posted 3 days ago on techdirt
When a Pennsylvania student recorded an incident of bullying and brought it to his school's administration, it kicked off a darkly farcical series of escalations, with the school calling the cops, the cops calling the attorney general, and nobody calling perspective or common sense. An anonymous commenter won most insightful comment of the week by summing it all up in a sentence: Kid gets bullied, goes to bigger bullies who then refer him to even bigger bullies. In last week's comments post, I had mentioned how infuriating it is that the rightsholder's word is so often taken as law when it comes to DMCA takedowns. That's just the tip of the iceberg though, and Loki won second place for insightful by delving below the surface: My issue with this is that in a lot of cases these claims aren't from actual rightsholder's and that these people can potentially violate MY rights whenever they feel like it without facing any of the penalties they insist I should face for doing the same. On top of that, even when they are the legal rightsholders, they like to ignore or pretend other rights I have, like fair use, simply don't exist (when they aren't trying to pay or cajole governments into actually voiding those rights) and then get upset when other people do the same to their rights. All from an industry that moved thousands of miles away so as to avoid what they felt was a totally unfair and restrictive patent system, so they could turn around and impose an equally unfair and restrictive copyright system. That sort of hubris, hyprocrisy, and arrogance is not even close to deserving of respect, but merely both of my middle fingers raised high in salute. For editor's choice on the insightful side, we head to our post about the RIAA trying to have its pre-1972 recording cake and eat it too. There were two comments on that post expanding on key related issues and exposing the broken thinking behind so much of copyright law. First up, PaulT on the fact that retroactive copyright changes make no sense: It's my opinion that copyright changes should never be applied retroactively. If the argument is that copyright encourages or even enables work to be created in the first place, then clearly the copyright terms in force at the time of creation were sufficient. The work wouldn't exist to argue over in the first place if the artist required today's copyright laws to create it.perhaps decades after his death - is just wrong. This is, of course, not the RIAA's argument, but they can't just come out and admit that they want to be able to collect huge sums of money for decades after an artist's death no matter when the recording took place. They have to play word games to pretend they have the moral high ground. As ever, "fairness" means "letting corporations make as much as possible" rather than anything that actually benefits a living human being not on the RIAA's board. Next, it's Ninja making the related point that paying people for decades-old work at all doesn't make much sense to begin with: So we are talking about songs that are at least 45 years old, right? Funny they talk about fairness. I don't see old engineers being paid continuously because structures were made based on their projects. In fact, I have yet to see a dead engineer whose estate still receives money for his/her work. You can replace engineer with any profession. Professionals usually earn money because they put their work, effort, sweat into it. Constantly. There's no reason for a 45+ yr-old song not to be in the Public Domain. Over on the funny side, we start out with our challenge to "find the fib" in some NSA statements. DannyB won first place for funny with a highly appropriate reaction to this scavenger hunt: That's like searching for a needle in a needlestack. Therefore, we need to collect all metadata. Meanwhile, the internet was abuzz this week after a bizarre discovery about Kate Mulgrew aka Captain Janeway aka that terrifying prison cook (just one more thing — aka Mrs. Columbo). She had (accidentally) lent her voice to a trailer for a documentary promoting geocentrism aka stupidity, leading G Thompson to question how such a thing was possible for anyone with a little fame: What celebrity would ever accept this stupid theory? Of course they all know that THEY are the absolute center of the universe. For editor's choice on the funny side, we start with Digger, who responded to General Mills' attempts to rope customers into bizarre legal agreements just for buying their product by drafting his own license agreement: CELA Cereal Eaters License Agreement States the following, and I tape it to every box of cereal that I eat. By allowing my CELA to stick to your box, you, the cereal provider, agree to the following terms. My agreement supersedes any and all previous agreements. My agreement can never be superseded, ever, even if forced to sign a new contract while someone holds a nuke over my head, my agreement will still be valid and enforceable over yours. My agreement allows me to sue you for over 1 quadrillion dollars if I so much as bite my cheek while chewing on your cereal, or burn my tongue if I overheat my coffee that I drink while eating your cereal. My agreement holds your corporate officers and board members fiscally and legally responsible for any and all effects of using your cereal and any activities taken while eating said cereal, no limitations apply. My agreement says that you owe me $1000.00 per bite of your cereal that I eat just to suffer through the crap you put in it. END OF AGREEMENT. THANKS FOR PLAYING. And finally, we've got a simple answer to a simple question. We asked if you'd trust the NSA's advice on fixing Heartbleed; an anonymous commenter replied: Short answer: No Long answer : Nooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooo Indeed. That's all for this week foooooooolks! Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
Here we are again with another look back in Techdirt history. Five Years Ago: As we've noted, sometimes these look backs show that nothing ever changes. For example, one of our big stories five years ago was... the NSA abusing its surveillance powers. The NY Times revealed at the time that the NSA was collecting much more information on Americans than was allowed by law. And... basically no one paid attention. Similarly, we had a story about Swedish ISP Bahnhof deleting its log files to protect the privacy of its users. And -- just a week ago, we had nearly an identical story, as Bahnhof did it again, in response to a court ruling against the EU's data retention directive (which was put in place to stop ISPs like Bahnhof from protecting users privacy like that). This was also the week five years ago that the Pirate Bay lost its big case in Sweden and Nicolas Sarkozy ramped up his efforts to pass a three strikes law. Of course, today the Pirate Bay is still going strong, and France's three strikes law has basically been killed off. Funny how these things work out. We also had stories of people trying to use the DMCA for blatant censorship, including a news station trying to hide its own mistake and activist group trying to hide its fake political campaign (using actors instead of real people). Copyright as censorship is one of those issues that never changes. Also never changing: media dinosaurs acting like dinosaurs. Five years ago was when some big names in old media announced they were going to set up an "iTunes for news." That eventually turned into Journalism Online -- a paywall company that a bunch of newspapers now use (despite paywalls still failing to do much useful). Similarly, NBC was hard at work making it difficult to watch the Olympics online. Because NBC hates the internet. Finally, we had a story of a patent troll claiming patents on basically every technology product ever and sneaky lobbyists who were hired to fight against patent reform using underhanded tricks to get "groups" that have nothing to do with patent reform (an anti-communist Hungarian group, the Minutemen (vigilante border guards), and various religious groups) to come out against patent reform. Basically, people in those groups then admitted that the lobbyists more or less tricked them into allowing their names to be used. My favorite was the 87-year old "honorary chairman" of the National Federation of American Hungarians, who had agreed to let the group's name be used but had no idea why he was against patent reform: "It was in Chicago or Detroit, I can't remember. Somebody brought this up, I don't know for what reason... So I gave them permission to use my name." And then he admitted his group was being disbanded anyway, because they were all dying, though he promised to get more information by "trying to reach the still living members of the board." Ten Years Ago: Back before there were copyright trolls like Prenda and Malibu Media shaking down people via legal threats, there was DirecTV's infamous program shaking down anyone who bought a smart card reader (even if for perfectly legal purposes). Ten years ago, we wrote about a former employee of their "anti-piracy" division speaking out about how it was all "an elaborate extortion scheme" and that he was suing the company because they forced him to do illegal and unethical things in shaking people down. Down in Australia, they were talking about making ISPs liable for copyright infringement. Yeah, some things never, ever change. Also, ten years ago was the first we wrote about California state senator Leland Yee's quixotic attempt to ban violent video games. That, of course, eventually went to the Supreme Court and got completely shot down (just like about a dozen states before it). Yee wasted a ton of taxpayer money on this moralistic campaign and -- of course -- is now facing criminal charges for arms trafficking. Then there are the more dated items that show how the world was different ten years ago. Amazon launched its A9 search engine to take down Google. We were all excited about the idea of navigation systems on phones! And they only cost $6 month! Also, people were freaking out about phones on airplanes, and a few phone makers had started testing out this ingenuous concept known as "airplane mode" to let flight attendants know the phone part wasn't on. Oh, and it was exciting to see that one-in-six Americans had used wireless internet technology. Fifteen Years Ago: People were trying to make a bundle of money by trademarking Y2K. The big trend in the computer world was ISPs giving away cheap free computers if you signed a long-term contract for internet service (such offerings were everywhere). In the era before smartphones, we were excited about the idea of "web phones." Also, people were writing off Mozilla for dead because Microsoft IE had won the browser wars. Okay, sometimes things do change. One thing that never changes though, are sketchy activity online. Fifteen years ago this week, we wrote about the sex.com domain name being stolen -- a saga that went on for many years, and an entire book was eventually written about it. Also typosquatters were hitting the scene, and people were wondering if it was trademark infringement. Also, in one of the earliest "stock scams" online, an employee of the company PairGain, created a fake webpage that looked like a story from Bloomberg news about a buyout attempt, posted it on a free Angelfire account (remember those guys?) -- and watched the stock shoot up. The employee was quickly arrested. 49 Years Ago: We weren't publishing, but that's about when Moore's Law was coined following his prediction that the number of transistors on a chip would double every 18 to 24 months. The details of the "law" have shifted somewhat over time, but the basics have held true. Of course, it was also probably 48 years ago that people started fighting over when Moore's Law was obsolete.Permalink | Comments | Email This Story

