posted 7 days ago on techdirt
This week, after a Wisconson senator attacked net neutrality by bemoaning the supposed lack of "fast lanes" online, JoeCool won first place for insightful by summing up why that's nonsense: The internet is ONE BIG "FAST LANE". What the ISPs want is to create a bunch of "slow lanes" to shove people into unless they pay a premium to get what they originally had. In second place on the insightful side, we've got the first of several winning comments this week that came in response to Theresa May's attempts to kill encryption. An anonymous commenter was struck with a reminiscence: Panopticon I remember spending New Years Eve 1999 watching a documentary about the rise of the CCTV surveillance state in London and being disgusted by the trend even then. The dreams of Jeremy Bentham are alive and well in England (and here in the US, as well). This is not now, nor has it ever been, about catching terrorists. It's about total control of the populace, the dream of every tyrant. They just can't seem to figure out that even if they had the tech to see, hear, and read everything, they don't have the manpower to do so and make sense of the intel, but I have no doubt they'll keep trying. For editor's choice on the insightful side, we look at Australia's Attorney General's similar campaign against encryption, in which he suggested the public would be fine with it because their use of Facebook shows they don't care about privacy. Roger Strong suggested he put his money where his mouth is: Lead by example, George. Enact a policy that all government communications and storage encryption - including that by intelligence agencies - have back doors. With only the good guys given the passwords, of course. Then continue the top-down approach. Mandate back doors for banks and their online banking systems. Then other large corporations. Once the public sees how that works, they'll respond accordingly. Hope This Helps! Next, we've got a response to the latest bogus takedown of a YouTube video by a record label, where PlagueSD suggested a bit of turnabout as fair play: The Dandy Warhols should apply some "RIAA math" and turn around and give a "Bill" to Universal Music for any views that they would have had if the site was never taken down. Over on the funny side, both our top comments come in response to Theresa May's anti-encryption efforts. The first place winner is That Anonymous Coward, responding to a commenter who (for some insane reason) sees no problem with destroying encryption, but feared a conspiracy to silence their opinion on the matter: Oh honey, get down off the cross... someone needs the wood. In second place, we've got Gorshkov focusing on the other key part of the story — the fact that May's own party is actively using WhatsApp: Hmmmmm ........ does this mean that the Tories are terrorists, and should be locked up? For editor's choice on the funny side, we start out looking at yet another anti-encryption crusader — James Clapper, whose latest "nerd harder" demands gave TechDescartes a marketing idea: The Clapper Just invent a device that allows you to turn encryption on by clapping your hands. Turning it off would be as easy as clapping again. Clap on! Clap off! Finally, we've got a response from Rapnel to the idea of using geofencing to prevent ISIS from using small drones: We should regulate the air and apply penalties to any producers of air when air is found to be responsible for materially supporting or providing a platform for anything using air in a way we don't like. And we should geofence it too. And monitor it. And suck it up with a big air-vume. And we could distribute that air fairly to airtists so that they can produce more, air. .. but that's too leftist, isn't it? Or is it.. I'm torn. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago It was this week in 2012 that The Oatmeal wrote a level-headed criticism of FunnyJunk and received, in return, a somewhat scattershot threat of a defamation lawsuit. As a result, a whole lot of internet attention and ire was turned on one man, whose name we'd become very familiar with: Charles Carreon, who dug in his heels and tried to shut down The Oatmeal's fundraiser. Then he lashed out and accused Matt Inman of "instigating security attacks", and then swore he'd find some legal avenue by which to go after Inman. The saga, as you know, will continue in future weeks... Ten Years Ago This week in 2007, media companies continued to pile on to YouTube with money-grab lawsuits. Sports leagues were actively fighting to claim ownership of facts about games, with the NCAA rejecting a reporter for live-blogging and Major League Baseball taking its legal fight over fantasy leagues to the appeals court. The MPAA and RIAA teamed up to create yet another lobbying group hot on the heels of the new Copyright Alliance, AT&T decided to start filtering infringing content for Hollywood, and a worrying court ruling ordered TorrentSpy to collect and hand over additional data on its users. Fifteen Years Ago This week in 2002, in an act that practically defined "too little, too late", Sony and Universal announced plans to cut prices on digital music downloads. The BSA was beating its usual drum about the dangers of software piracy, the government was floundering when it came to internal use of technology, and the geeks in Silicon Valley were continuing to get more political. It was also this week that the late, great David Bowie shared some of his refreshingly forward-looking thoughts on copyright in the digital age, saying "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." Almost everything he said about the nature of the coming change was correct, but he underestimated the power, tenacity and deep pockets of those who continue to fight tooth and nail against it. Ninety-Seven Years Ago Most cliches exist for a reason — though tired, they are apt. It's easy to forget they had to come from somewhere, and fun to find out where that was. And so this week we celebrate the birth of a common political cliche: the "smoke-filled room" where big decisions are made by powerful people. It was on June 11th, 1920 that Raymond Clapper of the United Press first used the term to describe the nomination process for Warren G. Harding at the Republican National Convention, presumably not knowing it would enter the lexicon as a go-to shorthand. Permalink | Comments | Email This Story

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People who do not have a legal reason to have content delisted are still trying to trick Google into compliance with various illegal actions. So far, we've seen bogus lawsuits filed by fake plaintiffs against fake defendants, slid by inattentive judges to secure takedown orders. We've seen people trying to limit negative search engine results by forging judge's signatures on fake orders. We've seen people assemble fake news sites to post copies of negative content solely for the purpose of targeting the original posts with fraudulent takedown orders. Eugene Volokh has dug up another interesting libel takedown order, supposedly issued by a Michigan federal court. It awards the plaintiff, Abraham Motamedi, $5,720 in legal fees and the delisting of sex offender registry-related URLs (only one of which isn't a top-level domain). From the order [PDF]: IT IS FURTHER ORDERED: that to prevent further or future harm to Plaintiff’s reputation in the community and protect his employment from the dangers of labeling him as a “sex offender”, Plaintiff is awarded a permanent injunction against Defendants … compelling these Defendants to immediately remove any and all sex offender postings of Plaintiff caused by these Defendants, including but not limited to the sex offender postings presently on the following websites: – http://www.sexoffenderrecord.com/citydirectory/ID/Meridian/Abraham_Motamedi_1353346 – http://www.sexcrimedata.com/ – http://ev.onlinedetective.com/ – http://onlinedetective.com/ – http://offendex.com/ The plaintiff also is granted a permanent injunction against further posts linking him to sexual offenses. IT IS FURTHER ORDERED: that to prevent further or future harm to Plaintiff’s reputation in the community and protect his employment from the dangers of labeling him as a “sex offender”, Plaintiff is awarded a permanent injunction against Defendants CHARLES RODERICK II, a/k/a Chuck Roderick, an individual, WEB EXPRESS, L.L.C., d/b/a “Online Detective”, an Arizona limited liability company; and, ONLINEDETECTIVE.COM, L.L.C., an Arizona Limited Liability Company compelling these Defendants to refrain from ever posting any similar sex offender posting concerning 5 Plaintiff or otherwise posting defamatory statements concerning Plaintiff on the internet. Volokh says this was submitted to Google, despite the order naming only the sites listed above. The order doesn't discuss Section 230 once, even though it skips a set of intermediaries in its haste to get to the delisting. But that's really no surprise, considering no judge ever saw a complaint, much less signed their name to this judgment. There is no Motamedi v. Oesterblad in the Eastern District of Michigan. The case number 2:13-cv-14541 (the number listed in the order) in that district corresponds to a completely different order. There is no Daniel Ro. Markus, the lawyer who, according to the order, was responsible for the case. The order submitted to Google was a forgery, like the ones discussed here (Lichterman and Aukerman), here (Arnstein), and here (Haas). Nevertheless, Abraham Motamedi insists it's a real court order. Volokh spoke to Motamedi, who claimed the order was legit (despite the case being nonexistent). This isn't necessarily an indication Motamedi crafted the completely-fake court order. It could mean some shady reputation management company did it on his behalf. But considering Motamedi never expressed any hesitance about his assertions, it's safe to assume he's well aware this isn't legitimate. Additional weirdness: the criminal conviction Motamedi is trying to make vanish was handed down in Idaho and he now apparently lives in Nevada. Where Michigan factors into all of this is a mystery, although I suppose completely fake court documents don't have to adhere to any sort of jurisdictional limits. As more evidence of forged/fake court documents is uncovered, it's crucial that that intermediaries pay close attention to any supposed court order they receive. Failing to give these documents additional scrutiny will only encourage further abuse. Permalink | Comments | Email This Story

