In a historic decision, a federal judge in Washington, D.C. today declared that the NSA’s mass phone records surveillance is likely unconstitutional, ruling that the plaintiff’s data should be purged from the system and prohibiting the NSA from collecting further phone records from the plaintiffs.
The case, Klayman v. Obama, undermines the government’s assertions that its bulk surveillance program, which collects virtually every phone record in the United States, is legal. Judge Richard Leon found the “[b]ulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy," which, in turn, likely results in a violation of the Fourth Amendment.
Judge Leon stayed the order pending appeal because of the significant nature of the decision. Both EFF and the ACLU have active lawsuits challenging the same program, before other judges.
But make no mistake: the judge’s language in condemning the program was unequivocal. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” he wrote. He continued: "the author of the Constitution, James Madison...would be aghast” at the NSA’s surveillance program.
Judge Leon also rejected the idea that courts other than the secret, one-sided FISA court could not rule on the program's constitutionality: “While Congress has great latitude to create statutory scheme like FISA, it may not hang a cloak of secrecy over the Constitution.”
Critically, the judge directly addressed the Supreme Court case Smith v. Maryland— the ruling from the 1970s that allowed law enforcement to obtain the records of a single targeted individual without a warrant, for a few days. This decision is the pillar upon which the government has justified its expansive surveillance, having secretly re-interpreted that decision to allow them to get every phone record of every individual in the country, regardless of whether they were under investigation.
Judge Leon wrote: “The question before me is not the same question that the Supreme Court confronted in Smith” and is “a far cry from the issue in this case.” He correctly differentiated between surveillance of the limited information on one person and the ability of today’s law enforcement to take in mass amounts of information over long periods of time and map out a person’s life through every single connection made through a telephone:
“This short-term, forward looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith. The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever.”
Judge Leon emphasized that “the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.” He continued:
“Admittedly, what metadata is has not changed over time. As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed, date, time, and the like. But the ubiquity of phones has dramatically altered the quantity of the information that is now available, and more importantly, what that information can tell the Government about people’s lives.”
“Put simply,” Judge Leon concluded, “people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.” This analysis crystalizes the problems with the government’s over reliance on Smith, recognizes the limits on that holding in relation to all sorts of digital surveillance we see today as a result of the expansion of technology.
But in perhaps his most important point when he discussing privacy in the digital age, Leon explained that because of an increased awareness of the ability of law enforcement to track our movements via technology, we have a more reasonable expectation of privacy, not less:
“Whereas some may assume that these cultural changes will force people to 'reconcile themselves' to an 'inevitable' 'diminution of privacy that new technology entails,' I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable."
While we still have a long way to go before the NSA mass phone records program is permanently declared unconstitutional once and for all, this is a truly historic ruling and an important first step in ensuring American’s privacy is protected in the digital age.Related Issues: NSA SpyingRelated Cases: First Unitarian Church of Los Angeles v. NSA
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We’ve asked the companies in our Who Has Your Back Program what they are doing to bolster encryption in light of the NSA’s unlawful surveillance of your communications. We’re pleased to see that four companies—Dropbox, Google, SpiderOak and Sonic.net—are implementing five out of five of our best practices for encryption. In addition, we appreciate that Yahoo! just announced several measures it plans to take to increase encryption, including the very critical encryption of data center links, and that Twitter has confirmed that it has encryption of data center links in progress. See the infographic.
By adopting these practices, described below, these service providers have taken a critical step towards protecting their users from warrantless seizure of their information off of fiber-optic cables. By enabling encryption across their networks, service providers can make backdoor surveillance more challenging, requiring the government to go to courts and use legal process. While Lavabit’s travails have shown how difficult that can be for service providers, at least there was the opportunity to fight back in court.
While not every company in our survey has implemented every recommendation, each step taken helps, and we appreciate those who have worked to strengthen their security. We hope that every online service provider adopts these best practices and continues to work to protect their networks and their users.
Crypto Survey Results
UPDATE, November 20, 2013: Facebook and Tumblr have provided further information to supplement the Encrypt the Web Report. We're pleased to report that Tumblr is planning to upgrade its web connections to HTTPS this year and implement HSTS by 2014, and Facebook is working on encrypting data center links and implementing STARTTLS.
UPDATE, November 22, 2013: Google has provided further information to supplement the report on its use of HSTS. See the updated chart below and the notes for more information.
UPDATE, December 5, 2013: Microsoft has provided further information, announcing a plan to expand encryption across all its services, including encrypting links between data center and implementing forward secrecy by the end of 2014.
UPDATE, December 16, 2013: Microsoft has informed us that it is planning to support HSTS for public facing services that host or transmit email, personal or business documents and media, messaging, contacts, and credentials. This is an important step to make it more challenging for attackers to defeat security by bypassing encryption. In addition, Microsoft is planning to roll out STARTTLS in its outlook.com email service. This means that emails between outlook.com users and other email services that use STARTTLS, like Gmail, will be encrypted in transit.Encrypts data center linksSupports HTTPSHTTPS Strict (HSTS)Forward SecrecySTARTTLSundeterminedlimitedundeterminedundetermined
(in progress, facebook.com)undeterminedundeterminedin progress for select domains, see notes
(verizon.net)undeterminedavailableundeterminedplanned 2014: default for mail, available for all servicesundetermined
Notes: The information in this chart comes from several sources; the companies who responded to our survey questions; information we have determined by independently examining the listed websites and services and published reports. Some of the surveyed companies did not respond to the survey.
Recognizing that some of these steps will take time to implement, we gave credit to companies that either (1) have implemented or (2) have concrete plans to implement the listed encrytion process, as noted.
For STARTTLS, the red and grey shading indicates whether or not the company is a major email service provider. While encourage all companies to implement STARTTLS, even if they only provide email for their own employees, the issue is most critical for companies that provide email communications to the public.
Google implements HSTS on a set of services1, including mail, drive and accounts, via pre-loading in the Chrome browser. This list was also preloaded in the Firefox browser, however, due to a bug, this preload list is currently non functional (Nov. 22, 2013). We understand that a resolution is in progress.
This graphic is also available as an image file.
Why Crypto Is So Important
The National Security Agency’s MUSCULAR program, which tapped into the fiber-optic lines connecting the data centers of Internet giants like Google and Yahoo, exposed the tremendous vulnerabilities companies can face when up against as powerful an agency as the NSA. Bypassing the companies’ legal departments, the program grabbed extralegal access to your communications, without even the courtesy of an order from the secret rubber-stamp FISA court. The program is not right, and it’s not just.
