posted 2 days ago on techdirt
Between the company's general disposition and the incredible failure of the SimCity launch, Electronic Arts is becoming a name associated directly with digital rights management. The most infamous DRM platform the company has used is probably SecuROM, which was noteworthy for being equal parts mega-annoying to paying customers, as well as being so massively ineffective that games employing SecuROM later became amongst the most pirated video games of all time. But, results aside, EA would tell you that it needed to use DRM to protect the company from piracy. Even if SecuROM failed, the company had to at least try, or else the freeloaders that live the highlife getting around intellectual property laws would win. Violating IP laws is wrong, damn it, and EA was going to do everything in its power to right that wrong. Including violating a notorious patent troll's intellectual property to do so, apparently -- at least, according to an East Texas court, which awarded Uniloc nearly $5 million after determining that EA violated the patent troll's patent with the SecuROM platform. Uniloc Luxembourg S.A. sued in 2013, claiming EA's SecuROM video game activation system infringes on U.S. Patent No. 5,490,216. The system allows EA customers to activate and register their video games and is aimed at reducing piracy and "casual copying," Uniloc alleged. SecuROM restricts the number of devices a customer can simultaneously activate a game on with the same key. EA games that use the system include "Alice: Madness Returns," "Dragon Age II" and "Darkspore: Limited Edition," the complaint stated. Uniloc asked the court to for compensatory damages and "a reasonable, on-going, post judgment royalty." A federal jury agreed with Uniloc and awarded over $4.86 million in compensatory damages on Friday. I have to admit, I feel a bit like the characters at the end of the original Jurassic Park movie, who were being attacked by velociraptors only to be saved at the last moment by the tyrannosaurus rex that had nearly murdered them all earlier. You don't really root for either side; you can only pray they tear each other apart. That said, schadenfreude is one of my failings, and enjoying it with the healthy dose of irony that comes along with EA infringing on a patent with its anti-piracy software is so good, it's likely fattening. But, hey, live the IP sword, die by the IP sword, right?Permalink | Comments | Email This Story

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Despite arguments otherwise, most of them broached by government lawyers, what can be viewed by the public may also contain a reasonable expectation of privacy. A federal judge has just thrown out evidence obtained by law enforcement without a warrant. The case, which dates back to last year, involves Washington police and Leonel Vargas, an immigrant who law enforcement suspected of drug trafficking. Without a warrant, police installed a video camera on a nearby utility pole and aimed it at Vargas' front yard. After over a month of recording, the police got lucky: Vargas, an undocumented immigrant, decided to perform target practice in the front yard of his rural Washington home. This gave officers the probable cause they needed (illegal weapons possession) to search Vargas' house. The resulting search uncovered drugs and guns, leading to his arrest and indictment. Vargas objected to this violation of his privacy. The government argued that Vargas' publicly-viewable front yard and door couldn't be considered private. This argument waged back and forth for several months, with the EFF entering an amicus brief on behalf of the defendant at the invitation of the court late last year. The EFF has some good news to report, and it's all contained in a minute order by Judge Shea. Law enforcement's warrantless and constant covert video surveillance of Defendant's rural front yard is contrary to the public's reasonable expectation of privacy and violates Defendant's Fourth Amendment right to be free from unreasonable search. The video evidence and fruit of the video evidence are suppressed. As the EFF points out, even public areas have privacy implications. While no one reasonably expects the front of their house to be a private area in the strictest sense, they do reasonably expect that no one will place it under uninterrupted observation for extended periods of time… at least not without a warrant. The hitch, of course, is that the privacy violation is tied to the length of time and the type of the surveillance. There's no specific point at which privacy protections kick back in (so to speak), so decisions like this are being made on a case-by-case basis. Given the courts' general slack-cutting when it comes to law enforcement and intelligence agencies, this is probably the best we can expect for the time being. Considering how much time elapsed between the installation of the camera and the capture of incriminating footage, it's hard to see why local law enforcement didn't pursue other investigative methods or obtain a warrant. Now, because it opted for warrantless, long-term surveillance, its most incriminating evidence can't be used against the suspected drug trafficker. Law enforcement agencies often claim that the securing of warrants takes too much time and allows criminals to escape arrest, but in far too many cases, the actual facts contradict these arguments.Permalink | Comments | Email This Story

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Back in August, we noted that Google had started adjusting its search algorithm to give a slight boost to sites that are encrypted. That is, all else equal, sites that use HTTPS will get a slight ranking boost. The company made it clear that the weight of this signal will increase over time, and this is a way of encouraging more websites to go to HTTPS by default (something that we've done, but very few other sites have done). Now it appears that the Chrome Security Team is taking things even further: suggesting that all HTTP sites be marked as non-secure: We, the Chrome Security Team, propose that user agents (UAs) gradually change their UX to display non-secure origins as affirmatively non-secure. We intend to devise and begin deploying a transition plan for Chrome in 2015. The goal of this proposal is to more clearly display to users that HTTP provides no data security. More specifically: UA vendors who agree with this proposal should decide how best to phase in the UX changes given the needs of their users and their product design constraints. Generally, we suggest a phased approach to marking non-secure origins as non-secure. For example, a UA vendor might decide that in the medium term, they will represent non-secure origins in the same way that they represent Dubious origins. Then, in the long term, the vendor might decide to represent non-secure origins in the same way that they represent Bad origins. This seems like it could have quite an impact in driving more sites to finally realize that they should start going to HTTPS by default. There's really no excuse not to do so these days, and it's good to see the Chrome Security Team make this push. The more encrypted traffic there is, the better.Permalink | Comments | Email This Story

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As a string of whistle blowers like former AT&T employee Mark Klein have made clear abundantly clear, the line purportedly separating intelligence operations from the nation's incumbent phone companies was all-but obliterated long ago. As such, it's relatively amusing to see Verizon announce this week that the company is offering up a new encrypted wireless voice service named Voice Cypher. Voice Cypher, Verizon states, offers "end-to-end" encryption for voice calls on iOS, Android, or BlackBerry devices equipped with a special app made by Cellcrypt. Verizon's marketing materials for the service feature young, hip, privacy-conscious users enjoying the "industry's most secure voice communication" platform: Verizon says it's initially pitching the $45 per phone service to government agencies and corporations, but would ultimately love to offer it to consumers as a line item on your bill. Of course by "end-to-end encryption," Verizon means that the new $45 per phone service includes an embedded NSA backdoor free of charge. Apparently, in Verizon-land, "end-to-end encryption" means something entirely different than it does in the real world: "Cellcrypt and Verizon both say that law enforcement agencies will be able to access communications that take place over Voice Cypher, so long as they're able to prove that there's a legitimate law enforcement reason for doing so. Seth Polansky, Cellcrypt's vice president for North America, disputes the idea that building technology to allow wiretapping is a security risk. "It's only creating a weakness for government agencies," he says. "Just because a government access option exists, it doesn't mean other companies can access it."Just because we put a backdoor in a product, doesn't mean those backdoors will be abused, right guys? Right? Of course this is the same Verizon that has mocked Internet companies for "grandstanding" when it comes to their latest encryption push. But while those companies have refreshingly started competing over who can respect your privacy more, Verizon's making it clear that privacy is an afterthought, even when pitching privacy services. Perhaps someday Verizon can see fit to offer "end-to-end encryption" that actually is.Permalink | Comments | Email This Story

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The US Supreme Court recently ruled -- despite panicky DOJ arguments otherwise -- that cell phones are unlike someone's pant pockets or little black book and can't be simply searched incident to arrest just because the arrestee (like nearly every American) happens to have one on their person. The decision noted that the capability and capacity of modern cell phones makes them incomparable to other items cited in previous decisions on warrantless searches. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.... Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson. This description of today's smartphones is universal. The leap in technological capability and storage capacity should give any judicial system pause when considering law enforcement's general assertion that they should be able to fully search anything carried by an arrestee. Unfortunately, Canada's Supreme Court has weighed the same factors and arrived at the opposite conclusion. (via Reason) In a crime ruling that earned it rare praise from the federal government, the Supreme Court of Canada said police may search cellphones without a warrant when they make an arrest. Much like in the US, the impetus for warrantless searches is (and has been for quite some time) the eternal War on Drugs. Cellphones are the bread and butter of the drug trade, the majority said in a 4-3 ruling. It said police have been given the “extraordinary power” to do warrantless searches during an arrest, under common-law rules developed by judges over centuries, because of the importance of prompt police investigations. "Prompt police investigations" that apparently would be derailed by the "rigors" of warrant approval. These words would carry more weight if the warrant approval process wasn't generally the epitome of ease and efficiency. This also seems to ignore a crucial aspect of the issue under discussion: the arrestees affected are detained, along with all their belongings, until law enforcement decides to free them. There's plenty of time to obtain a warrant because the person and his/her cell phone aren't going anywhere. (Not to mention the fact that cell phones are the "bread and butter" of pretty much everybody, not just those in the drug trade.) The majority echoed law enforcement's narrative of forever being behind the technological curve. “Prompt access by law enforcement to the contents of a cellphone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed,” Justice Thomas Cromwell wrote for the majority, joined by Chief Justice Beverley McLachlin and Justices Richard Wagner and Michael Moldaver. Law enforcement personnel act as though every arrestee's cell phone contains a self-destruct switch, even though there's been very little evidence produced that even suggests this is a common occurrence. Even if true, there are ways of circumventing this while obtaining a warrant. What law enforcement agencies really want (but never say in so many words) is the opportunity to image a phone's contents without a warrant -- something that gives them access to far more data and communications than any warrantless search performed previous to the ubiquity of smartphones. Because of this, rules should be stricter, not looser. But the majority decision ignores this, handing out a small list of stipulations that will do next to nothing to prevent abuse. The majority said the search must be tailored to its purpose, which will generally mean that only recent e-mails, texts, photos and the call log will be available. Define "recent." Somebody needs to because the decision does not. It simply says that only "recent" documents should be accessed. Once again, the court defers to the judgement of law enforcement officials to follow the (loose) guidelines and only access what it's permitted to… whatever that time period actually is. It could be two weeks. It could be two months. It could be everything on the phone because it's only six months old. This stipulation narrows things down a bit, but still leaves it in the hands of officers to perform warrantless searches in accordance with the spirit of the ruling. (Because the letter of the ruling doesn't actually exist.) Finally, the police must take detailed notes of what they have examined on the device and how they examined it. The notes should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. The record‑keeping requirement is important to the effectiveness of after‑the‑fact judicial review. It will also help police officers to focus on whether what they are doing in relation to the phone falls squarely within the parameters of a lawful search incident to arrest. Again, this is a deferral to law enforcement. The decision simply asks officers to be honest about searches and record everything accessed. Like many rulings of this type, there is no deterrent, only a handful of post facto remedies to be pursued at the violated person's expense. At best, all someone can hope for is that evidence will be excluded without an extended legal battle. But that's a very slim hope. Even in the case being addressed here, the Supreme Court declared the search violated the appellant's rights, but still refused to exclude the evidence. The only bright spot of the majority's decision -- which is at odds with last year's Supreme Court decision stating that additional warrants were required to search computers and cell phones found on searched premises -- is the following, as highlighted by Michael Geist: I pause here for a moment to note that some courts have suggested that the protection s. 8 affords to individuals in the context of cell phone searches varies depending on whether an individual’s phone is password-protected. I would not give this factor very much weight in assessing either an individual’s subjective expectation of privacy or whether that expectation is reasonable. An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone. Cell phones – locked or unlocked – engage significant privacy interests. So, at least there's that -- the instruction that just because someone doesn't take active measures to protect their phone's contents from others isn't an implicit suggestion that law enforcement officers are welcome to page through phones at their leisure. Of course, the lack of a warrant requirement does that for them, just so long as they remember to only look at "recent" stuff when searching an arrestee's phone. And there's a certain amount of incongruity in demanding a warrant for a cell phone found at someone's home, rather than for the one found in their pocket. A warrant requirement is far from onerous, especially considering the wealth of information contained in most smartphones. A warrant requirement is nothing more than a nod to the changing times. People carry personal computers in their pockets and the court needs to recognize that the old rules are no longer applicable. If you can't search a person's computers, personal files and other items without one, you shouldn't be able to do so just because these all reside in someone's pockets. As it stands now, Canada's Supreme Court stands in the awkward position of demanding warrants for access to ISP subscriber info, but not for an arrestee's cell phone contents.Permalink | Comments | Email This Story