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I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes. And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously. The cable TV business is in trouble—in fact, it is "failing" as a business due to rising programming costs and consumers switching from traditional TV subscriptions to online video streaming, according to a cable lobbyist group. "As a business, it is failing," said Matthew Polka, CEO of the American Cable Association (ACA). "It is very, very difficult for a cable operator in many cases to even break even on the cable side of the business, which is why broadband is so important, giving consumers more of a choice that we can't give them on cable [TV]." Well, that's certainly different. These comments by Polka about how the cable television industry is failing differ from the doom-and-gloom sideshow too often pitched as a reason for cable companies to not do all sorts of things that would benefit customers. Instead, Polka's tone appears to be sincere on this point: the cable television industry, as we have come to know it, is in its death throes. Given cord-cutting and a new customer adoption rate that has been falling in the younger generations, it's refreshing to hear a cable lobbyist come out and admit all of this. The problem is that when you square this with the other point he made -- the importance of broadband -- a shiver bolts down the spine. That's one reason cable companies in the ACA see broadband as "their future," Polka said. A cable company executive who appeared alongside Polka on the C-SPAN show echoed those comments. Video is "certainly our worst product," said Tom Larsen, senior VP of government and public relations for cable company Mediacom. "It makes the least amount of money." Larsen and Polka both praised the FCC's new Republican leadership for taking a deregulatory approach to broadband. This, of course, refers in part to the gutting of net neutrality, the death of which is being to served to the American public by the same new leadership Polka is so happy to praise. It should be immediately clear what the ACA is hoping for when you take into account the sum of its previous stances, nearly all of which have been de facto anti-competition, as well as this newfound full focus on the broadband portion of its members' services. It expects to be able to strangle the ISP industry in the same way its anti-competitive practices helped pave the way for cable providers being unable to respond to customer demands. Permalink | Comments | Email This Story

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In March we wrote about the unfortunate situation of two news publications in nearby Santa Clara, California in court in what appeared to be a clear SLAPP suit. The more established publication, "Santa Clara Weekly" and its publisher Miles Barber, had sued a new upstart, "Santa Clara News Online" and its publisher Robert Haugh. It seemed fairly clear that Barber didn't like the fact that Haugh had been criticizing the Weekly, and the lawsuit was just filed to make a nuisance for Haugh. It was notable that the complaint didn't cite a single blog post by Haugh or even quote him. It just paraphrased (badly) a bunch of clearly opinion statements from Haugh. Haugh got assistance from Ken "Popehat" White, who asked the court to strike the lawsuit for violating California's anti-SLAPP law. Thankfully, the judge in that case has agreed and dumped the case, and has denied Barber's request to file an amended complaint on top of that. As of yet, there does not appear to be a full ruling on this, but congrats to Ken White and Robert Haugh for succeeding here. And, once again, this is a reminder of the need for strong anti-SLAPP laws. They help get rid of frivolous, censorious cases quickly, and they make the plaintiff pay the legal fees of the defendant (which also helps to deter other such frivolous cases). Permalink | Comments | Email This Story

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Last year, Mike wrote about an interesting case between a small group of enterprising comic artists and Dr. Seuss Enterprises. Comicmix artists had created a parody mashup of Dr. Suess' Oh The Places You'll Go and the Star Trek universe to create Oh The Places You'll Boldly Go, a rather sweet take on both franchises. The creators of this new work setup a crowdfunding campaign, which the Dr. Seuss estate halted with takedown notices. The case ended up in court, with the Seuss estate claiming that the new work infringed both its copyright and trademark rights. The creators, along with Ken "Popehat" White, claimed all of this was well within the boundaries of Fair Use. Well, the judge for the case has now ruled on the trademark matter, and it's a big win for Comicmix. Additionally, while the copyright claim survives for now, the judge makes it clear that things aren't looking great for that claim either. Now, the United States District Court for the Southern District of California court has ruled on the trademark question and found that there is no valid trademark claim thanks to "nominative fair use," and also indicated that it would be favorably disposed to fair use defenses on the copyright question. The estate has two weeks to prove copyright damages and to amend its trademark claims. It's difficult to see how the Seuss Estate is possibly going to go about demonstrating copyright damages. Given the judge's review of the material and her analysis thus far on the copyright question, the copyright claim has a hell of a hill to climb. The Seuss estate argued that adjudicating the matter of Fair Use on the copyright claim at the motion to dismiss stage was inappropriate because of all the facts required to make that assessment. The judge didn't buy that, largely because the singular claim of harm made by the estate was the claim that it lost out on the opportunity to license the work at all. As a threshold matter, Plaintiff argues that “while possible in rare instances to decide fair use at the pleading stage, it is inappropriate here, where significant material facts are necessary to make a determination of fair use.” (Opp’n 9.) However, the only genuine fact Plaintiff points to is that “the issue of whether the Defendants’ use . . . will appreciably harm the value of [Plaintiff’s] Works or . . . market simply cannot be made without discovery and further development of the record on this issue.” (Id. at 15–16.) And Defendants point out that Plaintiff’s sole allegation of market harm is that Defendants “usurped DSE’s licensing opportunities.” (Reply 4 (citing Compl. ¶ 32).) Thus, as long as the Court takes Plaintiff’s allegation of market harm as true, Defendants are otherwise correct that “[t]he complaint, and documents sufficiently referenced therein or otherwise subject to judicial notice, are sufficient to enable the Court to evaluate the issue of fair use.” (MTD 6.) In particular, the Complaint itself raises the issue of fair use, (Compl. ¶ 35), and the contents of the two primary books and other relevant works are before the Court and not in reasonable dispute, (RJN Exs. 5, 6).1 Accordingly, the Court concludes that fair use analysis is appropriate on this Motion to Dismiss and addresses each factor in turn. As a bonus, the judge also acknowledges that mashup art is an emerging medium and states that bending to the claim by the Seuss estate would effectively kill off an entire form of art. This case presents an important question regarding the emerging “mash-up” culture where artists combine two independent works in a new and unique way. See, e.g., Art Term, Postmodernism, Tate, http://www.tate.org.uk/art/art-terms/p/postmodernism (last visited Apr. 28, 2017) (“Often mixing different artistic and popular styles and media, postmodernist art can also consciously and self-consciously borrow from or ironically comment on a range of styles from the past.”). Applying the fair use factors in the manner Plaintiff outlines would almost always preclude a finding of fair use under these circumstances. However, if fair use was not viable in a case such as this, an entire body of highly creative work would be effectively foreclosed. In other words, shuttering an entire art form is not the purpose of copyright law at all, hence this sort of Fair Use defense. It's as eloquent a nod to why creativity ought not be stifled in favor of protectionism as I've seen in a court document and should be required reading for any judge ruling on matters of Fair Use. And so we wait for two weeks to see what, if any, documented claim of harm the Seuss Estate can work up for its copyright claim. I expect we will all be underwhelmed. Permalink | Comments | Email This Story

