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

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

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

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

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

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

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

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

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

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

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

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As we've noted several times before, law enforcement and investigative agencies tend to roll out expanded surveillance systems without bothering to run it by the citizens they're planning to surveil. The systems and programs are deployed, FOIA battles are waged and, finally, at some point, the information makes its way to the public. It is only then that most agencies start considering the privacy implications of their surveillance systems, and these are usually addressed by begrudging, minimal protections being belatedly applied. Now, it's obvious why these agencies don't inform the public of their plans. They may uses terms like "security" and "officer safety" and theorize that making any details public would just allow criminals to find ways to avoid the persistent gaze of multiple surveillance options, but underneath it all, they know the public isn't going to just sit there and allow them to deploy intrusive surveillance programs. The Los Angeles County Sheriff's Department is using a new surveillance program utilizing the technology of a private contractor doing business under the not-scary-at-all name of "Persistent Surveillance Systems." This gives the LASD a literal eye in the sky that provides coverage it can't achieve with systems already in place. But it does more than just give the LASD yet another camera. It provides the agency with some impressive tools to manipulate the recordings. The system, known as wide-area surveillance, is something of a time machine – the entire city is filmed and recorded in real time. Imagine Google Earth with a rewind button and the ability to play back the movement of cars and people as they scurry about the city. “We literally watched all of Compton during the time that we were flying, so we could zoom in anywhere within the city of Compton and follow cars and see people,” [Ross] McNutt [owner of Persistent Surveillance Systems] said. “Our goal was to basically jump to where reported crimes occurred and see what information we could generate that would help investigators solve the crimes.” As with nearly everything making its way into law enforcement hands these days, this technology was developed and deployed first in battlefields. Persistent Surveillance Systems' first proving grounds were Afghanistan and Iraq, tracking down bombing suspects. All it takes is a cluster of high-powered cameras and a single civilian plane to watch over Compton with warzone-quality surveillance. According to McNutt, the camera system covers "10,000 times" the area a single police helicopter can. McNutt also believes the system can be expanded to cover an area as large as the entire city of San Francisco. While the cameras aren't quite powerful enough to allow the LASD to make use of another, increasingly popular technological tool -- facial recognition -- this still gives the LASD an unprecedented coverage area. Camera technology continues to improve, so there's no reason to believe a few of McNutt's planes won't someday (possibly very soon) have the power to assist the LASD with adding new mugshots to its databases. But, as pointed out earlier, where does the public fit into all of this? Were privacy concerns addressed before moving forward with Persistent Surveillance Systems? I'm not even going to try to set up this astounding response from an LASD officer. Just read it: “The system was kind of kept confidential from everybody in the public,” (LASD Sgt.) Iketani said. “A lot of people do have a problem with the eye in the sky, the Big Brother, so in order to mitigate any of those kinds of complaints, we basically kept it pretty hush-hush.” You know, it's one thing to think this. We know from experience that many law enforcement officials (as well as the rank-and-file) absolutely resent being publicly accountable and having to make the occasional token effort to respect civil liberties, so it's not surprising that the LASD knew the easiest way to avoid a negative public was to lock the public out. It is, however, quite another thing to come out on record and say this. This shows just how little the LASD actually cares about the public's concerns. The agency knew the public wouldn't be happy and an official comes right out and tells the public that his agency and others don't really care. What they don't know won't hurt them... until it's too late to do anything about it. This was followed up by another statement from an LAPD official, who noted that frogs generally come around to the idea of being boiled to death. The center’s commanding officer, Capt. John Romero, recognizes the concerns but equates them with public resistance to street lights in America’s earliest days. “People thought that this is the government trying to see what we’re doing at night, to spy on us,” Romero said. “And so over time, things shifted, and now if you try to take down street lights in Los Angeles or Boston or anywhere else, people will say no.” There's no honesty or accountability in these statements. There's only an admission that Los Angeles law enforcement feels the public is there to serve them and not the other way around. Hiding your plans from the public doesn't instill confidence that their rights will be respected. Neither does telling them they'll "get used to it." Instead, it creates an even more antagonistic environment, one where the public is viewed as a nuisance at best by people whose power is derived from the same citizens they so obviously have no respect for. Permalink | Comments | Email This Story

