posted 5 days ago on techdirt
Deputy Matt -- the psuedonym employed by the law enforcement officer behind this op-ed -- is here to blame everyone else but he and his fellow officers for today's law enforcement-hostile climate. It all leads back to Ferguson… When we finally located the son, who is of mixed ethnicity (dad is white, mom is Hispanic), he instantly began cussing and yelling at us. He took a fighting stance and said he was not going to do anything we told him. Luckily, we were able to calm him and get him into handcuffs without any blows being thrown. We asked why he was so hostile towards us. His response? Ferguson. The cops could not be trusted because of what happened in Ferguson, Missouri. He told us that he wanted to kill all white cops because of what “they” had done to Michael Brown. From the strength of a single anecdote, a nationwide attitude is extrapolated. It's not just criminals -- who Deputy Matt fully expects to be less-than-submissive -- it's everybody. Sadly, this feeling has not only infected the normal criminal element that I expect that behavior from, but even seems to be effecting [sic] middle class families as well. As goes the middle class, so goes the country. Deputy Matt could learn something from reactions to Ferguson. He could. But he finds it easier to blame everyone else for the unpleasantness of his job. Cops are still the wonderful, self-sacrificing people they've always been, he says. It's the American public that's gone downhill. The same people who we used to count on for support, the good, law abiding general public, are now reluctant to trust us. We, the local cops they have seen and contacted in the past, have not changed. We have done nothing different. The public is wrong. And why is the public wrong? Because it's too stupid to avoid being led by the nose. What has changed is the public’s perception of us, created by the reckless reporting by nearly every news outlet very early after the shooting of Michael Brown. The rush to be first with the story over the desire to be correct is having dire consequences nationwide, and quite honestly, has made my job more difficult and more dangerous. While I have my own issues with mainstream media and its shallow coverage of certain issues, Deputy Matt's problem seems to be that this one time, the slant briefly went the other direction. For the most part, the mainstream doesn't cover incidents like these. And when it does, it follows safe narratives (rioters!) and grants way too much deference to statements made by law enforcement/government officials. Compared to the way those outside the mainstream cover incidents like officer-involved shootings, Deputy Matt would be better off not biting the hand that (more often than not) feeds him. Going beyond the thinly-veiled insults (people are stupid and they get their information from sensationalistic sources) to the heart of Deputy Matt's argument ('It's everyone else!'), I'm inclined to agree with the general push of his article: cops haven't changed. To Deputy Matt, this signifies the blame should lie with the public. To anyone who's been paying attention over the past several years, the problem is that cops haven't changed. Many still believe they can operate without scrutiny, oversight or accountability. The omnipresence of recording devices (operated by both the public and officers themselves) doesn't prevent misconduct, brutality or unjustified killings. It just makes it more difficult to cover up. It also (very occasionally) forces law enforcement officials to hold officers accountable, but these are sadly still the exception rather than the rule. Putting more eyes on officer behavior and tactics -- whether it's by bloggers and journalists dedicated to this field or by the thousands of hours of amateur footage hosted at YouTube -- has resulted in a shift in the public's perception. But Deputy Matt is wrong to blame it on the public… or mass media… or Ferguson. The problem is Deputy Matt and the officers he's decided to speak for. They haven't changed. The cop who always laid a few extra licks on an "uncooperative" arrestee still does so… only there's a good chance the punches/baton swings/taser bursts have been captured on "tape." The cop who always performed a little extracurricular searching during routine traffic stops continues to do so… only now he's being served with civil rights lawsuits and the dashcam recording of his illegal efforts is splashed all over the news thanks to the plaintiff's lawyer. If the public no longer implicitly trusts the police to be the "good guys," the problem isn't the public. It's the cops who take money from citizens just because local laws say they can. It's the multiple agencies who feel the only way to handle the drug problem is as violently as possible. It's cops who shoot people's pets, rather than allow the animals' owners to restrain them. It's officers who constantly "fear for their lives" endangering the lives of citizens around them with careless use of deadly force. This is what's changed the public's perception of law enforcement. Sure, some of it may be based on bad info and careless hyperbole, but a majority of the damage done to the reputation of law enforcement has been inflicted by the