julian sanchez – Techdirt (original) (raw)

So… this post is going to discuss something involving freshman Congresswoman Alexandria Ocasio-Cortez. For a variety of reasons — some good, some bad, some truly awful — Ocasio-Cortez (or AOC, as people call her) seems to elicit quite a strong reaction from people, both pro and con. This post is not about her, or her views, or whatever you happen to think about any of it. If you want to argue about her in the comments, feel free, just know that you’ll be off-topic and will look silly. Rather, this post is about copyright — a topic that we talk about frequently, and one on which AOC, in her new job, may at some point be asked to weigh in on as a legislator.

The latest “controversy” (if you can even call it that) began as one of the various attempts by some of her critics to dig into her past to try to prove… something(?!?), in this case by unearthing a video of her in college dancing. I remain unclear of what awful thing her critics thought this proved, but apparently it was something about how people can’t possibly have been poor if they once had fun dancing. At least that was the suggestion I saw passed around, and it’s about as nonsensical as copyright term extension, but alas…

There’s actually a much more interesting copyright story underneath all of this, much of the history of which we’ve covered in detail on Techdirt in the past, but which Parker Higgins did a great job recounting on Twitter on Thursday afternoon:

The delightful dancing video of AOC that is being circulated right now* is actually part of a pretty storied, if now mostly forgotten, remix culture phenomenon. If you'll allow me…

—
* apparently by numbskulls incapable of joy

— Parker Higgins (@xor) January 3, 2019

Wired later turned much of Parker’s thread into an article as well. The short version is that almost exactly 10 years ago, Sarah Newhouse put together a video taking scenes from various 1980s “brat pack” movies (mainly, and most prominently, Breakfast Club, but a few others as well) and put clips of the actors dancing to a (then) new song by the band Phoenix, called Lisztomania:

Notably, that is not the original video. Despite the band being super happy with that video (and everything that later came from it), somewhere along the way, Newhouse got dinged for it and other videos and had her entire YouTube account taken down over copyright infringements. Gotta love that DMCA requirement for a “repeat infringer” policy.

Soon after that video, a guy named Ian Parker, inspired by Newhouse’s video, recreated it with his friends on a rooftop in Brooklyn:

That version is still online. It then inspired a ton of other people and social groups to build on that work and create their own, starting with a group in San Francisco. Except… that version is no longer online due to a claim by IFPI that the use of the song is infringing (remember, the band itself was thrilled about the attention this gave them…). But, of course, another version has popped up:

And there are lots and lots of others… including one from Boston University, which has a (just slightly) younger Alexandria Ocasio-Cortez having fun with some friends and recreating a localized BU version of the same video. That one’s been online since 2010, just months after this whole craze started:

It is not entirely clear why the sudden spreading of clips from this video were seen as “new” since that original video has been up for nearly a decade, and it’s also not at all clear why the “new” video changed the music, though if it was an attempt to hide where it originated from, that failed. I saw the initial tweet that was promoting the video, and it was obvious from the clips that this was one of the many Lisztomania videos, and it would be obvious to anyone who watched a bunch of them back then.

Earlier in 2010, Julian Sanchez had done a fun explainer video on the Evolution of Remix Culture, which we talked about a few times over the years:

Sanchez makes a few points in that video, but the key one is that the complaints that traditional copyright folks have about remix culture totally misses the point. These videos and the sharing of our unique versions of such memes is not about “freely” using someone else’s stuff, but about social interactions with our own friends and communities, and putting our own stamp on things. Sanchez doesn’t make this point, but it’s actually a very similar situation to the way culture used to happen: storytellers would take the ideas of others and build on them and make their own versions and spread them.

Of course, Sanchez’s own video was taken down (multiple times) with various bogus copyright claims. While one might argue that the fair use claims on the original videos were less strong (I’d disagree, but there are better arguments there), the idea that Julian’s video was not fair use was… crazy. He was clearly commenting on the use of this music and videos for remix purposes, and it would meet all four criteria for fair use easily. Eventually, after Sanchez complained publicly about the takedowns, the demands were removed and the video lives on.

Soon after Sanchez’s presentation, Larry Lessig himself used this example of remix culture — highlighting Sanchez’s video… and a whole bunch of these videos.

However, a few years later, as we covered here at Techdirt, the label with control of the copyright, Liberation Music, issued a takedown on one of Lessig’s lectures about this. This was, exceedingly bizarre. Remember: Lessig was using the video clips from Julian’s video, which is an explainer about the social situation and copyright policy questions raised by all of the other videos… and Liberation claimed it was infringing. Even worse, when Lessig counternoticed, Liberation told him if he didn’t remove the counternotice, it would sue him. Lessig and EFF then sued Liberation seeking a declaratory judgment of non-infringement and (importantly) seeking fees for violating 512(f) of the DMCA — which is the almost entirely toothless clause for pushing back against bogus DMCA takedowns. This was one case where it might actually have teeth. Realizing it was sunk, the following year Liberation ended up settling the case and paying an “undisclosed sum,” while promising to adopt new fair use-respecting policies.