With that in mind, EFF has asked service providers to implement strong encryption. We would like to see encryption on every step of the way for a communication on its way to, or within, a service provider’s systems.
For starters, we have asked companies to encrypt their websites with Hypertext Transfer Protocol Secure (HTTPS) by default. This means that when a user connects to their website, it will automatically use a channel that encrypts the communications from their computer to the website.
We have also asked them to flag all authentication cookies as secure. This means cookie communications are limited to encrypted transmission, which directs web browsers to use these cookies only through an encrypted connection. That stops network operators from stealing (or even logging) users' identities by sniffing authentication cookies going over insecure connections.
To ensure that the communication remains secure, we have asked companies to enable HTTP Strict Transport Security (HSTS). HSTS essentially insists on using secure communications, preventing certain attacks where a network pretends that the site has asked to communicate insecurely.
All of these technologies are now industry-standard best practices. While they encrypt the communications from the end user to the server and back, the MUSCULAR revelations have shown this is not enough. Accordingly, we have asked service providers to encrypt communications between company cloud servers and data centers. Anytime a users’ data transits a network, it should be strongly encrypted, in case an attacker has access to the physical data links or has compromised the network equipment.
In addition, we have asked for email service providers to implement STARTTLS for email transfer. STARTTLS is an opportunistic encryption system, which encrypts communications between email servers that use the Simple Mail Transfer Protocol (SMTP) standard. When a user emails someone on a different provider (say, a Hotmail user writing to a Gmail user), the mail message will have to be delivered over the Internet. If both email servers understand STARTTLS, then the communications will be encrypted in transit. If only Gmail does but Hotmail does not (the current situation), they will be in the clear and exposed to eavesdropping, so it’s critical to get as many email service providers as possible to implement the system.
Finally, we have asked companies to use forward secrecy for their encryption keys. Forward secrecy, sometimes called ‘perfect forward secrecy,’ is designed to protect previously encrypted communications, even if one of the service providers’ keys is later compromised. Without forward secrecy, an attacker who learns a service provider’s secret key can use it to go back and read previously incomprehensible encrypted communications—perhaps ones that were recorded months or years in the past.
- 1. The HSTS domains are wallet.google.com; checkout.google.com; chrome.google.com; docs.google.com; sites.google.com; spreadsheets.google.com; appengine.google.com; encrypted.google.com; accounts.google.com; profiles.google.com; mail.google.com; talkgadget.google.com; talk.google.com; hostedtalkgadget.google.com; plus.google.com; plus.sandbox.google.com; script.google.com; history.google.com; security.google.com; goto.google.com; market.android.com; ssl.google-analytics.com; drive.google.com; googleplex.com; groups.google.com; apis.google.com; chromiumcodereview.appspot.com; chrome-devtools-frontend.appspot.com; codereview.appspot.com; codereview.chromium.org; code.google.com; dl.google.com; translate.googleapis.com; oraprodsso.corp.google.com; oraprodmv.corp.google.com; gmail.com; googlemail.com; www.gmail.com; www.googlemail.com; google-analytics.com; and googlegroups.com.
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The Baton Rouge pension fund said the revelation of Prism and related disclosures by former NSA contractor Edward Snowden caused Chinese businesses and China's government to abruptly cut ties with the world's largest technology services provider.
It said this led IBM on October 16 to post disappointing third-quarter results, including drops in China of 22 percent in sales and 40 percent in hardware sales. As for the legal basis for the lawsuit, the pension fund is arguing that IBM should have revealed the potential of this kind of information coming public as a "risk factor." Chances are this lawsuit will go nowhere, but it does highlight, yet again, just how damaging the NSA's activities can be on the US. When compared to how little the NSA has actually accomplished, according to various folks in Congress who have been briefed, it certainly seems like the NSA is doing a lot more harm than good. Hopefully this leads other companies to be much stronger in pushing back on the NSA's demands, knowing that it can significantly harm their business prospects outside of the US.
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CBS Airs NSA Propaganda Informercial Masquerading As 'Hard Hitting' 60 Minutes Journalism By Reporter With Massive Conflict Of Interest
- The reporting was conducted by John Miller, a former intelligence community official (who worked for the Office of the Director of National Intelligence, which oversees the NSA) in a spokesperson role and a variety of historical roles in the intelligence community. While he does "disclose" the ODNI role upfront (but not the others), he left out that he's about to be hired in an intelligence role for the NYPD, a deal that has been described as "a 99.44 percent done deal." Also, in the past, when he also worked for the NYPD, he had a bit of a problem with telling the truth. Miller is, clearly, an intelligence industry spokesperson at heart, pretending to be a journalist here.
- There was not a single hard hitting question asked throughout. It was all softballs. Seriously. Many of the setup questions were the same bogus strawmen we've seen the NSA focus on in the past -- concerning things like "is the NSA listening to everyone's calls." But that isn't what people are actually concerned about. At no point did they appear to even attempt to ask followup questions when the NSA people made clearly misleading statements, such as those concerning the surveillance of "US persons."
- Not a single critic of the NSA was shown during the entire episode. Seriously. Not a single claim by the NSA was refuted or pushed back on. At all. Basically, Miller served up softballs, the NSA hit 'em back, and the "investigative journalists" at 60 Minutes said, "Wow, isn't that amazing!"
- They admit that they did this piece because the NSA "invited them in." In other words, this was purely a propaganda piece from the very outset. The most hysterical thing to watch is the "overtime" bit that they have on the website in which they explain how 60 Minutes got to do this story on the NSA, which reveals that basically the NSA asked them to do this puff piece and then controlled every second of the process. There are even a few outtakes where the NSA "handlers" cut off parts of interviews to tell people what to say.
- Miller claims he spoke to NSA critics and asked them what they would ask, but that's not reflected in the questioning at all. He then defends the piece saying that his goal was to let the NSA explain its side of the story, which he argues wasn't getting enough attention. Seriously. Because this is really the side of the story that has been mined only in the most superficial ways. We’ve heard plenty from the critics. We’ve heard a lot from Edward Snowden. Where there’s been a distinctive shortage is, putting the NSA to the test and saying not just ‘We called for comment today’ but to get into the conversation and say that sounds a lot like spying on Americans, and then say, ‘Well, explain that.’” Try not to laugh at that. He even claims that he didn't want it to be a puff piece -- which is exactly what it was.