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Edward Snowden has generally been staying out of the limelight so that the NSA story is about the surveillance not the whistleblower. He's given occasional interviews and delivered a few short speeches via videolink, but usually of a fairly low-key nature. That makes his unexpected appearance today on a marathon televised question-and-answer session with Vladimir Putin -- again by videolink -- extremely odd. Here's his question, as reported by The Guardian: Snowden asked: "Does Russia intercept or store or analyse the communication of millions of individuals?" He went on to ask whether increasing the effectiveness of internal security systems could ever justify such actions. To which Putin replied: "Mr Snowden you are a former agent, a spy, I used to work for a intelligence service, we are going to talk the same language." He said Russia did not have a comparable programme, stating: "Our agents are controlled by law. You have to get court permission to put an individual under surveillance. We don't have mass permission, and our law makes it impossible for that kind of mass permission to exist." He said he was aware that "criminals and terrorists" relied on this kind of [technology], and that their actions demanded a response from the security services. "We have to use technical means to respond to their crimes, including those of a terrorist nature, we do have some efforts like that. We don't have a mass control. I hope we [w]on't do that," he said. It's really hard to know why Snowden asked this question. Perhaps he wanted to emphasize the disproportionate nature of NSA spying by contrasting it with Russia's approach; perhaps he thought his appearance would jolt a jaded public and focus renewed attention on the key issues. But surely he must have guessed that Putin would answer as he did -- whether or not it is true -- that Russia uses surveillance strictly according to the law, that there is no massive, disproportionate spying of the kind practiced by the NSA, etc. etc. He must have known that Putin would easily turn Snowden's question into a wonderful opportunity to score points against the US. Inevitably, then, this appearance will be leapt on by those who have maintained that Snowden is some kind of Russian spy, and that he has been working for Putin all along. As Techdirt has noted, that story doesn't stand up, but this unexpected intervention by Snowden certainly doesn't do anything to dispel it. For someone who until now has judged when and how to make public statements so skilfully and effectively, this seems like an incredible misstep. It really makes you wonder what might lie behind it. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Searching beyond Comcast itself, it's hard to find too many people who have no objections to this massive cable company acquiring another massive cable company. Inside the Beltway, where it possibly matters most, you can find a few defenders, many of whom have pocketed Comcast's money during their legislative careers. But once you step outside of the insiders, you have a multitude of people who realize that, thanks to years of abusive behavior by incumbent service providers, making these companies bigger certainly won't make them better. I'm not sure where the Washington Post's editorial board falls in terms of insider/outsider status, but it just issued an editorial supporting the merger. And, oh man, it's just a terrible set of opinions bolstered by some equally terrible assertions. The gist of it is that a massive cable company is no problem because regulators have done such a great job at ensuring a competitive playing field to this point. The government’s smartest move is not to block the merger, but to make clear that regulators will respond if big industry players begin to violate basic principles of market fairness. There's no question of "if." The violations are not only happening, they're ongoing. Incumbents have squeezed out upstart competitors by using their entrenched positions, pushing for favorable legislation and protecting it all with an army of lawyers that makes it almost impossible for new players to enter the market. WaPo's board tries to deflect the arguments raised by merger opponents by deploying a combination of Comcast talking points and assertions that have no basis in fact. [T]raditional cable television and wired broadband providers are in increasingly dire competition with online video services, wireless Internet providers and a cash-flush Google expanding its installation of high-speed fiber-optic cable across the country. Consolidation is the only way to ensure these companies have enough capital to invest in new and better technology that will keep their customers happy — or, at least, satisfied enough not to cancel their subscriptions. Of everything that's wrong with this paragraph, the presentation of Google's fiber service as a serious competitor is perhaps the worst. Google's limited market entry only presents a direct threat to incumbents in the few areas it's selected to offer its service. At some point in the future, Google may expand the number of markets, but it's a stretch to call a handful of deployments a true competitor to the cable giants. Even the incumbents seem to realize they won't be going head-to-head with Google any time soon -- if at all -- judging from the number of "fiber to the press release" statements being issued. And it's not as if the cable companies are lacking in capital. The biggest names in the business are also flush with money and they're certainly not spending it on "new and better technology." The supposed "wireless competitors" are giants themselves -- old school incumbents like AT&T that are divesting themselves of their landlines just as quickly as regulators will let them. These companies prefer wireless because it's more profitable, not because they have any desire to keep their customers happy. The maintenance costs are lower and the opportunity to deploy caps on calls and data keeps margins high. One needs only look at Verizon's post-Hurricane Sandy efforts in New York, which saw the provider tell customers it was inferior wireless packages or nothing and the service they once had wasn't going to be repaired. More bad-to-inaccurate assertions follow. Some criticism of the merger is misleading or speculative. Cable subscribers will not lose flexibility to get their television service from another company. The market is split geographically: Comcast and Time Warner Cable do not compete for customers. The first part is only true because many cable subscribers already have little to no flexibility. There's very little for them to actually "lose." For many customers, the only "true" choice is Cable Giant A or DSL Giant A -- at best. That's not competition. That's an illusion of choice. In most markets, the number of competitors rarely rises above a very small number of interchangeable companies that work together to ensure their existing market share never dwindles. They act in concert to keep upstarts out and customers locked in. That these two companies rarely compete directly for customers makes no difference. Turning two companies into one doesn't magically increase the number of options available to cable customers. Instead of simply aligning behind the scenes to preserve a duopoly, the unity of vision will now be out in the open. If anything, this will result in a more transparent screwing of customers, but that's hardly the sort of thing regulators should be giving their thumbs up to, or be encouraged by a responsible journalistic outlet. Permalink | Comments | Email This Story

