Congress Shouldn't Turn the Copyright Office Into A Copyright Court



  • While most people are focused on net neutrality, surveillance, and tax reform, a few legislators are quietly mulling over a different problem: copyright reform.

    Five years ago, Representative Bob Goodlatte, chair of the House Judiciary Committee, launched a series of hearings and studies that he said would lead to comprehensive copyright reform. EFF and many others testified on the merits and problems in virtually every facet of copyright law, and we all waited expectantly for the “Next Great Copyright Act.” For better or worse, that dramatic reform never happened. Instead, we got the CASE Act, a bill to create a small claims process for copyright. The impetus behind this bill comes largely from photographers and other visual artists, who want a way to bring small-value copyright claims with lower expenses. They are legitimately concerned that the cost of litigation puts strong copyright protection out of reach for many artists.

    But the CASE Act is not the right solution. First, it would create a new quasi-court within the Copyright Office. Aside from the constitutional questions that raises, the Copyright Office is not known for its neutrality on copyright issues. Second, the powers given to this new tribunal would invite gamesmanship and abuse. Third, it would magnify the existing problem of copyright’s unpredictable civil penalties. Finally, it would put this new tribunal in charge of punishing DMCA abuse, but sharply limit the punishment available, undermining what little deterrent effect still exists in the statute.

    Let’s break it down.

    The CASE Act Would Turn the Copyright Office Into a Copyright Court

    The current bill, the “CASE Act of 2017” (H.R. 3945), would set up a “Copyright Claims Board” within the Copyright Office, staffed by three judges called “Claims Officers” and empowered to hear copyright complaints from all over the country. Proceedings at the Claims Board would be voluntary, but if a respondent fails to opt out, the proceedings become binding, and the outcome can be enforced in federal court. The Board can issue damages awards of up to $15,000 per work infringed, or $30,000 per proceeding. If the parties consent, it can also issue “agreements to cease infringing activity” that become binding injunctions.

    Unfortunately, the Copyright Office has a history of putting copyright holders’ interests ahead of other important legal rights and policy concerns. We fear that any small claims process the Copyright Office conducts will tend to follow that pattern.

    The CASE Act’s “opt-out” approach, which attempts to make the process more palatable by allowing defendants to choose to go to federal court instead, doesn’t help. If the process required respondents to give affirmative consent, or “opt-in,” the Copyright Office would have greater incentive to design proceedings that safeguard the respondents’ interests, and clear standards that everyone can understand. Equally importantly, an opt-in approach would help ensure that both participants affirmatively choose to litigate their dispute in this new court, and help prevent copyright holders from abusing the system to obtain inexpensive default judgments that will be hard to appeal (grounds for appeal are sharply limited).

    More Automatic Civil Penalties, No Need to Show Harm

    The bill would make copyright’s already unfair and unpredictable civil penalty regime even worse. Current law lets courts award civil penalties, known as statutory damages, of up to $150,000 for each copyrighted work infringed. These penalties go to the copyright holder, but aren’t tied to any measure of actual harm. In fact, copyright holders don’t have to introduce any evidence at all to show that they were harmed by an infringement (or that the infringer profited). Statutory damage awards vary wildly from one case to the next, making copyright lawsuits a game of financial Russian roulette for defendants.

    Under current law, statutory damages do have a small safety measure attached: they’re not available for works that weren’t registered with the Copyright Office in a timely way. That rule is important because copyright applies automatically to creative works the moment they’re fixed in a tangible form. The timely registration rule limits the universe of works that are eligible for statutory damages. The CASE Act would throw that safety away. While the Act limits the damages available in a single proceeding, it allows statutory damages of up to $7,500 for works that were not timely registered. That makes countless millions more works eligible for automatic, no-proof-required civil penalties. It’s worth noting that a majority of U.S. states limit small claims to $6,000 or less.

    Congress needs to fix copyright’s broken civil penalty regime. Indeed, both the former U.S. Register of Copyrights and a Department of Commerce task force have called this a priority. But instead of making statutory damages more fair and predictable, the CASE Act simply multiplies the problem.

