posted about 2 hours ago on techdirt
As Techdirt has repeatedly pointed out, one of the most problematic aspects of the TAFTA/TTIP deal being negotiated between the US and the EU is the inclusion of a corporate sovereignty chapter -- officially known as "investor-state dispute settlement" (ISDS). Techdirt isn't the only one worried about it: no less a person than the EU's Trade Commissioner, Cecilia Malmström, said last year that she "shares" the concerns here. Her response was to draw up the new "ICS" -- "Investor Court System -- as an alternative. US interest in ICS is conspicuous by its absence, but Malmström keeps plugging away at the idea, evidently hoping to defuse European opposition to TTIP by getting rid of old-style corporate sovereignty. That plan has just received a huge setback in the form of an "Opinion on the establishment of an investment tribunal in TTIP". It comes from the German Magistrates Association, which Wikipedia describes as "the largest professional organization of judges and public prosecutors in Germany." So these are not a bunch of know-nothing hippie activists, but serious establishment figures with a deep knowledge of the law. Here's their basic position on Malmström's ICS, translated from the original German by TNI: The German Magistrates Association [DRB] rejects the proposal of the European Commission to establish an investment court within the framework of the Transatlantic Trade and Investment Partnership (TTIP). The DRB sees neither a legal basis nor a need for such a court. The clearly implied assumption in the proposal for an International Investment Court that the courts of the EU Member States fail to grant foreign investors effective judicial protection, lacks factual basis. Should the negotiating partners have identified weaknesses in this area in individual EU Member States, these should be taken up with the national legislature and clearly defined. It would then be up to the legislators and those responsible for the judiciary to provide remedy within the proven system of national and European legal protection. Only in this way can the full legal rights to which any law-seeking party in Germany and the European Union is entitled, be guaranteed. The creation of special courts for certain groups of litigants is the wrong way forward. The judges then spell out in more detail what they see as the problems with the idea, and they are pretty damning. First, they point out that the ICS would have power over the entire European Union and its member states, and that its decisions would be binding: The establishment of an ICS would oblige the European Union and the Member States, upon the conclusion of an agreement, to submit to the jurisdiction of an ICS and the application of certain international procedures chosen by the plaintiff. Presumably, the same would be true of the US and its state governments, which may be why the USTR is not hugely keen on the idea. Not content with undermining the EU's political system, ICS would do the same to the EU's judiciary too: an ICS would "deprive courts of Member States of their powers in relation to the interpretation and application of European Union law and the Court of its powers to reply, by preliminary ruling, to questions referred by those courts and, consequently, would alter the essential character of the powers which the Treaties confer on the institutions of the European Union and on the Member States and which are indispensable to the preservation of the very nature of European Union law" The German judges go on to repeat a point many others have made: that there is simply no need for any kind of ISDS or ICS system. Here's why: The Member States are all constitutional states, which provide and guarantee access to justice in all areas where the state has jurisdiction to all law-seeking parties. It is for the Member States to ensure access to justice for all and to ensure feasible access for foreign investors, by providing the courts with the relevant resources. Hence, the establishment of an ICS is the wrong way to guarantee legal certainty. Finally, the judges note that one of the claimed advantages of the ICS system over the current corporate sovereignty approach, judicial independence, is illusory: Neither the proposed procedure for the appointment of judges of the ICS nor their position meet the international requirements for the independence of courts. As such, the ICS emerges not as an international court, but rather as a permanent court of arbitration. In other words, Malmström is simply re-branding ISDS, and trying to put lipstick on a pig. This attack from a very unexpected quarter is a really devastating blow for the ICS idea. It will be hard for Malmström to claim with a straight face that, unlike the current corporate sovereignty system, ICS is a real court, with all the protections that ISDS lacks, because a large number of EU experts in this area have just stated unequivocally that it isn't. The judges' opinion makes it even more likely that the US will reject the ICS idea out of hand, not least because it can now simply point to the German Magistrates Association's analysis as proof that ICS doesn't do what Malmström says it does. That leaves the really interesting question: where does the EU's Trade Commissioner go from here? She can hardly return to the old-style ISDS for TAFTA/TTIP, since she has been busy rubbishing it in order to promote her new ICS idea. Moreover, this latest rejection comes at just the wrong time, since it is widely expected that corporate sovereignty will be one of the main items on the agenda for the next round of TAFTA/TTIP negotiations. Awkward. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 6 hours ago on techdirt
One of the biggest victories of the copyright maximalists was the successful adoption of the 1996 WIPO Copyright Treaty, implemented by the DMCA in the US, and the Copyright Directive in the EU. Its key innovation was to criminalize the circumvention of copyright protection mechanisms. That strengthens copyright enormously by introducing yet another level of legal lockdown, and thus yet another powerful weapon for copyright holders to wield against their customers. But as Techdirt has reported, the anti-circumvention laws are now being used to prevent people from exploring or modifying physical objects that they own. The DMCA's anti-circumvention rules not only strengthen an old monopoly -- copyright -- they create a new one. Because it is forbidden to circumvent protection measures, only the original manufacturer or approved agents can legally repair a device that employs such technologies. Motherboard has an interesting profile of efforts by the wider repair industry to dismantle that new monopoly before it spreads further and becomes accepted as the norm: Repair groups from across the industry announced that they have formed The Repair Coalition, a lobbying and advocacy group that will focus on reforming the Digital Millennium Copyright Act to preserve the “right to repair” anything from cell phones and computers to tractors, watches, refrigerators, and cars. It will also focus on passing state-level legislation that will require manufacturers to sell repair parts to independent repair shops and to consumers and will prevent them from artificially locking down their products to would-be repairers. The advocacy group is not exactly new, more of a re-branding and re-launching of "The Digital Right to Repair Coalition", which was formed in 2013. Its aims are ambitious: The Repair Coalition will primarily work at a federal level to repeal Section 1201 of the DMCA, which states that it's illegal to "circumvent a technological measure that effectively controls access to a work protected under [the DMCA]." Thus far, activists have tried to gain "exemptions" to this section -- it's why you're allowed to repair a John Deere tractor or a smartphone that has software in it. But the exemption process is grueling and has to be done every three years. Given the power of the industries that support Section 1201, it's hard to see it being repealed any time soon. However, the other part of the Repair Association's strategy looks more hopeful: On a state level, the group will push for laws such as one being proposed in New York that would require manufacturers to provide repair manuals and sell parts to anyone -- not just licensed repair people -- for their products. The thought is that, if enough states pass similar legislation, it will become burdensome for manufacturers to continue along with the status quo. At some point, it will become easier to simply allow people to fix the things they own. As software is routinely added to yet more categories of everyday physical objects, so the issue of the repair monopoly created as a by-product of the DMCA will become more pressing. It's good that there is now an advocacy group focussed on solving this problem. Let's hope it succeeds. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 13 hours ago on techdirt
People often joke about how bad they are at cooking that they can't even boil water, but the process of boiling water is actually so ubiquitous and important that figuring out how to do it more efficiently is a significant challenge. We've mentioned some materials and designs that can help speed up the boiling process before, so here are a couple more cool ways to vaporize liquids. More efficient fractional distillation can separate alcohol from water using nanoparticles. Dissolved nanoparticles of gold-silica can absorb light and heat up just the surface of a liquid, allowing the more volatile alcohol to vaporize (and avoiding an azeotropic mixture). [url] Taking advantage of the Leidenfrost effect, steel balls coated with a super-hydrophobic coating can be heated to 400°C and plunged into room temperature water without producing violent boiling bubbles. This discovery could help improve various heat-transfer techniques and make some large industrial processes much safer. [url] Producing steam using solar energy can be done very quickly using nanoparticles, too. Heating up water to its boiling point is useful for a lot of applications (eg. producing electricity, purifying water, etc), so any tricks to make the process more efficient could have a significant impact on energy usage. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted about 14 hours ago on techdirt
When the dashcam footage of the shooting of Laquan McDonald was finally released by the city of Chicago, it was notably missing the audio. In fact, no surviving footage of the shooting contains any audio. It's 2016 and the Chicago PD is still producing silent films. There's a reason for this. Turns out cops aren't fans of recordings. DNAInfo Chicago requested information on the police department's camera problems after the eerily soundless shooting video was released. The documents obtained showed the PD may have plenty of cameras, but they're rarely generating complete recordings… or in some cases, any recordings at all. On the night Laquan McDonald was shot 16 times by a Chicago Police officer, at least three dashboard video cameras in squad cars at the scene didn't work. And the ones that did capture video did not record audio. This complete failure was no statistical quirk. In fact, 80 percent of the Chicago Police Department's 850 dashcam video systems don't record audio due to "to operator error or in some cases intentional destruction" by officers, according to a review by the Police Department. Additionally, about 12 percent of dashcams experience "video issues" on any given day due to "equipment or operator error," police spokesman Anthony Guglielmi said. Cameras are only a part of the accountability equation. Putting them into use is a step forward, but if there's no accountability built into the process itself, this is the result. A mechanically inoperative camera is rarely going to be considered a problem by either the cops in control of it or the management overseeing them. And if officers feel more "comfortable" with less documentation of their activities, it doesn't take much to render the cameras useless. The documentation obtained by DNAInfo makes it clear missing footage or recordings are anything but accidental. The following cannot be explained away by coincidence. Additionally, only three of 22 Chicago Police-involved shooting investigations forwarded to the Cook County State’s Attorney’s Office from the Independent Police Review Authority this year included dashcam video evidence. And none of those videos included audio recordings, state’s attorney spokeswoman Sally Daly said. Neither can it explain the "errors" that led to the dearth of Laquan McDonald shooting footage. The dashcam in police vehicle No. 8489, shared by officers Thomas Gaffney and Joseph McElligott the night of Laquan's shooting, recorded 37 “event videos” in October 2014, and had an operational dashcam the night of the shooting. But “due to disk error” no video was recorded at the shooting scene, according to police reports. [...] Police vehicle No. 8756 had a working dashcam that recorded 124 “event videos” in October 2014 without a single request for maintenance that month. But on the night of Laquan's shooting, the vehicle assigned to Arturo Bacerra and Leticia Valez reportedly had a “power issue” and the dashcam was “not engaged.” In both cases, equipment was inspected later and found to have no mechanical problems. And yet, mysterious malfunctions somehow presented themselves during this controversial incident -- an incident in which the surviving footage contradicted officers' reports. So, even purely as an internal investigative tool, the "recordings" are mostly useless. Officers clearly don't want their superiors to see what they've been up to, much less the general public. DNAInfo's report of the epidemic of unusable/missing recordings was unsurprisingly greeted by the local police union as an unwarranted attack on the reputation of Chicago's finest. The union president called the report and CPD's statement that the department will not tolerate officers maliciously damaging equipment "just more kicks to the morale and kicks to the people that are out there working every day." "If there are individuals that are involved in purposefully damaging equipment, they will be cited for it," he said. "But, to cite someone because of a repair tag not being the most recent request for repair, I think that’s arbitrary and I think that’s part of the problem.” The union president points to "thousands" of repair tickets and months-long waits for service as the real problem here. But his attempt to portray this as a hardware problem doesn't hold up when actual accountability measures are put in place. “Supt. Escalante sent a very clear message and has held people accountable. And since we took that corrective action, we have seen a more than 70-percent increase in the amount of [video] uploads at the end of each tour … and that is being audited weekly with reports sent to the superintendent.” If it was mostly a problem with non-functioning equipment and long waits for repairs, the amount of uploaded footage should have remained nearly unchanged, rather than increasing 70 percent. And the union president's statement would be more believable if similar tampering hadn't occurred at other police departments. This indicates that covering up wrongdoing is the prevailing mindset, rather than just the actions of a few rogue officers determined to thwart accountability at every turn. Cameras can't fix officer accountability if no one's willing to hold them accountable for missing or incomplete recordings. The problem never seems to get fixed until it's been made public. When agencies are only interested in reacting to issues rather than trying to head them off, they play right into the hands of officers who prefer to perform public duties completely unobserved. Permalink | Comments | Email This Story