And that was, more or less, the end of that meme, until it suddenly came rushing back due to some people’s infatuation with a particular Congresswoman. But there are a lot of really important copyright points embedded in this story — starting with all of the lessons both Sanchez and Lessig highlighted in each of their videos (seriously, watch them both). But it’s even more punctuated by the fact that so many of the videos that I discuss above were at one time or another taken down by copyright claims — many of which seem entirely bogus — and where the band has made it clear it was thrilled with these videos (as it should have been, as it gave that song a huge boost in attention). Indeed, Phoenix issued a statement (miraculously still available on Tumblr) stating: “We support fair use of our music” and also (apologies for the all caps screaming, but that’s how they wrote it):

NOT ONLY DO WE WELCOME THE ILLUSTRATIVE USE OF OUR MUSIC FOR EDUCATIONAL PURPOSES, BUT, MORE BROADLY, WE ENCOURAGE PEOPLE GETTING INSPIRED AND MAKING THEIR OWN VERSIONS OF OUR SONGS AND VIDEOS AND POSTING THE RESULT ONLINE.

ONE OF THE GREAT BEAUTIES OF THE DIGITAL ERA IS TO LIBERATE SPONTANEOUS CREATIVITY – IT MIGHT BE A CHAOTIC SPACE OF FREE ASSOCIATION SOMETIMES BUT THE CONTEMPORARY EXPERIENCE OF DIGITAL RE-MEDIATION IS ENORMOUSLY LIBERATING.

WE DON?T FEEL THE LEAST ALIENATED BY THIS; APPROPRIATION AND RECONTEXTUALIZATION IS A LONG-STANDING BEHAVIOR THAT HAS JUST BEEN MADE EASIER AND MORE VISIBLE BY THE UBIQUITY OF INTERNET.

IN A FEW WORDS:

WE ABSOLUTELY SUPPORT FAIR USE OF OUR MUSIC,

AND WE CAN ONLY ENCOURAGE A NEW COPYRIGHT POLICY THAT PROTECTS FAIR USE AS MUCH AS EVERY CREATORS? LEGITIMATE INTERESTS.

So, we have a copyright policy that pissed off the actual artists — and only served to stifle or silence many people who were building off of it in truly creative ways that enabled a community endeavor. As Julian noted in his talk (and Lessig specifically called out), a big part of the question here is “what level of control copyright has over our social realities” and how copyright policy that is too locked down serves to limit our ability to express and share our social realities.

In his big thread, almost as an aside, Parker made a key point in this discussion that is worth repeating (over and over and over again):

Sometimes copyright maximalists seem to live in a world where every use of culture can be enumerated, quantified, and licensed. But that's not how culture works. Not at all.

— Parker Higgins (@xor) January 3, 2019

Indeed, this is the entire point that the Article 13 debate in the EU is about. The supporters of Article 13 are demanding — literally — that the entire internet “be licensed.” But think about how the above story plays out in such a world. In short, it doesn’t. And while that might mean one less way for some internet morons to self-own themselves in trying to make fun of a new Congresswoman, I’m not exactly sure that’s what we should be optimizing for.

Indeed, this whole story is a lesson in the power of culture and communities to actually rise above the ridiculousness of today’s copyright laws (mostly) to actually showcase their communities and personalities, and that’s something we should be championing. And one hopes that when copyright policy is up for discussion in Congress, that AOC gets that, now having some firsthand experience with it.

Oh, and I should note that the nature of remix and copyright and culture has continued to expand. Following from this whole mess with AOC, someone has set up a Twitter account called AOC Dances To Every Song, and it delivers exactly what it claims to. Here are just a few examples:

There are a lot more… though it would not surprise me at all to find that account is eventually shut down for… claims of copyright infringement. Because this is the insane world we live in.

For what it’s worth, AOC herself has now evolved this even further by dancing in a new video, and making fun of the “controversy.”

I hear the GOP thinks women dancing are scandalous.

Wait till they find out Congresswomen dance too! ??

Have a great weekend everyone 🙂 pic.twitter.com/9y6ALOw4F6

— Alexandria Ocasio-Cortez (@AOC) January 4, 2019

I wonder if copyright maximalists will demand that she also “license” that clip as well?

