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Old 11-06-21, 06:03 AM   #1
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Default Peer-To-Peer News - The Week In Review - June 12th, 21

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June 12th, 2021




If Not Overturned, a Bad Copyright Decision Will Lead Many Americans to Lose Internet Access
By Mitch Stoltz

This post was co-written by EFF Legal Intern Lara Ellenberg

In going after internet service providers (ISPs) for the actions of just a few of their users, Sony Music, other major record labels, and music publishing companies have found a way to cut people off of the internet based on mere accusations of copyright infringement. When these music companies sued Cox Communications, an ISP, the court got the law wrong. It effectively decided that the only way for an ISP to avoid being liable for infringement by its users is to terminate a household or business’s account after a small number of accusations—perhaps only two. The court also allowed a damages formula that can lead to nearly unlimited damages, with no relationship to any actual harm suffered. If not overturned, this decision will lead to an untold number of people losing vital internet access as ISPs start to cut off more and more customers to avoid massive damages.

EFF, together with the Center for Democracy & Technology, the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and Public Knowledge filed an amicus brief this week urging the U.S. Court of Appeals for the Fourth Circuit to protect internet subscribers’ access to essential internet services by overturning the district court’s decision.

The district court agreed with Sony that Cox is responsible when its subscribers—home and business internet users—infringe the copyright in music recordings by sharing them on peer-to-peer networks. It effectively found that Cox didn’t terminate accounts of supposedly infringing subscribers aggressively enough. An earlier lawsuit found that Cox wasn’t protected by the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions that protect certain internet intermediaries, including ISPs, if they comply with the DMCA’s requirements. One of those requirements is implementing a policy of terminating “subscribers and account holders … who are repeat infringers” in “appropriate circumstances.” The court ruled in that earlier case that Cox didn’t terminate enough customers who had been accused of infringement by the music companies.

In this case, the same court found that Cox was on the hook for the copyright infringement of its customers and upheld the jury verdict of $1 billion in damages—by far the largest amount ever awarded in a copyright case.

The District Court Got the Law Wrong

When an ISP isn’t protected by the DMCA’s safe harbor provision, it can sometimes be held responsible for copyright infringement by its users under “secondary liability” doctrines. The district court found Cox liable under both varieties of secondary liability—contributory infringement and vicarious liability—but misapplied both of them, with potentially disastrous consequences.

An ISP can be contributorily liable if it knew that a customer infringed on someone else’s copyright but didn’t take “simple measures” available to it to stop further infringement. Judge O’Grady’s jury instructions wrongly implied that because Cox didn’t terminate infringing users’ accounts, it failed to take “simple measures.” But the law doesn’t require ISPs to terminate accounts to avoid liability. The district court improperly imported a termination requirement from the DMCA’s safe harbor provision (which was already knocked out earlier in the case). In fact, the steps Cox took short of termination actually stopped most copyright infringement—a fact the district court simply ignored.

The district court also got it wrong on vicarious liability. Vicarious liability comes from the common law of agency. It holds that people who are a step removed from copyright infringement (the “principal,” for example, a flea market operator) can be held liable for the copyright infringement of its “agent” (for example, someone who sells bootleg DVDs at that flea market), when the principal had the “right and ability to supervise” the agent. In this case, the court decided that because Cox could terminate accounts accused of copyright infringement, it had the ability to supervise those accounts. But that’s not how other courts have ruled. For example, the Ninth Circuit decided in 2019 that Zillow was not responsible when some of its users uploaded copyrighted photos to real estate listings, even though Zillow could have terminated those users’ accounts. In reality, ISPs don’t supervise the Internet activity of their users. That would require a level of surveillance and control that users won’t tolerate, and that EFF fights against every day.

The consequence of getting the law wrong on secondary liability here, combined with the $1 billion damage award, is that ISPs will terminate accounts more frequently to avoid massive damages, and cut many more people off from the internet than is necessary to actually address copyright infringement.

