NYPD Claims It Can't Find 'Widely-Circulated' Memo That Cut Off Press Access To Precinct Crime Blotters

from the [sound-of-burning-paper] dept

MuckRock is again reporting on a mysteriously missing document -- one that was previously acknowledged to exist but come public records request time, simply can't be found.

A couple of months ago, it was the FBI claiming that a Drone Impact Assessment it had previously "released" in response to an FOIA request (read: redacted in full) suddenly couldn't be located. Now, it's the gold standard of Freedom of Information obfuscation -- the New York Police Department -- claiming the same thing.

In December 2013, the NYPD ordered its 77 precinct commanders to route reporters’ requests for crime reports through the agency’s press office, rather than release these documents directly. So where’s the order itself?

More than fifteen months after MuckRock requested it, the NYPD has a rather familiar answer: we couldn’t find it.

It's not as though the document never existed. The NYPD's decision to deny journalists access to its crime blotters -- something it had allowed for decades previously -- was heavily criticized by a variety of outlets (including this one). The document's existence was even acknowledged by the NYPD's Deputy Commissioner of Public Information, who claimed it was nothing more than a reiteration of previously-existing policy. (If so, then it had never been enforced until the distribution of this suddenly-nonexistent memo.)

But now, more than a year after it was first requested, the NYPD's FOIL response team claims the document everyone was talking about several months ago just isn't there.

In regards to the document(s) you requested, this unit is unable to locate documents responsive to your request based on the information provided.

In addition to the documents MuckRock didn't receive, the NYPD is expected to not answer MuckRock's follow-up question sometime within the next 12-18 months.

MuckRock has emailed the NYPD’s DCPI [Deputy Commissioner of Public Information] to request clarification as to how this order was so widely disseminated throughout the department without being put in writing.

Perhaps the last words of the memo were, "BURN AFTER READING?"

And so, the NYPD continues on in its quest to leave no FOIL request unthwarted. I'd say it has its work cut out for it, but it's already been touted as "worse than the CIA, NSA and FBI" in the Information Doesn't Want to Be Free category. Between its generally frosty exterior and its no-oversight-needed in-house document classification, the NYPD continues to put other reluctant participants in open records laws to shame.

Filed Under: crime blotter, foia, foil, journalism, new york, nypd

New York Legislators Seeking A 'Right To Repair' Law For Electronic Devices

from the the-end-of-fixed-fixes? dept

Well, this is (potentially) good news. New York is going forward with the first "right to repair" bill in the nation, as pointed out on Twitter by Amanda Levendowski. The bill will allow constituents to bypass manufacturer-authorized dealers/repair centers and use smaller (and cheaper) repair outlets. Or, if neither seems within the price range, they're more than welcome to perform these repairs -- using previously-hidden manufacturer specs and instructions -- themselves.

Perhaps the best thing about the bill (if it passes with as few loopholes as possible) is that it will eliminate the sort of ridiculousness that has been the end result of this tight grip on repair "permission." Like Immigrations and Customs Enforcement (ICE) raiding repair shops for using aftermarket products. Or teens being sued by multi-billion dollar companies for doing the same. Or local governments requiring unrelated licenses to be obtained before a person can start offering repairs.

Here's what's being authorized before the exceptions kick in. (ALL CAPS in the original.)

MANUFACTURERS OF DIGITAL ELECTRONIC PARTS AND MACHINES SOLD OR USED IN THE STATE OF NEW YORK SHALL:

I. MAKE AVAILABLE FOR PURCHASE BY INDEPENDENT REPAIR FACILITIES OR OTHER OWNERS OF PRODUCTS MANUFACTURED BY SUCH MANUFACTURER DIAGNOSTIC AND REPAIR INFORMATION, INCLUDING REPAIR TECHNICAL UPDATES, UPDATES AND CORRECTIONS TO FIRMWARE, AND RELATED DOCUMENTATION, IN THE SAME MANNER SUCH MANUFACTURER MAKES AVAILABLE TO ITS AUTHORIZED REPAIR CHANNEL. EACH MANUFACTURER SHALL PROVIDE ACCESS TO SUCH MANUFACTURER'S DIAGNOSTIC AND REPAIR INFORMATION SYSTEM FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS; AND