Filed Under: alexandria ocasio-cortez, copyright, culture, dancing, julian sanchez, larry lessig, lisztomania, parker higgins, phoenix, remix, sharing

Saying That You're Not Concerned Because The NSA Isn't Interested In You Is Obnoxious And Dangerous

from the think-again dept

One of the more common responses we’ve seen to all of the revelations about all of that NSA surveillance, is the response that “Well, I don’t think the NSA really cares about what I’m doing.” A perfect example of that is long-time NSA defender Ben Wittes, who recently wrote about why he’s not too worried that the NSA is spying on him at all, basically comparing it to the fact that he’s confident that law enforcement isn’t spying on him either:

As I type these words, I have to take on faith that the Washington D.C. police, the FBI, the DEA, and the Secret Service are not raiding my house. I also have to take on faith that federal and state law enforcement authorities are not tapping my various phones. I have no way of knowing they are not doing these things. They certainly have the technical capability to do them. And there?s historical reason to be concerned. Indeed, there is enough history of government abuse in the search and seizure realm that the Founders specifically regulated the area in the Bill of Rights. Yet I sit here remarkably confident that these things are not happening while my back is turned?and so do an enormous number of other Americans.

The reason is that the technical capability for a surveillance event to take place does not alone amount to the reality?or likelihood?of that event?s taking place….

For much the same reason as I am not rushing home to guard my house, I have a great deal of confidence that the National Security Agency is not spying on me. No doubt it has any number of capabilities to do so. No doubt those capabilities are awesome?in the wrong hands the tools of a police state. But there are laws and rules that protect me, and there are compliance mechanisms that ensure that the NSA follows those laws and rules. These systems are, to be sure, different from those that restrain the D.C. cops, but they are robust enough to reassure me.

Julian Sanchez has a blistering response to that, appropriately entitled Check Your Privilege, which highlights that while Wittes, a well-paid, white, DC-based policy think tank worker, may be confident of those things, plenty of other folks are not nearly so confident, and that the NSA has made it pretty clear that they shouldn’t be so confident.

In a democracy, of course, the effects of surveillance are not restricted to its direct targets. Spying, like censorship, affects all of us to the extent it shapes who holds power and what ideas hold sway. Had the FBI succeeded in ?neutralizing? Martin Luther King Jr. earlier in his career, it would hardly have been a matter of concern solely for King and his family?that was, after all, the whole point.

Instead of a couple wonks comfortably ensconced in D.C. institutions, let?s instead ask a peaceful Pakistani-American who protests our policy of targeted killings, perhaps in collaboration with activists abroad; we might encounter far less remarkable confidence. Or, if that seems like too much effort, we can just look to the survey of writers conducted by the PEN American Center, finding significant percentages of respondents self-censoring or altering their use of the Internet and social media in the wake of revelations about the scope of government surveillance. Or to the sworn declarations of 22 civil society groups in a lawsuit challenging bulk phone records collection, attesting to a conspicuous decline in telephonic contacts and members expressing increased anxiety about their association with controversial or unpopular organizations.

As Sanchez notes, it’s not just whether or not any of us are direct targets, but the overall chilling effects of how the system is used. And, I should note, that while Wittes is confident that he’s safe — there are a growing number of folks who have good reason to believe that they are not immune from such surveillance. The recent revelation that Tor users are labeled as extremists who get extra-special scrutiny seems like a major concern. Similarly, the story from earlier this year that the NSA targeted the Pirate Bay and Wikileaks as part of some of its surveillance efforts is a major concern. In the process of doing journalism, I’ve communicated with folks associated with some of those and other similar organizations. In the past, I probably would have similarly noted that I doubted the NSA cared at all about what I was doing, but as each of these stories comes out, I am increasingly less sure. And, more importantly, even if the NSA is not at all concerned with what I happen to be doing, just the fact that I now have to think about what it means if they might be certainly creates a chilling effect, and makes me think twice over certain people I contact, and what I say to them.

It’s easy to claim that you’re not worried when you’re the one out there supporting those in power. It becomes a lot trickier when you’re either criticizing those in power, or communicating with those who challenge the power structure. Suddenly, it’s not so easy to sit on the sidelines and say “Meh, no one’s going to care about me…” And that should be a major concern. The way we keep a strong democracy is by having people who are able and willing to challenge the status quo and those in power. And yes, the US is much more forgiving than many, many other countries to such people, but there are clear biases and clear cases where they are not at all accepting of such things. And the more of a chilling effect the government creates around those things, the more dangerous it becomes to stand up for what you believe in.

Filed Under: ben wittes, chilling effects, concern, julian sanchez, nsa, privacy, privilege, surveillance

Almost Everything About The Bulk Collection Of Phone Data Is Illegal

from the a-simple-explanation dept

We already wrote about the Privacy and Civil Liberties Oversight Board (PCLOB) and its scathing report as to how the program to collect phone records on pretty much every phone call in the US was both illegal and unconstitutional. However, if you don’t want to get too down in the weeds over why it’s illegal, the absolutely best summary I’ve seen comes from Julian Sanchez and fits into a tweet:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."

