Administration Finally Releasing Some Info On Telco Immunity Lobbying

from the quite-a-fight dept

After many attempts to block or delay the release of info on who lobbied the federal government last year for telco immunity in lawsuits involving the fed's warrantless wiretapping program, the government has finally agreed to hand over some of the information requested. Of course, since the administration had already won a longer delay, and only some of the info is being revealed, I'm guessing that there isn't much surprising in what's being released -- though it makes you wonder why the administration went to such lengths to hide it.

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Does The White House Have Any Legal Right To Demand No Modifications To Its Photos?

from the doesn't-appear-that-way dept

You may recall earlier this year that there was a fair bit of controversy when the White House started putting photos up on Flickr. Or, rather, there was controversy over the licensing. Everyone thought it was great that the White House would have its own Flickr channel and constantly post photos -- but since Flickr only had certain licensing options that you could put on a photo, there was a problem. Even though the White House chose a Creative Commons Attribution license at the time, that was still too much. Government documents are not covered by copyright, and the photos clearly should be public domain. After a bit of back-and-forth, Flickr created a special public domain license so the White House could properly designate the photos.

And yet... it appears that the White House is now trying to claw back some rights over these photos that it just doesn't have. Tim Lee points out that along with these officials photos is a licensing claim that goes well beyond the public domain, stating:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

The problem is the White House has no right to say that you can't manipulate the photo, since the photo is public domain. It's really unfortunate that, once again, we're seeing how little people seem to understand (or value) the public domain.

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Obama Administration Uses 'State Secrets' Clause To Try To Block All Warrantless Wiretapping Cases

from the transparency-is-dead dept

Despite new rules from the Obama administration that are supposed to reduce the use of "state secrets" claims to avoid revealing certain information, the first use of such a claim out of the administration since change the rules is to (once again) try to stop lawsuits involving warrantless wiretapping efforts by the federal government that began under the Bush administration. Again, this is disappointing. It remains difficult for me to see how anyone can justify a warrantless wiretapping program. I have no problem with a wiretapping program that has judicial oversight, but how can anyone defend a system that had no oversight at all?

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Flickr Obama/Joker Takedown Story Gets... Odd

from the so-what-happened? dept

We were a bit confused over the claim recently that Flickr (Yahoo) had taken down a Photoshopped image of Obama as "the Joker" superimposed on a Time Magazine cover. It didn't make much sense, because it wasn't clear who's copyright was even at issue. It didn't seem likely that Time Magazine would have any claim, even though that's what many assumed. So, some folks started asking around -- and all of the "obvious" candidates said no. Time Magazine, DC Comics and the original photographer who took the image on which the photo was based all insisted they didn't send the takedown. That resulted in some fingerpointing at Flickr, but some more digging by Thomas Hawk turned up a guy named Edward Przydzial (though Yahoo's takedown notification called him Przydzia, which resulted in even more confusion initially. But, no one seems to know who he is and what copyright he might hold in the matter, making the whole story quite bizarre. Hawk contacted Przydzial, who responded claiming that he created the image... but also that he doesn't own the image, and refused to say whether or not he filed the DMCA notice (and some bizarre stuff about needing a court order to find out who filed the DMCA notice). Once again, this highlights some of the inanities of the whole DMCA takedown process.

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Did Flickr Takedown Obama Joker Time Cover Over Copyright Infringement?

from the what-was-copied? dept

A bunch of folks have been sending in this story about Flickr supposedly taking down the "Obama Joker" Time Magazine cover that's been in the news lately, but I have to admit that I'm confused about the reasoning behind the takedown. There are questions of whether it's just "censorship," but I'm trying to figure out what's the actual copyright claim. The suggestion is that the concern is from Time Magazine, which doesn't like its brand associated with the falsified cover -- but wouldn't that be a trademark issue, rather than a copyright one? If there's any copyright issue at all, it would potentially (and then, weakly) be from whoever owns the rights to the original photo that was changed. But seeing as there's still an ongoing battle in the Shepard Fairey case to determine if that sort of thing is fair use and I haven't seen anyone identify the original Obama photo that was used here, it's not even clear who would be crying copyright infringement. So... where exactly is the copyright infringement here?

