Court Says ISPs Can't Use Net Neutrality Repeal to Dodge Lawsuits For Shitty Service

from the foxes-watching-the-henhouse dept

The Trump FCC's rollback of federal net neutrality rules didn't just kill net neutrality. The repeal also gutted FCC authority over ISPs, shoveling any remaining authority to an FTC that's ill-equipped to actually police ISPs (the entire point and why ISPs lobbied for it). This comically-misleading "Restoring Internet Freedom" order also tries to ban states from protecting consumers. The language, included in the repeal after heavy lobbying by Comcast and Verizon, attempts to "pre-empt" state authority over ISPs.

ISPs quickly got to work trying to use the language to dodge accountability.

Charter Spectrum, for example, has been trying to use the FCC's pre-emption language to dodge a lawsuit for shoddy service. New York State sued Charter last year for falsely advertising speeds company e-mails show execs knew it couldn't deliver. The suit also highlighted how Charter execs routinely gamed a regulator speed test system (comprised of volunteer routers with custom firmware) in an attempt to falsely represent the company's network performance. The company was also accused of artificially inflating congestion to cash in on interconnection disputes.

But Charter's efforts aren't going particularly well. Late last week, The First Department of the Supreme Court, Appellate Division of the State of New York ruled (pdf) that Charter could not lean on the FCC's net neutrality repeal to have the case thrown out, and that it will be proceeding to trial. The ruling found that no, the FCC neutrality repeal did not legally pre-empt states from their right to enforce laws "that prevent fraud, deception and false advertising" in regards to broadband service. Consumer groups were quick to applaud the ruling:

"This is great news for broadband users in New York, and it bodes well for state efforts to protect broadband users generally. Such efforts are especially important given the current FCC’s decision to abdicate many of its consumer protection responsibilities with respect to broadband."

Ironically, some legal experts (like Stanford Law Professor Barbara van Schewick) have argued that when the FCC rolled back Title II and neutered its own authority over ISPs, it also dismantled much of the already-limited authority it had to tell states what they can do. ISPs have promised to sue states that try to protect consumers, but it's not clear their legal footing is particularly sound. Meanwhile, the effort to hold ISPs accountable in the wake of Ajit Pai's industry earlobe nibbling has cultivated a newfound appreciation on some fronts for the importance of state rights.

Obviously this will be a fight that plays out on a state by state level, and ISPs are likely to have better luck in some states than others. It's a story that's going to be worth paying attention to, as it will highlight another angle of consumer harm most people aren't even thinking about when they consider the impact of the extremely unpopular repeal of net neutrality.

Filed Under: broadband, false advertising, fcc, jurisdiction, net neutrality, new york
Companies: charter, charter spectrum

House Staples Extraterritorial Search Permissions Onto 2,232-Page Budget Bill; Passes It

from the hearty-debate-was-enjoyed-by-none dept

Just as the Supreme Court is considering the legality of extraterritorial demands for communications held by US internet service providers in overseas data storage, Congress is doing all it can to short-circuit the debate. Tucked away towards the back of a 2,200-page spending bill is something called the "Clarifying Lawful Overseas Use of Data Act" or (of course) "CLOUD Act." (h/t Steve Vladeck)

The CLOUD Act [PDF - starting at p. 2201] would make any decision by the Supreme Court extraneous. If it agrees with Microsoft -- as lower courts have -- that the US has no right to demand communications stored overseas with a normal warrant, the Act would immediately overturn the decision. If it decides against Microsoft, it will be aligned with the new law. As it stands now, the route most likely to be taken by the Supreme Court is a punt. Legislation on point is in play and the Court will probably be more than happy to let legislators make the final call.

Beyond the obvious problem of giving US law enforcement permission to use regular warrants to bypass mutual assistance treaties, the law also allows for reciprocation. We can't go around waving SCA (Stored Communications Act) warrants in foreign lands without expecting pushback from locals. So, we'll have to give foreign countries the same privileges, even if the criminal charges being investigated wouldn't be considered criminal acts in this country and the country enjoying this reciprocation doesn't care much about its own citizens' rights and privacy.

The EFF is especially critical of the shoehorned-in CLOUD Act. As it points out, the law would result in backdoor searches of anyone's communications via reciprocal communication demands. In the US, we've already seen the Fourth Amendment circumvented by US government agencies via their access to NSA collections. The same would happen in reverse when other countries start playing by the CLOUD Act's new rules.