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Sony may have no idea how to how to run a secure enterprise, but it doesn't really take a whole lot of expertise or technical know-how to see that this particular gambit could only backfire. In a sharply worded letter sent to news organizations, including The New York Times, David Boies, a lawyer for Sony, characterized the documents posted online as “stolen information” and demanded that they be avoided, and destroyed if they had already been downloaded or otherwise acquired. The studio “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading or making any use” of the information, Mr. Boies wrote in a three-page letter sent Sunday morning to the legal departments of media organizations. Somebody approved this -- someone higher up than David Boies. And that someone should probably step down and concentrate on staining his yacht deck or seeking to be nominated in the next Congressional election, or whatever it is studio execs do when they've outlived their usefulness. The letter's wording [pdf link] makes it sound as though the press outlets are doing something illegal (mainly through repetitive use of the word "stolen") but is careful never to make that actual claim. It tries to bluster its way towards legitimacy by inserting a list of "in case of 'stolen' information" requests (worded to look like legal demands) into the letter. As soon as you suspect that you may have possession of any of the Stolen Information*, we ask that you (1) notify us using the contact information provided below; (2) take all reasonable actions to prevent your company and any of your employees, independent contractors, agents, consultants, or anyone who may have access to your files from examining, copying, disseminating, distributing, publishing, downloading,uploading, or making any other use of the Stolen Information; (3) arrange for and supervise the destruction of all copies of the Stolen Information in your possession or under your control, particularly information protected under US. and foreign legal doctrines protecting attorney-client privileged communications, attorney work product, and related privileges and protections, as well as private financial and other confidential information and communications of current and former personnel and others, confidential personnel data, intellectual property, trade secrets andother business secrets and related communications; and (4) confirm that such destruction has been completed.** In addition, if you have provided the Stolen Information to anyone outside of your company, we ask that you provide them with a copy of this letter, and request the destruction of the Stolen Information by the recipient. [*"Stolen Information" being much more sensitive than your garden variety, lower-case "stolen information," obvs.] [**"Recycle Bin had little pieces of paper in it, but now appears to be empty."] I imagine the contact information provided is swiftly being bombarded with ridicule, fake tips, more ridicule, more fake tips and pictures of empty Recycle Bins. The only threat in the document (other than the overall tone) is this: If you do not comply with this request, and the Stolen Information is used or disseminated by you in any manner, SPE will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you, including any damages or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from your actions. OK. Good luck with that. The Supreme Court has already held that this sort of dissemination is protected by the First Amendment. (h/t to Marcia Hofmann) In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held that the First Amendment protects the disclosure of illegally intercepted communications by parties who did not participate in the illegal interception. The only mitigating factor is the relative worth of the "stolen information" to the public interest. Much of what's been covered likely isn't and much of what's contained in the files that hasn't been disseminated by press outlets definitely isn't. But there are some revelations that are definitely matters of public interest, not the least of which is the MPAA's plan to throw money at elected officials in exchange for some Google-hassling. Sony appears to be in full panic mode, but it's tough to sympathize with a corporation that has been hacked 56 times in 12 years but still keeps passwords in a folder labeled "Passwords." This latest move won't earn it anything more than an internetload of derision.Permalink | Comments | Email This Story

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To be sure, there is a large amount of schadenfreude contained within the hacking of Sony Pictures. To have your dirty laundry aired for the world to see is excruciatingly painful, but Sony Corporation's past actions have drawn a target on its back on multiple occasions. Rayne, a contributor to Marcy Wheeler's emptywheel blog, notes that Sony has been hacked 56 times in twelve years. And it has learned nothing. Passwords for Sony Pictures accounts were stashed away in a folder labeled "Passwords." The password for this folder? "Password." So, when Sony fights back, as it is now, it's far too late. It had several chances to shore up its defenses but it never made a serious effort to fix its security holes. Now, nearly everything has been exposed. Celebrities' personal data. Staffers' borderline racist opinions on Barack Obama's movie preferences. Its plan to join the MPAA in paying off states' attorneys general to go after Google. Sony has issued hundreds of DMCA notices in response to the leaked documents. It has seeded bogus torrents to thwart further distribution. Now, it's allegedly decided to take an even more aggressive approach to the continuing leaks. The company is using hundreds of computers in Asia to execute what’s known as a denial of service attack on sites where its pilfered data is available, according to two people with direct knowledge of the matter. Sony is using Amazon Web Services, the Internet retailer’s cloud computing unit, which operates data centers in Tokyo and Singapore, to carry out the counterattack, one of the sources said. Or not. Or possibly not at this moment. Re/code's updated post contains a denial from Amazon. “The activity being reported is not currently happening on AWS (Amazon Web Service),” Amazon said in an emailed statement to Re/code on Thursday. Amazon declined to comment further on whether the activity happened prior to Thursday. “AWS employs a number of automated detection and mitigation techniques to prevent the misuse of our services,” according to Amazon’s statement. “In cases where the misuse is not detected and stopped by the automated measures, we take manual action as soon as we become aware of any misuse.” Re/code's sources say "yes." Others say this isn't happening. CloudFlare, which offers denial-of-service protection and network monitoring, said it has not seen anything that would suggest Sony had conducted a counter-attack. The company said it would continue monitoring the situation. If Sony is indeed engaged in DDOS attacks, it's participating in the sort of behavior it's been quick to decry in the past. Sony Pictures may be relishing the chance to turn hackers' tools against them, but its history strongly suggests it really isn't in the position to be provoking further attacks. To pursue this option is pure hubris. It's hypocrisy and stupidity rolled into one. It may think it will escape this latest hack bowed but not unbroken, but whatever pride it has left at this point is delusional. It has opened everything up to criticism by failing to take proper precautions and destroyed its employees' trust that their employer would make the minimum of effort to keep their internal conversations internal. Permalink | Comments | Email This Story

