On September 10, the House Judiciary Committee reported the Manager’s Amendment to the Small-Claims Enforcement (CASE) Act (H.R. 2426) favorably out of the Committee by a voice vote. In a press release issued following the markup, Rep. Hakeem Jeffries (D-NY) called the establishment of a Copyright Claims Board “critical for the creative middle class.” He stated that the CASE Act “will enable creators to enforce copyright protected content in a fair, timely and affordable manner,” and called the legislation a “strong step in the right direction.” Ranking Member Doug Collins (R-GA) said that the CASE Act is “common sense legislation” that would provide small creators with affordable legal resources to combat copyright theft and lauded the leadership of Rep. Jeffries in drafting this bill and achieving bipartisan support for it.

I enjoyed the running joke of Jarndyce v. Jarndyce in the great Dickens novel Bleak House, back when I first read it.

Little did I know that one day I and the magazine that I love would effectively be caught up in a version of that interminable case, courtesy of a litigious climate scientist with zero regard for the First Amendment. //

Jarndyce v. Jarndyce was a lawsuit over an inheritance that ran on for generations, eventually accumulating so many legal fees that it wiped out the estate in question, making all the litigation pointless. //

This is a little like Mann v. National Review, which has droned on for seven years with little or no action, except the litigation emphatically has a point. Michael Mann is the climate scientist famous for his “hockey stick” graph of climate change over the ages, whose purpose in suing us is clear enough — to bleed us of time and, most importantly, resources, in order to punish us for having the temerity to harshly criticize his work.

Users of older versions of Adobe Creative Cloud apps including Photoshop have been told to stop using them or face potential "infringement claims" from third-party companies who are unnamed but suspected to be Dolby. Adobe cites only "ongoing litigation" as the reason for the abrupt announcement. //

While Adobe has not said who the dispute is with, the company is presently being sued by Dolby. Through a legal complaint filed in March 2019 with the US District Court and the Northern District of California, Dolby is seeking a jury trial over issues of "copyright infringement and breach of contract" against Adobe.

Prior to the creation of the Creative Cloud subscription service, Adobe licensed certain technologies from Dolby with an agreement based on how many discs of certain apps were sold. Now that the software is distributed online, the companies reportedly renegotiated their agreement to be based on how many users are actually running the software.

According to Dolby's legal filing, this agreement was subject to the figures Adobe reported being examined by a third-party audit. "When Dolby sought to exercise its right to audit Adobe's books and records to ensure proper reporting and payment, Adobe refused to engage in even basic auditing and information sharing practices; practices that Adobe itself had demanded of its own licensees," says the filing."Adobe apparently determined that it was better to spend years withholding this information from Dolby than to allow Dolby to understand the full scope of Adobe's contractual breaches," it continues. "Yet the limited information that Dolby has reviewed to-date demonstrates that Adobe included Dolby technologies in numerous Adobe software products and collections of products, but refused to report each sale or pay the agreed-upon royalties owed to Dolby."

Adobe this week began sending some users of its Lightroom Classic, Photoshop, Premiere, Animate, and Media Director programs a letter warning them that they were no longer legally authorized to use the software they may have thought they owned.

“We have recently discontinued certain older versions of Creative Cloud applications and and a result, under the terms of our agreement, you are no longer licensed to use them,” Adobe said in the email. “Please be aware that should you continue to use the discontinued version(s), you may be at risk of potential claims of infringement by third parties.”

Users were less than enthusiastic about the sudden restrictions. //

...consumers now live in a world in which consumers almost never actually own anything that contains software. In this new reality, end users are forced to agree to “take it or leave it” end user license agreements (EULAs), in which the licensor can change its terms of service without notice.

“Even if Adobe is fully in the right here with regard to the Dolby dispute, it has the power to force its customers to upgrade to newer more expensive versions at its whim, which illustrates the undue power and influence of EULAs over the lives of consumers,” Gilbert said. “We should be able to own the things we buy.”Activist, author, and copyright expert Cory Doctorow agreed, telling Motherboard in an email that this kind of thinking has increasingly permeated countless sectors, including DRM-based media, software as a service, and even client-server games.

Both Doctorow and Gilbert noted that this kind of shifting landscape can often be particularly problematic for artists and creators, who often don’t want to risk ongoing projects by suddenly jumping to new versions of software that may contain unforeseen bugs. “When your tools are designed to treat you as a mere tenant, rather than an owner, you're subject to the whims, machinations, and unforeseeable risks of the landlord from whom you rent,” Doctorow noted. “And your legal rights are likely defined by a ‘contract’ that you clicked through a million years ago, which says that you agree that you don't have any legal rights.”

It’s a comical, lopsided arrangement that copyright experts say isn’t changing anytime soon, leaving consumers with only one real option: when possible, don’t buy products from companies with a history of pulling the carpet out from beneath your feet.

The DC court giveth what it taketh away. //

While the court did uphold most of the FCC’s decision, it rejected the agency’s right to strip US states’ of their power to regulate net neutrality as they see fit. That may make all the difference.

