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The Zika virus has highlighted how much some of us hate mosquitoes. These biting insects aren't just annoying. They also spread horrible diseases. Previously, we've mentioned some plans for destroying all mosquitoes, but that's probably not the most environmentally-friendly way to go about preventing the spread of mosquito-borne infections. Also, some people seem to attract more bites than others, but how well do mosquito repellents actually work, anyway? DEET (aka N,N-diethyl-meta-toluamide) is the standard mosquito repellent, but there are a few other active ingredients that work about as well (or better in some cases). Products with picaridin and IR 3535 work about as well as DEET, and the oil of lemon eucalyptus (PMD) is a natural insect repellent that the CDC recommends. [url] Another natural mosquito repellent comes from sweetgrass, a plant native to northern North America. Sweetgrass has been tested to work about as well as DEET for at least a few minutes, and researchers are trying to isolate the active ingredients that may keep pesky insects away. [url] The use of DDT is controversial for preventing the spread of the Zika virus. The Zika virus doesn't kill adult humans, so the use of DDT and its effect on human health needs to be considered carefully before spraying it in an untargeted fashion. [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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Remember Hadopi? Back when the legacy copyright players were totally focused on kicking individuals off the internet via a "three strikes" program, France and its former President Nicolas Sarkozy, married to a musician, was the first to embrace the idea of kicking casual file sharers off the internet (we'll leave aside the fact that Sarkozy was a mass infringer himslef). The program that was built up around the plan was eventually called Hadopi, and created a big bureaucracy to send out threat notices. The program turned out to be a complete disaster. It issued many notices, but really had to massage the numbers to make its activities look reasonable. Even when people did lose their internet access, there were problems. A detailed academic study of Hadopi found that it was a miserable failure that actually resulted in an increase in infringement. When a new administration came into office, they made it clear that they were not impressed by Hadopi, and intended to cut its funding. And while there were efforts to kill it entirely, the government basically just gutted the system and let it live on as a shell of what it once was. However, it looks like there's been a renewed effort to kill Hadopi completely, and it actually passed a vote in the National Assembly -- but with some caveats. In a nearly empty chamber, the French National Assembly voted to end the Hadopi institution and law in 2022, Next Inpact reports. What’s noteworthy is that only 7 of the 577 Members of Parliament were present at the vote, and the amendment passed with four in favor and three against. The decision goes against the will of the sitting Government, which failed to have enough members present at the vote. While it’s being seen as quite an embarrassment, the amendment still has to pass the senate, which seems unlikely without Government support. In other words, Hadopi will likely still live on to see another day, despite its already diminished state. However, the folks who put together this bit of a publicity stunt say that they're calling attention to the fact that the government has called in the past for the end of Hadopi, and they're just trying to get the government to commit to something: “Related Greens” MP Isabelle Attard says that it’s time to end the “schizophrenic” behavior of the Government on the matter. “A choice has to be made at some point. We can’t call out Hadopi as useless and, years later, still let it linger on,” she says. While it’s doubtful that the amendment means the definite end of Hadopi, it certainly puts it back on the political agenda. Whether this will lead to actual change will become apparent in the future. For all intents and purposes, Hadopi is a shell of what it once was. It's also a standing monument to the stupidity of three strikes/graduated response plans. The government should kill it off, but while it lives on, it's a demonstration of how demands by legacy copyright industries to push for ways to protect legacy business models can create truly wasteful government spending that serves no legitimate purpose.Permalink | Comments | Email This Story

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We've written plenty of stories about the TTIP (Transatlantic Trade & Investment Partnership) agreement being worked on between the US and the EU. Think of it as the companion to the TPP, which covers the US and a variety of countries around the Pacific ocean. Like the TPP, the US has demanded extreme levels of secrecy around the negotiations (in the past, the US negotiating body, the USTR, has admitted that the more the public is aware of the details, the less likely they are to support the agreement). And while there have been reports out of the EU arguing that negotiators there are more willing to be more open about the negotiations, so far, the US has not allowed it. This has resulted in some crazy situations including secretive "reading rooms" where politicians are carefully guarded if they look at the current drafts -- and where they're not allowed to bring any device or copy anything from the documents. Now, Greenpeace has leaked a bunch of the TTIP documents... and also set up their own "reading room" which mocks the secrecy of the current reading rooms, by making it very, very transparent: Krasse Aktion von Greenpeace. Haben nen transparenten #TTIP Leseraum vor der US Botschaft … https://t.co/CZC0myHq5t pic.twitter.com/N0Iv8eHNwc — Sebastian Jabbusch (@SebJabbusch) May 2, 2016 As for the contents revealed, it's pretty much what everyone suspected. Most of the focus, so far, is on details showing that the US has been pressuring the EU to loosen various consumer and environmental protections in the EU. While it hasn't received as much attention, the leak also does suggest problems for digital rights, mainly by giving telcos much more power. And while the "intellectual property" chapter does not appear to be included, one of the leaks is the "tactical state of play" document. This document isn't part of the negotiating text, but a general summary on where things are... and it's fairly revealing on a variety of topics, including intellectual property. In the discussion on the intellectual property agreement, it notes that at the latest negotiation, the US refused to put forth "concrete proposals" on issues such as DRM, but the report notes that these are being pushed strongly by "rights holders." The EU, apparently, is nervous about what kind of language it will eventually see from the US. The US, in response, apparently told the EU negotiators that this would be a different kind of intellectual property chapter from the TPP: A positive feature of the twelfth round of IP discussions was the US submission, for the first time, of some texts on relatively consensual areas (international treaties and general provisions). However, the US remains unwilling to table, at this stage, concrete proposals on more sensitive offensive interests that have been expressed by some of its right holders or that are explicitly referred to in its TPA (for instance on patents, on technical protection measures and digital rights management or on enforcement). When confronted with the EU warning that bringing sensitive proposals that would require changes in EU law to the table – and doing it at a late stage of the negotiation – may have a negative impact on stakeholders and has very limited chances of being accepted, the US reiterated its understanding that the IPR chapter should not be a standard (TPP type) text, but also insisted that such a departure from its “model” creates some difficulties in terms of addressing the demands included in the IPR related sections of its TPA. The report also notes that Congress' unwillingness to pass laws to stop patent trolls or in support of (awful) broadcast rights, public performance rights and resale rights, may be an issue, since all three are important to EU rightsholders. We've covered all three issues at various points in time, and all three involve basically expanding copyright law in dangerous ways that will further limit the public's rights. In this case, it looks like it's the EU that's pushing more strongly for them, which is too bad. The public performance rights have the most forward progress in the US right now, with the push to ratify the Beijing Treaty, but hopefully that's an area where legislative indifference kills a horrifically bad idea. In short, it appears that there are a lot of competing interests on both sides of the Atlantic around the intellectual property chapter, but both sides appear to be focused almost entirely on the protectionist, anti-innovation, anti-public interests of specific rights holders and how to make them happy. There's basically no discussion of how all of this impacts the public. That's not too surprising, but it also shows why they've worked so hard to keep these documents from being seen by the public. The TTIP agreement was already way behind the TPP agreement, and it's quite doubtful that a final agreement will be reached before the new US administration is in place, which could result in some pretty massive changes in terms of what the White House is demanding. But, as of right now, the agreement looks like yet another mess where lobbyists try to divvy up the spoils in taking things away from the public.Permalink | Comments | Email This Story

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Back in March, Mike moderated a panel at RightsCon on the subject of intermediary liability and the delicate balancing act that platform providers have to play on that front, with lawyers from Meetup, Change.org, and Medium. This week, in lieu of a regular podcast episode we've got a recording of that discussion, which delves deeply into some of the difficult choices companies like this have to make. 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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Back in late 2014, we wrote about Twitter suing the US government over whether or not it was allowed to publish just how many National Security Letters and FISA Court orders it receives in its transparency report. This came after a bunch of other tech companies had settled a similar lawsuit with an agreement that they could reveal certain "bands" of numbers, rather than the specific number. It still boggles the mind that merely revealing the number of NSLs and/or FISC orders received would create any problem for national security, but the government seems hellbent on keeping that information secret. Probably because they don't want the public to understand how widely this system is used to obtain info. We had mentioned this case just a few weeks ago, noting that a bunch of companies had filed an amicus brief pointing out that it's unclear if they can even admit that they've never received such a request (i.e., it's possible that warrant canaries are illegal). Meanwhile, the DOJ has been trying to get the entire case thrown out because that's what the DOJ does. Judge Yvonne Gonzalez Rogers has now given a mixed ruling denying some of the DOJ's motion, but granting a key part concerning Twitter's First Amendment claim. The good news, though, is that the issue there is at least partially procedural, allowing Twitter to try again. Twitter had argued, of course, that it has a First Amendment right to publish this information. But the government -- and the judge -- noted in response that you don't have a First Amendment right to publish classified information if you are a party that is "subject to secrecy obligations." Under Executive Order 13526, information may be classified by the “original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.”... The First Amendment does not permit a person subject to secrecy obligations to disclose classified national security information. That said, the court notes that this is partially a procedural issue, because Twitter can (and perhaps should) first challenge whether or not the classification on those aggregate statistics is appropriate: The Court agrees with the Government that Twitter has not alleged that the information is not properly classified by the Government. Count I challenges the FISA non-disclosure provisions as being prior restraints of indefinite duration, but the claim does not take into account the fact that a classification decision is necessarily limited in duration by its nature, as the Government asserts. Along those same lines, Count II’s as-applied challenge contends that the FISA nondisclosure provisions are unconstitutional, but does not account for the fact that the Government has refused to permit disclosure of the aggregate numbers on the grounds that the information is classified pursuant to the Executive Order (not because of any FISA order or provision). Again, Twitter has conceded that the aggregate data is classified. In the absence of a challenge to the decisions classifying that information, Twitter’s Constitutional challenges simply do not allege viable claims. In short: try again, but this time challenge whether or not the aggregate data is properly classified. On the two other issues in the case, the DOJ lost both. First, it argued that since it was the FISA Court, and not the DOJ, that classified the statistics, the challenge should be under FISA's jurisdiction and not the court that it's in. The court here, disagrees, and points out that Twitter is not challenging a specific FISA ruling, but rather the aggregate data. The Government does not identify any order of the FISC addressing, as a general matter, publication of aggregate data about receipt of legal process, the crux of the matter before the Court here. Likewise, Twitter’s Amended Complaint does not challenge any prohibition on disclosure in any individual FISC order, FISA directive, or NSL. Rather, Twitter contends that the Government’s reliance on the FISA non-disclosure provisions as a basis for prohibiting disclosure of aggregate data about legal process directed to Twitter violates the First Amendment. Nothing in the Amended Complaint would require the Court to interpret, review, or grant relief from any particular FISC order or directive. The other DOJ argument was that Twitter did not have standing regarding the Espionage Act. Twitter, in its lawsuit, was seeking declaratory judgment that it is not running afoul of the Espionage Act in publishing such data. It did this because the DOJ had warned Twitter that publishing such data might violate the Espionage Act. Seems fairly straightforward, right? But the DOJ told the court that Twitter's concerns are "merely speculative" and thus it had no standing on this issue. The court isn't buying it: The Court finds that the allegations here—that Twitter presented the draft Transparency Report it planned to publish to the Government and that the Government informed Twitter that it could not publish the information because it is classified—are sufficient to show an “imminent” injury to establish Twitter’s standing here. The Government’s contention that the threat of prosecution is low because there are other avenues of recourse for Twitter to challenge individual nondisclosure orders simply does not address the issue here, reporting of aggregate data. The motion to dismiss the Espionage Act claim on these grounds is DENIED. Of course, it's the First Amendment claims that are the main show here -- and without them, the rest of the case is pretty limited. It seems likely that Twitter will file an amended complaint now, arguing that the classification was improper, but then it just becomes a fight over classification, and the government is pretty good about screaming "national security!!!!" at the top of its lungs whenever people challenge classification decisions. The alternative, of course, is that Twitter could appeal the First Amendment decision and see if the appeals court thinks the judge here got that part wrong. Either way, I imagine we'll find out soon.Permalink | Comments | Email This Story

