Category Archives: News

Lessig on the charges against Dotcom and Megaupload

kim dotcomThis morning, Kim Dotcom, accused by the Department of Justice of criminal copyright infringement, is in a New Zealand court to see if he will be extradited to the United States.

One of the things in Dotcom’s corner is testimony from Lawrence Lessig, a preeminent U.S. copyright scholar, and current presidential candidate. He argued to the court that the DOJ doesn’t have a legitimate case against Dotcom. Of course Lessig isn’t exactly a neutral party. As he acknowledged to the court, on top of being retained by Dotcom’s defense, he’s also advocated for copyright reform, co-founding Creative Commons.

But how’s his argument stack up? His first argument strikes at the heart of the DOJ’s theory, contending that the DOJ is improperly seeking to import the concept of secondary liability, recognized in MGM Studios Inc. v. Grokster, Ltd., to criminal law. This is “improper,” he contends, “because, in the United States, crimes must be clearly defined by the legislature and prosecutions are confined within express criminal statutes.” There is a fair argument to be made that this importing of principles from civil law violates the rule of lenity.

Lessig then takes aim at one specific allegation against Megaupload: that it failed to comply with DMCA take-down requests. Lessig explains that, if multiple users uploaded the same file, Megaupload would retain only one copy of the file, but would generate multiple URLs for each user who uploaded it. When Megaupload received take-down requests for one URL, Lessig argues, it should not have needed to take down all URLs linked to the same file, and even if it did, it should not face criminal liability for that action.

Lessig also takes on an even more controversial issue: whether U.S. copyright law extends to parties acting in other countries. Megaupload in fact had leased servers in the United States. But Lessig asserts that the Superseding Indictment doesn’t discuss this fact. Nor, he claims, does it allege that a directly infringing act occurred in this country.

Lessig then turns to what I believe is the core of Megaupload’s defense if it ultimately goes to trial in the United States: whether any of the defendants willfully violated copyright law. He notes that the willfulness standard “requires a stronger showing in a criminal copyright claim than in a civil claim.” (That is why claims of compliance with DMCA rules is a red herring in the Megaupload prosecution.) Lessig suggests that U.S. prosecutors are merely “[a]ttacking an ISP for generally bad or negligent policies or alleging how the ISP could be better, faster, or more precise in its takedown or repeat infringer policies is not enough.” And that, he contends, is not proper fodder for a criminal case.

Not all U.S. copyright scholar agree. James Grimmelman has observed that “If proven at trial, there’s easily enough in the indictment to prove criminal copyright infringement many times over.”

In a 2013 article, a co-author and I also suggested that, “if the facts alleged in the indictment are proved, the willfulness requirement will likely be met,” for the following reasons:

According to the indictment, the operators of Megaupload were just as intentional in their copyright infringement as The Pirate Bay, collecting advertising revenues generated by infringing content and exchanging incriminating emails showing that they knew about the infringement on their service. One operator joked to another that they “have a funny business . . . modern days pirates :),” to which his co-conspirator responded, “we’re not pirates, we’re just providing shipping services to pirates :).” Megaupload similarly sold premium access to unlimited streaming of uploaded content and financially rewarded users—even those previously caught uploading infringing material—for uploading popular content and for posting links to that same content on other websites. This practice not only increased traffic but also allowed Megaupload to avoid listing infringing videos directly on the site, concealing the scope of the infringing content on its servers. To rebut claims of infringement, Megaupload had instituted an “Abuse Tool,” allowing copyright holders to report, and purportedly remove, infringing content. But the indictment alleges that the company received millions of requests to remove infringing content and, “at best, only deleted the particular URL of which the copyright holder complained, and purposefully left the actual infringing copy of the copyrighted work on the Mega Conspiracy-controlled server and allowed access to the infringing work to continue.”

Lessig does a good job of showing the other side of these facts. But whether it is enough to defeat extradition is yet to be seen.

Also lurking in the background is the idea floated in the 2013 piece: just because prosecutors can, doesn’t mean they should.

Megaupload has not been convicted, and may never be, yet its business has been shut down, its assets frozen, its customers left unable to retrieve even lawfully stored data. Some of this smacks of the treatment of the King’s Messenger: punishment first, with trial after. … [W]hen the alleged conduct is egregious, and civil lawsuits are ineffective, then a criminal prosecution, with all its attendant hardships for the accused, may be warranted. But [those guidelines] are intended as limitations, not as a call to pursue more prosecutions. Because the powers of federal prosecutors are great, a reluctance to use those powers is a virtue that preserves liberty.

