process – Techdirt (original) (raw)

The Bizarre Case Of Elizabeth Warren’s Former Chief Of Staff Slamming FTC’s Bedoya For The Crime Of Being Honest

from the working-the-refs dept

There are some fairly strict rules about communicating with government agency employees regarding some matter that they’re adjudicating, without making those communications public. We want whatever administrative state we have to have any attempts to influence outcomes to be public for all to see. That’s why agencies have rules regarding what’s known as “ex parte” communications, when someone tries to communicate with someone adjudicating some sort of dispute about that dispute.

The standard practice is, if a lobbyist or an activist meets with an official to discuss a matter that is under active adjudication consideration, they’re supposed to file some details on the “ex parte” communication with the agency so that all sides are made aware of it.

Of course, there are times when that just doesn’t happen, and… that’s not good.

So it was interesting that some filings showed up recently on the FTC’s docket regarding its recent move to reopen its 2020 consent decree with Facebook (pre-Meta!) regarding some of its activities regarding products targeting kids and how data is collected. I haven’t looked closely at the details, and it’s possible that there’s a legitimate argument here from the FTC (I mean, it’s Facebook we’re talking about here — though Meta quickly moved to block the FTC).

However, even as the three current FTC Commissioners all voted in favor of this FTC action, one of them, Alvaro Bedoya, released a statement explaining that even as he voted in support of this move, he wasn’t entirely sure that the new concerns were really tied to the old order:

There are limits to the Commission’s order modification authority. Here, the relevant question is not what I would support as a matter of policy. Rather, when the Commission determines how to modify an order, it must identify a nexus between the original order, the intervening violations, and the modified order. Based on the record before me today, I have concerns about whether such a nexus exists for proposed Provision I.

In other words, even if the FTC has a legitimate concern about the products and data collection practices, it looks like the FTC may be trying to take a shortcut. Rather than bringing a full action, and having that lead to a new consent decree, it’s claiming that the old consent decree was violated, and therefore it can modify that. And Bedoya is noting that it’s not entirely clear that that’s the case. Effectively, he’s saying that without more info, it looks like the FTC is trying to cut corners.

For what it’s worth, I’ve followed Bedoya’s work for many years, both as a congressional staffer (where he was always one of the smartest, most thoughtful, staffers on privacy issues, even if I didn’t always agree with him) as well as when he went into academia afterwards. As far as I can recall, I’ve never spoken with him, but I was happy that he was nominated to the FTC.

I think the statement above is indicative of the kind of integrity that Bedoya has, and why I’ve always appreciated his thinking. He highlights that the process matters separate from the policy goal, and is making it clear that we shouldn’t cut corners to achieve a good policy outcome, when there are proper ways to reach those outcomes. That, by itself, is integrity.

So too was the thing that more recently showed up on the docket: Bedoya submitting various “ex parte communications” from a bunch of activists who were furious at him for his statement, and who texted him and some of his staffers in angry, and somewhat threatening tones. The worst of it came from former Elizabeth Warren chief of staff, Dan Geldon, who angrily texted Bedoya to yell at him for making that statement.

Bedoya, rightly recognizing that he can’t be privately communicating with anyone regarding this matter didn’t reply, and so at some later date but it’s at an AM time rather than PM, so it must be a later date (unclear if it’s the next day, but it is clear that Bedoya took screenshots of these soon after they came in, likely recognizing the nature of these ex parte communications) snidely complaining about Bedoya’s lack of response, and talking about how they did communicate when Geldon apparently helped Bedoya get confirmed:

“Very telling that you don’t even respond to text messages now that you don’t need help getting confirmed. That pretty much says it all.”

Yes, what it says is that Bedoya knows darn well that he can’t be privately discussing this matter while it’s an ongoing issue before the Commission. And, of course, he could respond during his nomination because that had nothing to do with an ongoing matter over which he had to adjudicate a regulatory matter.

Geldon also texted a staffer who works for Bedoya, and approached him at an event (both of which are also reported in the document). The staffer responds to Geldon and makes it clear he should knock off the ex parte communication as it’s inappropriate for them to have any private communications regarding an ongoing manner, and Geldon still feels the need to follow it up by telling the staffer to tell others that Bedoya’s (pretty fucking benign) statement ws “inexcusable and unforgivable,” before going on to basically threaten Bedoya:

No, dude, what’s inexcusable and unforgivable is thinking that you have the right to privately communicate and pressure an FTC Commissioner without revealing it publicly.

There are a few other communications included in the file, but most are just others expressing their “disappointment” in general terms, and not as aggressive and offensive as Geldon’s bullying.

Look: I get it. There is a crew of people who want to attack “big tech” at any opportunity. Senator Warren was in that crew, as we’ve discussed before, so it’s no surprise that her former Chief of Staff is happy about the FTC’s move. But, as we keep explaining, if you want to take down big tech, do it legitimately. Don’t do weak shortcuts or just attacking for the sake of attacking.

Because these weak attacks are failing, and they’re undermining any legitimacy the FTC has to take on actual problems. There are real, and serious, problems throughout many industries, including tech, that the FTC can and should be taking on. But each time it tries to half-ass it, it makes the FTC look ridiculous.

