Creative Commons and the enemies of creators’ rights | TechnoLlama

Creative Commons and the enemies of creators’ rights | TechnoLlama

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(Apologies to Aurelia and John for feeding the trolls). From time to time I come across an insidious, wrong-headed yet pervasive meme floating around the Internet; it can be encapsulated like this: Creative Commons is bad because it affects creators. How does it do it? There are two different versions of the meme. Firstly, it affects commercial creators because there are people out there making their work available for free, and it is difficult to compete against free. Secondly, creators are taken in by the fad that is CC, and they end up giving away important commercial rights that will affect them in the future. While this is F.U.D. at its best, I’d like to spend a little bit of time dealing with both.

However, first a little background about what has prompted this post. Yesterday’s post about Creative Commons in Portugal was retweeted quite a lot (to my surprise), and was generating a lot of hits. I was going through the referring tweets in the evening, and found some negative comments towards Creative Commons, amongst them this one. I did not agree with the tone, but hey, CC is not everyone’s cup of tea, so no worries, everyone is entitled to their opinion and all that. A few minutes later this one posted similar sentiments:

Time to move to Portugal! They're considering banning CC (and similar) licensing! technollama.co.uk... (Thx @musictechpolicy)
May 8, 2011 8:29 pm via TweetDeckReplyRetweetFavorite
@LeslieBAP
Leslie Burns

Well, someone REALLY doesn’t like Creative Commons. Still no biggie, I’ve come across similar opinions before. However, some minutes later, the same person tweeted this message mentioning yours truly directly:

@dabitch sadly, that blog is anti-creators' rights, but you'll get the meat of the proposal, at least.
May 8, 2011 8:34 pm via TweetDeckReplyRetweetFavorite
@LeslieBAP
Leslie Burns

This comment really annoyed me at a basic level. There is no need to get defensive, but I really could not see in what way my blog implies that I am someone who is anti creators’ rights, whatever that means. I believe strongly in the creative process, consider myself a creator as well, and also give lots of presentations informing people about their rights and how they can use Creative Commons to their advantage. But perhaps there was a blatant post in these pages that prompted such comment. So I replied asking the poster what exactly makes me an enemy of creator’s rights. The reply is precisely what prompted this post. Ms @LeslieBAP wrote:

@technollama Anyone who supports CC is by definition anti-creators' rights. CC has put huge numbers of creatives out of business. @dabitch
May 9, 2011 8:12 am via TweetDeckReplyRetweetFavorite
@LeslieBAP
Leslie Burns

Yes, you read correctly, anyone who supports CC is by definition anti-creators’ rights because it is responsible for leaving several people out of business. So I asked that I would love to see the evidence of how many people have been affected by Creative Commons. This I believed was a reasonable request, after all, if CC is such a scourge of creators, there must be some evidence of it somewhere. I got another interesting reply:

@technollama There are no studies, of course, but that's why you asked for figures--you know there are none. Anecdotal? Tons. @dabitch
May 9, 2011 9:08 am via TweetDeckReplyRetweetFavorite
@LeslieBAP
Leslie Burns

There is no evidence that CC is affecting creators, but it must be true as there is some anecdotal evidence of it. The main problem I have with arguments like these is that it is clear that whenever the person is talking about creators, they are talking about a very narrow and specific type of creator. This is one of the issues that I always try to cover whenever I talk about open licensing in general, it is the idea that has been perpetuated in the collective psyche that there are a few worthy Creators, and then there are the rest of us, mere users. This is of course a false dichotomy, as the Internet has brought about a greater democratisation of the creative process. There are still cultural marketplaces, and these are still dominated by the few big sellers, but to imply that only the people at the head of the charts are worthy of the brand “Creator” completely misses what has been taking place in the last 15 years. It seems to me that the people who are still using such language are the people who were doing rather well in the pre-Internet days. Those were the times of the gatekeeper, where a small minority managed to profit from their work, and the rest of us were simply consumers. Nowadays there is a surplus of creation, and the old intermediaries are in crisis, and are being forced to change their business models, or are out of business entirely.

