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Lawsuit & Bi-Partisan Group Of Senators Seek To Push Back On Trump Administration's Attempt To Corrupt The Open Technology Fund

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Last month we wrote about how the newly appointed head of the US Agency for Global Media (USAGM) had cleaned house, getting rid of the heads of the various organizations under the USAGM umbrella. That included Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting... and the Open Technology Fund. The general story making the rounds is that Pack, a Steve Bannon acolyte, planned to turn the famously independent media operations into a propaganda arm for the Trump administration. Leaving side the concerns about why this is so dangerous and problematic on the media side, we focused mostly on the one "different" organization under the USAGM banner: the Open Technology Fund.OTF is incredibly important to a functioning and open internet -- especially one where freedom and privacy to communicate can work around the globe, with a focus on funding audited, open source technologies. Last week, Vice had a detailed story about what it describes as "the plot to kill the Open Technology Fund." In it, it notes that Pack wants OTF to fund two apps that are not open source, Freegate and Ultrasurf. While both claim to be about helping circumvent internet censorship, most activists don't trust those apps. Indeed, it notes that the developer behind Ultrasurf agreed to a security audit by the US government, but then threatened the company who did the audit with legal action if it made the report public:

VICE News has learned that Ultrasurf recently underwent a security audit to assess if the app contained any critical security flaws. The audit was conducted at the request of the State Department as a condition of funding, but the report has not been published.This was because the developer of Ultrasurf wanted a reference to a high-severity bug removed from the report, according to a source at the company that conducted the audit, Cure53.The developer, who uses the pseudonym Clint to protect his family in China, subsequently threatened Cure53 with legal action if they ever published the report. Clint told VICE News the audit was sort of like a trap and that the report was not made public because it would reveal too much about his source code.
Let's be clear: if publishing a security audit about your software will reveal too much about your source code your app is not secure.So why would OTF under Pack's command suddenly be interested in funding these closed source, highly questionable apps? You guessed it:
Mainly because prominent individuals with strong links to Pack have spent the better part of the last decade repeatedly pushing these apps to receive tens of millions of dollars in funding from the U.S. government, without providing any evidence that the technology will succeed.The two loudest proponents of these technologies are Michael Horowitz, a former director of the Project for International Religious Liberty at the Hudson Institute, and Katrina Lantos Swett, the president of the Lantos Foundation Human Rights and Justice.
The former heads of OTF told Vice that they received a threatening call from Swett basically saying that if OTF didn't fund these questionable apps, she would lean on Pack to retaliate against OTF:
In March, around the time Trump decided to pressure Republicans in the Senate to confirm Pack's appointment, Libby Liu, OTF's CEO, and Laura Cunningham, OTF's president, got a phone call from Swett and her colleagues to discuss funding for large-scale circumvention tools to help people in China bypass the Great Firewall.Swett described it as a very professional and a very cordial call, but that's not how Liu and Cunningham remember it.It was quite threatening, Cunningham told VICE News. They said that they were very close with Michael Pack [and] told us that there was a lot of disappointment that we were not funding the most effective circumvention tools out there. Their advice was that if we wanted to make sure we stayed in CEO Pack's good graces, that we needed to reorient our funds immediately to support those technologies.Liu says Swett and her colleagues lectured us, you know, round robin-style, and threatened us.
Vice also shows Horowitz showing up on Steve Bannon's radio show last month directly saying that Libby Liu should be fired (though he mistakenly claims she's part of Radio Free Asia, which used to house OTF, but OTF has been spun out separately from RFA for a while now):