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posted 4 days ago on techdirt
As some folks know, I'm a pretty big believer in standing while you work rather than sitting. It takes a little while to get used to, but these days I greatly prefer standing. While the first few weeks are a bit difficult on your legs and (especially) feet, once you get used to it, it's pretty easy. There's definitely been a trend in sit-stand setups lately, so for this week's awesome stuff post, I thought we'd look at three new crowdfunding projects concerning standing desks. First up, is a the StandDesk -- which is a standard sit/stand alternating desk. There are lots of these on the market, though they can get a bit pricey. StandDesk's sole claim to fame seems to be that it's a lot cheaper than the competition -- which is true. It's an automated sit-stand desk going for about $400 (not including shipping). Standard automated sit-stand desks tend to be closer to $1,000 or more. When I switched to a sit-stand setup a couple years ago, I deliberately didn't buy such a desk, because it seemed to expensive. Instead, I retrofitted an existing desk with one of these. But the StandDesk definitely brings the price down. It appears people are pretty excited about this cheaper sit-stand desk as it's already raised over $350,000 (much more than its $50,000 target) with nearly a month left to go. I'm always intrigued by people trying something new and different, so the ChairBot certainly caught my eye. It's an attempt to still let people get the best of both sitting and standing, while minimizing the harms. I have no idea if there's any real science behind it, but the idea appears to be to have the chair set at your standing height, and the chair splits in two, with either side going down to remove support from one leg or the other. The end result is that you end up "standing" with one leg while "sitting" with the other. And the ChairBot has a timer, so that every so often, you're prompted to switch. The theory is that you get the better posture associated with standing, but not the fatigue that often comes with it (though, again, I've found that goes away after a short adjustment period). You kind of have to watch the video to understand how this works: While new and different ideas may be interesting, that doesn't mean they're compelling. And this one definitely falls into the not-very-compelling camp. Especially at the insane price of $2,700 (which is apparently the "early bird" price before it goes to $3,700!). You'd have to (1) really, really believe that this is a better system (2) have extra money to throw away and (3) trust that this device that you haven't tested would really work for you in order to plunk down that kind of money. So, it's little surprise that almost no one has actually done so. As I write this, only 1 person has signed up, so it seems unlikely that this project will come anywhere near the $100,000 it seeks by the project completion in two weeks. Finally, many people point out that you don't need a fancy contraption to have a standing desk. You can just pile some boxes or a shelf on an existing desk and get basically the same thing. So it's interesting to see someone trying to offer a collapsible desktop riser for exactly that purpose. Of course, I'm confused why this is a Kickstarter project, as there are tons of similar desktop risers on the market, and this doesn't appear to be new or unique in any significant way. Nor does it appear the creator put much effort at all into the campaign. It's one of the rare Kickstarter campaigns that doesn't even have a video. Given that, it's not too surprising that so almost no one seems to be interested in buying one (there's just one backer). That's it for this week. Stand up and stretch.Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
We've written a few times in the past about research done by Paul Heald on copyright and its impact on the availability of certain content. He's recently published an interesting new study on how the DMCA's notice-and-takedown regime facilitates making content available by decreasing transaction costs among parties. As we've discussed at length, the entertainment industry's main focus in the next round of copyright reform is to wipe out the notice-and-takedown provisions of the DMCA. The legacy recording and movie industries want everyone else to act as copyright cops, and hate the idea that notice-and-takedown puts the initial burden on themselves as copyright holders. However, Heald's research looks at music on YouTube and concludes that the notice-and-takedown system has actually enabled much greater authorized availability of music, by reducing transaction costs. The idea is pretty straightforward. Without a notice-and-takedown provision, someone who wants to post music to YouTube needs to go out and seek a license. Of course, getting permission from all the various rightsholders is frequently impossible. The transaction costs of getting permission make it such that it's way too high. Yet, with notice-and-takedown, the person can upload the content without permission, and then the copyright holder is given the option of what to do with it. On YouTube, that includes the option of monetizing it, thus "authorizing" the use. That creates a natural experiment for Heald to explore, in which he can see how much content is "authorized" thanks to such a setup. And the result, not surprisingly, is that this system has enabled much greater authorized (and monetized) access to music than an alternative, high transaction cost system, under which uploaders must first seek out permission to upload everything. In fact, the analysis shows a tremendous number of popular music hits from the US from 1930 to 1960 are available in what's likely an authorized (i.e., monetized) fashion, even thought nearly all of it was almost certainly uploaded by those without permission. Under the system that the RIAA and MPAA would like, this would be next to impossible. Instead, they'd want to negotiate deals first, making it nearly impossible for such works to be available, and meaning that both the availability and monetization of those works wouldn't be happening. As Heald concludes: Congress should resist calls to dismantle platforms like YouTube which take advantage of current limits on secondary liability to create a marketplace that radically reduces the high cost of negotiating over rights to music and visual content. The access YouTube provides to valuable cultural products is far from perfect, but it provides a partial solution to the problem of disappearing works, at least in the music context. In any event, no new legislative initiative should proceed in the absence of concrete data testing the claim of copyright owners that their proposals make works more, rather than less, available to the public. Permalink | Comments | Email This Story