When foreign police use their power under CLOUD Act executive agreements to collect a foreign target’s data from a U.S. company, they might also collect data belonging to a non-target U.S. person who happens to be communicating with the foreign target. Within the numerous, combined foreign investigations allowed under the CLOUD Act, it is highly likely that related seizures will include American communications, including email, online chat, video calls, and internet voice calls.

Under the CLOUD Act’s rules for these data demands from foreign police to U.S. service providers, this collection of Americans’ data can happen without any prior, individualized review by a foreign or American judge. Also, it can happen without the foreign police needing to prove the high level of suspicion required by the U.S. Fourth Amendment: probable cause.

In addition, the law allows the US to enter into agreements with almost any country on earth, even those whose respect for human rights is nearly nonexistent. There's a provision in the law that says countries must meet a vague human rights standards before they're allowed to start searching US-based cloud services, but those guidelines are roughly 100% useless. Unless a more rigorous vetting standard is applied, countries like Turkey could soon be trawling for US persons' communications. As the ACLU points out, Turkey might still be considered to be compliant with the humans rights guidelines despite its ever-increasing level of citizen-directed abuse.

For example, in early 2014, Turkey may have met the CLOUD Act’s vague human rights criteria; Freedom House even rated it a three and four on its index for political and civil rights. But since the attempted coup in mid-2016, the Turkish government has arrested more than 50,000 people — including journalists and activists such as the chair and director of Amnesty International’s Turkey section — many on bogus terrorism charges. According to U.N. experts: “Most of these accusations of terrorism are based solely on actions such as downloading data protection software, including the ByLock application, publishing opinions disagreeing with the Government’s anti-terrorism policies, organizing demonstrations, or providing legal representation for other activists.”

Under the CLOUD Act, neither Congress nor U.S. courts would be able to prompt a review or a temporary moratorium for a case like Turkey. Users, without notice, would have little practical ability to lodge complaints with the U.S. government or providers. Even if the U.S. government were to take action, the CLOUD Act fails to ensure a sufficiently quick response to protect activists and others whose safety could be threatened.

What few positives the bill provides revolve around challenging demands for communications. The bill provides avenues for US tech companies to challenge orders targeting foreign servers, as well as pushing back against foreign government demands for communications held in the US. But these will mainly be of use to the largest tech companies with the manpower and legal acumen to throw at the problem. Smaller companies will likely just find themselves handing over anything to anyone who comes asking, rather than risk punitive action by domestic and foreign governments.

And the standards are extremely weak. While the bill claims to hold foreign countries to US standards, it never specifically says foreign countries demanding communications need to have US-equivalent rights. It refers to "international universal human rights" which sounds great, but this is a feel-good term that isn't recognized by US or international law.

Even if communications are subject to some restrictions, metadata isn't. Anything foreign governments collect on American citizens can be handed over to the US government without further legal review. And it carves out a hole for wiretapping electronic communications, allowing demands like these to bypass the privacy protections of the Wiretap Act.

Considering it's been stapled to end of must-pass funding bill, chances are the bill will receive zero debate before being forwarded to the president. The House has already passed its version, which means the Senate needs to step up to block the CLOUD Act stuffed into its spending bill. As we saw during the last several months of 2016, very few reps were in any hurry to challenge the expansion of Rule 41 authorities, despite having more than a year to generate opposition. Even when time is a luxury, inaction is the preferred response. The CLOUD Act, hidden under more than 2,000 pages of funding requests, is probably as close to a sure thing as it's ever been. And it will do little more than further damage privacy protections across the globe.

Filed Under: cloud act, extraterritorial, jurisdiction, omnibus, privacy, search, stored communications act, surveillance, warrants

California Court Dismisses Copyright Suit Against BBC Over Cosby Documentary Over Lack Of Jurisdiction

from the hey-hey-hey dept

Late last year, we covered a very odd lawsuit brought against the BBC by the production team for The Cosby Show centering around a BBC documentary covering Bill Cosby's fall from grace in America. Bill Cosby: Fall of an American Icon used several short clips from The Cosby Show, altogether totaling less than four minutes of run-time, and all of them used to provide context to Cosby's once-held status as an American public figure in good standing. Despite the BBC distributing the documentary exclusively overseas, production company Casey-Werner filed its suit in California. Whatever the geography around the legal action, we argued at the time that the BBC's actions were as clear a case of fair use as we'd ever seen.

It seems that legal argument will not be answered in this suit, however, as the court has decided instead to simply dismiss over a lack of jurisdiction. While the BBC's filings had indeed hinted at a forthcoming fair use defense, it also argued that the California court had no business adjudicating this matter to begin with.