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This week, all eyes were on the torture report and the government's response to it. After Dick Cheney attempted to dismiss it with some empty rhetoric, DaveK won first place for insightful by elegantly correcting him: Cheney is asking the wrong question: "How nice do you want to be to the murderers of 3,000 Americans?" The correct question is "How alike do you want to be to the murderers of 3,000 Americans?" Torture, while the most severe, wasn't the only exposed misdeed under scrutiny this week. We also saw leaked MPAA emails detailing plans to pay government officials to attack Google, who they called "Goliath". This led to a thread about the meaning of that codename, in which Mason Wheeler was the clear champion, winning second place for insightful: Historically, there was something of a rock-paper-scissors dynamic on ancient battlefields. There were three fundamental classes of warriors: cavalry, infantry, and archers. Cavalry beat archers, with their ability to close quickly and overrun them before they could get many shots off. Infantry beat cavalry, because they could use long spears to disrupt the heck out of a cavalry charge and panic the horses, throwing the whole group into disarray. Archers beat infantry, because, infantry being much slower to move than cavalry (especially if they wore heavy armor) they were left exposed to devastating projectile volleys for a long time. In the ancient tale of David and Goliath, we see the biggest, toughest guy around challenging the opposing army to a traditional rite of combat by champion: a "proxy battle" that avoided the wasteful slaughter of an actual battle. The record goes into great detail about his size and the size and weight of his weapons and armor. There's no doubt about it: Goliath was heavy infantry through and through. After much consternation on the other side, a self-selected champion stepped up. When the king tried to outfit him as a heavy infantryman to match Goliath, though, he demurred; it wasn't what he was trained for. No, David was an archer, and he intended to fight as an archer. He used a sling rather than a bow and arrow, but that's still an incredibly lethal ranged weapon. He stepped out onto the field, and Goliath's fate was sealed at that moment. People who don't understand the tactics involved call it a surprising victory on David's part, but in reality the only surprise here is that at no point did Goliath seem to understand just how screwed he was, until it was suddenly too late. There is one aspect of his description that doesn't fit the heavy infantry profile: he had a shield bearer go before him. But a guy used to fighting in close quarters doesn't need someone else to carry his shield; shield bearers were for archers! Between that, his physical description, and the fact that he claimed David was attacking him with "staves" (plural), when he was carrying a single staff, it's likely that he had severe problems with his vision--which is a known side effect of gigantism--and the "shield bearer" was actually a guide. Goliath died because he faced an opponent who was playing by different rules than what he was expecting, and he was too blind to notice until it was too late. Now who does that sound more like? Google, or the MPAA? For editor's choice, we start with a short comment from Violynne suggesting an even better solution for Keurig's "coffee DRM" than the scotch-tape circumvention: Ingenious, but I'm sticking with my way to circumvent the DRM: Not buy the damn product in the first place. Next, we'll loop back around to the post about Cheney's comments and that same question about "how nice" we want to be, where Rich Kulawiec offered up a beautiful statement of principles in response: I want to be as "nice" to them as the law, international treaties, and centuries of American principles demand that I be. I want to treat them humanely. I want to see that if they are accused of crimes, they are told of those accusations. I want to see if they are tried, that such trial is held in a timely manner and that they are provided with competent legal counsel and thus a robust defense. I want them to be able to confront their accusers via cross-examination and to be able to present witnesses in their favor. I want them to be fully accorded their rights under the Geneva Conventions and under international law and under American law at all times. Because that's how it's done. That's how civilized nations behave. That's how proud, strong nations that aren't afraid of a few trifling "terrorists" act. That's how countries who refuse to be cowed by a mere pinprick of an attack (which is all that 9/11 was) respond. They do not throw their principles out the window in panic and they do not whimper like frightened children at the threats of bullies. This isn't a matter of being "nice" to them or not -- although I'm sure war criminal Dick Cheney likes phrasing it that way. It's a matter of principle, pride and patriotism. It's a matter of truly being American, not in the flag-waving anthem-singing sense, but in the sense envisioned by those who founded this country. Not so long ago, the United States and allies tried and executed people for doing exactly what Dick Cheney did. Not so long ago, the United States decried renderings and mock trials and extrajudicial executions and mass surveillance and political persecution and torture and all the other things that we said the Germans did, the Japanese did, the Russians did, the Chinese did. Not so long ago, the United States said that it was important to defeat those countries -- either militarily or politically -- to stop those things from happening. And now we've done them all, thanks to men like Dick Cheney: weak, frightened, lying, sadistic and cowardly men in positions of power. History will not look kindly on them. Over on the funny side, we start out with Google News shutting down in Spain in response to the country's ridiculous copyright law. Dave Cortright won funniest comment of the week with his response: Spain? Never heard of it. Is that T-pain's son? I'd love to hear how the people and politicians in Spain react to this news, but that's not going to happen since my primary source is Google News. For second place, we've got a comment from our post about record labels releasing flimsy collections of old recordings just for copyright extension purposes, where Michael noted something familiar: Based on the Aereo case, I'm pretty sure that circumventing the law by following it to the letter means that these guys are a duck or something. Our first editor's choice for funny is nice and simple: after yet another story of theft by the TSA, ChurchHatesTucker said all that needs to be said: TSA They'll Steal Anything Last but not least, we've actually got a team effort of two comments, back on the post about Google News in Spain. There's one obvious joke that bubbles up whenever Spain is involved, and one anonymous coward gets props for making it... Nobody expects the Spanish news tax ...but Crusty the Ex-clown gets double props for perfecting it: Or: No one expects the Spanish Requisition!!! That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago Since this is a history post about the history of our posts, let's start with a post about history! This week in 2009 we looked at the history of the telegraph system and how it relates to modern net neutrality issues. We also took a look at more recent history — with the NBC/Comcast merger in the works, we reminded everyone of NBC Universal's vehement opposition to the AOL/Time Warner merger not long before. Recently, the band Pomplamoose caused a stir (and faced a lot of absurd attacks) by releasing its tour financials. This week in 2009, Pomplamoose made its Techdirt debut when we pointed to the band as an example of making a living as an indie artist in the digital era. We also had a similar post about Corey Smith detailing his successes as an independent musician. Meanwhile, artists continued to innovate, like the guy who chased down a Street View car to promote his band. Also in 2009 this week: the judge in the Tenenbaum case finalized the ruling and trashed the poor defense (who would then ask for a retrial); prosecutors who charged a young woman for filming her sister's birthday party and catching snippets of New Moon finally came to their senses and dropped the charges; Ron Livingston sued Wikipedia with a flimsy understanding of the law; music publishers attempting to sue Yahoo, Microsoft and Real saw their lawsuit tossed; and Hollywood, despite its fears of piracy, had another record year at the box office (as it has again every year since). Ten Years Ago This week in 2004, the Supreme Court agreed to hear the Grokster case, which would lead to the shutdown of popular P2P networks and absolutely no reduction in actual piracy or increase in revenues. Success! Even musicians were getting sick of the RIAA at this point. Despite rumours that they might enter some kind of deal with Apple, this week saw the near-confirmation that IBM would be selling its PC division to Lenovo; Google started testing out its now-ubiquitous Google Suggest feature for searches; and Starbucks was having real but limited success with its music program. 2004's holiday season was, as it is today, a big time for online shopping, and a time to notice trends therein. The auction competition mentality was starting to wane on eBay, we observed that all-night shopping was one of ecommerce's undersung advantages, and Woot was raking in the cash with its pioneering Daily Deals model. Next we'll be heading to 1999, but first, it looks like we already did that in 2004: after the holiday rush knocked several major retailers offline, we pointed out that the same thing was happening (and more excusable) five years earlier. Fifteen Years Ago Five years before the Grokster case hit the Supreme Court, we had the official commencement of the Napster lawsuit this week in 1999. We saw some foreshadowing of today's broadband woes in not-really-unlimited ISP offerings, and questioned the decision to credit Apple with the worst management mistake ever. IBM announced its new "Gene" supercomputer project, Amazon kept pushing into the mobile shopping game, and AOL showed incredible speed and dexterity in constantly blocking anyone who tries to integrate with its IM network. And there was plenty of discussion about the future, including the prediction that within ten years nobody would even talk about "the internet" since it would be so integrated with our lives. That didn't exactly come true, but it's still a meaningful observation: in 1999, the internet was still very much the "other" to many people, and the question "do you have the internet?" was not uncommon. Today, "the internet" is more commonly used to refer to the community of people online or simply to the concept of interconnectivity in larger discussions, since its prevalence in day-to-day life is old news. 54, 51 and 49 Years Ago This week, we've got three firsts from the world of television in the 1960s. On December 9th, 1960, Coronation Street debuted in the UK. It still airs today, making it the world's longest-running soap opera, and one of the most successful TV series of all time. A few years later was the first-ever use of instant replay on television. Though the concept of replays had started a few years earlier up here in Canada (for hockey, of course), it was highly limited, technically complicated and, of course, not instant. It was this week in 1963 that a CBS Sports Director invented a system for instant replay from videotape, and put it to use during an Army-Navy football game. The machine weighed 1300 pounds. Finally, two years after that on December 9th, 1965, and also on CBS, A Charlie Brown Christmas made its first appearance and kicked off the beloved tradition of Peanuts television specials. Permalink | Comments | Email This Story

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The holidays are almost here, so for this week's awesome stuff, we're looking at some innovative or just plain unconventional Christmas crowdfunding campaigns. AURA: Wireless Christmas Lights Wireless power could change the word, but it's still nowhere near that point — so for now, you'll have to settle for it changing your Christmas tree. The AURA system consists of a transmitter ring that hides near the base of the tree, and a set of wirelessly-powered LED baubles to hang on the rest of it. In a cool design choice, the ornaments showcase their internal circuitry rather than hiding it away. And, of course, the whole thing is controllable via smartphone. The Krampus Beer Stein Krampus — the Germanic folk monster that traditionally accompanies St. Nick, doling out punishment where gifts are undeserved — has been undergoing something of a cultural renaissance online, with a new generation latching on to the dark side of Christmas mythology. The Krampus Beer Stein is just one of several Krampus items I've seen around this season, but it's one of the coolest, featuring detailed original artwork by legendary illustrator Mitch O'Connell. Minimal Nativity Scene While the rebirth of the Krampus is a new trend in Christmas decor, the nativity scene is one of the oldest. This minimalist take on the classic might appear to be some sort of snide religious critique (and might raise more money from the online community if it were), but in fact it's design experiment inspired by the artist's lifelong fascination with popular depictions of Biblical figures in ornaments and consumer products. Why, he wondered, is Mary's dress always blue? Why is the baby Jesus always blonde? Why do the staple design choices change from country to country? Who makes these decisions, and how? His response: an ultra-simplified nativity scene consisting of ten labelled blocks of beech wood. Permalink | Comments | Email This Story

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We recently noted that, despite it passing overwhelmingly, Congress quietly deleted a key bit of NSA reform that would have blocked the agency from using backdoors for surveillance. But this week something even more nefarious happened, and it likely would have gone almost entirely unnoticed if Rep. Justin Amash's staffers hadn't caught the details of a new provision quietly slipped into the Intelligence Authorization Act, which effectively "legitimized" the way the NSA conducts most of its mass surveillance. For a while now, we've discussed executive order 12333, signed by President Ronald Reagan, which more or less gives the NSA unchecked authority to tap into any computer system not in the US. Over the summer, a former State Department official, John Napier Tye, basically blew the whistle on 12333 by noting that everyone focused on other NSA programs were missing the point. The NSA's surveillance is almost entirely done under this authority, which has no Congressional oversight. All those other programs we've been arguing about -- Section 215 of the Patriot Act or Section 702 of the FISA Amendments Act -- are really nothing more than ways to backfill the data the NSA has been unable to access under 12333. In other words, these other programs are the distraction. 12333 is the ballgame, and it has no Congressional oversight at all. It's just a Presidential executive order. Yet, what Amash and his staffers found is that a last minute change by the Senate Intelligence Committee to the bill effectively incorporated key parts of EO 12333 into law, allowing for "the acquisition, retention, and dissemination" of "nonpublic communications." Here's where those who slipped this bit into the law got sneaky. Recognizing that they might be called on it, they put it in with language noting that such information could only be held on to for five years -- and then claimed what they were really doing was putting a limit on data already collected: Backers of the section argue it would actually limit to five years the amount of time communications data could be kept at intelligence agencies, certain exceptions permitting. But it is generally acknowledged that such data is already rarely kept beyond five years, which Amash characterized as a trade-off that "provides a novel statutory basis for the executive branch's capture and use of Americans' private communications." "The provisions in the intel authorization appear to be an attempt by Congress to place statutory restrictions on the retention of information collected under Executive Order 12333, which is not subject to court oversight, has not been authorized by Congress, and raises serious privacy concerns," said Neema Guliani, legislative counsel with the American Civil Liberties Union. "However, these restrictions are far from adequate, contain enormous loopholes, and notably completely exclude the information of non-U.S. persons." This seems particularly nefarious. In trying to claim that they're putting a limit on this activity (that's already happening) they can claim that they're not really expanding the power of the NSA and the surveillance state. But, by putting it in law, rather than just having it in an executive order, they're effectively legitimatizing the practice, and making it much harder to roll back. And they did it all quietly without any debate. That's massively troubling. Inserting such a major power into the law at the very least deserves (and should require) a full and fair public debate about the issue and whether or not it is truly needed. Doing it in secret, at the last minute, with no public acknowledgement or discussion, and then pretending it's about "limits" rather than legitimizing what's in EO 12333 is really, really nefarious. Unfortunately, even with Rep. Amash raising the alarm about it, the bill easily passed 325 to 100, without most in Congress probably having any idea about this issue and what it meant. Rep. Zoe Lofgren claimed that if Congress fully understood the provision, it almost certainly wouldn't have passed: "If this hadn't been snuck in, I doubt it would have passed," said Rep. Zoe Lofgren, a California Democrat who voted against the bill. "A lot of members were not even aware that this new provision had been inserted last-minute. Had we been given an additional day, we may have stopped it." This is the kind of crap that the intelligence community keeps pulling, and it's why there's so much that's troubling in the way they play the legislative game. Not only do they write the legislative language in sneaky ways that they can carefully interpret themselves -- they then get "friends" in Congress to quietly insert the language when no one's looking. By putting it in bills that have to pass, these things get put into the law and aren't at all easy to remove.Permalink | Comments | Email This Story

