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January 18, 2019
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lawsuit

Judge orders net neutrality lawsuit to go ahead despite shutdown

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This week the possibility emerged that the ongoing government shutdown could delay net neutrality’s day in court — but the court was not sympathetic to the FCC’s request that the lawsuit be put off. Oral arguments for this major challenge to the agency’s rollback of 2015’s internet regulations will go ahead as planned on February 1.

During a shutdown, federal employees — including government lawyers — must have specific authorization to continue working, since it’s illegal for them to do so without pay. In this case a judge on the case must effectively make that authorization.

The FCC is among the many agencies and organizations affected by the shutdown, and many employees are stuck at home. As such it requested a postponement of an upcoming court date at which it and several companies and advocacy groups are scheduled to argue over its rollback of net neutrality.

A counter-argument filed immediately by industry group INCOMPAS pointed out that during previous shutdowns, the court had not granted such requests and should stick to that precedent.

The judges of the D.C. Circuit Appeals Court appear to agree with the latter argument; the FCC’s motion was denied and arguments will go forward as planned on February 1.

This is definitely not good news for the FCC. While it no doubt has its ducks in a row as far as defending its net neutrality rollback and new rules in court (it has done so before and will again), it’s far from ideal that the case will take place after a prolonged absence of all the pertinent experts from their posts. Briefing the lawyers, updating arguments, responding to industry concerns — it’s not easy to do when all your staff is sitting at home watching Bandersnatch over and over.

The lawsuit against the FCC has lots of good points to make about the rules it has established and the process by which it approved those rules, so this is no mere formality or frivolous suit. And net neutrality champions are likely happy to hear that they may very well catch the agency flat-footed.

News Source = techcrunch.com

Scooter startup Bird tried to silence a journalist. It did not go well.

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Cory Doctorow doesn’t like censorship. He especially doesn’t like his own work being censored.

Anyone who knows Doctorow knows his popular tech and culture blog Boing Boing, and anyone who reads Boing Boing knows Doctorow and his cohort of bloggers. The part-blogger, part special advisor at the online rights group Electronic Frontier Foundation, has written for years on topics of technology, hacking, security research, online digital rights, and censorship and its intersection with free speech and expression.

Yet, this week it looked like his own free speech and expression could have been under threat.

Doctorow revealed in a blog post on Friday that scooter startup Bird sent him a legal threat, accusing him of copyright infringement and that his blog post encourages “illegal conduct.”

In its letter to Doctorow, Bird demanded that he “immediately take[s] down this offensive blog.”

Doctorow declined, published the legal threat, and fired back with a rebuttal letter from the EFF accusing the scooter startup of making “baseless legal threats” in an attempt to “suppress coverage that it dislikes.”

The whole debacle started after Doctorow wrote about about how Bird’s many abandoned scooters can be easily converted into a “personal scooter” by swapping out its innards with a plug-and-play converter kit. Citing an initial write-up by Hackaday, these scooters can have “all recovery and payment components permanently disabled” using the converter kit, available for purchase from China on eBay for about $30.

In fact, Doctorow’s blog post was only two paragraphs long and, though didn’t link to the eBay listing directly, did cite the hacker who wrote about it in the first place — bringing interesting things to the masses in bitesize form in in true Boing Boing fashion.

Bird didn’t like this much, and senior counsel Linda Kwak sent the letter — which the EFF published today — claiming that Doctorow’s blog post was “promoting the sale/use of an illegal product that is solely designed to circumvent the copyright protections of Bird’s proprietary technology, as described in greater detail below, as well as promoting illegal activity in general by encouraging the vandalism and misappropriation of Bird property.” The letter also falsely stated that Doctorow’s blog post “provides links to a website where such Infringing Product may be purchased,” given that the post at no point links to the purchasable eBay converter kit.

EFF senior attorney Kit Walsh fired back. “Our client has no obligation to, and will not, comply with your request to remove the article,” she wrote. “Bird may not be pleased that the technology exists to modify the scooters that it deploys, but it should not make baseless legal threats to silence reporting on that technology.”

