Think Tank That First Proposed SOPA Now Claims 'Proof' That SOPA Would Have Been Great

from the yeah,-good-one,-guys dept

Oh boy. The Information Technology and Innovation Foundation (ITIF) is a DC-based think tank that, from it's name, you might think would promote things that are important for innovation. And yet, this misleadingly named think tank has been on the wrong side of almost every major tech issue over the last few years -- perhaps because a large segment of its funding comes from anti-technology industries, like the entertainment industry and the large telco/broadband providers. This is the same organization that argued that net neutrality was bad, that kicking people off the internet for piracy was a good idea, that the US gov't should encourage countries to censor the internet and, most recently, that broadband companies charging more to not track your every move is "pro-consumer."

But perhaps the pinnacle of bullshit policy proposals from ITIF was that it was the organization (again, funded by the entertainment industry) that first proposed the basic framework of site blocking as a response to copyright infringement, back in 2009. The basis of that proposal was then turned into SOPA, leading ITIF to take a victory lap for creating what it believed was such a good law.

Of course, you know how that all went down. After actual technologists pointed out how problematic the ITIF approach to site blocking would be, and the public spoke up, the bill went nowhere. And ITIF is basically the sorest of sore losers. Last fall, ITIF published a bogus snarky "report" insisting that it's original SOPA plan for DNS blocking "did not break the internet." This, of course, conveniently misstates what was meant by "breaking the internet" when tech experts like Paul Vixie explained the problems with SOPA. It wasn't that the overall internet would just stop working or that fewer people would use it, but rather than basic ways in which the internet is expected to function (I reach out to this DNS entry, I get back the proper response) would fail, and that would open up opportunities for serious mischief, from man in the middle attacks to breaking how certain security protocols work.

But ITIF just can't let it go. This week it published a new report, once again using snark to insist that the internet didn't break: How Website Blocking Is Curbing Digital Piracy Without "Breaking the Internet." But its "evidence" is pretty suspect. It relies heavily on a recent report from some Carnegie Mellon professors, but leaves out the fact that those professors run a research center that was launched with a massive grant... from the MPAA. It also quotes papers from NetNames (funded by NBC Universal) and the Digital Citizens Alliances (a secretive MPAA front group that was a core component to the MPAA's "Project Goliath" plan to attack Google).

The paper is full of misleading statements and half truths. Take this for example:

In the vitriolic debates over the Stop Online Piracy Act (SOPA) in the United States, many opponents of taking action to limit access to foreign websites dedicated to piracy argued that website blocking would “break the Internet,” although they never satisfactorily explained how this breakage would occur or why the Internet was not already broken, since some site blocking already existed before the SOPA debate. Nonetheless, no policymaker wanted to be accused of being responsible for breaking the Internet. Five years later, we have evidence to evaluate. Meanwhile, 25 nations have enacted policies and regulations regarding website blocking to find a better balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy. And the Internet still works just fine in these nations.

Actually lots of people pretty clearly explained how and why it would break things -- including tech superstars like Paul Vixie and, yes, even Comcast, the owner of NBC Universal, an MPAA member. This is from Comcast:

When we launched the Domain Helper service, we also set in motion its eventual shutdown due to our plans to launch DNSSEC. Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks). Since we want to ensure our customers have the most secure Internet experience, and that if they detect any DNSSEC breakage or error messages that they know to be concerned (rather than not knowing if the breakage/error was "official" and caused by our redirect service or "unofficial" and caused by an attacker), our priority has been placed on DNSSEC deployment -- now automatically protecting our customers...

The non-technical policy wonks at ITIF might not understand this "technical" speak, but what Comcast is saying here is that using DNS blocking is a massive security risk. It doesn't mean that the internet itself "stops working" altogether, but that a core way that the internet is expected to work no longer does, and that exposes lots of people to lots of mischief.

ITIF, of course, will then point to the fact that 25 countries have implemented DNS blocking, and since they haven't seen the internet "stop" working in those places, they assume it's fine. This is dubious on two accounts. First, much of the mischief that can be caused by DNS blocking won't be directly observable to the public. ITIF really is in no position to know what kind of mischief is now enabled thanks to DNS blocking in those countries, but it won't be surprising to see that it eventually leads to security nightmares. The second is more fundamental: many people in those countries now use VPNs to virtually transport themselves elsewhere to get around these blocks. Many, in fact, transport themselves to the US to access things here. But, put in place site blocking in the US, where a huge percentage of internet traffic happens, and the opportunities for massive mischief increase quite a lot. But ITIF is too clueless to understand this.

In fact, the only "problem" that ITIF says might come up with DNS blocking is that it might take down multiple servers behind the same DNS, but which ITIF insists is easy to fix. ITIF also insists that such a small percentage of people use VPNs, getting around DNS blocking won't be much of a problem. Though, hilariously, they then admit that the methods to get around DNS blocking could put users at risk. But ITIF never puts two and two together to recognize how DNS blocking puts more people at risk.

Critics claim that DNS blocking, like IP blocking, will cause “collateral damage” due to the risk of over-blocking, as a single domain can host many websites through website extensions.26 However, this risk can be addressed by implementing DNS blocking at the subdomain level (e.g. www.piracysite.maindomain.com instead of www.maindomain.com)....

[....] Many, if not most, consumers have low levels of computer literacy and certainly are not sophisticated enough to understand how to manipulate the DNS settings in the network configuration of their computers, mobile phones, and other Internet-connected devices. Furthermore, users who switch DNS servers can expose themselves to many security risks if they cannot trust the responses from these servers.

You know what else will mean you can't trust the results from a DNS server? DNS blockades! That's the "breaking" of the internet that Vixie and others were talking about. Which ITIF still doesn't comprehend.

Later in the report, ITIF also claims that people who worried about DNS blocking for copyright infringement were "fine" for it in blocking malware:

The irony is that just months before leading opponents stated their opposition to website blocking, a key opponent said it was okay to block domains that spread malware and that this could be done without harming the Internet itself.