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When we talk about the stupidity that are school-affiliated zero-tolerance policies, those stories usually revolve around an administration's inability to marry common sense with their reactions to non-issues. This can produce somewhat varied results, from really dumb stories about children being children and ending up in serious trouble, to a far more angering practice of victim-blaming. What it all boils down to, though, is an overreaction to certain tragic situations that results in bureaucratic lunacy on a level I never would have thought possible. School shootings and violence are the impetus in these cases, but we see this elsewhere as well. 9/11 resulted in the s#!*-show we know as airport security and NSA surveillance. The Boston Marathon bombing has resulted in the kind of militarized protection and media-blitzkrieg that would likely have other world nations that deal with far more terrorism shaking their heads. And, in each of these cases, we learn a simple truth that we should have seen coming all along: reactionary policies breed stupidity, corruption, and trouble. So let's get back to zero-tolerance policies in schools and witness the logical conclusion they offer: a college professor who had recently been at odds with his school's administration was just suspended for posting a picture of his child wearing a Game Of Thrones t-shirt. A popular community college professor was suspended after posting a photo of his daughter wearing an oversized T-shirt bearing a tagline from this season of Game of Thrones—Daenerys Targaryen's "I will take what is mine with fire and blood." Francis Schmidt, who teaches art and animation at Bergen Community College in New Jersey, shared the photo on Google+, where it was seen by several of his work contacts. One of them, a dean, decided the shirt was a veiled threat of some kind. In case you can't see the image, it's of Schmidt's daughter doing a handstand while wearing a Game of Thrones t-shirt that includes the tagline: "I will take what is mine with fire & blood." In case you think it's reasonable that such a picture being shared on social media could be interpreted as a threat to commit violence at a local community college, stop thinking that because that's a stupid thought. I imagine Schmidt said as much when he was called in to meet with the administration to explain why he'd sent a "threatening email", despite the fact that no email had been sent. At the meeting, Schmidt explained the shirt in the context of Game of Thrones and showed Miller that the "fire and blood" tagline has 4 million results on Google. The professor asked why his photo had caused such a reaction, and was told that "fire" could be a metaphor for "AK-47s." Schmidt was placed on administrative leave without pay later that week, and told he would have to pass a psychiatric evaluation before he could return. Now, like me, you should be even more confused. There's no way you could somehow interpret "fire" to mean "AK-47" any more than you could interpret "fire" to mean "Easter ham." They aren't related. And if you're thinking that there's so little sense being made here that there must be something more to this story, there sure as hell is. The head of the school's administration had just been delivered a vote of no confidence by the staff, including Schmidt, who had also filed a grievance recently for being denied a request for a sabbatical. You don't need to read between the lines much to understand that this is probably a trumped-up charge serving to punish a member of the teacher's union. Which brings us nicely back to my original point: it isn't just the stupid you have to worry about when it comes to zero-tolerance policies, it's also the corrupt. When we overreact to admittedly tragic occurrences, we almost invariably open up the possibility for abuse through that overreaction. Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
Maybe you're not eating meat today or perhaps planning to avoid various foods that aren't kosher for Passover. (Or you're blissfully eating whatever you want...) People follow a lot of eating guidelines based on all sorts of issues -- religious, ethical or other. There are all kinds of diets: to lose weight, to prevent high blood pressure, to save animals' lives, to kill fruits. Whatever diet suits your fancy, you might want to check out some of these stories on dietary restrictions and food beliefs. Food labels could have a placebo effect -- making your body produce more or less of a hormone called ghrelin (depending on whether or not you believe the food you just ate was high or low in calories). Body metabolism might be adjusted significantly based on how unhealthy you thought your last meal was, but it's not clear what the long term, practical effect is. [url] Can you lose weight by only eating ice cream for four days straight? Sure. And apparently, consuming almost an order of magnitude more than the recommended amount of daily saturated fat won't kill you immediately. [url] One 38yo man claims to have eaten nothing but pizza for the last 25 years. Exclusively cheese pizza, with oregano as his only added topping. Tomato sauce is a vegetable, right? [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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It's sometimes amazing to me how many organizations have so much trouble with background checks. Granted, there's a lot to look through, and you don't want to inadvertently overstep the bounds of reasonableness. That said, it seems to me it's common practice these days to at least run a name through a Google search and make sure nothing horribly damning comes up as a result. I plan on doing this with my future children, in fact, shortly after I name them, just to make sure they weren't up to any gangster crap while in the womb. Actually, given this recent story about the University of Great Falls in Montana involving their hiring of a Sports Information Director and then firing him after a local paper Googled his name, perhaps there's a business opportunity in all this. UGF, whose athletic programs compete in the NAIA, introduced [Todd] Brittingham as the school's new SID and marketing director in a news release. The Great Falls Tribune set out to learn more about him. Presumably they first searched his name. Presumably they found what anyone can find, on the first page of the search results—stories from 2012 about Brittingham pleading guilty to charges stemming from a relationship with a 16-year-old student at the Kansas high school where he was teaching and coaching. In the end, Brittingham copped a plea to endangering a child and giving alcohol to a minor in exchange for the drop of felony diddling a child charges. Justice! In any case, as you can imagine, the university wasn't terribly pleased at learning about this and fired Brittingham post-haste. Gary Ehnes, athletic director at UGF, said he was stunned by the news. He said he was the one responsible for the hire. "I'm devastated. You do a background check on a guy and figure that's going to do it. But I guess we have to go further than that," Ehnes said. Go further? No, a Google search isn't going further than a background check, a background check is going further than a Google search. You probably shouldn't move to step two until you complete step one, especially when step one is the first thing we all do before going on a first date. That's why I'm thinking of opening Timothy Geigner's Step One Background Checks. Think of the money! I can contract with unwitting public institutions to perform simple Google searches for prospective employees. Sounds ridiculous, but there's obviously a need for this service, and for once it's a business need I can actually fulfill. Capitalism, people! Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
So, we already highlighted the key information revealed and the newly unredacted version of the court's ruling in the Rehinah Ibrahim "no fly list" case (namely: that the US has a "secret exception" by which it can put people into the terrorist screening database despite no "reasonable suspicion" that they're a threat). However, seeing as we had noted some of the bizarre redactions in the original, and now that we have the unredacted version, I figured we could look at some of the more bizarre redactions now that they've been revealed. Let's start with what might have been the most hilarious redaction from the original If you can't read it, it's: Given the Kafkaesque [REDACTED] treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim [REDACTED] (always subject, of course, to future developments and evidence that might [REDACTED]). This relief is appropriate and warranted because of the confusion generated by the government's own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list. Now those redactions have been uncovered, and here's what we see (with the redacted portions in yellow): And the text version, with redacted portions underlined: Given the Kafkaesque on-off-on-list treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim that she is no longer on the no-fly list and has not been on it since 2005 (always subject, of course, to future developments and evidence that might warrant reinstating her to the list). This relief is appropriate and warranted because of the confusion generated by the government's own mistake and the very real misapprehension on her part that the later visa denials are traceable to her erroneous 2004 placement on the no-fly list, suggesting (reasonably from her viewpoint) that she somehow remains on the no-fly list. Many people rightly mocked the original version as the Kafkaesque nature of the situation appeared to be increased by that particularly hilarious looking redaction. Of course, now having seen all the redactions, we can see the true reason behind it. It appears that, despite all of this, Ibrahim is still in the Terror Screening Database (TSDB), for some secret reason, even though everyone admits she's no threat. And that secret reason is apparently unrelated to the original mistake. In other words, the purpose of all those original redactions was to misleadingly suggest that Ibrahim had been cleared from all lists, but the "on-off-on-list" aspect was actually hidden in the redacted version. Now that it's all been revealed, reading between the lines, we see that Ibrahim is only being cleared from some lists and databases, while remaining in others that likely prevent her from ever returning to the US. In other words, the redactions were created to mislead the public into believing that Ibrahim has been totally cleared, when the reality is she's still in the same basic position -- other than the fact that she now knows she's in the TSDB rather than the no fly list, which she was removed from all the way back in 2005. Still, other redactions seem equally bizarre. Take this one: The unredacted version says: Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our national security. She does not pose (and has not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism. This the government admits and this order finds. Why was that redacted? Perhaps the government thought the reasons someone might be put on the list needed to be secret? But, did anyone doubt that any of the things listed above were considered reasons why you might be put on the no fly list or the terrorist screening database? This identical redaction was done later in the ruling as well, again enforcing the idea that the government sought to hide the fact that you have to be a threat to one of those three things to be placed on the lists. But it also hid the fact that even if you were not one of those things, you can still be placed in the Terrorist Screening Database for a "secret exception" to the reasonable suspicion requirement. Another bizarre one, concerning an attempt in 2006 to have her removed from all lists: The unredacted version: In a form dated February 10, 2006, an unidentified government agent requested that Dr. Ibrahim be "Remove[ d) From ALL Watchlisting Supported Systems (For terrorist subjects: due to closure of case AND no nexus to terrorism)" (TX 10). For the question "Is the individual qualified for placement on the no fly list," the "No" box was checked. For the question, "If no, is the individual qualified for placement on the selectee list," the "No" box was checked. Can anyone explain why this was redacted? It makes no sense at all. There is also a lengthy discussion of how the US blocked Ibrahim's daughter, Raihan Binti Mustafa Kamal, from flying to the US for the trial and then lied about it. We noted how bizarre it was that Judge William Alsup's entire discussion of what happened there was redacted. Now seeing the full version, it is, once again, entirely unclear why it was redacted in the first place. The unredacted parts do show more screwups by the US, in which Homeland Security falsely flagged Kamal based on rules that are not supposed to apply to US citizens, even though she is a US citizen. In fact, it notes that Customs and Border Patrol realized in six minutes that she was a US citizen, but then there was a series of other confusions that resulted in her not being allowed to board the flight. Unfortunately, despite considerable anger on Judge Alsup's part, when all of this came out, it appears that, in the end, he did nothing about this, other than make sure that Kamal's own record in the TSDB was "updated... to reflect that she was a United States citizen." In the end, the revelation of these redactions do reveal that Ibrahim still appears to be unable to come to the US, and also suggests that the US government tried to use redactions to hide this fact -- allowing the public to believe that Ibrahim had been entirely cleared, when she had not been. It also sought to hide, as mentioned in our earlier post, that the DOJ has some "secret exception" that allows them to basically destroy someone's life, even if there's no reasonable suspicion that they're a terrorist threat of any kind.Permalink | Comments | Email This Story

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posted 5 days ago on techdirt
You would think that, at some point, people are finally going to get that there are such a things as satirical news organizations and that they're not serious in what they write. Yet it seems not a week goes by in which someone isn't either fooled by a parody story or rails against it as some kind of demonic funny-demon that ought to be outlawed. The latest to be caught up in this web of barely-veiled humorous deception is the Queen of Soul, Aretha Franklin, who has threatened to sue satirical news site News Nerd over a fictional story about Patti LaBelle opening up a can of aged whoop-ass on her. “The stories were not presented as satire or humor,” Franklin said through her publicist, Gwendolyn Quinn. “It was presented as a serious news story intended to depict me in a slanderous and derogatory way — defamation of character.” And for that, she's suggested she wants $10 million whole American dollars. The story that was not presented as satire or humor, according to Franklin, included such totally not funny or satirical lines as: Onlookers say Labelle quickly removed her wig and earrings as she approached Franklin. Aretha, knowing that the removal of earrings is a tell-tale sign that a fight is about to ensue, attempted to prepare herself for the confrontation. Franklin was quickly struck with a Mayweather style right and left and stumbled backwards, landing awkwardly. If you aren't now laughing, check yourself into the nearest mental health center and ask them what happened to your sense of humor. If you don't immediately realize that this is fictional, we, the people, politely request you promise us never to procreate and thereby poison the gene pool with your lack of basic comprehension and common sense. Or you could, you know, just check the bottom of any News Nerd page you might land upon, where it reads: The stories posted on TheNewsNerd are for entertainment purposes only. The stories may mimic articles found in the headlines, but rest assured they are purely satirical. And that should take care of that. It's worth noting that no actual law suits yet appear to have been filed, so perhaps Franklin's likely-frustrated lawyers have talked some sense into her. On the other hand, Franklin has been known in the past to demand respect, and that you think about what you're trying to do to her. Meanwhile, the story has gone viral because of course it has, countermanding her wish entirely. Permalink | Comments | Email This Story