The three-page rebuttal says Bird used incorrectly cited legal statutes to substantiate its demands for Boing Boing to pull down the blog post. The letter added that unplugging and discarding a motherboard containing unwanted code within the scooter isn’t an act of circumventing as it doesn’t bypass or modify Bird’s code — which copyright law says is illegal.

As Doctorow himself put it in his blog post Friday: “If motherboard swaps were circumvention, then selling someone a screwdriver could be an offense punishable by a five year prison sentence and a $500,000 fine.”

In an email to TechCrunch, Doctorow said that legal threats “are no fun.”

AUSTIN, TX – MARCH 10: Journalist Cory Doctorow speaks onstage at “Snowden 2.0: A Field Report from the NSA Archives” during the 2014 SXSW Music, Film + Interactive Festival at Austin Convention Center on March 10, 2014 in Austin, Texas. (Photo by Travis P Ball/Getty Images for SXSW)

“We’re a small, shoestring operation, and even though this particular threat is one that we have very deep expertise on, it’s still chilling when a company with millions in the bank sends a threat — even a bogus one like this — to you,” he said.

The EFF’s response also said that Doctorow’s freedom of speech “does not in fact impinge on any of Bird’s rights,” adding that Bird should not send takedown notices to journalists using “meritless legal claims,” the letter said.

“So, in a sense, it doesn’t matter whether Bird is right or wrong when it claims that it’s illegal to convert a Bird scooter to a personal scooter,” said Walsh in a separate blog post. “Either way, Boing Boing was free to report on it,” she added.

What’s bizarre is why Bird targeted Doctorow and, apparently nobody else — so far.

TechCrunch reached out to several people who wrote about and were involved with blog posts and write-ups about the Bird converter kit kit. Of those who responded, all said that they had not received a legal demand from Bird.

We asked Bird why it sent the letter, and if this was a one-off letter or if Bird had sent similar legal demands to others. When reached, a Bird spokesperson did not comment on the record.

All too often, companies send legal threats and demands to try to silence work or findings that they find critical, often using misinterpreted, incorrect or vague legal statutes to get things pulled off from the internet. Some companies have been more successful than others, despite an increase in awareness and bug bounties, and a general willingness to fix security issues before they inevitably become public.

Now Bird becomes the latest in a long list of companies that have threatened reporters or security researchers, alongside companies like drone maker DJI, which in 2017 threatened a security researcher trying to report a bug in good faith, and spam operator River City, which sued a security researcher who found the spammer’s exposed servers and a reporter who wrote about it. Most recently, password manager maker Keeper sued a security reporter claiming allegedly defamatory remarks over a security flaw in one of its products. The case was eventually dropped but not before over 50 experts, advocates, and journalist (including this reporter) signed onto a letter calling for companies to stop using legal threats to stifle — and silence security researcher.

That effort resulted in several companies — notably LinkedIn and Tesla — to double down on their protection of security researchers by changing their vulnerability disclosure rules to promise that the companies will not seek to prosecute hackers acting in good-faith.

But some companies have bucked that trend and have taken a more hostile, aggressive — and regressive — approach to security researchers and reporters.

“Bird Scooters and other dockless transport are hugely controversial right now, thanks in large part to a ‘move-fast, break-things’ approach to regulation, and it’s not surprising that they would want to control the debate,” said Doctorow.

“But to my mind, this kind of bullying speaks volumes about the overall character of the company,” he said.

News Source = techcrunch.com

TikTok parent ByteDance sues Chinese news site that exposed fake news problem

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There’s worrying news from China’s online media world as ByteDance, the $75 billion company behind popular video app TikTok is taking a news site to court for alleged defamation after it published a story about ByteDance’s fake news problem in India.

U.S. tech firms have come to rely on media to help uncover issues, but Chinese tech news site Huxiu has become the latest litigation target of ByteDance, which reportedly surpassed Uber’s valuation after raising $3 billion. The company has sued internet giants Tencent and Baidu in the past year for alleged anti-competitive behavior.