In that video, you see Bannon ask Horowitz to repeat the name of who he wanted fired, and apparently write down Liu's name while saying "okay." Days later, Liu and Cunningham were both fired by Pack (incredibly, Liu had already resigned, but Pack doubled down and fired her anyway).In response, OTF itself and the board members of many of the USAGM organizations have now sued Michael Pack, arguing that he has no right to fire people:
Although funded by Congress through grants administered by the Agency, the fourorganizations targeted by Mr. Pack are not part of the government. Their employees are notgovernment employees. They are private, nonprofit organizations with their own leadership andindependent boards of directors. That is by design. Their mission, collectively, is to promote thefree flow of information worldwide, especially in countries where authorities restrict freedom ofexpression. They do this through global efforts to combat online censorship and news broadcastsin 61 different languages, reaching 400 million people each day. But they can only be effective incountering disinformationandcensorshipiftheyarerightly perceivedasindependent,professional, and fact-drivennot as official mouthpieces for some partisan agenda. To ensure theintegrity and credibility of this vital work, their independence from political interference isprotected by a strict firewall embodied in statutes, regulations, and binding contract provisions.Mr. Pack's actions this past week constitute the most egregious breach of that firewall in history.[....]Mr. Pack's actions are unlawful in at least two critical respects. First, with respect to OpenTechnology Fundan independent nonprofit dedicated to advancing global Internet freedomPacklacks any legal authority whatsoever to remove its officers or directors. The statutory authorityand bylaws on which Mr. Pack purported to rely do not remotely confer any such authority.Second,although Pack does have limited statutory authority with respect to personnel decisions at the otherthree organizations, that authority is strictly constrained by statute, regulation, and contract. Withrespect to all four organizationsRadio Free Europe, Radio Free Asia, the Middle EastBroadcasting Networks, andOpen Technology FundMr. Pack's attempt to remove theorganizations' officers and directors across the board constitutes an impermissible breach of thefirewall. So does his attempt to freeze funds. Indeed, in each of its grant agreements with theseorganizations, the Agency has pledged to honor these statutory and regulatory obligations and isprohibited from tak[ing] any . . . action that may tend to undermine the organizations'journalistic credibility or independence.Mr. Pack's actions impermissibly breach the firewall.It is hard to conceive of a more serious breach of the organizations' legally protected independencethan the wholesale decapitation of their leadership by an ideologically-oriented maker of politicalfilms, installed by the President for the stated purpose of altering the organizations' content.
On top of that, it seems that these moves by Pack to clean house have at least raised surprisingly bi-partisan concerns in Congress. A group of Senators led by Marco Rubio have sent a letter to Pack demanding an explanation and making it clear that USAGM is supposed to be independent of politics.
As the United States faces global challenges in the information space, it cannot afford toinvest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictatorsand despots, nor can it be one that fails to live up to its promise of providing access to a free andindependent press. Congress set up these networks, and its governance structure at USAGM, topreserve the grantees' independence so they can act as a bulwark against disinformation throughcredible journalism.We urge you to respect the unique independence that enables USAGM's agencies andgrantees to help cultivate a free and open world. Given the bipartisan and bicameral concernwith recent events, we intend to do a thorough review of USAGM's funding to ensure thatUnited States international broadcasting is not politicized and the agency is able to fully andeffectively carry out its core mission.
Beyond Rubio, the letter is signed by some fairly powerful Senators on both sides of the aisle: Dick Durbin, Lindsey Graham, Pat Leahy, Jerry Moran, Susan Collins and Chris Van Hollen. Will it convince Pack to back off? Who knows, but at least it's nice to see that in this one very important area, some Senators have the backbone to push back against what appears to be a very swampy, corrupt move by this administration.

