posted about 3 hours ago on techdirt
Once upon a time, Netflix was among the fiercest supporters of net neutrality, and a consistent critic of arbitrary and unnecessary broadband usage caps. So much so that the company effectively became public enemy number one at many of the nation's broadband providers, resulting in a steady stream of bizarre policy and lobbying attacks on the company. Netflix, we were told by a rotating crop of ISP-tied mouthpieces (even by current FCC boss Ajit Pai), was a dirty freeloader, and a nasty company responsible for most of the internet's ills. But as Netflix has grown larger and more powerful, the company's positions on usage caps and net neutrality has, well, softened. Back in January, a company letter to shareholders downplayed the looming death of net neutrality, suggesting that Netflix was so popular -- any attack on it would be seppuku: "Weakening of US net neutrality laws, should that occur, is unlikely to materially affect our domestic margins or service quality because we are now popular enough with consumers to keep our relationships with ISPs stable." Of course, what Netflix actually meant was that it's now powerful and wealthy enough to go toe to toe with giant ISPs on interconnection and other disputes. The problem: while Netflix may now be strong enough to survive a world without net neutrality, that's not necessarily going to be true for the next Netflix. Smaller companies will absolutely be hampered by the rising spread of usage caps and zero rating, which as we've long noted are increasingly being used as anti-competitive weapons against them. And the current government has made it very clear that's perfectly ok. Netflix CEO Reed Hastings reiterated the company's confidence on this subject in a meeting with reporters last week at the company's headquarters, where he insisted the company was "not too worried" about the government's plans to gut net neutrality: "Netflix CEO Reed Hastings says he’s “not too worried” about what will happen if new FCC chairman Ajit Pai eliminates the Title II regulations that have guaranteed a neutral internet experience for US consumers in recent years. Speaking to a group of journalists at Netflix’s headquarters in Los Gatos, California, earlier today, Hastings said he believes “the culture around net neutrality is very strong. The expectations of consumers are very strong. So even if the formal framework gets weakened,” he continued, “we don’t see a big risk actualizing, because consumers know they’re entitled to getting all of the web services." Hastings believes that Netflix is just so damn popular, consumer outrage will magically keep ISPs on their best behavior even if Pai, Trump and the GOP kill all telecom consumer protections. But as we saw during recent interconnection feuds, ISPs have become clever at dodging blame for the congestion they intentionally caused in order to kill settlement-free peering and extract additional funds from transit and content companies (detailed in the New York AG's recent lawsuit against Charter). You'd be hard pressed to think that 10% of the population actually understood what was happening during these feuds. That said, consumers, startups and people that care about a healthy, open internet should worry. The new FCC has already killed an inquiry into zero rating, which means incumbent ISPs are now free to use caps to hamper competing streaming services. And with AT&T, Verizon, Comcast and Charter now effectively dictating government internet policy, you can be sure broadband competition issues will be placed on a far back burner -- resulting in a steady expansion of usage caps and overage fees. And Congress is cooking up one or more bills that will not only kill net neutrality and consumer privacy protections, but gut regulatory oversight of one of the least competitive industries in America. But gosh, now that Netflix is large and successful (with 94 million subscribers worldwide), this is all just something that's apparently going to work itself out. We've tracked a similar trajectory at Google, where net neutrality principles slowly but surely disappeared as the company jumped into the wireless industry. With net neutrality's two biggest and wealthiest proponents no longer worried about net neutrality now that they've got theirs, the idea of an internet free of incumbent ISP control needs all the help it can damn well get. Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
The Santa Maria (CA) Police Department -- like the FBI -- is in the fake news business. Last February, it issued a bogus press release via online service Nixle, falsely stating it had apprehended two suspects. This was picked up by local news sources and redistributed. It wasn't until until December that the ruse was uncovered. The Sun -- which hadn't released a story on the bogus press release -- discovered this fact in a pile of court documents. (h/t Dave Maass) Police allege in the court documents that members of the local MS-13 gang planned to kill the two men, referred to in court documents as John Doe No. 1 and John Doe No. 2. Police had gleaned this information from telephone surveillance on several suspects in the case, according to the documents. The police acted by putting out the false press release, expecting local news media to report the fake story and the MS-13 gang members to stop pursuing the John Does. The police chief confirmed the PD had issued the fake press release knowingly. He also remained unapologetic, stating that misleading journalists served a greater good: keeping two gang targets alive. He has yet to remove the bogus press release from Nixle, even though it violates the service's terms, which forbid knowingly publishing "fraudulent, deceptive, or misleading communications." [S]anta Maria Police Chief Ralph Martin wasn’t aware what the terms of service were or that they existed when initially asked by the Sun. At first, Martin said he’d more than likely take the press release down, but then he changed his mind. “I don’t have any plans to take it down,” Martin said, adding that he has yet to be notified by Nixle. “If it violates their policy then it’s Nixle’s policy to contact us.” The department has also refused to apologize to the news services it misled, most of which rightly feel this diminishes the public's trust in its public servants. According to Chief Martin, it was a "moral and ethical" decision to lie to the public. He also says this is the first time in his 40 years as a cop he's seen this sort of thing done. Of course, it's now much more difficult to take this assertion at face value, especially when Martin's refusing to remove fake news from a site after it's already served its purpose. This may be the first time the Santa Maria PD has deceived the press, but it's certainly not the first time it's deployed fake "facts" as a means to an end. The Sun reported earlier the PD had -- on multiple occasions -- presented fake sworn affidavits and statements to criminal suspects in hopes of provoking confessions or securing plea bargains. Police reports obtained by the Sun verified [Jesus] Quevedo’s claims, showing SMPD Gang Task Force officers had indeed presented Quevedo with a search warrant issued by Judge Beebe on April 15, with a false document included. “I had previously prepared a ruse affidavit,” [Detective David] Cohen wrote in his report in Quevedo’s case. “The ruse affidavit contained details of two crimes for which Quevedo was being investigated. Many of the details were true, and many were fabricated.” The ruse highlights several actual unsolved robberies, including a home invasion in Santa Ynez, where an eyewitness describes a man matching Quevedo’s characteristics fleeing the scene. A mugshot of a smiling Quevedo is circled with a “100%” marked over his name, indicating the victim of the invasion also had positively identified Quevedo as the robber. Other fabrications include an anonymous neighbor seeing a car matching Quevedo’s parked outside the scene of one of the robberies, as well as statements from confidential citizens alleging Quevedo’s strong ties to the Mexican Mafia. Other convicts have contacted The Sun claiming to have been subjected to the same ruse. Those claims are probably as trustworthy as the police chief's, but evidence appears to show this ruse has not only been used more than once, but that the District Attorney's office feels it's a perfectly legal strategy. Asked to comment, the Santa Maria Police Department referred all questions regarding Quevedo’s case—and the ruse tactic in general—to Chief Deputy District Attorney Steve Foley and Deputy District Attorney Bramsen. Bramsen did not return phone calls from the Sun, though Foley confirmed Cohen had met with Bramsen before employing the ruse. “Our office was consulted by the police department on this particular ruse,” Foley said. “The police did in fact say, ‘Would this be a legal ruse?’ and [Bramsen] researched it and felt, based on her legal research, it was a legal ruse.” The DA's office clarified it had simply said the fake affidavit plan was legally in the clear, but it had never told the PD to follow through with it… as if there were really any distance between those two stances. The office maintains this is all part of its "ethical" prosecution of lawbreakers. It also said, ridiculously, that attempting to trick people into confessions or plea agreements with fake witness statements and fake evidence isn't actually an attempt to trick people into confessions or plea agreements. In a written opposition to the motion, the DA argued there was nothing improper about the use of the ruse affidavit in Quevedo’s case, because prosecutors and police never intended the document to be used in court, either to obtain a search warrant or to coerce a false confession. Ah. The PD was only interested in coercing a true confession. I guess that makes it ok. Or not. The judge presiding over Quevado's case didn't find it quite as legally-acceptable as the DA did. While the judge stopped short of issuing any sanctions against Cohen, Parker, or the DA’s office, she ruled all evidence obtained through the use of the ruse affidavit would be inadmissible in Quevedo’s case. “The police can do a lot of things,” she said. “But when they use a false affidavit, intending for it to be believed as true, with the judiciary’s signature, that conduct cannot be tolerated.” If the PD feels the ends justify the deceptive means, how exactly does it justify making its own evidence inadmissible? If the "end" is to get criminals off the street, how does undercutting the prosecution achieve that end? The public isn't just being deceived by fake press releases. It's being deceived about the effectiveness of its law enforcement agencies, who are willing to damage their own cases in their hurry to file charges and commence prosecutions. Permalink | Comments | Email This Story

