I fought the law...and won (sort of)

This TechDirt t-shirt seems appropriate.

As you may remember, last month I received an email notification from Blogger (Google) that they had received a DMCA takedown notice for one of my blog posts. Because the blog post was about Gregory Evans, I speculated that he might have been involved in the takedown. Although to be clear, it was Google who received the actual takedown notice, and all I got was a notification about the notice, so at the time I was never actually aware of 1) who sent it; and 2) what content of the blog post was supposed to have been infringing.

You can read the original blog post here (I have since republished it). The entire blog post was authored by me with the exception of two small screenshots from the MIS Training Institute's homepage which reflected substantive changes to their speaker lineup and the comparison screenshots reflected that change. The rest of the blog post was the copy of an email that I wrote to the MIS Training Institute and links to other posts.

Blogger told me that they would post the takedown notice on Chilling Effects. That never happened. Nonetheless, without any evidence of how my blog post might have been infringing, I filled a counter-notice essentially arguing fair use of whatever content I had used.

Yesterday, I received notice that Google had completed processing my counter notification and had reinstated the content in question. What content was that? Of course, they didn't tell me. My best guess is this: in the original blog post, I included the text of an email that I wrote to the MIS Training Institute. In that email, I linked to a CBS Atlanta expose of Evans that was posted on YouTube. That video had subsequently been taken down (you can see if you follow the link here). Linking to infringing content could be considered a DMCA violation. On the other hand, if the infringing content has already been taken down, then I'm not really linking to infringing content anymore, because the content doesn't exist. Again, I have no evidence that this is why my blog post has been restored, but it's my only reasonable guess at this point.

The DMCA process is broken. It is largely automated which means that you can't really expect to ever speak to a human being to help sort out your problem. If your blog is hosted (as mine is), the hoster receives the takedown notice, and you may never see it (as I never did). You might guess that Google receives hundreds or thousands of takedown notices every day. Mine wasn't worth anyone's individual attention. Chilling Effects may be a good idea in theory, but in practice the site is difficult to use. My attempts to contact the site's administrators to help in finding my notice (if perhaps it was posted and I couldn't find it) went unanswered.

In the end, my content is back. Again, I'm not quite sure what content was at question, which is sort of a big deal when you think about it. How can you fight back if you don't even know what you're fighting for (or against)? I may have been lucky. But others might give up more easily.

The DMCA process is broken. If we want content creators to thrive, it's a problem we're going to have to confront.

Law in Plain English: ABC, Inc. v. Aereo, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: ABC, Inc. v. Aereo, Inc.

Argument: Apr 22, 2014 (Aud.)

Aereo's array of dime-sized antennas.

Discussion: Aereo uses thousands of individual antennas to receive broadcast television channels, and Aereo assigns an individual antenna to each of its subscribers. Aereo transmits to its subscribers broadcast television programs over the internet for a monthly subscription fee, but it does not have any license from copyright holders to record or transmit their programs. The 1976 Copyright Act gives copyright owners an exclusive right "in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly." 17 U.S.C. § 106(4). ABC and other holders of copyrights in programs broadcast on network television moved for a preliminary injunction barring Aereo from transmitting programs to its subscribers while the programs are still airing, claiming that those transmissions infringe their exclusive right to publicly perform their works, as defined by 17 U.S.C. § 101.  The District Court denied the motion. It concluded that, although the Plaintiffs had demonstrated a likelihood that they would suffer irreparable harm in the absence of a preliminary injunction,an injunction would severely harm Aereo, likely ending its business. The balance of hardships did not tip "decidedly" in favor of the Plaintiffs and an injunction "would not disserve the public interest." The Second Circuit affirmed, finding that Aereo's transmissions of unique copies of broadcast television programs created at its users' requests and transmitted while the programs are still airing on broadcast television are not "public performances" of the Plaintiffs' copyrighted works.

Issue: The question before the Court is whether a company “publicly performs” a copyrighted television program when it retransmits a broadcast of that program to thousands of paid subscribers over the Internet.

Holding: In a 6-3 decision, the Supreme Court ruled that Aereo performs petitioners’ works publicly within the meaning of the Transmit Clause. The practical impact of this decision is that Aereo's business model is illegal.

I received a DMCA takedown notice for a blog post I made three years ago about Gregory Evans

Yesterday I received a DMCA takedown notice for a blog post I made about three years ago about Gregory Evans. The entire blog post was authored by me with the exception of two small screenshots from the MIS Training Institute's homepage which reflected substantive changes to their speaker lineup and the comparison screenshots reflected that change. The rest of the blog post was the copy of an email that I wrote to the MIS Training Institute and links to other blog posts. I can't actually link you to the post at this point because Google placed the post in a draft status. If I were to republish it without changes, it could be considered a violation and count against my account. So you'll just have to take my word about the content of the post. 

This morning I filed a counter-claim disputing the takedown. In the counter-claim, I argued that the use of the very small screenshots was fair use. To be perfectly clear, the takedown notice itself does not yet appear to be available, and Google's email to me does not say who filed it. Although my counter-claim addresses the screenshots from the MIS Training Institute's homepage, I suspect (although I have no evidence at this point) that it was not MISTI but rather Gregory Evans who actually filed the takedown notice. This would be particularly interesting because there is certainly no content on my blog post created by him. My best guess is that I linked to someone else (perhaps a link to Attrition.org) and he doesn't like that very much. But again, that's just a guess.

At this point, I don't have any more information, but I'll certainly keep you updated. If you do have questions, please feel free to ask.

Law in Plain English: Petrella v. Metro-Goldwyn-Mayer, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Petrella v. Metro-Goldwyn-Mayer, Inc.

Why did the Supreme Court take this case? In this case, the Ninth Circuit held that the defense of laches is available in copyright cases. In the Fourth Circuit, there is no laches at all. If a copyright suit is brought within the statute of limitations, it may go forward. In the Eleventh Circuit, "there is a strong presumption that a plaintiff's suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches be recognized as a defense." Even if laches is found, "laches serves as a bar only to the recovery of retrospective damages, not to prospective relief."  In the Second Circuit, laches is available as a bar to injunctive relief but not to money damages. In the Sixth Circuit, laches is available in only "the most compelling of cases." So-called "circuit splits" are perhaps the most common way cases make it to the Supreme Court.

Argument: Jan 21 2014 (Aud.)

Background: In 2009, Paula Petrella filed an action for copyright infringement, unjust enrichment and accounting against Metro-Goldwyn-Mayer, Inc., and others. According to Petrella, the defendants infringed her purported interest in a book and two screenplays that together allegedly formed the basis for the 1980 motion picture Raging Bull. Petrella's father Frank, who wrote the 1963 screenplay, died in 1981. In 1991, Petrella successfully renewed the copyright in the 1963 screenplay. Because her father died within 28 years of the original copyright, the renewal rights vest in the author’s heirs (Paula) regardless of whether the author assigned the renewal term of copyright to a third-party prior to his death. Petrella renewed the copyright and knew of her claims in 1991, but did not file a lawsuit until January 2009. Because of the three-year statute of limitations prescribed by Congress in 17 U.S.C. § 507(b), Ms. Petrella claimed damages only for the copyright infringement occurring between 2006 and 2009.

