posted 7 days ago on techdirt
Last year, we wrote about the growing list of lawsuits against Sirius XM concerning the legal rights over pre-1972 recordings. As we've discussed, pre-1972 sound recordings are not under federal copyright law (for historical reasons too convoluted to go into now), but are covered under a hodgepodge of messy state copyright laws. Historically, those state laws have been focused on reproduction and distribution and not public performance. Furthermore, terrestrial radio stations have always been allowed to broadcast music without paying performance royalties (though they do pay songwriters/publishers). Post-1972 recordings can be streamed at statutory rates for non-interactive streaming (interactive streaming is a whole different game). It's a bit of a mess, but based on all of this Sirius XM (and Pandora and others) felt fairly confident that they did not have to separately license public performance rights for pre-1972 recordings. There had been no issue about this at all, until the lawsuits started flooding in last year. And, in a ruling this week, the judge has... ruled against Sirius XM in a manner that may force Sirius and Pandora to eventually have to pay out big. This lawsuit was the first one against Sirius, filed by Flo & Eddie, claiming that their California state copyrights were violated. The court basically found that, because California copyright law says that the copyright holder has "exclusive ownership" of the copyright, that includes public performance rights, despite no further explanation in the law designating that as an exclusive right under California's copyright. In short, the judge takes a very expansive "property rights" view of the situation, and assumes that California's copyright law basically restricts everything. Commonly, to have “exclusive ownership” in something is to possess and control it and to not share that right to possess and control with others. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 619, 1260 (Houghton Mifflin Harcourt, 5th ed. 2011) (defining “exclusive” and “ownership”). The California legislature defines “ownership” generally in the Civil Code in a manner consistent with the word’s usual and ordinary meaning—“the right of one or more persons to possess and use [a thing] to the exclusion of others.” Cal. Civ. Code § 654. Thus, at base, Flo & Eddie has the right to possess and use its sound recordings and prevent others from possessing and using them. The plain meaning of having “exclusive ownership” in a sound recording is having the right to use and possess the recording to the exclusion of others. There is nothing in that phrase to suggest that the legislature intended to exclude any right or use of the sound recording from the concept of “exclusive ownership.” The legislature does include a limitation on the ownership right in the statute’s text, “the most reliable indicator of legislative intent.” See Esberg, 28 Cal. 4th at 268. An author has exclusive ownership in his or her sound recording “against all persons except one who independently makes or duplicates another sound recording that does not directly or indirectly recapture the actual sounds fixed in such prior recording, but consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate the sounds contained in the prior sound recording.” Cal. Civ. Code § 980(a)(2) (emphasis added). In other words, ownership of a sound recording does not include the exclusive right to make “covers” (i.e., recording the song with new instruments) – any person can make a sound recording based on a copyrighted recording, without the permission of the owner, so long as they produce the sounds independently rather than recapture the actual sounds in the copyrighted recording. Construing the meaning of “exclusive ownership” in context with the rest of § 980(a)(2), which lists the above exception to the ownership right, the Court infers that the legislature did not intend to further limit ownership rights, otherwise it would have indicated that intent explicitly. Because the statute lists an exception, the Court should enlist the “familiar rule of construction…[that] where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.” Geertz v. Ausonio, 4 Cal. App. 4th 1363, 1370 (1992) (citing In re Michael G., 44 Cal. 3d 283, 291 (1988). Courts should “presume the Legislature included all the exceptions it intended to create.” Id. (citing Reynolds v. Reynolds, 54 Cal. 2d 669, 681 (1960)). If § 980(a)(2) had granted “exclusive ownership” in sound recordings without a listed exception, the argument that some limitations on property rights were already inherent in the concept of sound recording ownership might have been more persuasive to the Court. See Opp. 6:21-7:4, 8:25-9:2. However, by finding it necessary to specify an excepted right to ownership in a sound recording, the legislature conveyed that limitations on ownership did not live within the concept itself, rather they required elucidation. Accordingly, the Court’s textual reading of § 980(a)(2), giving the words “their usual and ordinary meaning and construing them in context[,]” is that the legislature intended ownership of a sound recording in California to include all rights that can attach to intellectual property, save the singular, expressly-stated exception for making “covers” of a recording. Sirius XM pointed out the legal problems with this, in that California law did not have a public performance right, and thus the court is effectively making up a new right under to bolt onto California's copyright law, but the judge isn't buying it. Sirius further pointed out that California's copyright law was designed to highlight what rights remained under its copyright law after the federalization of copyright for sound recordings, but again the judge isn't buying it. It's inevitable that Sirius will appeal this ruling so it will be a while before we see where this actually ends up. Furthermore, in one of the other cases against Sirius, brought by the RIAA, it appears that the judge is leaning in the exact opposite direction. So, this situation is far from over.Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
As their name suggests, corporate sovereignty chapters in trade deals are problematic in part because they place corporations on the same level as nations, allowing the former to sue the latter in special tribunals outside national courts. What's particularly troubling is that companies are now claiming that basic democratic functions, like passing laws promoting health, should be considered a form of "expropriation", because future corporate profits are reduced. That effectively turns investor-state dispute settlement (ISDS) into a downward regulatory ratchet that makes it very difficult -- or at least very expensive -- to bring in any new regulations that reduce profits for some business sector. Despite this -- or possibly even because of this -- the UK government is currently trying to bring in its own, domestic version of this ratchet. It's found in a new Bill, simply but significantly called "Deregulation Bill". It's a rag-bag of legislative odds and ends, covering things like religious exemption from wearing safety helmets, selling yarn, erection of public statues, repealing the power to block Web sites (brought in by the Digital Economy Act), late night refreshments and -- tucked in near the end -- the following: 83 Exercise of regulatory functions: economic growth (1) A person exercising a regulatory function to which this section applies must, in the exercise of the function, have regard to the desirability of promoting economic growth. (2) In performing the duty under subsection (1), the person must, in particular, consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that-- (a) regulatory action is taken only when it is needed, and (b) any action taken is proportionate. The Bill goes on to clarify what a "regulatory function" might be: (a) a function under or by virtue of an Act or subordinate legislation of imposing requirements, restrictions or conditions, or setting standards or giving guidance, in relation to an activity, or (b) a function which relates to the securing of compliance with, or the enforcement of, requirements, restrictions, conditions, standards or guidance which, under or by virtue of an Act or subordinate legislation, relate to an activity. As that makes clear, the proposed law would apply to pretty much any kind of regulation and its enforcement, and would require the effects on the UK's economic growth to be considered above everything else. Indeed, there's no obligation to consider anything else. Its effects would reach far beyond the obvious areas. For example, this post by the journalist David Hencke explains what the Bill's implications for human rights in the UK would be (pointed out to us by @AnitaBellows12): The Deregulation Bill -- promoted as liberating business from silly bureaucratic rules -- includes what sounds like a rather arcane provision saying that all regulators for the first time must consider the impact on economic growth before they launch criminal or civil proceedings (see clauses 83/84) against a company. In other words if the [UK's Equality and Human Rights Commission -- ECHR] doesn’t do this -- big companies with loads of cash can take them to judicial review and get cases where they break the law on discrimination annulled. It would also make the EHRC -- not the most radical of bodies -- even more careful before it takes up your case. But it's not just limited to the field of human rights: it would also apply to the enforcement of environmental laws, or controls on financial services, say. It's true that the Bill doesn't make it impossible to carry out those functions, but it does open up an important new way for corporates to challenge any government enforcement actions against them: all they have to do is to complain that the implications for the UK's economic growth weren't properly considered. As with ISDS, it doesn't matter whether they win every such case: the mere threat of being able to bring these cases will inevitably have a chilling effect on people working in UK government departments, and result in them being much more cautious in their enforcement of UK laws against companies. If enacted, then, the new Bill would have a large-scale, deregulatory effect that will go far beyond the other, rather minor measures it contains. As Hencke's post points out, this Bill is still in the early stages of its passage through the UK Parliament, so these particular clauses could be modified or even deleted -- although it is likely the UK government will just put them back if they are. Still, their appearance here, hidden away among mostly trivial matters, should act as a wake-up call that corporate sovereignty is not just a matter for international trade agreements, but may start cropping up in national legislation too. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
A bipartisan group of Senators and Representatives introduced some new legislation to give the Privacy and Civil Liberties Oversight Board (PCLOB) some more power. Called the Strengthening Privacy, Oversight and Transparency (SPOT) Act, it would make the jobs of PCLOB members full time, rather than the part-time position it is today, and expand their powers beyond just dealing with privacy and civil liberties issues related to counterterrorism. Most importantly, however, it would give the PCLOB subpoena powers, rather than having it rely on the Justice Department, whose views might conflict with the PCLOB. As you may recall, the PCLOB has been investigating the powers under which the NSA conducts its surveillance, having put out a report that ripped apart the bulk collection under Section 215 of the Patriot Act, but which more or less found Section 702 of the FISA Amendments Act to be acceptable. It's currently investigating Executive Order 12333, which many have argued is where the real "power" for surveillance comes from these days. While we disagreed with parts of the board's analysis of Section 702, on the whole, the PCLOB does a pretty good job looking deep into issues that were previously swept entirely under the rug. Having more power to actually delve into what different government agencies are doing and how it impacts the public's civil liberties and privacy rights seems like it would be fairly useful. After years of total neglect (seriously: the board was entirely unstaffed and dormant for five years until recently), just having a PCLOB was a step forward -- but giving it real powers would be an even bigger push towards protecting the public's rights from a government that seems all too eager to diminish those same rights.Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Charging an electric car battery can take hours, so it seems somewhat inconvenient compared to a few minutes at a conventional gas station to fill up a tank. Electric cars also have shorter ranges than conventional vehicles. There are a few solutions to these problems, but many of them aren't quite ready for consumers. Here are a few possible technologies for cars that don't run on gasoline. A battery startup called Sakti3 claims its battery could double the range of a Tesla S to nearly 500 miles. However, this battery isn't commercially available yet, and it's uncertain whether any electric vehicle would accept a battery from a third party manufacturer. [url] Supercapacitors could be made into structural parts of a car, storing energy without taking up unnecessary space. The researchers working on these supercapacitors have done some mechanical testing, but it might not be a great idea to store a lot of energy in a part of a car that might experience extreme structural failure in an impact... [url] One of the problems with using hydrogen as a fuel for vehicles is that it's hard to store and transfer significant volumes of hydrogen safely and easily. Using ammonia instead might solve some of the problems and offer vehicles that are similar to ones powered by liquid natural gas, but ammonia as a fuel also introduces a few more engineering challenges. (Ahem. A corrosive, toxic gas under pressure might not be too safe for the general public to handle.) [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

Read More...
