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It's fairly common in science fiction for space mining operations to exist, but the reality is that just getting anything into space is pretty expensive -- and there isn't all that much stuff in space that needs to get re-supplied with materials. However, the legal basis for claiming ownership of space resources may be clearing up, and a few companies might actually be driving down the costs of getting a spacecraft into space. The concept of striking a literal gold mine in space might not happen, but the technology to collect resources in space might still be valuable for future space exploration. The House has passed a bill containing rules for space mining rights -- allowing private companies to actually own whatever they manage to mine on any asteroids they find. The Space Act appears to only cover resources from asteroids, so private companies can't claim ownership of moons, planets or planetoids or... anything else yet. [url] Another asteroid mining company has ambitious plans to release a fleet of cubesats to look for precious metals in asteroids in near-earth space. Even if this company succeeds in finding asteroids that contain more metal than others, it could end up being a very expensive way to get nickel and iron back to earth. [url] Planetary Resources Inc might not be so optimistic about extracting platinum from mining asteroids -- as the company pivots to collecting water from space objects to serve as a re-fueling station to help extend the lifespans of aging satellites already in orbit. However, it's not clear if the owners of existing satellites would ever want to pay for such a risky service. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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The government that wants so badly to be the world's leading cyberwarfare force still seems largely unable to fence in its own backyard. In Yet Another Breach™, the sensitive financial information of thousands of Americans is now in the hands of criminals. The IRS announced today that criminals used taxpayer-specific data acquired from non-IRS sources to gain unauthorized access to information on approximately 100,000 tax accounts through IRS’ “Get Transcript” application. This data included Social Security information, date of birth and street address. These third parties gained sufficient information from an outside source before trying to access the IRS site, which allowed them to clear a multi-step authentication process, including several personal verification questions that typically are only known by the taxpayer. So, not actually "hacking," per se, as much as the gaming of system just begging to be gamed. The information criminals needed to obtain this data may have been "specific" to each registered taxpayer, but it was also information that rarely, if ever, changed. This sort of authentication, called knowledge-based authentication, is highly vulnerable to fraud. It's based on information that never changes, and such data is widely available to anyone willing to pay for it from stolen financial information marketplaces. The transcripts that were fraudulently downloaded were likely made accessible due to leaked Social Security numbers and other personal data from any one of the many recent data breaches, including those at health insurers Anthem and CareFirst. In fact, security reporter Brian Krebs reported on the risks inherent in the IRS' transcript request system way back in March. He warned taxpayers to sign up for accounts on IRS.gov if only to prevent someone from creating a fraudulent account for their records first. The IRS is reassuring Americans that its "core systems" remain secure, something of little comfort to the 100,000 taxpayers who will be receiving mea culpa letters (and free credit monitoring) from the agency over the next few weeks. What the IRS considers to be adequate protection is apparently not nearly adequate enough. Once the data is out there, verification information can be used to gain access to credit cards, bank accounts or anywhere else the same sort of canned questions are presented during the signup process. The 50% success rate suggests unique personally-identifiable information isn't necessarily all that unique. In all, about 200,000 attempts were made from questionable email domains, with more than 100,000 of those attempts successfully clearing authentication hurdles. The IRS is quick to add that 23 million records were "safely" downloaded during this same time period, which isn't really the comforting statement it means it to be. All this means is that millions of downloads weren't linked to "questionable" email domains. That's not the same thing as 23 million downloads going to the actual owners of that information. The IRS is vowing to "strengthen its protocols" going forward. This is the only response it can offer, unfortunately. Stronger processes are needed, but additional steps and more obscure verification questions will manifest themselves as hurdles a certain percentage of taxpayers won't be willing to leap for online IRS access. Going paperless won't seem nearly as advantageous, not when a motherlode of financial information can be pulled out of the ether by cybercrooks armed with the fruits of years of financial breaches, both public and private. Permalink | Comments | Email This Story

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Well, this is unfortunate. Last fall, we wrote about yet another patent case being heard by the Supreme Court. This one (Commil v. Cisco) involved the question of whether or not a company could be found liable for "inducing infringement" when it believed that the patent in question was clearly invalid. The appeals court (CAFC) had overturned a lower court, saying that it was wrong for a judge to instruct a jury that Cisco could be found guilty of inducing patent infringement if it "knew or should have known that its actions would induce actual infringement." The big question was about the "should have known" part. Cisco argued -- and the CAFC agreed -- that the "should have known" statement created a negligence standard, which is not appropriate in such cases. Further, CAFC rightly pointed out that "one cannot infringe an invalid patent." Unfortunately, the Supreme Court has now mostly sided with the patent holder Commil, and said that believing a patent is invalid is no defense to an inducement claim in a patent infringement case. The reasoning -- in an opinion by Justice Kennedy -- is basically "infringement and validity are two separate issues." True... but... sorta misses the point. The Court, thankfully, didn't go quite as far as it could have gone in saying that you could induce infringement even without knowledge that something is infringing, but it rejected the idea that a belief the patent was invalid is a "defense" to an inducement claim. All because it insists that validity and infringement are two entirely separate issues. When infringement is the issue, the validity of the patent is not the question to be confronted. But this presumption of validity is problematic in any real world scenario, and the ruling doesn't seem to care, focusing on the procedural issues of when certain arguments are made and who has the burden at what point: To say that an invalid patent cannot be infringed, or that someone cannot be induced to infringe an invalid patent, is in one sense a simple truth, both as a matter of logic and semantics. See M. Swift & Sons, Inc. v. W. H. Coe Mfg. Co., 102 F. 2d 391, 396 (CA1 1939). But the questions courts must address when interpreting and implementing the statutory framework require a determination of the procedures and sequences that the parties must follow to prove the act of wrongful inducement and any related issues of patent validity. “Validity and infringement are distinct issues, bearing different burdens,different presumptions, and different evidence.” 720 F. 3d, at 1374 (opinion of Newman, J.). To be sure, if at the end of the day, an act that would have been an infringement or an inducement to infringe pertains to a patent that is shown to be invalid, there is no patent to be infringed. But the allocation of the burden to persuade on these questions, and the timing for the presentations of the relevant arguments, are concerns of central relevance to the orderly administration of the patent system. Right. But that means that anyone who is aware of what they know to be an invalid patent would first need to have the patent itself rejected before they can go on with their business, and that creates a huge hurdle to innovation. But what's interesting is that the Supreme Court then delves into a discussion on the fact that this ruling has a big impact on patent trolling situations. First, from the opinion by Kennedy: The Court is well aware that an “industry has developed in which firms use patents not as a basis for producing and selling goods but, instead, primarily for obtaining licensing fees.”... Some companies may use patents as a sword to go after defendants for money, even when their claims are frivolous. This tactic is often pursued through demand letters, which“may be sent very broadly and without prior investigation,may assert vague claims of infringement, and may be designed to obtain payments that are based more on the costs of defending litigation than on the merit of the patent claims.” ... This behavior can impose a “harmful tax on innovation.”.... No issue of frivolity has been raised by the parties in this case, nor does it arise on the facts presented to this Court. Nonetheless, it is still necessary and proper to stress that district courts have the authority and responsibility to ensure frivolous cases are dissuaded. If frivolous cases are filed in federal court, it is within the power of the court to sanction attorneys for bringing such suits. Fed. Rule Civ. Proc. 11. It is also within the district court’s discretion to award attorney’s fees to prevailing parties in “exceptional cases.”... But, in the dissent, Justice Scalia rips into the practice, and (for the first time) calls out patent trolling as patent trolling, and notes that the majority ruling gives more power to patent trolls: I may add, however, that if the desirability of the rule we adopt were a proper consideration, it is by no means clear that the Court’sholding, which increases the in terrorem power of patent trolls, is preferable. Scalia also rips apart the arguments in the majority opinion: Because only valid patents can be infringed, anyone with a good-faith belief in a patent’s invalidity necessarily believes the patent cannot be infringed. And it is impossible for anyone who believes that a patent cannot be infringed to induce actions that he knows will infringe it. A good-faith belief that a patent is invalid is therefore a defense to induced infringement of that patent. As for the fact that validity and infringement are different issues, Scalia simply notes: That is true. It is also irrelevant. Saying that infringement cannot exist without a valid patent does not “conflate the issues of infringement and validity,” ... any more than saying that water cannot exist without oxygen “conflates” water and oxygen. Recognizing that infringement requires validity is entirely consistent with the “long-accepted truth . . . that infringement and invalidity are separate matters under patent law.” Scalia also trashes the idea that without this ruling it would undermine the presumption of validity. Not so, says Scalia, as it only would matter in cases where, in fact, the patent is not valid. This presumption is not weakened by treating a good-faith belief in invalidity as a defense to induced infringement. An alleged inducer who succeeds in this defense does not thereby call a patent’s validity into question. He merely avoids liability for a third party’s infringement of a valid patent, in no way undermining that patent’s presumed validity. Either way, I think Scalia got this one right, and unfortunately the majority of the court went the other way. The Supreme Court had been making a bunch of good rulings on patent law lately, so I guess it was bound to issue a stinker eventually. The overall impact won't be as big as some of the other cases, and I guess it's nice to see that the Supreme Court absolutely recognizes that patent trolling problem, as that will be handy in future cases.Permalink | Comments | Email This Story

