So Much For Going Dark: FBI Using Social Media, E-Commerce Sites To Track Down Suspects (Including Non-Lawbreakers)

from the where's-the-darkness dept

You know the drill, right? The FBI keeps insisting that it has a "going dark" problem due to encryption making it impossible to access key evidence of supposedly criminal behavior, in theory allowing crime to happen without recourse. The problem, though, is that nearly every single bit of this claim is false. It's kind of stunning.

• It appears that, in practice, the FBI almost never runs into encryption.
• In the rare cases where it has (and we don't know how many because since the FBI admitted it over exaggerated how many "locked" devices it had, and then has since refused to provide an updated count), there do appear to be ways to get into those devices anyway.
• But the key issue, by far, is that the opposite of going dark is happening. Thanks to our increasingly electronic lives, the government actually has way more access to information than ever before.

Two recent articles highlight this in practice, with regards to the FBI trying to track down the rare cases of criminal activity happening around some of the protests. The local ABC affiliate in Philadelphia has the fairly remarkable story of how the FBI used Etsy, Poshmark and Linkedin to track down someone suspected of torching two Philadelphia police cars. How would those sites be useful? Well:

In amateur photos given to authorities, she is seen wearing a T-shirt that says, "Keep the immigrants, deport the racists."

They were able to trace the T-shirt back to an Etsy shop, where a review was left by a user that displayed a Philadelphia location.

Investigators say open searches for the username led them to a Poshmark user by the name of lore-elisabeth. Open searches for a Lore Elisabeth in Philadelphia led investigators to a LinkedIn profile for a woman who was employed as a massage therapist.

And, then they checked the website of her employer, which... included a few videos of a woman who matched the photographs of the woman lighting the cop car on fire.

None of that would have been possible in that way pre-internet. The FBI doesn't have a "going dark" problem at all. They have more light than ever before. Indeed, it seems a bit more darkness and privacy would be useful, because in some cases, the FBI seems to completely overreacting to otherwise fine (or, in some cases, joking) social media posts.

And that brings us to the second story, from NBC News, detailing the FBI trawling social media to arrest protesters they claim tried to incite riots at various (mostly peaceful) protests. Of course, the details suggest that the FBI may have an itchy trigger finger in freaking out about what people are posting, as the story details many of the charges are being dropped after the facts come in and the overzealous FBI appears to have overreacted. Indeed, it looks like they're arresting people entirely based on social media posts, which raises some pretty significant 1st Amendment questions. Or at least it would, if prosecutors didn't realize what a mess they'd caused and dropped the charges quickly.

Avery is one of four known people across the United States indicted on charges of incitement to riot solely on the basis of social media posts, according to federal court records. One man was charged for posting a crude napalm recipe that is widely available online. His charges were dropped several days later. Another man was questioned by the FBI for jokingly tweeting that he was the local head of antifa — a loose anti-fascist and left-leaning political movement with no clearly-defined organization, structure or leadership.

Taken together, the cases offer some insight into how federal law enforcement continues to monitor online speech related to social movements and pursue what legal experts say is a fairly aggressive approach to prosecution.

The charges against Avery were suddenly dropped without explanation Wednesday.

In other words, the problem does not appear to be "going dark." The problem appears to be so much sunlight that the FBI is finding "crimes" where none actually exist...

Filed Under: arrests, fbi, investigations, social media
Companies: etsy, facebook, linkedin

Why Is The NYC MTA Going After A Random Artist Who Created A Different Subway Map For Infringement?

from the seriously? dept

It's been a while since we last wrote about the New York City Metropolitan Transportation Authority (MTA), but in the past, it's always been for incredibly stupid reasons. There was the time it claimed it owned the facts of its schedule and went after someone who created a better scheduling app. There was the time it claimed that its "unlimited rides" card really meant no more than 90 rides. We didn't write about this other one, but a few years back, the MTA actually sued a bagel place for calling itself "F Line Bagels." And now we have it filing an incredibly questionable copyright takedown notice over someone making a nicer subway map.