officers themselves. Ferguson may have (slightly) altered the mainstream media's approach to officer-involved shootings. The more apparent side effect has been a heightened awareness of the immense divide between the general public and those charged with policing them. In between, there's a certain amount of hashtag activism and coat tail riders -- some of which culminates in a teen arrestee miles from ground zero name-dropping Ferguson as an excuse for his anti-cop aggression. But Deputy Matt's complaint ignores even the slightest, most minimal bit of culpability on behalf of his fellow officers. This massive blind spot prevents him from seeing the truth directly in front of him: if the public -- generally-speaking -- no longer trusts police officers, it's because -- generally-speaking -- police officers aren't worthy of the public's trust. Permalink | Comments | Email This Story

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Earlier this month, we wrote about the DEA's decision to set up a fake profile of a woman who was charged in a case related to drug dealing. The DEA argued that the woman's "consent" to using evidence from her seized cell phone in their investigation included allowing them to (without telling her) set up a Facebook profile in her name, post pictures of hers and other children (from the phone) and "friend" people that the woman knew in real life, in an effort to get more evidence in the drug case. After the story got attention, thanks to a Buzzfeed article, the DOJ said it will "review the practice" of creating such fake Facebook profiles (implying this isn't the only one). Facebook itself has now stepped into the fracas, noting that the DEA's actions are a "knowing and serious breach" of the site's policies, and that those policies still apply to the government. Most fundamentally, the DEA's actions threaten the integrity of our community. Facebook strives to maintain a safe, trusted environment where people can engage in authentic interactions with the people they know and meet in real life. Using Facebook to impersonate others abuses that trust and makes people feel less safe and secure when using our service. Indeed, as we have observed at Facebook, such deceptive actions are often used to further harmful conduct, such as trolling, hate speech, scams, bullying, and even domestic violence. This impact is markedly different from undercover investigations conducted in the "real" world. It further asks that the DEA "immediately confirm that it has ceased all activities on Facebook that involve the impersonation of others or that violate our terms and policies." Of course, I wonder if it would even be possible for Facebook to figure out when the DEA sets up a fake profile, but it appears that this tactic by the DEA may not be usable going forward. You can read the full letter below or download it here (pdf).Permalink | Comments | Email This Story

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The voting was somewhat slow this week, especially on the funny side, but that's no reason to ignore the great comments that rose to the top. After we noted that, despite the positive trend of increased exposure of police abuse, there doesn't seem to be any decrease in the abuse itself, That One Guy won first place on the insightful side by exploring the big reason for that: They remain 'oblivious' to it for the simple reason that it doesn't matter. Sure they got recorded macing someone for talking back, or beating someone, or robbing someone. What happens when that recording goes public? Nothing. They aren't fired, they aren't shifted to a desk-job to account for their inability to act like an adult around other people, any 'investigation' inevitably clears them, and if that doesn't work their union will almost always fight to get their job back, no matter what they were charged with. They don't care because even when people record their abuses of authority and criminal actions, they are never held accountable for them. Once they see their own paychecks docked, their own pensions reduced to pay out settlement funds... Once they start getting fired or demoted for their actions... Once they are held accountable and charged with the crimes they commit under the 'authority' of their badge... Only then then will care, but not a second before. Meanwhile, federal law enforcement has apparently been scrutinizing its applicants' downloading habits in recorded job interviews. This spurred Michael to win second place for insightful with a simple question: So they can record interviews, but they are unreliable for interrogations? For editor's choice on the insightful side, we start with the shortest and simplest of many responses to the ludicrous notion that questioning the government's claims about Kim Dotcom, while giving Dotcom the benefit of the doubt in his statements, shows a "pro-piracy bias". RD said what everyone with a basic sense of justice was thinking: Wrong. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a *pro due process* bias. This week, we also criticized (with some reluctance, and a great hope that he'll rethink his opinion) Neil deGrasse Tyson for some of his views on technology, startups and innovation. Hij expanded on our point, noting that Tyson's comments display exactly the kind of shortsightedness that scientists so often face: What I find sad about this is that there is no shortage of people who look at what physicists and mathematicians do and use this same argument. I can easily go to the local uni, pick out a random physicist and make fun of his work saying it has no bearing on the things that matter to me. Dr. Tyson has been tireless in trying to combat this argument, and now here he is using it on someone else. He should be celebrating everybody who creates new ideas no matter how small or shallow. The problems start when we start pointing at "the other" and denigrating their work. Dr. Tyson of all people show understand this. With that, we head over to the funny side, where are top two comments are neck-in-neck, separated by only a single vote. In first place we've got beech, with his proposed reason for USTR secrecy surrounding the TPP agreement: Uhh, is it because if the terrorists find out we'll all be dead? That seems to be the usual reason. Just barely in second place we've got ChurchHatesTucker, who balked at how relaxed we were about the release of Keith Alexander's financial disclosure documents: Oh, sure. Today it's Alexander's self serving investments, but tomorrow it'll be the US' nucular launch codes. And then where will you be, hippy? For editor's choice on the funny side, we start with a comment about Aereo — or rather, about the judge who asked them "just as a matter of finality, how many bites at the apple does one get?". One anonymous commenter seemed just as confused by this question as we were, and attempted to clarify: Judge, are you saying that you only take one bite of an apple and throw the rest out? That seems like a huge waste of apples. And finally, we've got a comment that I enjoyed primarily because I'm always happy to know that people are aware of how broken the premise of Lucy is. After we took a look at ways of harnessing energy from the sun in one of our DailyDirt posts, Zonker was inspired: For some reason this makes me think of taking the (flawed) concept of the recent movie "Lucy" and applying it to the plant kingdom: what happens when plants achieve 100% energy capture from sunlight? Come on Hollywood, let's make this happen. ...Actually, I think they pretty much did: Permalink | Comments | Email This Story

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posted 6 days ago on techdirt
Five Years Ago: We were still wondering about the attempts to insert the morality question into copyright, noting that it is almost always used to "cover up the inability to justify the expansion of rights on economic grounds." In a somewhat related post, we wondered what kind of industry sets up a group to specifically oppose what consumers want -- and the answer was: Hollywood. Another such group is the BSA, and it was finally having some of its nastier practices revealed. Sticking to the copyright question, we wondered if libraries really needed licenses to lend out ebooks, since they don't need permission to lend out regular books. ASCAP had a judge disabuse it of the notion that a ringtone is a public performance while a guy who uploaded his own book to Google and clicked the wrong button (making it available) then sued Google for infringement. The Associated Press and News Corp. were demanding money from Google (of course) along with other "aggregators" though, News Corp. apparently forgot it had its own aggregators who didn't appear to pay up any money at all. Oops. NY's Department of Labor reduced the unemployment benefits of an unemployed blogger because he put AdSense on his blog (making around $1/day), claiming that it was unrevealed employment. This was back in the day when people were still insisting that YouTube could never be profitable, but at least things like UK's Channel 4 were agreeing to put full shows on the site. In a surprise move, EMI actually did a licensing deal with Grooveshark, which (of course) later went away. A bunch of new music streaming services were hitting the market, and we didn't expect much from Mog or Rdio. Rdio's still around, but Mog got bought by Beats which got bought by Apple. Indian officials wanted to block Skype while Finland was declaring broadband a human right. We also had our first post about the ridiculous Jenzabar case in which a former Tiananmen Square activist turned entrepreneur was abusing trademark law to stifle a documentary that made her look bad. Finally, five years ago, we disagreed with something Larry Lessig wrote -- which doesn't happen all that often around here. Ten Years Ago: John Ashcroft's Justice Department was eager to be Hollywood's private police force. But, in an important decision, the Supreme Court decided not to review an important ruling that said the RIAA couldn't demand names from ISPs without first filing a lawsuit (copyright trolls keep "rediscovering" this supposed "loophole" without checking out the case law on it). Starbucks thought it was going to get into the music business while Amazon thought it was going to rent DVDs (a la Netflix). Google also released its desktop search offering, which never took off. Remember the OQO modular computer system? Probably not. It was insanely hyped varporware