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Many people have tried to figure out what factors contributed to making Silicon Valley a center of rapid innovation, usually so that they might replicate it elsewhere. But most of these efforts focus on superficial aspects and miss the most important feature of Silicon Valley's culture: the open and free flow of ideas, information and talent. This week, Mike, Dennis and Hersh discuss their personal experiences with Silicon Valley and their observations about what really makes it so special. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Rightscorp (via two music publishers) has dragged Cox into court to test its novel (read: legally unsound) theory that complying with the DMCA means cutting off service to "repeat infringers." The theory itself is largely untested, but far from promising. But that isn't stopping BMG and Round Hill Music (with Rightscorp as a not-so-silent partner) from taking a flyer on a bad legal bet. Certainly, the theory would be advantageous to the shakedown efforts Rightscorp generously refers to as a "business model," but, so far, the only thing being offered as "evidence" of repeat infringement is Rightscorp's own declarations. Those declarations are highly suspect. Cox has filed an opposition to Rightscorp's Motion to Compel that highlights the anti-piracy company's extortion-esque tactics. In a statement that leaves little to the imagination, Cox notes that Rightscorp is “threatening” subscribers with “extortionate” letters. “Rightscorp is in the business of threatening Internet users on behalf of copyright owners. Rightscorp specifically threatens subscribers of ISPs with loss of their Internet service — a punishment that is not within Rightscorp’s control — unless the subscribers pay a settlement demand,” Cox writes (pdf). Cox has refused to participate in Rightscorp's quasi-legal activities. While the company is not opposed to passing on infringement allegations, it did ask Rightscorp to remove the threatening language (cutting off service, $150,000 per infringement claim) first. Rightscorp refused to do so. This impasse is obviously unacceptable to Rightscorp, which depends on the (very) occasional settlement payment to keep its business barely afloat. As Cox points out, Rightscorp has decided the best course of action is to maintain its unsteady perch on the edge of legality. In the filing, Cox alleges that Rightscorp tried to make the ISP a "business partner" in its shakedown attempts. “Rightscorp had a history of interactions with Cox in which Rightscorp offered Cox a share of the settlement revenue stream in return for Cox’s cooperation in transmitting extortionate letters to Cox’s customers. Cox rebuffed Rightscorp’s approach,” Cox informs the court. But that's not the only legally-dubious tactic the "cutting edge" anti-piracy firm has deployed. It's also attempting to use this lawsuit's discovery process to sidestep subpoena limitations. The motion lays bare one of Plaintiffs’ primary reasons for bringing this lawsuit. Plaintiffs seek to circumvent the Cable Privacy Act process and instead use discovery in this case to force Cox to reveal, en masse, PII for possibly tens of thousands of Internet subscribers who Plaintiffs speculate might be violating their copyrights. The Cable Privacy Act expressly prohibits Cox from disclosing its subscribers’ PII, for good reason: Internet subscribers have a compelling privacy interest in the confidentiality of their personal information, which can of course be vulnerable to exploitation for myriad improper purposes. If a copyright holder earnestly believes that an unnamed Internet subscriber is infringing upon its copyrights, the proper course is to bring a “John Doe” lawsuit against the subscriber and then to use third-party subpoena power to obtain identifying information from the user’s Internet Service Provider. That legitimate procedure allows notice to the subscriber and an opportunity for the subscriber to act to protect his or her rights. It also relieves the ISP of the unfair responsibility of adjudicating which of the two competing interests (the subscriber’s or the accuser’s) should trump the other. [...] Plaintiffs nominally (Rightscorp in reality) claim to have identified “approximately 150,000” infringers, including several hundred “egregious infringers,” among Cox’s subscribers. But Plaintiffs apparently have only IP addresses to go on. (Doc. 72, Corrected Br. at 3.) Plaintiffs have not filed any “John Doe” lawsuits against Cox customers and have not sought information from Cox by subpoena. More importantly, Plaintiffs do not seek, and have not sought, leave to add “John Doe” defendants in this case. [...] The practical dynamics of this motion are suspect: If there are 150,000 infringers among Cox subscribers, as Plaintiffs claim, why would they limit themselves (at least for now) to just 500 “egregious infringers”? Will Plaintiffs seek to depose or serve Rule 45 subpoenas on those 500? Will Plaintiffs now seek to add those 500 as co-defendants? Why do Plaintiffs want a blank-check “open order” to continually demand that Cox reveal more identities at later stages in this action? When tested in practical terms, Plaintiffs’ motion makes no sense, and their arguments plainly are an obvious pretext for some other motive. "Pretext for some other motive" basically describes the entirety of Rightscorp's business model. It subpoenas ISPs for subscriber info, under the unspoken pretext that further legal action is in the offing. But instead of suing file sharers, the company instead uses the information to harass subscribers into paying "settlements" for alleged infringement. Despite the damning claims made by Cox, the court has partially granted the questionable Motion to Compel. The ISP has been ordered to turn over the "Top 250 IP Addresses recorded to have infringed in the six months prior to filing the Complaint." This distinction is important, because as Cox points out in its opposing motion, the plaintiffs' constantly-widening net had managed to drag in alleged infringers whose infringement didn't occur until after the lawsuit was filed. Plaintiffs’ stated justifications for their extraordinary request do not help Plaintiffs’ cause. Plaintiffs acknowledge that they “must establish direct infringement of the copyrighted works asserted in this case,” and imply that their motion serves that end. (Doc. 72, Corrected Br. at 4.) But that implication is illogical because Plaintiffs seek PII for 500 subscribers of the 150,000 supposedly implicated here. Surely Plaintiffs are not prepared to concede that their claims fail for the works that the other 149,500 subscribers allegedly infringed. Notably, of the 500 allegedly “egregious infringers” the Plaintiffs hand-picked, 250 allegedly infringed after this lawsuit was filed. (Doc. 72, Corrected Br. at 4.) Those subscribers’ alleged infringements, therefore, cannot have formed a basis for Plaintiffs’ claims in this suit. And nowhere do Plaintiffs even assert that Rightscorp sent purported DMCA notices to Cox with respect to those particular subscribers. Cox has come out swinging in the early going, and its assertions confirm much of what has been written about Rightscorp and its tactics. This aggressive stance should help uncover plenty of damning details, none of which should have a positive effect on Rightscorp's shriveling stock price. Permalink | Comments | Email This Story

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Back when Verizon sued to overturn the FCC's 2010 net neutrality rules, the telco argued that the FCC was aggressively and capriciously violating the company's First and Fifth Amendment rights. According to Verizon's argument at the time, broadband networks "are the modern-day microphone by which their owners engage in First Amendment speech." Verizon also tried to claim that neutrality rules were a sort of "permanent easement on private broadband networks for the use of others without just compensation," and thereby violated the Fifth Amendment. Granted, any well-caffeinated lawyer in a nice pair of tap dancing shoes can effectively argue anything, though in this case you'd obviously have to operate in a vacuum and ignore the history, context and definition of net neutrality to fully do so. Regardless, Verizon did manage to have those original, flimsy rules thrown out, but it had nothing to do with the telco's Constitutional arguments. Verizon won because the FCC was trying to impose common carrier rules on ISPs without first declaring them as common carriers under Title II of the Communications Act, something the FCC tried to remedy with the latest rule incarnation. Fast forward to 2015. AT&T's busy suing the FCC both as part of USTelecom, but also with a standalone lawsuit of its own. In a statement of issues (pdf) outlining its legal assault on the FCC's net neutrality rules, AT&T makes it clear that it too will try to claim the FCC is violating the company's First and Fifth Amendment rights:"In a statement of issues that AT&T intends to raise when the case moves further into the court process, the company said last week that it plans on challenging whether the FCC’s net neutrality order "violates the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the US Constitution." The First and Fifth Amendment will be used to attack the FCC's decision to reclassify both fixed and mobile broadband as common carrier services, as well as the FCC's assertion of authority over how ISPs interconnect with other networks."CenturyLink, wireless carriers (the CTIA) and major telcos (USTelecom) have stated they plan to argue the same point, though the precise legal approach obviously isn't being disclosed yet. Basically, AT&T and friends are throwing every legal claim they can possibly think of at the wall and hoping something sticks. Leaning on the First Amendment when it's convenient has long been a telecom lawyer mainstay, logic be damned. Verizon tried to argue that its participation in the government's domestic surveillance efforts was protected by the First Amendment. Comcast has tried to argue that its right to bar competitors' TV channels from its lineup is similarly protected by the First Amendment. Charter Communications has hinted it believes its First Amendment rights mean it doesn't have to adhere to municipal franchise contracts. Of course, those of us here on planet Earth realize net neutrality is intended to protect the free speech rights of consumers and small business owners from the incumbent ISPs, and the only concept truly being explored here is irony.Permalink | Comments | Email This Story