The NYC Subway map is fairly iconic, but that has never stopped people from making their own variations. Indeed, making new subway maps of NYC and many other metropolitan train systems is something many people do (there's even a -- somewhat addictive and amazingly fun -- subway map design simulation game called Mini Metro). Jake Berman is one of many people who redesigned the NYC subway map, after getting upset with the official MTA subway map. His map is consider so useful compared to the official one, that the Wikipedia page for the NYC subway map shows his directly next to the official map:

That's Berman's map on the left there. And he has it in a few places, including Etsy. And for unclear reasons, the MTA sent a copyright infringement takedown notice over the map. The Vice article, linked above, includes one of the best quotes ever about this kind of thing from copyright lawyer Thomas Kjellberg:

“The basic question [for the MTA]” offered Thomas Kjellberg, an intellectual property attorney with the law firm Cowan, Liebowitz, and Latman, “you guys really give a shit?”

There are obviously strong fair use arguments here, as well as strong arguments about whether or not anything in Berman's map is actually infringing. While the MTA claims that his map copies a specific style of NYC subway map, the so-called Vignelli map, the currently used version of the Vignelli map from the MTA, was actually created after Berman's map was created:

“Yes, there are minor differences between your map and the MTA map,” Freundlich wrote in his email. “But given your access to the MTA map on the MTA website, and the substantial similarities of your map to the MTA map, the only rational conclusion is that your map is based on the MTA Vignelli map.”

But there is a potentially critical flaw in that logic. The MTA created The Weekender in 2011, two years after Berman created his map, which he uploaded to Wikipedia in 2009.

Even so, Berman thinks his map stands alone on its merits. “Even assuming that I had a time machine,” he wrote via email, “they're not the same thing.”

It helps that Berman, himself, is actually a lawyer. He seems to understand that whatever may have been "copied" here certainly wasn't copyrightable.

To prove his case, Berman listed eight differences between his map and Vignelli’s. For example, they display lines running along the same route differently. Berman uses different symbols for trains that only stop on nights and weekends. Vignelli uses “gentle curves” whereas Berman uses “hard angles.” Berman shows streets and labels neighborhoods. They use different colors and shapes for geographic landmarks. He went on, and added that he could have continued to go on for much longer.

“In general, the only major similarities are that both are subway maps and both use 45-degree angles in our diagrams, which has been standard transit map practice since 1933,” Berman asserted. “It’s certainly not copyrightable.”

The bigger question, still, is why? Why does the MTA care? Yes, it can sell some Subway map posters, but honestly most people probably want to buy the official one -- not some random dude's (even if it is a nice map). The article also notes that there are a ton of other NYC subway maps on Etsy that the MTA didn't go after.

The whole thing is so strangely stupid. Even if you could (and you shouldn't) argue that because he was selling prints, that somehow harms the MTA's own merch and licensing business, as Vice points out, that's a negligible source of revenue for the MTA anyway.

But there's an even larger point here: as we've discussed many times in the past a government agency doesn't and shouldn't need copyright. It has perfectly practical incentives for creating a map: to get people to use the Subway. That's how it makes its money. It should want more people creating compelling maps that get more people to ride the subway. And, instead of fixing the incredibly broken down Subway system, it wants to waste its time on this nonsense?

Filed Under: copyright, fair use, jake berman, mta, nyc, subway, subway map, vignelli map
Companies: etsy

Everyone Creates: New Empirical Data Shows Just How Much The Internet Has Enabled A New Creative Economy

from the it's-not-tech-v.-hollywood dept

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »

Just last week we announced our new site EveryoneCreates.org, in which we showcase stories of people who rely on the open internet and various internet platforms to create artwork of all kinds -- from music to books to movies to photographs and more. It appears that we're not the only ones to be thinking about this. The Re:Create coalition has just now released some fantastic economic research about the large and growing population of people who use internet platforms to create and to make money from their creations. It fits right in with the point that we made, that contrary to the RIAA, MPAA and its front groups like "Creative Future," the internet is not harming creators, it's enabling them by the millions (and allowing them to make much more money as well).

Indeed, the report almost certainly significantly undercounts the number of content creators making money on the internet these days, as it only explores nine platforms: Amazon Publishing, eBay, Etsy, Instagram, Shapeways, Tumblr, Twitch, WordPress and YouTube. Those are all great, and probably cover a decent subset of creators and how they make money -- but it leaves off tons of others, including Kickstarter, Patreon, IndieGogo, Wattpad, Bandcamp, Apple, Spotify and many other platforms that have increasingly become central to the way in which creators make their money. Still, even with this smaller subset of creative platforms, the study is impressive.