posted 7 days ago on techdirt
We recently wrote about recent developments in Canada regarding the Canadian Radio-Television and Communications Commission looking to apply the same "culture tax" to Netflix and other internet services as is done to broadcasters of television programming. In case you're not aware, there are taxes in place in Canada in which broadcasters of mostly foreign (read: American) programming are required to pay into a fund supposedly used to create more "Canadian" content. And, if that sounds strange and convoluted to you, you're not alone, but more on that later. It appears as though things are getting a bit testy, with members of the CRTC Commission requesting Netflix to hand over data on their subscribers, the content they watch, and hosted "Canadian" content, all while refusing to protect that proprietary information from the competition's eyes. Needless to say, Netflix refused. A Netflix executive told the country's broadcast regulator on Friday before being ordered to hand over the confidential company information that regulating the internet to help boost Canadian content will only hurt consumers. In an occasionally tense appearance before the Canadian Radio-television and Telecommunications Commission, Corie Wright urged the broadcast regulator to let market forces dictate what consumers can watch. Chiefly at issue was the Canadian government's refusal to affirm that it would keep Netflix's data confidential. In other words, the government was asking a private company to hand over sensitive business information with no assurance that the information wouldn't then end up in the hands of surely interested competitors. They might as well have asked the company to punch itself in the crotch, for all the sense it makes. All this, keep in mind, is geared towards determining if that committee will levy a tax on Netflix for the sin of having a lot of content Canadian consumers really want. Screw the market forces, just prop up our own culture from the outside. And that really makes no sense. First of all, if Canadian content is bought and paid for with American dollars, how Canadian is it, really? It's practically begging for cultural diffusion, the very thing the tax is supposed to stave off. And the whole concept leads to some really silly comments, such as: "Netflix's kind of late-1990s view of the internet as some unregulatable space was dragged into the 21st century and was put on notice," said Carleton University journalism professor Dwayne Winseck, who characterized Wright's appearance as "theatre." "The CRTC has a Broadcasting Act to live up to and Netflix ... has to have a respectful conversation in that light." Ah, yes, the CRTC wants to pretend that the internet is a walled broadcasting system, like television, and it's Netflix which is living in days gone by? Beyond that, think of this from Netflix's point of view. The CRTC falls under the jurisdiction of the Canadian Parliament. It's government, in other words, answering to the Minister of Canadian Heritage, who is in turn responsible for Canada's arts, culture, media and sport. So, put simply, the part of the Canadian government that is responsible for encouraging the creation of Canadian arts and culture instead is saying, "Fuck it, just make Netflix do it." And you can understand why. After all, actually doing the work themselves in creating a cultural marketplace, in fostering the Canadian arts, in promoting the education and training of film-makers and artists such that their work is desired by the Canadian public sounds quite complicated. Telling someone else to do it for you must be much easier. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
You may not have known this in all the fallout from the ongoing revelations about our intelligence services spying on our daily activities, but it turns out that keeping tabs on ordinary citizens isn't just for the alphabet agencies. Good, old fashioned, local police departments can do it, too. And apparently some do, based on this ACLU legal filing against one local sheriff in Oklahoma, who took part in building and using an extensive database on citizens' activities that was likely illegal and was never shared with prosecutors or defense attorneys. The ACLU in Oklahoma sued Logan County Sheriff Jim Bauman in Logan County Court on Sept. 11, seeking records from the "Black Asphalt" database. Logan County is just north of Oklahoma City. Its seat is Guthrie. The system was created by Joe David, the founder of Guthrie-based Desert Snow LLC, the ACLU says.      In a statement announcing the lawsuit, the ACLU claims it discovered Black Asphalt during an investigation of Desert Snow employees impersonating police officers in Caddo County in 2013, "as part of a scheme with the local district attorney to make traffic stops, seize cash and property from citizens, and funnel it into local coffers in exchange for a percentage of the profits." Now, schemes for bilking citizens of their property by local police to fill the public coffers are nothing new, but the use of an extensive database system built by a private company to track civilians certainly is. The key part in all this is that the officers that used the system to compare civilian activities and notes on investigations never disclosed any of this to prosecutors, defense attorneys, or the courts. In case you're wondering, yes that's an insane work-around of due process. The more terrifying part is that this whole thing isn't limited to one Oklahoma county. "On information and belief, the Black Asphalt system, since its inception, has had up to 25,000 members throughout the United States and Canada." The information posted on Black Asphalt "routinely lead to the detention, arrest or prosecution" of its members, the ACLU says in the lawsuit. It says it "received no response of any kind" to its February request for disclosure and inspection of records. In fact, the ACLU made an in-person request for disclosure of the database at Sherrif Bauman's office, which was also denied. Oklahoma, mind you, has a relatively aggressive legal platform by which these requests are supposed to be honored, called the Open Records Act. It is under that law that the ACLU is seeking disclosure. If you're a private citizen wondering if your local LEOs are keeping an undue eye on you, you should be rooting for the ACLU to win. If you aren't wondering about that, you probably should be. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Sometimes I read a great fan fiction and think to myself, "Gee, I wish there was a Paypal button here somewhere, because I feel the overwhelming urge to ram wads of money down this writer's throat." This is basically impossible, of course; fanfic is considered an illegal derivative work under copyright law, and even the creators that allow it have a no-tolerance attitude towards fans who try to collect money for their work. If fans were allowed to earn money, conventional wisdom claims, it would siphon money away from the original creator and they would lose business. But what if conventional wisdom was completely and totally wrong? For-profit fan creativity is a huge opportunity, but creators are letting it go to waste because they're so anxious to protect their copyrights. It may seem counterintuitive, but letting other people make money from your intellectual property can add far more value than it costs—in some cases millions of dollars. How does this work? It has been estimated that as of 2012, E. L. James was making $1.35 million a week on Fifty Shades of Grey. Now, it is widely known that Fifty Shades of Grey was originally a Twilight fanfic titled Master of the Universe. E. L. James changed the characters' names from Edward and Bella to Christian and Anna and republished her fanfic as a "new" book. Now she's a multimillionaire. So let me ask you a question: how much money has Stephenie Meyer, author of the Twilight series, lost because she sent this brilliant piece of Twilight fanfiction out of her franchise? How many 50 Shades fans would have gone on to become Twilight fans if Edward and Bella had not been renamed? How many Twilight books would Meyer have sold in the resulting publicity frenzy if people had seen 50 Shades as an extension of her original stories? Meyer must have lost millions of dollars and sent away untold potential fans. Now imagine what would have happened if she had shared her intellectual property with her fans, allowing them to earn money from their work instead of relegating them to non-profit status. E. L. James would not have been forced to "barcode strip" Master of the Universe in order to make a profit, and Meyer could have kept all that money and attention in the Twilight family. Now, I admire Meyer's attitude towards fanfiction—she's one of the few authors who includes a list of Twilight fanfic sites on her homepage—but I think it's time for progressive authors to start questioning whether the taboo against for-profit fan activity actually serves a business purpose, or if it's just a reflexive attitude left over from an intolerant past. Many authors believe that they must prevent fans from "competing" with them, or else readers will buy the fan's work instead of theirs, resulting in lost sales. This idea sounds good on paper, but it looks strange when you actually try to give an example. Can you imagine a Harry Potter fan saying, "Well, I was going to spend this $10 on Rowling's new book, but I spent that money on a fanfic instead. I guess now I won't buy the next Harry Potter book after all." People like that just don't exist in real life. They're only a bogeyman haunting the insecure subconscious of the writing world. Even in the rare scenario where a fan like E. L. James writes a fanfic that becomes more popular than the original, it's highly unlikely that the original author will be harmed. What is more likely to happen is that all the fans who were attracted by the fanfic's success will now become interested in the original author's work and go out and buy a copy of it for themselves. That's hardly a negative consequence! Let me give you a recent example of how this worked for me. I had a written a fanfic (nothing particularly special) that a few people clicked on and enjoyed. The story didn't attract much attention, and the internet had pretty much forgotten about it until a fan of my fanfiction (whee, recursion!) decided to pay a particularly talented fan artist to illustrate a scene from my story. So now someone is getting paid, and that someone is not me, the writer. Was this bad for my "business"? Nope. Immediately afterwards, the story got a big boost in traffic; in fact, all my stories did. Subsequently, a user contacted me to request permission to translate my stories into Russian. Although I did not receive any compensation from the fan artist, nevertheless their work indirectly benefited me by expanding my fanbase and drawing attention to my work. If I had tightly controlled the for-profit use of my story, my work probably would have remained lost amidst a sea of hundreds of other fanfics. It's worth noting that the fan art is probably more popular than my original story—but who cares? The more publicity that picture gets, the more fans my story gets. It's a symbiotic relationship, not a competitive one. But there are other reasons why authors break into a cold sweat when they imagine an anonymous fan's literary creations popping up alongside their own stories on Amazon. Writers worry that new readers won't be able to tell the fanfics apart from the original. The fear is that a new reader will do a search for "The Hunger Games" and discover a one star fanfic named "This Is My Frist Hunger Games FanFic About Katniss Please Read!!!!" The reader will then mistake the fanfic for the real Hunger Games, which has 4.6 stars and 21,746 reviews, and buy the fanfic instead. Mortified by what they find, they will then go and tell everyone how awful the Hunger Games is. No, it doesn't make much sense. Nevertheless, there is a genuine concern that this could happen. Fortunately, most fans are scrupulous about giving attribution, and search engines are very good at pointing out the most popular items and sending unpopular work into oblivion. But for the extra-cautious, there's a simple solution to prevent reader confusion: just require fans to label their work as a fan creation by placing the word "[Fanfic]" "[Fan Art]" etc. in brackets after the title. This would make it impossible to mistake a fan's work for the original. Simple, no? But there is another argument often made against for-profit fan creativity. Meyer was at one point threatened with a lawsuit by a fan who claimed that she had stolen the fan's idea in one of her books. The lawsuit didn't go anywhere, but you see the problem: if a creator and a fan creator both happen to come up with the same idea, the resemblance between the two creatives' work could give the fan an opening to sue the creator. For this reason, even authors who approve of fanfic typically refuse to read it for fear they might be held liable. Such incidents do not happen frequently, but the danger they represent has led many creators to categorize fanfiction as a threat instead of an opportunity. Fortunately, an easy fix for this problem already exists. The solution is to use a ShareAlike license in which creator and fans formally agree to share ideas with each other. This explicitly ensures that creators and fans do not face legal repercussions even if resemblances occur. Such terms are already incorporated into tried-and-true open licenses like Creative Commons ShareAlike. Why worry about a problem that has been solved for years? Of course, there are many non-monetary reasons why a creator might not want fan creators' work to become as popular as their own or to appear in a search engine next to theirs. I can't address these concerns; all I want to point out is that for creators interested in earning as much money as possible, fan creativity is financially beneficial. In fact, let's go a step farther. The 50 Shades story is only the tip of the iceberg when it comes to making profits from fan work. Let's talk for a bit about the untapped potential of crowdsourced creativity. We all know why Wikipedia beat out Encyclopedia Britannica: Wikipedia has (approximately) umpteen zillion contributors who each contribute a single thought to the sum of human knowledge, whereas Encyclopedia Britannica has a relatively small team of paid staff who are experts in their fields. We can learn something very interesting from how Wikipedia completely slam-dunked the traditional encyclopedia biz. When looking at franchises like Lord of the Rings, there is a clear division of labor. On one hand you have the "official" creators, namely Tolkien, his heirs, the movie studios, and the marketers and designers behind the various toy lines, games etc—a few thousand paid professionals, all told. And on the other hand you have hundreds of thousands of unpaid fans who each contribute a single piece of creativity to the pool: a work of fanfiction, a set of comic strips, a costume, a graphic novel, a short film, a kitbashed action figure. Taken as a whole, the fans have done a Wikipedia on the official creators, haven't they? They've created thousands of spin off novels, a gigantic toy line, and enough artwork to fill a thousand coffee table books. Not all of it is high quality, but even if we assume that 90% is crap and 10% is quality, that remaining 10% is massive enough to totally whomp the efforts of the franchise owners by any measurement. All this unmonetized fan creativity is money lost for Tolkien's franchise. Even if they tripled their team of paid professional creators today, they could never hope to satisfy the whole demands of the market, because somewhere out there is a guy with $20 in his pocket who likes Lord of the Rings but is completely obsessed with dinosaurs. Unfortunately for him, LOTR doesn't have dinosaurs of any kind, so instead our potential customer will spend his money on Jurassic Park merchandise. Under normal conditions, the owners of the Tolkien franchise would not be able to take advantage of such a tiny $20 niche market; they simply do not have the means to meet the unique needs of all the world's individuals. But there is another way by which this vast untapped market could be broken into. You see, somewhere out there is a fanfic writer who is working on a Lord of the Rings rewrite with the elves as raptors and Gandalf as a stegosaurus. (I have seen much, much stranger things than this become wildly popular.) This fan—one of hundreds of thousands of unpaid volunteers—has the ability to harvest that $20 in our prospective buyer's pocket. But none of that money would to go the owners of Tolkien's franchise. Or would it? Imagine what would happen if the fanfic writer was allowed to accept the $20. The writer would have a strong incentive to write another dinosaur LOTR fanfic, wouldn't they? If the money kept flowing and the market kept responding, eventually other fan creators would join in with fan art, a short Flash cartoon, some