posted 2 days ago on techdirt
The news site Mashable has apparently decided that you, the general public, are simply too dumb to actually own the stuff you thought you bought because you might just injure yourself. We've written about so-called "right to repair" laws and why they're so important. There are a variety of issues, but the most basic one here is about property rights. If you buy something, it's supposed to be yours. It doesn't remain the property of whoever first made it. And they shouldn't then be able to deny you the ability to tinker with, modify, or repair what you bought. However, Mashable's Lance Ulanoff (last seen here being completely clueless about the importance of anonymity online because he, personally, never could see a reason why someone might want to speak truth to power without revealing who they are), has decided that because you might be too dumb to properly repair stuff, the entire "right to repair" concept "is a dumb idea." The article can basically be summed up as "I have a friend, and her iPhone wasn't repaired properly, so no one should be able to repair your iPhone but Apple." Really. My co-worker, Tracey, held her iPhone like a baby bird with a bent wing.  I stared at the dark screen. The device was still on, but stuck somewhere between living technology and a dead iPhone. Tracey said that the device made a popping sound and got really hot in one corner while she was making a phone call. Then, her screen cracked, and burnt her ear. She wanted to know what to do. She explained the incident happened shortly after having third-party iPhone screen repair company iCracked replace her shattered iPhone 6 screen. iCracked was ready to let the original technician repair her phone again. I warned her against it. The phone was obviously dangerous—and letting them touch it again probably wouldn’t help. In fact, I thought it might hurt. Getting past the "using a single anecdote to generalize to absolutely everyone," this still makes no sense. If we want to rule that any kind of repair/modification/tinkering shouldn't be allowed if it might not work right, well... there goes the entire DIY space. This weekend I repaired a broken toilet. It's entirely possible that I could have messed it up (in fact, I did at first, but after a couple of helpful YouTube videos, I got it figured out). Should I not have been allowed to do that? Should I have had to call a plumber who would have charged me $150 just to walk in the door? Lance Ulanoff apparently thinks that's the case. I'm not exactly a handyman, but over the years, I've repaired a ton of stuff in my house from broken dishwashers, computers, garage door openers and more. And sure, if I did it wrong, it could have been dangerous (that garage door opener, in particular, was pretty tricky). But do we really want to live in such a paternalistic society that we shouldn't even be allowed to do that? That seems to be the crux of Ulanoff's article. Right-to-Repair? What a ridiculous thing to say. No one has the right to repair anything. You might have the skill to repair something (something that iCracked tech might've lacked). And you can hand people all the schematics, instructions, and parts you want and they still won’t be able to replace an iPhone battery or screen. This is an even sillier argument. His complaint here is with the semantics. It's called a "right to repair," but of course no one's saying everyone will have the ability. The question is whether or not you can even try to repair something that you bought. It's really a question of property rights and whether or not you are breaking the law just trying to tinker with something. The wonderful world of innovation we live in is built off of people tinkering. The computer industry that makes Mashable possible only exists because a bunch of people were tinkering with different devices and built multiple massive industries out of it. But, Ulanoff is effectively saying that all needs to stop now. Only approved sources can tinker. Later, Ulanoff tries to clarify that he's fine with people being able to repair stuff... if it has moving parts. It’s not that I don’t believe in better-built products and repairability. We need tightening against planned obsolescence cycles—TV sets that once lasted 25 years now fail after five. I’m also a tinkerer. I’ve taken apart everything from VCRs to BlackBerry Curve phones and their classic scroll buttons. When I see moving parts, I think: repairability. Today’s phones have almost no moving parts. At least the iPhone 6 had a moveable home button. The iPhone 7 and 7 Plus don’t even have that. Why the distinction? Who the hell knows? Ulanoff never explains it beyond "when I see moving parts, I think: repairability." Well, good for you Lance. Have a cookie. Not everyone sees the world the way you do. Some people like -- for example -- replacing the significantly weakened battery on their phones so that they can make it last a lot longer. Some people like to replace their cracked screens rather than having to buy a new phone. But, in the end, Ulanoff is just really concerned that you're just too dumb and you're going to hurt yourself: I think it’s a fair concern that Right-to-Repair laws could lead to an explosion of Radio Shack-like iPhone and Samsung electronics parts shops. Consumers will wander in with broken iPhone and Samsung Galaxy screens, and walk out with all the parts and tools they need to repair them. And they will fail, miserably. Plus, what if a consumer's injured during a failed repair attempt? They slice open a finger on the cracked glass, or put it back together incorrectly, so the battery fails (and maybe even explodes). It’s the consumer’s fault, obviously, but they could also try to sue Apple or Samsung. Try to sue? Sure. Succeed at suing? No. And, really, is that the big concern here? No one should be allowed to tinker with their own devices because they might fuck it up and sue Apple. What? In the end, once again, this is a question of whether or not people actually own what they buy. Ulanoff, by default, seems to be saying they shouldn't be able to do so. Because they might hurt themselves. Because they're too dumb to know that glass might cut them if not handled properly. But is that really the job of our laws (including copyright law, which is a key component in blocking people from repairing their own phones...) to say "you can't fix or modify something you bought because you're an idiot"? Ulanoff, like in his silly article about not seeing any need for anonymity, apparently doesn't see any need for people to fix their own stuff. Even worse, because he doesn't see such a need for himself, or his friend Tracey, he's decided it's a-ok for the law to clamp down on people who actually are competent and actually are able to modify, tinker or repair products such as phones. This seems like a very odd way for Mashable to create its opinion pieces. Having some random dude extrapolate his own experiences to apply across everyone. Folks at Mashable responded to lots of people mocking Ulanoff's silly piece by pointing out that it also published a counterpoint. But, as I've noted, this is why I find point/counterpoint arguments so useless. It puts the two arguments on an equal footing and suggests that "welp, you decide." That's silly. Ulanoff's argument makes no sense and is based on nothing more than his own confusion about how the world works. Mashable should feel bad about publishing such an article and pretending it's legit journalism. Permalink | Comments | Email This Story

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posted 2 days ago on techdirt
Correction: As some of you have noticed, we made a silly mistake in this post. Neil Turkewitz is not with the MPAA, but rather a former RIAA executive who is now with the International Center for Law & Economics, a think tank that reliably advocates for the MPAA & RIAA's positions. This week has been dubbed fair use week by a whole bunch of organizations (mostly universities and libraries) as a chance to celebrate the usefulness and wonder that is fair use in protecting free speech, enabling creativity and inspiring innovation. As we've said many times in the past, fair use is an incredibly important concept -- if often misunderstood -- so it's good to see these organizations working together to better educate the public on why fair use is so key. However, not everyone is so enthralled with fair use. The MPAA and RIAA are apparently so frightened by fair use that they, and some of its friends, have been posting weirdly uninformed screeds against fair use over the past few days. Some are more silly than others (such as one that tries to claim that the MPAA has never been against fair use, ignoring that the MPAA's long-time boss Jack Valenti once declared -- totally incorrectly -- that fair use wasn't in the law), but let's focus on the one that comes straight from a former RIAA top exec. Neil Turkewitz, formerly of the RIAA and now the International Center for Law & Economics Senior Policy Counsel, has published a piece at Medium (a site that relies heavily on fair use to protect it from being sued into oblivion) pretending to honor fair use while actually criticizing it. In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the “public interest” on the one hand, and the interest of private copyright owners on the other. In this formulation, the “public” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option. Well, here's something where we actually sort of agree -- though for different reasons. I actually disagree with many fair use supporters in arguing that it's about "balance." I've been saying for a decade now that balance is clearly the wrong standard and it unfortunately presupposes that there are two parties in conflict here. That's not true. I still believe, strongly, that a more optimal copyright policy maximizes benefits for creators and the public (though it may squeeze out some gatekeepers...). The idea that there's some tug of war between two sides has poisoned the copyright debate, unfortunately. But... that's not what the Turkewitz is really arguing here. The end of that paragraph is telling. Those who support fair use aren't just talking about "the ability to get copyrighted materials as cheaply as possible." They're talking about basic concepts such as freedom of expression and access to knowledge and information. That's different than just getting stuff cheaply. We're talking about education and learning and expression -- and rely on fair use not to infringe on someone's copyright (remember: fair use isn't infringement), but to be able to better express ourselves and to better educate. But Turkewitz is building up a head of steam with this pretty massive strawman he's building, and nothing's going to slow him down: Groups like EFF, Public Knowledge and re:Create employ emotive rhetoric in an attempt to demonize copyright, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process. What the hell does "preserving the creative process" even mean? Remember, first of all, that despite all the massive amounts of copyright infringement going on these days (which the legacy entertainment industry constantly reminds us about), we're actually seeing more music, more movies, more video, more books, more written works than ever before in human history. If it's truly the "creative process" that Turkewitz is worried about, well, then there's nothing to worry about. We're witnessing a golden age of content creation, much of it relying on fair use, despite the decades of "sky is falling" rhetoric from Turkewitz and his friends about how strong fair use and new internet innovations will somehow make all the content creators disappear. Hasn't happened. Maybe it's time for the legacy entertainment industry to try something new, rather than just constantly rebooting or creating sequels to its own failed attack strategy? We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something. Unfortunately, for Fairuseweek.org, and its allies, fair use tends to be little more than a useful slogan that has little to do with fairness, and which frequently masks commercial interests that want to distribute or otherwise make creative works available without licensing. Yeah. Sure. Who might be "standing on the shoulders of giants" by misappropriation in order to "sell something"? Could it be... say, Disney? The company that copied the works of others willy nilly without licensing at all, and then claimed copyright over all of it? And, no we're not just talking about the public domain (another important concept that the MPAA has trampled on over the years), but the whole concept of "Steamboat Willy" which launched Disney, which was copied from a film a year earlier. Or... how about the record labels, many of whom got their starts by taking classic songs from African Americans and giving them to white artists, then claiming copyrights over those songs. And those same operations regularly helped out artists like Bob Dylan and Led Zeppelin who were famous for simply rewriting the works of others without giving credits to the original artists. Some of us believe that was pretty creative -- but for a former RIAA exec to whine about "misappropriation... without licensing" is, well, a bit rich. And then we get this bit of pure unadulterated nonsense: When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories. So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value. Of course, one could say the exact same thing about copyright itself. It is not "copyright" that inspires or enthralls. It is content. And, frankly, these days, I find myself inspired and enthralled quite frequently by works that rely on fair use, from mashups to documentaries and the like. And, yes, if we fail to produce cultural artifacts worth accessing, that's a problem. But it's not a problem, because (again) we're producing more such works than ever before in history, and an awful lot of that is due, either directly or indirectly, to fair use and building on the works of others. How many creators today actually got their starts by messing around and copying the works of others, editing videos they pulled from YouTube, or playing cover songs and posting them on sites like YouTube? The fact that we don't (usually!) sue those people out of existence is often thanks to fair use protections, and that has helped build a new generation of creators who don't rely on the MPAA or the RIAA as gatekeepers (perhaps this is why they are really upset). Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access. I propose to the folks at fairuseweek.org a renaming ceremony. How about “sustaining creativity week?” If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate. Again, everything said here applies many more times to copyright itself. And, frankly, if you want to see lots of "sustainable creativity" your best bet is not to look at the MPAAs and RIAAs of the world (shall we point you to the litany of lawsuits over Hollywood accounting and RIAA accounting that highlight how those industries tend to screw over actual creators?) but rather to the technology enablers and platforms that the MPAA and RIAA have fought against for decades. Look at things like Patreon and Kickstarter and YouTube and Spotify and Netflix and Apple: all tech platforms that the industry fought over the years. All of which have helped create new sustainable models where a much higher percentage of the revenue goes to actual creators, and where fair use and greater creativity is celebrated and encouraged. But, I guess, that would conflict just a little bit with the MPAA and RIAA members' business models of being a gatekeeper and keeping all the profits. Permalink | Comments | Email This Story