II. MAKE AVAILABLE FOR PURCHASE BY THE PRODUCT OWNER, OR THE AUTHORIZED AGENT OF THE OWNER, SUCH SERVICE PARTS, INCLUSIVE OF ANY UPDATES TO THE FIRMWARE OF THE PARTS, FOR PURCHASE UPON FAIR AND REASONABLE TERMS…

EACH MANUFACTURER OF DIGITAL ELECTRONIC PRODUCTS SOLD OR USED IN THE STATE OF NEW YORK SHALL MAKE AVAILABLE FOR PURCHASE BY OWNERS AND INDEPENDENT REPAIR FACILITIES ALL DIAGNOSTIC REPAIR TOOLS INCORPORATING THE SAME DIAGNOSTIC, REPAIR AND REMOTE COMMUNICATIONS CAPABILITIES THAT SUCH MANUFACTURER MAKES AVAILABLE TO ITS OWN REPAIR OR ENGINEERING STAFF OR ANY AUTHORIZED REPAIR CHANNELS. EACH MANUFACTURER SHALL OFFER SUCH TOOLS FOR SALE TO OWNERS AND TO INDEPENDENT REPAIR FACILITIES UPON FAIR AND REASONABLE TERMS.

That's the good part. But there are potential loopholes in the bill already, including a major exception for one of the most tightlipped industries: auto manufacturers.

NOTHING IN THIS SECTION SHALL APPLY TO MOTOR VEHICLE MANUFACTURERS OR MOTOR VEHICLE DEALERS AS DEFINED IN THIS SECTION.

If any industry needs to be covered under a "right to repair," it's the auto industry, which has continually abused intellectual property laws to keep the general public from diagnosing their own vehicles in order to perform their own repairs.

There's other potential bad news in there as well.

NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE A MANUFACTURER TO DIVULGE A TRADE SECRET.

Yeah. Guess what's going to start being declared "trade secrets?" Probably almost everything the bill orders manufacturers to make available to the public. Even if this bill passes, there's going to be a ton of litigation over what does and does not define a "trade secret." In the meantime, the public will be no better off than they were before the bill's passage.

And there's this exception, which would seem to pick up whatever slack "trade secrets" can't.

NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE MANUFACTURERS OR AUTHORIZED REPAIR PROVIDERS TO PROVIDE AN OWNER OR INDEPENDENT REPAIR PROVIDER ACCESS TO NON-DIAGNOSTIC AND REPAIR INFORMATION PROVIDED BY A MANUFACTURER TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN AUTHORIZING AGREEMENT.

"Non-diagnostic" could become the new "diagnostic." And the use of the word "and" seems to make "repair information" off-limits if any agreements are already in place with authorized dealers and repair shops.

There's also a good chance the bill's "fair and reasonable terms" will be construed as permission to price independent repair shops and the general public out of the market. Legislators obviously can't set base prices (or even determine a fair market price -- that information is kept under wraps as well), so the suggestion of a "fair" price is open to advantageous interpretation. There's an attempt to set some limits in the bill's definitions, with the most significant one being "THE ABILITY OF AFTERMARKET TECHNICIANS OR SHOPS TO AFFORD THE INFORMATION," but that, again, is going to generate a lot of friction (possibly of the litigious variety) when manfacturers and the rest of the public repeatedly fail to agree on the definition of "affordable."

Still, it's more than most governments are willing to attempt. Massachusetts passed one in 2013 -- one that targeted auto manufacturers and dealers. It met with the usual resistance from the auto industry (both ends) but gathered 86% of the public's votes, clearly signaling unhappiness with the automakers' closed systems. A federal "right to repair" law has been mooted several times, but has never gained significant traction.

If this bill is going to succeed as a law, legislators need to do some loophole stitching pre-passage, and regulators will need to keep a very close eye on reticent manufacturers after it becomes law.

Filed Under: counterfeits, drm, electronics, new york, right to repair

UK Positioning Itself As Bitcoin's Best Friend

from the while-the-us-goes-the-other-way dept

Imagine if a government put out a series of questions that the public could respond to, garnered responses from across a community, listened to them, and then actually enacted sensible tech policy. Sounds like a dream, right? Well that's exactly what the UK just did.

Last week the UK announced the results of its extensive inquiry on bitcoin and digital currencies, and so far, the results seem both fair and reasonable.