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We already mentioned the amicus brief we submitted about the risks concerning intermediary liability (authored by lawyer Cathy Gellis) in the Garcia v. Google case. In it, we noted that the 9th Circuit had set up a page where all such filings are listed and that we planned to write about some of the other briefs. Of course Eric Goldman beat me to it, discussing all of the various amicus briefs and what they focus on. In short, though: Public Citizen's brief, submitted a while ago, focuses on whether or not an injunction against Google is appropriate, and explains why it is not. An excellent brief from EFF, ACLU, Public Knowledge, CDT, New Media Rights, American Library Association and the Association of Research Libraries covers a lot of ground in under 2,500 words, highlighting the "novel" nature of the copyright claim and its "dangerous implications." It also highlights how the focus on the potential harms to Garcia are not copyright-related harms. Finally, it notes that the gag order Kozinski ordered was unconstitutional. A bunch of news organizations, including the LA Times, the Washington Post, NPR, Scripps, Advance Publications, the California Newspaper Association, RCFP, First Amendment Coalition and DMLP, submitted a brief on both the First Amendment issues raised by the ruling, and how it might lead to news organizations being blocked from publishing newsworthy content. A separate brief from California broadcasters focused on the oddity of Kozinski's interpretation of copyright law, and how that will "create confusion." Another fantastic brief comes from a variety of tech companies, including Twitter, Automattic, Kickstarter, Facebook, Yahoo, Tumblr, eBay, Adobe, IAC, Gawker and Pinterest. It highlights how the injunction goes way beyond what the law allows, placing (again, as we noted in our brief) tremendous liability on intermediaries, such as requiring them to block all future uploads. It also challenges the gag order that was originally placed on Google as setting a very dangerous precedent. Then we have the academics. A brief from internet law professors (written by Eric Goldman and Venkat Balasubramani, but signed by many more) covers the intermediary liability issue (like ours did) and highlights how this appears to be Garcia trying to use copyright as an end-run around Section 230. Then there's a brief from IP law professors (written by Christopher Newman, Chris Sprigman and Julie Ahrens but signed by many more) focusing on the core ridiculousness of the claim that Garcia has a legitimate copyright interest in her performance. As they note: "the panel opinion in this case makes new law with corrosive implications for these foundational principles of copyright law." Netflix weighed in to point out that this creates a "new species of copyright" and would give "an effective veto right to any performer." Finally, a bunch of independent filmmakers, including the International Documentary Association, Film Independent, Morgan Spurlock and Fredrik Gertten, all submitted a brief about the "chaos" this will cause for filmmakers. The last one is especially powerful and worth reading. But those final two -- from Netflix and those indie filmmakers -- actually highlight a glaring omission: Where is the MPAA? As we noted when the original ruling came out, it was so bad and so ridiculous that it ought to have actually united Google and the MPAA on a single copyright issue. Because if it stands, both will suffer greatly. And yet, so far, the MPAA appears to be sitting this one out. Eric Goldman, in his post, speculated as to possible reasons, none of which look good for the MPAA: Noticeably absent from the amicus brief roster are the big entertainment companies, such as the major movie studios and the record labels. Given that this case involves video production, something Google/YouTube don’t know much about, where are the real experts on this topic? One possibility is that they are hubristic enough to believe that they run such a tight legal ship that they will never run into problems with the court’s holding. Another possibility is that they are spiteful enough to delight in Google’s misery, even if the rule ultimately hurts them too (i.e., the enemy of my enemy is my friend). Yet another possibility is that they are happy to free-ride on Google’s efforts, getting all the benefit of Google fixing the law without any of the financial or reputational costs of siding against Garcia or supporting a deceitful rogue film producer. Whatever the reason, I can’t say that I favorably regard their decision to stand on the sidelines as the Ninth Circuit is trying to wreck their industry. It is quite a glaring absence.Permalink | Comments | Email This Story

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Just a few days ago, we wrote about how the record labels were trying to have it both ways. That is, on the one hand, they are arguing in a variety of cases that the DMCA shouldn't apply to pre-1972 sound recordings, while also arguing against any attempt to treat pre-1972 sound recordings the same as if they were under federal copyright law. At the same time, they are claiming that it's somehow unfair that Sirius XM and Pandora aren't paying statutory licensing fees on those very same pre-1972 recordings. Having already sued Sirius XM over the issue last fall, the RIAA's record labels have now targeted a similar lawsuit at Pandora. The lawsuit itself is highly misleading, taking statements from Pandora totally out of context (the labels have a habit of doing this). The most obnoxious of these misrepresentations is the RIAA's claim that Pandora recently stated in SEC filings that there's a risk factor if the company is "required to obtain licenses from individual sound recording copyright owners for the reproduction and public performance of pre-1972 sound recordings." The RIAA presents this as if it's Pandora trying to get out of paying. But that's not what Pandora is saying at all. It's noting that because pre-1972 works are not covered by the various rates that it pays which are set by the Copyright Royalty Board, in order to secure the rates, it would need to negotiate individually with every copyright holder for the right to stream those works in every single state. But it's noting that as a risk factor -- because, as Sirius has pointed out in its own response to the similar lawsuit, decades have gone by and the labels have never been asking for licenses for performances of pre-1972 works. And those works have been used for years, license free, by TV and radio broadcasters, bars, restaurants and a variety of other places. The real risk is that Pandora, which has relied on the fact that it can take compulsory rates, would then suddenly have to negotiate with everyone, which would be a massive headache. And this is the mess caused by the weird way in which pre-1972 sound recordings are treated. Again, those works are not covered by federal copyright laws, which include specific rights over performances of works, which was something of a new concept when it was added to federal copyright law. The various state laws that these works are covered by are generally common law concepts around misappropriation and unfair competition. So the big question is whether or not "performing" a work falls under such common law concepts. Historically, these claims were mostly focused on making unauthorized copies. Performing the work has generally been considered a separate issue. This makes it a bit questionable that the RIAA is now suddenly seeking to reinterpret a big swath of history around how those works were legally used -- which also raises a concern about "laches" or how timely these lawsuits are. The RIAA has had decades to complain about these practices, and is just doing so now... And, of course, remember that this is all happening just a month or so after the publishing arms of the very same labels were found to have been colluding unfairly to jack up Pandora's rates. Basically, the legacy recording industry players are now looking for just about any way possible to make Pandora pay even more. This isn't a surprise. It's how the industry has always worked. When they're struggling to figure out ways to make money, they look at anyone successful and assume it's their fault that the legacy players are making less money. So, rather than innovating, they try to find legal ways to force more money out of the innovators and into their own hands. This is just the latest example in a very long line of such cases.Permalink | Comments | Email This Story

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Three years ago when the Supreme Court ruled in AT&T Mobility v. Concepcion, basically allowing binding arbitration clauses in contracts to exclude class action suits, we noted that it was an unfortunate pitting of a broken class action system against a broken arbitration system. Both arbitration and class action lawsuits may have some good features -- and the concepts behind each sound good, but both have been abused to extreme levels. On the class action side, often these lawsuits have little to do with righting wrongs, and very much to do with big paydays for lawyers (and some companies even turn class action lawsuits into marketing opportunities). On the arbitration side, while the theory of having a neutral third party settle the dispute without having to go through an expensive litigation process certainly sounds good, the reality is quite different. Since arbitrators are hired, and large companies are frequent employers, arbitrators have very strong incentives to side with those companies, in order to make sure they'll be hired in the future. When you have one party who is likely to be a frequent employer, and another who will only engage in the transaction once, guess where the bias is going to fall. And, indeed, multiple studies have shown that's exactly what happens. In one case 94% of rulings went against consumers. Another study showed that companies that regularly use arbitration get higher awards. So neither side in that fight necessarily could be said to "represent the good guys." However, as we noted when the Supreme Court ruling came out, it seemed likely that this would lead to companies putting arbitration clauses absolutely everywhere. At the time, we suggested a simple fix: have Congress make it clear that you can't give up your right to go to court based on a non-negotiated contract. And that still seems to make sense, but of course, nothing has actually been done. It should come as little surprise, then, that the prediction of seeing companies put arbitration clauses absolutely everywhere is happening -- and to ridiculous levels. The NY Times has an article about how General Mills, makers of Cheerios, Chex and lots of other cereals, has updated some legalese on their own website to basically say if you do absolutely anything related to its cereals -- including liking them on Facebook, or buying them -- you give up your right to go to court and are agreeing to arbitration: General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways. Instead, anyone who has received anything that could be construed as a benefit and who then has a dispute with the company over its products will have to use informal negotiation via email or go through arbitration to seek relief, according to the new terms posted on its site. In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms. While one might argue that you get what you deserve when you "like" a cereal on Facebook, this still seems ridiculous and excessive. I can almost see the sense of saying if it's in a binding contract you sign as a subscriber (e.g., mobile phone service) such a clause can be considered legit, but something like this, which isn't even "clickwrap" but more "likewrap" can't possibly be legally binding. Not only has the person probably not read the details, from what's being said, this "binding arbitration" clause may appear on a website they've never visited at all. I can't see how that can or should be considered a true contract in any sense of the word.Permalink | Comments | Email This Story

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The Heartbleed computer security bug is many things: a catastrophic tech failure, an open invitation to criminal hackers and yet another reason to upgrade our passwords on dozens of websites. But more than anything else, Heartbleed reveals our neglect of Internet security. The United States spends more than $50 billion a year on spying and intelligence, while the folks who build important defense software — in this case a program called OpenSSL that ensures that your connection to a website is encrypted — are four core programmers, only one of whom calls it a full-time job. In a typical year, the foundation that supports OpenSSL receives just $2,000 in donations. The programmers have to rely on consulting gigs to pay for their work. "There should be at least a half dozen full time OpenSSL team members, not just one, able to concentrate on the care and feeding of OpenSSL without having to hustle commercial work," says Steve Marquess, who raises money for the project. Is it any wonder that this Heartbleed bug slipped through the cracks? Dan Kaminsky, a security researcher who saved the Internet from a similarly fundamental flaw back in 2008, says that Heartbleed shows that it's time to get "serious about figuring out what software has become Critical Infrastructure to the global economy, and dedicating genuine resources to supporting that code." The Obama Administration has said it is doing just that with its national cybersecurity initiative, which establishes guidelines for strengthening the defense of our technological infrastructure — but it does not provide funding for the implementation of those guidelines. Instead, the National Security Agency, which has responsibility to protect U.S. infrastructure, has worked to weaken encryption standards. And so private websites — such as Facebook and Google, which were affected by Heartbleed — often use open-source tools such as OpenSSL, where the code is publicly available and can be verified to be free of NSA backdoors. The federal government spent at least $65 billion between 2006 and 2012 to secure its own networks, according to a February report from the Senate Homeland Security and Government Affairs Committee. And many critical parts of the private sector — such as nuclear reactors and banking — follow sector-specific cybersecurity regulations. But private industry has also failed to fund its critical tools. As cryptographer Matthew Green says, "Maybe in the midst of patching their servers, some of the big companies that use OpenSSL will think of tossing them some real no-strings-attached funding so they can keep doing their job." In the meantime, the rest of us are left with the unfortunate job of changing all our passwords, which may have been stolen from websites that were using the broken encryption standard. It's unclear whether the bug was exploited by criminals or intelligence agencies. (The NSA says it didn't know about it.) It's worth noting, however, that the risk of your passwords being stolen is still lower than the risk of your passwords being hacked from a website that failed to protect them properly. Criminals have so many ways to obtain your information these days — by sending you a fake email from your bank or hacking into a retailer's unguarded database — that it's unclear how many would have gone through the trouble of exploiting this encryption flaw. The problem is that if your passwords were hacked by the Heartbleed bug, the hack would leave no trace. And so, unfortunately, it's still a good idea to assume that your passwords might have been stolen. So, you need to change them. If you're like me, you have way too many passwords. So I suggest starting with the most important ones — your email passwords. Anyone who gains control of your email can click "forgot password" on your other accounts and get a new password emailed to them. As a result, email passwords are the key to the rest of your accounts. After email, I'd suggest changing banking and social media account passwords. But before you change your passwords, you need to check if the website has patched their site. You can test whether a site has been patched by typing the URL here. (Look for the green highlighted " Now Safe" result.) If the site has been patched, then change your password. If the site has not been patched, wait until it has been patched before you change your password. A reminder about how to make passwords: Forget all the password advice you've been given about using symbols and not writing down your passwords. There are only two things that matter: Don't reuse passwords across websites and the longer the password, the better. I suggest using password management software, such as 1Password or LastPass, to generate the vast majority of your passwords. And for email, banking and your password to your password manager, I suggest a method of picking random words from the Dictionary called Diceware. If that seems too hard, just make your password super long — at least 30 or 40 characters long, if possible. Republished from ProPublica Permalink | Comments | Email This Story