comics, translations into various languages, a line of 3D printed toys, etc. Meanwhile, the dinosaur fan is now being slowly converted from a guy who was mildly interested in LOTR into a True Fan of LOTR who will now buy "official" merchandise from the franchise owners. But could this ever happen in real life? It happened to me recently. As a kid, I used to be a big fan of Garfield; as an adult, I had pretty much forgotten about it. But that was before I discovered Mezzacotta's "Square of Root of Garfield Minus Garfield," a hilarious reinterpretation of Garfield which combines playful mathematics, Garfield scholarship, and ingenious twists to put a whole new spin on strips I had read dozens of times as a kid. After reading through all the Mezzacotta strips, I needed MOAR, so I headed over to Jim Davis' website to read through his archive of Garfield comic strips. Lately I've also been hunting through the local thrift store for his books. I'm still way more fond of Mezzacotta's interpretation than Jim Davis' original comics, but the odds of Davis getting money from me have increased dramatically with my renewed interest in the series. So you see the progression: Fans tap market unsatisfied by original creator. New fans are converted and become curious about the original works. New fans go on to spend money on products offered by the original creator. Once fan creators begin making money, it starts a virtuous cycle of profits and reinvestment that will allow the creation of ever more complex and expensive productions. Right now, fans are limited in their ability to create movies, games, merchandise lines and TV series because such things are out of their budget range. (It's not that they haven't tried; see, for example, this crowdfunding drive where a fan tried to raise $400,000 for a Final Fantasy web series, only to be shut down.) Yet if this stifled creativity and entrepreneurship was allowed to run its course, the results would be impressive. How many writers dream of seeing their work translated into 24 languages and made into a TV series, graphic novel, toy line, video game and movie? Fans will do much of that for free out of love. But add in money as an incentive, and they'll take on increasingly expensive, complex and time-consuming projects like the aforementioned Final Fantasy series. Yet most creators balk at the idea of giving fans the freedom to raise $400k for a project, and here again we run into another deep-seated fear: the idea that someone else will use the creator's idea to make a zillion dollars, and not give the creator any of it. Actually, it's hard for me to imagine how a creator could NOT make money in such a scenario, provided that he was smart enough to use a ShareAlike license. Suppose, for example, that Tolkien was still alive today, and a group of fans raised $10,000,000 on Kickstarter to create a smash hit LOTR web series—all without paying him a dime in royalties. Apparently the expected response is for poor Tolkien to bemoan his predicament on a street corner as he rattles coins in a tin cup. But what about the massive publicity boost? What about the fact that new fans drawn in by the series will be reading Tolkien's books for the first time in their lives? What about the fact that Tolkien could write a new story set within the expanded universe of the series and get a guaranteed audience? What about the fact that under a ShareAlike license, Tolkien could record his own version of the series with author commentary, then sell it himself as a special edition? Even in this, the most-dreaded of all scenarios, there are tons of opportunities to make money. But let's make it easier, shall we? All Tolkien needs to do is change his license terms to read, "You can make as much profit off your fan work as you want, but if you make more than $100,000 a year, then you have to pay me a 5% royalty." So now Tolkien can still make money off the series in the traditional way, and ambitious fan creators can still get funding and start working on that new MMO or animated series. Meanwhile, all the smaller fan creators are not faced with burdensome profit-reporting requirements that would require them to send over $0.25 whenever someone dropped a $5 tip in the bucket. A license with just four simple rules can overcome almost all of the problems with allowing fans to monetize their creativity: ShareAlike—every idea gets shared with the original creator and all the other fans who want to use that idea. This prevents lawsuits and keeps good ideas from being "claimed." Require fan creators to give credit to the original creator. This drives new fans to the original source so that the creator can share in her fans' prosperity. Fans should mark their work as being fan-produced by putting [Fanfic] or [Fan Art] after the title or thereabouts. This prevents reader confusion and protects the creator's reputation. Fans who make more than $100k a year on their activities must pay a 5% cut of the profits to the original creator. This gives creators a share of the wealth if a fan strikes gold, but does not burden casual fan creators with reporting requirements. It's time for creators to let go of their old fears and begin to reap the rewards of the crowd. Indie creators can benefit from the added attention their fans' creativity draws to their work, while bestselling creators can take advantage of hits like 50 Shades to expand the borders of their franchise into new markets. Give it a try: turn your fans into business partners, and see what they can do for you. Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Back in May we wrote about a problematic new anti-revenge porn law in Arizona. As we've been detailing for a while, revenge porn is a horrible thing, done by disgusting people, but we're quite reasonably worried about many of the legal attempts to "deal" with it, because they're often overly broad, or create other problematic consequences. The Arizona law was immensely troubling in that it appeared to punish First Amendment protected activities, and turning them into a "sexual offense" that was considered on par with domestic violence in the law. Even posting something for a journalistic purpose could be considered a felony offense. We had trouble seeing how it could possibly be Constitutional. It appears we weren't the only ones alarmed by the breadth of Arizona's law. The ACLU has now sued to argue that the law is an unconstitutional violation of the First Amendment. The ACLU, in its announcement about the lawsuit, details a number of situations in which the law would technically apply, creating criminals: A college professor in Arizona, giving a lecture on the history of the Vietnam War, projects on a screen the iconic Pulitzer Prize-winning photograph, "Napalm Girl," which shows a girl, unclothed, running in horror from her village. A newspaper and magazine vendor in Arizona offering to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib. An educator in Arizona using images, taken from the Internet, of breast-feeding mothers, in an education program for pregnant women. A library in Arizona providing computers with Internet access to its patrons and, because no filters could effectively prevent this result, the library patrons are able to access nude or sexual images. A mother in Arizona sharing with her sister, in the privacy of her home, a nude image of her infant child. A sexual assault victim in Arizona showing a photograph of the naked assaulter to her mother. Note that none of those, even remotely, resemble "revenge porn." And that's a big part of the problem. Criminalizing speech is always going to create problems. In this case, the ACLU has signed up a large bunch of clients, including book sellers, newspapers, photographers and more. The full filing is well worth reading. It points out the simple fact that this law goes way too far: The Act, however, is vastly overbroad in its reach. It is not limited to disclosures motivated by revenge; in fact, the motive of the person making the disclosure is irrelevant under the law. Nor is the law limited to pornography or obscene images. And the Act is not limited to digital speech: It equally criminalizes posting another’s private photograph on a widely-accessed Internet site, showing a printed image to one friend, publishing a newsworthy picture in a textbook, and including a nude photograph in an art exhibition. The lawsuit goes through a rather thorough explanation of just how many problems there are with the law. While some may attack this lawsuit as somehow "defending" revenge porn (just as some have attacked us in that manner for merely worrying about how broad these laws are), but that's ridiculous. A badly written and overly broad law is a problem that will be abused. That doesn't take away from the fact that revenge porn is despicable and that those who run those sites (hell, anyone who uses those sites) are self-categorizing themselves as scum of the earth. But none of that means that we should ignore the First Amendment or otherwise create laws with significant unintended consequences for all sorts of otherwise legitimate activity.Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
Last week, we noted that it was good news to see both Apple and Google highlight plans to encrypt certain phone information by default on new versions of their mobile operating systems, making that information no longer obtainable by those companies and, by extension, governments and law enforcement showing up with warrants and court orders. Having giant tech companies competing on how well they protect your privacy? That's new... and awesome. Except, of course, if you're law enforcement. In those cases, these announcements are apparently cause for a general freakout about how we're all going to die. From the Wall Street Journal: One Justice Department official said that if the new systems work as advertised, they will make it harder, if not impossible, to solve some cases. Another said the companies have promised customers "the equivalent of a house that can't be searched, or a car trunk that could never be opened.'' Andrew Weissmann, a former Federal Bureau of Investigation general counsel, called Apple's announcement outrageous, because even a judge's decision that there is probable cause to suspect a crime has been committed won't get Apple to help retrieve potential evidence. Apple is "announcing to criminals, 'use this,' " he said. "You could have people who are defrauded, threatened, or even at the extreme, terrorists using it.'' The level of privacy described by Apple and Google is "wonderful until it's your kid who is kidnapped and being abused, and because of the technology, we can't get to them,'' said Ronald Hosko, who left the FBI earlier this year as the head of its criminal-investigations division. "Who's going to get lost because of this, and we're not going to crack the case?" That Hosko guy apparently gets around. Here he is freaking out in the Washington Post as well: Ronald T. Hosko, the former head of the FBI’s criminal investigative division, called the move by Apple “problematic,” saying it will contribute to the steady decrease of law enforcement’s ability to collect key evidence — to solve crimes and prevent them. The agency long has publicly worried about the “going dark” problem, in which the rising use of encryption across a range of services has undermined government’s ability to conduct surveillance, even when it is legally authorized. “Our ability to act on data that does exist . . . is critical to our success,” Hosko said. He suggested that it would take a major event, such as a terrorist attack, to cause the pendulum to swing back toward giving authorities access to a broad range of digital information. Think of the children! And the children killed by terrorists! And just be afraid! Of course, this is the usual refrain any time there's more privacy added to products, or when laws are changed to better protect privacy. And it's almost always bogus. I'm reminded of all the fretting and worries by law enforcement types about how "free WiFi" and Tor would mean that criminals could get away with all sorts of stuff. Except, as we've seen, good old fashioned police/detective work can still let them track down criminals. The information on the phone is not the only evidence, and criminals almost always leave other trails of information. No one has any proactive obligation to make life easier for law enforcement. Orin Kerr, who regularly writes on privacy, technology and "cybercrime" issues, announced that he was troubled by this move, though he later downgraded his concerns to "more information needed." His initial argument was that since the only thing these moves appeared to do was keep out law enforcement, he couldn't see how it was helpful: If I understand how it works, the only time the new design matters is when the government has a search warrant, signed by a judge, based on a finding of probable cause. Under the old operating system, Apple could execute a lawful warrant and give law enforcement the data on the phone. Under the new operating system, that warrant is a nullity. It’s just a nice piece of paper with a judge’s signature. Because Apple demands a warrant to decrypt a phone when it is capable of doing so, the only time Apple’s inability to do that makes a difference is when the government has a valid warrant. The policy switch doesn’t stop hackers, trespassers, or rogue agents. It only stops lawful investigations with lawful warrants. Apple’s design change one it is legally authorized to make, to be clear. Apple can’t intentionally obstruct justice in a specific case, but it is generally up to Apple to design its operating system as it pleases. So it’s lawful on Apple’s part. But here’s the question to consider: How is the public interest served by a policy that only thwarts lawful search warrants? His "downgraded" concern comes after many people pointed out that by leaving backdoors in its technology, Apple (and others) are also leaving open security vulnerabilities for others to exploit. He says he was under the impression that the backdoors required physical access to the phones in question, but if there were remote capabilities, perhaps Apple's move is more reasonable. Perhaps the best response (which covers everything I was going to say before I spotted this) comes from Mark Draughn, who details "the dangerous thinking" by those like Kerr who are concerned about this. He covers the issue above about how any vulnerability left by Apple or Google is a vulnerability open to being exploited, but then makes a further (and more important) point: this isn't about them, it's about us and protecting our privacy: You know what? I don’t give a damn what Apple thinks. Or their general counsel. The data stored on my phone isn’t encrypted because Apple wants it encrypted. It’s encrypted because I want it encrypted. I chose this phone, and I chose to use an operating system that encrypts my data. The reason Apple can’t decrypt my data is because I installed an operating system that doesn’t allow them to. I’m writing this post on a couple of my computers that run versions of Microsoft Windows. Unsurprisingly, Apple can’t decrypt the data on these computers either. That this operating system software is from Microsoft rather than Apple is beside the point. The fact is that Apple can’t decrypt the data on these computers is because I’ve chosen to use software that doesn’t allow them to. The same would be true if I was posting from my iPhone. That Apple wrote the software doesn’t change my decision to encrypt. Furthermore, he notes that nothing Apple and Google are doing now on phones is any different than tons of software for desktop/laptop computers: I’ve been using the encryption features in Microsoft Windows for years, and Microsoft makes it very clear that if I lose the pass code for my data, not even Microsoft can recover it. I created the encryption key, which is only stored on my computer, and I created the password that protects the key, which is only stored in my brain. Anyone that needs data on my computer has to go through me. (Actually, the practical implementation of this system has a few cracks, so it’s not quite that secure, but I don’t think that affects my argument. Neither does the possibility that the NSA has secretly compromised the algorithm.) Microsoft is not the only player in Windows encryption. Symantec offers various encryption products, and there are off-brand tools like DiskCryptor and TrueCrypt (if it ever really comes back to life). You could also switch to Linux, which has several distributions that include whole-disk encryption. You can also find software to encrypt individual documents and databases. In short, he points out, the choice of encrypting our data is ours to make. Apple or Google offering us yet another set of tools to do that sort of encryption is them offering a service that many users value. And shouldn't that be the primary reason why they're doing stuff, rather than benefiting the desires of FUD-spewing law enforcement folks?Permalink | Comments | Email This Story

Read More...
