A Response to Jerry: Craig Should Still Dismiss

[Cross-posted on Freedom to Tinker]


Jerry Brito has a new post on the Reason blog arguing that I and others have been too harsh on Craigslist for their recent lawsuit. As I wrote in my earlier post, Craigslist should give up the lawsuit not just because it's unlikely to prevail, but also because it risks setting bad precedents and is downright distasteful. Jerry argues that what the startups that scrape Craigslist data are doing doesn't "sit well," and that there are a several reasons to temper criticism of Craigslist.

I remain unconvinced.

To begin with, the notion that something doesn't "sit well" is not necessarily a good indicator that one can or should prevail in legal action. To be sure, tort law (and common law more generally) develops in part out of our collective notion of what does or doesn't seem right. Jerry concedes that the copyright claims are bogus, and that the CFAA claims are ill-advised, so we're left with doctrines like misappropriation and trespass to chattels. I'll get to those in a moment.

Dear Craig: Voluntarily Dismiss with Prejudice

[Cross-posted on Freedom to Tinker]

Last summer, Craigslist filed a federal lawsuit against the company Padmapper (and some related entities). Padmapper.com is a site that, among other things, allows users to view Craigslist postings on a geographical map. It is a business premised on providing value added services to Craigslist postings -- with some of that added value going back to Craigslist in the form of more users. Craigslist did not like this, and alleged a host of claims -- seventeen of them, by the time they were done with the "First Amended Complaint" (FAC). Among their claims were alleged violations of copyright, trademark, breach of contract, and -- surprisingly -- Computer Fraud and Abuse Act (CFAA). The CFAA claims were not in the original complaint (they showed up only in the September 2012 FAC). Today, the judge ruled that some of the claims would be dismissed, but that many would survive.

I am still at a loss about why Craigslist is taking such a scorched earth tactic against a site that appears to help more people find Craigslist postings. Sure, they're looking to make money while doing it, but that's how much of the internet business ecosystem works. I'm particularly shocked, because Craig Newmark has been at the forefront of fighting for so much good online policy. We've met a few times, including the period when he was embroiled in the fight over whether or not "adult services" would do away with his CDA 230 intermediary liability. He was on the right side of SOPA/PIPA and helped to fight against over-expansive copyright. I've always found him to be personally friendly, thoughtful, and savvy about what makes the internet work.

Android Open Source Model Has a Short Circuit

Last year, Google entered the mobile phone market with a Linux-based mobile operating system. The company brought together device manufacturers and carriers in the Open Handset Alliance, explaining that, "Together we have developed Android™, the first complete, open, and free mobile platform." There has been considerable engagement from the open source developer community, as well as significant uptake from consumers. Android may have even been instrumental in motivating competing open platforms like LiMo. In addition to the underlying open source operating system, Google chose to package essential (but proprietary) applications with Android-based handsets. These applications include most of the things that make the handsets useful (including basic functions to sync with the data network). This two-tier system of rights has created a minor controversy.

A group of smart open source developers created a modified version of the Android+Apps package, called Cyanogen. It incorporated many useful and performance-enhancing updates to the Android OS, and included unchanged versions of the proprietary Apps. If Cyanogen hadn't included the Apps, the package would have been essentially useless, given that Google doesn't appear to provide a means to install the Apps on a device that has only a basic OS. As Cyanogen gained popularity, Google decided that it could no longer watch the project distribute their copyright-protected works. The lawyers at Google decided that they needed to send a Cease & Desist letter to the Cyanogen developer, which caused him to caused him to take the files off of his site and spurred backlash from the developer community.

Android represents a careful balance on the part of Google, in which the company seeks to foster open platforms but maintain control over its proprietary (but free) services. Google has stated as much, in response to the current debate. Android is an exciting alternative to the largely closed-source model that has dominated the mobile market to date. Google closely integrated their Apps with the operating system in a way that makes for a tremendously useful platform, but in doing so hampered the ability of third-party developers to fully contribute to the system. Perhaps the problem is simply that they did choose the right location to draw the line between open vs. closed source -- or free-to-distribute vs. not.