The District Court’s Decision Violates Due Process and Harms All Internet Users

Not only did the decision get the law on secondary liability wrong, it also offends basic ideas of due process. In a different context, the Supreme Court decided that civil damages can violate the Constitution’s due process requirement when the amount is excessive, especially when it fails to consider the public interests at stake. In the case against Cox, the district court ignored both the fact that a $1 billion damages award is excessive, and that its decision will cause ISPs to terminate accounts more readily and, in the process, cut off many more people from the internet than necessary.

Having robust internet access is an important public interest, but when ISPs start over-enforcing to avoid having to pay billion-dollar damages awards, that access is threatened. Millions of internet users rely on shared accounts, for example at home, in libraries, or at work. If ISPs begin to terminate accounts more aggressively, the impact will be felt disproportionately by the many users who have done nothing wrong but only happen to be using the same internet connection as someone who was flagged for copyright infringement.

More than a year after the start of the COVID-19 pandemic, it's more obvious than ever that internet access is essential for work, education, social activities, healthcare, and much more. If the district court’s decision isn’t overturned, many more people will lose access in a time when no one can afford not to use the internet. That harm will be especially felt by people of color, poorer people, women, and those living in rural areas—all of whom rely disproportionately on shared or public internet accounts. And since millions of Americans have access to just a single broadband provider, losing access to a (shared) internet account essentially means losing internet access altogether. This loss of broadband access because of stepped-up termination will also worsen the racial and economic digital divide. This is not just unfair to internet users who have done nothing wrong, but also overly harsh in the case of most copyright infringers. Being effectively cut off from society when an ISP terminates your account is excessive, given the actual costs of non-commercial copyright infringement to large corporations like Sony Music.

It's clear that Judge O’Grady misunderstood the impact of losing Internet access. In a hearing on Cox’s earlier infringement case in 2015, he called concerns about losing access “completely hysterical,” and compared them to “my son complaining when I took his electronics away when he watched YouTube videos instead of doing homework.” Of course, this wasn’t a valid comparison in 2015 and it rightly sounds absurd today. That’s why, as the case comes before the Fourth Circuit, we’re asking the court to get the law right and center the importance of preserving internet access in its decision.
https://www.eff.org/deeplinks/2021/0...-lose-internet





Music Publishers Sue Roblox in $200 Million Copyright Infringement Lawsuit
Tori B. Powell

The National Music Publishers' Association has sued the popular gaming platform Roblox for copyright infringement on behalf of several music publishers in a lawsuit seeking $200 million in damages.

The Association alleges that Roblox "actively encourages" its players to utilize music from artists like Imagine Dragons, Ed Sheeran, Ariana Grande and others without paying appropriate licensing fees.

"That Roblox's platform has become a repository for sharing unlicensed commercial music is no accident," according to the lawsuit. "Roblox actively encourages its users to upload and share popular music to make the games on its platform more appealing and attractive to its young audience, fully aware that it has not obtained the necessary permissions."

Roblox, an online global gaming platform popular among young people, offers users in-game opportunities to manually upload audio files that the Association said is being utilized for pirating music. They accuse Roblox of preying on its "impressionable user base and their desire for popular music, teaching children that pirating music is perfectly acceptable."

The lawsuit states that Roblox has hired more than a thousand human moderators to review each uploaded audio file into its system, and that searching for certain artist names in the game is prohibited. However, plaintiffs allege that Roblox has allowed loopholes to its process, saying that users can instead search song titles or partial terms, rather than artist names, to successfully upload copyrighted music.

"Roblox is aware of this wide practice, and has nonetheless conditioned its users to believe that making minor modifications to an audio file nullifies copyright protections," the Association wrote.

The gaming company on Thursday said that they "do not tolerate copyright infringement" and were "surprised and disappointed by this lawsuit." Roblox mentioned previous authorized partnerships with major labels and publishers like Lil Nas X and Zara Larsson.