14.8 million people used those platforms to earn approximately $5.9 billion in 2016.

Let's repeat that. The internet -- which some legacy entertainment types keep insisting are "killing" content creators and making it "impossible" to make money -- enabled nearly 15 million people to earn nearly $6 billion in 2016. And, again, that doesn't even include things like Kickstarter or Patreon (in 2016 alone, Kickstarter had $580 million in pledges...). In short, just as we've been saying for years, while those who rely on the old legacy gatekeeper system of waiting until you're "discovered" by a label/studio/publisher and then hoping they'll do all the work to make you rich and famous, maybe that's a bit more difficult these days. But, for actual creators, today is an astounding, unprecedented period of opportunity.

This does not mean that everyone discussed here is making a full-time living. Indeed, the report notes clearly that many people are using these platforms to supplement their revenue. But they're still creating and they're still making money off of their creations -- something that would have been nearly impossible not too long ago. And, just as the report likely undercounts the size of this economy due to missing some key platforms, it also misses additional revenue streams even related to the platforms it did count:

It is impossible to determine an average income for members of the new creative economy, because earnings vary so widely for each platform. As previously stated, this analysis includes only a single source of income for each of the nine platforms. For instance, based on the current data, we include a YouTube star’s earnings from YouTube but not revenues as influencers or advertisements on other social media platforms.

Also interesting is how the report found that creators are spread all over the US. While California, New York and Texas have the most creators, even those with the "smallest" numbers of creators (Wyoming and the Dakotas) still had tens of thousands of people using these platforms to make money. And, yes, in case you're wondering, the study excluded big time stars like Kim Kardashian using platforms like Instagram to make money, focusing instead on truly independent creators.

This is especially important, as it's coming at a time when the RIAA, MPAA and their friends continue their nonsensical claims that these very same internet platforms are somehow "harming" content creators, and that laws need to change to make it harder for everyday people to use these platforms to express their artwork and to make money off of it. It's almost as if those legacy gatekeepers don't like the competition or the fact that people are realizing they don't need to work with a gatekeeper to create and to make money these days.

So, once again, it's time to dump the ridiculous myth of "tech v. content." That's not true at all. As this report shows, these tech platforms have enabled many millions of people to earn billions of dollars that's only possible because they're open platforms that get past the old gatekeeper system.

Share your story at EveryoneCreates.org to let policymakers know how important an open internet and fair use is to your own creativity.

Filed Under: copyright, creative economy, everyone creates, internet, platforms
Companies: amazon, automattic, etsy, indiegogo, instagram, kickstarter, patreon, shapeways, tumblr, twitch, wordpress, youtube

Reddit, Amazon Push For 'Day Of Action' On July 12 To Protest The Killing Of Net Neutrality

from the something-vaguely-resembling-accountability dept

So as we've been noting, a lot of people remain under the impression that companies like Google and Netflix still support net neutrality, and they'll be rushing in any moment now to help thwart the FCC's latest attempt to kill the rules. In reality, Techdirt readers know that Google hasn't actually supported net neutrality since around 2010 or so. Netflix, also perceived as a consumer ally on the subject, made it clear recently that it no longer sees the need to fight for net neutrality now that it's an international video powerhouse. The company's shift from disruption engines to slightly myopic legacy turf protectors should surprise nobody.

That said, Google and Netflix's departure from the conversation left many net neutrality advocates wondering if any bigger companies would be willing to lend a hand in the latest chapter in the debate. Amazon managed to answer that question this week by throwing its weight behind a July 12 "Day of Action" being coordinated by consumer advocacy group Fight For the Future. According to the group's website, Amazon will join Reddit, Etsy, the ACLU, California ISP Sonic, Mozilla, Kickstarter, BitTorrent, Github and Vimeo for a day of protest -- both online and off -- against the FCC's plan to gut the popular consumer protections.

The plan appears to be to mirror the Internet Slowdown Day back in 2014. You'll recall that that effort, which involved numerous major websites warning their visitors about the threat to net neutrality via site banners, helped convince Tom Wheeler to stop half-assing things, and classify ISPs as common carriers under Title II of the Communications Act (giving them the adequate legal authority to enforce the rules). His decision was subsequently supported by the courts.

