Shameful: Tech Companies Fighting Against Necessary CFAA Reform And CISPA Fixes

from the bad-news dept

We've been talking a lot about the importance of CFAA reform lately, even highlighting how, under the CFAA, the founders of some of the most successful tech and software companies of our time could have been thrown in jail under the CFAA. For that reason, it's ridiculous and shameful that many of the largest software companies, via the powerful SIIA lobbying group, are fighting hard against CFAA reform. We've been hearing for a while that companies like Oracle and Adobe were particularly strongly against it, but the SIIA represents an awful lot of tech companies, many of whom otherwise seem to be in favor of CFAA reform. Certainly, in talking to engineers at many of these companies, they think the CFAA is ridiculous, turning ordinary everyday activity into a possible felony. But some of the execs at these companies see a weapon to be used against people who make off with digital information -- especially rogue employees (or ex-employees).

This is silly. The tech companies are refusing to fix a very dangerous and broad law, because of a very specific circumstance that can be dealt with via other existing laws. Also, it's going against basic common sense and the views of many of these companies' own engineers. When companies are so focused on protecting one weapon that they're willing to allow such bad laws to stay, those are companies who are showing that they're not focused on innovation but on litigation and protectionist views.

Similarly troubling is the news that TechNet, an organization representing a bunch of tech companies has sent a letter to the House Intelligence Committee supporting the post-markup version of CISPA. This isn't a huge surprise. TechNet had already been listed as a supporter of CISPA, and the bills' sponsors in Congress had worked overtime (or, rather, had their staffs work overtime) seeking to appease the tech industry on the mistaken belief that the fight against SOPA was really lead by the tech industry, rather than an angry public. The public isn't quite as angry about CISPA, since the threats of CISPA aren't quite as immediately obvious to everyday people, but winning over the tech companies by giving them immunity should they violate their users' privacy is a bad long term strategy.

Yes, tech companies were a part of the coalition who fought against SOPA, but part of that was because those tech companies were focused on what was best for their users. Choosing to go against those same users when it comes to their own privacy is going to backfire eventually. Some people think that it was the tech companies who drove the fight against SOPA, when the reality was that it was the internet users, who pulled the tech companies into the fight. Not listening to their users would be a big mistake, as a vocal internet turning against these companies isn't a good sign for their future.

On that note, Reddit founder Alexis Ohanian has kicked off a campaign looking to shame Google, Facebook and Twitter into coming out against CISPA. Hopefully, he'll do something similar around CFAA reform as well. Having tech companies come down on the wrong side of these two laws is a bad long term strategy for the tech industry.

Filed Under: cfaa, cispa, lobbying, tech companies
Companies: siia, technet

FBI Wants To Make It Easier For You To Tell Your Customers They Might Be Felonious Pirates

from the yeah,-that'll-work dept

The following may look familiar to you: It's the FBI's special "anti-piracy" warning. For the past few years, under a special "pilot" program, the FBI has allowed the RIAA, MPAA, BSA, ESA and SIIA (basically, the big record labels, movie studios, video game makers and software companies) to make use of the logo to warn all of their customers that they just might be felons and the FBI might show up at any moment. It's pure FUD. It also makes no difference. Is there seriously anyone anywhere in the world who sees this logo and suddenly changes their behavior?

However, this program is about to expand in a big, big way. The FBI is about to release new rules (pdf and embedded below) that expand the program so that any copyright holder will be allowed to slap this logo on their product. Expect to start seeing it everywhere... and to feel that much more like the content creator you're legitimately buying from thinks you're a crook subject to federal law enforcement action. Way to "connect" with fans, huh?

The document from the FBI discussing this repeats a few times that the FBI really feels like this program is effective and important. Could they be any more out of touch?

First, the FBI believes that the APW Seal and accompanying warnings convey important messages to the public and are a significant component of its efforts to deter and to investigate federal crimes involving the piracy of intellectual property. Allowing use by copyright holders who are not members of industry associations will enhance those efforts. Second, although broader access may make unauthorized use more likely, this concern is overshadowed by the value of increasing public awareness of these prohibitions and the FBI’s role in investigating related criminal activity.

