Supreme Court Hears Arguments In Cell Site Location Info Case

from the no-love-for-The-Man dept

The Supreme Court's review of the Carpenter case -- dealing with the warrantless collection of cell site location info -- kicked off yesterday. Oral arguments featured Nate Wessler of the ACLU facing off against the DOJ's Michael Dreeben in a case that could drastically alter the Third Party Doctrine.

From the early going, it sounds a bit like the court is leaning towards a drastic alteration. There's a lot that can be read from the arguments presented by the justices -- especially those by Trump appointee Neil Gorsuch. After some of the expected arguments -- the Third Party Doctrine, the post-facto privacy invasion that is 100+ days of location tracking, etc. -- Gorsuch wades into pretty novel theory based on the property… um… properties of location data gathered by service providers.

Referencing the privacy protections statutorily mandated by 47 USC § 222 (and the Supreme Court's 2012 decision on GPS tracking devices), Gorsuch goes after the DOJ's lawyer, asking him why records considered by law to be the property of carrier customers aren't afforded the same protection as the Fourth Amendment "papers and effects" they keep in their houses.

GORSUCH: [O]ne thing Jones taught us is -- and reminded us, really, is that the property-based approach to privacy also has to be considered, not just the reasonable expectation approach. So, if we put aside the reasonable expectation approach for just a moment, Katz, Miller, Smith, and ask what is the property right here, let's say there is a property right. Let's say I have a property right in the conversion case I posited with your colleague. So that if someone were to steal my location information from T-Mobile I'd have a conversion claim, for example, against them for the economic value that was stolen. Wouldn't that, therefore, be a search of my paper or effect under the property-based approach approved and reminded us in Jones?

This wasn't much fun for the DOJ's representative:

MR. DREEBEN: I suppose that if you are insisting that I acknowledge that it's a property right, some consequences are going to follow --

JUSTICE GORSUCH: Right.

MR. DREEBEN: -- from that.

JUSTICE GORSUCH: Okay.

[...]

JUSTICE GORSUCH: In my -- in my hypothetical, if there were a property interest, you're not here to deny that that would be a search of my paper and effect?

MR. DREEBEN: I'm not here to concede it either.

JUSTICE GORSUCH: Okay.

MR. DREEBEN: And the reason that -­-

(Laughter.)

JUSTICE GORSUCH: Okay.

MR. DREEBEN: The reason that I can't concede it is it's a property right that resembles no property right that's existed.

Justice Alito pitched in to point out the likelihood there's no property interest in location records because customers don't ask for it to be collected, can't prevent it from being collected, can't keep the provider from destroying records and, in some cases, can't even demand a copy of these records. But while that may have briefly lit a fire of hope in the DOJ's rep, Gorsuch did his best to extinguish the flame.

MR. DREEBEN: So, Justice Alito, those are a lot of good reasons on why this should not be recognized as a property interest. I can't think of anything that would be characterized as a property interest with those traits. And it would be a -- really a watershed change in the law to treat transferred information as property.

JUSTICE GORSUCH: Well, what does Section 222 do, other than declare this customer proprietary network information --­

MR. DREEBEN: So that -­-

JUSTICE GORSUCH: -- that the carrier cannot disclose?

MR. DREEBEN: It -- it does that in conjunction with a provision that it shall be disclosed as required by law.

JUSTICE GORSUCH: So -- so, let me ask you that. So -- so the government can acknowledge a property right but then strip it of any Fourth Amendment protection. Is that the government's position?

MR. DREEBEN: No, no, but I think that the -­

JUSTICE GORSUCH: And so -- so could we also say maybe that they also get this property right subject to having a non-Article III judge decide the case, or quartering of troops in your home?¹ Could we strip your property interests of all constitutional protection?

MR. DREEBEN: Well, those are pretty far afield. I -- I think what's going on here -­-

JUSTICE GORSUCH: Are they?

^{1 Shout-out to the least hardest working legal advocates in the nation.}

After some discussion about this statute protecting the privacy of info gathered by cell phone companies, along with the government repeatedly pointing to the Third Party Doctrine, the justices discuss the sensitivity of the information being obtained without a warrant, pushing the argument back from the property side Gorsuch proposed to the detailed data being gathered daily (bank records are mentioned) by a variety of third parties. Again, the DOJ argues that no warrants are needed because the "search" isn't performed by the government, but rather by the third parties themselves and the results handed over to law enforcement.

Justice Kagan had some problems with this particular approach.

JUSTICE KAGAN: I understand what you're saying, you're basically saying, well, because the government is going to a third-party here and doing it by subpoena, it doesn't matter how sensitive the information is. It doesn't matter whether there's really a lack of voluntariness on the individual's part in terms of conveying that information to the third-party. And we could go on and we could give, you know, other factors that you might think in a sensible world would matter to this question. And you're saying that all of that is trumped by the fact that the government is doing this by subpoena, rather than by setting up its own cell towers.

Which the government can certainly do. (See also: Stingray devices. This is why this case about historical cell site location info will have a ripple effect on Stingray usage no matter which way it's decided.)

Justice Gorsuch takes this assertion and brings it full circle to the creation of the Constitution and its resulting amendments.

JUSTICE GORSUCH: Mr. Dreeben, it seems like your whole argument boils down to if we get it from a third-party we're okay, regardless of property interest, regardless of anything else. But how does that fit with the original understanding of the Constitution and writs of assistance? You know, John Adams said one of the reasons for the war was the use by the government of third parties to obtain information forced them to help as their snitches and snoops. Why -- why isn't this argument exactly what the framers were concerned about?

MR. DREEBEN: Well, I think that those -- those were writs that allowed people acting under governmental power to enter any place they wanted to search for anything that they wanted.

JUSTICE GORSUCH: Isn't that exactly your argument here, that so long as a third party's involved, we can get anything we want?

