot, and the industry is consolidating at a faster rate than ever. While obviously not all M&As are bad by default, ignored in this rush is that several recent high-profile telecom deals have been utter shitshows for the American consumer. While the Obama administration did block both AT&T and Sprint's attempted acquisitions of T-Mobile (which wound up being a very good thing for competition and consumers), its approval of Frontier's acquisition of Verizon's unwanted DSL customers in Florida, California and Texas resulted in endless outages and problems courtesy of a bungled integration. The Obama administration also approved Charter's $79 billion acquisition of Time Warner Cable and Bright House, resulting in not only much higher prices for consumers, but (somehow) even worse customer service for already one of the least-liked companies in America. Undaunted by any potential history lessons, now Trump-era merger mania rolls on with the news that Charter and Comcast are considering either a joint acquisition of Sprint, or a minority ownership stake in exchange for a more lucrative network sharing deal for both companies' wireless services: U.S. wireless carrier Sprint Corp is in talks with Charter Communications Inc and Comcast Corp about a partnership to boost the two U.S. cable companies' wireless offerings, according to sources familiar with the matter. Sprint, controlled by Japan's SoftBank Group Corp, has entered into a two-month period of exclusive negotiations with Charter and Comcast that has put its merger talks with U.S. wireless peer T-Mobile US Inc on hold till the end of July, the sources said on Monday. Said deal could involve an outright acquisition of Sprint by the two cable giants, though one source suggests that's unlikely at first. More likely is a joint minority investment by both companies in exchange for a discount network sharing arrangement to help fuel both cable companies' attempts to get into the wireless sector. Comcast has already launched a WiFi-centric wireless voice service that uses the Verizon Wireless network for backup, and Charter is planning a similar service for 2018. That would, depending on how it went, likely evolve into a full acquisition of Sprint down the road. Both companies had already struck a deal to partner on handset contracts, including a promise not to acquire a wireless carrier without first informing the other company. That deal was criticized on some fronts as a way for the two cable companies to avoid having to directly compete as they pushed their respective services to market. How all of this shakes out (and whether it's good for anybody not named Sprint, Comcast or Charter) remains unclear. The deal could be an improvement over a Sprint acquisition of T-Mobile as it would not only keep the four major wireless competitors intact, but would bolster Sprint's historically rocky balance sheet ensuring it remains a somewhat viable competitor. That said, Charter and Comcast are no strangers to anti-competitive behavior, and adding another entire service segment to this well-documented dysfunction could prove disastrous for what's already some of the worst customer service in any industry in America. Permalink | Comments | Email This Story

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Businesses have access to mountains of data. Big data and how to properly manage it is a big deal. The $36 Ultimate Data Infrastructure Architect Bundle is designed to teach you how to manage it all to make it more useful. The bundle includes 5 courses covering ElasticSearch 5.0, Apache Spark 2, MongoDB, Hadoop 2, and Amazon Web Services (AWS). You also receive 5 e-books offering expanded training on the concepts introduced in the courses. You’ll get an ElasticSearch 5.x Cookbook, Fast Data Processing with Spark 2, a MongoDB Cookbook, Learning Apache Kafka and Apache Flume: Distributed Log Collection for Hadoop. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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It's not secret that we still desperately need comprehensive patent reform to fix the many, many problems of our patent system. Even as the Supreme Court has spent the past twelve years repeatedly fixing broken parts of patent law one piece at a time (by repeatedly smacking down awful decisions by the Court of Appeals for the Federal Circuit) there's still much more that can, and should, be done. To date, most of these efforts are being blocked by powerful pharmaceutical interests, with some help from short-sighted trial lawyers who fear things like fee shifting (i.e., "loser pays") coming to patent law. With broad bipartisan support for real patent reform, it's really just been a few well-connected organizations that have blocked the whole thing from going through. But, apparently, those groups have a friend in Senator Chris Coons, who last week introduced a patent reform bill so bad that it would basically wipe out pretty much all of the major gains towards fixing the patent system from the past twelve years. It's that bad. And shame on Senators Tom Cotton, Dick Durbin and Mazie Hirono for co-sponsoring the bill. It's unfathomably bad and would destroy innovation in many parts of the country. You know the bill is going to be bad when it conflates monopoly patent rights with traditional property rights, despite the two being entirely different things: “Strong rights in property—whether intellectual or tangible—have been a key driver behind U.S. economic might. Eroding such rights would imperil innovation and job growth, so we need to maintain strong patent protections if we want our economy to grow at full speed,” said Senator Cotton. “I’m glad to see my colleagues from both sides of the aisle understand just how important patent rights are to our future. And I believe this bill will make sure intellectual-property rights are treated with the same respect as all our other rights.” Except, of course, this is not an accurate description of patents at all. When patents are too "strong" they impede and hinder innovation. They slow down, limit, or outright kill important improvements and follow-on innovations. They work on the truly wrong concept that whoever comes up with an idea "first" is best able or equipped to actually successfully execute and bring things to market. They work on the assumption that less competition improves innovation when basically all evidence points in the other direction. There are so many bad parts in the bill, it's tough to talk about them all. Josh Landau, over at Patent Progress, however has a pretty thorough breakdown. We'll break the problems into two sections ourselves (though, again, there's much more). First up, trying to kill the inter partes review process (IPR). IPR is very much under attack these days which is stupid and unfortunate. Here's the idea behind the IPR system: sometimes (perhaps frequently!) the US Patent Office makes a big mistake and grants a patent that should not have been granted. This is not a theoretical problem. Studies have shown repeatedly that there has been an explosion in questionable patents approved in the last couple decades. There are lots of reasons for this, many of which we've discussed in previous posts, but hopefully everyone should be able to admit that if a patent that should not have been granted at all under the law, is still granted there is a clear harm to innovators and the public, in that innovators are blocked from innovating -- or are charged an unnecessary fee. There's