|23-06-22, 07:17 AM||#1|
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Peer-To-Peer News - The Week In Review - June 25th, 22
June 25th, 2022
Young Greeks Admit Buying Counterfeit Goods, Pirating Content
The National Herald
Stealing Internet signals and streaming services and buying counterfeit goods on the streets and elsewhere is so common in Greece that most people admit doing it, adding to the country’s notorious reputation for intellectual property theft, primarily among the young.
Some 62 percent of Greeks 15-24 – an age bracket particularly savvy about use of computers, mobile phones and other devices – said in a survey by the European Union Intellectual Property Office (EUIPO) they steal signals or buy fake goods.
The findings, said Kathimerini, found that was far higher than the EU average of 37 percent among the young who deliberately buy counterfeit goods which are easy to obtain almost anywhere.
Even that, however, was far higher than the finding of just 14 percent who admitted doing so in the bloc before the COVID-19 pandemic struck in 2020 and changed people’s buying habits radically.
Some 52 percent of the European youth surveyed had bought at least one counterfeit product online over the past year, intentionally or by accident, and 33 percent accessed illegal content online, the paper said.
Greece – at 25 percent compared to the EU average of 21 percent – had the highest rate among the 27 member states for pirated content with no reports of any major prosecutions for doing so.
ISPs Ordered By High Court To Block Sports Pirating Websites
Soko Directory Team
The High Court of Kenya confirmed a permanent injunction compelling internet service providers (ISPs) to block sports pirate websites infringing on copyrighted material.
In November 2019, Multichoice Kenya filed a suit against Safaricom PLC and Jamii Telecom Limited seeking to compel the ISPs to block live sports streaming sites on their networks. The High Court had initially on 26th November 2020 issued a temporary order to the ISPs to block the said infringing content but the same was swiftly stayed by the Court of Appeal on application by Safaricom.
In delivering her verdict, Hon. Justice Wilfrida Okwany made a finding that MultiChoice Kenya had lawfully issued valid take-down notices to the ISPs and they ought to have complied with the same. She further found that the ISPs have not given any lawful excuse for their failure to comply with the take-down notices. On delivery of her ruling, Safaricom requested and was granted by the court 72 hours to comply with take-down notices.
The ISPs have long opposed the takedown provisions in the Copyright (Amendment) Act and had even sought to have the takedown provisions wholly repealed from the Act 18 months after they’re coming into force.
SuperSport has made substantial financial investments to acquire and hold the exclusive broadcast and transmission rights for UEFA Super Cup, Championship & Europa Leagues, English Premier League, and La Liga in Kenya and other sub-Saharan African countries. The constant illegal broadcasting over the internet of their protected content continues to dent their revenues from paid-up subscriptions.
The resolution of the landmark case marks the first time that a Kenyan court has sanctioned takedown notices in terms of the Copyright Act as amended in 2019. The amended Act states in section 35B (1) that, “A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request by way of a takedown notice, that the ISP removes the infringing content.”
The Kenya Copyright Board (KECOBO) and the Communications Authority of Kenya (CA) were interested parties in the suit.
Representatives of civil-society copyright bodies, which work to fight content piracy and protect intellectual property, have welcomed the verdict.
“This is a red-letter day in the fight against piracy in Africa,” said MultiChoice Kenya Managing Director, Nancy Matimu. “We have been fighting for years to ensure that there are legal copyright protections and that those protections are enforced. The court has reaffirmed the stance of the law that copyright must be protected.”
According to Nancy, the case would have enormous implications for the content industry right across the continent.
“The Kenyan courts have sent a message to the rest of the world that we respect the right of content creators to earn a living from their work,” added Nancy.
Nancy said if governments in the rest of Africa follow the Kenyan example, it would go a long way to strengthening the standing of Africa as an investment partner.
She is hopeful that African countries will follow suit, by introducing legislation to protect artists, musicians, broadcasters, and all content creators, to prevent their content from being pirated and used illegally.
“This is a landmark ruling. With this verdict, Kenya is saying that any business looking to invest in Kenya can rest assured that their intellectual property will be protected.”
To Avoid US Extradition, Megaupload Pair Plead Guilty in NZ
Two men have pleaded guilty in New Zealand to their involvement in running the once wildly popular pirating website Megaupload
As part of a deal they struck to avoid extradition to the United States, two men pleaded guilty Wednesday in New Zealand to their involvement in running the once wildly popular pirating website Megaupload.
The pleas by Mathias Ortmann and Bram van der Kolk at the Auckland High Court ended their 10-year legal battle to avoid extradition to the U.S. on charges that included racketeering.