BBC argued no actionable infringement could possibly have taken place within a California federal court's jurisdiction because the documentary was only broadcast in the U.K., and while Fall of an American Icon was later available via the BBC’s iPlayer, "geoblocking" prevented it from being seen in the United States absent use of virtual private networks or proxy servers to evade restrictions.

In response, Casey-Werner argued essentially that everyone knows that geo-blocking doesn't work and is easily defeated by the use of a VPN or DNS proxy. And, hey, that's true, except that the failures of geo-blocking technology doesn't give rise to jurisdiction by a California court. Only the BBC's direct action in getting this content stateside would do that and the BBC clearly took steps specifically to avoid that happening. From Judge Percy Anderson's ruling:

That some California individuals may have viewed the Program does not establish that Defendants directed their conduct toward California, particularly because any viewership in California occurred despite Defendants’ intentions and their efforts to prevent it.

Unauthorized viewers outside of the United Kingdom do not provide a basis for personal jurisdiction; rather, Defendants’ relationship with California must arise out of contacts that they themselves created with the state. … Moreover, Plaintiff neither alleges nor offers actual evidence of the extent of viewership of the Program in California.

And so the court never takes on the question of whether this is fair use or not, which it most certainly is. That we never got to that stage says a great deal more about the quality of Casey-Werner's legal team than it does about the protections the BBC sit comfortably behind. The case was dismissed without prejudice, and Casey-Werner could always try to file another lawsuit in the U.K., but it would do well to drop this whole thing and lick its wounds instead.

Filed Under: copyright, cosby show, documentary, jurisdiction, uk
Companies: bbc, casey-werner

Supreme Court Hears Oral Arguments In Microsoft Email Case

from the in-which-the-DOJ-claims-the-DOJ-can-get-communications-from-anywhere-in-the-worl dept

The Supreme Court held oral arguments in the Microsoft case on Tuesday. The case centers on jurisdictional limits for warrants issued under the Stored Communications Act. The government believes there should be no limits, not if it serves the warrant domestically. Microsoft, the recipient, informed the US the communications it sought resided in an Irish server, beyond the reach of the SCA.

The Second Circuit, in consecutive decisions, found in favor of Microsoft. If the government wants access to communications stored in overseas servers, it needs to work with that country's government to obtain them. After all, the US government certainly doesn't want other countries deciding their laws take precedence over our own and bypassing assistance treaties to obtain communications stored here.

Or maybe it does. Or maybe the DOJ just doesn't care about collateral damage. Either way, its appeal is being heard by the Supreme Court, which has a chance to alter an old law (1986's SCA) in a bad way. The government got off on the wrong foot by claiming its demand for communications wasn't a search. From the transcript [PDF]:

[Michael] DREEBEN [DOJ Deputy Solicitor General]: Mr. Chief Justice, and may it please the Court: Section 2703 of the Stored Communications Act focuses on classically domestic conduct. It requires disclosure in a court order by the United States of information related to United States crime and here by a United States service provider.

JUSTICE SOTOMAYOR: It actually requires a search. It's -- the disclosure here is really a substitute for the government's searching. The Act permits the government to have a warrant and go in and search for these materials or, in the alternative, to ask the source to do its own search and then turn the materials over. So why -- you describe it as if it's only a disclosure, but it's really a search.

Dreeben argued that the demand for communications isn't a search because the search is performed by the service provider. While it's true the government isn't going into Microsoft data centers and digging through servers, the fact is the search would not be taking place if the government hadn't requested one to be performed. It may be outsourcing the actual search, but Microsoft has zero interest in these communications until the government steps in and says it wants them. Dreeben is splitting hairs, but they're hairs that have been split for more than 30 years, when the SCA granted the government the power to obtain certain records and communications from service providers.

The government's lawyer also asserted that the SCA explicitly provides for the acquisition of overseas data. But the arguments made show that isn't the case. It governs production of data by US service providers. It says nothing about demanding they produce info stored in other countries. The DOJ wants the law to be read as allowing for the acquisition of overseas data, so long as the warrant is served in this country.

Justice Sotomayor challenged this assertion, pointing out a couple of relevant things. First, the law is more than 30 years old. Second, the point of territorial limits (one of them) is to avoid upsetting the international apple cart.

This is a 1986 statute. The reality in 1986, if you look at the statute and its reference to stored records, to stored communications, was -- it's a past technology, old concept. But I think it's fair to say that back then they were thinking that where these materials were stored had a geographic existence in the United States, not abroad or nowhere else, and that they were protecting the communications that were stored in particular locations.