a real and noticeable problem. So, implemented back in 2012 under the America Invents Act, the concept behind IPR, is that the validity of a patent can be reviewed by a special tribunal at the US Patent Office to determine if the patent is valid. It's basically a good safety valve on the fact that patent examiners were often under pressure to approve patents just to clear out the docket faster, rather than worrying about whether or not something was truly valid. Seems like a good idea, but trolls and pharma companies hate it so much. The Supreme Court is going to hear a case soon looking at the Constitutionality of the IPR process -- described in the article linked above as determining if the USPTO is "allowed to change its mind." But the Coons bill, if passed, would do away with the need for SCOTUS to review, because it would basically wipe out the IPR process. Landau summarizes just a few of the changes to the IPR process in this bill: If a patent claim has ever been IPRed, no one else can ever IPR it again, no matter who they are or if they have totally new art. You can never file multiple petitions against the same patent, even if it has 300 claims.   The Patent Office can never revisit a patent once a federal court has. Patent owners can appeal institution of an IPR before the final written decision, but petitioners can’t appeal denial of institution. Only people who have actually been sued can file an IPR. Anyone who financially supports the petitioner becomes a real party in interest. Unlike everywhere else in the Patent Office, you have to prove claims are invalid by clear and convincing evidence using a narrow construction rather than the broadest reasonable interpretation. Patent owners are effectively entitled to amend their claims. Patent owners can, instead of going through IPR, ask to go through an “expedited reexamination,” allowing them to change their claims and have their patent treated as if it was a fresh application.  The petitioner isn’t involved in the reexamination, so it’s just the patent owner and the Patent Office To show just how dumb this would be, Landau uses the example of the infamous podcasting patent troll, Personal Audio. As you may recall, after much effort, EFF was able to help bust the key patent held by Personal Audio, using the IPR process, and protecting tons of podcasters in the process. But would that still work if this bill became law? Not likely. EFF was never sued by Personal Audio. They couldn’t have filed their IPR at all. The story would end here, even though that patent was invalid. The requirement that you actually be sued goes too far. A patent owner can wait until people have built up businesses before suing, and in the interim, no one can challenge their patent. An IPR would let me see if the patent is valid before I invest resources in developing my product. Requiring an actual lawsuit before filing an IPR would incentivize patent owners to sit and wait until products are developed and profitable before filing their lawsuits. [....] Next, EFF would have to identify the “real party in interest” for the IPR. After the STRONGER Patents Act, that includes anyone who: directly or through an affiliate, subsidiary, or proxy, makes a financial contribution to the preparation for, or conduct during, an inter partes review on behalf of the petitioner So, did you donate to EFF during the past 4 years? Congratulations, you’re now a real party in interest to the podcasting IPR. That means that you can’t challenge the patent in court if you’re ever sued. It also means that if you were sued on the patent more than 1 year ago, then EFF would have been prevented from filing the IPR. It means that, if EFF failed to name you in their petition as a real party in interest, the patent owner can ask for the petition to be denied because of that failure. And it means that anyone else you contribute to winds up prevented from challenging the validity of the patent anywhere (including in court.) And it doesn’t stop there. If I’m a startup developing new technology and I file an IPR, any VC who funds me during the process is a real party in interest. If that VC then funds another company, that company can no longer file an IPR or challenge the validity of the patent. VCs will be wary of funding anyone who’s filed an IPR as a result, and startups who have to choose between an IPR and funding are going to pick funding. Even more bizarre is taking away the adversarial nature of an appeal. One of the key problems with today's patent system is the total lack of an adversarial interest in determining if a patent was valid. If you only ever hear from one side of a debate, you're likely to identify much more with that side. But here, Coons is trying to shift the system to vastly limit any sort of adversarial process: And let’s assume, as happened in real life, that the PTAB decided that there was a reasonable likelihood EFF would invalidate at least one of Personal Audio’s patent’s claims. The PTAB would decide to institute the IPR. At which point the STRONGER Patents Act gives the patent owner to appeal the institution if there were procedural defects (like failing to name all the real parties in interest, being filed after a year from a lawsuit, or—new to the STRONGER Patents Act—if someone else had previously challenged the claim.) They can appeal even though the patent owner had every opportunity to point these defects out before the decision on institution was made. But for some reason it doesn’t give the petitioner the right to appeal a denial if the denial was made for a procedural defect. You can only appeal if the patent is determined likely to be invalid. Seems “balanced,” doesn’t it? Those supporting this bill want the world to believe that any challenge to a patent's validity is a de facto problem that needs to be stopped. The reality, though, is that getting rid of bad patents quickly is a key part of our patent system today, that is quite frequently a big part of why bad patents are getting thrown out and some patent trolls have struggled. Oh and then there's this bit of total nonsense: The STRONGER Patents Act also creates a new procedure, called the “expedited IPR reexamination.” This is itself a misnomer, because the “inter partes” in IPR means “between parties,” and the expedited reexamination explicitly does not include the petitioner, only the patent owner. But setting aside the deceptive labeling, the expedited reexamination means that when an IPR is instituted, instead of actually responding to the IPR, the patent owner can simply request to cancel all their claims, file amended claims, and request a new examination of their patent. In this examination, it goes back to a regular patent examiner. The petitioner is totally cut out of the process. So Personal Audio could simply go through reexamination, add some meaningless limitations to their claim, and come back with their patent. And by this point, it’s probably been more than a year since Personal Audio sued Adam Carolla, which means that EFF and Carolla are barred from challenging the new claims. (And if it hasn’t been more than a year, well, if it gets instituted then they can just request another expedited reexamination to keep running out the clock.) This is bad, bad stuff. The IPR process is relatively new, but already quite important, and this bill would effectively wipe it out in its infancy. The second major problem with the bill is that it basically targets a bunch of the Supreme Court