that people were talking about for years, but then it finally came out ten years ago and was overpriced and not very impressive. Applied Digital, a company famous for overstating claims about its "implantable" VeriChip was up to its usual games. Diebold e-voting machines had their usual problems. The FCC was in the process of killing off line sharing and people were realizing that all the doom and gloom predictions about how the phone "do not call" list would kill the economy were not even close to true. Fifteen Years Ago: We were getting close to Y2K and suggesting that it wasn't going to be a big deal (we were right on that one!). Bertelsmann and Xerox started experimenting with an early print on demand books offering, while we were excited that e-paper was finally coming. On the patent front, noted patent maximalist Priceline was suing Microsoft for patent infringement, while Visa had to settle a lawsuit with a woman who gambled away $70,000 online and blamed Visas for not stopping her. While it obviously didn't apply to that woman, studies were showing that people were still afraid to use credit cards online. Oh yeah. Also, 15 years ago this week, we wrote a short post about how people kept stealing other people's AOL passwords to break into their accounts. The story itself isn't noteworthy. But for the next fifteen years -- yes, right up until now -- idiotic people doing searches on "how to steal AOL passwords" somehow ended up on that page and would post details of the accounts whose passwords they wanted. Twenty Years Ago: We weren't yet publishing, but the first Netscape Navigator was released, sparking part of the revolution that led us to start Techdirt just a few years later. I still remember when Netscape came out. I had been a loyal user of the Mosaic browser, and so I rushed to download Netscape. But, since I had a pokey 2400 baud dialup modem in my dorm room at college, I had to make sure my roommate was okay with me leaving the phone line tied up all night to download the "massive" Netscape file (which I think was a massive 4 megs). If I remember correctly, the phone hung up in the middle of the first night and I had to wait until the next night to get the whole file down.Permalink | Comments | Email This Story

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posted 6 days ago on techdirt
As you may be aware, I'm a big believer in standing desks, and we've written about standing desk crowdfunding projects in previous awesome stuff post. However, my other obsession concerning working is the ability to have a fully functional "office in a bag" that I can take on the go. I may write about that one of these days in an awesome stuff post, but I have a full setup with a second monitor, portable ergonomic keyboard and more that I take on the go with me -- but I haven't yet found a workable portable standing desk. I'm left at the mercy of wherever I might be at the time, if there's a surface high enough to stand at. The most appealing has been the Ninja Standing desk, which has some really cool features, but is still pretty big when packed up. The more recent StorkStand was pretty creative in that it makes use of chair backs (and we'd mentioned it in the past too, but, again it was not really that portable). However, for whatever reason, there are a bunch of new attempts at offering portable standing desks on Kickstarter -- so this we'll profile them. The StandStand Disclaimer: the creator of this project sent a sample one to us to check out. The StandStand portable standing desk focuses on pure simplicity. Three pieces of lightweight wood that slot together to make a compact standing desk, and which can then be stacked up to be about the size of a laptop. Smaller than nearly all other options I've seen, and definitely meets the bill if you just work off of a laptop and want to be able to do standing on the go. Having played around with it, it's a little less stable than I would probably like, but not in any serious way. Of all the options I've seen, definitely the most portable, but there are tradeoffs in terms of what it's useful for compared to other options. ZentDesk The ZentDesk looks pretty awesome, actually. Basically it gives you pretty much all of the super useful features of a standing desk, and even comes with monitor stands (which would be very helpful for my setup). The downsides, though, are that it's huge and expensive. These appear to be the basic tradeoffs: simple and small vs. too big but with all the bells and whistles. Refold's Portable Cardboard Standing Desk The name of the Refold Portable Cardboard Standing Desk is pretty accurate. It's a foldable cardboard standing desk. When folded up it has a nice handle and you can take it along. But even folded up, it's huge. Bigger than the ZentDesk. You could maybe take it down to the corner coffee shop, but even then you'd need to find a place to put it, rather than a table to put it on, as with the other options. In the end, none of these portable standing desks truly meet the need that I'm looking for -- and it may just be because it's impossible to have the features I want in a package the size I want. But, it won't mean I won't keep looking...Permalink | Comments | Email This Story