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If you are looking for a new set of headphones with professional quality sound but you don't want to spend much, the Earjax 'Lyrics' Noise-Isolating Headphones for only $34.95 could be what you need. These noise canceling headphones are engineered for a precision fit and to deliver studio quality sound. They come with 9 different foam tips so you can find the best fit for your ears, an extension cable, and zippered hard case to keep everything easily accessible and tidy. The woven cloth braid adds to the cable's durability and longevity. This deal ships to the continental US and isn't available for much longer. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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A couple of weeks ago, Eric Goldman posted an article at Forbes discussing an attempt by a company called Infringex to get him to remove a post from his personal blog. The notice sent to Goldman was riddled with mangled legal terminology ("infringement of defamation") and misconceptions (defamation is "the taking of someone's reputation") and was signed by Randi Glazer, the supposed "victim" of a post by "perma-guest" blogger, Venkat Balasubramani. As Goldman points out, he was under no legal compunction to entertain this request -- if only for the reason that a request was all it was. It further says that my actions are “unjust” and asks me to “please be kind” and remove the content. However, the notice is cagey about any alleged legal violations. The services offered by Infringex carry no legal weight. This much was admitted to me by Alex Marshall, the owner of the company. He refers to his company's offerings as "self-help documents" that help enforce "common law rights." In order to avoid "unauthorized practice of law," he says his company does not assist in the selection of documents or otherwise advise customers of their legal rights. Instead, he portrays his company's services as a slightly-more-official-looking way to send requests to remove content. Infringex's services start at $140 -- a price that seems a little high for "Would you kindly…" letters to site owners. As confirmed by Marshall, there are no refunds for the documents' failure to get content removed. Marshall points to the site's terms of use, which clearly state that users are on their own (and out $140+) if the requests are unsuccessful. 6. OUTCOMES. The parties agree the self-help forms provided by INFRINGEX do not constitute professional legal advice and may not be appropriate for every legal situation. INFRINGEX asserts and you hereby accept that there is no guarantee the use of the self-help forms provided by INFRINGEX will result in a successful outcome to your legal matter. The terms of use also point out that takedown requests may result in negative backlash, as well as Infringex being unable to prevent anyone else (including the target of the original request) from reposting the disputed content. Is asking site owers nicely (but sternly) to remove content worth $140 and up? I asked Marshall this question. He said Infringex "adds value" by being able to find the right person to contact for content removal, as well as being rather skilled at navigating circuitous systems meant to discourage those seeking content removal. (He cites Facebook, in particular, as being more than a little opaque in this area.) But despite being upfront with me -- as well as in the site's terms of use -- that Infringex has no legal basis for most of its request letters and that most recipients are completely free to ignore these takedown attempts with no negative consequences, the site itself sends mixed messages. On its "Services" page, it states that Infringex offers "legal documents," something it clearly (and admittedly, by its own Chief Officer) does not do. You can hire a lawyer and begin legal proceedings, or you can choose to send an affordable legal document to address the problem right now with infringex.com. Send them a legal document designed to give you a quick resolution. But there's nothing "legal" about these documents. Anyone can send one for any reason, provided they pay the fee. The hodgepodge of legal lingo, along with the "professional" border, are designed to give receipients of these notices the impression that they are in possession of some sort of legal order. Unfortunately, the services Infringex offers are basically useless. The company's success (what there is of it) relies heavily on ignorance -- both on the part of the sender and the receiver. The sender has to believe an Infringex document will be more effective than anything he or she could accomplish on their own. At the other end, those receiving these requests need to believe these documents carry far more legal weight than they actually do. Marshall admits his services are greatly dependent on the wholly-voluntary cooperation of those receiving these requests. Despite this, he claims his documents are successful nearly 40% of the time. He sent me a selection of (redacted) letters from compliant entities as evidence of Infringex's successes. Unfortunately, before sending these, he asked me to abandon my ethics and professionalism in exchange for releasing this info. BTW Tim, When we have some time next week, I could forward to you proof of website owners and administrators complying with our requests. But if I do that, I would expect you to write a favorable article on us ;)) This may have been a joke that badly missed its mark (note the winking emoticon) or it may have been a genuine request. (His response to my response indicates it was more of the latter.) I informed Marshall that he was free to withhold the documents if this was the only way I'd get to see them. He seemed to quickly realize he'd made an egregious error and immediately agreed to send the documents (embedded below) no matter how flattering or unflattering the resulting post ended up being. There's not much that can be gleaned from the documents provided, as Marshall obviously desires to protect the privacy of those involved. Fair enough. No business offering content takedown services should willingly part with sensitive client or recipient information. But in terms of establishing Infringex as a successful entity, it's more hearsay than actual evidence. While Infringex's services may be of only marginal use, my emails and phone conversations with Marshall -- combined with my own research -- lead me to believe this is just a bad business model (aided and abetted by some questionable muddying of legal waters) rather than a low-level scam operation or a shady offshore entity selling unneeded services of dubious legal provenance while keeping itself out of harm's way by incorporating in Bermuda, etc. Marshall cites some reputation problems with his family's business (not Infringex) -- ones he spent "years" cleaning up -- as the driving force behind his current endeavors. No further details are forthcoming, but Marshall portrays this reputational damage as intentional sabotage by competitors. Whatever the truth is, it helps explains why he would choose to pursue the career he does. Marshall has since responded to Goldman's Forbes post, offering a rebuttal to his criticism. The rebuttal is in need of a rebuttal, but I'd rather just point out something Infringex has changed in response to Goldman's criticisms. The "press release" notes that it has "edited its site to better serve users," but fails to specify exactly what has been edited. Ken White (Popehat) tracked down the change. The word "ordered" in the following sentence on its defamation removal page has been replaced with "asked." They will be asked to DELETE and REMOVE the blog, post or review, immediately. This is an improvement, but Infringex really should stop insinuating its services are on par with actual legal services provided by actual law officers, or that its documents have any legal basis whatsoever. What I can say in defense of Infringex (that goes past the faint praise damnation of "NOT A SCAM!") is that its owner seems sincere in his desire to help people, even if his site portrays his company's services as more valuable than they actually are. The other thing I can say in his defense is that these quasi-legal documents, being hawked for $140 minimum, are no worse than some of the bogus cease-and-desist orders we've covered here at Techdirt. Infringex is misguided and badly in need of some legal coaching on defamation and other undesirable content. The lawyers signing these C&Ds -- and issuing them on law firm letterhead -- have no excuse for being as clueless as some random internet dude with a half-baked reputation management service. Bogus takedown demands issued by these lawyers are usually more expensive while being no more legally-sound than Infringex's documents. But they carry with them a legal heft that often prompts victims of this bullying behavior to capitulate immediately. These lawyers similarly rely on the ignorance of others for their success, but they do so with complete awareness of their disingenuous and harmful actions. They screw the people on both ends of these interactions. Their clients often find the criticism and content they want buried spreading uncontainably across the internet. Their targets often find themselves having to hire lawyers of their own or simply living unenjoyable lives marred by the omnipresent threat of always-impending legal action. Infringex -- for what it's worth -- can't bully people into submission or sue anyone on behalf of its customers. But it can lead the uninformed to seek removal of content they have no legal right to "order" taken down. Because of this, the service is more likely to be abused by those who wish to bury criticism or past embarrassments. Because Infringex is clearly not a legal entity, it is under no obligation to advise against deploying abusive takedown requests. But as is pointed out above, the world is full of lawyers who apparently feel they're similarly under no obligation to refuse to aid and abet in legally-groundless bullying tactics. Infringex's services are dubious. Its press releases and blog posts bear an unfortunate resemblance to outsourced content farming. Its grasp on the legal issues it's tangling with are tenuous at best. Its attempt to portray itself as both a legitimate alternative to legal action as well as a decidedly-not legal entity sends mixed messages -- perhaps willingly. But it is not evil. Unfortunately, because of its shortcomings, it will tend to attract the sort of people who know they have no legal basis for their takedown requests, but hope that an official-looking document might scare a few people into compliance. That's a problem and -- as its services are contstructed and sold -- one it will never be able to fix in its current state. Permalink | Comments | Email This Story