- The one big "revelation" in the piece involves NSA people implying, but never actually saying, how they stopped some sort of plot to turn everyone's computers into bricks by infecting the BIOS. But, as lots of people who actually understand this stuff are noting, that segment was pure gibberish: There are no technical details. Yes, they talk about "BIOS", but it's redundant, unrelated to their primary claim. Any virus/malware can destroy the BIOS, making a computer unbootable, "bricking" it. There's no special detail here. All they are doing is repeating what Wikipedia says about BIOS, acting as techie talk layered onto the discussion to make it believable, much like how Star Trek episodes talk about warp cores and Jeffries Tubes.
Stripped of techie talk, this passage simply says "The NSA foiled a major plot, trust us." But of course, there is no reason we should trust them. It's like how the number of terrorist plots foiled by telephone eavesdropping started at 50 then was reduced to 12 then to 2 and then to 0, as the NSA was forced to justify their claims under oath instead of in front of news cameras. The NSA has proven itself an unreliable source for such information -- we can only trust them if they come out with more details -- under oath.
Moreover, they don't even say what they imply. It's all weasel-words. Nowhere in the above passage does a person from the NSA say "we foiled a major cyber terror plot". Instead, it's something you piece together by the name "BIOS plot", cataclysmic attacks on our economy (from the previous segment), and phrases like "would it have worked".
- Part of the piece, bizarrely, focused on smearing Ed Snowden based on a completely out of context statement about how he would work at home with a sheet over his head to keep work secret. Given the realities of what the NSA is doing, and what Snowden was up to, that doesn't sound so strange. Yet, Miller (not the NSA), made it out like Snowden was a wack job for this: John Miller: At home, they discovered Snowden had some strange habits.
Rick Ledgett: He would work on the computer with a hood that covered the computer screen and covered his head and shoulders, so that he could work and his girlfriend couldn't see what he was doing.
John Miller: That's pretty strange, sitting at your computer kind of covered by a sheet over your head and the screen?
Rick Ledgett: Agreed.
Coming so soon on the heels after 60 Minutes totally bungled a report on Benghazi, you would think that the once respected news program might try a little harder not to post something so obviously ridiculous. But, apparently not. While many have suggested that the NSA communications people should get a raise for pulling off such pure propaganda, some are pointing out that the whole thing was so obviously a bogus puff piece that no one's buying it. Anthony DeRosa has put together a series of tweets about the episode and hasn't yet been able to find a single person who reacted positively to it. Not a single one.
It's no secret that the NSA isn't very good at PR but, in this case, not only may they have harmed their case, they helped CBS News shoot themselves in the foot, yet again, over whatever shreds of journalistic credibility they may have had.
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Recently the Washington Post revealed that the National Security Agency (NSA) is engaged in bulk collection of the location data of individuals’ around the world. This location-monitoring program provides the NSA with sensitive information on the private lives of Americans, as well as individuals throughout the world.
According to the report, the NSA gathers five billion records each day on individuals’ locations, with monitoring focused outside the United States. The location information is generated by operation of mobile devices, employing various methods including cell tower triangulation, GPS, and connection to Wi-Fi networks. Executive Order 12333 provides the legal authority for the location-monitoring program. The purpose of the program is to map associations among individuals seen through direct interactions and simultaneous presence at common locations, using computer analytics to map connections of “co-travelers” with common locations and movement routes.
The location-monitoring program has strong ramifications for human rights. While the Washington Post report does not reveal the total number of individuals affected, the fact that five billion records are being gathered daily demonstrates that it is immense in scale. With this magnitude of data, the NSA could be constantly tracking the location of the population of entire cities or countries, collecting intimate information about individuals who have absolutely no connection to terrorism or national security issues. The NSA can disseminate this data to foreign governments, significantly compromising the privacy of non-Americans throughout the world.
Location-data can be extremely revealing, especially when monitoring occurs ubiquitously and in bulk, as is the case with the NSA program. As we have discussed previously, cell phones are powerful tracking devices because they generally travel with the user wherever he or she goes. Using these devices to track location is akin to having a government operative or a drone following a person 24/7 – even in and out of private residences.
Location data collected over time can reveal intimate details of a person’s private life. It can show the person’s associates, health status and medical activities, political activities and religious beliefs, and give clues about one’s romantic relationships. It could reveal whether a person went to a psychiatrist, a medical clinic, or an AIDS treatment center. It potentially records whether an employee snuck away to a motel with a co-worker, or spent an hour consulting with a union organizer or criminal defense lawyer.
Although surveillance is focused outside the United States, the NSA’s location-monitoring program can significantly impact Americans. According to a government intelligence lawyer, collection is “tuned to be looking outside the United States,” raising the prospect that some domestic location data is being swept up through the program. Further, dragnet collection of international location data leaves Americans vulnerable whenever they leave the country for reasons such as a vacation, business trip, or study abroad program. According to the Washington Post report, the location of millions of Americans could be collected.
There is no known restriction on the NSA’s ability to retain this data or deliberately search for the location-information of Americans it has obtained. Thus while it does not intentionally collect Americans’ location data, the NSA can nonetheless gather location data of persons abroad in a broad and indiscriminate manner, and then search it for the location of particular Americans abroad.
The NSA has been misleading about its location monitoring programs. During a September 26 hearing before the Senate Intelligence Committee, NSA Director Keith Alexander adamantly denied that government was collection location data in bulk. This statement was not a falsehood only because it contained the caveat that NSA did not monitor location data pursuant to the PATRIOT Act – the NSA is engaged in the exact type of activity that was being discussed, but using a different legal authority. This use of technicalities and linguistic tricks by the government to distort public perception of surveillance activities has become all-too-familiar tactic, with deceptive statements brought to light again and again. These types of misleading claims do not benefit the Intelligence Community; it must be more straightforward if it wishes to regain credibility in the ongoing debate over government surveillance.
Back in January, Sony released the 'Bob Dylan Copyright Collection Volume'. As its name shamelessly proclaims, that was purely to take advantage of an EU law to extend the copyright term on recordings from 50 to 70 years there. Copyright is supposed to offer an incentive to create new works, so extending it after they are written is clearly nonsensical. Similarly, the idea that musicians will suddenly be inspired to write more new songs because of the extra 20 years of protection that only kicks in 50 years from when the song is recorded is just silly.