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posted 6 days ago on techdirt
As you may be aware, I'm a big believer in standing desks, and we've written about standing desk crowdfunding projects in previous awesome stuff post. However, my other obsession concerning working is the ability to have a fully functional "office in a bag" that I can take on the go. I may write about that one of these days in an awesome stuff post, but I have a full setup with a second monitor, portable ergonomic keyboard and more that I take on the go with me -- but I haven't yet found a workable portable standing desk. I'm left at the mercy of wherever I might be at the time, if there's a surface high enough to stand at. The most appealing has been the Ninja Standing desk, which has some really cool features, but is still pretty big when packed up. The more recent StorkStand was pretty creative in that it makes use of chair backs (and we'd mentioned it in the past too, but, again it was not really that portable). However, for whatever reason, there are a bunch of new attempts at offering portable standing desks on Kickstarter -- so this we'll profile them. The StandStand Disclaimer: the creator of this project sent a sample one to us to check out. The StandStand portable standing desk focuses on pure simplicity. Three pieces of lightweight wood that slot together to make a compact standing desk, and which can then be stacked up to be about the size of a laptop. Smaller than nearly all other options I've seen, and definitely meets the bill if you just work off of a laptop and want to be able to do standing on the go. Having played around with it, it's a little less stable than I would probably like, but not in any serious way. Of all the options I've seen, definitely the most portable, but there are tradeoffs in terms of what it's useful for compared to other options. ZentDesk The ZentDesk looks pretty awesome, actually. Basically it gives you pretty much all of the super useful features of a standing desk, and even comes with monitor stands (which would be very helpful for my setup). The downsides, though, are that it's huge and expensive. These appear to be the basic tradeoffs: simple and small vs. too big but with all the bells and whistles. Refold's Portable Cardboard Standing Desk The name of the Refold Portable Cardboard Standing Desk is pretty accurate. It's a foldable cardboard standing desk. When folded up it has a nice handle and you can take it along. But even folded up, it's huge. Bigger than the ZentDesk. You could maybe take it down to the corner coffee shop, but even then you'd need to find a place to put it, rather than a table to put it on, as with the other options. In the end, none of these portable standing desks truly meet the need that I'm looking for -- and it may just be because it's impossible to have the features I want in a package the size I want. But, it won't mean I won't keep looking...Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
Dave Winer has a short, but important post discussing how a new round of entrepreneurs (and VCs) are too focused on locking in users, rather than making use of open standards. They worry that, if they provide open access to the data their systems accumulate, no one will come to their website, therefore no one will be able to enjoy their lock-in, thereby justifying their multi-million dollar valuations. Why should we care? Problem isn't that they're young, the problem is they have a too-thin value-add to support the kind of investment they've taken on. Since VCs are now investing in news startups, they are really testing the value of lock-in. I wonder how many of the new crop of VCs understand how this has shaken out in the past. I remember when RSS was just getting started, there were all kinds of fancy content management APIs, some were even in the process of being standardized. They all very quickly evaporated when RSS took hold. The difference between a four-screen spec and a bookshelf. Because you need all that complexity to hide all the lock-in. There was no place for lock-in in RSS. It was too obvious how it worked. Going for proprietary solutions that lock users in is a short-term strategy from a company afraid of its own ability to innovate. Those who actually know they can continue to innovate long term don't need to worry about locking people in, because people will want to stay. Furthermore, by keeping things open, you enable a wider ecosystem to grow up around things, providing even more value (much of it you don't have to build yourself). It's the same old story around open access, open source and other similar concepts. It's protectionism vs. free markets. It's copyright vs. creative commons. Openness breeds innovations and creativity -- and that's fearful for those who don't think they can compete. They need barriers, hurdles and tollbooths to try to keep people from leaving. It's short term thinking. Winer blames venture capitalists for this line of thinking: I think the VCs do a disservice to young technologists. When I was young, I would have said no thanks to lock-in. I'm not going to be so dishonest as to create tools that offer users no choice. I want to win because my stuff is deep and powerful and performs fantastically