Hopefully you recall the story of Suburban Express and its owner, admitted domain squatter Dennis Toeppen, but let me catch you up and let you know what's been going on since that post ran. Suburban Express is a bus company that caters to Midwest students traveling to and from Chicago. And by "caters" I apparently mean they make them sign contracts designed to extract unreasonable fines from their wallets and threaten lawsuits against them if they have anything less than glowing things to say about their experience online. While this has gone on for some time, a new spotlight was shown when one rider, Jeremy Leval, related on Reddit a tale of one of the company's drivers berating a customer for speaking less-than-perfect English. That customer happened to be an exchange student. Toeppen went nuclear on Reddit, threatened litigation via their corporate counsel, and also threatened the Reddit moderator. Once the story began to spread, the company was introduced to Ken "Popehat" White, at which point the tone of all their communications took an almost cartoonish turn towards congeniality. Suburban Express promised to drop their 100-plus lawsuits against customers, which they've done, and doesn't appear to have filed against the Reddit moderator. They were a bit too late, as the internet backlash led to someone defacing their website, but at least they learned a lesson in how to treat their customers, right?

Well, perhaps not entirely. See, Toeppen has chosen to show off his aptitude for pettiness online, and has actually decided to use the Suburban Express website to continue to publically go after Leval, with whom this all began. Toeppen relaunched his online attacks against Leval, posting a page to Suburban Express' website that recounted the March 31 incident from Toeppen's point of view and calling Leval "nothing but a bullying, self-important brat." The page reiterated Toeppen's claim that Leval was trying to smear Suburban Express to help his own since-aborted plans for a student ride-sharing site, saying, "A blogger suggested that Leval may have been motivated to harass Suburban Express as a means of furthering his business interests."

Toeppen's post didn't end there. He also recounted a conversation that Leval and his girlfriend allegedly had with a driver from another transportation service. "On May 12, 2013, Jeremy Leval and his girlfriend interacted with an EAC driver at Armory around 2:50pm. Jeremy approached the driver and asked if he had heard of Suburban Express. Jeremy went on to boast that he is the guy who is causing Suburban Express lots of trouble. This makes [me] question Jeremy Leval's motivations. Is he a selfless individual fighting for the rights of the oppressed, or is he a self-promoting, troublemaking, attention-seeker?" There's a couple of problems with this kind of response. First, note that none of this has anything to do with refuting the company's generally anti-customer behavior. Yes, Toeppen pushes back slightly on Leval's story, indicating that some kind of apology was made to the exchange student, by someone, somewhere, and at some time. Gee, wonderful. Nothing about suing their customers, however. Nothing about $100 fines for simply giving the driver the wrong ticket, calling such mistakes "ticket fraud."

Second, what difference does it make if Leval is proud of publically slapping around a company doing these kinds of things? Hell, I'd be proud of myself, too. There's no prohibition on enjoying doing good works. And the fact that Leval might (might!) be thinking of starting his own competing company is a complete non-issue relating to the facts. Again, what happened is what happened, regardless of Leval's future business endeavors.

And, finally, did Toeppen learn nothing from round one of this mess? Going after a former customer right on the company website is exactly the kind of behavior that got them into this mess to begin with. Business takes thick skin, even for those that aren't engaging in questionable behavior. I don't know what kind of profit Toeppen sees in using his company website in this manner, but I fear he's in for yet another lesson.

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Over the years we have been following various reports on changes in Internet traffic, specifically in relation to BitTorrent.

One of the patterns that emerged with the rise of video streaming services is that BitTorrent is losing its share of total Internet traffic.

This downward spiral is confirmed by the latest Sandvine report which reveals that BitTorrent traffic is now responsible for 9.2% of all U.S. Internet traffic in North America during peak hours, compared to 11.3% last year.

However, if we look at the actual volumes of data being transferred through file-sharing networks we see that usage is still growing. Median Internet traffic increased by more than 50% since last year on fixed networks, so in terms of actual traffic BitTorrent usage is going up.

BitTorrent’s presence is most visible in upstream traffic, with 34.8% of all data transferred during peak hours going through the protocol. HTTP traffic comes in second with 7.5% and Dropbox gets a notable mention with 1.2% of all upstream traffic during peak hours.

BitTorrent usage remains high in other regions as well, and highest of all in Asia-Pacific where it’s credited for 21.6% of total Internet traffic during peak hours. In Europe and Latin America this percentage is 17.4% and 10.2% respectively.

Another trend we noticed is that SSL traffic, used for some VPN services, has increased significantly over the past months. In North America upstream traffic over SSL more than doubled its share in a year, from 2.5% to 5.4%. Again, in terms of actual traffic this increase has been even greater and similar patterns are observed in other regions.

In part this boom in SSL traffic may be explained by the increase in VPN usage among BitTorrent users. A significant percentage of users hide their IP-address behind a VPN or proxy and the numbers are expected to go up even further in the future.

This increase in VPN use also means that the actual percentage of BitTorrent traffic is even higher, since the Sandvine report puts the traffic generated by these users in the SSL category.

It will be interesting to see how the “six-strikes” crackdown in the United States and similar measures around the world will accelerate this upward trend for encrypted traffic, and whether BitTorrent traffic continues to grow in the years to come.

Source: BitTorrent Accounts for 35% of All Upload Traffic, VPNs are Booming

The Obama administration has supposedly been "considering" the latest version of the DOJ's plan to require backdoor wiretapping abilities in any form of digital communication. If you don't recall, the FBI asks for this basically every year. The latest version would lead to fines for any company that doesn't build in a backdoor wiretapping ability. We've been pointing out for quite some time that putting in such backdoors only makes us all less safe, because those with malicious intent will find and use those backdoors.

A new report has been released, put together by some of the best known technologists and security experts out there, saying that the plan, as being considered would effectively undermine any cybersecurity regime. At a time when the administration and Congress keep insisting that we need better cybersecurity, to undermine it all with wiretapping backdoors would be ridiculous. And let's not even begin discussing how this would play out if it passed and number one CISPA backer Mike Rogers then became head of the FBI.

Among the report's authors are names you might recognize, like Ed Felten, Peter Neumann, Bruce Schneier and Phil Zimmerman. You can read the full report (pdf) to see all the details. As Ed Felten told the NY Times: “It’s a single point in the system through which all of the content can be collected if they can manage to activate it,” said Edward W. Felten, a computer science professor at Princeton and one of the authors of the report... “That’s a security vulnerability waiting to happen, as if we needed more,” he said. Once again, all of this suggests that the efforts around "cybersecurity" have always been more of a cover story to try to make it easier for law enforcement to access data, rather than any legitimate effort at improving security.

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Nintendo's history of aggressive IP enforcement is long and colorful and, occasionally, completely ridiculous. No one protects the brand quite as fiercely as Nintendo does, an unfortunate byproduct of its obsession with maintaining a clean, family-friendly image.

Its latest misadventure into "controlling all things Nintendo" was brought to our attention via a post to Reddit's r/games by a prolific creator of Let's Play videos, Zack Scott. For whatever reason, Nintendo is performing a "mass claiming" of Let's Play videos featuring its titles. Scott notes in his post that Machinima has seen these claims increasing exponentially recently, pointing towards this being an active move on Nintendo's part.

The speculation is now over. Nintendo has released a statement to Gamefront, which reads as follows. As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

For more information please visit http://www.youtube.com/yt/copyright/faq.html A few observations on this statement:

1. In terms of the internet, the present will always be relegated to some distant point in the future for Nintendo. The fact that it took until three months ago for Nintendo to join forces with the world's largest video site is astounding. This is probably has something to do with Nintendo's recent shuttering of several Wii channels, many of which were underwhelming and ignored by a majority of its customers. (The "flagship" of the lineup -- the Nintendo channel -- was one of the worst, featuring haphazardly posted content that seemed to mistake throwing darts at a lineup for curation.)

2. Nintendo's self-consciously squeaky clean image? This IP grab is about that, too. Why else would a company that only recently decided YouTube might be a viable outlet use the phrase "shared... in appropriate and safe ways" to justify slapping ads on tons of pre-existing content uploaded by its customers and fans?

3. "...unlike other entertainment companies, we have chosen not to block people using our intellectual property." Good Guy Nintendo says No Blocking! While other "entertainment companies" have blocked thousands of videos, most video game companies don't. With the exception of Sega's promotional push for its new Shining Force title that took the form of widespread takedowns, most gaming companies take a more hands-off approach, realizing that Let's Play videos are a form of advertising that costs them nothing.

4. Nintendo passes the buck on its particular copyright "strategies" by directing readers to YouTube boilerplate. Weak.

Nintendo is well within their rights to monetize these videos and images. But, as anyone who's had experience with situations like this can tell you, being "within your rights" isn't the same thing as "right," either in the moral sense or in the "opposite of wrong" sense.

Nintendo can (and does) monetize gameplay videos using its IP. There are some valid arguments for fair use that can be applied here (Techdirt contributor E. Zachary Knight runs down a few over at Gamasutra), but when it comes to uploaders v. content companies, the algorithm tends to side with the YouTube partner and the registered content. Once Nintendo makes this monetization claim, there's very little the uploaders can do to fight it.

