EU Gives Up On The Open Web Experiment, Decides It Will Be The Licensed Web Going Forward

from the this-is-bad dept

Well, this was not entirely unexpected at this point, but in the EU Parliament earlier today, they voted to end the open web and move to a future of a licensed-only web. It is not final yet, as the adopted version by the EU Parliament is different than the (even worse) version that was agreed to by the EU Council. The two will now need to iron out the differences and then there will be a final vote on whatever awful consolidated version they eventually come up with. There will be plenty to say on this in the coming weeks, months and years, but let's just summarize what has happened.

For nearly two decades, the legacy entertainment industries have always hated the nature of the open web. Their entire business models were based on being gatekeepers, and a "broadcast" world in which everything was licensed and curated was perfect for that. It allowed the gatekeepers to have ultimate control -- and with it the power to extract massive rents from actual creators (including taking control over their copyright). The open web changed much of that. By allowing anyone to publicize, distribute and sell works by themselves, directly to end users, the middlemen were no longer important.

The fundamental nature of the internet was that it was a communications medium rather than a broadcast medium, and as such it allowed for permissionless distribution of content and communication. This has always infuriated the legacy gatekeepers as it completely undermined the control and leverage they had over the market. If you look back at nearly every legal move by these gatekeepers over the last twenty five years concerning the internet, it has always been about trying to move the internet away from an open, permissionless system back towards one that was a closed, licensed, broadcast, curated one. There's historical precedence for this as well. It's the same thing that happened to radio a century ago.

For the most part, the old gatekeepers have not been able to succeed, but that changed today. The proposal adopted by the EU Parliament makes a major move towards ending the open web in the EU and moving to a licensed, curated one, which will limit innovation, harm creators, and only serve to empower the largest internet platforms and some legacy gatekeepers. As Julia Reda notes:

Today’s decision is a severe blow to the free and open internet. By endorsing new legal and technical limits on what we can post and share online, the European Parliament is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.

The Parliament’s version of Article 13 (366 for, 297 against) seeks to make all but the smallest internet platforms liable for any copyright infringements committed by their users. This law leaves sites and apps no choice but to install error-prone upload filters. Anything we want to publish will need to first be approved by these filters, and perfectly legal content like parodies and memes will be caught in the crosshairs.

The adopted version of Article 11 (393 for, 279 against) allows only “individual words” of news articles to be reproduced for free, including in hyperlinks – closely following an existing German law. Five years after the ‘link tax’ came into force in Germany, no journalist or publisher has made an extra penny, startups in the news sector have had to shut down and courts have yet to clear up the legal uncertainty on exactly where to draw the line. The same quagmire will now repeat at the EU level – no argument has been made why it wouldn’t, apart from wishful thinking.

This is a dark day for the open internet in the EU... and around the world. Expect the same gatekeepers to use this move by the EU to put pressure on the US and lots of other countries around the world to "harmonize" and adopt similar standards in trade agreements.

I know that many authors, musicians, journalists and other content creators cheered this on, incorrectly thinking that was a blow to Google and would magically benefit them. But they should recognize just what they've supported. It is not a bill designed to help creators. It is a bill designed to prevent innovation, lock up paths for content creators to have alternatives, and force them back into the greedy, open arms of giant gatekeepers.

Filed Under: article 11, article 13, broadcast, copyright, eu copyright directive, gatekeepers, internet, license, link tax, open web, permission, upload filters

Google Ideas Boss's Really Bad Idea: Kick ISIS Off The Open Web

from the good-luck-with-that dept

Over the last few weeks, there's been increasing focus on what "else" Silicon Valley can do in the fight against ISIS. Backdooring encryption is a dumb idea that won't work and will make everyone less safe. So, a second idea keeps getting floated: what if we just stopped letting ISIS use the internet. Hell, both Hillary Clinton and Donald Trump supported the idea recently. And then you have some wacky law professors suggesting the same thing.

For the most part, cooler heads in the tech industry have pointed out that (1) this is impossible and (2) any attempt to do so would be counterproductive in just encouraging more activity and (3) it would actually undermine intelligence gathering, as public posts to social media are a key source of useful intelligence these days.

But, now, at least one prominent person within the tech industry has jumped on board: the somewhat controversial head of Google Ideas, Jared Cohen, who used to work for the State Department and now runs Google Ideas (which, for whatever it's worth, isn't "Google"). Cohen gave a talk in the UK in which he argued that ISIS was too good at propaganda on the internet, so the answer is to wipe them off the open internet and leave them shuffling around the dark web instead.

