We had just been talking about Instagram and YouTube facing site blocks in Russia all because a billionaire didn't like his dirty laundry exposed online. For brief background, a noted Russian dissident, Alexy Navalny, had published photos of billionaire Oleg Deripaska and Deputy Prime Minister Sergey Prikhodko relaxing on a yacht with a young woman variously described as a model and escort fawning over them. Importantly, the salacious nature of the photos and videos is only half of the reason Navalny is drawing attention to them. The other reason is his accusations of corruption in government, as a massively wealthy oligarch consorts in this fashion with a high-ranking member of the federal government. Despite that, or perhaps because of it, Russian courts had handed Deripaska a legal victory and ordered sites hosting the images, including Instagram and YouTube, to take them down. Russia's notoriously corrupt site-blocking agency, Rozcomnadzor, issued an edict that the images be removed or the sites would face a potential full block in Russia.In that post as well, we posited that American companies should not be assisting authoritarian regimes in political censorship of this sort. Well, it seems that Facebook's Instagram has decided to cave to the censors.

As you've certainly heard by now, earlier today the Justice Department announced that it had indicted thirteen Russian individuals and three Russian organizations for various crimes related to trying to influence the US election. You should read the full indictment if you haven't already. Not surprisingly it focuses on the infamous Internet Research Agency (IRA), which was the giant Russian online trolling operation that we've discussed going back to 2015.While many are trying to position the indictment as a "significant" bit of news, I have to admit to being a bit underwhelmed. It really does not reveal much that wasn't already widely known. It's been widely reported that the Russians had interest in disrupting our democracy and sowing discord, including setting up and pushing competing rallies from different political sides, and generally stoking fires of distrust and anger in America. And... the indictment seems to repeat much of that which has already been reported. Furthermore, this indictment actually reminds me quite a bit of a similar indictment four years ago aginst various Chinese officials for "hacking" crimes against the US. As we noted then, indicting the Chinese -- who the US would never be able to arrest anyway -- just seemed to be a publicity stunt, that had the potential to come back to haunt the US. It kinda feels the same here.What is interesting to me, however, is that the indictment also demonstrates why all the hand-wringing against Facebook, Twitter and Google seems kind of misplaced. For months we've been seeing big articles and Congressional hearings questioning why the platforms allowed the Russians to use their services as propaganda tools -- even getting the companies to recently send out (useless, confusing) announcements to people about whether or not they saw or reposted Russian troll propaganda. But what the indictment makes pretty clear, is that the Russians made it nearly impossible for an internet service to ferret them out. The money used was spread out among many different banks and laundered through various means to make it more difficult to trace back. And it details just how far the trolls went to appear to be Americans, including traveling to the US, posing as Americans online to talk to actual US activists and push them in certain directions. And, of course, confusing the internet platforms into thinking they were Americans:

We've noted for some time how Chinese hardware vendor Huawei has been consistently accused of spying on American citizens without any substantive, public evidence. You might recall that these accusations flared up several years ago, resulting in numerous investigations that culminated in no hard evidence whatsoever to support the allegations. We're not talking about superficial inquiries, we're talking about eighteen months, in-depth reviews by people with every interest in exposing them. One anonymous insider put it this way in the wake of the last bout of hysteria surrounding the company:

To keep itself from being held liable for inmate deaths, San Diego County (CA) has decided to target the journalist who exposed them. Kelly Davis, along with the EFF's Dave Maass, used public records requests and investigative journalism to detail 60 deaths in the county's five jails, which occurred over the course of five years. The death rate in San Diego jails was consistently higher than those of comparably-sized systems. In fact, the death rate was higher than that of the 10 largest jail systems in the country. Documents showed almost a third of those were preventable.But when a lawsuit was filed by the wife of an inmate who died in a San Diego County jail, the county argued there was no negligence. The presiding judge disagreed, citing Davis and Maass' journalism.

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »Just last week we announced our new site EveryoneCreates.org, in which we showcase stories of people who rely on the open internet and various internet platforms to create artwork of all kinds -- from music to books to movies to photographs and more. It appears that we're not the only ones to be thinking about this. The Re:Create coalition has just now released some fantastic economic research about the large and growing population of people who use internet platforms to create and to make money from their creations. It fits right in with the point that we made, that contrary to the RIAA, MPAA and its front groups like "Creative Future," the internet is not harming creators, it's enabling them by the millions (and allowing them to make much more money as well).Indeed, the report almost certainly significantly undercounts the number of content creators making money on the internet these days, as it only explores nine platforms: Amazon Publishing, eBay, Etsy, Instagram, Shapeways, Tumblr, Twitch, WordPress and YouTube. Those are all great, and probably cover a decent subset of creators and how they make money -- but it leaves off tons of others, including Kickstarter, Patreon, IndieGogo, Wattpad, Bandcamp, Apple, Spotify and many other platforms that have increasingly become central to the way in which creators make their money. Still, even with this smaller subset of creative platforms, the study is impressive.14.8 million people used those platforms to earn approximately $5.9 billion in 2016.Let's repeat that. The internet -- which some legacy entertainment types keep insisting are "killing" content creators and making it "impossible" to make money -- enabled nearly 15 million people to earn nearly $6 billion in 2016. And, again, that doesn't even include things like Kickstarter or Patreon (in 2016 alone, Kickstarter had $580 million in pledges...). In short, just as we've been saying for years, while those who rely on the old legacy gatekeeper system of waiting until you're "discovered" by a label/studio/publisher and then hoping they'll do all the work to make you rich and famous, maybe that's a bit more difficult these days. But, for actual creators, today is an astounding, unprecedented period of opportunity.This does not mean that everyone discussed here is making a full-time living. Indeed, the report notes clearly that many people are using these platforms to supplement their revenue. But they're still creating and they're still making money off of their creations -- something that would have been nearly impossible not too long ago. And, just as the report likely undercounts the size of this economy due to missing some key platforms, it also misses additional revenue streams even related to the platforms it did count:

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Just earlier this week we noted that a judge easily laughed Playboy's silly lawsuit out of court because merely linking to infringing content is not infringing itself. But a judge in New York, Judge Katherine Forrest, has ruled on a different case in a manner that is quite concerning, which goes against many other court rulings, and basically puts some fundamental concepts of how the internet works at risk. It's pretty bad. In short, she has ruled that merely embedding content from another site can be deemed infringing even if the new site is not hosting the content at all. This is wrong legally and technically, and hopefully this ruling will get overturned on appeal. But let's dig into the details.The case involved a photographer, Justin Goldman, who took a photograph of quarterback Tom Brady on Snapchat. Somehow that image made its way from Snapchat to Reddit to Twitter. The photo went a bit viral, and a bunch of news organizations used Twitter's embed feature to show the tweet and the image. Goldman sued basically all the news publications that embedded the tweet -- including Breitbart, Vox, Yahoo, Gannett, the Boston Globe, Time and more. Now, multiple different courts around the country have said why this should not be seen as infringing by these publications. It's generally referred to as "the server test" -- in which to be direct infringement, you have to host the image yourself. This makes sense at both a technical and legal level because "embedding" an image is no different technically than linking to an image. It is literally the same thing -- you put in a piece of code that points the end user's computer to an image. The server at no point hosts or displays the image -- it is only the end user's computer. In the 9th Circuit, the various Perfect 10 cases have established the server test, and other courts have adopted it or similar concepts. In the 7th Circuit there was the famous Flavaworks case, where Judge Posner seemed almost annoyed that anyone could think that merely embedding infringing content could be deemed infringing.But Judge Forrest has decided to carve a new path on this issue in Southern New York, teeing up (hopefully) an opportunity for the 2nd Circuit to tell her why she's wrong. Even more troubling, she actually relies on the awful Aereo "looks like a duck" test to come to this conclusion. Let's dig into her reasoning. The key issue here is the exclusive right to "display" a work under copyright, known as 106(5) under copyright law.It's also important to note that this ruling is just at the summary judgment stage, and doesn't mean that the various publications will be found to have infringed -- it just means that the court is letting the case go forward, meaning that the various publications might now raise various defenses as to why their embedding is not infringing. It's still concerning, because given the "server test" in other jurisdictions, such a case would easily be tossed on a motion to dismiss or summary judgment because there's no legitimate claim of copyright infringement if no direct infringement can be shown. But here, Judge Forrest argues that because an embed leads an end user's computer to display an image, that somehow makes the publisher who included the embed code possibly liable for infringing the display right. Because it looks like a duck.This is not a new issue by any means. I found a story from over a decade ago in which I warned that we'd see a lot more stupid lawsuits about embedding content from platforms, and have to admit I'm a bit surprised we haven't seen more. The reason that's the case is almost certainly because of the reliance of many courts on the server test, leading many to realize such an argument is a non-starter. Until now.Forrest basically says that even though the image never touches the publisher's server, and the only thing the publisher is doing is linking to an image in a manner that makes the end-user's browser grab that image from another location and display it, it still counts as infringement -- because of the Aereo ruling. If you don't recall, Aereo involved a creative (if technically stupid) method for streaming over-the-air broadcast TV to users by setting up many local antennas that were legally allowed to receive the signals, and then transmitting them over the internet (which is also legal). But, the Supreme Court came up with a brand new test for why that's not allowed -- which we've called the "looks like a duck" test. The ruling found that because Aereo kinda looked like cable to the end user, the technical rigamarole in the background to make it legal simply doesn't matter -- all that matters is how things looked to the end user. Forrest argues the same is true here:

If you watched FCC boss Ajit Pai's rushed repeal of net neutrality there really shouldn't be any question about where Pai's loyalties lie, and it certainly isn't with smaller companies, healthy competition, transparency, openness, innovation, or American consumers. The agency head repeatedly lied about the justifications for the repeal, casually using fabricated data to justify what may just be the least popular policy decision in this history of modern technology. Pai's fealty to giant monopolies runs so deep, his agency now just directs reporters to lobbying talking points when they question the flimsy logic propping up the repeal.So for those paying attention, it's probably not too surprising to see news that the FCC's own Inspector General is investigating the agency boss for being a bit too cozy with the giant companies he's supposed to be holding accountable:

For many, many years we've questioned the bizarre lawless nature of ICE -- Immigration and Customs Enforcement -- going back to the days when it was illegally seizing blogs, based on false claims of copyright infringement. We questioned what ICE had to do with censoring blogs in the first place. Of course, in the last year, ICE has been getting a lot more negative attention for something that is clearly under its purview: enforcement of immigration laws. Specifically, ICE has been almost gleefully demonstrating how they are thuggish bullies who are eager to deport as many people as possible. It's disgusting and inhumane -- and if you're going to be one of those people who pop up in our comments to say something ignorant about how if someone is here illegally they have no rights and should be booted as quickly as possible, go somewhere else to spout your nonsense. Also, seriously: take stock of your own priorities and look deeply at why you are so focused on destroying the lives of people who are almost certainly less well off and less privileged than you are, and who are seeking a better way of life.But ICE's violent, gleeful thuggery seems to come easy to the organization -- and thus it should be little surprise that one of ICE's top lawyers has been charged with identity fraud and wire fraud in trying to use the identities of at least seven immigrants who were being processed by ICE. The indictment against Raphael Sanchez, the chief counsel for ICE in Seattle is quite a read.

Corporate Twitter accounts typically range from the blandly uninspired to exhibiting unfortunate behavior. While you can occasionally get some good content out of these handles, they are far too often just...meh.And, yet, let's see how the Crock-Pot brand of slow-cookers responded to a genuine freak-out on the internet that occurred after a recent episode of This Is Us. For those of you who watch the show, here's your insipid little spoiler alert. A main character on the show died in a recent episode when a slow cooker malfunctioned and burned the house down. Cool. Well, apparently that's when many viewers took to Twitter to announce that they were going to get these death machines out of their houses ASAP, with many mentioning Crock-Pots by name, even though there was no branding on the murderous slow-cooker in the show.

Techdirt has been covering India's monster biometric database, Aadhaar, since 2015. Media in India, naturally, have been on the story longer, and continue to provide detailed coverage of its roll-out and application. But wider knowledge of the trailblazing identity project remains limited. One international organization that has been working to raise awareness is Mozilla, home of the Firefox browser and Thunderbird email client.Last May, an opinion piece entitled "Aadhaar isn't progress -- it's dystopian and dangerous", by Mozilla Executive Chairwoman and Lizard Wrangler Mitchell Baker and Mozilla community member Ankit Gadgil, appeared in India's Business Standard newspaper. In July 2017, Mozilla released a statement on the Indian Supreme Court hearings on Aadhaar. A blog post in November pointed out that the Aadhaar system is increasingly being used by private companies for their services, something Techdirt covered earlier. Similarly, after it was revealed that anybody's Aadhaar details could be bought for around $8 each, Mozilla issued a statement saying "this latest, egregious breach should be a giant red flag to all companies as well as to the UIDAI [Unique Identification Authority of India] and the [Indian] Government."Following the creation of a committee to draft India’s first comprehensive data protection law, Mozilla has now paid for an open letter to appear in The Hindustan Times. It was written by Baker, and co-signed by 1,447 Mozilla India community members. Although the letter welcomes the work being carried out by the committee of experts, it criticizes Aadhaar for its many failings, and points out some serious omissions in the committee's report on data protection:

For those of you not interested in professional sports, allow me to educate you on the concept of the "coaching tree." This concept comes from the common decisions by losing teams to hire junior coaches out from under the head coaches of successful teams, hoping to siphon off some of the genius of more successful organizations. In football, for instance, you will often hear about the "Andy Reid coaching tree" as his assistants get head coaching jobs across the league after serving underneath him.Sadly, a much more sinister version of this appears to be occurring in the copyright trolling space, with Malibu Media serving as a launching point for legal minds joining other organizations and replicating what they've learned from their former employer. The result has been an explosion in copyright lawsuits for the early part of 2018, with most of them coming from the porn-trolling industry.