On the plus side, Nintendo isn't actually taking down videos. This means uploaders may lose the income (many uploaders have never attempted to monetize their uploads), but their accounts will remain strike-free. (Unfortunately, having several videos from the same account claimed by ContentID tends not to reflect well on the account holder and will probably be taken into consideration should other infringement issues arise.)

The money gained from applying pre-roll/post-roll ads to Let's Play videos is likely insignificant in terms of Nintendo's annual income. (It's certainly not going to make up for the WiiU's rather inauspicious debut.) Nintendo's past IP battles make this more about control than income. This also builds Nintendo a useful database of "offending" titles that it can easily block or take down by doing nothing more than changing its ContentID options.

Is the additional control worth it? If nothing else, it will be easier for Nintendo to control its online "representation" as its actions have decreased its customer base. Zack Scott, whose account contains dozens of Nintendo Let's Play videos, has already announced he will no longer be supporting the company. I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game. Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers. There are many better ways Nintendo could have handled this (a monetization split with uploaders, an invitation to upload to Nintendo's official channel, DOING NOTHING...), but the company's antagonistic attitude towards anything it doesn't directly profit from made this situation one of the better outcomes, unfortunately.

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Today, we’re happy to announce that we will be accepting Bitcoin donations through our website. You can use them to make one-time donations, set up monthly donations or get an EFF membership (which includes awesome membership swag like EFF hats and digital freedom t-shirts).

While we are accepting Bitcoin donations, EFF is not endorsing Bitcoin.  EFF does not typically endorse products or services, and we certainly do not endorse any of the electronic payment methods that we currently accept (credit cards, PayPal, and now BitPay).

With respect to Bitcoin as a technology, there is clearly a lot more to be said. Currently it seems that Bitcoin, while innovative, has a number of limitations and weaknesses in its design, and might yet turn out to be just the first draft for future crypto-currencies.1 However, as an organization that supports cryptographic experimentation, we believe the best answer to Bitcoin's potential shortcomings is for others to come along and offer superior alternatives.

Along the way, we want to give our supporters as much flexibility as possible in making donations to EFF. You can click to make a donation to EFF by credit card, PayPal, Bitcoin, and, in the future, hopefully many other payment systems as well.

How We Got Here

Two years ago, EFF decided to stop taking Bitcoins for a number of reasons and returned the coins to the community via the Bitcoin faucet and promised to investigate further. Since then, we’ve been watching the public debate around Bitcoins, seeing the ecosystem develop around them, and conducting our own research on the possible legal issues.

Here were some of the factors we considered when making this decision:

Censorship by payment intermediaries is an ongoing problem for free speech online – so it makes sense to start diversifying the available options. EFF has long tried to identify and fortify the weakest links for speech online, and payment processors remain a significant problem.  We’ve seen payment processors with policies that ban speech that would be strongly protected under the First Amendment, that arbitrarily enforce those policies, and that offer no process at all for reinstating closed accounts, much less the sort of due process that the government would have to engage in to shut down speech. We’ve seen payment providers cave to pressure from government officials to shut down accounts. We’ve seen payment intermediaries shut off accounts to censor First Amendment-protected online content. And we’ve seen legislators propose misguided censorship legislation that would have put payment providers in the position of actively shutting down the accounts of individuals accused of copyright infringement. Because of this, we’re generally interested in ways of diversifying the market around payment options, so that a handful of big market players won’t be able to exercise such a stranglehold over online speech.

You can now give Bitcoins to EFF in the same way that you can give stock.  EFF has long had a policy that converts gifts of stock and items like cars into cash immediately on receipt. We try to convert your donations into action as soon as possible. Another factor in our decision to take Bitcoins is availability of services like BitPay, which accepts donations for EFF and automatically converts those into dollars which we receive and can immediately put to use. It is akin to the way Stripe processes credit card donations on eff.org, but also akin to the way you can donate a car to EFF.

This relieves EFF of the burden of managing the Bitcoin account. It also ensures that we’re never hanging on to a large quantity of Bitcoins, which was a problem two years ago—we had enough sitting in the account that we likely could have affected the market had we dumped it all at once. The BitPay service also means that our policy and processing are consistent across different types of donations. Most importantly, it allows us to focus on what we do—protect rights online—and ensures that we don’t have a financial stake in the outcome of a digital rights issue, such as whether a particular company does well or the value of Bitcoins grows or takes a dip.

Our research and FinCEN’s guidance removed a key risk to EFF. Both our internal research and the recent report by FinCEN2 have confirmed that, as a user of Bitcoin or any virtual currency, EFF itself is likely not subject to regulation. While some have raised concerns about the FinCEN ruling, and noted that it’s not binding, it did confirm our own analysis of risk to us as a user and reduced our concerns that by accepting Bitcoins EFF risked moving away from its role as a defender of innovators and into the role as a possible defendant.

Our members keep politely asking for it. Ultimately, EFF needs to make independent decisions to do what is technically and legally best for supporting liberty online.  Sometimes that means taking on positions or defending views that are unpopular—including those that are unpopular with our members. But we're pleased to be able to provide our members with something they have asked for—repeatedly and passionately—when it’s possible for us.

We already accept lots of unusual forms of donations. Right now, you can donate a car to EFF (PDF), or airline miles, or proceeds from your book, or even stock from your company. We’re happy today to add one more way for digital rights enthusiasts to support our work.

Click here to donate now.

EFF at Bitcoin 2013 Also, if you're planning on attending the Bitcoin 2013 conference in San Jose this weekened, please say hello. We (Rainey and Seth) will both be at the conference, and Rainey will be speaking about financial censorship on a panel on Saturday. Check the schedule on the website for details.

• 1. A full discussion of the strengths and weaknesses of the Bitcoin design will have to wait for a future blog post, but we note here that Bitcoin is very often not anonymous in the ways users might believe or expect, because (for instance) the network doesn't actively conceal the IP addresses from which transactions were initiated; its expenditure of large amounts of computational resources may turn out to be unnecessary; and its monetary policy is controversial and arguably designed to incentivize adoption and holding of the currency, rather than maximizing valuable economic transactions. The fact that Bitcoin is subject to criticism should not be surprising; it would have been much more surprising if the first widely used cryptographic currency had been perfect, and very active research continues on ways of improving Bitcoin or creating new crypto-currencies with other properties.
• 2. Note that we are not endorsing FinCEN's guidance as a matter of law or policy.

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To steal a line from Rep. Virginia Foxx, the gentlewoman from North Carolina: This is our shocked face.

Far be it for us to complain about Congress making noise about press freedom and improper surveillance, but c'mon—it's about darned time someone other than Sen. Ron Wyden and Rep. Zoe Lofgren stood up for civil liberties. It's just too bad that something like the Department of Justice's subpoenas for Associated Press phone records has to happen first before our elected leaders take notice.

But, better late than never. Shock is reverberating through the halls of Congress, particularly in yesterday's Justice Department oversight hearing in the House Judicary Committee, where Attorney General Eric Holder denied knowledge of (and culpabality in) the AP leak investigation. Some of the outcry is policital, for sure, with Republicans jumping on the opportunity to pair AP subpoena revelations with news of the IRS targeting conservative groups and new information related to the Benghazi attack. We'll stow our cynicism for now and embrace the outrage where we find it, especially if it results in the passage of the newly introduced Telephone Records Protection Act.

So how much outrage is there? We used the Sunlight Foundation's handy tool, Scout, to search Congressional speeches to measure the snowballing fury at the DOJ among members of Congress. Here are some of the highlights.

Rep. Ted Poe (R-TX) in a floor speech titled "State Secrets vs. Freedom of the Press":

Mr. Speaker, when I went to the Soviet Union in the 1980s, the Communist leaders told me that they believed in and had a free press and they also had free speech. However, I also learned that Soviet law prohibited these freedoms when they jeopardized state secrets--or national security, as we call it in America. The state-secret provision was so broad the Soviet press and speech were gagged and shackled. They certainly were not free.

Now we learn that our Department of Justice improperly seized without notice phone records of over 100 Associated Press journalists--all in the name of national security concerns.

To me, this is a clear violation of the spirit and letter of the First Amendment. These actions border on the Soviet method of legalizing these freedoms but never allowing them. So it's time to revisit U.S. law and require in all cases judicial review where these types of records are seized.

We cannot allow our government to arbitrarily abolish the First Amendment in the name of ``state secrets.''

And that's just the way it is.

Sen. Marco Rubio (R-FL):

Then the revelation on Monday that the Justice Department of the United States--think about that, the chief law enforcement agency of the country--had issued this blanket search of the phone records of I think the Nation's largest reporting group, the Associated Press. I understand if they were going after a leak that endangered America and security; that is one thing. We can have a debate about that. But they went much further than that. It was a blanket request of all of these phone calls, including the switchboard. Pretty outrageous.

...For example, you think about some of our most precious freedoms--the First Amendment right to free speech. Think about if you are a reporter at the Associated Press. Think about if you are a source--unrelated to national security--to the Associated Press. Think about if you are a whistleblower, someone who is blowing the whistle on government activity because you work in the government and you think what the government is doing is wrong. Think about that for a second.