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posted 2 days ago on techdirt
This week has been dubbed fair use week by a whole bunch of organizations (mostly universities and libraries) as a chance to celebrate the usefulness and wonder that is fair use in protecting free speech, enabling creativity and inspiring innovation. As we've said many times in the past, fair use is an incredibly important concept -- if often misunderstood -- so it's good to see these organizations working together to better educate the public on why fair use is so key. However, not everyone is so enthralled with fair use. The MPAA is apparently so frightened by fair use that it, and some of its friends, have been posting weirdly uninformed screeds against fair use over the past few days. Some are more silly than others (such as one that tries to claim that the MPAA has never been against fair use, ignoring that the MPAA's long-time boss Jack Valenti once declared -- totally incorrectly -- that fair use wasn't in the law), but let's focus on the one that comes straight from the horse's mouth: Neil Turkewitz, the MPAA's "Senior Policy Council" has published a piece at Medium (a site that relies heavily on fair use to protect it from being sued into oblivion) pretending to honor fair use while actually criticizing it. In honor of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use — that is, that the basic objective of the copyright system is to achieve a balance between the “public interest” on the one hand, and the interest of private copyright owners on the other. In this formulation, the “public” interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best (since it is the cheapest) option. Well, here's something where we actually sort of agree -- though for different reasons. I actually disagree with many fair use supporters in arguing that it's about "balance." I've been saying for a decade now that balance is clearly the wrong standard and it unfortunately presupposes that there are two parties in conflict here. That's not true. I still believe, strongly, that a more optimal copyright policy maximizes benefits for creators and the public (though it may squeeze out some gatekeepers...). The idea that there's some tug of war between two sides has poisoned the copyright debate, unfortunately. But... that's not what the MPAA is really arguing here. The end of that paragraph is telling. Those who support fair use aren't just talking about "the ability to get copyrighted materials as cheaply as possible." They're talking about basic concepts such as freedom of expression and access to knowledge and information. That's different than just getting stuff cheaply. We're talking about education and learning and expression -- and rely on fair use not to infringe on someone's copyright (remember: fair use isn't infringement), but to be able to better express ourselves and to better educate. But Turkewitz is building up a head of steam with this pretty massive strawman he's building, and nothing's going to slow him down: Groups like EFF, Public Knowledge and re:Create employ emotive rhetoric in an attempt to demonize copyright, and to suggest that “copyright” protection is somehow a “special interest.” They say that they care about “creativity,” and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process. What the hell does "preserving the creative process" even mean? Remember, first of all, that despite all the massive amounts of copyright infringement going on these days (which the MPAA constantly reminds us about), we're actually seeing more music, more movies, more video, more books, more written works than ever before in human history. If it's truly the "creative process" that the MPAA is worried about, well, then there's nothing to worry about. We're witnessing a golden age of content creation, much of it relying on fair use, despite the MPAA's decades long "sky is falling" rhetoric about how strong fair use and new internet innovations will somehow make all the content creators disappear. Hasn't happened. Maybe it's time for the MPAA to try something new, rather than just constantly rebooting or creating sequels to its own failed attack strategy? We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something. Unfortunately, for Fairuseweek.org, and its allies, fair use tends to be little more than a useful slogan that has little to do with fairness, and which frequently masks commercial interests that want to distribute or otherwise make creative works available without licensing. Yeah. Sure. Who might be "standing on the shoulders of giants" by misappropriation in order to "sell something"? Could it be... say, Disney? The company that copied the works of others willy nilly without licensing at all, and then claimed copyright over all of it? And, no we're not just talking about the public domain (another important concept that the MPAA has trampled on over the years), but the whole concept of "Steamboat Willy" which launched Disney, which was copied from a film a year earlier. So, sure, it would seem that maybe the MPAA might want to clean up its own damn house before casting aspersions elsewhere. And then we get this bit of pure unadulterated nonsense: When was the last time that someone was inspired by fair use? Fair use doesn’t enthrall us…it doesn’t capture our imaginations and transport us to places far away or tucked away deep in our memories. So how about this — why don’t we all recognize that celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value. Of course, one could say the exact same thing about copyright itself. It is not "copyright" that inspires or enthralls. It is content. And, frankly, these days, I find myself inspired and enthralled quite frequently by works that rely on fair use, from mashups to documentaries and the like. And, yes, if we fail to produce cultural artifacts worth accessing, that's a problem. But it's not a problem, because (again) we're producing more such works than ever before in history, and an awful lot of that is due, either directly or indirectly, to fair use and building on the works of others. How many creators today actually got their starts by messing around and copying the works of others, editing videos they pulled from YouTube, or playing cover songs and posting them on sites like YouTube? The fact that we don't (usually!) sue those people out of existence is often thanks to fair use protections, and that has helped build a new generation of creators who don't rely on the MPAA as a gatekeeper (perhaps this is why the MPAA and Turkewitze are really upset). Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access. I propose to the folks at fairuseweek.org a renaming ceremony. How about “sustaining creativity week?” If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate. Again, everything said here applies many more times to copyright itself. And, frankly, if you want to see lots of "sustainable creativity" your best bet is not to look at the MPAAs of the world (shall we point you to the litany of lawsuits over Hollywood accounting that highlight how the MPAA's members tend to screw over actual creators?) but rather to the technology enablers and platforms that the MPAA has fought against for decades. Look at things like Patreon and Kickstarter and YouTube and Spotify and Netflix and Apple: all tech platforms that the industry fought over the years. All of which have helped create new sustainable models where a much higher percentage of the revenue goes to actual creators, and where fair use and greater creativity is celebrated and encouraged. But, I guess, that would conflict just a little bit with the MPAA members' business models of being a gatekeeper and keeping all the profits. Permalink | Comments | Email This Story

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posted 2 days ago on techdirt
On his first day new FCC Boss Ajit Pai repeatedly and breathlessly insisted that consumers and the digital divide would be his top priority. The problem: that dedication was directly contradicted by not only Pai's past voting record at the agency, but his first actions as agency head. Out of the gate Pai undermined an FCC legal case against prison phone telecom monopolies, scrapped an FCC plan to bring competition to the cable box, killed all ongoing zero rating inquiries and began laying the ground work for killing net neutrality, and prevented nine already-approved ISPs from helping the poor via the agency's Lifeline program. Unsurprisingly, it didn't take particularly long for some news outlets to realize that Pai's words weren't supported by his actions. Both The Washington Post and the New York Times penned editorials blasting Pai, most notably for his ongoing disdain for net neutrality, which has broad, bipartisan support. Driven to defend Pai's selection as FCC boss for obvious reasons, ISPs got right to work fighting back via their traditional weapon of choice: bullshitters for hire. Shortly after the Post and Times pieces surfaced, contrasting op-eds quickly popped up in newspapers and websites nationwide claiming Pai is actually an incredible boon to consumers, competition and innovation. Most of these op-eds failed to adequately disclose the authors' financial ties to large broadband providers, or the fact they take money while pretending to be objective analysts -- often including Congressional testimony. Fred Campbell, a long-standing ISP-funded "consultant," penned a piece over at Forbes blasting the Post and Times for "doublespeak," while insisting that Pai is secretly a hero of the people: "Doublespeak is language that disguises or even reverses the meaning of words in order to disguise the nature of the truth. A flurry of attacks on Ajit Pai, the new chairman of the Federal Communications Commission, are full of it. It’s clear that Pai is serious about closing the digital divide between those who use cutting-edge communications services and those who do not." Ah the post-truth era, when those that spend the most time practicing doublespeak endlessly whine about doublespeak. Look, if you actually talk to any genuine consumer advocate in the telecom space (they're easy to spot: they're the ones with limited budgets and shittier suits), they'll quickly tell you that while Pai is a nice guy -- he's a water carrier for industry, rarely if ever challenging their positions on any issue of consumer note. You only need look at his voting record, and the numerous times he not only voted down indisputably pro-consumer initiatives like net neutrality, but refused to hold companies like AT&T accountable for outright fraud -- even when that fraud involved the Lifeline program Pai professes to now adore. Campbell's editorial was one of numerous, similar missives. Rick Boucher, one-time respected Congressional fair use champion, now works at Sidley Austin, a law firm that effectively acts as an AT&T policy arm. That direct financial tie isn't really made clear in an op-ed over at Light Reading, where Boucher informs readers that, despite his nonexistent track record on the subject, Pai will somehow be a champion of expanded broadband coverage: "Chairman Pai recently announced the formation of the Broadband Deployment Advisory Committee, a task force that will offer "specific" recommendations to speed broadband deployment and, in his words, "close the digital divide." Pai's action is an excellent first step towards accelerating broadband deployment (and adoption) throughout the country. Getting great minds together to hack a solution is both wise and urgent. And perhaps most important, it's a sign that fact-based decision-making is now the order of the day at the FCC." But forming a committee to talk about the digital divide isn't an actual solution to anything -- especially expanded broadband coverage. And it certainly doesn't magically obliterate Pai's anti-consumer, and anti-startup voting record. If there's an FCC plan to actually shore up competition or bring broadband to the under-served (like the FCC's recent vote to ensure low-income users can use their $9.25 monthly Lifeline credit for broadband), you can be fairly certain Pai voted against it. It's not really something that's open to debate. Well, unless you're the type that's paid to pretend that generally-accepted facts are up for debate. It's important to understand that broadband providers and politicians adore slathering meaningless platitudes upon the "digital divide" because it earns them cheap political brownie points without having to do much of anything. In fact that's Comcast's entire lobbying MO, and the primary reason they renamed their top lobbyist the company's "Chief Diversity Officer." It's a simple schtick: distract the public by professing your support for closing the digital divide with the bare minimum of effort, while denying the singular problem that causes broadband coverage caps and high prices in the first place: a lack of competition. Over at The Hill, the National Grange, one of countless organizations telecom providers