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As we noted last month, the feds have started gearing up to try to force reporter James Risen to reveal his source on some CIA reporting from a few years ago. Risen, a Pulitzer Prize-winning journalist, has been facing this threat for years. He's made a compelling case that the whole thing was just to punish him for his reporting. The DOJ had no need for Risen to reveal his source (the DOJ basically knows who it is) and the whole thing is over a really minor issue. It really seemed like the whole thing was set up to see if they could force Risen to cough up the name to guarantee that future whistleblowers wouldn't be able to trust Risen any more. Well, that backfired big time. Earlier this week, the judge in the case told the DOJ that it had one week to decide if it was going to call Risen as a witness: Since June 2,2014, the United States has had over six months to decide whether it will subpoena James Risen to testify at this trial, which is scheduled to begin Monday, January 12, 2015. Because Mr. Risen's presence or absence at the trial will have a significant impact on how the parties present their case, a decision about Mr. Risen must be made sufficiently before trial to enable the parties to prepare adequately. Combine that with Eric Holder's repeated promise that he wouldn't put a reporter in jail (with the ridiculous loophole that depended on whether Holder decided that reporter was "doing his job" or doing something that Holder decided was not, in fact, "his job") and it should come as little surprise that Holder has now blinked and said that the DOJ will not force Risen to reveal his source. Instead, the DOJ says that if they ask Risen to testify, it'll solely be to "confirm that he had an agreement with a confidential source, and that he did write the book." It's great that the DOJ is basically no longer threatening Risen with jail, but there is no reason at all that it had to wait so many years and go right down to the judge-imposed wire. Instead, the DOJ let Risen dangle for many years with the threat that he might have to go to jail to protect a source. That's ridiculous and a shameful abuse of power to intimidate a great journalist. Of course, there's one upside for Risen: if you're a whistleblower looking for a journalist you can trust, it looks like the DOJ just vouched for Risen's credibility in keeping his sources secret.Permalink | Comments | Email This Story

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Everyone talks about beer at some point, even if they don't drink it or like it. It's a beverage that might have shaped civilization (by providing a source of reliable safe drinking water along with other benefits), and it's a drink that is served all over the world. Here are just a few more links on beer in case you needed more chit-chat topics at the bar. Belgian scientists have re-created a beer from a 150-year-old shipwreck found off the coast of Finland. The genetic profiles of the yeast and microbes used to brew the beer were analyzed to make a beer that's a bit sweeter than modern beers. It's taken a few years to replicate this ancient beer, but it'll be sold commercially now for over $100 a bottle soon. [url] Beer sometimes comes in a plastic bottle, but not commonly. There are a few reasons why plastic isn't a good way to bottle beer: plastic can give beer undesired flavors, plastic isn't suitable for pasteurization processes, plastic bottles made for beer might not be easily recycled, etc, etc. [url] The FAA has forced a beer delivery drone service to shut down. Lakemaid Beer wanted to deliver its brew to local fishermen around Minnesota, but the FAA says at least 4 regulations were being broken by this beer maker's commercial drone delivery operation. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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It appears that Google may be done messing around with ridiculous laws. Just after announcing that it was shutting down Google News in Spain due to a ridiculously bad copyright law that is about to go into effect, it's been reported that the company is also shutting down its Russian engineering office, likely in response to new Russian laws, requiring that any personal data of Russian citizens be held inside the country. The Russian government, of course, claims this is to better protect Russian citizens, but most people believe it's actually to allow for greater surveillance of Russian citizens: Google Inc has plans to shut down its engineering office in Russia amid a crackdown on internet freedoms and a law regarding data-handling practices, the Wall Street Journal reported. Of course, Russia is not alone in either requiring localized data storage or in ramping up digital surveillance. It's going to be worth watching how a variety of large internet companies start dealing with these new challenges. Ever since the Snowden leaks first came out, many in the tech industry warned of the threat of "localization" rules that might splinter the internet, by requiring all data to be stored "locally" (greatly diminishing the economies of scale of global data centers). Closing down one office in protest is worth noting, but it only foreshadows a much bigger global fight to come.Permalink | Comments | Email This Story

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The CIA's Director John Brennan spoke out about this week's release of the Senate Intelligence Committee's CIA Torture Report -- and to say he wasn't pleased about the report would be an understatement. Rather amazingly, in real-time as Brennan spoke, Senator Dianne Feinstein's staffers did a real time rebuttal/fact-check to his speech via Twitter, with each statement punctuated with the hashtag #ReadTheReport. Brennan's tap dancing concerning the report included a number of jaw dropping statements, but I wanted to focus on two specific ones. First, Brennan claimed that he's had enough transparency and he thinks this goes too far: When asked if he supported the release of the Senate report, Brennan said he would keep his views to himself. But could he share them with the public, “in the interest of transparency?” a Wall Street Journal reporter asked. “I think there is more than enough transparency that has happened over the last couple days,” said the man who was chosen for the job by President Obama. “I think it’s over the top.” Over the top? It's "over the top" to have the Senate Intelligence Committee -- the body designed to do oversight over the intelligence community to prevent abuse of power -- to spend years researching these issues, and then agree to only release a heavily redacted executive summary that basically details widespread and systematic practices that clearly amount to torture without naming any names or placing any direct blame? And that's "over the top"? Second, is that after all of this, Brennan won't admit that the CIA won't go back into the torture game. Rather, he notes that if ordered to do the same thing again, he'd go right along with it: "We are not contemplating at all getting back into the interrogation program," Brennan said. As for the future, he said, “I defer to future policymakers.” We've been told for a while -- including by the President himself -- that one of the reasons why they wanted this report out was to make sure that such things never happened again. It does not appear to be working.Permalink | Comments | Email This Story

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FOIA reform is now truly dead. Earlier this week, it looked as though Sen. Jay Rockefeller might be the one holding the murder weapon. Despite passing unanimously through the House and the Senate Judiciary Committee, Rockefeller placed a hold on the bill, citing nebulous concerns by two regulatory agencies (FTC, SEC -- neither of which were willing to go on the record about their problems with the bill) and something about "law enforcement agencies" being faced with "needless litigation" that would be a drain on their bottom lines. Of course, this ignores the fact that plenty of litigation involving law enforcement agencies is "needless" (because why be proactive about misconduct and abuse when you can just settle later?) and that any agency fighting the War on Drugs/Terror has generally been able to secure funding and equipment with a minimum of hassle. Rockefeller's hold provoked a deluge pro-FOIA reform phone calls and emails, leading to Rockefeller releasing his hold and the bill moving on with unanimous Senate consent. This booted it back to the House where it ran headlong into Speaker of the House John Boehner, who immediately tabled it. Newsweek's coverage of Boehner's "opaque" move concludes with this paragraph: But these improvements may never see the light of day, as Boehner has tabled the bill. In a press conference on Thursday morning, a journalist asked Boehner about the fate of the FOIA reform bill to which he replied, “I have no knowledge of what the plan is for that bill.” If the bill does not make the House’s calendar by the end of the day, the bill dies. The guy who made the plan for the bill (1. Do nothing) claimed he had no idea what the plan was. If the plan was to kill the reform bill, mission accomplished. Death by Rockefeller was narrowly averted only to result in Death by Boehner -- despite the fact that the FOIA reform sailed through the House earlier with a 410-0 vote. The Hill performed a brief autopsy. Sen. Patrick Leahy (D-Vt.) on Thursday night officially declared reforms to the Freedom of Information Act (FOIA) dead this year as the House gaveled out of session. And he blamed House Speaker John Boehner (R-Ohio) for its death. "And Boehner kills #FOIA improvements," Leahy tweeted at a reporter a little before midnight after the House finished its work on the "cromnibus" government funding bill — the last item of its agenda for the year. The wonders of our political system continue. Something that received unanimous support -- not only on both sides of legislative branch, but on both sides of the partisan divide -- was dismantled by one man. One man who stood in front of a House that had passed the bill 410-0 and said, "Whatever." Chances are it was one man swayed by the same regulatory agencies and the industries regulated by them. Transparency advocates suggest Wall Street made a last-minute push to thwart the legislation. The suspicion among transparency groups is that the financial industry is working to fortify federal open-records exemptions for Wall Street which also exist in states and cities across the country. Those groups also fear the financial industry is aiming to prevent government regulators from erring on the side of transparency when faced with open-records requests for information about the financial industry. “The negotiation process for this bill has been going on for six months now,” said Amy Bennett, the assistant director of OpenTheGovernment.org and the point person for a coalition of transparency groups working to pass the bill. “But the banks only started raising objections in the last week. Wall Street’s lobbyists are going to their allies on Capitol Hill and are asking them to delay it. But Wall Street just wants to kill the bill.” Both Sen. Tim Johnson (who argued against the bill before its last-minute Senate passage) and John Boehner have received large amounts of funding from industries tied to Wall Street, according to information gathered by OpenSecrets.org. Boehner stopped the bill in its tracks by keeping it out of Congress' hands during the final moments of the lame duck session. Boehner's implicit message is that the good of the special interests outweighs the good of the many. Thanks to this, government agencies are still free to abuse FOIA exemptions and force the truly tenacious to take their chances in the federal court system if they hope to get their hands on documents the government would rather keep buried. Permalink | Comments | Email This Story