For an industry that talks up how important copyright law is, it's fairly astounding how frequently there are really dumb lawsuits filed between musicians. Lately, because of the ridiculous "Blurred Lines" verdict, there have been tons of lawsuits filed over "sounds like" songs, or even "inspired by" songs, as lawyers (and some musicians) see a chance to cash in on the actual success of others. But we've also seen a bunch of really dumb lawsuits filed over the use of similar phrases. A few years ago there was the case where Rick Ross sued LMFAO because they had the line "Everyday I'm shufflin'" in a song that he claimed was infringing his "Everyday I'm hustlin'." The court was not impressed.Last year a similar case was filed (which I'd meant to write about when it was filed, but a million other things got in the way), in which Sean Hall sued Taylor Swift claiming that her lyrics in "Shake it Off" were similar to a song he wrote called "Playas Gon' Play." The songs themselves were not similar, but both used lines about how "playas gonna play" and "haters gonna hate" (though not even exactly in the same way). Thankfully, once again, the court hearing the case is not at all impressed:

The Scholastic Art & Writing Awards wants to help show youths the power of artistic creation… by taking away those artistic creations irrevocably for the next two years minimum.Sasha Matthews, 13-year-old cartoonist, was the first to spot this bit of intellectual property land-grabbing late last year in the terms and conditions that must be followed by Scholastic Award entrants.

So if you haven't noticed, the entire cryptocurrency mining thing has become a bit of an absurd stage play over the last few months. From gamers being unable to buy graphics cards thanks to miners hoping to cash in on soaring valuations, to hackers using malware to covertly infect websites with cryptocurrency miners that use visitors' CPU cycles without their knowledge or consent. As an additional layer of intrigue, some websites have also begun using such miners as an alternative to traditional advertising, though several have already done so without apparently deeming it necessary to inform visitors.At the heart of a lot of this drama is crypotcurreny mining software company Coinhive, whose software is popping up in both malware-based and above board efforts to cash in on the cryptocurrency mining craze. Coinhive specifically focuses on using site visitor CPU cycles to help mine Monero. The company's website insists that their product can help websites craft "an ad-free experience, in-game currency or whatever incentives you can come up with." The company says its project has already resulted in the mining of several million dollars worth of Monero (depending on what Monero's worth any given day).The folks behind the company told Motherboard this week they were blindsided by the way their software has quickly been adopted by both non-transparent websites, and malware authors looking to make some additional money:

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For the past few months, we've talked about how FBI Director Chris Wray has more or less picked up where his predecessor, James Comey, left off when it came to the question of encryption and backdoors. Using a contextless, meaningless count of encrypted seized phones, Wray insists that not being able to get into any phone the FBI wants to get into is an "urgent public safety issue."Of course, as basically every security expert has noted, the reverse is true. Weakening encryption in the manner that Wray is suggesting would create a much, much, much bigger safety issue in making us all less safe. Hell, even the FBI used to recommend strong encryption as a method to protect public safety.Last month, we wrote about a letter sent by Senator Ron Wyden to Wray, simply asking him to list out the names of encryption experts that he had spoken to in coming to his conclusion that it was possible to create backdoors to encryption without putting everyone at risk.

By now it's pretty apparent that the FCC doesn't much want to talk about who was behind the numerous bogus comments that flooded the agency's net neutrality repeal proceeding. When I asked the FCC for help after someone lifted my identity to support repealing the rules, the FCC responded with the policy equivalent of a ¯\_(ツ)_/¯. Similarly, when New York Attorney General Eric Shneiderman approached the FCC looking for help identifying the culprit (9 requests over 5 months, he said in an open letter), the FCC blocked the investigation.Most analysts believe the effort was a ham-fisted attempt to erode trust in the public comment proceeding in order to downplay massive public opposition to the FCC's plan (a tactic that has mysteriously plagued other government proceedings over the last year). The FCC could pretty quickly clear this all up by providing access to server logs and API key usage details to law enforcement. Its consistent refusal to do so quickly dismantles agency boss Ajit Pai's continued, breathless claims that he's a massive fan of transparency and would run a more transparent operation than his predecessor.This week, members of the House Committee on Energy and Commerce sent a letter to Pai again asking him to explain (pdf) why the FCC ignored the public and sat on its hands as millions of bogus comments (some of them from dead people) piled up. Included in the questions were inquiries regarding how the FCC (which says it ignored comments "devoid of substance") determined what public comments were worth paying attention to, if any:

We've had ongoing discussions on this site about the ham-fisted website censorship policy that Russia has undertaken over the past few years. While the country was never one to embrace free and open speech and communication to the same degree as Western nations, recent times have seen a severe uptick in outright censorship with a variety of excuses rolled out for public consumption: copyright laws, stifling political opposition, and the protection of the privacy of public figures. The funnel point for all of this censorship is Russian agency Rozcomnadzor, itself the subject of corruption allegations, with a track record for racking up collateral damage numbers that would make any nation's army blush.Through it all, there have been suggestions that entire sites with massive global followings would be blocked. YouTube and Twitter were previously found to be in the crosshairs of the Russian government, but nothing immediately came of the threat. Now, however, both YouTube and Instagram may face a very real choice: bow to the censorship demands of Rozcomnadzor or face full site-blocks in Russia. And, perhaps most strangely, this has all come to a head over a Russian billionaire's win in court to block the publication of photos and videos showing him on a yacht with what is reportedly an escort.

AI is hot, and nowhere more so than in China:

Well, that was incredibly quick. The district court judge hearing the case that Playboy filed against BoingBoing back in November has already dismissed it, though without prejudice, leaving it open for Playboy to try again. The judge noted that, given the facts before the court so far, it wasn't even necessary to hold a hearing, since BoingBoing was so clearly in the right and Playboy so clearly had no case. While the ruling does note that Playboy and its legal team can try again, it warns them that it's hard to see how there's a case here:

As some of you may be aware, Safer Internet Day just passed. Started in the EU, the day is supposed to be used to educate the masses on some dangers that are tangentially or directly connected to the internet, such as malware awareness, cyberbullying, or abuses on social media sites. It's also heavily supported by the Industry Trust for IP Awareness, which is a UK entertainment industry group that chiefly looks to "educate" the public on how super-awesome copyright is in every respect and how piracy and copyright infringement are the work of Satan.In a video titled... and I can't believe I'm going to actually type this... Meet the Malwares, viewers in Australia are "educated" on exactly zero specific malware threats, but they are told that filesharing sites should be avoided completely. And if you're thinking that there are a ton of other parts of the internet that are far riskier, rest assured that the video insists it's all about file sharing sites.