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In the US, you can be given a gun and a chance to catch bullets for your country at age 18. Three years after that, the US government will finally allow you to purchase your own alcohol. At 21, you can finally be the "adult" in "adult beverages." Except in some states. Some states tie booze purchases to morality. (I mean, even more so. It's subject everywhere to "sin taxes.") As we covered here earlier, the state of Idaho says adults can drink booze and watch movies meant for mature audiences, but not always simultaneously. In Idaho, state police have been busting theaters for showing certain movies while serving alcohol, thanks to statutes that say it's illegal to serve up both booze and "simulated sexual acts." In Idaho, theaters are trying to get the law ruled unconstitutional -- pointing out that the law is only selectively enforced (cops raid theaters showing "Fifty Shades of Gray" rather than "American Sniper," even though both contain depictions of sexual acts) and allows the state to use liquor statutes to regulate speech. Over in Utah, the same problem exists. The theater targeted here -- Brewvies -- isn't taking the state to court. Yet. Instead, it's fighting to stay alive. It appears a bunch of cops went to see a movie they probably wanted to see anyway while on the clock and handed the theater an ultimatum. Brewvies is facing a fine of up to $25,000 fine and could lose its liquor license after undercover officers attended a screening of Marvel's R-rated antihero film "Deadpool" in February. The state says playing "Deadpool" while serving booze violates Utah law because the movie includes nudity and simulated sex, including a suggestive scene in the film's credits involving a cartoon unicorn. The obscenity law is generally used to regulate strip clubs, which are required to have dancers wear G-strings and pasties if the club serves liquor. It also bans showing any film with sex acts or simulated sex acts, full-frontal nudity or the "caressing" of breasts or buttocks if at businesses with liquor licenses. In addition to seeking funds to pay the threatened fine, the theater is hoping to raise enough to seek an injunction against the statute on the same grounds as the challenge in Idaho: that liquor laws are being abused to regulate First Amendment activity. The theater is seeking $75,000 and Deadpool himself, Ryan Reynolds, has already pitched in. The theater has since set up a gofundme page and has raised, at the time of writing, $17,352 out of its $75,000 goal. $5,000 of that came from Deadpool star Ryan Reynolds himself. The underlying problem is the state's insistence on deciding what the right combination of booze and entertainment should be for a state full of adults who are legally allowed to do other things far more "adult" than having a beer while watching a movie that contains depictions of sexual activity. Why either activity is OK when enjoyed separately, but somehow a problem when combined, is something only the state pretends to comprehend. These are leftover laws meant to regulate sexually-oriented businesses like strip clubs and porn theaters, but they're being used to extract fees from theater owners who want to treat adults like adults. Like any other badly-written law, it's being enforced selectively with an eye on easy citations and excessive fines. Permalink | Comments | Email This Story

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Unleash your inner novelist and let Scrivener help manage your writing project. Available for $22.50 in the store for Mac or for $20 for PC (select your preferred version in the drop down menu), the Scrivener household license allows you to access your b on multiple devices. Scrivener replaces bits of paper, index cards and sticky notes by allowing you to storyboard projects, to edit and work on different sections, either alone or in concert, and to post notes and access research. There's a script formatting function to help you write the next classic movie hit, a name generator, and the ability to freely edit and restore to older versions so you won't lose anything as you dive deep into the creative process. This deal ends May 4th. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Robert Litt, General Counsel for the Office of the Director of National Intelligence, has been given space at the Yale Law Review Journal to publish his citable article "Why Everyone's Wrong About the Fourth Amendment." Or, as Litt would like us to refer to it: Preferred Citation: Robert S. Litt, The Fourth Amendment in the Information Age, 126YALE L.J. F. 8 (2016), http://www.yalelawjournal.org/forum/fourth-amendment-information-age. To be fair, Litt never says we're all wrong about the Fourth Amendment and the Third Party Doctrine. He only says Judge Leon is. Judge Leon was the single district court judge who found the bulk collection of phone metadata to be unconstitutional. Technically, we're not all wrong, but we may as well be, because no court has found the collection unconstitutional save Judge Leon's and Litt doesn't agree with it. Several paragraphs follow, but the crux of Litt's argument is nothing new: it's just 1979's Smith v. Maryland decision all over again. I do not think that Judge Leon’s efforts to distinguish Smith were successful. First, while Judge Leon is certainly right that metadata can be very revealing of personal activities, there is nothing new about that insight. Justice Stewart dissented from the decision in Smith itself in part because he recognized that metadata “easily could . . . reveal the most intimate details of a person’s life.” The point of Smith was not that metadata is innocuous, but that you have chosen to reveal it to a third party. To use an analogy, if you give a document to a third party, you have lost your expectation of privacy in that document, whether it is a laundry ticket or a confession of mortal sin. Moreover, the fact that cell phones today contain a lot of information beyond metadata does not seem relevant when the government did not actually search or collect any of that other information. [...] [I] find it hard to understand the alchemy by which information that you choose to disclose to a third party develops an expectation of privacy because you have chosen to disclose a lot of that information. That seems counter-intuitive to say the least. For all of these reasons, if you accept Smith’s holding that there was no expectation of privacy in the telephone metadata in that case because it had been voluntarily exposed to a third party, you can’t conclude there was an expectation of privacy in the metadata in this case. The thing is that while people may voluntarily agree to hand over certain information to service providers (and it's safe to say the "agreement" is anything but "voluntary"), they do not naturally assume the service provider will share this -- no questions asked or warrants demanded -- with anyone else who comes asking for it. That's where the reliance on Smith v. Maryland fails. "Choose to disclose" is much different than "forced to disclose." And it's not as if it can truly be said phone users relinquish all ownership of that data. It's specifically tied to them and they "share" it with service providers -- which if that's how Litt wants to interpret the interaction, he should at least be honest and give both parties some sort of ownership, along with the privacy expectations that go with it. A lot of the rest of it is given over to Litt's displeasure that courts have even granted plaintiffs standing in bulk metadata program lawsuits. Whatever the Third Party Doctrine doesn't shut down, the plaintiffs' inability to claim anything more than theoretical rights violations by programs the government refused to discuss publicly should have seen the cases tossed immediately. He agrees the framework is there for massive violations of privacy but these actually damaging acts simply never occurred. But abuses did occur and were covered up by the NSA, nearly resulting in the program being shut down back in 2008 by FISC Judge Reggie Walton. This fact undercuts Litt's assertions in defense of the now-curtailed program. For several years, and with judicial authorization, the NSA collected metadata in bulk about U.S. phone calls from telephone companies for counterterrorism purposes. The metadata was kept in secure databases. It could only be accessed by a few specially trained NSA analysts, and then only to identify telephone numbers in contact with so-called “seed” numbers as to which there was a reasonable and articulable suspicion of an association with terrorism—such as, for example, a number used by a suspected terrorist. First off, the program was accessed by more than just a "few" specially trained analysts. It was a free-for-all until the FISA Court shut that down. Second, the reasonable, articulable suspicion standard wasn't always applied to searches of the database. For a period of time, NSA analysts ran searches against an "Alert List" of numbers the FISA Court had never approved for use -- i.e., no RAS declaration was made by the NSA to support additions to the list used for searches of the bulk data. Some of these numbers were added simply because they were two or three hops away from an RAS-supported number, meaning there was nothing supporting the use of these "connected" numbers as new "seeds" for database searches and contact chaining. What Litt does get right is that the NSA has done itself no favors with its decades of opacity. Where we fell short was on the third leg of the stool, transparency. There would have been less damage to the Intelligence Community from the disclosures of the last couple of years had we been more forthcoming about our activities before those leaks. Obviously, intelligence activities have to be conducted with some degree of secrecy, and the same is true of some law enforcement activities. Specific methods and targets of surveillance have to be protected. But if we don’t discuss what we are doing and how we are regulating it even in general terms, we cede the field to those who are hostile to intelligence activities. And, perhaps inadvertently, Litt lets us know President Obama is just as big a fan of the NSA as his predecessor was. A decision by Congress to authorize certain activities under certain controls, made after discussion and debate, should be a strong factor in support of the reasonableness of those activities. Congress is going to have a number of opportunities to address these issues. For example, Section 702 expires at the end of 2017, and there are continued efforts to modernize the Stored Communications Act. It may be too much to hope that in the current political environment, Congress could have a dispassionate and comprehensive discussion about such weighty issues, but the Executive Branch would welcome such a discussion. Given the selection of presidential frontrunners, I have no reason to believe Litt's assessment of the situation will be any less accurate by the time the Section 702 expiration date rolls around. Permalink | Comments | Email This Story