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For the last few years, we've been covering a long (now complete) saga concerning the status of the copyright on Sherlock Holmes. A few years ago, we wrote about the odd state of the copyright according to the Conan Doyle Estate -- which insisted that the character was not in the public domain in the US (even as it is in the public domain in many other countries). That's because, while nearly all of Sir Arthur Conan Doyle's works were published long before 1923, a final set of 10 stories were published after. The Estate erroneously argued that as long as any part of Sherlock Holmes was under copyright, all of it was. In 2013, a scholar of Sherlock Holmes sued the Estate to argue otherwise. And despite the silly fears of the Estate, both the district court and the appeals court rightly explained how copyright law works to the Estate, noting that all of the early works are in the public domain, and the only copyright that may be maintained is in the marginal creative additions in those final 10 works. The appeals court even went so far as to argue that the Estate was abusing antitrust laws in demanding fees from everyone. And the Supreme Court refused to review the case. And thus, Sherlock Holmes is considered to be mostly in the public domain. One might argue that a US federal court outside of the 7th Circuit might find otherwise, but it appears that the Estate has given up the fight and now will readily admit that the earlier works are in the public domain. That does not mean, however, that it is done suing. Not at all. The Estate has now sued over a book and movie that purport to tell the story of Holmes' retirement. The author, Mitch Cullin, wrote the book A Slight Trick of the Mind about a decade ago, and that's now been adapted into a film called Mr. Holmes, being released by Miramax. First, the Conan Doyle Estate at least seems willing to admit that the earlier works are now fully in the public domain: The first fifty of Conan Doyle’s Sherlock Holmes short stories and novels are in the public domain. But the last ten of his original Sherlock Holmes stories, published between 1923 and 1927 (the Ten Stories), remain protected by copyright in the United States. These copyrighted ten stories develop the details of Holmes’s fictional retirement and change and develop the character of Holmes himself. And that's where the trouble comes in. The Conan Doyle Estate makes some reasonable claims that Cullin used a few details from the stories that are still under copyright in developing the ideas for his book and the subsequent movie (where he worked on the screenplay). As the complaint notes, the public domain works mention Sherlock Holmes' retirement just twice, without that much detail. The works still under copyright delve into it much more. The complaint also notes some pretty clear similarities in certain scenes. For example, it points to this passage from the (still under copyright) Holmes story "Blanched Soldier": It is my habit to sit with my back to the window and to place my visitors in the opposite chair, where the light falls full upon them. Mr. James M. Dodd seemed somewhat at a loss how to begin the interview. I did not attempt to help him, for his silence gave me more time for observation. I have found it wise to impress clients with a sense of power, and so I gave him some of my conclusions. “From South Africa, sir, I perceive.” “Yes, sir,” he answered, with some surprise. And contrasts it with the following from Cullin's work: As was my usual custom, I sat with my back to the window and invited my visitor into the opposite armchair, where— from his vantage point—I became obscured by the brightness of the outside light, and he—from mine—was illuminated with perfect clarity. Initially, Mr. Keller appeared uncomfortable in my presence, and he seemed at a loss for words. I made no effort to ease his discomfort, but used his awkward silence instead as an opportunity to observe him more closely. I believe that it is always to my advantage to give clients a sense of their own vulnerability, and so, having reached my conclusions regarding his visit, I was quick to instill such a feeling in him. “There is a great deal of concern, I see, about your wife.” “That is correct, sir,” he replied, visibly taken aback. Certainly a similar setup, but is it infringing? That's where things get pretty tricky, and why I still have trouble with the idea of using copyright to cover "a character." After all, copyright is supposed to only protect the specific expression, rather than the idea. That's why it's never made sense to see courts accept the idea that someone writing a different story using the same characters should be seen as infringing. The courts here seem to handle different cases differently, allowing something like The Wind Done Gone (a retelling of Gone With The Wind from another character's perspective) but not allowing Coming Through the Rye, an unauthorized sequel to Catcher in the Rye. For reasons that are not entirely clear, judges seemed to feel that The Wind Done Gone was more acceptable as a commentary on the original, rather than just a new work building off of the original. However, if we're going to be honest and say that copyright only protects the specific expression, then passages like the one above should not be protected by copyright. The Cullin version is not a reproduction of the original. Other elements that the Estate argues Cullin copied are even more tenuous: This story, “The Adventure of the Lion’s Mane,” significantly develops the fictional world of Holmes’s later life. In this story Conan Doyle created original details such as the lonely farmhouse in which Holmes lives on a ridge overlooking the English Channel, with chalk cliffs visible in the distance and a path down to the sea. Along with other copyrighted stories, “Lion’s Mane” also adds important traits to Holmes’ character. For example, in his later years, living in the countryside instead of London, Holmes comes to love nature and dedicates himself to studying it. Other copyrighted stories give Holmes in his later years a personal warmth and the capacity to express love for the first time. Cullin took these and many other protected elements of setting, plot, and character in A Slight Trick of the Mind. Cullin has Holmes living in a lonely farmhouse on a ridge over the Channel. Chalk cliffs are visible in the distance and a path leads down to the sea. Holmes’s love of nature and developing ability to express love are central to Cullin’s story. Seriously? "Chalk cliffs" in the distance? A path down to the sea? These are not the things copyright is designed to cover. There are lots of other sketchy aspects to the lawsuit as well. The book came out ten years ago. The statute of limitations on copyright is supposed to be three years, but there are disagreements over what those three years means -- does it mean you can only get compensated for infringements from the past three years? Or does it mean you can't sue at all after three years have passed? Separately, there are venue questions, given that the lawsuit was filed in New Mexico... on the basis that Cullin grew up there and studied Sherlock Holmes there. But he doesn't live there any more (and the Estate is in the UK). It seems like careful jurisdiction shopping by the Estate. That said, given the way these cases normally work out, it won't be at all surprising if the court sides with the Estate. People still have this visceral feeling that "if inspired too directly by this copyrighted work, it must be infringement." That's unfortunate, given how much of human creativity is based on people building off the works of one another. And... finally, we'd be remiss if we didn't mention that the Estate is also pulling out its other big gun here, arguing trademark infringement as well, rather than just copyright infringement: The Estate has developed common law trademark protection for SHERLOCK HOLMES for the above goods and services—including motion picture and television series—by virtue of its consistent licensing of its mark. Every major motion picture and television production in the past thirty years using SHERLOCK HOLMES has been released in the United States in association with the Estate, from Lorindy Pictures’ 1981 television movie series Sherlock Holmes, Paramount Pictures’ 1985 movie Young Sherlock Holmes, and Granada’s 1989 television series Sherlock Holmes, to Warner Brothers’ current Sherlock Holmes movies and the BBC’s Sherlock. Because of its widespread use in connection with Estate-licensed motion pictures and television series, SHERLOCK HOLMES has tremendous power as a source identifier of the Estate. While this might appear to be an even stronger claim, that's not necessarily the case either. The famous Dastar v. Fox saw the Supreme Court shoot down an attempt to use trademark law to try to lock up a work in the public domain. In that ruling, the Supreme Court (written by Justice Scalia) noted: To hold otherwise would be akin to finding that [trademark law] created a species of perpetual patent and copyright, which Congress may not do. But, this might not be quite the same situation, if the Estate is focused on arguing about the works still under copyright, rather than those in the public domain. Of course, there's a separate argument to all of this, which is that at the time that the original copyrights were granted for those last ten works, the longest that anyone could have expected them to last was 56 years, and by any reasonable consideration, all of the Holmes stories should be in the public domain. But, alas, Congress has decided to retroactively extend copyright again and again, and the Supreme Court has decided that's okay.Permalink | Comments | Email This Story

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Some months back, we noted that something odd was happening in Japan: online gaming cheaters were being arrested. Yes, arrested. Not arrested in a virtual sense, not banned from games, arrested as in picked up by police and charged with a crime. This, in case you are undecided on the matter, is insane. Cheating and online gaming have been a virtual arms-race for going on forever and generally it's been on the gaming companies to win that war. If they can use law enforcement as a new ally, the implications could be scary, especially when it's quite easy to levy accusations of cheating and when simply finding ways to exploit an advantage within a game is often times mistaken for cheating as well. The latest incident is not an example of the latter. A man in his thirties in Japan, named Akihide Yamamoto, was picked up for running a web-store for cheats to exploit a game titled Alliance of Valiant Arms. According to the Yomiuri Shimbun, Japan’s largest paper, Yamamoto was arrested for suspected violation of Japan’s Unfair Competition Prevention Law. Reports state that Yamamoto, a Himeji City resident, is believed to have apparently sold a hacked character and overpowered weapons to a 40-year-old man in Saitama Prefecture for 20,000 yen or US$168. This isn’t a first for Yamamoto, who has also been arrested for using cheats in another game. Look, on the one hand cheaters are beyond annoying. Add to that the emergence of big-time eSports, the tournaments of which often times include large sums of prize money, and I can see why a gaming ecosystem exploding around online gaming means that cheaters are a bigger problem today than they were ten years ago. That said, c'mon, arresting these people and charging them criminally? For gaming? And, in this case, it's not even the cheater that's being charged, but a person providing the "tools", if you will, for the cheaters. That adds a whole new layer to this, because at what point do we want to chill the tinkering and hacking that goes on with the possibility of criminal charges? Now, I don't want to sound like I'm making excuses for Yamamoto, who might well be the gaming-world's devil for all I know. But gumming up the legal system with guys who are selling game exploits seems like a massive waste of time and resources. Permalink | Comments | Email This Story

