What the Mounties pirate —

Travis sez, "The Pirate Party of Canada has uncovered that IP addresses from within the RCMP and Industry Canada are used to download copyrighted material. The point here isn't that they are downloading, it's that because all we have are IP addresses we don't know who is actually doing the downloading." — Cory •

My latest Guardian column is "3D printed guns are going to create big legal precedents," and it looks at an underappreciated risk from 3D printed guns: that courts will be so freaked out by the idea of 3D printed guns that they'll issue reactionary decisions that are bad for the health of the Internet and its users:

More interesting is the destiny of the files describing 3D printed guns. These model-files have been temporarily removed from the internet at the behest of the US State Department, which is investigating the possibility that they violate the International Traffic in Arms Regulations. Wilson says that he's on safe ground here, because the regulations do not cover material in a library, and he says the internet is like a library. As this is taking place in the US, there's also the First Amendment to be considered, which limits government regulation of speech.

Here's where things get scary for me. Defense Distributed is headed for some important, possibly precedent-setting legal battles with the US government, and I'm worried that the fact that we're talking about guns here will cloud judges' minds. Bad cases made bad law, and it's hard to think of a more emotionally overheated subject area. So while I'd love to see a court evaluate whether the internet should be treated as a library in law, I'm worried that when it comes to guns, the judge may find himself framing the question in terms of whether a gun foundry should be treated as a library.

3D printed guns are going to create big legal precedents

When US Federal Judge Otis Wright ruled against Prenda Law (a gang that used sloppy accusations of illegal downloads of pornographic movies to extort millions from people who didn't want the embarrassment of being publicly sued), he ordered Prenda's lawyers to give copies of his ruling to judges in all the other places where they were suing their victims. Judge Wright's ruling called Prenda a "fraud" and said its lawyers engaged in "moral turpitude."

One of Prenda's most colorful lawyers is Jacques Nazaire. He's asked a judge in Georgia to ignore the Judge Wright's order, because Judge Wright is a California judge, and California has gay marriage.

It doesn't stop there. It notes that California courts have different immigration rules and (randomly) that NY has different gun rights. Basically, it throws out every hot button issue that stereotypical conservatives might disagree with stereotypical liberals on.

Of course, all of that is meaningless. While it's true that Judge Wright's ruling is in no way a precedential ruling for the Georgia court, it's still a ruling about federal law, not any specific state law. And the ruling itself is about flat out misconduct (including potential racketeering and tax evasion claims) by the plaintiff in this case, because of actions in a nearly identical case. That's not about California having a "mandate" over Georgia. It's about very relevant additional information that the court should know about.

Nazaire then goes on to list out a ridiculous parade of horribles that he claims would happen if the Georgia court "followed the aforesaid California Order" including that law firms wouldn't be able to use boilerplate text any more. This makes absolutely no sense at all. First of all, the inclusion of Judge Wright's order is not about having the Georgia court "follow" the order, but adding additional important information about the parties in this particular case. Separately, the idea that adding a California ruling into the docket suddenly means lawyers wouldn't be able to cut and paste any more... just doesn't make any sense at all.

Prenda Lawyer Says Judge Wright's Order Is Inapplicable In Georgia Because California Recognizes Gay Marriage [Mike Masnick/TechDirt]

The US State Department has ordered Defense Distributed to take down the designs for a working 3D printed gun, citing export control rules set out in the International Traffic in Arms Regulations. Defense Distributed's Cody Wilson is appealing, and says that ITAR does not apply to "non-profit public domain releases of technical files designed to create a safe harbor for research and other public interest activities" -- though this carve out is for works stored in a library. Wilson's appeal may turn, then, on whether the Internet is a library for the purposes of this regulation. In the meantime, the designs are still up on The Pirate Bay, and are for sale in printed form in an Austin bookseller. More than 100,000 copies of the designs were downloaded from Defense Distributed's servers in the brief time that they were online.

“Until the Department provides Defense Distributed with final [commodity jurisdiction] determinations, Defense Distributed should treat the above technical data as ITAR-controlled,” reads the letter, referring to a list of ten CAD files hosted on Defcad that include the 3D-printable gun, silencers, sights and other pieces. “This means that all data should be removed from public acces immediately. Defense Distributed should review the remainder of the data made public on its website to determine whether any other data may be similarly controlled and proceed according to ITAR requirements.”

Wilson, a law student at the University of Texas in Austin, says that Defense Distributed will in fact take down its files until the State Department has completed its review. “We have to comply,” he says. “All such data should be removed from public access, the letter says. That might be an impossible standard. But we’ll do our part to remove it from our servers.”

