The Connection Between Wikileaks Censorship And PROTECT IP: Censorship Through Cutting Off Service Providers

from the this-is-a-problem dept

The always thought-provoking Yochai Benkler, has a new paper, which, unfortunately (and pointlessly given Benkler's key points -- see update below), is locked up behind an MIT paywall. It explores the "new vector" for censorship found in both the attacks on Wikileaks and the PROTECT IP Act: censorship by forcing service providers to not do business with certain websites. As the abstract notes:

The WikiLeaks affair and proposed copyright bills introduced in the Senate are evidence of a new, extralegal path of attack aimed at preventing access and disrupting the payment systems and advertising of targeted sites. In this model, the attacker may be a government agency seeking to circumvent constitutional constraints on its power or a private company trying to enforce its interests beyond those afforded by procedural or substantive safeguards in the law. The vector of attack runs through the targeted site's critical service providers, disrupting technical services, such as Domain Name System service, cloud storage, or search capabilities; and business-related services, such as payment systems or advertising. The characteristics that make this type of attack new are that it targets an entire site, rather than aiming for removal or exclusion of specific offending materials; operates through denial of business and financial systems, in addition to targeting technical systems; and systematically harnesses extralegal pressure to achieve results beyond what law would provide or even permit.

As he notes, the law has historically focused on narrowly targeting any attack on speech by removing just the offending works. That's about the only way that such efforts could line up with the First Amendment (and some may reasonably even argue that point). Yet with government pressure from the likes of Senator Joe Lieberman and the new PROTECT IP Act, they now go for scorched earth policies in which a variety of service providers are suddenly pressured or required to no longer do business with the sites in question. Payment processors, "information location tools," ad networks and DNS providers are all told they have to cut off the offending site. While the site itself may not be touched, the goal is to effectively starve such sites out, by blocking most reasonable services that such a site needs to exist.

While putting tremendous compliance burdens on those third party service providers, it also goes against the very fundamentals of the First Amendment in that it doesn't merely seek to stop illegal speech, but takes a broad attack against entire sites. The risk here was clearly laid out earlier this year by over 100 law professors including many of the most respected in the field. The other side has only trotted out one lawyer on their side: Floyd Abrams (who, while famous as a First Amendment lawyer, also does a lot of work with Hollywood). Supporters of this massive threat to the First Amendment keep pretending that as long as they say "Floyd Abrams says it's fine!" that they can ignore everyone else raising serious and significant First Amendment concerns. The problem, of course, is that even Abrams' "support" is pretty weak.

In fact, if you read what Abrams actually says (pdf), at points he appears to come out against provisions of PROTECT IP as violating the First Amendment. Such as this:

Any bill providing injunctive relief should be limited to halting infringement and prohibiting future infringement online, not acting as a prior restraint on protected speech in the future. For example, if a site or domain is seized or blocked for infringement, operators must be free to post all their non-infringing content elsewhere, as well as on their original site, once the infringing content is removed.

Except, as we've seen with the Puerto 80 case, the government does not allow site operators to repost non-infringing content on their original site at all. Given that Benkler, in the paper above, compares PROTECT IP to the Wikileaks situation, it should equally come as no surprise that Abrams last year ran into some problems for misrepresenting Wikileaks' actions in trying to support censoring that site.

In the long run, I find it difficult to see how one can be intellectually honest and side with Abrams on these issues, as compared to Benkler, who makes a pretty compelling case that these kinds of attacks on free speech are something to be worried about.

Update: Benkler sends over a link to a non-paywalled version (pdf).