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Yet Another Question Of Fair Use With A Picture Of Obama

from the just-can't-get-away-from-it dept

We all know about the ongoing legal fight over Shepard Fairey's iconic Obama poster, but it looks like there may be another potential battle over a different photo. After the election last year, Time Magazine published a bunch of photos of Obama in college, taken by a fellow student Lisa Jack, that had never been seen outside of a small group of people. One of the photos, showed Obama smoking a cigarette. It's probably not a huge surprise that a marijuana legalization group, NORML, has modified the image to create a poster. You can see the two juxtaposed here:

Not surprisingly, Jack is not at all happy about the use of the photo, leading to yet another set of questions about fair use:

"They do not have my permission," said Jack, a psychology professor in Minnesota. These photos "are absolutely not to be used in this way. ... I really made a grand effort to do this properly, and I'm very irritated. If I'd wanted these to be used for political purposes, I'd have sold them to Hillary years ago."

Now, of course you can appreciate her feelings on this, in that she doesn't want her photo used this way, but that doesn't necessarily mean it's not legal. And, even though it's buried at the end of the article, Jack later admits that "it's really cool" that her image is considered "iconic" enough to use in that manner. The real question is whether or not Jack will actually do anything about this. Copyright law is not designed to be used to stifle speech (especially political speech), but we could soon see yet another fair use battle over a famous Obama image.

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New White House Initiatives Take A Big Step Towards Participatory Gov't

from the good-news dept

I'll admit that I was pretty hard on the new Obama administration when, early on there were news articles playing up how the administration was using its large social network of connections for "participatory gov't," but the details suggested they were really just using the people to sell policies, not give actual input on policies. While it was still early, there was enough talk about how sending out emails to people on a mailing list and begging them to talk up the new budget was somehow "participatory gov't," to make me worried that that was as far as the new administration would go. Thankfully, that's not the case. While it still remains to be seen how far this will go in actually creating and driving policy, the White House has rolled out some new efforts on the web that really do appear to be trying to enable more participation and transparency. While I don't see it yet, the Whitehouse.gov site will apparently "become a repository for citizen suggestions and discussion regarding new open-government policies." And, more importantly, Data.gov has launched, and the administration is working to get various gov't agencies to open up as much data as possible. These are both big steps forward. There's always more that can be done, but it's good to see that sending out emails to supporters wasn't what the administration was really thinking about when it promised "participatory" government.

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Administration Lobbyist Ban Not Doing What It's Supposed To Do

from the too-bad dept

While conceptually, I think many people appreciate President Obama's stance against bringing lobbyists into his administration, in all practicality, the rule has been a combination of meaningless or troubling. Tom Barger points to a NY Times article where many people are upset that some extremely qualified folks who worked for non-profit human rights organizations are being denied positions in the administration. There's been some pushing to get the administration to make an exception for human rights and non-profit lobbyists, noting that the intent of the rule was to bar corporate lobbyists from gaining too much influence, but the administration has struck down those suggestions, saying it leads to a slippery slope.

But, of course, in reality, we know that slippery slope already exists. That's because the ban on "lobbyists" is really only being used for folks who were officially registered as lobbyists. That leaves out tons of people who worked for these corporate entities or even for the lobbyist groups themselves, but weren't officially registered lobbyists themselves. We've already seen how the Justice Department is, for example, being filled with lawyers who regularly worked with the RIAA, MPAA and BSA -- three of the biggest copyright lobbying organizations, and those individuals have wasted no time in expressing their desire to continue pushing those industry's viewpoints in their new positions.

So the idea that lobbyists are being kept out is pretty silly. As the NY Times article notes, all this really does is encourage lobbyists not to register themselves as lobbyists, but to focus on lobbying unofficially, so that they can still get administration positions at a later date. That creates less openness and transparency, and a larger risk of regulatory capture, rather than a diminished one. We all like the idea of trying to keep corporate influence out of the law making (and law enforcement) side of government, but a blanket ban on all lobbyists, while letting non-lobbyist lobbyists in the back door isn't exactly reassuring.