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Okay, it's no secret that the MPAA hates Google. It doesn't take a psychology expert to figure that out. But in the last few days, some of the leaks from the Sony Pictures hack has revealed the depths of that hatred, raising serious questions about how the MPAA abuses the legal process in corrupt and dangerous ways. The most serious charge -- unfortunately completely buried by this report at The Verge, is that it appears the MPAA and the major Hollywood studios directly funded various state Attorneys General in their efforts to attack and shame Google. Think about that for a second. There's a lot of background here that's important (beyond just the MPAA really hates Google). First, as you know, the MPAA has certainly not given up on its SOPA desire to get certain websites completely blocked. The leaked emails reveal a lot more about that (which we'll get to). Second, a year ago, the MPAA hired a pitbull of an anti-piracy lawyer in naming Steve Fabrizio its General Counsel. Fabrizio has spent the last decade and a half or so deeply involved in litigating a bunch of anti-piracy battles at both the RIAA and the MPAA/RIAA's favorite big law firm, Jenner & Block. This is not a guy you hire if you're looking to innovate. This is a guy you hire if you want to get into knock-down dirty legal fights. Third, there is the role of state Attorneys General. A recent NY Times article detailed how lobbyists have figured out ways to effectively "lobby" state Attorneys General to do their bidding. Frequently, this is around getting the state AGs to drop investigations (and potential lawsuits) against companies. The article is somewhat eye-opening, as it's hard to distinguish much of what's discussed from straight up bribery. There is talk of lavish events, travel and dinners all paid for by corporate lobbyists for state AGs, often followed soon after with dropped, or reduced investigations. In one case, an AG told staff not to start an investigation into a public company without first getting his approval. Campaign funding is a big part of it as well, as these lobbyists dump lots of money into AG campaigns. And it's no secret that the state Attorney General position is often seen as a stepping stone to a Governorship or US Senate job. We've discussed in the past that state Attorneys General are often the biggest grandstanders, as their main goal in certain investigations seems to be about generating headlines for themselves, rather than any real legal basis. More than four years ago, we wrote about Topix CEO Chris Tolles' experience being hounded by state Attorneys' General so they could get a bunch of headlines out of something in which everyone admitted Topix wasn't actually doing anything illegal. Along those lines, we've noted that popular tech companies have increasingly been a target for state AGs -- because they're almost sure to generate headlines. We've also noted that state AGs have been pushing for changes to federal laws, like Section 230 of the CDA, to allow them to further go after big tech companies for things like actions of their users. Not surprisingly, Google has been a popular target for some state AGs. In the past, we've written about state Attorneys General from Nebraska and Oklahoma blaming Google for videos made by users, and about Texas' Attorney General going after Google for supposed antitrust violations (based on the same claims that the FTC later dropped entirely). But the state Attorney General with the biggest chip on his shoulder for Google has absolutely been Mississippi Attorney General Jim Hood, who seemed to think that it was Google's fault that he could find counterfeit goods via search. A few months later, he was back blaming Google for infringement online as well. This was no accident. What's come out of the Sony Pictures Leak is not just that the MPAA was buddying up to state Attorneys General, but that the MPAA was funding some of this activity and actively supporting the investigation. The leaked emails reveal that rather than seeing that NY Times article about corporate/AG corruption as a warning sign, the MPAA viewed it as a playbook. But not for preventing investigations but encouraging and funding them. This appears to go way beyond that NY Times article. This isn't campaign donations or inviting AGs to speak at lavish events and paying for the travel. This is flat out paying AGs to investigate Google (even on issues unrelated to copyright infringement) and then promising to get extra press attention to those articles. Here's the Verge's summary of a key email (which the Verge doesn't even seem to realize why it's so damning): May 8, 2014: Fabrizio to group. "We’ve had success to date in motivating the AGs; however as they approach the CID phase, the AGs will need greater levels of legal support." He outlines two options, ranging from $585,000 to $1.175 million, which includes legal support for AGs (through Jenner) and optional investigation and analysis of ("ammunition / evidence against") Goliath. Both options include at least $85,000 for communication (e.g. "Respond to / rebut Goliath's public advocacy, amplify negative Goliath news, [and] seed media stories based on investigation and AG actions."). "Goliath" is the MPAA's rather transparent "codename" for Google. CID stands for a "civil investigative demand" -- which is a form of an administrative subpoena, demanding information from a company, related to an investigation. What seems to come out from these emails is that the MPAA, in coordination with the major Hollywood studios, agreed to willfully pay tons of money indirectly to state AGs (and Hood in particular) to get him to investigate Google (using the time and labor of the MPAA's favorite law firm -- and the one that Fabrizio just left). That goes way beyond anything discussed in that NY Times articles, and certainly smacks of serious illegality. It's difficult to see how this isn't bribing a public official to attack a company they dislike. Not only that, but it shows that the MPAA and the studios were well aware of Hood's plans well before they happened, suggesting that he or his office has been coordinating with Hollywood on their plans and that the specific CIDs are actually written by the MPAA's lawyers themselves: A report from the previous February suggests that the Goliath group drafted civil investigative demands (similar to a subpoena) to be issued by the attorneys general. "Some subset of AGs (3-5, but Hood alone if necessary) should move toward issuing CIDs before mid-May," the email says. And, more recent emails (from just in October) show that they know that another CID is apparently coming and that the MPAA intends to use that CID for negotiating leverage against Google. This follows a claim that Google was pissed off at the MPAA for mocking its recent search algorithm changes to further push down sites that may link to infringing materials (it's not like we didn't warn everyone that the MPAA wouldn't be satisfied with Google's changes). Either way, the MPAA's Fabrizio brushes off concerns that Google has, telling the studios not to worry, that Google should be more willing to talk after Hood sends out his next CID: After a dispute over Google’s most recent anti-piracy measures in October, Fabrizio suggested further action may be yet to come. "We believe Google is overreacting — and dramatically so. Their reaction seems tactical (or childish)," the email reads. "Following the issuance of the CID [civil investigative demand] by [Mississippi attorney general Jim] Hood (which may create yet another uproar by Google), we may be in a position for more serious discussions with Google." While the Verge report is focused on the "sexy" topic of the MPAA having an "anti-Google' (er... "Goliath") working group, the real story here is that it appears that this infatuation with taking down Google has extended to funding state politicians in their investigation and attacks on Google, even when it's on totally unrelated issues (the initial CID was about counterfeit drugs -- which is an issue that the MPAA likes to mock Google over by totally misrepresenting some actual, but historical, bad behavior). And beyond that, the MPAA is showing that part of its plan is to fund "media stories based on" the Attorneys General investigations. Remember, so much AG activity these days is driven by what's going to get them into the headlines. Setting aside nearly $100,000 from the MPAA to get a state AG some headlines for an investigation paid for by the MPAA, using administrative subpoenas written by the MPAA... all designed to attack a company they don't like (who actually has done pretty much exactly what they'd been asking for in downranking sites that lead to infringing works), is really stunning. I get that it's natural to dislike a company or organization that has undermined your business model. It happens. But there are different ways to respond to it. One is to innovate and compete. Another is to use the legal process to throw hurdles in their path. This is the distinction between "market entrepreneurs" and "political entrepreneurs" that Andy Kessler has described. What the MPAA appears to have done in the last few months, however, certainly suggests that the organization, with the help of the major studios, went beyond just lobbying and political pressure, to actually funding elected officials to try to attack a company they didn't like. And, at the very least, this also has to raise serious questions about Mississippi Attorney General Jim Hood and who he takes orders from. Is he really "protecting" the people of Mississippi? Or is he focused on gobbling up Hollywood's money and promotion?Permalink | Comments | Email This Story

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Earlier this week, the Ninth Circuit heard oral arguments in a challenge to the NSA's phone metadata program. While watching, I noticed some quite misleading legal claims by the government's counsel. I then reviewed last month's oral arguments in the D.C. Circuit, and I spotted a similar assertion. In both cases, the government attorney waved away constitutional concerns about medical and financial records. Congress, he suggested, has already stepped in to protect those files. With respect to ordinary law enforcement investigations, that's only slightly true. And with respect to national security investigations, that's really not right. Medical Records During Smith, the Ninth Circuit case, there was an extended line of questioning about various sorts of business records. Judge Hawkins kicked it off: Suppose the National Security Agency wanted access to all utility records. Nationwide. Would that rationale apply? Subsequent discussion touched on hotel and financial records. Then Judge McKeown asked: What about medical records? The Department of Justice attorney responded: Well medical records, Judge McKeown I'm so glad you asked that because this is really an important point, medical records would be subject to HIPAA, among other protections. A similar question in Klayman, the D.C. Circuit case, drew a similar response. HIPAA, in your example Judge Brown, would govern the restrictions, would impose restrictions on the proper use of medical information. Later in the Smith argument, counsel reemphasized the importance of HIPAA, including: But I think the significance of HIPAA can't be discounted. By way of background, the Health Insurance Portability and Accountability Act is the primary federal law that addresses health records. Under HIPAA, the Department of Health and Human Services is empowered to promulgate detailed privacy rules. Here's the catch: the HIPAA privacy rules have special exceptions for law enforcement and national security investigations. The law enforcement provision is very broad. It covers all the usual police procedures, including subpoenas. Those don't require a judge's advance permission, and they also require much less basis than probable cause. The national security exception is, of course, even more pertinent to the Smith and Klayman cases. And it's even broader. A covered entity may disclose protected health information to authorized federal officials for the conduct of lawful intelligence, counter-intelligence, and other national security activities authorized by the National Security Act (50 U.S.C. 401, et seq.) and implementing authority (e.g., Executive Order 12333). In non-legalese: HIPAA just doesn't apply to the NSA.1 And yet, in two separate NSA appeals, the government has emphasized HIPAA.2 Financial Records In the Smith argument, government counsel twice noted that Congress has enacted privacy protections for financial records. Following Miller, Congress enacted the financial privacy protections by statute. In response to Miller, that Congress enacted a bank records protection of privacy . . . Similarly, in Klayman: For example, following the Miller case, Congress passed a statute governing the secrecy of bank records. As background, United States v. Miller held that routine financial records are not protected by the Fourth Amendment. Two years later, Congress passed the Right to Financial Privacy Act… which largely codified Miller. Law enforcement agencies can still access financial records with just a subpoena.3 What's more, RFPA includes a special set of national security procedures. Federal grand jury subpoenas and warrants aren't covered by RFPA, so long as the investigating agency self-certifies “there may result a danger to the national security of the United States.” RFPA also includes a National Security Letter provision. In counter-intelligence and counter-terrorism investigations, the FBI (and, by proxy, the NSA) doesn't even need a grand jury subpoena. It can demand financial records with a mere self-certification. So, once again: in a national security appeal, why emphasize privacy protections that don't extend to national security investigations? Section 215 of the USA PATRIOT Act The precise statutory provision at issue in Smith and Klayman is Section 215 of the USA PATRIOT Act. It allows FBI (and NSA) access to any business records when conducting a counter-intelligence or counter-terrorism investigation.4 A FISA judge's approval is required, though the standard for issuance is very low. Section 215 covers medical records. A part of the statute, in fact, expressly addresses them. Section 215 also covers financial records. In a 2010 opinion, the FISA Court held as much. And, in fact, the CIA operates a bulk financial surveillance program under Section 215. In sum: not only are national security investigations generally outside HIPAA and RFPA, but the very same authority at issue in Smith and Klayman allows access to medical and financial records. Concluding Thoughts Reasonable minds can disagree on whether the government's representations in Smith and Klayman were literally false. At minimum, they were highly misleading. United States privacy law is notoriously convoluted. But this much is certain: medical and financial records are, by statute and rule, readily available to the intelligence community. The executive branch shouldn't even hint otherwise. Thanks to the colleagues who provided feedback on the legal analysis in this post. All views are solely my own. 1. In most instances of domestic surveillance, NSA requests are passed through the FBI. Since the National Security Act designates the FBI as a member of the intelligence community, its national security investigations are also unregulated by HIPAA. 2. In a charitable interpretation, the attorney misspoke while attempting to note that Congress can craft more nuanced privacy rules than the courts, and that Congress can provide privacy protections beyond the Fourth Amendment. Those points are undoubtedly true, though undoubtedly known to the judges. 3. A plain reading of RFPA suggests some privacy protection: targets receive advance notice of a subpoena and have an opportunity to contest the subpoena. In everyday practice, however, RFPA's delayed notice provisions have swallowed the rule. Law enforcement agencies routinely obtain court orders that both eliminate the advance notice requirement and temporarily gag financial institutions from disclosure. 4. Where U.S. persons aren't involved, any foreign intelligence purpose is sufficient. Reposted from Web Policy Permalink | Comments | Email This Story