There are all sorts of issues with this. The first is that this whole campaign is ignoring a key point: nearly all copyright infringement is a civil infraction, not a criminal one. Most ordinary users don't understand the difference between civil and criminal infringement -- and the FBI and its silly seal do nothing to explain that difference. It's pretty clear that the purpose is to falsely imply that sharing with a friend music you legally purchased might somehow lead you to being targeted in an FBI sting operation. It's FUD, plain and simple. Second, the idea that spreading this logo further will deter actual criminal infringement? Are they serious? Remember, one of the requirements for criminal copyright infringement is that the action is willful. That means that the person knows they're breaking the law. So educating them on the fact that they're breaking the law... er... shouldn't make much of a difference.

Finally, notice that nowhere does the FBI provide any data on how effective this program has been. Because there isn't any. The MPAA shows this logo before movies, and it's not like there has been any less infringement. In fact, the FBI and ICE recently decided to double up and extend the warnings on DVDs , and it's not like that made a difference either. No, instead, all it's done is piss off tons of legitimate customers, who paid good money for the content, only to be interrupted by a giant FBI logo warning them that they may be criminals facing federal charges. The FBI even admits: "it is difficult to measure the effectiveness of the APW Seal program at preventing piracy," but apparently that won't stop it from expanding it. Who in their right mind thinks this is a sensible strategy?

Either way, it's interesting to read through the comments and feedback on this program -- including someone who suggested that the FBI should make sure the warning is skippable at the beginning of movies (the FBI notes that's up to the film producers) or another one that says this seal should be mandatory on copyright-protected works (the FBI rightly points out it has no such authority). Repeatedly, when people raise issues of more widespread use of the seal (dilution, confusion, belief that works without the seal aren't protected, etc.) the FBI insists that the supposed benefits of blanketing the universe with this logo far outweigh any downsides.

There were also concerns raised that the logo will have serious chilling effects on fair use -- which is definitely a major possibility. And the FBI's response is ridiculous.

Five comments also expressed a concern that the broader accessibility of the APW Seal may have a “chilling effect” on fair use, as some copyright holders may attempt to use the APW Seal to discourage uses of their copyrighted work that would otherwise be permissible under the fair use doctrine. The FBI fully recognizes that fair use, which is authorized under Title 17, United States Code, Section 107, does not constitute infringement, much less a federal crime. The warning language does not suggest otherwise. The FBI intends to address this matter on its public website.

Because we all know that everyone who sees the logo will go to the FBI's website and read the fine print at the bottom of the page.

Of course, what's really crazy in all of this is that the FBI is famous for having an itchy trigger finger when anyone uses its normal logo. Remember, this is the same FBI that, just two years ago, sent a threat letter to Wikipedia, because the Wikipedia page on the FBI shows the FBI logo (leading to an awesome reply from Wikimedia General Counsel, Mike Godwin).

Honestly, the whole thing is silly, but because of this kind of cluelessness, expect to see those pointless FBI warning logos on all sorts of content in the future, so that every time you legitimately purchase content, you'll be reminded that the copyright holder thinks you're a lousy stinking thief who deserves a federal investigation. I'm still trying to figure out how that could possibly be good for business, but I guess I just don't understand copyright...

Filed Under: anti-piracy, chilling effect, fair use, fbi, warning
Companies: bsa, esa, mpa, riaa, siia

Tech Journalist Recommends Suing Google Over Spam Blogs?

from the uh,-tom,-what? dept

I like reporter Tom Foremski and have linked to his stories in the past. I've never met the man, but we've emailed a few times in the past. But everyone has those days when they write something they clearly haven't thought much about, and it looks like Tom had one of those days recently. Dark Helmet alerts us to a short blog post that Foremski did for ZDNet that is all kinds of awful. The main focus is on suggesting that you turn in colleagues using unauthorized software to the SIIA to try to claim a $1 million prize. This is a really sleazy process used by the SIIA and the BSA for years. Perhaps you can forgive Tom for not knowing much about how these organizations work, but plenty of other reporters have detailed how these organizations bully companies who can't figure out how to produce the exact evidence that these organizations demand as "proof." These organizations are just nasty, often harming small businesses just because they can't find their specific licensing agreement on a legitimately purchased software application. Encouraging this kind of behavior is not a good idea, Tom.