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Another week, another story about the abuse of intellectual property. This one, like many, involve the "estate" of a famous, but deceased, creator. In this case, it's the estate of Frank Zappa, which apparently is managed by two of his four children: Ahmet and Diva. The other two children are beneficiaries of the estate, but not trustees. The issue here is that one of the other siblings, Dweezil Zappa, wanted to go out on tour under the name "Zappa Plays Zappa" in which he plays songs by Frank Zappa. Sounds reasonable... and, in fact, he's been playing under that moniker for a while. Except, this time, Ahmet has said that it's not allowed and forced Dweezil to change the name to "Dweezil Zappa Plays Frank Zappa" which is not nearly as catchy. The intellectual property claims made by Ahmet and the Zappa Family Trust are mostly not based in any actual US law. Here's the way the NY Times describes it: This month, the Zappa Family Trust, which owns the rights to Mr. Zappa’s music, informed Dweezil that he did not have permission to tour as Zappa Plays Zappa — the name is a trademark owned by the trust — and that he risked copyright infringement damages of $150,000 each time he played a song without proper permission. The trademark claim makes at least some sense. The estate does, in fact, hold a trademark (78938430) on "Zappa Plays Zappa," which was registered back in 2007 and covers live music concerts. Late last year, however, it appears that Ahmet and the Zappa Family Trust filed for two more trademarks on the phrase: one to cover various apparel and one for musical recordings. It appears this may be the root of the issue here. However, Dweezil claims that he's already licensed the Zappa Plays Zappa brand for his concerts from his now deceased mother, claiming he paid her "an exorbitant fee." Apparently, some of the complaints here stem from disagreements over payments from merchandise sales on this tour and who gets the money. But the really nutty part of all this is the copyright part. The claim that he risked $150k each time he played a song is just nuts. First of all, even if it was infringing (and it's not, as we'll explain in a minute), the law actually provides only a maximum of $150k "per work infringed" not "per act of infringement." It's a fine line distinction, obviously, but it's worth noting. But, either way, it's dumb because Dweezil isn't infringing. As we've discussed probably hundreds of times here at Techdirt, anyone can cover another artist's song. If you're doing a recording, you just need to pay compulsory mechanical licenses, but if you're just performing it live, it's covered via the venue's blanket performance licenses with ASCAP or BMI (with Frank Zappa, it's ASCAP). Except... the Zappa family wants the world to believe that the law there does not apply to them. Rather, they're playing fast and loose with some tricky definitions. Section 115 of the Copyright Act is about how the compulsory licensing works, and it has an adjective that the Zappas are trying to turn into a loophole: In the case of nondramatic musical works, the exclusive rights provided by clauses (1) and (3) of section 106, to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section. "Nondramatic." Historically, this has been interpreted by many in the copyright space (perhaps reasonably) to say that compulsory licensing a la ASCAP or BMI can't be used for putting on a musical. Instead, for a musical, you do need to negotiate directly with the composers/publishing rights holders. A somewhat murky area of copyright law has grown up around this which is sometimes referred to as "grand rights," despite no such phrase appearing anywhere in the actual law, and that has resulted in some amount of confusion. If you really want a deep dive on grand rights, this article is a pretty good start. But, again, grand rights (whatever they may actually be) only apply to "dramatic performances," which generally means plays and musicals. That's got absolutely nothing whatsoever to do with Dweezil Zappa going on tour as (basically) a cover band of his father's work. But don't tell that to Ahmet Zappa: But the most contentious part of the dispute is over the minutiae of music licensing, an area in which the Zappa estate has long taken controversial stances. The family trust argues that for a show consisting largely of Frank Zappa’s music, performers cannot rely on the standard performing-rights licenses that music venues typically get from agencies like Ascap or BMI, but instead need special permission from the estate for “grand rights,” a term that usually applies to theatrical presentations. Gail Zappa and Ascap pursued a number of bands under this theory, with mixed success. Project/Object, a well-known Zappa tribute group, had some of its shows canceled by clubs that had received legal letters, but Andre Cholmondeley, a member of the band, said that the group was advised by a lawyer that it did not need a special license, and so has never gotten one. “We simply adhered to U.S.A. law,” Mr. Cholmondeley said in an email. The NY Times article, thankfully, quotes a copyright lawyer, Conrad Rippy, who explains why grand rights don't apply here at all: “Is it performed in a place where you generally would perform a theatrical work? Are people wearing costumes? Does it advance a narrative story line?” Mr. Rippy said. “The closer you get to answer those questions ‘Yes,’ the more it looks like that’s a grand right. A tribute band playing a Frank Zappa song in a club meets none of those tests.” So, yeah, the whole "grand rights" claim is ridiculous -- and as with so many intellectual property disputes involving the heirs of famous artists/creators, this seems to be yet another case where it's just family members squabbling over how to divvy up the spoils, and using obscure intellectual property laws to try to advantage themselves over others. And, in the end, all it really seems to do is tarnish the legacy of those creators.Permalink | Comments | Email This Story

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Stop us if you've heard this one before: a new study has found that the "Internet of Things" may bring some added convenience, but at the high price of severe security vulnerabilities. Researchers at the University of Michigan say they've uncovered (pdf) some major new vulnerabilities in Samsung's SmartThings platform that could allow an attacker to unlock doors, modify home access codes, create false smoke detector alarms, or put security and automation devices into vacation mode. Researchers say this can be done by tricking users into either installing a malicious app from the SmartThings store, or by clicking a malicious link. The URL attack relies on SmartThings' flawed implementation of the OAuth authentication protocol. In short, a malicious URL can be used to trick the consumer into giving up his login tokens without the slightest indication anything has gone wrong, but providing an attacker with the ability to create his own backdoor -- into your front door:"Broadly, this part of the attack involves getting a victim to click on a link that points to the authentic SmartThings domain with only the redirect_uri portion of the link replaced with an attacker controlled domain. The victim should not suspect anything since the URL indeed takes the victim to the genuine HTTPS login page of SmartThings. Once the victim logs in to the real SmartThings Web page, SmartThings automatically redirects to the specified redirect URI with a 6 character codeword. At this point, the attacker can complete the OAuth flow using the codeword and the client ID and secret pair obtained from the third-party app’s bytecode independently."If the malicious URL approach isn't used, attackers can also rely on tricking consumers into downloading a malicious app that -- for example -- might claim to offer you insight into device battery consumption, but can actually also give an attacker the keys to your kingdom. This is in part, the researchers note, due to the fact that 42% of over 500 apps in the SmartThings store are are given significantly more system privileges than they actually need to accomplish the task at hand:"We found that SmartApps were significantly overprivileged: (a) 55% of SmartApps did not use all the rights to device operations that their requested capabilities implied; and (b) 42% of SmartApps were granted capabilities that were not explicitly requested or used. In many of these cases, overprivilege was unavoidable, due to the device-level authorization design of the capability model and occurred through no fault of the developer. Worryingly, we have observed that 68 existing SmartApps are already taking advantage of the overprivilege to provide extra features, without requesting the relevant capabilities. As is pretty standard behavior in the Internet of Things space, Samsung was quick to downplay the problems in a statement to the media and throw developers under the bus (despite the report clearly outlining Samsung's responsibility):"The potential vulnerabilities disclosed in the report are primarily dependent on two scenarios - the installation of a malicious SmartApp or the failure of third party developers to follow SmartThings guidelines on how to keep their code secure," a SmartThings representative said. "Following this report, we have updated our documented best practices to provide even better security guidance to developers." The problem is the report clearly notes that neither of these two scenarios is all that unlikely. In an admittedly small survey of 22 SmartThings users, the study found that 91% would let a battery monitoring app check the status of their smart lock. But quite justly, just 14% of those polled believed that providing such access would somehow involve the app being able to send door access codes to a remote server. The study, and Samsung's reaction to it, are just another example of how if you really want a smart and secure home, "dumber" solutions -- like dead bolts and a dog -- remain the more intelligent option. Permalink | Comments | Email This Story

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This administration has made it clear whistleblowing isn't tolerated. It has prosecuted more whistleblowers than all other administrations combined. It's even planning a "Welcome Home" prosecution for the nation's most famous whistleblower -- Edward Snowden -- should he ever decide to return to the US. Officials, of course, claim to love whistleblowing. That seems to be the main objection raised to Snowden's activities: "If only he'd gone through the proper channels, we wouldn't be seeking to jail him the moment he returns to American soil (or the soil of any country with a favorable extradition policy)." But there are no official channels -- or, at least, no channels whistleblowers feel safe using. Foreign Policy has the story of another NSA whistleblower the agency has chosen to make miserable rather than investigate the source of her complaints. It started with an FBI raid of her house -- something she found out via a phone call from an FBI agent already in her house. From there, it got worse. “They suspended my clearances without giving me any reason,” she remembers. She wasn’t allowed at work, and for two years, the NSA made her “call every day like a criminal, checking in every morning before 8.” Khorasani went to the agency only for interrogations, she says: eight or nine sessions that ran at least five hours each. She was asked about her family, her travel, and her contacts. This was all triggered by a meeting she set up with Thomas Drake -- another famous whistleblower prosecuted by this administration -- about how to follow through with a complaint about what she felt was an unfair reassignment. According to Drake, it was already too late. “He said, ‘You’ve got the bull’s-eyes on you. You’re done,’” Khorasani recalls. As the article points out, her story is one of several. The agency -- and the administration -- have made no meaningful distinction between whistleblowing and insider threats. They treat both in the same way, even if one is an integral part of government accountability. Anything the agency considers to be a threat, it handles with swift severity. Individuals can find their clearances yanked, something that is signalled to other NSA employees with a red security badge, rather than the normal blue one. Employees are encouraged to report anything questionable about other employees to supervisors. Some employees aren't even employees. They're plants put in place to encourage incriminating statements or actions. This isn't doing the NSA -- and dozens of other government agencies -- any favors. Talented people are leaving because they don't want to work in this environment. Potential employees are looking elsewhere for work. And still others are being forced out of a job because they aren't willing to simply shut up when they see something that bothers them. The DOJ is no different. It's no fan of whistleblowers either. Unfortunately for it, it's not a national security agency so it can't maintain quite as much control over disclosures by whistleblowers. That's why it's been fighting legislators over whistleblower protection proposals. Marcy Wheeler has highlighted some of its objections to Senator Grassley's legislation, raised in recent testimony in front of a Congressional committee. First off, it apparently feels too many of the proper channels are out of its direct control. [A]s Attorney General Loretta Lynch revealed, DOJ is worried that permitting FBI Agents to report crimes or waste through their chain of command would risk exposing intelligence programs. "What I would say is that as we work through this issue, please know that, again, any concerns that the Department raises are not out of a disagreement with the point of view of the protection of whistleblowers but again, just making sure that the FBI’s intelligence are also protected at the same time." I suspect (though am looking for guidance) that the problem may be that the bill permits whistleblowers to go to any member of Congress, rather than just ones on the Intelligence Committees. It’s also possible that DOJ worries whistleblowers will be able to go to someone senior to them, but not read into a given program. It's also likely concerned that whistleblowers will expose a number of questionable activities. Still, coming from an agency that doesn’t adequately report things like its National Security Letter usage to Congress, which has changed its reporting to the Intelligence Oversight Board so as to exempt more activities, and can’t even count its usage of other intelligence programs, it seems like a tremendous problem that DOJ doesn’t want FBI whistleblowers to have protection because it might expose what FBI is doing on intelligence. The FBI must be severely damaged at this point, or have too many secrets it would hate to see fall into the hands of legislators not connected to its mostly-captive audience in the Intelligence Committee. Grassley noted one of the agency's objections to additional whistleblower protections is that there's so damn much about the agency employees would complain about. One of the issues that your department has raised is that allowing FBI employees to report wrong-doing to their chain of command could lead to too many complaints. You know? What’s wrong with too many complaints? … Seems to me you’d invite every wrong doing to get reported to somebody so it could get corrected. If there's any agency that is sorely in need of some periodic deep housecleaning, it's the FBI. This is the FBI! Not only a bureau that has tremendous power over people, but also one with a well-documented history of abuse. It should be the first entity that has whistleblower protection, not the last! This is why there aren't more whistleblowers. The "proper channels" at the NSA will most likely net a whistleblower a search of their house and belongings en route to a forced resignation. Meanwhile, the FBI, with the DOJ's backing, is trying to narrow the reporting channels so it can -- like its NATSEC big brother -- eliminate unhappy employees before they can do any damage. Permalink | Comments | Email This Story