posted 7 days ago on techdirt
More college students are pirating textbooks, or so a report seems to indicate even if the methodology seems a little less than solid. The numbers (reported here by Reason) are based on self-reporting from survey respondents, which means the supposed uptick in infringing downloads may actually be a downturn, or nowhere near the actual percentages. But here are the numbers reported by the Book Industry Study Group, which sounds like the entity least likely to receive accurate infringement numbers from survey respondents. The group surveyed 1,600 students, 25 percent of whom said they or someone they knew illegally downloaded textbooks. That's up 8 percent from the previous year. Most likely, this number is low -- but the methodology is already suspect. Adding "or someone they knew" makes the results somewhat meaningless without more details. To illustrate, take an extreme hypothetical: on a campus with 100 students, if you have one super popular student who illegally downloads textbooks while everyone else doesn't, you could have everyone report "they knew" someone who "illegally downloaded," leading to 100% even as the actual percentage is 1%. Any survey that has a "you or someone you know" in it almost certainly creates a double, triple, quadruple counting problem as there's no way to distinguish if the "person known" has already been counted in the survey methodology. Here are some of the "key takeaways" BISG has posted based on these results. Students report a gradual decline in the use of both core textbooks and learning management systems with a somewhat increased usage of online study guides, suggesting that pedagogical material is becoming more flexible in ways students value. Students continue to become more sophisticated in acquiring their course materials at the lowest cost as illicit and alternative acquisition behaviors, from scanned copies to illegal downloads to the use of pirated websites, continue to increase in frequency. The report assumes the self-reported infringement increase is legit, but the key takeaways never point to the main culprit: textbook publishers. Perhaps that's because these studies were underwritten by those who would be least receptive to open criticism. BISG thanks Diamond Sponsor MBS Direct, Platinum Sponsors Barnes and Noble College and McGraw-Hill Education, and Gold Sponsors Cengage Learning, Follett Higher Education Group, Pearson, and Blackboard for sponsoring Student Attitudes Toward Content in Higher Education Volume 4 and Cengage Learning and Barnes & Noble College for sponsoring Faculty Attitudes Toward Content in Higher Education. Prices for textbooks border on extortionate. Valerie Strauss, covering the subject for the Washington Post, notes that prices for both tuition and books have increased at unreal rates over the past several years. (It should also be noted that BISG's report is no bargain -- $675 for "summaries" and $3,195 for the "Volume Four Bundle PDF".) Strauss also notes data from a 2013 Government Accountability Office study. It shows that textbook prices nearly parallel the astronomical inflation tuition and have gone up 82 percent in the last decade. An American Enterprise Institute Paper indicates that in the last 35 years textbooks have gone up a jaw-dropping 812 percent – hundreds of percentage points higher than general consumer prices, new houses, or even medical services. Book publishers contribute to this skyrocketing rate by forcing the purchase of new editions nearly every single year -- using little tricks like adding or removing a few paragraphs to force repaginating or adding minimal amounts of new material in order to claim the previous version is now outdated. Publishers are also trying to curb piracy by selling digital versions that are somehow only "good" for a single year (thanks, licenses!) and rendered inoperative if pirated by requiring an internet connection to access content and features. These are usually only slightly cheaper than their physical counterparts, but can't be resold at the end of the year to recoup any of the purchase price and can be completely useless to the purchaser (depending on what's locked up by the license) after the end of the license term. So, if students pirate books and are doing it more frequently, at least some of the blame rests on the shoulders of the publishers and their overpriced offerings. Abuse a captive market long enough and it will start routing around you. Some of the blame lies with the instructors and the universities themselves, who require certain specific versions (and will accept no substitutes) or are more interested in pumping up sales of their own works than ensuring their students can afford to take their classes. A year ago a student wrote on a Tumblr blog called “Children of the Stars” complaining about a professor who insisted that students buy an online version of a specific paperback sociology book for more than $200 — which the professor wrote himself — and would not allow them to purchase “an older, paperback edition of the same book for $5.” The student continued: “This is why we download.” This subject prompted "deep news" site Vocativ to try out some textbook piracy of its own, all under the headline "Why College Students Are Stealing Their Textbooks." (Original titles -- "Why Nobody Is Paying For Expensive Textbooks Anymore" and "Why Lots Of College Students Simply Stopped Paying For Textbooks" [see the page title and url] -- apparently weren't inaccurate/provocative enough.) Some sites, like Ebookee and TextbookRevolution, focus more on math and science textbooks. Others, like Free-ebooks and Freebookspot, have a deeper selection of humanities-related tomes. We didn’t have to look far to find what we needed. At Textbooknova, we acquired a torrent app and were off to the races. We typed in the titles for our books, one by one, and found them all immediately. Within minutes, we had four textbooks on our hard drive: Herodutus’ Histories, Adam Smith’s The Wealth of Nations, Chaucer’s Canterbury Tales and Physics: The Human Adventure. Nice "pirating." Three out of the four books listed are in the public domain. Publication dates (in the order listed) 440 BC, 1789 (for the latest edition), 1478 and 2001. Textooks are foisted upon students by schools and professors, meaning there will always be a market for publishers' offerings. But publishers are burning their facilitators as well with steadily-increasing prices. Educators and administrators are also noticing that publishers are demanding the purchase of new editions every year. Some schools are hesitant to keep passing these costs along to their own paying customers. And others that can't simply allow students to directly take the hit (elementary/high school) are starting to express their displeasure in being treated just as shoddily as thousands of college students. 800 times the rate of inflation over 35 years simply isn't sustainable, and infringement is one of the trailing indicators of an industry that has priced itself out of the market. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
The latest illegal high to hit high schools? Writing about drug use. Last May, a teenager was punished with a lengthy suspension after teachers discovered her folder which contained stories with references to marijuana use. Her father is now speaking out and appealing the school’s decision. Tom Grayhorse, father of Krystal Grayhorse, told Ozarks First that he was called by Buffalo High School’s assistant principal after staff found Krystal’s folder containing the stories at the school and were “alarmed by the contents of the notebook.” “She wrote about making out with a boy- well, you know, she’s a teenager- and also about having some pot then eating it and swallowing it at the school,” said Tom Grayhorse. So, a student's personal notebook -- not one belonging to the school or any particular class -- was left behind and read by a member of school administration, who then "freaked out" and brought it to the attention of school officials. Grayhorse can only imagine what was actually written by his daughter because the school has refused to provide him with copies of the objectionable writing. He went to the school for a meeting but was told he couldn't see the notebook because it's considered evidence, and that his daughter would be suspended for ten days. Yes, the school went full cop on him, claiming the evidence was so secret it couldn't even be seen by the legal guardian of the minor involved. The ten-day suspension has now been extended until January 2015, thanks to its "zero tolerance" drug policies, even though no actual drugs were involved. District Superintendent Robin Ritchie offered this deferral to policy by way of "explanation." "If they give a ten-day suspension it comes to me as the superintendent and then it is my decision to look back at it and see if an extended suspension is in order...our drug and alcohol policies permit for several different consequences that can be given out. And most of the time it's 1 to 180 days that students can be suspended," Ritchie said. Apparently, in this case, the decision was to use the full 180 days, stretching from the original suspension in May to early 2015. Obviously, this will have a negative impact on the student's hope of graduating on time, but the district has been less than helpful in ensuring the drugless drug violator will be able to stay on schedule. "I asked them about alternate schooling for people that had been suspended and they said they didn't have it," says Grayhorse. Superintendent Ritchie has suggested night classes, but there doesn't seem to be anything on its website or in its policies that addresses the educational options for suspended students. Then there's this detail, which may have some crying "#notallsuperintendents!" -- according to both the student's father and investigating officials, the student claimed to have had drugs in her possession, if only temporarily. Grayhorse claims his daughter didn't have the drugs, even though she admitted to a school officer that she did. "She'd confess to almost anything, within reason, just to get [the questioning] over with. Somehow she allegedly had some [marijuana]. And she ate it and swallowed it and that took care of it and it was gone." So, that would explain the "drug possession" named in the suspension report… except for this fact. [Grayhorse] said [his daughter] was not tested for drugs. Well, why not? And why didn't the school exercise some of the other options it offers students with drug issues, rather than pull the trigger on a lengthy suspension? [Superintendent] Ritchie said the hypothetical discovery of a first-person story involving the use of a controlled substance, even at school, would "not necessarily" trigger a suspension. She added that school counselors have been trained to direct families to resources in the community if there's any hint of alcohol or drug use in a student. The superintendent, while refusing to address specifics, says that the student's written "drug possession" wouldn't necessarily trigger a suspension and that the family could have been approached first about the theoretical drug problem. But the school didn't do any of this and Ritchie's noncommittal, non-specific statements back this up. She claims it all runs through her. So, the extended suspension, as well as the avoidance of less punitive actions, were OKed by her. Devil's advocate says that if the student truly had drugs in her possession, this would all have been uncovered much more quickly and never would have become another quickly-circulating example of stupid school administration behavior. But withholding the evidence from the parent, as well as the lack of other verification like a drug test, points to a zero tolerance hammer converting another student into a more compliant nail.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Harris Corporation's Stingray cell tower spoofers are swiftly becoming synonymous with government lying. The FBI has specifically instructed law enforcement agencies to lie about the use of these products, which basically puts the agencies in the position of lying to courts when producing evidence or securing warrants. Law enforcement agencies would probably lie anyway, even without the federal government's nudge. Many chose to read the restrictive non-disclosure agreements Harris includes as meaning they should withhold this information from local courts -- rather than simply seal the documents or redact them. So, it comes as no surprise that the web of lies also includes lying to other federal agencies. The lies originate from Harris itself. New documents obtained by the ACLU of Northern California appear to show the Florida-based Harris Corporation misleading the Federal Communications Commission while seeking authorization to sell its line of Stingray cell phone surveillance gear to state and local police. The documents raise the possibility that federal regulatory approval of the technology was based on bad information. Harris says its devices are FCC-approved, but what it doesn't specify is the very limited approval it has actually received. An email from a Harris representative to FCC employees [pdf link] contains the following paragraph. Just want to make you aware of the question below we received regarding the application for the Sting Fish. I know many of these questions are generated automatically but it sounds as if there is some confusion about the purpose of the equipment authorization application. As you may recall, the purpose is only to provide state/local law enforcement officials with authority to utilize this equipment in emergency situations. As the ACLU points out, Stingray (or "Sting Fish") usage had long since surpassed the "emergency use only" restriction -- if that ever existed at all. Routine investigations utilize these devices all the time. Just one of several examples: when the Tallahassee police department's use of Stingrays came to light, the court noted that it had deployed the technology (without a warrant) more than 200 times, with less than 30% of the deployments being for department-labelled "emergencies." Law enforcement agencies are secretly acquiring and deploying these devices in violation of the limited FCC approval, and have been doing so for years -- well ahead of this 2010 statement. And Harris is telling them that it's OK. The ACLU has written a letter to FCC chairman Tom Wheeler [pdf link] asking him open an investigation into the use of Stingray devices. If Wheeler obliges, the FCC is going to face a united front of zipped lips. The FBI already locks the Dept. of Justice out of its investigations. There's no chance it's going to be more obliging of a tangentially-related federal agency. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Few entities approach new advances in technology with more foreboding than school administrations. What could be used as portals to a nearly-infinite supply of information via the internet is often neutered into uselessness by schools' acceptable use policies (AUP). Several months back, the Los Angeles Unified School District shelled out $500 million on iPads for its students. Within a week of the first deployment, the schools were already repossessing the devices. Students found that the new tool was aggressively limited by school-installed software that turned the Information Superhighway into a dark tunnel that runs from the device to the school. So, they figured out how to circumvent the built-in "protections." And in doing so, lost access to the devices altogether. School officials (including school resource officers [pronounced "cops"] saw the equivalent in the fall of Western Civilization contained in the students' subversion of restrictive limitations. But rather than use the opportunity to teach or learn, they simply took the technology away. Dangerously Irrelevant's Scott McLeod [previously seen here discussing tech/schools], the Director of Innovation for the Prairie Lakes Area Education Agency in Iowa, noted the following while making some early year tours of schools in Iowa. Rather than embrace the Internet and technology in general, schools put more legalistic wording into telling students how much stuff they can do wrong by using either. In addition to such proclamations as "your use will be monitored" and "internet access is a privilege," McLeod found that the average Acceptable Use Policy contains more things to sign off on than "buying a house." The composite list he put together rivals the numerous unreadable Terms of Service agreements scattered across the web. I understand that I am responsible for my use of the district technologies and the use of the tools is for academic and educational purposes. I will practice digital citizenship by using information and technology responsibly, legally, and ethically. I understand the use of the Internet and technology is a privilege and not a right; there are consequences for not adhering to the Acceptable Use Policy. I will honor property rights and copyrights with information and technology. I will keep my intellectual property safe by saving in specified locations, using and safeguarding passwords, and using my own account at all times. I will practice personal safety by safeguarding identities while online or offline. I will not participate in any form of cyber-bullying or harassment. I will use technology in a respectful manner, sharing equipment and resources. I will only use district-approved technology, tools, resources, and applications while on [the district’s] campuses. I understand that users must use the district wireless access points; no personal or other access points should be used while on [district] campuses. I understand that personally-owned devices are not allowed on district networks nor used for online access. I will not attempt to use any software, utilities, applications, or other means to access Internet sites or content blocked by filters. I will not capture video, audio, or pictures without the consent of all persons being recorded, their knowledge of the media’s intended use, as well as the approval of a staff member. I will report any problems with the equipment, resources, or network to a teacher or administrator in a timely manner. I understand that the district’s technology resources are the property of the district. I have no expectation of privacy with respect to any materials therein, and all use of district technology