darrell issa – Techdirt (original) (raw)

Congress Wants To Let Private Companies Own The Law

It sounds absolutely batty that there is a strong, bipartisan push to lock up aspects of our law behind copyright. But it’s happening. Even worse, the push is on to include this effort to lock up the law in the “must pass” National Defense Authorization Act (NDAA). This is the bill that Congress lights up like a Christmas tree with the various bills they know they can’t pass normally, every year.

And this year, they’re pushing the Pro Codes Act, a dangerous bill to lock up the law that has bipartisan support. The House bill is being pushed by Darrell Issa (who was once, long ago, good on copyright law) and in the Senate by Chris Coons (who has always been terrible on copyright law). We wrote about the many problems of the Pro Codes Act back in April, but Issa has still submitted it as an amendment for the NDAA (it’s Amendment 1082, so you have a bunch of scrolling to get there).

We’ve discussed a lot of this before, but it’s pretty deep in the wonky weeds, so let’s do a quick refresher. There are lots of standards out there, often developed by industry groups. These standards can be on all sorts of subjects, such as building codes or consumer safety or indicators for hazardous materials. The list goes on and on and on. Indeed, the National Institute of Standards and Technology has a database of over 27,000 such standards that are “included by reference” into law.

This is where things get wonky. Since many of these standards are put together by private organizations (companies, standards bodies, whatever), some of them could qualify for copyright. But, then, lawmakers will often require certain products and services to meet those standards. That is, the laws will “reference” those standards (for example, how to have a building be built in a safe or non-polluting manner).

Many people, myself included, believe that the law must be public. How can the rule of law make any sense at all if the public cannot freely access and read the law? Thus, we believe that when a standard gets “incorporated by reference” into the law, it should become public domain, for the simple fact that the law itself must be public domain.

This issue has come up in court many times in the past few years, mostly led by Carl Malamud and his Public.Resource.Org, that spent years trying to share various laws to make sure that the citizenry was properly informed. And yet he has been sued multiple times by those who claim their standards are private and covered by copyright.

Four years ago, there was a big victory when the Supreme Court sided with Malamud in a similar (but not identical) case regarding how the state of Georgia published its laws. In that case, Georgia partnered with a private publisher, Lexis Nexis, to publish the “Official Code of Georgia Annotated” and while Lexis would craft the “annotations,” the state of Georgia still considered the OCGA as the only truly “official” version of the law. When Malamud tried to publish his own version of the OCGA to make it more accessible, he was sued. But the Supreme Court made it clear that copyright cannot apply to “government edicts” and notes:

The animating principle behind this rule is that no one can own the law. “Every citizen is presumed to know the law,” and “it needs no argument to show . . . that all should have free access” to its contents.

Still, that did not get at the specific issue of “incorporation by reference” which is at the heart of some of Malamud’s other cases. Two years ago, there was a pretty big victory, noting that his publishing of standards that are “incorporated by reference” is fair use.

But industry standards bodies hate this, because often a large part of their own revenue stream comes from selling access to the standards they create, including those referenced by laws.

So they lobbied Congress to push this Pro Codes Act, which explicitly says that technical standards incorporated by reference retain copyright. To try to stave off criticism (and to mischaracterize the bill publicly), the law says that standards bodies retain the copyright if the standards body makes the standard available on a free publicly accessible online source.

A standard to which copyright protection subsists under section 102(a) at the time of its fixation shall retain such protection, notwithstanding that the standard is incorporated by reference, if the applicable standards development organization, within a reasonable period of time after obtaining actual or constructive notice that the standard has been incorporated by reference, makes all portions of the standard so incorporated publicly accessible online at no monetary cost.

They added this last part to head off criticism that the law is “locked up.” They say things like “see, under this law, the law has to be freely available online.”

But that’s missing the point. It still means that the law itself is only available from one source, in one format. And while it has to be “publicly accessible online at no monetary cost,” that does not mean that it has to be publicly accessible in an easy or useful manner. It does not mean that there won’t be limitations on access or usage.

It is locking up the law.

But, because the law says that those standards must be released online free of cost, it allows the supporters of this law, like Issa, to falsely portray the law as “enhancing public access” to the laws.

That’s a lie.

If we recognize standards incorporated by reference as being public domain, that enhances access. It allows the law to be published and shared by anyone. It allows the law to be presented in different formats and systems and in ways that are actually useful to more people, rather than relying on the one single source (the one who often has incentives to make it limited and hard to access, buried behind questionable terms of service).

On top of that, the idea that this law belongs in the NDAA is ludicrous. It flies in the face of the very fundamental concept that “no one can own the law,” as the Supreme Court itself recently said. And to try and shove it into a must pass bill about funding the military is just ridiculously cynical, while demonstrating that its backers know it can’t pass through regular process.

Instead, this is an attempt by Congress to say, yes, some companies do get to own the law, so long as they put up a limited, difficult to use website by which you can see parts of the law.

Library groups and civil society groups are pushing back on this (disclaimer: we signed onto this letter). Please add your voice and tell Congress not to lock up the law.

Filed Under: chris coons, copyright, copyrighting the law, darrell issa, incorporation by reference, ndaa, owning the law, pro codes act

Lawmakers Who Insisted The US Gov’t Should Never Combat Foreign Influence Online, Vote To Combat TikTok’s Foreign Influence Online

from the ain't-no-hypocrisy-like-congressional-hypocrisy dept

Is the US government allowed to step in to deal with foreign influence on social media or not? According to at least some members of Congress, the answer appears to be “yes, when we dislike what they’re saying, and no when we like what they’re saying.”