MR. DREEBEN: Well, I think the search is being carried out under a writ of assistance by a government agent, operating under government authority; whereas here, we -- the -- if there's a search in the acquisition of cell site information, then it's the cell site company that is acquiring that information without governmental instigation, without --­

JUSTICE GORSUCH: The subpoena --­

MR. DREEBEN: -- governmental agency -­-

JUSTICE GORSUCH: -- being, though, the equivalent of a writ of assistance?

MR. DREEBEN: Oh, I don't think a subpoena is an equivalent of a writ of assistance. A writ of assistance allowed the agent to go into any house, to rip open anything looking for contraband, no limitations.

JUSTICE GORSUCH: Yeah. And you can subpoena anything that any company has anywhere in the globe regardless of any property rights, regardless of any privacy interests, simply because it's a third-party?

The Chief Justice didn't appear too impressed by this line of reasoning either.

MR. DREEBEN: So I -- I think that, as Justice Alito was explaining, there is a traditional understanding that dates back to the time of the founding that subpoenas stand on a different footing from search warrants. And they do that because they are less intrusive, since they do not require the government going into private property and searching itself.

CHIEF JUSTICE ROBERTS: Why does that --­

MR. DREEBEN: And -­-

CHIEF JUSTICE ROBERTS: -- why does that make a difference? The subpoena tells the person who gets it: this is what you have to do.

MR. DREEBEN: Well, I think that most --

CHIEF JUSTICE ROBERTS: Why is that less intrusive? The whole question is whether the information is accessible to the government.

But that's exactly the argument the DOJ is making. No matter how long the records go back, no matter how accurate cell tower location data is, no matter how many points of data each citizen carrying a cell phone creates each day, it should all be no more than a subpoena away because the data is being held by a third party. This is Nate Wessler's summation of the government's assertions:

I just want to highlight that the -- the government, Mr. Dreeben, as I heard him, conceded that the precision of these records doesn't matter at all to the government's theory here. They could be precise, I take it, to within a single inch. And the fact that a third party has custody of them would, in the government's view, vitiate any expectation of privacy, which we think would be a very destructive rule.

It's too early to say how this will turn out, but the with the exception of Justice Alito, very little sympathy was shown for the government's arguments. The justices also had problems with differentiating between short-term collection of CSLI and lengthier collections. It did raise this question in the Jones case -- suggesting long-term monitoring was more invasive than short-term tracking, but did not come to a bright line conclusion. Carpenter's reps are suggesting a 24-hour limit for warrantless CSLI access.

This will be a tough line to draw, especially as courts have pointed out before rights do not spring into existence out of nowhere. If 24 hours isn't a Fourth Amendment violation, why should three months be a problem? Or half a year? What then would stop the government from serving successive subpoenas to gather multiple days of location info, thus rendering the bright line irrelevant? If a decision is going to be made -- one that "fundamentally changes the application of the Fourth Amendment to subpoenas" (as Justice Alito put it) -- it really has to be all or nothing.

But the early skepticism of the government's arguments expressed here is a positive development. This shows the court isn't interested in rubber stamping an extension of the Third Party Doctrine nearly 40 years after the Smith v. Maryland decision. Given the amount of information gathered by third parties, it's time for some fundamental change.

Filed Under: 4th amendment, carpenter, privacy, property rights, scotus, supreme court, third party doctrine

Court Blocks Wisconsin Augmented Reality Permit Law From Being Enforced

from the augmented-legality dept

You will recall that earlier this year we discussed a lawsuit brought by the makers of a mobile augmented reality game entitled Texas Rope 'Em against the city of Milwaukee over an ordinance it had put in place requiring game developers to obtain a permit to function within the city. Aside from the $1,000 permit fee the ordinance put in place, the requirements to obtain the permit were both odious and laughably non-applicable to the makers of mobile games such as Texas Rope 'Em. Examples of these requirements include plans for garbage collection left by players, plans for on-site security to protect players, and estimates of "crowd sizes." For makers of augmented reality apps, none of these requirements make any sense. When the developer of the game, Candy Lab, cried foul over First Amendment concerns, Milwaukee County replied that the game maker is not entitled to First Amendment rights, arguing that the game wasn't expressive enough to warrant them.

Well, in the opening round of the legal action, Candy Lab is a heavy winner. The court has enjoined the city from enforcing the law until the outcome of the trial, while also including language in the order that makes it fairly clear where the court is going to rule on the First Amendment question.

Plaintiff has a reasonable likelihood of success on the merits of its claims under 28 U.S.C. § 1983 for violation of the First Amendment. Plaintiff will suffer irreparable harm if Defendants are permitted to enforce Section 47.03(3) of the Milwaukee County Code of General Ordinances, adopted in Resolution 16-637.

Now, the trial has been set for next Spring, but fortunately that timeline won't keep Candy Lab from doing its business in Milwaukee with the injunction now in place. Frankly, I'd be somewhat surprised if that trial ever occurs, given the courts clear indication that it sees the law as a First Amendment violation, or at least that Candy Lab is likely to win on the merits of that assertion.

Still, it's troubling that Milwaukee would have tried to put this lab into place to begin with. Frankly, where permitting schemes are often times revenue generators for municipalities, the requirements for the permit in this case seem almost perfectly designed to simply keep augmented reality apps out of the city entirely. Why? It's not like other cities in America, both larger and smaller than Milwaukee, have suffered significant headaches or damage as a result of the now panoply of AR games on the market.

And the claim that an AR game isn't speech-y enough to warrant free speech rights? That's just silly.