I'll just note that basically every other sentence in that paragraph has a footnote as a source for the information... but that sentence conveniently has no footnote. I've looked at the other footnoted links in that paragraph and none of them involve "leading opponents" supporting DNS blocking for malware. So I'm curious how ITIF's sourcing on this key point seems to have magically disappeared.

There's more in the ITIF report, but it's basically fighting the same old war: it lost on SOPA, but ITIF can't let it go. And so it's not just fighting, but fighting dishonestly. It takes quotes out of context, makes misleading statements and doesn't seem to actually understand the core technological issues at play here. And it would be at least marginally more compelling if every study it cited (and ITIF itself) weren't funded by the MPAA, the main driver behind SOPA.

Filed Under: copyright, dns blocking, site blocking, sopa
Companies: itif

Hillary Clinton's Intellectual Property Platform: Too Vague & Confusing

from the take-a-stand dept

Yesterday, Karl covered Hillary Clinton's newly released platform on technology & innovation as it related to broadband policy and encryption. Today I wanted to look through what it said on another set of key issues to folks around Techdirt: copyright and patent policy. And, as with Karl's post yesterday, there appear to be some things that sound good, but are so vague and devoid of actual nuance as to be laughable. I get it: this is the political platform of someone running for President, and thus it's going to be worded in a vague and noncommital way on these issues, because these aren't issues that lead people to decide whether or not to vote for someone as President.

On the good-sounding side, there are promises about dealing with the orphan works problem and the patent troll problem. But they're weighted down with language that is quite vague and could mean almost anything, including lots of bad policy proposals.

Effective Copyright Policy: The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system. It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding.

Now, just the fact that a Presidential campaign mentions that there's a problem with copyright law blocking access to content is somewhat revolutionary, so kudos to whoever got that into the plan. But the weird "while protecting the innovation incentives in the system" trailing line could mean anything and is designed to be just vague enough for anyone to read anything into it. What are the "innovation incentives in the system" right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it's long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment.

The fact that the orphan works problem gets called out is exciting, but even then the solution isn't clear. The only real solution to the orphan works problem is to go back to a system of formalities, requiring registration to get a copyright. Then place stuff that isn't registered and where there's no way to contact the copyright holder in the public domain. Boom. Problem solved. But it seems unlikely that that's where Clinton is going with this.

In the more detailed fact sheet, the expansion of these ideas is basically just the same thing as the condensed version but with way more words:

Effective Copyright Policy: Copyrights encourage creativity and incentivize innovators to invest knowledge, time, and money into the generation of myriad forms of content. However, the copyright system has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age. Hillary believes the federal government should modernize the copyright system by unlocking—and facilitating access to—orphan works that languished unutilized, benefiting neither their creators nor the public. She will also promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. She will seek to develop technological infrastructure to support digitization, search, and repositories of such content, to facilitate its discoverability and use. And she will encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the U.S. and abroad.

Open licensing is good. Removing barriers to effective licensing is also good. But there's no plan here. People have talked about these things for ages and never gotten anywhere because entrenched interests don't want this kind of thing to happen at all.

Also, there's a weird call out to SOPA -- but not in the copyright section. Rather, she mentions it in the net neutrality section because whatever, no one cares:

She also maintains her opposition to policies that unnecessarily restrict the free flow of data online –such as the high profile fight over the Stop Online Piracy Act (SOPA).

The language choices here appear to have been workshopped by a committee of hundreds. What the hell does this mean? Does it mean that she would oppose the fight over SOPA? Or SOPA itself? Because it's pretty clear that she's implying that she would oppose things like SOPA (which, again, had nothing to do with net neutrality). But she also was a SOPA supporter -- at least until it was politically inconvenient. During the height of the SOPA battle, she sent a letter insisting (contrary to the statement in her new platform) that there was "no contradiction" between supporting the free flow of information and enforcing strict copyright laws:

"There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the internet."

So if she believes that, then SOPA wouldn't have restricted the free flow of data. Of course, once the public tide turned against SOPA -- guess what -- so did Hillary, suddenly making it out to have been an important fight for internet freedom, even though she denied that very point just months earlier:

“The United States wants the Internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the Internet itself from plans that would undermine its fundamental characteristics.”

In other words, like a standard politician, we've got vague promises and flip flops -- along with ignoring previous positions when convenient.

As for patents, for the short version, we've got:

Improve the Patent System to Reward Innovators: Hillary will enact targeted reforms to the patent system to reduce excessive patent litigation and strengthen the capacity of the Patent and Trademark Office, so that we continue to reward innovators.

Again, vague language that can be taken in many different ways (again, obviously on purpose). The good: highlighting the problem of "excessive patent litigation" is definitely a good sign and is basically an acknowledgement of the problems with the patent system -- mainly patent trolling, but that should include excessive litigation by operating companies as well. But again, that's immediately weighed down by what follows, which could mean basically anything. Strengthening the capacity of the PTO... for what? To reject bad patents? That would be good. To grant more patents? That might be bad. And the whole "so that we continue to reward innovators." What does that mean? If you believe that the patent system itself rewards innovators, then that would mean encouraging more patenting. If you believe that the patent system is stifling innovators, then that should mean ending bad patents that are used to hinder innovation. Which is it? Who the hell knows. And I doubt Clinton herself has any real understanding of the issues here either.

The longer version makes it clear she's supporting some of the current anti-patent troll legislation, which is a good thing:

The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest.

Those are good things. But then we've got the expanded explanation of strengthening the PTO and again it's a giant "huh?"

Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund—ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications.

Of course, this is somewhat contradictory with the stuff raised earlier. Fee retention is one of those ideas that perhaps makes sense, but skews the incentives in dangerous ways, possibly pushing the PTO to encourage more patent applications and patents in order to get more fees. Similarly, "faster review" historically has meant lots more crappy patents getting approved -- leading to more patent trolling over bogus patents.