"As a platform powered by a community of creators, we are passionate about protecting intellectual property rights — from independent artists and songwriters, to music labels and publishers — and require all Roblox community members to abide by our Community Rules," the company said in a statement.
https://www.cbsnews.com/news/music-p...ement-lawsuit/





Ultra-High-Density Hard Drives Made with Graphene Store Ten Times more Data
Adapted from a release from the Cambridge Graphene Centre

Graphene can be used for ultra-high density hard disk drives (HDD), with up to a tenfold jump compared to current technologies, researchers at the Cambridge Graphene Centre have shown.

The study, published in Nature Communications, was carried out in collaboration with teams at the University of Exeter, India, Switzerland, Singapore, and the US.

HDDs first appeared in the 1950s, but their use as storage devices in personal computers only took off from the mid-1980s. They have become ever smaller in size, and denser in terms of the number of stored bytes. While solid state drives are popular for mobile devices, HDDs continue to be used to store files in desktop computers, largely due to their favourable cost to produce and purchase.

HDDs contain two major components: platters and a head. Data are written on the platters using a magnetic head, which moves rapidly above them as they spin. The space between head and platter is continually decreasing to enable higher densities.

Currently, carbon-based overcoats (COCs) – layers used to protect platters from mechanical damages and corrosion – occupy a significant part of this spacing. The data density of HDDs has quadrupled since 1990, and the COC thickness has reduced from 12.5nm to around 3nm, which corresponds to one terabyte per square inch. Now, graphene has enabled researchers to multiply this by ten.

The Cambridge researchers have replaced commercial COCs with one to four layers of graphene, and tested friction, wear, corrosion, thermal stability, and lubricant compatibility. Beyond its unbeatable thinness, graphene fulfills all the ideal properties of an HDD overcoat in terms of corrosion protection, low friction, wear resistance, hardness, lubricant compatibility, and surface smoothness.

Graphene enables two-fold reduction in friction and provides better corrosion and wear than state-of-the-art solutions. In fact, one single graphene layer reduces corrosion by 2.5 times.

Cambridge scientists transferred graphene onto hard disks made of iron-platinum as the magnetic recording layer, and tested Heat-Assisted Magnetic Recording (HAMR) – a new technology that enables an increase in storage density by heating the recording layer to high temperatures. Current COCs do not perform at these high temperatures, but graphene does. Thus, graphene, coupled with HAMR, can outperform current HDDs, providing an unprecedented data density, higher than 10 terabytes per square inch.

“Demonstrating that graphene can serve as protective coating for conventional hard disk drives and that it is able to withstand HAMR conditions is a very important result. This will further push the development of novel high areal density hard disk drives,” said Dr Anna Ott from the Cambridge Graphene Centre, one of the co-authors of this study.

A jump in HDDs’ data density by a factor of ten and a significant reduction in wear rate are critical to achieving more sustainable and durable magnetic data recording. Graphene based technological developments are progressing along the right track towards a more sustainable world.

Professor Andrea C. Ferrari, Director of the Cambridge Graphene Centre, added: “This work showcases the excellent mechanical, corrosion and wear resistance properties of graphene for ultra-high storage density magnetic media. Considering that in 2020, around 1 billion terabytes of fresh HDD storage was produced, these results indicate a route for mass application of graphene in cutting-edge technologies.”
https://www.cam.ac.uk/research/news/...imes-more-data





Telecom Companies Win Injunction to Put New York's Affordable Internet Law on Hold

Federal judge tosses $15-a-month internet law on ice over potential impact on ISPs' bottom line
Alyse Stanley

In a huge win for internet service providers, a federal judge on Friday granted a preliminary injunction to stall a New York law mandating affordable internet for low-income households.