When the original House bill to “ban TikTok” passed, David Greene and Karen Gullo at EFF noted the odd contrast of dozens of Congressional Reps who both signed an amicus brief with the Supreme Court in the Murthy case, saying that the US government should simply never be allowed to interfere with speech, including to counter election misinformation, and also (just days later) voted to ban TikTok.

Over the weekend, the House once again passed a TikTok ban bill (similar to the original with a few small changes), which they bizarrely bundled with funding for Ukraine, Israel, and Taiwan. The bill passed the House 316 to 94, with the yeas and nays following no particular partisan breakdown.

And, I recognize it’s not perfectly fair to see “yea” votes as a clear vote for banning TikTok, given that this was a bundle of (mostly) foreign aid bills that I’m sure some members saw as much more important than the TikTok ban question. However, it does seem notable that so many Members of Congress insisted to the Supreme Court that the US government should never interfere with foreign influence campaigns online, but then voted to ban TikTok, in large part because of the risk that it might try to run foreign influence campaigns online.

Looking through the roll call and comparing it to the signatures on the amicus brief, I find 13 members of the House who both think that it is clearly unconstitutional for the US to try to respond to foreign influence peddling, but who also believe that they could ban TikTok in response to concerns about foreign influence peddling.

The amicus brief is pretty clear on this point. It complains, specifically, about the FBI’s Foreign Influence Task Force. It suggests that it acted illegally in trying to respond to foreign influence peddling: “The federal government, specifically the FBI’s Foreign Influence Task Force (FITF), also used its power and influence to deceive and coerce social media companies.”

The amicus brief claims this is a clear First Amendment violation. From the brief:

Thus, the First Amendment stands against any governmental effort to coerce or otherwise burden the free speech of private entities— even if that action falls short of outright suppression.

And yet… when it comes to Reps. Jim Jordan, Elise Stefanik, Kelly Armstrong, Aaron Bean, Kat Cammack, Jerry Carl, Scott Fitzgerald, Russell Fry, Erin Houchin, Darrell Issa, Ronny Jackson, Max Miller, Guy Reschenthaler, and Claudia Tenney, apparently it’s only not okay for the government to burden the free speech of private entities when those entities are not connected to China. Then, suddenly, principles go out the window, and of course the government can do this.

After all, those Reps both signed the amicus brief and voted in favor of the TikTok ban. To be fair, this is a smaller number than those who voted for the original TikTok ban. However, that difference is mainly explainable by the fact that many of those who voted no here simply do not want to provide foreign aid to Ukraine.

Still, though, it would be nice if elected officials weren’t so openly hypocritical all the time. As the EFF post a couple months ago noted:

We believe there is an appropriate role for the government to play, within the bounds of the First Amendment, when it truly believes that there are posts designed to interfere with U.S. elections or undermine U.S. security on any social media platform. It is a far more appropriate role than banning a platform altogether.

Filed Under: 1st amendment, aaron bean, claudia tenney, darrell issa, election influence, elise stefanik, erin houchin, foreign influence, free speech, guy reschenthaler, hypocrisy, jerry carl, jim jordan, kelly armstrong, max miller, ronny jackson, russell fry, scott fitzgerald, tiktok ban
Companies: tiktok

Congressional Committee Calls On GAO To Investigate Whether Patent Office Director Is Putting Thumb On The Scale Of Patent Reviews

from the very,-very-interesting dept

The chair and ranking member of the House IP subcommittee that covers intellectual property is now asking the Government Accountability Office (GAO) to investigate whether or not the Director of the Patent Office is pressuring the important Patent Trial and Appeal Board (PTAB) to make certain decisions on the validity of patents. There’s a lot of important background here, but it’s all kind of fascinating how two big legal issues are coalescing in this result, in which the USPTO’s own legal arguments may reveal how the Director has been unfairly influencing decisions. The two key points to understand are (1) the Inter Partes Review (IPR) process, and (2) questions about the constitutionality of certain appointments — both of which are issues that we’ve covered for years, that seem deep in the weeds, but turn out to be quite important.

First, we’ve got the IPR process. This was an effort that was put in place with the America Invents Act (AIA) back in 2012. It was a recognition (FINALLY) that the Patent Office was approving way too many bad and overly broad patents, that were then being abused to shake down companies. The fact that the USPTO was approving so many awful patents was a built in bug (or feature?) of the way the patent system works.

The process for getting a patent is not truly adversarial. You have the party seeking the patent, and the examiner. Yet examiners were often judged on how many applications they dealt with, rather than the quality of the patents they approved. So there’s no party arguing for why something does not deserve a patent. In theory, the examiner might do that, but the incentive structure there is broken as well. There is something called a “final” rejection from a patent examiner, but it’s not actually final, since the party seeking the patent can continue to file renewed requests/appeals forever. And with the Patent Office getting heat for having too long a backlog, sooner or later, there are strong incentives for the examiner to just approve a patent to get it off his or her docket.

Rather than fix the many inherent problems in this setup, the AIA introduced a compromise that was better than nothing. It would create this special PTAB, which anyone could use to challenge a previously granted patent. At that point (usually once someone started threatening or suing over a patent) then finally, there would be a more careful review, with an adversarial process, to examine whether or not the patent should have been granted in the first place. Patent trolls and their friends have hated the whole IPR process since it began and have tried a variety of ways to challenge it. In 2018, the biggest legal challenge to the whole IPR process was rejected by the Supreme Court, who said that of course the PTO can invalidate the patents it never should have granted.

But that hasn’t stopped the efforts by trolls and friends to invalidate the IPR process. The latest attempt is in the US v. Arthrex case, in which it is argued that the “judges” on the PTAB are unconstitutional for violating the Constitution’s appointments clause. That case was heard by the Supreme Court a few months ago and a ruling should be coming soon.