There is a major struggle going on right now over the fate of religious freedom in this country. It is safe to say that the left is actively hostile to religion once it leaves the doors of the church (many are hostile even before then but I’ll give the entire mob of them the benefit of the doubt) and they have adopted FDR’s obscene Freedom of Worship... //

This is the kind of whistling past the graveyard that drives me nuts. This decision was not a victory for religious liberty, rather it simply ratified a roadmap for zealous anti-Christians to stamp out religious liberty. A better ruling would have hammered home that an organization cannot be forced from the public square because of its beliefs. What this ruling did was put the bigots on notice that they have to find other reasons, that they have to keep their meetings private with no minutes taken, that they can’t actively appeal to anti-religious bias.

In short, rulings like this simply point people like Nessel to how white politicians in the South after Brown vs. Board of Education worked to keep black Americans from voting, from holding jobs in certain professions, and to keep schools segregated despite the Supreme Court rulings. We’re not done here. Not by a long damned shot. We’ll have to fight this battle again and again and eventually we’ll face people who aren’t idiots and judge who isn’t sympathetic.

North Carolina is taking stock of its burdensome criminal code. The federal code needs revision, too. //

In the case of the federal government, experts estimate that there are more than 300,000 regulatory offenses carrying potential criminal penalties. Americans have been sent to prison for breaking laws they didn’t even know existed and which did not involve inherently blameworthy conduct.

Taking note of this problem, North Carolina passed a law in 2018 that required state and local agencies to report to the legislature all of their rules that carried criminal penalties. Many agencies failed to comply, and so, last month, the state enacted SB 584.

Section 3 of the law sets a new compliance deadline, and Section 5 adds a penalty for noncompliance: Any agency that fails to report to the legislature in a timely manner loses its power to enforce new criminal rules for two years.

Additionally, Section 6 automatically refers all new criminal regulations proposed by state agencies to the legislature’s General Statutes Commission, which will then review them and make recommendations to the general session whether any of the regulations should have their criminal penalties removed.

Unintended consequences happen so often that economists call them “Cobra Problems,” after a famous historic example. In colonial India, Delhi suffered a proliferation of cobras. To cut the number of cobras, the local government placed a bounty on them. Can you guess what happened?

Chris Derose's 'Star Spangled Scandal' vividly recounts how the murder of Francis Scott Key's son left a lasting legal legacy. //

Chris Derose's new book, 'Star Spangled Scandal: Sex, Murder, and the Trial that Changed America,' vividly recounts how the murder of Francis Scott Key's son was one of the 19th century's most sensational murder trials and left a lasting legal legacy. This was hardly the first major violent confrontation between two major public figures. Most notably, just three years earlier, pro-slavery Rep. Preston Brooks beat abolitionist Sen. Charles Sumner over the head with his cane on the Senate floor in retribution for the latter’s “Crimes Against Kansas” speech in which he supposedly libeled Brooks’ uncle.Brooks probably would have killed Sumner had his cane not broken. Sectional disputes over slavery routinely ended in violence, and it became commonplace for members of Congress to carry firearms and knives into the capitol.But even in this age of political firestorm, what transpired between Daniel Sickles and Philip Barton Key was distinctly personal. As Chris DeRose chronicles in his new and exciting book, Star Spangled Scandal: Sex, Murder, and the Trial that Changed America, the conflict between the two men was a tale as old as time. Weaving together the threads of their stimulating (and tragically intersecting) lives, DeRose inventively treats this narrative of adultery and murder as a kind of real-life play.

Rebecca Wexler has an interesting op-ed about an inadvertent harm that privacy laws can cause: while law enforcement can often access third-party data to aid in prosecution, the accused don't have the same level of access to aid in their defense:

The proposed privacy laws would make this situation worse. Lawmakers may not have set out to make the criminal process even more unfair, but the unjust result is not surprising. When lawmakers propose privacy bills to protect sensitive information, law enforcement agencies lobby for exceptions so they can continue to access the information. Few lobby for the accused to have similar rights. Just as the privacy interests of poor, minority and heavily policed communities are often ignored in the lawmaking process, so too are the interests of criminal defendants, many from those same communities.

In criminal cases, both the prosecution and the accused have a right to subpoena evidence so that juries can hear both sides of the case. The new privacy bills need to ensure that law enforcement and defense investigators operate under the same rules when they subpoena digital data. If lawmakers believe otherwise, they should have to explain and justify that view.

For more detail, see her paper.

Thinkst recently published a thought piece on the theme of 'A Geneva Convention, for software.'[1] Haroon correctly anticipated that I'd be a wee bit crunchy about this particular 'X for Y' anti-pattern, Microsoft President and Chief Legal Officer Brad Smith published early in 2017 on 'The need for a digital Geneva Convention,' and again in late October //

Nation-state hacking is not a mass casualty event

The Fourth Geneva Convention (GCIV) was drafted in response to the deadliest single conflict in human history. Casualty statistics for the Second World War are difficult, but regardless of where in the range of 60-80 million dead a given method of calculation falls, the fact remains that the vast majority of fatalities occurred among civilians and non-combatants. The Articles of GCIV, adopted in 1949, respond directly to these deaths as well as other atrocities and deprivations endured by persons then unprotected by international law. //

But WannaCry was not Solferino; Nyetya was not the Rape of Nanjing.