When bad things happen, bad laws are sure to follow. The state of Georgia has been through some tumultuous times, electorally-speaking. After a presidential election plagued with hacking allegations, the Georgia Secretary of State plunged ahead with allegations of his own. He accused the DHS of performing ad hoc penetration testing on his office's firewall. At no point was he informed the DHS might try to breach his system and the DHS, for its part, was less than responsive when questioned about its activities. It promised to get back to the Secretary of State but did not confirm or deny hacking attempts the state had previously opted out of.To make matter worse, there appeared to be evidence the state's voting systems had been compromised. A misconfigured server left voter records exposed, resulting in a lawsuit against state election officials. Somehow, due to malice or stupidity, a server containing key evidence needed in the lawsuit was mysteriously wiped clean, just days after the lawsuit was filed.Rather than double down on efforts to secure state voting systems, the state legislature has decided to expand the definition of computer crime. A CFAA but for federalists has been introduced in the state Senate. And it could possibly lead to criminalizing a whole lot of benign computer use.

If you've been around a while, you probably know that Verizon has an adversarial relationship with openness and competition. The company's history is rife with attempts to stifle competing emerging technologies that challenged Verizon's own business interests, from its early attempts to block GPS and tethering apps so users would have to subscribe to inferior and expensive Verizon services, to its attempts to block competing mobile payment services to force users (again) onto Verizon's own, inferior products. And that's before you get to Verizon's attempts to kill net neutrality and keep the broadband industry uncompetitive.In the earlier years, Verizon had a horrible tendency to lock down its devices to a crippling and comical degree. But with the rise of net neutrality, competition from carriers like T-Mobile, and open access conditions affixed to certain spectrum purchased by Verizon, the company slowly-but-surely loosened its iron grip on mobile devices. But let's be clear: the company had to be dragged, kicking and screaming, into the new, more open future we all currently enjoy, where (by and large) you can install whatever apps you like on your device, and attach most mainstream devices (with some caveats) to Verizon's network.That's why more than a few eyebrows were raised after Verizon gave CNET the early exclusive news (apparently in the hopes that they'd frame it generously, which they did) that the company will soon be locking down its smartphones as part of a purported effort to "combat theft." Carriers have been justly criticized (and sued) for doing too little to prevent theft, in part because they profit on both sides of the equation -- both when a customer comes crying to Verizon to buy a new phone, and when the user with the stolen phone heads to Verizon to re-activate it on a new line.On its surface, Verizon's plan doesn't seem to have much of an initial impact on traditional users, who'll still get to have their phone unlocked after an unspecified amount of time. The only initial problems that could arise involve users who buy a phone, then head overseas to insert a local SIM to get more reasonably-priced service. Those users may have to contact Verizon before that phone will work, something that may or may not be a pain in the ass in real-world practice.But it's more the precedent of the move that has people familiar with Verizon's handiwork on this front a little nervous. Especially given Verizon's recent successes in not only killing net neutrality, but gutting most state and federal oversight of ISPs entirely (something many haven't keyed into yet). For one, locking down its devices technically violates the "Carterfone" open access rules affixed to the 700MHz spectrum used in Verizon's network. Verizon was quick to insist to CNET that this shift back toward locking down devices does not violate the "spirit of the agreement":

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Back in 2016 we wrote about how Landis+Gyr, a large multinational company owned by Toshiba, completely freaked out when it discovered that documents about its smart energy meters, which the city of Seattle had contracted to use, were subject to a FOIA request. As we noted, Landis+Gyr went legal and did so in perhaps the nuttiest way possible. First it demanded the documents be taken down from Muckrock -- the platform that makes it easy for journalists and others to file FOIA requests. Then it demanded that Muckrock reveal the details of anyone who might have seen the documents in question. It then sued Muckrock and somehow got a court to issue a temporary restraining order (TRO) against Muckrock for posting these public records.Eventually, with help from EFF, Landis+Gyr agreed to a settlement that stated that these documents were (a) public records and (b) the company would no longer attempt to take down the copies that Muckrock had obtained. From the settlement agreement posted on the public docket in the case:

As we've been discussing, the rise of stealth cryptocurrency miners embedded on websites has become a notable problem. In some instances, websites are being hacked and embedded with stealth cryptocurrency miners that quickly gobble up visitors' CPU cycles without their knowledge. That's what happened to Showtime recently when two different domains were found to be utilizing the Coinhive miner to hijack visitor broswers without users being informed. Recent reports indicate that thousands of government websites have also been hijacked and repurposed in this fashion via malware.But numerous websites are also now exploring such miners voluntarily as an alternative revenue stream. One major problem however: many aren't telling site visitors this is even happening. And since some implementations of such miners can hijack massive amounts of CPU processing power while sipping a non-insubstantial amount of electricity, that's a problem.The Pirate Bay for example was forced to stop using visitor CPUs and browsers to mine Monero last fall after Reddit users complained the miner was slowing down their PCs and eating up 80% of their CPU cycles. The website stated that it was simply exploring new revenue streams to keep the website afloat:

ICE has been instructed to make the nation safer by deporting the "worst of the worst." The nation will be made secure again, said the DHS, pointing to its report declaring three-quarters of those convicted for terrorism offenses were "foreign-born." Of course, to reach this ratio, the DHS had to count people the US government had extradited to the US to face trial for terrorism attacks committed in foreign countries, but whatever. The point is: foreigners are dangerous and ICE is going to remove them. An ongoing "challenge" for ICE has been finding enough dangerous immigrants to deport, so it's had to change its strategy a bit.So, if we're trying to root out would-be terrorists and MS-13 gang members and undocumented immigrants with long domestic criminal rap sheets, why is ICE targeting people for their First Amendment activities? That's what one rights activist wants to know, and he's taking ICE to court to force it to explain itself. Kevin Gosztola of ShadowProof has more details.

Now that we've covered a couple of stories about game companies, notably Blizzard, bullying the fans that run antiquated versions of MMO games on their own servers to shut down, it's as good a time as any to discuss a recent call for the DMCA anti-circumvention exemptions to include the curation of abandoned MMO games. A few weeks back, during the triennial public consultation period in which the U.S. Copyright Office gathers public commentary on potential exemptions to the DMCA's anti-circumvention provisions, a bunch of public comments came in on the topic of abandoned video games. Importantly, the Librarian of Congress already has granted exemptions for the purpose of preserving the art of video games so that libraries and museums can use emulators to revive classic games for the public.But what do you do if you're looking to preserve a massive multiplayer online game, or even single-player games, that rely on server connections with the company that made those games in order to operate? Those servers don't last forever, obviously. Hundreds of such games have been shut down in recent years, lost forever as the companies behind them no longer support the games or those that play them.Well, one non-profit in California, The Museum of Art and Digital Entertainment, wants anti-circumvention exemptions for running servers for these games to keep them alive as well.