This time around, ByteDance — which is backed by SoftBank’s Vision Fund, KKR and General Atlantic among others — has taken issue with an op-ed published earlier this month that spotlights a fake news problem on its Indian language news app, Helo.

Launched in July as part of ByteDance’s push in India, Helo competes with local media startups such as Xiaomi-backed ShareChat and DailyHunt as well as Facebook. ByteDance operates news app Jinri Toutiao with over 250 million monthly active users in China, according to data services provider QuestMobile. TikTok, branded as Douyin in China, has a reach well beyond its home front and claims 500 million MAUs worldwide with an additional 100 million users gleaned from its Musical.ly buyout.

“An insult and abuse”

On December 4, Huxiu published an opinion piece that condemned Helo and ShareChat for allowing misinformation to spread. One Helo post, for instance, falsely claimed that a Congress leader had suggested that India should help neighboring rival Pakistan clear its debt rather than invest in the State of Unity, a pricey local infrastructure project.

In response, ByteDane filed a lawsuit against Huxiu, saying that the Chinese news site made defamatory statements against it in translating an op-ed by contributor Elliott Zaagman. Tech blog TechNode — TechCrunch’s partner in China — ran an edited English version of the story but it is not part of the suit.

Zhang Yiming, founder of ByteDance, poses for a photograph at the company’s headquarters in Beijing, China. Photographer: Giulia Marchi/Bloomberg via Getty Images

“Technode edited the piece and removed some of my words. Huxiu was, and is with most of my articles, true to my original words,” Zaagman wrote on his WeChat timeline.

To adhere only to “facts” as part of its editorial process, TechNode removed “colorful” parts of Zaagman’s article, according to the blog’s editor-in-chief.

What goes missing on TechNode is what incensed ByteDance. Zaagman’s unfiltered statements on Huxiu “constitute an insult and abuse against ByteDance” by “claiming that Chinese companies have influence over the Indian election,” a ByteDance spokesperson told TechCrunch.

“The content on Huxiu is obviously a rumor and libel. It’s malicious slander. Whether it’s Chinese or foreign publications, Chinese or foreign authors, they must respect the truth, laws, and principles of journalism,” the spokesperson added.

The unedited English version is posted on Zaagman’s personal LinkedIn account here. Here is one paragraph that TechNode removed:

Maybe still Zhang is simply a victim of his own success. Few entrepreneurs start a company expecting it to be worth $75 billion. But what he has created may have far broader ramifications. As is demonstrated by Russia’s use of American social networking platforms to interfere in Western elections, misinformation campaigns can be a tool used by adversaries to disrupt a country’s internal politics. At this current moment when China faces greater international tensions, a pushback to their rising influence in Asia, and territorial disputes along their border with India, the last thing that Beijing needs is accusations from an opportunistic Indian politician sounding the alarm about how Beijing-based Chinese companies are spreading misinformation among the impressionable Indian electorate….

And this as well:

Although, on second thought, maybe it makes perfect sense that Zhang Yiming is peddling products that he himself would likely never use. After all, any good drug dealer knows not to get high on their own supply.

In a statement, Huxiu dismissed ByteDance’s accusation for being “wildly untrue” and bringing “major repercussions” for the online publication’s reputation. A spokesperson for Huxiu told TechCrunch that it hasn’t received any summons as the court is still processing the complaint.

In a peculiar twist to the incident, Huxiu actually pulled its Chinese version of Zaagman’s piece days leading to the ByteDance suit. The removal came as a result of “negotiations among multiple parties,” said the Huxiu representative who declined to share more details on the decision. In China, an online article can be subject to censorship for containing material considered illegal or inappropriate by the media platform itself or the government.