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EFF: Obama DOJ's Warrantless Wiretapping Arguments Are Worse Than Bush's

from the wow dept

On the issue of warrantless wiretapping, we've never been given a clear explanation by anyone why it makes sense to allow the government to totally skip over the warrant process. The warrant process is there for a clear reason: to prevent abusive power by the government. No one is saying that the government can't issue wiretaps. They just want the gov't to get it reviewed and approved by a court. And, there isn't even an issue of urgency, since the government has the right, in extreme cases, to wiretap first, and get the warrant soon after. Many people hoped that with the Obama administration, things would change, and we'd finally move away from the warrantless wiretapping program, which by any basic definition, violates the 4th Amendment.

Apparently not. The EFF has an analysis of the new Justice Department in trying to get one of the warrantless wiretapping cases dismissed, noting that the new administration appears to be taking an even more extreme position than the previous administration (which was already quite extreme). Basically, the motion to dismiss claims that the government "is completely immune from litigation for illegal spying -- that the Government can never be sued for surveillance that violates federal privacy statutes." It's difficult to see how anyone could square that with the 4th Amendment, and hopefully the court will suggest the Administration's top lawyers reread the Constitution.

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Consumer Interest Groups Ask Obama To Stop Appointing RIAA Lawyers

from the good-luck... dept

With the Obama administration appointing a whole bunch of copyright maximalists to various positions (despite an early indication that perhaps he recognized issues with copyright law), a bunch of public interest and consumer interest groups have gotten together to write a letter to Obama, asking him to recognize that he seems to be filling every open slot with a very heavily biased viewpoint which could do significant harm towards innovation. Some of the letter may be inspired by the rumored candidates for the IP Czar position -- all of whom also fall into the copyright maximalist camp. Though, the fact that it's taken Obama so long to appoint this position (upsetting the Senators who wrote the law requiring the position in the first place) suggests (at the very least) he isn't considering this to be a priority.

Still, the EFF also took the opportunity to point out that it seems likely that Obama violated copyright himself, in giving a gift of an iPod filled with music to the Queen of England. It's almost impossible to know whether or not copyright was violated, but that's exactly the problem. Of course, this is likely to be of little concern to the President -- which is itself another problem. Too many people, who have little familiarity with copyright law, simply assume that "copyright is good" and that "more copyright is better," leading to the false belief that those who have a history twisting copyright to their own advantage are the best positioned to speak on copyright policy. That's regulatory capture at its finest -- something the Obama administration had claimed it was trying to avoid. Obviously, there are more important things for Obama to be focused on, but relying so heavily on copyright maximalists who have benefited from distorting the purpose of copyright is quite troubling.

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White House Opens Up For Questions About The Economy

from the but-what-about-answers? dept

I've been a bit critical for the Obama administration's lack of transparency and inclusion on certain issues -- or rather, their claims of being "transparent" and "inclusive" by simply asking their mailing list to "sell" the packages put together in backrooms. I was hoping for a much more participatory process whereby citizens actually could take part a bit earlier in the process. So, it's good to see a step in the right direction, as the White House has announced its Open For Questions initiatives (thanks to everyone who sent this in). The site lets people ask questions of the president, and lets people see and vote on each other's questions. The President will then answer a few of the "top" questions.

This is definitely a nice thing to add, but I'm hopeful that it ends up going further. At this point, it seems like nothing much more than a glorified suggestion/Q&A box. Rather than involving the community to tackle the questions raised, it simply gives them to the President to answer back. Real participation is about allowing the community to help out -- not just pass big questions up to the top. Obviously, it's still quite early in the administration, so hopefully we'll see more participatory tools on the way as well. This is definitely a good step -- and I don't mean to take away from it. But, I'm going to keep pushing for further participation and further transparency because I think it could be quite powerful and transformative.

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President Obama Still Missing The Point: Include The Public In The Process, Not Just The Selling

from the the-difference-between-transparency-and-outreach dept

The new Obama administration was supposed to represent a revolution in participation and transparency -- and while there have been some moves in that direction, there's plenty that's troubling, such as its recent decision to declare negotiations on an intellectual property treaty a state secret. However, more troubling is this fundamental disconnect between what the administration seems to think "participation" in the process means -- and what it really should mean. Rather than actually having people participate, it seems the administration is a lot more focused on having people sell.