And that takes us to the other deep in the weeds issue we’ve talked about for over a decade: whether or not appointments to various quasi-legal tribunals within the executive branch violate the Constitution’s appointments clause. The Appointments Clause says certain “principle officers” of the government, including judges, need to be nominated by the President and approved by the Senate. There have been questions for years about whether or not certain roles that were appointed by various department heads violated this clause. Back in 2012, for example, a court said that the Copyright Royalty Board nominations were unconstitutional (though the court then immediately worked around that issue with a sort of wink and a nudge).

So, now the question at the heart of Arthrex is whether or not the PTAB judges are constitutionally appointed, since they’re appointed not by the President with the consent of the Senate, but directly by the director of the Patent Office. And, in that case, the US government (defending the constitutionality of the PTAB judges) claimed that they were not principal judges, but rather “inferior officers” who could be appointed by the PTO director. That’s all very interesting, but a key argument made by the government in defending that was that the PTO Director controls the PTAB judges, including how they decide cases.

And while that may be necessary to prove that their appointments were constitutional under the Appointments clause, it rang some alarm bells because it sure as hell suggested that the PTAB might be deciding whether or not patents are valid not based on the evidence before it but based on what the PTO director wanted. And that would be a big problem.

And, so that finally gets us to the latest bit of news, in which Reps. Hank Johnson and Darrell Issa, a bipartisan sort of odd-couple who head up the IP subcommittee are asking the GAO to look into whether or not the USPTO director is actually pressuring the PTAB judges into deciding the validity of patents one way or the other:

Recently, the Supreme Court granted certiorari in United States v. Arthrex, Inc., an appeal from a Federal Circuit decision that determined that APJs were ?primary officers of the United States? and, thus, unconstitutionally appointed without Senate confirmation. In that appeal, the government?s position is that APJs are instead ?inferior officers? who do not require Senate confirmation because they are subject to significant oversight and control by the Director of the USPTO, who is a Senate-confirmed political appointee. The government argues that this control includes, for example, the ability of the Director to dictate the outcome of PTAB cases by controlling which APJs decide which cases (i.e., APJs who will decide each case as the Director wishes) and by providing policy directives that APJs are obligated to follow.

If the government?s arguments are accurate, PTAB cases may have been decided based on factors outside of the evidentiary record and public legal authority (e.g., statutes, regulations, court precedents) available to the parties. This possibility raises potential due process concerns and would be inconsistent with the intent of Congress in enacting the AIA.

There is then a long list of fairly specific requests for the GAO to investigate that could raise some eyebrows. Here are just a few:

* The policies, written or unwritten, that exist at the USPTO to effectuate each of the above mechanisms, as well as the statutory or other legal authority that forms the basis for each of the above mechanisms. * How APJs understand the role of the Director in the decisions they reach in AIA cases, including APJs? awareness of the above mechanisms and associated policies and the number of APJs who have been subject to one or more of them. Also, the impact that the exercise of these mechanisms and policies have had on the decision-making of APJs in AIA cases. * Whether any APJs have objected or dissented, or attempted to object or dissent, to the above mechanisms and policies, or the exercise of those mechanisms and policies in specific AIA cases. If so, the results of those objections and the processes that were made available to APJs to object or dissent. Also, how APJs understand the extent to which they may object or dissent. * How often the Director, or a designate thereof, has directly influenced or changed a decision in a specific AIA case (i.e., inter partes review, post-grant review, or covered business method review). Also, the way those decisions were influenced or changed by the Director, and the mechanisms that were used to influence or change those decisions. * Whether specific notice was provided to the parties in those cases indicating that the Director, or designate thereof, was influencing or changing a decision in the case, and the information included in any such notice. Also, whether the decisions themselves document that influence or change, and explain the reasoning or justification for it.

In other words… either the Patent Office director is unfairly controlling or strongly influencing PTAB IPR decisions or the Patent Office lied to the Supreme Court. The most charitable explanation, of course, is that the PTO director could step in and order certain decisions, but has chosen not to. But even that would be worrisome and problematic. None of this looks particularly good for the PTO.

Filed Under: appointments, darrell issa, gao, hank johnson, inter partes review, ipr, patents, ptab, uspto

Members Of Congress: Court Was Wrong To Say That Posting The Law Is Copyright Infringement

from the time-to-clarify-the-law dept

Back in February, we wrote about a disturbing court decision that said that standards that are “incorporated by reference” into law, could still be copyright infringing if posted to the internet. In that earlier post I go into much more background, but the short version is this: lots of laws point to standards put together by private standards bodies, and say, effectively, “to be legal, you must meet this standard.” For example, fire codes may be required to meet certain standards put together by a private standards body. Carl Malamud has spent years trying to make the law more accessible, and he started posting such standards that are “incorporated by reference” into the law publicly. His reasoning: once the government incorporates the standard into the law, the standard must be publicly available. Otherwise, you have a ridiculous situation in which you can’t even know what the law is that governs you unless you pay (often a lot) to access it.

Standards bodies weren’t happy about this — as some of them make a large chunk of money from selling access to the standards. But from a straight up “the law should be public” standpoint, the answer should be “too bad.” Unfortunately, the district court didn’t see it that way, and basically said it’s okay to have parts of our laws blocked by copyright. We thought that ruling had some serious problems, and Malamud and his organization Public.Resource.Org appealed. A bunch of amicus briefs have been filed in the case — which you can see at EFF’s case page on the lawsuit. There’s a good one from some law professors about how the lower court got it wrong, as well as a ton of library associations (and also other law professors and former gov’t officials). Public Citizen also filed a good brief on the importance of having access to the law. It’s worth reading them all.