— Julian Sanchez (@normative) January 23, 2014

In case you can’t read that, it says:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on “FBI”, “records,” “relevant” & “investigation.”

Believe it or not, he’s not even being that glib here. Section 215 is pretty clear on all of those things. It’s just for the FBI, and allows them to get records relevant to a specific investigation. Yet, the program is run by the NSA, which collects the data, instead of the FBI. It is not collecting “records” as intended by the law, and most of those records are irrelevant, and none of this is tied to any particular investigation. I’m reminded of the joke that the Holy Roman Empire wasn’t actually holy, Roman or an empire.

When the law includes four basic conditions, and basically all four of them are not met, the program is beyond illegal. It’s just a farce. It’s kind of amazing that President Obama and other NSA defenders are still arguing that the program is perfectly fine.

Filed Under: bulk metadata collection, business records, fbi, julian sanchez, nsa, pclob, section 215, surveillance

If you read Techdirt, you’re almost certainly familiar with Larry Lessig, the law professor at Harvard who (among many other things) has been an avid advocate for copyright reform and campaign finance reform, an author of many books about copyright and creativity, a well-known public speaker whose presentations are stunningly compelling, entertaining and informative, and the founder of some important organizations including Creative Commons. Of course, as an expert on copyright and creativity, and someone who’s actually been involved in some of the key copyright legal fights over the past decade (tragically, on the losing side), you might think that a record label would think twice before issuing a clearly bogus threat to sue him over copyright infringement. Well, apparently Liberation Music was either unaware of Lessig’s reputation and knowledge, or just didn’t care.

Apparently, back in 2010, Lessig gave one of his many wonderful public talks, this one called “Open,” at a Creative Commons event in South Korea. While that happened a few years ago, Lessig just put video of that talk online a few months ago. In that video, which is now down (for reasons explained below), there are a few brief clips of the Phoenix song Lisztomania, which was quite popular a few years ago. When the clip was posted, it appears that YouTube’s ContentID noted two possible claims: one from Viacom and one from Liberation Music, though, oddly, Lessig was only informed about the Viacom one. Lessig disputed the Viacom block, but as YouTube was about to restore the video, Liberation Music took it one step further, and filed a full DMCA claim, demanding the video be taken down and kept offline (while many people confuse them, the ContentID match is not the same thing as a DMCA claim — without getting into the details, the DMCA claim is a bit more serious).

In response, Lessig did exactly what the law allows, and filed a DMCA counter-notice, claiming that the work did not infringe. In response, Liberation emailed Lessig directly telling him that it would be filing a copyright infringement lawsuit against him in 72 hours if he did not “retract” his counter-notice. To avoid having an immediate lawsuit on his hands, Lessig retracted the notice, but since then has teamed up with the EFF to file for declaratory judgment that the video does not infringe and (more importantly) to seek DMCA 512(f) damages against Liberation for filing a totally bogus DMCA takedown notice.

There are a few things worth digging into here. For example, this is not the first time that Lessig has had videos removed from YouTube on highly questionable copyright claims. In fact, we’ve written about it happening twice before. However, I’m pretty sure that, in both cases, after Lessig countered the claims, the videos were restored. In both cases, it really looked like part of an automatic takedown, where the companies later realized there was nothing worth pursuing. What’s different (and stunning) here is that Liberation decided to press forward with the obviously bogus claim, file the DMCA notice and threaten to sue if Lessig didn’t drop his counternotice.

Next, in terms of the content of the video itself, while the YouTube video is gone because of the DMCA takedown, I’m pretty sure there’s another copy here. The Lisztomania clips come in around the 37:50 mark. I wasn’t able to fast forward to it, but Lessig has used it in other presentations as well. For example, you can see it in a TEDx presentation that Lessig did a few months earlier, with the key section of that video happening at 4:40 in that video. And what he’s showing, actually, is not something that Lessig himself put together, but rather clips from a video that Julian Sanchez had put together — a video we’ve written about a few times.

That’s because it’s a truly fantastic video that Sanchez put together in February of 2010, highlighting how copying was a key part of culture, using a really compelling example: First, there was a mashup video uploaded to YouTube by a user called “avoidant consumer,” which mashed up the song Lisztomania by the band Phoenix, with a bunch of (mostly dance) scenes from a variety of John Hughes movies, leading with the classic Breakfast Club. The video is pretty good in a variety of ways. The music is catchy, the film scenes are classic (especially for people who grew up in the 80s), and (most importantly), the video and the music just fit together. I remember that video getting passed around like crazy. The whole thing became a meme.