The District Court granted summary judgment in favor of the defendants, holding that Petrella's claims are barred by the equitable defense of laches. The Ninth Circuit affirm.

Issue: The question before the Court is whether the nonstatutory defense of laches is available without restriction to bar all remedies for civil copyright claims filed within the three-year statute of limitations prescribed by Congress, 17 U.S.C. § 507(b).

Holding: In a 6-3 decision, the Supreme Court ruled that laches cannot be invoked as a bar to Petrella’s pursuit of a claim for damages brought within §507(b)’s three-year window. By permitting a successful plaintiff to gain retrospective relief only three years back from the time of suit, the copyright statute of
limitations itself takes account of delay.

Law in Plain English: Lexmark International, Inc. v. Static Control Components, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Lexmark International, Inc. v. Static Control Components, Inc.

Argument: Dec 3 2013 (Aud.)

Background: Lexmark, a producer of laser printers and toner cartridges for its laser printers, developed microchips for both the toner cartridges and the printers so that Lexmark printers will reject any toner cartridges not containing a matching microchip. Static Control Components identified how to replicate the cartridge microchips. Lexmark then sued Static Control for copyright violations related to its source code in making the duplicate microchips. Static Control made a counterclaim under federal and state antitrust and false-advertising laws (including the Lanham Act). Lexmark successfully moved to dismiss all of Static Control's counterclaims. The Sixth Circuit affirmed the district court's dismissal of Static Control's federal antitrust claims, but reversed the dismissal of Static Control's claims under the Lanham Act and certain claims under state law.

Issue: The question before the Court is to determine the appropriate analytic framework for determining a party’s standing to maintain an action for false advertising under the Lanham Act. The three competing possibilities are: (1) the factors set forth in Associated General Contractors of California, Inc. v. California State Council of Carpenters as adopted by the Third, Fifth, Eighth, and Eleventh Circuits; (2) the categorical test, permitting suits only by an actual competitor, employed by the Seventh, Ninth, and Tenth Circuits; or (3) a version of the more expansive “reasonable interest” test, either as applied by the Sixth Circuit in this case or as applied by the Second Circuit in prior cases.

Holding: In a unanimous decision, the Supreme Court ruled that Static Control has adequately pleaded the elements of a Lanham Act cause of action for false advertising. The Court dismissed the three possibilities above and adopted a fourth test: the cause of action extends to plaintiffs who 1) fall with in the zone of interests protected by that statute and 2) whose injury was proximately caused by a violation of that statute. To come within the zone of interests in a suit for false advertising, a plaintiff must allege an injury to a commercial interest in reputation or sales. A plaintiff must show economic or reputational injury flowing directly from the deception wrought by the defendant’s advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff.

Here are my ShmooCon submissions

I made two submissions to ShmooCon this year. The first is a full-fledged talk and the second is a "One Track Mind" 20-minute talk. Here are the abstracts, and wish me luck!

©opyright Gone Wrong: Our Broken System and How We Can Fix It

The Constitution grants the Congress the power to enact intellectual property laws "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Since the founding of our country, protection of intellectual property has undergone several systematic changes that have extended the time rights are protected. Additionally, protections have gotten increasingly aggressive and oppressive. This presentation will briefly discuss the history and development of IP law, and then focus on the more recent and onerous provisions that have become embroiled in controversy. Along the way, we'll talk about the Digital Millennium Copyright Act,  copyright and patent trolls, and other methods of intellectual property abuse. Lastly, we will take a look at some of the ways we can reform our broken system to free consumers from burdensome restraints, while at the same time protecting the intellectual property of the creators.

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

Law in Plain English: Shelby County v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

See here for a previous discussion and more background on the constitutionality of the Voting Rights Act.

Shelby County v. Holder

In 2006, Congress reauthorized Section 5 the Voting Rights Act (VRA), which kept in place a pre-existing coverage formula in Section 4(b) which determined which jurisdictions are required see seek preclearance for changes to voting procedures. Shelby County, Alabama filed a lawsuit in the U.S. District Court for the District of Columbia, seeking a declaratory judgment that the Voting Rights Act (specifically, Sections 4(b) and 5) were unconstitutional. The District Court disagreed and granted summary judgment to the Attorney General. A divided Court of Appeals affirmed. The question before the Court was whether Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. In a 5-4 decision, the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

Law in Plain English: Bowman v. Monsanto Co.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Bowman v. Monsanto Co.

Monsanto developed and patented genetically modified seeds which they sold to farmer Bowman. Bowman planted the seeds, and then saved (and used) the harvested seeds for later plantings. Monsanto then sued Bowman for planting the saved seeds as an infringement of Monsanto's patents. Under the patent exhaustion doctrine, once an authorized sale of a patented article occurs, the patent holder’s rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint (this is analogous to the first-sale doctrine in copyright and trademark law). However, in this case, patent exhaustion would allow farmers to buy Monsanto's patented, genetically modified seeds just once and then use the harvested seeds again and again without compensating Monsanto. The District Court and the Federal Circuit agreed with Monsanto that patent exhaustion shouldn't apply, and as a result, Bowman's use of the harvested seeds infringed on Monsanto's patents. The questions before the Court were whether the Federal Circuit erred by (1) refusing to find patent exhaustion in relation to the genetically modified seeds; and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies. In a unanimous decision, the Supreme Court ruled that patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.As a result, Bowman's conduct infringes on Monsanto's patents. The practical impact of this decision may reach beyond genetically modified seeds to other areas--any areas where copies of a particular item can be made.

Law in Plain English: Moncrieffe v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Moncrieffe v. Holder

Moncrieffe, a Jamaican native and legal permanent resident in the United States, pled guilty to possession of marijuana with intent to distribute under Georgia law. The Department of Homeland Security (DHS) sought to have Moncrieffe removed under a federal law that requires removal (deportation) for controlled substances offenses; and "as an aggravated felon" because the conviction was for a drug trafficking crime. Moncrieffe alleged that the punishment for his crime was equivalent to a misdemeanor, and as a result he shouldn't be subject to removal. The question before the Court was whether Moncrieffe's conviction under Georgia's law constituted an aggravated felony for the purposes of removal. In a 7-2 decision, the Supreme Court ruled that Moncrieffe’s conviction for a marijuana distribution offense faild to establish that the offense involved either remuneration or more than a small amount of marijuana. Therefore, it was not an aggravated felony. As a result, Moncrieffe's conviction will not subject him to automatic deportation. The practical impact of this decision (and two others like it in recent years) is that low-level drug offenses, absent remuneration or a sufficient quantity of drugs so to be considered trafficking, will not be subject to automatic deportation.

Is it illegal to put the names of competitor's businesses in meta tags to draw more traffic to a website?

On Friday night, I was chatting with Bill Mihan on Facebook. He mentioned to me that he had noticed a local plumber's website that had 'roto rooter' and many other business names in his meta tags. This prompted the question: is it illegal to put the names of competitor's businesses in meta tags to draw more traffic to a website?

