This Week In Techdirt History: June 27th - July 3rd

from the that's-how-it-went dept

Five Years Ago

This week in 2016, the Copyright Office was pushing a dangerous plan to strip websites of DMCA harbors, Google and Facebook were using copyright tools to take down extremist content, and lawmakers in Europe were floating the dumb idea of letting robots and computers have copyrights. Malibu Media was getting called out by a judge while also launching a lawsuit against its former lawyer, while two other important rulings in copyright cases stated that an IP address is not a person. We also took a closer look at Hillary Clinton's problematic tech platform and vague and confusing intellectual property platform.

Ten Years Ago

This week in 2011, early hacktivist group LulzSec announced plans to disband, and we looked at the impact this kind of hacktivism was having while the RIAA was citing such groups as another reason for passing the PROTECT IP act. Sony's CEO was blaming its own hacking woes on people wanting everything for free, while PS3 jailbreaker George Hotz (aka GeoHot) was hired by Facebook. Meanwhile, Righthaven's troubles continued with racketeering claims brought in South Carolina and similar claims made in Nevada, while the company was begging to be put back into a case it was dismissed from and trying to avoid sanctions by blaming its lawyer. Amidst this, we looked at the silver lining of Righthaven's activities: they helped to establish a much more expansive view of fair use when it comes to copying newspaper articles.

Fifteen Years Ago

This week in 2006, newspapers were at the peak of their efforts to block people from reading their work for free online. The fact that IP addresses are not people (and weren't in 2006 either) was proving an effective way of getting the RIAA to drop lawsuits. Amazon's plans to get into the video download business were leaked, while Metallica finally caved and decided to sell music downloads in iTunes, and Kazaa settled its lawsuit with the music industry and announced plans to go legit while Torrentspy was facing its own lawsuit and asking why Hollywood wasn't suing Google too.

Filed Under: history, look back

Sony Hates You: EarthBound Let's Plays Flagged For Copyright Infringement Due To Soundtrack

from the six-degrees-of-infringement dept

It's no secret that I don't care for the way that Nintendo treats its biggest fans when it comes to allowing them to view and use its IP in order to express their fandom. I have been known, after all, to create entire genres of posts with "Nintendo Hates You" in the title. And, so, when I noticed headlines about how YouTube videos for let's-plays featuring the classic SNES game Earthbound were being demonitized or taken down over copyright claims, I was sure I would be writing yet another of those headlines.

But, nope. Instead, this is a story about how Sony has issued copyright claims, and apparently rebutted counterclaims, against let's-plays for Earthbound not because it published the game, which it very much did not, but because Nintendo licensed the soundtrack for the game to Sony for an album release.

Over the past couple of weeks, reports have come flooding in from YouTube users who say that their EarthBound-based videos are being flagged for copyright by Sony. In some cases, it's reported that Sony has claimed the ad revenue for the video in question; in others, the videos appear to have been removed entirely.

As is often the case with YouTube, the reasoning for this lies with the game's music. While Nintendo still owns the EarthBound/Mother brand in terms of its video games and the franchise as a whole, the game's soundtrack was released as a studio album back in 1989 under Sony's then-named CBS/Sony music label, essentially meaning that any piece of music featured on that record can be claimed by the company.

Okay, if you really needed a more perfect example of how broken copyright laws have become in the modern era, this must certainly be that case. Nintendo releases a game called Earthbound in 1994. Nintendo composers created the music for the game. In 1994, and again in 2004, Sony licenses the music to release a studio album soundtrack. Fast forward nearly twenty years and suddenly people releasing videos of them playing the game that was created by Nintendo nearly thirty years ago are having those videos demonitized or taken down... over the album release. If you can seriously get through that and think that any of this makes sense, you have capacities that I simply do not.

Plenty of YouTube users have taken to social media to express their upset at Sony's decision to remove their content, hoping to find a way to restore their work. The videos will no doubt be getting flagged automatically, what with the soundtrack being part of Sony's catalogue, so unless Sony decides to manually excuse the affected videos going forward, it may be unwise to include music from the game in any future content.

Notably, some of these YouTubers are also indicating that they disputed the notices only to have Sony dig its heels in. If that's the case, this isn't just our stupid automated copyright notice systems creating chaos again.

But here's what this really all boils down to: if even Nintendo is allowing this content to remain up, it should probably stay up. Nintendo has arguably been one of the most aggressive enforcers and protectors of its IP on the planet. Sony is obviously no slouch in that respect, but there is literally nobody watching let's-plays in order to listen to the game soundtrack in the same manner they would an album version of it. In fact, one would think that it might serve as free advertising of Sony's albums, if nothing else.

