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August 2019
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Malaysia Looks To Prosecute Homeowners Where Accused Streaming Piracy Occurs

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Back in the early days of filesharing clients and bittorrent being the focus of industry anti-piracy efforts, it was rare but not unheard of for end users to be targeted with lawsuits and criminal prosecution for copyright infringement. With the piracy ecosystem largely moving off of those kinds of filesharing platforms and more into a realm in which end users instead simply stream infringing material over the wire, rather than downloading it directly to their own machines, the focus on the consumer of pirated material has fallen by the wayside. Instead, the focus is now on the infringing sites that offer those streaming materials to the public. This makes a great deal of sense, actually, as the average user plausibly can claim ignorance as to the illicit nature of streamed material, combined with the simple fact that, unlike bittorrent technology, streaming material doesn't simultaneously offer it up to others as well.Again, this makes sense.Well, someone should reach out to the Malaysian government, because its new plans to fight piracy occurring with the aid of in-house Android boxes includes a strategy to prosecute any homeowner where such a device used for infringement exists.

There are many strategies available but the government in Malaysia is currently considering something unheard of anywhere on the planet. While it hasn’t shied away from ordering ISPs to block pirate sites, it now wants to hit consumers of content too, specifically those using Android-style set-top boxes.The mission of the National Film Development Corporation Malaysia (FINAS) is sometimes compared to that of the MPAA in the US. Unlike the MPAA, however, FINAS is a government department within the Ministry of Communications and Multimedia. Its chairman, Datuk Hans Isaac, says that it’s time to hold the public accountable for piracy.“I’m putting a paper together to propose that the owner of the house is responsible for the use of illegal Android TV boxes,” he said at the Fast Track 2019 Creative Digital Economy Forum in Cyberjaya.
This plan should raise the eyebrows for several reasons. The whole thing looks a bit like the strategy used by copyright trolls, where IP addresses are used to identify infringers, except that IP addresses make for shitty evidence as to who is actually infringing. After all, the account holder of an internet service isn't the only individual who might use that service. The same goes with homeownership, except more so (more on that in a moment). If IP addresses are bad at determining who actually infringed on a copyright, home-ownership records must represent a step further back from actual evidence.And the government isn't even trying to pretend that its plans will make good on catching the party actually infringing copyright.
In the United States, Europe and elsewhere it’s not uncommon for copyright trolls to blame Internet subscribers (often the homeowner) for Internet piracy. However, it seems that FINAS wants to take things a whole lot further by placing the responsibility for piracy on those who may be innocent and/or completely absent.“It doesn’t matter if the person is renting the house to another person who bought the device,” the FINAS chairman clarified.
This can be paraphrased as: "We're not actually all that concerned if we catch the infringing party. We mostly just want someone to blame for all of this, so we'll settle for whoever owns the abode, whether they live there or not." The potential that this new plan will ensnare innocent parties is nearly 100%. It's also going to be absolute hell for the real estate rental market. That sound you hear is a thousand Malaysian real estate lawyers scrambling to revise lease agreements for their customers.Open for discussion is exactly how effective all of this will be anyway.
Norman believes that when tackling the problem, the Malaysian Communications and Multimedia Commission (MCMC) should consider restricting Internet access to those who utilize pirate services.Again, it remains unclear how the government could determine who these people are. The main problem cited isn’t easily-trackable BitTorrent users but those who frequent streaming sites, portals, and other services.
Which is why the strategy has always been to go after and/or block the sites themselves, rather than the end user streaming the content. What silver bullet the Malaysian government has crafted to be able to track this sort of thing remains unknown at this point.But what isn't unknown is just how antithetical to justice this plan is.