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Wheat blast may not be uppermost in the minds of many Techdirt readers, but as the following explains, it's a serious plant disease that is spreading around the world: Wheat blast is a fearsome fungal disease of wheat. It was first discovered in Paraná State of Brazil in 1985. It spread rapidly to other South American countries such as Colombia, Bolivia, Paraguay, and Argentina, where it infects up to 3 million hectares and causes serious crop losses. Wheat blast was also detected in Kentucky, USA, in 2011. Wheat blast is caused by a fungus known as Magnaporthe oryzae although scientists are still debating its exact identity. There is a risk that wheat blast could expand beyond South America and threaten food security in wheat growing areas in Asia and Africa. That comes from an interesting site called Open Wheat Blast. It's been set up by a group of scientists who want to help combat the threat of wheat blast. And as their name suggests, they hope to do that by sharing data as widely as possible: To rapidly respond to this emergency, our team is making genetic data for the wheat blast pathogen available via this website and we are inviting others to do the same. Our goal is that the OpenWheatBlast website will provide a hub for information, collaboration and comment. Collectively, we can better exploit the genetic sequences and answer important questions about the nature of the pathogen and disease. That's such a self-evidently sensible thing to do, the obvious question to ask is: why isn't this done routinely -- and for human diseases too? In fact, a couple of months ago, 33 global health bodies signed a "Statement on data sharing in public health emergencies," with particular emphasis on sharing data about the Zika virus: The arguments for sharing data, and the consequences of not doing so, have been thrown into stark relief by the Ebola and Zika outbreaks. In the context of a public health emergency of international concern, there is an imperative on all parties to make any information available that might have value in combatting the crisis. We are committed to working in partnership to ensure that the global response to public health emergencies is informed by the best available research evidence and data That declaration built on a "consensus statement" that came out of World Health Organization consultation on "Developing global norms for sharing data and results during public health emergencies" in September 2015. One of the summary points spells out the key issue holding back open sharing of key information: WHO seeks a paradigm shift in the approach to information sharing in emergencies, from one limited by embargoes set for publication timelines, to open sharing using modern fit-for-purpose pre-publication platforms. Researchers, journals and funders will need to engage fully for this paradigm shift to occur. As that makes clear, a big problem is the way that results are published, with researchers and publishers more interested in keeping their results under wraps for a while than spreading them widely and quickly. And there's another issue too: Patents on natural genome sequences could be inhibitory for further research and product development. Research entities should exercise discretion in patenting and licensing genome-related inventions so as not to inhibit product development and to ensure appropriate benefit sharing. It's a rather sad state of affairs when publishing concerns and patents are getting in the way of producing treatments and cures for serious human diseases that could improve the lives of millions of people. Protecting crops from wheat blast is, of course, welcome, but is it really the best we can do? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Blindness or visual impairment affects hundreds of millions of people around the world. Thankfully, cataract surgery and other treatments have reduced the effects of some vision problems, but unfortunately, there are still a few forms of blindness that aren't very treatable. Until someone figures out how to transplant an entire eyeball (which some doctors are actually working on), here are a few other ways that might help restore some sight. The field of optogenetics is studying how to control the activity of nerve cells with light, but shining lights through a fiber-optic cable implanted in a brain is a bit more invasive than injecting some DNA into an eyeball. RetroSense Therapeutics is testing a way to restore some sight to blind patients -- by injecting eyes with viruses containing DNA from light-sensitive algae. We've mentioned this approach a few years ago, but it's taken some time to actually get to a trial with human subjects. [url] Stem cells have been used to re-grow the lenses in infants who would have been blind from congenital cataracts. This procedure seems to have preferable results compared to the standard method of removing lenses and inserting artificial ones -- and if this can be done more generally, the use of stem cells in regenerative therapies could become more common. [url] A head-mounted geomagnetic sensor (aka a compass) on a blind lab rat was connected to its brain and allowed the rat to navigate a maze nearly as well as a mouse with normal vision. This could mean "smart" canes for people that can indicate cardinal directions for the visually impaired -- or implants that could give anyone the additional sense of magnetic fields. [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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Institutions for higher education are no strangers to abusing trademark law, I suppose, what with Harvard one time looking to lock up all kinds of language, or the University of North Dakota bullying artists over a parody version of its defunct and abandoned sports team logo. But it sure seems to feel more egregious for a learning institution to blatantly bullshit one of its own students through trademark threats, which is exactly what Dixie State University did when it claimed a student's parody of its sports logo was trademark infringement. Dixie State University’s new logo has already created some controversy, but not because of the mascot itself. Rather, it was a Facebook post during last week’s 4/20 cannabis culture holiday that had school authorities scrambling to stop what they said was trademark infringement. DSU student Ridley Larsen, who is currently taking a semester off, had used a copy of the new Trailblazers mascot and edited it to show a marijuana joint held in the buffalo’s mouth and a play on the words by changing “Trailblazers” to “Trailblaze It” with 4/20 printed above the wording. And here is the student-artist's rendition in all of its hazy, smokey glory. Not exactly Rembrandt, but then April 20th isn't an art holiday, I suppose. Anyway, this seemingly innocent, if childish, rendition of the school's logo was posted to Larsen's Facebook page as a joke. From there, a handful of people shared it and a decent number of people saw it. Apparently some folks within the school came across it one way or another as well, because they then completely lost their minds and pulled out the threat-hammer. DSU official then sent Larsen private messages on Facebook and through his Dixie email account letting him know he had infringed on the school’s trademark. “It was just a courtesy thing. It wasn’t an official message from our legal counsel or anything like that,” Hall said. “It wasn’t necessarily the content, and obviously we’re good with free speech and that wasn’t our concern. It was just the trademark issue.” The suggestion that this was all done as a courtesy is, to put it mildly, bison shit. The message demanded the image be taken down on all forms of social media. If Larsen didn't comply, the message ensured him that his "trademark infringement" would be reported to the school's lawyers, with the obvious legal threat implied. Larsen did as instructed and no further action was taken by the school. But let's not gloss over the fact that the threat is all based on lies used to bully a student at the school into the action it wanted. There is absolutely zero trademark infringement going on here. First, the image was not used in any kind of commercial way. Second, it is a clear case of parody of the original logo. And, finally, any school touting its own interest in free speech had damned well better have a better explanation for bullying and lying to one of its own students beyond, "This is just a trademark thing." No it isn't, it never was, and anyone purporting to have enough knowledge to even make such a claim would know as much. Yet, as far as an education goes, Larsen certainly is getting one as far as trademark law and its common use as a bullying tactic is concerned. Welcome to the adult world, sir. It's a silly, villainous place, I'm afraid. Permalink | Comments | Email This Story