Filed Under: copyright, earthbound, fans, lets play
Companies: nintendo, sony

Ohio Legislators Pass Bill That Would Make It Easier For Cops To Make Bullshit Arrests Of Bystanders

from the reps:-you-know-what-would-make-things-better?-making-things-worse. dept

A substantial part of the Ohio legislature seems incapable of reading the room. Following several months of anti-police violence protests, state legislators have passed a bill that makes it easier for law enforcement officers to arrest anyone for just about anything. (h/t Joe Papp)

The opening of this report by Cleveland's News 5 gives you the general gist of the bill.

A proposed state law that could make it a crime to shoot cell phone video of police got the green light by lawmakers to move forward following a statehouse committee hearing Thursday in Columbus.

Members of the House Criminal Justice Committee voted to approve the measure despite more than 100 civil rights, first amendment groups and individuals testifying against the measure since it was first introduced.

It seems like this would be a bad thing to do, considering the state of the room these legislators have failed (or chosen) not to read. For one thing, it would target First Amendment protected activity: the filming of public servants. Second, it gives police more power to make "contempt of cop" arrests which, despite the colloquial name, does nothing to make cops less likely to be viewed with contempt.

This isn't a bipartisan effort to ensure cops are left unharassed when harassing the public. This is a one-sided affair where the "us v. them" attitude has carried over from the cop shop to the legislative branch of the Ohio government.

Of course, the bill has its supporters. And they're all of one (blue) stripe.

The bills sponsors say it would protect both police and the public from harm when police are attempting to clear crime scenes, make arrests or maintain order and is supported by the Ohio Prosecuting Attorney's Association, Buckeye Sheriff's Association, Ohio Highway Patrol and the Fraternal Order of Police.

The opponents of the bill have pointed out the law's broadness, which could be read to could outlaw filming police officers. Or interacting with them in any way when they're handling a stop or effecting an arrest.

Here's what the bill [PDF] adds to existing obstruction of justice laws. First, it criminalizes this act of civil disobedience.

(7) Fail to follow a lawful order from a law enforcement

Then it piles on all of this:

(B) No person shall do any of the following to a law enforcement officer in the performance of the law enforcement officer's duties with reckless disregard as to whether the action diverts or obstructs the law enforcement officer's attention:

(1) Use force or threaten the immediate use of force against the law enforcement officer;

(2) Interfere with or obstruct a law enforcement officer in a manner that does any of the following:

(a) Inhibits or restricts the law enforcement officer's control of a subject or detainee;

(b) Deprives the law enforcement officer of control of a subject or detainee;

(c) Without the consent of the law enforcement officer, enters, or places an object or substance into, a space around the law enforcement officer that is large enough that the law enforcement officer cannot reach a person outside of the area.

(C) No person with the intent to distract a law enforcement officer engaged in the performance of the law enforcement officer's official duties shall throw any object or substance at or onto a law enforcement officer.

The good news is this caveat has been thrown in at the last minute -- a bone thrown to the 100+ rights groups and activists that read the bill's intent for what it was:

(F) Nothing in this section shall be construed to prohibit a person from using video or audio recording equipment to record a law enforcement officer in the performance of the law enforcement officer's duties.

Yes, but nothing in the law appears to prevent an officer from deciding some of the other forbidden acts are inseparable from the actions of someone filming police officers. An officer could claim the person's presence made it more difficult to control a detainee. An officer could claim the presence of witnesses with phone cameras rolling presents some sort of threat. An officer could claim they told bystanders with active cameras to disperse and they refused to obey a lawful order. So, this exception is great on its own, but it's terrible in conjunction with everything else tossed into the bill.

And, as if we really needed the true point of this bill spelled out for us, the police officer who was the epicenter of this seismic shift in public opinion about police officers and their abuses of power made it perfectly clear who cops feel the real threat is when deploying excessive force:

Derek Chauvin's defense attorney argued those surrounding police, taking cell phone video, were a distraction that helped cause Floyd's death.

Chauvin's lawyer isn't the only one to have expressed this sentiment. Following the killing of Eric Garner by NYPD officer Daniel Pantaleo, one of the NYPD's police unions said the real problem was bystanders with cameras and suspects wanting to "put on a show." And FBI director James Comey blamed a half-dozen spikes in violent crime around the nation following the Ferguson protests on people with cellphone cameras "taunting" officers into behaving badly.