Needless to say, Bob Dylan is not the only artist with tracks hidden away in the vaults of recording companies. Here's another rather high-profile example: On Tuesday Apple [Records] will release the downloads of Beatles recordings which have long been bootlegged but never been made legally available. They include outtakes, demos and live BBC radio performances. A spokeswoman for Apple would only confirm that the 59 tracks are being released. As to the company's motivation: "No comment." Is it because of the copyright laws? "No comment."
One reason for that, says Beatles blogger Roger Stormo, is that the record company does not really want to release the material in the first place -- its hand is being forced. "The only reason why they are doing this is to retain the copyright of this material," he said. As that makes clear, this previously unreleased material is not coming out because Apple Records is keen to serve avid Beatles fans around the world; it's not even to provide legal versions of tracks that have been bootlegged for years. It's simply so as to be able to assert control over some recordings of the Beatles's music for another 20 years.
Even though the Guardian article quoted above fails to comment on the fact, this is pretty outrageous. When the Beatles recorded the tracks, they made an implicit deal with the public. In return for a government-backed monopoly lasting 50 years, they would allow their music to enter the public domain at the end of that time. And yet, what has happened? Instead of being able to enjoy and use the tracks as part of the public domain, Europeans have been cheated, and told they must wait another 20 years, simply because the recording industry employed good lobbyists.
What's particularly galling is that the tracks weren't even available beforehand, and so presumably weren't earning any money for Apple Records; in other words, releasing them into the public domain would have resulted in no loss of revenue whatsoever. And yet the recording industry's obsession with control meant that Apple Records decided to punish the Beatles' fans anyway by extending the copyright on material it didn't want released.
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One of those sites is YIFY-Torrents, a particularly popular file-sharing site best known for its compact movie rips. Over the weekend TorrentFreak ran an article on the site which detailed its efforts to beat the censors.
Although we aren’t privy to exactly what was going on behind the scenes at YIFY, we do know that in addition to other tweaks they were experimenting with CloudFlare, a CDN and security company which, according to stats released by the company last year, is used by hundreds of thousands of websites.
What we also learned is that the main ISPs in the UK – BT, SKY, Virgin, TalkTalk etc – are each using their own techniques to try and render torrent sites unavailable to their subscribers. Tricks that worked on one ISP didn’t necessarily produce the same results on another, with YIFY managing to unblock Sky and TalkTalk seemingly quite quickly but with Virgin Media requiring more work.
This is where it gets interesting. By using CloudFlare’s services as a front-end to YIFY’s caching servers alongside other backroom tweaks, YIFY managed to beat the censors to became accessible in the UK over the weekend. But that came at a price.
There was much speculation, ranging from Imgur somehow ending up on the Internet Watch Foundation’s blocklist to Sky simply being a “terrible” broadband supplier. However, there was a more straightforward but ultimately bewildering explanation.
Sky employs an automated blocking system that polls torrent sites’ DNS records in order to quickly re-block them in the event they switch servers or IP addresses.
“Sky regularly pull IP addresses listed on our DNS servers and adds them to their block list. This block list is then used by an advanced proxy system that redirects any requests to the blacklisted IP addresses to a webserver that the ISP owns which returns a blocked page message,” YIFY explains.
Therefore, when YIFY began using CloudFlare servers in Australia, Sky pulled these IP addresses and blocked them in the mistaken belief that they were YIFY’s. Since Imgur uses the same IP addresses, Sky’s automated blocking took the site offline, to the huge disappointment of countless customers.
Unbelievably this isn’t the first time that Sky’s systems have managed to block entirely innocent sites. Back in August, Sky blocked TorrentFreak.com after EZTV experimented with its DNS settings and just days later it blocked RadioTimes and other sites following a screw-up initiated by the Premier League.
Of course, to some extent this whole blocking problem has been placed in Sky’s lap by the High Court, but by now one would have thought that the ISP would have mastered the process. Allowing their systems to be dictated to by other external systems over which it has no control can never be a good idea.
Sometime yesterday Imgur was eventually unblocked by Sky.
Public data that has been generated or commissioned by government bodies should always be available to the public without restrictions on its use by copyright or other laws. That's the spirit behind excluding works authored by the federal government from copyright restrictions, and the strong legal precedent that the law itself cannot be copyrighted. EFF has now joined a growing list of organizations and individuals supporting a set of best practices for federal government agencies that wish to give a clear green light to the reuse of their data.
We join the document's primary author Joshua Tauberer of GovTrack.us, the Sunlight Foundation, Public Knowledge, the Open Knowledge Foundation, MuckRock, Carl Malamud, and many other public interest organizations and individuals in supporting this important endeavor.
In practice, the public already benefits from the absence of copyright restrictions on government data. But wherever there are perceived ambiguities, they can create friction that bogs down lawful reuses or even creates chilling effects on speech.
As just one example, EFF is representing the archivist Carl Malamud in a copyright case that centers on his publishing codes and standards that have been incorporated into the law. We can hope explicit statements from federal agencies following these best practices could embolden more archivists to reuse and republish these codes, and discourage standards development organizations and others from attempting to use copyright as an intimidation tactic.
In cases where government data is produced by a contractor, clarification is even more essential. The same principles apply—this is work funded by the public, and should therefore belong to the public—but the law doesn't provide the same sort of clarity about free reuse as it does for works created by the government itself. To bring that situation into line with the spirit of the law, the best practices recommend the contractor or agency release the work without restriction.
Finally, the newly updated version of these best practices addresses the related issue of licensing for government-produced software. The history of unrestricted publications of laws is a lot longer than that of software, but we're starting to see more examples, including efforts like the White House's open source release of the We The People petition platform. We hope to see more examples in the years to come. The best practices document explains that government-written software should be just as clearly in the public domain as government data.
We all benefit from a robust public domain, and government data and works are particularly obvious examples. Freely reusable public data is essential to a functioning democracy.Related Issues: Free SpeechInnovationIntellectual Property
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Even while accepting the government's description of the system, it appears, thankfully, that Judge Leon is not being confused and suckered by the government's attempt to mislead. For example, in a footnote (21) the judge shows that he completely understands that the NSA is being exceptionally misleading when it implies that within all of that metadata, it's just looking at fewer than 300 individuals. After stating that fewer than 300 unique identifiers met the RAS standard and were used as "seeds" to query the metadata in 2012, Ms. Shea notes that "[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three 'hops' from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records." (emphasis added). The first part of this assertion is a glaring understatement, while the second is virtually meaningless when placed in context. First, as the sample numbers I have used in the text above demonstrate, it is possible to arrive at a query result in the millions within three hops while using even conservative numbers--needless to say, this is "substantially larger than 300." After all, even if the average person in the United States does not call or receive calls from 100 unique phone numbers in one year, what about over a five-year period? And second, it belabors the obvious to note that even a few million phone numbers is "a very small percentage of the total volume of metadata records" if the Government has collected metadata records on hundreds of millions of phone numbers.