However, I wanted to focus on a different amicus brief, filed by two sitting members of Congress, Reps. Zoe Lofgren and Darrell Issa. The brief was put together by Harvard’s Cyberlaw Clinic, with help from lawyer Cathy Gellis (who has represented us from time to time, as well as written some posts for Techdirt). It’s certainly not unheard of to have members of Congress file amicus briefs in cases, but it’s not particularly common either. The fact that two members of Congress are worried about the due process implications of a court ruling should, hopefully, capture the court’s attention.

For the law to govern and protect the people, the people must know what the law is. By offering an electronic platform for the publication of legal codes and standards, Public Resource helps the public by providing access to laws that might otherwise be functionally inaccessible. Without this access, the consequences are significant. First, those who inadvertently violate inaccessible regulations may be blindsided by civil and criminal penalties for violations they did not know to avoid. Second, those whose health and welfare depends on others? compliance with these regulations may suffer damage to their life, liberty, and property, as a result of both others? ignorance of the law and their own inability to access the law in order to pursue enforcement. This Court should not endorse a copyright regime that allows private SDOs to limit access to the legal rules that govern and protect the public.

Also:

As members of Congress, our job is to draft and enact laws that govern the United States. But mere passage of legislation is not enough; due process requires more. The Fifth and Fourteenth Amendments dictate that no person is to be ?deprived of life, liberty, or property, without due process of law.? U.S. Const. amend. V; U.S. Const. amend. XIV. There can be no due process when people cannot remain informed of the laws by which they are bound. And they cannot remain informed when the law itself is not sufficiently communicated to the people it governs.

Lots of people could make those points — but having it come from the people who actually make the laws seems to make the point that much more relevant. Hopefully the court agrees.

Filed Under: carl malamud, darrell issa, incorporated by reference, law, standards, zoe lofgren
Companies: public.resource.org

Qualcomm Says It's Fighting For The Little Guy, While Really Blocking Patent Reform That Would Help The Little Guy

from the a-bunch-of-crap dept

Last week at CES, I had the honor of “moderating” a panel on what was next for patent reform, that kicked off with a short speech from US Patent and Trademark Office Director Michelle Lee, who notes that she’s the first ever director of the Patent Office to attend CES (which is crazy). Before Director Lee was appointed to the full job, back when she was just the interim director, I noted that she was the first head of the patent office I’d ever seen who seemed to have a more accurately nuanced view of patents, and recognized how in some cases they could be harmful rather than helpful. She’s continued to make that clear since taking over the top job full time, and you can see that in her speech. She, unlike so many in government jobs related to copyright or patents, actually pointed out the full Constitutional clause, and how patents need to be for the promotion of progress, and not just “to help inventors get paid.”

But Lee is a good politician and didn’t say anything all that controversial on either side of the debate. The real fireworks came afterwards on the panel discussion itself, where my “moderation” consisted of asking a single question (other than asking the panelists to introduce themselves), after which the panel turned into a somewhat heated argument over the patent system in which I never had a chance to speak until the end when I had to cut things off. The question I asked: what is the one thing that you think most needs to be fixed in the patent system?

Three out of the five panelists — Kate Doerksen, Lee Cheng and Brian Mennell — represented victims of patent trolls. Kate and Brian both have experienced the perils of being a small startup and getting hit with patent lawsuits that have the potential to destroy their businesses. You can read Kate’s story here, in which she’s being sued by a large company trying to keep her startup from competing altogether. It’s even reached the point where Kate agreed to something of a deal with the devil: Erich Spangenberg. As we’ve discussed, Spangenberg, who was one of the most aggressive patent trolls, recently shifted his business into being a sort of reverse patent troll, where he makes deals with small companies like Kate’s, taking an ownership stake in the company in exchange for “helping” the company deal with patent trolls, usually by seeking post-grant review to invalidate the patents being asserted against the startups.

Mennell has the classic patent troll story of running a startup and getting hit by a patent troll that undermines the ability of the company to stay in business (and also notes that the Supreme Court’s Alice decision made him lose a business method patent, though he doesn’t seem to see that as problematic).

Lee Cheng is Newegg’s General Counsel, and someone we’ve covered for years as an aggressive fighter against patent trolls.

And yet… down at the end of the panel row was Laurie Self, a top Qualcomm lawyer. Qualcomm has been a longterm fighter against patent reform — which isn’t all that surprising, as a big part of Qualcomm’s business has been licensing its patents. Many people have argued that Qualcomm, in particular, has been the driving force behind blocking patent reform. It’s funded think tanks and front groups pretending to “represent inventors.” If you see a big patent conference where all of the speakers are basically in favor of expanding the patent system and against reform, there’s a better than even chance that the top sponsor of the event is Qualcomm. And so it was little surprise that she presented herself as arguing for “the little guy” on the panel, despite the fact that Qualcomm is a $70 billion company

Meanwhile, the concerns of the three actual representatives of small companies on the panel — who are actually dealing with patent trolling on a regular basis — were completely dismissed by Self. When Newegg’s Cheng challenged Self to come up with a single specific example of how to stop abusive patent trolling, she came up with nothing, except ideas to expand the powers of patent holders to go after companies. Every time people brought up abuse, Self more or less threw up her hands and said “how can you possibly tell what’s abuse and what’s not” and so, the implication was: why even try to stop abusive trolling?

The other representative on the panel was Rep. Darrell Issa, who among other things is the chair of the intellectual property subcommittee of the House Judiciary Committee, and thus a key person in actually moving forward with patent reform. And, if you watch the panel, you can see his visible frustration with Qualcomm and Self basically being a key player in holding up any progress on that front. He also revealed that, like the other three non-Qualcomm panelists, he too was a victim of a patent troll, back before he was in Congress. It’s well known that Issa ran a successful car alarm business before going into Congress and holds a number of patents himself, but less known is the fact that his company was apparently sued by someone holding a ridiculous and vague expired patent.