Things have changed. But what you're asking us to do is to imagine what Congress would have done or intended in a totally different situation today. And the problem that Justice Ginsburg alludes to is the fact that, by doing so, we are trenching on the very thing that our extraterritoriality doesn't want to do, what our jurisprudence doesn't want to do, which is to create international problems.

She went on to note there's legislation in the works that would lift territorial limits in cases like these, but limit (or attempt to) international fallout. Why not leave things the way they are and let Congress sort it out? The DOJ's response is basically that Microsoft manufactured a problem with its refusal to comply with the SCA order, and now the US is out of step with data acquisition treaties made by (and with) other countries around the world.

The justices aren't all that thrilled with Microsoft's arguments either. Justice Alito pointed out Microsoft complied with SCA warrants prior to this challenge and that it always has the option to voluntarily disclose communications to the government. (The response from Microsoft's lawyer -- E. Joshua Rosenkranz -- is that doing this would violate its relationship with its customers, who assume the company won't just hand over info to law enforcement without being ordered to.)

There was also some discussion about the location of the servers and why this shouldn't matter when it comes to responding to a court order. Rosenkranz pointed out that the DOJ still couldn't access overseas emails even if it shoved the Microsoft employee aside and performed the search themselves. The instructions sent to retrieve the emails "land" in Ireland and the retrieval process begins, no matter who initiates the search. Trying to skirt territorial limits by using a domestic proxy doesn't make it any less of a violation of domestic statutes or, in the case of Ireland, Ireland's privacy laws.

It comes down to location, as Microsoft sums up. The fact that the papers sought are ones and zeroes should make no difference.

[T]he government asks this Court to grant it an extraordinary power, and it's a power that Congress did not think it was granting law enforcement in 1986, and certainly did not intend to grant to every police officer and every sheriff's deputy anywhere in the country. Back then, if the police needed to gather evidence from all over the world, they would have to engage with law enforcement everywhere else in those countries.

And they have the tools to do that, even though the DOJ portrays those as pretty much unworkable. Rosenkranz's take is a little more optimistic.

JUSTICE ALITO: All right. Well, all right. The service provider has chosen to store it overseas. There's no way to get the information, other than through these -- these very time-consuming MLAT procedures?

MR. ROSENKRANZ: Well, Your Honor, the way to get the information is through MLATs, and the only evidence in this record about MLATs is that MLATs do work. If it's urgent for the government, the other governments respond urgently.

It's hard to say where the court's sympathies lie. No one seems too impressed with Microsoft's assertions it doesn't have to respond to domestic warrants simply because someone chose to store their communications overseas. But, by the same token, no one's sold on the DOJ's assertions the SCA provides for extraterritorial searches. And, given its multiple appearances in the arguments, the court may simply decide to maintain the status quo and let Congress sort it out. This will force the DOJ to play by territorial guidelines until new laws are in place. It won't be happy, but it managed to get the Rule 41 rewrite it wanted which allows it to execute warrants anywhere in the US, no matter where they were issued.

The SCA needs a rewrite, but a rewritten law that considers the DOJ to be the prominent stakeholder isn't going to fix anything. Criminals have off-shored evidence for years now. A ruling for the status quo won't substantially increase the number of scofflaws stashing communications on foreign servers, but a ruling against it would definitely damage international relationships, if not numerous internet-based communication platforms. The DOJ would like the Supreme Court to rewrite laws on the fly, which really isn't its job. If the court decides it's going to stay in its lane with this case, chances are Microsoft comes away with a win, even if it ends up being a momentary victory.

Filed Under: 4th amendment, jurisdiction, sca, stored communications act, subpoenas, supreme court, warrants
Companies: microsoft

International Inconsistencies In Copyright: Why It's Hard To Know What's Really Available To The Public

from the messy-copyright dept

Today, Santa Clara University is hosting a gathering of tech platform companies to discuss how they actually handle content moderation questions. Many of the participants have written short essays about the questions that are being discussed at this event. We've published a bunch of essays this week from the conference, and will continue with more next week.

Have you ever wondered why it can be hard to find out what some old paintings look like? Why there seem to be so few pictures of artistic works available from many countries even though they're filled with public sculptures and murals? Or why prices for books and movies can be so wildly different in different countries? The answer is that copyright law is different all over the world, and these differences can make figuring out what to do with these works so difficult or risky that most websites are not willing to have them around at all. This essay talks about a few of these works and why they add a major challenge to content moderation online.