rulings from the past few years that have helped massively fix problems with the patent system. Rather than applauding this and pushing SCOTUS to continue to clean up these messes, it often goes the other way. Here's Landau again, talking about how it would effectively reject SCOTUS's ruling in eBay v. Mercexchange -- one of the earlier patent cases the Supreme Court took in this new century to smack down CAFC and bring back some sanity. This is the case that says maybe, even if there's infringement, the optimal solution should NOT be a total injunction against the entire product: For example, § 106 of the bill “restores the presumption of injunctive relief upon a finding that a patent is valid and infringed.” In 2005, the Supreme Court decided the opposite in the eBay v. MercExchange case. The FTC’s 2003 “To Promote Innovation” Report highlighted the reasons why an automatic rule in favor of injunctions harms innovation and the economy, in particular noting that because injunctions typically issue after a product has been designed and manufacture has begun, injunctions put patent owners in a position to demand a “supra-competitive royalty rate.” The Coons bill would bring us back to the world in which a patent troll who patented a lug nut on a car could get an injunction on the entire car. That forces the manufacturer to choose between halting production on the entire vehicle until they can redesign and reorganize their manufacturing process (an incredibly expensive process) or paying the troll more than their lug nut’s technical value justifies. That’s not promoting innovation, or the economy—in fact, it’s the opposite. There's much more in there as well, most of which is covered by Landau. EFF also has a great blog post on how problematic this bill is, noting that it seems peculiarly designed to drive innovation overseas. This bill is dangerous. It takes the past fifteen years or so of a gradual march towards fixing a very broken patent system... and gets rid of nearly all of it. Permalink | Comments | Email This Story

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Opponents of net neutrality often claim the rules placed "onerous burdens" on small and large ISPs alike. But when push comes to shove, you'll rarely see any of these folks provide hard evidence of such "burdens." Usually, opposition is driven by a fundamental misunderstanding of what the rules do, and by a conflation of the rules with nebulous partisan worries that net neutrality somehow represents "government run amok." That confusion is, quite often, courtesy of "insight" on the subject from the likes of Ted Cruz, who has repeatedly tried to insist that killing the popular consumer protections somehow "restores freedom" (citation needed). But in yet another example of net neutrality's broad support out here in the real world, the EFF this week accumulated a list of 40 or so ISPs, VPN and VoIP providers that would very much like it if the rules remained intact. Noting how the last FCC's decision to reclassify ISPs as common carriers under the Communications Act actually helps them compete with their larger counterparts, the companies note that net neutrality hasn't hurt their ability to develop and expand their networks in the slightest: "We have encountered no new additional barriers to investment or deployment as a result of the 2015 decision to reclassify broadband as a telecommunications service and have long supported network neutrality as a core principle for the deployment of networks for the American public to access the Internet." Among these companies is California ISP Sonic, one of the few independent ISPs from the early aughts that managed to survive the incumbent ISP gauntlet, and the slow but steady attack on competition that started under former FCC boss turned top cable lobbyist Michael Powell (we talked with Sonic CEO Dane Jasper about this a podcast last April). Sonic and the rest of the companies proceed to note that eliminating the rules doesn't "restore freedom" for them; in fact most of them worry that the elimination of the rules will have a dramatically negative impact on competition in the market: "Without a legal foundation to address the anticompetitive practices of the largest players in the market, the FCC’s current course threatens the viability of competitive entry and competitive viability. As direct competitors to the biggest cable and telephone companies, we have reservations about any plan at the FCC that seeks to enhance their market power without any meaningful restraints on their ability to monopolize large swaths of the Internet." The companies also express concern about Congress' recent decision to kill broadband privacy protections at the behest of giant ISPs like Comcast, Verizon and AT&T -- most of which are not coincidentally conducting massive pivots into media and advertising: "Lastly, we implore the FCC to examine the ramifications of the Congressional Review Act repeal of broadband privacy and provide guidance. We have long championed our customer’s privacy and believe Congress was in error to erode their legal right to privacy. However, the repeal’s detrimental impact on the reach and scope of Section 222’s ISP privacy provisions has resulted in great uncertainty in the market that the FCC could help provide clarity." The companies' support comes on the heels of similar support for the rules from over 900 startups (you know, the people actually building the networks and technologies of tomorrow). In both instances (privacy and net neutrality), these "onerous regulations" had broad support among consumers and many smaller companies alike, highlighting again how the myopic opinion that "all regulation is automatically bad" is lazy thinking, a violent over-simplification, and incredibly detrimental when it comes to bringing competition to bear on one of the most anti-competitive and complicated segments of American industry. Permalink | Comments | Email This Story

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FOIA terrorist Jason Leopold has scored another win, securing a copy of an Intelligence Community Inspector General's investigation from the Office of the Director of National Intelligence. It's the sort of thing that's rarely released, most likely because it comes from the inner sanctum's inner sanctum. Maybe this one just seemed too damning to keep secret -- not for the ODNI or the Intelligence Community, but for the unnamed (well... redacted) ODNI employee who was caught abusing all sorts of policies, procedures, and laws while on the clock. The investigation report [PDF] opens with a list of five violations affecting all areas of the employee's work. And also possibly some violations of other employees. Subject engaged in conflicts of interest Subject engaged in improper or unauthorized outside employment Subject engaged in falsification and misrepresentation Subject misused government information and information systems. Subject engaged in sexual misconduct while on duty So, a very busy employee, albeit one not actually doing much to fulfill the job description. When she wasn't working for the government (which was apparently most of her shift), she was working for up to 14 other companies. The report says the employee "averaged in excess of five hours per day on personal affairs and unofficial business." What she was supposed to be doing was managing secured databases/sites and providing budget planning. What she actually did was handle work for outside companies