    Subpoenas To Unmask Anonymous Speakers

    The CASE Act would also give the new “Copyright Claims Officers” the power to issue subpoenas to service providers for the “identification of an alleged infringer.” While backers of this legislation will likely claim that this provision simply replicates what’s already available in federal court, there are dangerous differences here. In federal court, civil subpoenas can normally only be issued after a plaintiff has demonstrated that they have a viable case. The federal courts have decades of experience crafting appropriately limited subpoenas, and supervising their use. In copyright cases, courts have begun to take extra care before issuing subpoenas to service providers to unmask an accused infringer, when circumstances suggest the information will be used to harass, or to coerce settlements based on dubious claims.

    Under the CASE Act, it’s not clear that the careful limitations and safeguards established by the federal courts—limits that apply equally to every kind of legal claim—will apply in the new quasi-court. Instead, the bill seems to give the Copyright Office broad power to shape how these subpoenas will work, including how broad they can be. The Copyright Office would be empowered to decide how subpoenas can be issued, what they can contain, and “the obligations of a service provider who is issued a subpoena” — without following federal court procedures and protections. The bill doesn’t even clearly require that a copyright holder state a plausible claim of copyright infringement before requesting a subpoena—a basic requirement in federal court. Without that requirement, even a specious or pretextual accusation of copyright infringement could be used to unmask anonymous speakers.

    It’s certainly possible that the Copyright Office could create a completely new set of subpoena rules that protect anonymous speech—or import the appropriate federal court precedent. But given the Copyright Office’s persistent stance of elevating copyright holders’ interests over other speech interests, granting the Office such broad authority would be reckless. The right to speak anonymously on the Internet is one of the most important speech protections we have, and the CASE Act would jeopardize it.

    Copyright “Parking Tickets” — Due Process Optional

    While the CASE Act establishes some court-like procedures, it also gives the Copyright Office permission to disregard those procedures as long as the amount of damages being sought is $5,000 or less (which is at or above the maximum small claims amount in 21 states). For those claims, the Copyright Office would be empowered to make new procedural rules, potentially with little or no protections for people accused of infringement. As Public Knowledge points out in their analysis of the bill, knowledgeable defendants will opt out of such proceedings, while legally unsophisticated targets, including ordinary Internet users, could find themselves committed to an unfair, accelerated process handing out largely unappealable $5,000 copyright parking tickets. Proceedings under this “small small claims” regime could be a boon for copyright trolls who pursue thousands of low-value settlements based on dubious claims of infringement, as it would give their efforts the imprimatur of a government body.

    It’s true that federal litigation for small-dollar-value disputes generally isn’t practical. The federal courts impose costly, sometimes unnecessary burdens on nearly all who use them. But much of that expense comes from procedures that promote fairness, established and refined through years of use in all types of cases, not copyright infringement suits alone. Creating a parallel track that allows copyright holders to dispense with those procedures as a privileged category of litigants just doesn’t make sense.

    Sidelining Section 512(f)

    The bill would also authorize the tribunal to decide Section 512(f) claims. The DMCA’s takedown procedure provides a quick, cheap, extrajudicial way to censor online speech. As we’ve written many, many times before, this makes it a tempting tool for those who wish to remove speech they happen to dislike. To prevent such abuse, Section 512(f) of the DMCA provides victims of wrongful takedowns with a remedy, allowing them to file a lawsuit for misrepresentation and, if they succeed, recover damages—including attorneys’ fees.

    There are at least two problems with putting the Copyright Office in charge of policing DMCA abuse. First, the courts have so far interpreted Section 512(f) to turn on whether there is evidence that the notice sender subjectively knew the targeted use was actually lawful. That issue will often be too complicated for the small claims process, and shouldn’t be decided by a historically biased agency. Second, damages are limited to what is otherwise available under the CASE Act, undermining Section 512(f)’s deterrent effect (this is the flip side of the damages issue discussed above).

