Courts Agree That No One Should Have a Monopoly Over the Law. Congress Shouldn’t Change That

2 months ago

Some people just don’t know how to take a hint. For more than a decade, giant standards development organizations (SDOs) have been fighting in courts around the country, trying use copyright law to control access to other laws. They claim that that they own the copyright in the text of some of the most important regulations in the country – the codes that protect product, building and environmental safety--and that they have the right to control access to those laws. And they keep losing because, it turns out, from New York, to Missouri, to the District of Columbia, judges understand that this is an absurd and undemocratic proposition. 

They suffered their latest defeat in Pennsylvania, where  a district court held that UpCodes, a company that has created a database of building codes – like the National Electrical Code--can include codes incorporated by reference into law. ASTM, a private organization that coordinated the development of some of those codes, insists that it retains copyright in them even after they have been adopted into law. Some courts, including the Fifth Circuit Court of Appeals, have rejected that theory outright, holding that standards lose copyright protection when they are incorporated into law. Others, like the DC Circuit Court of Appeals in a case EFF defended on behalf of Public.Resource.Org, have held that whether or not the legal status of the standards changes once they are incorporated into law, posting them online is a lawful fair use. 

In this case, ASTM v. UpCodes, the court followed the latter path. Relying in large part on the DC Circuit’s decision, as well as an amicus brief EFF filed in support of UpCodes, the court held that providing access to the law (for free or subject to a subscription for “premium” access) was a lawful fair use. A key theme to the ruling is the public interest in accessing law: 

incorporation by reference creates serious notice and accountability problems when the law is only accessible to those who can afford to pay for it. … And there is significant evidence of the practical value of providing unfettered access to technical standards that have been incorporated into law. For example, journalists have explained that this access is essential to inform their news coverage; union members have explained that this access helps them advocate and negotiate for safe working conditions; and the NAACP has explained that this access helps citizens assert their legal rights and advocate for legal reforms.

We’ve seen similar rulings around the country, from California to New York to Missouri. Combined with two appellate rulings, these amount to a clear judicial consensus. And it turns out the sky has not fallen; SDOs continue to profit from their work, thanks in part to the volunteer labor of the experts who actually draft the standards and don’t do it for the royalties.  You would think the SDOs would learn their lesson, and turn their focus back to developing standards, not lawsuits.

Instead, SDOs are asking Congress to rewrite the Constitution and affirm that SDOs retain copyright in their standards no matter what a federal regulator does, as long as they make them available online. We know what that means because the SDOs have already created “reading rooms” for some of their standards, and they show us that the SDOs’ idea of “making available” is “making available as if it was 1999.” The texts are not searchable, cannot be printed, downloaded, highlighted, or bookmarked for later viewing, and cannot be magnified without becoming blurry. Cross-referencing and comparison is virtually impossible. Often, a reader can view only a portion of each page at a time and, upon zooming in, must scroll from right to left to read a single line of text. As if that wasn’t bad enough, these reading rooms are inaccessible to print-disabled people altogether.. 

It’s a bad bargain that would trade our fundamental due process rights in exchange for a pinky promise of highly restricted access to the law. But if Congress takes that step, it’s a comfort to know that we can take the fight back to the courts and trust that judges, if not legislators, understand why laws are facts, not property, and should be free for all to access, read, and share. 

Corynne McSherry

[B] 「死の商人おことわり!」 イスラエル企業出展の「国際航空宇宙展」に市民が抗議

2 months ago
航空宇宙分野に関わる国内外の企業が自社製品を展示する「国際航空宇宙展」が16日、東京ビッグサイト(江東区)で始まった。航空宇宙展では、昨秋以降、パレスチナ自治区ガザ地区で“ジェノサイド”を続けるイスラエルや、それを支援する米国の軍事企業などもブースを出展しており、一部では“武器見本市だ”と懸念する声も出ている。(藤ヶ谷魁)
日刊ベリタ

【JCJ8月集会③】第2シンポ 最後の砦としての平和憲法 久道 メディアに携わる責任問う 大森=鈴木 賀津彦<br /> 

2 months ago
 第2部のシンポジウムでは、『ラジオと戦争 放送人たちの「報国」』(NHK出版)の著者、大森淳郎さんと、若者の政治参加に積極的に取り組む若手弁護士、久道瑛未さんが加わり「軍拡の動きに、私たちはどう対応するか」をテーマに議論した。 大森さんは、1925年登場したラジオ放送に携わった人々が戦争の拡大をどう捉え、どう報じたのか、また報じなかったのかを、丁寧に検証したことを紹介。記者、ディレクター、アナウンサーなどの放送人たちが遺した証言や記録、NHKに遺された資料などから、戦時放送..
JCJ

EFF and IFPTE Local 20 Attain Labor Contract

2 months ago
First-Ever, Three-Year Pact Protects Workers’ Pay, Benefits, Working Conditions, and More

SAN FRANCISCO—Employees and management at the Electronic Frontier Foundation have achieved a first-ever labor contract, they jointly announced today.  EFF employees have joined the Engineers and Scientists of California Local 20, IFPTE.  