So, basically, she's promising points to the two key sides of the patent debate, without noting how the two plans are in conflict with each other if she's looking to solve real problems.

Again, none of this is a surprise. This kind of wishy washy political language where none of it really means anything is par for the course for just about any major politician, and Clinton has historically made this kind of noncommittal hand-wavy bullshit an artform all her own. She's not looking to solve real problems. She's looking to convince you that she's actually heard of the pet problem you're focused on and she has a vague plan to "solve it." Never mind the details or the fact that the plan conflicts with other parts of her plan.

Filed Under: copyright, hillary clinton, innovation, patents, platform, sopa, technology

MPAA Happily Gets Into Bed With Russian State Censor Agency... To Protect Copyright!

from the the-friends-you-keep dept

Roskomnadzor is the Russian "telecommunications regulator" or "watchdog," but it could just as easily be described as the Russian internet censor, because that appears to be a large part of its role in the country. In the past, we've written about Roskomnadzor blocking all of Wikipedia over a single reference to hashish (really) and also a plan to block all of CloudFlare because the company made it difficult for Russia's internet censorship plans to work. Earlier this month, Roskomnadzor made news for blacklisting a Vice article, claiming that it would encourage shoplifting.

So, who better to support such a censorship regime than... Hollywood! The MPAA has now proudly signed an agreement with Roskomnadzor to cooperate on protecting copyright online. The linked article is unfortunately horribly written. The title implies that the MPAA represents the government of the United States (while sometimes true in practice, that's not how it's supposed to work...) and then provides frightfully few details on what the agreement really is), beyond "protect copyright!"

The memorandum reflects the principles and rules of self-regulation in the interaction of rights holders with internet facilities, essentially protecting copyright on the internet.

That feels like something the reporter pulled straight from a press release and didn't bother to check what it meant. Still, the MPAA getting into bed with the Russian state internet censor should raise some pretty serious questions. The Russian government has, somewhat infamously, been known to use copyright law to intimidate and silence government critics. The government also has used SOPA-like laws to encourage spying on users.

And yet, this is the same MPAA that claims that one of its core principles is preserving free speech. Perhaps they just mean in the US? Those in Russia are on their own, apparently, because the MPAA is on the side of the government censor. Or, perhaps the reality is that the MPAA has no problem with censorship anywhere, so long as it's censorship on behalf of the MPAA.

Filed Under: blocklist, censorship, copyright, roskomnadzor, russia, sopa
Companies: mpaa

RIAA Demands Takedown Of ThePirateBay.org, But EasyDNS Refuses Over Lack Of Due Process

from the wac-that-mole dept

You may have heard recently that after switching many domains, a few weeks back ThePirateBay returned to its original thepiratebay.org domain. It's basically an ongoing game of wac-a-mole, where the entertainment industry freaks out and scares registrars into taking back whatever domain and TPB just moves on. It's unclear what good this does for anyone, but it keeps happening. And with the return to .org, it appears the entertainment industry has basically lots its mind. First, it had one of its lobbying front groups, the Copyright Alliance write a hellishly misleading post attacking Public Interest Registry (PIR), the organization that currently runs the .org top level domain.

It is shocking that a domain name registry in the United States – one that is dedicated to “the public interest” – is allowing a blatantly illegal site to have a home on the .org domain. This is especially disturbing given that the operators of The Pirate Bay have been found guilty of criminal copyright infringement, The Pirate Bay domain names have been seized or suspended around the globe, and even its co-founder, Peter Sunde, has walked away from it. Despite all this, The Pirate Bay seems to have found a sanctuary here in the United States by PIR.

As far as I can tell, there is no court ruling in the US that says any of the above is true. While it's true that a few former operators were found guilty, they served their time in prison and as far as I know, none are involved in the current site. And, as has been pointed out over and over again, the site is basically a search engine. Accusing it of "criminal infringement" makes no sense. Furthermore, while the Copyright Alliance fought hard to get SOPA passed, it failed. US law does not currently require registrars or registries to remove domains just because the Copyright Alliance or the RIAA dislike a site. Sorry: you didn't get the law you wanted, so don't pretend you did.

Torrenfreak further points out that while the Copyright Alliance points to PIR's abuse policy, it conveniently ignores that said policy does not apply to intellectual property disputes, which require actual due process.

Meanwhile, as the Copyright Alliance was whining publicly, the RIAA was sending a letter to PIR basically saying the same thing, and asking it to take down the .org domain. The letter lists other countries where various TPB domains have been blocked, and then notes:

With respect to the U.S, please remember that the infringing nature of The Pirate Bay has been noted in each of the Notorious Market Reports issued by the USTR for the past several years. Per the Google copyright transparency report, over 400,000 infringements have been identified on www.thepiratebay.org, with over 50,000 since The Pirate Bay moved back to its .org domain. This is in addition to the over 3,000,000 infringements identified on its previous alter ego, www.thepiratebay.se. It is well known that The Pirate Bay does not take action in response to notices. In addition, there have been numerous reports recently of malware and other abuse occurring via The Pirate Bay at its various domains.

Of course, it's a bit weird to use Google's transparency report as part of its argument, since that just details accusations, rather than actual evidence of infringement (and, again, I don't know how many times this needs to be pointed out, but TPB doesn't host any content). And, again, the RIAA supported SOPA, but it lost. It should stop pretending it won.

PIR, in turn, forwarded the letter on to TPB's registrar, EasyDNS. EasyDNS then contacted TPB to discuss the possible policy violations, and got back reasonable answers that it was not actually in violation. On the question of copyright, TPB claimed that it now abides by the DMCA:

TPB is DMCA compliant and if TPB receive any DMCA complaints from RIAA they will be investigated and removed if found to be valid. We have not revived[sic] any DMCA complaints from RIAA at all so far this year.

Some may point out that TPB, in the past, regularly ignored (or mocked) the DMCA, noting that as a non-US company, it was not subject to US laws. Whether or not TPB still ignores DMCA takedowns could, arguably, impact if it's abiding by registrar policies, but without a court weighing in, it's difficult to see how a registar should take the RIAA's word for it without more evidence.