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Over the past few months, we covered the bizarre trial concerning Rahinah Ibrahim and her attempt to get off the no fly list. In January, there was an indication that the court had ordered her removed from the list, but without details. In February, a redacted version of the ruling revealed that the whole mess was because an FBI agent read the instructions wrong on a form and accidentally placed her on the no fly list, though we noted that some of the redactions were quite odd. However, earlier this week, the court finally released the unredacted version, and we'll have a few things to say about the choice of redactions in a later post. But first, there were three main "reveals" from the newly unredacted version. The first is that Ibrahim was actually put on multiple lists by mistake (and never for any clear reason) and was actually dropped from the no fly list years ago (though the other lists created the same effective problem in barring her from being allowed to travel to the US). The second is that the US government has a "secret exception" to the requirement that there be "reasonable suspicion" to put someone in various terrorist databases, and that secret exception was later used on Ibrahim. And third, that despite the implications from the redacted versions, the fully unredacted ruling shows that Ibrahim is still likely blocked from coming to the US for separate undisclosed reasons, even though the government fully admits that she is no threat. All of these things were hidden by the redacted version. Let's start with the first issue -- that Ibrahim was not just on the no fly list, but multiple other lists and databases. This all stemmed (at first) from that initial mistake from FBI Agent Kevin Michael Kelley. The yellow highlighted portions on this form were redacted in the original version, but now they're public: As you can see, Agent Kelley was supposed to be checking which lists NOT to put Ibrahim on, and did the reverse of what he intended to do, meaning that she got placed on both the no fly list and the Interagency Border Information System (IBIS). In the redacted version, all mentions of IBIS were redacted. Note that, from this, Kelley did intend to put her on the Selectee list. Later, an unredacted portion reveals that at the time she was removed from that selectee list, she was added to the lists the US gives to Australia and Canada (TACTICS and TUSCAN -- though no reason for that was ever provided). The court also notes that all the way back in 2006, a government agent requested that Ibrahim be removed from all lists, and she was removed from some, but not the others. However -- and here's where it gets really sketchy -- the government started putting her back into the terrorist screening database (TSDB). She was added back in 2007... and then removed three months later, for no clear reason. But then, in 2009 she was added back to the TSDB "pursuant to a secret exception to the reasonable suspicion standard." Let's repeat that. In order to be put into the TSDB, the government is required to show a "reasonable suspicion" that the person is a terrorist. However, what this court ruling has revealed is that there is an unexplained secret exception that allows people to be placed on the terrorist screening database even if there's no reasonable suspicion, and the government used that secret exception to put Ibrahim back on the list. Later in the ruling it notes that the terrorist screening center knows Ibrahim is not a terrorist threat. This line was revealed back in February: The TSC has determined that Dr. Ibrahim does not currently meet the reasonable suspicion standard for inclusion in the TSDB. However, the next two sentences were redacted until now: She, however, remains in the TSDB pursuant to a classified and secret exception to the reasonable suspicion standard. Again, both the reasonable suspicion standard and the secret exception are self-imposed processes and procedures within the Executive Branch. The ruling also makes it clear that Ibrahim has not been on the actual no fly list (even if she is on other lists) since 2005, and that she should be told this (and, indeed, to comply with the law, the government has now told her solely that she's not on the "no fly" list and hasn't been since 2005). It also tells the government to search for all traces of her being on all such lists and correct all of those that are connected to Agent Kelley's initial mistake. However, it's not at all clear if this applies to the later additions to the TSDB, which was done for this secret and undisclosed exception, and might not be directly because of Agent Kelley's mistake (though, potentially is indirectly because of that). In fact, a different unredacted section now says that the reasons why Ibrahim was denied a visa (which were revealed to the court in a classified manner) were valid, and thus it appears that Ibrahim will still be denied visas in the future (unredacted portions underlined) -- and, indeed, as we explain below that has already happened: The Court has read the relevant classified information, under seal and ex parte, that led to the visa denials. That classified information, if accurate, warranted denial of the visa under Section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B). (That information was different from the 2004 mistaken nomination by Agent Kelley.) Therefore, under the state secrets privilege, any challenge to the visa denials in 2009 and 2013 must be denied Thus, it appears that while Ibrahim has been told she's been taken off the no fly list (and has been for nearly ten years), she's still not going to be able to travel to the US, because she's still in the TSDB for an unrevealed secret reason -- even though everyone admits she's not a threat. And, indeed, Ibrahim tried to apply for a visa to the US on Monday and was denied (with the apparent reason -- if you read between the lines -- being that she is related to someone "engaged in a terrorist activity.") Either way, what sort of country is this where there's a secret exception to "reasonable suspicion" that will put you on a set of secret lists that get you treated like a terrorist for wanting to travel?Permalink | Comments | Email This Story

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One of the most high profile victims of the Heartbleed vulnerability was the Canadian tax service, Canada Revenue Agency, which shut down its online tax filing offering. A few days later, the agency admitted that about 900 Canadians had information copied from the site via someone exploiting the vulnerability, prior to the site being shut down. And, from there, it was just a day or so until it was reported that a teenager, Stephen Arthuro Solis-Reyes, had been arrested for the hack. Given the speed of the arrest, it would not appear that Solis-Reyes did very much to cover his tracks. In fact, reports say he did nothing to hide his IP address. He's a computer science student -- and his father is a CS professor, with a specialty in data mining. It seems at least reasonably likely that the "hack" was more of a "test" to see what could be done with Heartbleed and (perhaps) an attempt to show off how risky the bug could be, rather than anything malicious. It will be interesting to see how he is treated by Canadian officials, compared to say, the arrests of Aaron Swartz and weev.Permalink | Comments | Email This Story