Now, all of a sudden, what are you afraid of? I am not calling that reporter back because their phone might be tapped, my number might show up on their records, because the Justice Department has just shown they are willing to do that. Think about the chilling effect that sends up and down the government.

If there is wrongdoing somewhere in the government right now, people are probably afraid to blow the whistle because they are afraid they are being surveilled by the Justice Department or that the person they are talking to is being surveilled. That is how outrageous this is.

Rep. Virginia Foxx (R-NC):

The administration's apologists are in a panic. They claim the President is not responsible for any of this wrongdoing. The President, who made a career touting government as the solution to most every problem, now solicits our understanding. It seems the leviathan is rather unwieldy and difficult to manage.

This is my shocked face.

Rep. Jeff Fortenberry (R-NE):

[W]e are learning that the Department of Justice seized phone records of Associated Press reporters, including records of their personal phone lines. Now, the ability to wiretap and probe needs to be in place in narrow circumstances, but the wide-ranging nature of what happened raises a number of questions, questions that beg us to ask: How do we protect the freedom of the press?

Rep. Jim Himes (D-CT) in a floor speech titled "Freedom of the Press":

Mr. Speaker, it is the fashion amongst many of us to blame the press for our troubles, and that's, of course, because the press reports our troubles. At their best, the media keeps us honest, it keeps us in our constitutional lanes, and it reports our failures. It is essential for democracy. There is a reason why freedom of the press is not the Second or Fourth or 10th Amendment. It's the First Amendment.So, Mr. Speaker, I am profoundly concerned over the Department of Justice's overbroad and chilling behavior with respect to the Associated Press. Seeking records for 20 phone lines, giving the AP no notice, refusing at this point to discuss their behavior feels to me like overreach.Mr. Speaker, it's time for the Department of Justice to stand back. You can imagine that there is somebody out there today who has a failure to report who is chilled and says, I will not do that because of the approach that the Department of Justice has taken.Mr. Speaker, I am proud to serve in the very core of democracy, but this Chamber rests on foundations, and a key part of that foundation is a free and competent press.

Rep. Morgan Griffith (R-VA):

Well, we once had a political party known as the Know-Nothings. We now have a President who wants us to believe that he knows nothing...He wants us to believe that he knows nothing about the Department of Justice subpoenaing 2 months of the Associated Press' phone records. 

What has happened to the days in America when Democratic President Harry Truman proudly placed a placard on his desk that said: "The buck stops here''? Perhaps, sadly, we have returned to the days where the question to the President of the United States ought to be: What did you know and when did you know it?

Sen. Deb Fischer (R-NE):

Just yesterday we learned of another breach of public trust and another potential violation of our First Amendment freedom--the freedom of the press. Press reports indicate the Department of Justice secretly obtained extensive telephone records of reporters and editors for the Associated Press in what the head of the news organization called a ``massive and unprecedented intrusion'' into how news organizations gather the news. According to the Associated Press's legal counsel, the records obtained included those from reporters working out of the House of Representatives press gallery.

While it is unclear at this point how many reporters were targeted and why, the effect of this data gathering is clear: intimidation of the press and suppression of free speech.

This is unacceptable. A free and unfettered press is vital to any democracy. Moreover, the scope of this information gathering is simply beyond the pale--and likely beyond precedent.

Update: Rep. Hank Johnson asked us to include some of the remarks he prepared for the judiciary hearing. 

Rep. Hank Johnson (D-GA):

I strongly believe that Congress must protect the free flow of information and ideas under the First Amendment. This is why I voted for the Free Flow of information Act, a federal shield law that would have required judicial oversight over media subpoenas.  This vital legislation, which was blocked by Republicans in the Senate and opposed by some of the same Members of the Committee who are shocked by the AP investigation, would likely have avoided much of the alarm caused by this investigation.

Protecting the freedom of the press also requires that we strike a careful balance in preventing national security leaks where there is a very real threat to American lives.  As a member of the Armed Services Committee, I am acutely aware of the threats that face our Nation and the need for confidentiality when confronting these threats.

The public outcry in response to the AP investigation also illustrates the public’s alarm with the lack of privacy protections for our everyday communications.  Every day, the phone records of countless Americans are subject to criminal investigations without a warrant based on probable cause.  Investigators need only a subpoena to obtain the numbers you call and receive, as well as emails and text messages that are more than 180 days old.  Warrantless surveillance brings us ever-closer to the surveillance state described by George Orwell where “every sound you made was overheard,—and, except in darkness, every moment scrutinized.”

This issue demonstrates the urgent necessity to modernize laws that have been outpaced by technology and the ease of collecting massive amounts information about Americans.  We need to modernize the Electronic Communications Privacy Act of 1986 by requiring a warrant for surveillance involving communications, phone records, and movements.  We need to update the Espionage Act of 1917 to limit prosecutions to cases involving real harms to our national security.

Related Issues: Free Speech
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Here's a fun one via Popehat. Apparently an Indian publishing firm by the name of OMICS can't take some criticism from a blogger. The blogger, Jeffrey Beall, who is based in the US, has a blog called Scholarly Open Access (he's also a librarian at the University of Colorado, Denver) in which he reviews and critiques various open access programs. As we've discussed, open access is really important for the sharing of knowledge -- but not all open access programs are created equal. In fact, there are serious complaints about many of them. Beall had some choice words for some of OMICS practices, which he claimed involved spamming and bait-and-switch. For what it's worth, Beall is hardly the only one to question OMICS' tactics. The Chronicle of Higher Education discussed OMICS in an article about "predatory" open access journals. As The Chronicle explains: In 2012, The Chronicle found that the group was listing 200 journals, but only about 60 percent had actually published anything. OMICS' response to Beall is almost too incredible to be believed, but it threatened to sue Beall for $1 billion and seek criminal penalties as well. Yes, billion with a b -- so insert your Dr. Evil jokes here. Oh, if you're asking under what law? In India, Section 66A of the Information Technology Act makes it illegal to use a computer to publish "any information that is grossly offensive or has menacing character" or to publish false information. The punishment can be as much as three years in prison. As Ken White points out, the SPEECH Act clearly protects Beall from any ruling in India. We've been waiting for the first attempt to see that law used to protect someone from some insane foreign claim. If you don't recall, the SPEECH Act says that the US will not recognize foreign civil rulings over speech that would violate US law, such as the First Amendment.

Similarly, criminal charges would be meaningless, because any attempt at extradition to India would require dual criminality -- such that the acts would be criminal in both countries. That's clearly not true here (and it's debatable if they're actually criminal in either country).

Amazingly, when asked about this whole thing by The Chronicle of Higher Education, the lawyer representing OMICS, Ashok Ram Kumar, a lawyer with the firm IP Markets, appeared to double down on the threats and insist that he was "very serious" (TM), though various lawyers are a bit more skeptical of that. "What he has written is something highly inappropriate," Mr. Kumar said. "He should not have done something like this. He has committed a criminal offense."

While Mr. Kumar said he and his client are "very serious" about the $1-billion amount, Jonathan Bloom, a lawyer with Weil, Gotshal & Manges, in New York, said it seemed more like a publicity stunt. "Sometimes people just want to puff their chests, indicate their reputation, and try to intimidate people that criticize them," Mr. Bloom said. One thing that is clear, however, is that any company that would send out such a ridiculous threat over a blog criticism isn't a company worth trusting. Whether or not they spam and engage in bait and switch or other predatory practices, we do know with certainty that they send out insane legal threats. That's enough information necessary to decide that OMICS is not a company worth supporting.

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5/17/2013 Author:  Emma Llansó International Internet Governance

Governments from around the world gathered in Geneva over the past few days to debate a range of Internet governance and policy issues, including the meta question of the role of governments in Internet governance. Perhaps the biggest question going into the conference was whether the governments could deliberate and reach consensus after the divisive outcome of the WCIT. Tensions were high after the WCIT, but the WTPF revealed that governments are still able to come together and have a relatively direct exchange of views on challenging issues.

The tone of discussion was markedly different from the WCIT to the WTPF. Many governments were amenable to discussing topics that would have been entirely off the table at WCIT. For example, some of the most impassioned defense of the multistakeholder model came from the delegate from Iran, who, in his closing statement, cited the highly valuable contributions from RIPE NCC and the other Regional Internet Registries (RIRs) and pointed to the benefits of discussing these matters with expert stakeholders in the room. Many governments spoke favorably of multistakeholder processes. Of course, the proof of this broad embrace of participatory policy development and decision-making must be borne out at the national level, and governments having a long way to go. But it is still remarkable that so many governments are on record as acknowledging the benefits of the multistakeholder approach.

In terms of outcomes, the WTPF adopted six non-binding opinions on a range of topics that included the role of Internet Exchange Points (IXPs) in increasing connectivity in developing countries, the IPv6 transition, and supporting multistakeholderism in Internet governance. (The final report and opinions from the WTPF are available here.) These opinions had been developed through the Informal Experts Group (IEG) process, which brought together ITU Members and non-member experts to debate these topics in three meetings over the previous year. Member States adopted the six opinions forwarded by the IEG with minimal changes.