The problem of AI

douyin tiktok musically

The logo for ByteDance’s popular video app TikTok (called Douyin in China) at an electronic dance music festival. / Credit: ByteDance

In the U.S., Facebook has responded proactively to issues raised by the media — for example by banning accounts that stoke racial tension in Myanmar — while Twitter CEO Jack Dorsey went so far as to suggest that journalists sniffing out issues on his service is “critical” to the company. Beijing-based ByteDance hasn’t commented on the fake news problem highlighted in Zaagman’s article, but staff from its Indian regional app previously acknowledged the presence of misinformation.

“We work very closely with our local content review and moderation team in harnessing our algorithms to review and take down inappropriate content,” a Helo spokesperson told local newspaper Hindustan Times.

The concerns about Helo are the latest blow for ByteDance, which has marketed itself as an artificial intelligence company delivering what users want to see based on what their online interaction in the past. As has been the case with Western platforms, such as Google-owned YouTube which also uses an algorithm to feed users videos that they favor, the outcome can mean sensational and sometimes illegal content.

Along those lines, ByteDance’s focus on AI at the expense of significant “human-led” editorial oversight has come in for criticism.

In July, the Indonesian government banned TikTok because it contained “pornography, inappropriate content and blasphemy.” At home, Chinese media watchdogs have similarly slammed a number of the company’s other content platforms, and regulators in the country went so far as to shutter its humor app for serving “vulgar” content.

But ByteDance is hardly the only tech company entangled in China’s increased media scrutiny. Heavyweights including Tencent, Baidu, and ByteDance’s archrival Kuaishou have also come under attack at various degrees for hosting content deemed problematic by the authorities over the past year.

News Source = techcrunch.com

Why a bunch of people are suing Epic Games over Fortnite’s dance moves

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A growing cluster of actors, musicians and viral internet stars have Fortnite in their crosshairs. The smash hit third-person shooter is free to play but generates mountains of revenue through in-game microtransactions. Those purchased lure avid Fortnite players to spend real life cash on virtual cosmetic items, like special character skins (today: a winter skiing set!) and, most importantly, dance moves.

Now, Fortnite creator Epic Games faces two new lawsuits over dance moves: one from actor Alfonso Ribeiro who played Carlton on 90’s TV hit Fresh Prince of Bel Air and another from the family of Russell Horning, better known as “Backpack Kid,” who created a viral dance called “the Floss.” Horning’s lawsuit also names 2K Sports, maker of NBA 2K, for that game’s depiction of his dance. Earlier in December, rapper 2 Milly filed a lawsuit against Fortnite maker Epic over the game’s depiction of his dance move, the Milly Rock, which the game calls “Swipe it.”

Ribeiro’s lawyer provided TechCrunch with the following statement:

It is widely recognized that Mr. Ribeiro’s likeness and intellectual property have been misappropriated by Epic Games in the most popular video game currently in the world, Fortnite. Epic has earned record profits off of downloadable content in the game, including emotes like “Fresh.” Yet Epic has failed to compensate or even ask permission from Mr. Ribeiro for the use of his likeness and iconic intellectual property. Therefore, Mr. Ribeiro is seeking his fair and reasonable share of profits Epic has earned by use of his iconic intellectual property in Fortnite and as a result is requesting through the courts that Epic cease all use of Mr. Ribeiro’s signature dance.

Pierce Bainbridge Beck Price & Hecht LLP is also pursuing similar claims against Take-Two Interactive and Visual Concepts, developer of the NBA 2K series of video games, on behalf of Mr. Ribeiro.

Fortnite’s in-game dance moves are ubiquitous, both in-game and out — and that’s part of the problem. The game lifted its most popular dance moves from various online viral moments across the internet, TV, movies and music. In most cases the in-game dances are so well loved because they copy their source material so precisely. While the game lifts these dances move for move, making them widely recognizable, it doesn’t refer to the source material directly and renames the dances with generic nicknames. In Fortnite, the “Tidy” dance is Snoop Dogg’s “Drop it Like its Hot” dance, “Jubilation” is Elaine’s dance from Seinfeld, “Pure Salt” (not really a dance, some of these are just emotes) is from the Salt Bae meme, Psy’s Gangnam Style dance and so on. In the case of the Carlton dance, Fortnite gives a small nod to the dance’s origins by naming it “Fresh.”