Those charges will be dropped under a deal with prosecutors from both countries after the pair pleaded guilty in New Zealand to being part of a criminal group and causing artists to lose money by deception. They have been released on bail pending sentencing and face a maximum ten years in prison.
The U.S. is still seeking to extradite Megaupload’s founder Kim Dotcom, who also lives in New Zealand and has said he now expects his former colleagues to testify against him.
Prosecutors say Megaupload raked in at least $175 million — mainly from people who used the site to illegally download songs, television shows and movies — before the FBI shut it down in early 2012 and arrested Dotcom and other company officers.
Ortmann told news website Stuff that after a decade of living in New Zealand on bail, the pair had firm roots in the country and were contributing to society through Mega, a legitimate cloud-storage website they set up after their arrest.
“There's absolutely no point in dwelling on these proceedings any longer and we are putting it behind us, and accepting our responsibility," Ortmann said.
Van der Kolk said they had learned from their mistakes.
“We've worked incredibly hard on Mega and we strongly feel that our rehabilitation process has started a long time ago,” he told Stuff.
Lawyers for Dotcom and the other men had long argued that if anybody was guilty in the case, it was the users of the site who chose to pirate material, not the founders. But prosecutors argued the men were the architects of a vast criminal enterprise.
Dotcom and the two other men were once close friends but had a falling out after their arrest and subsequent work on the Mega website.
U.S. prosecutors had earlier dropped their extradition bid against a fourth officer of the company, Finn Batato, who was arrested in New Zealand. Batato returned to Germany where he died from cancer earlier this month.
In 2015, Megaupload computer programmer Andrus Nomm, of Estonia, pleaded guilty in the case to conspiring to commit felony copyright infringement and was sentenced to one year and one day in U.S. federal prison.
Last year, New Zealand’s Supreme Court ruled the trio could be extradited. But the nation's justice minister has yet to make a final decision on whether the extradition — now just of Dotcom — will go ahead.
Even that decision could be appealed and spend still more time in the slow-moving New Zealand legal system.
Four Tet Wins Royalty Battle Over Streaming Music
Four Tet's best songs include Butterflies, Two Thousand and Seventeen, and Lush
Pioneering electronic artist Four Tet has reached a settlement in the legal battle against his former record label.
The musician, whose real name is Kieran Hebden, sued Domino Records last year over the royalties he gets paid when his music is downloaded or streamed.
He argued that the 13.5% royalty rate he was being offered was unfair, and demanded a 50% split with the label.
In a settlement, Domino agreed to the honour the 50% rate and reimbursed the musician for historic underpayments.
It was quite a reversal for the indie label, which originally responded to the case by removing several Four Tet albums from streaming services (they were later reinstated).
"It has been a difficult and stressful experience to work my way through this court case and I'm so glad we got this positive result," wrote Hebden in a statement announcing the settlement.
"Hopefully I've opened up a constructive dialogue and maybe prompted others to push for a fairer deal on historical contracts, written at a time when the music industry operated entirely differently."
The result could set a legal precedent for contract disputes in the music business; where royalty rates have been subject to heavy scrutiny since last year's inquiry into the streaming market by MPs on the Culture Select Committee.
However, Four Tet's legal challenge was ultimately decided out of court, so any future disputes would not be able to cite a legal judgement.
The BBC has contacted Domino Records for a statement.
Hebden's case concerned the recording contract he signed with Domino in 2001, which resulted in four albums: Pause (2001), Rounds (2003), Everything Ecstatic (2005) and There Is Love In You (2010).
The deal was signed before the advent of downloads of streams - and his dispute hinged on whether those methods of accessing his music could be defined as a "sale" or a "licence" under the terms of his contract.
The difference is far from academic because most artists receive 50% of the royalties for a licence but a much lower figure, typically between 12% and 22%, for a sale.
Historically, the difference was due to the way music was distributed: selling music in the era of CDs, vinyl and cassettes incurred huge costs in manufacturing and distribution, which meant labels needed to cover their overheads. But when music is licensed to movies, television or advertisements, artists generally get a bigger payday, on the understanding that a third party is bearing the relevant costs.
After the advent of iTunes and Spotify, labels often argued that downloads and streams should be counted as sales.
This prompted a flurry of lawsuits, especially in the US. Most famously, the producers who discovered Eminem won a case against Universal Records that forced the label to pay the higher "licensing" rate when his songs were downloaded.
Four Tet's case in the UK essentially made the same argument.