Jared Cohen, the director of Google Ideas, believes that to "recapture digital territory" from the terror cell, its members must fear being caught when they post messages promoting the organisation's cause in public.

"Terrorist groups like Isis, they operate in the dark web whether we want them to or not," Cohen said at a talk on Waging a Digital Counterinsurgency, at Chatham House. "What is new is that they're operating without being pushed back in the same internet we all enjoyed. So success looks like Isis being contained to the dark web".

This is, as noted above, both silly and wrong. First of all, it's impossible. It's a ridiculous task that will waste a ton of time, won't accomplish anything really useful, and will likely result in too many false positives, including (most likely) those who are monitoring and combating ISIS. Second, as mentioned, it will actually do a tremendous amount to limit the intelligence community's ability to monitor and track ISIS. It's funny that on the one hand we have officials demanding an end to encrypted communications, fearing "going dark," while many of those same individuals then turn around and talk about taking ISIS off the public internet, where they reveal a ton of useful information about their activities. Third, it raises serious questions about how committed companies like Google really are to the open internet. Yes, Cohen is director of "Google Ideas" which is separate from Google itself, but basically all of the press coverage about this says that Google is saying people should be kicked off the open web. That's messaging that will come back to haunt Google as it pushes for the open web in other contexts. Cohen has just opened up Google to a major attack on key points it's pushing for everywhere else.

On top of that, Cohen seems to think that losing their Twitter accounts will be seen as some kind of punishment:

To do this Cohen said that Isis members openly promoting their cause online must fear retribution and being caught for their actions. Their social media accounts must be removed as fast as they are produced to prevent people making contact with Isis recruiters on the open web.

But that appears to be somewhat ignorant of how things are currently working. Many of their social media accounts are being removed rapidly and to ISIS supporters it becomes a badge of honor, as they quickly open a new account. It's not retribution, it becomes validation.

It's too bad that Cohen would suggest such a short-sighted concept when there's so much evidence these days of how completely counterproductive it would be. This isn't the kind of creative or new thinking that was promised from Google Ideas, it's traditional silly Washington DC thinking, without any recognition of the reality of the technology world. If this is a concept from Google Ideas, let's just say it's a really, really bad idea. Maybe Google needs a department of better ideas.

Update: And I missed the biggest laugh of all. I hadn't even realized that the supposed "mission" of Google Ideas is: "Google Ideas builds products to support free expression and access to information for people who need it most." Hard to see how blocking people from using the internet fits within that purview.

Filed Under: free speech, google ideas, isis, jared cohen, open web, social media
Companies: google, google ideas

No Craig Newmark Did Not Donate To EFF; He Helped Make CFAA Worse Instead

from the eff-opposed-the-lawsuit dept

There's been a bunch of fuss online over the "news" that Craigslist is supposedly donating $1 million to EFF when the money is not actually from Craig. It's from a startup that Craigslist has sued out of business, under a dangerous interpretation of the CFAA that harms the open internet. Obviously, EFF getting an additional $1 million in resources is really great. But it's troubling to see so many people congratulate Craigslist and Craig Newmark for "supporting EFF." Craig himself has contributed to this misleading perception with this tweet implying he's giving his own money to EFF: Plenty of smart people are cheering on Craig for supposedly being so generous. But that's wrong. This isn't Craigslist being generous. This is Craigslist abusing the CFAA to kill a company who was making the internet better, and then handing over some of the proceeds to the EFF, which actively opposed Craigslist's lawsuit.

Now, I should note upfront that I like Craigslist and very much like Craig Newmark personally. I think that the company has been really innovative in taking a more long term view of its business (even if it's been losing ground more recently). However, this lawsuit was always really sketchy. It sued a few companies for making Craigslist more valuable. Those companies were scraping Craigslist data, but only to overlay additional information and always pointing people back to Craigslist. In other words, the companies Padmapper and 3taps were adding value to Craigslist in the same manner that much of the internet was built -- by providing more value on top of the work of others.

And yet Craigslist sued these companies under a tortured definition of the CFAA, arguing that the mere scraping of its data to provide value on top of it (none of which took away any value from Craigslist) was "unauthorized access." The EFF filed an amicus brief against Craigslist, slamming the company (which it has frequently supported in other circumstances) for abusing the law:

The CFAA does not and should not impose liability on anyone who accesses information publicly available on the Internet. Because the CFAA and Penal Code § 502 imposes both civil and criminal liability, it must be interpreted narrowly. That means information on a publicly accessible website can be accessed by anyone on the Internet without running afoul of criminal computer hacking laws. In the absence of access, as opposed to use, restrictions, Craigslist cannot use these anti-hacking laws to complain when the information it voluntarily broadcasts to the world is accessed, even if it is upset about a competing or complementary business.