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posted about 16 hours ago on techdirt
Here's a fun free speech win from the 4th Circuit Appeals Court. Well, it's at least a fun read, especially when the judges go after the city of Norfolk's highly-questionable claim that its completely inconsistent zoning statute isn't loaded with content-based restrictions. First, though, here's a bit of background. Norfolk's Central Radio Company's building was on the list of places to be destroyed by the city to make way for an expansion of Old Dominion University. To protest this plan, it hung a large sign on the side of its building stating its opposition to eminent domain abuse. It also protested the university's planned expansion by suing it, ultimately undoing the government's plan to demolish CRC's building. The city, tipped off by an Old Dominion employee, decided to "investigate" the company's sign and, of course, found it to be in violation of city advertising statutes. This prompted another lawsuit from the Central Radio Company, this time seeking to have the ordinance found unconstitutional. Unfortunately, it wasn't quite so lucky this time. The district court found the statute did not infringe on the company's First Amendment rights. The Fourth Circuit Court of Appeals agreed. CRC petitioned the Supreme Court. Its timing was fortuitous. The Supreme Court had recently handed down a decision in a similar case (Reed v. Town of Gilbert). The decision reaffirmed that government entities cannot impose content-based restrictions without narrowly crafting the limitations to "further a compelling government interest." The US Supreme Court booted the case back to the appeals court with instructions to apply its recent Reed decision. Taking this into consideration, the Appeals Court finds in favor of Central Radio Company and isn't too impressed with Norfolk's ill-advised attempt to censor content that didn't agree with its eminent domain plans. Based on Reed, we hold that the City’s regulation was a content-based restriction of speech. The former sign code exempted governmental or religious flags and emblems, but applied to private and secular flags and emblems. In addition, it exempted “works of art” that “in no way identif[ied] or specifically relate[d] to a product or service,” but it applied to art that referenced a product or service. On its face, the former sign code was content-based because it applied or did not apply as a result of content, that is, “the topic discussed or the idea or message expressed.” Because of the internal inconsistencies in the statute (which has since been rewritten), the government can't claim its restrictions aren't content-based. Those assertions have been undone by the city's inability to craft a coherent policy. The law was supposedly put in place to improve the city's aesthetics and cut down on distracted driving. According to the city of Norfolk, these two things were supposedly "compelling government interests." The court disagrees, finding it to be a badly-written law with severe Constitutional issues. With respect to the City’s stated interest in preserving aesthetic appeal, for example, the flag of a private or secular organization was “no greater an eyesore” than the flag of a government or religion, id. (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 425 (1993)), and works of art that referenced a product or service did not necessarily detract from the City’s physical appearance any more than other works of art. Yet, the former sign code allowed the unlimited proliferation of governmental and religious flags, as well as works of art that met the City’s dubious criterion, while sharply restricting the number and size of flags and art bearing other messages. [...] The City also has not shown that limiting the size and number of private and secular flags, as well as works of art that referenced products or services, was necessary to eliminate threats to traffic safety. There is no evidence in the record that secular flags were any more distracting than religious ones, or that a large work of art displaying a reference to a product threatened the safety of motorists any more than any other large, exempted pieces of artwork. A workable, Constitutional policy wasn't handed down by the city until well after its original statute proved to be a problem. Because the policy has been altered since the filing of the suit in 2012, the court finds no need to issue an injunction. Even if the city wasn't directly trying to censor critical speech (although it certainly appeared to be doing exactly that), the statute was so badly written that it couldn't help but trip over itself. Worse, it put the government in the position of deciding what was or wasn't "approved" art, and implied that art and commerce were mutually exclusive expressions. "Nominal damages" are on the way to the Central Radio Company, which managed to not only save the building where it has spent the last half-century from destruction, but managed to get a bad law rewritten in the process. Permalink | Comments | Email This Story

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posted about 17 hours ago on techdirt
Earlier today, we wrote about how 20 years ago today, the Communications Decency Act became law (most importantly, Section 230, rather than the rest of it, which was dropped as unconstitutional). Of course, at the time, everyone was mostly focused on the unconstitutional parts trying to outlaw lots of smut online. It was partly that signing (which itself was a part of the larger Telecommunications Reform Act that inspired an apparently fairly drunk John Perry Barlow to pen his now quite famous Declaration of the Independence of Cyberspace -- which is now regularly quoted. A snippet: Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear. Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions. Of course, many have attacked its words, and these days, it -- like Stewart Brand's famed "information wants to be free" quote (which is much longer and more nuanced than most people think) -- is more often referenced by people who hold it up for the sake of mockery, and to talk about how times have changed, or need to change. And yet, there are (and remain) some very important concepts in that "dashed off" statement, and Barlow still stands by them today, even as think tanks laugh factories like ITIF (who brought you brilliant ideas like "SOPA") pretend he no longer supports it. The Declaration was not a statement of inevitability, but rather a notice that things are different online. And they are. We've seen this over and over again -- from back then and continuously up through today. So many of the disputes that we run into are about this very different nature of the internet from the physical world. Borders are not easily marked online, though people have tried. Artificial property restrictions are make much less sense when there is no physical scarcity, but digital abundance allows for anyone to simply make their own copy. Questions about jurisdiction and power remain. Self-organizing communities continue to show up. Some work better than others. Some work for a time and fail. Other experiments show up to replace it. And, yes, of course, there have been many attempts to either move existing laws into the internet world, or to craft new ones for that purpose. At the same time, many big corporations have stepped in as well, where their own terms of service often act as a type of constitution. Some of these work better than others. The little tiny good law tucked deep into the horrible law of the CDA, has actually been a key element in protecting much of what Barlow spoke about. But, as Barlow notes today, it takes a lot of work to keep the system moving in the right direction, and it's something we cannot and should not take for granted: Barlow admits that what he describes as the “immune system” of the Internet isn’t exactly automatic. It requires effort on the part of activists like himself. “It wasn’t a slam dunk and it isn’t now. I wouldn’t have started the EFF and the Freedom of the Press Foundation” if it were, he says. But he nonetheless believes that there is a kind of inexorable direction of the Internet’s political influence toward individual liberty. The technology and innovation continues to make things possible, but what happens next, depends on what people do with it.Permalink | Comments | Email This Story