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Just a few weeks ago we wrote about scientific publishing giant Nature's somewhat abhorrent open access policy, where it's telling researchers at universities that require open access publishing that they need to get a waiver from that policy. So it seems rather strange to see that very same Nature, just days later, publishing an article about open access, in which it talks about how two of the largest funders of scientific research today, Wellcome Trust in the UK and the National Institute for Health (NIH) in the US, are starting to punish grant recipients who don't follow through on open access obligations. Both of those organizations require certain open access standards, but apparently have mostly just trusted researchers to follow through. Not any more: Now they are done with just dangling carrots. Both institutions are bringing out the sticks: cautiously and discreetly cracking down on researchers who do not make their papers publicly available. Neither agency would name those who have been sanctioned. But the London-based Wellcome Trust says that it has withheld grant payments on 63 occasions in the past year because papers resulting from the funding were not open access. And the NIH, in Bethesda, Maryland, says that it has delayed some continuing grant awards since July 2013 because of non-compliance with open-access policies, although the agency does not know the exact numbers. The report notes that this has resulted in a "noticeable jump in researchers following the rules." That makes sense. Of course, nowhere in the Nature article does reporter Richard Van Noorden ever bother to mention that his own publication is fighting against those requirements. In fact, the article reads as if it's a strong supporter of open access rules: Some scientists are not even aware that they could be penalized. Nature's news team contacted Sheila MacNeil, a tissue engineer at the University of Sheffield, UK, who has published hundreds of articles, including a March 2013 paper on making stem-cell lattices for corneal repair that was funded by the Wellcome Trust (I. Ortega et al. Acta Biomater. 9, 5511–5520; 2013). Nature pointed out that the article should be open access but is not. "This is new to me," responds MacNeil, who plans to make the paper available. "Agreeing with open access is easy — making it happen, less so," she says. Perhaps the Nature "news team" should take a look at how their own publisher is forcing researchers to ignore their open access obligations.Permalink | Comments | Email This Story