resources may be monitored without notice. I understand that I may be responsible for any damage or loss I cause to district technology resources. I have read the acceptable use policy, which [sic] are incorporated by reference herein, and agree to the stated conditions in this form as well as in the entire policy and regulations. I also agree to abide by any school technology handbook which may be applicable. I understand that I am responsible for taking care of my laptop and accessories, including proper cleaning, avoiding hot and cold temperatures, and storing the laptop in the district-provided case. I will not leave my laptop unattended unless it is locked in a secure place. I (or parents) may be fully responsible for the cost of replacement should my laptop become lost or stolen. I understand that I (or parents) may be fully responsible for the cost of repair or replacement due to damages that occur to the laptop issued to me or damages I am responsible for on another person’s laptop. I will bring the laptop to school every day and to the best of my abilities have it fully charged. I will use the laptop for educational purposes and in accordance with the handbook and other applicable [district] policies, including, but not limited to, policy [ZZZ]. I will use academically-appropriate sounds, music, video, photos, games, and applications. I will not attempt to use any software, utilities, applications, or other means to access Internet sites or content blocked by filters. [duplicate!] I will only use the laptop’s recording capabilities for academic purposes, with consent of the participants, their knowledge of the media’s intended use, and staff approval. I will report any problems with my laptop to a member of the technology staff in a timely manner. The only technology support for the [district] laptops are [sic] through the [district] technology department, not a store or technology service. I understand that the district owns the laptop and has the right to collect and inspect the laptop at any time. I have no expectation of privacy in the laptop on [sic] any materials and/or content contained therein. While off campus, I will abide by [district’s] policies and agreement with respect to the use of the laptop, including but not limited to the 21st century learning handbook and board policy [ZZZ]. I will only use public or personally-owned access points and not privately-owned points without the owner’s permission. I will turn in the laptop and accessories on or before the designated day and location, or prior to my leaving the [district]. We have read the [district] 21st century learning handbook and policy [ZZZ] (acceptable use), which are incorporated by reference herein, and agree to the stated conditions. Questions or accommodations regarding the device would be directed to your building principals. He's not exaggerating much. While not every policy has all of these stipulations, a cursory search for Acceptable Use Policies finds plenty of AUPs with similar stipulations, most of which run on at length [pdf]. How does this encourage students to expand their knowledge or broaden their horizons? How can anyone learn from mistakes when all mistakes are either preempted or severely punished? Students faced with agreements like these may just decide to do all their surfing at home or anywhere else where they don't need to get the approval of presumptive "guardians" or worry about accidentally violating the many rules governing their dumbed-down access points? Even worse is the fact that an extensive list of "don'ts" doesn't encourage proper behavior. The AUPs assume that any small amount of leeway will be abused. What it says to students is that the school doesn't trust them to do anything on their own without screwing it up or using resources to do "bad" things. This sort of thing, repeated year after year throughout school, has a cumulative negative effect that strips students of the ability and willingness to make their own decisions or handle their own problems. Yes, trust is earned, but simply signalling that you're willing to trust sends a powerful message to students. Those who will take this opportunity to further build trust will find it very rewarding. Those who only look for loopholes will be swiftly outed by their own actions. The only difference between a restrictive AUP and an empowering AUP is this: some students will improve. The number of those abusing the system will remain roughly unchanged. Implied trust is a very powerful motivator in the right people. And those are the kind of people schools should be actively pushing towards greater things. McLeod suggests a different type of Acceptable Use Policy -- one that will encourage students to try harder, do better and become awesome people. He calls it an "Empowered Use Policy" (EUP). If nothing else, it's a whole hell of a lot shorter. When it comes to digital technologies in our [school / district], please… Be empowered. Do awesome things. Share with us your ideas and what you can do. Amaze us. Be nice. Help foster a school community that is respectful and kind. Be smart and be safe. If you are uncertain, talk with us. Be careful and gentle. Our resources are limited. Help us take care of our devices and networks. There's no shortage of micromanagers in the world. Let's not keep giving them a reason to exist by sending them wave after wave of graduates who can only function when someone else is in control of every aspect of their activities. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Copyright infringement is everywhere. A few years back, John Tehranian wrote a paper (and then a book*) called "Infringement Nation" about just how much copyright infringement happens incidentally on a daily basis. The conclusion, from a back of the envelope estimate, is that an average person is likely liable for $4.544 billion in incidental infringement in a normal year. And that's not for sharing music and movies and what not, but just doing the normal everyday things you do. With the news that the National Gallery in the UK has rescinded its long-standing "no photographs" rule, it appears that another opportunity for incidental and accidental infringement has been unleashed upon people in the UK. The National Gallery apparently realized that with everyone carrying a smartphone these days (and the fact that it offers free WiFi that it encourages patrons to use), it became kind of ridiculous to try to block photographs while encouraging people to use their phones to research the artwork they were looking at. However, the original notice noted that "temporary" exhibits will still have restrictions on photography "for reasons of copyright." But, as IPKat notes above, it's not clear why that should only apply to the temporary exhibits, since many of the permanent exhibit works are still under copyright as well (though the museum itself might also hold the copyright on many of those works). Either way, IPKat wonders if merely including a piece of copyright-covered artwork in the background of a photo -- such as a selfie -- might lead to claims of infringement. While some countries have freedom of panorama laws** that say it's okay to represent artistic works on public display, that apparently does not apply to paintings (though it does apply to sculptures). In the end, it appears that while it may be unlikely to get sued over taking a selfie in the National Gallery, if you're the extra cautious type, you might want to avoid it for fear of yet another ridiculous copyright claim. As IPKat notes, the caselaw is at least ambiguous enough that if someone wanted to go after you for your selfie with fine art, you might be in trouble. That this end result is ridiculous and kind of stupid isn't really discussed in the piece, but seems rather obvious. Yes, it may be unlikely that a lawsuit will come out of it, but we've seen sillier lawsuits in the past, and I doubt it would surprise many if this new policy also results in a lawsuit down the road. Because that's just the way copyright works. * Speaking of Tehranian's book. According to Amazon you can currently get a Kindle ebook copy for... just $39.99! Yes, an ebook for $40. It almost makes me wonder if they're demonstrating the insanity of copyright laws, in a book about how silly copyright law is, by pricing it at an insane price. ** On that note, I have to admit my knowledge of such "freedom of panorama" laws was fairly limited, but it seems ridiculous that no one is considering passing such a law in the US. The number of stories of people getting sued for photographs of public displays is getting silly here.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
The costs of analyzing DNA have come down significantly over time, so it's becoming increasingly common to sequence DNA and discover all kinds of biological curiosities. It's not quite as fast and easy as they make it look on detective shows on TV, but DNA analysis has made some pretty amazing advances. Here are just a few examples of genetic testing that you might have missed. It's actually not that uncommon to find people who are chimeras -- individuals with multiple genomes in their bodies. Twins can end up with a mixture of blood types that co-exist in their veins. Nearly all mothers retain some residual fetal cells from their children (and this is a form of microchimerism). We have a lot to learn about the genetic makeup of individuals, and it's not as simple as one might have assumed. [url] The male fetal DNA from a mother's son can often be found in her brain. Brain autopsies of 59 women showed that the majority of them had male DNA, giving evidence that fetal DNA can not only cross the placenta, but also the blood-brain barrier. [url] A blood test can now reliably detect an unborn baby's gender at just 7 weeks old. The genetic material from the baby can be detected and analyzed, offering some advantages over more invasive tests such as amniocentesis. [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

Read More...
posted 8 days ago on techdirt
We recently wrote about a very questionable lawsuit filed by, Roca Labs, a "dietary supplement" company (it apparently prefers "nutraceutical") with a claimed "alternative" to gastric bypass surgery made up of some ingredients that they claim will expand and fill up your stomach so you're not hungry. When you buy, the company "offers" a "discount" if you agree to never, ever say anything bad about the company, ever: You agree that regardless of your outcome, you will not disparage RLN and/or any of our employees, products or services. This means that you will not speak, publish, cause to be published, print, tweet, review, blog or write negatively about RLN, or our products or employees in any way. You further agree that in an effort to prevent the publishing of libelous or slanderous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts RLN, its reputation, products, services, management or employees. There's also the flip side in that to get the discount, you also are expected to share the details of your results with the company, and they will promote them publicly (assuming they make the company look good): You will help promote RLN and our products by sharing your weight loss success with us. You agree to like us on Facebook and follow us on Twitter. You agree that from time to time we may contact you via electronic mail or telephone to learn about your success. You agree that we can use any and all information that you provide about your weight loss success in RLN marketing efforts. Oh, and Roca Labs is so sure that you'll like its product that the company won't take it back. Ever. Under any circumstances. At all. You know the idea of a money back guarantee? Roca Labs doesn't do that -- even while admitting the product doesn't always work (more on that in a second). Bizarrely, Roca Labs argues that because it doesn't always work, you can't return it: An order is considered “shipped” once a USPS tracking number has been assigned. There are NO returns once the product has been shipped. DO NOT PURCHASE any product from us unless you agree to this no return policy. Your order is your acceptance of this NO RETURN policy. Your RLN order is a special order and is non-refundable. We do not guarantee any results for the use of our product and individual results may vary. There are many factors that may prevent you from achieving your weight loss goal. Thus, our product cannot be returned Also, while the company appears to have updated its terms and conditions, in its own filing, it included the earlier terms, which includes the claim that Roca Labs "ALWAYS WORKS." And also highlights the points made above: Either way, plenty of people have still been complaining. As we'd mentioned previously, the local Better Business Bureau gives the company an F rating, noting 73 complaints in the last three years. And, yes, PissedConsumer has a bunch of complaints as well. Roca Labs is taking a somewhat unique view of the law that PissedConsumer is somehow "tortiously interfering" with Roca's business, by encouraging people to post reviews. In the world of Roca Labs, merely encouraging people to post reviews is tortious interference with the bogus gag clause in the company's terms of service. PissedConsumer has now struck back with quite the opposition to Roca Lab's request for a temporary injunction. Written by lawyer Marc Randazza, it doesn't mince many words. Noting that Roca Labs really seems to want to avoid criticism, the filing includes (among other things) depositions by a doctor who looks into the ingredients in Roca Labs' product and comes away less-than-impressed, as well as the details of one of the people who filed a BBB complaint and... received a legal threat from Roca Labs in response. As the opposition filing notes, the questionable terms from Roca should already raise some questions: A critical reader would likely presume that something is amiss upon reading the key clause in Roca Labs’ purchase terms.... “In exchange for a significant discount… customers contractually agree that, regardless of their outcome, they will not speak, publish, print, blog or write negatively about ROCA or its products in any forum.” .... However, these same terms fail to disclose the amount of this “discount” or “subsidy.” .... Roca then requires its customers to agree inter alia that they “consent to and agree to entry of an injunction… in enforcement of your violation of this term and condition,” and that the customer will then pay an elevated price for the product.... This is alongside the company’s “no refunds” and “no returns” policies, and a waiver of any chargeback rights even if the product never arrives.... Roca Labs tries to scare its customers with clauses that provide it with a unilateral right to recoup not only an elevated price for the product, but “any expenses we incur in resolving the issue”, and that if any of them make a negative comment, it will (apparently even if true) “constitute defamation per se, entitling [Roca Labs] to injunctive relief and damages.”.... The coup de grace is a section providing for a one-sided attorneys’ fees provision, if a user dares to utter a negative word in public. As the filing questions, all of these should raise red flags about the company and its products: Does that sound like an upstanding company that stands behind its safe and reliable product? Or does that sound like a disreputable company, producing tubs of snake oil (or snake goop, as it were), and which knows that too much truth will hurt its fly-by-night bottom line? Roca Labs is desperately trying to force a cone of silence over each and every customer that discovers that Roca Labs’ product is not only a specious remedy for their weight issues, but a potential cause of additional health problems. Plaintiff, desperate to sell as many of its tubs of goo to the public as it can before regulatory agencies come knocking does its best to bully its former customers into silence. To support its position that Roca Labs' products are of dubious benefit and that the company is a legal bully, PissedConsumer's filing includes some interesting related declarations. First up a declaration from Dr. Thomas Parisi on the nature of Roca Labs' product and whether or not it is likely to be an effective weight loss tool. Parisi notes that Roca's offering, "which consists primarily of industrial food thickening agents," does not seem likely to live up to its claims of helping people lose weight by causing the mixture "to expand in the user's stomach, leaving her with no room or desire for anything else, thus prompting weight loss...." In fact, Dr. Parisi suggests, in actuality "it could lead to health problems in some individuals, including gastrointestinal distress. Moreover, based upon the ingredients contained in the Product, it could also cause additional unintended side effects in a large number of users, including diarrhea, bloating, intestinal discomfort, gas, constipation, intestinal blockage, dehydration, headaches, and dizziness." Dr. Parisi goes through each named ingredient and notes why each is unlikely to aid in weight loss or why there is no evidence to suggest it aids in weight loss. In some cases, such as with Konjac, he notes that it's a Chinese laxative, and that "no competent medical physician would recommend regular use of it (or any laxative) as a treatment plan for weight loss." He further notes that with Maltodextrine, the product may be counterproductive: Maltodextrin is often used in commercially available protein shakes and similar products. However, because it contains high-glycemic carbohydrates, intake of maltodextrin would typically be avoided in individuals trying to achieve weight loss. Dr. Parisi also notes how typical health products rely on clinical tests and consumer feedback, and thus Roca Labs' attempts to force silence on those for whom the product doesn't work seems out of step with any trustworthy health product. He specifically notes that "it is unethical for a health care professional to take steps to hide the side effects of any mediation or treatment from a patient." (I'm guessing that "mediation" is supposed to be "medication"). Then there's the declaration from Jennifer Schaive, detailing how she was not happy with the product, sought a refund, and complained to the BBB -- only to be threatened with a lawsuit from Roca Labs. She received a letter from Sharon King, who describes herself as a paralegal for Roca Labs, and