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When law enforcement abuses citizens, some people choose to focus on any aspects of the citizen's behaviour that might have brought on the abuse. One such example happened this week when a woman was tazed by border patrol agents and a commenter accused her of asking for it, prompting JamesF to win most insightful this week with a reversed version of the comment: Its so easy to just blame the civilian. If the cops would have just acted within the bounds of the law, she wouldn't have been tazed. They were confrontational, aggressive and generally behaved like asses. Meanwhile, the FBI disappointed everyone this week by accusing the world's cybersecurity experts of being either uninformed or unfair on the subject of encryption, since "their letter contains no acknowledgment that there are societal costs to universal encryption". Ninja won second place for insightful with a thoughtful and sad response: And pervasive surveillance has zero cost in his mind, it seems. I've seen and talked to people like him. They don't give a fuck about rights and the well-being of others as long as their narrow view of what is right is implemented. I've been in discussions with people that advocate dictatorships are good because people are too ignorant to be left free and allowed to choose things and otherwise live without some totalitarian ruling them. And I don't mean some crazy ass out there, oh no. One of them was in his 25's, about to become a father and is generally a good person. This is scary. He may actually be genuinely 'depressed' even if it's a consequence of his total ignorance of how encryption works. This is scary. And it's even scarier when you think that people have been trying to explain those types about encryption and why a 'golden key' destroys it for a while now and he simply refuses to learn. As I said, he is not alone out there. For editor's choice on the insightful side, we start by looping back to the story about border patrol for an anonymous response to the idea that their victim's nervous behaviour was the problem: Perhaps the reason she was nervous, was that she had just been pulled over and interrogated by a gang of thugs who can quite easily hurt or kill her without fear of reprisal and for the sole reason that they didn't like her. That would make me nervous as well. Next, we've got a response to the Texas politician who said "I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first" while the state failed to pass its new pro-innovation bills. That One Guy noted that the opportunity for riffing was too good to pass up: "I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first," she said. "I can appreciate Emile Berliner wanting to sell records, but I think it would have been wiser if Mr. Berliner had sat down with the orchestral musicians first," she said. "I can appreciate Karl Benz wanting to sell automobiles, but I think it would have been wiser if Mr. Benz had sat down with the horse-drawn buggy makers first," she said. "I can appreciate the movie industry wanting to sell films, but I think it would have been wiser if Mr. Movie Maker had sat down with the live theater companies first," she said. "I can appreciate Fred W. Wolf wanting to sell refrigerators, but I think it would have been wiser if Mr. Wolf had sat down with the ice sellers first," she said. Over on the funny side, we start out with a response to the big ISPs that are already hating the way they have to play fair under new net neutrality regulations. First place goes to JD for a theory about why they are so upset: The ISPs are probably just terrified that the FCC will treat them the way those ISPs treat their own customers. "I understand you're upset. We'll send out an FCC staffer to talk to your lawyers and sort everything out." "Oh thank god." "They'll be there between 8am and 6pm either Tuesday the 17th or Wednesday the 20th." "But ... those aren't ..." "Thank you, have a good day. ::click::" For second place, we head to the story of an Australian ISP that has promised free lawyers to people targeted by copyright trolls, prompting an anonymous commenter to balk at the audacity: YOU WOULDN'T DOWNLOAD A LAWYER! For editor's choice on the funny side, we start with another nod to Ninja, this time for his reaction to the legal showdown between Godzilla's rightsholders and Voltage Pictures: So we conclude in the battle between Godzilla and Giant Bots hypocrisy wins? Finally, we return to the FBI's demands for impossible encryption backdoors, where DannyB took James Comey's baffled despair and boiled it down to something simpler: Experts say the sun rises in the East. Others say that: I'm no expert on where the sun rises or where it shines but there are a lot of smart people in silicone valley and if they put their mind to it, the sun could rise in the West. Those narrow minded people who say the sun rises in the East are not being Fair Minded. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago There was plenty of ridiculousness from Hollywood this week in 2010. For one thing, movie studies were decidedly not following through on their "promises" to offer lots of new content if they could only break your TV with selectable output control, while the MPAA was also bizarrely focused on getting soldiers to stop buying bootleg DVDs, and Hurt Locker producer Nicholas Chartier was angrily defending his crusade against downloaders. Of course, given Hollywood's remake culture, it was no surprise that the studios were starting to run into copyright problems of their own (and given its anti-piracy culture, it was no surprise to see different anti-piracy solutions suing each other over patents). Not to mention the irony of Time Warner Cable standing up against automated copyright filings, or actor Peter Serafinowicz explaining why he even pirates movies he's in. The UK was still grappling with the realities of the Digital Economy Act. We wondered if it would interfere with London's ambition to offer free wi-fi, while one regulator said the act only applies to big wireline ISPs and several politicians started trying to repeal it altogether. Copyright shenanigans were all around on the music side of things too: ASCAP bullied another local coffee shop into no longer playing local bands while a massive performance royalty rate hike in Australia drove gyms to start ditching pop music, and it became increasingly clear just how much the RIAA had clogged up the court system with its lawsuits. Ten Years Ago Five years before all that, the US Copyright Office was busy showing off just how much it misunderstood copyright law. Spain's recording industry pressured a university lecturer into resigning after he explained how file-sharing could be legal and positive. People were shocked at a Star Wars leak, but ignored the fact that it probably wasn't a big deal at all. And the UK's Premier League was moaning about illegal streams but not acknowledging that it was creating the market for them by failing to offer anything in competition. The BSA conducted its annual ritual of releasing bogus piracy numbers, followed by the inevitable backlash. One copy-protection firm was playing both sides of the piracy game by patenting a P2P system and the technology to stop it. The NY Times tried its ill-fated experiment to charge for opinion pieces, one university library was going all digital, and megaplex movie theaters were straining to recapture their former glory. Fifteen Years Ago Last week, we saw Volkswagen become the first auto manufacturer to start selling cars directly online. This week, Ford joined them (in Canada) followed closely by GM, and lo the floodgates were opened. Meanwhile, online retail giant Amazon was experimenting with dynamic pricing, and some were predicting that the next great digital frontier would be family businesses — but we were all hoping that the then-dominant trend of cartoon mascots on every website would die out, quickly. Michael Eisner, on the other hand, was convinced that email was a great existential threat to companies and the country (perhaps he heard that Singapore arrested a man for "cyber rage" after he sent thousands of them) while most people stopped shorter, at "email marketing is getting annoying". Congress was, for some reason, worried about genealogy websites, and Napster was struggling to figure out its future (with 60% of college students saying they'd supposedly pay for it). Oh, and, you know those topic icons over to the left of every post? This week in 2000 is when we debuted them. Four-Hundred and Six Years Ago Shakespeare's Sonnets: they are among the foundational texts of English culture, and on May 20th, 1609 they were first officially listed in the Stationer's Register (an early precursor to copyright — for publishers, not authors), and printed shortly thereafter. Nobody has been able to determine whether the publisher, Thomas Thorpe, had authorization from Shakespeare or was working from an illicit copy. Permalink | Comments | Email This Story