Part of that meme, as highlighted by Sanchez, was that people of certain “tribes,” who really liked that video then created their own versions, starting with a crew of hipsters in Brooklyn, followed quickly by some hipsters in San Francisco, and later by people all over the world. Those later videos no longer used the original John Hughes clips, but rather recreated the same clips within their own environments in a very fun way. Sanchez spoke about this form of culture and community and how the nature of this remix helped to build that community, and how our copyright policy rarely reflects that aspect.

Of course, late last year, Sanchez discovered that his own video had been removed by a copyright claim by Kobalt Music and Sony Music. He appealed, and it was rejected… but after the story got some attention, the clip was put back. If I remember correctly, the video was taken down yet again just a few months ago, but was put back soon after.

Meanwhile, soon after Sanchez put out the video, Lessig used Sanchez’s video, again to highlight the power of remix and remix culture. In the South Korea presentation, Lessig is no longer using the same Sanchez video, and has actually expanded upon what Sanchez started, by including a variety of other cities the meme spread to. However, in almost every way, these are all clearly fair use. I’m assuming the Viacom ContentID match that Lessig first received was because of the use of some of the video clips in Lessig’s presentation, including (perhaps) one of the John Hughes clips that very briefly show up (the video also includes a Daily Show clip, which Viacom owns — so it could be about that). The audio claim by Liberation, however, is about the Phoenix audio. Given that, it would be almost impossible to see this as infringing.

While I may be predisposed towards seeing fair use more readily than some others, I’d be curious if any copyright maximalist can come up with a credible argument for how this isn’t fair use. It involved some very brief clips used to illustrate a concept, including commentary from Lessig (talking over the clips). It wasn’t for any commercial purpose, but for education. There is no way that it harmed the market for the Lisztomania song. If anything, it potentially increased interest in the song. I can’t see how Liberation Music has any case at all. At all.

Of course, the really interesting part of this might not be the declaratory judgment claim for non-infringement (where the fair use stuff will play out), but rather the second claim — for attorneys fees, costs and damages under 512(f). As we’ve discussed, unfortunately, it’s been almost impossible to win a 512(f) claim over a bogus DMCA takedown. The entertainment industry has fought hard to make sure that sending totally bogus DMCA notices that censor content are basically unpunishable, unless they can show a willful and intentional decision to ignore fair use and censor the content. While it’s not a slam dunk, it certainly appears that Lessig has a much stronger 512(f) argument here than other cases, because this isn’t a one-time situation, but Liberation doubled down even after being told that Lessig believed the video was fair use. On top of that, by filing the lawsuit himself, and seeking the declaratory judgment, instead of being sued first, it means that Liberation can’t just dismiss the lawsuit (they’re now the defendant, not the plaintiff).

Given that it’s Lessig, and with the involvement of the EFF, this is obviously going to be a case worth watching, but given the full details of the case, it may be a key one in establishing when 512(f) can be used to push back against bogus DMCA takedowns.

Filed Under: 512f, copyright, dmca, fair use, julian sanchez, larry lessig, lisztomania, phoenix, takedowns
Companies: liberation music

Video About Fair Use, Remix & Culture Taken Down Over Copyright Claim (Of Course)

from the how-nice-of-them dept

A few years back, we had a post highlighting an absolutely fantastic video by Julian Sanchez about the value of remix culture. The video made a key point that often gets lost in these debates: that remix culture is often more about the culture than the remix, but that copyright law makes that difficult. It focused mainly on a viral remix video that took a song from the band Phoenix, called “Lisztomania,” but which was put to video clips of people dancing in various John Hughes films (mainly from the classic scene in “The Breakfast Club.”) That was interesting enough, but what was even more interesting was how it then followed that lots of others recreated the video in their own image. So groups got together in various hipster locations (Brooklyn, San Francisco) and created their own videos recreating the dance moves on their own to go with the new song. It was really quite interesting, and showed how important remixing and fair use was to culture, and how it could take something and make more with it.

Fast forward to the present, and even though this video has been up for years, Julian discovered that his original video was taken down on a copyright claim. If you go to it now, you see this:

For what it’s worth, this does not seem to be targeted at just Sanchez. In looking around, it looks like a bunch of the “original” videos of the Hughes brat pack dancing to Lisztomania videos are all down with the same message. From this, it appears that it’s the publishing company, rather than the band or its label. Kobalt has claimed to be a new sort of publishing company, though this seems like a horrifically old school approach, killing off a popular viral video — and doubly so with the Sanchez video which almost certainly qualifies as fair use. It was completely not commercial, only used a part of the song, included significant commentary, did not limit the market for the song and clearly was not a replacement.

And, yet, it’s gone. Even worse, when Sanchez appealed the takedown, which was rejected, and there appears to be nothing else Sanchez can do:

Note that in this screen, it’s not Kobalt, but Glassnote and SME (which I believe is Sony Music). Glassnote is an indie label who released the song, but in partnership with Sony, who handles the distribution.