the letter has some interesting claims as well, including that "Roca Labs does everything it promises to its customers." Of course, as you read the details, you realize the company means everything it promises... in its terms concerning not providing refunds and threatening to go after you should you say something negative about the company. Back to Randazza's response. He notes that Roca Labs is trying to get around the fact that it can't use defamation law to get an injunction by pretending that this is a different issue altogether: Temporary injunctive relief is not available to plaintiffs seeking to suppress allegedly defamatory speech.... Presumably for that reason, Roca Labs has attempted to disguise this defamation claim as a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and tortious interference claim in order to try to side-step the clear case law that cuts against it in defamation actions. But, no matter many times you call a “dog” a “duck,” it will neither lay eggs nor quack. Styling a baseless defamation claim as something else does not shield it from First Amendment scrutiny and render palatable the most odiferous and despised remedy known to our courts – the prior restraint. This exceptional relief is impermissible under Florida law and the First Amendment. It goes on to explain the basic's of prior restraint and how the First Amendment forbids such an injunction. And then gets to the Section 230 defense for PissedConsumer, noting that the service provider is not responsible for any speech by its users, even if that speech was defamatory. Roca Labs tries to get around Section 230 by arguing that because PissedConsumer tweets out comments based on reviews on the site, that it is not protected by 230, but that's not how other courts have ruled. Previous 230 cases have found that reposting content -- even hand selected content -- still protects the service provider. The Pissed Consumer website only hosts third-party produced content appearing on and is neither the author nor the editor of the reviews.... Because it is a service provider, and not a publisher, Defendants are immune from liability under 47 U.S.C. § 230 (the “Communications Decency Act” or “CDA”). “The purpose of the CDA is to establish ‘federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.’” ... While Plaintiff wants to hold Defendants liable as the “publisher” of the Tweets that are generated from reviews posted on , the Tweets are automatically broadcast third party statements, and are not written by the Defense.... Accordingly, even this creative argument fails as a matter of law. “[L]awsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred by the CDA.” ... Reviews posted on Pissed Consumer are automatically disseminated on Twitter, but that does not make Defendants “publishers” under the CDA, but instead falls within the purview of immunity. Defendants’ users authored the statements. Dissemination of them does not trigger a § 230 exception. Disseminating the content to the public is not enough. “A ‘provider’ of an interactive computer service includes websites that host third-party generated content.” The filing also takes down the claim that PissedConsumer is somehow engaged in "tortious interference" by merely asking people to post reviews. First off, for it to be tortious interference, Roca Labs would have to show that PissedConsumer was engaged in intentional and unjustified interference. It seems unlikely that anyone at PissedConsumer had any clue about the dubious gag clause pushed by Roca Labs, and even if they did, asking people to post their opinions is hardly unjustified interference. ven if Defendants had knowledge of Roca Labs’ customers beforehand, they would have been entirely justified warn them about the questionable product and unethical business practices, (as evidenced by the gag clause of the terms and conditions). “This cause of action requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.”... Plaintiff’s tortious interference claim swings on the notion that the Defendants “tortiously interfere[d] with Roca Lab’s customers by encouraging them to breach their customer agreement with Roca” by posting reviews on the Defendants’ website. ECF 5 at 2. While Defendants assert, infra, that this does not constitute tortious interference, neither Defendant denies that the Pissed Consumer website wishes for consumers to review products or services they have tried. But, this does not support liability, as there is no tort in allowing consumers to review products. It goes on to note that even if Roca's questionable legal terms are somehow enforceable against customers, they can only apply to current customers, not past customers. Even if these facts could support a tortious interference claim, a relationship with a past customer does not provide a basis for the claim.... While Roca Labs has burdensome terms and conditions, we can find nowhere among those burdens any obligation to be a repeat customer.... “The mere hope that some of its past customers may choose to buy again cannot be the basis for a tortious interference claim.” ... Therefore, Roca has no substantial likelihood of prevailing on the merits of its tortious interference claim, because the claim fails as a matter of law. Not surprisingly, the filing also notes that Roca Lab's gag clause is almost certainly not legal in the first place: Roca Labs complains that it put the Defendants on notice of the unconscionable contract, and on that basis claims that it compelled them to respect its outrageous (and unlawful) terms.... Roca Labs cannot use the gag clauses as the basis for seeking injunctive relief, even as it applies to its customers who wrote the reviews on the Defendants’ website, because Roca Labs has presented no legitimate business reason to support the gag clause.... Preventing customers from providing their opinion of Roca Labs’ product is not a legitimate business interest, but instead is itself a deceptive trade practice. Any act “which unfairly takes advantage of the lack of knowledge, ability, experience or capacity of a consumer; or results in a gross disparity between the value received by a consumer and the price paid, to the consumer’s detriment” constitutes an unconscionable trade practice. Finally, the filing attacks the idea that there's been a violation of Florida's unfair trade practices dispute, noting that the intent of that law seems ironically at odds with Roca Labs' attempted use of it. That is, the stated purpose of the law is to "protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce." And, since Roca is not a customer of Pissed Consumer and thus has no standing under the law. But again, even if it could, it's pretty clear there's no violation here: Plaintiff says that a “practice is unfair when it offends established public policy and when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious.” ... Defendants agree. The suppression of consumer reviews, some of which warn consumers of negative health consequences, fits that description. Meanwhile, no reasonable person could contort that definition into “allowing consumers to share their experiences to the benefit of other consumers.” Let us presume, arguendo, that Defendants are the evil conspiracy that Roca paints them to be; even reprehensible conduct is not actionable under FDUTPA absent loss or damage to a consumer.... There is no identifiable loss or damage to a consumer here, and unless Roca is a consumer of the Defendants’ services or products, it lacks standing to bring such a claim on behalf of other consumers who have no quarrel with the Defendants. Roca Labs calling this business “immoral,” is not enough to give it standing under FDUTPA19 (although it is ironic). And that's not even getting into the fact that the law requires everything to have happened in Florida (PissedConsumer is a NY-based operation) or the fact that you have to prove damages, and Roca Labs (conveniently) doesn't even bother to present any evidence of damages. In the end, the filing is fairly damning across the board. It seems likely that Roca Labs went through its usual paces in trying to intimidate PissedConsumer over the negative reviews, not realizing that it might have competent legal help who could actually respond to the questionable legal theories that Roca Labs was using in trying to have negative reviews blocked and censored.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
We've written a bunch of times about the "scanner patent troll" MPHJ (which also goes by a bunch of other names, because that's how patent trolls roll). This was the company that claimed to have a patent on a network connected scanner that allowed people to email a scan. It sent out letters to tons of companies demanding between $900 and $1200 per employee for merely owning a modern scanner. While the company is a bit sketchy and hard to track down, reporter Joe Mullin more or less outed lawyer Jay Mac Rust as the "brains" of the operation. The details were so egregious that MPHJ became the poster child for the absolute worst in patent trolling. Vermont sued the company for shaking down local businesses, and the FTC began an investigation into a short list of patent trolls, with MPHJ's name at the very top. In response, MPHJ... sued the FTC, claiming that it had a First Amendment right to shakedown companies with bogus threats and demand letters. That lawsuit has gone over about as well as you might expect, with a court dismissing it a few days ago. The court basically says the FTC is allowed to investigate, and MPHJ's claim is ridiculous: May Plaintiff derail the FTC administrative process by bringing this declaratory judgment action? The short answer is, "No." Basically, the court ticks off each of MPHJ's objections and points out that the FTC is allowed to run its investigation, and MPHJ can't claim that merely being investigated is somehow a violation of its rights. MPHJ, of course, now claims it is thinking about appealing this ruling: MPHJ respectfully believes the Court erred in its decision. The FTC had threatened to sue MPHJ in that court, and MPHJ sought only to have the FTC's claim resolved in that court. It is important to note that MPHJ was willing to litigate the issue in the federal courts, as it is confident that its conduct was lawful, a point recently confirmed by the Nebraska Federal District Court. Of course, the whole point of the ruling is that the FTC has to be allowed to complete its investigation before MPHJ can challenge it in court. As for the situation in Nebraska, MPHJ is correct that a court in Nebraska did say that the company has a constitutional right to send shake down letters, but even if that's true, it doesn't mean the FTC isn't allowed to investigate what's happening.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
For some time now, Techdirt has been following the "pay for delay" scandal, whereby a big pharma company buys off manufacturers of generics so that the former can continue to enjoy monopoly pricing long after its patents have expired. As we've reported, the authorities have finally started to clamp down on this abuse of the patent system. At the end of last year, two drug companies were fined by the European Commission, and now it looks like the FTC wants to follow suit, as the Wall Street Journal reports: For the first time since the U.S. Supreme Court ruled last year that so-called pay-to-delay deals may be subject to greater antitrust scrutiny, the U.S. Federal Trade Commission has filed a lawsuit charging drug makers with violating anti-trust laws and hurting consumers in their collective pocketbooks. Specifically, the agency charged several drug makers -- including AbbVie, Abbott Laboratories, which spun off AbbVie, and Teva Pharmaceuticals -- for striking deals that delayed the availability of the widely promoted AndroGel testosterone replacement therapy, a $1 billion seller. The article includes some details on how the "pay for delay" deals worked: In its lawsuit, the FTC charges that AbbVie, Abbott and Bevins Healthcare filed “sham” patent litigation against potential generic rivals, including Teva, and then entered into an allegedly illegal patent settlement in order to thwart competition. Although it's great that the FTC is finally tackling this problem, it's regrettable that it had to wait so long for that ruling by the Supreme Court (pdf) to give it the legal basis for pursuing pharma companies: The FTC had spent years trying to convince Congress and the courts that pay-to-delay deals hurt the economy. The agency, in fact, regularly released reports estimating the deals cost consumers dearly. In the last such report, which was issued in early 2013, the agency estimated the deals cost Americans $3.5 billion annually and contributed to the federal deficit. The delay in bringing these cases doubtless means that the companies engaging in this behavior have made some serious profits as a result -- and that the public has been forced to pay billions of dollars unnecessarily. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Another small win for fair use, courtesy of the Seventh Circuit Court of Appeals. There's some history behind the disputed derivative artwork, but that history -- while illuminating -- has nothing to do with the plaintiff or defendants. It does, however, explain why this item came to be, and is integral enough that the Court's decision recounts it during its very brief confirmation of the lower court's decision. [pdf link] While a student at the University of Wisconsin in 1969, Paul Soglin attended the first Mifflin Street Block Party, whose theme (according to Soglin) was “taking a sharp stick and poking it in the eye of authority.” Now in his seventh term as Mayor of Madison, Wisconsin, Soglin does not appreciate being on the pointy end. He wants to shut down the annual event. For the 2012 Block Party, Sconnie Nation made some t-shirts and tank tops displaying an image of Soglin’s face and the phrase “Sorry for Partying.” The 54 sales, on which Sconnie Nation cleared a small profit, led to this suit, in which photographer Michael Kienitz accuses Sconnie Nation and its vendor of copyright infringement. The original photo, which was taken by Kienitz and downloaded from Soglin's website, is shown below, along with Sconnie Nation's t-shirt design. Sconnie Nation admitted that the photo from the site was the starting point, so there's no question the rights belong to the photographer. But the photographer also admitted that he "gave" the photo to Soglin to use on his website (rather than licensed) and make freely available for download. These facts don't necessarily excuse the alleged infringement when applying the four-factor Fair Use test, as the court does here. There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many non-­copyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-­use privilege under §107 is not designed to protect lazy appropriators. As the court points out, the fair use protection for parody exists to prevent copyright owners from shutting down any uses that might make them (or their subjects) look less than dignified (something the photographer promised to his subjects despite having no legal way to prevent situations like this from occurring). But the fact that the appropriators could have started anywhere doesn't make this infringement (even if the court labors under the misimpression that the world is loaded with copyright-free images). Stacking the t-shirt up against the other prongs of the Fair Use defense, the Seventh Circuit Court finds the plaintiff's claims wanting. A t-­shirt or tank top is no substitute for the original photograph. Nor does Kienitz say that defendants disrupted a plan to license this work for apparel. Kienitz does not argue that defendants’ products have reduced the demand for the original work or any use of it that he is contemplating. The court notes that Kienitz could have claimed that this lampooning would diminish photographic work for other dignitaries, seeing as he promised to keep their dignity intact when licensing, but those claims were never raised during this case's trip through the court system. The court also points out that significant transformation took place during its trip from the website to Nation's t-shirt. The original photo was stripped of its background, was "posterized," re-colored and altered enough that the defendants could have achieved the same effect by "using a snapshot taken on the street." The court notes that the defendants made a small profit (which doesn't instantly negate a Fair Use defense -- although the court's wording here seems to indicate it does) but that is mitigated by the "political purposes" of the design. And even if Kienitz had decided to claim that the parodic work would harm his photography business in the future, the court says that "by the time the defendants were done, almost none of the copyrighted work remained." While "lazy appropriators" were smacked around a little, and the false assumption that making money negates Fair Use defenses was given a little credence, it's another win for transformative creations, even if it's one that is skewed to statutory factors rather than the concept of fair use itself. The decision is also a bit strange in the fact that it points out the significant transformation of the original Soglin photo, while at the same time dismissing the transformative use arguments raised by the Supreme Court (Campbell v. Acuff-Rose Music) and the much broader Second Circuit Court decision in Cariou v. Prince. The judge raises both cases by name but then points out that "transformative use" isn't one of the four factors under consideration and posits that entertaining the Cariou defense could undermine rights holders' control over derivative works. The Second Circuit has run with the suggestion and concluded that “transformative use” is enough to bring a modified copy within the scope of §107. See, e.g., Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013). Cariou applied this to an example of “appropriation art,” in which some of the supposed value comes from the very fact that the work was created by someone else. We’re skeptical of Cariou’s approach, because asking exclusively whether something is “transformative” not only replaces the list in §107 but also could override 17 U.S.C. §106(2), which protects derivative works. To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2). Cariou and its predecessors in the Second Circuit do not explain how every “transformative use” can be “fair use” without extinguishing the author’s rights under §106(2). By making this argument, the court conflates two distinct terms -- transformative use and derivative works (Section 106(2)) -- making transformative use slightly weaker, at least in this venue. Instead, the court focuses on the four statutory defenses, mainly those that could negatively affect the creator's future earnings. In doing so, it arrives at the correct conclusion, but leaves a muddied blueprint in its wake for future rulings to follow.