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Freehand input is hardly a new idea. It was a fixture of the early Palms, a feature of the famous Newton, and of course our primary means of "input" before computers came along. With the ascendance of touchscreens today, the capability is everywhere — and yet it still hasn't really caught on. Why? The three big reasons seem to be that screen real-estate is a premium and freehand input requires a lot of it, many devices simply aren't responsive enough to make it feel natural, and it isn't actually that useful in most situations. For this week's awesome stuff, we're looking at a device that aims to solve at least two of those problems: Phree, a laser-based digital pen. The Good Let's look at those three key issues again. The screen real-estate problem is what Phree aims to solve by its very nature, moving all that freehand work off your device's screen itself and onto any nearby surface. That alone would likely just exacerbate the second issue — responsiveness — but this is where the team's technological innovation is focused. In the video, they claim to have built the world's smallest 3D laser interferometer with new algorithms to achieve this high degree of accuracy in the compact device, and though I can't speak to the truth of this, the video does indeed show a very-responsive-looking system in action. If the finished product really works that well on such a wide array of surfaces, it'll have cleared the two key viability hurdles for the technology. The Bad The big question for anyone who has looked into this kind of device before is: can it compete with Livescribe, the current household name in smart pens? There are, of course, some big differences: Livescribe pens are real, functioning pens that also record what you write digitally, while the Phree is just an input device. The Livescribe can work as a standalone unit to record notes during the day then retrieve them digitally later, which it appears the Phree cannot. And, despite these missing capabilities, the Phree costs a bit more than a Livescribe 3. That sounds pretty grim, but there are some factors running in the opposite direction: Livescribe pens only good for storing notes, not active live input of handwriting, and require you to actually be writing on paper at the same time; they are wi-fi only and operate through the cloud rather than being directly linked to your device by BlueTooth; and they have considerably fewer compatibility options, leaning heavily on a partnership with Evernote. The Phree is a far more versatile device. In a way it's an unfair comparison, since the two are trying to accomplish different things, but I suspect it's the first comparison many people will make — and it's not entirely clear that Phree comes out on top. The Useful? We've established that the Phree aims to solve two of the three big issues with handwriting input, but what about the third? Freehand input has been possible for a long time — even longer than the multi-touch input we all use every day — but it's never really caught on. Part of this might be because the technology wasn't good enough, but there's a big question as to just how useful and desirable such input really is. Speaking for myself, I rarely find myself wishing for freehand when typing on my phone; on the occasions when I do want to jot and sketch more freely, I grab an actual pen and paper; and on the occasions when something I jot turns out to be important, I snap a photo of it. Obviously this process leaves a lot to be desired but, critically, it doesn't come up all that often. On the other hand, I imagine there are many people with a different story to tell, who would love the ability to quickly and easily switch back and forth between typing and handwriting. The Phree could provide this with unprecedented responsiveness, and much more convenient workflow integration than existing smart pens — and that could definitely be a winner. Permalink | Comments | Email This Story

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As was widely expected after last week's vote, the Senate has now voted in favor of fast track for trade agreements (officially "Trade Promotion Authority") after Republican Senators convinced enough of their Democratic counterparts to give up their Constitutional authority in regulating international commerce (yes, you read that right: Republicans who keep complaining about the President taking too much power and not obeying the Constitution, just voted explicitly to give up Constitutional authority to the President of the other party, while most Democrats declined to do so). Also as expected, all attempts to add amendments to the TPP -- including Elizabeth Warrens' plan to strip corporate sovereignty ISDS provisions -- failed. Any of the amendments almost certainly would have sunk the fast track bill in the House, so they were all basically poison pills designed to kill fast track. Still, it's disappointing that Congress is favoring corporate sovereignty, when it's pretty clear that it's a provision that is going to come back and bite us badly. Either way, the fight will now move on to the House, where it's not yet clear if there are enough votes. But, don't be surprised to see a full court press to convince another dozen or so Democrats to join with Republicans in coughing up Congress' Constitutional authority over international trade.Permalink | Comments | Email This Story

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Some folks like to drink coconut water because it tastes good -- not because it's a fashionable, semi-exotic-sounding liquid that has some specious health claims. Some fads, like drinking raw milk are actually not that healthy. But if you just like trying out new stuff to drink (and carry around in a bottle or cup), check out a few of these links. Maybe it's just in Brooklyn that it's cool to drink bone broth from a coffee cup. As long as it's not as expensive as $6 toast, who can argue against a tasty cup of soup? [url] Drinking reclaimed water is nothing new, but people are a little repulsed by the idea of drinking water that was recently treated from a sewer system. But maybe people won't be so turned off by beer brewed with 100% treated waste water? Or they might get pissed in multiple ways. [url] How about a refreshing pint of mead? It's not just a medieval honey-based drink anymore. A traditional brew would have about 16% alcohol content, but more modern versions have less than 6% or so. Mead is also one of the fastest growing segments in the US alcohol industry. [url] If you haven't heard of rooibos tea, well, maybe you haven't really missed out on anything. It's technically not a tea, but a tisane or infusion -- and maybe it's soo four years ago. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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Last month we wrote about the strange case of unpatentable plants becoming patentable in Europe thanks to a decision from the European Patent Office's Enlarged Board of Appeal. That cleared the way for companies to obtain such patents, and according to this post on the "no patents on seeds" site -- I think you can probably work out where its biases lie -- that's about to happen: the European Patent Office (EPO) is about to grant 30 patents on plants derived from conventional breeding to Monsanto and its affiliated companies. The Swiss company Syngenta can expect to receive around a dozen patents very soon. Many of the patents claim vegetables such as tomatoes, peppers, cauliflower, carrots and lettuce. Leaving aside the important question of whether it should be possible to obtain patents on plants, there are some other issues. For example, Monsanto is currently trying to acquire Syngenta. Although its initial offer of $45 billion was turned down, the view seems to be that Monsanto will go higher because it needs Syngenta's broad portfolio of products to address the growing concerns over glyphosate, which lies at the heart of much of its range. According to a recent report, Monsanto is willing to divest itself of all of Syngenta's "seeds and genetic traits businesses as well as some overlapping chemistry assets to win regulatory approval", but it's not clear whether that would include patents on plants. If it didn't, all of the imminent plant patents mentioned above might end up with Monsanto, which would represent a dangerous concentration of power in this important new area. The more serious problem concerns the EPO. The decision to extend patentability to plants was taken by the EPO's Enlarged Board of Appeal, which should raise conflict of interest concerns, since the EPO is funded by patent fees. That wouldn't be a serious problem if there were a higher court to which appeals could be made. But as the EPO told Intellectual Property Watch: Decisions made by the Enlarged Board of Appeal cannot be challenged before another judiciary. One body that does have the power to revise EPO decisions is the Administrative Council of the EPO, but it is made up largely of senior patent officials from the 40 or so member states of the EPO, and so it is naturally pro-patent and thus unlikely to interfere with extensions to patentability. In fact, there is no democratically-elected body at all that could force the EPO to change its policy on anything. Worse, the EPO is literally above national laws, since its offices enjoy diplomatic immunity of the kind given to embassies. As Wikipedia explains it: The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office. While that's the case -- and there's very little prospect of it changing in the short-term -- extensions of patentability to non-patentable matter are not just likely to happen, but will be well-nigh impossible to reverse. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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On Thursday, Governor Rick Scott of Florida signed 44 bills into law, but two of them are particularly interesting to us. The first we wrote about back in March, SB 604, is a very problematic bill that undermines some basic free speech rights. It's the latest in a new push by Hollywood to undermine anonymity online as a backdoor attack on copyright infringement. Basically, it says that if you're distributing any sort of audiovisual work, you need to reveal who you are. The implications here are massive. There are lots of cases where someone may wish to post certain audiovisual works without having to post their full name, address, phone number and email address -- as the law now requires. And the First Amendment has long protected the right to be anonymous. And yet, the Florida legislature and Governor Scott signed it without much serious concern about how it's stripping away the First Amendment anonymity rights of their citizens. Oddly, however, in that very same batch of signed bills... is another bill that protects free speech rights: SB 1312, which expands Florida's (very, very weak) anti-SLAPP law. Like too many states, Florida's anti-SLAPP law originally only protected people in cases where they were sued over speech concerning government actions. The new bill expands that to "public issues" which is similar to many other anti-SLAPP bills. Considering the number of crazy defamation threats and lawsuits that seem to come out of Florida, this bill could be very, very useful in protecting free speech. Getting the anti-SLAPP bill is really important, but losing anonymity seems really dangerous. These aren't just the sort of things that "balance out" either. Either you support the First Amendment or you don't. I'm glad that Florida has a better anti-SLAPP bill, but Governor Scott shouldn't have taken away basic First Amendment protections with the same stroke of his pen in signing the "true origin" bill at the same time.Permalink | Comments | Email This Story

