Hey Whatever Happened To Those Andrew Cuomo-Backed, RIAA Agreements With ISPs To Kick People Off The Internet?

from the still-waiting... dept

It's now been over a year since the infamous announcement, leaked to the Wall Street Journal, that the RIAA was going to effectively drop its strategy of suing individuals in favor of agreements, worked out between the RIAA and ISPs with NY AG Andrew Cuomo adding pressure, to kick people off the internet on a "three strikes" regime. The whole thing sounded pretty ridiculous at the time. Cuomo had absolutely no legal standing to pressure ISPs into such a deal, since the ISPs had every legal right to say no. And, since the "leak" many ISPs have insisted, quite vocally, that they have never made any such agreement with the RIAA and that they would never kick their customers offline in such a manner.

And so Greg Sandoval, over at News.com, smartly realizes that these "preliminary agreements" we were told about last year are still nowhere to be found and goes exploring to find out why. Reading between the lines, it appears the answer is that the RIAA flat out lied (no surprise, but...) and the Wall Street Journal bought it (again, no surprise, but...). Basically, with various record labels hemorrhaging money, they started to cut back on their allowance to the RIAA, such that the legal strategy of suing tons of people was getting too expensive. But they didn't want to make it look like they were just giving up.

So they concocted a myth: this idea that ISPs would cut people off. It was, in fact, what the RIAA and other international entertainment industry lobbying groups had been pushing for with little success (since then they have had a few wins on that front, but also many losses). But they couldn't wait for their usual process of pushing through legislation (*cough* ACTA *cough*) to complete before they had to cut back on individual lawsuits. So they brought in Andrew Cuomo, because he had successfully threatened ISPs to get them to cut off Usenet, despite no legal basis for doing so. But, that worked because Cuomo threatened (again, despite no legal basis) to shame them for offering access to child porn. When it came to unauthorized access to music, the moral outrage aspect isn't nearly as strong (not that the RIAA and their lobbyist friends haven't tried six dozen ways to try to link file sharing to child porn -- but most people realize how ridiculous that is).

Given that the ISPs seemed to have little interest (i.e., no interest) in moving forward with this plan, they leaked it to the WSJ, figuring that if ISPs thought others were doing it, then they'd start to sign up, and the whole thing would become a self-fulfilling prophecy. Except they failed to account for the simple fact that people protested against any ISP dim enough to think that it's smart to kick off customers based on accusations (not convictions), and ISPs quickly stepped up to deny any such deal, shedding light on the RIAA's big lie.

So, here we are today, with no such agreements in place, and the RIAA back to trying to sneak through "three strikes" legislation through international treaties that they write (which the public has no access to). But, shouldn't someone call them on the fact that they blatantly lied last year? And also, shouldn't someone ask where the WSJ's correction is on that story?

Filed Under: andrew cuomo, isps, riaa, three strikes
Companies: riaa

Why Is NY, Not The FTC Or DOJ, Filing Antitrust Claims Against Intel?

from the grandstanding dept

I have no idea if Intel is really guilty of antitrust violations or not at this point -- though, considering the fact that its products keep getting faster and cheaper, it's not as if there's been some obvious huge monopoly rents handed out somewhere. However, I do find it quite odd that it's Andrew Cuomo, NY's Attorney General, filing antitrust charges against the company, rather than the federal government. The DOJ and the FTC have been investigating Intel for a while, and haven't yet filed charges. Europe has -- but Europe seems to do that against any successful American tech company eventually, as the European standard for "antitrust" often appears to be "big successful American company" rather than any proof of antitrust behavior. To have Cuomo file such a case just seems misplaced. What does it have to do with New York? Given Andrew Cuomo's rather long history of silly grandstanding to bully companies for the sake of getting his own name in the headlines, rather than any actual legal basis, it feels like more of the same. Pick a big target, don't worry about the legal specifics, but get headlines to build up the name of Andrew Cuomo. It's pretty sad that Cuomo seems to keep attacking innovative tech companies solely for the sake of building up his own political reputation. Tangling up innovation in pointless lawsuits doesn't help the economy in the slightest.