Filed Under: censorship, protect ip, service providers, third parties, yochai benkler

Patent Holders Trying To Drag 3rd Parties Into Patent Disputes

from the troll-expansion dept

If you thought bogus patent lawsuits were crazy now, just wait and see what might happen if a court rules the way two companies are arguing they should. The EFF has filed an amicus brief in two cases in which patent holders are arguing that they can drag third parties into patent lawsuits if those third parties do one part of a claim, while someone else does the rest. If you think about this, and are aware of current patent lawsuits, this is a horrifying prospect. Think Lodsys on steroids, where individual consumers could be sued for patent infringement, merely for making use of what a service provider offers. For example, in one of the two cases, Akamai is claiming patent infringement, and the issue is one claim in the patent. All of the steps of that one claim are handled by a third party... except for "tagging," which is done by users. If Akamai's argument holds, then users of Limelight's services who do "tagging" could be liable for patent infringement without having any idea at all that they're at risk, and without them even violating the vast majority of what's claimed in the patent.

While the patent holders are claiming that without this the patents would be unenforceable, the EFF filing reasonably argues that the problem is that the patents were drafted poorly, and patents should make clear that when they list out a series of steps, those steps are performed by a single party. The arguments by the patent holders would put almost everyone at risk of being directly liable for patent infringement without them realizing it. We see broad patent claims asserted against various internet companies all the time. Imagine if every user of those services could suddenly be sued for infringement as well, just because clicking on a button, adding a tag or whatever, helped "infringe" on the patent in question in combination with the service provider?

As the filing notes, there is simply no social benefit to imposing liability on such third party users. They're hardly in a position to stop the infringement (let alone even know that it's going on). All they're doing is using a service that is offered to them.

Not surprisingly, one of the companies making this argument, McKesson, is using copyright law to back this fundamentally new interpretation of patent law. Specifically, McKesson cites the Supreme Court's terrible Grokster decision on third party liability, and is trying to extend it to patent law. Of course, McKesson does not even properly cite Grokster, falsely claiming that Grokster claims "a defendant's decision to profit from infringement 'while declining to exercise a right to stop or limit it'" makes one liable. That's simply not the Grokster rule at all. Grokster set out a specific set of criteria under which a third party would be liable, but "declining to exercise a right to stop or limit" is not nearly enough.

Filed Under: infringement, patents, third parties
Companies: akamai, limelight, mckesson

Bogus Infringement Takedowns And The Danger Of Relying On Third Party Services With No Backbone

from the sad dept

We've discussed in the past how the DMCA notice-and-takedown process could be deemed a First Amendment issue, in that it involves government pressure to block speech prior to any hearing -- in fact, just on the say so of an individual. That's because the way it works is that if a service provider receives a DMCA takedown notice, they either have to take that content down, or face liability themselves. Nearly all service providers take the liability-minimizing position of simply taking down the content. Some go even further and take down entire accounts. It's a massive overreaction, but it's a lot easier than actually figuring out what's going on and the law encourages that.

This is becoming a bigger and bigger problem lately, as more and more people and companies rely on third party service providers for what they do. New social services are popping up left and right and becoming quite popular: Facebook, Tumblr, Twitter and others -- and unlike a blog where you can host it on your own server and (hopefully) find a service provider who doesn't easily fold, these services require you to keep the content on their servers and they often seem less willing to hear people out.

Today, we have two separate examples of this, both involving "big" names, which is really the only reason they're getting attention. Were it to happen to less well known names, their content would likely just have been stifled.

First up, we have our friends over at Ars Technica, who had their Facebook account taken down due to a vague complaint of copyright infringement. No real details. No clue who filed the complaint. No notice. And the entire account locked down:

Prior to the account lockout, we had received no notices of infringement or warnings. Truly, we awoke to find that Facebook had summoned a judge, jury, and executioner and carried out its swift brand of McJustice all without bothering to let us know that there was even a problem.

Further investigation has revealed just how flawed Facebook's infringement reporting system is. To begin with, someone making a complaint can provide any third-party e-mail address they choose. So it is rather easy to spoof the origin of a complaint, while giving Facebook and the accused no chance for a direct rejoinder.