This is simply the reality of life in the Information Age (apologies for the use of this crass cliché). The intermediaries lose power, the gatekeepers are left guarding entry points while the walls all around them fall down. Technological changes have meant that I can write this blog without being a publisher, that you can upload a picture to Flickr, and that a person who attended a talk last week can upload a video on YouTube. Software has made it possible for more people to become musicians, editors and filmmakers. To ignore this reality is to deny the future and continue bemoaning the loss of an increasingly irrelevant golden era.

Creative Commons is not against copyright, it is simply the recognition of the new paradigm. CC allows the armies of new creators to publish their work online. This is the complete opposite of being against creators’ rights, it empowers larger numbers of creators to publish their work. CC does not work against copyright, it relies on copyright. Moreover, CC helps to strengthen copyright because larger numbers of people become owners. Copyright is not something that happens to a few pop stars and Hollywood producers, copyright is something that happens to every single person who crates an original work. By making people think about their own copyright, it also allows them to think about other people’s works.

Are there people hurting in the creative industries? Certainly! But this is not the fault of Creative Commons. The music industry is currently suffering from a combination of technological change, short-sightedness and piracy. Professional photographers are suffering from the fact that everyone is now a photographer, the surplus of digital cameras has created lots of competition. But again, CC did not create Flickr, it was already there.

In the last few weeks I have been presenting to creators here in Costa Rica about Creative Commons. Just last week I was inspired by the words of singer/songwriter Esteban Monge, who offers his music under a CC licence. He is one of the thousands of musicians who are not part of the minuscule minority who profit from contracts with large labels. He epitomises what I am talking about, he is also a creator worthy of respect. CC is working for him, I would like to see those who believe that Creative Commons is somehow against creators’ rights to have a quick talk with Esteban.

The world has changed, it is about time some people realised that 20th Century business models no longer work.

The Rapture - Christians Are Gone!?

May 21st - Judgment Day?

There is much talk about the End of the World being on May 21st, 2011. Harold Camping, of Family Radio, is an absolute nut. Even mainstream Christians say that the hour of Jesus' return isn't known, but only to God the Father. However, this alone is crazy, because if the Father and Jesus are one, then Jesus should know also, but this is side-tracking.

Camping's ramblings are not new. The Seventh Day Adventists predicted the end of the world a few times, most famously once in the book, Evidences from Scripture and History of the Second Coming of Christ about the Year 1843. This date came and went. And there has been other predictions and speculations that are humorously in error. It'd be more funny, if it weren't for the gullible and vulnerable giving their life savings away to fund the knowledge of impending doom. There will be many suicides on the 22nd, thanks to Mr. Camping's ridiculous (and mathematically flawed!) claims. May he be charged with Aggravated Manslaughter when this happens. I am not a Christian, but heed my prophecy!

This is not the first time Camping had predicted the end of the world either. He's even makes a claim to know the year the earth was 'created,' and when the global flood occurred. Now, this weird nutcase predicts the return of the Son of God, the being that has no plausible existence outside of the Bible, if Jesus even existed at all.

I cannot wait until this man's claims are behind us, and the man is dead (he's in his late 80's). However, it's unfortunate that as time continues and people keep believing in myths, legends, fabrications and superstition, there will always be predictions of the End Times. And there will always be weirdos that buy into it, give away all they have (not to the poor, but to the Church), and die confused and embarrassed.

Congress Just Sold You Out: Leadership Plans To Extend Patriot Act For Four Years With NO Concessions | Techdirt

Techdirt
by Mike Masnick

As we've discussed, there were some very questionable provisions in the Patriot Act which were set to expire last year, but got extended, officially to allow time for debate. There was none, and when the extension was set to expire, Congress extended the clauses again for 90 days, supposedly to debate them. There were some superficial discussions, but the end result is what many people knew would happen anyway: the provisions are going to be extended for four years, with no concessions or greater oversight. Not only that, but the leadership from both major parties, who have agreed to this "deal," want to pass it with little or no debate:

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire, according to officials in both parties who spoke on condition of anonymity. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government.