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posted about 18 hours ago on techdirt
When console games are ported to the PC platform, the end result is often merely adequate. Some ports are amazing because the software developer actually knows and cares about the platform their game is being ported to. Others are just quick cash-ins, relying on name recognition to bring in sales the end product hasn't earned. Some turn out well. Some turn out bad. And some are Tales of Symphonia, a twice-ported title that originally appeared on Nintendo's Gamecube back in 2004. Tales has landed on PC with all the grace of limbless cat with an inner ear disorder. Here's a NeoGAF forum member's list of everything that's wrong with the port. The games resolution is locked internal at 720p, no matter what resolution you choose. The different languages are broken, since they used a wrong font and some words dont even show up. And some things havent even been translated into other languages. The game is locked at 30fps It has new typos It still partially uses Ps3-Button-controls Random crashes (including when using alt-tab to switch programs) Only 6 save slots. Opening the config and save menu can take 30 seconds to load. Then there's this: It uses a DRM thats called VMProtect, that creates a new *.exe everytime the game starts. How cool is that. Every time the game is played, the DRM dumps another .exe on the user's hard drive. Why? Because DRM is stupid. In this case, the DRM runs the whole game in a "virtual machine with non-standard architecture." Sure, storage is cheap and no one's really in danger of filling up their drives with "fake" .exes, but is that the gold standard of DRM? One that creates its own bloatware while you play? And why is the DRM even needed? Namco-Bandai is utilizing top-of-the-line DRM for a PC port of an eleven-year-old game that's selling for $20. Now, it has a lot of pissed off PC gamers on its hands, wondering why they were handed a fourth-rate piece of crap, rather than a port that shows the manufacturer cares for its games or its customers. A game with this many problems doesn't need DRM weighing it down (and shedding .exes every time the program is accessed). Game modder Peter Thoman, in his review for PC Gamer, absolutely nails how effed-up Namco-Bandai's priorities are. Namco-Bandai cannot afford even the very minimal changes required to support arbitrary resolutions or superficially QA their product, but they can afford a completely ineffective DRM system. An ineffective DRM system for a game which people, if they were so inclined, have been able to pirate freely for over a decade. That is apparently the quality of the decision making processes within this company. Their fans—and PC gamers—deserve better Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
It seems we've entered the next big moral panic: the fact that terrorists like ISIS use social media. It's a point of contention that keeps coming up, leading Presidential candidates to talk about stopping terrorists from using the internet. There was a whole big "summit" between White House officials and tech execs in which questions were raised about blocking ISIS from using social media. And, then, of course, you've even had some tech company execs support the idea. And now, the inevitable followup on this is tech companies feeling the need to show just how "tough on terrorism" they are by highlighting how many people they've kicked off their service. Up first, Twitter. The company was just recently sued by a woman who lost her husband to an ISIS attack, in which she claims that Twitter is guilty of material support for terrorism, because it allowed ISIS to use Twitter to grow. And so now, Twitter feels the need to proudly highlight the removal of 125,000 terrorist accounts: e condemn the use of Twitter to promote terrorism and the Twitter Rules make it clear that this type of behavior, or any violent threat, is not permitted on our service. As the nature of the terrorist threat has changed, so has our ongoing work in this area. Since the middle of 2015 alone, we’ve suspended over 125,000 accounts for threatening or promoting terrorist acts, primarily related to ISIS. Our efforts have not stopped there. We have increased the size of the teams that review reports, reducing our response time significantly. We also look into other accounts similar to those reported and leverage proprietary spam-fighting tools to surface other potentially violating accounts for review by our agents. We have already seen results, including an increase in account suspensions and this type of activity shifting off of Twitter. Every company, of course, has the right to determine who can and who cannot use their service, but is this really the best response? Hell, just recently there was a situation in which an ISIS leader used Twitter and other social media platforms to try to urge more Muslims to join ISIS, and it turned into a ton of Muslims totally mocking ISIS. When you start deleting accounts, you lose out on those kinds of interactions, which I would imagine are ridiculously more powerful than shutting down accounts of terrorists who will simply open up a new one hours later. On top of that, merely deleting those Twitter accounts actually hides some information that can be used to track down ISIS members and see what they're doing. Obviously no one wants to be seen "supporting" ISIS, but building a moral panic over the fact that they happen to use social media to spread idiotic ideas hardly seems helpful. If anything, it suggests that their messages are a lot more powerful than they really are. Shutting them down makes them think that what they're saying is having an impact. Mocking them and laughing at them (or even ignoring them) shows that it's having the opposite effect. But, of course, for much of the media and many politicians, such nuance is not allowed. Instead the focus needs to be on shutting such accounts down. And that leads you to silly announcements like Twitter's from last week.Permalink | Comments | Email This Story

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posted about 19 hours ago on techdirt
With Valentine's Day coming up, we got you covered with the Bouqs Company Farm-Fresh Flowers. For $35, you'll receive a $50 credit to spend on any of their Volcano collection bouquets. These fresh and colorful bouquets come with a Happiness Guarantee and free delivery if you register on Bouq's site. The coupon code will expire May 10, 2016, so you could use it to surprise your mom for Mother's Day too. 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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posted about 20 hours ago on techdirt
As expected, the Telecom Regulatory Authority of India (TRAI) has passed new net neutrality rules (pdf) that specifically ban the practice of zero rating. The rules are relatively clear in that they prevent either content companies or ISPs from striking deals that exempt select content from usage caps. The ruling acknowledges that such models create an unlevel playing field for smaller companies who may not be able to pay to play:"...differential tariffs result in classification of subscribers based on the content they want to access (those who want to access non-participating content will be charged at a higher rate than those who want to access participating content). This may potentially go against the principle of non-discriminatory tariff. Secondly, differential tariffs arguably disadvantage small content providers who may not be able to participate in such schemes. This may thus, create entry barriers and non-level playing field for these players stifling innovation. In addition, TSPs may start promoting their own websites/apps/service platforms by giving lower rates for accessing them.The ruling effectively bans Facebook's "Free Basics" program, despite an immense amount of often misleading lobbying and marketing by the social networking company. Net neutrality advocates in India had argued that Free Basics -- which exempts Facebook "curated" content from wireless usage caps -- gave too much walled-garden power to the company, allowing it to corner India's ad and content markets for years to come. Facebook, in contrast, argued it was being entirely altruistic, solely worried about India's poor farmers. In a statement on TRAI's decision, Facebook reiterated that it was only trying to help:"Our goal with Free Basics is to bring more people online with an open, non-exclusive and free platform. While disappointed with the outcome, we will continue our efforts to eliminate barriers and give the unconnected an easier path to the internet and the opportunities it brings."As it stands, companies that violate the rules need to pay 50,000 rupees per day ($740), up to a maximum of 5 million rupees (an inconsequential sum to carriers and Facebook alike). The rules will be in place for two years and could be open for review at that time. As such, Facebook could still lobby to have the restriction on zero rating weakened, or could modify its Free Basics program so that it better adheres to the rules. Or, better yet, as Mozilla had suggested if Facebook really wants to help it could take all of the marketing, PR, lobbying, and design money being spent on Free Basics, and actually spend it on improving India's lagging telecom infrastructure. India now joins The Netherlands, Japan, Chile and Slovenia in passing net neutrality rules that clearly prohibit zero rating. Contrast that to the rules here in the States, which don't specifically forbid the practice, instead ambiguously stating that services will only be examined on a "case by case" basis. But the mere act of opening the door to the precedent of zero rating already has already resulted in companies like Comcast and Verizon abusing it, both of them now exempting their own services from usage caps, while still penalizing competing services like Netflix.Permalink | Comments | Email This Story