The RIAA's letter also notes TPB distributing malware, and so EasyDNS asked about that as well, to see if it violated its terms of service, and again TPB insists that the RIAA is being misleading:

As with every site that are displaying 3rd party advertising trough external ad-networks, sometime bad and corrupt ads slips by, it happens to everyone, here is an example:

http://arstechnica.com/security/2016/03/big-name-sites-hit-by-rash- of-malicious-ads-spreading-crypto-ransomware/

As soon as it is discovered/detected on TPB, the ads will be taken down, or the entire ad-tag from where the malware comes, until the issue is resolved. Usually with the help of google webmaster-tools to track down the exact source of the malware.

It has happened twice during 2016, both times when adding new ad- networks, They were taken down directly when detected.

Based on that, EasyDNS properly notes that it has no legitimate basis to takedown TPB's .org domain.

At this time we find no violation of our AUP. Absent either a specific proceeding pursuant to our accreditation as a .ORG registrar or a legal finding in a competent jurisdiction to the Province of Ontario, there is nothing for us to do.

easyDNS will of course always: comply with our contractual obligations - both to the registries we operate under and to our customers; comply with the laws under which govern our jurisdiction (the Province of Ontario, Canada) and enforce our own Acceptable Use Policy.

Thank you for bringing this matter to our attention.

In a blog post, EasyDNS President Mark Jeftovic explains the due process rationale here:

Our opinion in these matters continues unchanged. As a Registrar or as a DNS provider unless there is a clear violation of our AUP or net abuse (which we are competent to detect), taking action against domains based on content or at the behest of third-parties, regardless of their altruism or noble intentions, amounts to having us adjudicate international law. It's not reasonable to expect us to do that and you don't want your domain registrar doing that.

This is the key point. Whatever you believe about TPB -- and many people see it as being horribly illegal, obviously -- due process has to mean something. The RIAA and its friends should not just be able to point to something and say "illegal, kill it!" because they have a fairly long history of being totally wrong about such things. In the past, they've argued that nearly every innovation is illegal, from player pianos to radio to cable TV to the photocopier to the VCR to the DVR to the MP3 player and to YouTube. And over and over they've been wrong about those things. And that's why due process is important, and why it's good to see EasyDNS (and PIR) recognizing this.

Jeftovic, by the way, separately highlights that no one should think of EasyDNS as being "friendly" to bittorrent site operators, as he expects it won't be long until there will be sufficient due process to take down those sites:

We should also mention our Open Letter to Bit Torrent operators, wherein we predict a near-future where due process across borders catches up with technology and when that happens it will be relatively quick, easy and painless for a law enforcement agency in one country (i.e. Sweden) to have the requisite order issued in another country (like Canada, eh) and cause a domain that appears to be flagrantly violating copyright and freeriding on content creators efforts to be shut down.

Ahead of that day, if I were a filesharing site operator I'd be using my time wisely in concentrating my efforts on legitimizing my operations. This would include negotiating blanket licensing agreements with mechanical rights agencies.

In other words, contrary to what some will claim, this is not EasyDNS standing up for torrent sites. It's EasyDNS standing up for basic due process. You'd think that the Copyright Alliance and the RIAA would support due process, but apparently that's too difficult.

Filed Under: copyright, domains, due process, sopa, takedowns
Companies: copyright alliance, easydns, riaa, the pirate bay

Rep. Goodlatte Promises 'Consensus' Copyright Reform Proposals Soon

from the this-should-be-interesting dept

Congress has mostly stayed away from any attempt at copyright reform since the great SOPA blackout of 2012, afraid that anything will set off the public again. However, in 2013, Copyright Register Maria Pallante called on Congress to create the "next great copyright act" designed to update copyright for the 21st century. The House Judiciary Committee has been holding hearings and roundtables every few months since then, some of which have been more encouraging than others.

Copyright law is clearly broken and a true fix for the 21st century would be welcome. But what are the chances that Congress would actually do a good job, rather than make it worse? Well, we may soon find out. Yesterday, Rep. Bob Goodlatte put out a statement and a video claiming that they're finally ready to start releasing some proposals: Goodlatte lists out a bunch of things that have been discussed, and then notes that he'll be focused initially on releasing proposals where he believes there is some "consensus":

In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.

And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less.

The way that's put obviously sounds better than the way things have been done in the past, where the legacy industry basically wrote the bills for Congress, and our elected officials just put their names on it. But I'm still concerned with the framing of this whole thing. Goodlatte's talk continues to falsely suggest that copyright policy is about copyright holders vs. the public:

...it is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be.

But, again, as we've been explaining for years, thinking of copyright in such zero sum terms is the wrong way to go about it. A proper copyright system, focused on "promoting the progress of science" shouldn't put the best interests of either party at risk. These interests should be aligned. The public benefit of copyright should be to encourage creators to create and for that content to spread and be experienced. We should be looking at what kinds of policies best lead to that outcome. Instead, because of past history and the mental framework that the Judiciary Committee has had since the beginning, it seems that they want to set this up as a fight between Hollywood (representing "copyright holders") and the tech industry (which they're using as a weak and misleading proxy for "the public.") The actual public is not involved. Nor are many actual creators.

There are, of course, cynical political reasons for doing this. Congress learned years ago that if you want to get a big pile of donations, the best thing to do is to hint at a bill that would put two large industry in conflict with one another. Then both feel compelled to fund politicians campaign warchests.

But that leads to bad policy. It leads to policy based on the interests of funders and industry, rather than the public. Again, the purpose of copyright law is to benefit the public by creating incentives for content creators. The interests of content creators and the public should (and absolutely could) be aligned in all of this. Let's create systems that encourage the creation and distribution of content, without treating the public as criminals.

Let's hope that's actually what Goodlatte and the Judiciary Committee have in mind, but from the framing he has used so far, I'm concerned that what comes out of this is likely to be something else.