So, let's see. The government grants itself the power to abuse the 4th Amendment and spy on people with little oversight, and it would prefer that there not be any debate over this, because pesky people might raise the fact that this is wide open for abuse, and the senators don't want to have to talk about that.

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FBI Spyware Continuously Trolls Suspects' Surfing

Nextgov
By Aliya Sternstein

A computer bug akin to spyware, developed by the FBI to trace the source of cyber crimes remains permanent on a suspect's machine, according to previously Secret documents recently released under the Freedom of Information Act.

The Electronic Frontier Foundation, a privacy group, obtained various emails and records confirming the use of the tracking device, called the Computer and Internet Protocol Address Verifier, after the technology publication Wired first reported its existence in 2007. The new documents also show that the worm continuously retrieves data whenever the targeted computer is online. The papers reveal the names of agencies outside the FBI, including the Air Force, that have sought to use the software. And they show uncertainty among government officials about the legal procedures for seeking permission to use the application.

"The tool will stay persistent on the compromised computer and . . . [every] time the computer connects to the Internet, we will capture the [court-approved] information," a special agent in the FBI's cryptologic and electronic analysis unit wrote in one June 2007 email. The agent was emphasizing to a colleague "the importance of telling the judge" about these traits, presumably in a request to deploy the spyware.

The worm can collect the user's Internet protocol address, or network location; media access control address, a unique code for each piece of computer hardware that connects to a network such as a Wi-Fi card; and certain data, the name of which is redacted, that "can assist with identifying computer users, computer software installed, computer hardware installed, [redacted]," an Oct. 2005 message stated. A separate 2005 email regarding an installation in Honolulu indicates the spyware also can record open communication ports, a list of programs running, the operating system's serial number, type of browser, current login name, and the website the target last visited.

"When you put all the information together you can actually tell a lot about the person," said Jennifer Lynch, a staff attorney with the foundation who focuses on government accountability litigation. "You can figure out [the city] where the person is visiting a website from, through an IP address."

Investigators, however, do not appear to be acquiring the actual text of the suspect's communications and other transactions, she said.

The device seems to be effective, having reportedly helped catch a hacker who broke into systems at Cisco, NASA's Jet Propulsion Laboratory and various other U.S. national laboratories in 2005. The tool also supposedly was used to ensnare a sexual predator endangering the life of a teenager.

About five years ago, agents determined the tool could aid in hunting down a perpetrator who was threatening a residence over the Internet: "Victim's family being harassed via email from subject and subject slandering victim to victim's clients," one of the newly released documents noted. The agent assigned to the case was awaiting subpoenaed information to bolster probable cause for a search warrant to deploy the tracker.

"If the FBI and other agencies are complying with the law on how they are using this device, then I think it's an important tool to use," Lynch said. "I would never want the FBI to not catch criminals . . . What we need to get on the FBI about is that they are using the proper authority" and eventually deactivating the software.

Foundation officials have raised concerns about documents showing that FBI agents at times employed inconsistent methods for gaining authorization to install the tracer. Their email messages talk about using a "trespasser exception" to avoid obtaining a warrant. One message recommends citing the "All Writs Act, 28 U.S.C. § 1651(a)." The group noted that one September 2007 message indicates some agents felt spyware searches do not require any legal process.

"There seems like there was a lot of back-and-forth," Lynch said.

The 2007 email stated, "I still think that use of [redacted] is consensual monitoring without need for process; In my mind, no different than sitting in a chat room and tracking participants; on/off times or for that matter sitting on P2P networks and find out who is offering KP" -- in a likely reference to law enforcement's practice of searching through file-sharing networks for sex offenders exchanging child pornography.

The FBI apparently settled on a two-pronged approach that includes attaining a search warrant for accessing the computer and a so-called pen/trap order for collecting the data, foundation officials said.

Based on the new information, the group has some reservations about the broad application of the tool throughout the federal government. One January 2006 email discusses a situation where the Air Force Office of Special Investigations was awaiting approval from "the Air Force General" to deploy a device. A July 2007 email bore the subject line "JTF-GNO Request for FBI Tool" and discussed interest from the Joint Task Force-Global Network Operations, a Defense Department cybersecurity organization, and the Naval Criminal Investigative Service.