The Ars crew is now highlighting how big a problem this is on Facebook, and how ill-prepared Facebook appears to be at handling counternotices or complaints about all of this:

"I have had this happen twice now. I am a professional photographer and I have been using Facebook to increase my business. This has been working great so far. The first time, I was the only admin of the fan page and my account got suspended (for what reason, I still do not know). And thus, my fan page was automatically assigned to some random 'fan' of the page. Of course they renamed it and stole all of my fans.

When contacting Facebook to try and get my main account reinstated and my fan page back, (7 total emails spanning a 2 week time) I got no response at all. My network had been crushed and I had to start from scratch."

Apparently, this has been an ongoing issue for a number of websites, including Neowin, which has had its Facebook page taken down multiple times due to a bogus complaint. In that case, it's even more ridiculous as Facebook claims the only way to fix it, is if Neowin can convince the person who filed the original notice to change his mind.

Next up, we have Danah Boyd, who is well known for her research and insightful writings into internet culture and social media. Apparently she had a Tumblr account under the name Zephoria, the online name that she has used for over a dozen years. Yet, a few years ago, some marketing consultants, who have nothing to do with Boyd, started a company called Zephoria and have been apparently trying to push Danah out of her online persona. The company apparently filed a trademark claim with Tumblr, who simply handed her Tumblr account over to the company and changed her account to some other name without her approval. Tumblr claims it contacted her, but gave her very short notice and she apparently did not see the note in time.

Thanks to her going public about the issue, Tumblr has apologized and reverted the mistake, and, I imagine, someone inside Facebook is scrambling to do the same thing for Ars Technica as well. But, this is a really big problem that is impacting more and more people and it's only going to continue. Part of the problem is the absolutely ridiculous way Congress and the courts have increased third party liability, such that these service providers feel that as soon as anyone says something, they need to totally kill accounts. It's a systematic way to use intellectual property claims to stifle and censor speech. It's a huge problem that's only going to get worse.

Filed Under: ars technica, copyright, danah boyd, liability, neowin, takedowns, third parties, trademark

Myth Debunking: ISPs Are Profiting From 'Piracy'

from the uh,-no dept

One of the popular claims from entertainment industry supporters, who somehow want ISPs to be liable for file sharing, is that "ISPs profit from file sharing." We hear this over and over again. But there's little evidence that's true. It's not like most internet users wouldn't have internet access if they couldn't file share (that's another myth, where the industry overvalues its own content, without realizing there are other reasons to have an internet connection). However, even more evidence can be found in the fact that various ISPs continue to work so hard to throttle file sharing traffic because it actually costs them a lot in terms of bandwidth. The ISPs already have some incentives to minimize traffic hogging (even if their methods are crude and lame right now).

Filed Under: bandwidth, broadband, isps, piracy, profits, third parties
Companies: rogers

Ad Firm Pays Up To Studios, Promises Not To Work With 'Pirate' Sites Any More

from the what's-the-legal-basis dept

Earlier this year, we wrote about a lawsuit filed by Disney and Warner Bros. against Triton Media, an ad firm that apparently helped place ads on sites that linked to infringing content (hosted elsewhere). We noted that the lawsuit seemed like a huge reach for a variety of reasons. Nothing in the complaint seemed to indicate that what Triton had done had violated copyright law. Instead, it focused on the various sites for which it provided ads. And, even those sites seemed like a stretch on claims of copyright infringement. The sites didn't host any infringing content. They just allowed people to post links to content (authorized or not) that was hosted elsewhere. To go after the ad provider for a few of those sites, claiming some fourth or fifth party form of contributory infringement seemed pretty crazy.

However, THREsq is now reporting that Triton has settled the lawsuit, paying $400,000 and agreeing not to provide ad services to those sites or to similar sites. THREsq claims the studios "won" the case, but a settlement does not mean a win. It just means Triton realized it was cheaper to settle than to fight two of the biggest studios with deep pockets.