If this bill becomes law, it won't make things easier for police. It might make it easier to effect bogus arrests, but it won't make the actual job of policing any easier. This will just widen the divide between the police and the policed. Disrespect can be earned much faster than respect. With police refusing to meet their employers halfway -- and being given the blessing to keep citizens at arms' length -- the problems people have been protesting about are never going to go away. This bill encourages officers to indulge their worst impulses. And this unwillingness to utilize self-control is a big part of why we're at the point people are burning down precinct houses in response to acts of police violence.

Filed Under: 1st amendment, arrests, bystanders, ohio, police, protests, recording police

Man Sues Multiple DOJ Agencies For Failing To Return Seized Cash They Told Him They Had No Interest In Keeping

from the I'm-sorry-sir-but-the-system-is-only-programmed-to-receive dept

Civil asset forfeiture remains a garbage government theft operation. Always has been. Always will be. The government can just take stuff, make up a reason for taking it, and then hope a system that's deliberately complicated and expensive will prevent citizens from trying to reclaim their property.

In some cases, they can't even be bothered to make up a better reason than "government policy." And even when it's decided it's not going to keep the property, it still makes it almost impossible for its owner to retrieve it.

That's what has happened to Alaska resident Willie Cooks. The government took $60,000 from him at the Fairbanks Airport and, despite claiming it doesn't intend to pursue a forfeiture, has held onto the money for nearly 16 months.

Cooks is suing [PDF] to get his money back. The only reason it was taken from him was because he chose, perhaps unwisely, to carry it with him on a flight to Las Vegas, Nevada. That's where both the TSA and the DEA got involved.

Heading through the checkpoint, Cooks was stopped by the TSA. The TSA saw Cooks' money and informed the Airport Police Department. The APD questioned Cooks, took his money, and turned it over to the DEA. Why did all of this happen? Because policy.

Upon information and belief, TSA follows a practice, policy, or standard operating procedure of seizing, or causing to be seized by state or federal agencies, cash carried by travelers in an amount of $10,000.00 USD or more.

This policy makes only a limited amount of sense for international flights where travelers are required to declare amounts over $10,000. It makes no sense for a domestic flight from Fairbanks, Alaska, to Las Vegas, Nevada.

And the DEA took the money because that's also what it does (apparently automatically) when it comes across a certain amount of cash.

Upon information and belief, the DEA follows a practice, policy, or standard operating procedure of seizing, or causing to be seized by state or federal agencies, cash carried by travelers in an amount of $5,000.00 USD or more without reasonable suspicion or probable cause to believe that any crime has been committed.

Cooks was not arrested. Nor was he even accused of committing any criminal act. His money was carried away by the DEA and a long run of government fuckery began.

On March 24, 2020 -- the day after the money was seized -- Cooks (via his lawyer) requested the money be returned. On May 11, the DEA issued a notice of seizure and the initiation of its forfeiture proceedings. Roughly two weeks later, Cooks submitted a claim form to the DEA.

On June 11, the DEA sent Cooks a response acknowledging his claim and saying "the matter has been referred to the judicial district noted above." There was no judicial district noted above. Cooks and his counsel tried to figure out what district was handling this but ran into dead ends. The few people they were actually able to reach provided no information or guidance.

No further information was discovered or provided by the government until January 28, 2021 when the US Attorney's Office of Alaska informed Cooks there were no pending civil or criminal forfeiture cases related to the seized $60,000. The Attorney's Office told Cooks to call the DEA to get his money back. After figuring out the DEA's Fairbanks office was no longer operative, Cooks got in touch with the DEA special agent in charge of his case who told him to call the US Attorney's Office to get his money back.

Additional convolution followed.

According to March 10, 2021, e-mail correspondence between AUSA Ryan Tansey and AUSA Kelly Cavanaugh, the US Attorney’s Office advised the DEA “to give the money back.” The e-mail correspondence revealed that the DEA claimed it no longer had control of the money and that the United States Marshals needed to be authorized to release the funds.

On March 11, 2021, AUSA Tansey advised the United States Marshals Service (USMS) that the USAO declined forfeiture and to “please return the funds.”

The funds were not returned. Meanwhile, everyone in the government keep getting paid for not doing the one thing requested of them.