Issa pointed out, quite clearly, that Self was being very misleading in claiming that there was no way to determine what was abusive. He explained a variety of abusive practices, and noted how those specific practices could and should be targeted. Cheng similarly highlighted just how broken things are, and the total failure of Qualcomm to point out any way to deal with the trolls, instead focusing on ways to undermine earlier patent reform efforts. Issa also mocked Self’s claim about Qualcomm not suing others for patent reform “in several years” noting that the company doesn’t need to, because it just threatens companies with its giant patent portfolio and “like Clint Eastwood with 100 machine guns” tells companies that it’ll find something that they must violate:

The reason you haven’t sued anyone is you have a huge bundle of patents, and you assert them all at once. And the question is, like Clint Eastwood, with a hundred machine guns, ‘you might beat one bullet, but are you going to beat them all?’ That versus individual pleading of specific claims, is one of the innovative parts of this bill. We want companies to have to say, specifically, what did you infringe, give it with some specificity, ‘we’ve got enough patents, that you’re going to infringe something, and if you go down this road of not taking a license, we’re going to get you.’ That kind of technological omnibus is pretty good when you’ve got A&T and Qualcomm and Apple and Broadcomm all trading patents. But for the startup, that cannot necessarily afford to buy a portfolio even if they believe they don’t fall under it, it can be devastating.

The whole panel is an interesting, if frustrating discussion — and shows a big part of why patent reform still hasn’t gone anywhere. Giant patent holding companies like Qualcomm are pretending that they “represent the little guy” and are doing everything possible to muddy the waters and block real reform that targets abuse.

Filed Under: bryan mennell, darrell issa, kate doerksen, laurie self, lee cheng, michelle lee, patent reform, patent trolling, patents, uspto
Companies: ditto, newegg, qualcomm

House Judiciary Committee Hears Concerns From Silicon Valley About Copyright Law

from the now-what? dept

Yesterday afternoon, for about two and a half hours, members of the House Judiciary Committee took part in what they’re calling they’re “Copyright Review Listening Tour” for a roundtable in Silicon Valley. There were 20 participants in the roundtable, mostly made up of people who work in and around the technology industry. Today, the Representatives will host a similar roundtable down in LA, which will be mostly made up of entertainment industry folks. Unfortunately, this aspect of the tour seems to reinforce the silly idea that copyright law is a battle between “Silicon Valley” vs. “Hollywood” — and that what’s good for one is bad for the other.

Reps. Blake Farenthold, Darrell Issa, Jerry Nadler. Photo by Parker Higgins, EFF, CC BY

That whole line of argument is ridiculous and counterproductive — as a few of the panelists at yesterday’s hearing made clear. Good copyright law enables new platforms to rise up and that provides more opportunities for content creators to create, to distribute, to build a fan base and to monetize. Bad copyright law recreates a gatekeeper-based system where only the elite can choose what content is allowed to reach the public. In short, the innovations that are being created are actually helping content creators and are living up to the Constitutional requirements for copyright: that it “promote the progress.” But it’s frequently not copyright that’s doing that job — it’s the technology innovations.

Panelists Timothy Vollmer, Brianna Schofield, Zoe Keating, Michael Keller & Brewster Kahle. Photo by Parker Higgins, EFF, CC BY

And the key thing that we heard yesterday was how copyright was actually counterproductive in that it has frequently blocked innovative services from existing or from providing the best services for content creators. There were a few key themes that became clear throughout the hearing:

1. Statutory damages are an absolute disaster and create massive chilling effects for free speech and innovation. Multiple panelists discussed how much of a problem statutory damages are for innovation. They highlighted how frequently they are abused to stifle innovation and to create fear among people for doing something most people think should be legal. The disconnect between the actual “infringement” and the punishment is a major problem. Somewhat surprisingly (in a good way!), the members from Congress seemed quite interested and concerned about the problems of statutory damages. Rep. Jerry Nadler, who historically has basically supported the RIAA position on all copyright-related issues, surprised me by agreeing that statutory damages seem like a real problem, and noting that basically all other torts require a showing of actual damages. Rep. Darrell Issa admitted that it was unlikely Congress would be able to dump statutory damages “in the next decade,” but asked for ideas on ways to “bend” the system in a more reasonable way. The panelists made a few suggestions — including a personal use exemption and a “good faith” defense for sites (and users, I guess) where they don’t believe what they’re doing is infringing. Such a defense, if successful, would take away statutory damages, and only allow actual damages. A potentially better alternative was requiring the copyright holder to prove “bad faith” to move from actual damages to statutory damages. That Congress even seems open to this is a huge step in the right direction.
2. Fair use is important and shouldn’t be cut back. Lots of good discussions from panelists about the importance of fair use and how bad decisions create real chilling effects on innovation. When the one “Hollywood” person on the panel, CreativeFuture’s Ruth Vitale, made a slightly nonsensical argument that increasing fair use was bad for creators, other panelists quickly pointed out that’s not even close to true, and tons of content creators regularly rely on fair use to create content. Rep. Nadler (again, long a supporter of expanding copyright law) noted that he believes fair use needs to be made “less dangerous” for people to embrace it. That was really encouraging.
3. The problem of bogus DMCA takedowns is massive and there needs to be real punishment. Brianna Schofield, from Berkeley, pointed to research showing that companies that actually review DMCA takedowns are now rejecting between 40 and 60% of them as bogus takedowns, designed to censor content, rather than legitimate copyright claims. And Alex Feerst (and some others) suggested that what’s really needed is real teeth to Section 512(f) of the DMCA, which is supposed to punish those who send bogus DMCA takedowns, but, as we’ve seen, is entirely toothless based on the way courts currently interpret it. Rep. Issa actually asked if there should be criminal punishment for bogus takedowns, which I think took people by surprise, and probably goes too far.
4. The DMCA’s 1201 anti-circumvention provisions are a disaster and the idea that people need to re-apply every three years just to fix products they own — because of copyright law — is messed up. Again, it was nice to see that the Representatives really seemed to get this fact and seemed interested in looking at ways to fix Section 1201 — such that you couldn’t use digital locks and DRM for anti-competitive purposes or to control other aspects of your business.
5. Orphan works are a problem and the Copyright Office’s solution is a disaster. Multiple panelists pointed out that the orphan works problem remains a big, big problem — and they’re concerned that the most recent suggestion from the Copyright Office (which requires “registration” to use an orphan work) is an absolutely terrible solution. People suggested going back to the previous Copyright Office proposal from a few years ago, that just required a diligent search for the copyright owner — but that plan died when photographers freaked out after misreading the proposal. The Internet Archive’s Brewster Kahle even brought up the suggestion of fixing the orphan works problem by returning to a system of “formalities” in which a copyright holder is required to register to get the copyright (rather than automatically getting it) and then would need to renew the copyright every five years with another payment. As Kahle pointed out, this would also help solve some of the concerns Congress has over funding the Copyright Office. This is a suggestion that many have made over the years that had been mostly ignored — but at least a few on the panel seemed interested in the idea, with Rep. Issa rightly pointing out that the patent office already works this way.
6. Modernizing the Copyright Office: The panelists went back to this issue multiple times, in part because it’s hot in DC right now, though much of the tech industry has basically avoided the discussion. Both the Copyright Office and the Library of Congress (which is where the Copyright Office is housed) are antiquated, with terrible and broken technology. Hollywood is strongly pushing to take the Copyright Office out of the Library of Congress and set it up as its own independent agency to try to give it more power (and because they don’t like that the Library of Congress actually takes into account things like what’s good for the public…). Ruth Vitale kept arguing for a separate Copyright Office, but when pressed on why, the only thing she could come up with was that the Library of Congress needs more room to store all of its books. Really. Michael Keller, the University Librarian at Stanford, rightly pointed out that pulling the Copyright Office out of the Library of Congress wouldn’t fix anything — it would just create more “chaos” and leave us with two dysfunctional organizations, rather than one.

There were some other points made, but overall, it was surprisingly encouraging in that most of the hearing didn’t focus on red herrings and the usual boring talking points in copyright debates, but rather really did focus in on specific key issues. And, most surprising of all was that many of the Congressional Reps who were there not only seemed really engaged and mostly on point concerning the issues raised, but actually seemed open to looking at real legislative proposals on these issues. Of course, going from there to actually getting proposals before Congress is still going to take a Herculean effort — because almost all of the good proposals listed above would almost immediately be fought hard by the big Hollywood studio lobbyists, who still seem to think of this as a zero sum game — where any improvement to fair use is an attack on them, or any attempt to make sure the DMCA isn’t abused is somehow a direct assault on the film business.

The biggest point that went totally missing from the debate was the TPP and other existing trade agreements. It’s worth noting that for all the talk of fixing DMCA 1201 or solving the orphan works problem, doing so would almost certainly violate what the USTR just put into the TPP agreement that Congress needs to ratify (or not!) in the next few months. It was a little disappointing that no one raised this issue, and the fact that if Congress doesn’t want to give up its power to make these kinds of fixes, it should vote down the TPP. Similarly, ideas like Brewster Kahle’s return to copyright formalities requirements would violate the Berne Convention, and other changes suggested would violate a variety of other existing trade agreements. Of course, Congress should be willing to do exactly that in order to fix a terribly broken copyright system, but with at least the TPP currently on Congress’s docket, it seems important to remind them that, in many ways, the TPP can bind Congress’s hands in addressing many of the problems brought up at the hearing.

Filed Under: 512f, copyright, copyright reform, darrell issa, dmca, dmca 1201, dmca 512f, fair use, house judiciary committee, jerry nadler, orphan works

Legislators Strip Funding For Warrantless Use Of Stingrays By FBI, Take Money From The DEA To Buy Bodycams

from the CATCH-AN-IMSI-FUNDRAISER!-TIX-3/$5!! dept

The passage of appropriations bills is a seemingly casual process in which any legislator can attempt to hitch his or her hobbyhorse to it as it makes its way slowly to a vote. (And then to a government shutdown.) “Rob Peter/Pay Paul” amendments are offered for quick floor votes, adding millions to one program while siphoning the equivalent amount from another. Other amendments are simply of the “Rob Peter” variety, in which funding is stripped from programs or activities a legislator doesn’t agree with.

Given the recent legislative activity surrounding US surveillance programs and the ongoing exposure of the FBI’s tactics and technology, it’s somewhat unsurprising that lawmakers are taking a shot at defunding some of the more questionable efforts. Darrell Issa, for example, offered an amendment stating that if the FBI wants to deploy its Stingray devices without a warrant, it will need to hold a bake sale to pay for it.

The amendment prohibits funding for federal law enforcement to conduct non-court-ordered “stingray” operations that collect bulk electronic data from individuals. The amendment was adopted on a voice vote.

This is of some import, although the FBI now claims it gets a warrant before deploying Stingrays. It will probably edge around this defunding by claiming it doesn’t use Stingrays to collect data in bulk (sort of true, if used for their intended purpose and with proper minimization) or by pointing at its exemptions to its self-imposed warrant requirements, which are big enough you could fly a single-engine plane bristling with antennas and cameras through them.