FBI officials, too, have been troubled by outsiders using their technology, according to the documents. As far back as March 2002 a law enforcement official reported that the indisputably valuable tool "is being used needlessly by some agencies, unnecessarily raising difficult legal questions (and a risk of suppression) without any countervailing benefit." In the JTF-GNO email, the FBI sender was "weary to just hand over our tools to another [government] agency without any oversight or protection for our tool/technique."

FBI officials declined to comment on the newly-released files.
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4th Amendment? What 4th Amendment?

Supremes Say Police Can Create Conditions To Enter Home Without A Warrant | Techdirt
by Mike Masnick, TechDirt.com [Reprint]

We've been discussing various ways that our government and the courts have been slowly chipping away at the 4th Amendment, what with warrantless wiretaps, searching laptops, TSA agents groping people, etc. And the Supreme Court just took a huge chunk out of the 4th Amendment in saying that police can raid homes without a warrant if there are "exigent circumstances" -- even if those "exigent circumstances" are created by the police themselves.

The law, to date, had been that police cannot enter a home without a warrant unless they had both (a) probable cause and (b) "exigent circumstances" in which getting a warrant would not make sense. In this case, police were searching for a drug dealer who had gone into an apartment complex. Outside of one apartment, they smelled marijuana -- which created probable cause. At this point, they should have obtained a warrant. Instead, they banged on the door and shouted police. At which point they heard a scramble inside, and busted in the door, claiming that they believed the scramble was the possible destruction of the drugs. The argument then was that this noise -- even though it was entirely created due to police action -- represented exigent circumstances that allowed them to bust in the door without a warrant. The Kentucky Supreme Court said that while the noise might be exigent circumstances, since it was illegally created by the police, it could not be used.

Tragically, the Supreme Court -- by an 8-to-1 vote -- has now disagreed, saying that this is perfectly consistent with the 4th Amendment. With all due respect to the 8 Justices and the Court, I can't see how that's reasonable at all. This sets up a dreadful situation which will be abused regularly by law enforcement. It lets them create yet another situation where they may avoid oversight, by creating their own exigent circumstances, and then using that as an excuse for avoiding a warrant and any required oversight or limitations. I believe that Justice Ginsburg's dissent is much more compelling. Her dissent points out that exigent circumstances are only supposed to be used in very rare circumstances when getting a warrant is not possible or practical. Yet, in this case, the police easily could have secured a warrant quickly upon smelling marijuana.

That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, "[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police." ... Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

In fact, she notes that "Home intrusions, the Court has said, are indeed 'the chief evil against which . . .the Fourth Amendment is directed.'" So it seems positively ridiculous to claim that such a home invasion is acceptable under the 4th Amendment. This is a tragically bad ruling by the Supreme Court that will have massive and dangerous consequences. We already have law enforcement pushing the boundaries of individual privacy rights, and now they have even more tools to take that further.

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A Holey Fairy Tale

~ ExChristian.Net

By atheistnurse ~

Once upon a time there was nothing. But in that nothing was an omnipotent god. This god wasn’t made by anything - he was just always there -- hanging out in nothingness for eternity (Don’t spend a lot of time wondering how this could be, just believe it). You might think he was bored, lazy, or unimaginative because he didn’t do anything, but he was thinking of what he was going to do. It just took him a really long time to come up with a good plan. He thought of talking snakes, talking donkeys, superhuman men who lost their power when their hair was cut, killing people for picking up sticks on his day, making a lot of stupid rules that would be really hard to follow so he could punish them for not following them, wiping out whole communities of men, women, and children, and –oooh!! the best part!! – he would make an evil, powerful angel who would tempt people and cause people to turn away from god so he could put those people in a place of torment for all eternity.