On April 1, 2021, the USMS e-mailed AUSA Tansey stating, “Have you had any success in acquiring the letter Amy Welch mentioned that she received from DEA indicating funds would be returned to Mr. Cooks? I have an ACH form from him, but with no instruction in CATS to return these funds and DEA having no knowledge of the letter I cannot proceed so we were hoping she’d have a copy to provide.”

On April 12, 2021, Mr. Cooks responded to the USMS’s e-mail, attaching the prior communications from AUSA Tansey to the USMS to “please return the funds” and AUSA Cavanaugh’s e-mail to the USMS “We need to return it to the claimant. We did not pursue forfeiture.”

More nothing continued to happen. On April 28, Cooks emailed the AUSA and the Marshals Service asking for an update. He got one. The Marshals Service had now decided it was the DEA's problem to sort out.

On May 5, 2021, the USMS indicated “We are working to get these funds returned to you as soon as possible, but at this time we do not have the required documentation from the DEA yet.”

On May 25, the Marshals Service decided Cooks needed to fill out another set of forms to get his money back. He completed the new paperwork and returned it to the Marshals Service that same day. Another month passed with no return of his funds. Cooks approached the USMS again and (again) was told the problem was the DEA.

On June 22, 2021, the USMS responded “I have yet to receive official instruction from DEA instructing this return. I am still working with them to try and obtain this as there were a few hold ups on their end that have to be solved first.”

This was followed by messages from two AUSAs claiming no one in the US Attorney's office had CATS access so they were unable to speed this up. That's as inexplicable as the original seizure. CATS isn't something new and rare. CATS (Consolidated Asset Tracking System) has been in use since 1993 and is used by all DOJ components, including the DEA, US Marshals Service, and the DOJ's multiple US Attorneys Offices.

So, the government has held onto Cooks' money for 16 months despite clearly stating it has no interest in keeping it. Maybe this is just the side effects of the bureaucratic ineptitude often seen in sprawling organizations whose reach exceeds their grasp. Or maybe this is just the DEA hoping that if it ignores this long enough, it will be able to keep the money it already said it was going to return. Whatever the underlying reason, it's 100% bullshit. Hopefully the court will see this for what it is -- a government-ordained heist that didn't go quite as planned -- and get Cooks back his money along with some monetary damages for the rights violations and the months of screwing around by multiple government agencies.

Filed Under: civil asset forfeiture, dea, doj, legalized theft, tsa, willie cooks

Elvis Costello Doesn't Care That A Pop Star Copied His Riffs; Says Every Musician Does That

from the good-for-him dept

Is there any cooler musician than Elvis Costello? Honestly, one of the more annoying things about writing about the ins-and-outs of copyright law and creativity is realizing just how many of my artistic (music, filmmaking, writing, etc.) heroes turns out to have absolutely dreadful opinions about creativity and inspiration, often ignoring how they got to where they got, and instead focusing on pulling up the ladder behind them and squeezing as much cash as possible out of others. So I'm always concerned when I learn about musician I like opining on these issues -- especially over the last few years. You had the Marvin Gaye Estate cash in on a pop song that didn't copy any Gaye song, but just had a similar "feel." And that opened the doors to a whole bunch of similar lawsuits of aging rockers (or their estates) demanding money from newer artists.

But Elvis Costello apparently has decided to take the much more sane, much more creative, and much more supportive route. A few different artists have started whining about a new album by Olivia Rodrigo. It started with Courtney Love complaining about the promo artwork on Rodrigo's new album being somewhat similar to Hole's album "Live Through This."

To be fair, Love didn't get that upset, admitting "It happens all the time to me," but she did call it "stealing" and saying that "not asking permission is rude" and "bad form." I don't think it's any of those things. At most it seems like an homage. It might also be kind of an accident. The two sets of images are not really that close. And this is disappointing to see from Love, who twenty years ago famously wrote up one of the greatest screeds mocking record labels and the RIAA for their reaction to the internet.

But, then someone noticed that Rodrigo's music also seemed to have homages in it. Billy Edwards said that her song "Brutal" seemed to be a "direct lift" from Elvis Costello's "Pump it Up." Listening to one after the other, you can definitely hear the similarities in the guitar riff, even though the songs themselves are extremely different.

But... rather than freak out about it, Elvis Costello stepped in on Twitter to make it clear that (1) he's fine with it, and (2) this is how music works. Indeed, he points out that it's how he wrote some of his own songs as well -- "you take the broken pieces of another thrill and make a brand new toy."

In fact, with the hashtags on that tweet, Costello notes that Pump It Up is itself a kind of remix of Bob Dylan's famous Subterranean Homesick Blues, which itself was inspired by Chuck Berry's Too Much Monkey Business.