[....]

Craigslist’s enormous success is a result of its openness: anyone anywhere can access any of its websites and obtain information about apartments for rent, new jobs or cars for sale. Its openness means that Craigslist is the go to place on the web for classified ads; it users post on Craigslist because they know their ads will reach the largest audience.

But what Craigslist is trying to do here is to use the CFAA’s provisions to enforce the unilateral determinations it has made concerning access to its website, an Internet site that it has already chosen to open up to the general public, attempting to turn a law against computer hacking into a new tool. But prohibiting access to an otherwise publicly available website is not the type of harm that Congress intended to be proscribed in the CFAA, and nowhere in the legislative history is there any suggestion that the CFAA was drafted to grant website owners such unbridled discretion.

That's the EFF directly arguing against Craigslist in this case. Unfortunately, the initial district court ruling agreed with Craigslist, leading EFF to note just how dangerous the ruling was:

There's a serious potential for mischief that is encouraged by this decision, as companies could arbitrarily decide whose authorization to "revoke" and need only write a letter and block an IP address to invoke the power of a felony criminal statute in what is, at best, a civil business dispute.

Orin Kerr, who is an expert on abuses of the CFAA was similarly alarmed:

Judge Breyer’s opinion appears to mix up two different aspects of the CFAA. The first aspect is the prohibition on unauthorized access, and the second is its associated mental state element of intent. The CFAA only prohibits intentional unauthorized access; merely knowingly or recklessly accessing without authorization is not prohibited. So whatever unauthorized access means, the person must be guilty of doing that thing (the act of unauthorized access) intentionally to trigger the statute. Breyer seems to mix up those elements by focusing heavily on the fact that 3taps knew that Craigslist didn’t want 3taps to access its site. According to Judge Breyer, the clear notice meant that the case before him didn’t raise all the notice and vagueness issues that prompted the Ninth Circuit’s decision in Nosal.

So now the case has been settled, and, as a result, at least one of the companies involved, 3taps, is shutting down altogether. 3taps points out that it's 3taps, not Craigslist whose money is going to EFF:

As part of the settlement, 3taps and its founder, Greg Kidd, have agreed to pay craigslist $1 million, all of which must then be paid by craigslist to the EFF, which supported 3taps' position on the CFAA in this litigation, and continues to do great work for Internet freedom generally.  Mr. Kidd's investment firm, Hard Yaka, has also committed to make a substantial investment in PadMapper to provide it with the resources to continue to innovate and serve the post-craigslist marketplace.

Although 3taps lacks the resources to continue the fight, this settlement provides much needed resources to the EFF, as there is still much to be done on the issues raised in this case.

For example, the question remains whether private companies that maintain public websites can selectively exclude visitors, exposing the banned visitor to civil and criminal liability under the CFAA.

Furthermore, this is unlikely to be the last litigation involving craigslist's copyrights, particularly given craigslist's current practice of selectively obtaining copyright assignments and registrations (the prerequisite to a copyright infringement lawsuit) in certain user-generated posts, but failing to inform its visitors which posts it owns.  This effectively creates a copyright litigation trap for unwary visitors.

Finally, it remains unresolved whether craigslist's well-recognized practice of "ghosting" (the hiding or interception of user postings and emails) without the users' knowledge or consent is legal or ethical.

Given all that, it's fairly disappointing to see lots of prominent people backslapping Craig and Craigslist for "donating" this money to EFF. It's not Craig's money. And, according to the settlements, it appears that the $1 million isn't all that Craigslist is getting. That's just the money 3taps is paying. Another company in the dispute, Lovely, is paying an additional $2.1 million. It's unclear if Craigslist is giving that money to EFF or anyone else -- or keeping it.

Again, on most issues, I think Craig and Craigslist are on the right side of things. He fought strongly against SOPA and for net neutrality. I think the company does the right thing in many cases, but in this case it clearly did not, and the fact that people are now cheering him on when it's not even his money, and is only happening as a result of his bad lawsuit that forced another company to shut down, is really disturbing.

Filed Under: $1 million, cfaa, craig newmark, donation, open web, scraping
Companies: 3taps, craigslist, eff, lovely, padmapper