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Yesterday, we wrote about Google's decision to shut its Google News service in Spain as a result of that country's insane new copyright law. In a move that will surprise no one -- except, perhaps, at how little time it took to happen -- the newspapers association is now begging the Spanish government to do something about the damage the new law, which the publishers lobbied for, is about to wreak on the newspaper industry. The Spain Report explains: The Spanish Newspaper Publishers' Association (AEDE) issued a statement last night saying that Google News was "not just the closure of another service given its dominant market position", recognising that Google’s decision: "will undoubtedly have a negative impact on citizens and Spanish businesses". "Given the dominant position of Google (which in Spain controls almost all of the searches in the market and is an authentic gateway to the Internet), AEDE requires the intervention of Spanish and community authorities, and competition authorities, to effectively protect the rights of citizens and companies". What that intervention might be is not clear. AEDE can hardly expect the Spanish government to pass a new law making it compulsory for Google to keep its Google News service running at a loss. The only workable option is to take the route followed in Germany: to give Google a special deal that allows it to carry on as before, but without having to pay -- which would gut the new copyright law completely. What makes this situation even more ridiculous is that, according to the ABC.es newspaper, German publishers are now asking Angela Merkel to change the manifestly broken German approach to using news snippets online, by copying the even more backward-looking Spanish law (original in Spanish.) Once again, it seems that an obsession with "protecting" copyright from imaginary harm causes otherwise rational people to lose the ability to think properly. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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Oh boy. The "Monkey Selfie" is back. Yes, that picture that we first wrote about three and a half years ago, including a detailed analysis of why the picture is almost certainly in the public domain, is still creating a stir. It got some attention again a few months ago when some new news reports falsely argued that people were saying the monkey held the copyright. However, we noted that the photographer whose camera was used, David Slater, was still claiming that the copyright was his. A day later, we wrote about a great writeup by Sherwin Siy, Public Knowledge's VP of legal affairs (and a copyright expert), discussing the weird belief some have that someone must own the copyright on everything. For reasons unknown, earlier this week, Slater suddenly decided to send Siy and Public Knowledge an ill-informed, poorly reasoned legal threat about that post. The letter Slater sends is fairly incredible, both in its reasoning and in its target. Not only do the claims in the letter misrepresent the law, but they misrepresent Siy's post and the use of the image. Here is Slater's letter: From: David Slater Date: Wed, Dec 10, 2014 at 1:10 PM Subject: Infringement notice To: pk@publicknowledge.org Dear Public Knowledge, I am writing to inform you that I have read your blog post authored by Sherwin Siy: https://www.publicknowledge.org/news-blog/blogs/nobody-cant-hold-a-copyright-which-means-sometimes-nobody-holds-a-copyright It is factually incorrect and damaging to me.  It encourages the public to infringe my copyright of the monkey images.  The text, in my opinion, is willfully damaging and disrespectful to me.  This accords with your mission statement. The exclusion of any proper accreditation to the image, or even mention of my name in relation to the image, infringes upon my moral rights to the image and is contrary to any Fair Use dealing.  Furthermore, it affects the commercial value of the image to me.  It is also being used to benefit Public Knowledge and your mission at the expense of my own.  This is contrary to fair use and also your mission which claims to uphold the fair use doctrine. The article is unbalanced and unfair and is infringing my publicity rights and rights to commercialize the image/s. I do not believe you made any attempt to contact me, preferring instead to cherry pick sources that you know to be biased and encouraging theft of my images and destruction of my reputation and personality rights. The image is registered with the USCO and is a part of a registered Image Rights under Guernsey Ordinance 2012. Your site acknowledges it's core mission is to protect fair use and the public domain.  Your site, in my opinion, is abusing fair use and damaging the concept of public domain. A public domain image is one in which a living author has voluntarily relinquished rights to the image.  Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain. Public Knowledge nor Sherwin Siy nor Wikimedia have the right to decide.  Any action attempting to wilfully infringe copyright to make a claim for public domain, including textual references that encourage others to infringe, shall be liable for prosecution under the legal jurisdiction of my choice. Public domain is NOT a place such as Wikimedia's Creative Commons or the internet. You have cherry picked sources of information from Buzzfeed, Techdirt and the 1709blog, that simply agree with your mission to remove property rights from professional artists like myself using ridicule, poorly sourced material and  unfounded reasoning. In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning.  Note that Wikipedia states the author of the images is the monkey itself, with blatant removal of the true author's copyright watermarks.  Authors are entitled to copyright. I wish to see any evidence you have of any license you have purchased for the use of my image. If you have purchased a license I will still require some amendment to the article. I am willing to overlook your infringement if you rectify the article with another article that reports the facts of the story.  I will work with you to do this and you will grant me the ability to comment on the article in draft form prior to publication.  Publication should be within the calendar month of this e-mail.  I will await your acceptance for 24 hours in which to agree to rewrite the article. I will take your absence of any reply and acceptance of my terms as your acceptance of guilt and will forward your details to my lawyers in the US and UK.. Sincerely, David J Slater And here is Siy's -- quite even-handed -- response: From: Sherwin Siy Date: Thu, Dec 11, 2014 at 11:13 AM Subject: Re: Infringement notice To: David Slater Dear Mr. Slater: Thank you for your email of December 10, regarding my August 6th blog post about the macaque photos taken with your camera. To be brief, we have not purchased any license for the use of the photograph, and do not plan on doing so. We will also not be removing or substantively amending the post. We do not have any plans to allow you to publish your thoughts on this matter on our website. We may be commenting upon this matter, including this correspondence, on the site in the near future. As you can tell from the post, I do not believe that you hold a valid copyright in that particular image. This allows us to reproduce the image without first seeking your permission, or listing you as a contributing factor to its creation. You say that the photo has been registered with the “USCO;” I take this to mean the United States Copyright Office. In August, not long after I published my blog post, the Copyright Office issued an updated draft of its Compendium of Copyright Practices (http://copyright.gov/comp3/docs/compendium-full.pdf), the manual for its internal practices, including registration. Of particular note is its commentary on the “human authorship” requirement in section 306 (page 54 of the linked .pdf), which says that the Office will refuse to register a claim of copyright if a human being did not create the work. Lest you think I am stretching their point, their first specific examples of a non-human authored work (among other examples such as elephant murals, wave-shaped driftwood, or the natural appearance of animal skin) is ·      A photograph taken by a monkey. Even beyond the question of whether you have a valid copyright in that image is my, and my employer’s, exercise of our fair use rights. You will note that our use of the photograph was in the context of discussing that photograph. News reporting, commentary, and criticism are all quintessential examples of fair use, and this clearly falls within them. Whether or not our use of the image “benefits our mission” is largely irrelevant to that determination, too. If uses of copyrighted works were only fair when they were useless to the user, it would be a singularly useless doctrine. You say A public domain image is one in which a living author has voluntarily relinquished rights to the image.  Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain. This is not true. It would be absurd for every instance of the use of public domain works to be litigated. The fact that certain works have no copyright holder (because the term of copyright has expired, because the work is not the creation of a human author, or because the work was not sufficiently fixed or sufficiently creative) means that there would be no one to definitively contest the usage in court. Publishers reprinting copies of The Murders in the Rue Morgue should not, and need not, wait for a court to grant them permission; users of creative works authored by the federal government of the United States do not have to go to court for permission each time they wish to use those images. If a particular person believes that a work is not in the public domain and that their rights have been infringed by a use, they are, of course, free to raise that question in court. You also say this: In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning.  I confess to being a bit confused by this; I presume this comes from my statement in the blog post that Basically, there’s a bit of a red herring going around, saying that Wikimedia claims that the monkey owns the copyright. For the simple sake of avoiding any further confusion, let me clarify this by saying that I simply meant that a number of commentators (not you) were incorrectly following a tempting possibility that the monkey might hold a copyright. I certainly did not intend to imply that you were one of those commentators, or a red herring. Having dealt with the legal questions, I would also like to discuss some of your other, non-legal complaints. You say that my blog post was “willfully damaging and disrespectful” to you. It was not. While we clearly disagree on the scope and applicability of the law, I never insulted you or mocked you.  You might note that, at the bottom of the post, I, in the interest of being even-handed, even say you have a “colorable” argument for copyrightability—more credit than many of my learned colleagues have given you. The point of the post was to articulate a legal distinction that many missed—that the question was not whether or not a macaque could hold a copyright, but whether or not you could have a photograph in which no one held a copyright. Your actions and character were not disparaged, or even mentioned, because they were not relevant to that discussion. I will note, however, that whether I was disrespectful or not has no bearing on any legal matters at hand here. While I believe I was more than fair in my treatment of your reputation in that post, I did then, and do now, have every right in the world to be disrespectful of you in public. I hope that this letter resolves any dispute we might have. If it does not, we may be reached for service of process at the mailing address below. I eagerly await your reply. Best regards, Sherwin Siy Vice President of Legal Affairs 202-861-0020  |@SherwinPK Public Knowledge |@publicknowledge |www.publicknowledge.org  1818 N St. NW, Suite 410 | Washington, DC 20036 Siy's response, of course, covers all of the important stuff. However, I wanted to further comment on Slater's troubling belief that the public domain only applies to works that someone has proactively relinquished into the public domain. This goes right back to the point of Siy's original article: the troubling belief by some that everything must be owned in some form or another. This implicit belief is not only not the law, but it's immensely problematic. Culture works by openness and sharing. The history of culture is one in which people reused, reshared and remixed the works of others. The massive increase in locking down works via copyright laws has certainly limited that ability over the past hundred years or so, but it has not taken away the concept of the public domain entirely, as Slater seems to believe. Slater can't seem to fathom that the photograph doesn't belong to him, no matter how many legal experts have explained it to him. Even worse, he can't seem to fathom that things like the public domain and fair use are not only important, but are also part of what's made him be able to do what he does. Those who dismiss or misunderstand things like fair use and the public domain are ignoring the cultural body of work that made them who they are today.Permalink | Comments | Email This Story