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posted about 21 hours ago on techdirt
The internet as we know it would be a very, very different place if 20 years ago today, President Clinton hadn't signed the Communications Decency Act. To be fair, nearly all of the CDA was a horrible mess that was actually a terrible idea for the internet. A key part of the bill was about "cleaning up" pornography on the internet. However, to "balance" that out, the bill included Section 230 -- added by two Congressmen in the House of Representatives: Ron Wyden and Chris Cox. They had pushed this clause as a separate bill, the Internet Freedom and Family Empowerment Act, but it didn't get enough traction. It was only when they attached it to the Communications Decency Act (which had passed the Senate without it), that it was able to move forward. And thus, 20 years ago today, when President Clinton signed the CDA, most of the attention was on the "stopping indecency" part, and very little on the "throw in" of Section 230. And yet, there's a strong argument that Section 230 may be one of, if not the most important laws passed in the past few decades. As you hopefully already know, a year later, in Reno v. ACLU, the Supreme Court tossed out basically all of the CDA as unconstitutional. The only tidbit of the law that remained valid? You guessed it: Section 230. And, of course, it became the key law in enabling the internet to grow the way it did. It's been said in the past, fairly accurately, that no law contributed more to the growth of the internet than CDA 230, and that's because of a fairly simple and straightforward principle. CDA 230 simply said that an internet service is not liable for actions of their users. This meant that new websites and internet services didn't need to carefully monitor and track everything that every user did to make sure it wasn't violating a law. That meant the legal risks and liability for creating services that allowed the public to create all kinds of content went way down. Without a robust Section 230, it's difficult to see many of the most popular platforms today existing. It's no surprise that soon after CDA 230 we saw the rise of blogging and social media -- and almost always coming from American companies. Both would be significantly more difficult without Section 230's protections. In fact, much of the push for Section 230 came in response to a horrible court case, Stratton Oakmont v. Prodigy, in which an internet bulletin board commenter attacked financial firm Stratton Oakmont, and its president, for apparently being involved in criminal and fraudulent activity. Stratton Oakmont -- now perhaps well known as the firm portrayed as doing all sorts of criminal and fraudulent things in the movie The Wolf of Wall Street -- sued Prodigy for the comment and won. The liability from such a ruling scared numerous online platforms, in particular because a key part of the ruling was that because Prodigy posted "guidelines" and removed posts with offensive language, it suddenly became a "publisher" of the content, and was liable for that content. A key, and often overlooked, part of Section 230, is that it actually does encourage sites to take proactive measures to filter content, by noting that any kind of moderation or guidelines absolutely does not remove the protections of Section 230. As such, sites get to decide for themselves whether or not to moderate their content in any way, without facing the legal risk of suddenly being declared the publisher. Other countries have no such protections, leading to some dangerous rulings, and creating something akin to a "right to be forgotten" in some instances. There have been numerous cases testing Section 230 over the years -- and the law has remained strong and in place -- though it is still being challenged to this day. The biggest and most important case was Zeran v. AOL, which was the first case testing Section 230, in which the court found that Section 230 was a powerful tool that kept sites from being held responsible for content posted by users. Section 230 has been powerful in so many ways. It has both enabled and protected free speech online by letting companies set up platforms where people can speak openly. Without it, the internet would be much more limited as a platform for communicating to the public. As the 4th Circuit noted in its ruling in the Zeran case: The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. It has protected privacy, by making it clear that there was no duty for websites to monitor and track their users, to avoid any kind of liability. It has created incentives to create tremendous economic value, by making it clear that companies could be formed to enable public communications, such as blogging, forums and social media -- without being sued into bankruptcy over misuse. And it has actually enabled better moderation of platforms in not making them give up protections, if they choose how to moderate certain content. It is difficult to express just how important Section 230 has been over the past 20 years other than to say that, without it, it's unlikely that you would be able to comment on Techdirt today. It's also unlikely that you'd have tools like Twitter or Facebook or Yelp or AirBnb. Any service that relies on public input owes a huge debt to Section 230, and it's quite incredible that it was basically included as an "add-on" that very few noticed when it was signed. So, as we're hanging out here on the internet today, in a place that is alive only because of Section 230, please thank (now Senator) Ron Wyden in particular for his role in creating Section 230, and pay attention, because there are very powerful forces working right now to undermine Section 230 entirely. It's been a key driver of free expression and economic growth for the past 20 years, and it would be a shame to undermine that now.Permalink | Comments | Email This Story

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Because citizens are localized but their data isn't, things aren't going to get any less weird as time progresses. Or any less legally troublesome. Ellen Nakashima and Andrea Petersen of the Washington Post have seen a copy of a draft negotiating document between UK and US representatives that would allow MI5 (and presumably other agencies) to access data and communications held on US servers. The transatlantic allies have quietly begun negotiations this month on an agreement that would enable the British government to serve wiretap orders directly on U.S. communication firms for live intercepts in criminal and national security investigations involving its own citizens. Britain would also be able to serve orders to obtain stored data, such as emails. UK agencies would still be locked out of obtaining information or data on US persons and it would take legislation to actually make this access a reality, but it's apparently being considered, as UK officials feel this issue is standing in the way of investigations/counterterrorism efforts. As it stands now, UK agencies must make formal diplomatic requests which rely on a Mutual Legal Assistance Treaty -- a process that can take months. That's not good enough, apparently. Everyone wants instant access, including UK agencies, and a strong streak of entitlement (the same entitlement guiding FBI director James Comey's one-sided "debate" on encryption) runs through the arguments for this expansion of the UK's legal powers. “Why should they have to do that?” said the administration official. “Why can’t they investigate crimes in the U.K., involving U.K. nationals under their own laws, regardless of the fact that the data happens to be on a server overseas?” Why indeed? Why comply with existing laws or territorial restrictions? After all, the FBI is working toward the same end, pushing for the right to hack servers located anywhere in the world when pursuing criminals. Several issues need to be addressed before UK agencies can be granted permission to demand communications and data from US companies. For one thing, a warrant issued in the UK is not exactly the same thing as a warrant issued in the US. The legal standards may be similar, but they're still a long ways from identical. The negotiating text was silent on the legal standard the British government must meet to obtain a wiretap order or a search warrant for stored data. Its system does not require a judge to approve search and wiretap warrants for surveillance based on probable cause, as is done in the United States. Instead, the home secretary, who oversees police and internal affairs, approves the warrant if that cabinet member finds that it is “necessary” for national security or to prevent serious crime and that it is “proportionate” to the intrusion. Note the "silence" on the differences between the legal standards. It appears no one involved in this discussion is interested in digging into these disparities. A second administration official said that U.S. officials have concluded that Britain “already [has] strong substantive and procedural protections for privacy.” He added: “They may not be word for word exactly what ours are, but they are equivalent in the sense of being robust protections.” As a result, he said, Britain’s legal standards are not at issue in the talks. “We are not weighing into legal process standards in the U.K., no more than we would want the U.K. to weigh in on what our orders look like,” he said. That's great. Both countries won't examine each other's legal standards because they don't want to upset the reciprocity implicit in the draft agreement. The UK can ask for stuff from US companies and vice versa, with neither country playing by the other country's rules. In between all of this are citizens of each respective countries, whose data and communications might be subjected to varying legal standards -- not based on where the data is held, but who's asking for it. Of course, the alternatives are just as problematic. If an agreement like this fails to cohere, overseas governments will likely demand data and communications generated by their citizens be stored locally, where they would be subject only to local standards. Then there's the question of what information these agencies already have access to, thanks to the surveillance partnership between the NSA and GCHQ. Although neither agency is supposed to be focused on domestic surveillance (although both participate in this to some extent), the NSA is allowed to "tip" domestic data to the FBI for law enforcement purposes. Presumably, GCHQ can do the same with MI5. The tipped info may not be as comprehensive as what could be obtained by approaching a provider directly, but it's certainly more than the black hole the current situation is being portrayed as. (Especially considering GCHQ already has permission to break into any computer system located anywhere in the world...) No matter what conclusion the parties come to, legislation addressing it is likely still several months away, if it ever coheres at all. Congress -- despite its occasional lapses into terrorist-related idiocy -- is likely not interested in subjecting US companies to foreign laws, no matter the stated reason for doing so. But if it doesn't oblige the UK (and others who will jump on the all-access bandwagon), it's safe to assume the British government will move towards forcing US companies to set up local servers and segregating communications and data by country of origin. Permalink | Comments | Email This Story