The latter distinction might offer a way out of the conundrum. Google could certainly grant blanket rights to third-parties to redistribute unchanged versions of their Apps. This might compromise their ability to make certain business arrangements with carriers or handset providers in which they package the software for a fee. That may or may not be worth it from their business perspective, but they could have trouble making the claim that Android is a "complete, open, and free mobile platform" if they don't find a way to make it work for developers.

This all takes place in the context of a larger debate over the extent to which mobile platforms should be open -- voluntarily or via regulatory mandate. Google and Apple have been arguing via letters to the FCC about whether or not Apple should allow the Google Voice application in the iPhone App Store. However, it is yet to be determined whether the Commission has the jurisdiction and political will to do anything about the issue. There is a fascinating sideshow in that particular dispute, in which AT&T has made the very novel claim that Google Voice violates network neutrality (well, either that or common carriage -- they'll take whichever argument they can win). Google has replied. This is a topic for another day, but suffice to say the clear regulatory distinctions between telephone networks, broadband, and devices have become muddied.

(Cross-posted to Freedom To Tinker)

Crazy Copyright Provisions Proposed in Stimulus

I won't add any commentary on this other than what Public Knowledge has already stated very well.

Hollywood’s lobbyists are running all over the Hill to sneak in a copyright filtering provision into the stimulus package. The amendment allow ISPs to “deter” child pornography and copyright infringement through network management techniques. The amendment is very, very controversial for a couple of reasons:

1. First, infringement can’t be found through “network management” techniques. There are legal uses for copyrighted works even without permission of the owner.

2. Second, it would require Internet companies to examine every bit of information everyone puts on the Web in order to find those allegedly infringing works, without a hint of probable cause. That would be a massive invasion of privacy, done at the request of one industry, violating the rights of everyone who is online.

They are calling for people to immediately contact the relevant members.

New Chapter in Scientology v. Anonymous on YouTube

I've been following this drama for months, and it's an interesting illustration of how traditional First Amendment rights can be endangered when we place speech control in the hands of corporations. Scientology has waged a drawn-out war against Anonymous on YouTube, repeatedly filing DMCA takedowns which result in videos being pulled. Anonymous typically files counter-notices and the videos go back up. In the meantime, it seems likely that Scientology systematically breaks YouTube Terms of Service without enforcement on the part of YouTube. It is hard to tell for sure what the facts are, but this is my best understanding.

Over the last couple of days, unwarranted takedowns were executed by YouTube en masse for Anonymous videos, followed by reinstatement in most cases. EFF has a summary, and you can follow the Anonymous forums if you have the patience and stomach. It is to YouTube's credit that they appear to have restored videos/accounts in most cases, but it is also troubling that such a major deletion of speech could happen in the first place.

Copyright and Campus Networks

I'd like to share an email I sent to the staff of Vern Ehlers, congressional representative for my home district in Michigan and attendee of my alma mater, Calvin College. This bill goes for markup tomorrow at 9AM 1:30PM, so it will be interesting to see what happens to the clauses in question. [February 7, 2008: The House passes it with the clauses intact. August 4, 2008: The Senate adopts a version of these clauses.] [August 14, 2008: Signed into law.]

Thanks for taking the time to listen to my concerns about a couple of intellectual property-related clauses in the current draft of the Higher Education Act reauthorization scheduled for markup on Wednesday. At the moment, I'm actually writing from Cambridge, MA where I'm completing my Masters degree at MIT focusing on telecommunications policy and the public interest. However, my interest in the effect of communications regulation on higher education began at Calvin, where I earned a dual-degree in Computer Science and Philosophy. Among other things, while at Calvin I hosted a campus-wide debate on web filtering technologies.