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As people have begun to learn about corporate sovereignty through plans to include it in TAFTA/TTIP, the European Commission has been trying to scotch the idea that it might allow corporations to dictate policies to nations. Here, for example, is a comment in the Commission's main TTIP FAQ, which tries to answer the question "Why is the EU including Investor to State Dispute Settlement in the TTIP?": Including measures to protect investors does not prevent governments from passing laws, nor does it lead to laws being repealed. At most, it can lead to compensation being paid. Those are all true statements in theory, but that's probably not much comfort to Romania, which has been discovering the harsh reality in the long-running discussions over whether to allow a Canadian company to create a huge open-cast gold and silver mine in the country. Here's what happened last year: Gabriel Resources Ltd. (GBU), backed by billionaire hedge-fund manager John Paulson, threatened to seek as much as $4 billion of damages should Romanian lawmakers vote to oppose its gold mine project in the country. "We have a very, very robust case, and we believe we have claims up to $4 billion that we can send to the Romanian state," Gabriel Resources Chief Executive Officer Jonathan Henry said today in a telephone interview. "We will go ahead and do that if the vote is against." As the European Commission notes, the existence of a bilateral investment treaty with Canada that includes a dispute settlement mechanism did not, in itself, stop the Romanian politicians from blocking the gold mine project in the parliamentary vote, which took place in December 2013. So everything's fine, right? Democracy prevailed, and the people were heard. After all, "at most", as the FAQ helpfully reminds us, Romania will have to pay $4 billion damages at some point. Except that, for a country with a GDP of less than $200 billion in 2013, this represents 2% of the country's entire economic production. That seems an incredibly high price to pay for the exercise of basic democracy. The danger is that faced with the threat of such enormous fines, other parliaments will lack the courage shown by Romanian's politicians, and choose to ignore the will of their people by meekly acquiescing to corporate demands. Does GBU deserve some compensation if a project is cancelled by the local government because of widespread public concerns about its safety? Perhaps -- although business always involves some risk, and foreign investment is no different. If a company is really worried about that aspect, it can take out insurance -- from the World Bank, for example. Does GBU deserve to be awarded 2% of a country's GDP, paid for by the citizens of a land struggling to raise its living standards? That hardly seems fair. And yet it's precisely what ISDS could allow, because the arbitration panel that decides such corporate sovereignty cases is unconstrained in what it can award, and not at all concerned with what the knock-on effects might be. But the politicians making up the European Commission should be, since they are supposed to represent the 500 million European citizens that pay their salaries. The fact that they are pushing as hard as they can for ISDS in TAFTA/TTIP shows which side they are really on, and that they are quite happy to put corporations before nations, and profits before people. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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If you don't know who Tom Lehrer is, well, you've missed out for a long, long time. Still, it's never too late to catch up, and there are plenty of great sources, including the The Tom Lehrer Wisdom Channel on YouTube (though, hardly a "rare cut" this remains my favorite). Of course there's much more to the lore of Lehrer than just his music, and Ben Smith at Buzzfeed has an has an excellent long discussion of Lehrer's life, including his very brief, but massive, music career, and his life for the past half a century in which he more or less tries to hide from or live down that whole episode of his life. It's a great read. But what caught my attention was some discussion that Lehrer has had with certain fans concerning the copyright on his works, whether or not it's okay to put them online and what happens to them after his death. The simple answer seems to be that Lehrer couldn't care any less about all of it. While Lehrer has made startlingly little effort to ensure a future for his work, a handful of superfans have filled in the gap. One is Erik Meyn, a Norwegian who manages the Tom Lehrer Wisdom Channel on YouTube, a feed of performance videos and playlists that has received more than 10 million views since 2007. Meyn originally posted content to the channel without Lehrer’s permission and called him from overseas in December 2008 to apologize, a conversation he later posted on the “Tom Lehrer!” Facebook page. An excerpt: TL: Well, you see, I’m fine with that channel. EM: You’re very kind. But my question is: Who in your family will take care of your copyright and your songs in the distant future? TL: I don’t have a family. EM: OK, but what do you think will happen to the channel and your songs? And if you have someone who will act on your behalf, could you give them my name in case they’d want the channel taken down? TL: Yes, but there’s no need to remove that channel. EM: I was just wondering what will happen in the future, because you’re certainly going to continue to sell records. TL: Well, I don’t need to make money after I’m dead. These things will be taken care of. EM: I feel like I gave away some of your songs to public domain without even asking you, and that wasn’t very nice of me. TL: But I’m fine with that, you know. EM: Will you establish any kind of foundation or charity or something like that? TL: No, I won’t. They’re mostly rip-offs. There's also the discussion with a fan who has been in contact here and there with Lehrer for the past 20 years or so, who stopped by his house once, found Lehrer's master tapes, and Lehrer just gave them to him: In 2011, Morris was rummaging through the Sparks Street basement, and alongside the collection of books and records Lehrer referred to as his “Noel Coward shrine” were two boxes marked “masters.” They were, to Morris, “the holy grail.” These were the original recordings of the 1959 album More Songs by Tom Lehrer: the orchestral session and outtakes and Lehrer’s recordings. Morris offered to help Lehrer remix them from half-inch tapes into stereo recordings. “Well, why don’t you just take them with you?” Lehrer said. “I was like, ‘Are you kidding?! These are the master copies!’” Morris recalled. “I was just trying to reassure him, I’ll be very careful with them, I won’t let them fall in the wrong hands, I’m not going to distribute copies to anyone without your permission.” “I don’t care!” Lehrer told him. “They’re not worth anything to me.” None of this is to suggest that any other artists should necessarily follow down the same path. But I always find it interesting to see artists who decide that the traditional concepts of copyright don't make any sense to them, and just choose not to have anything to do with them. Given that Lehrer is so influential on so many people in so many different fields today, it seemed worth sharing this little tidbit.Permalink | Comments | Email This Story