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posted about 11 hours ago on techdirt
People tend to have a hard time discussing the two mathematical concepts of zero and infinity. It's not hard to understand why this is, of course, with reality being a material thing and both the lack of and the infinite amount of something being somewhat foreign. And this manifests itself in all sorts of disciplines, from cosmology to spirituality to physics. And, of course, economics, particularly in the digital age where many of the axioms surrounding physicality no longer apply to digitized goods. Zero and infinity play heavy roles here, both in the discussion of free content (zero) and the concept of digital and freely copyable goods as a resource (infinity). The economic nature of these concepts have long vexed established industries, even as some of us have pointed out how efficient and useful infinite digital goods can be if properly applied. Industry rebuttals to the economics of all of this have mostly amounted to facile derision in the form of slandering younger generations who either "just want free stuff" or "want stuff they cannot afford." Neither makes much sense, with both claims easily disproven given statistics demonstrating how much more is spent by "pirates" than those who don't pirate content. The truth is that, while the average citizen likely can't speak eloquently about the economic laws at work for digital goods, they certainly can understand them intuitively. And this can be shown with piracy statistics for eBooks, which a recent study shows that eBook pirates tend to be both older and relatively affluent. A new study, commissioned by anti-piracy company Digimarc and conducted by Nielsen, aims to shine light on eBook piracy. It was presented yesterday at The London Book Fair and aims to better understand how eBook piracy affects revenue and how publishers can prevent it. In previous studies, it has been younger downloaders that have grabbed much of the attention, and this one is no different. Digimarc reveals that 41% of all adult pirates are aged between 18 and 29 but perhaps surprisingly, 47% fall into the 30 to 44-year-old bracket. At this point, things tail off very quickly, as the remaining ~13% are aged 45 or up. There are also some surprises when it comes to pirates’ income. Cost is often cited as a factor when justifying downloading for free, and this study has similar findings. In this case, however, richer persons are generally more likely they are to download. With nearly half of eBook pirates falling into their thirties or forties, and the study later showing that two-thirds of eBook pirates have household incomes of at least $30k per year, and almost a third having incomes in six figures, this simply isn't a situation that can be explained away by pointing at young poor people. So, why do older, more affluent people pirate eBooks? I would argue it's instinctual. Most of these people may not even be able to explain the term "marginal cost", but by instinct they feel that something that costs nothing to reproduce ought not to require payment. Their brains do this calculation behind the scenes, not thinking about the sunk costs of initial production, nor the sweat-equity spent by the content creator. Marginal cost is the term used by economists to explain pricing laws that emerged organically through human instinct. This isn't to say that unauthorized downloading is somehow acceptable when eBook publishers wish against it. But it certainly does suggest that any eBook publisher, or publisher of other digital content, has a very high hill which it must roll its old business model wagon up to make it work. Human intuition is one hell of a thing to overcome. So much so, in fact, that it's likely the better strategy is to figure out how to make that intuition and infinite digital goods a boon rather than the enemy. Now, it's worth noting that the price of eBooks was still a factor for those responding in the study, but not nearly the factor that convenience played. Given the majority of pirates’ ability to pay, it comes as no surprise that convenience is the number one driver for people obtaining content from torrent sites. Cost still takes the number two position but a not inconsiderable four out of ten still believe that online retailers are lacking when it comes to content availability. In other words, a huge amount of eBook piracy could likely be done away with immediately, if the content cost closer to what the buyer instinctually believes it ought to be and the content was at least as readily available for purchase as it is through pirated means. That really can't be that hard for eBook publishers to understand. Permalink | Comments | Email This Story

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posted about 17 hours ago on techdirt
Perhaps the thinnest skinned politician on the planet -- Recip "Gollum" Erdogan -- is at it again. His legacy of injunctions, legal threats, and even copyright abuse continues. The latest to draw Erdogan's wrath is Switzerland, which, to be fair, has drawn his wrath in the past. The repeat "offender" was targeted by Erdogan in 2016 for an art exhibit he didn't care for. This wouldn't have happened if Switzerland didn't have a law on the books forbidding insulting foreign leaders. Erdogan has the uncanny ability to sniff out foreign laws that might help him remain un-insulted, but so far has only managed to Streisand himself into infamy. This time around, it's a Swiss tabloid earning the Turkish president's disdain/threats of prosecution. The Zurich-based tabloid Blick made Turkish television on Monday night when the country’s president Recep Tayyip Erdogan held up an edition of the Swiss paper with the front-page headline ‘Vote no to Erdogan’s dictatorship’. The article in German and Turkish called for Turks in Switzerland to vote no in the April 16th referendum which, if successful, would give more powers to Erdogan. Seems like a logical stance. Erdogan has abused every power he's been given. There's really no reason for other countries to give him more powers to abuse, even indirectly. The Turkish government went full Godwin in response, comparing this editorial's call for a "no" vote to Nazism. Obviously, the Turkish government saw no irony in immediately demanding the Switzerland government do something about the tabloid's "insults." It has sent four requests for "legal aid," presumably in hopes of getting the tabloid's writers/publishers locked up for saying bad things about the Turkish president. The Swiss government has responded, telling Turkey to stick to bullying its own citizens. On Thursday a spokesman from the Swiss justice office, Folco Galli, told broadcaster SRF that four requests lodged by Turkey in mid January had been rejected, citing free speech. Switzerland would only be obliged to cooperate if the act concerned was considered a crime in both Turkey and Switzerland, he said. Speaking to the SRF Galli said: “If similar criticisms had been expressed in Switzerland against a federal councillor in the course of a political debate, they would of course have been tolerated as an expression of free speech.” Which is precisely why the pending referendum should be shot down. The tabloid has perfectly demonstrated why such a law should not be instituted in Switzerland. If it had already been law, Switzerland's government might have been more inclined to assist Erdogan in pushing the editorial's writer. The statement by the Swiss official is a healthy affirmation of Swiss citizens' protections, but is likely unintelligible to those it's directed at. "Tolerance" and "free speech" are concepts the Turkish president is completely unfamiliar with. As is pointed out in the article, the Turkish government is currently pursuing 2,000 domestic prosecutions over "insulting" social media posts and cartoons. Apparently Erdogan feels his persecution success at home should translate easily abroad. Fortunately for citizens in other countries, it doesn't. Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
In a ruling this week that will cheer up patent trolls, the Supreme Court said patent owners can lie in wait for years before suing. This will allow trolls to sit around while others independently develop and build technology. The troll can then jump out from under the bridge and demand payment for work it had nothing to do with. The 7-1 decision arrives in a case called SCA Hygiene v. First Quality Baby Products. This case involves a patent on adult diapers but has a much broader reach. The court considered whether the legal doctrine of "laches" applies in patent cases. Laches is a principle that penalizes a rightsholder who "sleeps on their rights" by waiting a long time to file a lawsuit after learning of a possible infringement. It protects those that would be harmed by the assertion of rights after a lengthy delay. For example, laches would work against a patent owner that saw an infringing product emerge yet waited a decade to sue, after significant investment of time and resources had been put into the product. The ruling in SCA follows a similar decision in Petrella v. MGM holding that laches is not available as a defense in copyright cases. The Supreme Court has generally rejected "patent exceptionalism" and has often reversed the Federal Circuit for creating special rules for patent law. So this week's decision was not especially surprising. In our view, however, there were compelling historical and policy arguments for retaining a laches defense in patent law. Together with Public Knowledge, EFF filed an amicus brief at the Supreme Court explaining the many ways that companies accused of patent infringement can be harmed if the patent owner sleeps on its rights. For example, evidence relevant to invalidity can disappear. This is especially true for software and Internet-related patents. In his dissent, Justice Breyer cited our brief and explained: [T]he passage of time may well harm patent defendants who wish to show a patent invalid by raising defenses of anticipation, obviousness, or insufficiency. These kinds of defenses can depend upon contemporaneous evidence that may be lost over time, and they arise far more frequently in patent cases than any of their counterparts do in copyright cases. The seven justices in the majority suggested that patent defendants might be able to assert "equitable estoppel" instead of laches. But that would likely require showing that the patent owner somehow encouraged the defendant to infringe. In most cases, especially patent troll cases, the defendant has never even heard of the patent or the patent owner before receiving a demand. This means estoppel is unlikely to be much help. Ultimately, today's ruling is a victory for trolls who would wait in the shadows for years before using an obscure patent to tax those who do the hard work of bringing products and services to market. Republished from the EFF's Deeplinks Blog Permalink | Comments | Email This Story

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posted about 20 hours ago on techdirt
For decades now the FCC has been an expert at imposing utterly meaningless merger conditions. Usually these conditions are proposed by the companies' themselves, knowing full well these "demands" are utterly hollow -- and FCC punishment for ignoring them will be virtually non-existent. The end result has been a rotating tap dance of merger conditions that sound good upon superficial press inspection, but wind up being little more than hot air. It's a symbiotic relationship where as the telecom sector consolidates (often at the cost of less competition) the FCC gets to pretend it's not selling consumer welfare down river. But last year something weird happened. When Charter proposed its $79 billion acquisition of Time Warner Cable and Bright House Networks, former FCC boss Tom Wheeler brought in net neutrality advocate Marvin Ammori to help hammer out conditions that wound up actually being meaningful. Under the deal, Charter was banned from imposing usage caps, engaging in interconnection shenanigans with content providers like Netflix, or violating net neutrality (even if the rules themselves were killed) for a period of seven years. Charter was also required to expand broadband to 2 million additional locations. Not too surprisingly, broadband providers and the new incumbent-cozy FCC are getting right to work trying to eliminate those conditions entirely. New FCC boss Ajit Pai is circulating an order that would kill requirements that Charter overbuild into competing ISP territories, something demanded recently in a letter to the FCC by the American Cable Association. As is kind of telecom sector status quo, smaller cable companies say they'll take their investment ball and go home if the threat of additional, regulator-mandated competition isn't eliminated: "To respond to growing consumer demand for increased bandwidth, all of us have been planning to upgrade the electronics on our networks and to deploy more fiber closer to customer locations over the next five years (the lifespan of the overbuild condition). Many of us have been planning to extend our networks to serve communities adjacent to our current service territories. But we have been forced to reconsider, scale back, or halt these investments in the wake of the Commission’s order." Of course that's not how competition works, and companies believing they get to choose when you upgrade their networks speaks to the level of competition these companies already see. Elsewhere, broadband industry-funded think tanks like the Competitive Enterprise Institute (CEI) are also pushing Pai to kill off the usage cap ban, trotting out the long-standing industry claim that usage caps are all about fairness: "...the Order requires New Charter to refrain from imposing “data caps” or setting "usage-based prices" for its residential broadband Internet access services for seven years after the transaction closes. Given that “the record makes clear that online video places enormous demands upon the networks of Charter and Time Warner Cable and increases their capital costs,” Commissioner Pai asked a simple question in his dissent: “Who should bear those costs?" Because the Order concludes that “all customers must do so equally,” New Charter’s natural response to this condition “will be to increase prices on all consumers in order to amortize the cost of serving a bandwidth-hungry few." Granted if you've been paying attention to the usage cap debate, you realize this is a stale canard. Industry executives have acknowledged that caps have nothing to do with network management, and aren't an effective way to police network congestion anyway. As any earnings report highlights, caps aren't a financial necessity either, since flat-rate broadband has been incredibly profitable for the industry for years. What usage caps are is a price hike imposed on uncompetitive markets. Granted they also help ISPs protect their TV revenues from the rise of internet video by penalizing competing streaming services, while letting the incumbent's own services sail through without penalty (aka zero rating). Anybody believing that imposing caps and overage fees on all users is really about making sure a few people "pay their fair share" should steer clear of swampland and bridge salesmen. Granted Charter's latest merger has still proven harmful for consumers, who say the company has frozen broadband upgrades and raised rates dramatically in the wake of the megamerger. If consumer welfare were truly a U.S. telecom regulatory criteria the deal likely would have never been approved at all, but the cap condition specifically at least kept things from being arguably worse in the face of limited competition. If the FCC's looking to give a middle finger to the millions of customers impacted by this deal, killing the conditions -- and requiring these users pay even more money for the same service -- is a fantastic way to do so. Permalink | Comments | Email This Story