Domino had argued that digital downloads, including streams, were considered a new technology format and Hebden was only entitled to the 13.5% royalty rate (although they have paid him as much as 18% on a discretionary basis).
The case quickly became complicated, with Hebden adding a claim for breach of contract after Domino withdrew his music from streaming services; and Domino saying they may to take the case to the High Court, which Hebden could not afford.
However, in a statement posted on social media today, Hebden said he had been offered the 50% rate he had sought in a settlement, the details of which were made public.
"I really hope that my own course of action encourages anyone who might feel intimidated by challenging a record label with substantial means," added Hebden.
"Unlike Domino, I didn't work with a big law firm and luckily the case took place in the IPEC [Intellectual Property and Enterprise court] where legal costs are capped, so I was able to stand my ground."
Hebden shared images of the settlement, which showed that he would receive £56,921.08 in respect of all historical streaming and download income, dated back to July 2017, in addition to interest calculated at a rate of 5% per year.
Is Firefox OK?
Mozilla’s privacy-heavy browser is flatlining. What it does next is crucial for the future of the web.
At the end of 2008, Firefox was flying high. Twenty percent of the 1.5 billion people online were using Mozilla’s browser to navigate the web. In Indonesia, Macedonia, and Slovenia, more than half of everyone going online was using Firefox. “Our market share in the regions above has been growing like crazy,” Ken Kovash, Mozilla’s data analytics team manager at the time, wrote in a blog post. Almost 15 years later, things aren’t so rosy.
Across all devices, the browser has slid to less than 4 percent of the market—on mobile it’s a measly half a percent. “Looking back five years and looking at our market share and our own numbers that we publish, there's no denying the decline,” says Selena Deckelmann, senior vice president of Firefox. Mozilla’s own statistics show a drop of around 30 million monthly active users from the start of 2019 to the start of 2022. “In the last couple years, what we've seen is actually a pretty substantial flattening,” Deckelmann adds.
In the two decades since Firefox launched from the shadows of Netscape, it has been key to shaping the web’s privacy and security, with staff pushing for more openness online and better standards. But its market share decline was accompanied by two rounds of layoffs at Mozilla during 2020. Next year, its lucrative search deal with Google—responsible for the vast majority of its revenue—is set to expire. A spate of privacy-focused browsers now compete on its turf, while new-feature misfires have threatened to alienate its base. All that has left industry analysts and former employees concerned about Firefox’s future.
Its fate also has larger implications for the web as a whole. For years, it was the best contender for keeping Google Chrome in check, offering a privacy-forward alternative to the world’s most dominant browser. Since its release in 2008, Chrome has become synonymous with the web: It’s used by around 65 percent of everyone online and has a huge influence on how people experience the internet. When Google launched its AMP publishing standard, websites jumped to implement it. Similarly plans to replace third-party cookies in Chrome—a move that will impact millions of marketers and publishers—are shaped in Google’s image.
“Chrome has won the desktop browser war,” says one former Firefox staff member, who worked on browser development at Mozilla but does not want to be named, as they still work in the industry. Their hopes for a Firefox revival are not high. “It's not super reasonable for Firefox to expect to win back even any browser share at this point.” Another former Mozilla employee, who also asked not to be named for fear of career repercussions, says: “They're just going to have to accept the reality that Firefox is not going to come back from the ashes.”
Mozilla and Google have a complicated relationship. While they may be competitors, they are also business partners. Each year Google pays Mozilla hundreds of millions of dollars in royalties—reports say that figure is currently in the range of $400 million per year—for its search engine to be set as the default in Firefox. In its 2020 financial results, the most recent available, Mozilla listed its total revenue as $496 million, with royalties from search deals equaling $441 million. Firefox has other default search engine partners, such as Yandex Search in Russia, and these royalties are also crucial. (Google also pays Apple huge sums each year to ensure it is the default search engine in Safari.)
The Google-Mozilla deal was last renewed in 2020 and is expected to expire in 2023. Stats show Firefox’s market share has dropped around 1 percent over the course of this agreement. The company’s own figures show its monthly active users have stayed stable at around 215 million. But there’s no guarantee Google will renew at the same level. Deckelmann says Mozilla doesn’t reveal details about arrangements with its partners and declined to say whether negotiations with Google are ongoing. Mozilla’s financial declarations from 2020 said that despite the layoffs it is in a healthy place, and it expects its financial results for 2021 to show revenue growth.
However, Mozilla and Firefox acknowledge that for its long-term future it needs to diversify the ways it makes money. These efforts have ramped up since 2019. The company owns read-it-later service Pocket, which includes a paid premium subscription service. It has also launched two similar VPN-style products that people can subscribe to. And the company is pushing more into advertising as well, placing ads on new tabs that are opened in the Firefox browser.