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Christmas has come early for copyright owners in Australia. The film company, Roadshow, the pay television company Foxtel, and Rupert Murdoch's News Corp and News Limited--as well as copyright industries--have been clamoring for new copyright powers and remedies. In the summer break, the Coalition Government has responded to such entreaties from its industry supporters and donors, with a new package of copyright laws and policies [pdf]. There has been significant debate over the proposals between the odd couple of Attorney-General George Brandis and the Minister for Communications, Malcolm Turnbull. There have been deep, philosophical differences between the two Ministers over the copyright agenda. The Attorney-General George Brandis has supported a model of copyright maximalism, with strong rights and remedies for the copyright empires in film, television, and publishing. He has shown little empathy for the information technology companies of the digital economy. The Attorney-General has been impatient to press ahead with a copyright regime. The Minister for Communications, Malcolm Turnbull, has been somewhat more circumspect, recognizing that there is a need to ensure that copyright laws do not adversely impact upon competition in the digital economy. The final proposal is a somewhat awkward compromise between the discipline-and-punish regime preferred by Brandis, and the responsive regulation model favored by Turnbull. In his new book, Information Doesn't Want to Be Free: Laws for the Internet Age, Cory Doctorow has some sage advice for copyright owners: Things that don't make money: Complaining about piracy. Calling your customers thieves. Treating your customers like thieves. In this context, the push by copyright owners and the Coalition Government to have a copyright crackdown may well be counter-productive to their interests. The Internet Filter The proposal to give copyright owners the power to block websites is highly controversial. The Australian Government have devised a local version of the Stop Online Piracy Act--nicknamed #SOPA. There is a concern that such a power will interfere with civil liberties, traditional freedoms, and Internet rights. There is also an anxiety that copyright trolls will abuse such a scheme. The Australian Government has not explained what safeguards and protections will be in the bill. Malcolm Turnbull has been super-sensitive to criticisms of the copyright regime. He was incensed by questions from the Fairfax journalist Ben Grubb about whether the legislation was an internet filter: That's nonsense Ben. There's no internet filter here at all. What on earth are you talking about… What we're, look, what we are simply doing is proposing to amend the … we're going to amend the Copyright Act to make it more straightforward for rights owners to do what they can do now, which is to seek an order that access be prevented' to a site that is infringing content. Now the reason for the legislative provision is to make it available, is to enable you to get a remedy against an ISP -in other words to get an order against an ISP whose costs would have to be covered and so forth to block access to an overseas illegal download)…, uh, pirate site. I'll just use the word pirate because it's easy we understand what we're talking about. So if you have, you know, bengrubbdownloads.com.au in Australia and you are happily streaming, you know, unlicensed copies of movies, then this amendment would have no relevance to you because the rights owners can go after you directly. Critics of the regime have been unconvinced by such sophistry, and have been of the view that blocking websites amounted to an internet filter. Professor Dan Hunter from Swinburne University has commented that blocking websites is bad for Australia's digital economy. He observed that 'a poorly drafted law will inevitably be used to threaten Australia's nascent cloud computing industry, because cloud storage is where a large number of infringing files are found these days.' The Copyright Code The Australian Government has given an ultimatum to internet service providers to co-operate with copyright owners or else. If internet service providers refuse to co-operate within four months, the Australian Government will be able to impose its own industry scheme. The Ministers explained: The Attorney-General and the Minister for Communications have written to industry leaders requiring them to immediately develop an industry code with a view to registration by the Australian Communications and Media Authority (ACMA) under Part 6 of the Telecommunications Act 1997. The code will include a process to notify consumers when a copyright breach has occurred and provide information on how they can gain access to legitimate content. The Minister and the Attorney-General expect strong collaboration between rights holders, internet service providers (ISPs) and consumers on this issue. A copy of the letter to the industry leaders is attached. Failing agreement within 120 days, the Government will impose binding arrangements either by an industry code prescribed by the Attorney-General under the Copyright Act 1968 or an industry standard prescribed by the ACMA, at the direction of the Minister for Communications under the Telecommunications Act. Such a proposal involves a striking combination of copyright law and media law. Internet service providers face a Hobson's choice--they can either submit to an industry code with copyright owners in a short time frame, or else have the Federal Government impose an industry code upon them. Dr. Nicolas Suzor and Eleanor Angel from Queensland University of Technology have provided an incisive analysis of the regime: ISPs and copyright owners have 120 days (over the holiday period) to come to agreement on an issue that they have been at loggerheads over for the past five years. The government hasn't given ISPs much negotiating power, either. The clear threat is that if ISPs don't give the industry what it wants, the government will do it for them. These types of industry codes can be an effective way to regulate, but the only way they will reflect the overall public interest is if consumer groups are also given a seat at the negotiating table. We also need transparency and continual monitoring to ensure the scheme is not being abused, and public interest groups must have the power to effectively protect end users. In this proposal, consumer groups are not invited, and rightsholders hold all the power. The Coalition Government's tactics and strategies in this area are crafty. Professor Susan Sell has highlighted the use of soft power in copyright policy-making. This is a classic instance of trying to use industry codes and private agreements to achieve copyright goals. There will be much debate over whether the new scheme will constitute an Internet Tax. Consumer Rights Australian consumers have been let down by the copyright proposals. There is no defense of fair use, even though such a defense had been recommended by the Australian Law Reform Commission. There is no policy action on IT pricing rip-offs by copyright owners and information technology owners. Furthermore, the Government has failed to provide for a general safe harbor for intermediaries. As a result, Australian consumers are third-class citizens in the digital economy--lacking the rights and privileges of their counterparts in the United States. The Coalition Government has not extended the safe harbor for intermediaries such as search engines, social media, and internet video sites. Malcolm Turnbull noted: 'Given that this is related to broader issues than just online copyright, this proposal will not be pursued at this time.' He stressed: 'The Government expects that schools, libraries, search engines and wifi providers will continue to take steps to reduce online copyright infringement on their systems.' Such a decision represents a public policy failure for Google--which had been heavily lobbying the Federal Government for an extended safe harbor. Google's Digital Alliance has protested against the decision. However, the Coalition Government has shown little sympathy for Google and other information technology companies--especially given the scandal over tax avoidance in the new economy. Moreover, the Coalition Government has been keen to please Rupert Murdoch--who has called Google “Kleptomaniacs” in the past. Nonetheless, such an approach to intermediary liability in respect of copyright law is of concern. It is outrageous that Malcolm Turnbull expects that schools and libraries will be copyright cops and police copyright infringement on their networks. Such a proposal will interfere with the mission of schools and libraries to provide access to knowledge. Although the Coalition Government emphasized that timely access to affordable copyright content was key to addressing copyright infringement, the policy package provides no legislative or administrative proposals to address that issue. Turnbull sought to explain why the Coalition Government had not responded to the IT Pricing inquiry: 'The Inquiry raised significant public awareness of the issue of price disparity and brought to the attention of Australians a range of options and opportunities available to level the playing field.' He noted: 'The Government agrees that Australian consumers should be empowered to seek out goods and services at the best available price, consistent with the measures being introduced for online copyright.' Turnbull observed that 'there are also a number of other processes underway within Government including the Competition Policy Review (the Harper Review) and the Government's consideration of its response to the Australian Law Reform Commission's report into Copyright in the Digital Economy.' While the Coalition Government has deferred its response to the IT Pricing inquiry, it has rushed ahead with its proposals to enhance the rights and remedies of copyright owners. Political Responses In response, the Australian Labor Party has lambasted the proposal. In a powerful critique, Jason Clare MP has maintained that the Abbott Government does not understand the Internet: The Abbott Government has made it clear it doesn't understand the internet or its users. Senator Brandis demonstrated this with his complete inability to explain metadata earlier this year. Malcolm Turnbull is about to buy an ageing copper network because he thinks that by 2023 the median household in Australia will only require 15 Mbps. Jason Clare argued: 'It is clear that action is needed both to deter piracy, and to encourage access to legitimate content.' He also wondered whether the proposals of the government would be effective: 'Site-blocking is unlikely to be an effective strategy for dealing with online piracy'. Jason Clare maintained that 'the Government has passed the buck back to industry, asking rights holders and ISPs to reach an agreement among themselves'. He contended: 'Any crackdown on the infringement of copyright needs to be accompanied by changes to make copyright law fairer, clearer, and more in keeping with public expectations'. In his view, 'The Government should look after the interests of consumers.' The Australian Greens have also been highly critical of the copyright proposals of the Coalition Government. Senator Scott Ludlam has commented: The Greens will not support amendments to the Copyright Act to allow rights holders to apply for a court order requiring ISPs to block access to a website. Such a move would be a defacto Internet filter and would allow rights holders to unilaterally require websites to be blocked. This kind of Internet filter would not be effective at all, due to the widespread availability of basic VPN software to evade it. Senator Ludlam was also of the view that the ultimatum for a copyright code was unjust: "The Australian ISP and content industries have continuously failed to successfully negotiate a shared approach to copyright infringement over a period of at least three years, due in large part to the unwillingness of copyright holders to be flexible in their position." He observed: "In this context, the Government's requirement that a joint code be developed within 120 days is farcical." In his view, "This is not enough time to develop a code." Senator Ludlam lamented that "the Government has not specifically allocated a role for public interest organisations to have a place at the negotiating table," even though "users will be the ones most affected by this new code." He concluded: "Any industry code will be easily evaded by copyright infringers and will not address the real issue: The lack of timely, affordable availability of content in Australia, which other markets such as the US already enjoy." CHOICE Australia--the leading consumer rights' group in Australia--was also disappointed by the copyright proposals. Alan Kirkland was wary of 'an industry-run internet filter to block 'offending' websites'. He commented: We know that internet filters don't work. This approach has been called ineffective and disproportionate by courts overseas, and it risks raising internet costs for everyone. Kirkland said that there was a need to fix the availability, and the high prices in respect of copyright works. The Communications Alliance has been cautious about the Coalition Government's copyright plans. Pirate Party Australia has denounced the new copyright regime. President of the Pirate Party, Brendan Molloy, has commented: This proposal is effectively the beginning of an Australian version of the failed US Stop Online Piracy Act. Notification schemes, graduated response schemes and website blocking do not work. They are costly, ineffective and disproportionate, as evidenced by academia and decisions of foreign courts. Fighting the Internet itself as opposed to solving the lack of convenient and affordable access does not work, nor does propping up business models that rely upon the control of content consumption in the digital environment. Deputy President, Simon Frew, added: "Website blocking is censorship, plain and simple." He commented: "By ignoring the IT Pricing Inquiry and numerous submissions to different reviews that Australians are regularly paying more and waiting longer for content, the Coalition is looking to enact a legislative dinosaur that will be easily bypassed by savvy Internet users in seconds." The Institute of Public Affairs has also expressed reservations about the proposed copyright regime. Chris Berg commented: The government's proposal to block websites that infringe copyright is an internet filter and a threat to free speech. This is nothing more than an internet filter, of the sort which the Coalition proudly opposed when it was proposed by the Rudd and Gillard governments. There is no reason to believe that this will reduce copyright infringement in any material way. Such criticism is notable--given that the Institute of Public Affairs is often an ally and a friend of the Coalition Government, across a range of policy fields. The Future of the Internet It will be interesting to see what the Australian Senate will make of the Coalition Government's proposals in respect of a copyright crackdown in 2015. The Australian Senate has been compared to the Star Wars' Cantina--such is its diversity and variety. Much will depend upon cross-benchers like Nick Xenophon, the Palmer United Party, Family First, the Liberal Democratic Party, and various micro-parties and independents. The Coalition Government's copyright proposals will further enhance the private power of copyright owners in respect of the governance of the Internet. Bernard Keane worries: "We've thus arrived at the fully fledged war on the internet by this government that some of us have long been predicting, a war motivated by commercial interests and the never-satisfied greed of security agencies for more powers of surveillance and control, and a deep and abiding fear of what citizens will do with communications technology that is no longer controlled by governments." This is disturbing. The Internet will be increasingly subject to the rule of private sovereigns. As Tim Berners-Lee says, we need a Magna Carta to protect an open and accessible Internet--rather than a copyright crackdown. Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). Permalink | Comments | Email This Story