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This week, we balked at the amount of copyright propaganda crammed into the ESSA education reform act. That One Guy won most insightful comment of the week with his thoughts on what copyright education should actually look like (and will to perceptive students, no matter how it's presented): Oh by all means, let's teach schoolkids more about copyright. Let's teach them that nothing made during their lifetime will enter the public domain, if it ever does, because the laws keep getting retroactively expanded anytime it looks like something might do so. Teach them that because of this, any remixes or rehashes, fanfics or fan made films exist only at the 'generous' whims of the copyright holder, and can be crushed at any time. Let's teach them that sharing a song, or ripping a copy for a friend to listen to, something I imagine most of them would do or have done without a thought, is not only illegal, it carries a potential fine large enough to purchase a decent car or even house, despite the fact that said songs can be bought for a buck each. Let's teach them that the likes of the *AA's are constantly pushing the idea that it's everyone else's job to act as unpaid copyright cops, making it risky for online services like youtube to host user created content without bending over backwards to try and 'appease' copyright owners, and that if the *AA's and their like had their ways, services like youtube, VCR's, MP3 players, and anything like them, would not exist. Let's teach them about how completely and utterly one-sided the law is, where there is no penalty for making a bogus claim that gets something taken down wrongly, and the only risk is if a site or service doesn't do so immediately. Let's teach them that simply having a radio where anyone else can hear it is considered a 'public performance', and collection agencies will try to shake down anyone who does so, that those same collection agencies will demand payment even from businesses that don't play their music just in case they do, and that in at least one instance this has led to a collection agency demanding payment for library workers reading to children. Indeed, let's educate schoolkids about copyright, and remove any vestiges of respect they may have otherwise had for it due to ignorance on the subject. In second place for insightful, we've got the other "That" — That Anonymous Coward with a response to the DOJ's obvious lies in response to a FOIA request: Its almost as if the penalties aren't enough of a deterrent. Perhaps if the money came out of the Assistant Directors paychecks & pension funds... For editor's choice on the insightful side, we start with the story of former DHS boss Janet Napolitano, who deployed a secret monitoring system at the University of California. Always insightful on security issues, Rich Kulawiec expanded on just how awful this is: Put aside for a moment the horribly unethical conduct of the personnel involved in sabotaging the privacy of faculty, staff, and students. Let's just think about this from a security standpoint. The university has -- quite effectively -- compromised itself. There's really no need for an attacker to go through all the trouble and tedium of setting up comprehensive surveillance of university systems/networks: it's already been done for them, for free. All they have to do is tap into the goodies, either on the campus or at the vendor. (The latter's probably easier, since they're outsiders with no professional association. A suitable bribe would probably suffice. Why not? Who would know?) I've done IT work, including security, at several major universities over the past few decades. This is one of the most appallingly stupid things I've ever seen a campus do to itself, and there's a lot of competition for that dubious honor. Next, we return to the story about copyright propaganda in education, where Vidiot hoped it might be possible to exploit the earnest wording of the bill: Loophole Good news! Paragraph E requires that such subject matter be "evidence based"... and the only evidence that supports the eveything-must-be-owned camp is MPAA/RIAA pablum. Fiction isn't evidence. Over on the funny side, our first place comment comes in response to the ridiculous copyright situation that continues to keep footage of the first Superbowl locked away. Coogan delivered some sarcasm that hopefully didn't actually need to be denoted: Come on guys. If this guy's allowed to infringe on the NFL's copyright by selling the tape of the first Super Bowl, then what incentive will the NFL have to produce future Super Bowls? /s For second place, we head to the very silly story about the owner of a photobombing horse attempting to get half of the prize for a selfie contest. We pointed out that it's since the prize is a holiday vacation, it's not exactly easy to split in half — but TechDescartes thought laterally and applied the Judgement of Solomon: What about a one-way ticket? For editor's choice on the funny side, we head to the perennial story about the ridiculous restrictions on referring to the "Super Bowl", which this year have targeted Key & Peele and their special broadcast that you might be watching today. HarryOScary was quick to bust out a classic and still-wonderful pun: They might be referring to the Superb Owl. That's happening about the same time as the "Big Game." But, PRMan was quick to up the ante: "Big Aim" is what you need to hit the "Superb Owl". (Admittedly, Key and Peele will probably come up with better jokes.) That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2011, Egypt was wracked with protests, and the government responded by shutting down the internet. China was trying to stop people from talking about the uprising while Al Jazeera was trying to spread coverage far and wide by putting it under a Creative Commons license. We took a look at the impact of the shutdown, and then later in the week Egypt finally turned it back on. Meanwhile, in a more insidious form of internet shutdown, Homeland Security was going nuts with the domain seizures, even as its affidavits continued to expose how much it was twisting the law and raise major legal questions. The week's big seizure was Spanish website Rojadirecta, which made us wonder if there would be an exodus from US-controlled domains, not to mention how the US would react if Spain started messing with American websites. Senator Wyden was demanding an explanation, and Homeland Security was not doing a good job on that front. Ten Years Ago After the recent announcement that Nikon would no longer sell film cameras, it felt like yet another end of an era this week in 2006 when Western Union announced it would no longer offer telegrams. This was, after all, a brave new era of broadband weather balloons (maybe, someday) and really expensive connected ovens. Perhaps that also explains why companies were so eager to plug the analog hole with terrible technology, though the real reason was probably to squeeze out amateur creators. Also this week in 2006: the RIAA sued yet another person without a computer, we looked at the unusual idea of applying trespass laws to computers, and we started catching on to the role of East Texas in the patent world. Fifteen Years Ago Rumours were flying about the acquisition of Yahoo! this week in 2001, which some thought would herald the end of the internet while others just wondered if Disney would be the buyer. Such rumours would likely make the "most popular stories" lists that news websites were just discovering. Alongside them, you might see stories of eBay hijinks, ranging from the artist who tried to sell his whole life to the scammer who sold a very literal listing of a Playstation 2 Original Box to one unlucky buyer. Long before the Apple Watch, Timex made a watch that could check email; long before Obama's highly digital campaign, some asked if 2000 was the first "net election"; and long before smartphone-aided comparison shopping was the norm, it wasn't clear if it would ever catch on in the US where people still didn't seem to care about wireless. One-Hundred And Thirty-Two Years Ago The Oxford English Dictionary is the gold standard of the English language, and my personal choice of dictionary whenever possible. It was on February 1st, 1884 that the first dictionary fascicle (look it up, in a watchacallit) was published with its full title: A New English Dictionary on Historical Principles; Founded Mainly on the Materials Collected by The Philological Society. Of course, it was just Volume One: A to Ant. Permalink | Comments | Email This Story

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This week, we've got three crowdfunding projects for wonderfully inventive reimaginings of common objects that haven't changed much in a very long time. Lumir C Candles are a fine source of light, but what about all that wasted heat? It's a stroke of small genius to invent a device that captures it and turns it into more light — and that's exactly what this candle-powered LED lamp does. Admittedly, I'm not sure how practical or useful a device this is for most people, especially given the somewhat steep price — but there's something elegant and brilliant about the idea, as though it came from a basic frustration with entropy more than a pragmatic desire to make a consumer product — but maybe I'm giving it too much credit. Either way, it's pretty cool. Rocketbook Wave There are really two aspects to this notebook. The first is kind of cool: an associated app that scans and enhances the pages based on photos taken with your smartphone, and organizes them to various cloud apps based on little sorting boxes you tick with your pen. That's nothing too remarkable though. The real magic comes when it's time to empty the notebook: you put it in the microwave and all the pages come out blank. Is that a good system? How well does it work? Those are questions that are hard to answer without holding one in my hands — but it's certainly not an idea I've ever heard before, and it's nothing if not inventive. MAGNETIPS Okay, so this one isn't radical or mindblowing — it's just handy. I for one love fine-tipped markers, and as I look into my drawer full of a completely disorganized tangle of them, each with different colors and in different stages of life, I can't help but think that stackable, refillable, magnetically-connected markers is a pretty good idea. The markers themselves aren't much pricier than any other good quality options, and at $17 for a complete 20-color set of refills (not to mention the decreased likelihood of losing them one by one if you're like me) they could easily pay for themselves. Permalink | Comments | Email This Story

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We all know that the NFL doesn't want anyone to use the term "Super Bowl" without having paid the NFL first (and paid lots and lots of money). As we've pointed out in the past, most of this is pure bullshit. In most cases, people and companies totally can use the term "Super Bowl" but few people want to deal with any sort of legal fight, so they just don't. What's even crazier though is how the NFL has tried to crack down on euphemisms as well. The most popular term that companies use instead of the Super Bowl is "The Big Game." And going back to 2007, we noted that the NFL wanted to trademark that too, even though it's not the one who came up with the term, nor does it really use it. A bunch of companies opposed the NFL's attempt, but over at the Pirated Thoughts blog, Michael Lee notes that the NFL is doing a few things that suggest it may want to trademark "The Big Game" again. At the very least, it's trying to block anyone else from trademarking it: In late 2014, an individual in California filed a trademark registration for the BIG GAME DAME mark to cover athletic gear such as shirts, pants and jackets. The applicant claims that the mark is already in use and filed the “in use” specimen that can be seen below. The specimen is nothing more than a ratty plain white t-shirt that someone stuck a homemade label on from their old Brother P-Touch. Alright, this all seems a bit shady but we will put the skepticism to the side. More germane than the earnestness of this trademark application, in December 2015 the mark was published for opposition. On January 26th, the NFL requested and was granted an extension of time to oppose issuance of the trademark. This is the usual first step that allows the parties time to try to work out a settlement, allows the opposer additional time to draft the opposition or even allows the opposer time to reevaluate its position and not even file an opposition in the first place. This potential opposition is not an isolated incident. On the same day, the NFL was also granted an extension of time to oppose an entirely different mark by another clothing company, BIG GAME DAY ARE YOU READY! A month earlier, the NFL also requested an extension of time to oppose this same clothing company’s BIG GAME mark. Three potential trademark oppositions over the use of BIG GAME in a month’s time, where there is smoke there could be some fire. In other words, the NFL is at least suggesting that it may have a right to "The Big Game" as well. It's not clear if the NFL thinks there will be less opposition this time, or that people won't notice. Or maybe it just doesn't care (which seems to be the standard operating procedure of the NFL these days). But, once again, such a move would be crazy. And, of course, it wouldn't even be necessary if the NFL hadn't been such a trademark extremist in the first place.Permalink | Comments | Email This Story