As Costello rightly notes, this is how music works. Artists build on ideas of what's come before. It's homage, and how creativity works. You take ideas and inspiration from those who came before, and then you make your own thing out of it. And, in the long run, everyone does benefit. New fans learn the new songs -- and as they get deeper into it it also helps them rediscover the pieces on which it was built as well. Only foolish people think that creativity springs forth disconnected from all else -- or that every single inspiration must get a piece of whatever successful ideas newer artists come up with.

So, kudos to Elvis Costello for being quite clear in recognizing the nature of creativity, inspiration, and homage.

Filed Under: copying, culture, elvis costello, olivia rodrigo, plagiarism, remix

Court Rejects Facebook User's Lawsuit Demanding $10 Million Per Day In Damages For Having His Posts Removed

from the all-things-in-moderation...-except-these-monetary-demands dept

How many constitutional rights can Facebook violate? To paraphrase Nigel Tufnel, the answer is none. None rights can be violated.

That won't stop people from suing social media platforms for having their posts/accounts moderated. Do a bit of deletion and all of sudden some people feel they have a federal case. Mandela Brock, d/b/a Mandel El'Shabazz on Facebook, got on the wrong side of some moderation and decided to sue about it.

The complaint [PDF] alleges a whole host of constitutional violations on the part of Facebook, which had removed some posts that violated the site's Community Guidelines. This is what Brock alleged:

As of the time that Plaintiff, Mandela Brock, was unconstitutionally subjected to censorship, without "just cause," and stripped of his rights, privileges, and immunities guaranteed by the United States Constitution, the New York State Constitution, along with federal and state law, there continues to be a pervasive and high-handed unwillingness of the defendants to obey the laws that govern them or to ensure the individual defendants, who they are mandated by law to supervise, follow the laws that govern them in particular the United States Constitution.

Moving beyond that, there are accusations that Facebook violated Brock's free speech, subjected him to psychological torture, "denial of his right to protest in a public square," and otherwise angered him to the point of litigation. According to Brock, Facebook violated his First, Fifth, Sixth, and Fourteenth Amendment rights. There's also a RICO allegation (because of course there is). That allegation surfaced after Facebook tried to relocate the lawsuit to its native California. (I'm sorry, I'm just reporting the facts. I cannot actually explain that part to you.)

Here's an indicative sample of the posts Brock created that Facebook removed:

If you can't see the embeds, perhaps you should feel grateful.

Brock's lawsuit asked for compensatory damages of $1 million "per account restriction" and $250,000 a day per "individual restriction violation of rights" as well as punitive damages of $10 million per day (plus $500,000/day) for the same thing. Also attorney fees, despite representing himself.

The complaint is signed Mandela Brock, Belligerent Complainant, Sui Juris Prose, In Propia Persona.

So, how much does Facebook owe for taking down Brock's n-word-loaded posts? None. None of the above. (via Eric Goldman)

Despite the plaintiff's citation of cases that don't actually help him (like Pruneyard and a case involving a labor union protest in front of a business{??}) [oh, and the California Constitution for some reason, which isn't going to help in New York], the court (performing the charitable reading of the complaint required in pro se cases) says there are no rights violations here. Just a private company doing private company stuff.

From the decision [PDF]:

Plaintiff’s claims based on the First Amendment, as well as on the Fifth, Sixth, and Fourteenth Amendments, therefore fail at the threshold because Facebook is not a state actor. Plaintiff contends that Facebook’s status as a “state actor” is “immaterial” because Facebook is performing a function “traditionally” performed by the government. The relevant function that Facebook provides is an online platform for speech. Plaintiff also analogizes Facebook’s provision of an online messaging service to the government’s traditional provision of mail services through the United States Postal Service. However, “[i]t is ‘not enough’ that the relevant function is something that a government has ‘exercised . . . in the past, or still does’ or ‘that the function serves the public good.’” Prager Univ., 951 F.3d at 998 (quoting Halleck, 139 S. Ct. at 1928-29). The government must have performed the function in question exclusively as well. Halleck, 139 S. Ct. at 1929. Facilitating the exchange of communication or hosting a platform for discussion are not activities “that only governmental entities have traditionally performed.” Prager Univ., 951 F.3d at 998...

At least the plaintiff can now proudly claim he got shot down just like Prager U, which also wastes a lot of everyone's time (including that of courts) attempting to portray social media companies as public utilities or public squares in order to advance its theory that its rights have been violated every time its content gets moderated.