Wilson's project is raising some important legal questions, such as whether design files can be considered expressive speech under the First Amendment, and whether the Internet is a library. The question of code-as-speech was famously considered in the Bernstein case, where strong crypto was legalized. However, as we discovered in the 2600 case, judges are less charitably inclined to code-as-speech arguments when they're advanced by non-academics, especially those with counter-culture stances.

Impact litigation -- where good precedents overturn bad rules -- is greatly assisted by good facts and good defendants. I would much rather the Internet-as-library question be ruled on in a less emotionally overheated realm than DIY guns.

State Department Demands Takedown Of 3D-Printable Gun Files For Possible Export Control Violations [Andy Greenberg/Forbes]

(Thanks to everyone who sent this in!)

Rep. Zoe Lofgren (D-CA), Rep. Thomas Massie (R-KY) and Rep. Jared Polis (D-CO) have introduced a landmark technology bill called The Unlocking Technology Act of 2013 [PDF] that reforms the way our devices our regulated. It fixes a glaring hole in the Digital Millennium Copyright Act (DMCA), changing the rules so that you are allowed to remove restrictions and locks from your devices provided that you don't violate other laws (as it stands, removing a lock, even to do something legal, like installing unapproved software on your iPhone or change carriers, is banned by the DMCA). The bill clarifies that security researchers don't violate the law by publishing information about flaws in the devices we trust and depend upon, and makes it legal to break "lock-out codes" that stop mechanics from fixing cars.

This is a watershed moment in 21st century technology law, and it's desperately needed. Every day that goes by sees us more dependent on devices that are increasingly designed to be as opaque as possible -- devices made by companies whose business-model treats customers as adversaries who undermine profits when they turn to third parties for software, repairs and services. It is only the presence of the terrible rules in the DMCA that makes this business attractive -- without these rules, technology locks would be quickly broken in the marketplace and competition -- as well as transparency -- would thrive. If you want to be sure that the devices that fill your rooms, your pockets -- and increasingly, your body -- are well-behaved and trustworthy, please support this bill.

FixTheDMCA.org and a broad coalition of groups are calling on Americans to write to their representatives in support of this bill. Until now, almost all technology activism has been reactive, fighting against bad rules. We finally have the chance to make some good rules, to establish a positive agenda for freedom, trustworthiness and transparency in the devices that form the nervous system of the 21st century.

"The Unlocking Technology Act of 2013" has 3 parts:

- It amends Section 1201 to make it clear that it is completely legal to "circumvent" if there is no copyright infringement.

- It legalizes tools and services that enable circumvention as long as they are intended for non-infringing uses.

- It changes Copyright Law to specify that unlocking cell phones is not copyright infringement.

You can read the full text of the bill here.

Finally, there's a bill in Congress that legalizes cell phone unlocking and fixes the DMCA.

Judge Wright has issued his long-awaited ruling in the case of Prenda Law, the notorious porno copyright trolls who used fraud and bullying to extort millions from Internet users by threatening to sue them for downloading pornography videos with embarrassing titles. Prenda used a combination of offshore shell companies, obfuscation, and even identity theft to disguise the ownership of their con, and when they landed before Judge Wright, it all started to unravel.

The judge has fined Prenda $80,000 ($40K in fees, doubled for punitive measure) and asked the FBI to investigate them for racketeering. He held that their operation was a fraud, that they had committed identity theft, and, importantly, identified Steele, Hansmeier, and Paul Duffy as the "de facto owners" of Prenda. He's asked the lawyers' bar associations to have them disbarred. And he made a lot of Star Trek references!

Nevertheless, it is clear that the Principals’ enterprise relies on deception. Part of that ploy requires cooperation from the courts, which could only be achieved through deception. In other words, if the Principals assigned the copyright to themselves, brought suit in their own names, and disclosed that they had the sole financial interest in the suit, a court would scrutinize their conduct from the outset. But by being less than forthcoming, they defrauded the Court. They anticipated that the Court would blindly approve their early-discovery requests, thereby opening the door to more settlement proceeds.

As for penalties, they begin with attorneys' fees. Prenda will have to pay these to the two defense lawyers who have been instrumental in this case: Morgan Pietz and Nicholas Ranallo. Wright awards $36,150 in fees to Pietz, $1,950 in fees to Ranallo, as well as legal costs (copying and filing fees, for example) to both. He then doubles the amount "as a punitive measure," arriving at $81,319.72. In a footnote, Wright says that the sum "is calculated to be just below the cost of an effective appeal"—a final dig at the Prenda business model of settlement offers just below the cost of defense. The Prenda folks have 14 days to pay up.