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As we recently covered here, a few Aiken, South Carolina, police officers engaged in a steady procession of Constitutional violations during a traffic stop predicated on nothing more than a (fully legal) temporary plate. Shirts were lifted and breasts exposed. At least one cop spent a considerable amount of time probing the passenger's anus. For all intents and purposes, it was a roadside raping, performed under the color of law. The horrific traffic stop is the focus of a federal lawsuit… and a whole lot of belated scrambling by law enforcement and city officials. Radley Balko of the Washington Post, who broke the story, found himself on the receiving end of a sneering, condescending editorial by the Aiken Standard -- the local paper which had no interest in covering the lawsuit until after national internet hellfire began raining down on the town it serves. The editorial is worth reading all the way through, if only to experience the surreality of being talked down to by an editor who wouldn't know unbiased journalism if it showed up at his desk wearing a blue uniform and told him to kill an unflattering story. First, the editorial -- even as it throws shade at Balko for being a mere "blogger" -- acknowledges that it didn't even pick up on this story until after it had been covered at Balko's Washington Post blog. From that point, it only gets worse. These three sentences are enough to give you some idea of how underqualified the Aiken Standard editorial staff is to be entering into a heated debate over journalistic priorities or law enforcement misconduct. (It also must be noted that the paper feels perfectly fine criticizing Balko's blogging while not providing readers a link to his post so its readers can view the source material for themselves.) We’re not criticizing the blog writer’s assertions since we are as ardent protectors of the First Amendment as is The Washington Post. Our point is that The Washington Post blog was rooted in opinion, which is how the blog should be regarded. It’s not a news story conveying information from a neutral perspective. The incident also didn’t happen last week or even last month. It happened 17 months ago. First off, the First Amendment not only protects criticism, it practically demands it. This editorial -- as horrendous and misguided as it is -- is the "more speech" the First Amendment encourages. If you don't like something someone wrote, write something of your own rebutting it. There's no need to pretend the First Amendment is there to saddle up your High Horse and act as your squire during your trip down the High Road. And, for that matter, the editorial does criticize Balko's assertions, along with taking cheap shots at his lowly blogger status (for the Amazon-owned paper serving one of the nation's largest subscriber bases). As for the Aiken Standard being concerned about "neutral perspectives," it would have been nice for it to have any perspective at all prior to a mere "blogger" making public news that it should not only already have known about, but should have addressed in print months ago. Even stupider is the idea that horrific violations have some sort of expiration date. Lawsuits take time -- generally being the tail end of a process in which other, less expensive options are exhausted first. Just because it didn't happen within the last week doesn't mean it's not worthy of coverage. But that's apparently the Aiken Standard's standard. Towards the end of its piece, it takes time to thank law enforcement for the hard work they do when not violating citizens' rights. Police officers face danger every day. They’re not perfect, but they lay their lives on the line every day so we can be safe. For a paper making the claim that "opinions" from "bloggers" are worth less than its "neutral" reporting that allows "every stakeholder" to have their say, it sure sounds like the Aiken Standard is issuing absolution before all the facts are in. Ken White at Popehat responded to the Aiken Standard's blog-slamming editorial with an opinionated blog post of his own. Again, his is worth reading all the way through, but for much different reasons than the Aiken Standard's. He calls the paper out for claiming to be the arbiter of neutrality and civility with two paragraphs that should serve as a stinging rebuke for every reporter granting law enforcement officials vast amounts of deference while still claiming to be a member of the Fourth Estate. Civility is a good thing, even when discussing controversial subjects. It's a goal I often fall short of, but a goal nonetheless. Civility even on heated subjects is a good thing because of humility: we may be wrong about the things we are angriest about. It's a good thing because of proportionality: our sense of what is outrageous enough to provoke incivility may be idiosyncratic. It's a good thing because of perspective: the world is full of people ready to be uncivil to us about things we have every damn right to do, and if we encourage incivility we'll get what we ask for. [...] But civility can take pernicious forms. It's pernicious if we shy from calling out outrageous and despicable conduct. It's pernicious when we give armed government officials the benefit of the doubt because the culture tells us they're brave and nice. It's pernicious when we don't demand public explanations for conduct because the conduct is horrifying and unseemly. Most of all, it's pernicious when we decide that civility is substantive rather than procedural. Civility weighs against gratuitous shouting, insults, and threats. But civility does not require that we let the government beg the question. It does not require that we accept, as true, the premises about government power that have been served to us since birth. Balko's response to the Aiken Standard editorial is just as damning, but his closing paragraph really nails everything the Aiken Standard got wrong when it started believing subservience to law enforcement was the same thing as "neutral reporting." If you want to sling arrows of journalistic superiority, you'd best have your shit nailed down tight. The most important function of the press is to be a watchdog on power. I’d think that when made aware an incident such as this, caught on video, a good newspaper would start digging around to see if there had been similar incidents. (Here’s a tip for the paper’s assignment editors: If it’s happened once, it’s probably happened before.) Instead, the Aiken editorial board has chosen to praise police and local officials, and to reserve its skepticism for the publication that reported the incident. For all its derision toward me (the 665-word editorial uses the word “blog” 10 times), maybe the Aiken Standard could stand to take a lesson or two from opinion journalism. Do that, and perhaps the next time there’s national news in Aiken, the town’s newspaper will be the outlet that breaks it. Since the point the Washington Post broke the story the Aiken Standard couldn't be bothered to cover until it became unavoidable, there's been all sorts of attentiveness from the local paper. Multiple stories have appeared covering the fallout of these officers' actions -- which includes everything from the hasty installation of a citizen complaint review board to the city asking the FBI to open its own investigation into the incident. But nowhere in this flurry of coverage will you find the Aiken Standard walking back its petty attack on Balko and his "blogging." I suppose now that it's finally performing acts of journalism, it feels it's too far above the fray to offer an apology to Balko for its snide editorial, or to its readers for its journalistic failings. Permalink | Comments | Email This Story

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A string of aborted federal prosecutions of alleged "traitors" has the DOJ rethinking its national security strategies. The DOJ went after National Weather Service employee Sherry Chen, who shared public web links about reservoir water funding with a senior Chinese official, who also happened to be Chen's friend. It went after Temple University's physics department head Xi Xiaoxang for allegedly sharing secret semiconductor blueprints with Chinese scientists. The case fell apart once the DOJ was informed by actual experts in the field that the shared blueprints weren't for the item the DOJ claimed they were for. Finally, it went after Robin Raphael, a State Department advisor, who it believed was passing on state secrets to Pakistani officials. At this point, the DOJ's case has dissolved into little more than an accusation that Raphael kept classified documents in her home, something others like Hillary Clinton and General Petraeus have managed to walk from unscathed. The New York Times reports the DOJ has issued some new guidelines for national security prosecutions -- ones that will hopefully result in fewer misguided prosecutions and destroyed lives. In a letter last month to federal prosecutors nationwide, Deputy Attorney General Sally Q. Yates said that would change. All cases affecting national security, even tangentially, now require coordination and oversight in Washington. That had always been the intention of the rule, but Ms. Yates made it explicit. “The term ‘national security issue’ is meant to be a broad one,” she wrote. Ms. Yates told federal prosecutors that consulting with experienced national security prosecutors in Washington would help “ensure prompt, consistent and effective responses” to national security cases. This doesn't exactly sound encouraging, but it's a step away from the DOJ's autonomy, which has led to a run of botched prosecutions predicated on next to no evidence. According to the letter shared with the New York Times, the DOJ will now have to consult with "espionage experts" before moving forward with investigations and will face more direct supervision from higher-ranking officials during the investigative process. This fix -- if that's what it actually is -- will possibly head off misguided investigations before they wreck the lives of people who've done nothing wrong. Sadly, the DOJ doesn't seem to view its high-profile failures as being anything more than a learning experience. There's no effort being made to undo the damage done by the agency during its botched prosecutions. And even though prosecutors dropped all charges against Sherry Chen, the government is still seeking to fire her. The problem with espionage investigations is that they're a completely opaque process. Tying something to "national security" is a great way to circumvent due process, and the DOJ has used this to pursue extremely dubious cases without having to face any sort of legal challenge until the life-destroying process is well underway. The new guidelines don't appear to open up this process in any appreciable fashion, but any additional eyes on "evidence" collected by the DOJ can only be a good thing as it's obviously terrible at making those determinations on its own. Permalink | Comments | Email This Story

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Brazilian judges are apparently not very big fans of the popular messaging app Whatsapp, which is owned by Facebook (but run independently). Judge Marcel Montalvao has ordered the app blocked entirely across Brazil, because Whatsapp has refused to provide data (which it likely does not have) to help out with a drug investigation. Any phone companies that don't block Whatsapp will be fined about $143,000 per day. If this sounds familiar, it's because we went through this back in December in another case with another judge. And, of course, in March a Facebook (not Whatsapp) exec was arrested over a similar issue in a different case. When Whatsapp again refused to turn over information, because it could not, the judge had the exec arrested (another judge freed the exec pretty quickly). Once again, Whatsapp points out that it's cooperated as much as possible: “After cooperating to the full extent of our ability with the local courts, we are disappointed a judge in Sergipe decided yet again to order the block of WhatsApp in Brazil,” WhatsApp said in a statement. “This decision punishes more than 100 million Brazilians who rely on our service to communicate, run their businesses, and more, in order to force us to turn over information we repeatedly said we don’t have.” The order is shutting down Whatsapp for 72 hours, but considering just how widely the app is used there (it is basically the way many Brazilians communicate) the impact is pretty massive. As Glenn Greenwald and Andrew Fishman over at the Intercept note, this is a ridiculous move that harms many people, but is also a sign of what's to come as governments continue to freak out over encrypted communications: It is stunning to watch a single judge instantly shut down a primary means of online communication for the world’s fifth-largest country. The two Brazilian communication experts in the NYT wrote of the first WhatsApp shutdown: “the judge’s action was reckless and represents a potentially longer-term threat to the freedoms of Brazilians.” But there is no question that is just a sign of what is to come for countries far from Brazil: there will undoubtedly be similar battles in numerous countries around the world over what rights companies have to offer privacy protections to their users. Permalink | Comments | Email This Story