Filed Under: andrew cuomo, antitrust
Companies: intel

Cosmetic Surgery Company 'Fesses Up To Widespread Campaign Of Fake Reviews; Pays Fine

from the some-questions-though... dept

The NY Times has an article about how LifeStyle Lift, a company that does cosmetic surgery (facelifts) has reached a settlement with NY Attorney General Andrew Cuomo over posting fake reviews on its site. It wasn't just a case of some "rogue" employees posting some fake positive reviews, either. The company apparently sent out emails to employees telling them to "devote the day to doing more postings on the Web as a satisfied client." It also created its own fake facelift review websites that (of course) reflected positively on themselves. The company has apologized and agreed to pay $300,000.

Now, it's clear that the company was doing a bad thing here, but there are some questions raised about this. Eric Goldman, who also notes that the company previously had sued a review site that had many negative reviews for trademark infringement (a clear misuse of trademark law to stifle free speech), points out that it's unclear what law was actually broken here. Andrew Cuomo claims that what the company did was illegal, but doesn't point to any specific law that says so. We've seen this before from Cuomo, who has publicly accused companies of breaking the law, without ever naming the law in question.

That said, it's clear in this case that LifeStyle Lift was a bad actor. The question is how to deal with it. Goldman suggests that review sites and consumers should deal with this themselves:

Ultimately, I believe the burden should largely rest on review websites to provide a forum that is sufficiently game-resistant that consumers can trust the information on the website.... In my opinion, the only real "solution" to fake consumer reviews is to teach consumers proper techniques for searching for information and evaluating the credibility of the information they consume. This is one of those crucial life-coping skills that everyone needs to learn at an early age, right up there with the three Rs and how to manage money. Education is the only scalable answer to the problems of information credibility in our complex information society.

For the most part, I agree... though I do wonder if there's potential to make a claim that the practices violate truth in advertising type laws or other consumer protection laws on deceptive practices. Of course, I would assume that it would then be an issue for the FTC, rather than the NY Atotorney General's office.

Filed Under: andrew cuomo, fake reviews, legality
Companies: lifestyle lift

Is Deceptively Getting People To Spam Their Friends Identity Theft?

from the seems-a-bit-strong dept

Last month, the social networking site Tagged got in some PR trouble after its attempt at "viral marketing" went a little haywire, causing lots of people to inadvertently spam their friends with invites to the service (and then those who signed up may have done the same). Such things are pretty common. They're deceptive and annoying, and companies that engage in them don't tend to last very long because no one really wants to use their service. But is it identity theft?

That seems to be the claim from NY Attorney General Andrew Cuomo who is suing the company, claiming that it "stole the address books and identities of millions of people." While we in no way endorse what Tagged did -- it is deceptive and scammy -- it's definitely seems like going over the line to call it identity theft, or even address book theft. Tagged apparently quickly pulled the plug on the campaign, and while there could be an action against the company for deceptive marketing practices, one would think that the company's reputation has been so damaged already that it's not going to be able to sign up many legitimate users. Tacking on attacks about privacy invasion and identity theft seems like bit much.

Filed Under: andrew cuomo, deceptive emails, identity theft
Companies: tagged

Cuomo Uses Craigslist To Bust Prostitution Ring... Still Blaming Craigslist

from the think-about-that-for-a-second... dept

Following Craigslist's big announcement last week on the changes to how it handles "adult" ads, Andrew Cuomo angrily denounced the changes, claiming that several weeks before, "we informed Craigslist of an impending criminal case that implicated its website." It seems the details of that case have now become clear, as a prostitution ring that solely worked via Craigslist was busted by Cuomo. Yet, rather than recognize that the information on Craigslist allowed them to track down and arrest this crew, Cuomo is still lashing out at the site:

"Unless craigslist gets serious about putting real protections in place, it will continued to be an environment where criminal operations thrive with impunity,"

Does Andrew Cuomo even realize what he's saying? He's saying that they'll operate with impunity right after he showed that's not true by arresting them. Given the fact that Craigslist cooperates with the police (and one assumes it did in this case as well, given that Cuomo approached them about it "weeks ago"), then Craigslist actually helped the police catch these criminals. Does Cuomo blame AT&T after AT&T helps him get a wireptap in a criminal investigation? After all, AT&T provided the phone system, which allowed the criminal operations to thrive with impunity.