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posted about 22 hours ago on techdirt
The Third Circuit Court of Appeals has ruled that passwords can be compelled with All Writs Orders. Handing down a decision in the case of Francis Rawls, a former Philadelphia police officer facing child porn charges, the court finds the order lawful, but doesn't go quite as far as to determine whether compelling password production implicates the Fifth Amendment. The Third Circuit doesn't touch the Fifth Amendment implications because Rawls failed to preserve them. Even if we could assess the Fifth Amendment decision of the Magistrate Judge, our review would be limited to plain error. See United States v. Schwartz, 446 F.2d 571, 576 (3d Cir. 1971) (applying plain error review to unpreserved claim of violation of privilege against self-incrimination). Doe’s arguments fail under this deferential standard of review. Orin Kerr highlights a footnote from the order [PDF], which shows even if the court had addressed the Fifth Amendment implications, it likely would have sided with government based on its interpretation of the government's "foregone conclusion" argument. It is important to note that we are not concluding that the Government’s knowledge of the content of the devices is necessarily the correct focus of the “foregone conclusion” inquiry in the context of a compelled decryption order. Instead, a very sound argument can be made that the foregone conclusion doctrine properly focuses on whether the Government already knows the testimony that is implicit in the act of production. In this case, the fact known to the government that is implicit in the act of providing the password for the devices is “I, John Doe, know the password for these devices.” Based upon the testimony presented at the contempt proceeding, that fact is a foregone conclusion. However, because our review is limited to plain error, and no plain error was committed by the District Court in finding that the Government established that the contents of the encrypted hard drives are known to it, we need not decide here that the inquiry can be limited to the question of whether Doe’s knowledge of the password itself is sufficient to support application of the foregone conclusion doctrine. This interpretation limits what the government has to assert to avail itself of this argument -- one that's sure to become more common as default encryption comes to more devices and communications services. As applied here, the government only has to show the defendant knows the password. It doesn't have to make assertions about what it believes will be found once the device/account is unlocked. (That being said, the DHS performed a forensic scan of the one device it could access -- the MacBook Pro -- and found data and photos suggesting the locked external drives contained more child pornography.) The court also addresses the All Writs Act being used to compel password production in service to a search warrant that still can't be fully executed. Doe asserts that New York Telephone should not apply because the All Writs Act order in that case compelled a third party to assist in the execution of that warrant, and not the target of the government investigation. The Supreme Court explained, however, that the Act extends to anyone “in a position to frustrate the implementation of a court order or the proper administration of justice” as long as there are “appropriate circumstances” for doing so. Id. at 174. Here, as in New York Telephone: (1) Doe is not “far removed from the underlying controversy;” (2) “compliance with [the Decryption Order] require[s] minimal effort;” and (3) “without [Doe’s] assistance there is no conceivable way in which the [search warrant] authorized by the District Court could [be] successfully accomplished.” Id. at 174-175. Accordingly, the Magistrate Judge did not plainly err in issuing the Decryption Order. This shows just how malleable the New York Telephone decision is. This 1977 Supreme Court decision paved the way for widespread pen register use. Since that point, it has been used by the DOJ to argue for the lawfulness of encryption-defeating All Writs Orders (as in the San Bernardino iPhone case), as well as by criminal defendants arguing these same orders are unlawful. In Apple's case, the government argued the company was not "far removed" from the controversy, despite it being only the manufacturer of the phone. Apple's distance as a manufacturer provided its own argument against the DOJ's application of this Supreme Court decision. In this case, the key words are "third party": Rawls is arguing this isn't nearly the same thing as forcing a phone company to comply with pen register orders. This is a "first party" situation where compliance may mean producing evidence against yourself for use in a criminal trial. The government likes the New York Telephone decision for its Fourth Amendment leeway. The defendant here is arguing this isn't even a Fourth Amendment issue. As the court points out, it can't really assess the Fifth Amendment argument -- not when it hasn't been preserved for appeal. But even so, the court says law enforcement already has enough evidence to proceed with prosecution. If so, the only reason the government's pressing the issue -- which has resulted in Rawls being jailed indefinitely for contempt of court -- is that it wants a precedential ruling clearly establishing the lawfulness of compelling the production of passwords. The court doesn't quite reach that point, but the ruling here seems to suggest it will be easier (in this circuit at least) to throw people in jail for refusing to hand over passwords, since all the government is really being forced to establish is that it knows the defendant can unlock the targeted devices/accounts. Permalink | Comments | Email This Story

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posted about 23 hours ago on techdirt
Back in 2012, a federal court ruled US websites were "places of public accommodation." The ruling (overturned on appeal) came in a lawsuit brought against Netflix by the National Association of the Deaf. It seems like an obvious conclusion -- more people get their information, news, and entertainment from the web than other sources. But the ruling had plenty of adverse consequences, especially for smaller, less profitable purveyors of online content. Professor Eric Goldman -- who analyzes a ton of internet-related lawsuits -- had this to say at the time: If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I'm not creative enough to think of all the implications, but I can assure you that ADA plaintiffs' lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels. The payoff of this lawsuit -- along with the federal government's requirements for making websites "accessible" -- is finally here. A California university is placing 20,000 audio and video lectures behind a registration wall, making them less accessible to everybody, rather than risk being sued for not making them "accessible" to those with disabilities. The University of California, Berkeley, will cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities. Today, the content is available to the public on YouTube, iTunes U and the university’s webcast.berkeley site. On March 15, the university will begin removing the more than 20,000 audio and video files from those platforms -- a process that will take three to five months -- and require users sign in with University of California credentials to view or listen to them. This move has more to do with the DOJ's ADA stance, although that stance roughly aligns with the court's 2012 findings. The DOJ is named specifically in the university's statements as being the impetus for it locking up its past content. Future releases will be issued with an eye on compliance, but past lectures are gone for good unless you happen to have the right credentials to view them. Then there's this part of the university's statement, which hints it may not all be related to ADA-compliance. Finally, moving our content behind authentication allows us to better protect instructor intellectual property from ‘pirates’ who have reused content for personal profit without consent. I'm not sure how much of a problem Berkeley has had with content piracy. This statement could mean it's rampant or could simply mean it's something the university's lawyers have mentioned in passing as a concern. Either way, the move is related to control. What the public can't see, it can't complain about. And that keeps the DOJ at bay, even if it does little for the general public. However, the piracy part of the statement might become relevant in the near future. It also shows the university's spokesperson isn't aware most of the lectures can't be "pirated." LBRY.io has already mirrored the 20,000 files due for removal, and it notes its move is compliant with the terms governing the sharing and distribution of the recorded lectures. The vast majority of the lectures are licensed under a Creative Commons license that allows attributed, non-commercial redistribution. The price for this content has been set to free and all LBRY metadata attributes it to UC Berkeley. The university may have a point about "personal profit," but simply hosting lectures at a site that sells stuff or makes money from ads isn't the same thing as "reusing content for personal profit." And the license the university uses doesn't require permission beforehand. In the end, what we have is another regulation failure, where best laid plans become self-sabotaging debacles. Attempting to make the web universally-usable is an impossibility. No one's going out of their way to cut the deaf or blind out of the international conversation, but demanding all US sites be compliant with the DOJ's requirements is like demanding all books be made available in Braille and audio format. It's something only a few publishers can afford to do. Even fewer can afford to engage in a legal battle with the federal government over a lack of compliance, which means increased enforcement efforts will only result in less available content. That does nothing to level the playing field for Americans with disabilities. Permalink | Comments | Email This Story