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Last week, we wrote about how CIA boss John Brennan was trying to do a bit of history rewriting concerning the CIA's spying on Senate staffers' computers. As you may recall, when the allegations first came out, Brennan insisted: "Let me assure you the CIA was in no way spying on [the Senate Intelligence Committee] or the Senate." Except, back in July, the CIA's Inspector General put out a report that not only confirmed the story, but showed that the spying was even worse than initially detailed. At the time, Brennan apparently apologized to Feinstein, but things have heated up recently, after Brennan further refused to reveal to the Senate who authorized the spying. Now Brennan is continuing to try to spin the story, angrily hitting back at the reports out there. First up, he tries to spin that quote above by claiming the context was different: “This is part of the mischaracterizations. The Council on Foreign Relations, [moderator] Andrea Mitchell, said, did in fact CIA officers hack into the Senate computers to thwart the investigation on potential interrogation? Thwart the investigation, hacking in – no, we did not, and I said that’s beyond the scope of reason." But, no, what he actually said is that "the CIA was in no way spying on [the Senate Intelligence Committee] or the Senate." It wasn't about thwarting an investigation. He made a definitive statement about the spying. And that was a lie. From there, he tries to spin the spying away as well, with his new go to line about those computers being CIA computers, so they had every right to search them: “When the inspector general determined that based on the common understanding between the CIA and the [committee] about this arrangement of computers, that our officers had improperly accessed it, even though these were CIA facilities, CIA computers, and CIA had responsibility for the IT integrity of the system, I apologized to them for any improper access that was done, despite the fact that we didn’t have a memorandum of agreement. “What I’ve said to the committee and others is that if I’ve done something wrong, I’ll stand up and admit it, but I’m not going to take, you know, the allegations about hacking and monitoring and spying and whatever else, no. … When I think about that incident, I think there are things on both sides that need to be addressed.” Except, of course, if you read what Feinstein actually said, she indicates that there was an agreement, and the agreement meant the CIA wouldn't touch those machines. Director Panetta proposed an alternative arrangement: to provide literally millions of pages of operational cables, internal emails, memos, and other documents pursuant to the committee’s document requests at a secure location in Northern Virginia. We agreed, but insisted on several conditions and protections to ensure the integrity of this congressional investigation. Per an exchange of letters in 2009, then-Vice Chairman Bond, then-Director Panetta, and I agreed in an exchange of letters that the CIA was to provide a “stand-alone computer system” with a “network drive” “segregated from CIA networks” for the committee that would only be accessed by information technology personnel at the CIA—who would “not be permitted to” “share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.” So, first off, Brennan appears to be lying that there was no agreement concerning that. But he's also misleading in other ways, since it was just a few months ago that the CIA itself insisted that it wasn't allowed to search those computers. Senator Ron Wyden points our attention to a declaration from Neal Higgins, director of the CIA's "Office of Congressional Affairs" in a FOIA lawsuit brought by the ACLU demanding the CIA release the Senate Intelligence Committee's terror report. In that declaration, Higgins insists that the works on those computers are not the CIA's and the CIA cannot access them, contradicting the new story from Brennan's latest spin attempt. In fact, Higgins confirms Feinstein's claim that there was a clear agreement between the Senate and the CIA concerning these computers. One key principle necessary to this inter-branch accommodation, and a condition upon which SSCI insisted, was that the materials created by SSCI personnel on this segregated shared drive would not become “agency records” even though this work product was being created and stored on a CIA computer system. Specifically, in a 2 June 2009 letter from the SSCI Chairman and Vice Chairman to the CIA Director, the Committee expressly stated that the SSCI’s work product, including “draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee” and “remain congressional records in their entirety.” The SSCI further provided that the “disposition and control over these records, even after the completion of the Committee’s review, lies exclusively with the Committee.” As such, the Committee stated that “these records are not CIA records under the Freedom of Information Act or any other law” and that “[t]he CIA may not integrate these records into its records filing systems, and may not disseminate or copy them, or use them for any purpose without prior written authorization from the Committee.” Finally, the SSCI requested that in response to a FOIA request seeking these records, the CIA should “respond to the request or demand based upon the understanding that these are congressional, not CIA, records.” So, we have both the Senate and the CIA admitting that there was an agreement that these systems were under Senate control and that both would treat the content on those machines as being the Senate's property. In other words, Brennan is now lying again to try to rewrite history concerning the original lie. That's fairly impressive, but as Senator Wyden notes, it just highlights the culture of lying that has become pervasive at the CIA. You lie. Then you get caught and you apologize, but a few months later you lie again to pretend you never lied originally. But the facts here are clear. The CIA spied on the Senate, despite an agreement between the two that what's on these computers was to be considered the Senate's alone, even if the equipment was set up by the CIA. Then the CIA got caught. And now Brennan is lying again in pretending there was no agreement, even though someone who works for him already admitted that there was just such an agreement. But, of course, in this administration, apparently flat-out lying is not grounds for losing your job.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Benjamin Wittes, adjunct NSA apologist at the Brookings Institution and the most prolific blogger at Lawfare, has just unloaded a post meant to portray those opposed to the NSA as simpleminded strawmen/women who are triggered by certain letters rather than by the critically-important nuances. Here's the gist of it, which I can hopefully convey without copy-pasting the entirety of the short, extremely self-satisfied piece. I was at the National Security Agency yesterday giving a Constitution Day speech and I learned details of a shocking collection program: The government is bulk collecting all traffic on Twitter. Under a program menacingly called “Bulk Data in Social Media” and abbreviated—appropriately enough—as BDSM [insert proxy self-amused snicker here], Twitter has been providing all public traffic since 2010 for a massive government database that, as of early last year, contained 170 billion tweets. The goal of this program? To “collect the story of America” and to “acquire collections that will have research value” to analysts and others. Those of you who are not the morons Wittes makes you out to be will already know where this is headed. Wittes breathlessly adds in italics that Twitter does this voluntarily without a court order or FISA court review. Then he drops the "bombshell." Why would NSA do all this? It wouldn’t. The agency I’m talking about here is the Library of Congress. Yes, the Library of Congress is collecting every Tweet with the blessing of Twitter itself, and has been doing so for years. It was in all the papers. Those of us opposed to the NSA's bulk collections are supposed to stare deep inside ourselves as Wittes fumblingly twists the rhetorical knife. So here’s the question: If you were shocked when you read the first paragraph of this post and relieved when you read that the agency doing all this collection is not NSA but the good guys over at the Library of Congress, and that the good guys are actually planning to make that data available widely, why did you have those reactions? And do those reactions make sense? First of all, no one with any amount of sense would claim that the government can't access or collect public messages on a public platform. That's an expectation we live with when we use these services. But the collection of every public tweet for archival and research purposes is far different than the collection of private metadata and communications for the purposes of rooting out threats to the nation's security. (Or fighting drug wars, etc.) It's called intent. Wittes should look that up. Also, he should perhaps look into the difference between public and private info if he's got the time. While many people use social media to lay bare certain aspects of their lives, a high percentage of them do not reveal everything, or at least not as much as "just metadata" can reveal. Many intimate details about a person's life can be revealed by the data they "voluntarily" hand over to third parties. Cops can track people's movements with license plate data. The NSA can peer deeply into a person's life with bulk phone records. People don't "volunteer" this information, but there's no way to opt out. Vehicles travel outside on public roads. Phone connection data is collected because phone companies need to track usage for billing (and are required to do so by the federal government). Billions of tweets are all given up voluntarily by Twitter users. Even those who regret tweets they've sent or accounts they made still know in the back of their mind it's been archived somewhere. It's public speaking on a public platform. Which brings us to another major difference between the two: transparency. The Library of Congress has addressed this collection program publicly a number of times. Twitter also publicly announced this partnership. If anyone wanted to avoid being part of this collection, they could simply avoid using the platform -- a choice more realistic than the government's continued assertion that travel and communication are "luxuries" in which we wlllingly exchange our rights for convenience. What has the NSA announced? Not a goddamn thing. It's only talking now because someone took its secret programs and spread them all over the internet. Now it has to address these issues, but even in this era of forced openness, it still deploys a tremendous amount of black ink. I'm sure Wittes' post garnered a few chortles from like-minded individuals (including some he heavily elbowed in the ribs), but the whole setup is disingenuous. It conveniently ignores crucial differences between the two forms of collections in hopes of portraying the anti-NSA crowd as ultimately no more complex than single-celled organisms. The good news is that those of us on this side of the divide are constantly underestimated by those whose views skew more towards Wittes'. This sort of presumptive arrogance is what allowed a government contractor to walk out the door with thousands of classified documents from the top national security entity in the world -- one with a massive budget and the best minds the government could hire. The NSA simply believed nothing of that scope would happen to No Such Agency, even with an obviously lax set of internal controls. Now it's been burned. And yet, its apologists still think they can talk down to everyone on the other side of argument.Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
Back in April, Mike wrote about the decision of the Swedish ISP Bahnhof to delete all user log files in the wake of the judgment from the EU Court of Justice that the present EU data retention requirements are "invalid". According to an article in Computerworld UK, Bahnhof did this with the permission of the Swedish Post and Telecom Authority (PTS), which agreed that the Swedish law implementing data retention was problematic. However: in mid-August the PTS ordered Bahnhof to start retaining data again, Bahnhof CEO Jon Karlung said. The PTS has made a 180-degree turn in policy by ordering Bahnhof -- and Tele2, which also stopped retaining data for a while -- to resume doing so. According to a PTS spokesman, it was the government that ordered the PTS to start enforcing the Swedish data retention law again. "They appointed a commissioner to investigate if the Swedish national legislation could still be applied" despite the CJEU's ruling, he said. The commissioner came to the conclusion that the national legislation stands, and from that point on, the PTS has been enforcing the law again, he said. Bahnhof is not only fighting this reversal of policy in the Swedish courts, but also calling on the European Union to take action against the Swedish government for its refusal to halt data retention: Bahnhof, the renowned Swedish network operator and internet carrier joins forces with 5th of July Foundation to urge the EU Commission to initiate proceedings against the Kingdom of Sweden for blatantly ignoring the judgment of the Court of Justice of the European Union on April 8, 2014, which declared the Data Retention Directive invalid. Sweden now fails to fulfil its obligations according to The Charter of Fundamental Rights of the European Union, articles 7 and 8, ‘Respect for private and family life’ and ‘Protection of personal data’. It's rather a long shot, since the European Commission has given no indication it wants to get rid of data retention, and so is unlikely to help Bahnhof in its battle with the Swedish authorities. Still, it's nice change to have an ISP willing to stand up for its users time and again, as Bahnhof has done; long may it continue to do so. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
This week's most insightful comments both take the form of replies to folks who weren't quite getting the point. First up, after Texas tossed out an anti-photography law as a first amendment violation, one commenter balked at what they saw as a gift to peeping toms and pedophiles. Chris Rhodes took first place by reminding them that making that distinction, and targeting true bad actors, was the entire point: Did . . . did you even read the article? Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner. We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt. But § 21.15(b)(1) contains no language addressing privacy concerns. The provision certainly applies to situations in which privacy has been violated, but that is because the provision applies broadly to any non-consensual act of photography or visual recording I mean, seriously, it's right there. The court specifically acknowledges that there could be a law to protect privacy in places where privacy is expected, but that this one is over-broad. Court: "This law not only criminalizes actions unprotected by the first amendment, but also actions protected by the first amendment. Narrow it down a bit." Mouth-Breathing Peanut Gallery: "OMG THEY THINK TAKING UPSKIRT PICTURES OF CHILDREN IS OKAY!" Meanwhile, as we discussed a new bill designed to prevent copyright from screwing with first sale rights and diminishing your true ownership of devices that you purchase, one of our regular critics trotted out the old argument that people should be perfectly happy merely licensing their devices and losing all sorts of rights as a result. An anonymous commenter took second place by dismantling that silly argument for the umpteenth time: The purchaser obtained a physical good, such as a cell phone, a GPS receiver, or a car. The physical good happens to require manufacturer-installed software to serve its function. While copyright precludes the purchaser from unauthorized duplication of the software that came with the device, it should not preclude transferring the device to another willing purchaser. For most people, it is neither intuitive nor even logical that the physical good should come with first sale restrictions just because the manufacturer decided to include copyrighted material as an implementation detail. Although this is long gone, I remember some early software licenses expressly recognized first sale by stating that you could transfer the software to someone else, provided you gave them all the pieces, both physical and digital, that you received in your purchase and that you retained no copy of the item after the transfer. We have now abandoned not only the ability to transfer a software product under first sale, but gone the other direction by saying that anything which happens to include software as an implementation detail should be as encumbered as a pure-software product. For editor's choice on the insightful side, we'll start with another anonymous commenter, who focused on refuting a different assertion by the same critic — the ludicrous idea that copyright creates property rights: It destroys them. My right to copy as I please is a property right. I have the right to modify my property the way I see fit based on the configuration of the property of others. It's a natural right. I never agreed not to copy someone else or 'pirate' their product. It's an act of government that imposes these restrictions on my property rights telling me what I may or may not do with my property. The whole idea that you should have to 'buy' a license in the first place is what's misleading/misdirecting. I shouldn't have to buy a license, it's my right to freely copy as I please. Anything contrary to that is an artificial act of government abridging my property rights to do what I want with my property. Though I'm sure you will still dishonestly claim that copy protection laws are natural rights despite the fact that they don't meet the definition and despite the fact that even many of the sources you cite disagree with you. This week, we also made an extensive case for why net neutrality is not about the government taking over the internet. But that's an uphill battle, and our final anonymous editor's choice for insightful reminds us why: You have very good points in this article. However, Comcast's counterpoint has a lot of zeros at the end of it. Over on the funny side, we start with a comment on David Letterman's spat with the Eagles over a refusal to license their music. Michael crafted a nice little remix in response: Ok, let's all take it easy on the Eagles. This desperado Letterman has gone overboard with his lyin' eyes. If he is going to take it to the limit like this and cause an uproar, one of these nights the Eagles may decide that suing him may be the last resort, but still worth it. So remember, when you are living life in the fast lane, you need to be careful because you could wind up in court and whether you win or lose, all of your money could be already gone. In the long run, it's just not worth it to play their music. Our second place winner on the funny side all starts out with a simple question. We asked why the Obama administration hadn't weighed in during the FCC's net neutrality comment period — Vidiot had a possible answer: The President couldn't post comments to the FCC; he exceeded his monthly bandwidth cap. But someone's been getting off too easy so far, and that's U2, with their oh-so-compelling plans to create a new music format that is immune to piracy. So for editor's choice, we've got two replies to that announcement, starting with another comment from Michael: When I am thinking about who to work with for developing complex software designed to prevent people from accessing it in an unauthorized manner, I always have out-of-touch aging rock stars at the top of my list. If this is being worked on, somewhere there is a group of Apple developers rolling there eyes at the notion that U2 could be adding any kind of value to their work. Adam, on the other hand, is a little more optimistic — he thinks they might just be able to pull it off: 18 months from now; headline: Secure New Music Format Debuts; U2 Only Playlists; No One Pirates. SUCCESS! Given that U2 now has the dubious distinction of being a band that people actively resist having on their phones and iPods, he might have a point. That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 10 days ago on techdirt