The opinions were dispensed with fairly quickly, leaving governments with almost two full days to debate the perennial issue of the role of governments in Internet governance. The debate was wide-ranging, with Russia clearly calling for a single intergovernmental body dispensing top-down international Internet policy, while many governments clearly resisted any move away from the current multistakeholder model.

Much of the debate centered around a proposal made by Brazil to introduce a new opinion on the “role of governments in the multistakeholder model”. The initial proposal, which was based on text that the IEG considered but could not reach consensus on, covered a broad sweep of topics and appeared to champion a significantly greater role for the ITU in Internet governance. In deliberations, Brazil clarified that it intended its proposal to highlight the need for capacity building among government stakeholders, and improved mechanisms for government engagement in Internet governance fora. While Brazil produced a revised draft on Day 3 that more closely tracked these expressed intentions, and while there was a general level of support for continuing discussions on this matter, it was clear that many governments and other stakeholders would have had extensive edits to the draft text and that there would not be sufficient time to develop a consensus draft.

Instead, they resolved to continue the conversation elsewhere, with many governments promoting the Internet Governance Forum, among others, as a prime place to take up the topic with the input of many different stakeholders. Some governments pushed back on the idea of using IGF as a discussion forum, because IGF does not produce official outcome documents.

Many took note of the Commission on Science and Technology Development (CSTD) Working Group on Enhanced Cooperation, a recently constituted effort to examine the progress on “enhanced cooperation” on Internet governance as outlined in the Tunis Agenda. (“Enhanced cooperation” has been a subject of debate since the drafting of the Tunis Agenda, with some governments arguing it requires the establishment of a new intergovernmental process to facilitate government cooperation on Internet governance issues, while others argue that enhanced cooperation is an ongoing process that does and should occur in every venue where Internet governance and policy is deliberated.) The CSTD working group has been developed with a view toward geographically balanced multistakeholder inclusion, with representatives from civil society, industry, and the technical/academic community each receiving five seats on the WG. The WG is still dominated by governments, both through the 22 government seats and the  seats for international intergovernmental organizations.

The Chair of the session proposed moving the discussion to the ITU’s Council Working Group on international Internet-related public policy (CWG-Internet). Because the CWG-Internet is one of the most closed bodies of the ITU, permitting only Member States (and not even Sector Members) to participate, this proposal immediately raised concern. The United States and Sweden were among several governments who intervened to call for the CWG to be opened to all stakeholders to participate in this debate. (Indeed, Sweden proposed opening the CWG last year. Link unavailable due to ITU password restrictions on access to Council documents.) The forum closed with Dr. Hamadoun Touré, Secretary-General of the ITU, promising to urge the Council to open CWG-Internet to participation by all stakeholders. We hope the Council heeds the many voices calling for more openness and transparency in this venue.

Finally, a range of civil society members and organizations, including CDT, joined together in a final statement to the WTPF emphasizing the need for all future conversations on these important topics to include full and equal participation from all stakeholders. More information about the statement is available here.

5/17/2013 International Internet Governance

At the close of the World Telecommunications Policy Forum (WTPF), Matthew Shears, director of CDT's Project on Global Internet Policy and Human Rights, delivered a statement on behalf of a coalition of civil society members and organizations from around the world. Hailing from six continents, these members of civil society participated in the WTPF both in person and remotely, bringing critically important perspectives as governments gathered to debate a range of Internet governance issues. (For more on the WTPF, see this post.)

The statement recognized the ITU for taking a small but important step in opening up the preparatory sessions of the Informal Expert Group (IEG) to non-member stakeholders. The six opinions that were forwarded to the WTPF from the IEG and adopted with minimal changes were the agreed product of multistakeholder discussions within the IEG.

The statement emphasizes the crucial need for discussions of the role of governments in Internet governance to occur with the equal participation of both government and non-government stakeholders. Human rights advocates, technical experts, academics, and industry all have deep insights into the operation and functioning of the Internet and into the implications of governance and policy decisions. Whatever role governments may have in Internet governance, it will have an impact on non-governmental stakeholders, and all of the interested parties must be involved in any process to define this scope.

It also notes that, while the ITU took some steps to make the WTPF process more open, many stakeholders, including civil society and governments, were left unsure as to exactly how they could maximize their involvement in these deliberations. Barriers to participation can take the form of resource and funding constraints, lack of clarity over opportunities to make official contributions to discussions, as well as procedural barriers that prevent some classes of stakeholders from engaging directly in decision-making. The ITU must continue to work to address these serious barriers.

Finally, the statement calls for any forum where this conversation – or any policy-development process – takes place to be open and transparent in its proceedings, and to actively promote full and equal participation by all stakeholders.

The statement is available here; the full text appears below.

16 May 2013
Geneva, Switzerland
World Telecommunication Policy Forum

My name is Matthew Shears. I am an IEG member and I am speaking on behalf of my IEG colleagues:

• Nnenna Nwakanma
• Avri Doria
• Deborah Brown
• Wolfgang Kleinwachter

I am also speaking on behalf of the following civil society organisations and individuals:

• Association for Progressive Communications (APC)
• Center for Democracy & Technology (CDT)
• Center for Technology and Society (CTS/FGV), Brasil
• Consumers International
• Internet Democracy Project, India
• Global Partners and Associates
• Access
• William Drake, International Fellow and Lecturer, University of Zurich and NCUC Chair

Many civil society organisations are here in the room and participating remotely: They have traveled from Brazil, Ecuador, India, Malaysia, the USA, Germany, and the United Kingdom, and are listening in via the webcast from around the globe, including Côte d’Ivoire, South Africa, and Australia.  Some of the organisations represented here are ECOSOC accredited and yet, as observers, unfortunately their representatives are unable to take the floor and address the distinguished delegates.

We would like to commend the ITU for steps taken to show more openness and inclusiveness in the WTPF process through the IEG.  We would note that the multistakeholder nature of the IEG meetings and the willingness of all stakeholders to work together, were, we believe, instrumental in bringing about the credible texts that were forwarded to the WTPF.

At the same time, we do agree with many governments that the modalities of participation and contribution in the IEG and WTPF were not clear.  Had these modalities been clearer we could have anticipated more participation from all stakeholders around the world and could have obviated some of the concerns expressed yesterday.

We have commented extensively on issues related to the participation of all stakeholder groups at the ITU and refer you to the statement from the Best Bits civil society coalition (to which there are almost 40 civil society signatories from all regions), and to our comments in Information Document 6.  We ask that the ITU make the Best Bits statement, which was provided to the ITU on the first day of the meeting, available as an information document of the meeting.

As to the opinions themselves, we are satisfied with the six drafts that were forwarded from the IEG and just adopted. Although not perfect, these opinions are important texts that should help facilitate key development and governance goals.  We look forward to working with other stakeholders in implementing these opinions going forward.

With regard to the role of stakeholders in the multistakeholder model, we value and appreciate the discussion that was held in the Forum yesterday and today.

We thought that the clarifying comments and amendments from Brazil to their earlier proposal were a commendable articulation of the opportunity and challenge that governments face: first, how to appropriately engage in the multistakeholder governance model and second, how to ensure that there are mechanisms to facilitate such engagement.  We are very sympathetic because we in civil society face some of the same challenges. And we trust that civil society, and all other stakeholders, will be afforded the opportunity to continue to participate fully in these discussions, wherever they are held. Of course, we not only support the further engagement of governments on Internet governance within the multistakeholder framework – we support the further engagement of all stakeholders.  Civil society face very significant resource challenges when participating in meetings such as this.  Yet, we are here because we believe these meetings are important and, crucially, that participating as an equal stakeholder in these discussions is our responsibility.

To exercise these responsibilities we must have transparency, openness and inclusivity in policy processes.  As such we call not only on the ITU but on all governments and organisations to ensure that their respective policy processes at the national, regional, and international levels are open, inclusive, transparent and that the mechanisms by which stakeholders can participate in a full and equal manner are well communicated.  This would contribute significantly to furthering the engagement of all stakeholders, including governments, in the multistakeholder model.

We would note that just as governments need enhanced cooperation from organizations and other stakeholders engaged in Internet governance, non-governmental actors need similar enhanced cooperation from governments, the ITU and other intergovernmental organizations. Enhanced cooperation is a two way street.

Finally, we appreciate the leadership of the Chair for WG3 in guiding us through the discussion on how governments engage with the multistakeholder model.  We need to have this discussion on a regular basis, not just for governments but for all stakeholders, and we need to use all available fora to do so.  We are equal stakeholders in this process and while we may not always agree, it is our responsibility to find common ground and ways forward together.

Our thanks to the Secretary General, to the Chairs for their excellent work and to all distinguished participants.

Tim Lee is right. The Electronic Frontier Foundation post announcing its decision to accept Bitcoin is strange.

“While we are accepting Bitcoin donations,” the post says, “EFF is not endorsing Bitcoin.” (emphasis in original)

They’ve been using dollars over there without anyone inferring that they endorse dollars. They’ve been using various payment systems with no hint of endorsement. And they use all kinds of protocols without disclaiming endorsement—because they don’t need to.

Someone at EFF really doesn’t like Bitcoin. But, oh, how wealthy EFF would be as an institution if they had held on to the Bitcoin they were originally given. I argued at the time it refused Bitcoin that it was making a mistake, not because of the effect on its bottom line, but because it showed timidity in the face of threats to liberty.