To begin, Wikipedia and the Wikimedia Foundation that hosts it have a mission to host freely available educational content, which means that one of the areas that comes up for us quite often when we receive content moderation requests is whether something is truly free or not. This can come up in a bunch of different ways, and I'd like to talk about a few of them, and why they make it quite difficult to figure out what's really available to the public and what's not.

The first one is old pictures and manuscripts. It's generally accepted that if a work was published before 1923, then it's old enough that the author's rights have expired and the ability to freely copy, share, and remix the work shouldn't be limited by the law anymore. But that raises a couple questions. First, how do you know when something was published, especially back then? There's a whole swath of old pictures and writings that were prepared before 1923, but may have never been published at all until later, which then requires figuring out a different timing scheme or figuring out when the work was published: a sometimes very difficult affair due to records lost during the World Wars and various upheaval in the world over the last century. For just one example, a dispute about an old passport photo recently came down to whether it was taken in Egypt or Syria during a time when those national borders were very fluid. If it had been in Egypt, it would have been given U.S. copyright and protected because it was after 1923, but if it had been in Syria at the time, it would not have been protected because that country wasn't extended recognition for copyrights at the time.

A second example is works from countries with broad moral rights. All the works on Wikimedia projects that were made recently are dedicated by their authors to the public domain or licensed under free culture licenses like Creative Commons. However, these sorts of promises only work in some countries. There are international copyright treaties that cover a certain agreed-upon set of protections for every country, but many countries add additional rights on top of the treaties such as what are called moral rights. Moral rights in many countries give the creator the power to rescind a license and they cannot give up that power no matter how hard they try. It ends up looking something like this: "I promise that you can use my work forever as long as you give me attribution, and anyone else can reuse it too, and I want this to be irrevocable so that the public can benefit without having to come back to me." And then a couple years later, it's "oh, sorry, I've decided that I changed my mind, just forget my earlier promise." In some places that works, and because of that possibility, people can't always be sure that the creative works being offered to them are reliable.

A third problem is pictures of artwork. This one applies, though a bit differently, to both new and old works. With new photos of old works, it's a question of creativity. Copyrights are designed to reward people for their original creativity: you don't get a new "life of the author plus 70 years" of protection for making a photocopy. But in some places, they again go past the international rights agreed upon in the copyright treaties and add extra protections. In this case, many countries offer a couple decades worth of protection for taking a straight on 2-D photograph of an old work of art. The Wikimedia Foundation is currently in a lawsuit about this with the Reiss Engelhorn Museum in Germany, where the museum argues that photographs on its website are copyrighted even though the only thing shown in the photo is a public domain painting such as a portrait of Richard Wagner.

The other variation of problems with photos of art is photographs of more recent works out in the public. Did you know that in many places if you're walking in a park and you take a snapshot with a statue in it, you're actually violating someone's copyright? This varies from country to country: some places allow you to photograph artistic buildings but not sculptures or mosaics, other places let you take photographs of anything out in public, and others prohibit photographs of anything artistic even if it's displayed in public. This issue, called freedom of panorama, is one that many Wikimedians are concerned over, and is currently being debated in the European Parliament, but in the meantime can lead to very confused expectations about what sorts of things can be photographed as the answer varies depending on where you are.

The difficulty around so many of these types of works is that they put the public at risk. The works on Wikipedia, and works in the public domain or that are freely licensed more generally are supposed to be free for everyone to use. Copyright is built on a balance that rewards authors and artists for their creativity by letting them have a monopoly on who uses their works and how they're used. But the system has become so strong that even when the monopoly has expired and the creator is long dead, or when the creator wants to give their work away for free, it's extremely difficult for the public to understand what is usable and to use it safely and freely as intended. The public always has to be worried that old records might not be quite accurate, or that creators in many places will simply change their minds no matter how many promises and assurances they provide that they want to make something available for the public good.

These kinds of difficulties are one of the reasons why the Wikimedia Foundation made the decision to defer to the volunteer editors. The Wikimedia movement consists of volunteers from all over the world, and they get to decide on the rules for each different language of Wikipedia. This often helps to avoid conflicts, such as many languages spoken primarily in Europe choosing not to host images that might be allowed under U.S. fair use law, whereas English language does allow fair use images. It's difficult for a small company to know all the rules in hundreds of different countries, but individual volunteers from different places can often catch issues and resolve them even where the legal requirements are murky. As just one example, this has actually led Wikimedia volunteers who deal with photographs to have one of the most detailed policies for photographs of people of any website (and better than many law textbooks). In turn, volunteers handling so many of the content issues means that the Foundation is able to dedicate time from our lawyers to help clarify situations that do present a conflict such as the Reiss Engelhorn case of freedom or panorama issues already mentioned.