while collecting a paycheck from taxpayers. This included companies currently being used by the IC as contractors and those seeking to win government contracts -- contradicting the information she gave supervisors and presented in disclosure forms. Even with this additional, conflicting workload, she still found plenty of time to do nothing. A counterintelligence analyst remarked of [redacted] in an assessment of the audits from May 2010 to May 2013, "I have highlighted the subject's game playing, and noted the trends. Subject appears to use specific gaming sites for a set period of time and then switches to a new site ... There do not appear to be any major gaps in time where subject was not visiting some type of gaming site." Working for fifteen employers is far less of a strain than I have been led to believe When confronted with the issue of illegal executables, games, and inappropriate chats on her account during the interview, [redacted] admitted that she spends approximately "all day" on Facebook and plays games at work from four to six hours per day. She also admitted that she engaged in sexually explicit Sametimes with a contractor for the first year of her employment with ODNI. The bar has been raised for wasting time at work. Between the games and providing some sort of assistance to fourteen outside companies (and engaging in sexual misconduct), the employee also found time to repeatedly access government databases for personal reasons. One of her favorite Privacy Act violations targeted the IC's most famous/infamous former member. Between June 10, 2013 and July 2, 2013, [redacted] ran JPAS [Joint Personnel Adjudication System] record searches for Edward Snowden 357 times under three of her accounts (Link Solutions, Augusta Westland, and Twin Soft Corporation) while at ODNI facilities during duty hours. According to the Defense Manpower Data Center's Manual on JPAS Account Management, one of the most common JPAS user violations is "querying the JPAS application for 'celebrity' records." This policy is explicitly forbidden in the manuals for JPAS. In the case of 357 unauthorized JPAS queries, [redacted] violated the Privacy Act. [...] Between June 10, 2013, and May 19, 2014, [redacted] ran JPAS record-searches for her own record 442 times under four accounts (Link Solutions, Augusta Westland, 99999 Consulting, and Wheeler Network Design). 324 of the 442 JPAS violations in this case were performed while at ODNI facilities during duty hours. According to the Defense Manpower Data Center's Manual on JPAS Account Management, one of the most common JPAS user violations is "querying the JPAS application for your own record." This policy is explicitly forbidden in the manuals for JPAS. Unfortunately, the report doesn't say what happened to this employee. Some of the IG's conclusions are redacted while others only say the investigation confirmed abuse of systems or violated policies. Her outside compensation also drew the heat of the IRS, which stepped in to examine her tax returns -- which she filed on the clock using an IC computer. It's been confirmed Snowden's privacy was violated, but I would imagine the IC feels he won't be filing a lawsuit anytime soon. It's difficult to believe this person could still be working for the government, but it's far from impossible she's still collecting a taxpayer-funded paycheck somewhere. The wheels of bureaucracy grind slower than the wheels of justice and this combines a little of both. Permalink | Comments | Email This Story

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One of the surveillance state's biggest cheerleaders is seeing his years of support pay off. Two congressional sources confirmed a May meeting, where Sen. John Cornyn, (R-Tex.), a vocal supporter of the intelligence community, got a private audience with the NSA Director Adm. Michael Rogers. Cornyn also got a private tour of the signals intelligence facility at Fort Meade, Maryland at the same time as the May meeting. Officials "familiar with the situation" (possibly read "jealous as hell") expressed concern about Cornyn's personal NSA tour. And for good reason. If Rogers and other NSA officials were feeding Cornyn information the rest of the NSA's Congressional oversight isn't privy to, that's a problem. It's more of a problem as the date for Section 702's reauthorization approaches. And it seems even more problematic that Cornyn was given a personal walk-and-talk while oversight members were failing to get substantive answers from the DNI during a Senate hearing. There's a long history of the IC playing favorites with oversight members (and vice versa) and a long history of those favorites withholding information from other members of Congress. This visit/personal chat may have been innocuous but given its context -- the Section 702 renewal -- it looks shady as hell. The additional context is the DNI's office believes all is forgiven -- or at least, no longer relevant. Reversing Clapper's promise to hand in something on incidentally-collected US persons' communications, the new Director is saying that's just not going to happen. The Foreign Policy article notes that it's common for incoming reps and senators to be given a tour and that oversight members routinely visit the NSA as part of their oversight duties, but this Cornyn-only event definitely appears to be the agency making a play for unbridled support from a powerful Senator. Permalink | Comments | Email This Story

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So we've been talking the past month about a push by the marketing industry (a company by the name of "All About The Message," specifically) to exempt "ringless voicemail" from existing robocalling and privacy rules. Ringless voicemail lets a company leave a marketing or political message in your inbox without your phone ringing. But such technology is currently prohibited by the Telephone Consumer Protection Act (TCPA) , which prohibits such marketing efforts without the "prior express consent of the called party." In its petition to the FCC (pdf), All About the Message tried to claim that the existing consumer protections on this front were "archaic," ringless voicemails shouldn't be included because they're not technically "calls," and that exempting ringless voicemail from these rules provided an "important public purpose:" "A direct to voicemail service platform is not covered by the TCPA, and the use of direct to voicemail insertion technology does not “make a call” to a wireless phone number as contemplated by Section 227, of Title 47 of the U.S. Code. What is more, consumers are not charged for delivery of the voicemail communications. Further, from a broader policy perspective, the use of direct to voicemail technology serves an important public purpose. The act of depositing a voicemail on a voicemail service without dialing a consumers' cellular telephone line does not result in the kind of disruptions to a consumer’s life—dead air calls, calls interrupting consumers at inconvenient times, or delivery charges to consumers -- which the TCPA was designed to prevent. The effort quickly then received the full-throated support of the US Chamber of Commerce, American Financial Services Association and the Republican National Committee, which in a supporting filing of its own (pdf) tried to claim that blocking this annoying effort would violate the First Amendment: "Telephone outreach campaigns are a core part of political activism. Political organizations like the RNC use all manner of communications to discuss political and governmental issues and to solicit donations – including direct-to-voicemail messages. The Commission should tread carefully so as not to burden constitutionally protected political speech without a compelling interest. The problem: at no point did any of these companies or organizations spend much time thinking about what consumers actually wanted, and they sure as hell didn't want their voicemail inboxes being filled up with spam. As a result, when the news wires began to issue reports on the ringless voicemail plan, consumers were quick to complain to the FCC and political leaders about the effort. All About the Message has since submitted a very short letter to the FCC stating they were pulling their petition from consideration, putting this latest attempt to annoy the hell out of you and your family to bed... for now. Permalink | Comments | Email This Story