If the case survives today, then the court might consider employing the “substantial unoffending uses” test suggested here for evaluating the secondary criminal liability of providers of technology that has both criminal and non-criminal uses.

Last Week Tonight on Criminal Justice

John Oliver has been on a roll this summer addressing criminal justice issues on his HBO show Last Week Tonight. Below, check out his recent segments  on the bail system, mandatory minimums, and under-funding of public defenders. Also, he had excellent pieces last season on mass incarceration and the death penalty. See them all after the jump. Read Full Post…

Shelterforce Interview with HUD Secretary

There is a great interview up this week on Shelterforce with HUD Secretary  Julián Castro.

I think the parts of the interview that dive into some of the details about the solutions for low-income housing problems, and the different levels of government seeking to address those problems, is particularly interesting. As I wrote last year, one beauty of our system of government is that it “invites a chorus of actors, [and] rewards strategy and diligence.”

Miriam Axel-Lute: You mentioned different places have different things going on, different markets, and we want people to have access not only to new areas of opportunity, but we don’t want them to be priced out of places where they live now that are improving. There are a number of places, including New Orleans, as you mentioned, where many people are being priced out of the neighborhoods that they have lived in for a long time. In markets like that, what can HUD do to help people keep their homes?

Julián Castro: We need to focus on creating as much stock of affordable housing as possible. That’s why, for instance, we’ve joined with Treasury in suggesting in the past that we look at enhancing the Low Income Housing Tax Credit by up to 50 percent by allowing states to substitute unused tax credit capacity from other types of tax credits and use that instead for the Low Income Housing Tax Credit so that we can create more affordable housing opportunities out there. That’s one thing.

Another thing are traditional investments, like the HOME funds. As you all probably know, the Senate has proposed cutting HOME by 93 percent. We’re going to fight that. We can use our traditional dollars, like CDBG and HOME, as well as creative ways to spur more affordable housing, and then work with communities to adopt ordinances that provide more affordable housing opportunities.

Minneapolis, for instance, just revised an ordinance so they don’t require as much parking set aside. They already had done this in the downtown area, but outside of the downtown area they relaxed the parking set-aside requirement, which will help drive down the cost of development and make affordable housing a little bit more possible.

We’ve got to attack it from all angles. Obviously there are nonprofits, as well, that are doing good work out there, and we’re willing to partner up with anybody to meet the need, because it doesn’t matter if you’re in New Orleans or Portland or Chicago or here in D.C. The one common thing is there’s a rental affordability crisis out there. And we’re determined to use all the tools that we have and collaborate with local communities to use their tools to create more housing.

Miriam Axel-Lute: One of those tools that’s gaining a lot of interest in many parts of the country is permanently affordable housing, such as community land trusts, inclusionary programs with long-term deed restrictions, other programs that really ensure that the affordability in any unit lasts for a long time, which is a more fiscally responsible use of public money than having to keep putting it in over and over. How can and will HUD support these forms of housing?

Julián Castro: That’s a great question. What I like about that model is, of course, that it maintains affordability for a long period of time. We see challenges, for instance, with the sunsetting of some affordability arrangements. We look forward to being supporting of communities that are coming up with creative ways to maintain affordability.

One of the ways that we’ve done this recently is through RAD 2 [Rental Assistance Demonstration 2], which is helping units out there that otherwise would sunset in terms of their affordability, to stay affordable. And we’ll continue to work with local communities to come up with creative ways to maintain affordable units and create more.

The whole interview is worth checking out.


Extradition Hearing Set for Kim Dotcom

Kim Dotcom crowd

I’ve written about the criminal case against Kim Dotcom and his company Megaupload before. It is the first big instance of criminal copyright enforcement in the United States and raises a whole host of fascinating legal issues for both intellectual property and criminal law. Since the charges were filed back in 2012, Dotcom has been fighting extradition from New Zealand.

This week, Cyrus Farivar at Ars Technica reported the following:

Megaupload founder Kim Dotcom and his co-defendants have lost their bid to have their extradition hearing delayed yet again, the Court of Appeal of New Zealand ruled on Monday.

As of now, the hearing is set for September 21, 2015—the tenth time this hearing has been scheduled.