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Yesterday we, like many, were perplexed by Ed Snowden's decision to go on a Russian television program, and to ask Vladimir Putin a question about whether or not the Russians do mass surveillance like the NSA does (which was, of course, exposed by Ed Snowden). It was clearly playing into Putin's propaganda efforts, because Putin immediately took the opportunity to insist that no, Russia does not do mass surveillance like that. Of course, Putin's answer was not true. Many of Snowden's detractors immediately jumped on this as an example of how he was working for the Putin propaganda machine -- and many (including us), wondered if he was, at the very least, pressured to play a role in order to keep his temporary asylum. Others thought he was just being naive. Some Snowden supporters, however, insisted that we should hear him out, and see if there was some more specific motive behind his question. Apparently, we didn't have to wait long. Snowden himself has now directly called Putin out for lying about Russian surveillance, and said that his question was designed to act similar to Senator Ron Wyden's now famous question to James Clapper, leading to Clapper's lie, which (in part) sparked Snowden's decision to finally release the files he'd been collection. Snowden, writing in the Guardian, explained: On Thursday, I questioned Russia's involvement in mass surveillance on live television. I asked Russia's president, Vladimir Putin, a question that cannot credibly be answered in the negative by any leader who runs a modern, intrusive surveillance program: "Does [your country] intercept, analyse or store millions of individuals' communications?" I went on to challenge whether, even if such a mass surveillance program were effective and technically legal, it could ever be morally justified. The question was intended to mirror the now infamous exchange in US Senate intelligence committee hearings between senator Ron Wyden and the director of national intelligence, James Clapper, about whether the NSA collected records on millions of Americans, and to invite either an important concession or a clear evasion. (See a side-by-side comparison of Wyden's question and mine here.) Clapper's lie – to the Senate and to the public – was a major motivating force behind my decision to go public, and a historic example of the importance of official accountability. From there, he explains why he thinks Putin was lying, and how he expects this to now be exposed in Russia, as it was in the US: In his response, Putin denied the first part of the question and dodged on the latter. There are serious inconsistencies in his denial – and we'll get to them soon – but it was not the president's suspiciously narrow answer that was criticised by many pundits. It was that I had chosen to ask a question at all. I was surprised that people who witnessed me risk my life to expose the surveillance practices of my own country could not believe that I might also criticise the surveillance policies of Russia, a country to which I have sworn no allegiance, without ulterior motive. I regret that my question could be misinterpreted, and that it enabled many to ignore the substance of the question – and Putin's evasive response – in order to speculate, wildly and incorrectly, about my motives for asking it. The investigative journalist Andrei Soldatov, perhaps the single most prominent critic of Russia's surveillance apparatus (and someone who has repeatedly criticised me in the past year), described my question as "extremely important for Russia". It could, he said, "lift a de facto ban on public conversations about state eavesdropping." Snowden also pointed out the remarkably similar response from Putin and Obama when asked about their domestic surveillance programs, and noted that he expects the Russian press to finally start challenging Putin on this assertion. When this event comes around next year, I hope we'll see more questions on surveillance programs and other controversial policies. But we don't have to wait until then. For example, journalists might ask for clarification as to how millions of individuals' communications are not being intercepted, analysed or stored, when, at least on a technical level, the systems that are in place must do precisely that in order to function. They might ask whether the social media companies reporting that they have received bulk collection requests from the Russian government are telling the truth. Finally, he notes that his position continues to remain entirely consistent: I blew the whistle on the NSA's surveillance practices not because I believed that the United States was uniquely at fault, but because I believe that mass surveillance of innocents – the construction of enormous, state-run surveillance time machines that can turn back the clock on the most intimate details of our lives – is a threat to all people, everywhere, no matter who runs them. Last year, I risked family, life, and freedom to help initiate a global debate that even Obama himself conceded "will make our nation stronger". I am no more willing to trade my principles for privilege today than I was then. I understand the concerns of critics, but there is a more obvious explanation for my question than a secret desire to defend the kind of policies I sacrificed a comfortable life to challenge: if we are to test the truth of officials' claims, we must first give them an opportunity to make those claims. I don't think many people -- other than perhaps the most diehard Snowden supporters -- expected something quite like this. For months, many Snowden detractors have repeatedly criticized Snowden for not speaking out against Russian authoritarianism and surveillance. Many of us have felt that those criticisms were significantly off-base, in part because that wasn't Snowden's particular fight (nor did he have any unique knowledge of Russian surveillance, as he did with the US). It seemed like a stupid false equivalency to try to make Snowden look bad. And when he asked his question to Putin, some people argued that this showed he was actually "questioning" Russian surveillance. Except that the TV question felt like such a softball, so designed to allow Putin to spin some propaganda that this didn't really seem like Snowden challenging anything. However, this latest response suggests that Snowden is (once again) playing a game where he's several moves ahead of many folks. The question may have set up a propaganda answer, but it appears there was a bigger strategy behind it -- and one that remains entirely consistent with what Snowden has claimed his position has been since the beginning. Frankly, while this possibility was raised about his original question to Putin, many people (myself included) thought it was unlikely that Snowden would so directly go after his current hosts (who only became his hosts thanks to the US pulling his passport). Putin is not known for gracefully handling those who directly challenge him, and I don't think it would be surprise anyone if Snowden had continued to stay out of the question of Russian surveillance, simply out of basic necessity. Snowden, however, has said from the beginning, that this story has never been about him, and he accepts that the end result of his starting the process may not be good for himself. He's made it clear that he was willing to effectively sacrifice himself to get this debate going -- and having done it once, he apparently has decided he can do it again in another context. While I was confused by this move 24 hours ago, I'll admit it was because I never thought Snowden would go this far (and so quickly) to criticize Russia while he was there. Already, given what Snowden did in releasing the NSA documents, he's shown that he's much braver (and in many ways, patriotic to the public) than just about anyone. In now questioning --and then calling BS on Putin's answer -- he's shown that bravery was not a one time thing, but a position he intends to live by going forward. Snowden likely made a lot more powerful enemies today -- including more who could make life very uncomfortable for him very soon. But he also showed why the public, around the globe, owes him an incredibly large debt of gratitude, one which it's unclear we'll ever be able to pay off.Permalink | Comments | Email This Story

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As we draw near to the conclusion of TAFTA/TTIP's first year of negotiations, the detailed differences are starting to emerge between the US and EU. But one thing they both take for granted is that it's a good idea. "Good" in this context is essentially about money: the argument is that concluding a trade deal between the US and EU will boost both their economies, increase companies' profits, create employment and generally make people better off. Of course, since all of those are in the future, the only way to justify those kind of claims is to model the likely effects of TTIP on the various economies -- of the US, EU and rest of the world. That's precisely what a study entitled "Reducing Transatlantic Barriers to Trade and Investment; An Economic Assessment" aimed to do (pdf). Although it's not the only study, it's indubitably the most quoted -- its figures crop up in most articles about the benefits of TAFTA/TTIP. That's largely because it was paid for by the European Commission, and therefore forms the "official" predictions of the benefits that are likely to flow from the agreement: An ambitious and comprehensive transatlantic trade and investment agreement could bring significant economic gains as a whole for the EU (€119/$165 billion a year) and US (€95/$131 billion a year). This translates to an extra €545/$750 in disposable income each year for a family of 4 in the EU, on average, and €655/$910. Usually, those figures are repeated without further comment or analysis. That's unfortunate, because there are a number of important assumptions behind them. For example, the use of the phrase "ambitious and comprehensive" is no mere rhetorical flourish: it refers to the most optimistic scenario considered in the study -- in other words, the best-case outcome. Significantly, it not only assumes that all remaining tariffs will be removed -- since these are already low (around 4%), the benefit from doing so is slight -- but also many "non-tariff barriers", economist-speak for regulations and standards. Of course, what industry regards as "barriers", citizens may see more as protections. The other fact that is almost never mentioned is that the Commission's figures quoted above all refer to 2027, and are the predicted gains from TAFTA/TTIP after it has been in place for 10 years. Leaving aside the difficulty of predicting the US and EU economies in 2027, it also means that the claimed increases in GDP -- 0.39% for the US, and 0.48% for the EU -- are cumulative gains over ten years, and amount to less than 0.05% extra GDP added per year. Those figures not only refer to the "ambitious and comprehensive" scenario -- in other words, they are an upper bound on what is likely to be obtained -- but also fail to take into account key costs associated with the changes that TAFTA/TTIP would bring about. It's perhaps not surprising that the European Commission's own analysis does not include these -- after all, they reduce the already-small benefits yet further. But clearly, in considering whether to proceed with TTIP, politicians and the public need to have the full picture, and that includes the likely costs as well as the likely benefits. Fortunately, estimates for those costs have now been produced in some new research. It has been commissioned by the Confederal Group of the European United Left/Nordic Green Left (GUE/NGL) political group in the European Parliament. That group has an obvious political agenda, but then so does the European Commission. What's important is to have a range of analyses of the benefits and costs of TAFTA/TTIP so as to be able to form an overall, independent opinion drawing on them all. The report "Assessing the Claimed Benefits of the Transatlantic Trade and Investment Partnership (pdf) offers a critical analysis not just of the European Commission's study, but of three others too. It examines their underlying econometric models in great detail to expose the assumptions made and data used. Here's its summary: All of the four scrutinized studies report small, but positive effects on GDP, trade flows and real wages in the EU. GDP and real wage increases are however estimated by most studies to range from 0.3 to 1.3 %, even in the most optimistic liberalization scenarios. These changes refer to a level change within 10 to 20 years (!), annual GDP growth during this transition period would thus amount to 0.03 to 0.13 % at most. That confirms that the very low GDP boost from TTIP, as predicted by the European Commission's study, is also a feature of the others. That's interesting for economists, but for non-specialists the new report's chief virtue is that for the first time it estimates the likely costs of TTIP. It points out that there are several major classes of these, largely ignored in the four studies considered: Adjustment costs are mostly neglected or downplayed in the TTIP studies. This refers in particular to macroeconomic adjustment costs, which can come in the form of (i) changes to the current account balance, (ii) losses to public revenues, and (iii) changes to the level of unemployment. These are costs associated with the changes brought about by TAFTA/TTIP. For example, removing tariff barriers necessarily reduces the income received by governments; the GUE/NGL study considers this in various scenarios, and comes up with a cost over 10 years of around €30/$40 bn for the EU economy. Costs are not calculated for the US, unfortunately, but it is likely that a similar figure would apply there too. There are also significant labor adjustment costs, as some industries take on new workers, while others make them redundant. The report estimates these at around €10/$14 bn over the first ten years of TTIP. There will also be concomitant losses as a result of lower income tax and social security contributions from those who lose their jobs -- another €7/$10 bn. That makes a total of €47/$64 bn. On top of that, there are two other important classes of costs. One is those arising out of corporate sovereignty payments. These can reach billions of euros/dollars per award, and are likely to become common given that there are 75,000 companies that could use an ISDS chapter in TTIP to sue the US or EU. The amount potentially involved is hard to quantify at this stage, as are the associated "social costs" of removing non-tariff barriers: the elimination of [non-tariff barriers] will result in a potential welfare loss to society, in so far as this elimination threatens public policy goals (e.g. consumer safety, public health, environmental safety), which are not taken care of by some other measure or policy. Though subject to considerable insecurity, these types of adjustment costs might be substantial, and require careful case-by-case analysis. As we will see in the following, although the social costs of regulatory change are of particular relevance for the analysis of TTIP because of its emphasis of regulation issues, they have not been dealt with properly by the four scrutinized TTIP studies. In other words, the cost of removing or harmonizing regulations and standards is not fully included in the calculation of whether TAFTA/TTIP is worth pursuing. Once again, that reveals that TTIP is currently seen purely through the optic of business -- whether profits are increased, not whether society must pay a corresponding, or even higher, price to make that possible. While some will doubtless argue about the details of the new GUE/NGL analysis, it has the valuable function of reminding us that TAFTA/TTIP is not just about corporate profits, but also concerns the 800 million people who make up the citizenry of the US and EU. Until they are included in the equation, and their potential losses and gains factored in, any claims about TTIP's "benefits" -- even the tiny ones that the European Commission's analysis comes up with in its "ambitious and comprehensive" agreement -- must be regarded as simplistic, one-sided and incomplete. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Last month, Tim Cushing wrote about how the Lt. Gov. of Louisiana, Jay Dardenne, had sued Moveon.org over a billboard that used the state's trademarked "Pick your passion!" slogan. The suit was filled with so much technicality-probing nonsense, one wondered how a judge would be able to look through it without needing a couple of long naps. Chief among the claims was that folks seeing the billboard might somehow think the Lt. Governor was responsible for criticizing the Governor, Bobby Jindal, despite the fact the billboard wasn't meant for commercial purposes, criticized the same government Dardenne is a part of, and clearly denotes the responsible party as Moveon.org. It seemed like a pretty clear attempt to stifle criticism over the technicality of a frivolous trademark claim. More egregious, Dardenne wanted the billboard removed while the case was litigated. Fortunately, while we hear so many stories like this that end up with courts being overprotective of any intellectual property claim, the court has sided with free speech and ruled the billboard will stay up while the trademark claim makes its way through the court. U.S. Judge Shelly D. Dick, who is over seeing the case, said in an April 7 ruling that forcing the group to take down the sign while the trademark infringement issue is being litigated would deny MoveOn.org its right to free political speech. Dick said while the State of Louisiana’s tourism trademark is a legally protectable mark, the burden of proving trademark infringement is on the state which would have to present more compelling information that the infringement was occurring especially because the billboard was merely expressing a point of view. “The State argues that viewers of the billboard will be confused into thinking that the Lieutenant Governor, as the alleged owner of the service mark, is being critical of the Governor. In this Court’s view, the Lieutenant Governor underestimates the intelligence and reasonableness of people viewing the billboard,” Dick’s ruling states. It's an interesting distinction in the ruling, since to disagree would put Dardenne in the uncomfortable position of suggesting his own constituents aren't as intelligent as Judge Dick thinks. In any case, the ruling goes on to note that its the actual citizens of Louisiana that would get to claim ownership of the trademarked slogan, rather than any individual members of the state's government who were the billboard's actual targets, and that no irreparable harm had been proven. So the billboard stays up and the justice system proves it thinks more of the citizens of Louisiana than some in the state's own government. Meanwhile, a small single billboard continues to find its way into the media spotlight, where it likely never would have found any purchase if the attempt to take it down hadn't been made. Well done all around, Lt. Governor! Permalink | Comments | Email This Story