In addition to other surveillance-targeting amendments, like defunding of any future NIST/NSA partnerships to backdoor encryption and the FBI/DOJ’s use of backdoor surveillance via wiretapping laws, other interesting amendments were proposed and passed.

Rep. Gosar (R-AZ) – The amendment increases funding for the DOJ Office of the Inspector General by $1.7 million, offset by a reduction to the DOJ General Administration – Salaries and Expenses account.

Michael Horowitz — the Inspector General for the DOJ — has been battling the FBI and DEA for months now over the release of documents his office has requested. So far, the battle has been futile, but some additional funding will help ensure his office will continue to try to hold the DOJ’s agencies accountable for their misconduct and failures. If nothing else, Horowitz has been both dogged and vocal while performing his oversight duties — something that very obviously hasn’t endeared him to the agencies he polices. I see no reason not to give this man, and his office, more funding.

Rep. Castro (D-TX) – The amendment increases the Community Trust Initiative, which provides grants for police body cameras, by $10 million, offset by a reduction to the DEA Salaries and Expenses account.

Body cameras are no panacea, but they’re definitely better than taking no action at all. The best part about this is that it forces the DEA to fund a program many law enforcement agencies are hesitant to adopt. The ironic part is that the worst behavior in law enforcement (i.e., abuse of no-knock warrants, asset forfeiture) is tied to the Drug War. True accountability is still little more than a starry-eyed ideal, but taking $10 million from the DEA for this program is definitely a better use of that money.

Rep. Grayson (D-FL) – The amendment prohibits funding to compel a journalist or reporter to testify about information or sources that they regard to be confidential.

This is interesting, especially in light of the DOJ’s efforts to compel New York Times journalist James Risen to reveal his sources. There’s more to it than just the summation of this amendment, but it’s far too much to cover here. (Hint: define “journalist.” Once again, the government wants to be able to make that determination, probably on a case-by-case basis.)

Rep. Luetkemeyer (R-MO) – The amendment prohibits funding for DOJ’s “Operation Chokepoint.”

If this sticks, Team America: Morality Police™ will have to hold Bitcoin auctions or whatever if it wishes to keep porn performers and other blacklisted undesirables from availing themselves of bank services.

The attendant downside to these easily-passed amendments is that they can just as easily be deleted before the appropriation bill’s final passage, especially if those targeted are able to apply enough pressure to block the bill’s package with these intact.

Filed Under: appropriations, bodycams, congress, darrell issa, dea, fbi, stingrays

This Is Important: Federal Anti-SLAPP Legislation Introduced

from the make-it-happen dept

For many years now, we’ve talked about the importance of a federal anti-SLAPP law, that would protect the First Amendment. As we’ve explained, it is not uncommon for people to abuse our judicial system to file a lawsuit against someone for saying things that they don’t like, knowing that no matter how frivolous, the threat (and cost) of the lawsuit is often enough to get them to shut up. That’s why such “Strategic Lawsuits Against Public Participation” (SLAPP) are so popular. As it stands, anti-SLAPP laws are a complete hodgepodge of state laws. Some states have no anti-SLAPP laws. Others have weak ones. And a few have strong ones (though even some of those are under attack).

While there have been some attempts in the past, it appears that some in Congress are trying, once again, to create a federal anti-SLAPP law. This one has been introduced by Reps. Blake Farenthold and Anna Eshoo (with co-sponsorship from Reps. Darrell Issa, Jared Polis and Trent Franks).

The SPEAK FREE Act of 2015, will protect citizens from frivolous lawsuits that target their First Amendment Rights. Based on the Texas Citizens Participation Act, this bill will prevent bad actors from using a lawsuit to silence public opinion simply because they don?t agree with it. These lawsuits, known as SLAPPs (Strategic Lawsuits Against Public Participation), pose a threat not only to free speech, but to the modern information economy. Protecting our right to free speech drives economic opportunity by paving the way to new forums for expression, like YouTube, or by facilitating the rise and fall of products or services through competition and honest buyer feedback.

The SPEAK FREE Act will provide a federal backstop to state Anti-SLAPP laws by creating a process similar to that in Texas and California, where expensive court proceedings are delayed and claims can be dismissed if the defendant can show that a SLAPP suit cannot succeed on the merits.

The full text of the bill can be seen at that link (or below), and it does appear to be similar to the ones in Texas and California, making it much easier to dismiss bogus SLAPP suits, to halt discovery and to get awarded attorneys fees for such SLAPP suits. Also, unlike some state laws, it is not limited to just speech about the government, which is important. While there may be some specifics within the bill that are worth tweaking, overall, it seems clearly modeled on the very successful, and well-thought out bills already in place in Texas and California. It would be a huge boost to freedom of expression to have this become law.

Seeing as how some rather wealthy folks have been trying to kill off anti-SLAPP laws in states already, expect to see a lot of FUD come out about this attempt to put in place an anti-SLAPP law that protects free expression across the entire country.

Filed Under: anna eshoo, anti-slapp, blake farenthold, darrell issa, federal anti-slapp, free expression, free speech, jared polis, slapp

Legislators Introduce Bill Calling For Nationwide Ban On Non-Disparagement Clauses

from the the-'KlearGear-Law' dept

Non-disparagement clauses are one of the stupidest things any company can enact. In most cases, it’s almost impossible to enforce them, no matter how artfully crafted. Most aren’t. Most non-disparagement clauses found lying around the internet have been lazily copied and pasted from pre-existing bad ideas instituted by other companies.

On top of the legally-dubious aspects, there’s the potential for severe backlash — something that completely underscores the futility of these half-assed gag orders. Instead of heading off criticism, these clauses tend to invite negative reviews, often from internet denizens who’ve never patronized the company they’re bashing at multiple review sites.