The same goes for Brock's "new town square" argument.

The Supreme Court held in Marsh v. State of Alabama, 326 U.S. 501, 506 (1946) that citizens in a company-owned town were guaranteed constitutional protections against the deprivation of their First Amendment rights by the company, but courts have refused to extend Marsh’s holding to social media cases.

Brock also claimed that moderation of his content violated Section 230. Nope.

Facebook is immune under Section 230(c)(1) from claims related to its removal of objectionable content.

That's it for Brock. If Brock still wants to avail himself of the use of private property, he'll have to follow the owner's rules. It's that simple.

Filed Under: 1st amendment, content moderation, mandela brock, section 230
Companies: facebook

Daily Deal: xFyro Active Noise Cancelling Wireless Earbuds

from the good-deals-on-cool-stuff dept

The xFyro Active Noise Cancelling Pro Earbuds utilize active noise canceling not just to block out ambient noise but optimize your listening experience by calibrating it based on a 4-mic system that listens to your surroundings and music. The ANC Pro also features a conversation mode that allows you to selectively amplify conversations and alarms so you can stay alert while you're immersed in your music. It has 7mm graphene-powered drivers, 100-hour battery life, and custom engineered ergonomic fit. It's on sale for $40.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

AT&T Has DC Pushing The Idea That 'Big Tech' Should Give 'Big Telecom' Billions For No Coherent Reason

from the we've-been-over-this dept

Last month we noted how FCC Commissioner Brendan Carr had taken to Newsweek to dust off a fifteen year old AT&T talking point. Namely that "big tech" companies get a "free ride" on telecom networks, and, as a result, should throw billions of dollars at "big telecom" for no real reason. You'll recall it was this kind of argument that launched the net neutrality debate, when former AT&T CEO Ed Whitacre proclaimed that Google wouldn't be allowed to "ride his pipes for free." Whitacre was effectively arguing that in addition to paying him a premium for bandwidth, tech giants should pay him a troll toll. You know, just because.

Telecom lobbying and policy folks have done a great job capitalizing on the legitimate animosity over "big tech" to reseed this idea in the press using captured lawmakers and unskeptical news outlets. For example here's Axios this week parroting GOP claims that they genuinely want to address the shortfall in broadband subsidy funding by... having technology giants pay for it:

"It's just simply asking them to pay a fair share and start contributing on an equitable basis for these networks that they benefit from so tremendously," Carr told Axios."

Again, this is a self-serving 20 year old AT&T policy argument parroted by captured regulators and politicians. Namely that tech giants are mean old freeloaders, and should be throwing billions of dollars at telecom giants. Telecom giants that have long coveted Silicon Valley ad revenues, but have repeatedly proven too incompetent to develop their own modern media and advertising alternatives. So instead, they come up with creative ways to game DC's revolving door regulators and campaign cash slathered lawmakers in a bid to obtain money they legitimately believe they're "owed."

But it's all bullshit. For one, nobody gets a "free ride" when it comes to US telecom. Companies like Amazon, Google, and Netflix all pay billions of dollars in total for undersea cable runs, massive cloud storage, transit routes, and content delivery networks. Hell, Google is even a residential ISP. That's on top of the money consumers, businesses, and Silicon Valley giants pay for their own bandwidth, which in the US is often some of the highest in the developed world thanks to regional monopolization and captured regulators (precisely like those quoted in the Axios piece).

Axios, like many outlets, has also helped push the narrative that the modern GOP is genuinely interested in "antitrust reform":

"The interest in taxing Big Tech coincides with some GOP support for antitrust bills that would prevent the companies from buying up smaller rivals or favoring their own products."

I'm in the minority in thinking the GOP's support for "antitrust reform" (with a tiny few exceptions) is populist, performative bullshit. In reality, they're just generally pissed that some wealthy Californians belatedly (and sloppily) prevented them from spreading disinformation and racist dog whistles on the internet. So they're looking for any leverage over those companies they can find. They're also listening to the siren calls of AT&T and Rupert Murdoch, who want their competitors in "big tech" saddled with additional scrutiny as they successfully obliterate government oversight of their own sectors (media and telecom).

I'm not saying tech giants haven't engaged in dodgy business practices or that we don't need meaningful reform. But I am saying that a lot of corrupt, bad actors have capitalized on the public's legitimate animosity over big tech to push idiotic, self-serving ideas via corrupt lawmakers. And while the FCC's broadband subsidy (E-Rate, USF) systems do need a funding overhaul, there are plenty of ways to accomplish that that don't involve forcing Netflix to pay AT&T billions of additional dollars for no reason.

