Tag: Featured

Author Bynum Petitions SCOTUS for Remedy to State Copyright Infringement

I have written extensively about state sovereign immunity (a.k.a.,11th Amendment immunity) as it relates to copyright owners’ inability to hold states and state actors liable for recklessly and knowingly infringing protected works. State immunity for violations of federal statutes against persons is a maddening subject—rife with judicial and historical contradictions and implications that reach far beyond intellectual property. Among the many infuriating aspects of the immunity story is that, in theory, persons injured by state violations of their federal rights can pursue “other remedies” when they are barred from suit in federal court. In theory. But not in Texas.

Texas does not equivocate: it rejects any remedy for victims whose intellectual property is blatantly stolen—which even Texas cannot deny happened here.

That statement comes from sports author Mike Bynum’s petition for certiorari to the Supreme Court in response to Texas’s and the Fifth Circuit’s hard-to-follow rationales for denying Bynum any remedy whatsoever for the undisputed theft of his intellectual property. Specifically, Bynum was working on a book about the legendary “Dixie Classic” football game of 1922, during which the “12th Man,” E. King Gill who, though not a member of the team, suited up ready to play because so many members of the Aggie squad had been injured that day.

In my post published at this time last year, I detailed the facts of Bynum’s complaint and the Fifth Circuit’s ruling. In summary, parties at the university’s athletic department copied and distributed Bynum’s unpublished manuscript, removing his name and copyright notice in the process. The material was ultimately distributed to an estimated 350,000 readers—the same audience that would have been interested in buying the book.

With a built-in fanbase and potential long tail interest in the work, the financial damage to Bynum is arguably substantial—but at any valuation, it was surely total. While most piracies cause at least some harm to the copyright owner, TAMU’s wholesale destruction of Bynum’s first publication opportunity effectively killed all financial interest in the author’s work-in-progress.

If that sounds like an illegal “taking” by the state, that’s what Bynum and others think, too—especially when they are barred by sovereign immunity from enforcing their statutory copyright rights. In fact, takings, unfair competition, torts, etc. have long been speculated as alternative remedies in the debate about sovereign immunity. Even the Supreme Court, in affirming that Congress’s Article I powers were insufficient on their own to abrogate state immunity, argued that the possibility of state remedies had “barely been considered,” by Congress.[1] And, as noted in that post last year, the Court, in filmmaker Rick Allen’s case against North Carolina (Allen v. Cooper) indicated that a copyright owner may sue a state entity in federal court “if he can demonstrate a constitutional violation and show that there is no remedy available in state court—which together would rise to a violation of due process.”

But as Bynum’s petition describes, the Fifth Circuit decided that 1) copyright infringement is never a taking because copyright rights are not property; 2) that his due process claim is barred on the grounds that the state could hypothetically provide an avenue for state remedy at some point in the future; and 3) that takings claims are altogether barred by sovereign immunity despite the fact that the Supreme Court has held that the Takings clause requires some compensatory remedy in federal court.

The case law underlying these matters is expansive and, as stated above, tangled in contradictory opinions dating back to the ratification of the Constitution. Every time I return to the subject, I feel like I’m starting over, and I will do readers the favor of not attempting to unravel every nuance in a single post. I suspect the Court will grant cert here because of the constitutional questions presented; because circuit splits are argued; and because of the states’ rights implications.

But one aspect I hope the Court will emphasize in Bynum’s case is the thoroughness with which TAMU took the whole value of his property interest in the manuscript—and even went so far as to remove evidence of his authorship and copyright claim, which is reckless as well as illegal. As the petition cites, the Court in Allen v. Cooper held that “copyrights ‘are a form of property” under the Fourteenth Amendment and that an ‘intentional, or at least reckless’ copyright violation may violate due process rights.”

The holistic nature of the state theft in Bynum may be instructive to the extent that photographer Jim Olive’s case against the University of Houston is otherwise held to inform these considerations. Olive sued the University of Houston for infringement of his aerial photograph, but the Texas Supreme Court held that the complaint was not ripe for a per se Takings claim on the basis that the university had not fully deprived the photographer of his right to exploit his copyright rights in the image in other contexts.

Even if that theory has merit as a Takings consideration (because it is no way to look at copyright), the Supreme Court in Bynum should carefully consider the contrast of that reasoning against the utter destruction to Bynum’s property interest in his book. “TAMU’s copyright violation was flagrant, damaging, and largely undisputed. Texas’s legal position—and the Fifth Circuit’s—is that states simply can steal copyrighted material with impunity. As state copyright violations continue to proliferate nationwide, that warrants this Court’s intervention,” the petition argues.

Indeed it does.

[1] Florida Prepaid v. College Savings (Rehnquist, 1999)

Photo by: Angelstorm

DCA Releases New Report on Piracy Sites and Malware

Apropos my recent response to the EFF’s standard policy of shrugging at online piracy, I want to highlight one paragraph from the post to which I replied. Katherine Trendacosta wrote:

From the fever-pitch moral panic of the early 2000s, discussions about “piracy” disappeared from pop culture for about a decade. It’s come back, both from the side explaining why and the side that wants everyone punished.

Aside from the statement being inaccurate—discussions about piracy have persisted (often quite heatedly) every year since the Napster days—I cite the quote here because its sarcasm derives from that common fallacy which asserts that Piracy is a victimless crime. No it is not.

If one wants to cling to the rationale that because certain artists are wealthy, piracy is therefore harmless to creators, fine. Whatever. But the fact that EFF and other “digital rights” groups so consistently echo the alleged “harmlessness” of piracy suggests that they’re not terribly concerned about the broader security threats posed by this $2billion/year, global, criminal enterprise.