Filed Under: bob goodlatte, copyright, copyright reform, house judiciary committee, sopa

Portuguese 'Anti-Piracy' Site Blocking Used Against US Video Game Developer

from the because-reasons dept

One of the reasons why many people are opposed to various "site blocking" laws, is that inevitably such things get abused. And while the US successfully stopped SOPA's site blocking plan, plenty of other countries went ahead and implemented something similar -- including, apparently, Portugal. Yet, earlier today, reports came out that the Portuguese site-blocking system was now blocking the website of an American video game development shop called Carbon Games. Now, it does appear that someone just screwed up here. It's not happening on all Portuguese connections, but it did happen on multiple ISPs according to the initial report on Reddit. Also, it seems they only blocked the version of the website where the URL starts with "www." Get rid of that and people could access the website without a problem -- again adding to the likelihood of a general screwup. Oh yeah, also, it looks like if you use any other DNS provider, such as Google's DNS, you'd avoid the blocks (another reason why blocking at the DNS level is kind of stupid).

Either way, even if it was just a "mistake," the fact that it happened at all should be a huge concern. When entire websites can be blocked without any real review or due process, it opens the door to much more serious and widespread censorship. It's again troubling how quickly many in the copyright realm ignore the nature of this slippery slope.

Filed Under: copyright, dns blocking, infringement, portugal, site blocking, sopa
Companies: carbon games

Court Says RIAA Can Just Tell Cloudflare Any Site Is A Grooveshark Clone... And Cloudflare Has 48 Hours To Dump Them

from the due-process? dept

Earlier this year, we were fairly concerned when a court ruled in favor of the RIAA in saying that Cloudflare had to automagically block any site that mentioned "Grooveshark" in the URL. Thankfully the court walked that back a bit, saying that the RIAA still had to inform Cloudflare of specific sites, but it still seemed problematic. The issue involved a few "fake" Grooveshark clones (sites pretending to be Grooveshark clones, but which actually were not). The RIAA can go after those sites directly, but the court's willingness to drag in a third party like Cloudflare was immediately problematic. That was a key part of SOPA -- the law that did not pass, yet judges keep pretending it did anyway.

Not surprisingly, whoever operated these sites ignored the lawsuit, leading to a default judgment in the RIAA's favor. That's to be expected when the defendants don't show up. But what's troubling is that the court keeps the injunction for Cloudflare in effect, basically letting the RIAA just designate any particular site as a Grooveshark clone, which Cloudflare then needs to dump within 48 hours. Even worse, if CloudFlare simply comes across a possible violation of the order by a customer, it has to proactively kick the site off its service. From the order:

IT IS FURTHER ORDERED that, in accordance with the terms of the Court's June 3, 2015 Order and its July 9, 2015 Order modifying same, CloudFlare is bound by this Order. Upon receipt notice from Plaintiffs or if CloudFlare otherwise has knowledge of an infringement or other violation of the Permanent Injunction on the part of one of its customers, CloudFlare shall cease providing its services to that customer as soon as possible, but no later than 48 hours after receiving such notice or obtaining such knowledge. CloudFlare may expeditiously notify its customers of any impending termination of their accounts as a result of this and related Court Orders.

This raises some fairly serious due process concerns. First off, Cloudflare certainly shouldn't be put in the position of determining what is and what is not infringing or violating this Court Order (in a case where it's not even a party). That puts tremendous burden on an unrelated party and it's a burden that almost certainly will pressure CloudFlare to kick sites off its service with nothing even close to resembling due process. Similarly it provides tremendous power to the RIAA to seriously damage website it doesn't like if they happen to use CloudFlare -- again with little to no due process.

That's not how the law is supposed to work. If there is infringing content, the DMCA allows the RIAA to file takedown notices, which have a clear process for notification and takedown of the infringing works. But what this order allows for is a vague standard, based on no clear law, to completely cut off services for a website, with no due process, no standard notification system and no clear appeals process.

As a default ruling in a district court this has basically no precedential value, but is quite worrisome nonetheless. Even if you believe that sites setting themselves up as Grooveshark clones deserve to be taken down, you should at least support basic due process before they can be killed off, right?

Filed Under: copyright, dmca, injunctions, sopa, takedowns
Companies: cloudflare, grooveshark, riaa

Sorry, MPAA, Court Rejects Your Plan For A Secret SOPA At The ITC

from the try,-try-again dept

Last year, when the Sony emails leaked, and it was revealed that the MPAA was still totally focused on bringing SOPA back through alternative means, one of the strategies explored was getting the International Trade Commission (the ITC) to set up a sort of secret SOPA. The ITC is an already problematic government agency that is already widely abused by patent holders. Basically, you can ask the ITC to "block" some sort of "illegal foreign competition." And for patent holders, this has meant going to the ITC and claiming that a foreign firm (or a domestic firm that is importing products) is violating its patents, and thus the ITC should issue an injunction blocking any such products from entering the US at its borders. This is already troublesome in the patent context, because the ITC process is entirely separate from either the USPTO's review of patents or the federal courts -- and actually has different rules. So even if a court might decide that a patent is invalid under existing rules, the ITC may have already started blocking the import of products, claiming patent infringement. It basically allowed patent holders to get two bites at the apple (sometimes, quite literally at Apple).

The MPAA's theory was that if the ITC can block "infringing products" at the border, why can't it basically do the same thing for "infringing content." The goal of the strategy -- which even the MPAA's legal experts admitted was a long shot -- was to find a key case, in which "digital goods" of some sort went before the ITC, and see if it could get a ruling in its favor. It found that case in the ClearCorrect case, in which the company ClearCorrect faced off against the ITC over its 3D printing of clear plastic braces, custom-designed for each patients' teeth. While another company holds patents on a similar process, ClearCorrect tried to get around this by doing the computer work in Pakistan, and then sending the completed digital model back to the US to be printed. Thus, ClearCorrect argued, it was not violating the patents in the US and was just getting a digital file. The ITC ruled against ClearCorrect, and the company appealed the ITC's ruling out into the federal court system where the case was heard by the appeals court for the Federal Circuit (CAFC). The MPAA weighed in supporting the ITC, hoping to give teeth to the idea that the ITC can block "digital goods" at the border for "infringement." Thankfully, the good folks at Public Knowledge weighed in on the other side, noting what a massive and dangerous expansion of power this would be for the ITC in a very digital world.