Last year, we wrote about how a relatively new patent trolling operation had pretty clearly picked the wrong target in suing internet infrastructure provider Cloudflare with a sketchy patent (US Patent 6,453,335 on "providing an internet third party data channel.") Cloudflare decided not only to fight the case, but to fight all of Blackbird's patents, crowdsourcing and funding searches into prior art on any patent held by Blackbird Technologies, and arguing that the company was engaging in questionable legal practices -- acting both as a patent holding company and a law firm, while sometimes pretending not to be a law firm (despite employing mostly lawyers) to avoid some serious ethics questions.On Monday, Cloudflare received a fairly complete victory, with the judge easily dismissing the case and pointing out that the '335 patent was clearly invalid:

A couple of weeks ago, Mike was in Washington, DC for the State Of The Net conference, where he participated in a panel called Internet Speech: Truth, Trust, Transparency & Tribalism. For this week's podcast, we've got the audio from that conversation with all sorts of interesting ideas about how people are dealing with fake news, trolls, propaganda and more.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

The rise of cryptocurrency mining software like Coinhive has been a decidedly double-edged sword. While many websites have begun exploring cryptocurrency mining as a way to generate some additional revenue, several have run into problems if they fail to warn visitors that their CPU cycles are being co-opted in such a fashion. That has resulted in numerous websites like The Pirate Bay being forced to back away from the software after poor implementation (and zero transparency) resulted in frustrated users who say the software gobbled upwards of 85% of their available CPU processing power without their knowledge or consent.But websites that don't inform users this mining is happening are just one part of an emerging problem. Hackers have also taken to using malware to embed the mining software into websites whose owners aren't aware that their sites have been hijacked to make somebody else an extra buck. Politifact was one of several websites that recently had to admit its website was compromised with cryptocurrency-mining malware without their knowledge. Showtime was also forced to acknowledge (barely) that websites on two different Showtime domains had been compromised and infected with Coinhive-embedded malware.While Bloomberg this week proclaimed that governments should really get behind this whole cryptocurrency mining thing, the reality is that numerous governments already have -- just not in the way they might have intended. Security researcher Scott Helme this week discovered that more than 4,000 U.S. and UK government websites -- including the US court system website -- have been infected with cryptocurrency mining malware, a number that's sure to only balloon.As Helme notes, attackers don't need to even attack each website individually, as they've found a way to compromise shared resources like Text Help, whose modified script files were then loaded by thousands of websites at a pop:

Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »Last week we announced our new site EveryoneCreates.org, featuring stories from many different creators of music, books, movies and more about how important the internet and fair use have been to their creations. As we noted, the reason for the site is that the legacy copyright gatekeepers at the MPAA and the RIAA have been using the Trump-requested NAFTA renegotiations to try to undermine both fair use and internet safe harbors by positing a totally false narrative that the internet has somehow "harmed" content creators.Yet, as we know, and as the stories from various artists show, nothing is further from the truth. For most artists and content creators, the internet has been a huge boon. It has helped them create new art, share it and distribute it to other people, build a fan base and connect with them, and make money selling either their work or related products and services. As we've discussed before, in the past, for most artists, if you did not find a giant gatekeeper to take you on, you were completely out of the market. There was very little "long tail" to be found in most creative industries, because you either were "chosen" by a gatekeeper or you went home and did something else. But the internet has changed that. It has allowed people to go directly to their audiences, or to partner with platforms that help anyone create, distribute, promote and monetize. Indeed, the internet has undoubtedly helped everyone reading this to create art -- whether for profit or just for fun. And if that's the case with you, please share your story.But it is worth taking a step back and asking an even larger question: how the hell did we get here? How did we get to the point that the MPAA and the RIAA are using NAFTA negotiations to try to undermine the internet. Rest assured: there's a long, long history at play here, and it's important to learn about it. The idea that you can or should regulate the internet or intellectual property in trade agreements should seem strange to most people -- especially as most trade agreements these days are about increasing free trade by removing barriers to trade, and copyright by its very nature is mercantile-style trade protectionism that places artificial limits and costs on trade that might otherwise be cheaper.An excellent history on this topic comes from the aptly named 2002 book Information Feudalism: Who Owns the Knowledge Economy by Peter Drahos and John Braithweaite. It tells the story of how a concerted effort by legacy copyright maximalist organizations laid the groundwork for making sure that copyrights and patents were always included in trade agreements, by getting them in as a key part of the World Trade Organization and by the creation of TRIPS -- Trade-Related Aspects of Intellectual Property Rights. The book details how the legacy industries turned "intellectual property" from a question of benefiting the public to a solely commercial arena of corporate ownership and trade.Once that was in place, these same industries wasted little time in exploiting the reframing of issues around copyright and patents. Famously, the DMCA itself was created in this manner. The record labels and movie studios had a friend in the Clinton White House in Bruce Lehman, who wrote a white paper in 1995 requesting draconian changes to copyright law targeting the internet. However, he found little support for it in Congress. Five years ago, Lehman himself admitted that when Congress refused to act he did "an end-run around Congress" by going to Geneva and pushing for a trade agreement via the World Intellectual Property Organization (WIPO) which required DMCA-like copyright rules.With that treaty in hand, Lehman and his Hollywood friends came back to Congress, insisting that our "international obligations" now required Congress to create and pass the DMCA, or we'd suddenly face all sorts of trade and diplomatic problems for failing to live up to those "international obligations" that they themselves had put into the trade agreement. Indeed, ever since then, nearly every international trade agreement has included some crazy provisions related to copyright and patents and other IP rights -- all designed to effectively launder these laws through the highly opaque international trade negotiation process, and then insist that legislatures in various countries simply must ratchet up their laws to meet those obligations.Given all that, there's at least some irony in the fact that these same groups that forced the DMCA on Congress through an international trade agreement back in the mid-1990s are now trying to use a different trade agreement 20 years later to force changes to that very same law (and others). Once again, the process is opaque. And once again, the industry is well connected and represented on a variety of the "Industry Trade Advisory Committees" (ITACs), giving them much greater access to the details of the negotiations while the public is kept in the dark.But the history here is clear. Moving copyright into trade agreements was a purposeful move, pushed for by legacy industries so they could promote their favored protectionist laws around the globe, in part by moving them away from being designed for the public's benefit and towards a world in which information and knowledge was considered to be privatized, owned, and locked up by default. It ignored the fact that, often, the public can benefit the most when information is open and widely shared. And, decades later, we're still dealing with the fallout from these bad decisions.And that's why it's so important for policy makers to understand that it's complete hogwash to argue that the RIAA and MPAA are "representing artists" in trying to undermine the internet this way. Most artists recognize that the internet and various platforms are a key part of their ability to create, distribute, share, and support their artwork these days -- and they are not being represented at the NAFTA negotiating table.Share your story at EveryoneCreates.org to let policymakers know how important an open internet and fair use is to your own creativity.