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Back in 2012, a federal court ruled US websites were "places of public accommodation." The ruling (overturned on appeal) came in a lawsuit brought against Netflix by the National Association of the Deaf. It seems like an obvious conclusion -- more people get their information, news, and entertainment from the web than other sources. But the ruling had plenty of adverse consequences, especially for smaller, less profitable purveyors of online content. Professor Eric Goldman -- who analyzes a ton of internet-related lawsuits -- had this to say at the time: If websites must comply with the ADA, all hell will break loose. Could YouTube be obligated to close-caption videos on the site? (This case seems to leave that door open.) Could every website using Flash have to redesign their sites for browsers that read the screen? I'm not creative enough to think of all the implications, but I can assure you that ADA plaintiffs' lawyers will have a long checklist of items worth suing over. Big companies may be able to afford the compliance and litigation costs, but the entry costs for new market participants could easily reach prohibitive levels. The payoff of this lawsuit -- along with the federal government's requirements for making websites "accessible" -- is finally here. A California university is placing 20,000 audio and video lectures behind a registration wall, making them less accessible to everybody, rather than risk being sued for not making them "accessible" to those with disabilities. The University of California, Berkeley, will cut off public access to tens of thousands of video lectures and podcasts in response to a U.S. Justice Department order that it make the educational content accessible to people with disabilities. Today, the content is available to the public on YouTube, iTunes U and the university’s webcast.berkeley site. On March 15, the university will begin removing the more than 20,000 audio and video files from those platforms -- a process that will take three to five months -- and require users sign in with University of California credentials to view or listen to them. This move has more to do with the DOJ's ADA* accessibility stance, although that stance roughly aligns with the court's 2012 findings. The DOJ is named specifically in the university's statements as being the impetus for it locking up its past content. Future releases will be issued with an eye on compliance, but past lectures are gone for good unless you happen to have the right credentials to view them. *[This acutally stems from the FCC, not the ADA. Nate Hoffelder has more details in the comments. UPDATE: never mind.] Then there's this part of the university's statement, which hints it may not all be related to accessibility-compliance. Finally, moving our content behind authentication allows us to better protect instructor intellectual property from ‘pirates’ who have reused content for personal profit without consent. I'm not sure how much of a problem Berkeley has had with content piracy. This statement could mean it's rampant or could simply mean it's something the university's lawyers have mentioned in passing as a concern. Either way, the move is related to control. What the public can't see, it can't complain about. And that keeps the DOJ at bay, even if it does little for the general public. However, the piracy part of the statement might become relevant in the near future. It also shows the university's spokesperson isn't aware most of the lectures can't be "pirated." LBRY.io has already mirrored the 20,000 files due for removal, and it notes its move is compliant with the terms governing the sharing and distribution of the recorded lectures. The vast majority of the lectures are licensed under a Creative Commons license that allows attributed, non-commercial redistribution. The price for this content has been set to free and all LBRY metadata attributes it to UC Berkeley. The university may have a point about "personal profit," but simply hosting lectures at a site that sells stuff or makes money from ads isn't the same thing as "reusing content for personal profit." And the license the university uses doesn't require permission beforehand. In the end, what we have is another regulation failure, where best laid plans become self-sabotaging debacles. Attempting to make the web universally-usable is an impossibility. No one's going out of their way to cut the deaf or blind out of the international conversation, but demanding all US sites be compliant with the DOJ's requirements is like demanding all books be made available in Braille and audio format. It's something only a few publishers can afford to do. Even fewer can afford to engage in a legal battle with the federal government over a lack of compliance, which means increased enforcement efforts will only result in less available content. That does nothing to level the playing field for Americans with disabilities. Permalink | Comments | Email This Story

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The $60 Porta Memory 3 Pronged Flash Drive has a built-in sliding connector for Lightning, micro USB, and USB 2.0 ports, making it the single flash drive for all of your devices. Easily transfer your files between devices or use it as backup for your smartphones, tablets, and computers. Plus, with the free app you can view everything on the stick without plugging it in. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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For many years, we've written about the craziness of the so-called "border search exception" to the 4th Amendment, in which the US government has insisted that the 4th Amendment doesn't apply at the border, and thus it's allowed to search people at the border. The initial reasoning was -- more or less -- that at the border, you're not yet in the country, and thus the 4th Amendment doesn't apply yet. But that's expanded over time -- especially in the digital age. Perhaps, back when people just had clothes/books/whatever in their luggage, you could understand the rationale for allowing a search, but today, when people carry laptops and handheld electronic devices that basically store their whole lives, the situation is a lot scarier. Unfortunately, (with just a few small exceptions) the courts have simply taken the historical ability to search luggage at the border and expanded it to cover electronic devices. Then, things got even more ridiculous, when Homeland Security decided that anywhere that's within 100 miles of the border could be "close enough" to count as a "border search," making the "border search exception" apply. That's... messed up. There's now a case in the 4th Circuit that shows how this is expanding even further, and on Monday we joined with the Cause of Action Institute and the Committee for Justice to file an amicus brief in the case of Hamza Kolsuz (the ACLU has also filed an amicus brief). Kolsuz had his phone searched under a "border search exception" -- but here's the thing: He was in the process of leaving the country, not entering it. A regular bag search turned up handgun parts in his checked luggage, for which he was arrested. After that, his iPhone was seized and searched without a warrant. Remember, just a few years ago, the Supreme Court ruled that you need a warrant to search a mobile phone in the Riley case. But here there was none. Law enforcement tried to get around this by claiming that since Kolsuz was at the airport, the search of his phone should count as a border search exception. But that's crazy. Unfortunately, the district court accepted this reasoning -- and now the case is on appeal. We signed onto this amicus brief for a variety of reasons, but a big one is that, as journalists, protecting sources and documents is important. We shouldn't be subject to warrantless searches of our work every time we just happen to be in an airport. As the brief notes: The District Court erred in denying Mr. Kolsuz's Motion to Suppress and this Court should reverse and remand for a new trial. First, while the border search doctrine constitutes a narrow exception to the otherwise unequivocal Fourth Amendment requirement that the government obtain a warrant to conduct a search, the governmental interests that justify this narrow border search exception were not in play when the Defendant's smartphone was searched incident to his arrest, and this exception therefore cannot be used to justify the search here. The fact that Mr. Kolsuz was arrested and his phone seized at an airport--the equivalent of a border--does not change this case from one that fits squarely within Riley v. California... to one that is suddenly part of a narrow exception of cases justified by the sovereign's customs enforcement rules. The Court should see this search for what it was: a month-long, detailed, forensic search to gather evidence against Mr. Kolsuz for use in a trial on the very charges for which he was arrested. Since the search here was not actually a border search, the border search exception cannot save it. Second, the United States essentially seeks a mechanical application of a Fourth Amendment exception even where the interests that justify the exception were not implicated in this case. The dangers of such a mechanical application are readily apparent. People traveling into and out of the United States routinely cross with smartphones or computers that contain the equivalent of "every piece of mail... every picture... [and] every book" a person has.... These individuals include journalists, lawyers, and business travelers with confidential information typically safeguarded under American jurisprudence. Nevertheless, customs agents purport to have unfettered access to the contents of electronic devices carried by such individuals, without any reasonable suspicion or probable cause of a crime, simply by the fact that the individual wishes to leave or enter the United States. This is not the application of the border search exception that the Supreme Court had in mind when it outlined its narrow purview. Of course, many of us still find the very idea of a "border search exception" to be nonsensical in the first place. But if it's there, the idea that it could be abused in this manner is even more problematic and concerning. Hopefully the 4th Circuit corrects this injustice. We're proud to sign onto this brief, and hope the court listens. Permalink | Comments | Email This Story

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The broadband, advertising and marketing industries are absolutely thrilled about plans to kill the FCC's new broadband privacy protections for consumers. Passed last year, the rules simply require that ISPs provide working opt-out tools, go to reasonable lengths to protect data and notify users of hack attacks, and be transparent about what data they collect and who they sell to. The rules also require that ISPs obtain opt-in consent (public enemy number one for marketing folks) for the collection and sale of more personal data like financial details or browsing histories. Given that empowered, informed consumers cost the marketing and broadband industry billions, they've been waging a massive campaign to have the rules killed -- and they're about to succeed. New FCC boss Ajit Pai quickly and covertly set about killing the rules' hacking-related requirements. Meanwhile Senator Jeff Flake and Rep. Marsha Blackburn have gotten quickly to work introducing Congressional Review Act resolutions that would kill the rest of the new rules before they're even allowed to take effect. Needless to say, the marketing industry is pretty excited. In a joint statement by numerous ad policy and lobbying groups including the Association of National Advertisers and American Advertising Federation, the ad industry went so far as to try and claim that protecting consumer privacy was somehow "anti-consumer": "Without prompt action in Congress or at the FCC, the FCC's regulations would break with well-accepted and functioning industry practices, chilling innovation and hurting the consumers the regulation was supposed to protect. The Congressional Review Act was designed as a common-sense check on anti-consumer regulations like this, and we are pleased that Senator Flake, Congressman Blackburn, and their colleagues are using it to such positive effect. We strongly urge Congress to support and quickly act on these Joint Resolutions." Granted the ad and broadband industries would have you forget why the FCC crafted these "anti-consumer" rules in the first place. They were only pushed after Verizon was caught covertly modifying user wireless packets in order to track users around the internet without telling them. The FCC was similarly motivated by the fact that AT&T and Comcast were starting to show interest in charging users a premium for privacy, and the fact that companies like CableONE were proudly crowing about how they use financial data to provide worse customer service to bad credit customers. The lack of last mile competition ensures that these companies face no organic, market-based punishment for these behaviors. And now regulatory oversight will be hamstrung as well, much to the joy of large ISPs looking to jump more heavily into the Millennial advertising business. ISP-loyal lawmakers are selling the push by claiming that eliminating FCC oversight -- and leaving privacy in the hands of the FTC only -- will result in "more efficient" and "symmetrical" regulations in line with what Google and Facebook face (ignoring the vast, obvious differences in the internet content and broadband industries). That's something former FCC boss (and dingo) Tom Wheeler called a "fraud," specifically designed to saddle the already overextended FTC with work ISPs know will fall through the cracks. The EFF was also quick to recently debunk this and other claims over at its website: "Unfortunately, recent court decisions have limited the FTC’s ability to enforce privacy rules on ISPs. Plus, relying on each state to enforce its own laws to protect privacy would create a terrible patchwork of mismatched regulations. You’d think with all the uncertainty and bureaucracy that would create, the ISPs would actually prefer clear, bright-line rules at the national level. But you’d be wrong: at this point, they’ll say anything to block the FCC’s privacy-protective rules." The EFF has penned a second post discussing all of the fun things ISPs have done -- and will do -- with neither regulators nor free market competition keeping them in line. These efforts are being rushed through under the belief that bigger debates (like the Affordable Care Act) will overshadow how quickly Congress mindlessly rushed to do the bidding of companies like AT&T, Comcast, Verizon and Charter. Permalink | Comments | Email This Story