pay to support megamergers and other unpopular policy, also ignores Pai's clear and obvious history, claiming he'll be an incredible boon for rural communities. Over at the telecom-industry funded Heartland Institute blog, Scott Cleland, who also takes funds from the sector while pretending to be an objective analyst, crows that Pai will "return a pro-consumer focus" to the FCC: "Unlike the Federal Communications Commission’s previous head, new FCC Chairman Ajit Pai is putting consumers first, not net neutrality. The sad reality is that the previous FCC did the bidding of the biggest edge providers, both on the issue of net neutrality and opening up the cable box market, as I will explain." Up is down, black is white. We've long noted how the broadband industry has tried to downplay net neutrality issues by claiming that everything is somehow Netflix's fault, and incumbent broadband providers are just misunderstood, innocent daisies. Logical cohesion is generally missing from this narrative, but Pai himself has played a starring role in claiming repeatedly that -- in stark contrast to all available evidence -- it's the edge (content and service companies not-coincidentally challenging the industry's TV stranglehold) providers that are the real internet villains. This disconnect between reality and dollar-per-hollar rhetoric is nothing new, especially in telecom. Former FCC boss Michael Powell, now the cable industry's top lobbyist, made a career out of paying endless lip service to consumers to the acclaim of industry sockpuppets, while his actions repeatedly worked to undermine oversight of giant companies like Comcast (to obvious end). That's because the real goal for most of these folks is something you may have ferreted out already: protection of loyal campaign contributor revenues above all else. If anything, there's an active disdain for the consumer. If Pai actually were "pro consumer," his voting record would reflect it with minimal debate. And consumer advocates (the ones that actually spend ten hours a day fighting the good fight to little acclaim or profit) wouldn't be issuing warnings about "empty rhetoric" and "Orwellian" behavior at the FCC. At the end of the day you have to wonder: if you need to covertly pay people to support your argument, what kind of argument do you actually have? Permalink | Comments | Email This Story

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The European Commission is still (slowly) moving forward with its plan to dump a link tax on service providers like Google, Facebook, etc. in hopes of propping up local news outfits. The plan has been in the works for a couple of years now and it's looking like the longer the planning goes on, the less likely it is to result in something that makes its advocates happy. A long report from Politico details the current state of this doomed venture. And it is doomed. Even if implemented in a way that makes news outlets happiest, the end result will be less incoming traffic from some of the most-used sites in the world. Some news agencies aren't so sure this is the way forward. “Other stakeholders are challenging the provision … questioning not only whether this is the best way of addressing concerns of press publishers vis-a-vis digital technologies, but also questioning whether the Commission proposal is adequately restricted to such concerns,” Therese Comodini Cachia, the Maltese rapporteur shepherding the proposal through Parliament, told POLITICO. Translation: Opponents of the plan, including some small web publishers, worry it could choke traffic to their sites by creating a thicket of regulations that will dissuade Google and other platforms from driving users to them. These critics also argue that a publisher’s right will create a “link tax” (a phrase that supporters liken to a slur) but won’t achieve its backers’ main aim: to save the news sector’s broken business model. That's the problem with short-sighted legislation like this: it fails to consider the options available to those hit with the link tax. And it's not as though there's no information available that indicates what the future would hold for supposed beneficiaries of the link tax. Past efforts in Spain and Belgium to institute a link tax (targeting Google) resulted in the search engine pulling out of the market by dumping any search results that might have resulted in tax liability. Then there are the numerous ways it might affect the average computer user -- beyond finding fewer local articles on Facebook or fewer search results when Googling. The plan’s loudest critic has been Green MEP Julia Reda. Originally elected as a member of the Pirate party, Reda’s encyclopedic knowledge of copyright has made her a respected adversary for the publishers. She’s shown a particular knack for condensing the legalese of copyright reform into alarmist soundbites. She has argued, for example, that the Commission proposal could affect how articles are shared on Twitter, something both the Commission and the publishers deny. As is to be expected, the lack of forward progress is being blamed on Google. Proponents of the link tax are complaining about Google's lobbying efforts in Europe, as though the company should do nothing more than sit down, shut up, and start paying FOR DRIVING TRAFFIC TO THEIR WEBSITES. Opponents of the tax say it's not up to the EC to force other companies to prop up struggling businesses. Those advocating for the tax say it's not up to the EC to question the soundness of their business decisions. It's about ownership… or so they claim. The publishers counter that it’s not up to Parliament to analyze the merits of their commercial strategy. What’s at issue is a basic question of ownership, and the publishers say it is incumbent on legislators to protect their rights. In the pre-digital age, such protections weren’t necessary because news content didn’t fall victim to large-scale piracy. The internet, the publishers argue, has changed that because articles can be disseminated far and wide with a few clicks. This attitude speaks directly to the concerns raised by Green MEP Julia Reda. The publishers view sharing as piracy -- a view not shared at all by millions of people who post links on social media and, again, help drive traffic to the sites. Very few people share news articles by taking entire posts and redistributing them through third parties. And Google -- the top target in the proposed legislation -- does nothing remotely approaching this bizarre definition of piracy with its links to sources and small snippets of article text. That disconnect between what publishers feel is "right" and what the rest of the world believes is acceptable is yet another nail in this legislation's coffin. Even if it passes, it won't do what publishers hope it will. Google will stop linking to European content. People will find less and less local content being shared. And for all the complaining about Google's lobbying efforts, publishers have no problem touting their own as a reason the terrible proposed legislation might one day become law. Despite the skepticism, the publishing lobby remains sanguine, confident that its deep political connections will ultimately see the legislation through. “The news media sector is optimistic that policymakers agree on the need for a publishers’ right,” said Wout van Wijk, executive director of News Media Europe, a lobbyist for press publishers. “Such a right will create the legal certainty needed for further investments and innovation to guarantee a free and pluralistic media landscape in Europe.” Granting this right won't fix publishers' problems. It might give them more ways to sue, but flagging new agencies can't be legislated back into fiscal health -- especially if it means levying taxes on US companies to prop up European entities. In the end, publishers may get what they THINK they want, but they won't be seeing any return on the lobbying investment. Anything that discourages the free (as in "open") dissemination of information tends to work out worst for those compiling the information. A link tax is just a band-aid to be applied to the internet's surface, unable to staunch the blood flow of the new publishing industry's internal wounds. Permalink | Comments | Email This Story

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Techdirt has written dozens of stories about US police forces deploying body cameras, with all sorts of interesting consequences. Their use for school police means that body cameras are also turning up in US schools, but the next logical step of putting body cameras on the actual teachers has been taken not in the US, but in the UK, as the Guardian reports: Teachers in two UK schools are trialling using body cameras in class because they are "fed up with low-level background disorder", a criminal justice academic has revealed. … The former Home Office researcher said the three-month pilot scheme, started within the last month, securely stores footage on a cloud platform like ones used by police forces. Although only two UK schools are currently involved, a survey carried out by the Times Educational Supplement revealed that a third of the teachers who were asked said they would be willing to try wearing a body camera; two thirds said they would feel safer wearing it; and a tenth even thought it would eventually become compulsory for all UK teachers to use them. Another article in the Guardian responding to this news pointed out the many pitfalls of taking this approach, and noted: as teachers we want children to be accountable for their behaviour. But increasing the spread of surveillance in schools isn't going to help us do that. Classrooms will be transformed from spaces cultivating inquiry, in all its forms, to centres wary of the threat of being caught out by an all-seeing eye. Ellis [the criminal justice academic who revealed the existence of the UK trial] is at pains to point out that the cameras will not be on all the time; only "where there is a perceived threat to a member of staff or pupils" will they be used. Quite how this will be decided, and how their use will not gradually become routine, is not clear. One constraint on the routine use of body cameras by all teachers is the sheer quantity of footage that would be produced, and the near-impossibility of reviewing it all. However, that may not be a limiting factor for long if a move by Taser International, which controls around three-quarters of the body camera business in the US, bears fruit: Taser International, the military hardware company that essentially owns the police body-worn camera market, believes the solution lies in artificial intelligence. It has acquired a startup called Dextro to build an AI research lab focused on developing tools that make it easier for police to search and analyze the massive video libraries hosted by Taser. Once it gets easier and cheaper for the police to search through their vast video libraries, it will also become easier and cheaper for others to do the same. At that point, it might not be just schools that start deploying body cameras, but everyone interacting with the public in some way. What could possibly go wrong? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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In 2009, April Yvette Smith was arrested on drug dealing charges and spent 80 days in jail. The charges were ultimately dropped by the district attorney, but by the time it happened, Smith had already lost her job. The same can't be said for the officer who obtained her arrest warrant. His job was always secure. The only thing he's lost -- seven years after the fact -- is his immunity from Smith's civil rights lawsuit. The chain of events leading to Smith's wrongful arrest are as horrible as they are stupid. Somewhere between Barney Fife and the banal evil of law enforcement ineptitude lies Officer Jason Munday. It starts with a "wired" confidential informant and ends in an indifferent "investigation" that sounds as though Munday just got bored sitting around the office. Here's how it began, as detailed in the Fourth Circuit Court of Appeals opinion [PDF]: On March 10, 2009, officers Munday and McGinley conducted an undercover investigation using a confidential informant, Rufus Lynch Sr. The officers searched Lynch, wired him with audio and video recorders, and gave him sixty dollars. Lynch then went to 728 East Pine Street, where he purchased crack cocaine from two individuals. After the transaction, Lynch returned to the officers. He told the officers that he purchased drugs from April Smith, a black female. The detective’s notes identify April Smith as such: “B/F April Smith,” and “April B/F skinny $20 1 rock in plastic, Smith 40s.” So far, so good… except for the many small details that collaborated to ensure the recording was useless. Because the audio recorder had no batteries, it failed to record the transaction. And because the camera wired to Lynch pointed in the wrong direction, the video recording did not capture the drug sale. The video instead shows an unidentified black woman sitting on a front porch, and two other individuals standing on the porch. Sending out someone to collect recordings and ending up with something approaching hearsay isn't the best way to begin an investigation. But that didn't stop Munday from moving slowly and fitfully towards an arrest he had no probable cause to make. At some point during the next nine months, Munday scanned police databases for residents of Lincoln County named April Smith with criminal records. He then stumbled upon April Yvette Smith, a black woman who lived in Lincoln County and had been convicted of selling crack cocaine in 1993, 1997, and 2005. His search also revealed at least two other April Smiths with criminal records. He had no indication that the woman who sold crack cocaine to Lynch in March 2009 had a criminal record, or was even a Lincoln County resident. And the record reflects no further attempt by Munday to investigate Smith or connect her to the crime. Having wrapped up his ultra-cursory investigation, Munday applied for an arrest warrant, snagging one of the April Smiths he had come across during his desktop browsing -- nine months later and eleven miles away from the site of the drug sale that wasn't properly recorded. April Smith spent the next 80 days in jail, facing