Lobbying groups representing AT&T, Verizon, T-Mobile, and other telecom companies have fiercely pushed back against the legislation, known as the Affordable Broadband Act, and sued New York shortly after it was signed and passed by Governor Andrew Cuomo in April. Initially scheduled to go into effect next week, the bill would require ISPs serving more than 20,000 households to offer two low-cost plans to qualifying customers: one with download speeds of a least 25 Mbps for no more than $15 per month, and another offering download speeds of at least 200 Mbps at no more than $20 monthly. The state’s attorney general would be able to issue penalties to providers of up to $1,000 per violation.

The bill isn’t dead yet, but this eleventh-hour injunction is not a good sign. In his ruling, New York’s Eastern District Judge Dennis R. Hurley described internet access as a “modern necessity.” However, he also agreed with the argument from ISPs that the law is likely to result in “imminent irreparable injury” to their bottom line either from lost revenue or penalty payments.

Three of the companies told the court the law would cut annual net income by at least $1 million each. The bill also mandates that companies promote these new affordable plans to low-income customers, an ad campaign that Verizon estimated would cost between $250,000 and $1 million.

“While a telecommunications giant like Verizon may be able to absorb such a loss, others may not,” Hurley wrote. “The Champlain Telephone Company, for example, ‘estimates that nearly half of its existing broadband customers will qualify for discounted rates,’ with each customer ‘causing a monetary loss.’”

However, state attorneys pushed back that these stats aren’t supported by any financial records. Cuomo spokesperson Rich Azzopardi said Friday that New York plans to continue defending the bill.

“We always knew big telecom would pull out all the stops to protect their profits at the expense of the New Yorkers who need access to this vital utility the most,” Azzopardi said in a press statement via Axios. “We are going to continue to fight for them.”
https://gizmodo.com/telecom-companie...for-1847084275





Scoop: White House Hires Broadband Expert
Kim Hart

Lisa Hone, a longtime Federal Communications Commission attorney with deep expertise in broadband policy, has joined the National Economic Council team to steer the Biden administration's broadband expansion efforts.

Why it matters: Expanding broadband internet service to all Americans is a top priority for the Biden White House. Hone's primary focus is ensuring that money Congress allocated through the American Rescue Plan Act is spent appropriately.

The big picture: The administration is trying to include broadband in infrastructure legislation, as the pandemic underscored the importance of reliable and affordable broadband connections to Americans' ability to participate in remote school, work, tele-health and e-commerce.

Details: Hone, who officially started her job as as senior adviser for broadband and technology policy last week, is now the White House's point person on broadband deployment efforts happening across the government.

• She reports to Bharat Ramamurti, the NEC deputy director working on broadband as part of his broader portfolio. She works with Tim Wu and Hannah Garden-Monheit, whose portfolios also include broadband policy.

Background: During her FCC career, Hone led the modernization of the FCC's E-Rate program providing subsidies to connect K-12 schools and libraries to high-speed internet.

• Now, 99% of K-12 schools and libraries have access to high-speed, fiber-based broadband.
• That experience that will inform her efforts at the White House, which is also taking an approach that emphasizes fiber over other internet technologies.

At the FCC, Hone held many leadership roles in the bureau responsible for wireline broadband, and was a legal adviser to Chairman Tom Wheeler during the Obama administration.

• She also spent time on staff at the Senate Commerce Committee. From 2004-2010, she was Assistant Director of the FTC's Division of Marketing Practices.

What they're saying: Hone is well-known on both sides of the aisle and by the broadband industry.

• Wheeler, now a Brookings Institution visiting fellow, said Hone is a "detail-oriented person who is also a visionary and a leader."
• "Lisa will be a tremendous asset to the White House on broadband policy," said Patrick Halley, general counsel and SVP of policy and advocacy for U.S. Telecom, the trade group representing broadband providers including Verizon and AT&T. "She knows the substance and the process as well as anyone and is well respected by all."
https://www.axios.com/broadband-expe...037bfbbde.html





Hunting Leaks, Trump Officials Focused on Democrats in Congress

The Justice Department seized records from Apple for metadata of House Intelligence Committee members, their aides and family members.
Katie Benner, Nicholas Fandos, Michael S. Schmidt and Adam Goldman

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had been subpoenaed.