Again, I wouldn’t be at all surprised if Meta is doing bad shit regarding data collection on kids. It sure rings true, given the company’s past actions. But that’s no excuse for taking a procedural shortcut, and kudos to Bedoya and the FTC Office of the General Counsel for noting that these communications should be on the docket.

Filed Under: alvaro bedoya, consent decree, dan geldon, elizabeth warren, ex parte communications, ftc, process
Companies: meta

It’s Not The Decision, But The Process: Musk & The Trump Decision

from the stop-the-nonsense dept

Going to put this up front, because I expect a bunch of people to not read and assume something very incorrect: I think there are valid arguments (even pretty strong ones) for why it makes sense for social media platforms to allow Donald Trump on them (there are also valid arguments against it). But, conducting a poll is the stupidest possible way to make that decision. It’s Musk’s platform, and he’s free to run it however he wants, even making the stupidest possible decisions. But it should raise questions among its users whether or not they wish to embrace such a platform, and just how much damage Musk will do in pursuit of stunts.

Making serious decisions, which can have massive impact on people’s lives, through stunts is not just reckless, but it foreshadows much more dangerous decision-making to come.

Now, to the details: as you’re probably aware, over the weekend Elon Musk ran a poll on Twitter asking people whether or not Donald Trump’s Twitter account should be reinstated:

This is despite his earlier claim that no decisions would be made on changes to trust & safety policies or the reinstatement of accounts until a “content moderation council” could be convened:

While the poll started out with Trump heavily, heavily favored (which perhaps says something about Musk’s staunchest supporters), over the course of 24 hours, it moved more and more towards even, but ended (as you can see above) barely in the “yes” column. Musk then immediately announced that the public had spoken and he was reinstating the account, repeating the very, very stupid Latin phrase “vox populi, vox dei” (some recently departed Twitter employees informed me that he’s been saying this all the fucking time in meetings, and people are mocking him for it behind his back, but he seems to think it makes him sound cool).

A few minutes after that tweet went up, Trump’s account came back. As of me writing this, Trump has not tweeted again from the account. When asked, he has insisted that he’s staying on his own flailing platform Truth Social. According to SEC filings, part of Trump’s deal with Truth Social is that he signed a contract obligating him to use the site rather than other social media. There’s a literal clause in the agreement that his social media activity must appear exclusively on Truth Social for at least six hours. It’s in the section on “license agreement” and notes:

From December 22, 2021, until the expiration of 18 months thereafter, (the “TMTG Social Media Exclusivity Term”), President Trump has agreed to first channel any and all social media communications and posts coming from his personal profile to the Truth Social platform before posting that same social media communication and/or post to any other social media platform that is not Truth Social (collectively, “Non-TMTG Social Media”) until the expiration of “DJT/TMTG Social Media 6-Hour Exclusive” which means the period commencing when DJT posts any social media communication onto the Truth Social Platform and ending six (6) hours thereafter; provided that he may post social media communications from his personal profile that specifically relates to political messaging, political fundraising or get-out-the vote efforts at any time on any Non-TMTG social media platforms. Unless notice is given, the TMTG Social Media Exclusivity Term extends in perpetuity for additional 180-day terms.

Of course, Trump’s signature on a licensing agreement is about as trustworthy as Elon’s promise of no reinstatements until his content moderation council met.

For what it’s worth, in addition to reinstating Trump, Musk reinstated various other awful people, mocked the head of the ADL, Jonathan Greenblatt, (who I have policy differences with, but Musk’s doing so immediately resulted in a bunch of Twitter users gleefully sharing anti-Semitic comments, claiming Musk was signaling to them directly) and made it clear he is in favor of chaos for the sake of chaos with no concern over what harm it might do.

Well, there was one exception to that. Musk has said a few times now that he won’t reinstate Alex Jones, and when pressed on it, claimed that it was because “My firstborn child died in my arms. I felt his last heartbeat. I have no mercy for anyone who would use the deaths of children for gain, politics or fame.”

And, of course, this partly demonstrates the problem. Musk recognizes the potential harms in one area of trauma that he has personally experienced, but seems to not care one bit about harms others have experienced.

In some ways, it’s the worst of what people assume about content moderation on most websites: that it’s driven entirely by the whims of an out of touch billionaire CEO. In most cases, that’s not true. Here, Elon is making it clear that’s how it will work on his Twitter.

Perhaps equally problematic was that, this weekend, after Jordan Peterson played the “white man’s gambit” of arguing for less anonymity, and Jack Dorsey piped in to suggest that would be a bad idea, Musk popped in to note that “Verification through the payment system plus phones, but allowing pseudonyms is the least bad solution I can think of.”

Again, this is telling. Musk is focused on “the least bad solution” that he can think of, rather than, perhaps, talking to any of the many, many people who have actually studied this issue and found that forced verification is extremely dangerous for free speech, especially for those with legitimate reasons to fear for their safety. People speaking out against authoritarian rulers. People blowing the whistle on malfeasance. Victims of domestic violence or sexual assault calling it out.

