Why Doesn't Joe Biden Have Any Tech Policy Advisors?

from the it's-not-like-they-aren't-around dept

While in Congress and then in the White House, Joe Biden was no friend of the internet. Indeed, while he was a Senator, he was a reliable vote on whatever terrible copyright bill Hollywood pushed for, and then in the White House he was, again, a giant proponent of Hollywood's agenda. He convened a "piracy summit" that was only representatives of legacy industries -- with no one representing internet companies, independent artists who use the internet, or any of the many artist and consumer groups out there. He's also argued that get rid of Section 230 altogether, mainly because he doesn't understand what it does, and he's "never been a fan of Facebook." And, when given the opportunity to push back on Donald Trump's misguided attacks on 230, Biden still argued that he supported "revoking" the law entirely.

When I wrote about his bizarre attack on CDA 230, some people I know in the tech policy world reached out to say that I was being too harsh on Biden for saying he wanted to "revoke" 230, saying that he clearly didn't mean exactly what he explicitly said, and that as he started to get better tech policy advice, they were sure he'd say fewer stupid things about tech policy. This is not a particularly strong vote of confidence (not that the other guy is any better on tech policy). Now, Protocol is reporting that the Biden campaign appears to have no tech policy people on the campaign:

The presumptive Democratic nominee does not have a top adviser focused on tech policy, according to campaign materials and party veterans, including some who have offered informal advice to Biden on tech.

The lack of tech leadership in the campaign marks a contrast with his Democratic predecessors, as well as some of Biden's competitors in the Democratic primary, and reflects a belief that issues like online misinformation, privacy regulation and alleged anticompetitive behavior by tech's giants will not be pivotal to unseating President Trump. To some advocates for reforming the tech industry, though, Biden — whose written policy prescriptions largely avoid venturing into tech — is missing an opportunity to lead in areas that have gained new prominence and urgency.

I'm not convinced that even if he was getting advice on tech policy that it would be good advice (or that he'd take the good advice). But the fact that his campaign doesn't think this is an important issue is both notable and surprising (and a bit disappointing). I certainly don't think that tech policy is something that will drive the electorate one way or the other (unfortunately!), but is is clearly a major issue for the next decade, and ignoring it entirely seems incredibly, ridiculously short-sighted.

"Nobody's talking to Joe Biden about tech policy," said one veteran of several Democratic campaigns, who spoke on condition of anonymity in order to talk candidly. "If you look at Biden's inner circle, Obama and Hillary always had people in their inner circle who were native to tech issues, and that hasn't been the case with Biden."

Indeed, Biden's long-term love affair with Hollywood seems to have resulted in a lot less interest from the tech community. Oh, and apparently he's tapped a former top MPAA exec as his deputy campaign manager:

There are still some grudges in the tech industry over Biden's fervent support of SOPA-PIPA, two Hollywood-backed anti-piracy laws that the industry protested in 2012. "Biden has always been viewed as sort of Hollywood's guy on tech and telecom policy," the Democratic campaign veteran said. Biden's deputy campaign manager for communications strategy, Kate Bedingfield, was a former vice president of communications with the Motion Picture Association of America, a trade group that counts Disney, Paramount, Sony, Universal and Warner as members.

"The fact of the matter is, the vice president, when he was in the Senate, was an [intellectual property] guy," Sohn said. "His focus in this area was more on copyright patent trademark than it was on broadband and telecommunications."

The article concludes, somewhat obviously, that the election itself is not going to turn on tech policy, and so if the focus is solely on getting elected in the fall, Biden just might not need tech advisors. But tech policy is going to be super important, and so far Biden has demonstrated a weak grasp on the issues at best (saying he wants to get rid of CDA 230 is simply crazy talk). Given that so much of the emphasis on Biden's campaign the last few months has been that he'd actually bring some competent people into government, the fact that he has no tech policy plan at all is at least a little disturbing -- especially when technology is so key to the economy going forward.