    The CASE Act’s flaws are fundamental, and with all that Congress is or could be doing to fix copyright law and safeguard the open Internet, this bill is the wrong move at the wrong time.

    https://www.eff.org/deeplinks/2017/11/creating-copyright-court-copyright-office-wrong-move





Tmux Commands

screen and tmux

A comparison of the features (or more-so just a table of notes for accessing some of those features) for GNU screen and BSD-licensed tmux.

The formatting here is simple enough to understand (I would hope). ^ means ctrl+, so ^x is ctrl+x. M- means meta (generally left-alt or escape)+, so M-x is left-alt+x

It should be noted that this is no where near a full feature-set of either group. This - being a cheat-sheet - is just to point out the most very basic features to get you on the road.

Trust the developers and manpage writers more than me. This document is originally from 2009 when tmux was still new - since then both of these programs have had many updates and features added (not all of which have been dutifully noted here).

Action tmux screen
start a new session tmux OR
tmux new OR
tmux new-session
screen
re-attach a detached session tmux attach OR
tmux attach-session
screen-r
re-attach an attached session (detaching it from elsewhere) tmux attach -d OR
tmux attach-session -d
screen -dr
re-attach an attached session (keeping it attached elsewhere) tmux attach OR
tmux attach-session
screen -x
detach from currently attached session ^b d OR
^b :detach
^a ^d OR
^a :detach
rename-window to newname ^b , <newname> OR
^b :rename-window <newn>
^a A <newname>
list windows ^b w ^a w
list windows in chooseable menu ^a "
go to window # ^b # ^a #
go to last-active window ^b l ^a ^a
go to next window ^b n ^a n
go to previous window ^b p ^a p
see keybindings ^b ? ^a ?
list sessions ^b s OR
tmux ls OR
tmux list-sessions
screen -ls
toggle visual bell ^a ^g
create another window ^b c ^a c
exit current shell/window ^d ^d
split window/pane horizontally ^b " ^a S
split window/pane vertically ^b % ^a |
switch to other pane ^b o ^a <tab>
kill the current pane ^b x OR (logout/^D)
collapse the current pane/split (but leave processes running) ^a X
cycle location of panes ^b ^o
swap current pane with previous ^b {
swap current pane with next ^b }
show time ^b t
show numeric values of panes ^b q
toggle zoom-state of current pane (maximize/return current pane) ^b z
break the current pane out of its window (to form new window) ^b !
re-arrange current panels within same window (different layouts) ^b [space]
Kill the current window (and all panes within) ^b killw [target-window]
  • Criteo is an ad company. You may not have heard of them, but they do retargeting, the type of ads that pursue users across the web, beseeching them to purchase a product they once viewed or have already bought. To identify users across websites, Criteo relies on cross-site tracking using cookies and other methods to follow users as they browse. This has led them to try and circumvent the privacy features in Apple’s Safari browser which protects its users from such tracking. Despite this apparently antagonistic attitude towards user privacy, Criteo has also been whitelisted by the Acceptable Ads initiative. This means that their ads are unblocked by popular adblockers such as Adblock and Adblock Plus. Criteo pays Eyeo, the operator of Acceptable Ads, for this whitelisting and must comply with their format requirements. But this also means they can track any user of these adblockers who has not disabled Acceptable Ads, even if they have installed privacy tools such as EasyPrivacy with the intention of protecting themselves. EFF is concerned about Criteo’s continued anti-privacy actions and their continued inclusion in Acceptable Ads.

    Safari Shuts out Third Party Cookies…

    All popular browsers give users control over who gets to set cookies, but Safari is the only one that blocks third-party cookies (those set by a domain other than the site you are visiting) by default. (Safari’s choice is important because only 5-10% of users ever change default settings in software.) Criteo relies on third-party cookies. Since users have little reason to visit Criteo’s own website, the company gets its cookies onto users’ machines through its integration on many online retail websites. Safari’s cookie blocking is a major problem for Criteo, especially given the large and lucrative nature of iPhone’s user base. Rather than accept this, Criteo has repeatedly implemented ways to defeat Safari’s privacy protections.