Five Years Ago A Canadian appeals court let common sense prevail and said that merely linking to a website was not defamatory. Over in the UK libel laws were still out of control, creating real chilling effects for criticism. Meanwhile, Oregon wanted to sue a guy who posted the state's own guide to using public laws because, apparently, the state prefers the public to be ignorant of the law (easier to lock 'em up that way). Meanwhile, a sheriff used Craigslist to arrest some prostitutes, and rather than realizing how the tool helped him do the job, he blamed Craigslist for the prostitutes being so easy to arrest. The legacy entertainment industry was pushing its bogus propaganda on school children, and even more ridiculous, part of the program was trying to create propaganda that could then be distributed to local newspapers and TV stations to distribute the propaganda. On the flip side, some were pointing out that privacy rights and copyright often come into conflict, even though few people really consider that fact. ASCAP and BMI were demanding money for the 30 second previews that online music stores were selling, because of course they'd demand that. And up in Canada, the industry wanted a new tax on the iPod because of course they'd want that. A newspaper exec was claiming that search engines "break into our homes"... by driving more traffic to their websites. Some things never change. Things started to get heated with musicians disagreeing about how to deal with the internet. A group of musicians spoke out strongly against blaming fans and kicking them off the internet for file sharing. In response, another group of musicians attacked that first group of musicians, calling them "unhelpful" and "destructive" for daring to suggest that maybe attacking fans isn't a good idea. 50 Cent came out and pointed out that piracy is just a part of the marketing, leading Lily Allen to go on a bit of a rant about how evil piracy was and how the internet is destroying the music industry and all that. If you've been reading Techdirt for a while, you may recall what happened next, but we'll save that for next week... Meanwhile, a new research paper was showing best practices in online music offerings -- and it didn't include Lily Allen. Ten Years Ago We were, of course, discussing new business models for the music industry -- with the main one being patronage (a model that has become increasingly popular these days). Guess what? We were also discussing net neutrality a decade ago, because this is the debate that will never end. Microsoft software was shutting down air traffic in California, because what's air traffic control without some blue screens of death? AT&T was engaged in price gouging during a Florida hurricane, because it's AT&T. The masters of vaporware, the Phantom Gaming Console was a big story for a product that many believed was a scam all along. Patent trolls were suing lots of internet companies because that's what they do. Some people were asking to use mobile phones in airplanes, though that didn't get very far. And finally, people assumed that instant messaging at work must be a bad thing with no actual evidence to support that. Fifteen Years Ago: This was a big one. Fifteen years ago this week the White House finally eased off its restrictions against exporting encryption, a move that was vital to increasing internet security. Speaking of internet security, we were already dealing with FUD around cybersecurity as there were reports of Russian hackers breaking into the Defense Department. Also Hotmail had a security breach, because it's Hotmail. And Network Solutions, which still controlled all domain names, revealed everyone's passwords. Oh, and if you were really afraid of the upcoming Y2K threat, you could rent a self-sufficient mansion in the South Pacific for a few months on either side of Y2K. In the music world, Sony Music was acting like a typical major record label in telling bands that they had to give up lifetime rights to any URL that had the band's name in it. Way to internet, Sony Music. A reporter at Fortune couldn't find an MP3 and declared the whole concept of downloadable music over (Fortune reporters weren't exactly fortune tellers). We were already discussing the end of software in the age of the internet. Oh yeah, and remember when AOL was the big internet company everyone feared? 15 years ago, eBay gave AOL $75 million just so that it wouldn't start its own auction site. One Hundred And Twenty One Years Ago: On September 20th of 1893, Charles Duryea road-tested the first ever gasoline-powered automobile. Today, of course, it seems like we're finally trying to move past gasoline-powered cars.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
Normally, each Saturday we use the awesome stuff post to highlight interesting (and sometimes not so interesting) crowdfunding projects. But every so often we like to shake it up with something different. This week, I'm going to discuss some of the podcasts that I regularly listen to, and see what suggestions other folks have for good podcasts as well. For a long time, I didn't listen to any podcasts at all, and wasn't quite sure how people found the time. But that was before I had a commute and a dog. Those two things leave me a fair bit of time to listen to podcasts now. In case you're wondering, I listen to podcasts using Pocket Casts, which is (by far) the absolute best podcasting app I've found to date (after trying a bunch). It has the combination of features and user interface that make it just about perfect. Some apps have good features, some have decent UIs, but Pocket Casts was the only one I found that really had both. Also, I tend to listen to podcasts at a super high speed rate. Pocket Casts lets you speed up podcasts up to 3x speed (which is a true 3x, unlike some others that call something 3x when it's really 2x), which is about the limit I can do (another app I tried let you go up to 6x, and any higher than 3x was impossible). I know some people insist that anything above 2x is hard to keep up with, that's not really true. It takes some practice and training, but after a little bit it's not that hard. Given the right conditions (i.e., when I have little else to concentrate on and a very clear recording without strong accents), I've found that I can easily keep up at 3x speeds. When I'm driving, though, I tend to have to drop it down to about 2x, since I can't concentrate as much on the audio. Either way, at 3x speeds, taking the dog for an hour long walk and getting 3 hours of education and entertainment... is kind of amazing. The podcasts I listen to tend to be a mix of educational, entertaining... and just random. I'm not, in any way, suggesting these are "the best" podcasts. They're just the ones that I've ended up subscribed to. I've left out the music podcasts, because they're generally quite specific and I know musical tastes vary tremendously, so they didn't seem as interesting. News / News-like / Economics: Some of these are hard to classify, but they tend to be shows more focused on news or economics that I just find to be interesting. Fresh Air. For the longest time I completely avoided this NPR stalwart, so this is a relatively recent addition to my subscriptions (maybe a year ago) but Terry Gross really is an astounding interviewer and has really interesting guests. The podcasts are easy to listen to at 3x too, so it's really just about 15 minutes a day. Planet Money. Mentioned here many times. Always interesting short podcasts about economics-related news. The original team appears to have all left, and the show has changed over time, but it's still really interesting. EconTalk: Economist Russ Roberts interviews lots of really interesting folks and always has tremendously interesting takes on things. While I often (though not always) agree with him economically, what I think is even more interesting is his willingness to bring on those who he disagrees with and have very open and honest (i.e., non-judgmental) conversations with them, while frequently being willing to admit to his own biases and knowledge limits. Freakonomics: Usually good, though not always as interesting as it feels it should be. Often feels like it takes a bit too superficial of a view on things, which is too bad. Feels like it could dig deeper on some stories. London School of Economics Public Lectures: This one can be totally hit or miss. I'll generally give all of its podcasts at least 15 minutes (5 minutes at 3x speed) to see if it's worth listening to the rest. When they're good, though, they can be really fascinating. On the Media: Near and dear to my heart because they sometimes have me on. Or because it's awesome and covers the same sorts of topics we cover. Yeah, probably more because of the awesomeness of it. TLDR: A spinoff from On The Media from two of the producers there, it's short and sweet and once a week, digging up really fascinating random stories about strange and wonderful things on the internet. If you're not listening, you're missing out. The Bugle: From John Oliver and Andy Zaltzman, I wasn't sure whether to put this in the news or entertainment categories, because it's hilarious. It's also just back (as of yesterday) from hiatus since Oliver's been so busy with his HBO show. Wait, Wait, Don't Tell Me: Also, not sure if this is entertainment or news, but it usually keys off of news, and I still find it amusing, though I feel like this is the kind of show my kids will mock me for listening too when I'm older. It feels like an old person's show. Stuff You Should Know: A great podcast where the two hosts, Josh and Chuck have great chemistry with each other as hosts, and the topics are really well covered. When they've touched on things I actually know about they do a really good job, so I assume that's true of many other things as well. Stuff You Missed In History Class: Another great podcast from How Stuff Works folks, with hosts Tracy and Holly picking up interesting, if less well known, stories from history. Story Telling: I don't know what it is, but I love story telling in a whole variety of forms. I love telling stories. I love listening to stories. So I somehow have collected a bunch of podcasts that are forms of story telling. This American Life: Still amazing story telling. Some episodes are hit and miss, but when they hit (and there are a lot more hits than misses) they really hit. The gold standard for audio story telling. Radiolab: When I first started listening, I thought it was a little like This American Life on speed, because they seemed to edit out every single pause or silence, but over time I've found it to be something different and wonderful all on its own. Really touches on a variety of stories that are almost always amazing. I almost always feel like telling someone else about the episodes after I hear them. Re:Sound from the Third Coast Festival: They find great stories from around the globe and put them into a podcast. Some really random stories, but often quite interesting. The Moth: If you like storytelling and don't listen to The Moth, you're missing out. The Moth has become a massive institution these days. If you want to know my absolute favorite Moth story ever, it's this one about a scientist robbing a bank, except better than that (randomly, I almost rented that guy's apartment via AirBnB one time, but that's another story). Snap Judgment: Another story telling show on NPR with some really great stories. Risk! Podcast: A story telling podcast which is decidedly not on NPR, and the host promotes that it's story telling for stories that could never be on NPR -- so they tend to be a little bit more on the out there side of things. There are some great stories on there, but sometimes the selection can be a bit weaker than some of the other shows. StartUp Podcast: A brand new one from Alex Blumberg, who worked for This American Life for fifteen years and was the creator of Planet Money. He's now doing a podcasting startup, and is documenting the process in a podcast. I've spent the last fifteen years of my life around entrepreneurs and so far (in just three episodes) this is the most honest take on what it's like to be an entrepreneur that I've ever heard. It's amazing. I can't recommend it highly enough. He's telling the stories about entrepreneurship that we all go through, but which almost no one talks about. Serial Podcast: This is a brand spanking new one, and there's only a short preview, as the first episodes don't come out for a few weeks. But it's a new podcast from some of the folks at This American Life, where they're trying to tell a long story in a serialized fashion -- so over the course of a bunch of podcasts, they'll dig super deep into a story. Think of it (maybe) as a season long This American Life. It sounds fascinating. Entertainment: These are just other podcasts that don't necessarily fit into other categories, and tend to be more on the jokey / entertaining side of things, rather than serious, though some of the interview podcasts can get pretty serious. Smodcast: One of the first podcasts I ever listened to, from director/story teller/generally awesome funny man Kevin Smith and his buddy/sometimes producing partner Scott Mosier. It's just generally whimsical and entertaining, but also great. The last year has been wonderful as Kevin turned one of their whimsical discussions (walrus yes!) into a new movie called Tusk which just opened (so go see it). Hollywood Babble-On: I listen to a lot of Kevin Smith podcasts these days, but Hollywood Babble-On is probably my favorite. Kevin and another friend of his Ralph Garman talk about entertainment news. They make a hilarious pair. This is apparently on its way to becoming a TV show. Edumacation: Another Kevin Smith podcast with another friend, where Kevin tries to learn stuff. Sometimes successfully. Often not. The show itself is pretty funny though. Jay & Silent Bob Get Old: Yes, one more Kevin Smith podcast. This one with his old buddy Jay Mewes. This started out as an "intervention podcast" to help Mewes stay off drugs by telling the story of his past, but has turned into something different and amazing as Mewes more or less came out of his shell. This one is more sporadic these days, but still great. WTF Podcast: Comedian Marc Maron's amazing podcast. Hands down the most fascinating interviews. When I first started listening to it, I only listened to guests that I knew, but honestly, so many of the interviews were astounding that I now listen to them all. Maron's interviewing style is unlike anyone else's -- and he'll often insert his own insecurities into the interview (less now than in the past), but somehow it works in a way that it shouldn't... but always does. The Nerdist Podcast with comedian Chris Hardwick (and sometimes his friends Jonah Ray and Matt Mira). It's hard not to compare it to WTF, as they often interview the same people, but in very, very, very different ways. Where Maron's podcasts sometimes feel like therapy sessions, Hardwick's feel like hanging out with friends. Kevin Pollak Chat Show: Another comedian interviewing more guests. Pollak's shows go super long and super in-depth, interspersed with random games and jokes. This one often depends on the guests, but the guests are good more often than not, and Pollak is entertaining. The Daily Show Podcast... Without Jon Stewart: A pretty new podcast (just three episodes) which is kind of a behind the scenes at the Daily Show. So far the episodes have been really interesting (and funny). That's about it. Looking at that list, it sure seems like a lot, but it's really not as crazy as it looks (at 3x speed). Not that I really have time for any more, but I'd love to hear what other podcasts people listen to.Permalink | Comments | Email This Story

Read More...