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We've seen some nice fair use wins lately, and here's another good one (though, I'd still argue it shouldn't have even needed fair use... but we'll get there), first written up by Eriq Gardner at The Hollywood Reporter. This is actually a lawsuit that's gone on for nearly a decade (and a dispute that's gone on for longer than that), and we first wrote about this case asking the simple question can you copyright the story of a band? Here's the shortened background: The Four Seasons was a well known music group decades ago. At some point in the late 1980s, one member of the band, Tommy DeVito, agreed to team up with a fan/lawyer, Rex Woodward, to write his autobiography. Woodward agreed to do all the writing based on interviews he conducted with DeVito, and his own knowledge of the band. That book was completed, but never published. DeVito and Woodward had an agreement that the book would be published with both their names and they'd split the proceeds 50/50. Soon after the book's completion Woodward passed away from lung cancer. Unbeknownst to Woodward's surviving family, DeVito registered the copyright on the autobiography a few months later, but without Woodward's name included. And, still, the book was never published. In the mid-2000s, Woodward's family again tried to get the book published, just as the Broadway play "Jersey Boys" was about to open. Jersey Boys was a play about the Four Seasons, and it became phenomenally successful around the globe. Many of the people involved with the play admitted in various interviews that some of the play was based on DeVito's unpublished autobiography. And that is why Woodward's family sued, claiming that the play was a derivative work of the book whose copyright should have partially been held by Woodward, and demanding a cut of the play's massive profits. As mentioned, the court case has taken basically a decade, and it's bounced back and forth between the district court and the appeals court, with many, many, many different rulings (the procedural history is... crazy -- but also unnecessary to go through here, other than to mention that many of the defendants settled out of the case earlier). Either way, it ended up back in court for an actual trial, and the jury said that the use was not fair use, and awarded the Woodward family 10% of the money from the play. In reviewing this, the judge has now tossed out the jury's decision there, and said that, as a matter of law, it's clear that the use of the work is covered by fair use and not infringing. The court goes through the standard four factors test for fair use (though, starts with number four -- which you don't see that often). The judge, Robert Jones, rightly points out that the effect on the market (factor 4) looks pretty bad for the Woodward family, since it's not clear there was any actual market for the book before the play existed. That is, the play only increased the market, rather than decreased it. The evidence at trial indicated that before the Play debuted, the Work had no market value. Woodard, DeVito, Plaintiff, and Plaintiff’s sister had been unable to find any company interested in publishing the Work despite their various attempts to do so between 1990 and 2005, because interest in the Four Seasons was not great enough to make sales of the Work profitable. Under these circumstances, the fourth and most important Harper & Row factor “greatly favors” a defendant. (I'll leave aside the rant I have inside me about courts claiming the 4th factor is the "most important" and save that for another day). The court goes on, and addresses the third factor as well: To the extent the Work may be profitable today, it is almost certainly only because of the Play, which—and this is important under the third Harper & Row factor—consists of over 50% musical works (by running time) in which Plaintiff has no copyright, and the remainder of which (the non-musical script of the Play) is comprised of less than 1% of creative expression found in the Work and uses less than 1% of the Work. If anything, the Play has increased the value of the Work. As for the "purpose and character of the work, the judge says that it weighs against fair use, but doesn't say much else about it. On the nature of the work, the court notes that in many cases, publishing an unpublished work weighs strongly against fair use -- but in this case, it's different because the reason the work was unpublished... was because it was deemed unpublishable: A work that is only unpublished because it is unpublishable despite great efforts, however, is an atypical situation. Such a work is not unavailable to the public because of a deliberate choice by the copyright owner, but because it is not commercially viable. In this case, the unpublished nature of the Work does not overshadow its biographical nature. The Court finds that this factor weighs in favor fair use. The judge then goes into more detail about the fact that very little of the copyrightable expression in the book actually shows up in the play. He notes that there are just a few small sections that involve copyrightable expression and where there's substantial similarity in the play (indeed, the judge notes that he went through the "painstaking" process of reviewing a DVD of the musical with the written work to find all the similar parts). The court then notes each of the areas of similarity -- many of which seem... pretty minimally related to the book, but the judge says there's at least enough there to consider if it's infringement. And in the end, finds... 145 words at issue. In summary, at most, the jury could have found about 145 creative words to have been copied from the Work into the Play, whether as dialogue or creative descriptions of events. Those 145 words constitute about 0.2% of the approximately 68,500 words in the Work (approximately 250 words per page times 274 pages). This factor strongly weighs in favor of a finding of fair use, at least where the “heart” of the Work was not infringed. The court further notes that while it can be infringing to use "the heart" of the work, since this work is biographical, the "heart" is fact-based, and thus not subject to copyright protection. Finally the court notes that there's a strong argument that the play about the band is very transformative compared to an unpublished autobiography of one member: The “transformation” in the present case is both a change of purpose and a change of character. The Play takes on a different purpose from the Work when the script (most of which was not taken from the Work) is incorporated into musical performances using material in which Plaintiff has no copyright. The purpose of the Work is primarily to inform. Tommy DeVito set out to vindicate his perspective and reveal hidden truths. Woodard’s writing skills made the Work readable, even if the material was ultimately not commercially publishable. The purpose of the Play, however, is primarily to entertain. Even if the purpose of the Play were primarily to inform, the Play takes on a different character from the Work by the incorporation of Tommy DeVito’s singular perspective into a more complete and balanced description of events based on competing perspectives of all four band members. The Play is structured around this concept, with the characters of DeVito, Gaudio, Massi, and Valli sequentially narrating the Play from their own perspectives during the respectively titled Spring, Summer, Fall, and Winter portions of the play, i.e., the figurative “four seasons” of the history of the band. And in doing so, the Play adds creative expression beyond mere republication.... The transformative nature of the use in this case is significant. And thus, with most of the factors pushing strongly towards fair use... it is determined to be fair use. Of course, the case is far from over. There are still other factors at play and the judge grants a new trial on those points. And, it's possible (likely?) this new ruling will first be appealed. In other words... this decade-long case likely isn't over yet. Permalink | Comments | Email This Story

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Available now in the Techdirt Deals Store is the Kickstarter success story, Ticwatch 2. This innovative smartwatch uses a sleek design and its unique Ticwear OS to deliver a powerful, but simple smartwatch experience that will genuinely make your life easier. Speak to it to get an Uber, set reminders, make calls, get text notifications, and much more. Plus, it's geared towards an active lifestyle, letting you track your steps, heart rate, and the distance you've traveled right on the watch. It's on sale for $169.99. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Last year we noted how Russia had introduced a new surveillance bill promising to deliver greater security to the country. Of course, like in so many countries, the bill actually did the exact opposite -- not only mandating new encryption backdoors, but also imposing harsh new data-retention requirements on ISPs and VPN providers. As a result, some VPN providers like Private Internet Access wound up leaving the country after finding their entire function eroded and having some of their servers seized. This year, Russia hopes to deliver the killing blow to the use of VPNs and other privacy-protection tools. The Duma's (the lower house of the Russian parliament) Information and Technology Committee has approved controversial draft legislation that would ban anonymity on messenger apps entirely. It's part of a crackdown on anonymous journalists that have (stop us if this sounds familiar) been leaking details on many of the sordid occurrences inside the often-corrupt Russian political machinery. Expected to take effect in 2018, the new law would require messenger users to verify their identities using their phone numbers, with Russian mobile phone operators expected to assist the government with this effort. In concert, a bill has been submitted attempting to effectively ban VPN use entirely. In Russia, broadband users have increasingly turned to VPNs to avoid the growing-list of censored websites. To help thwart such usage, the bill would not only impose steep fines on VPN providers that don't agree to block blacklisted websites, but would require ISPs terminate these companies connection to the internet should they not comply: "As it stands, the bill requires local telecoms watchdog Rozcomnadzor to keep a list of banned domains while identifying sites, services, and software that provide access to them. Once the bypassing services are identified, Rozcomnadzor will send a notice to their hosts, giving them a 72-hour deadline to reveal the identities of their operators. After this stage is complete, the host will be given another three days to order the people running the circumvention-capable service to stop providing access to banned domains. If the service operator fails to comply within 30 days, all Internet service providers will be required to block access to the service and its web presence, if it has one." In short: help us censor the internet or you won't be allowed to do business in Russia. 100 VPN providers are already blocked in Russia for one reason or another, and Opera scaled back its Russian operations last November after Russian telecom regulator Roskomnadzor pressured it to include website filtering in the integrated VPN (now included in its Opera browser for free). The bill would also levy additional penalties on Russian search engines, forcing them to remove all links to sites Rozcomnadzor determines to be ban-worthy. Like countless similar efforts across numerous countries, this is all framed as an utterly necessary step to thwart piracy, combat extremism and ensure the safety and security of the Russian people. But as with comparable proposals in the States and elsewhere, these proposals undermine encryption and essential security and privacy tools, making the general public notably less secure. They're also an expensive game of Whack-a-Mole as users looking for privacy simply flee to services like Tor or Zeronet, ensuring these services will be the demonized bogeymen of tomorrow. Permalink | Comments | Email This Story