The harshest penalties are saved for last. First, Judge Wright suggests the Prenda lawyers should be disbarred, writing "there is little doubt that Steele, Hansmeier, Duffy, [and] Gibbs suffer from a form of moral turpitude unbecoming an officer of the court." In many states, including California, crimes reaching the standard of "moral turpitude" lead to automatic disbarment. Wright will be referring the four lawyers to every state bar in which they are admitted to practice...

Third, though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage. The Court will refer this matter to the United States Attorney for the Central District of California. The [court] will also refer this matter to the Criminal Investigation Division of the Internal Revenue Service and will notify all judges before whom these attorneys have pending cases.

Prenda hammered: Judge sends porn-trolling lawyers to criminal investigators [Joe Mullin/Ars Technica]

Evan from Fight for the Future sez, "All of your phone calls, emails, petition signatures, and tweets are working. The privacy-killing back-from-the-dead zombie bill CISPA is a bit stalled in the Senate, with over $605 million in lobbying spent on it already, it's bound to be back to haunt us in some form soon. So we made an infographic to get everyone up to speed. This Spring, we'll be organizing the largest online privacy protest in history, to send this bill back where it belongs. Join us?"

Read the rest

Money wins Elections is an excellent, scrolling infographic that illustrates how money corrupts the American legislative process, showing that time and again, Congress has voted the way that the big money told it to, against the prevailing popular opinion. It's all in support of the American Anti-corruption Act, and it was created by Tony Chu for part of his MFA thesis project.

Money wins Elections

"Peeping Toms" tumble into ladies' restroom —

In Atlanta, a pair of Peeping Toms reportedly fell through a bathroom ceiling as they tried to spy on women below. The Atlanta Journal Constitution reports that the 26- and 27-year-old men are suspected of climbing up into the men's restroom ceiling area, crawling over the womens' side, then promptly falling into a lavatory stall. — Rob •

A Second Circuit Appeals Court judge has handed down a landmark fair use decision in Cariou v. Prince. Prince, a collagist, remixed some of Cariou's photos and sold them for large sums. Cariou argued that the new works were not fair because Prince did not create his collages as a comment on the original (one of the factors judges can consider in fair use cases is whether the new work is a commentary or parody). The lower court agreed, and ordered destruction of the show catalogs and a ban on hanging the new works. But the appeals court overturned, and held that a use can be fair even when it doesn't comment on the original.

"We conclude that the district court applied the incorrect standard to determine whether Prince's artworks make fair use of Cariou's copyrighted photographs," writes Judge B.D. Parker in the decision, which was released this morning. "We further conclude that all but five of Prince's works do make fair use of Cariou's copyrighted photographs. With regard to the remaining five Prince artworks, we remand the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense."

"This decision absolutely clarifies that the law does not require that a new work of art comment on any of its source material to qualify as fair use," attorney Virginia Rutledge told A.i.A. by phone this morning after a preliminary survey of the decision.

"This is a major win for Prince on at least two counts," NYU art law professor Amy Adler told A.i.A. via e-mail. (She consulted on the case but was speaking for herself.) "The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince's testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work."

Richard Prince Wins Major Victory in Landmark Copyright Suit [Brian Boucher/Art in America]

(Thanks, Tim!)

After months of activist agitation and a crushing disappointment from the cowards in the House of Representatives, the US senate has effectively killed CISPA, a sweeping Internet surveillance proposal. This is astoundingly great news! But CISPA died once before, and came back from the dead, and it will not likely stay dead this time around either. The price of liberty is eternal vigilance, etc etc etc:

Sen. Jay Rockefeller (D-WV), the chairman of the U.S. Senate Committee on Commerce, Science and Transportation, said in a statement on April 18 that CISPA's privacy protections are "insufficient."

A committee aide told ZDNet on Thursday that Rockefeller believes the Senate will not take up CISPA. The White House has also said the President won't sign the House bill.

Staff and senators are understood to be "drafting separate bills" that will maintain the cybersecurity information sharing while preserving civil liberties and privacy rights.

Rockefeller's comments are significant as he takes up the lead on the Commerce Committee, which will be the first branch of the Senate that will debate its own cybersecurity legislation.

Michelle Richardson, legislative council with the American Civil Liberties Union, told the publication she thinks CISPA is "dead for now," and said the Senate will "probably pick up where it left off last year."

CISPA 'dead' in Senate, privacy concerns cited [Zack Whittaker/ZDNet]