And this time, any additional extensions could make quite a difference:

Should the extradition hearing be delayed beyond September 21, it may run up against when German-born Kim Dotcom becomes eligible for New Zealand citizenship on November 29, 2015.

To read more about the Megaupload case, check out this blog’s coverage, or Ars Technica’s.

DOJ Says: Search Warrants for Cell-Site Simulators

This week, the Department of Justice issued an important “enhanced policy for use of cell-site simulators” (also known as stingrays, triggerfish, or IMSI catchers). The document essentially admits what many have criticized about the devices—that they “force every cell phone in a region to connect to them; so if a government stingray drives past your office, it will collect the signal of your phone as well as the government’s target.” In the DOJ’s words: “When used to locate a known cellular device, a cell-site simulator initially receives the unique identifying number from multiple devices in the vicinity of the simulator. Once the cell-site simulator identifies the specific cellular device for which it is looking, it will obtain the signaling information relating only to that particular phone. When used to identify an unknown device, the cell-site simulator obtains signaling information from non-target devices in the target’s vicinity for the limited purpose of distinguishing the target device” (emphasis added).

Before the new policy, police routinely disguised use of stingrays by using them under the auspices of a “pen register” order. But scholars argue that these devices are capable of much more than pen registers, which are devices that merely record “numbers called from a particular telephone line.

Under the enhanced guidelines, agents are instructed to obtain a search warrant before using a stingray. On top of that, the search-warrant applications are to disclose certain information about the technology. This includes notifying the judge that the devices can sweep up “unique identifiers” from non-targeted phones and disrupt service to those phones.

The policy further instructs that “cell-site simulators used by the Department must be configured as pen registers, and may not be used to collect the contents of any communication, in accordance with 18 U.S.C. § 3127(3).”

Time will tell if this enhanced policy will move the needle on the secretive nature of these devices. As EFF notes, “[u]ntil recently, law enforcement’s use of Stingrays has been shrouded in an inexplicable and indefensible level of secrecy.”

Wired Profile of Cory Booker

Cory BookerLove him, or hate him,  Senator Cory Booker seems to be genuinely interested in promoting a more tech-savvy version of government.

In a new Wired interview,  he talks about his efforts to ask for reforms to Senate procedures, including “streamlining the requirements for email newsletters, letting Senate offices use analytics services to track social media, and adapting the Congressional Record to a more accessible XML format.”

Booker suggests that there should be “an app that alerts you every time legislation that’s important to you is being marked up in committee and when it makes it to the floor for a vote—and what poison pills might be slipped into it.” He also argues that the Senate should adopt cloud-based technology, that the FAA shouldn’t slow down  exploration of drones, and that the patent office needs a better process for cranking through its large backlog of patents.

Advertising on Chicago Architecture, Round II

There is continuing hubbub about the Trump towers sign in Chicago. As Emily Badger explains on Wonk Blog today, a lot of outspoken folks seems to hate it:

When the sign first took shape, one letter at a time over the course of several weeks earlier this summer, outrage began to build in a city that prizes its architectural views like Boston does its colonial character or New Orleans its jazz scene. Mayor Rahm Emanuel called the sign “tasteless.”The skyscraper’s architect, Adrian Smith, let it be known that he agreed. The Chicago Tribune’s Blair Kamin blasted it, prompting a very bizarre feud — and an excellent Daily Show segment — wherein Trump himself called the Pulitzer Prize-winner a “third-rate architecture critic.”

Now Emanuel has proposed an ordinance that would protect the city’s riverfront from such “visual clutter” in the future. Chicago can’t strike down this sign (the previous administration approved it). But, under the new rules, which would follow similarly protected corridors elsewhere in the city, building signs would have to be significantly smaller (in Trump’s case, about five times smaller). They’d have to be located much closer to the rooftop, effectively out of sight at eye level. No Vegas-style flashing lights or neon. And only a building’s principal occupant — using at least 51 percent of the floor space — could plaster its brand on the building. That means a company filling two floors of a high-rise can’t pay a developer for that right.

Badger does a good job trying to explain the negative reactions. She quotes Kamin, who argues that, because this sign sits at an important area for Chicago architecture, “this isn’t just a debate about a sign.” Rather, he says, “It’s about the quality of civic space.”

As I covered before, Kamin also opposed an earlier plan put forward by Mayor Emanuel to add advertising on city property to raise revenue. I noted then that, on the Cityscapes blog, Kamin called the first advertisement placed as part of this initiative—put on a historic bridge—“short-sighted,” “tasteless,” and “clueless.” I also noted, however, that, as shown cleverly in Morgan Spurlock’s The Greatest Movie Ever Sold, it is clear that Americans have an amazing tolerance for advertising.