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When the Soviets launched Sputnik 1 in 1957, the US launched a satellite and put together its own space agency less than a year later. In the past week, NASA has commemorated the loss of its astronauts in the Challenger and Columbia disasters, as well as the men who died in Apollo 1. There's a new generation of kids who have only seen SpaceX and Soyuz take stuff into low earth orbit (plus maybe a successful Orion test) -- and a few other private companies reaching the edge of space. Robots have been doing an excellent job of exploring mars and other destinations in our solar system, but we shouldn't forget about manned space exploration entirely. The Columbia space shuttle disaster might have been averted with a second space shuttle launch to dock with it and rescue the astronauts. A rescue mission would have involved a complex space walk and several unknown risks, but plans were drawn up -- and that's why subsequent shuttle launches had a second shuttle on standby. (But the rescuing shuttle would still have the same problem of a potentially damaged wing, too...) [url] The Challenger explosion was predicted by a handful of NASA engineers who argued against launching the shuttle because they had data that indicated the o-rings wouldn't seal properly under the cold weather conditions. Bob Ebeling still blames himself, but hindsight is always clearer -- and it wasn't Ebeling's decision to launch. [url] NASA has lost 24 pilots and astronauts in space launches and test flights. Manned space exploration is still a NASA priority, and spaceflight will always be an inherently risky venture -- especially as it pushes technology to ever more distant places. [url] After you've finished checking out those links, if you want to support NASA unconditionally, print out this form and send your money... into space.Permalink | Comments | Email This Story

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We've been talking about the insanity occurring in the beer industry regarding trademark for quite some time now. If you haven't been following along, the short version of this is that as the craft beer revolution has exploded the number of breweries taking part in the industry, so too has it exploded the number of trademark spats within it. In some senses, we should have seen this coming. Given the number of new players in the market with the limited linguistic resources available with which those players could name their companies and products, perhaps it was somewhat inevitable that some of the companies involved would try to lean on trademark law to fend off what they saw as impeding competition with too-close brand names. That said, many of these conflicts fail to live up to the purpose of trademark law, many of them giving barely even a nod towards an actual concern over customer confusion. Instead, protectionism reigns. That seems to be the case in a spat between two Canadian breweries, with Moosehead Brewery claiming that the much smaller District Brewing Company's Müs Knuckle brew is too close in name and therefore infringing of the former's trademark. Moosehead and Müs Knuckle are two breweries in a battle over trademarks. Short version, Moosehead says that Müs Knuckle is too close to their trademark for beer. The idea is that Müs Knuckle could be confused for a Moosehead product, or at least that’s what Moosehead thinks, and that’s why they are going after the smaller, Saskatchewan-based brewery. The case is a bit of a stretch, largely due to a lot of the specific choices that Müs Knuckle has made. The packaging is not very similar outside of the glass used, the Regina company going with a predominantly blue label design in a diamond shape, whereas Moosehead is oval, green, and has a moose as part of the logo itself. The fact that Müs is also deliberately misspelled is another aesthetic choice that works to the advantage of the smaller company, it can be argued that they are trying to distance themselves from their more established competitor by stylizing their name. Left out of the analysis above is the, um, colorful connotation of the term "moose knuckle", the explanation of which I'll allow you to discover for yourself should you need to. What the above should indicate to you is that this trademark action is all about the word "moose", including variations of the word that are entirely made up, such as "müs", which isn't a real word. Beyond that word, nearly everything else to do with the packaging and trade dress is different, save for them both being in a green bottle. Which, you know, how many types of bottles can you use for a beer? So, the question to be answered here is whether customers will find themselves confused into thinking two different breweries selling beer that incorporate differently spelled versions of the word "moose" are actually the same, despite everything else to do with the packaging of the products. Looking at the trade dress of both side by side, I would say the question is easily answered. Confused? Yeah, I didn't think so. In addition to having different fonts, colors, label shapes, names, and spellings, Moosehead includes and image of a moose's head, while Müs Knuckle doesn't include any images of a moose knuckle, because that would be porn. The original post appears to agree. It’s our natural inclination to go for the underdog in cases like this, but in this case it’s the right instinct. The reason is that the Müs Knuckle brand is far enough out from the design and image of Moosehead that it’s clear this is a very flimsy case, as well as a case that is meant to push just how far the larger brand can take their trademark. It’s also a case where the intended purpose of the trademark – reducing consumer confusion – is being used to push competition in the sidelines. A smaller company, Müs Knuckle would have difficulty paying for a massive re-branding, especially as it would have to spend a great deal of effort trying to get their audience to recognize the new name and package. It could be a death blow to a brand that is quietly establishing itself, and a blow caused by a brand that is not substantially similar to the new product. Expect this dispute to meet a quick demise. If not, then good luck to the Canadian brewery industry in developing new brands. Permalink | Comments | Email This Story

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People who have worked for the USTR tend to pretty religiously support any and all new trade agreements, so it seems somewhat noteworthy that the former USTR, and now Senator, Rob Portman, has come out against the TPP agreement, saying that he doesn't think that it's a good deal. There are, of course, a number of caveats here that potentially make this at least slightly less of a big deal than it might otherwise be. Specifically: There's a pretty good chance he's doing this purely for political reasons. He's in a tight re-election campaign for the Senate, and his opponent has been quite opposed to basically any trade deal including the TPP -- and many Ohio residents (i.e. voters) believe (rightly or wrongly) that trade deals mean fewer manufacturing jobs. Portman was also a big proponent of pushing through "Trade Promotion Authority" or fast track, which was seen as a sort of proxy vote on TPP, because it would bind Congress's hands to just an up/down vote on the TPP, without any ability to push back on particular aspects of the agreement. And, Portman also made it clear he could change his mind if the TPP was "improved." Some of the reasons he's given seem to track with those of Senator Orrin Hatch, in complaining that the TPP doesn't go far enough in expanding intellectual property rights, mainly for big pharmaceutical companies (specifically data exclusivity rules around "biologics.") So, it could certainly be argued that his speaking out against the TPP are for suspect reasons (and of suspect authenticity). Still, it is rather incredible that a former USTR would proactively say that they don't support such a major trade agreement, and highlights (at the very least) just how toxic the TPP has become with the voting public. And of course, that should raise some pretty serious questions. If the voting public doesn't support the TPP at all, why are we continuing to pursue it?Permalink | Comments | Email This Story

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The state of Maryland's defense of the Baltimore PD's warrantless use of Stingray devices continues, taking the form of a series of motions unofficially titled Things People Should Know About Their Cell Phones. The last brief it filed in this criminal prosecution claimed "everyone knows" phones generate location data, therefore there's no expectation of privacy in this information. As commenters pointed out, people may know lots of stuff about records they're generating, but that doesn't mean law enforcement should have warrantless access to those records. Everyone Knows… That my Doctors generate medical data about patients, so how about we get their medical records on public display without warrants! With no expectation of privacy, there's no need for a warrant. And with no warrant requirement, there's no chance of having evidence tossed. That's a win Maryland needs, considering the Baltimore PD alone has deployed IMSI catchers several thousand times without obtaining warrants. Everything runs through pen register orders, which both lower the burden of proof and (in many cases) obscure the technology actually being used. Now, it's back with its response to the defendant's motion to dismiss and it's again claiming People Know Stuff, therefore no expectation of privacy. (h/t Brad Heath) After dismissing the defendant's arguments about police use of location tracking devices as "dystopian fantasies," the state argues it's time for the accused (not just this one, but any others facing prosecutions predicated on warrantless cell phone tracking device usage) to stop pretending they don't know how much data their phones are coughing up. While cell phones are ubiquitous, they all come with "off" switches. If a cell phone is turned on, it is receiving signals from cell towers, and sending signals back out to cell towers. The cell site simulator used in this case took advantage of that fact in order to locate Andrews's phone. Because Andrews chose to keep his cell phone on, he was voluntarily sharing the location of his cell phone with third parties. Under the doctrine set forth by the Supreme Court in Smith, supra, he cannot claim a Fourth Amendment privacy right in this case. The "Smith" the state refers to is 1979's Smith v. Maryland, which law enforcement loves to use in cell phone surveillance cases, because: a) it's incredibly outdated, and b) it provides a very broad and favorable reading of the Third Party Doctrine as it relates to phone usage. The state says it's the defendant's own fault he was located. After all, he had a choice. And he chose badly. Andrews complains that the police "invaded" a "constitutionally protected area," and therefore this search triggered Fourth Amendment protections under United States v. Karo, 468 U.S. 705 (1984) and Kyllo v. United States, 533 US. 27 (2001). But in Karo, the suspect was unaware that he had brought a police transponder into his home, and in Kyllo, the suspect was unable to prevent grow-lights (or his body) from emitting heat. Andrews, by contrast, was quite aware that he was bringing his own cell phone into the house. And he was quite capable of turning it off The government's argument, while technically solid when used in conjunction with these precedent-setting decisions (Smith's outdated view of phones notwithstanding), but it becomes completely disingenuous when it describes the "sharing" of identifying phone data. Just as the telephone company in Smith used transmitted phone numbers in a way quite distinct from the way in which the police used them, so, too, Andrews's cell service provider used the ID number broadcast by his cell phone in ways quite distinct from the way in which the police used it. The way in which the information was used does not alter the "expectation of privacy" in the information itself. Smith controls here. Andrews's addition of the adjective "exact" to the noun "location" does not alter that fact. The issue is not whether Andrews was aware that the police could find the location of his cell phone to within 20 yards. The issue is whether Andrews can claim an objectively reasonable expectation of privacy in information which he was voluntarily broadcasting to third parties at all times. Under Smith, the answer is no. There is no Fourth Amendment right to evade a valid arrest warrant. Andrews was wanted on multiple counts of attempted murder. A life "on the lam" may require some inconveniences, such as not staying in one's home, and turning one's cell phone off when not in use. There is no constitutional right to avoid being arrested for one's crimes, and nothing unreasonable about the police using the same information that Andrews was sharing with the rest of the world to apprehend him. The "rest of the world?" Really? Andrews may have been able to talk his cell phone provider into turning over a copy of all the data his phone had generated, but it's not as though the general public has access to this information, expectation of privacy or no. Just because law enforcement can access this information with warrants or (more likely) pen register orders does not make it information "shared" with "the rest of the world." It is not shared indiscriminately and it's only because cell providers are legally compelled to cooperate with law enforcement (CALEA, etc.) that cops can obtain this information with a pen register order, rather than a warrant. And, in this case, the information was not obtained with a court order. There may be a court order on record that would give the impression the BPD would approach a telco for phone records, but the actual collection of Andrews' location info was done with a Hailstorm cell tower spoofer. The state claims the request specified the use of a cell tower spoofer but there's no indication the presiding judge had any idea how much information these devices can obtain. A pen register order refers to a targeted phone number. A cell tower simulator gathers information from everyone in the area. This isn't just a fight over this particular prosecution. This is the state safeguarding its thousands of Stingray deployments. If it's going to be able to keep those prosecutions from falling apart -- now that the BPD's devices are an open secret -- it needs the court to agree there's no expectation of privacy in cell phone location data. And in order to do that, it apparently needs the court to believe everyone using a cell phone is sharing all sorts of information with "the rest of the world." Permalink | Comments | Email This Story