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Back in November 2015, we wrote about a bad situation in Germany, where a museum in Mannheim was suing the Wikimedia Foundation over photos of public domain works of art, which were uploaded to Wikimedia Commons. Sadly, since then, things have not gone well for the public domain. No less than three German courts -- in Berlin, Stuttgart and now again in a higher Stuttgart court -- have ruled against the use of the photos. The latest court judgment is available in full (pdf in German), and it contains some pretty worrying statements. For example, the upper Stuttgart court confirms that the museum's photographs of the public domain works are not in the public domain, because they were produced by a photographer, and not some mechanical process like a photocopier. Under German law, if there is any kind of creativity involved, however minimal, then the photograph produced enjoys protection as a "Lichtbildwerk" -- literally, a "light image work" -- and is not in the public domain. The court also ruled that not even photos of works in the public domain taken by a Wikipedia supporter to put on Wikipedia could be used freely by Wikipedia. Making a photo in this way "injured" the museum's ownership of the objects in question, the judges said, even though the works were in the public domain, as a report on the iRights site explained (original in German). In addition, the court said that the museum was within its rights to make it a condition of entry that no photos were taken. These are clearly dreadful rulings for Wikipedians in Germany. The good news is that the Stuttgart court has allowed an appeal to the country's top court, the Bundesgerichtshof. If even those judges fail to see how crazy this situation is, and how harmful to the public domain, there is always the hope that the Court of Justice of the European Union, the highest court in the EU, might consider the case, but there's no guarantee of that. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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T-Mobile's loopy idea to try and treat wireless subscribers better (well, if you exclude their attacks on the EFF and net neutrality) has been a great thing for American consumers and wireless sector competition. Thanks to more consumer-friendly policies, T-Mobile has been adding more subscribers per quarter than any other major carrier for several years running. This added competitive pressure recently resulted in both AT&T and Verizon being forced to bring back the unlimited data plans the companies had been insisting for years consumers didn't actually want. The problem, if you're a wireless carrier or investor, is that AT&T and Verizon are making slightly less money now that they're unable to sock consumers with restrictive caps and overage fees. In fact, wireless sector revenues dipped slightly in the first quarter for the first time in seventeen years, as T-Mobile competition forced carriers to engage in a little more than theatrical non-price competition. Keep in mind these companies are still making some fairly-incredible profits, and their expansion into areas like smart cities and the IOT give them ample opportunity for new revenue streams. But unlimited data plans returned at the start of the year, and Wall Street firms still can't quite let go of the fact that these industry giants might just have to make a little less money. Cowen and Company Equity Research analyst Colby Synesael simply isn't very happy about this whole competition thing: "The first quarter of unlimited for all four carriers left much to be desired. Both AT&T and Verizon incurred postpaid losses for the first time on record, a trend that could continue. Verizon specifically had its worst quarter in recent memory with a lackluster performance on nearly all sub metrics. Even T-Mobile’s guidance included a ‘less great’ postpaid net add increase of just +250,000. Combined with continued pricing pressure, AT&T and Verizon are pivoting to new avenues of growth such as Mexico, content, media, IoT and 5G, all of which can’t come soon enough." Mike McCormack of Jefferies shares similar worries about how the elimination of often-arbitrary usage caps and overage fees means precious wireless industry giants now have to more seriously compete: "The resurgence of unlimited plans is likely to delay more meaningful ARPU stabilization for multiple quarters due to the loss of overages and plan rightsizing. Impacts to ARPU on an incremental basis (i.e. for new subscribers) will depend on the number of accompanying lines activated. Our analysis suggests a willingness to use price with the hopes that multiline subscribers will churn less frequently. The move to unlimited also diminishes the ability to monetize growing data usage, removing an important lever of growth." Poor darlings, having to actually compete on price and listen to consumers! But worry not. Wall Street and these wireless companies have an ingenious solution to the sudden influx of T-Mobile competition: reduce competition through additional sector mergers and acquisitions. Wall Street analysts have been relentlessly fanning the flames of a Sprint acquisition of T-Mobile, which would eliminate one of four major competitors in the space. Sprint owner Softbank has been buttering up the Trump administration for much of the year in the hopes he'll approve a deal that was blocked by regulators in 2014 because it would have reduced competition. Sprint CEO Marcelo Claure spent this week insisting such a union would create "enormous" synergies, and the fusion of the two companies would let the merged company battle more effectively with the likes of AT&T and Verizon Wireless. Granted if you've spent five minutes with a history textbook (especially one governing the telecom sector), you'll find that these megamergers almost always kill jobs, reduce overall competition, and reduce incentive for consumer service and network improvements. Meaning that if this merger is approved, bringing back unpopular usage caps and overage fees will be a top priority. Permalink | Comments | Email This Story

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The ODNI has released several documents in response to FOIA lawsuits (EFF, ACLU). The EFF scored 18 of these (handy zip link here) and the ACLU seven. The ACLU's batch has proven more interesting (at least initially). One document it obtained shows a tech company challenged a Section 702 surveillance order in 2014. The challenge was shut down by the FISA court, but with the exception of Yahoo's short-lived defiance, we haven't seen any other evidence of ISP resistance to internet dragnet orders. Included in the ACLU's batch is a 2008 FISA Court transcript [PDF] that's particularly relevant to the NSA's voluntary shutdown of its "about" collection. In it, the NSA discusses its filtering and oversight procedures, which were already problematic nearly a decade ago. There are some really interesting tidbits to be gleaned from the often heavily-redacted proceedings, including this statement, which makes it clear the NSA engaged in wholly-domestic surveillance prior to the FISA Amendments Act. THE COURT: All right. Well, what about the non-U.S. person status, which of course is new under the FISA Amendments Act? Are you going to be changing anything in terms of focusing on that? [REDACTED GOV'T RESPONDENT]: We already sort of do with respect to the U.S. person status is so intertwined with the location of the target [REDACTED] to the extent that in the past NSA.would actually affirmatively identify targeted U.S. persons to us on the sheets, because one of the additional fields that they put in the sheets is basically a blurb, an explanation and a description of the target. Clearly, we're not allowed to target US persons anymore, so I don't anticipate seeing any such descriptions on the sheets. But again, since the status of the person, the determination of how that is made is so intertwined with the same information upon which NSA relies to make a foreignness determination, that it would be hard for us not to identify such information as we're conducting the reviews. Which, of course, means the NSA was allowed to target US persons and their communications previously, contradicting statements made by US officials, including President George W. Bush and Vice President Dick Cheney. It's stated earlier in the transcript that the NSA does a few things to help minimize examination of US persons' communications. But they're not great. The NSA runs spot checks on analysts' transactions, deploys filters, and relies on self-reporting to guard against Fourth Amendment violations. It sounds like quite a bit, but the details show it's not nearly enough. To start with, the filters meant to filter out US persons' communications don't work. COURT: The NSA minimization procedures, you're stating, 'contain a provision for allowing retention of information because of limitations on NSA's ability to filter communications.' My question I had was is the filter discussed in targeting the same filtering. I just wanted to understand that, and apparently it is. [The rest of the court's question is redacted.] GOV'T: I think the inclusion of that provision in the minimization procedures was intended to be prophylactic in the event that the filters don't necessarily work, and NSA has represented that it's been their experience with the filters and [redacted] this provision basically captures instances where the filters may not work in every instance. And there's a good reason why they won't work "in every instance." Further unredacted discussion reveals the NSA partially relies on an IP address blacklist to filter out US persons' communications. This is better than nothing, but still a long way from being a strong positive indicator of a target's (or incidental target's) location. The court then asks about the limitations of the filters and… we get several fully-redacted pages as an answer. The court also asks about the "about" collection -- where targets are discussed but the communications do not directly involve NSA targets.The judge wants to know how often this is being used rather than the more-targeted "to/from" collection and how often it results in incidental collection. Unsurprisingly, the government can't say how often this happens. This is because the NSA saw no reason to track these searches. GOV'T: As far as the percentage number, we don't have a number for that, because as I mentioned earlier, when we [redacted] we find to's and froms and [redacted] so we don't categorize those separately to be able to count those communications as abouts. The court then asks why it's not possible to limit the collection to to's and froms. The government's response is that collecting it all just works better for the NSA, even though it apparently possesses the technical ability to keep these collections separate. It is technically feasible. The problem with doing so is if you end up discarding a number of communications that are truly to-froms that you should be able to collect but [redacted]... So by trying to limit us to no abouts, then we end up cutting out those kind of communications as well, truly to-froms. So it would be -- we're not surgical enough to take that out of the equation without impacting our ability to do to-froms effectively. And later in the discussion, there's a bit of a bombshell about the "about" collection. The NSA shut it down because it couldn't find a way to prevent incidental collection of US persons' communications. In this transcript, the government points out incidental collection is just as likely with to-from targeting. COURT: Is it more or less likely to pick up U.S.-person information in an about than a to or from? MR. OLSEN: I don't know the answer in practice. At least from my perspective in theory, I wouldn't see why it would be more likely than a targeted to or from collection where the target's outside the United States where there's a similar possibility that that target would be in communication with someone in the United States, with a U.S. person in the United States. If this is true, the elimination of the "about" collection doesn't do much to curtail incidental collection. And almost a decade ago, the NSA was already making it "impossible" to comply with Congressional requests for incidental collection numbers by refusing to separate its collections, even with the FISA Court raising questions about its Fourth Amendment implications. Permalink | Comments | Email This Story

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Video game makers and publishers have wildly different stances on modding communities, as is well known. Some embrace the communities and see them correctly as a free boon to the popularity of their games, while others would rather maintain strict control of the gaming experience by resorting to legal muscle with modders. But there is something strange in the Grand Theft Auto franchise, with Rockstar Games and Take-Two Interactive often taking confusing positions on what communities can do with their games. What would seem undeniable is that the modding community has extended the lifespan of finely-aged games, such as Grand Theft Auto IV, by giving gamers new ways to play them. And, yet, Take-Two appears to have recently sent a threat letter to a wildly popular tool to mod GTA4, angering of a large swath of its own fans. OpenIV is the name of the tool and it had a wide array of uses, including making videos of gameplay from angles impossible in Rockstar's editor, to adding new vehicles to the game and delving into the game code to find secret areas. Some content created using the tool has even been featured on Rockstar's website, with the company going to lengths to praise the modding community's creations. Earlier this month, however, the creators of OpenIV got a cease and desist letter from Take-Two. According to a post on the official OpenIV website, the alleged cease and desist came on June 5th 2017. The supposed problem, OpenIV’s creators say, is that the program allows “third parties to defeat security features of its software and modify that software in violation Take-Two’s rights.” After discussing their options, the team behind the tool says they decided it was not worth their time to fight back. “Yes, we can go to court and yet again prove that modding is fair use and our actions are legal,” creator GooD-NTS wrote. “Yes, we could. But we decided not to. Going to court will take at least few months of our time and huge amount of efforts, and, at best, we’ll get absolutely nothing. Spending time just to restore status quo is really unproductive, and all the money in the world can’t compensate the loss of time. So, we decided to agree with their claims and we’re stopping distribution of OpenIV.” The reaction from the gaming community was as swift as it was one-sided in its near universal condemnation of the takedown. Reactions ranged from confusion about why this action was taken after nearly ten years of OpenIV being in use and distribution to promises to never buy a Take-Two game again. Here is a sample of the reaction from Kotaku's post. Now, we could have a perfectly reasonable discussion about why modding of this kind ought to be considered Fair Use. Or we could discuss how petulant legal threats of this kind are a detriment to creation and the operations of running a creative endeavor. That, after all, is something we know quite a bit about. But my chief question is much more basic: How in the world did Take-Two think that this was a good business decision? Given the extreme backlash, whatever harm was caused to gamers themselves by the modding tool must be minimal at worst. Given how long Take-Two put up with this tool existing without threatening it for so long seems to indicate that any harm to the company was minimal at worst. Meanwhile, it's quite clear that this is a tool that fans of GTA4 very much want to be able to use and its use only happens if they have a copy of the game. It makes the game more useful and attractive, in other words, which means more sold copies. What in the world was the company trying to accomplish here, other than merely resorting to protectionism? Permalink | Comments | Email This Story