That's not the same.

We saw it in the stimulus plan -- which was written by the same political insiders, and then the various email lists and social network connections were used to try to get the public to support the bill -- and now we're seeing the same thing with the budget. Apparently, the DNC is putting on a big push to use the 13-million emails collected during the campaign to help urge passage of Obama's budget, with David Plouffe claiming this is "the first major engagement" of that public list in the legislative process.

But that's the problem. This is a bit late to be engaging everyone. The budget's already been written. Shouldn't participation included more openness earlier in the process and more of a real way to participate to get these people to actually buy into a budget that they had input on? But that's not what we're getting. We're getting the same stuff, handed down from on high by the same political operatives, and being told that the people's "participation" is to help this budget get passed.

I would imagine people would be a lot more excited about doing that if they'd actually been asked to help out in the process. I'm glad that the administration is trying to reach out to people more, but so far it's doing so in a very fake way. It's not getting people to really participate in the process at all. It's just looking at them as a way to help sell. That's not the same.

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Appeals Court Allows 'Classified, But Leaked' Evidence To Be Used In Warrantless Wiretap Case

from the good-news-for-justice dept

We've covered the ridiculous hoops the gov't made people go through to prove that a document that the gov't itself leaked could be used in a trial to prove that the gov't was wiretapping people without warrants. Despite all the hurdles, a court ruled that the document could, in fact, be used. Some had hoped that, after the Obama administration took over, it would stop trying to kill this particular case, but that didn't happen. In fact, the Obama administration made the same claims as before, and continued to appeal the ruling. However, an appeals court has shot the administration down and allowed the document to be used. The government, of course, will likely appeal.

The whole situation still seems ridiculous. In business, if a confidential document is made public, and many people have seen it, it's no longer considered confidential. Yet, here, even though many, many people have seen the document outlining the warrantless wiretapping, the gov't still wants to pretend that it's totally secret -- in part, because it doesn't want its warrantless wiretapping program tested in court. This case is very important from a civil liberties perspective, because previous attempts to get a court to weigh in on such warrantless wiretaps failed -- due to the fact that, without specific evidence that one of the parties filing the lawsuit was actually wiretapped without a warrant, they had no standing to sue.

Every time we write about this case, we get angry comments from people claiming that we should shut up and this case should go away because the gov't needs to protect us from terrorists. I have no doubt that the gov't does, in fact, need to do quite a lot of work every single day to help protect us from those who want to kill Americans. But, there is a legal process for that, and it involves getting warrants if you want to wiretap someone. The process of getting a warrant is not hard. In fact, if you need a wiretap in a rush and can't wait for the warrant, you can go ahead with the wiretap and then go back afterwards to get the warrant. This is an important check on the ability of the gov't to spy on its citizens, and it makes sure the process is not abused (as it has been in the past). It's difficult to see how anyone who actually believes in the right to a free society could support a gov't's ability to spy on folks without any check on that power. Hopefully this case does move forward, and the rule of law is upheld where it concerns getting a warrant before wiretapping someone within this country.

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New Antitrust Boss Has Already Expressed Concerns About Google

from the so-much-for-eric-schmidt's-relationship... dept

There have been some folks in the press who have repeatedly pointed out Google CEO Eric Schmidt's close relationship with President Obama to suggest that Google should be "protected" from government regulation. However, there's little to suggest that's necessarily the case. Plenty of folks who feel strongly anti-Google have close relationships with the administration as well. And, as Bloomberg notes, Obama's nominee for antitrust chief, Christine Varney, has recently described Google as a likely antitrust problem, noting the company "has acquired a monopoly in Internet online advertising." Of course, that's wrong on many levels (it doesn't have anything close to a monopoly in online ads), but this should at least serve as evidence that reports of Google's "control" over the administration isn't nearly as strong as some have been suggesting.

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Shouldn't Government Transparency Be Included In The Legislative Process... Not Just The Aftermath?

from the unfortunate-and-worrisome dept

As was widely expected, President Obama signed the stimulus bill into law yesterday. And, with it, the administration has set up Recovery.gov in an effort to be transparent. That's leading to some reasonable confusion because the bill actually called for an independent Recovery Accountability and Transparency Board to create a website for transparency. Recovery.gov is not at all independent and is maintained by the White House.