Filed Under: advisors, copyright, joe biden, presidential campaigns, presidential politics, section 230, tech policy

Bernie Sanders' Campaign Joins Too Many Other Presidential Campaigns In Abusing Trademark Law

from the so-presidential dept

I shouldn't have to start this post this way, but after someone flipped out in my last post about the treatment of Hillary Clinton and her emails, accusing me of being nothing more than a "BernieBro," I'll just make this explicit: I don't currently support any of the current Presidential candidates, and am pretty sure I've mocked all of them for ignorance around issues that concern those of us at Techdirt. Either way, I wonder how the guy insisting I was just a secret Bernie supporter will respond to this article...

Yes, because now Bernie Sanders' campaign is the latest in a long list of presidential candidates to abuse trademark law to try to stifle criticism. His campaign joins those of Hillary Clinton, Ben Carson, Ron Paul and more as presidential candidates, past and present, abusing trademark law.

In this case, Sanders' campaign apparently went after Dan McCall, who was also on the receiving end of the threat from Hillary Clinton's SuperPAC (oh, and also the NSA went after him over trademark as well). Specifically, the Sanders campaign threatened him over the following graphic: You can understand why the Sanders campaign might not like such a graphic, which tries to tie the self-declared democratic socialist with famed communist leaders. Leaving aside whether or not democratic socialism has anything to do with communism (or even whether or not such an image would even have much of an impact on likely voters), there's nothing that is "infringing" in such an image. But that's not what the Sanders campaign argues:

Section 43(a) of the Lanham Act (15 U.S.C. § 1125) prohibits use in commerce of “any word, term, name, symbol or device . . . which is likely to cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship or approval of his or her goods, services, or commercial activities by another person.” Your use of the Official Logos is likely to cause exactly such confusion. Additionally, by using the distinctive logo of Bernie 2016, Inc., Liberty Maniacs has violated the U.S. Copyright Act (17 U.S.C. § 501) and is liable for falsely applying the Bernie 2016, Inc. name and logo to Liberty Maniacs’ products. 17 U.S.C. § 1202. This list of Liberty Maniacs’ unlawful conduct is not exhaustive.

So this actually goes beyond just trademark law to copyright and election law. Which is insane. There is no confusion here. The image is clearly protected expression. No one is going to be "deceived" into thinking that Sanders supports this image or that it's from his campaign. The lawyer, Claire Hawkins, from Garvey Schubert Barer, also lies about what the campaign's obligations are:

As an intellectual property owner, our client is obligated to take steps to protect its trademark and copyright rights and to protect the good will built up in its name and brand.

First of all, that's not even remotely true when it comes to copyright, where there is no obligation to protect. On trademark, there is an obligation, but it's quite frequently overstated. It doesn't mean you have to block any use -- especially when those uses are clearly non-infringing.

Thankfully, Dan McCall has Paul Levy as a lawyer (disclaimer, he's represented us as well), and Levy has responded and, as always, Levy's letters are well worth reading. It opens with the following line:

Bernie Sanders should be ashamed of your trademark bullying on his behalf.

And then...

It is your contention, apparently, that an ordinary and reasonably prudent consumer would tend to be confused about whether it is the Sanders campaign that is promoting Sanders' candidacy by associating him with the 19th Century theoreticians of the communist movement as well as with three ruthless Communist Party dictators.

That contention is absurd. You cannot use trademark theories to silence members of the American public who disagree with your client's views and oppose his candidacy. They can hardly express their views in that respect without identifying the candidacy about which they wish to speak; and it is precisely because the logo is so recognizable that it is an excellent way of specifying which "Bernie" is the subject of commentary. Moreover, it is very common for people to express their views about presidential candidates, completely independent of the campaign; such expression is so common that it defies belief that a reasonably careful consumer would believe that a shirt or bumper sticker associating your client with Communists necessarily came from the campaign itself.

Levy also explains fair use and the First Amendment to Hawkins. He also points out that while the letter talks about copyright, she never mentions what the campaign is talking about:

Your letter also refers in passing to your client's ownership of the copyright in logos; the PDF of the letter was labeled "Notice of Copyright Infringement," and that characterization was in the subject line of the email by which you transmitted the letter. However, you do not say that the copyright has been registered. Not only would you need to register the copyright before you can file suit for its infringement, but any such suit would run directly into the copyright fair use defense, which is heightened in the case of an obvious parody like this one....