The problem, of course, is that Tom Wheeler was a bit of a rare bird in technology government policy circles. In that when presented with quality evidence that conflicted with his world view, he was actually willing to change his position and do the right thing -- even in the face of giant ISP lobbying pressure. It's part of the reason that Wheeler went from dingo to internet hero in relatively short order, breaking free of a long line of timid, bipartisan telecom industry sycophants heading the agency. There's zero indication so far that new FCC boss Ajit Pai has any of the qualities that made Wheeler popular.

Still, the companies and consumer advocacy firms hope the effort can still generate something vaguely resembling SOPA-esque accountability for Pai's plan to ignore the public interest and kill the rules:

"The effort is led by many of the grassroots organizations who have organized the largest online protests in history including the SOPA blackout and the Internet Slowdown," notes Fight the Future. "The day of action will focus on grassroots mobilization, with public interest groups activating their members and major web platforms providing their visitors with tools to contact Congress and the FCC."

The FCC is fielding comments on its plans to kill net neutrality until August 18, ahead of a finalizing vote to kill the rules later this year.

Filed Under: broadband, day of action, net neutrality
Companies: aclu, amazon, bittorrent, etsy, fight for the future, github, kickstarter, mozilla, reddit, sonic, vimeo

Patent Troll Sues Everyone For Infringing On Encryption-Related Patent By Encrypting Their Websites

from the um,-we-actually-offer-no-encryption-services-of-our-own.-sorry. dept

Underdog Texas company takes on corporate giants!

Scores of big brands – from AT&T and Yahoo! to Netflix, GoPro and Macy's – are being sued because their HTTPS websites allegedly infringe an encryption patent.

It appears in May this year CryptoPeak Solutions, based in Longview, Texas, got its hands on US Patent 6,202,150, which describes "auto-escrowable and auto-certifiable cryptosystems."

CryptoPeak reckons TLS-secured websites that use elliptic curve cryptography are infringing the patent – so it's suing owners of HTTPS websites that use ECC. Top tip: loads of websites use ECC these days to securely encrypt their traffic.

CryptoPeak, of course, offers no cryptography products. It does, however, manage a portfolio of 66 lawsuits, all filed in the Texas Eastern District Court, beginning roughly 60 days after it acquired the patent. Among the illustrious names listed as defendants are PNC Financial Services, VUDU, Netflix, State Farm, Allstate, Petco, GoPro, Mary Kay, Target, Groupon, Williams-Sonoma, Etsy, Priceline… well, the list goes on and on and on.

All of these companies produce goods and services. CryptoPeak does not. The only thing it produces are lawsuits. The patent it's using in its litigation doesn't appear to actually cover the allegedly infringing activity it's suing over.

Perhaps crucially, [the patent] describes a means for "generating public keys" and "publishing public keys", and it's certainly true that ECC does involve generating public keys and using them.

But the patent is focused on "a key recovery agent to recover the user's private key or information encrypted under said user's corresponding public key" – which is really not the point of ECC.

Netflix, which has already moved to dismiss the suit against it, doesn't concern itself too much with the patent's supposed function. Instead, it argues the patent (along with the numerous lawsuits) should be invalidated/tossed because of other wording used in the patent paperwork itself.

The invalidity of the claims asserted here is cut and dry. The Asserted Claims recite “a method and apparatus.” Thus, a practitioner cannot know the scope of the Asserted Claims from reading them because they explicitly claim “separate statutory classes of invention,” an act expressly forbidden by the law. For this reason alone, these claims are invalid on their face, and the Court should declare so at this stage.

Netflix then points out the "method and apparatus" wording appears in multiple claims.


All of which should serve to kill the lawsuit and, possibly the patent, no matter how much the troll protests.

The defect in these claims is so glaring that CryptoPeak’s only choice is to request that the Court overlook the express words of the claims, construe the claims to read out certain language, or even correct the claims. CryptoPeak has done just that in its Amended Complaint, alleging that “[n]othwithstanding that [the claims] generically recite the existence of ‘apparatus’ in their preambles, each of the . . . Asserted Claims is a method claim . . . .” (Dkt. No. 21 at 4 (emphasis added).)