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Some biblical characters lived for hundreds of years. (eg. Methuselah lived to be 969.) However, people living now don't quite get that old. Aging is a mysterious process that is slowly killing everyone, and there are more than a few projects working on ways to avoid death. Immortality could be a blessing or a curse, and maybe someday we'll find out which it is. Suspended animation is a real medical procedure, and some techniques are being tested in emergency rooms. The FDA has approved a procedure that will be used at UPMC Presbyterian Hospital to replace near-fatal patients' blood with a cold saline solution. The process stops the patient's body from doing normal things like breathing, but patients can be revived hours later from a death-like state. [url] The Methuselah Foundation has a few projects to develop regenerative medicine that might allow people to live longer, healthier lives. Regrowing organs, developing custom chemotherapies based on a patient's DNA, and studying long-lived animals could help extend human lifespans. [url] Google funded an anti-aging startup in 2013 called Calico. Larry Page noted at its launch that "curing cancer" might not be a good enough goal because death might only be delayed a few years, even with a cure for cancer. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Let's lay out a couple of things we know. First, trademark is one of the better IP laws out there, ostensibly designed to limit customer confusion between brands (though it's still open to significant abuse). We also know that Nike, maker of all things apparel, firmly believes in the strongest of protections against anyone infringing on any of their intellectual property. We also know that Nike firmly believes that limits on copying sure as hell don't apply to Nike. But I'm not sure we knew just how brazen they could be. Such appears to be the case when Nike decides to just blatantly use someone else's trademark of which they were absolutely aware. Former San Diego Chargers linebacker Shawne Merriman is suing athletic equipment giant Nike in San Diego federal court, alleging unfair competition and trademark infringement of his "Lights Out" brand. The suit, filed by Merriman's company, Lights Out Holdings, LLC, demands immediate injunctive relief to stop Nike's alleged actions, plus millions of dollars in damages. Merriman said he holds the federal trademark for the "Lights Out" brand on a Nike clothing line, which includes a broad range of apparel for men, women and children. We deal a lot with frivolous trademark threats and suits that never appear to amount to much of the customer confusion the law is supposed to address, but this doesn't appear to be one of those cases. We're dealing with Nike using the mark, which Merriman holds, on similar sports apparel and clothes. Merriman is a sports figure whose company produces a clothing line. What makes this most egregious is that Nike was quite aware of the mark. In late 2006 or 2007, according to the lawsuit, Nike entered into negotiations with Merriman for a "Lights Out" line of apparel. Negotiations between Merriman and Nike were unsuccessful but "after these discussions Nike decided to use the `Lights Out' clothing brand anyway," the suit alleges. How nice of them. I'm sure they would look quite kindly on anyone who decided to just appropriate their infamous swoosh. Hypocrisy, thy name is Nike. Permalink | Comments | Email This Story

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Eli Lilly bet its entire business model on patents years back, rather than on creating useful products that people want to buy. Lately it's been having trouble getting new patents, and is reacting extremely poorly to the fact that its last-gasp efforts to get new patents aren't working. As we've noted, a few years back, Canada rejected some patent applications for some Eli Lilly drug after the Canadian patent board "determined that the drug had failed to deliver the benefits the firm promised when obtaining the patent." In other words, after realizing that the drug is not useful, Canada rejected the patent. And Eli Lilly flipped out. Eli Lilly has sued Canada for $500 million claiming "lost profits." How is this possible, you ask? Well, it's those corporate sovereignty provisions that are finding their way into various trade agreements lately. They're usually called "investor state dispute settlement" (ISDS) provisions, because supporters know that such a phrase will bore most people to death and they won't realize what's happening. Eli Lilly is arguing that Canada's decision to check to see if a drug is actually useful somehow violates its international agreements. And thus that a sovereign decision by Canada not to patent drugs of questionable benefit is not just a violation of trade, but stomping on Eli Lilly's expected profits. Lilly is now raising the stakes. Not only has it asked the USTR to put Canada back on the wacky "Special 301 list" of "naughty countries" that don't bow before American corporate demands, but it's convinced 32 members of Congress to out themselves as corporate shills for Eli Lilly by demanding that the USTR follow through on this request. Eli Lilly seems to have no shame about this, happily admitting that it's behind this effort to have the US punish Canada for daring to judge whether or not a drug is useful. As he told the Wall Street Journal: “We’ve been unsuccessful in bringing about change by other means,” said Lilly chief executive John Lechleiter. “It’s an issue right at our back door. And unfortunately, we’re afraid it can lead to other countries attempting to undermine intellectual property.” No, not "undermine intellectual property." It's about actually making sure, before giving you a decades-long monopoly right, that your drug is actually useful. Of course, if the USTR actually follows through and puts Canada on the Special 301 list, it will just cement what a complete joke the Special 301 list really is. For years, the USTR -- at the behest of Hollywood -- put Canada on the Special 301 list. Each year Canadian officials would specifically state that they "don't recognize" the process of the Special 301 list as being legitimate (because it's not) and then proceed to do nothing. Eventually, though, with a new government in place, Canada did change its copyright laws, and was "downgraded" on the Special 301 list. Upgrading them back up to a "pirate" nation will just highlight why Canada (and every other country) should totally ignore the nearly entirely arbitrariness of the list. Meanwhile, shame on those 32 members of Congress for supporting such a blatant attempt by a company to interfere in the sovereignty of Canada and its crazy idea that drugs should actually be useful to deserve patent protection.Permalink | Comments | Email This Story

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There may have been a time in the past few years when you'd have sworn DRM was on its way out the digital door. Between free-to-play games, strong consumer feedback, and the overall failure of DRM to actually stop anyone actually interested in pirating games, movies or music, there just didn't seem to be much point any longer. With the advent of new crowdfunding business models, DRM made even less sense. But not only is DRM still around, legacy players using it are actually torpedoing otherwise useful leaps forward in business in story after story. And, despite the fact that some entrenched industry players are wising up to the futile nature of DRM, others are digging in their heels. Such appears to be the case with Square Enix, the game producer responsible for such franchises as Final Fantasy. Square says DRM is here to stay, despite all of its problems. Adam Sullivan, Square Enix America’s Senior Manager of Business and Legal Affairs, informs TorrentFreak that the company’s choice to include DRM in its products has its roots in a simple concept – maximizing revenue. “We have a well-known reputation for being very protective of our IPs, which does deter many would-be pirates,” Sullivan adds. “However, effectiveness is notoriously difficult to measure — in short, we rely on the data available to us through our sales team and various vendors, along with consumer feedback.” It's an interesting comment, in that it doesn't make a great deal of sense. The consuming public is notoriously anti-DRM, all the more so assuming Square Enix is primarily listening to the feedback of actual customers. Why would they be in favor of DRM? They're already paying. As for the feedback of the sales and vending partners, I assume it's no secret to them how laughably easy it is for anyone interested to circumvent DRM and pirate simple games if they're so inclined. Here's the amazing thing: most people aren't so inclined. Assuming a product is of a certain quality, priced to meet customer demand, and convenient to purchase, most people aren't interested in pirating these items. I know this because, as already stated, piracy isn't that tough, yet Square makes a great deal of money. “The key to DRM is that it can’t interfere with the customer’s ability to play the game,” Sullivan says. “It’s not uncommon for people to get a new computer every few years, or to have multiple computers. Sometimes they don’t have reliable internet connections. There’s no perfect solution yet.” Sure, but such imperfections only effect paying customers, which is the entire problem. There isn't a single pirate out there jumping through your DRM obstacle course, or finding themselves unable to jump through it. Just the paying customers. And Square's reaction to this? “This depends on your definition of DRM, but generally yes — I think DRM will be essential for the foreseeable future,” Sullivan explains. Essential isn't the word you're looking for. The correct word would be futile. But, hey, go on throwing those obstacles up for your customers while the pirates walk around them; I'm sure that will work out well in the long run. Permalink | Comments | Email This Story