Well, just in time for the Bitcoin 2013 conference in San Jose (CA) this weekend, EFF is getting on board. That’s good news, but it’s not as good as the news would have been if EFF had been a stalwart on Bitcoin the entire time. I have high expectations of EFF because it’s one of the great organizations working in the area of digital liberties.

I've always been careful about putting my phone into "airplane mode" when flight attendants ask. However, a few years back, for reasons that I've yet to see any explanation for, flight attendants changed the script and started insisting that "flight mode" wasn't enough any more and you had to turn the phone all the way off. I've asked many times why this switch was made, and no one can say. At the point when that happened, I happened to have a smartphone that had no ability to turn off. I looked. There was no power button. There was nothing in the software that was a "turn off" function. The only way to turn it off was to pull out the battery. I did that on a few flights and then figured it was stupid. So I stopped. And nothing happened. With my current phone, I've tried to "turn it off" but even when it says it's turning off it's not really turning off (because when I switch the battery, it takes about 3 minutes to boot up -- but if I "turn it off" and then turn it back on, it's ready to go within a second). Today, I still always put it into flight mode, but that's it. I turn off the screen and put the phone away, but I don't "turn it off" because it's pretty clear the phone doesn't actually turn off. And the requirement is silly. Similarly, my tablet stays on in my bag and my laptop is generally in "sleep" mode, but not off.

And I'm not alone. It seems that lots of people leave their devices on when they fly.

In a study released on Thursday by two industry groups, the Airline Passenger Experience Association and the Consumer Electronics Association, as many as 30 percent of all passengers said they had accidentally left a device on during takeoff or landing. About 67 percent said they had never done this, always ensuring that their electronics were turned off. Four percent were unsure.

In another segment of the study, passengers were asked if they turn their devices to “off” when instructed to do so by the pilot. Although 59 percent of passengers said they do fully turn their electronics off, 21 percent said they often simply switch to “airplane mode,” which disables the main radios of a gadget. Five percent sometimes adhere to the rule. And others were either unsure or do not carry electronic devices on a plane.

People give all sorts of reasons for why the devices should be turned off, but none of them make much sense. There is the interference question, but given how many of these devices stay on, there would be at least some real evidence of interference by now if that were really a big concern. There is the "gotta pay attention to the flight attendants" argument, but then they wouldn't let you sleep or read a book during takeoff. There's the "flying device is dangerous if something goes wrong" argument, but that applies equally to books. So, what is the reasoning? There's either some reason that no one's explaining... or just a ridiculous overabundance of caution where it's clearly not necessary.

Of course, as I was finishing up this post, someone passed along a Bloomberg video that claims that phones do interfere with flight GPS. If you look at at the text that goes with the video, they cite a story of a flight that went off course until flight attendants convinced someone to turn off an iPhone. However, nowhere in the video do they even mention that story or give any data or support for that claim. The video claims are also suspect. They name a single study from nearly a decade ago talking about a single phone, which is no longer on the market, that caused some interference. The other "studies" they look at include a very small number of claims from pilots who claim problems and that they "suspect" interference from phones, but those are never confirmed. They found 75 such claims over six years, but without any evidence to back them up.

Again, given how often people leave their devices on, you would expect a lot more verifiable evidence beyond a few pilots "suspecting" that phones were the problem, when a variety of other variables might have been a part of it.

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In November 2011, Universal Music Group, the world’s largest recording label, sued music streaming service Grooveshark.

The label claimed hundreds of millions of dollars in damages and accused the company of massive copyright infringement. The accusations included claims that bosses and other workers at the company, from the CEO down, personally uploaded many thousands of infringing tracks to the service.

Universal was later joined by Sony, Warner and several other labels who all called for the shutdown of the streaming service and fines against the named employees. In recent months activity in the case slowed down, but behind the scenes the discussions continued.

This has now resulted in a voluntary agreement between the labels and five Grooveshark employees. Nikola Arabadjiev is the only one who still works at the company. Grooveshark founder Sam Tarantino and co-founder Josh Greenberg have not signed an agreement.

The “consent judgments” obtained by TorrentFreak suggest trouble for Grooveshark, which up until now streamed millions of songs without explicit authorization from copyright holders.

Under the agreement the named Grooveshark employees are prohibited from infringing copyrights of musical works owned by the major labels. In addition, they must never again work with a business that systematically infringes upon label copyrights.

“The Defendant and all those acting in concert with the Defendant shall be immediately and permanently enjoined from infringing in any manner any copyright in any and all sound recordings, whether now in existence or later created, in which any of the Plaintiffs own or control any exclusive rights under Section 106 of the United States Copyright Act (the “Copyrighted Works”),” the agreement reads.

“This shall include, but is not limited to, copying, uploading, reproducing, distributing, transmitting or publicly performing any of the Copyrighted Works in violation of the United States Copyright Act, via the Grooveshark service or any other online streaming service, website, application, or peer-to-peer or file-trading system that operates without authority or license from the appropriate Plaintiff or any of its licensees,” it adds.

TorrentFreak approached Grooveshark and the record labels for comment on the recent developments. Grooveshark’s attorneys preferred not to comment on the developments and we have yet to hear back from the labels.

The current lawsuit is just one of many Grooveshark has been dragged into over recent years. January last year EMI sued the music service over a contractual dispute, and Grooveshark has been blocked following court orders in Germany and Denmark. This week, record labels in the UK indicated that they are preparing an ISP blockade of the site.

Over the years Grooveshark has always fiercely defended its business, arguing that it operates within the boundaries of the law and removes unauthorized content when it receives a DMCA takedown notice. At the same time, they negotiated licensing deals with the major labels.

“Laws come from Congress. Licenses come from businesses, Grooveshark is completely legal because we comply with the laws passed by Congress, but we are not licensed by every label (yet),” Grooveshark’s Paul Geller said previously.

However, it seems that the major labels probably want to quash the site entirely instead of legitimizing it through licensing deals.

At the time of writing the music service is still up and running and no settlement with Grooveshark has been entered. However, now that key defendants in the case have struck a deal it would be no surprise if parent company Escape Media follows suit.

Update: Grooveshark sent the following statement. We have yet to get a reply on out follow up questions asking what the settlements mean for the future of the site.

“We are pleased that the case between Universal Music and Escape Media has been narrowed and simplified by the removal of some individual defendants from the case upon their stipulation to simply obey the law—something Escape Media does every day through its active licensing of millions of tracks and its strict compliance with the Digital Millennium Copyright Act. Escape Media Group will continue to deliver innovative new solutions and services that revolutionize music consumption for its growing audience of 30 million+ fans around the world.”

Source: Grooveshark’s Future in Doubt After Settlements With Big Music

Reader Jason sent over a blog post that sent me down a bit of a rabbit hole, following the story through a variety of twists and turns. The key player in the story is Jonathan Monsarrat, who among other things founded the video game company Turbine (Asheron's Call, Lord of the Rings Online, Dungeons & Dragons Online, etc.). In early 2010, Monsarrat was arrested concerning events at a party in Massachusetts. The charges against him were later dismissed. However, there were various blog discussions among local bloggers and commenters. Not long ago, approximately three years after all of this happened, Monsarrat sued two named defendants and 100 "John Does" in a Massachusetts (not federal) court on a variety of charges, centering around defamation, but also including copyright infringement, commercial disparagement, deceptive trade practices and conspiracy. He's asking for an astounding $5.5 million.

Reading through that complaint first, before digging deeply into a variety of other sources, there were some immediate oddities. Many of the "defamatory" statements didn't seem to have anything that could possibly be defamatory in them. Some of them possibly reached the level of defamation, but at worst they read like typical silly hyperbole among internet commenters. Hardly worth worrying about. But other stuff seemed even odder. A copyright claim not in federal court? And for what sounded like adding context/imagery to a news article? Hmmm. That doesn't sound right. State copyright claims are pre-empted by federal copyright law (and, no, this isn't one of those possible exceptions involving pre-1972 recordings). Commercial disparagement? Over some blog comments? There were a lot of alarm bells, signalling something that required a lot deeper look.

Then, I came across the actual news reports of his arrest -- both the Boston Globe one linked above and the Wicked Local story. Both seem to be pretty clear that they're reporting based directly off of a police report -- and state things from that police report that Monsarrat is now claiming are entirely untrue and defamatory. But... for those who repeated them on the blog, even if they did turn out to be untrue, they'd have an incredibly strong fair report privilege claim. For example, the lawsuit suggests that Monsarrat was just a guest at the house and knew little of the party before it happened. From his filing: The party leading to Plaintiff's arrest was hosted by another third party, "Trano", and not by Plaintiff.

This other third party, Trano, provided music entertainment, bouncers and beer at this party, which Plaintiff knew nothing about until the immediate time leading up to the commencement of the party. The non-use of Trano's full name is also an interesting choice. Anyway, according to the Boston Globe coverage of the incident: Upon arriving at the scene, police found broken beer bottles near the door of the first floor of the apartment and 25-30 teenagers inside. Many were attempting to conceal bottles of beer and other alcoholic beverages, the police report states. Open bottles of alcohol were found in the kitchen area as well as a small amount of marijuana.