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Remember, folks, when Senator Ron Wyden asks certain questions or suggests something nefarious is going on behind the scenes, you'd best listen. Time and time again over the past six years or so, whenever he's brought up such an issue, he's been right. Some on Twitter have now dubbed this the Wyden Siren. Pay attention when Wyden is hinting at something. So... it's time to pay attention. On Thursday, Wyden sent a letter to Dan Coats, the Director of National Intelligence, complaining that he is answering a different question than the one Wyden asked. This is, of course, a fairly typical move in political circles, but especially in the intelligence community. You word answers in very tricky ways, such that you know the public will be misled, but if pressed in the future, you can argue that your answer was not untruthful -- just semantically misleading in the extreme. This case goes back to Wyden questioning Coats on June 7th about whether Section 702 can be used to collect purely domestic communications. There were already some people screaming "Wyden Siren" on Twitter about the question, even to the point of arguing that the question was setting up Coats the way that James Clapper was setup a few years back (in which he lied about NSA surveillance on Americans). Coats stated that such a thing would be against the law -- leading Marcy Wheeler to point out not only that the statement is incorrect, but that Coats signed a memo saying it's incorrect. After the hearing, as Wyden's new letter to Coats points out, Coats gave Wyden an answer. But, as Wyden now points out, it was an answer to a different question: Dear Director Coats: At the Senate Select Committee on Intelligence's open hearing on June 7, 2017, I asked you the following question and requested a yes or no response: "Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic." You responded: "Not to my knowledge. It would be against the law." After the hearing, in response to questions from reporters, the ODNI sent the following: "Section 702(b)(4) plainly states we 'may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States.' The DNI interpreted Senator Wyden's question to ask about this provision and answered accordingly. That was not my question. Please provide a public response to my question, as asked at the June 7, 2017, hearing. Thank you for your attention to this important matter. Sincerely, Ron Wyden Pay attention, folks. The Wyden Siren is blaring... and that usually means more awful surveillance revelations will be coming soon... Permalink | Comments | Email This Story

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While we've talked about the NCAA in the past, those conversations have mostly revolved around the NCAA's backwards thinking regarding the streaming of sporting events and issues about the likenesses of players appearing in video games. Unsaid from what I can tell, however, is the general opinion of this writer that the NCAA is an outdated institution designed to make gobs of money off of the labor of otherwise free citizens while curtailing their rights to make any income themselves. These attempts to make income by college athletes typically revolve around selling autographs, memorabillia, and game-worn clothing, but the NCAA is perfectly capable of taking its rules to ridiculous lengths. Serving as an example of this is UCF kicker Donald De La Haye, who has been informed by the NCAA that he must either shutter his YouTube channel or his football career. De La Haye’s channel has published 41 videos over the past year, piling up 54,000 subscribers and two million views in that time. His videos are nearly all related to his athletic career, though only a few directly address his status as UCF’s kicker; others are simply videos showing off his daily kicking regime and ability to boot a flatscreen TV from a ledge. As De La Haye stated in his latest video, entitled “Quit College Sports Or Quit YouTube,” because he was profiting from ads placed on his videos and channel homepage, the NCAA determined that he was profiting off his own likeness—the nerve!—and put its foot down. As is the case with everything to do with the NCAA, this is about where this advertising money is going and not the actual conduct of De La Haye. The NCAA's stance is that it is perfectly fine for athletes to generate money based on their activities, it's just that the money generated must end up in the NCAA's coffers instead of in the bank accounts of the athletes that perform on the field of play. If that sounds like slavery to you, the NCAA would like to remind you that some of these athletes get college scholarships. But not all of them do, of course, and the value of those scholarships pales in comparison to the revenue generated by these athletes for the NCAA and its member institutions. It's a terrible deal for college athletes, all the more so when the NCAA is now in the habit of prohibiting speech in the form of these kinds of videos just because some advertising revenue is generated. Revenue, by the way, that appears to be going to De La Haye's family instead of bling. De La Haye intimated in his 10-minute video that he had been using some of the money made from his channel to help his family at home—he hails from Costa Rica—saying they have, “tons of bills piling up and there’s no way for me to help. I thought I found a way.” The NCAA may have once served a purpose, but it needs to die a very quick death in the present. Any organization that wants to keep an enterprising college student athlete from making YouTube videos has demonstrated its need to be exited. Permalink | Comments | Email This Story

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Another day, another bad copyright ruling out of Germany. What's up with Germany these days? Specifically, the court has barred Google from linking to the Lumen Database when it takes down content. This is bad on a variety of levels, but first some background: Lumen Database is what was formerly known as "Chilling Effects" -- a site to catalog DMCA and other kinds of takedowns (though most people focus on the DMCA ones). It has been tremendously useful over the years in all sorts of ways, especially concerning academic research into how the DMCA takedown process is actually working. It's often how we discover examples of takedown abuse. However, for many years, the legacy entertainment industry has complained (and complained and complained) about the very existence of the Lumen Database. Their main (stated) reasoning is that it creates a database of links to infringing material -- though I'm sure the fact that it's been so useful in highlighting all of the abuse of the DMCA takedown process is a secondary (though less publicly admitted) reason for why they dislike it so much. The problem with this complaint is that there is literally zero evidence that Lumen Database is regularly used as a source for infringing materials. If you ask people who focus on this stuff, it's just not a site that comes up. Because it's really not particularly useful for that kind of thing. Either way, Lumen Database has made some efforts to reduce the visibility of links in its database in an attempt to mollify complainers. But the anger ratcheted up even more once Google attempted to provide more transparency into the takedowns it receives and how it deals with them. Among the things Google has done is forward all of its takedown notices to the Lumen Database, release a special transparency report focused specifically on copyright takedowns (and letting people search through its database), and finally also then linking to the takedowns in the Lumen Database when it does remove content. The reasoning for this is completely obvious and sensible. If content is being removed, it is appropriate to learn why. The takedown notice provides those details and also helps people make sure that when the takedown notices are abused for censorship, it is more quickly discovered and fixed. However, again, this linking from Google to Lumen Database has completely freaked out a segment of the copyright maximalist community -- as they insist that people are doing searches, failing to find what they want, clicking the little link to Lumen and then skimming the takedown letter to find the URLs where the content they want supposedly exists. Again, there is little evidence that this is happening at all, let alone on a wide scale. For what it's worth, it does appear that when takedowns target Google, many also target the original source, which takes down the original as well, meaning there's nothing at the links anyway. Apparently, none of this much mattered to the court. It bought the silly line how this might be used for finding infringing content and ran with it. This particular case doesn't even involve copyright infringement, but a takedown demand from a company that was upset about the way the Google snippet appeared -- which already sounds pretty crazy. From the IP Kitten site linked above: The claimant in this case is a German company. When entering the combination of the company‘s name and the words ‘suspected fraud’ (original: ‘Betrugsverdacht’) in a Google search, the results would show four snippets containing the company’s name and the words ‘suspected fraud, public prosecutor is investigating’ as news headlines. However, the company was not being investigated for fraud (§ 263 StGB - German criminal code), but for investment fraud (§ 264a StGB). While both crimes are fraud-related, the legal requirements for investment fraud are very different from regular fraud. In particular, in case of investment fraud, no deception needs to have taken place (yet) and no damage needs to have occurred. Thus, the statement that the company was being investigated because of fraud was false. Under German law, making such a false claim about a company could infringe the company‘s right of publicity. This led to a first court case between the parties, in which Google was ordered by the regional court of Munich (case no. 25 O 3214/17) to stop showing the website(s) with the infringing text in its search results. Again, think through the circumstances here. (1) This wasn't when you searched on the company name, but only the company name plus "suspected fraud." (2) The company was being investigated for investment fraud, but apparently a different kind of fraud than just plain old "fraud" and somehow that was a problem? (3) Anyone who did this search could then do their own research to figure out the situation. Google shouldn't be responsible for people failing to read or research the details. But, no, the court ordered Google to remove. This seems like fairly blatant censorship of information that could be quite useful to the public. Either way, after Google lost the original case, it removed the snippet and forwarded the details to Lumen, as it does with all takedown demands. And the company at issue went back to court to complain about this fairly basic level of necessary transparency. And while Google won the first round, on appeal, the court went the other way. Back to IP Kitten: the Higher Regional Court found that Google’s main function that needs to be considered here is not the provision of a (direct) hyperlink to the infringing statement, but rather the provision of a search function that enables users to find the (otherwise hard to find) website. By presenting its users an explanation about the deleted search result, combined with a hyperlink to the Lumen website where the deleted search result could be clicked, Google (still) enabled users to find and read the infringing statements, even after being ordered by a court to discontinue doing so. The court found that it made no difference whether one or two clicks are needed to get to the result. The author at IP Kitten thinks this result makes sense, but I can't see how it makes any amount of sense at all. Beyond the problems discussed above, the issue here is again about a just slightly misleading claim made by a third party who has nothing to do with this lawsuit. If the company has an issue, it should be with that party, and not Google, who is just one tool to find stuff online, and which already required a convoluted search to find. The fact that, in an effort to be transparent, a user might have to jump through a bunch of additional steps just to find an article isn't a problem. Again, people should do their own research. Google shouldn't be responsible for someone failing to do that. But, it appears, in Germany, Google now is responsible for making sure that you don't read badly written articles. Permalink | Comments | Email This Story