Axios doesn't bother to mention it, but the FCC's broadband subsidy programs are a broken mess that routinely dole out billions of dollars for network build-outs that make no coherent sense. We also throw billions in tax breaks, subsidies, and regulatory favors (like killing net neutrality) at companies like AT&T in exchange for jack shit. Those genuinely interested in shoring up broadband funding gaps should probably start looking at the vast, unaccountable subsidy trough that gives giants like AT&T untold billions in exchange for perpetually half-completed fiber networks.

Filed Under: brendan carr, fcc, free ride, net neutrality, networks
Companies: facebook, google

LA Court Abusing Copyright Law To Take Down (Unauthorized) Recording Of Britney Spears Hearing

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

First up, let me be clear: if a courthouse makes it clear that no recording is allowed of a hearing you should not record it. I do think that those policies -- which are quite common in many courthouses -- are bad policy. I think recordings of hearings should be more widely available. But defying court rules is a very, very bad idea. As you may have heard, last week Britney Spears gave an impassioned plea to a court to end a conservatorship that allows her father to more or less control her life. The speech was, apparently, ineffective as the judge denied the request (though the fallout from this mess continues to spiral).

Soon after reports of the speech came out, a recording of the hearing showed up on YouTube -- in violation of the court's rules. If you go to the link now, it says the recording was taken down due to "a copyright claim by Superior Court of California, County of Los Angeles" (takedown first spotted by the Twitter account @beka_valentine).

Also, the court has announced that it's shutting down its remote audio program because someone recorded the hearing:

“Effective June 28, the Court will no longer offer the Remote Audio Attendance Program (RAAP) to listen remotely to courtroom proceedings,” read the announcement, which also detailed the rolling back of other COVID-19 protocols. “The Court implemented this temporary program during the pandemic recognizing there may be abuses of the Court’s orders prohibiting recording, filming, and distribution of proceedings. Widespread breaches by the public in a recent court proceeding highlighted the need to return to in person, open courtroom proceedings, which is a welcome development.”

As that Hollywood Reporter article notes, California courts have rules against recording, and you can face a variety of legal consequences for disobeying:

Under California state and local court rules, no recordings of court hearings are allowed (including by members of the press) without advance permission from the judge in the form of a written order. According to the 2019 California Rules of Court, “Any violation of this rule or an order made under this rule is an unlawful interference with the proceedings of the court and may be the basis for an order terminating media coverage, a citation for contempt of court, or an order imposing monetary or other sanctions as provided by law.”

When asked what is the court’s general policy is on taking action if a proceeding is recorded without permission, L.A. County Superior Court Communications Director Ann E. Donlan said only: “Parties who publish unauthorized recordings of court proceedings in violation of a court order are subject to sanctions and other potential liability pursuant to California Code of Civil Procedure section 1209 and other applicable law.”

But... notice what is not included in the list of potential liabilities? Copyright. That's because there is no legitimate copyright claim by the courts in these recordings. First, as a government entity, it's difficult to think that they can make a legitimate copyright claim. While, technically, the US Copyright Act's prohibition on the government claiming copyright on works it creates only applies to the federal government, other courts have interpreted the prohibition to apply more broadly to other governments as well.

On top of that, it's hard to argue that either there is a legitimate copyright here or that if there were one, that the court itself could claim it. The speech was by Britney Spears, not the court. On top of that -- even with the prohibition on recording -- in the copyright context, there would be a strong fair use defense.

And so I understand why the court doesn't want the recording up there. And I agree that whoever recorded it likely broke the law and could face significant legal liability (if they were tracked down). But, that does not mean that the court can then step in and falsely claim copyright to take the video down. That's copyfraud and abuse of copyright. Just because it gets to the ends that may feel more legit doesn't mean you just get to magically invoke a copyright in a work that you have no legitimate copyright over.

Filed Under: britney spears, copyfraud, copyright, courts, recordings, takedown
Companies: youtube

Georgia Supreme Court Overturns Computer Crime Conviction For Man Who Copied Himself On Emails Sent To His Boss

from the one-for-you,-one-for-me dept

It's not just the CFAA that can be abused. This law -- recently trimmed a bit by the US Supreme Court -- has been abused for years to go after web scrapers, researchers, and information-wants-to-be-free activists. The recent ruling does narrow the scope of that law a bit, but the CFAA still has the potential to do serious damage when wielded carelessly or vengefully.