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As Techdirt has reported, the election of Donald Trump has turned the world of US trade deals upside-down. The US officially pulled out of TPP, although some still hope it might come back in some form. TAFTA/TTIP seems to be on ice, but Trump's choice for US trade representative has just said he is open to resuming negotiations, so it's not clear what might happen there (or with TISA). Against that confusing backdrop, the European Union has been quick to emphasize that it is in favor of trade deals, and is keen to sign as many as possible, presumably hoping to fill the economic and political vacuum left by the US. One of the negotiations that has been going on in the background is for a major trade agreement between the EU and Japan. It began back in March 2013, but has garnered little attention, as people focused on the more imminent threats of TPP, TTIP, CETA and TISA. That's just changed, thanks in part to a joint statement signed by dozens of civil societies in both the EU and Japan, who write: the European Union and the Japanese government have been negotiating a deep and comprehensive trade agreement which would cover a third of the world's GDP. The 18th round of negotiations took place in Tokyo in December 2016, and whilst the negotiations might come to a close soon, on the EU side, the mandate given to the negotiators is still not public, and on the Japanese side, secrecy is total. … Neither most parliamentarians in EU member states and in Japan, nor European and Japanese civil society organisations and trade unions know the content of the discussions. Nor have they seen draft chapters or been consulted. We condemn this opacity. The other factor that has suddenly put the spotlight on JEFTA -- the Japan-EU Free Trade Agreement -- is the first leak of some of the negotiating documents, to the Austrian site Attac. Unfortunately, we don't have the actual pages yet, only a summary (original in German). That broadly confirms the information contained in one of the few detailed documents on the EU's official JEFTA site, the 314-page Trade Sustainability Impact Assessment (pdf) prepared for the European Commission in 2016, and largely overlooked. Although that document is a study, and therefore speculative, it does contain some important information. For example, like most other EU agreements, JEFTA will include a corporate sovereignty chapter, also known as investor-state dispute settlement (ISDS). As Techdirt has described, the EU is trying to establish a new, possibly global court that would hear all such cases, called the Investment Court System. It still only exists on paper, but that didn't stop it being part of the CETA deal. The JEFTA Trade Sustainability Impact Assessment has this to say on the matter: Whether or not the final outcome is based on the Commission's new Investment Court System (ICS), Japanese business tend to comply with the regulations of the host countries rather engage in investor-state disputes. There is only one known case of Japanese (indirect) involvement in an ISDS case, via a Dutch subsidiary operating in Czech Republic. That is, Japanese companies prefer to use the national court systems of the countries they have invested in when there is some kind of legal dispute. This is precisely how things should work. And yet the EU is pushing for the inclusion of a completely parallel legal system, only available to investors, that would allow domestic courts to be by-passed and overruled. Here's why it's so keen on the idea: exclusion of ISDS from the EU-Japan negotiations would be contrary to the emerging norm in comprehensive trade and investment agreements. Japan does not see the inclusion of ISDS as a difficulty. The inclusion of ISDS is not part of an "emerging norm", but purely a matter of EU policy -- dogma, even: the European Commission wants to make it a part of all trade deals, and so aims to include it in JEFTA, even though Japanese companies are perfectly happy to use national courts. The Sustainability report admits that including an investment chapter will have little effect: Investment flows (in both directions) are likely to be driven by an improved business environment and better profit margins -- which the investment chapter alone has only a moderate impact on. The economics effects are symmetrical, but moderate. Even though Japanese companies might not use ISDS, there's a big downside to including it. Following CETA, it is likely that JEFTA will allow investors from other countries -- for example, multinational corporations with significant subsidiaries in Japan -- to use the chapter to make claims against the EU. Including corporate sovereignty unnecessarily, just to set a precedent, could come back to haunt the European Commission in the future if major awards are made as a result. The Sustainability report also touches on the issue of copyright, pointing out: Another central issue in the EU-Japan FTA negotiations is the lack of protection for the use of sound recordings for public performance in Japan. The EU will doubtless try to force Japan to rectify that omission. Similarly, the basic term of copyright protection varies between the EU and Japan: 70 years for the former, 50 years for the latter. Again, the European Commission will want to turn the copyright ratchet to extend Japan's term to match the EU's. Finally, it's worth noting that the EU's official study contains an estimate of the benefits that could flow from JEFTA: The long-term GDP increase for the EU is estimated to +0.76% and +0.29% for Japan under a symmetrical scenario. It's important to emphasize that this is "long-term": what this means is that the GDP could be higher by the percentages quoted after ten or more years. The average extra GDP growth per year is therefore an even smaller 0.08% and 0.03% for the EU and Japan respectively. That is, like TTIP and TPP, the predicted benefits that will accrue from JEFTA are likely to be very small, while the risks and possible losses in terms of ISDS fines, say, have been ignored completely. But the worst aspect of JEFTA is not that it's probably not worth the effort, but that the EU and Japan have done everything they can to prevent both the public and even politicians from finding out what a bad deal is being negotiated in their name. After the humiliating defeat of the Anti-Counterfeiting Trade Agreement (ACTA), and the more recent failures of TPP and TTIP, you would have thought that the governments involved would have realized that this kind of secret dealmaking just isn't acceptable any more, but apparently, they haven't. Fortunately, JEFTA is finally out in the open, which means it can begin to be subjected to long-overdue scrutiny and democratic input. What we need now is for the EU to release negotiating texts as it did for TTIP. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Techdirt has just written about ResearchGate, which claims to offer access to 100 million academic papers. However, as we wrote, there's an issue about whether a significant proportion of those articles are in fact unauthorized copies, for example uploaded by the authors but in contravention of the agreement they signed with publishers. The same legal issues plague the well-known Sci-Hub site, which may deter some from using it. But as further evidence of how the demand for access to millions of academic papers still locked away is driving technical innovation, there's a new option, called Unpaywall, which is available as a pre-release add-on for Chrome (Firefox is promised later), and is free. It aims to provide access to every paper that's freely available to read in an authorized version. Here's how it works: Millions of researchers are currently uploading their own fulltext PDFs to preprint servers and institutional repositories worldwide, making them free for anyone to read. But there was no easy way to find them as we browsed. So we made one! Eventually, we hope tools like Unpaywall will nurture the transition to fully open access scholarly publishing, by closing the gap between readers and freely-available fulltext. … We gather content from thousands of open-access repositories worldwide. To help us, we rely on some fantastic open data services, especially PubMed Central, the DOAJ, Crossref (particulary their license info), DataCite, and BASE. After we put all this data together, we in turn make it open for reuse via the oaDOI API: a free, fast, and very scalable way to leverage our data and infrastructure to support your own projects. Once the add-on has been installed, it is easy to use. When you come across an academic paper of interest as you browse the Web, you go to its home page, usually on a publisher's site. A small icon on the right-hand side of the browser indicates whether the full text is freely available somewhere in an authorized version. If it is, you just click on the icon, and it appears in your browser. The team behind Unpaywall claims that its system manages to find free authorized versions of articles for about half the requests made to it. Unpaywall does the right things when it comes to privacy -- it doesn't ask for, track or store any personal information -- and it's also open source, so you can inspect its code and adapt it for your own projects. In that and other respects, Unpaywall is like the Open Access Button, which has been around since 2013. The Open Access Button offers some other important features. For example, if the service is unable to locate a freely-available, authorized, full-text version of an article, it will contact the author on your behalf, and ask for a copy (obviously, you need to provide your email address for this): We're tired of requests for research, especially data, going unanswered. Instead we're designing a transparent and effective request system to help make more research accessible. If we are unable to get you access, you can create a request quickly with the Open Access Button. We'll contact the author on your behalf and others can support your request. By holding researchers accountable for sharing their research articles and data, and providing them pathways to share their research, we will make more research legally and freely available. You can also access the underlying data, when it exists, and request it if it has not been released. That's an increasingly important aspect, since it allows researchers to verify results and to build on existing work. Projects like Unpaywall and the Open Access Button are good examples of continuing efforts to liberate all the knowledge contained in academic research papers, much of which is still locked away behind paywalls charging outrageously expensive fees. Until everything is released as open access, they will remain valuable and necessary tools. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Another "ag gag" law is in the works in Arkansas. These bills are brought under the pretense of safety -- both for the person supposedly breaking them, as well as for the employees of the entity "trespassed" upon. The unspoken aim of these laws is to prevent whistleblowing, and they often spring into existence after someone has exposed horrible practices at local businesses -- in most cases, the mistreatment of animals. The other consequence of most of these laws -- unintended or not -- is to deter employees from speaking up about questionable business practices, as there often is no exception carved out for employees of the companies protected by these laws. Kaleigh Rogers of Vice reports another ag gag bill has passed the Arkansas state House and is on its way to a Senate vote. And once again, the bill's wording would deter whistleblowing and make journalistic efforts a civil violation. Arkansas senators are considering a bill that would allow private businesses to sue whistleblowers that expose abuse or wrongdoing. The bill has already passed the house, but not without receiving plenty of dissent from Republican lawmakers, free speech proponents, and animal rights groups. The law would make it legal for businesses to sue anybody who goes onto a business's private property and, among other acts, "records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer." This include undercover investigators, but also employees: unless an employee is just doing his or her job, any recordings or information that exposes wrongdoing could be grounds for a lawsuit. In between all the wording [PDF] that would be expected in a normal trespassing law (unauthorized access, theft, damage to property) are clauses that make exposing wrongdoing grounds for a lawsuit. This section makes the law's deterrent to whistleblowing explicit. Records images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer. That's combined with an earlier phrase that applies the law to employees, not just muckraking interlopers. An act that exceeds a person's authority to enter a nonpublic area of commercial property includes an employee who knowingly enters a nonpublic area of commercial property for a reason other than a bona fide intent of seeking or holding employment or doing business with the employer and without authorization… Excepted from the law are all sorts of government agencies, which are apparently welcome to damage places of employment at will. In addition to damages and fees assessed as the result of a civil action, the state has the option to hit violators (which includes anyone who "directs or assists" the whistleblower/journalist) with $5,000/per day in fines. The representatives pushing this bill are pretending it's about safety. Representative Aaron Pilkington (R), who voted in favor of the bill, said the language is intended to prevent people from trespassing and potentially putting themselves in danger. "It's just about going into places you're not allowed to be in," Pilkington told me. "If you work in a daycare center and there are problems going on, you have every right to whistleblow on that. But if you hear there's a daycare three towns over where something's going on and you're sneaking in there with a video camera, that's not right." That's a really weird -- and really dangerous -- assertion to make. Violations should be unseen and unheard, apparently… unless they happen to occur at your place of employment. And even then, the wording of the bill contradicts the protections Pilkington alludes to. The bill specifically forbids employees from entering areas not directly-related to their job description and making any sort of recording that "damages" their employer. Whistleblowing always results in some sort of "damage," even if that damage is purely reputational and can be repaired by swift corrective action. The only reason to pass a bill like this (rather than use existing trespassing laws to punish unauthorized entry) is to deter reporting and whistleblowing. It serves no purpose otherwise. Supporters of the bill know this, though they'll never publicly acknowledge this fact. If it passes, it should expect an immediate constitutional challenge. The bill does too much damage to accountability and protected speech to survive a second read by the courts. Permalink | Comments | Email This Story