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Last week the Supreme Court managed to hold its nose long enough to properly assert that banning convicted sex offenders from social media was plainly an infringement on their First Amendment rights. While much of the media coverage focused on the question of sex offenders having access to these well-trafficked websites, the real implications of the ruling were always likely to be far more reaching. We specifically pointed to the reasonable question: if sex offenders can't be blocked from internet sites due to their First Amendment rights, how can we possibly require ISPs to disconnect those accused of piracy from the internet under even the most tortured reading of 512(i) of the DMCA? In that original post, Mike wrote: 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. It appears we're starting down the road of finding out exactly what the court's answer to this question will be, as Cox recently filed an appeal and has now referenced the SCOTUS decision in its written arguments. Packingham is directly relevant to what constitute ‘appropriate circumstances’ to terminate Internet access to Cox’s customers. The decision emphatically establishes the centrality of Internet access to protected First Amendment activity. As the Court recognized, Internet sources are often ‘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’. The filing goes on to note that the government is not allowed to infringe on free speech in order to prohibit unlawful speech. If ever there were an example of that very thing, it certainly would be accused pirates being disconnected from what has now been cited as a speech medium in the internet. I'm genuinely looking forward to hearing oral arguments from the legal staff of the movie and record labels that those accused of piracy, typically on flimsy at best evidence, ought to be afforded less rights than convicted sex offenders. We've seen much demonizing of the internet in general and piracy in particular, but I'm having a hard time conjuring up the images of those lawyers managing to go that far. That's an argument that's going to need to be made, however, given the contention of Cox's latest filing. And if it offends the Constitution to cut off a portion of Internet access to convicted criminals, then the district court’s erroneous interpretation of Section 512(i) of the DMCA — which effectively invokes the state’s coercive power to require ISPs to terminate all Internet access to merely accused infringers — cannot stand. A win for Cox would mean much for the free speech rights of everyone in regards to internet access. A loss would mean this country's court system has some seriously skewed priorities for who should and should not be allowed access to the web. Permalink | Comments | Email This Story

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For the past few years, we've been covering the worrisome Google v. Equustek Solutions case in Canada. The case started out as a trademark case, in which Equustek claimed that another company was infringing on its trademarks online. That's fine. The problem was that the lower court issued an injunction against Google (a non-party in the case) that said it had to block entire sites worldwide. Blocking sites already raises some concerns, but the worldwide part is the real problem. In 2015, an appeals court upheld that decision, and earlier today the Canadian Supreme Court agreed with both lower courts in a 7-2 decision. The court is dismissive of any concerns about how an order from one country to block things on the internet globally might be abused -- calling the concerns "theoretical" and unproven. That may not last very long. First, let's look at the decision itself, and then the horrific possible consequences for free speech and innovation. Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. This is a nifty trick: because you can't show that this order might offend freedom of expression laws somewhere else in the world, let's just assume it's fair to apply absolutely everywhere. But... that's not the issue. It's not for a Canadian court to determine if its rulings obey the laws in other countries. A Canadian court has jurisdiction over Canada. And that's it. This is not about balancing theoretical harm v. real harm, this is about jurisdiction. The court tries to get around the jurisdictional question by saying because Google is available in Canada, somehow that makes it okay to censor globally, and further, notes that the lack of borders on the internet require such a result (ignoring how this will almost certainly create massive problems down the road): The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were deindexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm. This sounds nice, but makes no sense. First, again, a Canadian court only has jurisdiction over Canada. If the irreperable harm is happening elsewhere, then that's not the Canadian court's jurisdction and it has no say in the matter. The fact that purchasers outside Canada can find Datalink's website isn't a matter for Canadian courts. This may sound unfair -- as the court seemed to think -- but take two seconds to flip the script and think about how this would work with a ruling in China about stories concerning Tiananmen Square, or in Saudi Arabia about LGBTQ rights -- saying that Google had to de-index such sites in Canada, because they violated local law. The second scary part about the ruling is that it's not just saying that Google needs to de-index sites shown to involve infringement, but that it needs to de-index an entire site because other pages on that site might, at some future point, infringe. Really. The two dissenting judges pointed out how problematic this aspect is in the ruling, and how it actually gives Equustek even more than it was seeking. The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether. And that creates an additional problem. Since Equustek is getting more than it wanted, and because the defendant in the original case has ignored the court process, it's likely that this "temporary" injunction will effectively become a permanent one: In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so. Thus, the dissent notes, this is, in effect, a permanent injunction. And, it doesn't come close to the standards necessary for such a permanent injunction -- specifically in dragging a third party (i.e., Google) into the remedy: As we will outline below, the Google Order enjoins a nonparty, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies. And, it