Mozilla’s combined subscription and ad revenue rose from $14 million in 2019 to $24 million in 2020, and the company says it expects 2021’s financial results to show new products contributing 14 percent of its revenue. That independence from Google is key to creating a “healthier” business model. However, some of these new bets haven’t worked out and can seem at odds with Firefox’s wider privacy aims. An encrypted file-sharing service was shut down after being used to spread malware. The company has inserted ads into Firefox's URL bar. And the less said about the mid-2010s Firefox OS phones, the better.
The pressure to find new revenue streams comes at a time when Firefox faces more browser competition than ever. “A lot of browsers use privacy in their branding,” says Lourdes Turrecha, founder of Rise of Privacy Tech, a group that monitors privacy-focused companies. Many of Chrome’s competitors look to differentiate themselves by not collecting data about your browsing history or tracking what you do online. Firefox, DuckDuckGo, Brave, Vivaldi, and Safari all join Tor—which is widely considered the most privacy-preserving option—in blocking tracking to varying degrees.
Firefox’s privacy credentials are about as strong as any of its commercial rivals. “The main thing with Firefox is how extensible it is,” says Jonah Aragon, a system administrator who also helps run the recommendation website Privacy Guides. The site, which focuses on open source software, ranks the Firefox browsers highly. “There's a lot of privacy features that aren't enabled by default, which is unfortunate, but it at least gives you the option to enable those if you think that you need them.”
In addition to the main Firefox browser for Android and iOS, Mozilla also runs the Focus browser, which ramps up privacy protections by default. (Deckelmann says the two Firefox browsers have distinct use cases, and she doesn’t see the apps merging into one product.) Aragon adds that while Firefox competes with other privacy-focused browsers, it hasn’t necessarily been the first to introduce these features—for instance, Safari pioneered blocking third-party tracking cookies by default.
This echoes concerns about how Firefox will differentiate itself going forward. Former Firefox employees say Mozilla should stick to a distinct strategy for its marquee browser. “It's basically a more optimized privacy browser, but at the same time they're trying to get more utility out of it and squeeze revenue out of it by going in different directions,” one former employee says, citing search bar ads as a prime example of conflicting priorities.
“Once lost, users hardly come back until there's a compelling reason, and what would that compelling reason be?” says Bart Willemsen, a VP analyst focusing on privacy at Gartner. Willemsen says he has been a Firefox user since its earliest days. “I think Firefox really has a challenge to find a unique position—not only in marketing statements, but in their absolute product—and go in one direction,” he says.
For Deckelmann, making Firefox more personalized is key. She says this includes trying to increase the browser’s functionality to fit in with people being online more. “It’s almost impossible now for people to manage all this information,” Deckelmann says. For instance, last year Firefox revamped its homepage to allow people to pick up previously abandoned searches and unfinished articles. It redesigned its Android app and added features from its password manager to the Firefox app. Mozilla has also been focusing on partnerships, including recently working with Facebook parent company Meta to push for more privacy-focused advertising.
Deckelmann says Firefox is likely to continue looking for ways to keep personalizing people’s online browsing. “I'm not sure that what's going to come out of that is going to be what people traditionally expect from a browser, but the intention will always be to put people first,” she says. Just this week, Firefox announced a partnership with Disney—linked to a new Pixar film—that involves changing the color of the browser and ads to win subscriptions to Disney+. The deal speaks both to Firefox’s personalization push and the strange roads its search for revenue streams can lead down.
Deckelmann adds that Firefox doesn’t need to be as big as Chrome or Apple’s Safari, the second largest browser, to succeed. “All we really want is to be a viable choice,” Deckelmann says. “Because we think that this makes a better internet for everybody to have these different options.”
Despite some of its misses, Firefox still matters. Mozilla is pushing companies to be more private, and its key product is different at its core. The browser market is dominated by Google’s Chromium codebase and its underlying browser engine, Blink, the component that turns code into visual web pages. Microsoft’s Edge Browser, Brave, Vivaldi, and Opera all use adapted versions of Chromium. Apple makes developers use its WebKit browser engine on iOS. Other than that, Firefox’s Gecko browser engine is the only alternative in existence.
“This market needs variety,” Willemsen says. If Firefox diminishes further, there’ll be less competition for Chrome. “We need that difference for open internet standards, for the sake of preventing monopolies,” Willemsen says. Others agree. Everyone we spoke with for this story—inside and outside of Mozilla—says having Firefox flourish makes the web a better place. The trick is figuring out how to get there.