You know I can't avoid not knowing the answer to such interesting legal questions. :-)

A few courts have squarely considered the issue. Consider the case of N. Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008):

NAM designs and manufacturers physiotherapeutic spinal devices, commonly known as traction devices, which are used, for example, to treat lower back pain. Adagen is an authorized distributor of NAM's devices. Axiom, a competitor of NAM's, manufacturers a physiotherapeutic device known generally as the DRX 9000. Gibson and Exharhos are, respectively, the president and vice president of Axiom. In the present lawsuit, NAM and Adagen allege that Axiom engaged in unfair competition by infringing NAM's trademarks and by issuing false advertising regarding the DRX 9000.

The trademark infringement claims stem from Axiom's use of two of NAM's registered trademarks: the terms “Accu–Spina” and “IDD Therapy.” Axiom included these terms on its website within meta tags. Although Axiom's website never displayed NAM's trademarked terms to visitors and never mentioned NAM or NAM's products, Axiom nonetheless included the terms within its meta tags to influence Internet search engines. For instance, evidence in this case indicated that, before Axiom removed these meta tags from its website, if a computer user  entered the trademarked terms into Google's Internet search engine, Google listed Axiom's website as the second most relevant search result. In addition, Google provided the searcher with a brief description of Axiom's website, and the description included these terms and highlighted them.

After analying the use of Axiom's use of NAM's trademarks, the court concluded that

...the plain meaning of the statutory language [of the Lanham Act] clearly indicates that Axiom's use of NAM's trademarks as meta tags constitutes a “use in commerce ... in connection with the sale ... or advertising of any goods” under the facts of this case.

...

Because Axiom's use of NAM's trademarks as meta tags caused the Google search to suggest that Axiom's products and NAM's products had the same source, or that Axiom sold both lines, or that there was some other relationship between Axiom and NAM, Axiom's use of the meta tags caused a likelihood of actual source confusion.

However, in a different case (Standard Process, Inc. v. Banks, 554 F.Supp.2d 866 (E.D. Wisc. 2008)), a court came to a different conclusion:

Standard Process also alleges that Dr. Banks is liable for trademark infringement because of “initial interest confusion.” “Initial interest confusion” occurs when a customer is lured to a product by the similarity of the mark, even if the customer realizes the true source of the goods before the sale is consummated. For example, in Promatek, the plaintiff used a direct competitor's trademark in its metatags. A metatag is HTML (Hyper Text Markup Language) code that describes the content of a website, and search engines used to use them to identifying the content of a website. The Seventh Circuit found that the use of the competitor's trademark in the plaintiff's metatags diverted customers to the plaintiff's website and likely caused customer confusion.

Like the plaintiff in Promatek, Dr. Banks used Standard Process trademarks in the metatags of his website. However, today “modern search engines make little if any use of metatags.” As more and more webmasters “manipulated their keyword metatags to provide suboptimal keyword associations, search engines progressively realized that keyword metatags were a poor indicator of relevancy.”Accordingly, search engines today primarily use algorithms that rank a website by the number of other sites that link or point to it. 

In any event, even if search engines still made significant use of metatags, this case is different than Promatek. Consumers who enter “Standard Process” in a search engine may be diverted to Dr. Banks's website where, unlike the plaintiff's site in Promatek, it actually provides an opportunity to purchase the trademark holder's goods. Dr. Banks is not a direct competitor to Standard Process. Consumers will still be able to purchase unaltered SP Products on his site, so the likelihood of consumer confusion is not present here. (citations omitted)

So what sort of rule can we develop from these cases? There are two parts to this test, with a series of subparts. First, the plaintiff must demonstrate use in commerce in connection with the sale or advertising of any goods, consistent with the Lanham Act. In doing so, the plaintiff must show (1) they possessed a valid mark, (2) that the defendant used the mark, (3) that the defendant's use of the mark occurred “in commerce,” and (4) that the defendant used the mark “in connection with the sale ... or advertising of any goods.” Second, the plaintiff must demonstrate the likelihood of confusion. Seven factors are relevant when determining whether a likelihood of confusion exists: (1) the strength of the plaintiff's mark; (2) the similarity between the plaintiff's mark and the allegedly infringing mark; (3) the similarity between the products and services offered by the plaintiff and defendant; (4) the similarity of the sales methods; (5) the similarity of advertising methods; (6) the defendant's intent, e.g., does the defendant hope to gain competitive advantage by associating his product with the plaintiff's established mark; and (7) actual confusion.

As you can tell, the answer to Bill's question is not straightforward. With as little information as we have, the best answer is maybe, or it depends (don't you hate when that happens?). But what we do know now, is that it is certainly possible.

Edited to add (4/13/13): As has been suggested, many companies buy their competitor's names as Google AdWords. These decisions suggest that, at least in some circumstances, that it might be a trademark violation. However, here's an article that suggests plaintiffs rarely win trademark infringement claims involving Google AdWords. Additionally, the financial stakes don't make much sense.

DEFCON CFP submission: "©opyright Gone Wrong: Our Broken System and How We Can Fix It"

Here's my DEFCON CFP submission:

Title: ©opyright Gone Wrong: Our Broken System and How We Can Fix It

Abstract: The Constitution grants the Congress the power to enact copyright laws "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Since the founding of our country, protection of intellectual property has undergone several systematic changes that have extended the time rights are protected. Additionally, protections have gotten increasingly aggressive and oppressive. This presentation will briefly discuss the history and development of copyright law, and then focus on the more recent and onerous provisions that have become embroiled in controversy. Along the way, we'll talk about the Digital Millennium Copyright Act, copyright trolls, and other methods of intellectual property abuse. Lastly, we will take a look at some of the ways we can reform our broken system to free consumers from burdensome restraints, while at the same time protecting the intellectual property of the creators.

Bio: Michael Schearer ("theprez98") is a civil libertarian who has started numerous projects which document abuses of freedom and liberty. He is a Senior Penetration Tester at Booz Allen and a law student at UDC-DCSL. He spent nearly nine years in the Navy as an EA-6B Prowler ECMO. His military experience includes aerial combat missions over Afghanistan and Iraq and nine months on the ground doing counter-IED with the Army. He is a graduate of Georgetown’s National Security Studies Program and a speaker at ShmooCon, DEFCON, HOPE, and other conferences. Michael lives in Maryland with his wife and children.

Law in Plain English: Kirtsaeng v. John Wiley & Sons

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Kirtsaeng v. John Wiley and Sons

Kirtsaeng moved from Thailand to the United States. He asked friends and family to buy foreign edition English-language textbooks in Thailand (where the prices were cheaper),  and to mail them to him in the United States. He then sold the books, and kept the profit. Wiley sued Kirtsaeng, alleging copyright violation. Kirtsaeng claimed reselling the books was a limitation to Wiley's exclusive rights under the first sale doctrine (codified at 17 U.S.C. 109(a)). The question before the Court was whether the first sale doctrine applies to works made abroad and then imported into the United States. In a 6-3 decision, the Supreme Court ruled that the phrase "lawfully made under this title" in Section 109(a) had no geographic limitation. As a result, the the first sale doctrine does in fact apply to works made aboard and then imported into the United States. The practical impact of this decision is to give consumers greater flexibility in taking advantage of the first sale doctrine.