That said, even with efforts from many dedicated people around the world, issues like these international conflicts leave some amount of confusion and conflict. These issues often don't receive as much attention because they're not as large as, say, problems with pirated movies, but they present a more pernicious threat. As companies shy away from dealing with works that might be difficult to research or uncertain as to how the law applies to them, the public domain slowly shrinks over time and we are all poorer for it.

Jacob Rogers is Legal Counsel for the Wikimedia Foundation.

Filed Under: copyright, creative commons, international rules, jurisdiction, licensing, public domain, takedowns
Companies: wikimedia

Equustek No-Shows Legal Challenge Of Canadian Court Order Demanding Google Delist Sites Worldwide

from the and-the-links-will-be-going-right-back-up dept

Earlier this year, Canada's top court upheld a ridiculous, truly troubling ruling involving a company called Equustek Solutions. Equustek managed to get three consecutive courts to agree they had jurisdiction to force Google to block supposedly-infringing websites worldwide.

It was a rare show of audacity from the usually ultra-polite country. According to the court's reasoning, the only way to prevent continued "irreparable harm" to the plaintiff was to order Google to prevent anyone, anywhere in the world from accessing the site. That the court had no jurisdiction beyond the Canadian borders was treated as irrelevant.

Google responded to this insane ruling by filing a lawsuit in its own state, asking a judge to find the Canadian court's overreach unenforceable in the United States. It cited both Section 230 of the CDA and the First Amendment in support of its arguments.

This could have provided for some very interesting courtroom arguments. But, alas, it appears Equustek has no interest in presenting its case anywhere it doesn't have the homefield advantage. Joe Mullin of Ars Technica has more details:

It looks like Google is going to win that case, but not as a result of any high-minded legal arguments. Its opponent simply failed to show up. In a motion (PDF) filed Tuesday, Google said that Equustek CEO Robert Angus faxed Google's lawyers a letter "stating that Defendants would not be defending this action."

Equustek hasn't hired a US lawyer or shown up to any court proceeding, so Google will move for a default judgment. The company will then ask for a permanent injunction, preventing the Canadian order from being enforced in the US.

Given the authorities cited by Google in its lawsuit (Sec. 230, First Amendment), it's likely to obtain this permanent injunction. It likely would have obtained it anyway, even if Equustek hadn't chosen to opt out of the litigation. Equustek knows this, which is why it's not willing to spend any of its money fighting a losing battle.

Hopefully, the court will have a few things to say about the Canadian court's overreach when it hands this (admittedly easy) win to Google. It's all well and good to use home courts to grant you injunctions based on local law. It's absolutely appalling when a court decides it can demand compliance far outside of its jurisdiction.

[Addendum: shortly after this post had gone to bed (but fortunately before I had) the court's ruling arrived. As expected, the court [PDF] finds in favor of Google, pointing to its Section 230 immunity.

First, there is no question that Google is a “provider” of an “interactive computer service.” See 47 U.S.C. § 230(f)(2) (“The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”); O’Kroley v. Fastcase, Inc., 831 F.3d 352, 355 (6th Cir. 2016) (“Google is an interactive computer service, an entity that provides ‘access by multiple users to a computer server.’ ”); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006) (“[T]here is no doubt that Google qualifies as an “interactive computer service.”); Gonzalez v. Google, Inc., No. 16-cv-03282-DM, 2017 WL 4773366, at *9 (N.D. Cal. Oct. 23, 2017) (finding that Google is a provider of an interactive computer service).

Second, Datalink—not Google—“provides” the information at issue. Google crawls third-party websites and adds them to its index. When a user queries Google’s search engine, Google responds with links to relevant websites and short snippets of their contents. Id. Google’s search engine helps users discover and access content on third-party websites, but it does not “provide” that content within the meaning of Section 230...

Third, the Canadian order would hold Google liable as the “publisher or speaker” of the information on Datalink’s websites. The Supreme Court of Canada ordered Google to “de-index the Datalink websites” from its global search results because, in the Court’s view, Google is “the determinative player in allowing the harm to occur” to Equustek... The Canadian order treats Google as a publisher because the order would impose liability for failing to remove third-party content from its search results.

Google meets the requirements for Section 230 immunity. As such, the Court finds that Google is likely to prevail on the merits of its Section 230 argument.

Likewise, the court finds Google would be harmed by the Canadian court's decision.

Google is harmed because the Canadian order restricts activity that Section 230 protects. In addition, the balance of equities favors Google because the injunction would deprive it of the benefits of U.S. federal law.