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In recent months, both Deputy Attorney General Rod Rosenstein and FBI Director Christopher Wray have been calling for holes in encryption law enforcement can drive a warrant through. Both have no idea how this can be accomplished, but both are reasonably sure tech companies can figure it out for them. And if some sort of key escrow makes encryption less secure than it is now, so be it. Whatever minimal gains in access law enforcement obtains will apparently offset the damage done by key leaks or criminal exploitation of a deliberately-weakened system.Cryptography expert Riana Pfefferkorn has released a white paper [PDF] examining the feasibility of the vague requests made by Rosenstein and Wray. Their preferred term is "responsible encryption" -- a term that allows them to step around landmines like "encryption backdoors" or "we're making encryption worse for everyone!" Her paper shows "responsible encryption" is anything but. And, even if implemented, it will result in far less access (and far more nefarious exploitation) than Rosenstein and Wray think.The first thing the paper does is try to pin down exactly what it is these two officials want -- easier said than done because neither official has the technical chops to concisely describe their preferred solutions. Nor do they have any technical experts on board to help guide them to their envisioned solution. (The latter is easily explained by the fact that no expert on cryptography has ever promoted the idea that encryption can remain secure after drilling holes in it at the request of law enforcement.)If you're going to respond to a terrible idea like "responsible encryption," you have to start somewhere. Pfefferkorn starts with an attempt to wrangle vague law enforcement official statements into a usable framework for a reality-based argument.

Given Verizon's long-standing animosity to net neutrality (and openness and healthy competition in general), the company's acquisition of Tumblr created some understandable tension. Tumblr has been on the front lines of net neutrality support since around 2014 or so, with CEO David Karp stating in 2015 that the service wouldn't exist without net neutrality:

Digital cameras can store a wealth of personal information and yet they're treated as unworthy of extra protection -- both by courts and the camera makers themselves. The encryption that comes baked in on cellphones hasn't even been offered as an option on cameras, despite camera owners being just as interested in protecting their private data as cellphone users are.The Freedom of the Press Foundation sent a letter to major camera manufacturers in December 2016, letting them know filmmakers and journalists would appreciate a little assistance keeping their data out of governments' hands.

It's been a minute since we've had to cover some trademark nonsense in the beer industry. In fact, several recent stories have actually represented what might be mistaken for a clapback on aggressive trademark protectionism in the alcohol space. But, like all great things, it just couldn't last. The specific tomfoolery that has brought reality crashing down on us once again comes out of Iowa, where Confluence Brewing has filed a trademark suit against Confluence On 3rd, which is an apartment complex that does not serve or make beer.

With the event at Santa Clara earlier this month, and the companion essays published here, we've been talking a lot lately about how platforms moderate content. It can be a challenging task for a platform to figure out how to balance dealing with the sometimes troubling content it can find itself intermediating on the one hand and free speech concerns on the other. But at least, thanks to Section 230, platforms have been free to do the best they could to manage these competing interests. However you may think they make these decisions now, they would not come out any better without that statutory protection insulating them from legal consequence if they did not opt to remove absolutely everything that could tempt trouble. If they had to contend with the specter of liability in making these decisions it would inevitably cause platforms to play a much more censoring role at the expense of legitimate user speech.Fearing such a result is why the Copia Institute filed an amicus brief at the Ninth Circuit last year in Fields v. Twitter, one of the many "how dare you let terrorists use the Internet" cases that keep getting filed against Internet platforms. While it's problematic that they keep getting filed, they have fortunately not tended to get very far. I say "fortunately," because although it is terrible what has happened to the victims of these attacks, if platforms could be liable for what terrorists do it would end up chilling platforms' ability to intermediate any non-terrorist speech. Thus we, along with the EFF and the Internet Association (representing many of the bigger Internet platforms), had all filed briefs urging the Ninth Circuit to find, as the lower courts have tended to, that Section 230 insulates platforms from these types of lawsuits.A few weeks ago the Ninth Circuit issued its decision. The good news is that this decision affirms that the end has been reached in this particular case and hopefully will deter future ones. However the court did not base its reasoning on the existence of Section 230. While somewhat disappointing because we saw this case as an important opportunity to buttress Section 230's critical statutory protection, by not speaking to it at all it also didn't undermine it, and the fact the court ruled this way isn't actually bad. By focusing instead on the language of the Anti-Terrorism Act itself (this is the statute barring the material support of terrorists), it was still able to lessen the specter of legal liability that would otherwise chill platforms and force them to censor more speech.In fact, it may even be better that the court ruled this way. The result is not fundamentally different than what a decision based on Section 230 would have led to: like with the ATA, which the court found would have required some direct furtherance by the platform of the terrorist act, so would Section 230 have required the platform's direct interaction with the creation of user content furthering the act in order for the platform to potentially be liable for its consequences. But the more work Section 230 does to protect platforms legally, the more annoyed people seem to get at it politically. So by not being relevant to the adjudication of these sorts of tragic cases it won't throw more fuel on the political fire seeking to undermine the important speech-protective work Section 230 does, and then it hopefully will remain safely on the books for the next time we need it.[Side note: the Ninth Circuit originally issued the decision on January 31, but then on 2/2 released an updated version correcting a minor typographical error. The version linked here is the latest and greatest.]

We should all know by now that Facebook's reliability to handle copyright takedown requests is... not great. Like far too many internet platforms these days, the site typically puts its thumbs heavily on the scales such that the everyday user gets far less preference than large purported rights holders. I say "purported" because, of course, many bogus takedown requests get issued all the time. It's one of the reasons that relying on these platforms, when they have shown no willingness to have any sort of spine on copyright matters, is such a mistake.But few cases are as egregious as that of Leo Saldanha, a well-known environmental activist in India. When I tell you that Saldanha had a Facebook post taken down over a copyright notice, you must certainly be thinking that it had something to do with environmental activism. Nope! Actually, Saldanha wrote an all-text mini-review of an Indian film, Padmaavat, which was taken down after the distributor for the film claimed the post infringed on its copyrights. Here is the entirety of his post that was taken down.