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So we already wrote about the Australian government's Productivity Commission's Draft Report on Intellectual Property Arrangements, talking about what was said about copyright law, but the report also goes into other areas of intellectual property as well, with some pretty good ideas on patent law as well (on this one I think they could go even further, but most of the recommendations in the report are a good start). Once again, they offer up a nice infographic demonstrating the key points, which focuses on the serious problems of allowing patents on obvious ideas: The Productivity Commission clearly recognizes that too many patents stifle innovation. In fact, they note that the only time patents really should be issued are in cases where those inventions would not occur without that incentive. And thus, since so much public policy around innovation always seems to focus on figuring out ways to increase patent numbers, the authors of the report recognize that patent policy is probably harming, not helping innovation: Indeed, it appears to have become accepted wisdom that because patenting plays some role in promoting innovation, more and stronger patents are always better. But research reveals that greater patenting activity is not always associated with more innovation and that a non-trivial number of patented inventions have low social value, or would have occurred anyway. Low-value patents impede innovation by frustrating the efforts of follow-on innovators and researchers. In some cases, low-value patents can be used as a strategic tool for stalling or excluding market entry, and can contribute to ‘patent thickets’, which potential market entrants must ‘hack’ their way through in order to compete in a particular technology space. And thus, they suggest that Australia's entire patent system should be rethought and refocused towards trying to encourage things that are socially beneficial. That is, the system should be set up not with the inventors as the sole focus, but rather what will lead to the greatest possible public benefit. And the failure to do so is creating "substantial costs" on the public. While the incidence of some low–value patents does not come as a surprise, a multitude of such patents imposes substantial costs on the community. Low-value patents impede innovation by frustrating the efforts of follow–on innovators and researchers. To fix this, they have a few suggestions -- all of which seem worthwhile. First, they say the bar is way too low for granting patents, so Australia should raise the bar for what's considered "inventive." They suggest the standard should be changed to if the invention or solution "would have been obvious for a person skilled in the art to try with a reasonable expectation of success." They even consider going beyond that, but recognize that some patent holders outside of Australia may freak out at such a suggestion and avoid the Australian market. The second suggestion is giving an "overarching objective" to patent law, which examiners can use as a sort of guiding light or touchstone. Basically, allow Australia to reject patents by arguing that granting such patents would go against the public interest. The objects clause should describe the purposes of the legislation as being to enhance the wellbeing of Australians by providing patent protection to socially valuable innovations that would not have otherwise occurred and by promoting the dissemination of technology. In doing so, the patent system should balance the interests of patent applicants and patent owners, the users of technology — including follow–on innovators and researchers — and Australian society as a whole. The Australian Government should amend the Patents Act such that, when making a decision in relation to a patent application or an existing patent, the Commissioner of Patents and the Courts must have regard to the objects of the Patents Act. That would be a big and wonderful change to the patent system. Next up, they suggest increasing the fees associated with patents (both for applying and for renewals -- which would escalate), which acts as a mechanism to better ensure that a patent is valuable (i.e., making it less worthwhile if the patent holder isn't actually going to do something with it). It also encourages patent holders to stop renewing the patent and push the info into the public domain sooner if the patent itself is no longer making an economic return. The report doesn't spend much time on patent trolls, noting that they're not a big problem down under, and suggests that the existing "loser pays" litigation structure probably helps keep patent trolling at a lower level there. At the very least, that seems like an important data point for folks here in the US looking to add a "loser pays" provision in patent reform. How about business method and software (BM&S) patents -- which make up many of the most abused patents in the US? The Commission is not impressed by the arguments in favor of such patents and suggests making those things unpatentable. They point out that there's little evidence that such patents encourage innovation, and that most innovation associated with them almost certainly would have happened without the patents, because the focus was on building products (and that there would be first mover advantages for those who got there first, so the copycat issue isn't that big a deal). Furthermore, they point out that BM&S patents can often hold back important follow-on innovations. Quoting Nobel prize winning economist Eric Maskin, the report notes: Specifically, in the software industry, progress is highly sequential: progress is typically made through a large number of small steps, each building on the previous ones. If one of those steps is patentable, then the patent holder can effectively block (or at least slow down) subsequent progress by setting high license fees. … Thus, in an industry with highly sequential innovation, it may be better for society to scrap patents altogether than try to tighten them. And they conclude: On balance, the Commission considers it unlikely that granting patents in the area of BM&S increases the welfare of the community. BM&S patents likely compensate activity that would have occurred in any event (are nonadditional) and reward low– (or even no–) value innovations. BM&S patents can also frustrate would–be competitors and follow–on innovators. While broader changes to patents, particularly around the inventive step and dispensing with innovation patents (chapters 6 and 7), may ‘knock out’ a large share of BM&S patents, the Commission still considers that there is value in making clear that BM&S should not be considered patentable subject matter. There's a separate section on pharmaceutical patents, recognizing that the market factors there are somewhat different. Obviously, the pharma industry relies more heavily on patents. But they also note that Australia has a public policy need to "improve the health of all Australians." They suggest that the government shouldn't be as willing to hand over "extensions of terms" on phama patents, and should only do so in specific cases. On the related question around data protection and biologics (a key sticking point in the TPP negotiations), the report finds that the policy should be designed to encourage much more openness and information sharing, rather than locking up information and biologics for too long. There should be no extension of the period of data protection, including that applicable to biologics. Further, in the context of international negotiations, the Australian Government should work with other nations towards a system of eventual publication of clinical trial data in exchange for statutory data protection. These all seem like decent suggestions, though I still think they could go further. For years I've pushed for an independent inventor defense and for independent invention being a sign of obviousness (such that it might invalidate a related patent from someone else). That concept doesn't seem to make it into the report. Still, as with copyright, the report's authors do seem to understand the key problems of the patent system in working against innovation. And, once again, this is fairly amazing. The stunning thing about this report is that it pushes back on a lot of the accepted -- but bogus -- wisdom around copyright and patents that just gets repeated without question in most government reports. Kudos to the authors of the report.Permalink | Comments | Email This Story

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Tired of lost remotes or keeping track of which one controls what? Consider the Blumoo Bluetooth Universal Remote, which allows you to control your home theater system from your Android or iOS device. You can create a custom TV guide, easily upgrade your A/V equipment from your connected device, and enjoy support for Alexa on Amazon Echo, Dot, Tap, Fire Stick & Fire TV. With a 150-ft range, you don't have to be right in front of your set up to control it. The Blumoo is available in the Techdirt Deals Store for $52.99. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Three years ago, down in Australia, the Australian Law Reform Commission started examining various copyright reform proposals, and eventually made a rather mild suggestion: bring fair use to Australia. Frankly, we felt that the Commission could have gone much further, but it basically said to copy the American approach to fair use. Not surprisingly, Hollywood flipped out, claiming that it would "lead to an increase in piracy." And, soon after that, the new government, led by Attorney General George Brandis flat out ignored the report and pushed for expanding copyright against the public interest, and very much towards exactly what Hollywood wanted. This wasn't all that surprising, given that it was revealed that Hollywood representatives spent a lot of time with Brandis, while he deliberately avoided meeting with representatives of the public. But, in a bit of a surprise, last week, a different Australian government commission, the Productivity Commission, released one of the most amazing reports on copyright that you'll see out of a government body. The Productivity Commission is a government agency designed to give independent advice to the government -- and had been tasked with exploring how well Australia's intellectual property laws were working. In short, the answer provided by the commission is: not well. Just take a look at the infographic the Commission pushed out along with the report, which is titled "Copy(not)right." The whole section on the problems of copyright as currently in place in Australia is worth reading. They don't pull many punches: Australia’s copyright arrangements are weighed too heavily in favour of copyright owners, to the detriment of the long-term interests of both consumers and intermediate users. Unlike other IP rights, copyright makes no attempt to target those works where ‘free riding’ by users would undermine the incentives to create. Instead, copyright is overly broad; provides the same levels of protection to commercial and non-commercial works; and protects works with very low levels of creative input, works that are no longer being supplied to the market, and works where ownership can no longer be identified. Like the report from three years ago, this report strongly supports fair use (citing that report in part), and their proposal in that area is really strong too. For years now, here at Techdirt, we've argued against calling fair use a "limitation and exception" to copyright, because that's misleading. Fair use is about the public's rights. And it appears that the Commission agrees, titling its section on fair use: "A new system of user rights." In that section, the Commission notes that fair use is important in making sure that copyright law only is used to "target those works where 'free riding' by users would undermine the economic incentives to create and disseminate works." This should make intuitive sense to basically everyone. Copyright is much more defensible if it's only used in cases where infringement is undermining the incentives to create. But where that's not happening, then claiming infringement seems inappropriate. The report then supports the basic four-factor test as used in the US. It also points out that the main complaint against this approach by legacy copyright industry players -- that because there's no case law, it would lead to a big litigation mess -- was unfounded and suggests a workaround to make the transition easier: In the Commission’s view, legal uncertainty is not a compelling reason to eschew a fair use exception in Australia, nor is legal certainty desirable in and of itself. Courts interpret the application of legislative principles to new cases all the time, updating case law when the circumstances warrant doing so. To reduce uncertainty, the Commission is recommending Australia’s fair use exception contain a non-exhaustive list of illustrative uses, which provides strong guidance to rights holders and users. Existing Australian and foreign case law, particularly from the United States where fair use has operated for some time, will provide further guidance on what constitutes fair use. Later in the more detailed part of the report, the Commission is even more direct in refuting (in great detail) each and every objection by the legacy copyright industries. In fact, they have a whole callout box that picks apart the ridiculous claims by various legacy copyright players on the "costs" of fair use: It also notes that the fair use recommendation from three years ago should be the starting point for reform, representing the "minimum level of change" and suggesting Australia go much further, specifically in exempting orphan works and "out-of-commerce" works. Yes, you read that right, the Commission is suggesting a "use it or lose it" feature for copyright: The lack of any requirement for rights holders to actively supply the Australian market reduces the efficiency of Australia’s copyright regime. Demand for works that have been created, but are not being supplied, reduces consumer welfare and the profits of intermediaries and original rights holders. Where a rights holder has made a choice not to supply their works to the market (or refuses to supply a market), granting consumers access to that work, such as through a fair use exception, improves consumer wellbeing without reducing incentives to create copyright works. By definition, if a work is not being supplied to the market, concerns about copying and ‘free riding’ are moot. While this will undoubtedly be shocking to many in the copyright space -- the report points out that such features are common in other areas of intellectual property law. From there, the report points out how ridiculous geoblocking is, and says that getting around those blocks should not be seen as infringement: The use of geoblocking technology is pervasive, and frequently results in Australian consumers being offered a lower level of digital service (such as a more limited music or TV streaming catalogue) at a higher price than in overseas markets. Studies show Australian consumers systematically pay higher prices for professional software, music, games and e-books than consumers in comparable overseas markets. While some digital savvy consumers are able to avoid these costs (such as through the use of proxy servers and virtual private networks), many are relegated to paying inflated prices for lower standard services. The Australian Government should make clear that it is not an infringement of Australia’s copyright system for consumers to circumvent geoblocking technology and should seek to avoid international obligations that would preclude such practices. Also, not surprisingly, the report finds that copyright terms are ridiculously long and that harms the public massively: The evidence (and indeed logic) suggests that the duration of copyright protection is far more than is needed. Few, if any, creators are motivated by the promise of financial returns long after death, particularly when the commercial life of most works is less than 5 years. Overly long copyright terms impose costs on the community. Empirical work focussing on Australia’s extension of copyright protection from life plus 50 years to life plus 70 years (a requirement introduced as part of the Australia–United States Free Trade Agreement) estimated that an additional 20 years protection would result in net transfers from Australian consumers to foreign rights holders of around $88 million per year. But these are likely to be a fraction of the full costs of excessive copyright protection. The retrospective application of term extension exacerbates the cost to the community, providing windfall gains to copyright holders with no corresponding benefit. The report even suggests that a copyright term of maybe 25 years seems a lot more appropriate, based on actual empirical studies (what a concept: not basic copyright policy entirely on faith). The report also states what many of us have argued for years, but which seems like something that rarely comes up in "respectable" conversations around copyright: if the copyright is being used outside the "incentive to create," then it makes no sense: Unlike other IP rights, copyright makes no attempt to target those works where ‘free riding’ by users would undermine the incentives to create. Instead, copyright is expansive and ‘all encompassing’, providing the same levels of protection to commercial and non-commercial works, to works with essentially no degree of creativity, to works that are no longer being supplied to the market, and to works where ownership can no longer be identified. This leads to copyright covering works that require no incentive for creation, and works that have exhausted their commercial life and are no longer available. Beneficial uses of such material are unrealised. Accordingly, the current Copyright Act is weighted too heavily in favour of copyright owners, to the detriment of the long-term interests of users. Finally, the report notes that international trade agreements are doing a terrible job constraining Australia and blocking its ability to fix the many problems of copyright and to implement the sensible recommendations in the document. This is quite telling, since Australia was actually one of the voices in the TPP negotiations pushing for expanded copyright. This report is basically slapping those negotiators and pointing out that what they're doing runs directly counter to the public interest. After pointing out the state of these agreements, the report notes: a consequence of embodying so much of our IP provisions in international agreements is that Australia is significantly constrained in reforming its IP arrangements The report also notes that greater enforcement against individuals for file sharing or intermediaries for providing tools has "only had a modest impact," and that the real way to decrease piracy is not to ratchet up the law, but to make more legal content available: Changes to the law to encourage Internet service providers to cooperate with rights holders, as well as litigation, have only had a modest impact in reducing infringement. Further legislative change is unlikely to improve compliance with the law. Instead, evidence suggests infringement declines with better content availability and most consumers prefer paid, legal consumption. As such, an effective approach to reducing infringement is the timely release of content to Australian consumers. This requires action by rights holders and their intermediaries. Honestly, this is the most thorough and amazing document on copyright I've ever seen come out of a government body (we'll address its coverage of patents in another post...). It's level headed and reasonable and actually hits on most of the key "big issues." I'm guessing that it's so right on and so detailed... that it will be (1) attacked viciously by legacy players and (2) ignored by lawmakers when it comes time to actually reform the system. Oh, and while the report is technically under copyright (Australia has crown copyright, which allows government works to be under copyright), the authors wisely have slapped a CC-BY license on it, meaning that we can share it here as well.Permalink | Comments | Email This Story

