New North American Trade Deal Keeps Useful (But Limited) Liability Protections, Dumps Bad Biologics Data Protection

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When the NAFTA replacement "USMCA" agreement was first announced last year, we noted that it included a mix of good and bad ideas. The key good idea was that the USMCA contained a bit of language establishing a requirement for strong intermediary liability protections, similar to (but not exactly the same as) Section 230's protections in the US. Among the really bad ideas was expanding the data protection term for biologics -- which, we've noted, is really dangerous for basic science and innovation for new drugs -- but was supported by big pharmaceuticals to increase their monopoly power and ability to extract monopoly rents.So it seems like good news that the latest version of the agreement keeps the intermediary liability protections and drops the biologics piece, which has the big pharma companies screaming angrily.The intermediary liability protections for tech also have lots of people complaining -- including from both parties, but it's all ridiculous. First of all, most of the people freaking out about this are the very same people who originally loved the idea of sneaking ideas like longer copyright terms and anti-circumvention provisions into trade deals, and are now mad that internet companies are realizing that other ideas, that are better for the internet and free speech, can be put into those deals as well.Perhaps more importantly -- as you hear more people whining about the inclusion of intermediary liability protections in USMCA -- is that these protections aren't even that strong, and Canada is already talking about ways to put more liability on internet services, despite what it's about to agree to in the USMCA. In other words, while it's good to see this language in the agreement, which will, at the margins, help keep the internet more open for free speech, the actual impact of this provision may be limited by creative efforts to write around the agreement -- and now just becomes a stick for those pushing the whole "techlash" narrative to beat against a wall.

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Yup, Strike 3 Is Going The Prenda Route By Filing 'Pure Discovery' Suits In FL State Court

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We were just discussing the deafening silence coming from two of the most prolific copyright trolls in federal courts, Malibu Media and Strike 3 Holdings. While both trolls had set a record-breaking pace for the better part of this year, both also suddenly went mostly silent over the last couple of months. As we indicated in that post, Strike 3 specifically appears to have simply moved its operations to Florida state courts. While we were not totally sure why that would be at the time of the last post, we had a theory.

This may have to do with an attempt to avoid precedence in rulings as to the evidence it uses, chiefly the practice of pretending that IP addresses identify people. If that isn't it, it could also be some version of the trick Prenda Law attempted to pull in moving copyright-cases-in-disguise to Florida courts. Essentially, they sue instead with a nod toward the CFAA as a way to enter into discovery, while also naming a bunch of co-conspirators -- rather than defendants -- to the case. All of this as a way to get at IP address and account information for a whole bunch of people in state court, only to turn around and sue those same co-conspirators in federal court. If that is what Strike 3 is doing, it's really dumb because it got Prenda in a bunch of trouble.

In this case, this means a subpoena directed at ISPs to identify the account holder that’s linked to the allegedly infringing IP-addresses. This tactic provides the same result as going through a federal court and allows Strike 3 to demand settlements as well. While the number of cases in state court is relatively modest, these cases target a substantially higher number of defendants per case. That’s also one of the main advantages. By filing a single case with dozens or hundreds of defendants, the filing fee per defendant is very low.In federal court, the company generally targets one defendant per complaint, which is far more expensive. And while Strike 3 mentions that it is requesting the information for a subsequent copyright lawsuit, it will likely try to get a settlement first.

Attorney Jeffrey Antonelli and his firm Antonelli Law‘s local counsel Steven Robert Kozlowski objected to these subpoenas on behalf of several defendants. In his motion to quash he highlights a variety of problems, including the earlier observation that copyright cases don’t belong in a state court.“This Court lacks subject matter jurisdiction over the copyright claims at issue in the lawsuit which the subpoena to Comcast is premised upon. Federal courts have original and exclusive jurisdiction over civil actions arising under federal copyright law,” the motion reads.Another problem is that the purpose of the “pure bill of discovery” is to obtain facts or information a defendant has. However, the targeted ISPs are not defendants in these cases. Finally, the motions highlight that the IP-addresses may not even be linked to Florida, where the court is based. Strike 3 should have known this, as they always disclose the location in federal court. However, they may have omitted it on purpose, the defense argues.

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