But, again, Musk hasn’t experienced any of that personally, so why should it matter?

Bringing this back around to the point: it’s impossible to do content moderation well at scale. Everyone makes tons of mistakes. But there are real lessons out there on things that work well and things that are stupid and dangerous. And Musk is making it clear that he wants to ignore all of those lessons, and redo all the mistakes, perhaps making them worse in the process. It’s possible that he’ll run the learning curve and eventually land back where things kinda were before, but with less clarity and understanding, but we sorta predicted that back in April.

I’m not necessarily upset that Trump’s account is back (whether he tweets or not). I do think, however, the process by which Musk got there demonstrates a near total lack of concern for how any of this can and should work, and especially no concern for the harm he can do to others in the process.

Back when Twitter initially decided to issue a permanent ban on Trump, I wrote a long post detailing how such a decision could not be an easy one, and there were plenty of arguments against it. But, in the end, the various platforms had to weigh a variety of factors, including how responsible they wished to feel concerning the attempted overturning of an election. Similarly, when the Oversight Board was reviewing Facebook’s decision to ban Trump, we filed a comment that did not take a stand on either side of the central question, but did advocate for a much better process in how Facebook makes such a decision. We concluded that comment by noting:

There may not be any one right answer, or even any truly right answer. In fact, in the end the best decision may have little to do with the actual choice that results but rather the process used to get there.

And that takes us back to Musk’s decision making here. If you’re going to do content moderation and trust & safety, having some sort of underlying process and principles is important. That’s not to say they can’t change over time, or that they won’t face challenges as every possible edge case shows up, such that you realize that nearly every case feels like an “edge case” that doesn’t neatly play into the rules. But you need to have some sort of basic concepts behind what you’re doing.

Throwing it entirely open to a vote is, to put it mildly, crazy. I mean, for all of Musk’s silly pretentious “vox populai, vox dei” stuff, plenty of people have pointed out that the phrase originates from Alcuin of York in a letter to Charlemagne in 800, in which he warns that believing such a thing is dangerous:

“And those people should not be listened to who keep saying the voice of the people is the voice of God, since the riotousness of the crowd is always close to insanity.”

Of course, like so many things, there are situations where a “democratic” vote makes sense, and many where it does not. A purely democratic vote can be used to oppress a minority, for example. Also, a simple poll on Twitter… is not a representative sample. There are all sorts of problems with it. First of all, Musk set up a simple yes/no option, when it could be a lot more nuanced that. But by framing it the way he did, those are the only choices. Then there are the questions of who actually saw it and who voted. That’s not public at all.

Finally, for months (literally until a month ago), Musk insisted that Twitter was full of bots, not people. And, even here, he admitted partway through the vote that “bots” were voting. Though, of course, he insisted that it was only the people voting “no” who must be bots and “troll armies.” Again, that certainly does not suggest that anything about this poll is “the voice of the people.” Not only is he admitting that much of it is not, in his belief, he is publicly stating his own bias regarding what the correct answer should be.

Through all of this, Musk has made clear that the content moderation practices for Twitter are now whatever he thinks of, on a whim, that will be most entertaining for himself. He has no real process. He has no real principles. He does not care one bit about past lessons. He does not care about what damage or danger his whims may cause. None of that matters to him.

And voting is not how content moderation decisions should be made, at least not without significant effort and education going into the process. Merely asking people “yes or no” without detailing the tradeoffs, or the nuances, or the specific reasons why suggests a lack of concern not just for how all of this plays out, but for having an informed public weighing in at all.

He is, of course, free to do all of that (within certain limits). But it does not mean that people will enjoy being on is site, or that advertisers will feel comfortable putting their brands on the site. It has convinced me to spend less time there, as it does not feel safe at all, and I no longer have any confidence that there are people in a decision-making role at the company who can be trusted to want to do the right thing, even when the right thing may be impossible to do.

Musk does not care about doing the right thing. He cares about attention. It’s a choice he is free to make. But it’s not one that I need to support.

Filed Under: content moderation, donald trump, elon musk, polls, process
Companies: twitter

USTR's Weakass Response To TPP's IP Chapter Leaking

from the *cough*-bullshit-*cough* dept

We already wrote about the leaking of a recent draft of the IP chapter of the TPP agreement — almost two years since the previous leak. While we’re going to have some more posts digging deeper into many of the horrific problems with the agreement (and how it was created), first I just wanted to note — and to respond to — the USTR’s weakass response to both the leak and the outcry that has surrounded it:

The intellectual property negotiation in the Trans-Pacific Partnership discussions has not been completed and a final text has not been agreed to. We are working with Congress, stakeholders, and our TPP negotiating partners to reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values, including by seeking strong and balanced copyright protections, as well as advancing access to medicines while incentivizing the development of new, life-saving drugs.