It’s also odd that there doesn’t appear to be any further appeals process. After all, just last month YouTube said it had changed its appeals process to avoid exactly this situation. The “old” model allowed whoever made the claim to “reject” the appeal and there was no further action possible. The “new” situation is supposed to require the claimant to file a DMCA notice, at which point the DMCA process takes over.

Users have always had the ability to dispute Content ID claims on their videos if they believe those claims are invalid. Prior to today, if a content owner rejected that dispute, the user was left with no recourse for certain types of Content ID claims (e.g., monetize claims). Based upon feedback from our community, today we’re introducing an appeals process that gives eligible users a new choice when dealing with a rejected dispute. When the user files an appeal, a content owner has two options: release the claim or file a formal DMCA notification.

But, as Sanchez notes, there doesn’t appear to be any such appeals process available to him (at least not in an obvious manner).

Either way, Glassnote/Kobalt/SME is playing with fire here. First off, taking down such a popular viral video — one that clearly only served to help promote the song massively — just seems stupid and shortsighted. But, going further and taking down Sanchez’s video commentary on remix culture, which used part of that song seems doubly questionable, seeing as it’s almost certainly fair use. It might not be the same issue as the Lenz case, in which Universal Music may get into trouble for issuing a bogus DMCA without properly considering fair use, since it’s unclear that any actual DMCA notice was filed (instead, this looks like it was all a problem via ContentID). However, going around and censoring videos that are clearly fair use isn’t going to end well. Though, really, YouTube’s broken ContentID system isn’t helping either.

Filed Under: contentid, fair use, julian sanchez, lisztomania, phoenix, remix culture, takedowns
Companies: glassnote records, kobalt, sony music, youtube

Gov't Says They Requested 24,270 Wiretaps In Total; Sprint Alone Says They Received Over 50k Requests

from the something-doesn't-add-up dept

We already wrote about how Ed Markey found out that law enforcement had made more than 1.3 million requests for subscriber info last year, and he’s now published the detailed responses, which is turning up some scary information. First off, the numbers are clearly low, because (at the very least) T-Mobile refused to provide any numbers, stating:

While T‐Mobile does not disclose the number of requests we receive from law enforcement annually, the number of requests has risen dramatically in the last decade…

Perhaps more troubling may be the tidbit that Julian Sanchez noticed in Sprint’s response (pdf), in which they admit to 52,029 court orders for wiretaps:

Over the past five years, Sprint has received approximately 52,029 court orders for wiretaps; 77,519 court orders for the installation of a pen register/trap and trace device; and 196,434 court orders for location information. […] Over the same time frame Sprint received subpoenas from law enforcement agencies requesting basic subscriber information. Each subpoena typically requested subscriber information on multiple subscribers and last year alone we estimate that Sprint received approximately 500,000 subpoenas from law enforcement.

As Sanchez notes, this is problematic, because Sprint — which is just the third largest mobile operator — appears to be claiming more court orders for wiretaps than various officials reports to Congress of how many wiretaps had been sought in total. In other words, either Sprint’s definition of “wirtetaps” is different than everyone else’s, it’s number is wrong… or… someone’s been lying to Congress.

Certainly a report of 52,029 wiretaps over five years–and that just from the third largest carrier in the country–is remarkable in and of itself. But it’s also more than double the number of all wiretaps counted in annual reports required by federal law. The Administrative Office of the U.S. Courts keeps track of the number of wiretaps authorized each year for criminal investigations. The Justice Department files an annual report to Congress on individual warrants issued by the Foreign Intelligence Surveillance Court for intelligence investigations. (If you don’t feel like wading through, The Electronic Privacy Information Center has charts and graphs that should make it clear.) The total number of all wiretaps counted in the official reports over the five year period 2007–2011 comes to 24,270. I’ve made a table breaking it down year by year:

| YEAR | TITLE III (Criminal) Wiretap Orders | FISA (Intelligence) Wiretap Orders | | --------- | --------------------------------------- | -------------------------------------- | | 2011 | 2,732 | 1,745 | | 2010 | 3,795 | 1,579 | | 2009 | 3,043 | 1,320 | | 2008 | 2,631 | 2,083 | | 2007 | 2,927 | 2,370 | | TOTAL | 15,173 | 9,097 |

The obvious question: How is one cell phone carrier—and not the largest by a longshot—reporting 27,759 more wiretap orders than the official numbers acknowledge for all carriers?

That seems like a pretty big miss by someone…

Filed Under: doj, ed markey, julian sanchez, surveillance, wiretap
Companies: sprint

from the makes-sense dept

There has been plenty of talk over the years about why we keep extending copyright. Of course, we’ve discussed the infamous Mickey Mouse Curve, showing how copyright extension always seems to happen whenever Mickey Mouse is going to hit the public domain.