In a new report published yesterday, Digital Citizens Alliance tells us that the 500 pirate sites studied in its latest research—there are thousands of pirate sites—earn at least $121 million per year just by hosting “malvertising” (i.e., ads designed to deliver malware). Entitled, Unholy Triangle, the report was produced in collaboration with brand safety organization White Bullet and cyber security firm Unit 221B. It describes a symbiotic relationship between malvertisers and pirate sites—two sides of the triangle—and the various ways these parties profit by endangering visitors to pirate platforms—the third side of the triangle.

Highlights from the Report

Researchers found that among the sites studied, 8 in 10 were littered with ads specifically created to entice clicks that will instantly download malware to a device or network. One out of every six visits to pirate sites, the report says, will encounter an attempted malware attack. The most popular type of bug is ransomware, but the researchers also found trojan horses and other malware used to obtain personal or financial information and/or to take control of devices. Of that $121 million annual revenue the pirate sites acquire from serving malvertising, the report states that more than half ($68.3 million) came from U.S. visits.

Among the most compelling, albeit ironic, details revealed by the report is that the majority of ads used to trigger responses are based on fear—specifically, fear of malware! It seems that because many pirate site visitors know they are exploring illegal and sketchy platforms, they are more susceptible to pop-up and pop-under ads warning them that their devices may be infected, or that they should make changes to their devices to ensure their security or anonymity.

A visitor clicks that ad offering to protect her device, immediately downloads malware, and within minutes,[1] her files are locked up, and she will soon receive a ransom demand promising to release those files for $800 to $1,000—in crypto, of course. Even people who pay these ransom demands report that, at best, they get about 65% of their data back, and there is no reason to assume that the hacker(s), who this report indicates are mostly located in Russia, will restore any data once they’re paid.

Ad Intermediaries Facilitate Sketchy Ads

DCA notes the success of initiatives like the Trustworthy Accountability Group (TAG), which launched in 2015 to extricate the legitimate advertising industry from the piracy business. But, the report describes certain advertising intermediaries that seem to straddle the legal and illegal trade. For instance, researchers focused on intermediary RichAds, which the report describes as follows:

RichAds is an advertising company that touts its ability to capture new quality leads from premium sources through its productive ads. The company is listed as being based in Cyprus, with many of its employees listing Belarusian universities as their alma maters on LinkedIn. It promises to deliver the best traffic and claims, on its LinkedIn page, that “We block any bot or other fraudulent traffic.”

Researchers sent the ad shown here for approval and received a “no problem” message from RichAds. This was hardly surprising because, looking a bit further, it appears that this intermediary is not just turning a blind eye to malware campaigns but is promoting its services to facilitate malvertising on pirate sites. “In the case study [used to promote itself], RichAds highlights how the customer relied upon the company to generate and place ads that ‘warned’ users that a virus was detected on their devices and they needed to update their antivirus software,” the report states.

National Security Implications

With operators in countries like Russia and Belarus—and with more than half the malvertising revenue (measured in this report) being generated by American visits to pirate sites—questions about national security come to mind. No, I am not saying that some teenager in Indiana illegally streams Stranger Things, and the power grid shuts down—and neither is DCA. But with more telecommuting and connections between critical enterprise databases to personal networks, the vulnerabilities to the former have increased, and enterprises are big fish for ransomware hackers.

Whether there is any crossover between the private malvertising industry and state-directed hacking aimed at the U.S. is a matter of speculation, but as the DCA report puts it:

Russia, China, Iran, and North Korea make up half of [all ransomware attacks]. As their primary target is the United States, it’s a safe assumption that the motivations go beyond financial to geo-political with national security implications. Those concerns have some states reconsidering the protocols for dealing with an attack on government operations.

Hardly Victimless

Clearly, even if one does not give a RAT’s butt about creators’ works being illegally distributed, piracy is not a victimless crime. On the contrary, a substantial and growing revenue stream for the pirate site operators is, in fact, a trade in victims. Whether it’s slaving personal computers, identity theft, or delivering ransomware to a pharmaceutical company, malware is big business, and piracy sites continue to be an excellent super-spreader.

After about ten years of reading DCA’s reports, this recent one comes closest to at least implying that media piracy can be a vector for malware attacks on something larger than personal computers. Assuming that’s not an exaggeration, the “digital rights” groups may need to drop the false narrative that mitigating piracy comes at the cost of online “freedom.” Site blocking, technical measures, and other means to interdict the piracy trade become very different conversations, if we are indeed talking about critical supply chains and not just “Hollywood.”

[1] The report cites Paul Watters, who “found it typically takes just 42 seconds for an “advanced persistent threat” such as malware to infect a Windows device and 78 seconds to infect an Android device.”

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

It’s a very strange argument because the artists to which Trendacosta refers in those strikes, etc., want money, too. In fact, money is often exactly why they have disagreements with certain producers or studios. Yet, Trendacosta elides the fact that piracy hurts everyone in the ecosystem, regardless of their internal disputes and negotiations with one another. That’s why unions like DGA, WGA, and IATSE are members of the Copyright Alliance and work closely with the studios to fight piracy. It is categorically false to suggest that large studios are the only parties with an interest in this issue. As independent filmmakers and other artists have explained repeatedly, it’s the smaller, independent projects that are most vulnerable to the negative effects of piracy.

And let’s be honest. EFF opposes all copyright enforcement measures in the same style as this post—no substance, just uninformed, ad hominem attacks—and it behaves no differently when smaller groups or indie artists seek copyright remedies in Congress.

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?

The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.