Incidentally, I'm not at all disappointed to report that this is my first incorrect prediction of the term:

#SCOTUS prediction: Kirtsaeng v. John Wiley & Sons, Inc. <--bit.ly/U5Rlqx
— theprez98 (总统) (@theprez98) December 24, 2012

I was pessimistic about the outcome. Personally I think Justice Ginsburg's dissent is a better reading of current copyright law, but I'm not going to object.

Prenda lawyer facing sanctions in BitTorrent copyright infringement case

A lawyer with the notorious Prenda Law (wefightpiracy.com, how cute!) firm is facing sanctions in federal court in a case involving allegations of copyright infringement via BitTorrent. Brett Gibbs must answer to the court by March 11 why he should not be sanctioned for making unsupported allegations on behalf of Ingenuity 13 LLC, an adult film company.

In his complaint on behalf of Ingenuity (see below), Gibbs alleged that a John Doe (later identified as Benjamin Wagar) downloaded a copyrighted video via BitTorrent. In the original complaint, Gibbs identified the John Doe only by an IP address, the BitTorrent client, and the time of the download.

David McAuley, writing for Bloomberg's BNA Law Reports (14 CTLR 136 (Issue No. 05, 03/01/13)), described how Gibbs identified Wagar:

Worse, it continued, was the plaintiff's methodology to identify the defendant. In a status report to the court, counsel indicated that he identified one defendant, Benjamin Wagar, by virtue of the household where the implicated IP address was located, along with eliminating females or subscribers who were 75 years old. The court rejected this approach out of hand.

The Court interprets this to mean: if the subscriber is 75 years old or female, then Plaintiff looks to see if there is a pubescent male in the house; and if so, he is named as the defendant. Plaintiff's “factual analysis” cannot be characterized as anything more than a hunch.

There was nothing to show that Wagar was the infringer, the court remarked. While it was plausible that he was the infringer, the plaintiff's deduction fell short of the reasonableness standard that Rule 11 required.

There were reasonable steps the plaintiff could have taken to factually bolster its claim, the court noted, from an old-fashioned stakeout to an assessment nearby the house to determine if the defendant had Wi-Fi, and if it was password-protected. These steps might not be perfect, but they beat, “blindly picking a male resident from a subscriber's home,” the court said.

There are a few interesting takeaways from this case. First, plaintiffs alleging as much must do more investigation than just associating an IP address with whomever might be living at the residence in question. An IP address does not equal a person. Second, the judge recognized that someone could have leeched Wagar's wireless internet. Gibbs didn't do any of this. Third, Prenda Law is getting smacked down again. They have a record as copyright trollers and this adds to their notorious reputation.

The court's order to show cause with respect to the possible sanctions for Rule 11 and Local Rule 83-3 violations is shown in full below.

  Ingenuity 13 LLC v. John Doe by   Michael Schearer

Constitutionality of the Voting Rights Act

In the wake of the Supreme Court oral arguments in the case of Shelby County v. Holder, I have engaged a number of people in debate over the core issue of the case: whether Section 5 of the Voting Rights Act is constitutional. Most of this debate has been over Twitter, which isn't the best forum for debates in general. It's also a poor means of discussing an issue that requires a considerable amount of background to bring oneself up to speed on the issue. So this post is meant to serve as that background, and as a launching pad to further debate.

The Wikipedia page is sufficiently detailed to understand the history of the Voting Rights Act in general. What we're concerned about here is Section 5, which mandates preclearance. Preclearance means that certain jurisdictions are required by law to receive federal permission for certain changes to their election law or changes to the voting location. For a list of current jurisdictions covered by Section 5, see here.

Section 2 of the VRA outlaws all of these violations; it applies to the entire country and (even in the absence of Section 5) is an extraordinarily powerful tool to remedy voting rights violations. But let's be clear in understanding that Section 5 was originally designed as a temporary, emergency provision. The reason is because it has extraordinary federalism costs by violating a state's sovereignty (elections are run by states, not the federal government; Section 5 essentially put these states and political subdivisions into federal receivership). It was justified (rightly so) by egregious voting rights violations. Enforcing the 15th Amendment outweighed the cost of intruding on a state's sovereignty.

The jurisdictions covered by Section 5 were determined by a preclearance formula outlined in Section 4(b). Here's how the Justice Department describes the formula for coverage (emphasis is mine):

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote. The Act's definition of a "test or device" included such requirements as the applicant being able to pass a literacy test, establish that he or she had good moral character, or have another registered voter vouch for his or her qualifications.

The second element of the formula would be satisfied if the Director of the Census determined that less than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50 percent of persons of voting age voted in the presidential election of November 1964. This resulted in the following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state itself and all political subdivisions of the state are subject to the special provisions. In "partially covered" states, the special provisions applied only to the identified counties. Voting changes adopted by or to be implemented in covered political subdivisions, including changes applicable to the state as a whole, are subject to review under Section 5.

In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to expire that year, and renewed them for another five years. It added a second prong to the coverage formula, identical to the original formula except that it referenced November 1968 as the relevant date for the maintenance of a test or device and the levels of voter registration and electoral participation. This addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California, Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states (Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits. 

In 1975, the Act's special provisions were extended for another seven years, and were broadened to address voting discrimination against members of "language minority groups," which were defined as persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before, Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was expanded to include the practice of providing any election information, including ballots, only in English in states or political subdivisions where members of a single language minority constituted more than five percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North Carolina, and South Dakota. 

In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it. In 2006, the coverage formula was again extended for 25 years. Section 4, along with those other sections that are dependent upon it, such as Section 5 and 8, will expire in 2031.

The key takeaway is that all of the jurisdictions that are currently covered by the preclearance requirement were determined in 1975, based on voter registration and participation data from 1964, 1968, and 1972.

The Justice Department goes on to explain how a jurisdiction can get removed from the preclearance requirement, or "bail out:"

Section 4 also provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special provisions. Originally enacted in 1965 as a means to remedy any possible over inclusiveness resulting from application of the trigger formula, Congress amended this procedure in 1982 so jurisdictions that meet the statutory standards can obtain relief. The amendment, which took effect on August 5, 1984, establishes an "objective" measure to determine whether the jurisdiction is entitled to "bailout". 

A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United States District Court for the District of Columbia. On June 22, 2009, the Supreme Court held that any jurisdiction currently required to make Section 5 submissions may seek to "bailout" from coverage if it meets the statutory criteria set forth below. 