fears that Google will be forced to continue to monitor and de-index any new website set up by Datalink: The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace delisted ones. In fact, the Google Order has been amended at least seven times to capture Datalink’s new sites (orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015; September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts should avoid granting injunctions that require such cumbersome courtsupervised updating. Finally, the dissent points out that it appears Datalink has assets in France, and Equustek could easily go after them there, and that would be a remedy that leaves Google out of the process. Unfortunately, the dissent does not really delve into the problematic nature of a Canadian court claiming it can force a website to de-list sites globally. I already provided the Chinese/Saudi Arabian examples above, but Canadian law professor Michael Geist goes much deeper: Google will obviously abide the ruling, but as I noted last year, what happens if a Chinese court orders it to remove Taiwanese sites from the index? Or if an Iranian court orders it to remove gay and lesbian sites from the index? Since local content laws differ from country to country, there is a great likelihood of conflicts. That leaves two possible problematic outcomes: local courts deciding what others can access online or companies such as Google selectively deciding which rules they wish to follow. The Supreme Court of Canada did not address the broader implications of the decision, content to limit its reasoning to the need to address the harm being sustained by a Canadian company, the limited harm or burden to Google, and the ease with which potential conflicts could be addressed by adjusting the global takedown order. In doing so, it invites more global takedowns without requiring those seeking takedowns to identify potential conflicts or assess the implications in other countries. Geist also notes that this is part of the "drip drip drip" nature of mutliple rulings chipping away at free expression online: This last paragraph noting that Google already removes links to certain content (hate speech, child pornography, and copyright takedowns) highlights the cumulative effect of court decisions and regulations that individually may seem reasonable but which quickly move toward takedowns of all kinds. In fact, the majority cites the international support for Internet injunctions with global effect as a justification for its own order. The net result is the expectation of all countries and courts that they may issue global takedown orders regardless of the impact on Internet users outside the jurisdiction or on Internet intermediaries. Furthermore, Geist highlights where the court went wrong in saying that because it's "easy" for Google to de-index a site worldwide, there's no burden. But the technical burden is not the issue. The legal burden is: Of course, the inconvenience does not come from the technical side of removing search results, which is indeed trivial. The real inconvenience comes from conflict of laws and the potential for global takedown orders coming from across the planet, thereby opening the door to other countries choosing what Canadians might be able to find in search results. Those issues – along with the need to identify the laws in other countries in order to avoid conflicts – do involve significant inconvenience and expense. Indeed, a ruling like this likely will give Google more power over others, because Google has a large legal team that can handle this. Most other sites do not. Smaller sites cannot scour the globe to find out where such global takedown orders are legal and where they are not. Another Canadian lawyer, Howard Knopf, is even more forward in pointing out how this will be abused by Hollywood: I can just see the RIAA and MPAA salivating that the thought of getting global injunctions against Google at an interlocutory hearing from a trial judge in British Columbia. Will the mere fact that copyright subsists in BC - as it does virtually everywhere - be sufficient to get the injunction? One can imagine that few if any defendants would appear in such proceedings. And, worse, he points out that even if Canadian trial judges see through that ploy, the RIAA & MPAA can just go jurisdiction shopping for other locations where courts will cite this case as a reason they can issue preliminary global injunctions. Canada just handed anyone who wants it a tool for global censorship. Anyone from authoritarian regimes to Hollywood may now begin to use it. I recognize that some Google haters are cheering on this ruling because they will cheer on anything that makes Google look bad -- and the RIAA/MPAA types are celebrating this new power over Google. But this is extremely short sighted. Enabling countries to reach across borders to censor the internet does not end well. You are giving veto power over speech to the most repressive regimes, just because you dislike a company. If that's your view, you should perhaps check your priorities more carefully. And this goes doubly for the RIAA and MPAA. Those two organizations both used to fight for free speech. They both used to fight for the ability of musicians and filmmakers to express themselves. This tool that they helped create (they were involved in this case, pushing the view that the court eventually sided with), will be turned around and used to censor music and movies worldwide -- and the legacy recording and film industries will have no one to blame but themselves. 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By now, of course, you've probably heard that the EU Commission has fined Google €2.4 billion for antitrust violations, specifically regarding shopping search (there are at least two other investigations going on around antitrust questions involving Android and Adsense). The specific issue leading to this fine is that Google, for years, has been pushing its own comparison shopping results in response to searches on products, and other comparison search vendors feel this is unfair, as users are more likely to just jump to Google's shopping options in the boxes up top -- usually called the "onebox" (for what it's worth, I almost never click on those boxes, in fact, I almost never use Google for product search, preferring other, better, dedicated sites -- but that's a single anecdotal point, while the EU is citing some data it claims supports its position). Anyway, rather than digging all that deep, let's go with three thoughts I had in reading through the EU's announcement (linked above), Google's response and some of the other coverage. I still don't understand why Google didn't handle this differently starting years ago. Three years ago, we wrote about this in connection to the antitrust fight over "place reviews" where Yelp & TripAdvisor made the fairly compelling (and data-backed) argument that Google users would prefer if the "onebox" were populated using Google's search algorithm, rather than only showing Google's review pages via Google Local/Zagat/whatever it's called. The same thing could apply somewhat to shopping search as well, and pull from other shopping search engines -- and, voila, no more antitrust issue. In that setup, competition in the market rules -- and if Google can produce the best results, it wins. If others can do better, then they win. Seems like a fairly straightforward solution as it would have eased the pressure