One major conclusion is that the UK will apply AML (anti money-laundering) regulation to digital currency exchanges, with the details to be determined by the Parliament in the forthcoming session. The US, by contrast, already imposes such requirements on exchanges plus other digital currency companies via FinCEN and the Bank Secrecy Act. The UK government will also work to ensure that law enforcement has the tools it needs to stamp out criminal uses of digital currencies.

But the even bigger part is what's missing: no licensing regime for digital currencies.[1] No arduous process for startups and small businesses. No policies that give an advantage to big institutions over up-and-coming innovators.

In fact, the British government decided that what is most appropriate is to work with the digital currency community to develop a set of best practices for consumer protection and create a voluntary, opt-in regime. This approach was chosen "in order to address the risks identified but without imposing a disproportionate regulatory burden on the industry." And because it recognizes the substantial promise that digital currency technology has to offer, the government will devote GBP 10 million (approximately US$15M) in an annual budget for research in the space, including the newly-formed Alan Turing Institute.

The report reads like a breath of fresh air, with an honest assessment of the current low likelihood of use by major criminal enterprise, and acknowledgements of the risk of regulating too much, too soon. It even summarizes the belief that New York's proposed BitLicense is an overly restrictive approach that could damage the industry.

The UK's approach differs from that of New York in several ways, including that the UK chose to analyze first and propose later. While NY did hold hearings in advance of releasing its regulations, it still to this date has failed to release a summary of its research and rationale for requiring strong digital currency regulation, despite its legal requirement to do so. And New York's regulations require permission to innovate via licensing, whereas the UK's proposal takes a different and far more innovation-friendly tack.

The UK digital currencies report acknowledged that market participants are addressing some of the risks in the space, and singled out exchanges as a special category, instead of New York's overly broad "virtual currency business activity" that encompasses everything from microtipping services to launching a protocol for a new currency. (As an aside, New York has claimed it won't regulate "software developers," but what it actually means is it won't regulate software developers as long as they aren't developing the software covered by its proposed law.)

Some London-based entrepreneurs I spoke to reacted with uncertainty about the effect that overly burdensome anti money-laundering regulations could have, and this is yet to be determined. But in the end, a regime in which one does not need permission to innovate, but instead has a reasonable set of rules to abide by, bodes far better for building the future of technology.

Basically, the UK just became the anti-NY. And the innovation will flock to the places with smart, sensible policies that allow for permissionless innovation.

[1] For companies that deal with consumer funds in GBP, Euro, or other "fiat" currencies, they'll likely still need to be registered with or authorized by the government.

Filed Under: bitcoin, innovation, new york, permissionless innovation, regulations, uk

NY Court Orders Sheriff To Reveal Details On Stingray Mobile Phone Surveillance

from the finally,-a-victory dept

For quite some time now, we've been covering how various law enforcement agencies have been using "Stingray" (or similar) cell tower spoofing devices to track the public. Beyond the questionable Constitutionality of such mass surveillance techniques, what's been really quite incredible is the level of secrecy surrounding such devices. We've written about how the US Marshals have "intervened" in various court cases to hide info about the use of Stingrays -- and even telling local law enforcement to lie about their use of the devices. We've written about law enforcement officials claiming "terrorism" as the reason for needing Stingrays, but then using them for everyday law enforcement. We've written about the company that makes Stingrays, Harris Corp., forcing police to sign non-disclosure agreements barring them from revealing any info about their use. It also appears that Harris Corp. misled the FCC to receive approval for its mobile tower spoofing capabilities. Some police departments have even withdrawn evidence rather than talk about their use of Stingrays.

Thankfully, there's been growing concern about these devices. Congress has been investigating and now it appears at least some courts are getting skeptical about the use of Stingrays. The New York Civil Liberties Union (NYCLU) has highlighted that a judge in one of its cases has ordered the Erie County Sheriff's Office to reveal information to the public about its Stingray operations. The full ruling [pdf] is worth reading. While denying the NYCLU's claim that the Sheriff's Office didn't conduct a thorough search as required, the judge is not at all impressed by the redactions in the documents that were released:

The purchase orders should have been disclosed in their entirety, without redaction of the various words, phrases, and figures thus far withheld. The purchase orders (and more particularly the redacted words, phrases, and prices), were not "compiled for law enforcement purposes" in the sense meant by the statute but, even if they were, their disclosure would not: "interfere with law enforcement investigations or judicial proceedings"; "identify a confidential source or disclose confidential information relating to a criminal investigation," meaning a particular ongoing one; or "reveal [non-'routine'] criminal investigative techniques or procedures, meaning techniques a knowledge of which would permit a miscreant to evade detection, frustrate a pending or threatened investigation, or construct a defense to impede a prosecution.... Further, the purchase orders (or, more precisely, the information redacted therefrom), although clearly constituting inter-agency materials" (the other agency involved was Erie County and its Office of the Comptroller), amount entirely to "instructions to staff that affect the public".... Indeed, the instructions set forth in the purchase orders—'in essence, "Pay this bill of this vendor for this item purchased by the Sheriff's Office at this price"—was and is of quintessentially compelling interest to and of undeniable impact upon the taxpaying public.

Finally, the Court finds that the purchase orders, and particularly the matters redacted therefrom, are not "specifically exempted from disclosure by state or federal statute" .... The Court rejects respondent's arguments that the disclosure sought here would, if made, violate a particular federal statute, regulatory scheme, and executive order forbidding (and indeed criminalizing) the export of certain sensitive technology without government license or the illicit revelation of sensitive information about such sensitive technology to foreign nationals. The Court instead is convinced by petitioner's argument that the disclosure of public records pursuant to New York's Freedom of Information Law and the within judicial directive -- even records concerning respondent's ownership and use of a cell site simulator device -- does not amount to the actual export of such arms, munitions, or defense technology. Further, the Court is satisfied by showing on this record that petitioner, a New York not-for-profit corporation, is not a "foreign person," meaning that the disclosures sought by it pursuant to FOIL would not in fact run afoul of related federal legal restrictions on the revelation of sensitive technical data about export-restricted arms or technology.

Got that? Basically the court rejects the Sheriff's Office's contention that disclosing this information was somehow "exporting munitions" to "foreign persons."

Oh, as for the non-disclosure agreement with Harris Corp.? The judge notes that a non-disclosure agreement is not a federal regulation:

At the outset, the Court notes its agreement with petitioner's observation that the FBI-drafted non-disclosure agreement is not itself a federal statute specifically exempting anything from disclosure....

In fact, later in the order, the court says that the non-disclosure agreement itself should be disclosed:

Likewise, the Court concludes that this public record ought to have been disclosed in its entirety. As indicated, the agreement was entered into between the FBI and respondent as an apparent pre-condition of respondent's being allowed to acquire and use the cell site simulator. The gist of the letter is not a recitation of the technological capabilities of the device or even the "hows" and "whens" or the advantages of its use for law enforcement purposes, but rather simply the need for the Sheriff's Office to avoid disclosing the existence, the technological capabilities, or any use of the device to anyone, lest "individuals who are the subject of investigation ... employ countermeasures to avoid detection," thereby endangering the lives and safety of law enforcement officers and others and compromising criminal law enforcement efforts as well as national security. The Court has no difficulty in concluding that the agreement (or, more precisely, each redacted-at-length passage of it) was not "compiled for law enforcement purposes" in the sense meant by the statute.... Again, even if it was, the Court would conclude that the disclosure of the non-disclosure agreement would not thwart or prejudice any particular ongoing law enforcement investigation or pending prosecution.... Nor, the Court concludes, would the disclosure of the non-disclosure agreement "identify a confidential source or disclose confidential information relating to a criminal investigation," again meaning a specific ongoing one, or "reveal" other than "routine" "criminal investigative techniques or procedures"....

There's a lot more, including other documents, and all of that leads the judge to also grant attorney's fees to the NYCLU. It will be interesting to see if the Sherriff's Office challenges this, but it's a pretty complete win for transparency in an area that law enforcement has been trying to keep totally secret for quite some time now.

Filed Under: erie county sherriff's office, foia, foil, imsi catcher, new york, stingray, surveillance
Companies: aclu, nyclu

NY Attorney General Proposes Not Terrible Cybersecurity Legislation

from the did-he-not-get-the-memo? dept

The state of New York wants to get in on all the cybersecurity fun the kids legislators and intelligence officials are talking about these days. New York Attorney General Eric T. Schneiderman has announced his plan to introduce cybersecurity legislation this year, putting the state in the position to regulate data security and its citizens' privacy.

Most legislation that includes the word "cyber" is nothing more than an excuse to give the government a larger piece of the action -- generally by redefining the term "information sharing" to mean a one-way street of data collection running from private companies (and their customers) to various law enforcement and security agencies.