Filed Under: augmented reality, permits, pokemon go, property rights, texas rope 'em, wisconsin
Companies: candy lab

Mashable Says You Shouldn't Own What You Buy Because You Might Hurt Yourself

from the that's-just-wrong dept

The news site Mashable has apparently decided that you, the general public, are simply too dumb to actually own the stuff you thought you bought because you might just injure yourself. We've written about so-called "right to repair" laws and why they're so important. There are a variety of issues, but the most basic one here is about property rights. If you buy something, it's supposed to be yours. It doesn't remain the property of whoever first made it. And they shouldn't then be able to deny you the ability to tinker with, modify, or repair what you bought. However, Mashable's Lance Ulanoff (last seen here being completely clueless about the importance of anonymity online because he, personally, never could see a reason why someone might want to speak truth to power without revealing who they are), has decided that because you might be too dumb to properly repair stuff, the entire "right to repair" concept "is a dumb idea."

The article can basically be summed up as "I have a friend, and her iPhone wasn't repaired properly, so no one should be able to repair your iPhone but Apple." Really.

My co-worker, Tracey, held her iPhone like a baby bird with a bent wing. 

I stared at the dark screen. The device was still on, but stuck somewhere between living technology and a dead iPhone. Tracey said that the device made a popping sound and got really hot in one corner while she was making a phone call. Then, her screen cracked, and burnt her ear. She wanted to know what to do. She explained the incident happened shortly after having third-party iPhone screen repair company iCracked replace her shattered iPhone 6 screen. iCracked was ready to let the original technician repair her phone again. I warned her against it. The phone was obviously dangerous—and letting them touch it again probably wouldn’t help. In fact, I thought it might hurt.

Getting past the "using a single anecdote to generalize to absolutely everyone," this still makes no sense. If we want to rule that any kind of repair/modification/tinkering shouldn't be allowed if it might not work right, well... there goes the entire DIY space. This weekend I repaired a broken toilet. It's entirely possible that I could have messed it up (in fact, I did at first, but after a couple of helpful YouTube videos, I got it figured out). Should I not have been allowed to do that? Should I have had to call a plumber who would have charged me $150 just to walk in the door? Lance Ulanoff apparently thinks that's the case. I'm not exactly a handyman, but over the years, I've repaired a ton of stuff in my house from broken dishwashers, computers, garage door openers and more. And sure, if I did it wrong, it could have been dangerous (that garage door opener, in particular, was pretty tricky). But do we really want to live in such a paternalistic society that we shouldn't even be allowed to do that? That seems to be the crux of Ulanoff's article.

Right-to-Repair? What a ridiculous thing to say. No one has the right to repair anything. You might have the skill to repair something (something that iCracked tech might've lacked). And you can hand people all the schematics, instructions, and parts you want and they still won’t be able to replace an iPhone battery or screen.

This is an even sillier argument. His complaint here is with the semantics. It's called a "right to repair," but of course no one's saying everyone will have the ability. The question is whether or not you can even try to repair something that you bought. It's really a question of property rights and whether or not you are breaking the law just trying to tinker with something.

The wonderful world of innovation we live in is built off of people tinkering. The computer industry that makes Mashable possible only exists because a bunch of people were tinkering with different devices and built multiple massive industries out of it. But, Ulanoff is effectively saying that all needs to stop now. Only approved sources can tinker.

Later, Ulanoff tries to clarify that he's fine with people being able to repair stuff... if it has moving parts.

It’s not that I don’t believe in better-built products and repairability. We need tightening against planned obsolescence cycles—TV sets that once lasted 25 years now fail after five. I’m also a tinkerer. I’ve taken apart everything from VCRs to BlackBerry Curve phones and their classic scroll buttons. When I see moving parts, I think: repairability. Today’s phones have almost no moving parts. At least the iPhone 6 had a moveable home button. The iPhone 7 and 7 Plus don’t even have that.

Why the distinction? Who the hell knows? Ulanoff never explains it beyond "when I see moving parts, I think: repairability." Well, good for you Lance. Have a cookie. Not everyone sees the world the way you do. Some people like -- for example -- replacing the significantly weakened battery on their phones so that they can make it last a lot longer. Some people like to replace their cracked screens rather than having to buy a new phone.

But, in the end, Ulanoff is just really concerned that you're just too dumb and you're going to hurt yourself:

I think it’s a fair concern that Right-to-Repair laws could lead to an explosion of Radio Shack-like iPhone and Samsung electronics parts shops. Consumers will wander in with broken iPhone and Samsung Galaxy screens, and walk out with all the parts and tools they need to repair them. And they will fail, miserably.

Plus, what if a consumer's injured during a failed repair attempt? They slice open a finger on the cracked glass, or put it back together incorrectly, so the battery fails (and maybe even explodes). It’s the consumer’s fault, obviously, but they could also try to sue Apple or Samsung.

Try to sue? Sure. Succeed at suing? No. And, really, is that the big concern here? No one should be allowed to tinker with their own devices because they might fuck it up and sue Apple. What?

In the end, once again, this is a question of whether or not people actually own what they buy. Ulanoff, by default, seems to be saying they shouldn't be able to do so. Because they might hurt themselves. Because they're too dumb to know that glass might cut them if not handled properly. But is that really the job of our laws (including copyright law, which is a key component in blocking people from repairing their own phones...) to say "you can't fix or modify something you bought because you're an idiot"? Ulanoff, like in his silly article about not seeing any need for anonymity, apparently doesn't see any need for people to fix their own stuff. Even worse, because he doesn't see such a need for himself, or his friend Tracey, he's decided it's a-ok for the law to clamp down on people who actually are competent and actually are able to modify, tinker or repair products such as phones.

This seems like a very odd way for Mashable to create its opinion pieces. Having some random dude extrapolate his own experiences to apply across everyone. Folks at Mashable responded to lots of people mocking Ulanoff's silly piece by pointing out that it also published a counterpoint. But, as I've noted, this is why I find point/counterpoint arguments so useless. It puts the two arguments on an equal footing and suggests that "welp, you decide." That's silly. Ulanoff's argument makes no sense and is based on nothing more than his own confusion about how the world works. Mashable should feel bad about publishing such an article and pretending it's legit journalism.