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Trying to find a date using statistics and computers isn't exactly a new idea. (Punch cards were used in some of the earliest versions of computer dating.) As technology has improved, you might expect that dating has gotten better as well, but some modifications of the Drake equation show just how unlikely the odds are. Here are a few more data points in the realm of romantic relationships. A Canadian study suggests that kids who start dating early (at an average age of 11.6 years old) are prone to more school and behavioral problems than their late-booming peers. Not surprisingly, students with high academic goals were more likely to be late bloomers on the dating scene. [url] The "Yelp for Men" app lets women rate guys/ex-boyfriends/bosses as relationship material -- algorithmically generating a score (on a 1-10 scale) for every dude. The company behind the app boasts that 25% of all college women have used Lulu at some point. [url] The Pew Research Center has been tracking online dating statistics and has seen online dating get more popular with time. Nearly 60% of all internet users say online dating is a sensible way to meet people (up from 44% in 2005). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Michael Geist is raising the alarm on a dangerous new bill in Canada, called the "Digital Privacy Act" (Bill S-4), which will actually serve to undermine many people's privacy. Much of the bill is focused on security breach disclosure rules, something that is important and useful. But, with that are some hidden, and extremely problematic, sections as well. In light of revelations that telecom companies and Internet companies already disclose subscriber information tens of thousands of times every year without a court order, the immunity provision is enormously problematic. Yet it pales in comparison to the Digital Privacy Act, which would expand the possibility of warrantless disclosure to anyone, not just law enforcement. Bill S-4 proposes that: "an organization may disclose personal information without the knowledge or consent of the individual... if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation; Unpack the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening). Of particular concern is how this could be a huge boon for copyright trolls, who can get information from ISPs without a court order, by simply claiming that it's for the purpose of "investigating a breach of an agreement or a contravention of the laws of Canada." Similarly, this would put a serious chill on protections for anonymous speech, as claims of defamation or other issues might lead to quick revelations of anonymous commenters, without any role for a Canadian court to balance the interests of free speech and privacy. It's difficult to see how a bill that is supposed to be about protecting people's privacy actually has this clause that will effectively decimate privacy for many individuals. Industry Canada insists that this provision is narrowly targeted, but Geist highlights how the government rejected much narrower constructions, and seems unable to comprehend how disastrous the current bill will be for Canadians' privacy.Permalink | Comments | Email This Story