This request is improper and should be rejected. The Court must read the claims as written, “not as the patentees wish they [ ] were written.”

Seems like a solid argument, but CryptoPeak didn't file in this particular court just because it coincidentally happened to have rented a mailbox and an empty office in Longview, Texas shortly before filing the lawsuits. It filed in this court because magical things often happen for patent trolls -- wholly unrelated to the validity of their claims and their affected Texan accents. If this wasn't the case, then this particular district wouldn't be the IP shitmagnet that it is. If CryptoPeak can nail down a few settlements and licensing agreements, it makes the hassle and expense of serial filing worthwhile. And isn't that why our patent system was implemented in the first place?

Filed Under: encryption, https, patent troll, patents
Companies: at&t, cryptopeak solutions, etsy, gopro, groupon, macy's, netflix, petco, priceline, target, yahoo

Taylor Swift One Ups Katy Perry Again: Threatens To Sue Fans For Etsy Fan Products

from the because-intellectual-property dept

In the world of pop starlets, apparently Taylor Swift and Katie Perry hate each other. And, now, it appears that both of them are trying to one-up each other in having their lawyers issue legal threats to fans for no good reason. We've already written about Katy Perry's lawyers' threatening letter over a 3D-printable plan for "the left shark" from her Super Bowl routine (an argument that is legally dubious).

And now it comes out that Taylor Swift's lawyers are threatening the singer's fans on Etsy who have been selling products celebrating the singer. As one Etsy seller told Buzzfeed:

We originally made the item for fun, we love Taylor and we had friends that love Taylor. We never intended for it to be a profit making item. The cost of the item covered shipping costs, and production costs with very little left over.

When we got the e-mail that the trademark infringement occurred, we were pretty shocked because while our item was popular we didn’t feel as if it had become popular enough to cause harm to Taylor Swift’s empire. We were shocked. And we were scared. We didn’t even make enough money for a lawyer and this had seemed like such a harmless and fun idea.

The Buzzfeed article also notes that it appears that Swift has hired MarkMonitor, the big player in sending takedown threat letters over copyright and trademark issues, to send such takedown letters.

Depending on the specific products, there may be some legitimate trademark or copyright claims here, but it's hard to see how any of these actually create any real benefit for Swift, other than pissing off her fans, and angering people who actually wanted to celebrate their fandom of Swift and her music. Yes, these days popstars like Swift are "big businesses" who want to capture every possible penny that they can get from fans, but these kinds of products aren't doing any real damage to Swift or her brand. The takedowns, however, might be the opposite -- creating a real distaste among some fans for daring to try to display their fandom in a unique and creative way.

Filed Under: copyright, fans, intellectual property, katy perry, taylor swift, threats, trademark
Companies: etsy, markmonitor

EFF Ranks Service Providers For Who Stands Up To Copyright/Trademark Bullies

from the good-to-see dept

We've written in the past about the EFF's Who Has Your Back rankings, in which it looks at various internet companies to see who protects your privacy against governments and lawsuits. Now, the EFF has come out with an offshoot chart, looking at who has your back when it comes to bogus copyright and trademark demands. The only two companies that get a perfect score are Automattic/WordPress and NameCheap, as you can see on the full chart. The worst, somewhat surprisingly, is Tumblr, which scored a big fat zero out of the five listed items.

Automattic's Wordpress.com and NameCheap were the only two companies to receive five out of five stars. However, two other companies were recognized for going the extra mile: Etsy, for providing educational guides, and Twitter, for publishing regular and thorough transparency reports. Overall, 10 companies did not publish adequate transparency reports, highlighting an information black hole for consumers. Additionally, four companies missed a star for their counter-notice practices—a critical procedure for restoring content that may have been taken down without cause.

Twitter lost a point for not documenting the counternotice process. Etsy lost a point for failing to have a transparency report (something I'm guessing the company will do before too long). Facebook also doesn't have a transparency report -- though it does have one for government requests, so hopefully it will expand that to copyright and trademark takedown requests as well. YouTube lost points for not requiring a DMCA notice (thank you ContentID) before taking down content. Imgur also doesn't require a DMCA notice (which surprised me).