SpaceX Asserts 5G would ‘Blow Out’ Satellite Users in 12 GHz Band
So much for the “win-win-win” scenario that Dish Network envisioned for the 12 GHz band. Dish and fellow MVDDS licensee RS Access have argued that the 12 GHz band can be used by both satellite players like SpaceX’s Starlink and by companies like Dish that want to use it for 5G, all for the public’s benefit.
SpaceX on Tuesday submitted its own analysis of the effect of terrestrial mobile deployment on non-geostationary orbit fixed satellite service (NGSO FSS) downlink operations. The upshot: The SpaceX study shows terrestrial mobile service would cause harmful interference to SpaceX’s Starlink terminals in the 12.2-12.7 GHz band more than 77% of the time, resulting in full outages 74% of the time.
Although entities like RS Access note that SpaceX has access to plenty of other spectrum to accomplish its broadband mission, SpaceX insists that the 12 GHz band has become one of the most important and intensely used spectrum bands for Americans who depend on satellite services. In fact, SpaceX said it depends on the 12 GHz band for the workhorse frequencies in critical downlink services to serve Americans “in every corner of the nation.”
In the past, Dish and its allies have pointed out the lack of technical studies submitted by SpaceX and Starlink in the 12 GHz proceeding, where the FCC is studying what to do with the spectrum. So it’s notable that SpaceX conducted its own study, which it says uses the same methodology as a study RKF Engineering Solutions did on behalf of RS Access. However, SpaceX also said the RKF study was “riddled with errors” and faulty assumptions.
SpaceX plugged its own calculations into a study, which uses the same Monte Carlo methodology as RKF while “adjusting some of the most egregious errors,” the company said. SpaceX’s study shows the aforementioned percentage of time that interference from terrestrial mobile service would degrade service to SpaceX’s Starlink terminals operating in the 12 GHz band.
“This analysis verifies what should be intuitive – that a high-power terrestrial network would blow out anyone using the high-sensitivity equipment satellite consumers must use to receive signals that comply with commission and international power restrictions on satellite downlink transmissions,” SpaceX told the commission.
SpaceX also brought up Dish’s recent 5G launch but complained that it “has not yet submitted any information to corroborate” the claim that it has met its initial 5G milestone deployment.
“Even aside from their meritless technical claims, neither Dish nor RS Access can make a case that remotely justifies commission complicity in their attempted spectrum arbitrage,” SpaceX wrote in its June 21 filing. “As has been widely documented, Dish has never lived up to its repeated promises to deploy a new terrestrial networking using the exclusive licenses already stored up in its warehouses – the commission simply cannot gift more spectrum to any operator with this track record of broken promises and stranded consumers. For over a decade, Dish has promised and failed to timely deploy a network using its licenses in the 700 MHz, AWS-4, AWS H Block, AWS-3 and 600 MHz.”
SpaceX would like the FCC to drop the 12 GHz proceeding, but Dish and RS Access have been urging the FCC for years to change the rules so that their MVDDS licenses can be used for two-way 5G services.
In April 2021, the FCC granted a license modification for SpaceX, but it made a point of saying it was conditional on future actions at the commission, “including but not limited to the 12 GHz proceeding,” and therefore “SpaceX proceeds at its own risk” in terms of what it does in the 12 GHz band.
The 5G for 12 GHz Coalition, which is comprised of more than 30 members, including Dish and RS Access, released the following statement Tuesday: “We understand that SpaceX has – after 18 months and both a robust comment and reply period – just filed its own in-house technical submission to the 12 GHz proceeding. Our engineers and technical experts are reviewing the filing in depth and remain committed to working in good faith with the FCC and stakeholders to ensure that the American public is able to reap the immense benefits of 5G services in this band.”
Mullvad VPN Axes Recurring Subscriptions in the Name of Privacy
The move comes as a way to be able to store less users' data
If you're reading about VPN services, you probably care about your online privacy. You may even opt for one of the best VPNs to make sure your data is protected by a strict no-logs policy. However, there's always some information that needs to be stored for keeping your monthly plan running.
This is why Mullvad has taken the decision to completely remove the ability to create new subscriptions - all in the name of storing less data about their users.
"Subscriptions clearly offer a lot of convenience but as we’ve seen that convenience comes at a cost and we no longer think this is an acceptable trade-off. We care deeply about usability but when it comes down to it, privacy has to win," wrote the provider in a blog post (opens in new tab).