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So we just had a story about a court recognizing that, yes, blogs are a part of the media, and noted how ridiculous it was that this is still an issue in 2014. However, it appears that the Supreme Court is still living in a different century (okay, maybe not a huge surprise, since they still haven't figured out email). If you follow issues around litigation, it's likely that sooner or later you've read SCOTUSblog, which is (deservedly) the go to source for anything related to anything having to do with Supreme Court cases. On mornings when decisions come out, it's always the first source I check, and I'm hardly alone among legal watchers. And yet... the Supreme Court has denied SCOTUSblog's request for a press pass based on a stupidly convoluted system for which the Senate is partly to blame as well. According to SCOTUSblog: SCOTUSblog is not now, and has never been, credentialed by the Supreme Court. The Court’s longstanding policy was to look to credentials issued by the Senate. We pursued a Senate credential for several years, modifying several policies of the blog to address concerns expressed by the Gallery. Last year, we finally succeeded – the Senate Press Gallery credentialed Lyle as a reporter for SCOTUSblog. We then presented that credential to the Supreme Court, thinking that the issue was resolved. But the Court declined to recognize the credential, explaining that it would instead review its credentialing policy. The Court has not indicated when that review will conclude. This is complicated further by the fact that the Senate Press Gallery has now rejected SCOTUSblog's request for a press pass, and also told the blog it will not renew Lyle's press pass -- thereby cutting of the blog to both the Senate and the Court. SCOTUSblog's Tom Goldstein does note that the Supreme Court itself has actually tried to accommodate the blog's requests for public seats, despite not agreeing to give it a press pass. The situation is clearly ridiculous: All that said, the Senate Press Gallery’s decision to deny us a credential is important to us. We wanted the credential in substantial part because we cover Supreme Court-related matters in the Senate. Most significantly, we do gavel-to-gavel, liveblog coverage of Supreme Court nominations. We also expect to cover hearings related to the Court’s budget. So those efforts are now more difficult. So we plan to appeal the Senate Gallery’s credentialing decision. We do not have a written list of the reasons for the denial, which makes the process more difficult. Our impression is also that the appeal may go to the same group that denied the application in the first place. If the appeal is denied, then we expect to litigate the issue. We’re now coordinating all those efforts with other groups that kindly have offered to support us. All in all, the refusal by the Court and the Senate to credential us have always seemed strange. No one seems to doubt that we are a journalistic entity and that we serve a public function. Winning the Peabody and other awards would seem to confirm that. And the Court for years has functionally recognized us, because obviously the overwhelming majority of Lyle’s work is for us. We do not want any kind of special treatment. Credentialing the blog doesn’t give us any special power or recognition; it just makes our jobs incrementally easier. All in all, it doesn’t seem to make sense to impose burdens on us that are greater than those that apply to others who fundamentally do the same thing. I don't think "strange" is the right word. Shameful works better. Stupid would apply as well.Permalink | Comments | Email This Story

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Time for an update on the NYPD scene. As you'll recall, both Mayor Bloomberg and Police Chief Ray Kelly exited their respective offices in their respective huffs, claiming the city would fall apart if the sanctity of the NYPD's Constitution-skirting programs (stop-and-frisk, the Muslim-watching Demographics Unit) weren't preserved. The legal battle over the constitutionality of the stop-and-frisk took several turns, including the removal of the presiding judge for "appearances of partiality." Incoming mayor Bill de Blasio promised to drop the city's appeal of Judge Scheindlin's ruling, and oddly enough, actually did. An attempt to keep the appeal going was filed by the union representing the NYPD, but this was shot down by the appeals court. It did, however, allow it to be part of the final negotiations. The end result was the installation of five years of oversight over the NYPD's controversial program in order to move it towards something more resembling compliance with the Constitution. The apocalypse Bloomberg and Kelly claimed was unavoidable if stop-and-frisk was curbed has failed to materialize. Even before the ruling was handed down, the program had been scaled back, with 86% fewer stops being recorded in the first quarter of 2014 than in the same quarter of 2012. Despite this lack of pushing random people up against the wall, crime is down 13% compared to 2013. Was stop-and-frisk ever truly essential? Or was it simply something that became an all too easily abused "tool" of the NYPD? At this point, the numbers seem to indicate that stop-and-frisk had very little real effect on criminal activity. More good news on the NYPD v. Constitution front: the infamous Muslim-spying wing of the NYPD -- the stupidly-named "Demographics Unit" -- has been disbanded. This program, started by a former CIA officer who leveraged the city's post-9/11 anxieties to craft major changes to guidelines governing the surveillance of New Yorkers, spent a considerable amount of time infiltrating and surveilling entire mosques under the pretense that each and every member was somehow related to ongoing counterterrorism investigations. The investigations performed by this unit did considerable damage to the civil liberties of mosque attendees over the last decade, but failed to turn up any credible suspects, much less terrorism-related arrests. The unit's pervasive surveillance so thoroughly violated First and Fourth Amendment protections that the CIA and FBI were unable to avail themselves of the "intelligence" collected by the NYPD without violating federal guidelines. When even the CIA can't look at your investigative results for fear of violating its own minimal civil liberties protections, you know you've got a problem. Bill Bratton, returning to the NYPD commissioner's office, seems to have realized that programs like the Demographics Unit ultimately do more harm than good. When heading the Los Angeles Police Department, he was approached with a similar idea for tracking that city's Muslim community. He had this to say then: “A lot of these people came from countries where the police were the terrorists,” he said at the time. “We don’t do that here. We do not want to spread fear. We want to deal with criminals.” The NYPD, before his return, had no such concerns. If anything, the NYPD actively created distrust -- both in the New York Muslim community and around the world, sending its officers uninvited to peer over the shoulders of local police and investigative units at scenes of terrorism activity in countries like Kenya and Bali. The new NYPD is still staffed with the old NYPD, which means change will be slow and likely fought every step of the way. Muslims are understandably concerned that the public disbandment of the Demographics Unit will just result in the level of surveillance being unchanged, if only a bit more unfocused. Bratton seems to be nudging the department towards a more FBI-esque set of rules, which isn't ideal, but is certainly much better than the abusive behavior permitted under the NYPD's internal guidelines. It does appear the NYPD will be moving towards something resembling an actual police force, rather than a law unto itself. Without Kelly and Bloomberg around to defend its every overstep, the NYPD can no longer expect to skirt the Constitution with impunity. But there's a long way to go to fix things, so any optimism must be tempered by the fact that good habits are tough to instill and bad habits are extremely hard to break. Five years of oversight is a start, but the city -- meaning the mayor and the police commissioner -- must be willing to hold its officers accountable. Permalink | Comments | Email This Story