So much bullshit in so few words. As per usual, this is the USTR at its most obnoxious and dismissive of legitimate concerns. First, while technically true that the agreement has not been completed, that doesn’t mean that (1) there aren’t substantial portions of it that are complete and (2) it does not show the US’s (and others’) negotiating points and positions on various important issues. To try to dismiss the concerns by arguing it’s not complete yet ignores that we finally know what kind of pure crap the USTR is trying to shove down the throats of the American public, which they’ve worked on for years in secret.

Second is the claim that they are working with “Congress, stakeholders and our TPP negotiating partners.” Again, let’s define those carefully. First, “working with Congress.” No, not really. As we’ve described, the access Congress has is incredibly limited. The USTR is willing to work with a few members of specific committees but when others, such as Senator Ron Wyden, sought access to the TPP documents they were greatly limited. And Wyden is not just any Senator, but the head of the Senate’s Subcommittee on International Trade, Customs and Global Competitiveness.

While he, personally, was able to go to the USTR’s offices to see the document, he would only be able to see it alone in a room. He would not be able to make any copies or take any notes. More importantly, he would not be able to bring any of his staffers who have direct technical expertise on the language — such as the staff director of that committee, who had the necessary security clearance. Think about that for a second. The USTR claims that it works with Congress, and yet it denied access to the document to the staff director of the Senate’s subcommittee on international trade. How, exactly, is that “working with Congress”?

As for the “stakeholders,” there are different kinds of “stakeholders” here and none of them are the American public. The USTR has Industry Trade Advisory Committees (ITACs). These are representatives of legacy industries. Take a look at the list of industries represented. Where are the current innovators in that list? You won’t find them. What you find is a big list of last century’s industries — the legacy players who are more interested in protectionism and blocking competition than in innovation.

Now, let’s look specifically at the members of the “Intellectual Property” ITAC. It’s all companies or trade groups which represent big, old, legacy players, who have strong interest in protecting their position, not in innovating and disrupting. The RIAA. GE. Johnson and Johnson. Verizon. The Executive Director of the “Coalition for Intellectual Property Rights”? Really? Could they put together a more biased group of people? Doubtful. Who on that list is looking out for the public interest? Who on that list is looking out for innovators? The answer is absolutely no one.

That group is the main “stakeholder” that the USTR is referring to. They get much greater access to the negotiating texts than most of Congress does. Then there’s a second class of “stakeholders” which the USTR pretends to involve in the process. These are the “civil society” and public interest groups — folks like Public Citizen, KEI and EFF — who have been working hard to raise the concerns of the actual public and society. The USTR doesn’t share crap with them. Nothing. Literally nothing. What they do is every so often, if there is time and space permitting, let those groups hold “stakeholder meetings” in which they can present their arguments to the negotiators.

The USTR pretends this is “transparency” and “working with.” It is neither. Transparency is about sharing the details of what the USTR is doing in order to get feedback. Every so often “listening” to concerns of people who don’t know for sure what’s in the document is not transparency, and it’s hardly “working with” those stakeholders. Is it really any surprise at all that when the only stakeholders who matter, the IP ITAC, all represent legacy industries that what comes out from the USTR is a bloated piece of crap designed to protect their interests against the rights of the public?

Third, the idea that the end result of this process is designed to “reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values.” Again, that’s not true. Which “innovative American industries” are actually represented on that list? Biotech, maybe, but the rest are all legacy players holding onto their markets, not creating economic growth. That doesn’t promote high paying jobs — it lets companies block out real innovation, slow down growth and limit jobs.

Fourth, “including by seeking strong and balanced copyright protections.” Ha! First off, nothing in the released text suggests any look towards “balanced” copyright protections. It’s entirely about locking in the worst of the worst, making an end run around Congress to block any potential future copyright reform that would fix many of the problems of today’s copyright law. TPP is a time bomb designed to subvert real copyright reform. Just the fact that the statement itself argues that “strong” copyright protections are necessary for “balance” suggests that the USTR is not only biased, but totally clueless about the state of copyright law today. Over and over and over again, we’ve seen that real innovation comes from allowing much greater flexibility and user rights — not in ratcheting up enforcement and restrictions on innovation. Yet that’s what the USTR gives us.

Finally, “incentivizing the development of new, life-saving drugs” may be the most sickening, disgusting and dishonest claim of them all. Whoever wrote this statement should look themselves in the mirror and ask themselves, seriously, how many people they personally are helping to die. The patent portions of the TPP will kill many, many people by guaranteeing that they cannot possibly get access to life-saving drugs. The USTR is parroting the blatant lies of the pharmaceutical industry, who falsely argue that they need strong patent protection in order to “incentivize the development of new life-saving drugs.” But there is little evidence to support this, beyond the whining complaints of the pharma industry. Most of the actual discoveries today are really done by universities and other research institutes, often funded by federal grants. It’s only late in the process that the pharmaceuticals come in and grab the patents and then seek to focus on which drugs will be most profitable — not which will save the most lives.