However, Julian Sanchez notes that this doesn’t explain the whole story. After all, if it was just about protecting the very, very small number of works that still have commercial value after so many years, then you would think we would have evolved away from the “copyright absolutely everything for as long as possible” model, to one that plenty of people have suggested: one where there are regular (and perhaps escalating) recurring fees to keep renewing your copyright registration. That way, works like Mickey Mouse could stay covered by copyright, but all the other works which have been otherwise abandoned can actually contribute back to culture and be used by anyone who wants to make something with them.

As Sanchez notes, you would think that even the Disneys of the world would like this model better. Even if it had to pay such recurring fees, the overall cost will ultimately be tiny compared to the value of the copyright. Plus, it would then open up a treasure trove of public domain material that they could use in their own works — and Disney, in particular, has a well known history of making use of public domain works.

So why do we still have a “copyright everything for as long as we live, plus 70 years” (for now)? Sanchez posits a compelling theory. That Disney and other big copyright holders like this, because it keeps them from having to compete with their own back catalog:

Insanely long copyright terms are how the culture industries avoid competing with their own back catalogs. Imagine that we still had a copyright term that maxed out at 28 years, the regime the first Americans lived under. The shorter term wouldn’t in itself have much effect on output or incentives to create. But it would mean that, today, every book, song, image, and movie produced before 1984 was freely available to anyone with an Internet connection. Under those conditions, would we be anywhere near as willing to pay a premium for the latest release? In some cases, no doubt. But when the baseline is that we already have free, completely legal access to every great album, film, or novel produced before the mid-80s—more than any human being could realistically watch, read, or listen to in a lifetime—I wouldn’t be surprised if our consumption patterns became a good deal less neophilic, or at the very least, prices on new releases had to drop substantially to remain competitive.

This story certainly fits with Disney — who famously decides to completely stop selling certain old classics and put them “in the vault” for a while, pulling them off the market entirely. For Disney, it’s all about keeping out competition, which it wouldn’t be able to do if copyright didn’t last so long.

This actually reminds me of the missing 20th century of books that we discussed a few months back, highlighting how the amount of new works from each decade drop off rapidly the further back you go, until you hit 1923 — the current cut-off for the public domain.

Sanchez does note that it’s possible this actually drives more investment into new works, since they don’t have to compete with the old. And, if you believe (which he doesn’t) that new works automatically have more value than old, then you could make a twisted sort of argument that this kind of protectionism, and effective locking-up of about a century’s worth of creativity, does “promote the progress” in that it moves the focus to newer works, rather than older ones. But I don’t buy that at all. It ignores the fact that the giant gap doesn’t just represent competitive works, but also raw material and inspiration for all kinds of amazing new works — which are effectively killed off.

That gap represents lost culture. But, for the big legacy entertainment players, it might also represent repressed competition. That shouldn’t really be surprising. After all, that is the whole purpose of government-granted monopoly privileges.

Filed Under: competition, copyright extension, julian sanchez, mickey mouse, public domain
Companies: disney

There Is A 'Right Way' To Do Cybersecurity Information Sharing, But CISPA Is Not It

from the sharing-is-caring dept

We’ve argued, repeatedly, that the backers of various cybersecurity bills have failed to give a real reason for why such bills are needed. What is the imminent threat and why does it need legislation? The only point of issue that has made some sense is that you can envision areas where it would be quite useful for companies and governments to share specific threat- or attack-related information, for the purpose of stopping that (or related) threats and attacks. But that’s a very limited scenario. The entire framework of CISPA ignores that, which is why it’s unclear if the bill even could be fixed. That said, Julian Sanchez, over at the Cato Institute, has posted an interesting analysis of what information sharing regulation should look like. First, he discusses the problem with the CISPA setup:

CISPA worked by creating a sweeping exception to all other privacy and surveillance laws, granting blanket immunity to any “entity” that chose to share vaguely defined “cyber threat information”—potentially including the contents of e-mails or other online communications—with both private actors and the government. When civil liberties advocates cried foul at the prospect of such vast quantities of private data being handed over to government on a silver platter, the bill’s supporters tried to placate them by tacking on an array of after-the-fact anonymization requirements and use restrictions—forbidding the use of the data except for a “cybersecurity purpose” or for “the protection of the national security of the United States.”

That wasn’t much consolation to anyone who’s watched how the government has tried to interpret similar “purpose” restrictions in the past. In 2002, for example, then–Solicitor General Ted Olson argued for a highly expansive view of the “foreign intelligence purposes” for which information obtained through national security wiretaps could be used, including using evidence of misconduct unrelated to terrorism or espionage to force people to become informants. If a wiretap turned up evidence of tax evasion or rape, for instance, Olson suggested the government “could go to that individual and say we’ve got this information and we’re prosecuting and you might be able to help us. I don’t want to foreclose that.” It’s no great leap to imagine a future solicitor general arguing that extorting the cooperation of hackers, penetration testers, or other tech professionals would similarly serve a “cybersecurity purpose.”