The state of Georgia has its own set of computer crime laws and they're just as capable of being interpreted by prosecutors to criminalize acts that shouldn't be criminal offenses. Fortunately, a state court has made a sensible reading of the law to overturn a conviction for computer trespass -- one that saw a former Norcross (GA) city employee hit with felony charges. (h/t Andrew Fleischman)

Jereno Kinslow was a city IT employee who had some problems with his new boss, Greg Cothran. Cothran criticized Kinslow's work performance, leading to a "loud outburst" from Kinslow. This apparently made Cothran concerned Kinslow might sabotage the city's network. Certain "safety measures" were put in place and Kinslow was eventually fired.

Before Kinslow was let go, he utilized his administrator-level access to forward copies of emails sent to Cothran to his own personal email account. This was discovered by Cothran months later when he received a bounce notification specifying Kinslow's email account. This alleged "criminal trespass" formed the basis for charges that resulted in Kinslow being convicted of a felony and sentenced to ten years of probation.

Kinslow challenged his conviction under this statute, claiming prosecutors did not present evidence that he had actually violated the law. The Georgia Supreme Court agrees [PDF] with Kinslow.

OCGA § 16-9-93 (b)(2) defines the offense of computer trespass, in relevant part, as “us[ing] a computer or computer network with knowledge that such use is without authority and with the intention of . . . [o]bstructing, interrupting, or in any way interfering with the use of a computer program or data.” Kinslow was charged with committing computer trespass by “us[ing] a computer network with knowledge that such use was without authority and with the intention of obstructing and interfering with data from a computer, by copying Greg Cothran’s e-mails and causing them to be forwarded to his own private e-mail account.”

The State thus was required to prove that Kinslow used a computer network knowingly without authority with the intention of obstructing or interfering with the use of data.We conclude that the evidence presented at trial was insufficient to prove that Kinslow’s use was done with the intention of obstructing or interfering with the use of data.

The court says the facts don't fit the charged crime. There was no "obstruction" of data when Kinslow intercepted copies of Cothran's emails.

Contrary to the State’s suggestion, the State presented no evidence that Kinslow’s e-mail forwarding scheme “blocked” or even “hindered” the flow of data in the form of e-mails to Cothran, who continued to receive those e-mails intended for him. Rather, the evidence showed only that Kinslow’s actions created an additional flow of data to another account.

There you have it: copying is not theft obstruction.

But wait, said the state, maybe it's an [re-reads statute]... um… "interruption?"

Nope, says the court:

“Interrupt” carries a similar definition of stopping or hindering, although “interrupt” often denotes a more temporary stoppage than “obstruct,” such as “to make a break in the continuity of.” Again, the State presented no evidence that Kinslow’s actions hindered the flow of e-mails to Cothran, either permanently or temporarily.

Making copies also doesn't "interfere" with the flow of data, the court decides. The flow of data was so unobstructed, uninterrupted, and un-interfered with that Kinslow's supervisor didn't even know it was happening until one of the emails bounced.

It's a short, solid ruling that forces the state to accept the fact that words have meanings, and those meanings cannot be distended to encompass the actions seen here.

The dissent, however, thinks the court should have broadened the law to encompass all sorts of innocuous behavior by using the very loosest definitions of the word "interfere."

Webster’s New Twentieth Century Dictionary (2d ed. 1983); “to interpose in a way that hinders or impedes: come into collision or be in opposition . . . to enter into or take a part in the concerns of others,” Webster’s Ninth New Collegiate Dictionary (9th ed. 1985); and “to come between so as to be a hindrance or an obstacle . . . to intervene or intrude in the affairs of others; meddle.” The American Heritage Dictionary of the English Language (3d ed. 1992). Black’s Law Dictionary (11th ed. 2019) primarily defines “interfere” as “[t]he act or process of obstructing normal operations or intervening or meddling in the affairs of others.”

So, under these definitions, shoulder-surfing someone else's Facebook account would be a criminal act. Sure, probably no one would attempt to criminally charge anyone for doing this, but that's the expansive reading the Chief Justice of this court thinks is correct.

This is a good ruling that clearly delineates what is or isn't covered by this computer crime law. And while Kinslow's actions may have been cheap, dishonest, and all-around lousy, they weren't criminal.

Filed Under: cfaa, computer crime, emails, georgia, greg cothran, hacking, jereno kinslow