The language in question is on pages 411-412 in the current draft: "Sec. 494. Campus-Based Digital Theft Prevention". The intention here is good -- to curb copyright infringement that takes place over campus networks. The problem is that the mechanism is 1.) mandating questionably effective technical measures to solve this problem and 2.) inequitably punishing all students at any school that is deemed to have not met this poorly defined standard. Specifically, all students would lose their federal financial aid. With respect to the technical measures, the draft calls for "alternatives to illegal downloading" and "technology-based deterrents". The "alternatives" are likely to be a handful of overly restrictive services already available over the internet on college campuses. The "technology-based deterrents" are particularly troubling because they threaten substantial collateral damage to legitimate academic activities (see for example the letter from MIT that I have attached). Technology cannot exercise fine-grained discrimination of data based on the nuanced details of the law (not to mention important carve-outs targeted at "fair use" specifically for academic purposes).

On balance, these clauses seek to defer copyright enforcement to universities rather than the copyright holders themselves. They do so by ham-handedly pushing imperfect technological solutions on our institutes of higher education -- incurring substantial academic and financial costs. I hope that the committee will recognize that this is a poor solution to a real problem that deserves much more exploration.

(Attachment: MIT-P2P-Letter.pdf)

Here is some other coverage of the bill:

• Two posts from Gigi Sohn of Public Knowledge
• The C|Net overview
• The Educause advocacy page

[Update 11/15: The bill has passed in committee without amendment to the offending language, so the battle now goes to the House floor. Ehlers' staff was nice enough to get back to me, and I sent them this response:]

Thanks for your timely and helpful reply. I was disappointed to see the bill pass in committee this morning without proposed amendment of the provisions or debate on their merits. I did see the one-page document published by the committee, purporting to address unfounded "myths" raised in opposition by "supporters of intellectual property theft." (attached)

As the bill goes to the House floor, I hope that Rep. Ehlers will be perceptive enough to see beyond this combination of straw men and ad hominem. Whereas the document characterizes the opposition argument as, "H.R. 4137 would take financial aid away from colleges and students who engage in illegal file sharing," this is a misdirection. Rather, it has been clearly argued that the bill would take financial aid away from students at colleges that do not follow the vague mandate to plan alternatives and technological deterrents to illegal file sharing -- which this bill unquestionably does. The document also states that the bill would not "force" colleges to use alternative file-sharing programs, which is technically true but elides the "plan to explore" language that clearly requires the first step in such a process. Finally, the document claims that the bill "does not ask colleges to enforce copyright laws." This is absolutely true. We would not want colleges to be tasked with enforcing the law, and we would certainly not want to task them with enforcing unproven "technology-based deterrents" that are a poor approximation of copyright law and generate considerable collateral damage.

The provisions attempt a "have your cake and eat it too" approach in which the bill does not technically force copyright enforcement on universities, but still mandates action that has that effect. Universities already have ample incentive to deter students from such illegal activity, and (as the MIT letter I forwarded earlier shows) they are exploring the nascent technical approaches to this problem. A grant program to further fund these efforts might be helpful. A vague, unfunded mandate to take a combined technology/alternatives approach is likely to generate only non-productive costs and to have a chilling effect on aspects of academic study.

(Attachment: 20071114COAAFileSharing.pdf)

See also:

• PK's take on the "fact sheet"
• C|Net update

September-October 2008 Update:

The Department of Education holds a series of public meetings to determine what specific rules will be used, with input from representatives from higher ed giving testimony. EDUCAUSE explains:

Although the provisions are now law, it is still necessary for the Department of Education to hold a “negotiated rule making” process in order to define exactly how the law will be enforced on colleges and universities. The final rules that spring from that process may not take effect until July 2010. It is essential, however, that institutions make a “good faith effort” to comply with the law in the meantime.

During the negotiated rule making process, colleges and universities will have an excellent opportunity to present their views on how this law should be applied. This is a very serious issue - one that, if done incorrectly, could result in significant costs in money and time, as well as the disruption of networks. Consequently, it is critical that the Department of Education hear from those of us who are directly affected, so they are aware of how important the P2P issue is for our institutions.

The general message in testimony from universities is "make the rules as flexible as possible, allowing each university to decide its own approach."

On December 31, 2008, the Department of Education publishes its intent to develop five negotiated rulemaking committees. The copyright provisions fall under "Team V."