    One workaround researchers detected Criteo using was to redirect users from sites where their service was present to their own. For example, if you visited wintercoats.com and clicked on a product category, you would be first diverted to criteo.com and then redirected to wintercoats.com/down-filled. Although imperceptible to the user, this detour was enough to persuade the browser that criteo.com is a site you chose to visit, and therefore a first party entitled to set a cookie rather than a third party. Criteo applied for a patent on this method in August 2013.

    …And Closes the Backdoor

    Last summer, however, Apple unveiled a new version of Safari with more sophisticated cookie handling—called Intelligent Tracking Prevention (ITP)—which killed off the redirect technique as a means to circumvent the cookie controls. The browser now analyzes if the user has engaged with a website in a meaningful way before allowing it to set a cookie. The announcement triggered panic among advertising companies, whose trade association, the Interactive Advertising Bureau, denounced the feature and rushed out technical recommendations to work around it. Obviously the level of user “interaction” with Criteo during the redirect described above fails ITP’s test, which meant Criteo was locked out again.

    It appears that Criteo’s response was to abandon cookies for Safari users and to generate a persistent identifier by piggybacking on a key user safety technology called HSTS. When a browser connects to a site via HTTPS (i.e. a site that supports encryption), the site can respond with an HTTP Strict Transport Security policy (HSTS), instructing the browser to only contact it using HTTPS. Without a HSTS policy, your browser might try to connect to the site over regular old unencrypted HTTP in the future—and thus be vulnerable to a downgrade attack. Criteo used HSTS to sneak data into the browser cache to produce an identifier it could use to recognize the individual’s browser and profile them. This approach relied on the fact that it is difficult to clear HSTS data in Safari, requiring the user to purge the cache entirely to delete the identifier. For EFF, it is especially worrisome that Criteo used a technique that pits privacy protection against user security interests by targeting HSTS. Use of this mechanism was documented by Gotham City Research, an investment firm who have bet against Criteo’s stock.

    In early December, Apple released an update to iOS and Safari which disabled Criteo’s ability to exploit HSTS. This led to Criteo revising down their revenue forecasts and a sharp fall in their share price.

    How is Criteo Acceptable Advertising”****?

    "… w__e sort of seek the consent of users, just like we had done before_."__1_ - Erich Eichmann, CEO Criteo

    _"Only users who don’t already have a Criteo identifier will see the header or footer, and it is displayed only once per device. Thanks to [the?] Criteo advertisers network, most of your users would have already accepted our services on the website of another of our partner. On average, only 5% of your users will see the headers or footers, and for those who do, the typical opt-out rate is less than .2%._" - Criteo Support Center

    Criteo styles itself as a leader in privacy practices, yet they have dedicated significant engineering resources to circumventing privacy tools. They claim to have obtained user consent to tracking based on a minimal warning delivered in what we believe to be a highly confusing context. When a user first visits a site containing Criteo’s script, they received a small notice stating, _"_Click any link to use Criteo’s cross-site tracking technology." If the user continues to use the site, they are deemed to have consented. Little wonder that Criteo can boast of a low opt-out rate to their clients.

    Due to their observed behaviour prior to the ITP episode, Criteo’s incorporation into the Acceptable Ads in December 2015 aroused criticism among users of ad blockers. We have written elsewhere about how Acceptable Ads creates a clash of interests between adblocking companies and their users, especially those concerned with their privacy. But Criteo’s participation in Acceptable Ads brings into focus the substantive problem with the program itself. The criteria for Acceptable Ads are concerned chiefly with format and aesthetic aspects (e.g. How big is the ad? How visually intrusive? Does it blink?) and excludes privacy concerns. Retargeting is unpopular and mocked by users, in part because it wears its creepy tracking practices on its sleeve. Our view is that Criteo’s bad behavior should exclude its products from being deemed “acceptable” in any way.