The successful "bailout" applicant must demonstrate that during the past ten years:
No test or device has been used within the jurisdiction for the purpose or with the effect of voting discrimination; 

--All changes affecting voting have been reviewed under Section 5 prior to their implementation;
--No change affecting voting has been the subject of an objection by the Attorney General or the denial of a Section 5 declaratory judgment from the District of Columbia district court;
--There have been no adverse judgments in lawsuits alleging voting discrimination;
--There have been no consent decrees or agreements that resulted in the abandonment of a discriminatory voting practice;
--There are no pending lawsuits that allege voting discrimination; and
--Federal examiners have not been assigned;
--There have been no violations of the Constitution or federal, state or local laws with respect to voting discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly corrected, and were not repeated. 

Before being allowed to "bailout", the jurisdiction must have eliminated those voting procedures and methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register and vote and expand opportunities for voter participation, such as opportunities for registration and voting, and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral process. The jurisdiction must also present evidence of minority electoral participation. 

In addition, these requirements apply to all governmental units within the geographical boundaries of the jurisdiction. Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town, school district, or other entity within its boundaries.

The jurisdiction seeking "bailout" must publicize the intended commencement and any proposed settlement of the action; any aggrieved party may intervene in the litigation. After the granting of a declaratory judgment, the statute requires a ten-year "recapture" period. During this time, the district court may reopen proceedings should the jurisdiction engage in any conduct that would have prevented the jurisdiction from bailing out in the first instance. Under such circumstances, the district court will review the evidence and determine whether to reinstate coverage.

The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the Attorney General concludes after investigation that the jurisdiction has complied with all of these requirements. Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested in seeking "bailout" may submit a request to the Attorney General with supporting documentation and evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to determine whether the Attorney General would be willing to enter into a consent decree or would oppose the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the "bailout" petition when the litigation is actually filed.

A number of jurisdictions have successfully bailed out, but as you can see from above, it is a difficult procedure. The Northwest Austin Municipal Utility District No. 1 (NAMUDNO) had to go all the way to the Supreme Court to allow itself to bailout, even though it wasn't even created until 1987, and had no history of any voter discrimination. In fact, it doesn't even register voters. All they wanted to do was to move a polling place. But they were covered by Section 5 because they were located within Texas.

The effect of Section 5 is that any changes to voting procedures in covered jurisdictions are presumed to be discriminatory. The burden of proof is on the covered jurisdiction to prove the absence of discrimination, per the bail out requirements listed above.

Given that background, consider the first volley I made in this debate:

Your whines about the Voting Rights Act go unheard until you can legally justify using a preclearance formula based on 1970s voter data.
— theprez98 (总统) (@theprez98) February 28, 2013

Richard Goldberg, a Washington, D.C. lawyer for whom I have an enormous amount of respect, called this tweet misleading, but given the above background information, do you really think so? My issue isn't with the bail out. It's with the presumption of discrimination based upon 40+ year old data. Do the federalism costs of intruding on a state's sovereignty, presuming them to be discriminatory until they prove otherwise, justify preclearance based upon data from 1964-1972? I'm sure you won't be surprised by my answer:

#SCOTUS prediction: --> Shelby County v. Holder bit.ly/15EiXey
— theprez98 (总统) (@theprez98) February 23, 2013

The last issue to mention, brought up by my good friend Martin Fisher, is about the respective roles of Congress and the Supreme Court on this issue. He suggests that finding the Voting Rights Act unconstitutional would be "legislating from the bench." I won't spend too much time on this for reasons of time and space, but suffice to say that I support neither "judicial restraint" nor "judicial activism" (partially because those words don't mean anything). They're politically charged words to attack or defend someone depending upon what you or I or someone else may think.

The role of the courts is to weigh the competing interests and come to a conclusion. In this case, the interests on both sides are constitutional and consequential. On one side, federalism and state sovereignty. On the other side, the 15th Amendment. Whether Congress passes a bill by one vote or 435 votes doesn't really weigh on its constitutionality. Finding a law that passed with large majorities unconstitutional is only judicial activism if you like the law. The courts are guided by the rule of law, not by votes. That's one reason why we're a constitutional republic, not a democracy.

This post won't be the end of this debate; in fact, I hope it's just the beginning. We're in for an interesting ride.

Does the first sale doctrine of copyright apply to extraterritorial works?

This is one of a series of posts about Justice Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts. For similar posts, click here.

Section 109(a) of the Copyright Act provides, in part, that

...the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Emphasis is mine. Contrast that with Section 602(a)(1) which states that

[i]mportation into the United States, without the authority of the owner of copyright under this title, of copies or phonorecords of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies or phonorecords....

As you can probably tell from reading these two relevant provisions, they appear to contradict one another. The first provision delineates the first-sale doctrine. This limits the rights of copyright holders and enables secondary markets by permitting resale without authority of the copyright owner. The second provision prohibits the importation of a work without the authority of the copyright’s owner.

This is the question presented in the case of Kirtsaeng v. John Wiley & Sons, Inc., which was argued before the Supreme Court on October 29. The Second Circuit summarized the facts:

To help subsidize the cost of his education, Kirtsaeng allegedly participated in the following scheme: Between 2007 and September 8, 2008, Kirtsaeng's friends and family shipped him foreign edition textbooks printed abroad by Wiley Asia. In turn, Kirtsaeng sold these textbooks on commercial websites....

The Supreme Court has already considered a very similar case in Quality King Distributors Inc., v. L'anza Research International Inc., 523 U.S. 135 (1998). In summary:

L'anza, a California manufacturer, sells its hair care products in this country exclusively to distributors who have agreed to resell within limited geographic areas and only to authorized retailers. L'anza promotes its domestic sales with extensive advertising and special retailer training. In foreign markets, however, it does not engage in comparable advertising or promotion; its foreign prices are substantially lower than its domestic prices. It appears that after L'anza's United Kingdom distributor arranged for the sale of several tons of L'anza products, affixed with copyrighted labels, to a distributor in Malta, that distributor sold the goods to petitioner, which imported them back into this country without L'anza's permission and then resold them at discounted prices to unauthorized retailers.

The Supreme Court found that the first sale doctrine endorsed in § 109(a) is applicable to imported copies. That would seem to be sufficient to decide Kirtsaeng (of course, if it were that simple, the Supreme Court probably wouldn't be hearing the case!). However, it is potentially distinguishing that the hair care products in L'anza were in fact manufactured within the United States (and the labels were copyrighted in the United States), distributed overseas, and then re-imported into the United States. The books at question in Kirtsaeng were manufactured and copyrighted overseas.

In 2010, the Supreme Court affirmed the 9th Circuit's decision in Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982 (9th Cir. 2008). According to the 9th Circuit:

Omega manufactures watches in Switzerland and sells them globally through a network of authorized distributors and retailers. Engraved on the underside of the watches is a U.S.-copyrighted “Omega Globe Design.” Costco obtained watches bearing the copyrighted design from the “gray market” 1 in the following manner:  Omega first sold the watches to authorized distributors overseas. Unidentified third parties eventually purchased the watches and sold them to ENE Limited, a New York company, which in turn sold them to Costco. Costco then sold the watches to consumers in California. Although Omega authorized the initial foreign sale of the watches, it did not authorize their importation into the United States or the sales made by Costco.