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posted at: 12:00am on 02-Aug-2019
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No Immunity For Cops Who Arrested A Man For Creating A Facebook Page Mocking The Police Department

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A few years ago, the Parma (OH) Police Department decided to turn its hypersensitivity into a criminal investigation. A local man, Anthony Novak, created a Facebook page parodying the PD's social media front. It wasn't particularly subtle satire. Most readers would have immediately realized this wasn't the Parma PD's official page -- not when it was announcing the arrival of the PD's mobile abortion clinic or the institution of a ban on feeding the homeless. Not only that, but the official logo had been altered to read "We No Crime."The Parma PD decided to treat this parody as a dangerous threat to itself and the general public. It abused an Ohio state law forbidding the use of computers to "disrupt" police services to go after Novak. Not that there was any disruption other than the rerouting of PD resources to investigate a non-criminal act.The end result was the arrest of Novak, the seizure of his electronic devices, and a four-day stay in jail for the parodist before he was acquitted of all charges. Novak sued the police department, but the district court decided to award immunity across the board to everyone involved. The Sixth Circuit Appeals Court has rolled back some of that ruling, allowing Novak's civil rights lawsuit to proceed.The opinion [PDF] opens with a brief discussion of how parody works -- and how the court treats parody -- which is more reprimand than reminder.

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.
This misuse of police resources was mobilized by an entire twelve hours of posts by Novak. The page offered up a recruitment ad that "strongly encouraged minorities to not apply" and promised swift justice would be brought against an "African American woman" for "loitering outside a Subway" while it was being robbed by an "armed white male," who was presumably not under investigation. A certain number of readers were so upset by what they saw they phoned the police department, tying it up for a total of twelve minutes.The PD assigned two officers to the case and sent an email to Facebook reps demanding the page be taken down. The parody page made a brief appearance on the local news as Parma's brave crime fighters announced their desire to take down this Facebook criminal. Novak deleted the page shortly thereafter, but the Parma PD continued its investigation, ultimately arresting him for "disrupting" the PD's apparently endless supply of waste-able time.The Appeals Court says there is no doubt Novak's speech was protected, citing none other than The Onion.
[A] parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Campbell, 510 U.S. at 583 n.17. Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. News in Brief, The Onion (June 26, 2019); News in Brief, The Onion (June 10, 2019). The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke. Susanna Kim, All the Times People Were Fooled by The Onion, ABC News (June 1, 2015).
Unfortunately, this doesn't necessarily mean Novak's claims of First Amendment retaliation will hold up. As the court notes, the Supreme Court recently gave officers a free pass to retaliate against protected speech, provided they can find some sort of probable cause to support an arrest. In some cases, it could be nothing more than jaywalking or not signalling before a turn. In this case, it could be an Ohio state law the Sixth Circuit court views as unconstitutional.First, it notes the only thing Novak engaged in was speech. And it was only determined to be criminal by using a very loose reading of a very loosely-written law.
Besides posting to his Facebook page, Novak committed no other act that could have created probable cause. In other First Amendment retaliation cases on point, by contrast, the defendant’s conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something.[...]Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.
But if officers reasonably believed the law supported this arrest, they can avail themselves of qualified immunity. The state law against "disrupting" police operations is broad enough it could conceivably allow these officers to escape retaliation allegations. The Appeals Court doesn't like this law much.
[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.
The vagueness of the law could help or hurt Novak, depending on the lower court's interpretation of the law and its application in this case. The Appeals Court only hints that an easily-abused law that blurs the line between legitimate enforcement and speech-targeting misuse may work out better for the plaintiff than the law enforcement defendants. No qualified immunity… at least not yet.A few other claims survive as well, including Novak's allegation that the Parma PD's announcement it would prosecute him for his parody page was prior restraint. The court agrees, allowing this claim to continue for further factual development. A number of his other claims rest on the same issue as his retaliation claim: probable cause or the lack thereof. If it's determined the Parma PD had no probable cause to arrest Novak, his claims of malicious prosecution and Privacy Protection Act violations will survive.The most important decision is the most immediate: no qualified immunity for the Parma PD officers and no early exit from the lawsuit. There's no question the search and arrest were retaliatory. The only question remaining is how much Ohio's terrible law will help these cops get away with it.

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posted at: 12:00am on 02-Aug-2019
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