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In the ongoing attempts to deal with the (very real and serious) issue of "revenge porn" websites, various parties have been trying desperately to blame third parties, rather than figuring out ways to go after those actually responsible. In one such case, victims of the site had gone after the host and registrar of the revenge porn site Texxxan.com, which happened to be GoDaddy. A Texas trial court totally ignored Section 230 in finding GoDaddy liable. Thankfully, an appeals court has now reversed that, highlighting the importance of Section 230, and the lengths to which many will go to in an attempt to get around it, in order to blame third parties for the actions of others. Basically, the plaintiffs here tried to find a way around Section 230 by arguing that it "didn’t apply to intentional torts, obscene material that isn’t constitutionally protected, and civil lawsuits based on criminal statutes." However, the court rejected all of that: All of plaintiffs’ claims against GoDaddy stem from GoDaddy’s publication of the contested content, its failure to remove the content, or its alleged violation of the Texas Penal Code for the same conduct. Allowing plaintiffs’ to assert any cause of action against GoDaddy for publishing content created by a third party, or for refusing to remove content created by a third party would be squarely inconsistent with section 230. As Andrew McDiarmid at CDT points out, this is important: Last week’s opinion reads like a greatest-hits record of Section 230 case law, and makes it clear that because GoDaddy had nothing to do with the creation of the content at issue it cannot be held liable. This is the right answer; hosts like GoDaddy must be protected from liability for their users’ (and their users’ users’) speech so that the Internet remains a vibrant platform for free expression and access to information. Otherwise, who would be willing to take the risk of opening up their servers for public hosting? The plaintiffs attempted to argue that Section 230 doesn’t apply when the content at issue is illegal – an argument the judges rightly rejected. Shielding hosts from liability when their users upload illegal content is precisely the point of Section 230: those who post such content – not those who host it – should be legally responsible for it. Thankfully, the court recognized as much, writing that such a reading of the statute “would undermine its purpose.” Of course, this is not the final word on this. The attorney for the plaintiffs has said that they will appeal to the Texas Supreme Court. And of course (once again) we have the issue that the person who has been credited with helping to draft the upcoming federal revenge porn law has flat out said that it's her intention to make companies like GoDaddy liable. "The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations." Indeed, this would target the GoDaddy's of the world as well. I recognize that there are serious issues involved in revenge porn, but targeting third parties like web hosts and search engines is idiotic. It will have tremendous unintended First Amendment consequences.Permalink | Comments | Email This Story

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While we're still puzzled by Ed Snowden's question to Vladimir Putin concerning Russian surveillance, it's pretty well accepted that the Russians have significant surveillance powers, and they're not afraid to use them. Now the outspoken ousted founder of "Russia's Facebook," VKontakte, Pavel Durov, has said that Russian intelligence service FSB had demanded info on Ukrainian protestors -- and that VKontakte had refused to provide it. As Mashable explains: "On December 13, 2013 the FSB demanded from us to turn over the personal data of organizers of the Euromaidan protesters," Pavel Durov wrote in a post (English translation) on his VKontakte page on Wednesday. "Our response has been and remains a categorical refusal — Russian jurisdiction does not extend to Ukrainian users VKontakte," he wrote. "Giving personal details Ukrainians Russian authorities would not only be against the law, but also a betrayal of all those millions of people in Ukraine who have trusted us." This actually provides some more background details on what happened with VKontakte and Durov in the past few months. In January, Durov "sold" his stake in the site to the CEO of a Russian mobile operator. Many people noted at the time that this was unlikely to have been a wholly voluntary transaction. Having known some folks working for startups/tech companies in Russia, stories of being "forced" to sell are not exactly uncommon. Durov himself had been outspoken for a while about the importance of secure communications, and had criticized both the NSA and the FSB for mass surveillance. He's also been working for a while on a secure messaging app (separate from VKontakte). Then, just a few weeks ago, despite promises that when he sold his shares, nothing would change about his management role, he abruptly resigned. It was noted at the time that he had been under pressure to shut down pages related to Alexei Navalny, an opposition candidate to the current government, whose web presence was broadly censored by the Russian government last month. However, it was also hinted at that Durov had been asked to give up info on Ukrainian protestors. His latest comments appear to confirm those rumors. Also, given that he's no longer there, and this appears to be part of the reason, it seems reasonable to believe that the FSB now does likely have access to such information via VKontakte. For whatever Putin thought he was proving with his answer to Snowden's question, it's pretty clear that Russian surveillance reaches far and wide. And, of course, the NSA's activities allow him to play it off as less intrusive than the NSA (even if that's not true). Either way, all of this seems to highlight why we all need much more secure communications systems.Permalink | Comments | Email This Story

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We've previously discussed how the lack of IP protection in the fashion industry really hasn't kept many designers from making tons of money, despite maximalists' protests to the contrary. The larger issue seems to be counterfeit goods, rather than anyone passing off someone else's creation as their own, and even that has its own stimulatory effect. But there will always be those that try to assert control over aspects of the design process, because trying to control the end product gets you nowhere. Design Collection Inc., a "textile and garment resource," has filed a fistful of lawsuits alleging that a multitude of clothing retailers have ripped off its copyrighted horizontal stripe pattern. The latest filings target a dozen or so retailers, as well as a number of Does for allegedly infringing on this: That's from one filing naming Jinwon Apparel and The Buckle (among others). Here's another: It takes a seriously creative eye to view these as infringing. Take any garment with horizontal stripes of varying widths and shades and hold it next to another one and you're bound to see some similarities. The closeup photos don't really clarify much. If anything, they seem to indicate there are more differences than similarities. The top one's pattern seems close until you see the entire end product, at which point the comparison falls apart. The lower photo has even fewer similarities in the closeup, never mind the overall photo that shows us only part of the entire product. And so on it goes. Design Collection has sued clothing retailers over a few different patterns (the stripes surfacing most often) going all the way back to 2011, when ironically enough, it was sued by United Fabrics International for allegedly ripping off some of UFI's designs. (That UFI's designs are protected under copyright is itself a bit of a joke, considering most are generic floral patterns or animal prints.) While this may be part of the fashion world where copyright protection really doesn't exist, designers can copyright patterns like Design Collection has done here. The copyright office, unlike the USPTO, doesn't make any determination as to whether the submission deserves protection. If you register it, it's yours and you can do what you want with it, like "license it" (read: sell bolts of fabric to -- you can't actually "license" fabric) to apparel companies or, you know, drag them to court and make them point out how their irregular stripes are significantly different from your irregular stripes. Some of this ridiculousness (copyright fights over patterns) has previously surfaced in odd places, like quilting… and origami. Recognizable patterns would normally fall under the purview of trademark (think Louis Vuitton's infamous "LV"), so seeing something as generic as stripes being the center of a copyright lawsuit is something of an anomaly. Design Collection may have a valid claim here, but I'm not seeing it. The tendency of anything with stripes of varying widths and colors to resemble something else equally as randomized pattern-wise would seem to indicate that the "design" isn't original enough to warrant protection. But a copyright isn't a trademark, so that bar may never need to be approached, much less surmounted. Put a skeptical enough mind to it and these lawsuits look more like an aggrieved company poring through clothing companies' offerings until it can find something to use to punish them for choosing a different supplier. Take a look at the wording used in the filings: Plaintiff is informed and believes and thereon alleges that Defendants, and each of them, had access to Subject Design including, without limitation, through (a) access to Plaintiff’s showroom and/or design library; (b) access to illegally distributed copies of the Subject Design by third-party vendors and/or DOE Defendants, including without limitation international and/or overseas converters and printing mills; (c) access to Plaintiff’s strike-offs and samples, and (d) garments manufactured and sold to the public bearing fabric lawfully printed with Subject Design by Plaintiff for its customers. Plaintiff is informed and believes and thereon alleges that one or more of the Defendants manufactures garments and/or is a garment vendor. Plaintiff is further informed and believes and thereon alleges that said Defendant(s) has an ongoing business relationship with Defendant retailers, and each of them, and supplied garments to said retailers, which garments infringed Subject Design in that said garments were composed of fabric which featured an unauthorized print design(s) that were identical or substantially similar to Subject Design, or were an illegal modification thereof. The first paragraph entertains global conspiracy theories while the second alleges "illegal modifications" to its designs. The first is going to be awfully hard to prove and the latter may invite unwanted discussion about non-infringing derivative works. All in all, this seems to be a case of really really wanting to see infringement where none exists and hoping the defendants will be happier to settle rather than try to defend themselves from a variety of claims that might prove difficult to disprove. Permalink | Comments | Email This Story

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