The EFF is fighting for the right thing here, but it loses credibility when it mischaracterizes legal procedure to make things look extra-scary.
E.g.
> Often this order is initially drafted by the entertainment companies.
Courts usually require parties making a motion for some relief to submit a proposed order that has the desired effect. It saves time and makes it clear to the court exactly what the party is asking it to do.
The article also uses the phrase "secret order" like a million times. Obviously they're not secret because links are posted right in the article. What they're talking about is a (temporarily) sealed temporary restraining order.
15 USC 1116(d)(8) states: "An order under this subsection, together with the supporting documents, shall be sealed until the person against whom the order is directed has an opportunity to contest such order, except that any person against whom such order is issued shall have access to such order and supporting documents after the seizure has been carried out."
If you read two provisions before that, 15 USC 1116(d)(6), you find why the order is sealed: "The court shall take appropriate action to protect the person against whom an order under this subsection is directed from publicity, by or at the behest of the plaintiff, about such order and any seizure under such order."
The EFF is fighting for the right thing here, but it loses credibility when it mischaracterizes legal procedure to make things look extra-scary.
They've been doing that a lot in recent years, and the more they do it the lower my support gets. They're implicitly lying to their strongest supporters, and there are enough attorneys on the staff that I wonder why this is considered an acceptable way to communicate with the public. Arguments like this would rightly be derided if the other side advanced them in a legal filing, why are they being foisted on the public?
Occasionally I hear people stalking 'the court of public opinion' having different rules from the law courts. Fuck that bullshit, if you'll excuse my language. The EFF is ain a great position to educate people on how the law actually functions and why cases are so intricate and drag on for so long, but they choose not to. It disturbs me.
For the first url, without a querystring, adding one probably shouldn't affect the block.. in the second should adding more query parameters be not blocked? what about changing the ID, should all content be blocked now?
It's a huge technical challenge to block this content in compliance with the law as it stands... let alone to expect companies to proactively block potentially infringing content... even Google doesn't do very well at this and they have far more resources than most.
> Courts usually require parties making a motion for some relief to submit a proposed order..
I don't follow the complaint here. What the article said was correct then, right? And if the EFF feels it's bad that media companies are drafting the orders (setting aside whether they're right nor not), why not mention it?
Because the EFF is misleading readers about how the US legal system works. How is it bad that the media companies are drafting the orders? They are parties to the case. The other side is also drafting orders and then the court picks whichever one has the better legal argument.
Suppose you get in a dispute with someone. You got to court asking that the court order the other person to stop doing something, or to hand over the money they owe you, or do whatever it is you think they should do that made you sue them. The judge will tell your lawyer to draft the order that you (the client) would like the judge to sign. How do you think the defenedant will feel about this if you win the case? 'OMG it was so unfair, the order was actually written by fenomas' lawyer and all the judge did was rubber-stamp it, what has our justice system come to etc. etc. etc.'...unless the dispute goes int eh defendant's favor in which case you'll probably say the same thing about the defendant's lawyer writing the motion that the judge signed off on.
This is the normal operation of our adversarial legal system. the EFF should be using their position to educate people about that and then explaining where they disagree with the merits of the media companies' arguments, instead of pretending that there is some sort of procedural sleight-of-hand going on. After all, when the EFF goes to court the EFF's lawyers submit the motions that they would like the judges to sign, just like in any other dispute.
> instead of pretending that there is some sort of procedural sleight-of-hand going on.
except for the fact that there is sleight of and going on, the MAFFIA get ex parte rulings all the time, this is not "adversarial" this is the court system bending to the will of large corporations.
The MAFFIA believes it alone should be the sole arbitrator of who is allowed and not allowed to post content to the Internet, and the courts have been more than willing to cede this power to them with rubber stamp orders.
A motion for injunction asks the court to make some party do or not do something. Injunction orders have lots of routine but fact-specific details. Anyone filing a motion for injunction will file a proposed order, to save the court the hassle of pulling those details from the motion and typing them into an order, and also to eliminate any "loss in translation" from that process.
Lawyers know that submitting a proposed order is routine (not just for injunctions, but almost any motion), and that the judge will strike or rewrite anything he or she does not agree with. But when you phrase it the way the article does--that the media companies get to write the order (as if everyone else doesn't)--that falsely implies special treatment and influence.
I'd say that's within the realm of classifying it as "secret" or at least underhanded. Unless I'm reading that wrong, it sure reads as "take first, tell second, then let them contest." Pretty crappy.
Most organizations trying to rally support use rhetoric. Take a look at the doublespeak in the average industry "patent pool" extortion organization, and how often they use words like "innovation" and "incentivize" and "protect". Refusing to resort to rhetoric while your opponents have no such qualms is a losing proposition.
I strongly disagree. bullshit sells better in the short term but eventually it poisons your audience. Being truthful and circumspect is a much better foundation for long-term credibility.
I normally don't tend to favor dictionary definitions as a point in an argument, but in this case, I think it's the most relevant answer. Rhetoric is "using language effectively and persuasively". That doesn't in any way imply misleading, though rhetoric can be (and sadly is often) used to mislead. But rhetoric can also be (and should be) used to find the most effective argumentative tactic to promote a valid point.