Filed Under: devices, freedom to tinker, lance ulanoff, ownership, phones, property rights, right to repair

Judge Posner Smacks Around Cabbies For Thinking That Cities Allowing Uber Violates Their 'Property Rights'

from the that's-not-how-this-works dept

It's no secret that cab companies and many cab drivers don't much like Uber and Lyft. Competition is tough. And cabs in most cities have survived thanks to artificial limits on competition through medallions and the like. This has always been a stupid, and frequently corrupt, system. For years, before Uber and Lyft came along, people talked about the ridiculousness of artificially limiting competition in this manner, but it was only once those companies came along that the true ridiculousness was made clear. While some forward looking cabbies have embraced these and similar systems, others have been fighting the new reality, often in fairly ridiculous ways. In Milwaukee and Chicago, cab companies sued those cities, arguing that allowing this type of competition amounted to a Fifth Amendment violation, in the form of "taking private property for public use without just compensation." What private property, you might ask? Well, according to the cab companies, the artificially restricted competition is their property. No, really.

The district courts didn't buy it, and now that it's moved up to the 7th Circuit appeals court, Judge Richard Posner isn't buying it either. In the two decisions -- Joe Sanfelipo Cabs v. City of Milwaukee and Illinois Transportation Trade Association v. Chicago, Posner makes quick work of explaining to these folks that the government restricting competition from entering your market isn't a property right that those who benefit from it get to make claims over (though he does, unfortunately, say that patents are a form of property in dismissing the "absurd" claims from the cabbies):

The plaintiffs’ contention that the increased number of permits has taken property away from the plaintiffs without compensation, in violation of the constitutional protection of property, borders on the absurd. Property can take a variety of forms, some of them intangible, such as patents. But a taxi permit confers only a right to operate a taxicab (a right which, in Milwaukee, may be sold). It does not create a right to be an oligopolist, and thus confers no right to exclude others from operating taxis.

Posner notes that if there had been an explicit promise not to change regulations, that might have been one thing, but there was not. Similarly, he admits that the taxi permits are property, but that's unrelated to the issuing of more permits:

The taxi permits issued by the Milwaukee city government are property, but have not been “taken,” as they do not confer on the holders a property right in, amounting to control over, all transportation by taxis and taxi substitutes (such as Uber) in Milwaukee.

And then he basically says "welcome to a market economy, cabbies":

Undoubtedly by freeing up entry into the taxi business the new ordinance will reduce the revenues of individual taxicab companies; that is simply the normal consequence of replacing a cartelized with a competitive market. But the plaintiffs exaggerate when they predict ruination for themselves. Buses and subways and livery services and other taxi substitutes have not destroyed the taxi business; nor has Uber or Lyft or the private automobile or for that matter the bicycle. Taxicabs will not go the way of the horse and buggy— at least for some time.

That's from the case against Milwaukee. The Chicago ruling is pretty similar:

All seven of the plaintiffs’ claims are weak. The first is that allowing the TNPs into the taxi and livery markets has taken away the plaintiffs’ property for a public use without compensating them. A variant of such a claim would have merit had the City confiscated taxi medallions, which are the licenses that authorize the use of an automobile as a taxi. Confiscation of the medallions would amount to confiscation of the taxis: no medallion, no right to own a taxi, ... though the company might be able to convert the vehicle to another use. Anyway the City is not confiscating any taxi medallions; it is merely exposing the taxicab companies to new competition—competition from Uber and the other TNPs.

“Property” does not include a right to be free from competition. A license to operate a coffee shop doesn’t authorize the licensee to enjoin a tea shop from opening. When property consists of a license to operate in a market in a particular way, it does not carry with it a right to be free from competition in that market.

Posner doubles down on just how dumb this argument is by the cab companies:

Taxi medallions authorize the owners to own and operate taxis, not to exclude competing transportation services. The plaintiffs in this case cannot exclude competition from buses or trains or bicycles or liveries or chartered sightseeing vehicles or jitney buses or walking; indeed they cannot exclude competition from taxicab newcomers, for the City has reserved the right (which the plaintiffs don’t challenge) to issue additional tax medallions. Why then should the plaintiffs be allowed to exclude competition from Uber? To this question they offer no answer.

All that the City gives taxi‐medallion owners is the right to operate taxicabs in Chicago.... That isn’t a right to exclude competitive providers of transportation.

Perhaps more importantly, though, Posner also shoots down the argument that it's unfair that Uber gets to operate under a different regulatory regime:

The plaintiffs argue that the City has discriminated against them by failing to subject Uber and the other TNPs to the same rules about licensing and fares (remember that taxi fares are set by the City) that the taxi ordinance subjects the plaintiffs to. That is an anticompetitive argument. Its premise is that every new entrant into a market should be forced to comply with every regulation applicable to incumbents in the market with whom the new entrant will be competing.

Here’s an analogy: Most cities and towns require dogs but not cats to be licensed. There are differences between the animals. Dogs on average are bigger, stronger, and more aggressive than cats, are feared by more people, can give people serious bites, and make a lot of noise outdoors, barking and howling. Feral cats generally are innocuous, and many pet cats are confined indoors. Dog owners, other than those who own cats as well, would like cats to have to be licensed, but do not argue that the failure of government to require that the “competing” animal be licensed deprives the dog owners of a constitutionally protected property right, or alternatively that it subjects them to unconstitutional discrimination. The plaintiffs in the present case have no stronger argument for requiring that Uber and the other TNPs be subjected to the same licensure scheme as the taxi owners. Just as some people prefer cats to dogs, some people prefer Uber to Yellow Cab, Flash Cab, Checker Cab, et al. They prefer one business model to another. The City wants to encourage this competition, rather than stifle it as urged by the plaintiffs, who are taxi owners.