Monsarrat identified himself as the host of the party, but denied that any alcohol was being served, the report states. When asked by an officer to inform his guests that the party was ending, Monsarrat became “argumentative” and refused to follow instructions, police said. Officers asked for identification from several partygoers who responded, “We're in high school, we don't have ID." Then the story gets even odder. In researching it, up popped a press release from Monsarrat himself about the lawsuit, in which he refers to himself as a "dotcom era icon and Internet expert." Also, there's this: Jon Monsarrat announced this week that as part of an Internet defamation case, he will expose the real identities and addresses of 100 cyber bullies as part of his new cyber investigation service. Oh, wait a second... Earlier in 2013 he created a cyber-investigation service, which cracks the real identities of cyber bullies who post defamatory material online. The release of names and identities is part of this new service, for one of Monsarrat's client with an ongoing legal case against cyber bullies. His company is working in partnership with Defend My Name, perhaps the most technically advanced of the top anti-defamation services, and Ishman Law Firm, which has expertise in defending victims from cyber-attack.

Jon Monsarrat said, "Cyber bullies harass and spread lies about their victims using the power of the Internet, which leads to thousands of suicides a year. The police and courts are not always up to the challenge of fighting back. Now I'm bringing two patented technologies to bear to help people in need." Monsarrat was referring to his two patents in collecting and analyzing data from public websites. This might present a possible reason that it took about three years after the original blog posts to file a lawsuit (by the way, statute of limitations on defamation in Massachusetts: three years).

And then, a bunch of LiveJournal users -- including some who claimed they never commented on the original blog post -- began receiving letters saying that they're being added to the lawsuit. Apparently, those letters have some bogus boilerplate in them claiming copyright on the letter and stating "I prohibit anyone from publishing or disclosing it in whole or in part, on the internet or any other venue or any other means, without first obtaining my written consent." That, of course, is bullshit. It is not how copyright works, especially on a legal threat letter. At least one blogger has written that Monsarrat threatened to include him in the lawsuit for merely writing about the lawsuit and for the comments others had left on that blog. Of course, there is no legitimate claim against writing about the lawsuit, and the blogger is protected from liability from the comments under Section 230 of the CDA.

Then, and only then, did I finally get to reading the epic response letter from the lawyer representing Ron Newman, one of the two named defendants in the lawsuit. The lawyer is Dan Booth of Booth Sweet LLC, a law firm you may recognize from its awesome job fighting back against numerous Prenda Law cases. I cannot do justice to the entire 18 page letter, so I suggest you read it in its entirety, but I will give you a few highlights. I will note that this is not a legal document filed with the court in response to the lawsuit, but rather a letter to Monsarrat's lawyer, Mark Ishman, of the Ishman Law Firm, which Monsarrat's press release names as a "partner" in this new "expose-the-cyber-bully" business.

The letter picks apart the case piece by piece in devastating fashion, noting repeatedly that the claims made in the lawsuit are so far removed from reasonable that if Ishman and Monsarrat do not drop the lawsuit, Booth and Newman will seek sanctions for bringing bad faith claims. He then goes on to lay out, in excruciating detail, what their arguments would be in court, repeatedly asking Ishman if he's ever actually read the statutes he's relying on. He notes the articles based on police reports as just a starting point. He then points specifically to the few quotes that were actually Newman's, showing how the complaint appears to take them entirely out of context and misrepresent what they were saying, and there is simply no way they were even remotely defamatory. Some of them are ridiculous when put back into context -- including using a comment about how Newman and some other admins had agreed to close the original thread to more comments, and saying that was defamatory. It also, of course, references CDA 230 to point out that Newman clearly is not liable for anyone else's comments.

Those are the basics. Then it goes even deeper. I'll let Dan Booth handle this part: The second claim for relief is supposed to be under Chapter 93A of the Massachusetts General Laws. Have you ever actually read that statute? I'm not sure you made it all the way through to Section 9(3), which requires that a demand letter complying with certain statutory requirements must be mailed to a defendant at least 30 days before filing suit under Chapter 93A. "[T]he thirty-day requirement, as part of the requirement of a written demand for relief, is a prerequisite to suit, to be alleged and proved." York v. Sullivan, 369 Mass. 157, 163 (1975). Perhaps you jumped the gun a bit here? You filed suit on February 4, so you would have needed to send a demand letter before January 5, 2013 to satisfy the statute. Mr. Newman received no such letter. As far as I can tell, you didn't even comply with the spirit of the 30-day requirement -- you made no attempt to settle the dispute amicably before filing suit, or before filing the amended complaint, or before having it (and its telephone-book sized pile of exhibits) served on Mr. Newman. How about the commercial disparagement stuff? Yeah, under the law, such statements need to be made by a competitor, which Newman clearly isn't. Oh, and Booth notes he didn't actually disparage any products or services, as required by the law. And then we move on to the copyright claim. We already noted the oddity of trying to shove a copyright claim into a state (okay Massachusettians: commonwealth) court, and Booth highlights some more problems: Attorney Ishman, I see on your website that you hold yourself forth publicly as a copyright lawyer. I am too. I commend you for that, and for any work you do to legitimately support and protect creators. I like copyright law a lot; I just hate to see it abused. So I wonder whether you may have gotten a bit ahead of yourself with this cause of action.

Claims of common-law copyright are preempted by the Copyright Act, 17 U.S.C. § 101 et seq. Have you read that statute? Since the 1976 Copyright Act became effective, Section 301 has explained that copyright claims are "governed exclusively" by the Act, and that "no person is entitled to any such [copyright] or equivalent right in any such work [within the subject matter of copyright] under the common law or statutes of any State." 17 U.S.C. § 301(a).

In other words, common-law copyright claims are a relic. "Under the Copyright Act of 1976 ... common law copyright is abolished." Burke v. NBC, Inc., 598 F.2d 688, 691 n.2 (1st Cir. 1979). There have been no reported cases in Massachusetts state courts since the 1976 Act in which a common-law copyright was found valid. But there have been several that say things like, "These common law claims ... have clearly been preempted by the 1976 Copyright Act." Sicari v. Raccula, 2 Mass. L. Rep. 109 (Mass. Super. Ct. May 8, 1994). To the extent such claims exist, they're generally limited to media where, due to quirks of the Act's history, no statutory right ever existed, such as extemporaneous speeches or pre-1972 sound recordings. But the copyright claim in this case concerns a photograph, and those have been covered by the Copyright Act since Oscar Wilde was a young man. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). Your assertion that Mr. Monsarrat's images are "subject to common-law copyright protection under the laws of the state of Massachusetts" (Complaint ¶ 102) is wrong as a matter of black-letter law. Booth even goes through a "sake of argument" explanation for how, even if common-law copyright could apply to a photograph (which, as noted, it cannot), via Monsarrat's own actions, that photograph would be in the public domain under the specifics of the prevailing copyright law.

Booth then goes on to point out when you look at Newman's actual comments, he actually was quite even handed when the story broke, noting things like, "To my knowledge he hasn't been found guilty of any crime in a court of law." And he invited Monsarrat to present his side of the story. And yet, Monsarrat tries to paint Newman's activity as "extreme and outrageous" for the sake of "intentional infliction of emotional distress."