It goes on beyond that as well. If history is any indication, the Sanders campaign will likely back down, because that's its only non-insane move to make in this situation. Of course, it would have been much smarter to never have sent such a letter in the first place.

Filed Under: bernie sanders, dan mccall, first amendment, free speech, presidential campaigns, trademark

Ben Carson's Lawyer Threatens CafePress Because Ben Carson Supporters Are Creating T-Shirts Supporting Carson

from the because-intellectual-property dept

Politics and intellectual property always get weird and silly, often during Presidential election season. Following on last year's insanity in which Hillary Clinton's PAC tried to take down parodies on CafePress and Zazzle, presidential candidate Ben Carson has apparently decided no one should possibly be allowed to create any kind of Ben Carson merchandise, except for the Ben Carson PAC, and he's decided to list out every possible intellectual property argument he can think of: copyright, trademark, privacy rights. I'm almost surprised he didn't find a way to include patents too.

“The aforementioned action is a violation of the Digital Millennium Copyright Act, The Lanham Act, Federal Trademark Infringement, Federal Copyright Infringement, state misappropriation and privacy laws.”

Except none of that is true. Thankfully, CafePress has been working with Paul Levy from Public Citizen on these issues for many years, and he has sent a reply to K. Clyde Vanel, the lawyer representing the Carson campaign in which he systematically dismantles the arguments made in the letter. As with most letters from Paul Levy (and, yes, he's written one or two on our behalf in the past), it's a work of art. The summary line:

The notion that expressing views about Carson's candidacy violates any of his rights is simply absurd. It is shocking that a lawyer whose web site touts his expertise in intellectual property law would sign his name to such a communication.

Then, let's go one by one through each of the claims to show just how ridiculous they each are. We'll start with trademark. Levy points out that it's true that the "Ben Carson for President 2016" organization has applied for a trademark on a logo for the campaign, but the items they're looking to get taken down do not include that logo.

At most, the items display the phrase "Ben Carson for President 2016," often appearing in the patriotic colors of red, white and blue. Many of them simply use Carson's name, or just his given name or his profession. You cannot use trademark theories to ride roughshod over members of the American public who either share your clients' views and favor Carson's candidacy, or for that matter disagree with their views and oppose Carson's candidacy. They can hardly express their views in that respect without identifying the candidacy about which they wish to speak.

Oh, and you know how SuperPACs need to be entirely separate and independent from campaigns? Well, as Levy notes, if Carson's lawyer's theory is accurate, no SuperPAC can support Carson without violating his trademark:

Moreover, it is very common for people to express their views about presidential candidacies, completely independent of the campaign; this is so common that it defies belief that a reasonably careful consumer would believe that a shirt or bumper sticker advocating your client's election necessarily came from the campaign itself. Indeed, the Super PAC "2016 Committee" carries various wares that display the phrase "Ben Carson for President 2016." E.g., http://store2016committee.org/pins-stickers-and-magnets/. Super PACs have to be independent committees, and cannot coordinate with the official campaign. I assume you are not going to argue that 2016 Committee's use might confuse consumers into believing that Carson or his campaign committee is the sponsor of the PAC. So I doubt that you have any realistic chance of arguing that the items carried by CafePress are likely to cause confusion, a key element of a trademark infringement claim. And because your state law claims regarding misappropriation of name or likeness also require a showing that the use implies that the plaintiff endorsed or authorized the product in question, your inability to show lack of likely confusion condemns those claims as well.

Yes we're this far and we haven't even discussed fair use or that whole First Amendment thing. No worries, Levy's got that covered as well:

More important are the issues of fair use and the First Amendment, which apply equally to your purported misappropriation of name and likeness claims as well as to your trademark claims. Speech about a candidate for president is squarely protected by the First Amendment, hence any effort to use trademark law to quash such uses is highly suspect. Although CafePress users' products are sold, their contents are noncommercial speech, which qualifies for full First Amendment protection.