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The zeal in the Trump administration’s efforts to hunt leakers led to the extraordinary step of subpoenaing communications metadata from members of Congress — a nearly unheard-of move outside of corruption investigations. While Justice Department leak investigations are routine, current and former congressional officials familiar with the inquiry said they could not recall an instance in which the records of lawmakers had been seized as part of one.

Moreover, just as it did in investigating news organizations, the Justice Department secured a gag order on Apple that expired this year, according to a person familiar with the inquiry, so lawmakers did not know they were being investigated until Apple informed them last month.

Prosecutors also eventually secured subpoenas for reporters’ records to try to identify their confidential sources, a move that department policy allows only after all other avenues of inquiry are exhausted.

The subpoenas remained secret until the Justice Department disclosed them in recent weeks to the news organizations — The Washington Post, The New York Times and CNN — revelations that set off criticism that the government was intruding on press freedoms.
The gag orders and records seizures show how aggressively the Trump administration pursued the inquiries while Mr. Trump declared war on the news media and perceived enemies whom he routinely accused of disclosing damaging information about him, including Mr. Schiff and James B. Comey, the former F.B.I. director whom prosecutors focused on in the leak inquiry involving Times records.

“Notwithstanding whether there was sufficient predication for the leak investigation itself, including family members and minor children strikes me as extremely aggressive,” said David Laufman, a former Justice Department official who worked on leak investigations. “In combination with former President Trump’s unmistakable vendetta against Congressman Schiff, it raises serious questions about whether the manner in which this investigation was conducted was influenced by political considerations rather than purely legal ones.”

A Justice Department spokesman declined to comment, as did Mr. Barr and a representative for Apple.

As the years wore on, some officials argued in meetings that charges were becoming less realistic, former Justice Department officials said: They lacked strong evidence, and a jury might not care about information reported years earlier.

The Trump administration also declassified some of the information, making it harder for prosecutors to argue that publishing it had harmed the United States. And the president’s attacks on Mr. Schiff and Mr. Comey would allow defense lawyers to argue that any charges were attempts to wield the power of law enforcement against Mr. Trump’s enemies.

But Mr. Barr directed prosecutors to continue investigating, contending that the Justice Department’s National Security Division had allowed the cases to languish, according to three people briefed on the cases. Some cases had nothing to do with leaks about Mr. Trump and involved sensitive national security information, one of the people said. But Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.

Mr. Schiff called the subpoenas for data on committee members and staff another example of Mr. Trump using the Justice Department as a “cudgel against his political opponents and members of the media.”

“It is increasingly apparent that those demands did not fall on deaf ears,” Mr. Schiff said in a statement. “The politicization of the department and the attacks on the rule of law are among the most dangerous assaults on our democracy carried out by the former president.”

He said the department informed him in May that the investigation into his committee was closed. But he called on its independent inspector general to investigate the leak case and others that “suggest the weaponization of law enforcement,” an appeal joined by Speaker Nancy Pelosi.

Early Hunt for Leaks

Soon after Mr. Trump took office in 2017, press reports based on sensitive or classified intelligence threw the White House into chaos. They detailed conversations between the Russian ambassador to the United States at the time and Mr. Trump’s top aides, the president’s pressuring of the F.B.I. and other matters related to the Russia investigation.

The White House was adamant that the sources be found and prosecuted, and the Justice Department began a broad look at national security officials from the Obama administration, according to five people briefed on the inquiry.

While most officials were ruled out, investigators opened cases that focused on Mr. Comey and his deputy, Andrew G. McCabe, the people said. Prosecutors also began to scrutinize the House Intelligence Committee, including Mr. Schiff, as a potential source of the leaks. As the House’s chief intelligence oversight body, the committee has regular access to sensitive government secrets.

Justice Department National Security Division officials briefed the deputy attorney general’s office nearly every other week on the investigations, three former department officials said.