When speaking to an audience receptive to logical argument, use the most effective possible logical argument and evidence. When speaking to an audience moved primarily by emotion (outrage, pity, righteousness, take your pick), use the most effective possible appeal to those emotions. When you can do both, do both. Find the argumentative tactic that works with your audience and use it.
"I would encourage you to support any proposal that would result in the maximum engagement by the MPAA in Internet governance. Of all the things we do to protect our industry, this one is fundamental. Ron Wheeler put it well when he said if we’re not there we don’t count."
For context, that was one (US) Sony Pictures and Entertainment (which is specifically the US wing of Sony dealing with content production and licensing) executive emailing another in June 2014, as leaked via Wikileaks. IIRC Sony is not one of the larger studios, so if we learn anything it is that this degree of scheming is present even in the tiny cutesy wee little megacorps.
Incidentally, in another of Wikileaks' public interest projects, consider pledging some cash to uncover TPP @ https://wikileaks.org/pledge/
Trademarks are generally restricted to a single domain [1], which would mean that these music companies would only have rights to the Grooveshark mark when used in a music context. If there's a company out there that sells a product for grooving pavement that they call "Grooveshark" and sell it on groovesharkpaving.com then there's no domain overlap, but the court's order still asks CloudFlare to block them.
[1] Business context, not domain name. So "computers", or "food".
You are absolutely correct, however one would need to examine the filing classes to be sure because if any part of the trademark class includes "xyz delivered over the Internet," then they could potentially have a claim to any possible use. However, I would love to start a mountaineering equipment company called GrooveShark and see what would happen when I file a trademark. I could potentially then have ISPs block the so-called 'real' GrooveShark for infringing on my equally valid mark. I could potentially use the case law from the current case as a legal argument to block the other GrooveShark. That might be fun.
k.c seems like a much cooler trademark. you can still take a swing at grooveshark.com, and if you have any money left, you can head over to facebook.com
This is correct in theory but in practice the "specific context" is often ignored when suing or has been overruled. Apple has sued all sorts of companies that are not even in the broad IT domain (e.g. restaurants) for supposed trademark violations.
Legislature is quite different in Germany (Roman Law vs Common Law etc. but AFAIK this clause also exists in German law) but they sued Apfelkind, a mom and pop restaurant business, for example.
Yes, but worth noting that for Paris Convention countries (nearly the whole world) "well-known marks" are afford protection even without registration in the specific geographic area.
> the court said that CloudFlare has to block every user with a domain name that contains “grooveshark,” no matter who owns the site
> What is the legal basis for this?
I wonder about that too. The court is ordering CloudFlare to disrupt the businesses of companies not party to the suit, who have likely not been notified and may have been found to be not infringing if they were in court.
As have Zynga with "With Friends" and Scopely with "With Buddies" and Microsoft with "Windows" or MikeRoweSoft [0]...
You can quickly lose a trademark if you don't actively defend it (weird, considering patents and copyrights) so companies quickly get over zealous.
That said... For reasons that defy explanation, courts have been known to uphold trademark protections for common words ("Windows") even though trademark law explicitly forbids trademarks on common language words and phrases.
>You can quickly lose a trademark if you don't actively defend it (weird, considering patents and copyrights) so companies quickly get over zealous. //
It's oft repeated but not true AFAICT. Genericisation can be a problem, but another company using something as a trademark for a distinct type of good/service won't make your mark more generic. You lose a registered trademark by not paying your renewal fee.
If you wanted to codify someone else's use then you could grant them a license, you don't have to sue them or start infringement proceedings or whatever. You're free to ignore one infringement and pursue another.
This is like saying you have to prosecute every person who steps on your land or you lose the right to prosecute trespassers; if you allow a right of way to be established then yes that's probably not going to help you. But you're allowed to let someone in to your garden and you're allowed not to sue people who make incidental incursions.
Trade mark law does not forbid trade marks on common language words and phrases. It generally prevents people from registering 'descriptive' or 'non-distinctive' words/phrases as trade marks. "Windows" is descriptive for glazing supplies so wouldn't be registrable. "Windows" for software is distinctive and there is no public interest in it remaining free for anyone to use, unlike the case with the glazing example.
The "long and unique" aspect is important. There are many uses of "candy" that are obviously unrelated to Candy Crush, but there are essentially no uses of "GrooveShark" unrelated to GrooveShark.
I don't know why the EFF is praising ICANN for not becoming the Internet's trademark enforcer. Every new gTLD must deal with the Trademark Clearinghouse.
I had no idea there was no concept of "safe harbor" with respect to trademark. The especially bad part here is while copyright seems to benefit small and large players alike (while imposing costs on small and large players), trademark benefits accrue primarily to big players, and costs to small players and individuals.
There is a safe harbor (s.230 Communications Decency Act), however that would protect you in relation to a direct allegation of infringement. Here there is no allegation, rather the record company is bypassing the above section by suggesting Cloudflare are in active participation/concert with the owner of the site.