This move is a step forward in Mullvad's commitment to its users' privacy. It's actually one of the few services not to ask for any email address or other personal information to create an account.
However, when it came to recurring subscription, the provider was forced to retain record of payments in order to provide refunds, charge the user again after their initial period of cover or recover a missing account. Therefore, one-time payments appear to be the only solution.
"We are constantly looking for ways to reduce the amount of data we store while still providing a usable service. Nowhere is the tension between privacy and usability more apparent than in the area of payments."
Mullvad's monthly fee has always been the same on every plan - around $5.50. This is very different than almost every other consumer VPN, but there's no need to stress about a price rise.
What's more, those who currently have an active Mullvad subscription do not need to worry either. Their account will keep running as usual for at least six months, or until their subscription comes to the end of a term.
Going against the grain
When it comes to VPN plans, Mullvad's competitors have a completely different approach. In fact, almost all the big names across the industry offer discounted prices to users that decide to commit for longer.
Let's look at some examples. The fee for getting ExpressVPN for only a month is $12,95. This drops to $9.99 for a 6-month plan and $6,67 for a 12-month + 3 free plan. This means that users are encouraged to subscribe for longer to have the same service for half of the price.
Others, like Surfshark and NordVPN, offer their long-term subscriptions for a lower initial fee, and then crank the price on automatic resubscription. After being drawn in by a tempting price, users may actually end up paying two or even three times more once the introductory period has ended.
On the one hand, this is a shady tactic to eke more cash out of users who don't opt out of automatic rebilling – and one not merely confined to the VPN industry. On the other, though, savvy shoppers can get a much better price if they're proactive about cancelling before they're rebilled.
Mullvad VPN comes at a flat rate of roughly $5,50 a month no matter how long you subscribe for. Even before announcing it would accept non-recurring payments only, the provider has never pushed its users to commit longer than they wished. What's more, to make things easier, users will still have the opportunity to pay as many months as they want in one go.
How to create your one-payment Mullvad account
Getting started with Mullvad couldn't be easier. Just head to the Mullvad website (opens in new tab) and press the yellow Get started button placed at the top right.
You will be redirected to its account page. However, unlike most of its rivals, instead of using your email address you will simply need to tap the Generate account number button. Note this down as it will be your unique reference.
After that, you will need to select your desired payment method. Mullvad offers a wide choice - from a classic credit card, bank wire and PayPal to Bitcoin and Monero cryptocurrencies. With the latter, a 10% discount will be applied to the monthly flat rate of around $5,50.
After selecting your payment method, you'll be able to choose how long you want to pay for. Remember, after this time runs out you'll have to resubscribe manually thanks to the change in policy.
Once paid, you will have to download the Mullvad app to begin to protect your privacy and anonymity when browsing the web. You will be able to use your account on five difference devices at once - whether these are Windows, macOS, Linux, iOS or Android.
Victory! Court Rules That DMCA Does Not Override First Amendment’s Anonymous Speech Protections
Copyright law cannot be used as a shortcut around the First Amendment’s strong protections for anonymous internet users, a federal trial court ruled on Tuesday.
The decision by a judge in the United States District Court for the Northern District of California confirms that copyright holders issuing subpoenas under the Digital Millennium Copyright Act must still meet the Constitution’s test before identifying anonymous speakers.
The case is an effort to unmask an anonymous Twitter user (@CallMeMoneyBags) who posted photos and content that implied a private equity billionaire named Brian Sheth was romantically involved with the woman who appeared in the photographs. Bayside Advisory LLC holds the copyright on those images, and used the DMCA to demand that Twitter take down the photos, which it did.
Bayside also sent Twitter a DMCA subpoena to identify the user. Twitter refused and asked a federal magistrate judge to quash Bayside’s subpoena. The magistrate ruled late last year that Twitter must disclose the identity of the user because the user failed to show up in court to argue that they were engaged in fair use when they tweeted Bayside’s photos.
When Twitter asked a district court judge to overrule the magistrate’s decision, EFF and the ACLU Foundation of Northern California filed an amicus brief in the case, arguing that the magistrate’s ruling sidestepped the First Amendment when it focused solely on whether the user’s tweets constituted fair use of the copyrighted works.
In granting Twitter’s motion to quash the subpoena, the district court agreed with EFF and ACLU that the First Amendment’s protections for anonymous speech are designed to protect a speaker beyond the content of any particular statement that is alleged to infringe copyright. So the First Amendment requires courts to analyze DMCA subpoenas under the traditional anonymous speech tests courts have adopted.