After god decided on a plan of action he got right to work. He made the earth and planets and stars. He added plants and animals and made a man out of dirt. Then he made the man fall asleep and he made a woman out of the man’s rib. They lived happily in a garden where everything was perfect. But one day a talking snake tricked the woman into eating fruit off of a magic tree that god had told them not to eat. This made god mad even though he knew ahead of time they would do that. That was the whole point of god making the magic tree and the talking snake. Duh! So he kicked them out of the garden and labeled every descendant of theirs a big piece of worthless shit, which god called “sinners.” But god was nice enough to let them live for hundreds of years and have tons and tons of worthless shit babies. God knew they were all going to be worthless and he had already preplanned a giant flood to drown them all, except for one family. He had to save one family to start all over again, even though he knew they were going to have tons of worthless shit babies, too.

God had an ingenious plan to help all the worthless shit people in the world and make them think he was really a nice, loving god. He was going to make a virgin 12-year-old girl pregnant with himself!! Deep down god really liked to kill and torment people. He told them how he was a loving god and they had to follow hundreds of stupid rules he made up or he would be well within his power as god to kill them. He made up rules about what they could eat, how to cut their penises, how to wear their sideburns, killing their kids if they talked back, having feasts, washing, working, having sex, and lots, lots more. He knew they couldn’t remember all the rules, much less follow them, so he would have lots of opportunities to kill and torment. Fun!!

Along the way he had a little fun with some of the worthless people. He messed with their minds by allowing the evil angel to kill all the kids of one guy who followed god’s rules really good , he told an old man to kill his son and burn him, told another guy to lay on his side for months and make a fire using human shit, and he told another guy to marry a prostitute even though he had told people before that was a bad thing.

God had an ingenious plan to help all the worthless shit people in the world and make them think he was really a nice, loving god. He was going to make a virgin 12-year-old girl pregnant with himself!! Then god would split into two different entities and be a man and a god. He would go around praying to himself, and tell people how worthless they were and they could either worship him or be eternally tormented. Then he would let himself be tortured and nailed to a cross and his body would die (but he wouldn’t really die because he is god) and then he would come back to the worthless people in two days (though it is supposed to be three days by his prophets, but never mind the technicalities), and tell more people how worthless they were. He would tell them that he was going to split into yet another form (a magic ghost!!) and if they actually believed this bull shit and telepathically communicated with him all the time, they could spend eternity worshipping at his feet. What could be more fun?? Well, the alternative was eternal torment in a fiery hell, so worship it is! Finally he would rise up and disappear never to be seen or heard from again.

And everyone who believes this will live happily ever after.

FBI Chastised by Court for Lying About Existence of Surveillance Records

Commentary by Jennifer Lynch

An order last week from the U.S. District Court for the Central District of California has revealed the FBI lied to the court about the existence of records requested under the Freedom of Information Act (FOIA), taking the position that FOIA allows it to withhold information from the court whenever it thinks this is in the interest of national security. Using the strongest possible language, the court disagreed: “The Government cannot, under any circumstance, affirmatively mislead the Court.” Islamic Shura Council of S. Cal. v. FBI (“Shura Council I”), No. 07-1088, 3 (C.D. Cal. April 27, 2011) (emphasis added).

This case may prove relevant in EFF’s ongoing FOIA litigation against the FBI. As discussed further below, one of the issues in Shura Council was the FBI’s extensive and improper use of “outside the scope” redactions. The agency has also used these heavily in at least one of our current cases — in areas where it is highly unlikely the material blocked out is actually outside the scope of our FOIA request. (see example to the left from our case seeking records on the government’s push to expand federal surveillance laws). We’ll be writing more about that case in the coming weeks and posting the documents we received on this site soon.

Shura Council started five years ago in May 2006, after widespread reporting on the FBI’s programs targeting Muslims after September 11, 2001. At that time, several Muslim citizens and organizations in Southern California, including the Islamic Shura Council of Southern California and the Council on American Islamic Relations (CAIR), submitted a broad joint FOIA request to the FBI seeking “[a]ny records relating or referring” to themselves, “including . . . records that document any collection of information about monitoring, surveillance, observation, questioning, interrogation, investigation and/or infiltration[.]” Shura Council I at 4.

In 2008, after the FBI produced only minimal records, the requesters filed a federal lawsuit. The FBI then searched for and located additional records for nine of the plaintiffs, but these records were heavily redacted, with much of the information withheld as “outside the scope” of the plaintiffs’ FOIA request. The FBI attested, in documents and declarations it submitted under oath to the court, that these were all the records that existed about the plaintiffs and that the materials labeled “outside the scope” were “not responsive” to the plaintiffs’ FOIA request.