But, I think there's a more important issue to be discussed here: which is that this is transparency after the fact. If the administration were serious about transparency in this process why wasn't their transparency and openness during the process? The success of the Obama campaign was, in part, because it included people in the process, and let them help define where things went. There was no evidence (at all) of that happening in this case. Instead, nearly a trillion dollars of debt was allocated through backroom dealing all done by long-term politicians, with no input from outsiders. Then, we the people were given almost no time to actually look at or review the content.

That's not transparency. That's not participation.

To then tell us after the fact that you've set up a website to hear from people and be transparent seems way too little and way too late. It's not about providing the data after the decisions have been made. It's about letting people at least share their thoughts before such decisions have been made.

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Will The RIAA's New Friends In Justice Get Involved Over Constitutionality Of RIAA Damage Awards?

from the we're-about-to-find-out dept

In one of the many cases out there challenging the constitutionality of statutory fines for copyright infringement, there's some indication that the Justice Department is considering intervening on the side of the record labels to defend fines that range from $750 to $150,000 for sharing a single song that can be purchased for $1. There are numerous arguments (both legal and common sense) for why the punishment here goes way beyond the crime. But, with the Justice Department hiring a bunch of the entertainment industry's favorite lawyers into high level positions, this seems like a pretty clear conflict of interest. Many people are now suggesting contacting the administration and requesting that it not intervene in the case given the conflicts of interest.

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RIAA's Favorite Lawyer Tells Senate Committee He Hopes DOJ Can Focus More On IP

from the here-it-comes dept

We've been talking about how the various favorite lawyers of the big content lobbying organizations all seem to be ending up in the Justice Department. Some have pointed out that these lawyers will most likely be focused on other DOJ business, since IP issues aren't a major issue within Justice. They also point out that folks in the Justice Department have very little impact on policy. That may be true... but at the hearings to confirm Tom Perrelli as associate attorney general, he did talk quite a bit about IP issues, saying that he hopes the Justice Department will bring renewed focus on the issue, while noting that existing US intellectual property laws "don't seem to be addressing the problem." As a starting point, that's not a great sign, especially since he focuses on the supposed "problem" when it's not even clear that there is a problem. He claims it's "counterfeiting" and "piracy" but we've already seen that piracy isn't a problem -- smart business models address that. And, as for counterfeiting, both the OECD and the GAO have made it clear that any "problem" has been massively exaggerated by industry lobbyists -- such as those Perrelli used to work for.

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Why The Stimulus Story Isn't Resonating: No Transparency, No Participation

from the politics-as-usual dept

There's a pretty widespread belief that President Obama hasn't done a particularly good job convincing people of the need for the "stimulus" plan he's pushing. This is definitely seen in the incredibly lukewarm reaction to Obama's calls for nationwide house-parties to try to drum up support for the stimulus plan. Such meetups and house-parties worked during the election, because people believed in Obama the candidate -- but the evidence so far is that they don't believe in the stimulus plan. At all.

There are some interesting theories as to why that might be. My favorite economics reporter, David Warsh, has proposed an interesting (and somewhat compelling) theory: which is that most of the economists in Obama's inner circle believe in an economic theory of boom/bust cycles that the rest of the country doesn't believe in. Specifically, the new Keynsians don't put much weight in the "hangover theory," which is what Paul Krugman nicknamed the Austrian theory of business cycles, greatly simplified into:

In the beginning, an investment boom gets out of hand. Maybe excessive money creation or reckless bank lending drives it, maybe it is simply a matter of irrational exuberance on the part of entrepreneurs. Whatever the reason, all that investment leads to the creation of too much capacity -- of factories that cannot find markets, of office buildings that cannot find tenants. Since construction projects take time to complete, however, the boom can proceed for a while before its unsoundness becomes apparent. Eventually, however, reality strikes--investors go bust and investment spending collapses. The result is a slump whose depth is in proportion to the previous excesses. Moreover, that slump is part of the necessary healing process: The excess capacity gets worked off, prices and wages fall from their excessive boom levels, and only then is the economy ready to recover.