Of course, Triton is a side show. The real question is if anyone will go after Google for something like this. There's been an increase in bitching from copyright holders lately that Google ads appear on various sites, and that Google "profits from piracy." Of course, that's not an accurate statement at all, but it's grown in popularity among some lately. The fact that Triton settled may seem like good news for the studios, but without an actual court ruling on such a tortured fourth party liability claim, it seems like they're still a long way from being able to confidently bring such claims. The settlement news may be useful in scaring some other smaller advertising firms, but I'd be surprised if the studios jumped all the way to accusing Google right now. Google, I would assume, would push back hard, and has the legal resources to do so.

Filed Under: ad firms, copyright, studios, third parties
Companies: disney, triton media, warner bros.

Why Won't Southwest Let Third Party Service Providers Help Southwest Fans Manage Their Frequent Flyer Points?

from the too-bad dept

Southwest Airlines is the sort of airline that seems to get a "love it" or "hate it," review from folks. The funky boarding process and the general no frills attitude of the airline work for some, but not for others. Personally, I like Southwest for short haul flights, don't mind the boarding process and especially like the fact that it's retrofitted many of its gates with comfy chairs that have outlets and USB chargers at many seats. I've also found that on about 10% of my Southwest flights, there will be a very, very funny flight attendant who entertains the entire plane (a few weeks ago, the flight attendant on my flight got loud applause for his somewhat hilarious safety warning message that included, among other things an "intermission" where he sang the "let's all go to the snack bar" song).

So it's a bit disappointing that the airline has apparently decided to take an unfriendly approach to folks who want to use third party products to track their travel and manage their frequent flyer points. TripIt is an increasingly popular service (I have an account, but have never actually used it) that many people have been using these days, but one of our readers passes along an email that TripIt recently sent out to users:

"Hello,

We're sorry to let you know that Southwest Airlines has asked TripIt and several other online travel companies to stop tracking points for members of their Rapid Rewards program. Effective immediately, TripIt Pro has discontinued point tracker support for Southwest Airlines Rapid Rewards. Your program history and balance will be available until December 31, 2010 on the TripIt website and mobile applications.

We sincerely apologize for any inconvenience this may cause, and we appreciate your understanding. Please contact us if you have any questions.

Thanks,

TripIt

This seems really unfortunate. An airline like Southwest that has a funky passenger-friendly view of things should be encouraging apps that make it easier and more enjoyable to fly Southwest and to use its Rapid Rewards system. It's too bad that they're trying to shut out those third parties.

Filed Under: frequent flyers, services, third parties
Companies: southwest airlines, tripit

eBay Dumping All Third Party Checkout Options

from the you-buy-with-ebay,-you-pay-with-ebay dept

Reader Mike sent over a story from Investors.com claiming that eBay was now banning Google Checkout from eBay. That struck me as odd, because we had written about eBay banning Google Checkout more than four years ago, and weren't aware that anything had changed. And, in fact, that's the case. Ebay is pointing out that the new announcement has nothing to do with Google, which has always been banned. Instead, what it means is that other third party payment offerings, which had previously been allowed, will no longer be offered. That seems unfortunate, as eBay used to be quite open about letting others play nicely in its sandbox, but recently has become more and more controlling.

Filed Under: payments, third parties
Companies: ebay

If A Site Uses Third-Party Moderators Who Do Something Bad, Does The Site Lose Safe Harbors?

from the that-would-be-bad dept

Last year, we wrote about a rather straightforward case where a nutritional supplement company had sued the operators of the forum bodybuilding.com, because of some unflattering comments posted in the forum. The court quickly tossed out the case on Section 230 grounds, noting that a site is not liable for the actions of its commenters. However, Eric Goldman alerts us to the latest in that case, which is a bit more troubling. After having the case transferred to a different court, the supplement maker used a new argument, claiming that it was false advertising and that since a third-party "moderator" posted one of the messages, the site is now responsible. That's basically how the company tried to get around Section 230.