And, of course, that claim that there's a "$1 million prize" is great for headlines, like the one Tom wrote, but the details always tell a different story. The real "prizes" are "up to $1 million." A few years back, we asked for proof that the BSA actually paid out a million dollar prize, and offered a similarly termed "up to $1 million" reward for anyone who could prove that the BSA paid someone $1 million. Of course, they couldn't, because these groups don't actually pay that much. In fact, in the year after we asked for proof of the $1 million prize, the BSA actually paid out a grand total of $136,000 to 42 different people -- an average of about $3,200. Putting the $1 million prize in the headline is playing into their bogus claims. It's the sort of thing that reporters shouldn't be doing. Let them put out their bogus press releases, but reporters should be debunking them.

Finally, in trying to explain why this is a good idea, Tom makes an odd and totally misapplied analogy:

I know that ZDNet for example, faces problems with its content being scraped and illegally being used on web sites that try to make money by running Google ads next to it. It's often difficult to stop that practice because it's tough to track down the owners.

But if SIIA went after Google, because it profits from illegal use of copyrighted content, then that would go a long way to stamping out that practice.

First off, we face the same "problem" here at Techdirt, with lots of sites scraping our content and putting it on other sites plastered with Google ads. Except, that we know it's not actually a "problem." Most of those sites get very little, if any, traffic, and search engines are smart enough these days to put the originator higher up in the results. The ad views on these sites aren't costing the original site any revenue. And, if they actually are getting any traffic, it doesn't take long for people to realize the original source and start going there instead. This isn't a "problem."

Second, what the hell does scraping sites have to do with turning your colleagues in for using unlicensed software? The two are totally different situations and have nothing to do with each other.

Finally, if SIIA went after Google because it profits from illegal use of copyrighted content, the lawsuit would be thrown out of court as soon as Google's lawyers said "DMCA safe harbors." This is pretty basic stuff, and someone who's been a tech reporter for as long as Foremski should know better than to think that it's either legal or sensible to suggest that an organization sue a third party that profits off of the potentially infringing activity of someone else. As Dark Helmet noted with his submission:

This is 3rd party culpability, which is odd coming from a blogger and journalist. Has he ever ran a story about something illegal that was done? And did that publication have advertisements on it? So didn't he profit from the illegal activity? Shouldn't he have the FBI going after him for such illicit behavior?"

Again, Tom usually does pretty good work, so I'm going to chalk this up to a rushed post without putting much thought into what he was saying.

Filed Under: blogs, copying, copyright, software, spam
Companies: google, siia

Entertainment Industry: Yes, Please Keep Negotiating Secret Copyright Treaty To Save Our Asses

from the yeah,-that's-convincing dept

Sherwin Siy (one of the few people who actually was allowed to glance briefly at parts of the proposed ACTA treaty, though under strict NDA) has written about yet another letter sent by the entertainment industry to the government in support of ACTA. This letter includes pretty much everyone who benefits from abusing copyright laws and is afraid of the internet:

Advertising Photographers of America
American Association of Independent Music (A2IM)
American Federation of Television and Radio Artists (AFTRA)
American Society of Composers, Authors and Publishers (ASCAP)
American Society of Media Photographers, Inc. (ASMP)
Association of American Publishers (AAP)
Broadcast Music, Inc (BMI)
Commercial Photographers International
Directors Guild of America (DGA)
Evidence Photographers International Council
Independent Film and Television Alliance (IFTA)
International Alliance of Theatrical Stage Employees (IATSE)
Motion Picture Association of America, Inc. (MPAA)
National Music Publishers Association (NMPA)
NBC Universal
News Corporation
Picture Archive Council of America (PACA)
Professional Photographers of America (PPA)
Recording Industry Association of America (RIAA)
Reed Elsevier Inc.
Society of Sport & Event Photographers
Software & Information Industry Association (SIIA)
Stock Artists Alliance
Student Photographic Society
The Advertising Photographers of America
The Walt Disney Company
Time Warner, Inc.
Universal Music Group
Viacom Inc.
Warner Music Group

Funny... isn't it, that all these companies and industry groups are supporting a deal that no one's seen yet? Oh wait... that's because many of them have seen it and actually have had a hand in creating it. But what's really damning is that no where in the letter do they explain why this is actually needed or how it will do anything valuable. Instead, it's a pure faith-based letter saying "if you pass this secret treaty, good things will happen." I don't know about you, but generally, I prefer there to be actual proof and evidence that restricting consumer rights around the world actually leads to some sort of real benefit.