Filed Under: andrew cuomo, new york, photo op, prostitution
Companies: craigslist

Looks Like Henry McMaster Is Upset About His Lost Craigslist Photo Op As Well

from the oh-come-on... dept

Yesterday, Craigslist caved in to the demands of various state Attorneys General, and agreed to pre-moderate all of the "adult" ads that go on their site. This appeared to be exactly what many grandstanding AGs had been asking for... but it appears that more than a few of them were upset that Craigslist did this without granting the AGs a chance to take credit for it. First, we had NY AG Andrew Cuomo's petulent statement about how Craigslist never should have done this without first getting approval from Andrew Cuomo, and now the EFF points out a similar complaint from South Carolina AG Henry McMaster, who says that he's going to continue his plan to throw Craigslist management in jail unless they remove all sexually explicit material from the site.

It's difficult to know where to start on this, but McMaster's understanding of the law doesn't seem to have anything to do with the actual law. First off, plenty of sexually explicit material is not illegal. Second, even if the material is somehow illegal, the liability is on those who posted it, not Craigslist.

Oh yeah. It's probably worth noting that a similarity between both Cuomo and McMaster? Both are apparently (definitely in McMaster's case) seeking their respective state's governorship... You would think that abusing a high-level gov't position for grandstanding and censorship would disqualify one from getting to run a state, but apparently not.

Filed Under: andrew cuomo, attorney general, grandstanding, henry mcmaster, south carolina
Companies: craigslist

Andrew Cuomo Angry That Craigslist Stole His Photo Op

from the wow dept

This morning we posted the news about Craigslist giving in to angry Attorneys General who were misguided in their anger. In it, we discussed how this was a larger version of NY AG Andrew Cuomo's tactics to force internet companies to censor, despite no legal basis. However, it looks like Andrew Cuomo is pissed that others have taken his tactics and didn't give him a chance to be involved. Thomas O'Toole alerts us to this stunning statement from Cuomo who appears to be quite angry that this decision was made without him present:

"Several weeks ago, we informed Craigslist of an impending criminal case that implicated its website. Rather than work with this office to prevent further abuses, in the middle of the night, Craigslist took unilateral action which we suspect will prove to be half-baked."

O'Toole's summary is dead on: "Curses, you stole my photo op!" So when we wrote the original post wondering how soon it would be before AGs were upset with the new plan, we knew something like this would happen eventually. We just didn't think it would be a matter of hours.

Filed Under: andrew cuomo, new york, photo op, prostitution
Companies: craigslist

RIAA Abandoning Mass Lawsuits In Favor Of Backroom 3 Strikes Policy

from the it's-a-step,-but-a-very-small-one dept

It really was just three days ago that we suggested that if the record labels actually wanted anyone to take them seriously concerning their desire to come up with more constructive solutions to the business model challenges they face, they should at least stop suing folks as a gesture of trying something new. The usual recording industry defenders in the comments claimed this was a ridiculous suggestion, but it appears that the RIAA is at least taking a small step in that direction. The Wall Street Journal is reporting that the recording industry (the WSJ mis-labels it "the music industry") is abandoning its strategy of mass lawsuits.

First off, this is a step in the right direction -- and we think it's great that the record labels have agreed to do this, even if it's many, many years too late. And, it's hardly a huge concession. The lawsuits have been an unmitigated disaster. They have done nothing to slow file sharing (in fact, the publicity generated from the lawsuits has often been credited with alerting many people to the possibility). The strategy has also splintered the file sharing space into many, many different players, many of them way underground, unlike in the early days when there were a manageable number of players who could be worked with proactively. It's also done tremendous damage to the brands of the major record labels (Universal, Warner, EMI and Sony) and the RIAA itself -- leading many to swear off buying any of their products. Finally -- and most importantly -- the strategy did absolutely nothing to help musicians adapt to a changing market that was opening up tremendous new opportunities both to spread their music and to profit. So, kudos to the folks at the RIAA for finally realizing how backwards this strategy has been.

The fine print

But, of course, this is the RIAA, so you can rest assured that the details aren't anything to be happy about. In exchange for not filing mass lawsuits, the RIAA has worked out backroom deals with numerous ISPs (brokered by Andrew Cuomo -- who has a history of using baseless threats to get ISPs to censor content they have no legal responsibility to censor). The exact details are a bit sketchy, but it sounds like a variation on the ridiculous three strikes policy that has been (mostly) rejected in Europe as a violation of basic civil rights. Basically, these ISPs will agree to be the RIAA enforcers. Based solely on the RIAA's flimsy evidence, the ISPs will either pass on, or directly email subscribers with, warning letters. Depending on the specifics of the agreement, the users will get one or two more warning letters before the ISP will start limiting their internet access or potentially cutting them off entirely. If you think this sounds suspiciously like what Europe just rejected, you're right.