potential prosecution. Munday presumably went back to half-assing his way through his law enforcement career. The lower court granted Munday immunity, stating that probable cause existed to arrest pretty much any April Smith who fit at least part of the description. The Appeals Court disagrees. [E]ven ignoring Smith’s weight, a criminal history, common race, common gender, and unfortunately common name is not enough to establish probable cause. [...] When applying for an arrest warrant, Munday simply did not have enough information for any reasonable or prudent person to believe there was probable cause. He lacked any information connecting Smith’s conduct to the contours of the offense, and certainly lacked enough evidence to create any inference more than mere suspicion. As the court points out, Munday did nothing that even approached the definition of "investigation." All he did was browse a criminal record database and decide someone named April Smith was going to get a rap and a ride. For all the policework that went into this, Munday may as well have used a dartboard to generate his "probable cause." [T]o find the offender, Munday merely ran a broad search in the department’s database of individuals with criminal histories, looking for a woman of the same name. And when he found multiple individuals, at least two of whom were black women named April Smith weighing between 130 and 140 pounds, he chose one for no immediately apparent reason. [...] There is no evidence that Munday attempted to identify Smith as the black woman in the video footage. There is no evidence that the officers showed Lynch a photo of Smith to establish the identification. There is no evidence that the officers investigated Smith herself, or found any indication that Smith frequented the site of the drug sale that day, that month, or at all. Indeed, there is no explanation whatsoever for the nine-month delay between Lynch saying a black woman named April Smith sold crack cocaine to him and the issuance of an arrest warrant for April Yvette Smith. Citing a previous case handled by this circuit, the Appeals Court calls Officer Munday out for his abject failure to perform any investigative work whatsoever before moving forward with an arrest. “Horner was ‘not required to exhaust every potentially exculpatory lead or resolve every doubt’” to show probable cause. Id. at 190 (quoting Miller v. Prince George’s County, 475 F.3d 621, 630 (4th Cir. 2007)). But he still had to conduct some level of investigation. And he did. Munday conducted none. And so, the court concludes Munday can't have the immunity granted to him by the lower court. The warrant he applied for was so lacking in probable cause, the court cannot possibly extend him this legal nicety. [E]ven a glance shows that Munday was unreasonable if he believed he had probable cause. Smith did have a criminal history for possessing and selling cocaine. But as discussed above, Munday had no evidence about her conduct whatsoever, let alone any evidence connecting her to the crime in question. It would be unreasonable for any officer to view Munday’s dearth of evidence as sufficient to establish probable cause. As a result, qualified immunity does not apply. Because Munday failed to do his job, April Smith (allegedly) lost hers. Smith has already faced the consequences of Officer Munday's actions. Now, it's Munday's turn. Permalink | Comments | Email This Story

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For years now, ESPN has been the perfect personification of the cable and broadcast industry's denial regarding cord cutting. Long propped up by a system that forces consumers to buy massive bundles of largely-unwatched channels, ESPN has struggled with the rise of streaming alternatives and sleeker, "skinny" channel bundles. The sports network, which has lost 7 million viewers in just a few years, has been trying to argue that these losses (which caused Disney stock to lose $22 billion in value in just two days at one point) are simply part of some kind of overblown, mass hallucination. Last year, ESPN exec John Skipper even went so far as to suggest that these departing customers weren't worth keeping anyway: "People trading down to lighter cable packages. That impact hasn't leaked into ad revenue, nor has it leaked into ratings. The people who’ve traded down have tended to not be sports fans, and have tended to be older and less affluent. We still see people coming into pay TV. It remains the widest spread household service in the country after heat and electricity." In other words, there's "nothing to see here" -- outside of the total collapse of our entire legacy business model. At one point late last year, ESPN even went so far as to make a giant (unwarranted) stink about Nielsen data showing the cable channel had lost 621,000 homes in a single month. Things still aren't looking particularly good for the company, with Disney's earnings indicating that ESPN is fairly consistently losing about 10,000 viewers per day. That's not surprising when you see surveys indicating that 56% of subscribers would drop ESPN in a heartbeat if it meant saving the $8 per user the channel is estimated to cost consumers. Despite these numbers, Skipper and other ESPN executives have spent the last few years insisting that offering a standalone streaming app (you know, evolving for the market you're doing business in) wasn't financially viable: "We could sell ESPN, as a standalone product, but we don't believe it to be a good business," Skipper said. "We're in 90 million homes," he added, "so no, we do not have a contemplation now that we would launch as a standalone." That was then, this is now. And ESPN executives appear to have been overruled by Disney higher ups. Speaking on the company's recent earnings call, Disney CEO Bob Iger said that ESPN would now be conducting an about-face, and would launch a standalone streaming video service sometime in the next year or so: "Iger affirmed that ESPN will launch a branded standalone streaming service later this year, in partnership with BAMTech, the digital technology firm in which Disney bought a $1 billion stake last year. He also talked up the prospects for ESPN to offset the industry-wide trend of declining subscriber rates via from traditional MVPDs through gains from the handful of upstart streaming channel packages that are in the works." Necessary evolution -- how novel! Granted, ESPN's still on the hot seat. I've heard from several industry insiders familiar with ESPN's contracts with cable companies that language currently prevents cableco's from breaking ESPN out of the core channel lineup (something ESPN sued Verizon for in 2015, because of course) unless ESPN offers its own streaming service standalone. In other words ESPN's in for a rocky stretch either way. Either the company launches a streaming video service that encourages cable companies to kick ESPN from the core bundle, further eroding ESPN's traditional cable customer totals, or they refuse to offer such a service and these users leave anyway. But when you're facing a major dismantling and reconfiguring of a legacy industry due to disruption, it's better to be out in front of it and ready to meet evolving user demand, than stumbling around blindly in denial. Permalink | Comments | Email This Story

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Innovation isn't easy, but success in Silicon Valley involves a bigger dose of luck than a lot of entrepreneurs seem prepared to admit. Chance gets left out of the economic equation all too often, and this week we're joined by Mike's own Econ 101 professor from Cornell, Robert Frank, to discuss the role of luck in the world of entrepreneurs and innovation. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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In news that will surprise no one, police officers decided they must do something about someone filming the police department building from across the street. That's where this Fifth Circuit Court of Appeals decision begins: with a completely avoidable and completely unnecessary assertion of government power. Phillip Turner was filming the police department. He was accosted by two officers (Grinalds and Dyess). Both demanded he provide them with identification. He refused to do so. The officers arrested him for "failure to identify," took his camera, and tossed him in the back of a squad car. Given the circumstances of the initial interaction, it's surprising the words "contempt of cop" weren't used on the official police report. From the opinion [PDF]: Grinalds asked Turner, “How’s it going, man? Got your ID with you?” Turner continued videotaping, and Grinalds repeatedly asked Turner if he had any identification. Turner asked the officers whether he was being detained, and Grinalds responded that Turner was being detained for investigation and that the officers were concerned about who was walking around with a video camera. Turner asked for which crime he was being detained, and Grinalds replied, “I didn’t say you committed a crime.” Grinalds elaborated, “We have the right and authority to know who’s walking around our facilities.” Grinalds again asked for Turner’s identification, and Turner asked Grinalds, “What happens if I don’t ID myself?” Grinalds replied, “We’ll cross that bridge when we come to it.” Grinalds continued to request Turner’s identification, which Turner refused to provide. Grinalds and Dyess then “suddenly and without warning” handcuffed Turner and took his video camera from him, and Grinalds said, “This is what happens when you don’t ID yourself.” Turner asked to speak to their supervisor. Given that this happened right across the street from the department, Turner didn't have to wait very long. A supervisor arrived and came to at least one correct conclusion: Lieutenant Driver identified himself as the commander. Driver asked Turner what he was doing, and Turner explained that he was taking pictures from the sidewalk across the street. Driver asked Turner for his ID, and Turner told the lieutenant that he did not have to identify himself because he had not been lawfully arrested and that he chose not to provide his identification. Driver responded, “You’re right.” Texas police officers love to misread the state's "failure to identify" statute. It doesn't say what they think it does… or what they want to believe it does. A former cop-turned-law student has a full explanation here, but suffice to say, cops cannot arrest someone for refusing to ID themselves -- at least not in Texas. The charge can be added after an arrest (if the refusal continues), but it can't be the impetus for an arrest. After some discussion between the officers, Turner was released and his camera was given back. Turner filed a civil rights lawsuit. The lower court granted immunity to the officers on all allegations. The Fifth Circuit, however, refuses to go as far. And in doing so, it actually takes it upon itself to address an issue it easily could have avoided: whether the First Amendment covers the filming of public servants, specifically law enforcement officers. First, the court asks whether the right to film police was "clearly established" at the time the incident took place (September 2015). It can't find anything that says it is. At the time in question, neither the Supreme Court nor this court had determined whether First Amendment protection extends to the recording or filming of police. Although Turner insists, as some district courts in this circuit have concluded, that First Amendment protection extends to the video recording of police activity in light of general First Amendment principles, the Supreme Court has “repeatedly” instructed courts “not to define clearly established law at a high level of generality”: “The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” Thus, Turner’s reliance on decisions that “clarified that [First Amendment] protections . . . extend[] to gathering information” does not demonstrate whether the specific act at issue here—video recording the police or a police station—was clearly established. The court doesn't leave it there, although it could have. The court notes that there's a circuit split on the issue, but just because the issue's far from decided doesn't mean courts have not recognized the right exists. It points to conclusions reached by the First and Eleventh Circuit Appeals Courts as evidence the right to film police has been acknowledged. Even so, there's not enough clarity on the issue to remove the officers' immunity. We cannot say, however, that “existing precedent . . . placed the . . .constitutional question beyond debate” when Turner recorded the police station. Neither does it seem that the law “so clearly and unambiguously prohibited [the officers’] conduct that ‘every reasonable official would understand that what he is doing violates [the law].’” In light of the absence of controlling authority and the dearth of even persuasive authority, there was no clearly established First Amendment right to record the police at the time of Turner’s activities. This is where the opinion gets interesting. While many judges would leave a trickier, somewhat tangential issue open and unanswered, the Fifth Circuit Appeals Court decides it's time for it to set some precedent. We conclude that First Amendment principles, controlling authority, and persuasive precedent demonstrate that a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions. [...] To be sure, “[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Filming the police contributes to the public’s ability to hold the police accountable, ensure that police officers are not abusing their power, and make informed decisions about police policy. Filming the police also frequently helps officers; for example, a citizen’s recording might corroborate a probable cause finding or might even exonerate an officer charged with wrongdoing. In the Fifth Circuit -- joining the First and Eleventh Circuits -- the First Amendment right to film police has been asserted. Unfortunately, the issue still remains mostly unsettled, and there's currently nothing in front of the Supreme Court that would set national precedent. Unfortunately, the decision doesn't help Turner with his First Amendment claim, but it will help others going forward. The court also reverses immunity on one