Schneiderman's proposal seems to be more skewed towards actually increasing protections of companies and customers, rather than simply codifying additional government access. But before we start passing around high fives and popping champagne corks, it must be noted that not a single word of this has been put to paper yet (excluding the press release). At this point, it's just a proposal for legislation. There's no first draft to read and no indication what its interplay (amendments, etc.) with existing laws will entail.

That being said, most of what's delivered in Schneiderman's statement is mostly reasonable. Most of what's being asked for should have already been in place (including additional restrictions on the sharing of medical data). Many companies (coughSONYcough) seem to treat their customers' personal data as an afterthought -- something that only deserves attention after it's been Pastebinned for the world to see.

Expand Definition of Private Information- New York legislators should expand the definition of “private information” to include both the combination of an email address and password, and an email address in combination with a security question and answer, as California already has done. Additionally, the definition of private information should include medical information, including biometric information, and health insurance information.

Legislate Reasonable Data Security Requirement- All entities that collect and/or store private information should be required to have reasonable security measures to protect said information. These measures should include:

Administrative safeguards to assess risks, train employees and maintain safeguards.

Technical safeguards to (i) identify risks in their respective network, software, and information processing, (ii) detect, prevent and respond to attacks and (iii) regularly test and monitor systems controls and procedures.

Physical safeguards to have special disposal procedures, detection and response to intrusions, and protect the physical areas where information is stored.

Certification- Entities that obtain independent third-party audits and certifications annually showing compliance with New York’s reasonable data security requirements should receive for use in litigation a rebuttable presumption of having reasonable data security.

Legislate a Safe Harbor to Provide an Incentive for a Heightened Level of Data Security– New York needs to incentive businesses to implement the most robust data security. To do so, New York should offer a safe harbor if a company adopts a heightened form of security. To comply, entities would be required to categorize their information systems based on the risk a data breach imposes on the information stored. Once information systems are categorized, a data security plan based on a multitude of factors would be implemented and followed. Once this standard is met, the entity would be required to attain a certification and, upon doing so, would be granted the benefit of a safe harbor that could include an elimination of liability altogether.

Overall, not terrible, with a couple of caveats. One: the government's ability to protect itself from cyberattacks and other hacking ranges from less-than-adequate to abysmal. Considering its lack of self-awareness, it seems presumptive to put itself in the position of setting standards for data security. Sure, it could bring in actual experts in the field to craft these, but once legislators have had their say, what's been recommended may only bear the faintest resemblance to what's actually implemented.

Two: while the proposal helpfully expands the definition of "private information," it fails to provide specifics about who can or can't access this information. Any company could route around these restrictions with some fine print in its Terms of Service. And there's nothing forbidding the acquisition of medical, biometric and insurance data by the state itself. In fact -- and here's where we head into the "fairly decent BUT" section" -- the proposal lays the groundwork for one-way information sharing in the final paragraph.

Protection for Sharing Forensic Data- Finally, in the event of a data breach, New York should incentivize companies to share forensic reports with law enforcement officials. One way to accomplish this would be to make sure that the disclosure of a forensic report to a relevant law enforcement agency for the purposes of investigating those responsible for a data breach does not affect any privilege or protection. This would allow companies to feel comfortable with the free sharing of information while giving authorities a better chance at catching those responsible.

This is more sensible than other proposals as it looks to limit sharing of data to forensic data only. Then again, this is a proposal and, while all intentions are pure, it's a long way from a finished product. When the bill finally hits the legislative floor, it's very likely that this restrictive sharing will be loosened. Considering the panic that surrounds all things cyber-related -- especially once some enterprising do-gooder tosses the word "cyberterrorism" into the mix -- it's going to take a very dedicated and obstinate person to shepherd this through with most of these protections still intact.

And someone's still going to need to sell this additional layer of regulation to the companies it will affect -- many of whom have some pull in the upper reaches of the government. They're not exactly going to welcome the additional expense of implementing solid data security, even if they should have been on top of this since day one. The litigation safe harbor should make the pitch a bit more appealing, but again, it will take someone dedicated and tenacious to ensure the requirements aren't watered down into uselessness on its way to the governor's desk.