Thankfully, today, the CAFC sided with ClearCorrect and against the ITC (and the MPAA), noting that the ITC has no jurisdiction to issue injunctions on digital products. The decision was written by CAFC chief judge, Sharon Prost (who has really shaken up CAFC in a good way since taking over last year). Prost correctly notes that the ITC's original decision was a massive, unauthorized expansion of the ITC's jurisdiction, without the necessary Congressional approval. In short:

The Commission’s decision to expand the scope of its jurisdiction to include electronic transmissions of digital data runs counter to the “unambiguously expressed intent of Congress.”

Prost notes that the ITC's charter allows it to issue injunctions to block the import of "articles" at the border, and "it is clear that 'articles' means 'material things,' whether when looking to the literal text or when read in context 'with a view to the term's place in the overall statutory scheme.'"

The judge notes that, while digital content has some sort of physical aspects, that does not make it the same thing as physical property:

We recognize, of course, that electronic transmissions have some physical properties—for example an electron’s invariant mass is a known quantity—but commonsense dictates that there is a fundamental difference between electronic transmissions and “material things.”

Going into more detail, Prost basically just reads the law:

The Commission’s jurisdiction to remedy unfair international trade practices is limited to “unfair acts” involving the importation of “articles.” 19 U.S.C. § 1337(a). Thus, when there is no importation of “articles” there can be no unfair act, and there is nothing for the Commission to remedy. Here, the only purported “article” found to have been imported was digital data that was transferred electronically, i.e., not digital data on a physical medium such as a compact disk or thumb drive. The Commission’s April 3, 2014, majority opinion devotes twenty-one pages of analysis to the question of whether “articles” encompasses digital data and ultimately concludes that it does.

But Judge Prost notes that the ITC is just wrong about that. And then starts digging in deeper and deeper about how ridiculous the ITC was in trying to make this massive landgrab. She spends pages citing the dictionary (actually, multiple dictionaries) as to why the ITC is just wrong. And then moves on to point out that it's pretty clear what Congress meant and the ITC seems to have just decided for itself to try to expand its powers. It's a pretty thorough smackdown. After making it clear that the ITC clearly misread the statute, Prost then goes on (even though she doesn't have to) to smack down the ITC's interpretation as "unreasonable." Again, she returns to the dictionary and notes that it appears the ITC looked at it, and then decided to pretend it said something different.

The Commission’s analysis of dictionary definitions evidences the irrationality of the Commission’s interpretation of the term “article.” While the Commission ostensibly analyzes various dictionary definitions, it fails to adopt a definition consistent with any of the definitions it references. For example, as discussed in the prior section, the Commission turns to the 1924 edition of the Webster’s dictionary for the definition of “article,” but rather than adopt that definition it concludes that it will “embrace a broader meaning that describes something that is traded in commerce.” ... In other words, it generates its own definition, unrelated to the definition provided by the dictionary.

Furthermore, the Commission inexplicably cites to several dictionaries in two footnotes that support “articles” being defined as “material things,” but provides no analysis as to why these dictionaries should not be considered.

Even worse, she notes that the ITC not only misread the legislative history on the Tariff Act, but appears to have simply cut out a key phrase that undermines its argument. Specifically:

The Commission’s Opinion cites the Senate Report, S. Rep. 67-595, as authority for this conclusion and then quotes it as follows:

The provision relating to unfair methods of competition is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate protection to American industry than any antidumping statute the country ever had.

However, the actual quote reads as follows:

The provision relating to unfair methods of competition in the importation of goods is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate protection to American industry than any antidumping statute the country ever had.

.... The Commission’s omission of the phrase, “in the importation of goods” is highly misleading; not only was a key portion of the quote omitted, but it was omitted without any indication that there had been a deletion. Furthermore, while we may agree that the quote, as incorrectly stated by the Commission, would indicate a broad authority for the Commission, the phrase “in the importation of goods” clearly limits the Commission’s authority. And as we discussed above, it limits it in such a way as to exclude non-material things. Because the Commission uses this misquote as its main evidence that the purpose of the act was to cover all trade, independent of what form it takes, the Commission’s conclusion regarding the purpose of the Act is unreasonable.

Yeah, simply deleting the phrase that undermines your argument, without even putting in some "..." or something is pretty bad.

There's a concurring opinion from Judge Kathleen O'Malley that is also a good read, noting how ridiculous it is that the ITC magically thinks it has the right to regulate pretty much the entire internet, without any actual expertise or mandate from Congress:

The Commission has concluded that it has jurisdiction over all incoming international Internet data transmissions. It reaches this conclusion despite never having purported to regulate Internet transmissions in the past, despite no reference to data transmissions in the statute under which it acts, despite an absence of expertise in dealing with such transmissions, and despite the many competing policy concerns implicated in any attempt to regulate Internet transmissions. The Internet is “arguably the most important innovation in communications in a generation.”... If Congress intended for the Commission to regulate one of the most important aspects of modernday life, Congress surely would have said so expressly.....

Although the Commission’s jurisdiction over imported physical goods is undeniable, it is very unlikely that Congress would have delegated the regulation of the Internet to the Commission, which has no expertise in developing nuanced rules to ensure the Internet remains an open platform for all.... Instead, the responsibility lies with Congress to decide how best to address these new developments in technology.....

Indeed, Congress has enacted laws and debated bills whose intent is to balance an interest in open access to the Internet and the need to regulate potential abusers.... Not once in these debates has Congress said or implied that it need not concern itself with these issues because it had already delegated the authority to do so to the Commission.