The Supreme Court vote was 4-4 (Kagan recused). A tie affirms the lower court; however, the ruling only becomes binding upon the 9th Circuit. So it seems obvious that the Court would take another similar case to establish a final rule on these apparently conflicting provisions.

From a textual perspective, there are three canons that immediately come to mind when considering this question:

• Harmonious-Reading Canon. The provisions of a text should be interpreted in a way that renders them compatible, not contradictory (p. 180).
• General/Specific Canon. If there is a conflict between a general provision and a specific provision, the specific provision prevails (generalia specialibus non derogant, p. 183).
• Irreconcilability Canon. If a text contains truly irreconcilable provisions at the same level of generality, and they have been simultaneously adopted, neither provision should be given effect (p. 189).

There is another canon at play here--the Extraterritoriality Canon. A statute presumptively has no extraterritorial application (statuta suo clauduntur territorio, nec ultra territorium disponunt, p. 268). Let's start with this one.

In Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, Justice Scalia, writing for the Court, wrote that "[i]t is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." (quotation marks omitted) This is a restatement of the Extraterritoriality Canon.

Returning to the contextual canons, it is not immediately obvious that either one of the provisions here are more or less general or specific than the other. So for the purposes of this post, we'll pass by the General/Specific Canon for another day. And among these canons, the Irreconcilability Canon is a last resort. So we ought to look specifically at the Harmonious-Reading Canon.

The Second Circuit undertook a textual analysis of § 109(a):

In arriving at a satisfactory textual interpretation of the statutory language at issue, we focus primarily on the words "made" and "under," but this task is complicated by two factors: (1) the word "made" is not a term of art in the Copyright Act, and (2) "[t]he word `under' is [a] chameleon" and courts "must draw its meaning from its context." Wiley contends that we must interpret "lawfully made under this title" to mean "lawfully made in the United States." This view of the law — which was also adopted by the United States in its amicus brief before the Supreme Court in Costco — is certainly consistent with the text of § 109(a).

In other words lawfully made under this title in § 109(a) should read to mean lawfully made in the United States. But wait! You might wonder (rightfully so) how a textualist reading of the statute could simply change the meaning of the words!

In fact, it is the logical application of the Extraterritoriality Canon together with the Harmonious-Reading Canon. Here, these canons work together to help us understand how the law ought to be interpreted. Because the Copyright Act is presumed not to have extraterritorial application, the words lawfully made under this title really do mean lawfully made under the Copyright Act which is only applicable within the United States. Because the books in question were manufactured in Thailand, United States copyright law does not apply. And these reasons are precisely why the Second Circuit affirmed the District Court in favor of Wiley.

The EFF considers this a "dubious interpretation" that would "further undermine the 'first sale doctrine.'" I would argue that applying these two canons, the interpretation is rather straightforward. Also note that (whether you agree with it or not), the textualist interpretation does not consider any policy considerations. If you think "fair use" and "first sale doctrine" are good ideas, you are likely to find ways interpret those provisions to suit your policy outcome. In fact, from a policy perspective, I agree with the EFF and believe that the first sale doctrine ought to apply outside of the United States. But from a judicial perspective, the text of the relevant statutory provisions do not support that interpretation. Rather, should the Court decide in favor of Wiley, it is up to Congress to change the law to expand the first sale doctrine to extraterritorial works.

From a textualist perspective, I would expect Justice Scalia to affirm the Second Circuit on these grounds. Whether or not this view will prevail among the Court as a whole remains to be seen. My best guess is that this will be a 5-4 decision with Justice Kagan providing the swing to either side (because Omega S.A. v. Costco Wholesale Corp. was a per curiam decision, the positions of the justices on either side of the case were not published).

DEFCON CFP submission: "Flex Your Rights: The Constitution & Political Activism in the Hacker Community"

I have no idea if it's a good idea or bad idea to post my DEFCON CFP submission online. For one reason or another, I have never posted my proposals. To be honest, I have never thought about it, until now. I can't see any good reason why not. On the other hand, I have been fortunate to have written a number of successful proposals for DEFCON talks in the past, so maybe this will help others in some small way.

Title & Abstract
Outline
Whitepaper
Bio

Title: Flex Your Rights: The Constitution & Political Activism in the Hacker Community

Abstract: Let's be clear upfront: I don't care if you're a Republican or Democrat (or another party), I don't care if you're pro-life or pro-choice. This presentation isn't about politics in the traditional sense. What we should be willing to acknowledge, however, is that public policy issues and the political process increasingly overlap with issues and interests that are important to the hacker community. Issues like free speech, privacy, and copyrights manifest themselves in legislation like SOPA, PIPA, ACTA, the Cybersecurity Act, DMCA (and many others). Surely these issues are worth our time and attention. By exploring recent legislation, court cases, and newsworthy events, it's my aim to convince you that we, the hacker community, need to flex our rights right now, more than ever. Won't you join me?

Outline: I try to write detailed outlines of my presentation that give the speaker selection folks a good idea of what I plan to talk about. By the time my slides are up on the screen, I have often changed things around, added and deleted entire sections, but that's just the way it goes. When I wrote it, this is what I planned to do. Things will change (they already have), but it paints a picture for the selectors.


I. Introduction
A. Present background: why should you listen to me? Qualifications
B. Present background: why should be skeptical! IANAL, for example
C. Explain agenda
D. Introduce topic
E. Caveats1: explain why this isn't really a "political" presentation in the traditional sense
F. Caveats2: this is not "hactivism" either, I'm asking you to become a part of the process
1. Every action has costs and benefits
2. "Hactivism" has benefits, but how high are the costs?
II. Politics in the Hacker Community
A. The status quo
1. Mostly apolitical, especially at conferences
2. Activity tends to be limited to rare issues that go viral (SOPA/PIPA)
3. A sense that things are beginning to change as more issues invade our space
B. What I am asking of you?
1. Nothing more than the EFF is already doing
2. I'm asking you to start doing it yourself, too
3. This should not be a radical change for the community
III.Issues
A. First Amendment
   1. Concepts
a. Free speech
b. Speech as it applies online/impact of technology
2. Issues of interest
a. Censorship (H5N1 research, blocking)
(1) H5N1 flu research
(2) disclosure debate comparison
(3) Paypal "legal" censorship (SmashWords)
b. SOPA/PIPA (and their inevitable follow-ups)
B. Fourth Amendment
1. Concepts
a. Reasonable expectation of privacy
b. Impact of technology on privacy (see DEFCON19)
2. Issues of interest
a. Administrative searches
b. Administrative warrants & subpoenas
c. Surveillance (cameras, GPS, cells, drones)
d. It's your fault, too (our own behavior impacts the reasonable expectation of privacy)
e. Drone technology and the ad coelum doctrine
C. Copyrights and Patents
1. Civil forfeiture abuse (US Customs, Secret Service)
2. Patent abuse/trolls
3. Digital Millennium Copyright Act
4. Golan v. Holder and public domain issues
D. Licensing laws
1. Some licensing may be desireable
2. Other serves as a high barrier to entry to protect "insiders"
a. Locksmiths
b. Private investigators
c. Digital forensics
E. Lens of Liberty
1. Potentially the most controversial, but doesn't need to be
a. Lens analogy (good? bad?)
b. process rather than substance; we can agree on process and disagree on substance
2.  Current worldview:
a. Islands of liberty in a sea of power
b. Not surprising giving massive size of govt bureacracy
c. "Red hat" analogy
3.  Proposed worldview:
a. Islands of power in a sea of liberty
b. A fundamentally different way of asking the question
c. Scepticism
(1) does the law actually accomplish its intent?
(2) short term solution or long term solution?
(3) What the consequences to all groups, not just a few (special interests/groups)
(4) or, does it benefit the whole, or just a few
d. Social contract
e. Balance of powers
f. Separation of powers
g. Federalism
4.  You may view issues through this lens and still come up with the same answers, or not
IV. Conclusions
    A. Restate argument
1. this isn't really a "political" in the traditional sense
2. this is not "hactivism" either
3. I'm asking you to become a part of the process
4. Nothing more than the EFF is already doing
    B. What can we do?
1. Vote (if you don't like the choices, do something about it)
2. Participate: in person, online, writing, calling, etc.
3. Educate
a. Yourself: read proposed legislation, don't rely on other people's work (or lack thereof)
b. Others: convince people that your rights and their rights are one in the same