Filed Under: cybersecurity, eric schneiderman, new york, security

NY Judge Laments The Lack Of A 'Right To Be Forgotten'; Suggests New Laws Fix That

from the the-first-amendment-would-be-a-problem dept

A NY state judge, Milton Tingle, has apparently decided that Europe's troubling right to be forgotten concept should be imported into the US (possible registration/paywall). The case he was dealing with -- the rather impressively an vaguely named "Anonymous v. Anonymous Jane Does" -- touches on an issue we've discussed for many years. What happens when you have defamatory content posted to a site, where the site is protected by Section 230 of the CDA, and the original posters cannot be found.

In those cases, as we've noted, there may be no effective remedy for the defamatory speech. The site cannot be forced to take it down, because if they're just a platform, they have no liability for someone else's speech. And since the person or people who are responsible can't be found, not much can be done. That appears to be the situation in this case:

Claiming they were prostitutes, anonymous commentators with the handles "JennaVixen," "Emma NYC Escort" and "Anonymous," posted opinions about the plaintiff's sexual habits.

One of the commentators said he or she also was "an ex-employee owed money who is suing [the plaintiff]."

The plaintiff sued in 2013, claiming the comments were defamatory per se. He said he never engaged in the sexual activity described, nor was he an employer who failed to pay employees.

Since the commenters were anonymous, and there was no way to track them down, the judge initially allowed the commenters to be "served" by posting the summons on the same site where the comments were made, Dirtyphonebook.com. Not surprisingly, posting the summons on the site didn't make the commenters show up in court (whether or not they even saw the summons). Thus, the plaintiff won in a default judgment. But, again, nothing specifically could then be done -- which the judge appears to understand. However, he's troubled by this lack of a remedy, and appears to use the opportunity to muse on importing the "right to be forgotten" in such cases:

Though it was not within the court's authority to create laws, Tingling said he could offer suggestions to the Legislature.

One thought, he said, was to take up a rule akin to the "right to be forgotten" in the European Union Court's 2014 case, Google Spain v. Agencia Espanola de Proteccion de Datos, Case C-131/12.

There, the court said individuals had the right under certain circumstances to request that search engines remove links to personal information that was inaccurate, inadequate, irrelevant or excessive for data processing purposes.

"Thus, the right to be forgotten offers greater protections than §230 of the [Communications Decency Act]," said Tingling.

Unfortunately, this is a dangerous approach to the situation and likely goes too far. First, even the lawyer for the plaintiff notes that this ruling gave his client "exactly what we needed" -- which is a court ruling that the content is defamatory. It is highly likely that a copy of that ruling is being sent off to various search engines who may choose to remove it based on that court ruling. There need not be a "right to be forgotten" which would be much broader and have many unintended consequences, potentially harming the First Amendment. There is no need to break the important protections brought forth by Section 230.

Instead, the judge has ruled that the content is defamatory, and the plaintiff and his lawyer have the ability to use that to request various sites take action in response and it is likely that many will follow through in doing so.

Of course, even that situation can lead to suppression of speech. Note that the case described above is not all that different from one we recently described involving Roca Labs suing anonymous commenters, where it seems fairly clear that Roca isn't looking to identify the commenters, but rather to get a default, in order to pressure Google into removing those negative reviews. This is why a legal change, a la the one suggested by Judge Tingle, would be so problematic. As it stands now, companies like Google can look at incoming requests showing legal rulings on defamatory content and decide for themselves whether or not the content should be removed from their index. Changing the law would open up another avenue for censorship through questionable means.

Filed Under: defamation, milton tingle, new york, right to be forgotten, section 230

SiriusXM Loses For A Third Time On Public Performance Of Pre-1972 Works, This Time In New York

from the a-big-shakeup dept

A year ago, a bunch of folks in the recording industry hit on its latest strategy to squeeze more money out of services playing music: upset decades of settled copyright law, and pretend that pre-1972 works were subject to public performance rights. Suddenly lawsuits started flying like crazy, most directed at Sirius XM, with a few directed at Pandora. The key issue is the fact that pre-1972 sound recordings are not covered by federal copyright law, but a patchwork of (very messy) state laws and common law. Those state laws were never considered to have included public performance rights, but now people are going back to pretend they did. Of course, there would be a simple way to deal with this: just make those recordings subject to federal copyright laws, but the RIAA has fought hard against this.