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In response to FOIA lawsuits, the Office of the Director of National Intelligence turned over two (!) stacks of FISC documents pertaining to Section 702 surveillance. One document [PDF] (from an ACLU lawsuit) reveals a tech company (whose name is redacted) refused to hand over (or provide access to) communications requested with a Section 702 order. This order was issued in 2014, so it's a post-Snowden challenge. The end result -- determined with almost zero participation from the tech company -- is an order from Judge Rosemary Collyer demanding the tech company produce the records. Discussed along the way to this conclusion are several things, including the NSA's problems with the Section 215 collection. There are also discussions about the adequacy of the NSA's minimization processes, meant to protect the privacy of US persons caught in the agency's internet dragnet. Unfortunately, we're not able to see much of this discussion, thanks to the opinion being heavily-redacted. But we may be one step ahead of the mystery tech company, which had to fight this legal battle completely blind. All arguments and evidence were provided by the government, in camera and ex parte. The tech company was apparently allowed to submit its arguments, but was otherwise sidelined by the national security nature of the legal proceeding. The opinion notes that the ODNI had issued a new 702 directive in 2014, presumably expanding the NSA's collection powers, which seems like a really odd decision post-Snowden. This is apparently what the tech company challenged. There's not much else that can be gleaned from the court's discussion of the expanded powers and their effect on the Fourth Amendment, other than it disagrees with the tech company's assessment. At one point, the court states "This argument is simply not supported by the facts" before heading into six fully-redacted pages apparently discussing the facts that don't support the company's arguments. The court also finds, despite evidence to the contrary, NSA "incidental" collection of US persons' communications does not happen "frequently, or even on a regular basis." Any discussion of what the court feels is an acceptable amount of violations is, again, hidden under page after page of redaction. To sum up, the court concludes that even if it's a close call on the Fourth Amendment (and even if the company had standing to bring this challenge), the national security purpose of the collection outweighs most possible privacy concerns. It expresses a great deal of faith in the NSA's internal oversight -- which seems odd considering the admissions by the NSA about its collection tactics in other released documents, including the fact that it relies almost completely on self-reporting and spot checks to minimize use of incidentally-collected US persons' communications. The good news is that the NSA's inability to stop incidental collection resulted in the shutdown of the "about" collection. The other good news is some mystery company took a strong stand to protect its users' privacy. The downside, however, is the challenge failed. Worse, it appears the NSA's other 702 collection methods are still capable of grabbing US persons' communications and its internal oversight hasn't gotten much better over the years. Permalink | Comments | Email This Story

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Here's a digital library designed to be your reference for everything from web development to software engineering. The $29 Coding Powerhouse eBook Bundle contains 9 books, which you will have access to 24/7 from any of your streaming devices. You can learn about Angular2, Python, JavaScript, Swift3, React, and more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Last week, I presented at the always excellent Personal Democracy Forum event in NY, talking publicly for the first time about the lawsuit that's been filed against us. Specifically, what I chose to talk about is the real chilling effects that such a lawsuit can have -- and has already had on us. We've written about SLAPP defamation suits for many, many years. But it's (unfortunately) different (and much, much worse) to experience it yourself. You can see the video here, which got more emotional than I had expected it to be. If you agree that these chilling effects are a dangerous attack on free speech, please consider supporting our ongoing reporting via any of the following methods: ISupportJournalism.com, Patreon.com, our own Insider Shop, or perhaps you want to buy some t-shirts, hoodies, mugs or stickers. However you support us: thank you. Related to this, I also want to thank both the staff and attendees at PDF, who were amazing, kind, thoughtful and helpful to me over the course of the event. Separately, Ars Technica just published a long deep dive article on the claims that the plaintiff in the case against us, Shiva Ayyadurai, has made. It's a worthwhile read. Permalink | Comments | Email This Story

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For much of the last decade we've noted that Verizon received billions in tax breaks and subsidies for fiber optic networks that were only partially deployed. From New Jersey to Pennsylvania, from New York City to Philadelphia, newswires the last few years have been filled with complaints from consumers and governments who say the company didn't finish the job it was handsomely paid to complete, leaving a patchwork of spotty next-gen broadband availability, and entire cities filled with customers still paying an arm and a leg for circa 2002 DSL speeds. And the problem isn't just that Verizon didn't upgrade its networks, it's that the company has been neglecting the aging DSL network equipment already in place. In 2015, for example, frustrated Verizon union employees submitted a complaint to the Pennsylvania Public Utility Commission highlighting just what Verizon's network hardware currently looks like in many parts of a state that was supposed to have been upgraded to fiber years ago: The same can be said for a wide variety of instances where Verizon couldn't really be bothered to work particularly hard at utility pole repair: Given Verizon's political stranglehold over federal and local regulators and legislators, efforts to hold the company accountable on this front have been decidedly mixed. The company has often added insult to injury by insisting these complaints are either "pure nonsense," or at times by trying to claim that people who would like their phone and DSL lines to be upgraded (or hey, to simply work) are just being archaic Luddites because they refuse to sign up for significantly more expensive wireless service that in many areas may not be available anyway: "This is a classic example of how some people fear new technology so they reactively reject it instead of accepting it, no matter how irrational that fear may be," Gierczynski said. Verizon opponents believe it plans to offer non-FiOS neighborhoods what they said is inferior wireless or Voice Link services once the firm's aging, deteriorating copper wire lines stop working altogether. "I think people are going to look back and laugh (at copper landline proponents) ... just like (those) who were part of the Anti-Digit Dialing League," he added, referring to people who resisted the seven-digit phone numbers that began in the late 1950s. Yes, hilarious. The goal for both AT&T and Verizon over the last few years has been to effectively let these unwanted DSL customers rot on the vine, until company lobbyists can convince state regulators to purge regulations requiring they continue to serve these users, many of which are elderly. This has been done (as evident above) by suggesting that killing off fixed-line DSL networks and shoving these users to wireless is all part of a miraculous "IP transition" that will deliver untold, amazing technological advancements to local communities. Complications arise from the fact that wireless (especially in rural areas) isn't yet a viable alternative to fixed lines. Many of these lines were also taxpayer subsidized, and are still very much in use. Not to mention the fact that Verizon took billions more from these communities to deliver fiber upgrades never delivered. That said, there has been some modest traction in recent weeks after Verizon was forced by Pennsylvania regulators to at least repair some of the worst parts of its neglected network: "The telecom giant will repair the worst of its legacy copper network in areas without FiOS and replace 15,000 unsightly and dangerous “double poles” on Pennsylvania roadsides, according to the deal between the company and the company’s Pennsylvania unionized workers who are part of the Communications Workers of America." The agreement falls well short of requiring Verizon to admit fault of any kind, or forcing Verizon to upgrade these networks to fiber as per a 1993 agreement with the state -- that critics say was supposed to result in uniform fiber coverage statewide. But Verizon has also been forced to strike a similar deal by the New Jersey Board of Public Utilities, who found that, again, Verizon neglected its fixed-line networks to an almost comical degree. It won't, however, be forced to upgrade the state to fiber: "But the telecom giant won’t be wiring a wide swath of Cumberland, Burlington, Salem, and Atlantic Counties with the high-speed Fios service that has been extended to millions of residents in other parts of New Jersey, according to a settlement among state officials, Verizon, and 17 towns that complained about substandard phone service. Fios is Verizon’s branded service for internet, television, and voice services, delivered over fiber lines. In late 2015, the 17 towns, mostly in Cumberland County, complained to the state Board of Public Utilities about downed phones and bad or no internet. Service has been particularly unreliable on rainy or damp days, which result in buzzing water-soaked copper phone lines because of their age and rundown condition, local residents and officials say." These are important wins, but in full context they're a drop in the bucket. Time, and time, and time again communities have tried to hold the telco accountable for taking taxpayer funds, then failing to upgrade essential infrastructure. Verizon's attentions meanwhile are elsewhere. The company recently acquired AOL and Yahoo in the hope of pivoting from neglecting running fixed-line networks to becoming a major media and advertising competitor to Google and Facebook (success on that front has been decidedly mixed). It's abundantly clear that Verizon executives are done with these communities, but these communities also have made it abundantly clear (as New York City's recent lawsuit against the telco will attest) -- they're not quite yet done with Verizon. 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If there's been a good right of publicity law enacted, we've yet to see it. Ostensibly enacted to prevent celebrities' likenesses, words, etc. being used in way they wouldn't approve of, the laws are usually deployed by dead celebrities' families to censor speech. Most of the censorship activity focuses on commercial use of dead public figures, implying endorsements from beyond the grave. But the laws have also been abused to shut down biographical projects and, in one notable case, was used by a deposed and jailed dictator who though Activision should have paid him something for using his likeness in a Call of Duty game. This is why the EFF is warning people about another right of publicity bill being quickly and quietly ushered through the New York state legislature. The New York State Legislature is considering a bill that would radically reshape its right of publicity law. Assembly Bill A08155 [PDF] would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a New York resident. The bill was introduced less than two weeks ago and is being rushed through without any hearings. EFF is urging legislators to slow down before passing an unnecessary law that would threaten the freedom of expression of individuals, activists, artists, and journalists around the United States. New York already has an abusable right of publicity law. This bill would make it worse. It expands the definition of "likeness" to include things like "mannerisms" and "gestures." It contains very few protections for free speech. It adds 40 years of postmortem protection, meaning those most likely to benefit from the law aren't those whose likeness is being used/abused, but rather their heirs. Perhaps worst of all, it expands the law's jurisdiction, allowing out-of-state celebrities to file suits if their likenesses were used in the state of New York. This alone will encourage more litigation (even if most is dismissed early on), thanks to the internet's lack of boundaries. Simply posting something on a website anywhere could place the person posting it at risk if the website is accessible in New York. It's an invitation for forum-shopping, disguised as an extra layer of protection for public figures. Permalink | Comments | Email This Story