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The FCC this week informed broadband ISPs that the agency is no longer going to be napping at the wheel when it comes to broadband-related privacy enforcement. In a new enforcement advisory posted to the FCC website (pdf), the FCC said that with ISPs now classified as common carriers under the new Title II based net neutrality rules, the FCC's going to be taking a long hard look at improving broadband privacy protections. While the actual rulemaking process is still being worked on, the FCC will be leaning on Section 222 of the Communications Act, historically used to protect Customer Proprietary Network Information (CPNI) on phone networks. ISPs have already started complaining the FCC's imposing draconian, ancient regulations on the modern Internet, and such rules will saddle them with all manner of new costs. Of course it should be noted that most of these privacy protections are fundamental common sense -- and in some cases things most ISPs are already doing. They range from from requiring that ISPs keep private consumer data encrypted when being stored on servers, to not sharing consumer data with third parties without the explicit consent of consumers. The FCC shockingly found that absent such protections, things don't work out well for consumers:"The Commission has found that absent privacy protections, a broadband provider’s use of personal and proprietary information could be at odds with its customers’ interests and that if consumers have concerns about the protection of their privacy, their demand for broadband may decrease."Of course ISPs have grown pretty comfortable with regulators that couldn't care less about (or lacked the authority to police) broadband privacy abuses. One case in point is Verizon's recent decision to manipulate wireless traffic to create new, undeletable super cookies. Despite the fact it took security researchers two years to find Verizon's zombie cookie and another six months for Verizon to even seriously acknowledge a problem, the telco has historically tried to argue greater privacy protections aren't needed for broadband and wireless because "public shame" will keep the company honest. Many users also might recall how ISPs have long sold user clickstream data to third parties, but have historically denied that they collect any of this data whatsoever. Similarly, AT&T has been charging its gigabit fiber users a $44-$66 fee if they want to opt out of having their traffic snooped on via deep packet inspection. In both instances regulators simply couldn't have cared less. Obviously having regulators do absolutely anything at all to protect broadband user privacy is a pretty unsettling change for a industry awash in regulatory capture. While the FCC hasn't yet solidified the rules for modern broadband networks, it is telling ISPs that it can reach out to the FCC if they have any questions about how the FCC intends to interpret the rules in the snoopvertising age moving forward:"Although no broadband provider is in any way required to consult with the Enforcement Bureau, the existence of such a request for guidance will tend to show that the broadband provider is acting in good faith. The application of Section 222 offers an opportunity for broadband customers to increase their demand for broadband by knowing that their privacy is well-protected. In that goal, the Enforcement Bureau believes its interests and those of the great majority of broadband providers are firmly aligned."While I know there's an amazing amount of cognitive dissonance (my own head included) forged by the idea that a government so horrible on surveillance issues could possibly do anything good on the privacy front, the FCC's recent track record of actually giving a damn about consumer issues is encouraging. It's as if the FCC has awoken form a long, deep slumber, and after fifteen years of being an empty-headed bobble head doll, has suddenly started caring about issues like broadband competition, massive, billion-dollar telecom industry scams and state protectionist telecom laws. None of this is to suggest FCC over-reach on privacy is impossible, but based on Wheeler's behaviors of late it seems likely the FCC's just looking to impose some common sense ground rules. Still, there will certainly be no limit of handwringing among ISPs how some basic broadband privacy protections will destroy the Internet. You know, just like the net neutrality rules are obviously doing.Permalink | Comments | Email This Story

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Last year, Techdirt wrote about yet another of Russia's new laws aimed at taming the troublesome internet world. Its most striking feature was that bloggers with more than 3,000 visitors a day were required to register on a special list, and to abide by general mass media restrictions. We noted then that blogs located overseas were not covered by the new law. But according to this report in The Guardian, based on a story in Izvestia, it seems that the law is now being applied to foreign service providers too: Facebook, Google and Twitter are all being threatened with fines or even bans for non-compliance: The [Russian communications agency's] deputy director, Maksim Ksenzov, had issued a warning to the three companies on 6 May, telling them they were in violation of the bloggers law because they had not provided requested data on the number of daily visitors to several users' pages, as well as information allowing the authorities to identify the owners of accounts with more than 3,000 daily visitors. The companies are threatened with fines, but these are relatively modest: up to 300,000 roubles ($6,000) for the first offense. Subsequent infringements lead to bigger fines or a ban on the website for up to 30 days. As The Guardian points out: If the companies did not take steps to delete from their sites "information containing calls to participate in mass rioting, extremist activities" or unsanctioned public events, the watchdog would "limit access to the information resource where that information is posted", Ksenzov warned. The problem is that regional Internet service providers might not be able to provide much granularity when limiting access to these pages, leading to services from the companies concerned being blocked completely in those areas. As the Izvestia article explains, although the Russian authorities are very keen for the US companies to obey Russian law, and point out that they are simply following in the footsteps of the the European Commission, it's not clear how they could force compliance or collect any fines they imposed. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The criminal activity alleged may be horrific, but that's a non-factor when it comes to the consideration of protections afforded to website owners who host third-party content. The ongoing lawsuit against Backpage.com, filed by victims of sex trafficking (who were minors at the time), has reached an end. (Until appealed, of course.) The arguments deployed by the plaintiffs were nothing new. In numerous cases, ranging from defamation claims to alleged prostitution of minors, plaintiffs have made similar arguments. The theory -- unsupported by law or common sense -- that website owners should be held legally responsible for the postings of others isn't novel. But it has yet to find a court willing to advance the theory. Why? Because doing so would result in the following sort of ridiculousness, which, while ridiculous, would chill free speech and cause many website owners to get out of the website-owning business. In their lawsuit against Backpage.com, the plaintiffs—three women who were forced into selling sex as teenage runaways—argued similarly, saying that because their trafficker found clients on Backpage, the website was responsible for their exploitation. But by this logic, Facebook is guilty whenever anyone posts a threat there, Craigslist is culpable should a landlord want "females only," and Reason is guilty should any of you folks broker a drug deal in the comments. Thankfully, section 230 of the Communications Decency Act, passed in 1996, established that the Internet doesn't work this way. A federal district court in Massachussetts addresses the multiple allegations by the plaintiffs in their argument seeking to find Backpage.com responsible for the postings of others, and finds that even in the totality, it fails to rise to the level needed to strip the site of its Section 230 protections. Singly or in the aggregate, the allegedly sordid practices of Backpage identified by amici amount to neither affirmative participation in an illegal venture nor active web content creation. Nothing in the escorts section of Backpage requires users to offer or search for commercial sex with children. The existence of an escorts section in a classified ad service, whatever its social merits, is not illegal. The creation of sponsored ads with excerpts taken from the original posts reflects the illegality (or legality) of the original posts and nothing more. Similarly, the automatic generation of navigational path names that identify the ads as falling within the “escorts” category is not content creation. The stripping of metadata from photographs is a standard practice among Internet service providers. Hosting anonymous users and accepting payments from anonymous sources in Bitcoins, peppercorns, or whatever, might have been made illegal by Congress, but it was not. Backpage’s passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform Backpage into an information content provider. Summing it up -- after dismissing all claims -- the court notes that the sexual trafficking of children is abhorrent, but that Section 230 protections aren't a sliding scale to be applied with varying amounts of force depending on the severity of the alleged actions. To avoid any misunderstanding, let me make it clear that the court is not unsympathetic to the tragic plight described by Jane Doe No. 1, Jane Doe No. 2, and Jane Doe No. 3. Nor does it regard the sexual trafficking of children as anything other than an abhorrent evil. Finally, the court is not naïve – I am fully aware that sex traffickers and other purveyors of illegal wares ranging from drugs to pornography exploit the vulnerabilities of the Internet as a marketing tool. Whether one agrees with its stated policy or not (a policy driven not simply by economic concerns, but also by technological and constitutional considerations), Congress has made the determination that the balance between suppression of trafficking and freedom of expression should be struck in favor of the latter in so far as the Internet is concerned. Putting aside the moral judgment that one might pass on Backpage’s business practices, this court has no choice but to adhere to the law that Congress has seen fit to enact. This is buttressed by a quote from another decision, quoted earlier in the discussion of the plaintiffs' claims -- one that deals specifically with another abhorrent criminal act. Child pornography obviously is intolerable, but civil immunity for interactive service providers does not constitute “tolerance” of child pornography any more than civil immunity from the numerous other forms of harmful content that third parties may create constitutes approval of that content. Section 230 does not limit anyone’s ability to bring criminal or civil actions against the actual wrongdoers, the individuals who actually create and consume the child pornography. Here, both the neighbor [who created the child pornography] and the moderator of the Candyman web site have been prosecuted and are serving sentences in federal prison. Further, the section 230(e)(1) exemption permits law enforcement authorities to bring criminal charges against even interactive service providers in the event that they themselves actually violate federal criminal laws. In essence, just because it's easier to pursue site owners than criminals, and that any recovery of damages may seem more likely, doesn't make it the correct path for retribution. Those who trafficked these plaintiffs are the wrongdoers, not the site that hosted these criminals' ads. Permalink | Comments | Email This Story