Okay, next up: privacy rights. Yes, the guy running for President is claiming that T-shirts supporting his campaign for President violate his privacy rights. I'm almost surprised Levy didn't just respond with "Really?":

Your reference to a purported invasion of Carson's privacy is particularly foolish. Given the intense scrutiny that presidential candidates receive in this day and age, it is a matter of some doubt whether any statement about a presidential candidate, especially one who now stands second in the polls of the Republican nomination, could constitute an invasion of privacy, no matter how personal. But there is nothing "private" in the expression contained on the products that CafePress carries-- they are all specifically about the Carson candidacy. That candidacy is certainly not private.

And then the copyright claims. Those should be pretty quick to take care of, because (as you guessed) everything about them is bullshit:

Finally, you make a claim of copyright infringement and claim that the DMCA has been violated. But the DMCA imposes an obligation on the hosts of interactive web sites like CafePress.com only once the purported copyright holder has scrupulously followed the formalities required by 17 U.S.C. §512(c)(3)(A); your email does not meet those requirements. One important flaw in the copyright claim is that you do not identify the specific works that infringe your clients' copyrights, and looking through the various items displayed at http://www.cafepress.com/+ben+carson+gifts, I do not see any materials that are likely to infringe copyrights that your clients own. Most of the items contain some variation of the phrase "Ben Carson for President 2016." That expression lacks sufficient originality for copyright protection. Indeed, if the phrase were copyrightable, your clients might not be the owners of the copyright, because they might not have been the first to fix it in a tangible medium of expression. It is quite possible that some supporter hoping to encourage Carson to run may have written it down before Carson did. That person would own the copyright, if the phrase were copyrightable, and your clients would be among the infringers.

CafePress takes its copyright obligations very seriously. Therefore, I invite you to specify, in detail, the specific works in which your clients claim copyright, so that we can assess whether the inclusion of any copyrighted content in its users' designs might be fair use. Certainly, if you identify any material that genuinely infringes a valid copyright that your clients own, CafePress will take it down.

In closing, Levy points out that way back in 2008, he helped CafePress sue the Republican National Committee for threatening CafePress in a similar manner.

During the 2008 election, the Republican National Committee sent CafePress a series of threats to sue for trademark infringement because CafePress users were having shirts and other items printed with designs expressing views about the Republican Party or various candidates, using the acronym GOP or images of elephants. CafePress eventually had to sue the RNC for a declaratory judgment of non-infringement, and the result was a great deal of embarrassment for the Republican Party; the RNC then retracted its threat, subject to a request that CafePress direct users who, without any other expressive design elements, displayed a particular image of an elephant that the RNC had trademarked, to ask the RNC for permission (the RNC indicated that consent would readily be given).

I trust that Carson will want to save a similar embarrassment for his political campaign. I hope you will issue a prompt retraction of your demand.

Intellectual property sure makes candidates and their lawyers do weird things.

Filed Under: ben carlson, copyright, dmca, k. clyde vanel, merchandise, paul levy, presidential campaigns, privacy rights, publicity rights, trademark
Companies: cafepress

Trump Campaign Was Legally Allowed To Use Neil Young's Music At Rally, But Doing So Was Kind Of Dumb

from the yeh-fired dept

It seems like every presidential election cycle, which comes around far too often and lasts for far too long for my taste, there inevitably ends up being some kind of row between some musicians and some politicians over music used at campaign events. The targets of these disputes tend to be Republican candidates, due to the political demographics of musicians as a general thing, but Democrats have been targeted as well. And, as we've mentioned in the past, other than creating a stir in the media and hoping the target campaign relents, there's roughly shit-all these musicians can do about it. But that stir can often times be enough, especially if the musician uses the opportunity to pimp a rival candidate.

Like Bernie Sanders, for example. Apparently when walking ego Donald Trump decided that he was going to announce his candidacy for President of these United States, his campaign decided to use Neil Young's "Rockin' in the Free World" at the event. Neil not only wasn't pleased, but he used the opportunity to boost the candidate he does endorse.