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In December, we wrote about how (thanks to EFF's lawyering) mobile phone provider CREDO Mobile was finally (after many years) allowed to reveal the National Security Letter (NSL) it had received from the DOJ back in 2013. As per usual, the NSL had a complete gag order, barring the company from admitting it had received such a letter. Then, just about a month later, Cloudflare was similarly ungagged over an NSL it had received in 2013 as well. On Wednesday, EFF will be back in the 9th Circuit appeals court arguing that these NSLs are First Amendment violations, but for the first time, it can actually name those two companies as its clients. Even though those NSLs were finally allowed to become public in the last few months, the case itself still did not include their names, until Monday, when the court was told by the DOJ, that since the FBI had concluded the various investigations, and because it had enabled each of the companies to reveal those specific NSLs they had received, that it no longer required the plaintiffs' names in the case to be sealed. Of course, we don't know how many other NSLs are still gagged (possibly even with these two companies). Indeed, the EFF's announcement certainly hints at more: On Wednesday, EFF Staff Attorney Andrew Crocker will tell the United States Court of Appeals for the Ninth Circuit that these gags are unconstitutional restrictions on CREDO and Cloudflare’s free speech and that the FBI’s belated decision to lift some of the gags only underscores why judicial oversight is needed in every case. The gag orders barred these companies from participating in discussion and debate about government use of NSLs—even as Congress was debating changes to the NSL statute in 2015. Hopefully, the appeals court recognizes the serious First Amendment issues at play here. Permalink | Comments | Email This Story

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Always-on, voice-operated assistants are on the rise, and most of the industry seems to have agreed that Amazon's Alexa is at the top of the pack. Podcast host Dennis Yang was and is an early adopter of these devices, so this week he's brought along Alexa, Google Now and Siri as guests for a discussion about the future of this technology. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he'd had a seizure on the spot. As we noted at the time, we're no fans of Eichenwald. In our opinion, he's an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he's no fan of us either. Still, the lawsuit was interesting. At a first pass, the very idea that a "tweet" could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It's not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle "@jew_goldstein"). But, then again, perhaps we didn't expect that the troll would do this: That, is an image of John Rivello holding up his own driver's license. And it's attached to the very iCloud account that was attached the iPhone that he used, via an "untraceable" Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It's quite fascinating. The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter -- which also turned up a bunch of direct messages that are kinda useful to prosecutors: If you can't see those, it's a series of Direct Messages from the "@jew_goldstein" account, saying things like that Eichenwald "deserves to have his liver pecked out by a pack of emus." "I hope this sends him into a seizure." "Spammed this at [Eichenwald] let's see if he dies." "I know he has epilepsy." Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law -- 18 USC 2261A that includes this: Whoever-- (2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that— (A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or (B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A) That whole "intent to kill, injure, harass, intimidate" part is helped along with direct tweets saying something like "I hope this sends him into a seizure" and "let's see if he dies." Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn't via a search warrant -- it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info... but also noted that it was using a specific model iPhone. So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that's where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this: If you can't see it, that's the flashing gif that @jew_goldstein sent Eichenwald and it says "You Deserve A Seizure For Your Posts." This was the same one that Eichenwald's wife found on Kurt's computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello's iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he'd died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll. So that's a lot of pretty damning evidence. As lawyer Keith Lee notes, it's something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn't take that many and didn't seem to realize how many other ways there were to track him down. I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet -- but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here -- and it's a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm -- which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place. Of course, I'll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee's post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn't surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn't just annoying someone with a meme -- it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don't do that. Either way, we now have an actual indictment for a crime of assault with a deadly tweet. If you can't see that, it's the grand jury referral, noting that the offense is "aggravated assault with a deadly weapon" and it notes that: ... said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault. We live in such strange times. Permalink | Comments | Email This Story

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posted 2 days ago on techdirt
It's been a very long time since I last flew somewhere without my laptop. I actually am more productive than usual on planes, and I tend to use flying time to just focus in and get a ton of stuff done. I can't even begin to explain how ridiculously frustrating it would be to find out that I wouldn't be allowed to bring a laptop onto a plane, and yet it appears that our new Homeland Security overlords have put in place new restrictions on flights to the US from certain countries in the middle east barring tablets and laptops from the cabin (apparently no American carriers are impacted -- just foreign ones). Passengers are being told to check such things (which is odd, since normally you're not supposed to check lithium ion batteries...). Flights from 13 countries are being hit with this, and Homeland Security won't give any further explanation beyond the usual "national security." And, just this morning, the UK announced that it would be doing the same thing. Homeland Security has been hinting that this is due to some sort of specific threat -- so it sounds like there's intelligence around a planned attack using such a device. Perhaps then the extra precaution is sensible. But, once again, this feels like a form of overkill security theater: inconveniencing basically everyone (to extreme levels) based on the slight possibility of a very small number of bad actors. There has to be a better way. Every time one of these new restrictions is put in place, it not only completely inconveniences people, but it shows people that if they somehow convince the scaredy cats at DHS of some new type of threat, they can inconvenience people even more. It's almost as if each additional inconvenience is impacting things way more than an actual exploding laptop or whatever might. Of course, it should be no surprise that former TSA boss Kip Hawley, is now running around arguing that this is no big deal and Wired is happy to tell everyone to calm down and just "buy a book." But that's kind of crazy -- especially for people who have important or sensitive information on their laptops and don't want to hand them off to baggage carriers with a history of snooping through bags and stealing expensive electronics. Also, since this is limited to just a few Middle Eastern airports, it's not hard to think that if there are terrorists planning something, they'll just head to different airports instead. Yes, I'm sure that someone saw something that they thought was a threat, and it's reasonable to put in place plans that try to minimize some of that risk. But it has to take into account the cost side too, and there has to be a better way to deal with it than such a blanket ban impacting so many people. Permalink | Comments | Email This Story