[...]

An injunction would also serve the public interest. Congress recognized that free speech on the internet would be severely restricted if websites were to face tort liability for hosting usergenerated content. It responded by enacting Section 230, which grants broad immunity to online intermediaries.

The short opinion closes out with a few choice words for the overreaching Canadian court.

The Canadian order would eliminate Section 230 immunity for service providers that link to third-party websites. By forcing intermediaries to remove links to third-party material, the Canadian order undermines the policy goals of Section 230 and threatens free speech on the global internet.

The First Amendment question goes unexplored because Section 230 immunity already provides Google with all it needs to secure an injunction. But the coda on the decision makes it clear the First Amendment question wouldn't go the Canadian court's way.]

Filed Under: california, canada, cda 230, censorship, default judgment, first amendment, free speech, jurisdiction, us
Companies: equustek, google

Author Who Lost Copyright Case Over The Da Vinci Code In The US In 2007 Looks To Revive It In The UK In 2017

from the try-try-again dept

Author Dan Brown is certainly not a stranger to copyright claims and lawsuits over his bestseller The Da Vinci Code. Not long after publishing the book in 2003 to wide acclaim, several legal actions took place against Brown and his publisher, as well as some action initiated by the publisher to stave off claims of copyright infringement and plagiarism. One such case that we did not cover here was brought by Jack Dunn of Massachusetts, who authored a book called The Vatican Boys, and sued Brown in Massachusetts for copyright infringement over the usual claims: there were claimed similarities in characters, plots, and factual assertions (including some that are erroneous in both). In 2007, Judge Michael Ponsor threw out the case, claiming that all the evidence Dunn's legal team provided amounted to thematic and structural similarities, which are not copyrightable.

For the proceeding decade, Dunn simply went away. That is until he found another law firm willing to file another copyright suit against Brown, but this time in the UK. The suit is reportedly being prepped for filing, with Dunn's side making much of the impending legal action.

Dunn has hired London-based media law firm Keystone Law. In a letter to Penguin Random House, Keystone stated they intended to issue proceedings for copyright infringement unless they received a credible explanation from Brown and his researcher wife, Blythe Brown, for what they perceive to be extraordinary similarities in both works.

Keystone Law’s letter stated: “There are hundreds of similarities between “The Vatican Boys” and “The Da Vinci Code” which comprise copying portions of TVB [“The Vatican Boys”] in the form of storylines, plots, characters, historical information, scenes, themes and even factual error which have been appropriated from TVB by Mr. and/or Mrs. Brown in writing The TDC [“The Da Vinci Code].”

It seems that the requested explanation from Brown or Penguin Random House will not be coming. In response, the publisher flatly rejected all of Dunn's claims and then helpfully put in written display, something like warning heads on pikes, all of the prior litigation by both Dunn and others that Brown and the publisher have fended off successfully.  

There are several factors that should give Dunn and his legal team pause when it comes to actually filing this suit. Much of the reasoning by Dunn for filing this second lawsuit centers around his claim that the US ruling didn't properly evaluate the evidence he presented. That's unlikely to be the case. His reasoning for filing the suit in the UK, on the other hand, is flatly bizarre.

Dunn told MarketWatch he is now finalizing legal evidence in preparation for issuing copyright proceedings against Brown. Dunn, who is from Western Massachusetts, said “The Vatican Boys” was sold around New England upon publication, and he said he suspects Dan Brown read his book while he was living in Portsmouth, New Hampshire in the late 1990s.

Little of which factors at all as a basis for the UK being the proper venue for this lawsuit between two American authors. On top of that, it stretches the mind to believe that it has taken the better part of a decade for an author to come up with all of these dastardly similarities between his own work and one of the most widely read books in modern times. So too does it bend credulity to imagine that these newly discovered similarities are of the sort that are awarded copyright protection. After all, if the new evidence is more explosive than the old evidence, why wasn't it properly presented ten years ago?

We'll see if this suit ever gets filed. Given Brown's track record for defeating these sorts of attempts, I know on which party I'd be putting my money.