Basically, take a broad, vaguely defined law for a specific purpose… but leave it open to allowing the government to stretch that definition, and the government will almost always do so.

But, again, you can see cases where information sharing could be useful, so Sanchez suggests what might make sense there:

Instead of indiscriminately adding a cybersecurity loophole to every statute on the books, why not figure out which specific kinds of information are useful to security professionals without compromising privacy, figure out which laws raise obstacles to that sharing, and then craft appropriately narrow exemptions? (One assumes the intelligence agencies can be afforded more discretion about when to share the information already in their own possession—whatever else one might say about it, “oversharing” is not among the NSA’s problems.)

The exceptions could be appropriately narrowly tailored depending on the sensitivity of the information involved. For instance, different sections of the Electronic Communications Privacy Act deal with different kinds of data. Subsections (1) and (2) of 18 USC §2702 deal with the contents of communications in transit through or stored by a communications provider, generally prohibiting use or disclosure of that information without specific consent. Subsection (3) covers subscriber information and transactional data about those communications, and generally permits voluntary sharing, but specifically prohibits sharing with governmental entities. Since that transactional information is typically less sensitive than communications themselves, an exemption there might allow providers a fair amount of discretion to determine what constitutes “cyber threat information” and permit sharing with government also, subject to the appropriate anonymization and use requirements. For the more sensitive contents, the exception might be limited to a relatively specific laundry list of kinds of data that are both unquestionably security-related and limited in their implications for privacy, such as malware signatures and attack payloads.

In other words, let’s more carefully define the real problem here. The government is insisting that information needs to be shared, but that’s not “the problem.” Information can be shared already. The reason that CISPA works by creating a huge immunity umbrella is that the “problem” with sharing isn’t that information can’t be shared, but that certain already overburdensome regulations block certain kinds of sharing in situations where it makes sense. The answer isn’t to remove all liability for the oversharing of info, but to narrowly create exceptions to where key information that actually is necessary to be shared can have that done without violating the law. In other words, as you dig deeper, it appears that the problem isn’t about sharing information — it’s about a series of existing laws that failed to take into account future realities. So, a much more targeted and reasonable solution is to figure out exactly where that friction is, and to clear out those blockages. But, that’s not what CISPA does.

Filed Under: cispa, cybersecurity, information sharing, julian sanchez
Companies: cato institute

According To Lamar Smith, Data Or Criticism From Anyone Who Doesn't Like SOPA Isn't Valid

from the wow dept

We recently wrote about PolitiFact trashing Lamar Smith for the numbers he used in support of SOPA — numbers that PolitiFact says grade out to “false.” What I somehow missed was at the very end of that article, they ask Smith to respond to the charges that his argument was false. Amazingly, rather than respond to the actual data, Smith chose to instead attack one (of a few!) of the people that PolitiFact discussed the data with, Julian Sanchez:

After we summarized much of this research, Smith objected to Sanchez as an expert, saying in an email that because Sanchez is opposed to the anti-online-piracy act, he “cannot provide an objective or unbiased analysis.” He stood by his CNN.com statement, telling us: “Since the U.S. is the largest producer of (intellectual property) that is consumed around the world, one can surmise that a significant amount of that total value is taken from the U.S. economy.”

First of all, what? Considering that the numbers Smith used came from industry lobbyists in favor of the bill, doesn’t that mean that Smith should be objecting to his own numbers? After all, the source of those numbers — the Chamber of Commerce — “cannot provide an objective or unbiased analysis.” Or perhaps Smith thinks that only those in favor of SOPA can provide such an analysis.

Either way, that statement is insane. Smith honestly seems to be saying that any information — no matter how factual — cannot be trusted if it comes from SOPA opponents. Why doesn’t he have that same skepticism towards the data that the MPAA and Chamber of Commerce handed him?

Furthermore, his decision to stick by his comments is doubly insane. The fact that the US is the largest producer of intellectual property that is consumed around the world… does not, in fact, mean that any counterfeiting is “the total value taken from the US economy.” Is this guy serious? PolitiFact flat out points out that it’s false, with data to back it up, and shows exactly how Smith is blatantly lying about the data… and Smith’s response is to restate the error and insist that the thing already proven false must be true?!?

Smith’s constituents should demand better. Having an elected official who lives in a fantasy world where facts are ignored is not a good thing.

Filed Under: bias, data, evidence, julian sanchez, lamar smith, pipa, sopa