In September, a judge ruled against Sirius XM and in favor of Flo & Eddie, the company that owns the rights to the music of the band The Turtles. In October, another California court agreed with the first (despite initially leaning in the other direction). Both of those were specific to California state law, however. But now, another month has gone by and Flo & Eddie has another big victory over Sirius XM, this time under New York's law. You can read the ruling.

The judge, Colleen McMahon, acknowledges that this ruling completely upsets decades of accepted practice, but doesn't seem too bothered by it all:

Of course, the conspicuous lack of any jurisprudential history confirms that not paying royalties for public performances of sound recordings was an accepted fact of life in the broadcasting industry for the last century. So does certain testimony cited by Sirius from record industry executives, artists and others, who argued vociferously before Congress that it was unfair for them to operate in an environment in which they were paid nothing when their sound recordings were publicly performed.... That they were paid no royalties was a matter of statutory exemption under federal law; that they demanded no royalties under the common law when their product as ineligible for federal copyright protection is, in many ways, inexplicable.

But acquiescence by participants in the recording industry in a status quo where recording artists and producers were not paid royalties while songwriters were does not show that they lacked an enforceable right under the common law - only that they failed to act on it.

Instead, she notes that the reason this is only coming up now is because Congress only created a performance right for digital music recently. That doesn't really make much sense when you think about it. If the industry was really sitting on this potential goldmine of performance royalties for decades, wouldn't it have made use of it before now?

Instead, the judge defaults to a purely maximalist approach, saying that absent any specific exemptions, we should assume that common law copyright in New York covers just about every damn thing.

Modern federal law supports the notion that an express carve-out is required in order to circumscribe the bundle of rights appurtenant to copyright

That should raise some serious First Amendment questions. In federal copyright law, the Supreme Court has argued that the First Amendment conflict is generally resolved through exceptions to copyright -- including those established in common law, like fair use. Yet here, the court is basically saying, unless an exemption is clearly stated, everything is covered. That's very troubling.

Of course, it's likely that this, like the California cases, will be appealed, and it will all eventually end up before the Supreme Court. But, in the interim, don't be surprised if "golden oldies," including pretty much all music from pre-1972, start disappearing from a variety of services. Good job, recording industry, you may succeed in driving the classics into total obscurity.

Filed Under: copyright, new york, performance rights, pre-1972, pre-1972 sound recordings, the turtles
Companies: flo & eddie, pandora, sirius xm

Amended Complaint From Lindsay Lohan Against Take Two: Now With Five Times More Paper!

from the publicity-wrongs dept

When we last left the saga of Lindsay Lohan's 10 page complaint against Take 2 Interactive over a publicly-fornicating, drunk-driving character in Grand Theft Auto 5 that she insisted was her own spitting image, Take 2 was asking for the whole thing to be dismissed because the character is obviously not a reproduction of Lohan at all, but a parody take on celebrity fame. In addition to that, Take 2 also mentioned that the statute of limitations may have expired on the issue, since it had been well over a year since the side-mission featuring the alleged-Lohan-doppelganger had been announced and publicized.

Well, Lohan's legal team has responded with...paper. Lots more of it, actually. Her amended complaint comes in at a whopping sixty-seven pages and it's chock-filled with images of Lohan in what she's insisting proves that Take 2 used her image as a basis for Lacey Jonas.

Lohan's lawyers have now reacted to this gambit by on Wednesday stuffing 45 pages of pictured exhibits into an amended complaint, including a photograph of the game CD, one of which features a blonde, red bikini-clad woman holding up the peace sign. According to the amended complaint, the game publisher "used a look-a-like model to evoke the persona and image" of Lohan by imitating a photograph that was once taken of her in 2007. On some of the game discs, the blonde character that Lohan asserts is her doppelganger is shown in what the lawsuit calls "an arrest pose known as the 'Stop and Frisk.'"

A female celebrity holding up a peace sign? Clearly nobody besides Lindsay Lohan has ever been photographed doing that.

Lindsay looks different these days.

Anyway, her legal team is trying to get around New York's publicity rights laws, which are limited to the realm of advertising, by including all kinds of images of the Lacey Jonas character that Take 2 put on t-shirts and coffee mugs. Except, of course, that none of that was in the original complaint and the character in question still isn't a direct reproduction of Lindsay Lohan. It's a composite parody on L.A. female celebrities in general and it's protected speech due to its nature.