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The proper desk set up can help you avoid injuries like carpal tunnel syndrome. Part of a good ergonomic set up is an adjustable mouse like the M535 Wireless Optical Mouse available in the store for 50% off. Gamers and desk jockeys will like that you can adjust the mouse's size to fit your hand and you can assign functions to seven different buttons to create shortcuts for common tasks. It comes with a button to send your cursor back to the center of the screen and customization is simple with the easy to use control panel. The mouse is compatible with Windows only and ships free to the continental US. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Well, well. A few days ago, the Verge got a huge scoop in the form of Sony's original US contract with Spotify, leading to a ton of discussion (mostly focused around the huge "advances" that Spotify guaranteed Sony, and the related question of whether or not Sony actually passes those advances on to musicians). The debate raged on for a couple days, and late last night, Paul Resnikoff over at Digital Music News noticed something interesting: the original contract was now missing, and The Verge's own website claims it's due to a copyright threat from Sony: On Twitter, the Verge's editor-in-chief Nilay Patel admits that a threat from Sony forced the site to take down the contract. In fact, he claims that Sony actually sent four cease and desist letters claiming copyright infringement: Earlier this week, Resnikoff reported that Spotify was apparently putting pressure on publications not to report on the contract, including "dangling threats" to scare them off. However, Spotify would have no copyright argument here. As the Verge report (still) notes, the contract was "written by Sony Music," meaning that if there's any copyright claim (we'll get to that shortly), it's held by Sony Music. And we all know damn well that Sony loves to throw around bogus copyright threats. Even we have received one concerning reporting on Sony Pictures' leaked emails. Sony has threatened lots of other publications as well, and even Twitter over such leaks. And, Resnikoff notes that Sony Music threatened his site for an April Fool's joke, pretending to reveal internal emails concerning Sony's equity stake in Spotify. So here's the question: why did Vox (the owner of the Verge) cave? For a modern media operation, it must have lawyers that know the threat is bullshit. Yes, it is possible to get a copyright over the contract, but it's likely to be a pretty thin copyright, because the amount of "creative" work in the contract is minimal. Much of the contract is likely boilerplate. But, more importantly, the Verge has a slam dunk fair use case here. They're providing commentary on the contract. It's a matter of public interest. They're not "selling" the contract and they're certainly not harming the "market" for the contract itself, of which there is none. We actually dealt with this issue once before -- two years ago when Apple pulled the same bullshit move to pull down a contract that Resnikoff himself had posted on Digital Music News. Somewhat ironically, the first party to report on that... was the Verge! And in their report, they quoted law professor Eric Goldman noting the ridiculousness of it: "It's just kind of a jerk move. We all know what's happening here. Apple doesn't care about protecting the copyright of contracts. It's using copyright to try and suppress information that it doesn't want made public." Sounds about right when applied to Sony in this case. Besides, all this is really doing is drawing much more attention (yet again) to the contract, on a story that had already started to die down.Permalink | Comments | Email This Story

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If I've learned any single thing covering technology news it's that you can blame absolutely anything on video games. Mass violence? Games. Failure at professional sports? Pssh, games, yo. Love life not as spicy as you might like? Those games, those games. But a study that supposedly claims a link between video games and Alzheimer's Disease? Come on. “Call of Duty increases risk of Alzheimer’s disease”, said the Telegraph. “Video game link to psychiatric disorders suggested by study”, reported the Guardian. The Daily Mail posed the problem as a question, “Could video games increase your risk of Alzheimer’s?”, reminding us that whenever a news headline asks a question, the answer is no. We know that when science news is hyped, most of the hype is already present in the press releases issued by universities. This case is no exception - the press release was issued by the Douglas Mental Health University Institute, and unsurprisingly it focuses almost entirely on the tenuous link to Alzheimer’s disease. Tenuous is being exceptionally kind in this case. The study in question, produced in the Proceedings of the Royal Society B, barely focused on any link between gaming and the disease, in fact. Instead, the team of Canadian researchers were simply studying the difference in brain-wave activity with groups of gamers and non-gamers. They noticed specifically a significant difference in the activity of one type of brain-wave with gamers, N2PC, which can have an effect on attention spans. So, how did we get from that to a link to Alzheimer's? Were there clinical tests done? Was the team of researchers even in any way focused on the most famous form of dementia? No. Instead, the article describes the methodology for reaching the conclusion of a link thusly: 1. The type of learning shown by the gamers has been associated in previous studies with increased use of a brain region called the caudate nucleus 2. Increased use of the caudate nucleus can be associated with reduced volume of the hippocampus 3. Reduced volume of the hippocampus can be associated with increased risk of Alzheimer’s disease 4. Therefore (take a deep breath) video gaming could increase risk of Alzheimer’s disease That's three, three associations of mere correlation at best, with not even a shred of evidence for causality. And from that we get not only press reports of a link, which I can understand because the major media groups in Western culture have proven to be more interested in sensationalism than stuff that actually exists, but university institutions pushing out press releases to feed the hounds? That's not only wrong, it's borderline character-assassination on the wider gaming industry. Sadly, even some on the research team have gotten in on the act, likely in the hopes of generating press coverage of the study. The press release also includes a statement from the lead researcher that is a clear exaggeration. Dr Gregory West is quoted as saying “we also found that gamers rely on the caudate nucleus to a greater degree than non-gamers”. Actually they didn’t find this at all, because their study didn’t measure activity in the caudate nucleus. Instead it measured a type of behaviour that previous studies have associated with activity in the caudate nucleus. There is a world of difference between these two, and readers would do well to take these latest claims with a generous helping of salt. No, man! Salt intake is associated with water retention, which is associated with bloating, and weight-gain can be a factor in spousal infedelity, therefore salt leads to my wife cheating on me if I take these grains you prescribe! Permalink | Comments | Email This Story

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Whenever our friends in Pyongyang decide to troll the planet with one of their hilariously bad propaganda pieces, it always makes me wonder just how serious the North Korean regime is about this whole war thing. I mean, using video game footage and music to threaten 'Merica? C'mon, son. And those photoshopped photo-ops of your human-chicken-dumpling leader just don't inspire much confidence in the country's technological capabilities. But it's when North Korea combines war and fun-bad photoshopping that the real fun begins. Take the country's recent press brag, for instance, in which North Korea announces that they've managed to launch a missile from a submarine. Experts, it appears, aren't all that impressed with the photo. That was particularly the case when the state-run Pyongyang press circulated other photos of the launch that were complete with columns of smoke from the missile, columns of smoke conspicuously absent from the initial photo that was circulated above. As Markus Schiller and Robert Schmucker, of Schmucker Technologie, told Reuters, “Considering the track record of North Korean deceptions, it seems sensible to assume that any North Korean SLBM [submarine-launched ballistic missile] capability is still a very long time in the future, if it will ever surface.” What the column-less photo lacked in smoke, it made up for with weird, poorly placed ocean smudges. That reddish patch of water you see to the left of the missile? That’s supposed to be the rocket’s reflection. And, so, sadly, the only thing this launch report from North Korea tells us is that they still haven't gotten photoshop down. Oh well. If they ever did get into an actual shooting war again, I suppose they could always just photoshop themselves into some kind of victory pose. Given how often their progress with weapons technology turns out to be non-progress at photo-bullshitting, such a war is probably a remote possibility. Several of the commenters over at Gawker offered to help them out, of course, though this one is probably my favorite. Call in Mario Marine!Permalink | Comments | Email This Story

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Last year, we wrote about two key "corruption indicators" in city and state governments: they ban direct sales models to block Tesla from competing with traditional car companies and they ban Uber/Lyft style car hailing services to protect local taxi incumbents. It appears that Texas is really trying to wave its anti-innovation flag as strongly as possible as the legislature down there failed to move forward on two key bills that would have made it possible for Tesla to do direct sales in Texas... and to stop local cities from blocking Uber & Lyft to favor taxi incumbents. A Texas House deadline has come and gone, killing many top-priority bills for both parties — among them one that would allow Tesla-backed direct car sales and another to regulate ride-hailing companies. Midnight Thursday was the last chance for House bills to win initial, full-chamber approval. Since any proposal can be tacked onto other bills as amendments, no measure is completely dead until the legislative session ends June 1. But even with such resurrections, actually becoming state law now gets far tougher. And, of course, this comes just after the FTC warned Michigan for its blocking of direct sales of cars like Tesla. The failure to allow direct sales is a much bigger deal than the car hailing stuff, but both are bad. And the response from Texas politicians is really quite disgusting: Rep. Senfronia Thompson — one of the House's most senior members currently serving her 20th term — said it was the company's own fault that the bill didn't pass. "I can appreciate Tesla wanting to sell cars, but I think it would have been wiser if Mr. Tesla had sat down with the car dealers first," she said. Really? In what world is it considered appropriate to force an innovative company that wants to go direct to consumers to first "sit down" with the gatekeepers that are trying to block them? "I can appreciate Amazon wanting to sell books to people, but I think it would have been wiser if Mr. Amazon had sat down with retail store builders first." "I can appreciate YouTube wanting to let anyone upload videos, but I think it would have been wiser if Mr. YouTube had sat down with TV producers first." That's not how innovation works. At all. And thus, we can cross Texas off the list of innovative states. The law around car hailing is not quite as big of a deal, but without the new Texas law, various cities within Texas can still create their own rules that would effectively make it impossible for such services to operate there. There are states that create spaces for innovation -- and then there are those that protect incumbents. Texas appears to be making it clear that it's the latter. If I were a startup in Austin, I might consider finding somewhere else to operate.Permalink | Comments | Email This Story

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