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We've seen this before. Whenever something happens that people don't like and they need a quick repository upon which to place heaping amounts of undue blame, they always seem to choose the internet. Who do we blame for murders? Ghost stories on the internet, obviously! Why is that batshit celebrity's reputation in the pooper? C'mon, all the thetans point to it being the internet's fault, of course! Your South American government is experiencing a bit of the old rebellion-time amongst the citizenry? Yo soy internet (ed: Tim, you never took Spanish in high school, did you?). But, typically, when somebody swoops in to blame the failings of one thing on a more internet-y thing, there's at least some tangential relationship. Those ghost stories were on an internet site after all, and that celebrity's antics were as well. And it's not like rebellions don't actually use internet services to coordinate protests. But what Edward Kosner of The Wall Street Journal managed to cobble together is truly amazing: high-profile failings in print media recently, notably the Rolling Stone University of Virginia rape story debacle, Newsweek getting the inventor of bitcoin wrong, and the traditional print media's complete failure to report on the known rape accusations against Bill Cosby, are the internet's fault too, even though the screw-ups themselves were within the print media. Confused as to how this could be? Well, Kosner's thesis essentially amounts to: this internet shit is, like, totally fast, and print media is trying to print really fast too, which is why they're screwing up. To prove how completely unhinged this piece is, take two sections and put them side by side. Take, on one hand, the accusation that print journalists failed to report on Bill Cosby: And the vastly experienced author of a new 500-page biography of Bill Cosby managed to blow the lead: to leave out detailed accusations by more than a dozen women that the beloved comedian had drugged and raped or otherwise sexually molested them. And put it alongside his assessment of the real problem: Quite simply, print editors and their writers, and especially the publications’ proprietors, are being unhinged by the challenge of making a splash in a new world increasingly dominated by the values of digital journalism. Traditional long-form journalism—painstakingly reported, carefully written, rewritten and edited, scrupulously fact-checked—finds itself fighting a losing battle for readers and advertisers. Quick hits, snarky posts and click-bait in the new, ever-expanding cosmos of websites promoted by even quicker teasers on Twitter and Facebook have broadened the audience but shrunk its attention span, sometimes to 140 characters (shorter than this sentence). Got that? Traditional print journalists failed to report on the splashy story of Bill Cosby's accusers because they're trying to compete with the splashy internet journalists and...wait...what? I'm confused as to why Kosner would offer such a complete counter-example to his entire thesis. It must be a print journalist's thing. I'm just here to be splashy and sarcastic, so let me just say that Kosner is a buffoon and then put this cute picture of a cat in for good internet-y measure. God bless this guy's stupid little furry face. But, wait, there's more. The only reason the Rolling Stone post was found out to be a big bucket of internet-speed wrongness was, wait for it, because of the internet as well. Here was a story made to go viral—doing journalistic due diligence on it might blunt its sharp edges and sap its appeal. As it happened, the Rolling Stone piece was undone by old-school reporting by the Washington Post, which has the resources to do its job only because it is being subsidized by the Internet billionaire Jeff Bezos of Amazon, who bought the paper from the Graham family last year for $250 million. Phew, thank god for that internet guy and his filthy, splashy, click-bait-y money, otherwise we wouldn't have had any journalism this Christmas, Virginia. The internet, it would appear, much like beer, is both the cause and solution to all of journalism's problems. It created the crappy Rolling Stone piece, then it fixed it too. It's almost as though the internet isn't really the controlling factor here, only the occasional trappings of lazy journalism. Sometimes that happens on the internet and sometimes it happens in print. All this is really driven home by Kosner's concluding paragraph, which appears to have been written as though all the preceding words had never been uttered. The new, disruptive pressure of digital publishing on what has come to be thought of as traditional journalism isn’t going to ease anytime soon. Those who are owners or workers in legacy publishing have to understand that they can survive the onslaught—and perhaps eventually thrive—only by maintaining the rigorous standards that once made these publications not only respected but trusted by their readers and advertisers. Desperate times call for disciplined journalism. In other words, the failings described above are all to do with the journalists in those instances failing their own standards, not because of the scary, super-speedy internet. Come on, WSJ, you guys have editors over there, yes? Permalink | Comments | Email This Story

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As we've been noting, there's a growing trend afoot whereby some news websites have started unilaterally declaring the lowly news comment section dead, and therefore have started eliminating the ability for visitors to comment entirely. While it's one thing to just close site comments and be done with it, sites like ReCode, Reuters and Popular Science have been quick to insist that they're killing comments for the good of the "conversation," which sounds so much better than "we closed news comments because we're too cheap and lazy to police bile and spam." At a time when racial conversation couldn't be more important, the St. Louis Post Dispatch has decided to join the war on comments, this week declaring that the paper would be eliminating comments from paper editorials completely. This is, the paper declares, because it's very much concerned about having a "meaningful discussion":"We intend to use our opinion pages to help the St. Louis region have a meaningful discussion about race. So we are going to turn off the comments in the editorial section for a while, and see what we learn from it. (Comment will continue on news articles). Comments might return to the opinion pages. Or we might find that without them, the discussion — through letters, social media conversations and online chats, rises to a higher level."Again, does anything say "we love conversation" quite like restricting conversation? Like ReCode and Reuters, the paper appears to believe that e-mail and social media are good enough substitutes for an open conversation on site -- not understanding that part of building a community involves a cultivating a regular, engaged local readership, and protecting that readership from the angsty dregs of the Internet. The paper justifies its move by leaning heavily on a recent University of Wisconsin-Madison study (also see this NY Times report) that found news story readers could have their opinions manipulated through completely unmoderated comments (something astroturfing and marketing firms have relied on for ages):"In their study, published last year, researchers concluded that “Much in the same way that watching uncivil politicians argue on television causes polarization among individuals, impolite and incensed blog comments can polarize online users.” In some cases, negative blog comments actually changed readers’ perception of what they read, not just their opinions about it."But isn't shifting opinions part of having any conversation, online or off? And is killing the comment section entirely really the way to handle aggressive, trolling, or misleading comments? It still feels like many outlets have just grown tired of managing their own communities, but instead of admitting that they're not invested enough to spend time weeding the troll garden, they've taken to disingenuously claiming they're somehow revolutionizing online conversation -- by making sure there's less of it.Permalink | Comments | Email This Story

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As Mike wrote recently, to no one's surprise, the UK's meek Investigatory Powers Tribunal decided that GCHQ's surveillance did not violate anyone's human rights, despite its scope and scale. All is not lost, however, since that case is now likely to move to the European Court of Human Rights. Moreover, it's just one of a growing number of a challenges to the UK's spying activities. A key element of the argument that GCHQ's activities are legal is the use of powers granted under the UK's Regulation of Investigatory Powers Act (RIPA). This, too, is being scrutinized by a variety of official groups, including the Intelligence and Security Committee of the UK Parliament, the Independent Reviewer of UK Terrorism Legislation, and a further standalone surveillance review. In addition, the important Home Affairs Committee of the UK Parliament has been looking at one particular aspect of RIPA, its use against journalists: This inquiry addresses police forces' use of RIPA powers to acquire communications data in the course of investigations. In two recent, high-profile cases, police have used RIPA powers to obtain material which might be regarded as journalistic material for the purposes of [the Police and Criminal Evidence Act 1984]. That has naturally sent shockwaves through the UK journalistic establishment, which sees its privileged communications with sources under threat. The Home Affairs Committee's report is short, and offers an interesting summary of how RIPA is being used, including the following statistic: In 2013, there were 514,608 notices and authorisations for communications data, down from 570,135 in 2012. Of these, 87.7 % were submitted by law enforcement agencies and 11.1 % by the intelligence agencies. Its conclusion is equally short, but unequivocal in its scathing rebuke to UK police forces for the way they are currently using RIPA in their investigations: RIPA is not fit for purpose, with law enforcement agencies failing to routinely record the professions of individuals who have had their communications data accessed under the RIPA. The recording of information under RIPA is totally insufficient, and the whole process appears secretive and disorganised with information being destroyed afterwards. Whereas we acknowledge the operational need for secrecy both during investigations and afterwards (so that investigative techniques more broadly are not disclosed), we are concerned that the level of secrecy surrounding the use of RIPA allows investigating authorities to engage in acts which would be unacceptable in a democracy, with inadequate oversight. We recommend that the Home Office use the current review of the RIPA Code to ensure that law enforcement agencies use their RIPA powers properly. Alongside RIPA, there is also the more recent DRIPA, the Data Retention and Investigatory Powers Act, which was pushed through the UK Parliament in record time this summer in response to the EU's Data Retention Directive being ruled invalid. Two MPs -- the Tory David Davis, and Tom Watson from Labour -- immediately announced that they would seek a judicial review of DRIPA, and this week a High Court judge has given permission for the review to go ahead. The UK government may show no sign of reining in its snooping voluntarily, but challenges to the UK's spying apparatus continue to multiply, which offers the hope that at some point it will be forced to do so. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 6 days ago on techdirt
More and more stories about economic inequality appear to be written more frequently. There are all sorts of statistics about the 1% versus the other 99% and how much wealth the top 1% controls compared to the rest of the population. The numbers vary all over the world. Russia apparently has 110 individuals who control 35% of the country's wealth, while worldwide, the top 1% controls 39% of the world's wealth. If you're not feeling rich now, check out a few of these links if you have the spare time. Is overtime pay really that important for middle class prosperity? Decades ago, American workers earned more time-and-a-half pay than they do today, and there's a billionaire who points out that raising the overtime threshold income to $69,000 (from $23,660) would bring back overtime pay rules to over 10 million workers. [url] A few retailers like Costco, Trader Joe's and QuikTrip pay their workers more than other low-cost retail firms. But can productivity gains from hiring and treating employees better actually work across the retail sector? [url] Between 1997 and 2013, childcare providers' wages hardly grew at all, according to the National Child Care Staffing Study. It may not be too surprising to see that childcare workers earn near poverty-level wages, but it's a bit disconcerting to see that adults who take care of animals earn more. [url] It costs money to save money, so it's not so easy to bootstrap your way out of poverty. Getting sick, having a car break down, getting a parking ticket... are all unlucky events that could ruin your life if you have no savings and a low-paying job. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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