on Google, and wiped out this kind of fine. Indeed, such a response would even feel more "Googley" in the early-2000's definition of "Googley" where the company seemed much more willing to drive people elsewhere on the web, rather than keep people in. Even given that first point, I'm still... nervous about having European bureaucrats (or, really, any bureaucrats) telling any company how they can design their webpages. As Wired's Klint Finley points out, once bureaucrats -- who have no idea the realities of designing search results pages, let alone designing any webpages -- start telling websites how they can and cannot design their sites, trouble follows. I know that some are saying (and I've talked about this in the past) that this is just the EU slapping down big American companies for being "big" and "American" but I really think this is a case of EU regulators getting so deep in the weeds and then deciding that Google is too big and that they (the bureaucrats) don't like how its shopping search results work. That kind of meddling in webpages should worry everyone. Yes, you can say that it will only be used against giant companies... but once you open the door to bureaucrats telling you how your webpages can work, they might not stop at just the big ones. Danny Sullivan summed this up nicely: Next up: EU to decide a search engine offering news, image & local search is somehow a violation of being a "fair" search engine. https://t.co/hUAYAbO6V9 — Danny Sullivan (@dannysullivan) June 27, 2017 Given all that: will this actually change anything substantial? Even if Google accepts this and doesn't appeal (which it probably will...) it can easily afford the fine. But, more importantly, will this actually help other comparison shopping engines? That's much less clear. That same article (by Rob Pegoraro) has a number of interesting quotes, including a few from Jan Dawson of Jackdaw Research noting that in the market for product searches (as in my anecdotal experience), most don't start at Google: “Around half of searches for products now start on specific e-commerce sites or apps, especially Amazon in the countries where it operates,” emailed Jackdaw Research principal Jan Dawson. Dawson also noted: "Although those comparison shopping sites still exist, they're far less relevant today, and even a change to Google’s search engine isn't going to turn that around." So... if this isn't going to hurt Google and isn't going to help other companies in the market, then... what's the point exactly? Yes, Google could have done things differently, but this doesn't help really. Permalink | Comments | Email This Story

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One of the big stories of the week so far was Zillow's mind-numbingly bizarre decision to have a recent-hire lawyer send out a completely bullshit threat letter to the website McMansion Hell. Things have not gone well for Zillow in the wake of this. Multiple news articles have been mocking Zillow's decision, and my own Twitter feed has been filled with people saying unkind things directed at the company. And then there's whatever this is: These signs plastered all over outside of Zillow HQ in Seattle today after Zillow threatened to sue McMansion Hell https://t.co/uAj4ctQJgy pic.twitter.com/qGFPhJoKm8 — Mike Rosenberg (@ByRosenberg) June 27, 2017 Given that, as we discussed in our original post, there is no legitimate legal claim here, the only thing that the threat letter seems to have done is piss off a ton of people about Zillow. That's bad. And it doesn't seem to be getting better. Rather than doing what I thought the company would do on Tuesday (i.e., admit that it fucked up, slap the lawyer on the wrist, apologize profusely and promise to put in place better processes to avoid this sort of thing from happening again), the company is trying to justify its decision. The Verge has the followup letter that was sent by Zillow's VP of Communications & Public Affairs, trying to better "explain" the reasoning for the original letter. It doesn't help. It actually makes things worse. Dear Kate, Over the past day, we’ve had a lot of questions from the media about the cease and desist our legal team sent to you. I understand why – your blog is well-loved by its many fans. Okay. There's no apology in that first line, so we're already off on the wrong foot. And... seeing as Zillow admits the blog is "well-loved," didn't anyone at Zillow think that maybe sending a ridiculous and misleading threat letter was a bad idea? I wanted to write to both thank you for taking down the photos, but also to give you a little bit of context around the request. She didn't take down the photos. She took down the whole blog. Because you sent a completely bogus threat letter than never should have been sent. Mostly, though, I want to stress that we do not want you to take down your blog. We hope you will be able to resume your writing and find other sources for photos. Except... it's totally reasonable for someone scared by a bogus threat letter to pull down the whole site, rather than go back and individually ruin each story which all rely on images. Second -- and more importantly -- she doesn't need to find other sources for photos because (1) Zillow has no copyright interest here and should shut up about the copyright and (2) FAIR USE protects what she is doing. So this letter is just... still wrong. As for why we requested you remove the photos from Zillow – we do not own the rights to many of the photos on our site, and therefore can’t give permission for third parties, such as yourself, to take the photos from our website for any purpose. We get them from brokerages and MLSs who are advertising homes for sale and through those agreements we have an obligation to protect the interest of the copyright holders who license the images to Zillow. And this paragraph... makes things even worse. First off, you didn't "request" that she remove the images, you sent a silly, misleading and simply wrong legal threat letter. That's a massive difference. It wasn't a "hey, please could you..." it was "if you don't do this we're going to sue you and ruin you." Second, you're admitting again that you don't hold the rights, which means you also don't need to worry about "giving permission" to others, because it's not yours to give. Third, thanks to fair use, no one needs to give or even ask for permission. So what's your point here other than that Zillow doesn't seem to comprehend the most basic concepts of copyright law? Fourth, since Zillow freely admits that it has no copyright in these images, then, no, it does not have any "obligation" to protect the copyright holders. In fact, under the DMCA you can get into trouble for falsely trying to represent a copyright holder when you have no legitimate right to do so. And, fifth, just because it covers this line too: FAIR USE means that you're not protecting the interest of copyright holders anyway. We are happy to answer any questions about this, and I sincerely hope you are able to find other sources for photos. Best, Katie Curnutte She doesn't need to find other sources. Fair use means she can do what she's doing and Zillow should shut up, other than maybe offering an apology. Meanwhile, another organization that does understand copyright and fair use much better than Zillow is EFF. And EFF is now representing McMansion Hell. I get the feeling Zillow is going to keep regretting this until someone there grapples with just how dumb the company has been this week from both the legal and the communications side. Permalink | Comments | Email This Story