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Here on Techdirt we like to remind people that drones are not just death-dealing machines in the sky, but can also be a force for good. However, like any other technology, drones can and are utilized by the worst as well as the best. Inevitably, that includes terrorist groups like Islamic State (ISIS), as an interesting article from the Los Angeles Times reveals: In the seven months of the Iraqi government's drive to recapture Mosul from the jihadists, small drones have become a signature tactic of the [ISIS] group: Their appearance on the horizon, loaded with a camera, signals that punishing mortar barrages will soon be on the way. Others guide car bombs to their target, or drop small explosives miles behind the front line. Most of these drones come from the Chinese company DJI, generally regarded as the leading drone manufacturer in terms of market share. Clearly, the routine use of its products by ISIS is not the best publicity in the world: Reports that Islamic State had used DJI products pushed the company in February to create a geofence, a software restriction that creates a no-fly zone, over large swaths of Iraq and Syria, specifically over Mosul. But there are problems with geofencing. First, there is the issue of when a demand to geofence certain regions is legitimate, since answering that question requires a political judgment about who is really in power. Secondly, it's not that hard to get around geofencing, either by using quick fixes, or simply swapping to other drones that run on open source code that allows geofencing to be turned off. Given that geofencing may not work, countermeasures are generally necessary. Those include rather crude solutions like shooting drones out of the sky with firearms, to more sophisticated ones like the DroneGun, from the Australia-based DroneShield Ltd., a company that specializes in counter-drone technology: [the DroneGun] jams the GPS signal and radio linkages between the drone and its operator. The device, which sends out a jamming cone over a mile in length, forces the drone to either land immediately or to return to its base so that it can be tracked. DroneShield's CEO, Oleg Vornik, already has some thoughts on what terrorists will do next: "we believe organizations like ISIS will begin deploying swarms of drones. If you saw the Super Bowl halftime, you would have seen dozens of drones with little lights on them moving in a choreographed fashion," Vornik said. "That technology can be used to load grenades onto a large number of drones." In other words, as drones continue to develop new and potentially exciting capabilities, so terrorists will eagerly embrace them -- just like everyone else. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
Microsoft may not have to respond to government demands for US persons' data held overseas, but it looks like everyone else (specifically, Google) will have to keep trawling their foreign data stores for US law enforcement. The Second Circuit Appeals Court ruled US government warrants don't apply to overseas data. Courts outside of the Second Circuit are finding this ruling doesn't apply to Google's foreign data storage. The most obvious reason for this is other circuits aren't bound by this decision. The less obvious reason has to do with how Google stores its data. As Google describes it, communications and data are in constant motion, moving in and out of the country as needed for maximum efficiency. When a warrant arrives, Google gathers everything it finds in its domestic servers but hands back a null response to data currently held overseas. Sometimes what Google hands law enforcement is nothing more than unusable digital fragments. Obviously, the government isn't happy with this new status quo. And it is a new status quo, as is pointed out in this ruling [PDF] by a DC magistrate judge [via FourthAmendment.com]. The ruling here aligns itself with one handed down in Pennsylvania earlier this year. In that decision -- like in this one -- the judge noted Google used to capture everything requested, no matter where it was located. It's only very recently Google has refused to chase down data (and data fragments) located in servers around the world. The process was described this way in the Pennsylvania decision: Google stores user data in various locations, some of which are in the United States and some of which are in countries outside the United States. Some user files may be broken into component parts, and different parts of a single file may be stored in different locations (and, accordingly, different countries) at the same time. Google operates a state-of-the-art intelligent network that, with respect to some types of data, including some of the data at issue in this case, automatically moves data from one location on Google's network to another as frequently as needed to optimize for performance, reliability, and other efficiencies. As a result, the country or countries in which specific user data, or components of that data, is located may change. It is possible that the network will change the location of data between the time when the legal process is sought and when it is served. As such, Google contends that it does not currently have the capability, for all of its services, to determine the location of the data and produce that data to a human user at any particular point in time. Nothing has changed here. And nothing has changed in terms of legal analysis, despite this memorandum order being issued in a DC court. The court finds Google does not effect a seizure of requested data because it simply makes a copy of it. It also points out (and Google concedes) that it does not act as a government agent when it does this, despite the only reason for Google's copying of the data is to respond to a government warrant. The court notes the Stored Communications Act does carry privacy implications, but only as far as the private entity's actions -- not the government's demands. The court's analysis states the SCA provisions only prohibits unlawful access (such as hacking) while regulating companies' responses to government demands. The court goes on to say Google's view of its legal responsibilities is completely untenable. Because of the transitory nature of Google's data handling, it would never be able to fully comply with demands for records, no matter which country issued the order. Finally, it must be said that the above Morrison analysis of the operative sections of the SCA has the added benefit of avoiding the bizarre results that application of the Microsoft decision to modern data networks like Google's would produce. If that decision's focus on the physical location of the data's storage were to be applied to service providers using such networks, the records and information the government would receive in response to an SCA warrant may differ significantly depending on the date on which the warrant is served. Indeed, the same warrant served on ten different days may well produce ten different results depending on where on the network the shards of responsive data are located at the moment each warrant is served. Such random results -- generated by a computer algorithm -- would serve the interests of neither privacy nor international comity. Compounding the problem, even assuming the service provider could and would identify for law enforcement the location of the foreign-based servers on which the missing data was stored (as Google refused to do here), that knowledge would effectively be useless to the government here. By the time the government could initiate the international legal process necessary to obtain the missing data from wherever it was stored, it is entirely possible that the network would have relocated the data yet again to a server in a different country. Moreover, it is Google's position that it need not respond overseas to any such international legal requests because it is only at its headquarters in California that its data can be accessed and compiled into a recognizable electronic file. Thus, in Google's view, the only means available to obtain records and information related to a Google account is by serving an SCA warrant on its LIS team in California. The magistrate says that's not going to work -- not under the stipulations of the SCA. In fact, it's just not going to work at all because of Google's data-handling. It may be primed for efficiency, but does little to help it comply with warrants. To reach the conclusion advanced by Google here, the Court would need to find that a properly-issued SCA warrant requiring the disclosure to law enforcement in the United States from Google's headquarters in the United States of digital files accessible only from the United States constitutes an extraterritorial application of the SCA simply because pieces of data that make up those files were stored on a server located outside the United States at the moment in time the warrant was executed. Because such a conclusion runs contrary to the straightforward extraterritorial analysis of the SCA under Morrison detailed above, the Court finds that Google has not shown cause for its failure to produce all the records and information called for in the instant warrant within its possession, custody, or control. In the end, the court orders Google to ignore the realities of its data flow. It may make things easier for law enforcement, but it has very little to do with keeping the government within its jurisdictional confines. Google's LIS representatives in California can access, compile, and disclose to the government those records and information with the push of a button and "without ever leaving their desks in the United States." Microsoft, 829 F.3d at 229 (Lynch, J., concurring). Because that "entire process takes place domestically," id., Google will be ordered to comply with the warrant in full, and to disclose to the government all responsive electronic records and infonnation identified in Attachment B to the warrant within its possession, custody or control, wherever those records and information may be electronically stored. In essence, Google is being ordered to act as a government agent to secure all requested data wherever it happens to reside. Since it can do it from a California office, the court reasons nothing foreign is touched -- at least not by the government. Once it's all packaged up locally, the local boys can access it without fear of a suppression challenge. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