of Turner's Fourth Amendment claims. While it finds the officers were justified in questioning him, they went too far when they arrested him. First, as pointed out above, the "failure to identify" law can't be used to predicate an arrest. And, after questioning him, the officers still had nothing approaching the probable cause they needed to make a warrantless arrest. Even though Turner was detained in the back of the squad car for only a short period of time, the fact that he was obviously not free to go makes it an arrest under the Fourth Amendment. Strangely, the dissent, written by Judge Edith Brown, claims the Appeals Court has no business setting precedent. In her opinion, the nation's second-highest courts should stand idly by and wait for the Supreme Court to do the work. The majority asserts, unconnected to the particular facts and unnecessary to the disposition of this case, that “a First Amendment right to record the police does exist, subject only to reasonable time, place, and manner restrictions.” The majority derives this general right to film the police from “First Amendment principles, controlling authority, and persuasive precedent.” But the Supreme Court has repeatedly reversed attempts to define “clearly established law” at such “a high level of generality.” White, 137 S. Ct. at 552. The judge narrowly defines Turner's filming to ensure it would never fall under this supposedly "broad" definition of the right. She says the Appeals Court defines the protection as covering "filming police." But Turner wasn't doing that. To the extent there is any consensus of persuasive authority, those cases focus only on the narrow issue of whether there is a First Amendment right to film the police “carrying out their duties in public.” E.g., Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). Turner did not allege that he filmed police officers conducting their public duties, but rather that he filmed a police station. Somehow, filming police officers as they enter and exit a public building is not "filming police carrying out their duties in public." Remarkably, Judge Brown says there may be "reasonable" security concerns that could Constitutionally prevent Turner's actions. The majority does not determine that the officers here violated Turner’s First Amendment rights—perhaps because it would be reasonable for security reasons to restrict individuals from filming police officers entering and leaving a police station. If police officers are entering and exiting a building from doors clearly viewable by the public from a public area, the officers obviously aren't that concerned about their "security." If so, they would use an entrance/exit members of the public can't see or don't have access to. If the Fourth Amendment doesn't protect the privacy of citizens in public areas, the same public areas can't be given a heightened privacy protection that only covers public servants. Unsurprisingly, Judge Brown thinks Turner's involuntary stay in the back of a squad car could reasonably be viewed as Turner just hanging out there waiting to speak to a supervisor: Because Turner himself requested a supervisor, a reasonable police officer in that situation could believe that waiting for the supervisor to arrive at the scene did not transform Turner’s detention into a de facto arrest. At the very least, Officers Grinalds and Dyess did not act objectively unreasonably in waiting for the requested supervisor—especially because Lieutenant Driver had to come from the Fort Worth Police Station across the street. Except that most people "waiting for a supervisor" don't do so while: a.) handcuffed b.) sitting in the back of a locked squad car The length of the detention doesn't matter. And it was ultimately the supervisor's arrival that sprung Turner. If not for the arrival of the supervisor -- who immediately recognized Turner couldn't be arrested for refusing to ID himself -- Turner would undoubtedly have spent an even longer period being detained, if not taken into the PD and processed. The good news for Turner is that his sole remaining Fourth Amendment claims -- the wrongful arrest -- lives on. But the bigger win -- the First Amendment protections confirmation -- helps everyone else but him. Permalink | Comments | Email This Story

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Last week, reports began to emerge that internet users were unable to access The Pirate Bay and other BitTorrent-focused websites. Ultimately it was discovered that this was courtesy of transit provider Cogent, which was blackholing an undetermined number of IP addresses allegedly linked to copyright infringement. The IP addresses in question didn't belong to the websites -- but to popular CDN provider Cloudflare. All told, Cogent's blockade impacted around twenty different websites -- but the impact was global, with ISP users worldwide unable to access these IP addresses if they traveled the Cogent network. Initially, Cogent wouldn't comment whatsoever on why this was occurring, but later confirmed to Ars Technica that the company had received a Spanish court order (it's not clear if it's the same 2015 order demanding Cogent block access to music streaming website Goear.com). Cogent was vague about the order itself, but did confirm that The Pirate Bay was blocked -- despite it not being a target of the court order. Subsequent routing checks confirmed the impact was global across Cogent's footprint. As we've seen time and time again, actual pirates with just a modicum of technical knowledge utilize a variety of tools (VPNs most specifically) to tap dance around such restrictions, making these filtering efforts ham-fisted "solutions" that cause more problems for the internet and end users than they traditionally solve. In talking to Ars, Cogent acknowledged the potential "collateral impact" that such orders and filters can cause, especially when applied globally at scale to multihosting transit operators like Cloudfare, where one IP address may be home to multiple, unrelated websites: "Cogent went on to say that “as a general matter, courts may require Cogent, as an ISP, to take certain actions with respect to a third-party website, an IP address or block of IP addresses. If Cogent’s customer decides to commingle traffic from the website that is the target of the court order with the traffic of other websites, the other websites that point to the same block of IP addresses may be adversely affected. When a Cogent customer controls the affected IP addresses, Cogent does not have the ability to know ahead of time what other websites may be affected or to control the collateral impact on these other websites. When collateral effects occur, we do work with our customer to try and mitigate the effects on others websites." While U.S. net neutrality rules do prohibit network providers from blocking specific websites, exceptions were carved into the rules governing copyright infringement. Cloudfare, which helps websites improve performance and fend off DDoS attacks, can manage its IP addresses in such a way to help Cogent comply with court orders more narrowly. But this becomes arguably untenable when dealing with multiple court orders, all dealing with different websites and ISPs at global scale. Take the kind of filtering collateral damage we've long seen, and apply it globally in disjointed chorus. Cloudfare often pops up as an entertainment industry bogeyman simply because its services often obscure the real origin server from the end users. But Cloudfare's General Counsel Doug Kramer was quick to complain that these sorts of orders, especially if poorly crafted and targeting core transit networks, can have a broad impact on the general health of the internet: "This is part of the danger you get into when you start to censor the Internet or you get orders to pull things down,” Kramer said. “It may not be so easy to limit access to a specific domain," or to make sure a block applies only in a certain country. Cogent, and not Cloudflare, is the company that had to implement the block, but Cloudflare is “trying to set up a technical system where Cogent can respond to the order that they’ve been given, but within the narrow scope of that and not have impacts that go beyond that," Kramer said." Kramer also pointed out that it might be important to understand how the internet works before you set about chopping giant holes in it via court order: "It’s important for courts to understand how Internet systems work so they can write orders that don’t end up having unintended consequences,” Kramer stresses. "As a company, Cloudflare believes strongly in an open, free, and secure Internet. And it is also our policy to fully comply with legitimate court process," Cloudflare’s General Counsel says. "This can be challenging at times, especially when courts target backbone providers and don’t understand fully how they work. Cloudflare takes steps to make sure those court orders don’t lead to unintended impacts." Take the non-transparent, ham-fisted, and ultimately futile filtering efforts we've come to know and love, and apply them at global scale, with little to no real concern about the obvious unintended impact on the health of the internet itself. What could possibly go wrong? Permalink | Comments | Email This Story

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It's essential to stay up to date on the newest developments in programming languages and tools, and the $34 Computer Science Programming Languages 2017 Bootcamp is designed to help you do that. With ten complete modules on some of the newest updates in computer science, this course is ideal for veterans trying to refresh their craft, or newcomers looking to get off on the right foot. This bootcamp is a part of a special collection of courses we're highlighting with an extra deal this week. Select this course or any from the collection and type in the code LEARN50 at checkout to receive an additional 50% off of your purchase. 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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President Trump appears to have thrown his support behind asset forfeiture, even as the issue has begun reaching critical mass in the mainstream media. (It's been thoroughly covered by more libertarian publications like Reason for years.) In addition to not being able to "see anything wrong with it," Trump jokingly suggested he'd ruin the careers of politicians mounting reform efforts. His recent executive orders appear to back this "gloves off" approach to criminal justice. In addition to singling out immigrants as troublemakers, the orders ask law enforcement officials to take a look around and see if they're being constrained by any state or federal laws. Presumably, any recent forfeiture reform legislation would fall under this heading as it prevents law enforcement agencies from acting in the way they've become accustomed: seize first, convict later... if at all. With Jeff Sessions in place as attorney general, asset forfeiture appears to be headed for the wrong kind of renaissance. Sessions is a firm believer in the general rightness of taking aways citizens' property and due process simultaneously because, as he sees it, the process only affects people who've "done nothing but deal dope their whole lives." Now, there's this: Rep. Jim Sensenbrenner is offering up another bill with a clumsily reverse-engineered acronym -- one that could further pervert the incentives of asset forfeiture. (via Watchdog.org) Today, Congressman Jim Sensenbrenner introduced the Build Up Illegal Line Defenses With Assets Lawfully Lifted (BUILD WALL) Act of 2017 in the House of Representatives. [...] This legislation would require the U.S. Attorney General to provide a detailed report on the amount of annual profits brought into the United States by Mexican drug cartels, as well as a study of how the Department of Justice can increase assets seized from such cartels. Additionally, the BUILD WALL Act would use money forfeited from drug traffickers to fund increased border security on the U.S./ Mexican border. This defense could include a wall, another type of physical barrier, and/or a technology-supported solution. The use of this funding would ease the financial burdens on taxpayers and help build stronger relations between the United States and Mexico while fighting back against drug trafficking in both countries. While Sensenbrenner's statements mention Mexican drug cartels, the reality is that the billions the cartels make from drug sales are safely back in Mexico and (mostly) out of reach of US law enforcement. That leaves everyone on this side of the border, who can now be viewed as unwilling donors to the cause. If Trump's ever going to be able to, uh, BUILD WALL, he's going to need several billion more dollars than was stated in his original estimate. That's where Mr. and Mrs. Interstate Traveler come into play. A few hundred dollars here and there, and eventually it adds up to real wall-building money. This means the federal government would be looking to take a larger share of any revenue generated from asset forfeiture in partnerships with local law enforcement. This may not make the local boys happy, but considering many of them use these partnerships to route around local forfeiture restrictions, they can't complain too much about the slightly-smaller cut of the proceeds, when the alternative might be nothing at all. Lawmakers who support DJT's Folly are casting about in hopes of landing a few billion in wall funding. Mexico has only extended a middle finger in response to the Wall Plan, so it's up to us Americans to make a billionaire's dreams come true. If that means having our cash, cars, and houses seized without accompanying criminal allegations, much less convictions, so be it. The security of our nation depends on our unwilling sacrifice. This wall must be built to ensure our nation is only susceptible to the thieves already in our midst. Permalink | Comments | Email This Story