But still, these clauses persist. Up until recently, the court of public opinion has had to do most of the heavy lifting when it came to the enforcement of these clauses. Last September, California became the first state in the nation to ban non-disparagement clauses, threatening violators with fines up to $10,000 (for repeated violations).

Now, the federal government is taking another swing at bad companies hiding behind worse legal language.

Today, Representatives Darrell Issa, Eric Swalwell, Blake Farenthold, and Brad Sherman (two Democrats and two Republicans) jointly proposed in Congress the Consumer Review Freedom Act of 2015, which would ban non-disparagement clauses nationally. We at Public Citizen have litigated cases against the use of such clauses (for instance in the KlearGear case, as well as the Cox case). The proposed bill, which is similar to one introduced last session (by Democrats only), also prohibits a business from imposing a clause requiring consumers to sign away their intellectual property rights in communications about the business. We’ve challenged that type of clause, too. Today’s bill authorizes enforcement by the Justice Department and by state attorneys general.

The proposed law includes fines that could add up to real money fairly quickly.

The Attorney General shall bring an action against any business who violates subsection (d) for a civil penalty of not more than $16,000 for each day that the business so requires the use of such a contract by a distinct person.

No company will be penalized for existing clauses but will be expected to remove them as soon as possible. One year after the bill’s enactment, any clauses still in existence (or new clauses enacted past this point) will subject companies to daily fines.

As noted above, the bill would also prevent IP landgrabs by companies that allow them to issue DMCA takedown notices targeting critical review they now “own” thanks to the fine print on Terms and Conditions pages.

How effective a law like this will be in keeping the KlearGears of the nation in line is open to debate. Some shady companies may maintain their US “presence” for only as long as it remains beneficial to them. In the wake of the default judgment against KlearGear for its bogus non-disparagement clause, the company — which had claimed to be located at multiple locations throughout the US over the past several years — suddenly revealed itself to be a very French corporation and thus out of reach of the $350,000 fee.

Hopefully, the law — if implemented — will deter future companies from ambushing unhappy customers with egregious fees and damaged credit records. The fines mooted here should act as a deterrent, especially when pursuing these fines doesn’t appear to hinge on the enforcement of these questionable clauses, but rather their mere existence.

Filed Under: blake farenthold, brad sherman, congress, darrell issa, eric swalwell, free speech, gag clauses, non-disparagement clauses, reviews
Companies: kleargear

FBI Director Says Congress Will Fix Phone Encryption 'Problem;' Congress Says 'Bite Us'

from the Bureau-cordially-invited-to-go-fuck-itself dept

James Comey’s pleas that something must be done for the [potentially-molested] children of the United States seem to be falling on mostly deaf ears. Mostly. After realizing that there’s nothing in current laws that compels Google and Apple to punch law enforcement-sized holes in their default encryption, Comey has decided to be the change he wishes to force in others.

Having set the stage with a Greek chorus comprised of law enforcement officials chanting “iPhones are for pedophiles,” Comey is now making overtures to legislators, targeting an already-suspect law for further rewriting: CALEA, or the Communications Assistance for Law Enforcement Act. As it stands now, the law specifically does NOT require service providers to decrypt data or even provide law enforcement with the means for decryption. Up until this point, the FBI’s director seemed to consider Congressional support a foregone conclusion.

Last week, FBI director James Comey suggested that encryption “threatens to lead all of us to a very dark place” and suggested that if Apple and Google don’t remove default encryption from iOS and Android then “Congress might have to force this on companies.”

Now, Congress members are firing back at Comey, reminding him that Congress doesn’t have to do shit.

“To FBI Director Comey and the Admin on criticisms of legitimate businesses using encryption: you reap what you sow,” California Republican Rep. Darrell Issa tweeted. “The FBI and Justice Department must be more accountable—tough sell for them to now ask the American people for more surveillance power.”

Rep. Zoe Lofgren estimates Comey’s legislative “fix” has a “zero percent” chance of passing. This tepid statement is the warmest response Comey’s received so far.

“It’s going to be a tough fight for sure,” Rep. James Sensenbrenner (R-Wis.), the Patriot Act’s original author, told The Hill in a statement.

Of course, in this anti-surveillance climate, there aren’t too many representatives willing to openly support toxic rewrites like the one Comey desires. But give it a few more years and anything’s possible. This is the time to start watching upcoming bills closely. It’s not completely unheard of for unpopular legislation to be tacked onto other bills whose popularity (or complete mundanity) gives them a higher chance of passing.

Comey also still seems to think that it’s simply a matter of wording. He’s done all he can to portray the encrypted future as a nightmarish world where child abusers, drug dealers and terrorists run amok while law enforcement fumbles around in the dark. This clumsy propaganda machine has done little to soften up the public or its representatives. Now, he’s shifting gears, pretending that it’s not a “backdoor” he’s seeking, but rather some sort of magical doggie door for law enforcement.

“We want to use the front door with clarity and transparency,” he said.

How that word picture converts to real life remains to be seen. Comey doesn’t seem to have any idea but believes the answer runs through an amended CALEA. The good news is that no one’s in any hurry to help him out. The FBI (and much of law enforcement) is so used to getting what they want (as well as being completely absent when it’s time to reap what’s been sown) with minimal resistance that this pushback has forced them to think on their feet — something they’re clearly not comfortable doing. Between talk of “golden keys” and the hilarious assumption that Congress would simply do as it’s told, the FBI’s anti-encryption fit-pitching is looking more ridiculous by the moment.

Filed Under: darrell issa, encryption, fbi, james comey, jim sensenbrenner, phones, zoe lofgren