I think the error in the case is really determining that CF are in active concert with Grooveshark. Like EFF say, it shifts the obligation to determine infringement on to the wrong person. Even the proposed solution (having a record company notify CF regarding infringement) is flawed. CF are still in the position of either a) automatically complying or b) expending resources determining whether it is appropriate to take down, leaving you in a similar position to previously.
Why do you feel copyright benefits small and large players alike? I agree the relative advantages of some forms of IP are greater than others, but the scales seem to be tipped towards large players in most cases.
I highly disagree. My little company, iCouch has a registered trademark. With that protection, we've been able to easily fend off infringement and potential infringement from some rather large players. If, hypothetically, Apple were to attempt to use that name, it would instantly destroy our brand value that we've spent over 5 years building (in the behavioral health tech industry.) a little guy having IP protection prevents and has prevented getting steamrolled by a much better funded company. Without that protection we'd have a huge exposure to our brand being co-opted either intentionally or not by another company. Copyright and trademark protection is especially valuable for the little guy; even more so that someone who could 'win' by simply having a massive marketing budget.
There's an almost visceral opposition to IP protection among some factions on HN; but imagine if every time you start a company, a competitor instantly starts using your name. Imagine if every piece of content you create is instantly cloned by a competitor. You'd never be able to succeed because you'd have no way to differentiate yourself from the other company of the exact same name doing the exact same thing as you using your exact code and selling to your customers using your information. It's kind of like a world with absolutely zero friction.
IANAL, but I know I do know a little bit about this stuff. Don't take this as legal advice.
I'm sorry to say this, but the Apple scenario you've set out isn't always going to be true. There's a thing called "Reverse Confusion" which says effectively (in my non-lawery words):
Why should some tiny wee company stop the well established brand reputation of a larger company? Big company has so much goodwill and reputation under this mark (from overseas or something like that), they should be able to use it.
On the face of it, it doesn't make much sense, but there's case law around it. If you're worried about something like that, definitely talk to a lawyer. Obviously this depends entirely on where you live and your local laws, but this case has come up in New Zealand very recently (I think it might still be being tried) with Uber. The taxi company were still able to use their trade mark, even though someone already had a mark in a vaguely similar domain before Uber were even around.
here's the first link I found on it if you wanted to read up about it more.
The first user [the smaller company] is virtually always the prevailing party in any trademark litigation.
The doctrine of reverse confusion is intended to enable small, senior users to protect their trademark rights against junior users whose marks have gained commercial strength through extensive marketing.
reverse confusion can be a powerful weapon in the arsenal of lesser known companies in terms of protecting their trademark rights and as leverage against larger users.
Sorry, yes you're right. I should've read the link I posted, I just assumed it would be the same as how its treated in New Zealand. Obviously reverse confusion is dealt differently in different parts of the world.
Looks like US treats reverse confusion as if it were simply direct confusion. I'm pretty sure that's not the case where I live.
I didn't mean that it benefits them equally, just that both players can accrue some benefits; vs. trademark which necessarily only applies to entities with a trademark.
The consumer-protection aspect of trademark (preventing deceptive goods) is clearly not what this is about. It is using a thin layer of trademark veneer to force this into an already-rejected legal hole.
Most of the time, GPL code is stolen without the person who wrote it even being aware. And most of the time they become aware of it, there isn't a whole lot they can do to stop it.
I don't understand this. If there were no copyright, people would be able to copy everything they see anywhere and never be forced to disclose their changes like they do with the GPL, which is at least one intention of GPL.
GPL relies on copyright completely, if it didn't exist, I would guess the FSF would come up with some alternative like basing contribution/releases/disclosure/etc around contract law.
The ideal outcome for that point of view is that it would be a direct legal requirement that software is distributed in preferred modifiable form. No licenses or contracts necessary.
I would just add a rule into the loadbalancer config, if the request is coming from the music industry or a government agency redirect them to an empty website. (I am kidding).
If you want to do one better, put up something like "website blocked" as if it were some overzealous corporate firewall deciding that the site was bad.
With any luck, they'll think it's their own fault.
If you're copying logo or using someone else's trademark from a real firewall page, that's a bad idea. But it can't be too hard to create a generic 'block' page that looks similar enough to real ones without using anyone else's images or logos to be convincing.
This case is another example that secret court orders have no place in a democracy. This practice has to stop before it becomes even more widespread in the USA, the UK and other European countries.
E.g.
> Often this order is initially drafted by the entertainment companies.
Courts usually require parties making a motion for some relief to submit a proposed order that has the desired effect. It saves time and makes it clear to the court exactly what the party is asking it to do.
The article also uses the phrase "secret order" like a million times. Obviously they're not secret because links are posted right in the article. What they're talking about is a (temporarily) sealed temporary restraining order.
15 USC 1116(d)(8) states: "An order under this subsection, together with the supporting documents, shall be sealed until the person against whom the order is directed has an opportunity to contest such order, except that any person against whom such order is issued shall have access to such order and supporting documents after the seizure has been carried out."
If you read two provisions before that, 15 USC 1116(d)(6), you find why the order is sealed: "The court shall take appropriate action to protect the person against whom an order under this subsection is directed from publicity, by or at the behest of the plaintiff, about such order and any seizure under such order."