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It looks like Apple decided to drop in on flyover country in hopes of thwarting a "Right to Repair" bill pending in the Nebraska legislature. It did not go well. [T]he prospect of a Cupertino-based megacorporation losing business to local repair shops isn't a very sympathetic argument at the Nebraska statehouse. And so Apple has tried a slew of other tactics, according to state Sen. Lydia Brasch, who was recently visited by Steve Kester, an Apple state government affairs specialist. "Apple said we would be the only state that would pass this, and that we would become the mecca for bad actors," Brasch, who is sponsoring the bill, told me in a phone call. "They said that doing this would make it very easy for hackers to relocate to Nebraska." Apple probably expected its heavy-handed (and stupid -- more on that in a bit) "suggestion" to be taken more seriously by podunk legislators in the middle of nowhere. Unfortunately for Apple, Brasch isn't just a legislator in a state mainly known for corn and football-as-religion. Brasch is not only an Apple customer, but she's a farmer who has had to deal with plenty of repair-blocking BS from companies like John Deere. She also has a background in computer science and an apparent tendency to not let corporate lawyers talk down to her. Not only did Apple pick the wrong legislator to threaten, its threat is incoherent. I've spent most of the last 15 years in the Midwest and, trust me, it would take far more than a right-to-repair bill's passage to make Nebraska a mecca of anything. (Beyond college football, he said to head off the Cornhusker faithful most likely already demanding a retraction…) Then there's the thing about "hackers." There's more than one type of hacker, but Apple dropped it as a pejorative term in hopes of conjuring images of hoodied figures sitting in dark rooms with the local SWAT team on speed dial and deploying some sort of encryption… you know, the evil kind. All sorts of nonsensical arguments are already being raised in response to a handful of right-to-repair bills around the nation. The corporate version of "you'll shoot your eye out" has been deployed to portray DIY repair jobs as hospitalizations waiting to happen. The idea that it's "unsafe" to repair your own devices is one that manufacturers have been promoting for years. Last year, industry lobbyists told lawmakers in Minnesota that broken glass could cut the fingers of consumers who try to repair their screens, according to Gay Gordon-Byrne, executive director of Repair.org. Byrne said she will also testify at the Nebraska hearing and "plans to bring band aids." Apple's take is this: the "hacker mecca" thing plus a very short parade of not-all-that-horribles. Brasch said the representatives made two other main arguments: They said repair could cause lithium batteries to catch fire, and said that there are already enough authorized places to get iPhones repaired, such as the Apple store. Define "enough." As Brasch points out, getting her devices repaired "conveniently" involves setting up an appointment at the nearest Apple store, which is 80 miles from where she lives. Apple certainly doesn't mind taking money from rurally-located customers when selling devices. But it's not nearly as willing to make repairing their purchased products actually convenient. And it's not just Apple. Other phone manufacturers have spoken to Brasch in an attempt to get her to drop the legislation, or at least rewrite it in their favor. "They said just take out the 'phone' part of the bill and we'll go away," Brasch said. "That's tempting, but we need to repair consumer technology too." Brasch's bill sprung out of her frustration with repairing her farm's equipment, which has been made increasingly difficult by John Deere's refusal to allow anyone other than repair shops it makes a profit from to touch its products. Phone manufacturers have the same attitude. They express faux concern about consumer safety while preventing consumers from having any control over how their purchased devices are repaired. The concern most of these companies have for their consumers only extends as far as their ability to purchase add-ons, new products, and inconvenient repairs at non-competitive prices. The battle is over bottom lines, not consumer safety, no matter how it's spun and no matter how many hacker-based horror stories are spun. Permalink | Comments | Email This Story

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posted 3 days ago on techdirt
After quite some time, a New Zealand court has said that Kim Dotcom is eligible for extradition to the US -- something he's been fighting for over five years. But there's a weird twist to the story. A key part of the argument that Dotcom's lawyers have been making is that for extradition to the US, there needs to be "dual criminality" (you can hear Dotcom's lawyer, Ira Rothken, discuss this on our podcast a few months back). And, the key "crime" that Dotcom is charged with involves secondary copyright infringement (i.e., creating a platform that others use to infringe). But, that's a problem, as there's no criminal secondary copyright infringement under New Zealand law (nor US law, but that's a separate issue). So, here's the twist. The court actually agreed that there's no such thing under New Zealand law -- and said that Dotcom can't be extradited for copyright infringement. However, the court said that he can be extradited for "fraud" because there's dual criminality there. As Dotcom's lawyers point out, that means this is no longer, as was claimed by the US, the "largest criminal copyright case" because copyright is officially no longer a part of it. But, if the copyright part is taken out... where's the "fraud"? The whole claim of "fraud" is based entirely on the fact that Megaupload users infringed on copyrights. So if that's not a crime, then, um... where's the fraud? I know that some will argue that it doesn't really matter, and they'll insist that what Dotcom and Megaupload did was "bad" -- end of story. But we're still supposed to live under the rule of law, and you don't just get to throw people in jail because they're "bad." You have to prove they actually broke the law. But that's a big problem here, because Megaupload didn't violate copyright law. And if it didn't do that... where's the "fraud"? Dotcom's lawyers will now try to appeal this part of the ruling, extending this legal fight even further. But it's a bigger issue than that. If courts can wipe away safe harbor protections by service providers by hiding behind a "fraud" claim, there are no longer safe harbor protections: The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet. That's dangerous for free speech, it's dangerous for innovation, and it's dangerous for basic respect for the law. Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
Last week, when we launched our Techdirt Survival Fund, we received a lot of support and encouragement — but of course we also recognize that there are plenty of good reasons some readers might not want or be able to donate. So it was largely unnecessary for one commenter to come by and explain that we "aren't important enough", but at least it yielded a response from Vaultnode that won most insightful comment of the week: Aren't you an egotistical one? Mike has had lawmakers and Congressional staffers on his podcasts saying that TechDirt's writings was substantively responsible for changing some legislation on tech issues. That's pretty damn important in my eyes. Moving on... In second place on the insightful side we head to our post about Trump's ongoing Chicago crime proclamations, where one commenter busted out the "Chiraq" label, only for Roger Strong to counter with some blunt fact-checking: ABC7 I-Team Investigation: Despite 'Chiraq' label, data show Chicago not even close to Iraq In that same nine year period when 4,265 citizens were killed in Chicago, there were almost 30 times as many citizens killed in Iraq. Last year, there were 459 murders in Chicago. In Iraq, there were more than 17,000. Last weekend in Chicago, there were seven murders. In Iraq, there were 103. And Iraq's murders have been doubling year to year, unlike Chicago's murder rate that has been cut in half since 1991. Speaking of Roger Strong and fact checking, for editor's choice on the insightful side he gets one more nod for his characterization of the Trump administration's media strategy: It's like a distributed denial-of-service attack on fact checkers. Next, we've got an excellent anonymous response to the frankly idiotic refrain of "Techdirt loves regulation and hates capitalism": It is important to not conflate "Capitalism" with the corrupt, globalist-rigged, anti-competitive, anti-free-market, labor-crushing, democracy-hating, politically-coopted, crony manipulations of whatever in the hell name you'd come up with to describe what the US/Western markets have metastasize into. Where big money is in play, Capitalism does not typically exist (only mega corporations doing whatever they consider necessary to ensure the continued existence of their established interests). There are few better examples of what Capitalism is NOT, than the US broadband industry. It's an industry that better serves as a cautionary tale as to what devastation befalls a country that allows industry to "self-regulate" too much and then fails to enforces meaningful consequences to those organizations whose belligerent pursuit of profit delivers ever increasing degrees of harm to the public good. "Government Regulation" per se, should never be the crux of the discussion. The meaningful discussion concerns itself with 'good/effective-in-promoting-healthy-markets' versus 'bad/effective-in-promoting-rigged-markets' regulation. Our contemporary problem with "regulation" in the US/Western markets is that big business and their wealthy benefactors have corrupted/gamed the regulatory process and the end result is that a boat load of very bad (i.e., nonsensical - unless it happened to be your lobbyist who wrote it up and bribed the politicians to pass it) regulation exists. Over on the funny side, for first place we head to our post about how the Trump administration is going to handle leaks, in which we dedicated the first portion to once again harshly criticizing Obama's handling of the same. Thad sarcastically underlined that fact for some of our detractors: But what I want to know is why Techdirt never talks about all the secrecy in the Obama Administration. Next, we head to our latest post about the Oracle/Google debacle, where we accidentally failed to close a parenthesis in the post to the understandable ire of one punctuation-sensitive commenter. But an anonymous commenter won second place for funny by making up an excuse for us: TechDirt cannot use closed parentheses because "matching parentheses" notation appears in the Java API, which has been copyrighted by Oracle. For editor's choice on the funny side, we start out with a response from Gwiz to one of the perennial "what does this have to do with tech" comments we receive: I really wish people would quit asking this, like it's some sort of "gotcha" moment. Techdirt writes about a lot of things, most of them related to tech, but not always. If it's a problem for you, find something else to read. Seriously, do you people post comments at PopeHat.com and ask them what their articles have to do with the Catholic leader's headgear too? Finally, because it is also one of my own pet peeves and conversational red flags, we've got one more nod to Thad for a response to someone who used a particular term in his comment: Sheeple? Clearly you are a serious person with serious ideas. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2012, mass anti-ACTA protests broke out across Europe as opposition to the bill continued to swell. Bulgaria joined the list of EU members halting ratification of the treaty and even the European Parliament's president spoke out against it. The EU official who resigned in protest of ACTA explained further what was wrong with it, the head of Mozilla called it a bad way to develop policy, Public Knowledge made a strong call for greater transparency in such agreements, and our own Glyn Moody offered a thorough debunking of the European Commission's list of supposed "myths" about ACTA as well as the idea that there's any meaningful transparency at all. Despite all this, the IFPI and other lobbyists stood by the agreement, even having the gall to claim that the public protests were silencing the democratic process. Ten Years Ago Things were pretty grim on the copyright front this week in 2007. The RIAA was making its first forays into voluntary enforcement deals with ISPs that would forward settlement letters, which would eventually morph into the now-dead six strikes program. The US entertainment industry was trying to get Canada condemned as a pirate haven while its Canadian counterpart was itself pushing for an iPod tax. Microsoft was introducing yet another DRM scheme even as one survey showed that even two-thirds of music industry executives thought ditching DRM would be a good idea. Hollywood was beginning a new crusade against Google, not over YouTube but over ads on P2P websites, and a jury sided with sample troll Bridgeport in yet another abuse of the George Clinton copyrights they own. There was, at least, one victory: an EFF-backed lawsuit forced a prolific DMCA abuser to rescind his baseless takedown notices. Fifteen Years Ago There was one event this week in 2002 so much more significant than the others that it deserves the sole focus this week. Today, CC licenses are an integral part of the world of digital content, but (because copyright is a disaster) such open and flexible licenses were not always so easy to employ no matter how much a creator might want to. But it was this week fifteen years ago that we first learned that Lawrence Lessig and a team of other people were working on a new project called Creative Commons to provide an alternative to copyright. Two Days Ago What, two days ago? Yes: this week, I'm using this space to remind everyone about the Techdirt Survival Fund that we launched on Friday along with our filings in the lawsuit we face. We're very grateful to everyone who has donated so far, and hope you continue to give generously and spread the word so we can continue our fight for free speech. Techdirt is off tomorrow for President's Day. We'll be posting the weekly comment winners at noon, and back to our regular schedule on Tuesday! Permalink | Comments | Email This Story

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posted 6 days ago on techdirt