And, later:

There are enough differences between taxi service and TNP service to justify different regulatory schemes, and the existence of such justification dissolves the plaintiffs’ equal protection claim. Different products or services do not as a matter of constitutional law, and indeed of common sense, always require identical regulatory rules.... If all consumers thought the services were identical and that there was therefore no advantage to having a choice between them, TNPs could never have gotten established in Chicago.

There are all sorts of arguments people can make about whether or not companies like Uber and Lyft are good (and I'm a fan of them), but arguing that they're "taking property" away from cab medallion holders is not a legitimate argument.

Filed Under: car hailing, chicago, competition, medallions, milwaukee, property, property rights, richard posner, ride sharing, taxis

IP Is No Excuse: Even If Someone Is Using Fake Chips, It's Not Okay To Kill Their Devices

from the that's-not-how-it's-supposed-to-work dept

Not this again. For years, we were perplexed by the war on mod chips, which could be used to allow people to play pirated games, but also had plenty of legitimate uses as well, especially for developers and hackers. The same was true of the war on smart card readers. Yes, they could be used to get pirated TV, but they were also useful for lots of other, perfectly legitimate projects as well. The latest, however, appears to be a Microsoft update with some new drivers that were completely destroying devices that have fake FTDI chips. People started noticing that right after the Windows update devices using those chips were suddenly dead. Bricked. It's not that they wouldn't connect any more -- it's that the software update actively bricked the devices and you can't get them back.

FTDI chips are quite popular with hackers and there are plenty of them out there -- both real and fake. And, quite frequently, developers/hackers have no idea if their FTDI chips are legit or not, because they just buy devices that include them, and they assume they're legit. But the drivers in that Windows update didn't care and bricked any one using a fake FTDI chip. As Ars Technica notes, this really sucks for a bunch of hackers who never even did anything wrong.

The result of this is that well-meaning hardware developers updated their systems through Windows Update and then found that the serial controllers they used stopped working. Worse, it's not simply that the drivers refuse to work with the chips; the chips also stopped working with Linux systems. This has happened even to developers who thought that they had bought legitimate FTDI parts. It can be difficult to tell, and stories of OEMs and ODMs quietly ignoring design specs and using knock-offs instead of official parts are not uncommon. As such, even hardware that was designed and specified as using proper FTDI chips could be affected.

Every USB device has a pair of IDs. One, the Vendor ID (VID), is allocated by the USB group. Each vendor has its own unique VID and uses that VID on every USB device it makes. The second is the Product ID (PID), allocated by the vendor, with each distinct chip type having its own PID. Windows uses the VID/PID pair to figure out which driver a given piece of hardware needs. The counterfeit chips use FTDI's VID and set the PID to the PID of whichever chip it is they're cloning (FTDI has a range of similar parts, each with their own PIDs).

The new driver reprograms the PID of counterfeit chips to 0000. Because this PID does not match any real FTDI part, it means that FTDI drivers no longer recognize the chips and, hence, no longer provide access to them. This PID is stored in persistent memory, so once a chip has been reprogrammed it will continue to show this 0000 PID even when used with older drivers, or even when used with Linux.

It's not entirely clear if this is something FTDI did on purpose or not (though, their comments below suggest they did), but it is worrisome, and it's simply not okay -- whether it was on purpose (in which case it's potentially illegal) or not (in which case it's just bad).

Sherwin Siy, over at Public Knowledge does a nice job explaining why copyright (or other IP laws) are never a legitimate reason to break a device -- even if a contract warns it might happen (as is apparently the case with FTDI).

The fact that disabling countless devices without warning can harm millions of innocent users and manufacturers should be a screaming sign that this is the wrong thing to do. And if they’re doing this deliberately, this is wrong not just in the sense of being unethical, but illegal, too.

This is something that people seem to forget in the IP space, and also in the technology space, which makes it unsurprising that we see it here. It’s the same impulse that leads people to ask if they can shotgun a drone that strays onto their property (No, no more than you can torch a car that parks in your driveway), or whether you can destroy the computers of people who have illegally downloaded your song.

So whether or not FTDI has any trademark rights, copyrights, or other rights in whatever the knockoff chips are copying, the actual physical chips themselves are the property of their users, and FTDI doesn’t have the right to break them. A French vintner can’t stroll down the aisles of an American wine store with a hammer, shattering bottles of “California Champagne.” Roving gangs of Nike enforcers can’t rip fake Jordans off the feet of passing kids. And we don’t have Givenchy shock troops marching down Canal Street taking flamethrowers to fake handbags. If your IP rights are being infringed, the proper course of action is to go to court, not take the law into your own hands.

Unfortunately, in this era of intellectual property maxmalism, people seem to forget these things. They assume that if you have a "fake" chip then obviously it's "okay" to break the device, because they falsely seem to believe that copyrights and trademarks and the like give the holder "all the rights over everything," rather than a limited set of rights over certain things. FTDI's response to all of this (including removing the driver from the latest Windows update) suggests (but does not outright claim) that it did this on purpose:

As you are probably aware, the semiconductor industry is increasingly blighted by the issue of counterfeit chips and all semiconductor vendors are taking measures to protect their IP and the investment they make in developing innovative new technology. FTDI will continue to follow an active approach to deterring the counterfeiting of our devices, in order to ensure that our customers receive genuine FTDI product. Though our intentions were honourable, we acknowledge that our recent driver update has caused concern amongst our genuine customer base. I assure you, we value our customers highly and do not in any way wish to cause distress to them.

Honorable intentions or not, counterfeit products or not, actively going in and breaking the property of others is not an acceptable response.