Good stuff. O'Malley is actually arguing that the majority decision doesn't even need to go through the whole "Chevron" test it does, about interpreting the law because it's so blatantly obvious that the ITC has no authority here, but if it must go through with that interpretation test, then she agrees with Judge Prost that the ITC is just wrong.

There is a dissent, from Judge Pauline Newman who basically says "well, the ITC regulates international commerce, and commerce today is digital, so it's all good."

The purpose of Section 337 to provide a facilitated remedy against infringing imports is beyond dispute. The panel majority’s removal of this remedy from a preeminent form of today’s technology is a dramatic withdrawal of existing rights, devoid of statutory support and of far-reaching impact. The majority’s ruling, that digital goods cannot be excluded under Section 337 because digital goods are “intangible,” is incorrect.

Given all that, don't be surprised to see an attempt to appeal this to the Supreme Court (or en banc for CAFC). But, at least for now this is a good and important decision that wipes out one of the MPAA's secret plans to bring SOPA in through the back door. Kudos to Public Knowledge for focusing in on this case and making the case for keeping the internet open.

Filed Under: cafc, copyright, digital goods, itc, sopa
Companies: clearcorrect, mpaa

Think Tank Who Proposed SOPA Now Argues That US Should Encourage Countries To Censor The Pirate Bay

from the censorship dept

On Tuesday, the House Judiciary Committee held a hearing on what sounds like a boring topic: "International Data Flows: Promoting Digital Trade in the 21st Century." However, as we've discussed, this seemingly boring topic can have a profound impact on how the internet functions, and whether it remains a global platform for free expression -- or becomes a fragmented system used for widespread censorship, surveillance and control. In other words this is important.

The hearing was mostly pretty bland (as Congressional hearings tend to be), but at one point, Robert Atkinson, the President of the Information Technology and Innovation Foundation (ITIF) argued that the US should be encouraging global censorship if it's for sites like The Pirate Bay. You can watch the portion of the video below (it should start at the right moment, but if not, jump to 1 hour, 27 minutes and 40 seconds): It starts with Rep. Jerry Nadler reading a question someone else clearly prepared for him, directed at Atkinson about how to handle situations in which different countries have different laws regarding free speech and content, and what that should mean for "data flows" across borders. In short, this is a question about "what should we do with countries who want to censor the internet -- and should we allow that sort of thing." Atkinson's answer is a bit rambling, but he basically starts off by saying that we'll never agree with some other countries on free speech and such... but then says no matter what, one thing we should all agree on is that it's good to censor sites like the Pirate Bay and the US should encourage such blatant censorship worldwide:

I think it's an untenable project that we would end up with "global harmony" on every single rule with regard to the internet. We're not going to be able to do that. And we're certainly not going to be able to do that with free speech. There are certain countries, particularly more traditional, religious countries that find pornography objectionable. We don't with our... or at least we have free speech, we may find it objectionable, but we allow it. We're not going to agree on that. And for certain things like that, countries are going to do that and I think we just have to be okay with that.

Another example is in Germany, you're not allowed to download a copy of Mein Kampf. In the US, we can. Again, we're not going to change the German view. I don't know if they're right or wrong. It doesn't make any difference.

Where we can and should, though, take action, is there are some things that are clearly illegal under the WTO framework for intellectual property, for example piracy and intellectual property theft can be prosecuted. So when countries engage in steps, for example, to block certain websites that are clear piracy sites -- like, for example, a web or a domain called "the pirate bay" that should be quite... you know we should be encouraging that. That's quite different than blocking, say, Facebook or something like that, or blocking some site just because you don't want competition.

Where to start? Well, how about I let Atkinson debunk Atkinson. In the question immediately preceding this one about blocking websites, Nadler had asked Atkinson about backdooring encryption. And there, Atkinson gave a much better answer, noting that it was a terrible idea (he's right!), but then notes:

If they try to mandate that, they're setting a dangerous precedent, for example, by letting the Chinese government do the exact same thing.

Uh. Yeah. And having the US government "encourage" censoring websites also sets a dangerous precedent by letting the Chinese government (and lots of other governments) point to the US as doing the same thing they do. But, as Atkinson and other copyright system supporters will undoubtedly scream, "that's different -- this is about copyright, not censorship." Yeah, well, you're not paying attention if you don't recognize how copyright is used for political censorship as well. Remember how Russia was using copyright law to intimidate its critics? What you might not remember is that when China first set up its massive online censorship system, known as the Great Firewall of China, one of its key justifications to the outside world was that it would be used to stop piracy online. And, of course, during the big SOPA/PIPA fight, the Chinese were laughing at those of us in America who whined about their Great Firewall, while we were debating a proposal to set up an identical system.

Of course, it's no surprise that Atkinson is making this argument. The organization he runs, ITIF, is frequently credited with first proposing the ideas behind SOPA in a white paper that came out right before the SOPA push. And ITIF famously argued in favor of SOPA by pointing to authoritarian countries who censor the internet as proof that SOPA wasn't that harmful. Yes, Atkinson's own firm suggested that the US should emulate China, Saudi Arabia, Iran, Syria and a number of other countries in censoring the internet. But, you know, "just for copyright."

And this doesn't even get to the issue of Atkinson's assured statement that certain sites are "clear piracy sites." Except, as we've noted over and over again, almost every great innovation around content delivery was decried as a "tool for piracy" originally. Radio, TV, cable TV, the photocopier, the VCR, the DVR, the mp3 player and YouTube and similar sites were all attacked as piracy tools originally. And yet every one of them actually opened up new and important arenas for content creation, distribution and monetization. What looks like a piracy tool in the early days often becomes a massive and legitimate business opportunity soon after (again: it was just four years after the MPAA's Jack Valenti declared VCR's the "Boston Strangler" to the film industry that home video revenues surpassed box office revenues).