And then, Booth goes on to point out that the record suggests the version of the story that Monsarrat presents in his filing is less than accurate: Those assertions are directly contradicted by the record. Set aside the fact that Mr. Monsarrat was at the party and that he was arrested at the party. Set aside the fact that both the police report and the Somerville Journal article stated plainly that Mr. Monsarrat had "identified himself as the host of the party." Set aside the fact that the police report indicates that Mr. Monsarrat denied, to the arresting officer, that there was any alcohol at the party, despite the officer's firsthand observations. Mr. Monsarrat publicly announced his role in the party online, before his arrest. As Mr. Newman pointed out at the time, Mr. Monsarrat had posted an open invitation on his Wheel Questions blog, announcing that he was holding the party, two days before it happened. Complaint Exhibit 4 p. 69 ("I'm holding a party Friday in the Boston area. RSVP to johnny@wheelquestions.org and say a little about yourself for the location.") (quoting Mr. Monsarrat). If Mr. Monsarrat wants to clear his name by suggesting that he was a mere innocent bystander at the party, he cannot hope to succeed in rewriting the public record. His own words will be admissible as non-hearsay, to prove the truth of his statements identifying himself as the host, and to disprove statements to the contrary in the complaint. See Commonwealth v. DiMonte, 427 Mass. 233, 243 (1998) ("A party's admission is excluded by definition from the hearsay rule.") (citing Proposed Mass. R. Evid. 801(d)(2)); see also Flood v. Southland Corp,. 33 Mass. App. Ct. 287, 294-95 (1992). And we're not done yet. He points out that many of the comments included in the claim are way outside the statute of limitations, and Massachusetts has a well established single publication rule, meaning that the date when the content is published is when the clock starts ticking on the statute of limitations. The fact that the content remains online is meaningless. Booth also points out the ridiculousness of the $5 million dollar demand. The complaint seeks punitive damages in an amount to exceed $5,000,000. That is outrageous on its face, and wholly unsustainable under controlling law. Massachusetts has not allowed such damages since 1974. "In a case of defamation the plaintiff's recovery is limited to actual damages, which are compensatory for the wrong done by the defendant. ... Punitive damages are never allowed ... even after proof of actual malice." Stone v. Essex County Newspapers, Inc., 365 Mass. 246 (1974) (citations omitted). The Supreme Judicial Court of Massachusetts reaffirmed that position the following year: "We reject the allowance of punitive damages in this Commonwealth in any defamation action, on any state of proof, whether based in negligence, or reckless or wilful conduct. We so hold in recognition that the possibility of excessive and unbridled jury verdicts, grounded on punitive assessments, may impermissibly chill the exercise of First Amendment rights by promoting apprehensive self-censorship." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 860 (1975). As for the letters that various LiveJournal users are receiving: It is my understanding that Mr. Monsarrat has busied himself, since the filing of the amended complaint, by reaching out to people he believes responsible for these three-year old discussions, sending them wildly improper threatening letters and/or directly confronting in person. In at least one of those letters, he states, "The purpose of this correspondence to is [sic] notify you that I am suing LiveJournal forum moderator Ron Newman for $5,500,000 for defamation, and that you are named as a Doe Defendant in this lawsuit..." These actions are deeply dismaying. Mr. Monsarrat is tarnishing Mr. Newman's name in scattershot fashion, to many people who may have had no relation to the postings at issue. He may not harass people in the Somerville community by seeking to intimidate them into removing their legitimate free speech comments. Booth also points out that in intimidating various LiveJournal users into possibly removing their comments, there may be further issues with regard to encouraging the destruction of key pieces of evidence: When Mr. Monsarrat succeeds in this intimidation, he helps to destroy the record that would be at issue if the litigation were to proceed. If this pattern of behavior continues, he may be subjecting himself to sanctions for suborning spoliation. Thanks to poor formatting, many of the Complaint's Exhibits reproduce discussion threads in piecemeal fashion, omitting much or all of the text of longer comments. See, for just one example, Complaint Exhibit 4 pp. 31-42. These fragmentary Exhibits leave the original online discussions as the only reliable source of material evidence. Any deletion of those comments, as Mr. Monsarrat demands, makes them invisible to subsequent viewers, depriving defendants of the context-specific defenses that a defamation claim requires. "'The destruction of relevant evidence ... has a pernicious effect on the truthfinding function of our courts.' ... The doctrine of spoliation permits the imposition of sanctions or remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced." Scott v. Garfield, 454 Mass. 790, 797 (2009) (quoting Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 553 (2002)). Booth also notes the same press release I saw, and raises some questions about it: It appears this action has been filed with an ulterior purpose: not as a good faith means to redress any legitimate grievances, but as a case study to be used in marketing one of Mr. Monsarrat's business ventures. That would be more than improper enough, but worse, the entire purpose of "cyber investigation service" seems to be to empower litigants to make endruns around the discovery process, as Mr. Monsarrat has done. And, also, the oddity of the fact that Ishman appears to be both a lawyer for Monsarrat and a business partner: This partnership, in the place of a putative client and attorney relationship, is more than irregular. It may subject Attorney Ishman and his law firm to the same liability as Mr. Monsarrat, based on their involvement in a larger scheme. See Kurker v. Hill, 44 Mass. App. Ct. 184, 192 & n. 8 (1998). "[A] civil action is wrongful if its initiator does not have probable cause to believe the suit will succeed, and is acting primarily for a purpose other than that of properly adjudicating his claims." G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). It appears that Mr. Monsarrat has dragged Mr. Newman into court, and badgered an untold number of others, to make a name for his "cyber investigation service." This ulterior purpose, combined with the paucity of the complaint's factual allegations and legal claims, strongly suggest that the action has been undertaken without good faith. These improprieties would support counterclaims of abuse of process, see generally Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 636 (2010), and under Chapter 93A, see Northeast Data Sys., Inc. v. McDonnell Douglas Computer Sys. Co., 986 F.2d 607, 611 (1st Cir. 1993) (filing legal claim "which proves baseless" is an unfair trade practice if claim brought with "ulterior motive"); Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 44 n. 7 (2010); Refuse & Envtl. Sys., Inc. v. Indus. Servs. of Am., Inc., 932 F.2d 37, 43 (1st Cir. 1991) ("bringing [a] lawsuit in spite of the evidence" can violate Chapte 93A). These improprieties would further support sanctions under M.G.L. c. 231, § 6F, see Fronk v. Fowler, 456 Mass. 317, 334 -35 (2010) ("Claims that are so unmoored from law or fact are the very definition of 'frivolous': 'Lacking a legal basis or legal merit; not serious; not reasonably purposeful.'") (quoting Black's Law Dictionary 739 (9th ed. 2009)), and under Mass. R. Civ. P. 11, see Van Christo Adver. v. M/A-COM/LCS, 426 Mass. 410, 416-17 (1998). Believe it or not, those aren't even all of the highlights of the letter. I imagine that this one could get interesting if Ishman and Monsarrat choose not to take Booth's stern suggestion that they immediately dismiss the claims against Newman with prejudice.

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Today EFF joins organizations from the around the world representing a diversity of interests in launching a new coalition to ask for A Fair Deal on intellectual property (IP) in the Trans-Pacific Partnership Agreement (TPP). The coalition has launched a website at www.OurFairDeal.org calling for TPP negotiators to “reject copyright proposals that restrict the open Internet, access to knowledge, economic opportunity and our fundamental rights.” The TPP meetings are taking place in Lima, Peru this week until May 25th, and EFF has been on the ground working with groups to fight those provisions and demand a seat at the table at these secretive negotiations.

The TPP is a trade agreement being negotiated by Australia, Brunei, Canada, Chile, Japan, Peru, Malaysia, Mexico, New Zealand, Singapore, Vietnam, and the United States. The changes to copyright required by the TPP would reduce access to information and restrict the ability to innovate, both on and offline.

Susan Chalmers from InternetNZ announced the coalition yesterday:

“A fair deal on copyright in the TPP takes into account the interests of internet users, libraries and archives, those with disabilities, educators and business innovators as well as creators. We’re all part of the Internet economy. The Fair Deal coalition is promoting fair copyright standards for the TPP that reflect the needs of the broadest cross-section of society.”

Negotiators are hoping the meetings will “accelerate” the closed-door process. New reports indicate copyright provisions are a “challenging” issue for those behind the Trans-Pacific Partnership agreement.

Between them, members of the Fair Deal coalition represent the interests of Internet users, schools, universities, artists, libraries and archives, the visually impaired, consumers, information technology firms, Internet businesses, and those who believe in the power of open source software and the open Internet as a driving force for innovation, development and socially responsible economic growth. Coalition members include industry groups, digital rights advocates, academics and human rights organizations.

The coalition hopes that TPP negotiators will consider adopting a new approach that:

• Promotes access to knowledge, innovation, and weightless economies,   
• Respects fundamental rights like due process, privacy, and free speech, and
• Recognizes the realities and full opportunities of the Internet.

Steve Anderson, Executive Director of OpenMedia.org says:

“Unrestricted access to the open internet is fundamental to participation in 21st century society. Trade agreements must not require termination of Internet access for infringement of copyright or encourage ISPs to police Internet use.”

Executive Officer for the Australian Digital Alliance, Ellen Broad, noted the need to make sure any copyright standards agreed to in the TPP could keep pace with digital change:

“Countries around the world are currently looking at their own copyright regimes and asking, ‘are these working in the digital age?’ And the answer has been no. The internet has changed so much about the way we create, disseminate and access content: it’s essential the TPP not lock in 20th century copyright standards, but focus on a healthy internet future - for both creators and consumers, distributors and innovators.”

“Copyright laws across all of the TPP countries are already strong enough” says Jeremy Malcolm, Senior Policy Officer of Consumers International. “Indeed in many of those countries, inflexible copyright rules have been identified as a straightjacket on creativity and innovation. Plans to extend copyright even further through the TPP are exactly the opposite approach to what consumers need.”

Claudio Ruiz, executive director of Chilean ONG Derechos Digitales, states “TPP is very bad news for the rights of citizen and consumers. Increased protection standards regarding copyright cause serious detriment to the access to knowledge and culture. A 'Fair Deal' should look better access for the public and not more onerous conditions to use new technologies around access to knowledge.”

About the Fair Deal Coalition

Starting at first in New Zealand and then connecting with organizations and people internationally, a group of individuals from the fields of Internet policy, art, information technology and law got together to discuss a TPP campaign with a copyright focus. What resulted was the idea of a fair deal, one that opens up trade opportunities for TPP member states but doesn’t force copyright and other IP-related changes on us that could damage our future.

Founding members of the Fair Deal coalition include:

Affinity Bridge, Australian Digital Alliance, Australian Library  & Information Association, Association for Progressive Communications (APC), Internet NZ, BCFIPA, The Canadian Internet Policy and Public Interest Clinic (CIPPIC), Consumers International, Council of Canadians, Creative Freedom, Demand Progress, Derechos Digitales, Electronic Frontiers Australia, Electronic Frontiers Foundation (EFF), Fight for the Future, Gen Why Media, Hiperderecho, Library & Information Society of New Zealand, NZRise, NZOSS, OpenMedia.org, Public Citizen, Public Knowledge, Royal New Zealand Foundation of the Blind, Scoop, Tech Liberty NZ, TechDirt, Tuanz, TradeMe.