But it's also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers. Suppose, for instance, that there is a person living in New York City who has a phone number that meets the RAS standard and is approved as a "seed." And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino's Pizza shop. The Court won't hazard a guess as to how many different phone numbers might dial a given Domino's Pizza outlet in New York City in a five-year period, but to take a page from the Government's book of understatement, it's "substantially larger" than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop. Judge Leon is also well aware of the newly declassified rulings from FISC judges Walton and Bates detailing regular and drastic non-compliance by the NSA. While Judge Leon does admit to lacking jurisdiction over claims that the program violates the Administrative Procedures Act, it's the constitutional questions that are the big ones, and he does not shy away there. He notes that the FISA law does not include an expressed right of judicial review -- but neither does it bar it. And, since Congress "should not be able to cut off a citizen's right to judicial review of... Government action simply because it intended for conduct to remain secret," he finds that the court has the authority to rule on the constitutional issues.
On the question of standing (where the government often wins since individuals can't prove they've been spied on), the court sides with the plaintiffs -- noting that there's strong evidence to suggest their info has, in fact, been collected. First, as to the collection, the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention.... In addition, the Government has declassified and authenticated an April 25, 2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected metadata from Verizon. Judge Leon further mocks the Government's attempts to argue no standing, noting that their own arguments appear to contradict themselves: Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson's order names only Verizon Business Network Services ("VBNS") as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it "creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light."
[....] Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism--in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.... Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not inspire confidence! In terms of the actual constitutional analysis, Judge Leon takes on directly the issue of metadata collection in Smith v. Maryland, the key case that the NSA and its defenders repeatedly rely on to insist that there is no 4th Amendment rights in information stored by third parties. Judge Leon notes that issue here is very different. The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and use of a pen register constitutes a 'search' within the meaning of the Fourth Amendment," ... -- under the circumstances addressed and contemplated in that case--is a far cry from the issue in this case.
Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances--the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies--become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now. From there, he relies on the US v. Jones case, which we've discussed extensively as well, in which the court found that attaching a GPS device to a car could be a 4th Amendment violation. He notes there that the court similarly looked at the differences in that case as compared to a previous precedent, and notes that the same situation likely applies here, vis-a-vis comparisons to Smith: For the many reasons discussed below, I am convinced that the surveillance program before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy. He then goes into a detailed and thorough dismantling of Smith and why it clearly doesn't apply to this program -- noting how Smith was a very limited data collection, rather than a "collect it all" process. He even refers to the current program as "Orwellian." Furthermore, he implicates the close relationship between the NSA and the telcos, noting that this is entirely different from Smith, where police made a specific request to the telcos to turn over specific information -- rather than the telcos automatically handing over all info for the NSA to keep. It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government. Finally, he points out that the amount of metadata in question is significantly more detailed and revealing than what was captured in the Smith case: ...the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives.... Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago. In this, it appears that Judge Leon was convinced by Ed Felten's declaration which, as we noted, went into great detail about how much metadata could reveal about a person today.
In the end, he says that Smith is simply the wrong case: In sum, the Smith pen register and ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.... As I said at the outset, the question before me is not whether Smith answers the question of whether people can have a reasonable expectation of privacy in telephony metadata under all circumstances. Rather, the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval. Finally, in looking at the government's insistence that the program is necessary, Judge Leon is not convinced. He notes examples of them saying it can help them do their job faster, but none of it is actually stopping an attack. In fact, he notes that for all the talk of doing the job faster, there's not been a single shred of evidence presented that it helped stop an imminent attack, where that kind of speed would matter. In fact, he notes, "none of the three 'recent examples' cited by the Government [for the need for this program] involved any apparent urgency." In short, Judge Leon is calling the government's bluff. Their only reason for needing the program is the speed it provides, but then they present no evidence of any cases where that speed was important.
Thus, the end result is an injunction against the metadata collection, but recognizing the inevitable appeal, that injunction is stayed pending appeal. This is a very good decision, but this is just the beginning.
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There are any number of controversial proposals in the leaked text of the Trans-Pacific Partnership (TPP) chapter on intellectual property. Here’s one that’s not getting enough attention: the TPP appears to contain yet another attempt to undermine "termination rights," which grant artists the ability to regain control over copyrights they've assigned away after 35 years.
Termination rights are, under U.S. law, an inalienable counterweight to the power imbalance built into many content industry contracts. Not surprisingly, those same industries have been pushing for years to eliminate these rights, including a notorious 1999 incident where a Congressional staffer, later hired as an RIAA lobbyist, snuck anti-artist language into an entirely unrelated bill.
Termination rights aren’t the sexiest part of the copyright scheme, but they matter for artists—especially musicians. But if a trade agreement mandates the unencumbered contractual transfer of economic rights without legal limitations—as contemplated in the TPP—then existing rights granted to artists under U.S. law could be deemed out of compliance.How Musicians Can Take Their Copyrights Back
Artists and other creators transfer their copyrights all the time: musicians, for example, will assign some copyrights to their label, usually in exchange for an advance and agreed-to royalties. These contracts have been critiqued for perpetuating a huge power imbalance between the artist and the recording industry. Termination of transfer gives artists—as in, the original holder of the copyright, before it is assigned to anybody else—a way to get out of those deals. Thirty-five years after publication, the original copyright holder can terminate the transfer of rights and once again claim exclusive rights to her work.The Recording Industry's Efforts to Kill Termination Rights
Record companies have long been concerned that as the termination rights became available, artists would try to get out of deals they deemed unfair. That's come to a head in 2013, the 35th year since the Copyright Act came into effect in 1978 (and so the first time artists have been able to take advantage of these termination rights). Victor Willis of the Village People successfully terminated the copyright transfers of many of his recordings, including “YMCA,” but for many musicians, securing termination has been a difficult and litigious affair, fraught with legal technicalities. For example, in 2010, a court found that Bob Marley’s pre-1978 recordings were not entitled to termination, denying his family the chance to reap the benefits of owning copyright in many of his now-iconic songs.