The game draws from a wide pool of source material, but black creators in particular have spoken out about Fortnite’s monetization moves. Black artists have a long history of seeing their work achieve broad mainstream popularity without commercial or credit to accompany it. When Chance the Rapper tweeted about Fortnite’s relationship to black artists in July, BlocBoy JB — creator of the dance the game calls “Hype” — endorsed the idea that artists like himself should be paid if Fortnite is making money from their moves.

Fortnite’s default in-game emote is a dance that actor Donald Faison performs on the show Scrubs, and Faison has also taken notice.

Fortnite’s decision to animate its characters doing popular dance moves in and of itself isn’t new. Overwatch creator and Epic competitor Blizzard includes popular dance emotes in its own multiplayer shooter and before that in multiplayer RPG World of Warcraft. In Blizzard’s case, the depiction of dance moves, some for sale via lootboxes, isn’t quite as on the nose nor does it mine current internet culture as thoroughly.

For example, the Overwatch character Junkrat does a version of the running man dance that looks a lot like a version of the dance by Will Smith’s character on The Fresh Prince. That dance was itself popularized by Janet Jackson in her Rhythm Nation music video.

Other Overwatch dance emotes are drawn from traditional Japanese dance and anime. In Blizzard’s classic game World of Warcraft, the blood elf characters feature dances culled from the movie Napoleon Dynamite and Britney Spears music videos. In World of Warcraft’s case, these moves weren’t for sale in-game — the microtransaction model hadn’t yet really taken off during the game’s heyday.

Epic Games was likely aware that lifting these dance moves and selling them to gamers might cause a stir among some creators, but by that time it was probably already making too much money to care. Notably, the company faced a high profile copycat accusation from the creator of PlayerUnknown’s Battlegrounds (PUBG), a battle royale-style game widely understood to have inspired Fortnite’s gameplay. PUBG dropped the lawsuit in June of this year, likely after a substantial settlement.

Epic also appears to have quietly paid at least one creator to settle a potential legal threat. Dancer Gabby David, who created the Fortnite dance called the “Electro Shuffle,” appears to have settled with Epic Games around a year ago for the game’s depiction of her choreography, according to forum posts and her Twitter account. Epic Games declined to comment to TechCrunch about the details of the settlement.

All three individuals suing Epic Games over Fortnite dances are being represented by intellectual property lawyer David L. Hecht and we’re likely to see more artists and internet stars signing on with Hecht before this is all over. We don’t know Epic’s next move, but as some players have suggested, it would be easy enough for the gamemaker to add some kind of tie-in crediting the creators for their dances. Epic happily partners with entertainment companies and even the NFL for sure to be lucrative in-game promotional crossovers, so it’s tough to say something like this would be out of place in the game.

Given the complexity of copyright law and the fact that none of the individuals holds copyright of their respective dances, it’s not clear if any of the latest legal action against Fortnite’s creators will hold water. Still, given its deep pockets — Epic just raised a $1.25 billion round two months ago — settling a handful of small lawsuits over the game’s well-loved dance emotes is a small price to pay for Fortnite’s colossal success.

News Source = techcrunch.com

Uber back in court in UK to argue against workers rights for drivers

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Uber is back in court in the UK today and tomorrow to try once again to overturn a  two year old employment tribunal ruling that judged a group of Uber drivers to be workers — meaning they’re entitled to workers benefits such as holiday pay, paid rest breaks and the national minimum wage.

Uber lost its first appeal against the ruling last year but has said it will continue to appeal.

On Sunday the GMB Union calculated that Uber drivers in the UK are £18,000 out of pocket as a result of the company continuing to fight the rights judgement, rather than paying the additional entitlements.