Tellingly, they don't respond to any of the points we raised earlier. This is not a treaty to help people or the economy. It's a deal to try to sneak through a system for propping up an obsolete business model by companies who don't want to adapt.

Filed Under: acta, copyright, counterfeiting, evidence, lobbyists, secrecy
Companies: a2im, aap, aftra, ascap, asmp, bmi, disney, gda, iatse, ifta, mpaa, nbc universal, news corp., nmpa, paca, ppa, reed elsevier, riaa, siia, time warner, viacom, warner music group

SIIA's Sequel To Don't Copy That Floppy Lies About Criminality Of Copying

from the which-is-more-unethical? dept

So here's a question? Which is more unethical? Making an unauthorized copy of a piece of software or music for personal use... or outright lying in a commercial? I'm pondering this as a bunch of folks have sent in variations on the news that the SIIA is (bizarrely) resurrecting its old discredited "Don't Copy That Floppy" educational campaign: The original campaign is widely seen as a total joke that did nothing to slow down the pace of copying, and it simply showed how out of touch the Software Publishers Association was with the market. The campaign did nothing to cut down on copying, but it did an amazing job informing the market how easy it was to copy software. It also was in the middle of the software industry's long and fruitless struggle with DRM, which was later mostly abandoned as a failure that did more harm than good for legitimate consumers.

So it's difficult to fathom who could possibly think it's a good idea to bring back the campaign... but that appears to be what's happening. Still, the "chorus" of the song claims that copying is a crime. I would argue that this is false advertising. Copying may be a crime, but the scenarios shown in the film don't appear to involve criminal activity, but civil torts. For it to be criminal copyright infringement it needs to involve being done "willfully and for purposes of commercial advantage or private financial gain." So the ad is falsely promoting the idea that personal copying is a criminal matter -- in fact it falsely suggests that simply downloading software or music will put you in jail.

So which is more ethical? Getting a personal copy of a song you wanted to hear? Or flat out lying about the criminality of that action to the widespread public?

Filed Under: civil, copyright, criminality, don't copy that floppy, torts
Companies: siia

Have At You, Clip Art Pirates!

from the avast! dept

The Software & Information Industry Association is a great organization -- at least from a comedy standpoint. They got themselves some press a couple of years ago by offering a "bounty" for people who turned in vendors that sold them counterfeit software, but the offer was so full of fine print that it was completely pointless. They then showed a complete ignorance of the law by threatening to sue eBay because counterfeiters peddle their wares there, despite the safe-harbor provisions that protect platform providers. But perhaps the most entertaining story about the SIIA was the one about how their propaganda campaigns were driving people to turn away from proprietary software (you know, the kind produced by SIIA's members) and go with open-source software instead. Now, the group's adding to its comic legacy by unleashing a tidal wave of lawsuits against pirated clip art. The group's lawyer says the suits are "going to be big," while another SIIA exec says it is "making every effort in this challenging economic climate to protect the interests of both the software and graphics industries," adding that when stuff like clip art gets pirated, "everyone loses -- from individual consumers, to the economy as a whole." Since they're protecting the American economy and all, maybe they're just angling for some government bailout money?

Filed Under: clipart, piracy
Companies: siia

Software Industry Assocation About To Learn What Safe Harbors Mean

from the if-you-want-to-waste-your-money,-go-right-ahead... dept

It appears that the Software and Information Industry Association (SIIA) is about to learn what DMCA safe harbors mean. The group is apparently upset about the fact that some people sell counterfeit software on eBay. That's not surprising. But, the SIIA is planning to sue eBay for this activity, rather than going after the counterfeiters themselves. Of course, if anyone from the SIIA had been paying attention, they would know that courts in the US have repeatedly found that eBay and sites like it are protected by various safe harbor provisions. This is for a very good reason: it's not eBay counterfeiting anything. eBay is merely the platform. If the SIIA wants to go after the actual counterfeiters, that's their issue. But going after eBay for providing the platform is going to fail miserably. You would think that a trade group that claims they cover the "Information Industry" would know that already.