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posted at: 12:00am on 07-Jul-2020
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More Disputes Over Trademarked Area Codes. Why Is This Allowed Again?

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There are plenty of times when I have questioned why something that the USPTO granted a trademark on should be allowed to be registered at all. But one example that flummoxes me the most is that you can go out there and trademark area codes. You don't hear about this all that much, but AB InBev made this somewhat famous when it acquired Chicago's Goose Island Brewing, including the trademark for its "312" brand of beer, and proceeded to file for trademarks on allllllll kinds of area codes.Why? Why can a company lock up an identifier for a geographic region in any market designation? The answer according to some is that the USPTO has decided that area codes aren't purely geographic descriptions.

If consumers encounter an area code being used as a trademark, will consumers likely think that product comes from the region identified by the code, or will it be viewed as a tribute to the region?   Perhaps we’ll see if A-B expands its use of area codes. The USPTO generally does not consider area codes to be merely geographically descriptive and thus area codes used as trademarks are registrable without a showing of acquired distinctiveness.
Someone is going to have to explain this to me. Go throw the term "area code" into Google. The returning results will be of one or two categories. Either you will get a link to a series of tables that match a given area code with a state, city, or county, or you will get an actual map showing where specific area codes lie in different regions. Both of those things are denoting geographic reasons. The area code has the word area in it. What the absolute hell is the USPTO talking about?Because this is still causing problems with some individuals using area code marks to bully everyone else.
Fred Gillich, the owner of Too Much Metal and 414 Milwaukee, started his 414 brand in 2012. His stylized version of the area code appears on T-shirts, hats, glassware and flags – one of which hung from City Hall last spring. Beard MKE, a local retail company, partnered with Cream City Print Lounge, also Milwaukee-based, to create a "414 All" shirt to benefit the Cream City Foundation that works to protect the rights of the LGBTQ+ community.Gillich sent Beard MKE a cease and desist letter earlier this month, and was not satisfied with the company's response. And so he went to social media and made a post calling out Beard MKE for using the 414 area code on a shirt with the image below.
The response to Gillich attempting to publicly shame another group that was handing proceeds from merch sales bearing the "414" area code to charity was almost universally negative. Comments from legal experts mostly amounted to: "Yeah, the USPTO gave him the mark, so he can bully whoever he wants over it." As though nobody can get to the next logical question, which is to ask why this is allowed at all? The mark is so broad, and so tied to a geographic region, it serves as the source identifier of nothing at all, save maybe an entire region.And Gillich has made a habit of this sort of thing.
"This is not the first time he's done this to a small business and no one has the time or the money for legal support," says Crosby.Gillich says he just wants companies to partner with him rather than use the trademarked 414 without permission."I survive on my creativity and when I see it being appropriated, the question becomes who's hurting whose small business?" says Gillich. "I am protecting my livelihood."
Ah, yes, the creativity of noticing that you live in a certain area code and then trademarking it. Hey, USPTO, bang up job here, fellas.

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posted at: 12:00am on 07-Jul-2020
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This Week In Techdirt History: June 28th - July 4th

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Five Years AgoThis week in 2015, a missing document from the FISA court docket suggested that there was yet another undisclosed bulk records collection program hiding somewhere, while newly-released Wikileaks documents revealed that, despite its denials, the NSA was engaged in economic espionage, and a fresh FISA order authorised "as-is" phone recrod collections for the next six months. Just like today, the FBI was on an anti-encryption streak, fearmongering about "going dark" despite actual wiretaps almost never running into encryption. And the MPAA was launching another ad campaign against piracy... targeted at paying customers, for some reason.Ten Years AgoThis week in 2010, we looked at the list of ten questions for ACTA negotiators that were being taken to a meeting in Sweden, and unsurprisingly got more of the same old stuff for answers. We looked at an economic analysis of the Viacom/YouTube decision, and then at the new important ruling of the week: the Supreme Court's narrow take on Bilski, which let business method and software patents survive while leaving the door open for future cases that might change things — all of which required a bit of tea leaf reading to determine what the court was truly thinking about software patents.Fifteen Years AgoThis week in 2005, the Supreme Court issued its expected rulings in both the Grokster and BRand X cases, with a mixed bag of results — while former RIAA boss Hilary Rosen suddenly realized this kind of fight was probably harming the RIAA's future. A Taiwanese court ruled that file sharing software is perfectly legal, while Sweden's terrible file sharing law went into effect. Meanwhile, AMD resurrected its antitrust attack on Intel, and took out a bunch of ads to make its case to the public, though we wondered if the public would actually care.

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posted at: 12:00am on 05-Jul-2020
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Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive

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I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

The Association of Research Libraries (ARL) urges an end to the lawsuit against the Internet Archive filed early this month by four major publishers in the United States District Court Southern District of New York, especially now that the National Emergency Library (NEL) has closed two weeks earlier than originally planned.
As the ARL points out, the Internet Archive has been an astounding "force for good" for the dissemination of knowledge and culture -- and that includes introducing people to more books.
For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world's knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA's Open Library has circulated more than 400,000 digital books without any user costincluding out-of-copyright works, university press titles, and recent works of academic interestusing controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of loaned to owned, and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA's Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.
It would be nice if the publishers recognized this, but as we've said over and over again, these publishers would sue any library if libraries didn't already exist. The fact that the Open Library looks just marginally different from a traditional library, means they're unlikely to let go of this stupid, counterproductive lawsuit.

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posted at: 12:00am on 03-Jul-2020
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