In 2017 and 2018, a grand jury subpoenaed Apple and another internet service provider for the records of the people associated with the Intelligence Committee. They learned about most of the subpoenas last month, when Apple informed them that their records had been shared but did not detail the extent of the request, committee officials said. A second service provider had notified one member of the committee’s staff about such a request last year.

It was not clear why family members or children were involved, but the investigators could have sought the accounts because they were linked or on the theory that parents were using their children’s phones or computers to hide contacts with journalists.

There do not appear to have been similar grand jury subpoenas for records of members or staff of the Senate Intelligence Committee, according to another official familiar with the matter. A spokesman for Republicans on the House Intelligence Committee did not respond to a question about whether they were issued subpoenas. The Justice Department has declined to tell Democrats on the committee whether any Republicans were investigated.

Apple turned over only metadata and account information, not photos, emails or other content, according to the person familiar with the inquiry.

After the records provided no proof of leaks, prosecutors in the U.S. attorney’s office in Washington discussed ending that piece of their investigation. But Mr. Barr’s decision to bring in an outside prosecutor helped keep the case alive.

A CNN report in August 2019 about another leak investigation said prosecutors did not recommend to their superiors that they charge Mr. Comey over memos that he wrote and shared about his interactions with Mr. Trump, which were not ultimately found to contain classified information.

Mr. Barr was wary of how Mr. Trump would react, according to a person familiar with the situation. Indeed, Mr. Trump berated the attorney general, who defended the department, telling the president that there was no case against Mr. Comey to be made, the person said. But an investigation remained open into whether Mr. Comey had leaked other classified information about Russia.

Revived Cases

In February 2020, Mr. Barr placed the prosecutor from New Jersey, Osmar Benvenuto, into the National Security Division. His background was in gang and health care fraud prosecutions.

Through a Justice Department spokesman, Mr. Benvenuto declined to comment.

Mr. Benvenuto’s appointment was in keeping with Mr. Barr’s desire to keep matters of great interest to the White House in the hands of a small circle of trusted aides and officials.

With Mr. Benvenuto involved in the leak inquiries, the F.B.I. questioned Michael Bahar, a former House Intelligence Committee staff member who had gone into private practice in May 2017. The interview, conducted in late spring of 2020, did not yield evidence that led to charges.

Prosecutors also redoubled efforts to find out who had leaked material related to Michael T. Flynn, Mr. Trump’s first national security adviser. Details about conversations he had in late 2016 with the Russian ambassador at the time, Sergey I. Kislyak, appeared in news reports in early 2017 and eventually helped prompt both his ouster and federal charges against him. The discussions had also been considered highly classified because the F.B.I. had used a court-authorized secret wiretap of Mr. Kislyak to monitor them.

But John Ratcliffe, the director of national intelligence and close ally of Mr. Trump’s, seemed to damage the leak inquiry in May 2020, when he declassified transcripts of the calls. The authorized disclosure would have made it more difficult for prosecutors to argue that the news stories had hurt national security.

Separately, one of the prosecutors whom Mr. Barr had directed to re-examine the F.B.I.’s criminal case against Mr. Flynn interviewed at least one law enforcement official in the leak investigation after the transcripts were declassified, a move that a person familiar with the matter labeled politically fraught.

The biweekly updates on the leak investigations between top officials continued. Julie Edelstein, the deputy chief of counterintelligence and export control, and Matt Blue, the head of the department’s counterterrorism section, briefed John C. Demers, the head of the National Security Division, and Seth DuCharme, an official in the deputy attorney general’s office, on their progress. Mr. Benvenuto was involved in briefings with Mr. Barr.

Mr. Demers, Ms. Edelstein, Mr. Blue and Mr. Benvenuto are still at the Justice Department. Their continued presence and leadership roles would seem to ensure that Mr. Biden’s appointees, including Attorney General Merrick B. Garland, would have a full understanding of the investigations.
https://www.nytimes.com/2021/06/10/u...istration.html

















Until next week,

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