New Gear From Techdirt: I Invented Email » As some of you might have noticed, recent upgrades over at Teespring have allowed us to change the way we offer Techdirt gear. Instead of running individual week-or-two long campaigns that only print and ship once the whole thing is completed, we've now got our logo gear (in two styles) and our I Invented Email gear running on a cycle with new orders printing and shipping every three days, so you don't have to wait nearly as long to get your hands on it. Those of you who already ordered should be getting your shirts, hoodies et al soon! Another batch closes tomorrow (Sunday) night — so order now to get in on the next shipment! The Email gear won't be around forever, so don't wait too long. Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
Donate to the Techdirt Survival Fund » As we mentioned last month, we are currently being sued for $15 million by Shiva Ayyadurai, represented by Charles Harder, the lawyer who helped bring down Gawker. We have written, at great length, about Ayyadurai's claims and our opinion — backed up by detailed and thorough evidence — that email existed long before Ayyadurai created any software. Once again, we believe the legal claims in the lawsuit are meritless and we intend to fight them and win. Earlier today, we filed a motion to dismiss (along with our memorandum in support) and a special motion to strike under California's anti-SLAPP law (along with a memorandum in support). You can see all of those below. I encourage you read through them. Unfortunately, the fight itself is incredibly distracting and burdensome. It has taken up a significant amount of my time (and the time of others who work here) over the last month and delayed multiple projects that we were working on, and even forced us to pass on writing about many stories we would have liked cover. Even though we are confident in winning the legal fight, it has already taken a massive toll on us and our ability to function and report. We have now set up a Techdirt Survival Fund at ISupportJournalism.com, which will allow us to continue our reporting on issues related to free speech and the growing threats to free speech online, while continuing to fight this legal battle. We've put together an all-star steering committee to help us oversee how the funds will be spent, including representatives from both the Freedom of the Press Foundation and EFF. Many of you have already supported us in various ways -- by becoming Techdirt Insiders, supporting us on Patreon or by buying t-shirts. We are so grateful for all initial support we've received, but for us to survive, we unfortunately need to ask for more help. Please consider supporting us via this new fund and spreading the word as well. In this era, especially, strong independent voices in journalism are necessary. Allowing lawsuits to stifle freedom of expression online, silencing voices and creating chilling effects, is a huge threat to how a responsible society functions. Please support Techdirt and support journalism. Donate to the Techdirt Survival Fund » Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
As the world continues to get used to an America with a President Donald Trump at its head, the binary nature of the current political climate has reared its own head in unfortunate ways. One example of this is the stunning speed with which many of those previously ignorant of the emoluments clause of the Constitution, as the Title of Nobility Clause is commonly called, have feigned familiarity with it. As one of my colleagues here termed it, the "emoluments hunting" going on is transparently political in nature, rather than representing a serious effort at protecting the public interest from the shadow of undue influence and sanctioned bribery over our highest political office. Both sides of the American aisle are badly misusing this important constitutional text. Those whose skin might crawl at the mere words "President Trump" seem to find emoluments violations everywhere, even in the most trivial of cases. Trump himself, of course, hasn't helped in the matter, even when he easily could, as he has shirked the norms of disentangling the presidency from the previous life of he who holds that office. Trump, you will recall, has distanced himself from the decision-making aspects of the family business, but not the profits of it. It's an important distinction, which we'll get into in a moment. But first, for the sake of context, let's start with the text of the emolument clause, as well as the framers' reasons for its inclusion in the highest law of our land. The text itself is blessedly short and seemingly simple. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. The purpose for the clause was stated explicitly by Alexander Hamilton in the Federalist Papers. "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." That's pretty straight forward. To prevent the corruption of those in office, those who hold office are restrained from accepting titles, gifts and remuneration from foreign states or foreign leaders. Now, Trump and his allies have claimed repeatedly that the clause does not apply to the President. To do this requires a tortured reading of the clause itself, the blatant ignoring of its intention, as well as a peculiar emphasizing of certain historical events. For example, an oft-cited "proof" of the claim is that Hamilton himself responded to a request by Congress for a list of all persons holding office in the United States, as well as their salaries, with a list consisting only of those officers appointed, while omitting anyone who held elected office. When you have to reach that far back to such a simultaneously tangential and trivial historical instance to argue that a President should be allowed gifts from foreign governments, you don't have much of an argument at all. And that debate has taken on a certain amount of primacy at present, because for all of the "emoluments hunting" currently going on, there are some very real instances where the raising of the clause is perfectly valid. One of those intersects nicely with a subject we discuss here regularly: trademarks. Chinese trademarks, specifically, now that President Trump, the businessman, has managed to win trademark rights in China after a long slog of a fight that only turned in his favor when he became Donald Trump, the President. In the context of the entire point of the emoluments clause, it cannot be stressed enough just how long this fight has been going on. In 2006, Trump applied for a trademark for “Trump” in connection with a company providing construction services in China. China’s Trademark Office rejected the application, on the grounds that someone else (Dong Wei) had filed a similar application about two weeks earlier, and had priority under China’s first-come-first-served trademark rule.* * There are, apparently, more than 200 other “Trump” marks on the Chinese trademark register — for everything from Trump toilets to Trump pacemakers, Trump condoms and even a “Trump International Hotel” — that have been claimed by persons other than Trump (or any of the Trump Organizations). This, as all good trademark nerds will recognize, is a concrete illustration of a common problem in “first-to-file” jurisdictions, where it can be relatively easy to “reserve” a mark by filing an application, without evidence that you are actually using the mark in question. Since that initial rejection in 2006, the Trump business has appealed the decision all the way up the Chinese legal ladder, and lost at every turn. The last loss his business suffered on the matter came in May of 2015, shortly before Trump declared his candidacy for President. The rulings, again, only went in one direction against Trump the businessman, and that was a losing direction. Suddenly, in April of last year, Trump suddenly went back to the Trademark Review and Adjudication Board, which had ruled against his appeal of the original rejection of his trademark application, and asked it to simply review its previous decision. Strangely, the Review Board suddenly reversed course, invalidating Dong's trademark. Trump's trademark was not codified until November 13th, in the immediate aftermath of his winning the Presidency. Immediately after that, the Trump organization applied for nearly fifty other trademarks in China, all of which are pending. In the context of this complete reversal, the timing of which coincides with Donald Trump becoming President of the United States, does this register as a violation of the emoluments clause? If we can finally resolve this question about whether the clause applies to the President in a way that preserves both the framers' intentions as well as the realm of common sense, it sure seems to be. It’s not bribery, exactly, that we’re trying to prevent in this clause. We don’t need a special constitutional provision prohibiting office-holders from taking bribes, because taking bribes is already illegal under the common law, and it is also one of the “high crimes and misdemeanors” for which office-holders can be impeached. But it’s a close cousin to bribery; accepting an emolument introduces an improper element — personal gain — into the decision-maker’s calculus, less obviously and overtly than in cases of actual bribery, but no less serious for that. And that is precisely the situation Trump is now in. He has 49 additional applications pending before the Chinese Trademark Office. He has been given a nice, valuable gift, and he could be forgiven for thinking that other similar gifts could follow (if he behaves himself well). It's worth repeating that this question could have easily been avoided had Trump bowed to the norms of the presidency and gone further to divest or partition his office from his business than he has. The only reason we're having this conversation is because our current President made the decision to make such questions relevant. And since Trump currently has the status both of President and businessman, benefits to the one must be considered benefits to the other. The granting of trademarks ought to be included in this, particularly given the circumstances surrounding how and when those trademarks went from being wholly rejected to suddenly being granted. And for those who would point out that Trump is merely getting his legal benefits under Chinese law, that shouldn't matter. But why should that matter for purposes of the foreign emoluments clause? If France had had a law that gave all visiting Americans a snuff box (if they came at a certain time to the Hotel de Ville and submitted an application), would Jefferson have been able to keep his? Wouldn’t it have been just as troublesome in those circumstances as an outright gift would have been? Questions like this were bound to arise after we elected our first billionaire businessman-President. Those questions were assured to exist when that President refused to divest from his business. And we shouldn't look negatively upon our President's previous business success or acumen. But the emoluments clause does exist and, if it is to have any relevant meaning at all, it seems likely that these Chinese trademarks violate it. If nothing else, perhaps cases such as these will finally bring legal clarity to whether the clause applies to the President, because that's a question that is practically begging to be answered at this point. Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
The saga of Facebook Live marches on, I suppose. The social media giant's bid to get everyone to live-stream content that mostly appears to be wholly uninteresting has nevertheless produced some interesting legal stories as a result. The latest of these is the conclusion of a string of lawsuits filed by a man who used Facebook Live to stream the birth of his child over copyright infringement against many, many news organizations that thought his act was newsworthy. It was in May of 2016 that Kali Kanongataa accidentally publcly streamed his wife birthing the couple's son. He had intended for the stream to only be viewable to friends and family, but had instead made the stream viewable by pretty much everyone. Even after realizing he'd done so, Kanongataa kept the stream public, leading over 100,000 people to view the video -- including some folks in several news organizations, who used snippets of the stream in news stories about the couple's decision to stream this most intimate of moments. And then came the lawsuits. In September, Kanongataa filed suit (PDF) against ABC and Yahoo for showing portions of his video on Good Morning America as well as the ABC news website and a Yahoo site that hosts ABC content. He also sued COED Media Group and iHeartMedia. In October, he sued magazine publisher Rodale over a clip and screenshot used on the website for its magazine Women's Health. Last month, he sued Cox Communications. In November, ABC lawyers filed a motion (PDF) calling their client's use of the Kanongataa clip a "textbook example of fair use." ABC used 22 seconds of a 45 minute video in order to produce a news story that would "enable viewers to understand and form an opinion about the couple's actions." ABC's motion, embedded below, goes on to patiently explain to the court and, presumably, to Kanongataa's crack legal representation, that the entire point of the Fair Use defense was to allow small amounts of works to be used for the purpose of commentary and in news stories. Were lawsuits like this one to be victorious, news in the era of the image would come to a screeching halt. And, since the stories generated by these news organizations centered on the newsworthy nature of a couple streaming this sort of thing in the first place, use of such clips and images was perfectly in line with Fair Use usage in their reports. The presiding judge, Lewis Kaplan, appears to have understood this correctly, having tossed the lawsuit against ABC and the other defendants. Judge Kaplan's order shuts down Kanongataa's lawsuit against ABC, NBC, Yahoo, and COED Media Group. A lawsuit against CBS and Microsoft was dropped in November, possibly due to a settlement. The case against Rodale is still pending and is also being overseen by Judge Kaplan. Kanongataa's lawsuit against Cox was filed in a different district and remains pending in the Eastern District of New York. This really is about as textbook a case of Fair Use as there could possibly be, leading us to wonder what in the world the legal team Kanongataa had hired was thinking in filing this in the first place. Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