After court ordered the FBI to submit full versions of the records in camera, along with a new declaration about the agency’s search, the FBI revealed for the first time that it had materially and fundamentally mislead the court in its earlier filings. The unaltered versions of the documents showed that the information the agency had withheld as “outside the scope” was actually well within the scope of the plaintiffs’ FOIA request. The government also admitted it had a large number of additional responsive documents that it hadn’t told the plaintiffs or the court about. Id. at 7-8.

If these revelations weren’t bad enough, the FBI also argued FOIA allows it to mislead the court where it believes revealing information would “compromise national security.” Id. at 9. The FBI also argued, that “its initial representations to the Court were not technically false” because although the information might have been “factually” responsive to the plaintiffs’ FOIA request, it was “legally nonresponsive.” Id. at 9, n. 4 (emphasis added).

The court noted, this “argument is indefensible,” id. at 9-10, and held, “the FOIA does not permit the government to withhold responsive information from the court.” (Id.)(upheld on appeal in Islamic Shura Council of S. Cal. v. FBI, __ F.3d __, No. 09-56035, at 4280-81 (9th Cir. Mar. 30, 2011) (“Shura Council II”).1 The court stated:

The Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance. The Court is charged with the humbling task of defending the Constitution and ensuring that the Government does not falsely accuse people, needlessly invade their privacy or wrongfully deprive them of their liberty. The Court simply cannot perform this important task if the Government lies to it. Deception perverts justice. Truth always promotes it.

(Shura Council I at 17) (emphasis added). This is an important opinion for FOIA requesters because sometimes the only protection a FOIA requester has from the government's potentially arbitrary withholding of information is a court's in camera review of the full versions of documents. If the government were allowed to withhold information from the court, this protection would be meaningless and the role of judicial oversight in FOIA cases would be compromised.

Unfortunately for the plaintiffs in Shura Council, this seems to be a hollow victory. Although the court did not restrain itself from using the strongest possible language to criticize the government’s actions (calling the FBI’s arguments “untenable,” id. at 3, “indefensible,” id. at 10, and “not credible” id. at 17) it also held that “disclosing the number and nature of the documents the Government possesses could reasonably be expected to compromise national security.” Id. 18. Therefore it did not order the government to release the records to the plaintiffs or even to reveal how many records turned up in the second search. And on appeal, the Ninth Circuit held that neither the plaintiffs nor their attorneys had the right to see the original version of the district court’s order (filed under seal) because it contained information the FBI considered to be “national security and sensitive law enforcement information.” (Shura Council II at 4286).

It seems unlikely that, five years after the plaintiffs filed their FOIA request, the release of the information the FBI has on these individuals and organizations would truly threaten national security or an ongoing criminal investigation. None of the plaintiffs appears to have been arrested or retained in conjunction with a crime or foreign terrorist plot, so it seems more likely that this is yet another example of the government valuing secrecy over transparency.

The district court’s April 27, 2011 order after remand is here, and the Ninth Circuit opinion remanding the case is here.

1. This case has a convoluted procedural history. When the district court discovered the FBI’s lies it issued an order under seal on June 23, 2009 and told the parties it would unseal the order on July 7, 2009 unless further directed by the Ninth Circuit Court of Appeals. The government immediately appealed, and the Ninth Circuit issued a stay of the district court’s ruling until it could hear the case. On March 30, 2011, the Ninth Circuit issued its opinion in Islamic Shura Council of S. Cal. v. FBI, __ F.3d __, No. 09-56035 (9th Cir. Mar. 30, 2011), vacating the district court’s sealed order and remanding to the district court to revise its order to eliminate statements the government had designated as national security and sensitive law enforcement information. On April 27, 2011, the district court issued its revised order.

Related Issues: FOIA Litigation for Accountable Government, Privacy, Transparency
https://www.eff.org/deeplinks/2011/05/fbi-chastised-court-lying-about-existence