And, of course, the RIAA still says it may sue those who don't stop file sharing after all of this. They're just backing away from the mass lawsuit filings that they've been doing.

Why this is still a bad deal

Okay, so over the past few weeks, recording industry defenders have said that we were jumping the gun in criticizing a potential plan because it wasn't final. Our point was that since the record labels claim they want a "conversation," these deals shouldn't be negotiated in backrooms not involving substantial stakeholders. So what happened here? Yup, a backroom deal was negotiated without any involvement from users. And it was done under the direction of Andrew Cuomo, who just spent many months browbeating ISPs into agreeing to censor content.

So, hopefully, we won't be told that we're being premature in criticizing this plan -- but somehow I find it unlikely.

This plan is hardly a major concession by the record labels and the RIAA. The lawsuit strategy was a massive failure in almost every facet. Giving them up is hardly a big deal. It's admitting what pretty much everyone else knew from the beginning: that suing your fans and customers is a monumentally dumb move. Ending a brain-dead, self-defeating policy is worthy of kudos, but only for finally recognizing the obvious -- not as some magnanimous gesture.

And in exchange for the RIAA stopping its policy of shooting itself in the foot, we get ISPs making a huge concession themselves, agreeing to become RIAA enforcers, despite the clear safe harbors they have via the DMCA. These ISPs will now be heavily involved in the process of policing their users, increasing their expense, which of course will be passed on to users.

But the biggest problem is the fact that this allows private organizations to judge users without any significant defense on their part. The stories of falsely accused file sharers are widespread at this point. IP address-based evidence is notoriously unreliable. Yet, the RIAA will be basing its notifications on such evidence. Sure, plenty of the IP addresses dug up by the RIAA are probably accurate, but we live in an innocent-until-proven-guilty world, and this does away with that completely.

Also, as the EU noted in rejecting this proposal, the "punishment" hardly fits the crime. These days, an internet connection is a necessity -- and taking it away from people because someone is sharing the gift of music with others not for any sort of commercial gain is totally unbalanced. It takes away an individual's civil and privacy rights, all because the big record labels refuse to recognize that there are other business models out there that already work. And that final point may be the most important. As we noted in explaining why the music tax is a bad idea, none of these moves by the RIAA are actually necessary.

Musicians are figuring out plenty of fantastic business models that work wonders, and many of them actually involve embracing file sharing and using that to help grow their markets. What's wrong with letting those business models establish themselves, without brokering a totally unnecessary backroom deal that will almost certainly harm innocent people thanks to flimsy evidence?

So, yes, we're thrilled that the record labels have finally progressed to the point of realizing that mass lawsuits were a bad idea, but working out a backroom deal for a type of three strikes policy is not a particularly good solution. It's more of the same: trying to prop up an obsolete business model by a private industry unwilling or too stubborn to change with the market. That NY's Attorney General felt this private business model issue should involve his efforts in the midst of a huge financial crisis, including the largest Ponzi scheme ever, makes little sense.

If these are the "new leaf" and "open conversations" the record labels are insisting they're about these days, they've got an awful lot of work to do still.

Filed Under: andrew cuomo, isps, lawsuits, three strikes
Companies: riaa

Craigslist Pressured Into Policing Ads For Prostitution

from the misplaced-blame dept

We've talked plenty about how New York Attorney General Andrew Cuomo has been using legal threats to get companies to change business practices, even if those practices aren't illegal. But, he's not the only Attorney General who tries to make headlines with bogus legal threats. Neighboring Connecticut has Richard Blumenthal, who has similarly blamed companies for the actions of their users. First, it was Facebook for having sexual predators on the site, and then it was Craigslist for for having prostitution ads. You'll notice in all of these cases, the threats involve actions that are generally considered less than socially acceptable. This way, even though the companies being blamed are not liable and clearly protected by section 230 of the CDA (you would think, as AGs, Cuomo and Blumenthal would, I dunno, know the law...), the threat of bad publicity gets companies to cave.