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A few years ago, we wrote about the bizarre and quixotic effort by Florida businessman Christopher Comins to find any possible way to sue University of Florida student and blogger Matthew Frederick VanVoorhis for his blog post concerning a widely publicized event in which Comins shot two dogs in a field (video link). The story made lots of news at the time, but Comins didn't go after any of the major media -- instead targeting VanVoorhis for a defamation suit. The original blog post is "novelistic" but it's difficult to see how it's defamatory. Either way, Comins' case was shot down on fairly specific procedural grounds: namely that Florida defamation law requires specific notice be given to media properties at least 5 days before a lawsuit is launched. Specifically, the law says: Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory. Comins' lawsuit was dumped because he failed to give such notice. Comins argues that he did give such a notice (though the letter he sent did not meet the requirements of such notice under the law) and (more importantly for this discussion) that VanVoorhis' blog did not count as a media publication, and thus the law did not apply. The original court ruling rejected that pretty quickly, and now on appeal, a state appeals court has not just rejected Comins' anti-blog claim more thoroughly, but also highlighted the importance of blogs to our media landscape. The full ruling does a nice job giving the history and purpose of the law above, as well as the importance of encouraging the media to report on difficult stories. And from there, it explains why VanVoorhis' blog is clearly a part of the media and why blogs in general are so important: ...it is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above. There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment. While it seems crazy that this kind of issue is still being debated in 2014, it's good to see a court make such a clear statement on the fact that blogs will often qualify as media properties.Permalink | Comments | Email This Story

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We've pointed out for a while how the various attempts at creating revenge porn bills will have serious unintended consequences and raise serious First Amendment issues. This is not to minimize the problems of revenge porn (or to absolve the sick and depraved individuals who put together, submit to or regularly visit such sites). However, it's to point out that pretty much any way you try to legislate such actions as criminal likely will create other problems. For example, I'm sure many of you heard the story recently about US Airways... um... unfortunate pornographic tweet. It was the story of the internet a few days ago, in which a United Air social media employee did a very unfortunate cut and paste error, tweeting out a very graphic image that involved a naked woman and a plane where it... doesn't quite belong (for slightly lighter fare, I highly recommend reading some of the of the funny replies to that tweet). For what it's worth, US Air has said that it was an honest mistake and it's not even firing the person responsible. What does any of this have to do with revenge porn? Well, not a whole lot, other than to note, as lawyer Scott Greenfield did, if you retweeted the picture, there's a good chance you violated criminal revenge porn laws. And that's true -- though it's really specific to one law, right now, which is New Jersey's. California has a revenge porn law too, but it's much more limited and likely wouldn't apply here. New Jersey's law on the other hand includes this: An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Even if the original photograph was done "consensually" note that you need consent for that specific disclosure. In other words, if you retweeted that image, you probably violated New Jersey criminal laws. And, yes, it seems likely that the expected introduction of a federal anti-revenge porn bill will include a similar provision. It's already been stated that law professor Mary Anne Franks is helping draft the legislation, and her draft legislation relies heavily on New Jersey's. Here's one version of her draft legislation: An actor commits a crime if he knowingly discloses a photograph, film, videotape, recording, or other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact, when the actor knows or should have known that the person depicted did not consent to such disclosure and under circumstances in which the person has a reasonable expectation of privacy. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship. Franks' bill does include some exceptions, and she might argue that this might qualify under the exception for "disclosures that serve a bona fide and lawful public purpose," though that leaves the person retweeting the image in the unenviable position of defending that retweeting a major US airline accidentally tweeting a photo of a woman with a model plane stuck up her vagina is somehow "a bona fide and lawful public purpose." Of course, that's part of why we have the First Amendment, because we don't want people to have to defend why the particular speech they're making has a "bona fide and lawful public purpose." Instead, we recognize that making people have to defend the intent of their speech likely has chilling effects.Permalink | Comments | Email This Story