Either way, what Atkinson was saying here is both shocking and dangerous. He's outright advocating a censorship regime based on his belief of what is and is not appropriate -- and suggesting that the US should "encourage" other countries to censor the web without legal due process, without consideration for innovation, because he has decided which sites are bad. At the end he says that blocking The Pirate Bay is not like blocking Facebook. Yet, there are many people who argue that Facebook is, similarly, a giant piracy site. Whose definition is right in that context? And the same question can be asked about YouTube. Viacom sued YouTube claiming that it was just as bad as the Pirate Bay. Would Atkinson support countries blocking all access to YouTube "under the WTO"?

There is a rather astounding level of cognitive dissonance that some people, such as Atkinson have, around issues related to copyright and censorship. They assume, incorrectly, that copyright is some magical fairy tale world where it's never used for censorship, and thus it's fine to block "bad sites" where people like Atkinson get to decide what is and what is not bad. But all he's doing is encouraging internet censorship, and giving massive amounts of cover to authoritarian regimes who want to censor the internet for all sorts of reasons. They can easily take Atkinson's claims that we must encourage censorship over copyright and either abuse copyright for that purpose, or even just twist it slightly to note "well, blocking infringement is important to the US, and we feel the same way about political unrest."

Atkinson's ITIF lost its battle for SOPA nearly four years ago. It shouldn't try to reintroduce the idea of a global platform for internet censorship today.

Filed Under: censorship, congress, copyright, data flows, digita trade, free flow of information, free speech, judiciary committee, jurisdiction, robert atkinson, safe harbor, sopa
Companies: itif

Whatever You Think Of The RIAA's Lawsuit Over Aurous, Shouldn't We Be Concerned That It's Pretending SOPA Is Law?

from the seems-like-an-issue-that-ought-to-be-looked-at dept

As you may have heard, earlier this week, the RIAA sued Aurous and its creator Andrew Sampson for creating an apparently easy to use software front-end for streaming music from some unauthorized repositories (mostly in Russia). For his part, Sampson insists that he just used some publicly available APIs and created a nice front end, without doing anything that is directly infringing himself. While I can understand those claims, the existing details and case law suggest that Sampson isn't going to fare very well in court. Given Sampson's own public statements, at the very least, the RIAA has made a fairly compelling case under the Grokster "inducement" theory. You can -- as I do -- think that "inducement" to copyright infringement is a ridiculous thing to be considered against the law, but that doesn't change the fact that it is, indeed, the law. Unless there are some as yet unknown details here, Sampson is likely going to have a hard time getting around the inducement claims.

So given all that, I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn't mean that parts of the lawsuit aren't concerning. Of particular concern is what the RIAA is asking for in the lawsuit -- and what the judge appears to have granted. Specifically, in the lawsuit itself, the RIAA doesn't just ask for Aurous to be shut down, but also asks for all sorts of third parties to be restrained as well. Here's the list of things the RIAA asks the court to issue an order for:

(A) enjoining Defendants and all third parties with notice of the Order, including any Web hosts, domain name registrars, domain name registries, or their administrators, from facilitating access to any or all domain names, URLs, and websites (including, without limitation, www.aurous.me) through which Defendants infringe Plaintiffs’ copyrights;

(B) requiring domain name registries and/or registrars holding or listing Defendants’ domain names and websites (including, without limitation, www.aurous.me) through which Defendants infringe Plaintiffs’ copyrights to: (a) disable www.aurous.me and any related domain names specified by Plaintiffs through a registry hold or otherwise, and to make them inactive and non-transferable, and (b) transfer Defendants’ domain names to a registrar to be appointed by Plaintiffs to re-register the domain names in Plaintiffs’ names and under Plaintiffs’ ownership;

(C) enjoining all third parties with notice of the Order from maintaining, operating, or providing advertising, financial, technical, or other support to Defendants and any other domain names, URLs or websites through which Defendants infringe Plaintiffs’ copyrights, including without limitation www.aurous.me; and

(D) enjoining all third-party distributors of applications, toolbars, or similar software with notice of the Order from distributing any applications, toolbars, or similar software applications that interoperate with any domain names, URLs or websites through which Defendants infringe Plaintiffs’ copyrights, including without limitation www.aurous.me.

This is problematic, to say the least. Remember, SOPA did not become law, and yet the main part of the original SOPA bill was to create just this sort of remedy, whereby copyright providers could get a court order to get third party companies to be barred from doing any business at all with a site deemed a "pirate" site. Yet, SOPA did not become the law and the RIAA is just pretending it is law in asking the court to block all of those third parties from providing any services to the site.

The RIAA also submitted a desired temporary restraining order, which the judge effectively rubber stamped, granting everything the RIAA asked for -- but rejecting the RIAA's request not to have to put up a bond over this. Instead, the judge ordered the RIAA to put up a tiny $5,000 bond in case a party was "wrongfully" enjoined. That temporary restraining order seems pretty broad as well:

... Defendants and their officers, agents, servants, employees, attorneys, and all persons who in active concert or participation with each or any of them, or who are aiding and abetting their conduct, are hereby RESTRAINED and ENJOINED until further Order of this Court from infringing, or causing, enabling, facilitating, encouraging, promoting and inducing or participating in the infringement of, any of Plaintiffs’ copyrights protected by the Copyright Act, whether now in existence or hereafter created...

Of course, one might question what qualifies as "all persons who are in active concert or participation," but it still has the potential to be overbroad, and to pull in all sorts of third parties who are doing nothing more than providing basic services.

Again, none of this is to say that Aurous is legal or shouldn't be facing this lawsuit. But pulling in third parties here was exactly the kind of thing that Congress chose not to do when it did not pass SOPA, in the wake of overwhelming public sentiment against allowing these sorts of remedies.

So why is the RIAA simply acting like it got what it wanted with SOPA and asking the court to proceed accordingly?

Filed Under: andrew sampson, copyright, dmca, inducement, intermediary liability, lawsuit, restraining order, sopa, third parties
Companies: auroros, riaa