Why the complexity? After all, termination rights are supposed to be inalienable: according to the statute, any contract provisions waiving these rights is unenforceable. To borrow language from the TPP, U.S. law does not allow “free” and “separate” transfer of “that right by contract.” But termination rights are also limited in nature: they are not granted to employees that create works within the “scope of their employment,” or to independent contractors who create contractual “works-for-hire”—which are limited to a very specific, enumerated list within the Copyright Act.
But that list does not include sound recordings. Thus, the recording industry's attempts to restrict termination rights have primarily taken two forms: either challenging termination rights directly, or changing the definitions of things, by reclassifying sound recordings as works-for-hire, musicians as employees, or (seriously!) albums as "compilations" instead of individual songs—each of which would seriously restrict the ability of musicians to exercise termination rights.
In 1999, for example, a Congressional staffer named Mitch Glazier took the reclassification route by surreptitiously adding a provision to an unrelated bill that amended the Copyright Act to include sound recordings as works for hire. The bill passed, and just three months later, the staffer was hired by the RIAA. The ensuing outrage from artists resulted in a rare legislative reversal: the Glazier amendment was repealed.TPP as New Weapon of Choice
The section of the TPP labeled QQ.G.9 appears to be a more direct challenge to termination rights. It says:
Each Party shall provide that for copyright and related rights, any person acquiring or holding any economic right in a work, performance, or phonogram: may freely and separately transfer that right by contract; and by virtue of a contract, including contracts of employment underlying the creation of works, performances, and phonograms, shall be able to exercise that right in that person's own name and enjoy fully the benefits derived from that right.1
The termination right, of course, is a limit on free transfer. As a result, instead of a narrow attack on the termination rights of musicians by reclassifying their works as “works-for-hire,” the text here could eliminate termination rights for everyone. It is an open question whether QQ.G.9 would actually mandate such a significant change in U.S. law, but it is worth noting that the provision specifically targets “phonograms”—legal jargon for sound recordings. Furthermore, an addition proposed by Chile seems to have been designed to mitigate the possibility of broad scale legal changes, leaving us concerned about the ramifications of the current language.
Was this TPP provision written to finish the work started fourteen years ago? The RIAA (which still employs Mitch Glazier) has certainly been influential in the TPP negotiations, and has well-documented ties to the US Trade Representative’s office. But we have no way to know for sure, and it is possible that QQ.G.9 is only intended to lay the groundwork for the U.S. Trade Representative to place similar language in the still nascent Trans-Atlantic Free Trade Agreement and erode the robust set of inalienable rights present in EU copyright.We Need Transparency
Regardless of the intent behind the provision, it is clear that the lack of transparency regarding the TPP is a problem. In 1999, much of the outrage was directed at the manner in which the Glazier amendment was added to an unrelated bill—“No hearings were held, no public debate took place, and no member of Congress sponsored the act[ion].”
When intellectual property policy is taken up in the trade context, that very lack of democracy and transparency becomes the standard. The Trans-Pacific Partnership Agreement—indeed most bilateral and plurilateral trade agreements—are negotiated in secret by unelected officials. Citizen stakeholders are locked out of discussions, the text is inaccessible to the public until it is finalized, and the final product is often railroaded through Congress with little more than a rubber stamp thanks to a mechanism called Fast Track Authority.
The game has been rigged so that the options are limited for those who are affected by QQ.G.9. Indeed, we owe a debt to WikiLeaks: if they had never published the text of the agreement, opposition to the bill would be based on much shakier information. But leaks are not a substitute for transparency and accountability.
The Trans-Pacific Partnership is inherently anti-democratic, and is being used as a forum to rehash and launder in policies that have already been blocked by democratic processes. What QQ.G.9 shows is that the secrecy surrounding the TPP is not just a threat to the Internet and to Internet users. It is a threat to creators, musicians, artists, and copyright-holders as well.
Sarah Jeong is a Harvard Law student who previously worked with EFF's International team. Follow her on Twitter.
- 1. The brackets indicating opposition by six countries to the inclusion of “performances” in this provision were removed to in order to make the provision easier to read. The full text is available from WikiLeaks.
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US Copyright Office Supports Artists Getting Paid Multiple Times For Same Work, Harming New Artists To Benefit Established Ones
Here's the basic theory behind it (which is wrong, as we'll explain after). When an artist is new, they're not well-known, and people are not willing to pay very high prices for their works. So, people buy them up for very low prices. However, as that artist becomes more well established and successful, the price of their older works increases (sometimes significantly) as well. And the buyers who purchased their original works for very little money, can now resell them to others for very large sums -- and the original artist gets none of that. Thus, by adding an "artist resale royalty," it guarantees that an artist later benefits from the appreciation in price of his or her earlier works.
Now, here's why that theory is complete bunk -- and such resale rights are actually more harm than good for artists. First off, this punishes the early risk-taking buyers who are willing to buy the artwork of no name artists, by making it clear that they are going to have an extra tax (the royalty they need to pay back to the artist) on any future sales of the work. Like any tax, this decreases the amount they're willing to pay initially, as well as the amount of the activity they're willing to engage in. So, at a time when artists need those sales the most -- when they're just starting out -- an artist resale royalty drives down the demand for their works by deliberately making their artwork a worse investment. Furthermore, this depreciating impact carries through on all future purchases as well. It's braindead and harms those artists who need the sales the most.
But, people will ask, what about those "poor" artists who see their early works, which they sold for hundreds, now selling for millions. Isn't that unfair? Well, not really. First, if their early works are selling for millions, you can bet that there's a pretty big market for any new works as well. And, now, when they do create a new work, they can take it to market directly themselves, and get that same huge return. This is a good thing, as it also encourages new works by those artists.
Also, as a point of comparison, I would imagine that no artist would ever accept the idea that if a buyer later resells their artwork for a loss that the artist should then pay the original buyer for the failure of the artwork to appreciate. But if you think a resale royalty makes sense, why wouldn't the same be true if the artwork declines in price?
In the end, implementing an artist resale royalty significantly harms the market for new and struggling artists, making it a worse investment to buy their works. Instead, it diverts significant money in the artworld to already successful artists, and gives those artists fewer reasons to create new artwork, since they're able to profit off of ongoing sales of their years old works. On top of that, it's just generally insulting to the basic concept of ownership, and the fact that when you sell something, you no longer own it.