In what looks to be the FNG currying favor with the new boss, rookie Congressman Jim Banks is introducing a bill that would turn the DHS's social media prying from something it would like to do to something it has to do. Congressman Jim Banks (IN-03) today will introduce the Visa Investigation and Social Media Act (VISA) of 2017, legislation to strengthen the vetting process for visa applicants. The bill is the first piece of legislation that Congressman Banks will introduce. While CBP and DHS have been asking incoming foreigners for social media info for a while now, the process has been voluntary -- or at least as voluntary as any process can be when one side holds all the power. New DHS Secretary John Kelly suggested this would expand further in the near future, moving from requests for social media handles to demands for account passwords. Rep. Banks appears to be making a move to codify the DHS's requests for social media info. It doesn't go so far as to demand account passwords, but it would make examination of foreigners' social media accounts part of the vetting process. The bill's text hasn't been posted yet, but here's what Rep. Banks' website says the legislation will include. The VISA Act of 2017 would require the Department of Homeland Security to include the following in the background check of any individual applying for a visa to the United States: A review of the applicant’s publicly available social media activity (i.e. public tweets, YouTube videos, Facebook photos and posts); An interview of each applicant who is age eleven years or older; A fraud-prevention check of each applicant’s documentation; and A requirement that the applicant provide an English translation of his or her documentation. Rep. Banks says this is no different than the process companies use to vet new hires. That's a truly bogus comparison. While some companies view applicants' social media posts when considering them for employment, very few are demanding social media account information as part of the application process. Those that do tend to drop the policies as soon as they're made public. (And child labor laws pretty much rule out interviews of tweens and teens.) What's most troubling about this new rep's bill is its complete uselessness. The only real change it makes is dropping three years from the interview requirement (from 14 to 11). Everything else is something Customs already does. Vetting of social media posts has been part of the process for months. Banks' bill just makes it a requirement for the DHS to perform social media checks on all applicants. The legal ball will get pushed downhill, which will force applicants to hand over this info. ("In compliance with [insert US Code info here], DHS/CBP require applicants to provide social media account information, etc.") This may make it easier for the DHS to start demanding passwords, but the bill limits itself to public posts. As for the rest of it, it's completely redundant. Extensive background checks are run on all applicants against several databases and Customs has required an English translation of visa applicants' documentation for years. Banks likes corporate analogies so he should be aware his effort looks like a new hire trying to make his mark -- not by being a valuable addition to the company -- but by enthusiastically offering up worthless suggestions that signal your "Company Man" virtues to upper management. Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
With all of that important data sitting on your phone, it is important to keep it backed up somewhere. IDrive Unlimited Mobile Backup could be one way you protect your data from accidental deletion. For $10, this lifetime license will work with 5 of your mobile devices and will let you easily retrieve your information from the cloud. They promise that you can even restore across platforms should you decide to change ecosystems. You can share files with friends, back up your Facebook and Instagram accounts, and the backups are encrypted. 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 7 days ago on techdirt
President Trump's three new law-and-order Executive Orders are designed to combat a largely-nonexistent crime wave and increase protections for one of the most-heavily protected groups in America: law enforcement officers. The orders also mixed crime prevention and national security into a single bowl, making criminal activity inseparable from threats to the nation -- especially if foreigners are involved. In addition to his travel ban and his Two Minutes Hate reporting system, Trump also singled out illegal immigrants in these "law and order" orders, implying that they were to blame for much of the perceived crime problem. That's in addition to some off-the-cuff remarks Trump made during a meeting with several sheriffs, where he suggested there was no need to reform asset forfeiture and joked that those pushing reform efforts should have their careers ruined by the nation's top (proxy) cop: Donald Trump. The president may unequivocally have law enforcement's back for the next four years (at minimum), but the nation's top cops don't have his. Or, at the very least, they don't agree with Trump's hardline, anti-crime, pro-cop-always stance. In a report [PDF] filled with suggestions for the new president, a coalition of police chiefs, district attorneys (including Manhattan decrypto warrior Cyrus Vance), and other police officials agree that the ideas Trump is pushing so far are only going to make the nation's policing -- and the nation's relationship with police -- worse. While Trump has been calling for longer sentences, increased law enforcement presence, and projected a zero tolerance approach to everything until crime rates lower (or at least his perception of crime rates -- the stats don't back up his claims), this group says throwing the book at everyone is just going to perpetuate criminal activity. We urge the Administration and Congress to carefully consider new crime policies, and adopt and support those that fight crime effectively. Decades of experience have convinced us of a sobering reality: today’s crime policies, which too often rely only on jail and prison, are simply ineffective in preserving public safety. We need not use arrest, conviction, and prison as the default response for every broken law. For many nonviolent and first-time offenders, prison is not only unnecessary from a public safety standpoint, it also endangers our communities. Once inmates are released, they struggle to find employment, housing, and other necessities that would re-integrate them into society. Facing few legitimate opportunities, many ex-offenders return to crime. The higher the incarceration rate for such offenders, the less safe the citizenry. We must instead consider those policies that better preserve public safety. Dangerous, violent offenders should be behind bars, but incarceration is not necessarily the best tool to put non-violent offenders back on the road to productive, law-abiding lives. The report also points out that throwing money at the problem hasn't helped either. Money is useful, but only if it's spent on useful activities. Each year, the federal government spends billions in criminal justice grants to support overwhelmed police department and government budgets. For example, the Department of Justice offered $5.5 billion in grants to local agencies in 2016. These dollars fund law enforcement efforts to investigate and prosecute crimes. However, to a large degree, these outlays are not targeted at fighting violent and serious crime. In fact, some of these dollars are expended on antiquated law enforcement tools, such as dragnet enforcement of lower-level offenses. This misses an opportunity to prioritize resources towards more effective ways of fighting violent and serious crime in the states. Without such change, states will continue inefficient enforcement techniques. Also discussed are sentencing reform, increased efforts to better deal with drug addicts and the mentally ill (something that doesn't involve regular deployments of force/jail time) and a heavier focus on community policing. What it doesn't contain are suggestions to roll back all of this to the mid-80s and pretend we have something like a crack epidemic to attend to. The conclusory paragraph says -- contrary to Trump's viewpoint -- that efforts in these areas will result in better law enforcement and safer communities. But while many police officials and prosecutors disagree with Trump, police unions disagree with police officials (and prosecutors) -- albeit without going through the trouble of producing a report that explains their side of things. “I can promise that if we have a president who is speaking about protecting the lives of police officers, that the membership is going to be supportive of him,” said Chuck Canterbury, the president of the Fraternal Order of Police. “No police officer took an oath that said, ‘I agree to support and defend the Constitution and to get my butt whipped.’” Michael A. Ramos, the president of the National District Attorneys Association and the chief prosecutor in San Bernardino County, Calif., hailed the shift in emphasis, saying the pendulum had swung “way too far” toward being “soft on crime.” These comments are illuminating. In both cases, constitutionally-adherent policing is viewed as "soft." That's how far the pendulum has actually swung, despite Ramos' assertion to the contrary. Many police officers act as though the Constitution only applies to people they never interact with. For everyone else, their rights are whatever rights the officer feels they have at the time. As long as these rights don't prevent them from doing what they want, citizens are free to enjoy them. If not, take the complaint to court where various levels of immunity will routinely allow Constitutional violations to go unpunished. A long list of DOJ investigations confirm law enforcement's generally negative attitude towards the people they police. First, an "us vs. them" attitude dehumanizes anyone not wearing a badge. Effective policing is unconstitutional policing, and cops aren't going to let a bunch of rights get in the way of cracking heads and asserting their authority. Undoubtedly, officials like Canterbury and Ramos view sentencing reform, community policing, curbing non-essential arrests, handling mental illness with more care, etc. as "soft" as well. And the new president appears to be onboard with this backwards thinking -- where adhering to the Constitution is a luxury a supposedly-besieged law enforcement community can no longer afford. Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
While T-Mobile isn't without its faults (like its opposition to net neutrality, or the time its CEO mocked the EFF), there's little doubt that T-Mobile has been a good thing for the wireless industry. The company has managed to drag the industry kicking and screaming in an overall positive direction, including the elimination of the carrier-subsidized handset model, the elimination of annoying hidden fees, and the recent return to more popular unlimited data options. And its brash CEO John Legere, while sometimes teetering into absurd caricature, has at least managed to bring a sense of industry to a traditionally droll telecom sector. And while T-Mobile had been mocking AT&T and Verizon's forays into video as "distractions," the company this week strongly hinted that it may bring a little bit of disruption to a sector that needs it most. Both Legere and T-Mobile COO Mike Sievert made numerous comments during their earnings call this week making it pretty obvious they wanted to test the market's reaction to the idea of some kind of T-Mobile video service: "Talk about a poster child for an industry that has really kind of ignored customers and ignored customer cares and gouged at every corner,” Legere said of the pay-TV market during T-Mobile’s earnings call Tuesday. “Clearly, I salivate when I think about the possibilities of changing some of those (video) industries. And frankly, I’m fascinated with how little AT&T has done since they spent the mother lode buying DirecTV, and pretty much have let it sit on the side, and still be an old, crappy linear TV that they bundle weakly with their unlimited offer, so maybe more to come." Subtle. Legere didn't get into specifics about how T-Mobile would enter the sector, but one possibility remains some kind of M&A with Dish Network, which has plenty of TV assets and a long-harbored desire to jump into the wireless sector (Dish has been not-so-quietly hoarding wireless spectrum for a long while). Like Legere, Sievert also spent more than a little time making fun of the cable sector, which continues to sport some of the lowest customer satisfaction ratings in any industry in America: "The data on this is really clear. The cable industry is statistically one of the most unloved industries in the history of the consumer economy. So, obviously, it’s ripe for innovation in this area,” T-Mobile COO Mike Sievert said on the call. “I’ll tell you one thing, in 2017 we will reach the point where people have more screen time on mobile devices than on any other kind of screen, that’s really something incredible when it comes to watching their video. So we’ll see how this convergence unfolds, but in it we’re where the industry is going, not where it’s coming from, and we’ve got a brand that really resonates with people and possibly could resonate in an industry that’s even more maligned than we found ours four years ago when we got here." A Dish M&A is one of the more palatable consolidation possibilities facing the telecom sector under what's expected to be a dramatically more M&A-friendly Trump administration. T-Mobile is also a rumored acquisition target for Comcast or Charter Communications, neither of which would be likely to continue T-Mobile's foray into price competition or disruption. Similarly, a Sprint acquisition of T-Mobile would reduce the number of overall wireless carriers in the space, reducing competition and potentially putting T-Mobile's disruptive run to an ignominious end. Permalink | Comments | Email This Story

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