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More sexting stupidity, this time in Michigan. A Three Rivers, Michigan, teenager is both the victim and perpetrator of a sex crime. He might land on the sex offender registry, and face criminal charges, all because he took an inappropriate photo—of himself. The boy is unnamed in local news reporters, which note that he is under 15 years of age. He allegedly took a nude photo of himself on a girl’s cell phone. That girl sent the picture to another girl, who sent it to another. Preliminary charges are pending for all three—the boy was charged with manufacturing child porn, and the girls with distributing it. A prosecutor is still weighing whether to pursue the charges. Hopefully, the prosecutor will realize that pursuing the suggested charges could ruin a few teens' lives. The police detective working the case seems to want to destroy these kids' lives… for the good of other teens, or something. Police Detective Mike Mohney told WBST.com that sexting is a serious crime because it leads to “bullying,” and “real severe things like people committing suicide or violent crimes against others because they're so embarrassed about it.” As Reason's Robby Soave points out, Detective Mohney is a walking contradiction. Apparently, it's never occurred to him that bringing child porn charges against these young teens might result in bullying and suicide. Nothing makes the future look dim and hopeless like a long stint on the sex offender registry. Nothing destroys someone's reputation faster than being listed alongside criminals who manufactured actual child porn, rather than just took a photo of their own adolescent body. For that matter, the preliminary charges make this teen's decision to photograph his own body and send it to another teen a far worse crime than if he'd simply showed up at the girl's house, stripped off his clothes and proceeded to engage in sexual activity with her. Taking off his clothes at her house would have been nothing more than indecent exposure, a misdemeanor. More importantly, unless the person has been convicted for other sexual-related crimes, there's no sex offender registration tied to the charge. Even if he'd pursued sexual contact with the other teen, it still would have been a better outcome than being branded a child pornographer. Michigan has no "Romeo and Juliet" law, so any contact between teens -- no matter their closeness in age -- could trigger statutory rape charges. (Obviously, if the sexual activity was not consensual, this would be actual rape, but there's no reason to believe a [possibly] unsolicited naked photo rises to the level of aggravated sexual assault.) If the activity was consensual, the worst charge would be statutory rape, which does not require sex offender registration for teens. [P]eople who are convicted of criminal sexual conduct based on consensual sexual conduct with children over the age of 13 who are not more than four years older than their victims are not required to register. And, if the sexual contact contained no penetration, no criminal charges would be brought at all. [A] 17-year-old who engages in consensual petting with a 14-year-old could not be prosecuted for a crime. However, if the parties engaged in oral sex, the 17-year-old could face prosecution. So, this so-very-concerned detective has taken a digital photo -- taken by a teen of his own body -- and turned it into something worse than actual in-person nudity and/or sexual contact. That's a pretty fucked up way to show concern for sexting teens. Treating photos taken by minors and distributed to other minors as child porn is the worst possible way to handle a situation that, in all reality, should be left to the discretion of the teens' parents. Permalink | Comments | Email This Story

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Nothing pushes a negative review of your product out of the public eye faster than a lawsuit, am I right? That's the line of thinking Enigma Software has chosen to entertain. It recently filed a lawsuit against BleepingComputer, alleging that its 2014 "review" (actually a forum post detailing Enigma's SpyHunter history as "rogue" software and the deceptive business practices the company has deployed) is defamatory. What would seem to be a mixture of opinion and fact-based assumptions (backed by links to other sources) is portrayed by Enigma as a malicious attempt by BleepingComputer to damage its reputation so the site can push readers to affiliate partners and advertisers. Enigma Software claims in its lawsuit that BleepingComputer has the negative SpyHunter review because it takes part in an affiliate advertising program which grants BleepingComputer a commission for redirecting users to Malwarebyte’s site. The Enigma Software Group claims, “Bleeping not only has unlawfully benefited from its smear campaign to the detriment of ESG, it has damaged the reputation of ESG by refusing to take down its false and misleading statements which have been reposted numerous times on other anti-spyware related forums and websites.” Other computer security sites have already leapt to BleepingComputer's defense. Malwarebytes has donated $5,000 to the site's legal fees and points out that BleepingComputer is not some fly-by-night operation that solely acts as a funnel to preferred vendors. The content is provided by the volunteer efforts of security professionals and the more than 700,000 registered users who ask and answer all questions presented on the site. To summarize, Bleeping Computer is a valuable resource in the efforts to help users live in a malware free world. Over at CSO's Salted Hash, Steve Ragan points out the reputation Enigma claims BleepingComputer is destroying has already been severely damaged by the company's own actions over the years. [T]he lawsuit says, "Bleeping has a direct financial interest in driving traffic and sales to Malwarebytes and driving traffic and sales away from ESG." While that claim is true at face value, the affiliate programs used by Bleeping Computer help keep the website online and they use affiliate links for a number of vendors, not just Malwarebytes. Also, most of the comments that are critical of Enigma Software and SpyHunter exist because the company has gained a bad reputation over the years due to spam, as well as questionable detection rates. Ragan then runs down Enigma's history, including the high number of refunds it's had to hand out to maintain its A+ BBB rating, as well as the years it spent being blacklisted as a security risk by respected anti-virus firms. He also notes, as BleepingComputer did in its disputed forum post, that SpyHunter has never been classified as malware or targeted for removal by competing anti-virus products, but that's apparently largely due to Engima's past litigious efforts, rather than Enigma dropping the more questionable "features" of its product -- like automatic renewals, suspicious scan results and its "pay-to-clean" pricing. (The scan is free. The removal requires a six-month subscription, which will be automatically renewed by Enigma in perpetuity unless otherwise instructed.) The lawsuit is already off on the wrong foot, what with it clearly being filed solely to shut down criticism. While Enigma may find New York's lack of a universal anti-SLAPP statute useful (the current version only protects speech related to the discussion of public permits, and even then, it only protects certain people [bloggers, non-traditional journalists] from SLAPP lawsuits brought by government entities), it's now facing Marc Randazza, who has taken up BleepingComputer's defense. Adding to this is the fact that the specific statements Enigma claims are false and defamatory aren't even directly quoted from the posted review. They're rephrased to put words in the mouth of the forum moderator who posted it. This low-level deception might have made sense if Enigma hadn't included a screenshot of the post it's misquoting as an exhibit in the filing. Here are Enigma's claims, followed by the actual wording used by BleepingComputer. In these posts, Bleeping makes the following assertions falsely and without any reasonable basis to believe that the statements were true when made: That SpyHunter 4 or ESG engage in "deceptive advertising which violates several consumer protection laws in many states"; [The "quoted" statement does not actually appear in this post, or in any of the ones following it in the thread.] ES: That SpyHunter 4 or ESG has a "history of employing aggressive and deceptive advertising"; BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List because of the company's history of employing aggressive and deceptive advertising. [This claim is backed up by a footnote linking to an outside source that reinforces BC's claim.] ES: That SpyHunter 4 is a "rogue product"; BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product on the Rogue/Suspect Anti-Spyware Products List… BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal. ES: That SpyHunter 4 or ESG have not cooperated in submitting their program for testing "most likely due to the program's ineffectiveness and high rate of false positives?"; [Again, this "quoted" phrase does not appear in the post, or in any the moderator's posts in the same thread. The moderator notes it has not been tested by other AV firms to determine its effectiveness, but does not make any related claim about false positives or ineffectiveness. The closest thing to it is this sentence, which is clearly an opinion.] In my opinion SpyHunter is a dubious program with a high rate of false positives. [This is backed up by a link to supporting information from an outside source.] ES: That SpyHunter 4 or ESG engage in deceptive pricing; BC: While there are mixed reviews for SpyHunter, some good and some bad, my main concern is the reports by customers of deceptive pricing, continued demands for payment after requesting a refund, lack of adequate customer support, removal (uninstall) problems and various other issues with their computer as a result of using this product. For example, some users are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy. [Again, these statements are supported by links to information sources. The addition of "my main concern" clearly shows the moderator is making a statement of opinion based on available information. And the connecting phrase "reports by customers" makes it clear he's making an inference based on statements by others.] ES: That most users of SpyHunter 4 "are not aware that when purchasing SpyHunter, they have agreed to a subscription service with an automatic renewal policy"; and [See the above quote and note, again, that multiple links in the review direct readers to outside sites backing up this statement, like the numerous complaints about this practice found at ComplaintsBoard and the Better Business Bureau.] ES: That SpyHunter 4 is "malware" or "rogue security software" despite not being classified as such by security vendors. BC: SpyHunter by Enigma Software Group USA, LLC is a program that was previously listed as a rogue product… BC: SpyHunter is not classified as malware or rogue security software and other antivirus and antimalware vendors do not target it for removal. [These two directly contradict the assertion being made by Enigma in its lawsuit. The author of the post never states that SpyHunter is "malware" or "rogue security software."] Enigma doesn't have much of a case. But it has just enough of one to be troublesome. It's forced others to bend to its will in the past by aggressively litigating, and it can drain BleepingComputer of time, energy and money just by forcing it to defend itself from ridiculous claims. Permalink | Comments | Email This Story