    The fact that the Acceptable Ads Initiative has approved Criteo’s user-tracking-by-misusing-security-features ads is indicative of the privacy problems we believe to be at the heart of the Acceptable Ads program. In March this year, Eyeo announced an Acceptable Ads Committee that will control the criteria for Acceptable Ads in the future. The Committee should start by instituting a rule which excludes companies that circumvent explicit privacy tools or exploit user security technologies for the purpose of tracking.

    1. http://criteo.investorroom.com/download/Transcript_Q3+2017+Earnings_EDITED.pdf

    https://www.eff.org/deeplinks/2017/12/arms-race-against-trackers-safari-leads-criteo-30

    read more
  • Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying “Good luck in the race!” or “Have fun in New York!” Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That’s not a good invention, it’s our latest Stupid Patent of the Month.

    U.S. Patent No. 9,069,648 is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” The patent provides examples such as sending the message “don’t give up” when the user is running up a hill. The examples aren’t limited to health or exercise. For example, the patent suggests sending messages like “do not fear” and “God is with you” when a “user enters a dangerous neighborhood.”

    The patent’s description of its invention is filled with silly, non-standard acronyms like ABS for “activity based suggestive” messages or EBIF for “electronic based intelligence function.” These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.

    The ’648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of the people behind it has been involved in massive patent trolling campaigns before. And the two named inventors have both been inventors on patents that trolls have asserted hundreds of times. One is also an inventor listed on patents asserted by infamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted by Electronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the ’648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.

    We believe that the claims of the ’648 patent are clearly invalid under the Supreme Court’s decision in Alice v. CLS Bank, which held abstract ideas do not become eligible for a patent merely because they are implemented in conventional computer technology. Indeed, the patent repeatedly emphasizes that the claimed methods are not tied to any particular hardware or software. For example, it states:

    The software and software logic described in this document … which comprises an ordered listing of executable instructions for implementing logical functions, can be embodied in any non-transitory computer-readable medium for use by or in connection with an instruction execution system, apparatus, or device, such as a computer-based system, processor-containing system, or other system that can fetch the instructions from the instruction execution system, apparatus, or device and execute the instructions.

    The ’648 patent issued on June 30, 2015, a full year after the Supreme Court’s Alice ruling. Despite this, the patent examiner never even discussed the decision. If Alice is to mean anything at all, it has to be applied to an application like this one.

    In our view, if Motivational Health Messaging asserts its patent in court, any defendant that fought back should prevail under Alice. Indeed, we would hope that the court would strongly consider awarding attorney’s fees to the defendant in such a case. Shipping & Transit has now had two fee awards made against it for asserting patents that are clearly invalid under Alice. And the Federal Circuit recently held that fee awards can be appropriate when patent owners make objectively unreasonable argument concerning Alice.

    In addition to the problems under Alice, we believe the claims of the ’648 patent should have been rejected as obvious. When the application was filed in 2012, there was nothing new about sending motivational messages or automatically tailoring messages to things like location. In one proposed embodiment, the patent suggests that a “user walking to a hole may be delivered ABS messages, including reminders or instructions on how to play a particular hole.” But golf apps were already doing this. The Patent Office didn’t consider any real-world mobile phone applications when reviewing the application.

    If you want to look for prior art yourself, Unified Patents is running a crowdsourcing contest to find the best prior art to invalidate the ’648 patent. Aside from the warm feelings that come from fighting patent trolls, there is a $2000 prize pool.

    Despite the weakness of its patent, Motivational Health Messaging LLC might still send out demand letters. If you receive such a letter, you can contact EFF and we can help you find counsel.

    We have long complained that the Patent Office promotes patent trolling by granting obvious and/or abstract software patents. The history of the ’648 patent shows how the Patent Office’s failure to properly review applications leads to bad patents falling into the hands of trolls.

    read more
});