Filed Under: bricking, copyright, counterfeit, drivers, ftdi chips, microsoft update, property, property rights, trademark, update
Companies: ftdi, microsoft

New Bill Designed To Stop Bogus Copyright Claims From Stopping You From Selling What You Own

from the you-own-devices-act dept

We just wrote about an audio equipment manufacturer trying to argue that it was criminal for someone to resell their products. While this was obviously crazy, never underestimate the lengths that some companies will go through these days to try to block people from selling products they (thought they had) legally bought. And guess what tool they're using to block you from actually owning the products you bought? Why copyright, of course. It's yet another example of how copyright is often used to block property rights rather than to create them.

This has become especially popular among telco/networking equipment manufacturers. These companies ship hardware with software included -- and then argue that you can't actually do anything with that hardware -- such as fix it or sell it -- without their approval, because doing so would violate their copyright on the software. Earlier this year, there was a big lawsuit in which Avaya had sued a company for copyright infringement for merely servicing Avaya equipment. Many other equipment manufacturers have terms of service or "transfer" policies that either effectively block such sales, or (more commonly) include a bunch of hoops that everyone has to jump through just to sell the products you thought you owned. All because of the software that comes with the hardware. While this has mostly been focused on big enterprise systems, it's not much of a stretch to think about how it might eventually apply elsewhere. With so many products being computerized these days, there will be software in lots of different hardware products -- and imagine the havoc those companies could create if they tried to block the sale of these products based on copyright.

Of course, as we've discussed for years, in copyright there's the right of first sale, which is supposed to let you sell your individual copy of a copyrighted work (it's why you can resell a copy of a book you own, for example). But many companies have been trying to chip away at that right, and at least some in Congress want to stop this practice. Rep. Blake Farenthold -- who I only just found out is an EFF member! -- has now introduced a new bill called the You Own Devices Act, or YODA. While I tend to hate silly names for bills, this simple bill is an important reminder that when you buy a product, even if it has copyrighted software included in it, you should own it. The key part of the bill:

...if a computer program enables any part of a machine or other product to operate, the owner of the machine or other product is entitled to transfer an authorized copy of the computer program, or the right to obtain such copy, when the owner sells, leases, or otherwise transfers the machine or other product to another person. The right to transfer provided under this subsection may not be waived by any agreement.

Realistically, this is just reinforcing the first sale doctrine, and it's ridiculous that it needs to be reinforced, but hopefully it can block out some of the questionable shenanigans by some companies.

The bill further makes sure that even if someone sells or transfers such equipment, that the new owners are still allowed to receive updates and security patches:

Any right to receive modifications to the computer program... relating in whole or in part to security or error correction that applied to the owner of the machine or other product... shall apply to the person to whom the machine or product and the copy of the computer program are transferred.

While it's ridiculous enough that this bill is even needed, it's nice to see at least some good copyright reforms popping up.

Filed Under: blake farenthold, copyright, equipment, first sale, ownership, property, property rights, resale, resellers, yoda, you own devices

Moral Rights, Property Rights And Picasso: An Artistic And Legal Conundrum

from the so-now-what? dept

We've discussed moral rights here a few times in the past. These rights -- which focus on things like attribution and making sure artwork is not damaged, denigrated or destroyed -- are generally not recognized in the US. They're much more popular in Europe, and in fact, are often referred to as "droit moral," which is the French term. Of course, as overly pedantic IP lawyers never fail to remind us, while the US has generally not recognized moral rights, that is not entirely true. As part of trying to sorta kinda pretend that the US was compliant with the Berne Convention on copyright, which requires that moral rights be recognized, the US passed the Visual Artists Rights Act (VARA), which does recognize moral rights for certain types of physical artwork, including paintings, drawings, prints and sculptures.

That has now created an interesting legal (and, possibly, moral and artistic) conundrum in New York City. The Four Seasons Hotel in midtown Manhattan happens to have a mural painted by Picasso, called "Le Tricorne." The mural was originally part of a set decoration for a performance of Diaghilev's Ballets Russes, but has been in the Four Seasons restaurant lobby since 1959. Given how easy it is for anyone to go see it, it has been called Pablo Picasso's most readily accessible painting. Except... the guy who happens to own the property hates it and has referred to it insultingly. And he thinks (or, at least, claims) that the wall the mural is attached to is damaged and in bad need of repair, so he'd like to get rid of the painting (and, supposedly, replace it with another piece of artwork from his own collection). But art experts say that moving the painting will almost certainly destroy it. And, under VARA, it is believed that "works of recognized stature" can be prohibited from being destroyed.

And, voila, a legal and cultural conundrum. As Mira T. Sundara Rajan at the 1709 blog writes:

Where does this leave things with Picasso’s mural? Given its authorship, the ease of establishing that the Picasso is a work of “recognized stature” seems fairly straightforward. Accordingly, VARA could be invoked by the New York Landmarks Conservancy, which owned the Picasso after it was donated to the group in 2005, to prevent its possible destruction by removing it from its place in the Four Seasons Hotel. Such a ruling can be predicted with reasonable assurance in only a few jurisdictions in the world – including India, strongly pro-moral rights, and the United States, strongly ambivalent, which both agree on the principle that destruction of a work should be prevented, in so far as possible, by artists’ moral rights.

Above all, the case fascinates because of Picasso’s absence from the debate. Moral rights are often said to serve the aggrandizement of individual artists or (gasp) their heirs. In this case, however, the dispute would seem to have little impact on Picasso’s reputation or the wealth of his heirs. On the other hand, the painting has aptly been called “Picasso’s most readily accessible painting” (Terry Teachout in the Wall St J, cited here), and it presents the alluring image of art interwoven with the fabric of life in ways that are not usually possible in Western cities. In this case, at least, moral rights are widely perceived as a public interest issue.