Filed Under: 1st circuit, copyright, dan brown, davinci code, jack dunn, jurisdiction, uk
Companies: keystone law, penguin random house

Google Asks US Court To Block Terrible Canadian Supreme Court Ruling On Global Censorship

from the jurisdictional-mess dept

Going back to the earliest days of Techdirt, we wrote numerous times about what a jurisdictional mess the internet was for various laws and legal regimes. But, even so, decades later, it's still pretty shocking just how messy Google's dispute over global censorship with Canadian courts has become. Last month, we wrote about a positively terrible decision in the Canadian Supreme Court, which upheld an appeals court and a district court, ruling that a Canadian court could order a site to block access to content on a global basis. The lawsuit itself, brought by a company called Equustek against another company apparently selling knockoff/counterfeit equipment, pulled Google into its orbit when the court ordered Google, as a non-party in the case -- to block access worldwide to sites managed by the defendant in the lawsuit (who never showed up in court).

Google pointed out (quite reasonably) that Canadian courts don't have jurisdiction over the global internet any more than a Chinese or Iranian or Russian court would have jurisdiction across the globe. Over and over again, the Canadian courts more or less ignored the issue, saying, "doesn't matter, block it, this is bad stuff." We've discussed at great length the dangers of such a decision, so we won't rehash it now -- go read the previous posts, if you want to review that argument.

But here's where things get... odd. Most people assumed that this was the end of the road on this case. The Supreme Court in Canada is the top of the chain. There was no appeal. Google could (and probably will, if it hasn't already) petition the Canadian government to clarify the law on this. And it may push for clauses in trade agreements that block this sort of thing as well. Some even argued that Google might be able to make an "ISDS" claim out of this (though, that would be messy...). But, apparently, Google felt it had one more way to crack this nut: it has filed for declaratory relief in the US.

In short, Google is going to a US court and saying, "this ruling in Canada is offensive to our laws and Constitution, and you should block the Canadian courts from enforcing it." This is... fascinating from a legal geek standpoint. We do have the SPEECH Act, which bars foreign judgments being enforced in the US when it would go against the First Amendment, but this is slightly different. Google is arguing that a US court should, at the very least, stop Canada from being able to enforce the blockade in the US, because that violates both the First Amendment and Section 230 of the CDA.

This Court has personal jurisdiction over the Defendants because, inter alia, the Defendants have knowingly engaged in a course of conduct whereby they sought and obtained injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring Google to undertake actions in the United States—specifically, to delist search results in the United States and throughout the world. In November 2012 Equustek served Google with a Notice of Application to the British Columbia court at Google’s offices in Mountain View, California. Equustek thereafter renewed the Application for a delisting injunction on May 13, 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position adverse to Google through the Canadian appellate process. The Supreme Court of Canada confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to take steps where its search engine is controlled—namely, California.

And here's where things get really interesting. The Canadian Supreme Court ruling argued that the "harm" presented by Google up north was merely "theoretical" rather than real. However, Google wants the US court to rule that such an injunction violates the First Amendment and Section 230 of the CDA... at which point the harm is no longer theoretical because it will have a court ruling showing that the blockade has actually censored speech.

Of course, this may lead to a long fight in the US, which may also lead to many years of appeals and whatnot -- and the end result may be... who the hell knows what? What happens when you have two court systems in two different countries completely at odds with one another, with one claiming sovereignty over actions taken in the other's territory (and everywhere else)? One would think that the US would win out in that situation, but... it's kind of uncharted waters. And that by itself reinforces the very point that Google was trying to make, and which three levels of Canadian courts brushed off as no big deal. Clearly, this is going to be a case worth following, as the question of court jurisdiction on the internet gets more and more... fascinating.

Filed Under: canada, first amendment, free speech, global block, jurisdiction, right to be forgotten, us
Companies: equustek, google

Top European Court To Consider If EU Countries Can Censor The Global Internet

from the it's-spreading... dept

Last month we wrote about the tragic and hugely problematic ruling in Canada that said a Canadian court could order global censorship of content it deems to be illegal. As lots of people pointed out, that is going to have dangerous consequences for speech around the world. If you accept that Canada can censor the global internet, what's to stop China, Iran or Russia from claiming the same rights?

And now we'll get to find out if the EU similarly believes in the ability of one country to demand global censorship online. In another case that we've been following, French data protection officials had been demanding Google censor content globally, and Google had been refusing. Now, the issue has been sent to the EU Court of Justice, the very same court who created this mess three years ago in saying that Google was subject to "right to be forgotten" claims. Google had reasonably interpreted the law to just apply in the EU (where the jurisdiction existed). But now the same court will decide if EU officials can censor globally.

One hopes that the sheer absurdity of the situation may lead the CJEU to start to recognize just how problematic its ruling was back in 2014, but somehow, that's unlikely. We'll certainly be paying attention to this case...

Filed Under: censorship, cjeu, eu, france, free speech, global censorship, jurisdiction, right to be forgotten, rtbf
Companies: google