The EFF bargaining unit includes more than 60 non-management employees in teams across the organization’s program and administrative staff. The contract covers the usual scope of subjects including compensation; health insurance and other benefits; time off; working conditions; nondiscrimination, accommodation, and diversity; hiring; union rights; and more. 

"EFF is its people. From the moment that our staff decided to organize, we were supportive and approached these negotiations with a commitment to enshrining the best of our practices and adopting improvements through open and honest discussions,” EFF Executive Director Cindy Cohn said. “We are delighted that we were able to reach a contract that will ensure our team receives the wages, benefits, and protections they deserve as they continue to advance our mission of ensuring that technology supports freedom, justice and innovation for all people of the world.” 

“We’re pleased to have partnered with EFF management in crafting a contract that helps our colleagues thrive both at work and outside of work,” said Shirin Mori, a member of the EFF Workers Union negotiating team. “This contract is a testament to creative solutions to improve working conditions and benefits across the organization, while also safeguarding the things employees love about working at EFF. We deeply appreciate the positive working relationship with management in establishing a strong contract.” 

The three-year contract was ratified unanimously by EFF’s board of directors Sept. 18, and by 96 percent of the bargaining unit on Sept. 25. It is effective Oct. 1, 2024 through Sept. 30, 2027. 

EFF is the largest and oldest nonprofit defending civil liberties in the digital world. Founded in 1990, EFF champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development.  

The Engineers and Scientists of California Local 20, International Federation of Professional and Technical Engineers, is a democratic labor union representing more than 8,000 engineers, scientists, licensed health professionals, and attorneys at PG&E, Kaiser Permanente, the U.S. Environmental Protection Agency, Legal Aid at Work, numerous clinics and hospitals, and other employers throughout Northern California.  

For the contract: https://ifpte20.org/wp-content/uploads/2024/10/Electronic-Frontier-Foundation-2024-2027.pdf 

For more on IFPTE Local 20: https://ifpte20.org/ 

Josh Richman

Civil Rights Commission Pans Face Recognition Technology

2 months 1 week ago

In its recent report, Civil Rights Implications of Face Recognition Technology (FRT), the U.S. Commission on Civil Rights identified serious problems with the federal government’s use of face recognition technology, and in doing so recognized EFF’s expertise on this issue. The Commission focused its investigation on the Department of Justice (DOJ), the Department of Homeland Security (DHS), and the Department of Housing and Urban Development (HUD).

According to the report, the DOJ primarily uses FRT within the Federal Bureau of Investigation and U.S. Marshals Service to generate leads in criminal investigations. DHS uses it in cross-border criminal investigations and to identify travelers. And HUD implements FRT with surveillance cameras in some federally funded public housing. The report explores how federal training on FRT use in these departments is inadequate, identifies threats that FRT poses to civil rights, and proposes ways to mitigate those threats.

EFF supports a ban on government use of FRT and strict regulation of private use. In April of this year, we submitted comments to the Commission to voice these views. The Commission’s report quotes our comments explaining how FRT works, including the steps by which FRT uses a probe photo (the photo of the face that will be identified) to run an algorithmic search that matches the face within the probe photo to those in the comparison data set. Although EFF aims to promote a broader understanding of the technology behind FRT, our main purpose in submitting the comments was to sound the alarm about the many dangers the technology poses.

These disparities in accuracy are due in part to algorithmic bias.

The government should not use face recognition because it is too inaccurate to determine people’s rights and benefits, its inaccuracies impact people of color and members of the LGBTQ+ community at far higher rates, it threatens privacy, it chills expression, and it introduces information security risks. The report highlights many of the concerns that we've stated about privacy, accuracy (especially in the context of criminal investigations), and use by “inexperienced and inadequately trained operators.” The Commission also included data showing that face recognition is much more likely to reach a false positive (inaccurately matching two photos of different people) than a false negative (inaccurately failing to match two photos of the same person). According to the report, false positives are even more prevalent for Black people, people of East Asian descent, women, and older adults, thereby posing equal protection issues. These disparities in accuracy are due in part to algorithmic bias. Relatedly, photographs are often unable to accurately capture dark skinned people’s faces, which means that the initial inputs to the algorithm can themselves be unreliable. This poses serious problems in many contexts, but especially in criminal investigations, in which the stakes of an FRT misidentification are peoples’ lives and liberty.

The Commission recommends that Congress and agency chiefs enact better oversight and transparency rules. While EFF agrees with many of the Commission’s critiques, the technology poses grave threats to civil liberties, privacy, and security that require a more aggressive response. We will continue fighting to ban face recognition use by governments and to strictly regulate private use. You can join our About Face project to stop the technology from entering your community and encourage your representatives to ban federal use of FRT.

Emma Leeds Armstrong