Perhaps the newly proposed ordinance will be the perfect balance and will spread to other spaces beyond the riverfront? Time will tell.

Help Chicago Zoo Track Animals!

Coccycolius iris -Lincoln Park Zoo, Chicago, Illinois, USA-8aHere’s a bit of city/data news, from CityLab, that you (and I) can actually help with.

The Urban Wildlife Institute at the Lincoln Park Zoo has created an interactive website, Chicago Wildlife Watch, “to help the Institute document and study the animals that live in Chicagoland” by viewing photos taken from cameras around the city and tagging which animals are in them.

As Lex Berko at CityLab explains:

According to the Institute’s director Seth Magle, who spoke to Chicago’sRedEye last week, this work used to fall under the purview of interns. As the Institute ramped up its identification efforts, the onslaught of photos—they currently have more than a million—became too much for their team to handle, so they decided to crowdsource. To date, more than 91,000 animals have been identified through Chicago Wildlife Watch.

I played around with the website, and there seems to be a lot of squirrels, and sometimes nothing, but that just makes it more exciting to find a deer or skunk.

Chicago’s Leadership Role in Suburban America

I just started what is so far an excellent book by Elaine Lewinnek,  an associate professor of American Studies at California State University, Fullerton. The book is called “The Working Man’s Reward,” and I wanted to plug it here. It grabbed me from the introduction, which proclaims that “Chicago’s first product was real estate.” She promises to examine how the dream of homeownership—heavily shaped in many ways by people and events in Chicago—has affected the urban and suburban landscape throughout America.

Lewinnek nicely summarizes some of her ideas at the end of the book’s introduction:

[R]eal estate is a particularly interesting product, offering to produce further profits while providing shelter, class status, community, access to jobs, and investment equity. Real estate decisions can affect health, educational opportunities, physical mobility, and ultimately class mobility. Real estate matters, so much so that riots erupted over it. [See Lewinnek’s blog post about Chicago’s 1919 race riots tied to property values.] As Chicagoans sorted out what a modern city would look like—through land speculation, boosterism, two riots, and many barely conscious, often-constrained choices—they developed a city form that affects the sprawling and often racially divided spaces that all Americans have inherited.

I’m eager to dig into many parts of this book, but one that stands out at the outset is its study of how innovative local initiatives often quickly spread to other municipalities—an idea I’ve written about before. Whet Moser, interviewing Lewinnek for Chicago Magazine, paraphrased her thesis as being about how Chicago “invented” the suburbs. In that interview, she describes how some of the first zoning laws were “fire limits” that came out of the great Chicago fire. The new building rules forbade wooden houses in the city, and that forced workers to live further from their places of work. Usefully, she “reject[s] monocausal explanations” for why the Chicago model spread, arguing that it was a complex combination of different social and political forces at work at the time. She also sees lessons for the future from her study, as summarized in this part of her interview with Moser:

At the end of the book, you argue that learning from this past is a way of preparing for the future. What did you learn in researching the book that you think we should learn from?

The things that people developed on their own—the real struggles to own humble, small houses, were things that they clung to. With the institutionalization of public housing, the small houses were bulldozed and people were put into huge towers that didn’t end up being good places to live. Now we’re going back to public housing that looks more suburban, more dispersed. Part of what working-class Chicagoans invented in the late 19th century and the early 20th century is some of what we might be coming full circle to.

And some of those possibilities, too, of living in diverse spaces; being conscious of the whole range of suburbs. To me those are kind of exciting possibilities.

Lewinnek blogs at Elaine’s Blog.

Local Government as a Threat?

Earlier this month, Franklin Foer argued in The New Republic that “The Greatest Threat to Our Liberty Is Local Governments Run Amok.” It seems that the main purpose of the article is to use Ferguson as a means to challenge the idea of modern libertarian politicians that some matters of governance are best left to local governments. The problem is that the article overlooks a lot.

I want to very briefly call out one of those things: The article’s conflation of state and local governments. As I recently explained in an essay for The Urban Lawyer, states and municipalities maintain drastically different roles in our system of government. Not that these two levels of government can’t work to solve the same problems: ours is a system of polyphony. But it is a mistake to equate the legal authority of the state with that of the city.