There are obviously a number of different arguments to be made about what makes the most sense here, but the destruction of artwork always seems like a distressing result. At the same time, there are legitimate property rights issues -- and a more serious question of what if the structural integrity of the wall is actually in question. Do you "save" the artwork just to have the wall eventually cave in anyway? But where this gets even more interesting to me, is what it might mean for other types of artwork as well. Take, for example, Banksy. His works certainly fall into the realm of "works of recognized stature" -- but they might also be done in places where he had no permission to do them. That's true of a number of other increasingly well-known artists these days. And while Banksy may not be a fan of intellectual property, could someone invoke moral rights (which he may not even care about) to block the removal of one of his works?

Filed Under: four seasons, le tricorne, moral rights, picasso, property rights, vara

Rep. Nadler Claims 'You Bought It, You Own It' Is An 'Extreme Digital View'

from the oh-really? dept

We've written about Rep. Jerry Nadler a few times. He recently became the "ranking member" (i.e., highest ranking Democrat) on the House subcommittee on intellectual property, which clearly made copyright maximalists happy. Nadler has a history of heavily supporting copyright maximalist positions, including pushing for what was effectively an RIAA bailout a couple years ago, and has previously supported ridiculous dangerous concepts like a new copyright for fashion designs (and idea that is both unnecessary and likely to harm the fashion industry).

He's already off to a dangerous start, introducing a bill to create artist resale rights (something he's done before. This is an issue we've written about many times, creating a ridiculous idea that people who buy artwork no longer own it outright. Any time they resell the artwork at auction, they might have to pay some of the proceeds back to the original artist. As with the fashion copyright idea, what this does is harm innovative new artists by favoring wealthy established artists. As we've discussed, this punishes investors who are willing to support new artists, taking away their incentive to invest in those artists, while at the same time decreasing the incentive for other artists to continue producing art (since now they get paid multiple times for the same work).

Given all that, it's quite clear what Rep. Nadler thinks about basic concepts like property rights: he's not a fan at all. In fact, in a rather astounding statement to the Association of American Publishers, Nadler claimed that the idea that "you bought it, you own it" is somehow extremist:

“The ‘you bought it, you own it’ principle is an extreme digital view and I don’t think it will get much traction,” he said, referring to the mantra of proponents of the right to resell digital goods.

Oh really? The specific discussion concerned people wanting to be able to resell used ebooks, just like they can resell regular books. But, really, the idea that "you bought it, you own it" is somehow extremist? Isn't that a fundamental concept in property rights? In fact, we've highlighted how copyright maximalists are trying to destroy property rights by denying people the basic ownership rights over things they bought.

It seems extremely troubling when such a key member of the House subcommittee on intellectual property has such a negative view of our basic property rights.

Filed Under: artist resale rights, copyright, digital, ebooks, jerry nadler, ownership, property rights, you bought it you own it

Copyright Week: How Copyright Is Being Use To Destroy Property Rights

from the not-enhance-them dept

The latest in our posts for Copyright Week explores the concept of "you bought it, you own it," and how that's going away thanks to copyright. What's funny (or depressing) is that copyright's strongest defenders like to claim that protecting stronger copyright is about increasing "property rights." We've long since pointed out that copyright and property are very different. Property, as a concept, was developed to better manage the efficient allocation of scarce resources. But when something isn't scarce, it simply makes no sense to have a property right around it.

But we're not here to discuss whether or not copyright is or isn't property right now. Instead, let's look at how copyright has fundamentally taken away property rights from many. And let's start out with a look back into history. This isn't something that is necessarily new. You can go all the way back to 1773 and the famous case in Scotland of Hinton v. Donaldson, in which Lord Kames was already aware of how excessive copyright can interfere with real property rights:

What is then the nature of the pursuer's right? He does not pretend to say, that it is a right to any corpus, to any subject that can be possessed, or that can be stolen from him. Ergo, it is not property. Taking it in all views, no more can be made of it than to be a privilege or monopoly, which entitles the claimant to the commerce of a certain book, and excludes all others from making money by it. The important question then is, from what source is this monopoly derived, a monopoly that endures for ever, and is effectual against all the world? The act of Queen Anne bestows this monopoly upon authors for a limited time upon certain conditions. But our legislature, far from acknowledging a perpetual monopoly at common law, declares that it shall last no longer than a limited time.

But to follow out the common law. The composer of a valuable book has great merit with respect to the public: his proper reward is approbation and praise, and he seldom fails of that reward. But what is it that entitles him to a pecuniary reward? If he be entitled, the composer of a picture, of a machine, and the inventor of every useful art, is equally entitled. Such a monopoly, so far from being founded on common law, is contradictory to the first principles of society. Why was man made a social being, but to benefit by society, and to partake of all the improvements of society in its progress toward perfection? At the same time, he was made an imitative being, in order to follow what he sees done by others. But to bestow on inventors the monopoly of their productions, would in effect counteract the designs of Providence, in making man a social and imitative being: it would be a miserable cramp upon improvements, and prevent the general use of them. Consider the plough, the loom, the spinning wheel. Would it not sound oddly, that it would be rank injustice for any man to employ these useful machines, without consent of the original inventors and those deriving right from them? At that rate, it would be in the power of the inventors to deprive mankind both of food and raiment. The gelding of cattle for food, was not known at the siege of Troy. Was the inventor entitled to a monopoly so as to bar others from gelding their cattle? What shall be said of the art of printing? If the monopoly of this useful art was to be perpetual, it would be a sad case for learned men, and for the interest of learning in general: it would enhance the price of books far beyond the reach of ordinary readers. Such a monopoly would raise a fund sufficient to purchase a great kingdom. The works alone of Shakespeare, or of Milton, would be a vast estate. Te art of making salt water fresh is a very late invention. Was it ever dreamed to be a transgression against property, to use that art without consent of the inventor?

