Fair Use as Consumer Protection
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Talking about fair use often means talking about your right to re-use existing copyrighted works in the process of making something new - to make remixes and documentaries, parodies, or even to build novel Internet search tools. But now that copyright-protected software is in almost everything (including our cars, our toasters, our pacemakers and our insulin pumps) fair use has a new critically important role: basic consumer protection.
We entrust a lot of our lives to the devices we use on a daily basis – and to the software inside them. We trust them to get us from one place to another safely, to monitor our health conditions accurately and securely, and to keep us warm on a cold night. But what if those devices break? What if we want to make sure they aren’t collecting information about us without our consent, or infecting our systems with malware? What if we just want to be able to use third party apps and so on to make them work better?
If we want to do any of those things, chances are we’ll need to tinker with or make intermediate copies of the software. And that means we’ll need to turn to the fair use doctrine. It protects your ability to reverse engineer your stuff (so you can see what the software is doing), to make intermediate copies of your software (which is necessary to run your devices, test the software, and design interoperable products), and to make transformative uses of the underlying software (to modify it, tweak it, or use it to create new and better things).
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Want to make sure the software in your kids’ toys isn’t exposing their private conversations and information? You need fair use.
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Want to make sure software installed on your computer isn’t leaking your personal information? You need fair use.
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Want to keep your smart TV from recording all your private conversations? You need fair use.
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Want your smart phone (or other mobile device) to run independent applications or interface with applications of your choosing? You need fair use.
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Want to unlock your phone so you can use it with another carrier? You need fair use.
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Want to fix your car (or take it to your trusted mechanic)? You need fair use.
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Want to know if your car is vulnerable to hackers? You need fair use.
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Want to fix your thermostat when a glitch bricks it in the middle of winter? You need fair use.
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Want to make sure your heart monitor is working correctly? You need fair use.
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Want to build a better mousetrap (or app)? You need fair use.
We could go on. Simply put, we need fair use to protect the activities that make our software-enabled devices safer and better.
But there’s a problem. Laws like Section 1201 of the Digital Millennium Copyright Act and companies’ abusive End User License Agreements are keeping fair use from doing its job. They’re chilling security research, preventing you from fixing or tinkering with your stuff, suppressing innovative and competitive new applications and devices, and stifling the independent repair industry.
If we want fair use to continue to work as consumer protection – we need to get rid of section 1201. Last year, we filed a lawsuit to do just that. Members of Congress have taken up the fight as well. Rep. Zoe Lofgren’s bill, the Unlocking Technology Act, would keep section 1201 from interfering with lawful fair uses like those listed in this post. We’ll also need to curb abusive EULAs – when companies can claim you only “license” the software in the devices you purchase, they can use End User License Agreements (that few people understand or have a meaningful option to reject) to force you to waive your fair use rights. Fortunately, we’re seeing a few states stand up for your fair use right to repair – Nebraska, New York, Massachusetts, Minnesota, and Kansas are all considering laws that would protect your right to repair. If you live in one of those states, you can make yourself heard and support those efforts.
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Join EFFhttps://www.eff.org/deeplinks/2017/02/fair-use-consumer-protection
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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.
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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). |
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| 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] | |
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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 BackdoorLast 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.pdfhttps://www.eff.org/deeplinks/2017/12/arms-race-against-trackers-safari-leads-criteo-30
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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.