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Learn all about the art of penetration testing and hacking with the pay-what-you-want White Hat Hacker Bundle. The first two courses in the bundle include tutorials on pentesting Node.js and how to prevent XSS attacks. If you beat the average price ($20.06 at the time of writing), you gain access to five more courses covering WiFi security, ethical hacking, Windows exploits, and more. Ten percent of the profits from your purchase will go towards charity to help make the world a better place. 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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Amid the steady stream of "hot takes" the past few weeks on the legacy of the late great David Bowie, The Washington Post's Robert Gebelhoff dug up some of the rock legend's contrarian views on copyright, if only to rebuke them thoroughly. Gebelhoff's piece cited a 2002 interview Bowie gave to The New York Times in which he prophesied: "I'm fully confident that copyright...will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing…It's terribly exciting." Exciting though it may have been, Bowie's prediction obviously has not come to pass, for which Gebelhoff says we should be thankful. In his piece, he notes that strong copyright laws "play an essential role in our creative economy – and have done so for centuries." He cites as evidence a recent Stanford University/NBER study on how differing laws in Italian city-states led to more operas being produced where copyright was protected. Bowie has long been an innovator and music visionary, experimenting with early ways to use the Internet to "cybercast" concerts and connect with fans. But it's important that Bowie wasn't necessarily seeking the death of copyright (after all, he used it to make a living). Instead, he was paying heed to what digital media already had done to revolutionize copyright-centered industries. What he got right was detecting traditional copyright industry's anxiety – the same anxiety that has led them to push successfully for copyright terms to be extended by nearly 580 percent over the last 200 years. Mickey Mouse famously has enjoyed several retroactive copyright term extensions since Walt Disney's death, though Walt has yet to take advantage of this added incentive. So why would Bowie, whose fortune and fame owed so much to the music industry, be excited about the end of copyright? The answer is straightforward: as a working, successful musician and producer, he knew as well as anyone that unlimited copyright protection could hinder creation, as well as remunerate it. If you're a fan of Bowie's "Young Americans," you know that part of its power as a song derives directly from its unembarrassed quotation of the Beatles song "A Day in the Life." While copyright didn't disappear in the decade since Bowie's interview, Bowie was in many ways right about the impending shakeup of the industry. More and more consumers, particularly millennials, are listening to their music on demand through a streaming subscription, rather than purchasing copies a la carte. Remix has become a central technique for new creativity. And heavy-handed copyright can get in its way. Look, for instance, at what future presidential candidate Kanye West did with Ray Charles' "I Got a Woman." Bowie's vision that "music itself is going to become like running water or electricity" turned out to be pretty accurate. This trend has led to sharply declining revenues from physical sales (except for vinyl, which is doing fine, thanks to hipsters) and a steadily increasing share for streaming. Digital downloads are still popular and continue to represent a major revenue source for now. As physical formats have fallen out of favor, as Bowie perhaps foresaw, the industry experienced a period of sharp disruption. The result has been not just depressed global revenues, but also a whole apparatus of production, distribution and retail falling away. As a 2015 study by Midia observed, the narrative of "music industry decline is a label phenomenon." Which echoes what Bowie saw coming in 2002: "I don't even know why I would want to be on a label in a few years, because I don't think it's going to work by labels and by distribution systems in the same way." Of course, the role of our copyright system is not to protect established industries from disruption. Policymakers shouldn't protect the record store from Apple or the bookstore from Amazon. Our nation's founders gave Congress a mandate to use copyright to "promote the Progress of Science and useful Arts." That is, to provide the carrot to spur artistic creation. If we take copyright "incentives" too far, they can undermine artistic freedom by imposing limits on other forms of creative expression and uses of tangible property. Even the opera study Gebelhoff cites in his piece acknowledges this, as its authors write that "there is no clear evidence" that copyright extension beyond the author's life span creates meaningful incentives. In fact, they suggest it has little effect "beyond the first five years." In an article about the study, New York University law professor Christopher Jon Sprigman notes that: "[this] conclusion is particularly important because our contemporary debate is usually not whether to have copyright at all, but rather whether to extend already very long copyright terms." Bowie was wrong that copyright would end, but he was right that copyright as we know it is under threat. Its foundation, built for an analog age, increasingly struggles to function in the digital one. And its market, warped by decades of heavy-handed government intervention and industry carve-outs, doesn't know how to operate freely anymore. That's why substantial reforms will be inevitable. As Congress slowly moves in that direction, it should be mindful of this lesson: stronger copyright laws don't automatically incentivize more creative freedom. In fact, they often come at its expense. Permalink | Comments | Email This Story

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Earlier this week, we wrote about a legislative attempt in France to outlaw hyperlinking without a license (really), but would you believe that whether or not you can link without a license is still an unsettled matter of law in the EU? As is described in great detail over at the Disruptive Competition Project blog, just this week the Court of Justice of the EU heard a case concerning whether or not linking is legal. We wrote about this case last year, but the court has finally heard the case, with an Advocate General recommendation in early April, and a final ruling in the summer. There was a similar earlier case, the Svensson case, which the EU Court of Justice got right, but there's some concern about this new case. In Svensson, the CJEU concluded that a link is a communication within the meaning of “communication to the public.” But it let the defendant off the hook on the theory that the communication was not “to the public,” because the hyperlinks provided by Retriever Sverige did not communicate the articles to a “new public.” Simply put, the court reasoned that once the copyright holder makes the work available on the web without technical restrictions (i.e., no paywall), then posting a link to the material doesn’t communicate it to any audience that wasn’t already intended by the copyright holder. Thus, it’s fine to link to something publicly posted online, provided it was posted with the copyright holder’s authorization. No further licensing is required. So, common sense prevailed and crisis averted, right? Not so fast. Svensson left a crucial question unanswered, and perhaps that question is already clear: What about a link to something that the copyright holder didn’t authorize? For example, what if you post a link on social media to a Buzzfeed article where one of the images that appears in the story wasn’t properly licensed from a photographer, or you link to a leaked document? And where does that leave search engines and other information location tools, which can’t very well determine whether every image, video clip, or article on the websites to which they link has been authorized by the relevant copyright holders before providing you a search result? This is the question that is before the CJEU in tomorrow’s GS Media case. The defendant is a popular Dutch blog that posted links to photos meant for publication in the Dutch version of Playboy magazine, but which were leaked on an Australian server. No one knows who posted the photos to the Australian server, but everyone agrees that the blog only posted links to them. But, of course, if the ruling says that such links are infringing, it could create a huge mess. Any link to unauthorized work could be deemed, by itself, to be infringing. And, the rule would apply to any link accessible in Europe, meaning it would impact people around the globe. If the CJEU rules that every web user, in Europe and beyond, is expected to verify the copyright status of every item on a page before linking to that page, it could effectively destroy the web as we know it today. Would you have to repeatedly check back on the sites you link to, in case the content on the site you linked to has changed? Would you need to confirm that their licenses are all paid in full? Would you also have to verify the copyright status of links on the pages that you’re linking to? If any of this were the case, social media, search, blogs, comment sections, online journalism could be faced with unmanageable legal liability. Hopefully, the EU Court of Justice recognizes the ridiculousness that would result from such a ruling, but until this summer, we just won't know.Permalink | Comments | Email This Story

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