Whitepaper: Even though CFP technically stands for "call for papers", I have always treated it like "call for proposals"; and in fact, I have never submitted a whitepaper before this year (to any conference). So they're certainly not required. But I felt like my subject was at least marginally controversial enough (for a hacker conference) that I wanted more space to expound upon my ideas. In reality, it's just a fleshed out version of my outline and the general direction that I want to go.


INTRODUCTION
The hacker community has mostly been an apolitical force. The Hacker Ethic lends itself to a libertarian-ish type of philosophy, but at conferences, and in general, hackers tend to stay away from overt shows of partisan politics (one notable exception: 2600/HOPE). Generally speaking, I think this is a good thing. On the few issues which do rise up and go viral (i.e., SOPA/PIPA), the hacker community will stand up and make its voice heard: not always in unison, but heard nonetheless.

The increasing role of invasive forms of technology in our everyday lives brings many issues to the forefront that the hacker community has typically left to its legal support organizations such as the Electronic Frontier Foundation. The EFF appears to be well-supported from the hacker community from a financial perspective, but support in other forms—manpower, boots on the ground, phone calls, letters and visits to legislators, in short, political activism—seems less clear.

As a growing avalanche of issues threaten to scale back our constitutionally-guaranteed freedoms, more issues begin to invade the space of the hacker. Free speech is not just for flag-burning, it increasingly manifests itself through technology—online speech and censorship are but two ways. Invasive technology has also forced the courts to interpret outdated laws on searches and seizures and the right to privacy. How these laws and rulings impact cell phones, computers, email, encryption, are all vitally important to the everyday work of the hacker community. And this is just the beginning.

It should be clear that the “traditional” political activism this presentation recommends seeks to distinguish itself from more common hacktivism often seen in the hacker community. This is not to say that hacktivism does not have its benefits; clearly, it does. It also has costs. It is my contention that, more often than not, the benefits of hacktivism (primarily awareness) are outweighed by the costs (possible jail time, the likelihood of more stringent laws). Likewise, this presentation isn’t advocating a move to transform the hacker community into a political movement—only to do (as an example) what the EFF is already doing. But financial contributions aren’t enough—hackers need be personally involved—to be the foot soldiers for freedom. And we not limit our issues to those embraced by the EFF—any issues that impact our freedom need action.

ISSUES
A. First Amendment. The First Amendment is usually analogous with the idea of free speech, and understandably so. In some ways, we have come so far in speech freedoms that we take them for granted. In other ways, small, insidious measures threaten to limit our speech—sometimes without even a peep from us.

Free speech also brings domain seizures to the forefront. Using civil forfeiture laws, the government can effectively limit speech. Worse yet, these laws flip justice on its head: the owner is now presumed guilty, and must “prove” his innocence.

Bloggers and others in other countries are under fire for their content—but that couldn’t happen here, right? Except it already does—the Department of Homeland Security has already admitted to monitoring social media. Perhaps this is not as invasive as it might be in other places, but it is chilling nonetheless.

Companies such as PayPal may deny service to organizations that produce or support content with which PayPal disagrees. This, in many ways, is a sort of legal censorship as it applies to publishers like Smash words. On that many of us can agree. The solution, on the other hand, is more perplexing. Should the government have the power to force PayPal to provide service to all businesses who want to use it? It’s not difficult to see the slippery slope here.

B. Fourth Amendment. My presentation last year was entitled “WTF Happened to the Constitution? The Right to Privacy in the Digital Age.” This presentation focused primarily on privacy issued related to the Fourth Amendment.

The Fourth Amendment is primarily based upon the concept of “reasonable expectation of privacy.” It’s a concept with variables, and our behavior can change the value of those variables. Unfortunately, to this point humans have been the weakest link. Our own behavior has weakened our reasonable expectation of privacy in many ways. Fortunately for us, the opposite is also true. If there were ever an issue that so clearly called for the involvement of the hacker community, this is it. One person opting out of an invasive airport scan may not signify a change in behavior, but 100 or 1,000 opt-outs may begin to turn the tide. Obviously, this doesn’t apply to airport opt-outs.

Recently, the Fort Worth city council decided to purchase a cell phone tracking system for the police—and with the express intent of developing probable case. This is a grave violation of the Fourth Amendment. Maybe your town is next.

Recent legislation and the explosion in drone technology promises further invasions into our homes and backyards. The ad coelum doctrine, rewritten once already last century due to the advent of air travel, is likely to see further revisions as drones become ubiquitous over our homes and businesses.
Other issues are equally important: administrative searches, administrative warrants, public surveillance.

C. Copyrights and Patents. SOPA/PIPA were the rare issues that went viral. We needed Anonymous to remind us of the history of Hollywood, that movie producers moved to California to avoid Edison’s patents. But these issues remain, and they will not give up after one loss.

There are other copyright and patent issues lurking that are important to hackers. Among them are civil forfeiture abuse (sounds boring? Kit Dotcom and others wouldn’t think so), patent abuse and patent trolls, the ever-present Digital Millennium Copyright Act, and public domain issues.

Who would have ever thought that Congress could take things out of the public domain? Yet the Supreme Court ruled that, upon signing the Uruguay Rounds, the Congress could remove works already in the public domain and restore their copyrights.

D. Licensing Laws. While most of this presentation has focused on the federal government, they have, by no means, a monopoly on actions that impact our freedoms. Some states have restrictive licensing laws for hacker-related occupations like locksmithing, private investigators, or digital forensics. While some of these licensing laws may be desirable, others serve as a barrier to entry to protect insiders.

E. Lens of Liberty.
The Lens of Liberty is a proposed worldview: potentially controversial, but need not be. It is more philosophical than political. In fact, it is an argument that suggests we can agree on issues of process while disagreeing on issues of substance.