Still, some of those big name artists have been lobbying hard to change the laws around the globe in favor this very stupid concept. They have a group called the Artists Rights' Society, and hired Bruce Lehman to be their main lobbyist. If you don't recognize the name, Lehman is the guy behind the DMCA, who has long been a massive maximalist in all forms of intellectual property -- and he's not ashamed to admit it, or to attack those who point out that maximalism has downsides. For example, he once threatened to rip out Prof. James Boyle's throat, after Boyle pointed out the dangers of the DMCA, and then said that he would make sure that Boyle was denied tenure.
Unfortunately, Lehman is still a voice that people in the Copyright Office listen to, and last year he was successful in convincing the Copyright Office to revisit the issue of resale royalties. The Copyright Office has now come out with its report on the matter, and despite having rejected the concept in 1992, is now much more supportive of the idea. They do this, even while recognizing the negative impact as described above: It does appear that most of the direct benefits created by resale royalty schemes inure to artists at the higher end of the income spectrum. “Researchers are virtually unanimous” that the “distribution of payments under an ARR regime is greatly skewed” in favor of a minority of established, blue-chip artists. But they immediately dismiss this, by noting that this is no different than our existing copyright system for authors and musicians. Of course, rather than recognizing that this is a problem of the current copyright system, the report seems to assume that this means the fact that the system unfairly benefits those at the top at the expense of those at the bottom, that it's a perfectly fine system. The report does an awful lot of "on the one hand/on the other hand" statements, before noting that either the data has been inconclusive, or pointing to more general evidence that places with a resale royalty that haven't seen their markets collapse is somehow evidence that the downsides might not be so bad.
In the end, the report "supports Congress's consideration of such legislation" (meaning that such legislation will show up very soon -- as you can bet it's all ready to go, likely written by Lehman, and sitting in a drawer somewhere in the Capitol). The report does say that there may be other ways to "accomplish these goals" which may be more effective than legislation, but you can bet that line will quickly be ignored by the politicians and lobbyists supporting this plan.
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Thus, it's really unfortunate that Google so quickly removed such a great feature. Google claims the feature was "released by accident." You could see how some app developers might be upset about such a feature, but hopefully not the good ones. If anything, this will drive app developers to be much more protective and careful both in how they design their apps and in how they explain the need for data access to users. As Eckersley notes, the right thing for Google to do here is to re-enable this feature. The fact that it released it, shows that they've actually been working on it and have the code. Hopefully, the true story for why it was removed was merely that the code wasn't quite ready, and that the code will be returned in the near future. In the meantime, however, those who jailbreak or root their device can get the same functionality -- but hopefully it will become standard on Android before too long.
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Gordon Crovitz has an excellent column in today’s Wall Street Journal in which he accurately diagnoses the root cause of our patent litigation problem: the Federal Circuit’s support for extensive patenting in software.
Today’s patent mess can be traced to a miscalculation by Jimmy Carter, who thought granting more patents would help overcome economic stagnation. In 1979, his Domestic Policy Review on Industrial Innovation proposed a new Federal Circuit Court of Appeals, which Congress created in 1982. Its first judge explained: “The court was formed for one need, to recover the value of the patent system as an incentive to industry.”
The country got more patents—at what has turned out to be a huge cost. The number of patents has quadrupled, to more than 275,000 a year. But the Federal Circuit approved patents for software, which now account for most of the patents granted in the U.S.—and for most of the litigation. Patent trolls buy up vague software patents and demand legal settlements from technology companies. Instead of encouraging innovation, patent law has become a burden on entrepreneurs, especially startups without teams of patent lawyers.
I was pleased that Crovitz cites my new paper with Alex Tabarrok:
A system of property rights is flawed if no one can know what’s protected. That’s what happens when the government grants 20-year patents for vague software ideas in exchange for making the innovation public. In a recent academic paper, George Mason researchers Eli Dourado and Alex Tabarrok argued that the system of “broad and fuzzy” software patents “reduces the potency of search and defeats one of the key arguments for patents, the dissemination of information about innovation.”
Current legislation in Congress makes changes to patent trial procedure in an effort to reduce the harm caused by patent trolling. But if we really want to solve the trolling problem once and for all, and to generally have a healthy and innovative patent system, we need to get at the problem of low-quality patents, especially in software. The best way to do that is to abolish the Federal Circuit, which has consistently undermined limits on patentable subject matter.
So, to get this straight: you have a government welfare project, spending tens of millions of pounds on a proprietary system that was built for a different purpose than what they needed, and it was so inflexible that they have to scrap the whole thing and now start all over again. At least they're using open source technology this time, but it really sounds like these guys are somewhat technologically clueless and got taken for a ride by some tech vendors who saw easy money the first time around. Hopefully they're not using the same guys for this open source project.
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One of the best ways to deal with online piracy is to make content available legally.
This is common knowledge by now, but copyright holders still believe that exclusivity can earn them more in the long run, even when it hurts legitimate customers.
A good example of this twisted reasoning is Disney’s decision to make certain Christmas videos unavailable on Amazon because they want people to tune in to their TV channel instead. This ban is not limited to new customers and includes those who already purchased the videos.
One of the affected customers of Disney’s restrictive policy is Bill, who informed BoingBoing that the Christmas themed ‘Disney Prep & Landing’ he bought for his kids last year had been pulled from his library.
“Amazon has explained to me that Disney can pull their content at any time and ‘at this time they’ve pulled that show for exclusivity on their own channel.’ In other words, Amazon sold me a Christmas special my kids can’t watch during the run up to Christmas,” Bill notes.
“It’ll be available in July though!” he adds.
Those who go to Disney Prep & Landing’s Amazon listing now get the following notice: “Due to our licensing agreements this video is currently not available for purchase or rental.” And that’s not the only title that has been pulled, the same notice also appears for other Disney Christmas videos such as ‘The Muppet Christmas Carol‘ and ‘Beauty And The Beast: The Enchanted Christmas.’
Appropriately enough, Disney decided to allow people access to the Ebenezer Scrooge story, as Disney’s a Christmas Carol remains available for now.
No Merry Christmas
Amazon appears to be torn by the situation and Bill says that he received “a very generous credit” to purchase another Christmas movie for his kids.
According to Cory Doctorow, however, Disney is not the only one that deserves blame for this customer-unfriendly practice. He notes that Amazon should have never allowed copyright holders to make purchased content unavailable to begin with.
“Yes, Disney is stupid and evil for doing this. But when Amazon decided that it would offer studios the right to revoke access to purchased videos, they set the stage for this,” Doctorow comments.