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There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. but at any rate they could plug in your wire whenever they wanted to. You have to live - did live, from habit that became instinct - in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. George Orwell, 1984 There has been much talk about the chilling effect of mass surveillance. The problem isn't that anyone is actively watching everyone. The problem is that algorithms and search tools are doing the watching, meaning everything eventually receives some level of scrutiny if it's deemed suspicious by the filters. It's been mostly talk, though. Anecdotal evidence passed on by journalists, security researchers and others whose interests might clash with what the US government has deemed acceptable. Now, there's data. A study by Jonathon W. Penney shows searches for certain subject matter have declined in response to the NSA leaks. Penney cites earlier studies of Google traffic that showed a statistically significant decline of 5% in searches involving terms people might believe would be flagged as suspicious by mass surveillance software. He also notes that the dip was short-lived, corresponding roughly to the initial Snowden leaks before resuming at their normal pace after a few months. Penney instead focuses on Wikipedia, a site a large percentage of the population uses for research. It also offers far more comprehensive data to researchers than an examination of Google Trends provides. There are also methodological reasons for this case study’s focus on Wikipedia. First, unlike Google Trends, Wikimedia Foundation provides a wealth of data on key elements of its site, including article traffic data, which can provide a more accurate picture as to any impact or chilling effects identified. Second, Wikipedia, a “unique, online, collaborative encyclopedia,” has over 500 million visitors per month, and its collaborative and peer-produced content is growing at a rate of 17,800 articles per day (as of May 2014, English Wikipedia content includes over 4.6 million articles). In other words, Wikipedia is both a massively popular medium, but one that is also growing in content and scope. As such, any observed chilling effect would implicate a large number of Internet users (accessing Wikipedia) doing something wholly legal—accessing information and knowledge in an encyclopedia—and, arguably, such chilled or reduced use would run counter to these Wikipedia use and content trends. Using the DHS's own keyword list for terrorism-related terms, Penney examined Wikipedia's data. Using a 32-month period surrounding the first Snowden leak (June 2013), Penney compared the number of visits to "terrorist-related" Wikipedia pages and found a significant drop post-Snowden. The difference in mean values is notable—a reduction of 526,614 in the average monthly views for the article after June 2013, which represents approximately a 19.5% drop in article view counts. This is more than mean differences found in the Google search terms study before and after June 2013. Those are Penney's non-empirical findings, something he notes could track with an overall decline in Wikipedia traffic. (Not that Penney actually examined all Wikipedia traffic during that same period and found a decline, but rather providing a non-chilling effect theory for the drop off.) The empirical findings, however, back up the non-empirical. The shifting trend of the data, which in this case is a sudden and immediate drop, is particularly consistent with a chilling effect arising from June 2013 revelations. If the outlier data relating to Hamas view counts is excluded, the decline in page views is less sudden (e.g. 20% immediate drop off if the Hamas data are excluded compared to the 30% drop off in the Hamas data remains in the study). However, regardless of whether the Hamas data is included, there is still a substantial and statistically significant decrease. The numbers appear to back up the claims of many journalists and researchers in the wake of the Snowden leaks. Glenn Greenwald, writing for The Intercept, adds the anecdotal evidence back into the mix. The fear that causes self-censorship is well beyond the realm of theory. Ample evidence demonstrates that it’s real – and rational. A study from PEN America writers found that 1 in 6 writers had curbed their content out of fear of surveillance and showed that writers are “not only overwhelmingly worried about government surveillance, but are engaging in self-censorship as a result.” Scholars in Europe have been accused of being terrorist supporters by virtue of possessing research materials on extremist groups, while British libraries refuse to house any material on the Taliban for fear of being prosecuted for material support for terrorism. Some journalists and researchers can assert definitively there's a chilling effect. Many of those associated with the Snowden leaks have experienced everything from constant security harassment (and detainment) at airports to the government actually stopping by the office and destroying computers. For others, it's a gloom that never encroaches past the horizon, but also never fully dissipates. The feeling that something may trigger a detainment at an airport or an unseen investigation is always there. Even in my work for Techdirt, I've second-guessed Google searches that have resulted in warnings about illegal activity (related to posts about various child porn defendants) or accusations I'm a robot (searches for specific document types containing certain wording). I don't feel I'm actively on anyone's radar, but it wouldn't take much for someone to assemble my internet history and use it to build a case against me. Even if it fell apart immediately, I would still have to deal with an arrest, searches/seizures of my electronics, and the possibility of losing my other job. And what I research isn't that all uncommon, considering the subject matter we cover here. There are plenty of writers, researchers and journalists out there treading into even murkier waters -- some of whom have been second-guessing their own efforts since the Snowden leaks, if not earlier. It's no longer a case of peering out the blinds and seeing a van sitting at the end of the street, one that's never been there before. The surveillance is largely passive. The NSA gathers a ton of data and sifts through it, ensuring as many people as possible are caught in its nets, even if most of them are released after an algorithmic examination. The FBI and other DOJ agencies partake in this data haul and local law enforcement agencies are increasing their own use of passive, keyword-oriented internet surveillance. The problem goes much deeper than the NSA and its bulk surveillance. We've seen the FBI build terrorism cases out of nothing and cops raid houses because someone purchased something from a gardening supply store. We've seen people's lives destroyed by bogus espionage cases built on nothing any rational person would consider "evidence" -- except that all rational thought is immediately thrown out the window the moment someone says "national security." It's no surprise that some of those in these fields have just said "fuck it" and wandered off into safer areas. Why roll the dice on your own lives/livelihoods? The odds of the government dragging you down may be low, but they're far from nonexistent.Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
Fake news stories are a scourge. Something different from parody news folks such as The Onion, there are outfits out there that produce false news stories simply to get clickthroughs and generate advertising revenue. And it isn't just a couple of your Facebook friends and that weird uncle of yours that gets fooled by these things, even incredibly handsome and massively-intelligent writers such as myself are capable of getting completely misled into believing that a bullshit news story is real. Facebook is generally seen as a key multiplier in this false force of non-news, which is probably what led the social media giant to declare war on fake news sites a year or so back. So how'd that go? Well, the results as analyzed over at Buzzfeed seems to suggest that Facebook has either lost this war it declared or is losing it badly enough that it might as well give it up. To gauge Facebook’s progress in its fight, BuzzFeed News examined data across thousands of posts published to the fake news sites’ Facebook pages, and found decidedly mixed results. While average engagements (likes + shares + comments) per post fell from 972.7 in January 2015 to 434.78 in December 2015, they jumped to 827.8 in January 2016 and a whopping 1,304.7 in February. Some of the posts on the fake news sites’ pages went extremely viral many months after Facebook announced its crackdown. In August, for instance, an Empire News story reporting that Boston Marathon bombing suspect Dzhokhar Tsarnaev sustained serious injuries in prison received more than 240,000 likes, 43,000 shares, and 28,000 comments on its Facebook page. The incident was pure fiction, but still spread like wildfire on the platform. An even less believable September post about a fatal gang war sparked by the “Blood” moon was shared over 22,000 times from the Facebook page of Huzlers, another fake news site. So, how did this war go so wrong for Facebook? Well, to start, it relied heavily on user-submitted notifications that a link or site was a fake news site. Sounds great, as aggregating feedback has worked quite well in other arenas. For this, however, it was doomed from the start. The purpose of fake news sites is, after all, to fool people, and fooled people are obviously not reporting the links as fake. Even when a reader manages to determine eventually that a link was a fake news post at a later time, perhaps after sharing it and having comments proving it false, how many of those people then take steps to report the link? Not enough, clearly, as the fake news scourge marches on. Another layer of the problem appears to be the faith and trust the general public puts into some famous people they are following, who have also been fooled with startling regularity. Take D.L. Hughley, for example. The comedian, whose page is liked by more than 1.7 million people, showed up twice in the Huzlers logs. One fictitious Huzlers story he posted, about Magic Johnson donating blood, garnered more than 10,000 shares from his page. Hughley, who did not respond to BuzzFeed News’ request for comment, also shared four National Report links in 2015. Radio stations also frequently post fake news. The Florida-based 93XFM was one of a number of radio stations BuzzFeed News discovered sharing Huzlers posts in 2015. Asked about one April post linking to a Huzlers story about a woman smoking PCP and chewing off her boyfriend’s penis, a 93XFM DJ named Sadie explained that fact-checking Facebook posts isn’t exactly a high priority. In other words, people and organizations that the public assumes to be credible sources of information are sharing these fake news articles, and the public turns off their collective brains and assumes them to be true. After all, if we can't trust D.L. Hughley then, really, who can we trust? But when even major outlets such as the New York Times have included links in its posts to The National Report, do we really expect people to cast a wary eye towards such an established news peddler? Well, we should, because the ultimate problem here are the equal parts of a polarized American public coupled with a terrifying level of credulity. Many of these fake news pieces contain headlines for stories that some people want to believe, typically for ideological reasons. This is why a family party recently saw me trying to explain to my grandmother that, no, Michelle Obama probably does not in fact have a penis. That's a true story, friends, and it stemmed from a fake news article. The willingness to believe such a thing is extreme, certainly, but stories of the Boston Bomber getting beaten in prison fuel the same desire for such a story to be true. The war is lost. Fake news goes on unabated. Long live Michelle Obama's penis. Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
Sarah Ryley at ProPublica has a fascinating, depressing, and exhaustive report on the NYPD's apparent ongoing civil rights abuses. Under the guise of policing "nuisance businesses," certain precincts are targeting minority-owned businesses -- usually small bodegas, laundromats, etc. -- with abatement actions that force owners to either lose their source of income or capitulate to the NYPD's overreaching demands. One business owner was hit with a "nuisance abatement" action -- one which could lead to his laundromat being closed for at least 30 days -- after undercover officers twice sold stolen goods to store customers. Sung Cho's laundromat had nothing to do with either sale, other than being open for business when the sales were made. Despite Cho's lack of culpability in the selling of stolen goods, the NYPD portrayed his business as a "facilitator" of illegal activity and hit his store with a restraining order. As Ryley reports, the nuisance abatement program is prone to abuse, what with its one-sided court process (NYPD files complaint and asks for restraining orders without notifying the business owner or allowing them to challenge the orders) and very loose definition of "facilitation." While the statute does provide that business owners must be given a chance to challenge an order within three business days of being presented with it, the NYPD routinely serves orders on Thursday or Friday, forcing businesses to close over the weekend, normally their busiest sales days. The article points out that most of these orders are served by officers in precincts where the minority population is the majority, suggesting once again that the NYPD regularly engages in biased policing. A judge who has presided over abatement cases lends some credence to this conclusion. “You never see the white bar owner from the Meatpacking District in here; it’s always some bodega owner from Uptown,” said the judge, who asked not to be named. “It’s a complete double standard.” In terms more familiar to Techdirt's audience, nuisance abatement enforcement is nothing more than law enforcement trolling. Once served with nuisance abatement actions, business owners are faced with a choice. They can fight the case and remain shut down until it’s resolved, earning no income. Or they can agree to the NYPD’s demands, sign a settlement, and reopen. As a result, cases tend to get resolved very quickly. When not using sales of stolen goods to customers to push nuisance abatement actions, the NYPD also likes to use sales of alcohol to minors as leverage -- despite the fact there's an entire arm of enforcement as well as a separate government agency in place to deal with liquor license violations. As Ryley points out, doubling up on enforcement allows the city to punish business owners twice for these violations. And some of the busts are highly questionable. The ProPublica piece contains footage of a contested sting "buy:" a two-second "interaction" in a busy convenience store where the undercover buyer obscured the beer can with his hand and tossed a dollar at a clerk who was in the middle of handling another customer's transaction. The ends here appears to be the expansion of the NYPD's already-robust surveillance powers. The laundromat owner faced with losing his business agreed to the PD's "settlement offer" -- one that gave the NYPD uninterrupted, warrantless access to his place of business. He agreed to pay a $2,000 fine, maintain cameras that the NYPD can access at any time, and to allow the police to conduct warrantless searches. If anyone is even accused of breaking the law at his business again — whether a store employee or not — he faces escalating penalties: closures that would increase from 30 days to 60 days to 90 days to a full year with each alleged offense; fines climbing as high as $15,000. Perhaps most damaging of all, the terms continue in perpetuity, even if the business changes hands. This isn't an aberration. This is the standard operating procedure. Other businesses facing NYPD abatement orders have not only installed cameras and agreed to warrantless searches, but have also put $1000 credit card readers in place that store personally-identifiable info on every customer that uses them -- and which all can be accessed anytime by police officers without a warrant. An NYPD official contacted by ProPublica isn't shy about the desire to expand the NYPD's surveillance dragnet. Robert Messner, who heads the NYPD’s Civil Enforcement Unit, which handles the cases, said during an interview with the Daily News in December that his unit does not keep a database of the businesses required to maintain cameras. He said their purpose is to make neighborhoods safer and to help police solve crimes. “We want everybody to install cameras. We think that’s the greatest,” he said. He's also not afraid to say why he prefers nuisance abatement proceedings to other statutes the NYPD has at its disposal to handle these sorts of "problems." When asked about the Padlock Law in December, Messner said the last case filed under it was “15 years ago maybe.” He said the padlock law “was a creaky old law” that cost a lot of police resources and often resulted in protracted litigation. “This thing,” Messner said, referring to the nuisance abatement law, “is simple and elegant.” Yes, there's nothing more "simple and elegant" than greasing your own wheels. The "Padlock Law" -- instituted during Bill Bratton's first run at the top of the NYPD -- allowed business owners to contest the orders and allegations in court before being threatened with a business closure. The new way -- now more than 15 years old -- deprives business owners of any meaningful form of due process, which makes it much easier to use the threat of a business shutdown to coerce owners into providing the NYPD with 24-hour warrantless access and a larger surveillance footprint. Permalink | Comments | Email This Story