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If you've ever wanted to design your own mobile games, the Intro to Unity 3D Game Development Bundle is a good place to start. This $20 bundle features 7 courses that will teach you to use Unity 3D to develop your ultimate mobile game. You'll learn how to develop and build a multi-player platform, a 3D shooter game, interesting and engaging characters, and more about basic coding. There are courses that focus on how to monetize your game, including how to build an in-game store, a coin management system, a video rewards program and more. After completing the 21.5 hours of training, you'll be ready to learn more to take your game to the next level. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Because abusing the DMCA process only goes so far, some reputation management entities have begun exploiting an inattentive legal system to push lawsuits past judges. In some cases, these suits have featured fake plaintiffs filing bogus libel lawsuits against fake defendants and using a fake affidavit to fraudulently obtain court orders requiring Google to delist URLs. Those engaged in this fraudulent behavior aren't likely to get away with it for much longer. Paul Alan Levy and Eugene Volokh managed to track down the person behind one set of bogus lawsuits and get the presiding judge to take a closer look at the bogus documents he was being handed. Pissed Consumer has also been reporting on others using the same MO, and has headed to court to get these suits examined and tossed. The end of line for supposed reputation manager Richart Ruddie came at the hands of Volokh and Levy, with the judge granting discovery to the defendant after being apprised of the apparently fraudulent filings. Now that Richart Ruddie of Profile Defenders has been exposed, it looks as though he's given up the fight. Levy reports Ruddie has settled anti-SLAPP claims brought against him and is paying restitution for his reputation mismanagement. The deal has now been signed, the $71,000 settlement sum has been paid in full, and the settlement agreement filed with the court along with a proposed order under which the Judge Smith would retain jurisdiction to enforce Ruddie’s obligation to move to get the fraudulent state court orders lifted, as well as to ensure that the former customers (that is to say, Smith, Rescue One Financial, and Financial Rescue) cooperate in Ruddie’s efforts in that regard. Their cooperation will likely be needed because they, not Ruddie, were the plaintiffs in the state-court litigation and hence the motions to lift the orders will have to be made in the names of those parties companies. It appears at the moment that the threat of being dragged back into the Rhode Island anti-SLAPP litigation has been sufficient to induce the companies and Smith to allow counsel retained by Ruddie to proceed in their names to get the fraudulent order lifted. While that helps the defendant and partially takes care of Ruddie's liability (not to mention acts as a deterrent against future efforts of this sort), it doesn't do much to deter the other parties listed, who apparently knew Ruddie's courtroom efforts were shady and may have been fully complicit in the fraud. This settlement leaves them pretty much unscathed. There's still the possibility more fees are on their way from others involved in Ruddie's black hat SEO BS. But for now, it's all in Ruddie's name. Levy's post provides a ton of background info behind the settlement he just collected, including this wonderful paragraph, in which an opposing lawyer claims Levy has an "ethical" obligation to put the opposition's interests ahead of his own. Apparently, Hirschhorn [attorney for Richart Ruddie representing him for a criminal investigation brought by the state at the request of Judge Smith] was sharing some of the details of our negotiations, because when Rescue One [Ruddie's SEO client] lawyer Michael Mallow learned that I was still pursuing his client’s liability for an anti-SLAPP violation, he hit the roof. He demanded that I call him and, when I did, he began yelling into the telephone that it was my ethical responsibility to reach a complete settlement with Ruddie so that his client would not have to produce any documents. He brought Hirschhorn into the call and demanded that I give Hirschhorn a settlement number that included claims against his clients as well as Ruddie. When I explained that I did not have any basis to set a proposed compensatory damages figure because I had not completed a sufficient analysis to specify a number that I felt I could defend in litigation, Mallow said that this didn’t matter and that I should just make up a number so that there could be a settlement. Hirschhorn indicated that he would take a specific number with that disclaimer; when I articulated a number that was considerably higher than what Hirschhorn said he could get from his client, Mallow told me that it was possible that his own client might contribute to the settlement, but “if that happens you will never know.” That is, the deal would be structured to give his client deniability of any responsibility for the fraud. The whole post by Levy is amazing and should be read in its entirety to get a better grasp on the cast of characters in this courtroom charade. It initially appeared as though Ruddie's reputation management scheme consisted of filing bogus lawsuits without his SEO clients' knowledge. That no longer appears to be the case. At least a couple of his clients appear to have known exactly how this was being handled and had zero problem with participating in Ruddie's fraudulent filings. The settlement may be an attempt to staunch Ruddie's bleeding, but it's pretty difficult to pitch reputation management services when yours is swirling the drain. Permalink | Comments | Email This Story

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Despite the rise of heavily-hyped-but-highly-scattered gigabit deployments, the broadband industry is actually seeing less competition than ever before across huge swaths of the country. Once upon a time, broadband "competition" consisted of an equally matched telco going head to head with the incumbent cable provider (if you were lucky). These days, most phone companies lack the finances or competitive motivation to improve lagging DSL speeds across their footprints -- speeds that don't even meet the FCC's base definition of broadband (25 mbps). That's resulting in a growing monopoly for the nation's cable broadband providers, who have quietly been absolutely butchering phone companies over the last several years. Just take a look at the latest data from Leichtman Research, which notes that while cable broadband providers collectively added 2.7 million net additional high-speed Internet subscribers last year, phone companies collectively shed roughly 600,000 broadband users. That's the most net additions the cable sector has seen in any year since 2007. And the 122% 2016 net additions are a notable bump up from the 106% of net additions seen by cable providers in 2015, and 89% of net additions seen in 2014. It paints a rather clear picture of a broadband industry that, frankly, is even less competitive than public wisdom dictates (and most of us already knew it's one of the least competitive sectors in technology): In countless markets, phone companies like AT&T and Verizon are simply giving up on unwanted DSL users, quite happily driving them to cable via the one-two punch of price hikes or apathy (their focus now is more expensive wireless, and gobbling up various media companies). Elsewhere, smaller telcos (Windstream, Centurylink, Frontier) have saddled themselves with so much debt by gobbling up AT&T and Verizon's aging copper customers, they're incapable (or unwilling) to invest in necessary broadband upgrades en masse. Many of these companies quite simply don't even want to be in the residential broadband business, resulting in a palpable, active disdain by many of these phone companies for their own paying customers. The residential broadband industry simply isn't profitable enough, quickly enough for modern investors, so most of these companies have shifted their entire focus elsewhere. For smaller telcos like Windstream, it's gobbling up companies like Earthlink to expand a focus on enterprise customers. For AT&T and Verizon, it's gobbling up media empires in the quest to be millennial ad juggernauts. All of this is wonderful news for companies like Charter and Comcast. This reduction in overall competition is eroding the resistance to the rise of completely unnecessary and arbitrary usage caps, meaning broadband (and competing streaming) services are getting more expensive than ever before. And remember, most of these companies have written and successfully lobbied for state bills preventing your town or city from doing much about it. As icing on the cable cake, new Ajit Pai-run FCC has made it clear that nibbling these companies' earlobes is going to pass for regulatory policy for the foreseeable future. All of this tends to get overshadowed each time an ISP proudly announces the expansion of expensive gigabit broadband lines in highly-selective areas. But for the countless markets in the States, phone companies have effectively given up -- resigning consumers to at least a decade of higher prices and the cable industry's particular knack for atrocious customer service. Permalink | Comments | Email This Story

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Over the last few years, we've written a ton about "corporate sovereignty" provisions in trade agreements. Technically, these tend to be called "Investor State Dispute Settlement" or ISDS provisions, but I really believe that a decent part of the reason they're called something so boring is to stop people from paying attention to just how nefarious these provisions truly are. One of the reasons we first started paying attention to these provisions -- as they were showing up in agreements under negotiation, such as the TPP and TTIP -- was following a story involving the pharmaceutical giant Eli Lilly demanding $100 million from Canada for rejecting two of its patents. The issue was that Canada had rejected these two patents because the company couldn't prove that the patented drugs were actually useful. Eli Lilly claimed that Canada had no right to reject patents on that basis, arguing that it was a "dramatic" shift in how patents were reviewed, and thus it was "expropriating its property" and undermining the company's "expected future profits." Think about that for a second. By the time this case went to an actual tribunal, the amount that the company was demanding had ballooned from $100 million to $500 million. This battle has waged on for many years -- and for Eli Lilly, this was a huge deal. Management at the company basically bet the company on continuing to get new patents, and any hiccup -- even a rejection of patents for not being useful -- could be a disaster for the company. The company even pushed to get Canada slammed during diplomatic proceedings in the infamous Special 301 Report for the USTR for daring to reject its patents -- and the USTR complied. Well, it looks like all of that may have been for nothing. That's because Eli Lilly has lost entirely, and not only won't it be getting the $500 million it wanted, but it also has to pay Canada's $5 million in legal fees. You can read the final award here or down below. Of course, some may argue that this shows that the ISDS corporate sovereignty provisions work out fine in the end, with tribunals getting things right (even if that's not actually true in many cases), but just the fact that the Canadian government had to go through this massive and expensive process for many years just for rejecting two bad patents should show why ISDS provisions are such a problem. In the ruling, the tribunal even notes the Special 301 report that Eli Lilly worked so hard to have call out Canada's patenting practices, but more or less dismisses it, by noting that others, such as Mexico didn't complain similarly: The Tribunal has paid particular attention to the 2014 and 2015 editions of the Special 301 Report of the USTR. In these documents, USTR notes that the United States “has serious concerns about the lack of clarity and the impact of the heightened utility requirements for patents that Canadian courts have applied recently”. This comment cannot be dismissed outright as a lobbying effort by Claimant, as suggested by Respondent. However, the Special 301 Report stands alone in the record as a complaint regarding Canada’s utility doctrine from any other State, including Mexico, in the decade since the promise utility doctrine was allegedly adopted. For the Tribunal, that silence speaks louder than the single, brief criticism contained in the USTR’s Special 301 Report. In other words, sure, maybe it wasn't just because Eli Lilly heavily lobbied Congress and the USTR to attack Canada on this point, but the fact that no other country seems concerned with Canada's standards for denying patents, it certainly looks like this wasn't such a big deal. Also in the ruling, there's a focus on "expectations." Remember, a big part of Eli Lilly's claims was how this impacted its "expected" profits. But here, the tirbunal basically notes that just because Eli Lilly expected Canada to ignore its own law, it doesn't mean that it actually enforcing its own laws is some nefarious plot: The record shows that at the time Claimant made its investments, it was aware that Canadian patent law required patented inventions to be useful. Eli Lilly executives testified that they understood the Canadian utility requirement to be a low threshold. In fact, it appears that the utility of Strattera and Zyprexa in Canada was taken for granted within the company. Claimant expected its patents would not be invalidated for lack of utility. However, this perception cannot amount to a legitimate expectation. For the reasons stated above, the Tribunal has found that each of the three elements of the alleged promise utility doctrine had a foundation in Canadian law when Claimant’s patents were filed. At that time, although Claimant may not have been able to predict the precise trajectory of the law on utility, it should have, and could have, anticipated that the law would change over time as a function of judicial decision-making. The idea behind ISDS was to encourage investment in developing nations, where there was a fear that a sketchy government might seize a factory or something. But that's not a problem between Canada and the US, and Eli Lilly should have been able to put on its big boy pants and recognize that maybe, just maybe, Canada can reject some of its patents, and the company doesn't need to throw an international hizzy fit. Next time, rather than betting the company on patents, perhaps the company will start thinking about business models that don't require a complete lottery ticket. Permalink | Comments | Email This Story