This is why the USTR and the rest of the administration fought so hard against revealing this text all along. They know that their arguments are weak excuses for legacy players seeking blatant protectionism and against the public interest and the interest of actual innovation. The former USTR, Ron Kirk, specifically had stated that if the text of the TPP were public it would make it very difficult to approve, and now we know why. Because it’s the worst form of political cronyism by the USTR, giving lots of favors to legacy industries at the expense of the public. When the USTR is unwilling to be transparent or have an open and full discussion with the public, it is not representing the interests of the American public. It is trying to pull a fast one on us.

Filed Under: copyright, patents, process, secrecy, stakeholders, tpp, transparency, ustr

Yes, The IPAA Is A Serious Problem: Both In Process & Substance

from the but-doesn't dept

Last week, we were among the first to call attention to the fact that Lamar Smith and the House Judiciary Committee were seeking to rush through an IP-related bill which was similar to a small part of SOPA. We noted at the time that this was a much smaller issue than the key points in SOPA that everyone objected to, but our main concern was the failure in process. The fight over SOPA was as much a complaint about the process by which IP bills get passed as it was about the substance — and this is a point that Lamar Smith and the House Judiciary Committee clearly still have not realized.

In the wake of this, BNA’s Tamlin Bason correctly noted a few factual errors in what a few of us had originally published about the bill. For example, I flipped the setup of the bill, saying that the attaches would be moving from USPTO to Commerce, rather than the other way around, as is the actual case (though, confusingly, the bill also elevates a role from the USPTO into Commerce). I admit that this was a mistake in the writeup, though one that had little bearing on the actual issues raised by the bill and the process by which it was being rushed through. In fact, the process itself was partly to blame. We were told about the existence of this bill and the fact that there would be a markup with less than 24 hours notice last Monday, giving us little time process all the fine print.

While supporters of the Judiciary Committee are now using these minor mistakes to claim that there’s nothing at all wrong with the IPAA, that’s simply incorrect. Gigi Sohn’s careful analysis of the bill shows where there are serious concerns in the substance, mainly in the fact that the role of the IP attache continues to be to only push one side of the equation (enforcement) and completely ignore important limitations and exceptions. On top of that, it leaves the door open to massive expansion of the program. This is exactly how we described it in our original post: a way to expand this program, and a questionable way to get US diplomats doing what’s in Hollywood’s best interest, not the public’s:

Remember when everyone thought the Intellectual Property Enforcement Coordinator (IPEC) only had authority to act with regard to “enforcement” as opposed to other IP policy matters? That limitation is nowhere to be found in the 2008 legislation that created the position or in its legislative history, and there is nothing in this bill that limits the Assistant Secretary’s powers either.

In addition, the Secretary of Commerce is given carte blanche to hire as many Deputy Assistant Secretaries to help as the USPTO can afford. This means that overnight, the USPTO would become the home of yet another office dedicated wholly to the protection of intellectual property.

Have we told you that the USPTO already has personnel dedicated to Intellectual Property Enforcement? It should come as no shock to anyone that these new positions, as well as the attache positions, are likely to be filled by those who believe that more IP enforcement is always better.

In fact, as Gigi points out, the role that will be elevated is the Administrator for Policy and External Affairs, which will become the Deputy Assistant Secretary of Commerce for Policy and External Affairs — a much more high profile position. It’s worth noting that the job is currently held by Shira Perlmutter, an infamous copyright maximalist, former executive VP of the IFPI as well as IP Policy boss at Time Warner. Think she’s going to push for more exceptions and limitations? Yeah, right.

But, honestly, the bigger complaint here is still the process itself. People complained about SOPA being negotiated in back rooms without a chance for real public input. Just because Smith and the HJC chose a seemingly “boring” piece of SOPA to try to rush through without people noticing, don’t think this wasn’t a deliberate decision. Of course they chose a boring piece of SOPA. It was a test to see if people were really that concerned about the process, and to see if they could sneak through this bit of SOPA without anyone noticing. The fact that people spoke up stopped that temporarily, but these attacks on minor errors in the initial rushed writeups shows that the HJC is now trying to minimize the criticism — though it still hasn’t actually released the draft of the bill for public review. While Reddit has been saying that there’s a vote on the IPAA on Wednesday, it doesn’t appear to be on the schedule yet, though we have heard rumors of Friday or early next week from different people.

Smith and the HJC could have avoided this whole mess by doing something simple: being open and releasing the bill and letting the public react to it before rushing it through markup. Nancy Scola, over at ReadWriteWeb has a really good writeup on Lamar Smith’s failings with this bill, which focus on the process failures, and the fact that Smith clearly tried to rush this through:

Fifty days.

That’s the median time it took for eight legislative bills – on economic espionage, identity theft, abortion in the District of Columbia – to circulate in the House of Representatives before they were put on the agenda for Tuesday’s markup session by the House Judiciary Committee.

Zero days.

That’s how long the ninth bill on the agenda, a measure submitted by Judiciary chair Lamar Smith, existed before it was submitted for Tuesday’s markup. Unlike the other eight (H.R. 6029, H.R. 4362, H.R. 3803… ), Smith’s Intellectual Property Attaché Act didn’t even have a number. It had yet to be introduced into the House legislative system.

That’s legislating the future of copyright, the Internet and creative content, Lamar Smith-style.