Now, Krugman then goes on to suggest why this theory is wrong, but Warsh and I both have trouble with his explanation. It's not very convincing (though, I'll be the first to admit that I'm pretty sympathetic to the arguments from the "Austrian school" of economics). I could go through why I think our most recent Nobel Prize winning economist is wrong, but this post is already getting pretty long (short answer: he ignores how certain parts of the economy are interconnected, and incorrectly brushes off the time that it takes to understand where new investment opportunities lie). In fact, as Warsh points out, the "hangover theory" makes an awful lot of intuitive sense to most people. But the problem is that the stimulus plan doesn't seem to be responding to the hangover effect. Instead, it's very much focused on what Krugman and the "new Keynesian" economists believe the real problem to be (everyone wants cash). Thus, the stimulus idea is get cash into the economy, pronto. But for everyone who believes in the "hangover theory" this sounds just awful. It just prolongs the problem by dumping cash into a system that's still adjusting, and simply fuels the next boom (and, eventual bust).

I think Warsh is definitely correct on the gut reactions many people are having to the stimulus package -- which is that it doesn't seem to be addressing the real problem at all, and seems ripe for abuse. I don't deny that getting more money into the system will stimulate something -- I'm just afraid of what.

However, I think there's also a second reason why the country remains incredibly apprehensive towards the stimulus package. That's because for all the talk about how this was a new era of transparency and how Obama was going to use the same participatory tools that help got him elected to govern, this stimulus package didn't do that at all. Instead, it was done in the same old way. The details were all worked out in the backrooms by the same beltway insiders, and then presented to the public as something to take or leave -- or maybe argue about at the margins. We were never invited to participate in the process at all. We weren't really given a chance to weigh in with our thoughts.

And, thus, we feel that this is politics as usual -- something many people were hoping would go away for a while -- on one of the biggest, most important efforts to deal with a huge economic mess. The best the administration could do was ask everyone to help support the plan he handed down -- rather than having everyone help him build the plan. That was a huge mistake, and it's reflected in how the plan has been presented and how it's been debated.

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Justice Department Increasingly Looking Like The RIAA/MPAA's Legal Team

from the change-the-riaa-can-believe-in dept

It seems that the Obama administration is basically hiring the entire RIAA/MPAA/BSA legal team these days. It started off with the RIAA's favorite lawyer, then it hired the BSA's antipiracy enforcer, and now it's brought on two more of the entertainment industry's favorite lawyers, including Don Verrilli, who was one of the main guys arguing the entertainment industry's side in the infamous (and terribly decided) Grokster case. He also was the guy who argued the RIAA's case that the Jammie Thomas verdict shouldn't be thrown out (on that one, he lost, thankfully). Of course, if you're thinking things would have been any better had McCain won, just note that one of his legal advisors is gleefully cheering on these appointments. Still, as Ray Beckerman notes, Obama's own rules should preclude these guys working on issues related to those they used to represent. We'll see if that actually happens, though.

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AP Demands Money For Iconic Obama Poster Image

from the asking-for-a-fight dept

Just last week, we wrote about the question of whether or not the iconic image used on Obama posters that was created by street artist Shepard Fairey was copyright infringement. For a while, no one (including Fairey) could figure out what photo was the basis for the image. But a photojournalist tracked it down, and discovered it was by a photojournalist named Mannie Garcia, who was doing work for the Associated Press at the time. Garcia didn't mind at all, but as we noted in our post, the AP might take a different view on things, since it's so aggressive with copyright. However, even we thought the AP wouldn't be so stupid as to actually demand payment for the use of the image... but we were wrong.

Yes, the Associated Press is now claiming that the use of its image is copyright infringement and is demanding payment. Of course, it's probably worth pointing out that, until a week and a half ago, the AP had no idea that the poster was made using one of its images. If that's not a transformative (i.e., allowed) use of the image, it's difficult to say what is. Given the posturing on both sides, it doesn't look like Fairey (who's smartly being represented by Stanford's Fair Use Project) is going to back down. Hopefully, the Associated Press is finally taught what fair use means. It could use the education.

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