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posted 3 days ago on techdirt
For far too many years, the video game industry struggled to assert its place as a true artform, one deserving of the kind of respect granted to movies, music, television, and literature. This has been a source of frustration to those of us who can recognize the powerful storytelling device that video games represent, as well as the way modern games contribute to art and social commentary. But by its nature as a relatively new medium, games have also struggled to preserve the industry's history in the way more widely and permanently disseminated artforms have accomplished. And that's where the gaming industry has taken a turn against its own artistic interests, often demonizing methods for preserving gaming history over intellectual property concerns. Emulators are the chief method at hand, where games that are ancient by gaming standards can be digitized and preserved for posterity, save for the threat of legal action over copyright infringement and the industry's attempts to stave off these useful tools. Like so many issues in the intellectual property world, it's not hard to understand the gaming industry's consternation. There's no doubt that many people use emulators simply to play games from old consoles and cabinets rather than pay for physical copies. Still, there's also no doubt that these same emulators work to preserve the artistic output in the gaming realm. This was most recently evidenced in two games that might never have seen the light of day again, save for emulators. The first is the discovery and release of Millennium Racer: Y2K Fighters, a previously completely unknown 2001 Dreamcast port of a 1999 PC racing game. The title was recently discovered intact on a Dreamcast development kit, altered a bit to get it into a playable state, and then released as both an emulatable ROM and a burnable disc image that will work in actual Dreamcast hardware...The second emulation-fueled release making the rounds recently is Primal Rage 2, the unreleased sequel to the popular prehistoric-themed, stop-motion arcade fighting game of the mid '90s. Only two prototype cabinets for the cancelled sequel are known to exist, and one of them has been playable at Illinois' sprawling Galloping Ghost arcade complex since 2014. The moment we agree that games like this are a form of art, we must also agree on the impetus to preserve that art. And once that's done, we can only conclude that these efforts to digitize the history of gaming in this manner have to be more important than any legal hurdles that exist in the form of copyright infringement or DMCA prohibitions on tinkering with them. The stated purpose of copyright seems to make this quite clear. What could be more important to promoting the arts than preserving art that could otherwise be at risk of total loss? Emulators and those that use and support them play a key role in this, one that goes beyond merely copying the game digitally to be played. While both of these games were technically accessible on their original hardware when they were discovered, it's only the ability to copy and emulate the software on other hardware (often with crucial software tweaks) that has made sure they'll be preserved and playable going forward. That kind of preservation doesn't just happen, either; remember that an estimated three-quarters of all silent films ever made have been lost to history. Thanks to emulation and a committed community of video game preservationists, that situation seems less likely to happen as the video game medium grows out of its youth. The future will judge the history of gaming by the actions of the present. If games are art, and they are, then efforts to preserve this art must be cheered on, not demonized. Permalink | Comments | Email This Story

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A couple of weeks ago, a federal judge in Utah decided prior restraint was the best way to handle a recently-filed defamation suit against Honest Mattress Reviews by Purple Innovations, makers of the Purple Mattress. Purple's lengthy filing contained numerous allegations of harm caused by Honest Mattress Reviews' extended commentary on the white plastic powder covering every mattress Purple ships. It also alleged HMR was just a front for site owner Ryan Monahan's brand management work with Purple's competitor, Ghostbed. Rather than give HMR a chance to respond, the judge decided the review site could publish nothing further about Purple or the lawsuit. It wasn't even allowed to refer to its previous rating of Purple's mattress. Honest Mattress Review didn't care much for this decision -- one it had been given no chance to contest. It immediately posted an article about the case and offered to comply with the letter of the order, but perhaps not its spirit. This temporary order commands that we take down all reviews, and even cease rating this company with a rating of “Poor.” Yes, indeed, we are no longer even permitted to rate this company as Poor. I guess we will change its rating to “💩.” [...] Do you trust a company that, rather than compete in the marketplace, decides that it will just try and sue negative reviews out of existence? Purple Innovations immediately returned to court, demanding it find HMR in contempt of its order, in particular pointing to the poo emoji and HMR's claims about the unconstitutionality of the order and Purple's alleged disingenuousness in filing the libel suit. That review has since been reinstated and given this header image. And HMR has published a long list of court documents it has filed in this case. This includes a motion to dissolve the restraining order and a preliminary examination of the powdery substance Purple claims is harmless and that HMR claims could be hazardous to purchasers' health. In the motion [PDF] to dissolve the order, attorney Marc Randazza points out that fashioning a libel lawsuit as a tortious interference lawsuit doesn't change the ultimate goal of the litigation: to silence criticism. The action is a quintessential SLAPP suit designed to suppress negative consumer journalism. Plaintiffs have cleverly attempted to disguise this defamation claim as a Lanham Act claim – presumably to ensure the availability of Federal Court jurisdiction and to try to side-step the clear case law that cuts against them in defamation actions. But, no matter how eloquently someone may call a “dog” a “chicken,” it will never lay eggs. And styling a specious defamation claim as a Lanham Act claim does not remove the underlying speech from the protections afforded by the First Amendment. He also points out that Purple's claims that the plastic packing dust is harmless haven't been supported by anything Purple's willing to let customers and competitors view. Instead, it's only made vague assertions about its safety. And those statements are ultimately meaningless when examined closely. Plaintiff sells mattresses that are made of a rubber honeycomb, which they then dust with a powder that they claim is made of plastic and has been shown to be polyethylene microspheres. In other words, someone who sleeps on these mattresses would be expected to inhale these microspheres. The Plaintiff claims that it is “non toxic” and “food grade” plastic – but this does not assuage the concerns. After all, a plastic fork is “food grade” and “non toxic” but you most certainly would not want to actually eat it. The same goes for what a person wants to put in their lungs. It was reasonable to be concerned about this “plastic powder” since (a) if the particles that make up this plastic “powder” are of a certain size, they will pass through the alveoli into the bloodstream; or (b) if they are a bit larger, they will simply lodge themselves inside the lungs. To support its claims, HMR put a Harvard Professor of Pathology to work. Dr. John Godleski's report [PDF] is far from complete at this point, but what's contained in his preliminary examination of the powder doesn't appear to agree with Purple's assertions of harmlessness. By Fourier Transformed Infrared spectroscopy (FTIR), the white powder particles were shown to be polyethylene, and the purple frame was found to be polyethylene-polypropylene copolymer. The foam portion of the mattress is still understudy, but has characteristics of butadiene, and may be a form of butadiene polymer. Polyethylene is a common plastic formed into many structures. As inhalable microspheres, these have the potential to cause respiratory irritation especially when inhaled in large numbers as shown in my laboratory (1- 4). In addition, polyethylene has been associated with allergy in the form of either asthma or contact dermatitis in sensitized individuals (5-7). Based on this assessment, it is important for consumers to be aware of the composition of this fine particulate matter in the mattress which may be released into the air and has the potential for the development of respiratory or dermal hypersensitivity in some individuals. Also included in the filed documents is an affidavit that undercuts Purple's claims about HMR's site owner being a competitor's "brand manager." This is central to Purple's Lanham Act claims -- the claims it's using to sidestep anti-SLAPP motions. The affidavit from the competitor (Ghostbed) notes HMR's site owner has never been directly employed by Ghostbed and that Ghostbed told him to stop referring to himself as its "brand manager" after noticing that statement on his Twitter profile. The judge presiding over the case appears to have been overwhelmed by the pile of documents landing on his desk. A short order [PDF] issued on the 15th shows what can happen when a normally adversarial process is allowed to be, you know, adversarial. For the reasons set forth in the parties’ briefing and at oral argument, the court finds a lack of “clear and unequivocal” support for a right to relief that is necessary for the entry of the “extraordinary remedy” of a preliminary injunction. Greater Yellowstone Coal v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003). As such, the court hereby grants Defendants’ motions to dissolve the Temporary Restraining Order (Dkt. No. 36), and denies Plaintiff’s oral Motion to convert the Temporary Restraining Order into a Preliminary Injunction. The court similarly denies Plaintiff’s Motion for Leave to Conduct Expedited Discovery (Dkt. No. 39) and Motion for Order to Show Cause Why Defendants Should not be Held in Contempt (Dkt. No. 17). The court further denies Defendants’ request for sanctions, finding that such sanctions are not warranted here. The restraining order is lifted and HMR's turd-laced post isn't in danger of being found contemptuous. The lawsuit should continue in a more constitutional fashion from this point forward. Permalink | Comments | Email This Story

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