As Scola points out, it’s clear that IPAA was a “trial balloon” to see if they could sneak IP stuff through in a post-SOPA era: pick something that is good for his Hollywood backers, but which is “maybe just dry enough” that it can fly below the radar and get passed.

We apologize for making a small error in our initial post — though, we likely wouldn’t have done so if Smith had done as he supposedly promised other members of Congress and released the draft long before it went through the markup process. Instead, by trying to sneak stuff through and see if anyone was paying attention, we missed one minor detail in the bill, but not the larger concern nor the serious process issues. If the HJC and Lamar Smith don’t want to see these kinds of reactions, they should be a hell of a lot more open about what they are trying to do. But, of course, that might make it more difficult to get Hollywood’s agenda to move forward. I guess that’s the dilemma they face.

* The initial report also stated that Darrell Issa was a co-sponsor of the bill. Scola’s report quotes his office saying that it’s simply untrue and that Issa is not a co-sponsor. We’ve heard similar things as well, and a few others named in the original report have since said they, too, were not co-sponsors.

Filed Under: copyright, diplomats, house judiciary committee, ipaa, lamar smith, process, transparency

How Senator Wyden's PIPA Filibuster Will Work, And What Harry Reid Will Try To Do To Kill It

from the cloture dept

Last month, Senator Harry Reid decided that the massive and growing public outcry against SOPA shouldn’t be of any concern at all to the Democratic Party in the Senate, and announced plans to bring the Senate’s companion bill, PROTECT IP (or PIPA) to the floor, in an attempt to get around Senator Ron Wyden’s hold on the bill (Wyden has been joined by Senators Rand Paul, Jerry Moran and Maria Cantwell, in objecting to the bill and promising to fight against it). As has been noted, Senator Wyden has promised to read aloud the names of those who have signed a petition against the bill.

There has been some confusion over the whole process of the filibuster, as well as the process of the “cloture” vote to both get around the “hold” on the bill, as well as end the filibuster. Some have insisted that Wyden simply won’t get to speak on the floor at all if there are the necessary 60 votes for cloture. So, thankfully, Ernesto Falcon at Public Knowledge has put together a fantastic post that explains the hold/cloture/filibuster process and more or less explains what will happen at the end of January if Reid can get the votes to get cloture:

On January 23rd, the United States Senate will reconvene to begin legislative business for 2012. After the first order of business is taken care of, Majority Leader Harry Reid will then continue the process he started on December 17th of moving PIPA towards a Senate floor vote. This process is known as invoking “cloture,” which is a rule that allows any Senator to impose a 30 hour time limit on debate subject to three-fifths of the Senate agreeing to end debate. Senator Ron Wyden has stated he will filibuster PIPA along with Senators Jerry Moran, Maria Cantwell, and Rand Paul and together they will use the full 30 hours available resulting in the cloture vote being held the next day.

On January 24th, Majority Leader Reid?s cloture motion will have matured its 30 hours and he will then be allowed to call for an up-or-down vote on moving forward to consider PIPA. If three-fifths of the U.S. Senate agree by voting yes on cloture (ending debate), then the bill can be taken up for consideration and the process where Senators can offer amendments will begin as well as another cloture motion (resulting in another 30 hours of debate). The general rule of thumb is a bill that has 60 Senators in support of its passage will take about three days to pass the U.S. Senate.

However, if 60 Senators do not vote yes on cloture, then Senators Wyden, Moran, Cantwell, and Paul will be allowed to continue to speak in opposition to PIPA forever. That being said, what would likely happen in the aftermath if PIPA fails to gain 60 yes votes is the bill is withdrawn and a compromise is negotiated. If no compromise is possible, then the bill officially dies. It is important to note that three-fifths of the Senate must vote yes to move PIPA forward. For example, if 59 Senators voted yes on cloture and 41 Senators voted present or do not vote at all, it fails to pass. The key factor in cloture is three-fifths of the Senate voting yes on cloture and not how many votes are against PIPA.

In other words, as we noted at the time, the race is now on for an additional 20 Senators to sign on with the existing 40 supporters of the bill. If supporters can’t find 20 more Senators willing to put their name on the record as supporting PIPA, then the bill likely won’t move forward. They already have 40 Senators signed on — putting their names on a bill that sets up the fundamental legal and technological framework to censor the internet in the US. But, over the last few weeks, this bill has certainly become more toxic as people have spoken out. Unfortunately, it’s not toxic enough, and there are plenty of out-of-touch Senators, who don’t even realize what’s in the bill and what its likely impact will be. That’s why there’s basically three more weeks in which to make it clear to both supporters of PIPA, as well as those who haven’t yet taken a side, that supporting this bill is a huge mistake with serious consequences. If you do have a chance to go to a Town Hall meeting, or otherwise meet your Senator, Public Knowledge has also put together a handy information packet (pdf) with some quick points about the bill, and some sample questions you might want to ask your Senator.