How much does it take to cross the line into defamation? Far, far more than the plaintiff in this case would have hoped. It started as so many defamation cases do: with the president of a property association drawing the criticism of other residents. Anthony Milazzo -- winner of the condo association's presidential election (and local dentist) -- was accused of many things by residents on a self-appointed watchdog's blog. As Eric Goldman points out, the blog's owners were rather proud of the site's ability to spread criticism and harvest outraged responses. A few self-described “troublemaker” residents (as they proudly declare, “We’re the sand in the oyster”) run a blog monitoring the association, including breaking news coverage on issues like a cost overrun on hallway renovations and repairs made using “degraded cement.” After an election for association leadership, a losing candidate blogged that the winner, Milazzo, rigged the election; subsequent posts accused the winner of other malfeasances. The court notes the posts following the disputed election were far from flattering. Some of the residents' posts are quoted in the court's opinion [PDF]. The posts make claims of election rigging, the (nonspecific) breaking of laws, a comparison to North Korea's government, and this bit of word coining: "As to the phrase 'a milazzoed moment,' that's a regional colloquialism used to describe those instances when truth gets twisted, raped, then beaten into a sweet hollow mush that's known to trigger the gag reflex and associated depression. Fits of socially inappropriate laughter have also been documented." Milazzo was obviously unhappy with these portrayals. More specifically, he was miffed the site had chosen to include a link to his dental practice in one of the posts, which he claimed led to quantifiable harm to his day job: Milazzo asserted that because of defendants' defamatory statements, for the period from 2014 to 2016, his dental practice experienced a decline in: (1) patient visits from 546 to 428; (2) new patients from 351 to 268; and (3) total days worked from 162 to 104 (annualized). All of Milazzo's claims fail. The court finds the content of the blog was indeed "offensive, rude, and annoying," but it was not defamatory. Goldman's sums up: The vote rigging discussion expressly acknowledged it lacked supporting evidence. The discussion claiming Milazzo broke 3 laws didn’t specify which laws. The blog posts that “portray Milazzo as an unsavory, untrustworthy and crooked president incapable of effectively operating the condominium association” were all protected opinions and weren’t capable of verification. Regarding some blogged statements, the court says “an investigation of those claims would be fruitless given their overly vague, broad and conclusory nature lacking any basis in fact.” Talking smack isn't defamation -- at least not in this case. Goldman is somewhat alarmed to see the court actually attempt to tackle the defamation-via-hyperlink argument ("The court seems to imply that the presence of the outlink leads to more inbound search engine traffic from people searching for Milazzo, which is just wrong."), but seeing as it has no bearing on the outcome of the case, he gives it a pass. Indeed, the blog's self-proclaimed "sand in the oyster" status may have helped the defendants' defamation defense. As the court points out, context matters. [W]hen read in literary and social context, it is apparent that each of the complained of defamatory statements were an expression of opinion reflecting dissatisfaction with Milazzo and the election results, but were not factual statements. Although all five statements portray Milazzo in a negative light, the statements consist of the author's unsubstantiated rhetoric and opinionated editorial comments, often times resorting to hyperbole. Nothing in the identified statements would cause a reasonable person to believe they were statements of fact; instead, the statements were accusations ambiguous in nature and lacking any supportable basis. Unfortunately, defending against these defamation claims still cost the defendants money. An anti-SLAPP law, either at the state level (Illinois) or federal, might have allowed the defendants to recover their costs. At the very least, it may have caused Milazzo to think twice before firing off a lawsuit in the face of hyperbolic criticism. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
The EU Court of Justice (CJEU) has been issuing some seriously dangerous copyright rulings recently. Last fall, for example, there was the ruling saying that mere links to infringing content could be direct infringement, rather than indirect (or not infringing at all). Even worse, that ruling argued that posting hyperlinks on a site that is "for profit" requires an assumption that the platform is sophisticated enough to make sure the links are not to infringing content. As we warned that would lead to problematic results, such as a followup ruling in Sweden that merely embedding a YouTube video can be seen as infringing. Given that background it is not surprising, but still rather unfortunate, that the latest CJEU ruling on copyright takes this to the next level. It basically ignores the clear safe harbors of the EU's Copyright Directive -- which note that platforms should not be responsible for infringing actions of their users -- and says that the Pirate Bay is liable for infringement by its users because it has made infringing works "available." In today’s judgment, the Court holds that the making available and management of an online sharing platform must be considered to be an act of communication for the purposes of the directive. That's... a very dangerous interpretation of the law. It undermines two very important concepts in just one sentence. The first is the basic concept of intermediary liability protections -- which say that a platform should not and cannot be held liable for the actions of its users. This should be common sense. If the users break the law, go after the users, not the tools they use. This ruling does the opposite. The second concept that is undermined here is that for infringement to actually occur, distribution (i.e., actual copying) has to happen. Instead, this ruling embraces the twisted notion that merely "making available" a work is somehow infringing. And, here, the court not only gets both of those important concepts wrong, but merges the wrongness together, such that a platform that people use to make works available is suddenly liable for the theoretical infringement of those works. That's... bizarre. And, of course, the end result of this is that the CJEU is basically clearing the way for courts to order ISPs to block the Pirate Bay entirely (even non-infringing content on TPB). The folks over at TorrentFreak have the background details on the case, which involve attempts by the Dutch anti-piracy organization BREIN to demand that ISPs block all access to TPB. This ruling clears the way for that to happen. There are other problematic parts of the CJEU ruling (the full text is not yet out, but this is from the press release from the CJEU explaining the ruling). Here, for example, the Court tries to justify ignoring the intermediary liability protections that should be afforded to a platform by trying to argue that TPB somehow does more, which makes it deserving of being liable: Whilst it accepts that the works in question are placed online by the users, the Court highlights the fact that the operators of the platform play an essential role in making those works available. In that context, the Court notes that the operators of the platform index the torrent files so that the works to which those files refer can be easily located and downloaded by users. ‘The Pirate Bay’ also offers — in addition to a search engine — categories based on the type of the works, their genre or their popularity. Furthermore, the operators delete obsolete or faulty torrent files and actively filter some content. But think about that for a second. That's the kind of thing that basically any platform does. Indexing what users post on your platform is a standard thing. I mean, our search here has indexed what uses post in the comments, but that shouldn't magically make us liable for what users post in the comments. Second, the fact that they "delete obsolete or faulty torrent files and actively filter some content" shouldn't magically make them liable. In fact, this is exactly why, in the US context, we have a section of CDA 230 that explicitly says that moderating some content shouldn't make you liable for that which you left up. That's because the end result of reading the law this way will be the exact opposite of what most people want. That is, based on this ruling platforms should not moderate any content at all because the court says that doing so suddenly makes you liable for that which you did not moderate. Thus it actually actively discourages content moderation. The other problematic part from the press release about the ruling is this: Moreover, the operators of ‘The Pirate Bay’ have been informed that their platform provides access to copyright-protected works published without the authorisation of the rightholders. In addition, the same operators expressly display, on blogs and forums accessible on that platform, their intention of making protected works available to users, and encourage the latter to make copies of those works. In any event, it is clear from the Hoge Raad’s decision that the operators of ‘The Pirate Bay’ cannot be unaware that this platform provides access to works published without the consent of the rightholders. Again, this should not and cannot be the basis for liability. Again, within the US context, we went over this in the Viacom v. YouTube case. It's one thing to know that some infringement happens via your platform. It's another thing entirely to know which content is infringing. That's not as easy to figure out as some people insist. Again, this kind of thinking would outlaw things like the VCR. Yes, the makers of VCRs knew that some infringing content would be viewed or recorded via the devices, but the device makers were not held liable for that. This CJEU ruling seems to break with all of that. And while representatives from The Pirate Bay are laughing off this ruling (quoted in the Torrentfreak article above), it won't be a laughing matter for many other companies who may face expanded liability because of this mixed up ruling. It also, likely, will depress entrepreneurship and innovation in the platform space in the EU. All because the legacy content industry is so infatuated with The Pirate Bay that it won't focus on improving its own offerings instead. Permalink | Comments | Email This Story

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