“But while it may be true that the fair use analysis wholly encompasses free expression concerns in some cases, that is not true in all cases—and it is not true in a case like this,” the court wrote. “That is because it is possible for a speaker’s interest in anonymity to extend beyond the alleged infringement.”
The district court then applied the traditional two-step test used to determine when a litigant can unmask an anonymous internet user. The first step requires a proponent of unmasking to show that their claims have legal merit. The second step requires courts to balance the harm to the anonymous speaker against the proponent of unmasking’s need to identify the user.
The district court ruled that Bayside failed on both steps.
First, the court ruled that Bayside had not shown that its copyright claims had merit, finding that the tweets at issue constituted fair use, largely because they were transformative.
“Rather, by placing the pictures in the context of comments about Sheth, MoneyBags gave the photos a new meaning—an expression of the author’s apparent distaste for the lifestyle and moral compass of one-percenters,” the court wrote.
Second, the court ruled that there were significant First Amendment issues at stake because the tweets constituted “vaguely satirical commentary criticizing the opulent lifestyle of wealthy investors generally (and Brian Sheth, specifically).” The court ruled that identifying “MoneyBags thus risks exposing him to ‘economic or official retaliation’ by Sheth or his associates.”
In contrast, the court ruled, Bayside failed to show that it needed the information, particularly given that Twitter had already removed the copyrighted images from the tweets. Further, the court was suspicious that Bayside may have been using its DMCA subpoena as a proxy for Sheth, which the court described as a “puzzling set of facts” that Bayside had never fully explained.
In upholding the user’s First Amendment rights to speak anonymously, the district court also rejected the argument that because the user never showed in court to fight the subpoena, Twitter could not raise constitutional arguments on its users’ behalf. EFF and ACLU’s brief called on the court to ensure that online services like Twitter can always stand in their users’ shoes when they seek to protect their rights in court.
The court agreed:
There are many reasons why an anonymous speaker may fail to participate in litigation over their right to remain anonymous. In some cases, it may be difficult (or impossible) to contact the speaker or confirm they received notice of the dispute. Even where a speaker is alerted to the case, hiring a lawyer to move to quash a subpoena or litigate a copyright claim can be very expensive. The speaker may opt to stop speaking, rather than assert their right to do so anonymously. Indeed, there is some evidence that this is what happened here: MoneyBags has not tweeted since Twitter was ordered to notify him of this dispute.
EFF is pleased with the district court’s decision, which ensures that DMCA subpoenas cannot be used as a loophole to the First Amendment’s protections. The reality is that copyright law is often misused to silence lawful speech or retaliate against speakers. For example, in 2019 EFF successfully represented an anonymous Reddit user that the Watchtower Bible and Tract Society sought to unmask via a DMCA subpoena, claiming that they posted Watchtower’s copyrighted material.
We are also grateful that Twitter stood up for its user’s First Amendment rights in court.
Some States are Changing the Laws that Govern Community Libraries
When the Kentucky Legislature started mulling a bill that would tighten control over public libraries earlier this year, librarians across the state called their lawmakers pushing for its defeat.
In the past, legislators would at least have heard them out, says Jean Ruark, chair of the advocacy committee of the Kentucky Library Association. Not this time.
"It seemed as though our efforts fell on deaf ears. There was a big outcry about the passage of that and they did it anyway," Ruark says.
At a time when public school libraries have increasingly become targets in the culture wars, some red states are going further, proposing legislation aimed at libraries serving the community as a whole. A few of the bills would open librarians up to legal liability over decisions they make.
While some of these bills have quietly died in committee, others have been signed into law, and librarians worry that the increasingly partisan climate is making them vulnerable to political pressure.
"We're seeing more indirect efforts to control what's available to the community or to put in laws that would direct how the library staff collects books," says Deborah Caldwell Stone, director of the American Library Association's Office for Intellectual Freedom.
"A lot of this legislation is really concerning, largely because of the breadth and scope of it, but also because it removes local control from communities," says Patrick Sweeney, executive director at EveryLibrary, an advocacy group that tracks the legislation.
The bill passed in Kentucky allows local library boards to be appointed by county officials. Sponsors argued that the move makes libraries, which are funded by local property taxes, more accountable to taxpayers.
But opponents say the legislation will undermine the independence of local librarians, which are supposed to serve the public as a whole.
"It's giving all of this power to partisan elected officials in counties, and if their constituents start telling them they want to ban books, this would allow them to do it. This is incredibly dangerous," says Kentucky state Rep. Patti Minter, a Democrat who opposed the bill.