And, in fact, it appears that Craigslist has, indeed, been pressured into agreeing to monitor postings on its websites to try to prevent prostitution ads. 39 other Attorneys General joined in with Blumenthal, so it's of little surprise that Craigslist agreed to do this, even though it seems pretty clear that the law was on its side. As a service provider, it is in no way responsible or liable for the content placed on its site. The law and various court rulings are pretty clear on that, but when you have 40 Attorneys General gunning for you, painting you as a proponent of prostitution, sometimes it makes sense to cave.

The most ridiculous thing, of course, is that this will do little to nothing to actually deal with the root issue. Prostitution will continue -- and it will continue online. Those who used Craigslist before will simply move on to other sites. In fact, those sites will be much trickier to find and track down, meaning that it now becomes much more difficult for authorities to crack down on the actual law breakers. In fact, we've noted that police say that Craigslist is a very useful tool in monitoring and cracking down on prostitution. And, now, to get some headlines about how these AGs were "tough" on prostitution, they've just taken that tool away from police, while opening the door to forcing Craigslist to have to monitor posts on its site -- something the law says the company need not do.

Filed Under: andrew cuomo, liability, richard blumenthal, service providers
Companies: craigslist

Why Is Andrew Cuomo Pushing ISPs To Use Spyware On Everyone's Internet Traffic?

from the political-ambitions-over-common-sense dept

We've already covered NY AG Andrew Cuomo's ridiculous crusade to get ISPs to censor content in a misguided attempt to stop child porn. Obviously, stopping child porn is a good goal, but Cuomo's approach actually makes the problem worse and sets a dangerous precedent. First, rather than actually tackling the root of the problem, Cuomo simply demanded that ISPs block any site that he and a group he supports consider to be child porn. Of course, they have no legal requirement to block them (section 230 of the CDA was written to make it clear that ISPs are not at all liable here), but Cuomo got around that by promising to shame publicly any ISP that didn't implement his plan. This is the lowest of the low of political tricks, and it would simply be lying. An ISP may be quite committed to stomping out child porn, and could recognize that Cuomo's tactics actually make the problem worse, by not targeting the actual pornographers -- and Cuomo would still publicly splash their names across the news as not wanting to stop child porn.

In fact, a recent look at the details of Cuomo's highly publicized campaign found that Cuomo clearly exaggerated the extent of the problem for political benefit, forcing ISPs to block all of Usenet, despite 99.9997% of the 3.7 billion available Usenet articles being perfectly legitimate content. But that's not stopping Cuomo. In fact, he's going even further.

He's been sending ISPs a presentation from a company called Brilliant Digital that's offering a "deep packet inspection" system that could scan every file sent across an ISP's network and try to determine if it was child porn. Yes, Cuomo is suggesting that ISPs spy on every single file sent over their network now, 4th Amendment be damned. Brilliant Digital even claims that its system can trick users into sending files unencrypted, so even those who send encrypted traffic could be spied upon. Cuomo claims that he's not endorsing the product, but just thought ISPs would be interested in looking into it. Yet, given his heavy handed tactics earlier in this effort, it's pretty clear what message he's sending.

But why Brilliant Digital? If the name sounds familiar, it's because the company has an extremely sketchy past that has been touched on before. It was, effectively, one of the first surreptitious "adware" installs, back in the day, when it tried to secretly distribute a "legit" P2P file sharing system that would sit on top of the popular Kazaa and give you the option of paying for songs rather than just straight file sharing them. The software was downloaded and secretly installed on one million computers, before it was revealed.

This is the company our politicians want spying on every packet sent across the internet?

Not only that, but Brilliant Digital is also (of course) rather aggressive on the patent front, suing Streamcast for daring to make use of a hash system for trying to identify music tracks being shared over a P2P network. So we have an Australian spyware company that wants to scan every bit of traffic and identify it (even if it's encrypted), and it's being pushed by a US politician who has a history of trying to publicly shame companies into doing his bidding, even if it involves lying about them. And, the whole damn thing almost certainly violates the 4th Amendment.

Last week, we wrote about Paul Ohm's suggestion that we should create a stronger privacy law that outlawed deep packet inspection, as that would pretty much stop any attempt to break net neutrality without requiring special net neutrality laws. It's worth noting that such a law would also have the added benefit of making it doubly clear to Cuomo that such a program is quite illegal.

Filed Under: andrew cuomo, deep packet inspection, isp blocking, objectionable content, porn
Companies: brilliant digital