I observe, in the next place, that this claim, far from being founded on property, is inconsistent with it. The privilege an author has by statute, is known to all the world. But I purchase a book not entered in Stationer's hall; does it not become my property? I see a curious machine, the fire engine, for example. I carry it away in my memory, and construct another by it. Is not that machine, the work of my own hand, my property? I buy a curious picture, is there any thing to bar me from giving copies without end? It is a rule in all laws, that the commerce of moveables ought to be free; and yet, according to the pursuer's doctrine, the property of moveables may be subjected to endless limitations and restrictions that hitherto have not been thought of, and would render the commerce of moveables extremely hazardous. At any rate, the author of avery wise or witty saying, uttered even in conversation, has a monopoly of it; and no man is at liberty to repeat it.

Lord Kames immediately understands the dangerous nature of how copyright can actually interfere with the property rights of others, and it's a situation that has gotten significantly worse over time, especially now that all sorts of things -- digital and physical -- include code or other content that can be covered by copyright law. And, as such, things that we "buy" every day are no longer actually being bought, but rather licensed -- and with that license comes all of the restrictions that Lord Kames mocked as crazy centuries ago.

Last year, Alex Cummings wrote an excellent article discussing the end of property rights, because copyright was slowly being used to take those rights away, and how it's only getting worse:

Today, we see a renewed attack on the rights of consumers by big business. Overly zealous regulation means that consumers are essentially barred from "unlocking" a cell phone, or severing the device from its original wireless carrier. Critics warn that such restrictions not only limit the rights of consumers but threaten to stifle old-fashioned tinkering and innovation. It is as if Ford told customers that they can't pop the hood of their car and mess around its inner workings (which is how the world got NASCAR, incidentally).

How far should a phone company's power extend into our personal lives when we buy one of their products? When you buy a phone or an MP3, is it really yours—or has a company just loaned it to you with a laundry list of stipulations and provisos? The age of cloud computing is upon us, and soon most of our books, movies, and musics might have no material form. We may discover that buying something no longer means owning it in any meaningful sense—and our stuff isn't really ours anymore.

It used to be that if you bought something, you owned it. That's a property right. But that's being constantly eroded thanks to the over-aggressive use of copyright. Even worse, many of the worst abusers of this want the best of both worlds. They want to pretend something is a purchase when it benefits them, while arguing that same "purchase" is just a license at other times. It's Schrodinger's copyright. But the end result is the same: copyright is being used to take away basic property rights by hiding it in the fine print.

And that has massive implications for ownership, economics and innovation. True property rights are key to a functioning economy. But when everything you buy is not actually yours, and you're unable to do what you want with it, then you limit the ability to build up markets and to further innovate. So much innovation comes from someone taking something they've bought, tinkering with it, changing it, improving it, making it useful for other purposes. But in a world where copyright and control rule over all, you limit that kind of innovation, such that only the copyright holder (often not the initial creator) can control that innovation and process. And that rarely ends well.

So, yes, let's talk about property rights and how important they are. But if we're talking about copyright in that context, it needs to be by noting just how far copyright has gone to take away and destroy our basic property rights. And that's something that needs to change.

Filed Under: copyright, copyright week, freedom to tinker, innovation, licenses, ownership, property rights, you bought it you own it

Chief Judge Of Patent Court Compares Killing Bad Patents To Genocide

from the how-is-this-guy-in-charge-of-anything dept

Unfortunately, I have no link on this one, because someone sent me a copy of an article that is either not online or only behind a paywall somewhere, but at a recent AIPLA (American Intellectual Property Law Assocation) meeting, Judge Randall Rader, the chief judge of the Court of Appeals for the Federal Circuit (CAFC), which handles all patent appeals, apparently complained about "vague language" in the most recent update to patent law, the America Invents Act, to have the US Patent Office's (USPTO) Patent and Trademark Appeal Board (PTAB) review more patents to dump bad ones. The recently proposed patent reform bill from Rep. Bob Goodlatte would expand this program. Now, anyone who recognizes the importance of getting rid of bad patents, knowing how bad patents can make the overall problem worse, should support this. But, not Judge Randall Rader. He compares it to genocide.

On one side of the PTO, he said, “You have 7,000 people giving birth to [intellectual] property rights,” while in the PTAB, there will soon be as many as 300 administrative patent judges “acting as death squads, killing property rights.”

I'm almost at a loss for words to describe just how painfully clueless this is. Frankly, a statement like this should disqualify someone from having anything to do with patents whatsoever. The purpose of patents is not to create "property rights." That is not the end goal at all. Rather it's to promote the progress by disseminating information. As a part of that, inventors are supposed to be given a limited amount of exclusivity, but only on things that are new and non-obvious to those skilled in the art, and only such that it creates the incentive to create that invention.

Arguing that the goal is to create property rights is just wrong. If that were the goal, we'd hand out many more property rights just for the hell of it. Why not create property rights on air? We could create so many damn property rights and, under Judge Rader's system, this would all be good. I'd get to toll him every time he wanted to breathe, but that's good because "property rights." Back here in the real world, we understand that property rights, by themselves, are not a be all, end all, but a means to an end: property rights are an incredibly important tool for creating efficient transactions and markets. But not everything needs efficient transactions and markets, and when property rights are poorly defined or are setup in places where they're not needed they can have a massive hindering effect on efficiency, markets and innovation.

That's the very problem that so many people (though apparently not Judge Rader) are concerned about with all of these bad patents. We should be happy to get rid of them, and not because it's "killing property rights," but because they're getting rid of economic inefficiencies that hold back innovation and progress.

Filed Under: intellectual property, patent trolls, patents, property rights, randall rader