Defending Users in NAFTA 2.0: Who Are We Up Against?

  • After three rounds of negotiations, with a fourth coming up fast, we are still in the early days of NAFTA 2.0. In particular, the fight over copyright in NAFTA is just beginning, with the United States submitting its opening bid for the Intellectual Property chapter just last week.

    What does that bid look like? It’s hard to say, because the negotiation process is opaque and exclusionary. But even with what little information we have, we can already identify some of the key protagonists in this unfolding battle, and some of the positions that they have been lobbying their governments to adopt.

    A War of Letters Between Tech and the Music Industry

    An August 31 letter by tech groups encouraged the USTR to include ISP safe harbor rules in NAFTA’s IP chapter, as well as protections for fair use. In a September 19 letter [PDF] music industry groups such as the Recording Industry Association of America (RIAA) responded, warning against the insertion of “vast loopholes in the American copyright system, such as broad copyright exceptions and sweeping immunities for those committing content theft.”

    The letter describes these safe harbor rules as “an antiquated system of copyright safe harbors under the Digital Millennium Copyright Act (DMCA), established at the dawn of the Internet and subsequently interpreted well beyond the law’s original intent,” and claims that the law “has increasingly been used to cloak non-passive businesses in the mantle of safe harbor immunity, putting other digital partners at a massive competitive disadvantage and undermining the stability of the online marketplace.”

    While EFF has always said that the DMCA safe harbor system has its faults, the safe harbor that it offers to online platforms, protecting them from copyright liability for content of their users, is essential to a user-centric Internet. For all its flaws, the DMCA safe harbor system, which balances the interests of copyright holders with those of users, is better than the alternatives Hollywood often proposed, such as either filtering everything or switching to a read-only, cable-TV model of online content distribution.

    Aside from its attack on safe harbors, the music industry letter also pulls no punches in its opposition to fair use, claiming:

    The request for “balance,” including an open-ended exception for “fair use” that does not recognize the necessary parameters and guidance of 150 years of U.S. case law, reflects an agenda to undermine copyright protections internationally to the benefit of a few tech companies.

    This is nonsense. Creators themselves—from musicians to visual artists to documentary filmmakers—are often dependent upon fair use. It’s also perplexing to suggest that the fair use doctrine is good enough for the United States, but not good enough for its trading partners Canada and Mexico, simply by virtue that the U.S. has accrued 150 years of case law.

    Unfortunately, it does seem that the USTR has taken the music industry letter to heart. The initial draft IP chapter did not include a provision on balanced copyright limitations and exceptions such as fair use, despite the inclusion of such a provision in the previous trade agreement that it negotiated, the Trans-Pacific Partnership (TPP). And although the ISP safe harbor provision was not omitted altogether, its inclusion was in the form of placeholder text only, suggesting that the USTR does intend to make changes to the TPP’s rules on that topic.

    Who is “ACTION for Trade”?

    If you came across a campaign website or social media post titled ACTION for Trade, promoting a trade policy agenda that “protects creativity, advances innovation, and prevents foreign countries from stealing intangible assets developed by American workers,” you might be inclined to support it—and even to share it with your friends. But it’s worth digging underneath ACTION’s apple-pie slogans like “creativity” and “innovation” to find the real agenda that lies beneath all those buzzwords.

    The ACTION in ACTION for Trade stands for “American Creative, Technology & Innovative Organizations Network,” which makes it sound like the network is a broad coalition that includes tech companies. In fact, only two tech companies are part of the coalition: Qualcomm and Oracle. In both cases, there are good reasons why they would choose to join forces with the network’s other IP maximalist members, which include the usual suspects such as the RIAA, the MPAA, and PhRMA.

    Qualcomm’s main profit line is from licensing the technology patents that it holds. To protect the value of these patents, it has long been a strong opponent of patent litigation reform. While Qualcomm isn’t your classic patent troll—it does also design and manufacture real technology—its opposition to various patent reform proposals has empowered patent trolls to continue executing their parasitic business model. The Canadian government has been advised to push certain reforms to the U.S. patent system in the negotiations, and Qualcomm will likely want to weigh in on these.

    As for Oracle, it has split with most other tech companies by supporting SESTA, and has recently made a submission advising the government against open source software solutions. It also brought a case against Google claiming copyright in the Java APIs that Google reimplemented in the programming language for its Android operating system. A jury ruled against Oracle, and found that Google’s use of the Java APIs was a lawful fair use. Oracle appealed that decision to the Federal Court, where it remains pending. Given this history, it’s easy to imagine why Oracle might oppose the inclusion of fair use in NAFTA’s intellectual property chapter.

    But the most audacious sections of ACTION for Trade’s position paper [PDF] are those relating to the music industry. Repeating many of the claims from the music industry letter described earlier, it includes an attack on section 512 of the DMCA, insisting its protections are “overbroad,” slams fair use as also “overbroad” and encourages its exclusion from NAFTA, argues for strong protection against circumvention of TPMs (i.e. DRM), and stresses the “particular importance on the availability of statutory damages.”

    Never Send to Know For Whom the Bell Tolls

    Another company fighting against balanced copyright rules in NAFTA will be Canada’s largest telecommunications provider, Bell. In a hearing last month before the Canadian Standing Committee on International Trade, a spokesperson for Bell’s parent company BCE, Inc. (which also operates Canada’s largest private TV network, CTV), stated:

    Our view on how we solve the piracy problem is it is not sort of coming up with new technological measures, it’s blocking access to piracy. How do you do that? We would like to see measures put in place whereby all Internet service providers are required to block consumer access to pirated websites. In our view, that is the only way to stop it. So you would mandate all ISPs across the country to essentially block access to a black list of egregious piracy sites. That would be job number one.

    In Bell’s view then, job number one is to introduce an unprecedented centralized copyright censorship database—rather than, say, reducing the gap in legally available content between Canada and the United States, which evidence suggests would be much more effective than harsh enforcement measures in reducing the incidence of copyright infringement.

    And the measures suggested by Bell are indeed harsh. Unlike similar copyright blocking regimes that exist in other countries (Spain, to give one example), Bell’s proposal would not require a court order before sites were added to the blocking list. The potential for overblocking and misuse is obvious, as is the likelihood that this infrastructure for censorship, once in place, will be expanded to include other types of undesirable or controversial content.

    Bell didn’t stop there. It also suggested that “Canada should also create a criminal provision for any infringement of copyright, including facilitating and enabling piracy where it is undertaken for commercial purpose” (emphasis added). Unless the comma is misplaced here and “undertaken for commercial purpose” qualifies the entire statement, Bell seems to be advocating a position on the criminalization of copyright infringement that is even more extreme than either the U.S. Trade Representative, the MPAA, or the RIAA have ever publicly taken.

    Between the music industry, other members of the ACTION for Trade coalition, and Bell, it’s clear that we will have our work cut out for us in defending users’ rights in the NAFTA negotiations. It certainly doesn’t help that we have to do this with two hands tied behind our back, since all of the negotiating partners’ text proposals, as well as consolidated draft texts, will be hidden from the public until the conclusion of the talks. But if being forewarned is forearmed, knowing what big content is lobbying for has steeled our resolve to make sure users and small creators are not left behind.

    To help support EFF’s work in fighting for your rights in NAFTA and other digital trade negotiations, you can donate or become a member of EFF today.

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
re-attach a detached session tmux attach OR
tmux attach-session
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 and clicked on a product category, you would be first diverted to and then redirected to Although imperceptible to the user, this detour was enough to persuade the browser that 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.


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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.

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