As for how the Lohan legal team is attempting to get around the statute of limitations...whoo boy.

Lohan has reacted to this defense by talking about the "republication" of her image upon the release of the actual videogame later that year. According to the amended lawsuit, Take-Two modified her image to fit on the game disk. Lohan now claims that this "modification" should satisfy the exception to the one-year statute of limitation.

It's the same image sized to fit onto a DVD disc...and that somehow excuses her not taking action for over year because why exactly? In the end, hopefully the court will see this legal action for what it is: a misunderstanding of parody and the first amendment coupled with a plea for attention.

Filed Under: grand theft auto 5, gta 5, lindsay lohan, new york, publicity rights
Companies: take 2 interactive

Upstart, Anti-Corruption Campaigns In NY, NH Don't Win, But Do Show Growing Anger Over Political Corruption

from the a-good-start,-but-not-over-yet dept

To the "savvy" political insiders, political corruption is still not seen as an election issue that people care about or vote over. We've been discussing a number of attempts to change that -- such as with new anti-corruption PACs -- and two of the political races we've discussed ended yesterday. In both cases, the candidates lost, but they way outperformed their expectations, suggesting that there's a real possibility of a better reaction in the future.

In NY, the Governor/Lt. Governor primary ticket of Zephyr Teachout/Tim Wu was always a tremendous long shot. Going up against a popular incumbent governor in Andrew Cuomo (who also has tremendous NY name recognition as the son of a former -- also tremendously popular -- NY governor), the media more or less ignored any possibility of Teachout succeeding. The campaign had little money and no real established political base. It ran almost entirely on the basis of "Hey, Cuomo is kind of corrupt and lies a lot." Before the election yesterday, an analysis of similar races suggested that incumbent governors in similar primaries often get over 90% of the vote and anything under 70% would be a political disaster for Cuomo, who is hoping to leverage his success in NY into an eventual presidential run. While he did eventually win, it was with about 62% of the vote. Teachout got 34% -- again, with no political machine and very little money. Wu ended up with just over 40%, and his opponent Kathy Hochul (Cuomo's choice) got under 60%.

Obviously, a win would have been a bigger deal, but to come out of nowhere (in just a couple of months), with no huge campaign war chest or connections to traditional politics -- against such a well-known governor, basing most of their campaign on corruption issues -- this suggests that corruption absolutely can play as an election issue. Teachout and Wu had one paid staffer and four volunteers. Cuomo has a campaign war chest in the many millions. And he still could only barely crack 60% of the vote. That says something. Also interesting is the fact that Teachout and Wu actually won in many rural upstate counties. The campaign had been expecting a weaker showing there (Hochul is from upstate, and Teachout and Wu are based in Manhattan -- which they also won). Again, while losing the overall race, the strong showing is a good sign for future campaigns.

Meanwhile, up in New Hampshire, we'd discussed the campaign of Jim Rubens for the Senate, against carpetbagging Scott Brown (who jumped states from Massachusetts after losing his Senate seat there). Early on, Rubens was basically a complete nobody. While he'd been in NH politics in the past, he hadn't actually occupied a political office since the 1990s. He was basically roadkill for the political machine of Scott Brown. However Larry Lessig's Mayday PAC noted that Rubens was the only Republican candidate running on an anti-corruption platform to limit the influence of money in politics. Mayday PAC spent heavily on campaign ads for Rubens, and he ended up getting around 24% of the vote, with Brown pulling in less than 50%.

In the end, both of these campaigns obviously lost -- but they were interesting experiments with important lessons. Two upstart campaigns from totally different sides of the traditional political spectrum (Zephyr/Wu to the "left" and Rubens to the "right"), both of which made anti-corruption efforts a key plank in their campaigns. Both were considered barely worth mentioning at the beginnings of the campaigns. Both were up against incredibly well-known, well-funded political machines with national name recognition and ambition. Neither campaign had any significant money. And both actually performed decently despite their disadvantages.

In the end, both campaigns definitely did lose, but they showed how there's clearly a dissatisfaction with the traditional political machine. And if two such tiny, out-of-nowhere campaigns could do that, hopefully it means that future campaigns can do even more.

Filed Under: andrew cuomo, corruption, kathy hochul, larry lessig, money in politics, new hampshire, new york, politics, primaries, scott brown, tim wu, zephyr teachout
Companies: mayday pac