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For decades now, AT&T has promised that an incredible boon in broadband investment is waiting just around the corner -- but only if AT&T gets what it wants from the government. Whether it's gunning for tax cuts and subsidies, or looking for approval of its latest megamerger, AT&T's an absolute master of the regulatory carrot and a stick game. Even if the carrot is entirely hallucinated, as we saw when AT&T threatened to curtail already minimal fiber optic deployment unless net neutrality was killed. Of course because AT&T doesn't face meaningful competition in most markets, and few members of either party of government are truly interested in doing much of anything about this problem, this investment explosion never really materializes one way or the other. That's why millions upon millions of AT&T customers still pay an arm and a leg for last-generation DSL speeds, AT&T's consistently under fire for failing to upgrade many cities, and most of the company's network can't offer speeds remotely close to the gigabit-speeds now being offered by cable. Yet somehow, each and every time AT&T comes stumbling toward government with its hand outstretched, we oddly and mysteriously ignore this history lesson and provide AT&T with absolutely every benefit of the doubt. Case in point: with AT&T looking for Trump administration approval of its $85 billion Time Warner deal, the company last week trotted out its latest promise: a massive wave of broadband investment if the company sees some major tax cuts and has its latest merger approved; a narrative the press was happy to reiterate without qualification: Ahead of the tech meeting, Stephenson told "Squawk Box" the company will increase its capital investments if Trump delivers on tax reform by the end of the year. "I don't think we're unique. I think you would see this happen across all industries, and with every player in our industry," he said. You'll recall that Trump originally threatened to block AT&T's planned acquisition of Time Warner on the campaign trail, claiming it was "too much concentration of power in the hands of too few." But Trump has since given every indication that he intends to approve the deal, and his recently hired antitrust boss at the DOJ is on record saying he thinks the deal should be approved. Consumer advocates worry an even larger AT&T will use its expanded broadcaster power to hamstring licensing access to streaming competitors. They're also concerned AT&T will use usage caps, overage fees and "zero rating" to give its own content an unfair advantage. But because there's about 100 AT&T lobbyists at any one moment lobbying DC lawmakers to approve the deal, most analysts now think it should sail through with modest, if any, conditions. It will be just the latest victory for a company that has recently convinced government to kill consumer broadband privacy protections, dismantle net neutrality, end an effort to bring competition to the cable box, and is now pushing government to further hamstring regulatory oversight of one of the least competitive markets in America. Last week, AT&T CEO Randall Stephenson and Trump spent much of a full day lavishing praise upon one another, including this bit of heady telecom sector analysis from Donald: "With Stephenson seated to his right, Trump said AT&T was "like two companies" — "you started, then it was made different by government and now here you are again." The president added that such a reinvention over the years was "not easy to do." Of course AT&T didn't "re-invent" itself as-so-much as it got blown up by government for being a predatory monopoly, after which it slowly but surely re-assembled itself via a wave of brand acquisitions (SBC, Ameritech, Bellsouth and ultimately the AT&T brand itself). It then lobbied state and federal governments to not only ignore the lack of competition in the broadband market, but to pass laws protecting it from competition. So yes, while that's impressive in and of itself, the end result has been a company with an indisputably vicious history of anti-consumer policies, anti-competitive behavior and outright fraud. And while AT&T has been caught repeatedly lying about the job and broadband investment benefits of blind deregulation and M&As, that never gets factored in to assessing the credibility of whatever AT&T's pushing today. And it's clearly not going to be a problem for a Trump administration that has already been taking credit for telecom sector jobs it had absolutely nothing to do with. AT&T's merger pitches are always rife with bullshit and bravado on the job creation and broadband expansion front, but with Trump's help, you can expect AT&T to take things to an entirely new level once the deal is formally approved later this year. Permalink | Comments | Email This Story

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Earlier this year, we brought to you the story of one man's quest to sue all of the news organizations for using a clip of his Facebook video in which his partner is giving birth to his child. Kali Kanongataa sued ABC, NBC, Yahoo, CBS, Microsoft, Rodale and COED Media Group for reporting on the video and showing a clip of it, claiming copyright infringement. It was an odd claim for many reasons, not the least of which being that Kanongataa made the stream public and available on his Facebook page, not to mention the obvious Fair Use case to be made by the news groups reporting on the matter. The suits didn't work, of course, with most or all of them having now been dismissed. But that wasn't the end of the story for Kanongataa and his crack legal team that saw fit to entertain this frivolity. The judge in the case, Lewis Kaplan, decided to verbally light his lawyers on fire when assessing Kanongataa to pay legal fees to the defendants. No reasonable lawyer with any familiarity with the law of copyright could have thought that the fleeting and minimal uses, in the context of news reporting and social commentary, that these defendants made of tiny portions of the 45-minute video was anything but fair. That's a fairly damning statement on the court records for the legal staff of Kanongataa, though it stopped short of sanctioning them. Instead, Kanongataa's lawyers will have managed to get him saddled with these court fees by entertaining this litigious nonsense. Judge Kaplan goes on to state that the case was frivolous and that these fee assessments should serve as a good deterrent in order to "better serve the purposes of the Copyright Act." That purpose is not to reward people who see a payday in the form of plainly Fair Use reporting. And we're not talking about pennies in legal fees, either. Hence, the media outlets that were on the receiving end of the lawsuit are entitled to recover what may amount to hundreds of thousands of dollars in legal costs. Kanongataa's lawyers from New York—Yekaterina Tsyvkin and Richard Liebowitz—did not immediately respond for comment. The judge gave the media companies three weeks to say how much they think they should be awarded in costs associated with defending the lawsuit. Big dollars, yes, but that's warranted to keep this sort of thing from regularly mucking up the court docket. Copyright's purpose isn't a get rich quick scheme. Permalink | Comments | Email This Story

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