Microsoft's position is, in effect, that nation-state hacking activities constitute an equivalent threat to civilian populations as the mass casualty events of actual armed conflict, and require commensurate regulation under international law. 'Civilian' is taken simply to mean 'non-government.' The point here is that governments doing government things cost private companies money; this is, according to Smith, unacceptable. Smith isn't wrong that this nation-state stuff impacts private companies, but what he asks for is binding protection under international law against injuries to his bottom line. I find this type of magical thinking particularly irksome, because it is underpinned by the belief that a corporate entity can be apatride and sovereign all at once. Inconveniently for Microsoft, there is no consensus in the customary law of states on which to build the international legal regime of their dreams. //

In late September of 1998, the Permanent Representative to the UN for the Russian Federation, Sergei Lavrov, transmitted a letter from his Minister of Foreign Affairs to the Secretary-General.The Russian document voices many anxieties about global governance and security related to ICT which today issue from the US and the EU. //

Whether or not the Russian ask in the autumn of 1998 was sincere is subject to debate, but it was unquestionably ambitious. UN A/C.1/53/3 remains one of my favourite artefacts of Russia's wild ‘90s and really has to be read to be believed.
So what happened? The US did their level best to water down the Russian draft resolution. In the late 1990s the US enjoyed unassailable technological overmatch in the digital domain, and there was no reason to yield any measure of sovereignty over their activities in that space at the request of a junior partner (i.e. Russia). Or so the magical thinking went. The resolution ultimately adopted (unanimously, without a vote) by the UN General Assembly in December 1998 was virtually devoid of substance. Ironically, the US and like-minded states have now spent about a decade trying to claw their way back to a set of principles not unlike those laid out in the original draft resolution transmitted by Lavrov. Sincere or not, the Russian overture of late 1998 was a bungled opportunity. //

Hard things are hard
So, how do we safeguard against interference with software companies by intelligence services or other government entities in the absence of a binding international standard? The short answer is : rule of law. //

Software companies are not sovereign entities; they do not get to opt out of the legal regimes and geopolitical concerns of the countries in which they are domiciled.[21] In Kaspersky’s case, thinking people around DC have never been hung up on the lack of technical controls ensuring good behaviour. What we have worried about for years is the fact that the legal regime Kaspersky is subject to as a Russian company comfortably accommodates compelled access and assistance without due process, or even a warrant.[22] In the US case, the concern is that abuses by intelligence or law enforcement agencies may occur when legal authorisation is exceeded or misinterpreted. In states like Russia, those abuses and the technical means to execute them are legally sanctioned. //

It is difficult enough to arrive at consensus in international law when there is such divergence in the law of individual states. But when it comes to military operations (as distinct from espionage or lawful interception) in the digital domain, we don’t even have divergence in the customary law of states as a starting point. Until states begin to acknowledge their activities and articulate their own legal reasoning, their own understandings of proportionate response, necessity, damage, denial, &c. for military electromagnetic and information operations, the odds of achieving binding international consensus in this area are nil. And there is not a lot compelling states to codify that reasoning at present. //

At present, we should be much more concerned with encouraging greater specificity and transparency in the legal logics of individual states than with international norms creation on a foundation of sand. The ‘X for Y’ anti-pattern deserves its eyerolls in the case of a Geneva Convention for software, but for different reasons than advocates of this approach generally appreciate.

Since I’m not taking names, it’s OK to fess up. How many of you have ever wondered – even if only for a moment -- whether you could really be fined or do jail time for tearing off those... //

When I asked a warranty representative from Simmons for clarification, she confirmed that the act of cutting off the tag could, in fact, void my warranty. So, while big brother might not be watching, you might want to think twice before whipping out those scissors after all.

For the past two weeks, a Christian hymn has been cropping up in an unlikely place - the protests that have drawn millions of people on to the streets of Hong Kong.

"Hallelujah to the Lord" has become the unofficial anthem of crowds protesting against a controversial proposed law that would allow people accused of crimes in China to be extradited to the mainland.

For Christians in Hong Kong, the hymn is a sign of faith but also of their concerns that it's not only political but also religious issues that are at stake, should the bill ever pass.

The protests were already under way when the tune first started being sung.

But on 11 June - a day before the protests turned violent - a group of Christians holding a public prayer meeting through the night started singing Hallelujah to the Lord.

The hymn was picked up by other protesters - soon even non-Christians were singing it.
The protesters said they sang it hoping it would have a calming effect on police, and would help diffuse tensions.

The song also acted as a political shield, of sorts.

"According to the law, any religious assemblies in public areas are not considered as illegal, so if people sing hymns together, it could actually work as a protection and guarantee that [they] stay safe," said Mr Chow.

"Therefore people started to sing this song to protect themselves."