The court, unfortunately, seems to have agreed. While it does note that bodybuilding.com has Section 230 immunity despite having third party moderators, it allows for the possibility that since one of the moderators may have posted one of the messages in question, the moderator could be considered "a representative of the site." This goes against a whole series of case law, which Goldman lists in his post, and could create all sorts of problems for sites that use volunteer or third party moderators. Of course, this was just in response to the motion to dismiss, so the court could come back and say that third party moderators don't make a site liable, but it's worth paying attention to this case. As Goldman notes: "I really can't imagine Web 2.0 succeeding without a robust cadre of site admins and moderators helping self-police an online community."

Filed Under: false advertising, forums, moderators, safe harbors, section 230, third parties

Patent Battles Focusing On Third Parties To Push For Settlements

from the trying-to-force-a-settlement dept

Two recent patent battle lawsuits made news this week, and both highlighted one troubling aspect of patent lawsuits: patent holders trying to damage others beyond the company that infringed. Now, before the patent system defenders rush to post angry comments, this is not a new thing. It's been quite common for a while. Nor is it surprising. If you were a patent attorney representing one of these patent holders, you'd probably do the same thing: going after third parties is probably a good strategy to force the other company to settle. However, it does highlight how patent law is used in ways that clearly are outside of its intended purpose. That is, it's being used to punish plenty of innocent third parties by removing innovation from their grasps, rather than encouraging innovation.

The first case involves a patent lawsuit concerning Microsoft's Visual Studio. WebXchange claims it has patents that Visual Studio violates -- but rather than suing Microsoft, WebXchange sued three Microsoft customers, claiming that by using the software, they were violating the patent. This is clearly an attempt to scare Microsoft into settling, out of a fear that other customers won't use Visual Studio to avoid getting sued by WebXchange. Microsoft is fighting back, asking a judge to declare the patents invalid, but in the meantime, WebXchange has been able to drag Microsoft's customers into a patent battle, putting extra pressure on Microsoft to settle.

The second case involves Spansion suing Samsung for patent infringement concerning Samsung's memory chips. In this case, Spansion isn't just going after Samsung, but demanding an injunction that would block US sales of a variety of popular gadgets that use Samsung's memory chips -- including iPods and Blackberries. Once again, while it's unlikely that a court would order such a block, by dragging other companies such as Apple and RIM into the mess, Spansion is abusing the patent system's threat of an injunction to put extra pressure on Samsung to settle.

Filed Under: patents, settlements, third parties
Companies: apple, dell, fedex, microsoft, rim, samsung, spansion, webxchange

If You've Got A Platform Strategy, It Helps To Put Out The Welcome Mat For Third-party Developers

from the open-for-licensing dept

The New York Times Saul Hansell takes a look at the business model behind the Chumby, an Internet-age replacement for your alarm clock. Apparently, the plan is to keep the price of Chumbies low and make money by demanding a cut of any ad revenue generated by third-party applications. Hansell seems skeptical of this business model, and so am I. Chumby did the right thing by making its device relatively open and trying to provide a platform that other companies will build on. But its plan to demand a cut of other firms' advertising revenues seems like it might undercut that strategy. Especially when it's still trying to get the platform off the ground, it should want to make it as easy as possible for third-party developers to participate in the Chumby ecosystem.

Requiring third party developers to license access to the platform both increases the red tape required to enter the market for Chumby applications and reduces the potential profits from doing so. Potential third-party developers are going to think twice about betting on a platform whose owner may demand a bigger cut in the future. Obviously, there needs to be a way to recoup their investments on the Chumby platform. But if the Chumby becomes a hit, there will be all sorts of ways to monetize that success. Most obviously, the company can raise the price of the Chumby, or sell premium Chumbies with extra functionality. It can install its own applications by default and sell ads with those. It can sell accessories, or create a certification program for accessories like Apple's "Made for iPod" program. It can offer seminars and consulting services to people wanting to develop Chumby applications. It's never difficult to monetize a successful platform -- especially when you're selling the hardware. Putting up roadblocks to the development of new applications is a mistake, even if it generates a bit of extra revenue in the short run.

Filed Under: business models, chumby, developers, platforms, third parties