By now it has been pretty well established that the security and privacy of most "internet of things" devices is decidedly half-assed. Companies are so eager to cash in on the IOT craze, nobody wants to take responsibility for their decision to forget basic security and privacy standards. As a result, we've now got millions of new attack vectors being introduced daily, including easily-hacked "smart" kettles, door locks, refrigerators, power outlets, Barbie dolls, and more. Security experts have warned the check for this dysfunction is coming due, and it could be disastrous.Smart televisions have long been part of this conversation, where security standards and privacy have also taken a back seat to blind gee whizzery. Numerous set vendors have already been caught hoovering up private conversations or transmitting private user data unencrypted to the cloud. One study last year surmised that around 90% of smart televisions can be hacked remotely, something intelligence agencies, private contractors and other hackers are clearly eager to take full advantage of.Consumer Reports this week released a study suggesting that things aren't really improving. The outfit, which is working to expand inclusion of privacy and security in product reviews, studied numerous streaming devices and smart TVs from numerous vendors. What they found is more of the same: companies that don't clearly disclose what consumer data is being collected and sold, aren't adequately encrypting the data they collect, and still don't seem to care that their devices are filled with security holes leaving their customers open to attack.The company was quick to highlight Roku's many smart TVs and streaming devices, and the company's failure to address an unsecured API vulnerability that could allow an attacker access to smart televisions operating on your home network. This is one of several problems that has been bouncing around since at least 2015, notes the report:

Eric Goldman has come across an amazing pro se lawsuit [PDF] being brought by Nicholas C. Georgalis, an aggrieved social media user who believes he's owed an open platform in perpetuity, no matter what awful things he dumps onto service providers' pages. Oh, and he wants Section 230 immunity declared unconstitutional.Georgalis -- who sidelines as a "professional training professionals" when not filing stupid lawsuits -- is suing Facebook for periodically placing him in social media purgatory after removing posts of his. The lawsuit is heady stuff. And by "heady stuff," I mean we're going to be dealing with a lot of arguments about "sovereign rights" and "common law" and other related asshattery.Here's the opening. And it only gets better/worse from there:

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Back in December, right before the Waymo/Uber trial was supposed to begin (before it got delayed due to an unexpected bombshell about withholding evidence that... never actually came up at the trial), I had a discussion with another reporter about the case, in which we each expressed our surprise that a settlement hadn't been worked out before going to trial. It seemed as though part of the case was really about the two companies really disliking each other, rather than there being a really strong legal case.A year ago, when the case was filed, I expressed disappointment at seeing Google filing this kind of lawsuit. My concern was mainly over the patent part of the case (which were dropped pretty early on), and the fact that Google, historically, had shied away from suing competitors over patents, tending to mostly use them defensively. But I had concerns about the "trade secrets" parts of the case as well. While there does seem to be fairly clear evidence that Anthony Levandowski -- the ex-Google employee at the heart of the discussion -- did some sketchy things in the process of leaving Google, starting Otto, and quickly selling Otto to Uber, the case still felt a lot like a backdoor attempt to hold back employee mobility.As we've discussed for many years, a huge part of the reason for the success of Silicon Valley in dominating the innovation world has to do with the ease of employee mobility. Repeated studies have shown that the fact that employees can switch jobs easily, or start their own companies easily, is a key factor in driving innovation forward. It's the sharing and interplay of ideas that allows the entire industry to tackle big problems. Individual firms may compete around those big breakthroughs, but it's the combined knowledge, ideas, and perspective sharing that results in the big breakthroughs.And even though that's widely known, tech companies have an unfortunate history of trying to stop employees from going to competitors. While non-competes have been ruled out in California, a few years back there was a big scandal over tech companies having illegal handshake agreements not to poach employees from one another. It was a good thing to see the companies fined for such practices.However, the latest move is to use "trade secrets" claims as way to effectively get the same thing done. The mere threat of lawsuits can stop companies from hiring employees, and can limit an employee's ability to find a new job somewhere else. That should concern us all.However, in this lawsuit, everything was turned a bit upside down. Part of it was that there did appear to be some outrageous behavior by Levandowski. Part of it was that, frankly, there are few companies out there disliked as much as Uber. It does seem that if it were almost any other company on the planet, many more people would have been rooting against Google as the big incumbent suing a smaller competitor. But, in this case, many many people seemed to be rooting for Google out of a general dislike of Uber itself.My own fear was that this general idea of "Uber = bad" combined with "Levandowski doing sketchy things" could lead to a bad ruling which would then be used to limit employee mobility in much more sympathetic settings. Thankfully, that seems unlikely to happen. As Sarah Jeong (who's coverage of this case was absolutely worth following) noted, despite all the rhetoric, it wasn't at all clear that Waymo proved its case. Lots of people wanted Google/Waymo to win for emotional reasons, but the legal evidence wasn't clearly there.And now the case is over. As the trial was set to continue Friday morning, it was announced that the two parties had reached a settlement, in which Uber basically hands over a small chunk of equity to Waymo (less than Waymo first tried to get, but still significant). As Jeong notes in another article, both sides had ample reasons to settle -- but the best reason of all to settle is so that they can focus on just competing in the market, rather than the courtroom and in not setting bad and dangerous precedent concerning employee mobility in an industry where that's vital.

You might recall that just a few years ago, HBO had to be dragged kicking and screaming into the modern era. For years the company refused to offer a standalone streaming TV service, worried that it would jeopardize the company's cozy promotional relationship with existing cable providers (who often all but give away the channel in promotions). As recently as 2013 Time Warner CEO Jeff Bewkes was claiming that such an offering would make "no economic sense."Why? Bewkes was worried that offering a standalone option would upset cable partners. At the time, those partners were already offering an HBO streaming app named HBO Go, but only if you signed up for traditional TV. This was art of the industry's walled garden "TV Everywhere" initiative, a misguided attempt at stopping cord cutters by only giving them innovative streaming services -- if they signed up for bloated, traditional television bundles. Bewkes was clearly worried at the time that being too damn innovative would upset industry executives and skew the company's balance sheets:

For years, Manhattan DA Cy Vance has been warning us about the coming criminal apocalypse spurred on by cellphone encryption. "Evil geniuses" Apple introduced default encryption in a move likely meant to satiate lawmakers hollering about phone theft and do-nothing tech companies. In return, DA Cy Vance (and consecutive FBI directors) turned on Apple, calling device encryption a criminal's best friend.Vance still makes annual pitches for law enforcement-friendly encryption -- something that means either backdoors or encryption so weak it can be cracked immediately. Both ideas would also be criminal-friendly, but Vance is fine with sacrificing personal security for law enforcement access. Frequently, these pitches are accompanied with piles of uncracked cellphones -- a gesture meant to wow journalists but ultimately indicative of nothing more than how much the NYPD can store in its evidence room. (How many are linked to active investigations? How many investigations continued to convictions without cellphone evidence? Were contempt charges ever considered to motivate cellphone owners into unlocking phones? So many questions. Absolutely zero answers.)Will Vance be changing his pitch in the near future? Will he want weakened encryption safeguarding the NYPD's new tools? I guess we'll wait and see. (h/t Robyn Greene)

This week, our first place winner on the insightful side comes in response to the FCC's refusal to release certain records to a FOIA request. David noted that their reason — "to prevent harm to the agency" — was a big problem:

Five Years AgoThis week in 2013, the EU was taking a worryingly restrictive approach to trying to fix copyright licensing, France's Hadopi was trying to get the national library to use more DRM, and Japan was planning to seed P2P networks with fake files containing copyright warnings. The UK, on the other hand, rejected plans to create a new IP Czar, though a new copyright research center seeking to restore some balance to the overall debate was facing heavy opposition right out the gate. This was also the week that we wrote about the curious privacy claims about tweets from an investigative journalist named Teri Buhl, which quickly prompted a largely confused response and, soon afterwards, threats of a lawsuit.Ten Years AgoThis week in 2008, the recording industry was continuing its attempts to sue Baidu and floating fun ideas like building copyright filters into antivirus software, while we were taking a look at the morass of legacy royalty agreements holding back the industry's attempts at innovation. A Danish court told an ISP it had to block the Pirate Bay, leading the ISP to ask for clarification while it considered fighting back. And Microsoft was doing some scaremongering in Canada in pursuit of stronger copyright laws.Fifteen Years AgoThis week in 2003, Germany's patent office was seeking a copyright levy on all PCs, while the EU was mercifully pushing back on attempts to treat more infringement as criminal. One record label executive was telling the industry it had to embrace file sharing or die, but the company line was still the language of moral panic. Speaking of which, in an interview in the Harvard Political Review, Jack Valenti was asked about his infamous "Boston strangler" warning about VCRs — and proceeded to tell a bunch of lies to claim his warning was in fact apt.

It is something of an unfortunate Techdirt tradition that every time the Olympics rolls around, we are alerted to some more nonsense by the organizations that put on the event -- mainly the International Olympic Committee (IOC) -- going out of their way to be completely censorial in the most obnoxious ways possible. And, even worse, watching as various governments and organizations bend to the IOC's will on no legal basis at all. In the past, this has included the IOC's ridiculous insistence on extra trademark rights that are not based on any actual laws. But, in the age of social media it's gotten even worse. The Olympics and Twitter have a very questionable relationship as the company Twitter has been all too willing to censor content on behalf of the Olympics, while the Olympic committees, such as the USOC, continue to believe merely mentioning the Olympics is magically trademark infringement.So, it's only fitting that my first alert to the news that the Olympics are happening again was hearing how Washington Post reporter Ann Fifield, who covers North Korea for the paper, had her video of the unified Korean team taken off Twitter based on a bogus complaint by the IOC:

Online platforms have enabled an explosion of creativity — but the laws that make this possible are under attack in NAFTA negotiations. We recently launched EveryoneCreates.org to share the stories of artists and creators who have been empowered by the internet. This guest post from Public Knowledge's Gus Rossi explore's what's at stake.In the past few weeks, we at Public Knowledge have been talking with decision-makers on Capitol Hill about NAFTA. We wanted to educate ourselves on the negotiation process for this vital trade agreement, and fairly counsel lawmakers interested in its effects on consumer protection. And we discovered a thing or two in this process.It won’t surprise anyone that we don’t always agree with lobbyists for the big entertainment companies when it comes to creating a balanced copyright system for internet users. But some of the ideas these groups are advancing are widely misleading, brutally dishonest, and even dangerous to democracy. We wanted to share the two wildest ideas the entertainment industries are proposing in the new-NAFTA, so you can help us set the record straight before it’s too late:1) Safe harbors enable child pornography and human trafficking.Outside specialized circles, common wisdom is that “safe harbors” are free get-out-of-jail cards that internet intermediaries like Facebook can use to avoid all responsibility for anything that internet users say or do in their services. Leveraging this fallacy, entertainment industry lobbyists are arguing that safe harbors facilitate child pornography and human trafficking. Therefore, the argument follows, NAFTA should not promote safe harbors.This is highly misleading. Safe harbors are simply legal provisions that exempt internet intermediaries such as YouTube or Twitter, and broadband providers such as Comcast or AT&T, from liability for the infringing actions of their users under certain specific circumstances. Without safe harbors, internet intermediaries would be obligated to censor and control everything their users do on their platforms, as they would be directly liable for it. Everything from social media, to internet search engines, to comments section in newspapers, would be highly restricted without some limitations on intermediary liability.The Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA 230) establish the two most important limitations for online intermediaries in US law. According to the DMCA, internet access providers (such as Comcast, AT&T, and Verizon) are not liable for the alleged copyright infringement of users on their networks, so long as they maintain a policy of terminating repeat infringers. Content hosts (such as blogs, image-hosting sites, or social media platforms) on the other hand, have to remove material if the copyright holder sends a takedown notice of infringement.CDA 230 says that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them directly responsible for what others say and do.The relevant safe harbor for the interests of the entertainment industries is the DMCA, not CDA 230. CDA 230 specifically excludes copyright from its umbrella. And DMCA is exclusively about copyright. It is incredible dishonest and shallow for these lobbyists to use the specter of child abuse to drum up support for their position on copyright in NAFTA. No one should try to obfuscate a complicated policy discussion by accusing their opponents of promoting child sex trafficking.2) Exceptions and limitations to copyright are unnecessary in trade agreements.According to none other than the World Intellectual Property Organization, exceptions and limitations to copyright -- such as fair use -- exist “[i]n order to maintain an appropriate balance between the interests of rights holders and users of protected works, [allowing] cases in which protected works may be used without the authorization of the rights holder and with or without payment of compensation.” Without exceptions and limitations, everything from using a news clip for political parody, to sharing a link to a news article in social media, to discussing or commenting on just about any work of art or scholarship -- all could constitute copyright infringement.Yet, the entertainment industries are arguing that exceptions and limitations are outdated and unnecessary in trade agreements. They say that copyright holders should be protected from piracy and unlawful use of their works, claiming that any exceptions and limitations are a barrier to the protection of American artists.This is also wildly inaccurate. American artists and creators remix, reuse, and draw inspiration from copyrighted works every single day. If our trade partners don’t adopt exceptions and limitations to copyright, then these creators could be subject to liability when exporting their work to foreign countries. Exceptions and limitations to copyright are necessary both in the US and elsewhere. Our copyright system simply wouldn’t work without them, especially in the digital age.Conclusion: We need to set the record straight.For its political and economic importance, NAFTA could be be the standard for future American-sponsored free trade agreements. But NAFTA could have dramatic and tangible domestic consequences if it undermines safe harbors and exceptions and limitations to copyright. In the next policy debate around copyright infringement or intermediaries liabilities, the entertainment industries will point to NAFTA as an example of the US Government’s stated policy and where the world is moving.Furthermore, these lobbyists will have already convinced many on Capitol Hill that safe harbors enable child abuse and that fair use is unnecessary. The entertainment industries knows how to walk through the corridors of power day after day -- they’ve been doing so for well over a century.It’s not too late to fight back, set the record straight, and defend a balanced approach to copyright and consumer protections in NAFTA. You can start by contacting your representative. But the clock is ticking. Join Public Knowledge in the fight to keep the internet open for everyone.Visit EveryoneCreates.org to read stories of creation empowered by the internet, and share your own! »