Filed Under: auctions, copyright, counterfeits, dmca, liability, safe harbors, siia
Companies: ebay, siia

How Pursuing Software Piracy Hurts Proprietary Software Firms

from the highlights-the-alternatives dept

While organizations like the BSA and the SIIA play silly games and announce bogus numbers about the "costs" of software piracy, it's nice to see the whole thing beginning to backfire. We've already pointed to the backlash against the BSA for its activities, and now we're seeing how these kinds of crackdowns are doing exactly the opposite of what BSA/SIIA members would want: they're looking for open source alternatives. Following the ongoing "international crackdown" on software piracy, it appears that the Vietnamese government is the latest to start promoting open source alternatives. Of course, for proprietary software makers, this should be seen as worse than piracy. After all, as Microsoft and others have long admitted, you're much better off if someone is using an unauthorized version of your software, than if they're using the competition (especially if that competition is free). If they're using an unauthorized version of your software, then at least there's a chance that they'll either buy it at a later date or convince others to buy it. However, by putting such a big effort into cracking down on software piracy, all the industry has done is highlight why people are better off going with free alternatives. This is a key point we've tried to highlight in the past. The issue isn't piracy at all, but the fact that the competition will eventually learn to embrace "free." Focusing on "piracy" only helps accelerate that process.

Filed Under: open source, software piracy, vietnam
Companies: bsa, siia

SIIA's Bogus Bounty For Turning In Software Counterfeiters: Read The Fine Print

from the good-luck-with-that dept

We've already talked about the BSA's misleading program to get people to turn in their employers for using unauthorized copies of software. Now, sister organization, SIIA, has introduced its own silly program. Reader Jon writes in to let us know that the SIIA is supposedly offering $500 to anyone who "turns in" someone who sold them counterfeit software online. While the SIIA says it hopes that the recipient of the $500 uses it to buy legitimate copies of the software, they don't have to. At first glance, this program looks like it creates a system that gives people incentives to buy counterfeit software. After all, why not buy the counterfeit software, collect the reward and pocket it, while keeping the software? However, if you read the fine print, you'll realize that the program is quite limited. It's not really $500. It's "up to" $500, apparently at the SIIA's sole discretion. And... it's only open to the first 100 people who qualify. And... they'll get to use your name in press releases and force you to post feedback on eBay about how the seller sold you counterfeit software. And... it doesn't appear that you get any amnesty for having the software, meaning you could eventually be liable yourself for using counterfeit software (though, you have to give up the software to the SIIA, but if you installed it first...). Then, there's the best part. If the SIIA winds up in a court case with whoever you turn it, you may be required to testify -- and (wait for it...) the SIIA may reimburse your expenses, but if they do, those expenses will be reduced by the amount the SIIA paid as a reward. In other words, the "reward" simply becomes a prepayment on just some of the expenses you incur to testify on the SIIA's behalf. How nice of them.

Filed Under: incentives, rewards, software piracy
Companies: siia

Company Fined For Passing News Clips Around Internally

from the there's-this-thing-called-the-world-wide-web... dept

It may be time to add the Software & Information Industry Association (SIIA) to the list of ridiculous industry associations who are excessively focused on copyright to the detriment of their own businesses. The group, which includes a number of newspaper publishers as members, began an "anti-piracy" program recently and have announced its first "win." An analyst firm has agreed to pay up a $300,000 settlement after an "insider" informed the SIIA that the firm passed around news clips to employees. This is very typical. Many companies employ news clipping services and receive copies of relevant news articles -- and often they pass those around to the appropriate people. However, it appears that various news publishers think that any company that does this should purchase a separate license. The reporter points out that many, many companies pass around news clips internally all the time, and an SIIA representative insists that's not true -- suggesting he has no idea what goes on in many companies. However, the key point is that this clearly does nothing to benefit these publishers. There are very few companies that will go through the trouble of actually licensing the individual news for the sake of passing them around. Instead, they'll either stop reading the clips altogether, or they'll simply go to the web, where it's free. Now, of course, it's worth pointing out that we at Techdirt provide original news analysis (not clips) to plenty of companies all the time -- and part of our contract is that we encourage the companies to pass our content around to as many people internally as possible. We know that the more people who see our analysis, the more useful and valuable it becomes. So, for firms worried about the SIIA suing you because you pass around news clips, feel free to give us a call.

Filed Under: copyright, news clips, piracy, siia
Companies: knowledge networks, siia