“This is what was set in motion in the 1970s, when we started using the term ‘intellectual property’ instead of ‘copyright’ or ‘author’s monopoly.’ If the movie is Disney’s ‘property’ for ever and ever, it follows that it is never your property, no matter that you ‘buy’ it,” Doctorow adds.
Adding to the above, it is questionable whether Disney will win anything with this move.
Aside from annoying customers who can no longer watch their purchases, all the titles Disney pulled from Amazon are widely available through unauthorized channels. As a result, it wouldn’t be a surprise if Disney’s actions cause a bump in piracy for these movies.
That said, I'm quite confused as to how this online ad for Democracy 3, a game produced by Positech Games, somehow tripped whatever alarms were in place with whoever was tasked with placing the advertisement.
This was apparently enough for the ad company to tell the developer that they couldn't place the ad because they "can not promote any politics as this is a sensitive subject." Now, if one were to copy the URL for that image from the link provided, you'll notice that it's labeled as "Gamestop_rect.jpg". That doesn't mean for sure that Gamestop, or the people in charge of their online ads, is refusing this, but it seems somewhat likely.
Likely, yet irrelevant, because what the hell is in that advertisement that could possibly be construed as a political statement? The folks at Positech Games seem equally confused. WTF? I bet ads for games like hitman, or GTA, or games where you get slow-mo closeups of people’s skulls being blasted apart by high-caliber bullets are just fine. But discuss income tax? OH NOES THE WORLD WILL END! I saw a clip of mortal kombat on that charlie brooker doumenatry that made me feel sick, but apparently we as an industry are just FINE with that… It’s stuff like this that sometimes makes me ashamed to be in this industry. Half of the industry wants to be grown up and accepted as art, the other half have the mentality of seven year olds. I’m pretty cynical, but I never expected my ads for a game about government-simulation to be too controversial to be shown (for money no less…).
My next game will be gratuitous homicide battles. I bet everyone will let me promote that one eh? Even if it was the content of the game itself that tripped off the warning bells, we're really living in a country where a game about politics can no longer be sold through online ads because too many of our fellow countrymen are mouth-breathing fanatics? No, that's stupid. That kind of pussyfooting needs to be exposed, highlighted, and summarily done away with, because if we can't have that kind of speech due to corporate cowardice, we're all in for a world of dumb when it comes to political thought in this country.
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Gravity is the most downloaded movie this week.
The data for our weekly download chart is collected by TorrentFreak, and is for informational and educational reference only. All the movies in the list are BD/DVDrips unless stated otherwise.
RSS feed for the weekly movie download chart.Week ending December 15, 2013 Ranking (last week) Movie IMDb Rating / Trailer torrentfreak.com 1 (…) Gravity (DVDscr) 8.4 / trailer 2 (1) Riddick 6.6 / trailer 3 (2) The Family 6.4 / trailer 4 (…) Frozen (TS) 8.1 / trailer 5 (3) Prisoners 8.1 / trailer 6 (4) Captain Phillips (Webrip) 8.1 / trailer 7 (6) Insidious Chapter 2 7.0 / trailer 8 (9) Red 2 6.9 / trailer 9 (8) Elysium 7.0 / trailer 10 (10) The Wolverine 6.9 / trailer
Starting out at thepiratebay.org in 2003, it switches addresses nowadays as soon as one is threatened. However, the fact that Internet addresses can be censored like this is a large problem.
The copyright industry has been pushing relentlessly for the ability to censor sites they don’t like. Unfortunately, through a mix of digitally illiterate politicians who don’t understand that they’re creating censorship, and digitally literate bureaucrats who want to create this kind of censorship if they can get away with it, several legislatures and administrations have agreed to the insane demands of the copyright industry.
It’s not just bad because it blocks access to The Pirate Bay – because it doesn’t. It’s bad because it creates a precedent of how administrations and legislatures can, and should, deal with publishers they don’t like for whatever reason.
For once the censorship regime is in place, you won’t think for a second that it will stop at culture-sharing sites, would you? Once such a tool is available in the bureaucrat toolbox, it will be applied to anything and everything considered insubordinate or troublesome.
There is a reason the copyright industry loves child pornography so much – the reason that industry lobbied hard to create censorship of child abuse sites, actively hiding the problem and preventing assistance. They knew politicians wouldn’t dare disagree on such a toxic subject, and once the box was open, “other illegal sites” – those that circumvent the harmful copyright monopoly – were next in line. In reality, the culture-sharing hubs had been the target all along, and mentioning “child pornography” had merely been a battering ram to get the censorship started – notwithstanding that the censorship actually creates more child abuse and protects predators, something the copyright industry doesn’t care about at all.
Governments would not hesitate to build further on such a censorship regime. In Finland, meta-discussions about the child pornography censorship were themselves placed under censorship – effectively censoring political discussion that was embarrassing to the administration. In the UK, censorship that started as “violent pornography” has crept to “all pornography”, already censoring a lot of political opinion under that definition, and crept further into “extremist views” and other clearly political material.
It doesn’t take rocket science to see where this is going. And the copyright regime is pushing for an actively-censored society to protect their monopolistic and parasitic business interests. It is therefore, exactly therefore, that the free society stands or falls with our defense of sharing knowledge and culture, and activists like the operators of The Pirate Bay.
In their wannabe censorship regime, the copyright industry has attacked the DNS infrastructure, one of few systems on the Internet that is relatively centralized. Wisely, activists with The Pirate Bay have therefore announced a browser package that makes DNS censorship utterly ineffective.
Now, one could argue that this is a technically advanced solution that would challenge ordinary people’s uptake. While such an observation would be correct, it doesn’t really matter: 250 million Europeans and 150 million Americans have learned to use BitTorrent, which is far from a walk in the park. The demand for sharing is so great that entire generations gladly climb the learning curve without blinking. Any new censorship attempt has always resulted in more traffic to the culture-sharing hubs. It would be a safe prediction to say that a permanent anti-censorship device would be quickly taken up.
Therefore, the copyright industry’s screams for censorship are actively driving the defense of a free society. While I have absolutely nothing positive to say about the copyright industry, it’s heartwarming to see the battle for a free society take place in a location where people actually mount a defense, and make sure that censorship can always be circumvented.
For if such censorship can be circumvented for culture-sharing sites – and it can, and it will – then we still have some hope of communicating insubordinate political opinions in the future, too.
About The Author
Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish and first Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at falkvinge.net focuses on information policy.
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