The EFF's original "Who Has Your Back" effort really did help shame many companies into upping their game in protecting the privacy of users from government requests. Hopefully this new one will do the same for copyright and trademark takedowns.

Filed Under: copyright, policies, service providers, trademark, who has your back
Companies: automattic, eff, etsy, facebook, imgur, namecheap, tumblr, wordpress, youtube

Photographer (And Founder Of Copyright Enforcement Service) Angry That Online Service Won't Simply Hand Over User Info When He Demands It

from the i'm-ever-so-pissed dept

When you start viewing infringement as a personal offense against you and your creation(s), there's a good chance you'll start heading off the rails when attempting to do something about it. Techdirt reader Jorge sends in this impassioned, but clearly wrong, article at PetaPixel dealing with a photographer's attempt to track down the infringer behind an infringing product for sale at Etsy.

The title -- "Is Etsy the New Silk Road for Copyright Infringement?" -- clearly indicates the highly subjective and misguided statements contained therein. It also should be noted up front (rather than footnoted the way it is at PetaPixel) that the photographer writing the post is also the founder of PIXSY, a "service that helps photographers find and fight copyright infringement," by acting as a takedown service as well as an intermediary for the extraction of licensing fees. Photographer Daniel Foster opens the article with this:

While browsing through my image search results on PIXSY (a new service that finds and invoices image theft for you), I was surprised to see my picture for sale on Etsy (above). My immediate reaction:

1. What an ugly mousepad. I’d never print my photo like this.
2. The seller seems to be stealing thousands of photos. How could Etsy let this happen?
3. Who had the nerve to think they could do this?

The Etsy seller in question, Kharma Lu, apparently does nothing but print images on mousepads, cell phone/tablet covers and other flat surfaces. The sheer number of items for sale suggests infringement and Foster's experience definitely proves at least one product is. Foster obviously wants the product using his photo removed, and it is.

I sent both a DMCA takedown request (which Etsy complied with)...

That's hardly Silk Road-esque and the "story" should be over. But Foster wants more than compliance. This is where it's helpful to know up front that he is a founder of a service that helps photographers collect licensing fees. Foster isn't satisfied with the removal. He wants to find the seller.

...and a separate message to Etsy about the situation. I made sure to provide a copy of the photo source as well as a copyright registration certificate so that Etsy could be sure I am the rights owner. Maybe they would be able to identify the name and address of the seller?

(He states this with complete credulity, as though it were impossible for a non-copyright owner to attach a picture and a copyright registration to an email and start making demands...) Etsy won't reveal this information, not with a DMCA takedown request and not because someone demanded they do. After a couple of more discussions, Etsy points Foster at his legal options.

According to Danny, I would have to file a lawsuit and obtain a subpoena before Etsy would disclose Kharma Lu’s contact information. Yes, that’s right. In order to simply find out who is stealing my photo, I would have to a) hire an attorney, b) go to court and c) request a subpeona for Etsy. Assuming Etsy did not challenge the subpeona, it would cost at least $3,000- $5,000 just to get Kharma Lu’s address.

Foster gets the costs wrong (it's actually much cheaper, as he notes in an addendum posted towards the end) and also disingenuously declares in an email to Etsy that he assumes Etsy is "assuming the liability" for Kharma Lu's infringement by refusing to turn over the seller's information. Despite Foster's declaration that commerce "changes everything" and makes all seller information de facto public knowledge, Etsy is still under no obligation to turn over information it holds just because someone's sending angry emails. On top of that, doing so would likely violate Etsy's privacy policy. (Imagine Etsy passing this message along as part of Foster's Rules of Internet Commerce: "Hey, some angry guy said you were stealing his photos so we gave him your home address and phone number.")

He moves from severely dubious legal arguments to complaints about life not being fair.

LiilProducts’ shop is still active, even after I reported the copyright infringement to Etsy. Kharma Lu appears to have gotten away scot-free thanks to Etsy’s protection. This just isn’t right.

It may not be right, but neither is demanding service providers hand over customers' information without the proper legal authority. Sure, that may suck subjectively for Foster, but both the DMCA Safe Harbors and small legal barriers are there to deter abusive activity, not shelter infringers, no matter how victims of infringement spin it.