Our current worldview is dominated by the idea that we have small islands of liberty in a sea of government power. This is not surprising given the massive size of our federal bureaucracy. I’ve asked the question in the past: Do I have the right to wear a red hat on Wednesdays? A search of the Constitution and Bill of Rights will find no such right. Can the government outlaw my hat?

The Lens of Liberty argument suggests that this question is asked in a fundamentally wrong way. In fact, the question should be: Does the government have the power to prevent me from wearing a red hat on Wednesday? Now, the answer becomes unequivocally clear: it does not.

At the core of the lens is the idea of skepticism: Does a law actually accomplish its intent? Is it a short term solution or long term solution? What are the consequences to all groups, not just a few (special interests or specific groups)? Does the law benefit the whole, or just a few at the expense of the whole?

This brings up many other issues: the social contract, the balance of powers, the separation of powers, and federalism. This presentation is not a political science lesson, but it will show how these issues are important to the hacker community.

CONCLUSIONS
It should be clear by this point that this presentation is not “political” in the traditional sense. A hacker’s position on any number of otherwise divisive issues should not prevent the community from taking a more active stand on issues of freedom that affect us all. Whether someone is a Republican or Democrat or other party should not matter that our freedoms are increasingly under attack from legislation written by representative who admit their technological shortcomings and treat it as humor.

The number one recommendation from this presentation is a simple one: vote. It is often said, and more true than not, that one cannot complain if they do not vote. It is often said in response that “I don’t like the choices.” True enough. Then do something about it. Change the choices. Why can’t you be the next candidate for school board, city council, or even state legislature and beyond?

Number two: participate. Sending money to the EFF every year is a great first step, but we have to move beyond that. The city council will probably buy a nice new shiny cell phone monitoring system for the police without thinking twice about it—unless you’re there to raise legitimate concerns. Participation means in person, online, on the phone, in the mail.

Number three: education. First, yourself. Don’t rely on other people to tell you what’s in a proposed bill—in many cases, they’re pushing a particular vision or they may have not done their homework!—go read it yourself (it’s shocking how few people actually do this). Second, educate others. Convince people that your rights and their rights are one in the same. Your free speech online is the same as their free speech at the Occupy movement, or wherever. We don’t have to agree on policy to share belief in the same freedom.

Biography: I typically have a generic biography and then customize it to the talk. So, for example, since this talk is about the Constitution, I included a few items that would be relevant.

Michael Schearer ("theprez98") is the founder of MyFreeState, the Freedom Report, and the Assault on Privacy, projects which document abuses of our freedom and liberty.  Michael is the owner of Leverage Consulting & Associates, a computer security business. He spent nearly nine years in the United States Navy as an EA-6B Prowler Electronic Countermeasures Officer. His military experience includes aerial combat missions over both Afghanistan and Iraq and nine months on the ground doing counter-IED work with the U.S. Army. He is a graduate of Georgetown University's National Security Studies Program and a speaker at ShmooCon, DEFCON, HOPE, and other conferences. Michael lives in Maryland with his wife and four children.

Net neutrality and the Fairness Doctrine

While I came to this comparison independently, a quick search of Google finds that many others have come to similar conclusions.  I say similar conclusions, and not the same conclusions, because I don't consider net neutrality to be the Internet version of the Fairness Doctrine.  Rather, I think the concepts are similar and worth exploring.  Let's take a quick review before we get to the conceptual similarities.  From Wikipedia:

The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC), introduced in 1949, that required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was, in the Commission's view, honest, equitable and balanced. The 1949 Commission Report served as the foundation for the Fairness Doctrine since it had previously established two more forms of regulation onto broadcasters. These two duties were to provide adequate coverage to public issues and that coverage must be fair in reflecting opposing views.

The Fairness Doctrine was subject to longstanding criticism, and was eventually repealed in the 1980s; yet attempts to legislate the doctrine have been introduced on numerous occasions since then.

And now, net neutrality:

Network neutrality is a principle proposed for users' access to networks participating in the Internet. The principle advocates no restrictions by Internet service providers and governments on content, sites, platforms, the kinds of equipment that may be attached, and the modes of communication...In the US particularly, but elsewhere as well, the possibility of regulations designed to mandate the neutrality of the Internet has been subject to fierce debate.

Before we go any further, let's acknowledge upfront that both the Fairness Doctrine and net neutrality are complex and controversial issues, and that it is impossible to properly define them in the space of a paragraph (despite the fact that it's precisely what I have tried to do!).  However, as a matter of concept, purpose, and intent, I think we can fairly characterize each:

• The Fairness Doctrine was government regulation, via the FCC, over radio to mandate a level of balance and/or equality in content.  
• Net neutrality is government regulation, via the FCC, over the Internet to mandate neutral treatment over content.

Both are government regulations written by, and enforced by the FCC.  In both cases, the policies were written and implemented by the FCC, not Congress. Both control mediums where the expression of free speech is central.  Both place the government (in the form of the FCC) as the arbiter of such speech by its view of what is equal or neutral.

Now, the differences: the radio spectrum is limited in nature, the Internet very much less so.  The Fairness Doctrine was about equality in content, about ensuring fairness in opposing views.  In other words, if you air a segment that is pro-life in nature, you should air something similar that is pro-choice.  As a policy, the Fairness Doctrine required the broadcasters to be an active participant in airing opposing views.  Net neutrality, on the other hand, is about ensuring that content is not treated differently.  Conceptually, net neutrality does not impose restrictions on types of content, or requirements that certain content must be presented in a fair or equitable manner.  As a policy, net neutrality requires ISPs to step back and refrain from participating in content discrimination.

Unfortunately, the comparison of these issues has been poisoned by both sides of the political spectrum.  U.S. Representative Marsha Blackburn (R-TN) said, "Net neutrality, as I see it, is the fairness doctrine for the Internet."  Rush Limbaugh said, "[t]he easiest way to understand [net neutrality] is to think of a Fairness Doctrine for the Internet."  And then of course, whatever Rush Limbaugh says becomes a sound bite his opponents.  Those opponents have adopted Doomsday scenarios, that the failure to pass net neutrality would be (and I use their quote): "the end of the Internet as we know it."  

The truth, of course, is probably somewhere in the middle of these two extremes.  My concern is that from my perspective, the weight of the similarities is heavier than the weight of the differences.  One branch of the government is using its regulatory powers to enforce its own notion of equality, neutrality or fairness.  Neither scheme was specifically authorized by legislation (although, in the case of the Fairness Doctrine, there was little doubt that the FCC had the authority; on the other hand, serious questions exist regarding the FCC's authority or lack thereof, to regulate the Internet).  I have argued that the process by which net neutrality is being enacted, is as important (or perhaps even more so) as whether or not it is enacted.  In the same vein, I have made the point that some of the supposed net neutrality violations are not really the case.

It seems to me that the nature of our short attention spans indicates that sound bite comparisons to the Fairness Doctrine are probably not fair (no pun intended) without explaining that there are legitimate differences between the two policies.  Nevertheless, these issues are not going away, and will only grow in importance.  News abroad in Egypt has revived the domestic "Internet kill switch" which will only serve to ripen the debate of these critical issues.