"Donald Trump was not authorized to use 'Rockin' In The Free World' in his presidential candidacy announcement," said Young's manager in a statement. "Neil Young, a Canadian citizen, is a supporter of Bernie Sanders for President of the United States Of America."

As it turned out, as it usually does, Trump was authorized to use Young's music through an ASCAP license. That said, maybe it's time politicians learned to take the extra step and clear things with musicians before using their music, if for no other reason than to protect against the backlash becoming an advertisement for a rival campaign. Campaigns are very much like brands, after all, and the last thing a brand wants to do is get a competitor's name in circulation. That's got to be doubly so when the rival "brand" is someone like Bernie Sanders who, think whatever you like of him, is starving for more name-recognition on the national level. A couple of simple phone calls from the campaign office would likely inoculate against this sort of thing happening, where now every quote from Young on this dust-up mentions Young's support of Sanders.

All that being said, Young has somehow managed to make Trump the sympathetic figure in this whole story.

A press secretary for the real estate mogul said Wednesday that Trump would respect the wishes of Neil Young and no longer use "Rockin' In the Free World," which Trump featured Tuesday during his announcement that he was seeking the Republican Party's nomination for president. Trump press secretary Hope Hicks said Wednesday that "despite Neil's differing political views, Mr. Trump likes Neil very much."

It's a good way to spin the ending of this story for Trump's team, appearing so reasonable and agreeable to Young's antics, which come off looking petty. Still, no reason to let your campaign's music choice give the artist an opportunity to pimp Bernie Sanders. There are enough conservative musicians out there making music.

Filed Under: bernie sanders, donald trump, endorsements, music, neil young, presidential campaigns, rockin' in the free world
Companies: ascap

Like Clockwork: Copyright Holders Mistakenly Freak Out About Presidential Candidates Using Their Music

from the again? dept

This seems to happen every four years like clockwork during Presidential elections. Some musician gets upset about a politician he or she disagrees with, making use of his or her music during campaign rallies. This time around the candidate is Newt Gingrich, and the upset musician is songwriter and member of the band Survivor, Frank Sullivan, who co-wrote the song "Eye of the Tiger" which Gingrich has apparently been using during presidential campaigns:

The complaint states that the violation it alleges is intentional since Gingrich is "sophisticated and knowledgeable" concerning copyright laws.

That strikes me as interesting, because I would have to assume that the campaign has paid for standard ASCAP performance license (either that or the locations they use almost certainly have such a license). And if that's true, then Sullivan has no case. If the venue has a license, they can play whatever they want. Full stop. "Eye of the Tiger" is registered to ASCAP, so that's all that's needed. The campaign doesn't need permission of the copyright holder. The Chicago Sun-Times goes into more detail, where Sullivan insists this isn't political, he just doesn't like the song being used without him getting paid. Perhaps he should check his ASCAP statement. If he's not getting paid, he might want to take it up with them.

That same article also notes that Sullivan co-owns the copyright along with his song writing partner/bandmate, Jim Peterik, who seems to both (sorta, kinda) like Gingrich and not like legal actions:

“My wife is a big fan,” Peterik said. “I’m becoming a fan of Newt Gingrich. He has a mind of his own. He’s not a talking head. Originally, I didn’t like him, but look at the competition. He’s looking better and better.”

Peterik is not a party to the suit that Sullivan filed in U.S. District Court in Chicago. They share the copyright, but tend to stay out of each other’s way when it comes to cracking down on infringers.

”I hate suits,” Peterik said. “I hate being in court. I avoid that meticulously. When I [heard about the lawsuit on the radio Monday} I said I’m not surprised, but I’m surprised.”

I say this every time something like this comes up, but even if politicians can make use of such songs without getting permission from the artists, thanks to ASCAP/BMI/SESAC performance licenses, it still surprises me that the campaigns don't seek out musicians who support them in the first place to get their "okay" just to avoid embarrassing situations like this. Either way, it seems almost certain that this lawsuit is going nowhere fast.