Foster sums things up with this ridiculous demand:

It’s time to clean up your act, Etsy. You can’t let your sellers steal from other artists and get away with it. At least have the decency to shut down seller accounts when the law is broken.

Foster doesn't actually attempt to verify whether the rest of the photos being used are infringing or not. He simply assumes that because his was, they all (or most of them) are. Etsy isn't willing to make the same mental leap and that makes him unhappy -- as a creator, but probably more importantly, as the founder of a service that's going to run into these built-in protections over and over again. His service markets itself as cost-effective and easy but the reality of the situation isn't quite so rosy. Once PIXSY starts telling users that they'll have to pay to file lawsuits and issue subpoenas in order to obtain infringers' info, they're not going to be any happier than Foster is.

Beyond all the palpable anger, there's a near-complete lack of effort on Foster's part. He did order one of his "own" mousepads in hopes of obtaining seller information but got nothing more than a shipping department address located in California.

Redditors commenting on his posted rant performed some ad hoc "due diligence," uncovering the home address linked to the registrant of the business listed at Etsy -- something Foster could have performed himself if he wasn't so obsessed with making Etsy do the highly subjective "right thing" in response to his complaints.

This lack of a thorough investigative effort also doesn't bode well for PIXSY. If its founder thinks the answer runs through third parties protected by safe harbors from the DMCA and Section 230, his service isn't actually of any use to photographers looking to police use of their photos. Actual infringers are the problem and they're harder to track down. It can be done, but you can't find them by banging your head repeatedly at the nearest corporate wall and demanding it bend to your will (and violate their own privacy policies).

Foster wants heaven and earth moved (seller info, account closed, etc.) because he can prove one product offered is infringing. That's what's actually ridiculous and infuriating -- not Etsy's policies.

Filed Under: copyright, daniel foster, dmca, information, privacy, takedowns
Companies: etsy, pixsy

Kickstarter, Etsy And Dwolla All Speak Out On Net Neutrality And Why The FCC's Plan Is Dangerous To Innovation

from the make-your-voice-heard dept

During this open comment period for the FCC's proposed rulemaking on net neutrality, it's been great to see hundreds of thousands of comments go in to the FCC on the matter. It's also been fantastic to see that a number of innovative startups have decided to speak out on how important an open and free internet is for being able to build their businesses, to innovate and to compete on the modern internet. They also point out that the current plan from Commissioner Tom Wheeler would put that all at risk. Here are three interesting ones worth mentioning.

First up, is Kickstarter. CEO/co-founder Yancey Strickler wrote a great opinion piece for the Washington Post along with a blog post highlighting the company's actual FCC filing, which is similar to the WaPo piece. Here's just a bit of it, but gives you a sense of why this is so important:

Kickstarter, like Wikipedia, Twitter and every other service on the Web, was built on the foundation of an open Internet. We would not exist without it. The more than 60,000 creative ideas that have been brought to life using Kickstarter — from new technologies to new restaurants to new symphonies — also depend on a free and open Internet.

Once a fast lane exists, it will become the de facto standard on the Web. Sites unwilling or unable to pay up will be buffered to death: unloadable, unwatchable and left out in the cold. It won’t be enough anymore to have a great idea and to execute it well. New entrepreneurs will have to pay their ISP tax, too.

Though Kickstarter is the largest and best-known “crowdfunding” platform, there are now dozens of similar sites out there. Competition is good. It inspires a better experience for customers. We’re happy to compete on the basis of our product. Under a paid-prioritization system, however, this kind of competition would end. Sites like ours would succeed or fail not on the basis of their passion or service but on whether they have the resources and desire to pay the big Internet carriers.

This proposed system would incentivize entrepreneurs to divert resources from their customers and staff and into paid deals with ISPs. Trading healthy competition for deep pockets is a terrible way to create an innovative, competitive economy.

That third paragraph is a key point that policy makers often don't get about the startup world. People in the startup world thrive on competition -- and they're happy with an open playing field because they believe in their own ability to out-innovate others. It's that sort of entrepreneurial spirit that makes such wonderful innovations online. The whole idea of putting up roadblocks for competitors is the type of thing that tends to happen later in a company's life, when they're less about innovating and expanding markets, and more about protecting their turf.

The end of net neutrality would make it easier for turf protecting, but make it much harder for the kind of open competition and innovation that drives so many entrepreneurs.