In a statement Sue Harris, GMB legal director, said: “These figures lay bare the human cost of Uber continuing to refuse to accept the ruling of the courts. While the company are wasting money losing appeal after appeal, their drivers are up to £18,000 out of pocket for the last two years alone.

“That’s thousands of drivers struggling to pay their rent, or feed their families. It’s time Uber admits defeat and pays up. The company needs to stop wasting money dragging its lost cause through the courts. Instead, Uber should do the decent thing and give drivers the rights to which those courts have already said they are legally entitled.”

Uber has previously suggested it would cost its UK business “tens of millions” of pounds if it reclassified the circa 50,000 ‘self-employed’ drivers operating on its platform as Limb (b) workers — an existing employment categorization that sits between ‘self-employed’ and ‘worker’.

The GMB Union notes that in Uber London’s latest accounts, released last week, it warns shareholders that it faces “numerous legal and regulatory risks”, both pertaining to existing regulations and the development of new regulations, as well as as a result of “claims and litigation” related to its classification of drivers as independent contractors.

This year the UK government has signalled a high level intent to bolster rights for more types of workers.

In February it announced a package of labor market reforms intended to respond to changing working patterns — saying it would expand workers rights for millions of workers and touting tighter enforcement.

Though it continues to consult on the issue, to shape the detail of its response, and it’s likely the Uber litigation will feed into government thinking given the timing of the case.

This month Uber drivers in the UK staged a one-day strike over pay and conditions, piling more pressure on the issue and calling for the company to immediately apply the tribunal judgement and implement employment conditions that respect worker rights for drivers.

Uber responded by pointing to changes it has made since the original tribunal ruling — including expanding a free insurance product it now offers to drivers and couriers across Europe.

It also claims to have changed how it takes feedback from drivers, and flagged a number of tweaks to its app it claims help drivers access data insights to boost their earnings.

We’ve reached out to Uber for comment on the latest stage of its appeal. Update: A company spokesperson sent us the following statement:

Almost all taxi and private hire drivers have been self-employed for decades, long before our app existed. A recent Oxford University study found that drivers make more than the London Living Wage and want to keep the freedom to choose if, when and where they drive. If drivers were classed as workers they would inevitably lose some of the freedom and flexibility that comes with being their own boss.

We believe the Employment Appeal Tribunal last year fundamentally misunderstood how we operate. For example, they relied on the assertion that drivers are required to take 80% of trips sent to them when logged into the app, which has never been the case in the UK.

Over the last two years we’ve made many changes to give drivers even more control over how they use the app, alongside more security through sickness, maternity and paternity protections. We’ll keep listening to drivers and introduce further improvements.

The Independent Workers’ Union of Great Britain (IWGB), which is defending the tribunal judgement at the hearings this week, backing former Uber drivers and co-claimants Yaseen Aslam and James Farrar, who brought the original case, has organized a demonstration to coincide with the hearing.

It says it expects hundreds of “precarious workers” — i.e. people who labor in the so-called ‘gig economy’ — to march through London in solidarity with the drivers and demand an end to all work that undermines workers rights.

The march is also being backed by the left-leaning UK political organization Momentum, the Communications Workers Union, War On Want, Bakers Food and Allied Workers Union and United Voices of the World, among others.

A parallel event is being held in Glasgow to coincide with the hearing.

Commenting in a statement, IWGB United Private Hire Drivers branch chair and Uber case co-claimant Farrar said: “It’s two years since we beat Uber at the Employment Tribunal, yet minicab drivers all over the UK are still waiting for justice, while Uber exhausts endless appeals. As the government ignores this mounting crisis, it’s been left to workers to fix this broken system and bring rogue bosses to account. If anything gives me hope, it is the rising tide of precarious workers that are organising and demanding a fair deal.”

IWGB general secretary Jason Moyer Lee added: “Precarious workers are getting hammered in this country. The protest is the articulation of the legitimate grievance of those who are being denied the basic rights and dignities at work that we should all be able to take for granted.”

News Source = techcrunch.com

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