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After it was revealed just how secretive the FBI is about its hacking tools and surveillance techniques, dfed stepped up to win most insightful comment of the week by latching on to one particular piece of language: "Protect our trade craft" is a statement a surveillance outfit, not a law enforcement agency, makes. That's the terrifying disclosure: The FBI just admitted they aren't interested in law enforcement, they are interested in espionage. In second place, we've got a response to the comment from Getty (who have filed an antitrust complaint against Google in the EU) that "by standing in the way of a fair marketplace for images, Google is threatening innovation, and jeopardizing artists’ ability to fund the creation of important future works." Mason Wheeler read that and saw another big word-choice red flag: Here's a good rule of thumb: anytime the largest player in a market complains about someone else interfering with a fair (or free) market, it's generally safe to assume a priori that the complainer is either a sleazy monopolist or trying to become one. For editor's choice on the insightful side, we start out with another comment on that same post, this time from an anonymous commenter who pointed out the simple thing that makes complaints like this seem so ridiculous: Or they could block Google from hotlinking their images by simply editing their .htaccess file? Next, we've got a comment from Dave Cortright expanding on the Burr-Feinstein obsession with being "above the law": Might as well apply this template to other areas too Doctors are not above the law. When a witness dies, valuable information is irretrievably lost. So we propose a bill that requires doctors to comply with court orders to bring these witnesses back from the dead so they can be questioned. We aren't mandating how this is accomplished, only that they comply with our demands. Over on the funny side, first place goes to AnonCow for his creative reinterpretation of the transcript of senators questioning James Clapper: Senator: "How many Americans have data collected on them? Clapper: "I can't answer that question." Senator: "Why not?" Clapper: "The last U.S. census was in 2010." Senator: "The 2010 census reported a population of 308.7 million Americans." Clapper: "Ok, go with that...." In second place, we've got Jeffrey Nonken responding to Windows 10's on-air fail during a weather broadcast: The weather forecast Sunny, mild, and scattered chances of Microsoft being douche bags. GWX Control Panel FTW. For editor's choice on the funny side, we start out with a comment from NotACableShill who dropped by to double down on the alarmist rhetoric around set top boxes: Not to sound alarmist here but in addition to turning everyone to piracy, utterly destroying privacy, complete theft of the future, and forcing ethnic segregation the likes of which history has never seen, allowing 3rd party cable set top boxes will also corrupt our youth, murder puppies, resurrect Hitler and pull asteroids from the skies causing untold damage and destruction to the world that rivals the dinosaur extinction (be sure to get your tickets to Ice Age: Collision Course in theaters July 2016). If you don't want to live in a puppyless, post-apocalyptic world run by Zombie Hitler, you must side with the Cable Companies to which I am absolutely not affiliated with in any way. And last but not least, after the latest revelation of DMCA abuse being used by shifty reputation management companies, an anonymous commenter vented some frustration over continued insistences that DMCA abuse isn't a big deal: There's no proof that the DMCA is being widely abused except the article a week highlighting widespread abuse and the fact that an entire industry has sprouted up to take advantage of it in the absence of any punishments. But other than all the widespread abuse of the DMCA, there's no proof that there's widespread abuse of the DMCA. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago The ACTA saga continued this week in 2011, as things began to become quite the mess. Homeland Security complained to the USTR that ACTA was a threat to national security, while the latter was withholding a Congressional Research Service report that confirmed the agreement's highly questionable language. As was widely suspected, it was also confirmed that the US was the lone holdout refusing to release the text of ACTA, though a former DHS official was calling it a "sweetheart deal" for IP owners. Righthaven was slammed by yet another judge, even as it refused to cut its losses in a court that had previously shut down its requests. Yet despite this kind of thing getting more common, in the big picture it appeared that the shakedown schemes of most copyright trolls were working. This was also the week that Sony suffered a massive hack to the Playstation network, losing lots of personal info and bracing itself for serious consequences. Ten Years Ago A lot of this week's news in 2006 came out of the big conference on copyright at the Cato Institute, and the fact that Rep. Lamar Smith had introduced new legislation to expand the DMCA (and, because why not, some attempts to expand trademark law too). The sentencing guidelines were wacky, giving a bigger penalty to piracy than to things like assaulting a police officer or possessing child porn. We also so an attempt to require DRM on streaming music, and fun IP abuses like trying to force all Elvis impersonators to buy licenses, or the RIAA suing yet another family with no computer. Also, while Facebook was around in 2006, it's easy to forget that it was still only open to students — and this was the week it started pushing beyond that boundary. Fifteen Years Ago We saw a sad but telling story in 2001: the creators of the DRM encryption system SDMI held a contest to hack it, with the problematic clause that entrants couldn't publish their research — leading some to go ahead with it on their own terms, freaking out the folks at SDMI. This week, they threatened a professor who had succeeded and suggested he should destroy every copy of his paper; while I doubt he went so far, the threats were enough to stop him from presenting the research to anyone. The whole thing made the SDMI folks (and their RIAA friends) look really bad, but they don't seem to have learned much of a lesson from it. Techdirt also launched two new features this week in 2001. The first was something called QuickLinks, and it was mostly a disaster and removed the next day. The other was our adoption of a little something called RSS. That one fared a bit better. Two-Hundred And Sixteen Years Ago Today, it's a significant part of the government, with bizarre and highly important powers to define aspects of copyright law. But back when it was created by John Adams on April 24, 1800, the Library of Congress was only that: a library. It was given $5000 "for the purchase of such books as may be necessary for the use of Congress ... and for fitting up a suitable apartment for containing them" — which at the time translated to 740 books and three maps ordered from London. Permalink | Comments | Email This Story

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