 

 

Related Issues: Intellectual PropertyInternationalTrans Pacific Partnership Agreement
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For years, we've noted that the big drug companies like to conflate legitimate foreign pharmacies (often based in Canada) that sell back into the US (the so-called "reimportation" or "parallel import" market) at cheaper prices with out and out bogus or counterfeit online pharmacies. The drug companies like nothing better than when people lump the two very different beasts together and label them all as "counterfeit." Of course, for many Americans, relying on cheaper legit drugs from Canada is the only way they can survive, and there have been efforts made at times by US politicians -- including President Obama -- to support more parallel importation to ease the high cost of drugs in the US.

However, there's an interesting tidbit coming out in the ongoing battles over new top level domains. It appears that the National Association of Boards of Pharmacy is seeking a .pharmacy domain, which (obviously) they would then only bestow upon pharmacies that they like. That could be a big issue, because it's likely they wouldn't allow that for certain Canadian pharmacies and other foreign legitimate pharmacies that may offer cheaper drugs. Both Demand Progress and Public Citizen recently filed comments with ICANN about why NABP should not be allowed to control .pharmacy.

From Public Citizen's filing: Granting the .pharmacy domain to NABP would confer legitimacy on pharmacies sanctioned by NABP, to the detriment of those that are not.

NABP has proposed an unfair standard that would bar online pharmacies that serve US consumers but are located outside of the United States from using the domain (see NABP’s application at Section 18(a) IV*). This would exclude many licensed pharmacies which offer American consumers low-cost medicines of quality.

Whether a pharmacy is located in the United States does not determine whether a pharmacy is licensed and provides medicines of quality.

Consumer access to medicines depends in significant part on price and competition. It would be inappropriate to allow NABP to control such an important gTLD while it maintains exclusionary plans for the domain, which work against the consumer interest in a robust market of quality affordable pharmaceuticals. And, from Demand Progress's filing: The pharmaceutical industry has prioritized trying to shut down legitimate pharmacies selling safe Canadian drugs to U.S. consumers (as currently allowed by the U.S. Food and Drug Administration). But their tactics to achieve these anti-consumer goals involve censorship regimes allowing government seizure of domains, blacklists of sites, or suspended hosting services for legitimate competitors.

NABP supporters have justified their actions by preying on consumer fear of counterfeiters, when their real goals include shutting down sites providing cheaper legitimate drugs. Pfizer joined the assault on the Net in 2011, testifying to Congress that: "The major threat to patients in the U.S., however, is the Internet..." ...

NABP's supporters define "fake pharmacies" as those not registered with VIPPS, rather than only those selling actual counterfeit goods. The Demand Progress comment also points out how the big pharmaceutical companies supported SOPA and PIPA, since they knew that it, too, would be useful to use as a sledgehammer against foreign online pharmacies that sold legitimate drugs back into the US.

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5/17/2013 Author:  Nasreen Hosein Security & Surveillance CALEA and Tech Mandates CALEA II: Risks of wiretap modifications to endpoints

Edward W. Felten is a Professor of Computer Science and Public Affairs at Princeton University, and the founding Director of Princeton's Center for Information Technology Policy. Felten was the Federal Trade Commission's first Chief Tecnologist.

Our report argues that mandating a virtual wiretap port in endpoint systems is harmful. The port makes it easier for attackers to capture the very same data that law enforcement wants. Intruders want to capture everything that happens on a compromised computer. They will be happy to see a built-in tool for capturing and extracting large amounts of audio, video, and text traffic. Better yet (for the intruder), the capability will be stealthy by design, making it difficult for the user to tell that anything is amiss. MoreCenter for Democracy and Technology Report on USG Proposals to Expand CALEA to Peer-to-Peer Communications

Susan Landau, Guggenheim Fellow, Author of Surveillance or Security? The Risks Posed by New Wiretapping Technologies

Our first concern is something that I have written about on multiple occasions, namely that an architected security breach—which is what a wiretap is—is exploitable not only by law enforcement but also by criminals, other nation states, etc. Then, to satisfy law enforcement, companies must either enable a 24/7 capability for wiretapping whenever law enforcement requires it or — very dangerous — give any law-enforcement organization, no matter how small and poorly secured, the ability to conduct the tap on its own. This is really dangerous.“Going Dark” vs. “Going Secure” New CDT Experts’ Report on CALEA II

Peter P. Swire is the C. William O’Neill professor of law at the Moritz College of Law of the Ohio State University. He is a senior fellow with the Future of Privacy Forum and the Center for American Progress and policy fellow with the Center for Democracy and Technology. Under President Clinton, he served as Chief Counselor for Privacy in the U.S. Office of Management and Budget.

Building holes and backdoors into widely-available software and services creates vulnerabilities that can be exploited by a range of bad actors, including hackers, individual employees at the software companies and government officials in the numerous countries that will expect the same access afforded to the FBI. When it comes to cybersecurity online, the first rule for government should be 'do no harm.' More

I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:

1. Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
2. Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
3. Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?

Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.

1. Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
2. Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
3. Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
4. Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
5. Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.

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I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:

1. Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
2. Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
3. Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?

Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.

1. Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
2. Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
3. Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
4. Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
5. Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.

While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.

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A couple of days ago Techdirt wrote about how Murong Xuecun, a well-known user of the Chinese microblog Sina Weibo with over a million followers, had his account closed down suddenly. Murong has now written a fine article about the background to what happened: he points out that the deletion of his account looks to be part of a larger clampdown on the use of microblogging services by well-known figures who are critical of the Chinese government. The problem for the latter is that these services are becoming a real channel for free expression and less-than-perfectly-censored information: Individuals are silenced on daily basis, and the pool of sensitive words grows by the hour: Liu Xiaobo, Gao Xingjian, Ai Weiwei, Wei Jingsheng, Liao Yiwu, Ma Jian, Mo Zhixu, Xiao Shu … The list goes on. It now includes me, as well as two more scholars who have since been silenced: Wu Wei and Wu Zuolai, whose accounts were deleted on the morning of 13 May. Lurking in the shadows, the "relevant organs" carry out such work as part of their daily routine, and expect people to remain silent. They have perhaps failed to foresee that in the age of Weibo, their actions could trigger such a severe backlash. To this, they responded with more censorship. Given the problems that even China is having with controlling such services, it's no surprise that other nations are getting nervous. Here's a story from the BBC about what Saudi Arabia is doing in an attempt to counter the threat from Twitter: The head of Saudi Arabia's religious police has warned citizens against using Twitter, which is rising in popularity among Saudis.

Sheikh Abdul Latif Abdul Aziz al-Sheikh said anyone using social media sites -- and especially Twitter -- "has lost this world and his afterlife". The Saudi authorities are evidently grappling with exactly the same issues as the Chinese government: Many Saudis have seized on Twitter as the most immediate and effective way to open little windows into a traditionally opaque society.

Recent protests in the Eastern Province have been tweeted and images of human rights activists on trial have been uploaded directly from courtrooms, challenging many taboos. The situation in Saudi Arabia is complicated by the fact that the well-known Saudi Prince Alwaleed bin Talal bought a $300 million stake in Twitter back in 2011. That doubtlessly explains in part the following comments he made recently using his own Twitter account, quoted in an article from CNN: Dear Saudi Telecommunication Authority, social media is a tool for the people to make the government hear their voices. Just thinking of blocking them is a losing war, and a way to put more pressure on the citizens As Twitter continues to gain market share -- already standing at a massive 51% of all Internet users in Saudi Arabia according to the CNN piece -- it will be interesting to see whose view prevails there: that of the religious police or a secular prince.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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We should have know that once the press started picking up on the ridiculous moral panic over Google Glass that Congress would be quick to follow. In a move that smacks of traditional political grandstanding, a group of Congressional Representatives have sent a letter to Google raising a bunch of questions about the supposed "privacy concerns" of Google Glass. I'm wondering if next they'll summon a representative of the seeing public to discuss the privacy concerns of your own two eyes.

First, they jump to the go-to point that any anti-Google privacy activist goes to: the data collection from open WiFi. What no one ever seems willing to discuss is the fact that this is the nature of open WiFi. Anyone can see any of the unencrypted data traveling over that access point. Why that gets blamed on Google makes no sense. They also worry about privacy of non-users, which is definitely a point that others have raised. But, how is this privacy issue different than one of basic sight. Google Glass sees what a user sees. If they can see you doing something you don't want exposed, they can reveal that as well. How is that a privacy issue specific to Google Glass? There are a number of other odd questions, including whether or not Google considered the privacy implications of the NY Times' Google Glass app. Huh? First off, if there were privacy implications, shouldn't they be the NY Times' concern on that issue? And second, can anyone explain why possible privacy issue could be in play here? It's a news app on a tiny screen. So what?

When regular cameras first came on the scene, there were similar scare stories and people worried about the privacy impact of still photo cameras. We pretty quickly learned how to cope and adapt to that. Why do people think we can't learn and cope with Google Glass?

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