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There have been a number of libel cases popping up over the past few years where random insults on Twitter are turned into full blown court cases. Tragically, these cases have picked up the "twibel" name -- a neologism that seems silly and pointless. Still, it's good to see that courts appear to (mostly) be recognizing that random insults shouldn't be considered libelous. Venkat Balasubramani has the details of a recent ruling (where both parties represented themselves!), in which a court recognized that saying on Twitter that someone is "fucking crazy" isn't libelous, especially as part of a "heated" online discussion. I won't get into the details of the case, other than that it involves a horse named Munition, but here's the Court's discussion: The tweet cannot be read in isolation, but in the context of the entire discussion. In this case, the tweet was made as part of a heated Internet debate about plaintiff’s responsibility for the disappearance of her horse. Furthermore, it cannot be read literally without regard to the way in which a reasonable person would interpret it. The phrase “Mara Feld . . . is fucking crazy,” when viewed in that context, cannot reasonably be understood to state actual facts about plaintiff’s mental state. It was obviously intended as criticism—that is, as opinion—not as a statement of fact. The complaint therefore cannot base a claim of defamation on that statement Of course, as Eric Goldman amusingly notes at the end of Venkat's post, "bringing a defamation lawsuit over tweets is almost always fucking crazy," reminding us that it will almost certainly reinforce the association between the phrase and the person who brought the lawsuit, Mara Feld.Permalink | Comments | Email This Story

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Last fall, we noted that the world's largest patent troll, Intellectual Ventures, was running out of cash, which is somewhat incredible, given that it had previously claimed to have raised $6 billion in investments (though many of its earliest deals with tech companies were categorized as "investments" when they were really promises not to sue, combined with access to the patent bank) and a further $3 billion in licenses. It should take a long time to spend $9 billion when your company produces nothing that has ever been brought to market, but that's IV for you. As we noted in that story last fall, many of the tech companies that initially "invested" in Intellectual Ventures had no interest at all in re-upping, as they felt that the whole thing had been a bait-and-switch. They were initially told it was a "patent defense fund," not a giant patent troll itself. However, while many of the companies have indeed avoided giving IV any more money, it appears that Microsoft and Sony were quite happy to dump a lot more cash into IV, which has now ramped up its patent buying efforts again (as well as its lobbying and political contributions in an effort to kill off patent reform). Microsoft, of course, has always been close to IV, seeing as it was started by the company's former CTO, Nathan Myhrvold, who is also a close friend of Bill Gates (who has directly helped IV get some patents). Similarly, Microsoft has become one of the most aggressive patent abusers over the last decade, increasingly relying on its stock of patents to make money from other people's innovations, rather than innovating on its own. It is similarly no wonder that the company somewhat famous for having nearly all of its major success based on copying the work of others, is now trying to stop anyone else from doing the same without paying a massive tax. There was a time when Bill Gates said: "If people had understood how patents would be granted when most of today's ideas were invented and had taken out patents, the industry would be at a complete standstill today... A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose." And, now, via Intellectual Ventures and its own patent holdings, Microsoft seems to be trying to make sure Gates' prediction is a reality. It all fits in to the same paradigm we've observed for years. When you're young, you innovate. When you're old, you litigate. Microsoft appears to have given up on innovation, but is ramping up on litigation, and re-investing in patent trolling via Intellectual Ventures is merely the latest step.Permalink | Comments | Email This Story

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