The next company is Etsy, the famed online marketplace, which has a blog post from Althea Erickson (the company's director of public policy) and a link to the company's comment with the FCC from CEO Chad Dickerson. Both are worth reading.

Etsy’s continued growth depends on equal access to consumers. Any rule that allows broadband providers to negotiate special deals with some companies would undermine our and our sellers’ ability to compete.

Etsy hosts over 25 million products; yet we are a low-margin business. We made a values-based decision to charge only $0.20 to list an item and 3.5% of every sale, much lower than other e-commerce platforms.

We spend considerable resources ensuring that large, high-resolution photos load quickly and efficiently. We have also considered offering our sellers the ability to create and share videos, which they could use to introduce themselves and the unique process behind their products. But our low margins would not allow us to pay for priority access to ensure our site loaded as quickly as rival sites if the FCC’s proposed rules went into effect.

If a consumer were to click on an Etsy shop and perceive delays in images loading or videos buffering, they would likely click away to another site, and our seller would lose that sale. We can’t predict the future of e-commerce or product innovations, but we want to ensure that Etsy sellers can reach buyers with the same technologies as any other online retailer.

Ultimately, the micro-businesses who sell on Etsy would suffer most if the FCC moves forward with this proposal. Most US Etsy sellers (88%) are women running micro-businesses out of their homes. Taken individually, they may be small, but together they sold over $1.35 billion worth of goods last year. The Internet has democratized access to entrepreneurship for a whole new cohort of Americans, and Chairman Wheeler’s proposal threatens to undermine this progress by creating a pay-to-play environment that gives even greater advantage to entrenched interests.

As with Kickstarter, Etsy is highlighting how the real impact will be on the users of these services, people who have been able to build tons of unique and wonderful businesses that mostly wouldn't have been possible before. They are now -- but they could be at risk if the FCC mucks this up.

The final company is payments company Dwolla, which posted its comment to the FCC from the company's founder and CEO Ben Milne. Here's an excerpt:

Dwolla supports an open Internet and we rely on it for the success of our business. Without an open Internet, companies, such as ours, would not be able to achieve the level of innovation made possible today. Technical discrimination and pay-to-play deals may directly harm Dwolla. We are working hard to develop our networks and scale our breakthroughs to the masses. Dwolla does not believe we can sustain our low-cost value proposition should a pay-for-priority come to fruition. We believe that there are legitimate concerns around the payments incumbents’ ability to outbid newer companies, such as ourselves, with existing cash on hand. Should we be negatively affected, Dwolla could be forced to increase transaction rates to our users, which conflicts directly with our low-cost business model. Additionally, Dwolla’s real-time payments service is dependent on the speed and reliability of payments. This impacts both us and our users. First, conducting business outside of the fast-lane would mean slower transactions and an impairment of one of our major competitive advantages; second, our users would not be able to transact amongst themselves with the same ease and assurances.

Government policy should encourage competition and innovation in payments processing, which would result in greater efficiency, speed and low-costs for businesses and consumers across the economy. The FCC should impose a rule against unreasonable discrimination, relying on Title II of the Communications Act. Technical discrimination and pay-for-play arrangements considered by the FCC will only stymie the types of innovation and creative solutions needed to address our country’s financial needs, which we believe the CFPB should encourage for the benefit of all consumers.

While so many like to pit the net neutrality fight as just a battle between internet giants like Netflix against broadband giants like Comcast, it's stories like the three above that show it's about much, much more than that. These three platforms have had tremendous success over the past few years, but in all three cases, the success is driven by the fact that they've enabled people and many thousands of small businesses and entrepreneurs to do things that simply weren't possible before. It's a powerful message that's often lost in this debate.

As a reminder there are just a few days left if you want to add your own comments for the FCC to consider. And, as a further reminder, our crowdfunding campaign for our net neutrality reporting is still ongoing. If you support it, it will allow us to dig deeper and explore how the potential rules might impact companies like those above and many others as well. And, if you pledge now, you'll have double the impact thanks to the matching funds that have been agreed to by some key donors.

Filed Under: competition, fcc, innovation, net neutrality, startups, title ii, tom wheeler
Companies: dwolla, etsy, kickstarter