Filed Under: cloture, copyright, filibuster, harry reid, pipa, process, protect ip, ron wyden, senate

Public Citizen & EFF File For Sanctions Against Anti-P2P Lawyer Evan Stone

from the due-process dept

Remember Evan Stone? The anti-P2P lawyer (not the porn actor), who has been filing a ton of mass infringement lawsuits on behalf of porn companies. Like all of these lawsuits, the real intent is to frighten people into paying up prior to any trial. It’s using the judicial system as a business model. In one of the lawsuits Stone filed for Mick Haig Productions, the judge wisely asked Public Citizen and EFF to act as counsel for the John Does who had been sued, to represent their interests before allowing Stone to move forward with the discovery process (which would allow him to subpoena ISPs to get the names associated with various IP addresses). Public Citizen and EFF filed motions concerning some of the problems with the overall case and the judge refused to allow discovery while considering those motions. However, Paul Levy at Public Citizen discovered that Stone had gone ahead and sent out subpoenas anyway, and some ISPs had already started turning over the info.

As Levy noted in a letter to Stone, this appeared to be a gross violation of legal ethics. A couple days after receiving this letter, Stone dropped the case with a petulant letter to the judge, blaming the judge for appointing lawyers who actually stood up for their clients’ rights, rather than rolling over and allowing discovery. However, in the initial letter, Levy also asked Stone to provide details on all of the subpoenas that he issued, along with the cover letters to ISPs and details of any other communication with those ISPs. Finally, he wanted to know if anyone whose identity had been revealed through these questionable means had paid up and how much they had paid.

It turns out that Stone has refused to respond to these requests (including multiple phone calls to try to reach him), obviously hoping that Public Citizen and EFF would go away. Knowing Paul Levy, he’s not the sort of person who gives up easily. Public Citizen and EFF have now filed a motion with the court asking the court to order Stone to provide this info, and then, once the info is provided, to determine whether the fault is Stone’s or his clients, and to then either order attorneys’ fees, sanctions or both. I’ve included the motion below, but here’s the key part:

Mr. Stone surreptitiously issued unauthorized subpoenas to an unknown number of internet service providers (“ISPs”), demanding the disclosure of the identities of anonymous Defendants so that he could pressure the alleged downloaders of pornography into settlement. Incredibly, months later Mr. Stone participated in the briefing of the very question of whether he should be allowed to issue discovery… all the while allowing ISPs to process the improperly issued subpoenas. Plaintiff’s counsel’s behavior demonstrates blatant contempt for the rule of law and the authority of this Court.

Moreover, the full extent of Mr. Stone’s actions is not yet known because he refuses to meet and confer. Accordingly, rather than requesting a specific form of relief, Defendants instead ask this Court to order Mr. Stone to fully account for his actions so that the Court and Defendants can be made aware of the harm inflicted and so that they may respond accordingly. Once the Court has ascertained the full extent of Mr. Stone’s actions, and the extent to which his client should properly bear responsibility for his actions ostensibly performed on his client’s behalf, the Court can then decide whether an award of attorney’s fees under 17 U.S.C. § 505, discovery sanctions under the Federal Rules, or some other relief is appropriate. Defendants ask this Court to impose some sanction for Mr. Stone’s conduct to send a message that should hardly be necessary: abusing the Court’s authority to improperly investigate and push settlements onto litigation opponents will not be tolerated.

Filed Under: discovery, evan stone, process, sanctions
Companies: eff, mick haig productions, public citizen

Mass Copyright Lawsuit Lawyer Petulantly Drops Lawsuit After Called Out For Apparent Ethics Violations

from the nice-try dept

One of the lawyers who has been at the forefront of filing many of those massive P2P infringement cases for porn producers, with the intent of getting people to pay up “pre-settlement” fees to avoid an actual trial (and being accused publicly of downloading porn), Evan Stone, keeps running into problems. Stone, who apparently only became a lawyer a few months ago, seems to have pushed his luck in yet another case, not expecting lawyers on the other side who might recognize what was going on. However, Public Citizen and the EFF, acting as lawyers for those being sued, discovered that Stone had sent subpoenas to ISPs seeking the identity of file sharers even though the judge in the case had not yet determined if such subpoenas would be allowed.

It appears that, as in other similar cases, Stone filed a bunch of John Doe lawsuits on behalf of a porn producer, in this case Mick Haig Productions. Public Citizen and EFF were appointed to defend those sued while the court determined if the overall lawsuit was appropriate. While the court was still considering the question of the legitimacy of the lawsuit and any subpoenas attached to it, Stone apparently just went ahead and sent subpoenas to various ISPs demanding the identity of those accused of file sharing. After discovering this, Paul Alan Levy wrote Stone a letter (pdf) pointing out that this was a serious ethical breach. The full letter is embedded below and it’s a must read, but here’s just a snippet:

Inquiring further, I was able to obtain a copy of the subpoena that you sent to Comcast and of your cover letter, which concealed from Comcast the fact that Judge Godbey had never granted you permission to serve subpoenas in this case. Inquiring still further of other major ISP’s, we have learned that you have served other subpoenas in the case, that the date required by one of the notices of subpoena for a response to avoid identification is January 31, and that some ISP’s have provided you with identifying information.