The bill was first passed by the Republican-controlled legislature and vetoed by Gov. Andy Beshear, a Democrat. But Republicans were able to muster enough additional support to override the veto, and the bill takes effect at the start of 2023.
Other states have reached further. In Iowa, a bill was proposed allowing city councils to overturn librarians' decisions about what books to buy and where they're displayed.
In Oklahoma, a bill was signed into law requiring public libraries to install filters on digital databases to prevent children from seeing obscene material. Anyone who deliberately flouts the law would face legal liability.
Most libraries already have filters in place, and Oklahoma state Rep. Todd Russ, a Republican, says he expects the bill to rarely if ever result in legal action.
"We're trying to be good partners here, he says. "We're not trying to create all these class action lawsuits. We want to work with them to help create good protection, common sense stuff."
But other states, including Iowa and Idaho, have proposed similar bills, stripping away the legal immunity that librarians have traditionally enjoyed for the decisions they make.
Moreover, legal actions against librarians are not unheard of.
Parents in one Wyoming county recently filed criminal complaints with the local sheriff arguing that library staff members were "pandering obscenity" to minors because they carried books on LGBTQ themes, says Caldwell-Stone. After an investigation, the local prosecutor decided not to press charges.
LGBTQ books typically generate the most controversy, especially in rural areas, says Caldwell-Stone. The mayor of Ridgeland, Mississippi, cut funding for the local libraries earlier this year after complaining about "sexual content" in some material featured by the library.
His decision made headlines, and money poured into the library through a crowdfunding campaign that more than made up for the money lost.
But libraries can't depend on such campaigns long-term, and librarians such as Ruark worry that in the current political climate, the pressure on them is only going to turn up.
"I think people are concerned about what it's going to do," she says, "but they also feel powerless to make it be any different."
STEVE INSKEEP, HOST:
In this country, we've heard a lot about school districts imposing book bans. Now some states are passing laws to tighten control over public libraries. Jim Zarroli reports.
JIM ZARROLI, BYLINE: In April, the Kentucky Legislature approved a bill that will change the way public libraries in the state are run. For the first time, politicians can appoint the local boards that control public libraries in most counties. State Representative Patti Minter warns that the bill opens libraries up to political influence.
PATTI MINTER: It's giving all of this power to partisan elected officials in counties. And if their constituents start telling them they want to ban books, this would allow them to do it. This is incredibly dangerous.
ZARROLI: The bill is one example of what library groups say is a disturbing trend. At a time of growing controversy over book bans in schools, some states are changing the laws that govern libraries serving the broader community. Deborah Caldwell-Stone is with the American Library Association.
DEBORAH CALDWELL-STONE: We're seeing more indirect efforts to control what's available to the community or to put in laws that would direct how the library staff collects books.
ZARROLI: In Iowa, a bill was sent to committee allowing city councils to overturn a library's decision about what books to buy and where they're displayed. Oklahoma approved a bill requiring libraries to install a filter on internet databases that prevents children from seeing obscene material, as defined by the Supreme Court. That's something the federal government already requires, but the bill would also open librarians who don't do so to legal consequences. Right now, they're protected from liability in most places. The bill's sponsor, Todd Russ, says the bill will apply very rarely, if ever, and only when librarians deliberately flout the law.
TODD RUSS: We're trying to be good partners here. We're not trying to create all these class-action lawsuits. We want to work with them to help create good protection, common sense stuff.
ZARROLI: But similar bills have been proposed in Iowa, Indiana and other states. And Caldwell-Stone notes that legal sanctions against librarians are not unthinkable. Parents in one Wyoming county complained to the local sheriff about books on LGBT subjects.
CALDWELL-STONE: They actually filed criminal complaints with the local prosecutor, arguing that the library and the library staff was pandering obscenity to minors.
ZARROLI: Prosecutors decided not to press charges, and such cases so far have been exceedingly rare. But library groups say they're operating in a much more partisan climate that undermines their independence. The mayor of Ridgeland, Miss., withheld funding to the local library after it displayed books on LGBT themes. Jean Ruark of the Kentucky Library Association says her group did all it could to fight the bill giving local politicians control over library boards. Once their opposition would have made a difference. But in an election year, she says, the political climate is simply too heated.
JEAN RUARK: It seemed as though our efforts fell on deaf ears. There was a big outcry about the passage of that, and they did it anyway.
ZARROLI: The bill was passed by the legislature and vetoed by Kentucky's Democratic governor, Andy Beshear. But determined lawmakers were able to override his veto, and the bill takes effect at the start of next year.
For NPR News, this is Jim Zarroli.
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