Filed Under: eye of the tiger, frank sullivan, newt gingrich, performance licenses, presidential campaigns, rallies, songs, survivor
Companies: ascap, rude music

Dear Bands: No Matter How Much You Dislike John McCain, He Can Most Likely Use Your Song

from the can-we-get-this-over-with? dept

The latest in a long line of musicians complaining about Presidential candidate John McCain for his use of their music at campaign stops would be the band the Foo Fighters. Now, as we've pointed out in the past, there are two separate issues to keep in mind here:

1. In most cases, there's nothing these bands can do from a legal standpoint. Assuming the venue where the music is being played has paid its standard ASCAP license, they can play whatever they want. So when the Foo Fighters make statements like: "It's frustrating and infuriating that someone who claims to speak for the American people would repeatedly show such little respect for creativity and intellectual property" is somewhat misleading. It implies that McCain is somehow breaking intellectual property laws. He is not. No matter how much a musician dislikes it, they can't stop these kinds of uses, thanks to the way performance licenses work.
2. That said, it still seems rather dumb, from a PR standpoint, for the McCain campaign to keep doing this. By now, it should be clear that in a highly-charged political campaign, a band will speak up against the use of a song, if they don't like the candidate. That just leaves the campaign open to more negative press coverage in a way in which many people will sympathize with the musician against the politician -- even though the politician may be on the legally correct side.

Since the McCain campaign has so far ignored these requests in the past, I'm guessing it will continue to do so. But, to avoid these sorts of stories, it would be smart to start asking musicians whether or not they support the candidate before using their song. Or, perhaps, just start using public domain music.

Filed Under: copyright, foo fighters, john mccain, music, performance rights, presidential campaigns, royalities

'YouTube Moments' Hold Politicians Accountable

from the power-to-the-people dept

Virginia Postrel points out a great story on the way YouTube is changing the dynamics of political debate. It points out that when Bill Clinton was first running for president in 1992, the media landscape had relatively few mechanisms for holding politicians accountable for misstatements. There was only room for so many stories on the nightly news, and so when politicians told white lies, reporters tended to move on before anybody could check the claims for accuracy. But now that anyone can create a blog post or a YouTube video, politicians' fibs and gaffes can take on a life of their own, whether it's Hillary Clinton's sniper fire, Barack Obama's "bitter" Pennsylvanians, or John McCain's "100 years in Iraq." The nightly news doesn't always cover these kinds of comments when they happen, but someone in the blogosphere almost always catches them and they then get endlessly reported, debunked, and hashed out online. And once a clip has generated a lot of heat among bloggers, it can often become a big enough story that mainstream media outlets pick it up again. While some of these attacks can be nit-picky or taken out of context, on the whole it's a definite improvement in the quality of democratic debate. With video cameras everywhere and bloggers ready to pounce on any misstatement, politicians have a stronger incentive to tell the truth, and not to talk out of both sides of their mouth.

Meanwhile, USA Today reports that the presidential candidates are raising eye-popping sums of money in small increments via the Internet. In the first quarter of 2008, Barack Obama led the pack with $129 million in small donations, followed by Hillary Clinton at $65 million and John McCain at $37 million. Even John McCain's fundraising would have been considered a major accomplishment four years ago -- Howard Dean made headlines with $15 million in online donations in the third quarter of 2003, much of it from small donors. If the trend lasts -- and there are good reasons to think it will -- it will also have a democratizing effect on the political process. Presidential candidates will be more inclined to pay attention to the priorities of grassroots activists, and comparatively less worried about pleasing insiders capable of raising money in $2300 increments.

And of course, these developments are connected. The rise of blogs, YouTube, and other participatory media has gotten more people engaged and invested in the political debate, which in turn makes them more likely to open their wallets. Conversely, the fact that blog readers are often campaign contributors gives bloggers real leverage over candidates -- bloggers can punish candidates perceived as not playing fair by directing contributions to their opponents. All of which is producing a more engaged and accountable political process. Of course, things are far from perfect, but there are good reasons to think that 21st century politics will be better than politics was in the 20th century.

Filed Under: accountability, clinton, democracy, elections, mccain, obama, presidential campaigns
Companies: google, youtube