We are very disturbed by this information. Because the rules of procedure to not allow you to take discover at this phase of the lawsuit without express judicial permission, the subpoenas that you have issued to the ISP’s that we have been able to contact to date essentially misrepresented that discovery was open in the case, and gave you access to information to which you are not entitled. It is, as well, arguably a serious abuse of process that may be independently actionable. Given the fact that your standard practice is to send settlement demand letters to Does once they are identified, we must acknowledge the possibility that you have been communicating with our clients. Yet, because those clients are represented by counsel (until the disposition of the discovery motion), your contacting them directly would be a serious violation of legal ethics, because we have never given you permission to contact our clients.

The full letter not only asks him to withdraw the subpoenas, but also to provide Public Citizen and the EFF with the details of the subpoenas issued, apparently for the purpose of asking the court to sanction Stone for his apparent abuses.

Stone, perhaps realizing he was in a bit of trouble, responded by dismissing the lawsuits. Though he did so somewhat petulantly. His filing is also included below, but in it he mocks Public Citizen and the EFF, and complains that the court appointed them in the first place, claiming they are “renowned for defending internet piracy and.. for their general disregard for intellectual property law.” He also mocks their response to his original motion as “absurd.” Of course, in all the childish lashing out, he never seems to mention the fact that he subpoenaed info from ISPs almost certainly in violation of the rules of procedure. Instead, he just claims that the process is taking too long, so the plaintiff “feels it has lost any meaningful opportunity to pursue justice in this matter.” That’s a pretty laughable statement.

Of course, now the question is whether or not Public Citizen and the EFF will continue to seek relief from the court for Stone’s actions.

Filed Under: copyright, evan stone, process, subpoenas
Companies: eff, mick haig, public citizen

Important Reminder: Your Innovations Are Not Immortal

from the changing-with-the-times dept

Brian sends in a short blog post from Scott Anthony, highlighting a key point we’ve tried to make around here for years, Your Innovations Aren’t Immortal:

Take a deep breath, and repeat after me: “My [business model, product, business unit, brand, offering] has a finite life. I’m going to make that life as happy and productive as possible, but I also have to think about what’s next.”

This is a major issue, and could be the underlying theme of a good percentage of posts around here. Companies or individuals who think that they have some inalienable “right” to have their innovation remain at the top of the market, even as others out-innovate them. It comes from a massive sense of entitlement, that if you innovated once, no one else should be allowed to out-innovate you, and the government should somehow protect your position as an innovative leader. We’ve jokingly referred to this as companies charging others with “felony interference with a business model.”

Innovation is an ongoing process, and that’s true for everyone. It’s not a once-and-done thing, and whatever innovation you did yesterday is obsolete. You need to keep innovating. Paraphrasing what someone else in the link above says, you need to innovate at the pace of the market. The problem is that many try to use politicians and the court system to slow down the market, rather than innovating along with it.

Conceptually, this is difficult for many. They feel a sense of accomplishment for what they’ve done, and would like to have the time to bask in that accomplishment. But history has shown that there’s no time to bask — only time to keep innovating. And while that may not seem to be as much fun, it does give you an ongoing sense of accomplishment and makes the world better for everyone at the same time. Who would complain about that, other than those who can’t keep up?

Filed Under: business models, innovation, ongoing, process

NY Times On How Innovation Is A Process

from the this-theme-is-growing dept

For years, we’ve been among a group of folks pushing for more people to recognize that innovation is an ongoing process, rather than a burst of inspiration, as is often suggested. This may seem like a minor point, but it’s actually quite an important one when it comes to things like public policy on encouraging innovation, including such things as patent laws. Patents actually do make some sense if innovation really is a burst of inspiration. But when that burst of inspiration is a lot less important than the ongoing process of trying, adjusting, trying, adjusting — and when things like patents make it harder for people to try and adjust — then it’s important to understand the distinction. Last month, Business Week ran a nice article on how innovation was a process, and now it appears that the NY Times has its own, similar, article. You could say that the NY Times “stole” the idea from Business Week — or you could just say that both are realizing something important that’s quite fundamental, and are doing their best to innovatively get that message out to the world.

Filed Under: epiphany, innovation, process

Innovation Is A Process, Not A Burst Of Inspiration

from the the-long-nose dept

For years, we’ve been pointing out that innovation is an ongoing process rather than a distinct event. While this may sound somewhat obvious, when you combine this with the difference between invention and innovation and the fact that innovation is often the more important piece for overall progress, it’s curious that our patent system is designed to protect that initial spark of invention — at the cost of hurting that ongoing process of innovation by making it more difficult and expensive. Business Week is now running an article that seems to recognize this, as it highlights the importance of the ongoing process of innovation (though, it doesn’t get into the question of patents and how they play into things). It does note that too many people are only focused on that burst of invention, rather than the process of innovation — which is understandable, but problematic if we really want to encourage innovation. It’s good to see a publication like Business Week highlight this important point, because as more people start to understand this, it’s more likely that they’ll understand the dangers of our current patent policy.

Filed Under: innovation, patents, process