and has the features users want. Why? I chose my profession because I love what I do. There are lots of ways to make money. I'm not looking for scams and shortcuts. To be fair, I don't think all venture capitalists push for lock-in. There are many who do, but there are also many who recognize the value of openness and what it means for the long term and building truly sustainable businesses. We'll see what happens. The long term is a bitch, and it has a tendency to plow under get-rich-quick schemes and I know you think it's idealistic but evolution only builds on open formats and protocols. That's how technology layers. It's true some patents hold, and some lock-in gets built on. Look at PDF for example. But there's a reason HTML took us places PDF never could. The ability of anyone to do anything they wanted to, without having their API key revoked. That's a big enabler of creativity, to use terminology VCs understand. To some extent, I think this goes back to the pernicious myth of the "sustainable competitive advantage." This is a line you hear all too often from venture capitalists, and as I've said for over a decade, it's misleading in the extreme. Really successful businesses have a series of fleeting competitive advantages. The idea of a "sustainable competitive advantage" is a recipe for stagnation and resting on your laurels rather than ongoing innovation. Recognizing that a competitive advantage is always fleeting and competitors are always working hard to catch up is a recipe for continuous innovation and improvement. It's the same thing with lock-in vs. openness. Building for lock-in leads to stagnation and resting on one's laurels. You got them in, and then you just look to set up tollbooths. Building on top of openness allows you to continue to innovate and to better serve the people who love your services and it keeps them there because they're happy, not because it's too difficult to leave. Proprietary solutions and lock-in can and do work in the short term, but it's a dangerous long-term solution that often leads to less innovation. Building on openness creates greater opportunity, greater innovation and better overall solutions.Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
The Roca Labs story just keeps getting weirder and weirder. You can click that link to go back through the earlier stories, since I won't rehash them all here, but the latest is that Don Juravin, the "vice president" of Roca Labs who filed an earlier affidavit in the case (which caused some problems with actor Alfonso Ribiero's lawyers), has apparently decided to go directly after Marc Randazza, the lawyer representing Consumer Opinion Corp. (better known as PissedConsumer.com) in the lawsuit that Roca filed against that company. Juravin has put out a press release accusing Randazza of bribing a Nevada politician in order to get Nevada to pass an anti-SLAPP law (thanks to Adam Steinbaugh for the pointer). You kind of have to read the whole thing to get a feel for it. The press release is clearly designed to attack Randazza's (somewhat well known) reputation for defending the First Amendment rights of folks who work in the adult entertainment industry. It is said that politics make strange bedfellows; so what could be stranger than Democratic State Senator Justin Jones, a Mormon with family values, and Marc Randazza, a porn attorney and a speech advocate for pedophiles whose client list includes Phillip Greaves author of "The Pedophile's Guide”, Kink.com, Bang Bus and Milf Hunter. So what brings these two opposite personalities together: money and politics. So what's the specific details of the supposed "bribery"? Randazza recently wrote a blog post -- since taken down -- talking about how he had met Justin Jones and promised to support his campaign if he'd support an anti-SLAPP law: "Two years ago, my partner, Ron Green, introduced me to a guy. That guy’s name was Justin Jones. Justin was running for State Senate in Nevada. … I shook his hand and said “if you will sponsor an Anti-SLAPP bill, I’ll vote for you, and I’ll contribute to your campaign.” He promised me that he would do so. Within days of taking office, he made good on his promise. Today, Nevada has the strongest Anti-SLAPP law in the country" Now, this is perhaps not a particularly wise thing to say either in private or in public concerning a politician. It's possible that the statement on the blog is exaggerated as well. But to Juravin -- who amusingly describes himself as a "concerned public citizen" who "believes in the integrity of our electoral system and that no one person should wield undue influence over government officials" -- it's apparently a sign of our failing republic. Uh huh. Juravin -- whose company it should be noted has threatened us with what I would argue would be a SLAPP lawsuit -- also claims that the reason Randazza likes anti-SLAPP laws is because he can make money with them, and not because, you know, free speech is a good thing and thuggishly trying to shut people up is a bad thing. Mr. Randazza is a proponent of an Anti-SLAPP law (pornography lawyers generally want to be able to say and show anything), and he has brought numerous SLAPP lawsuits and generated tens of thousands of dollars in revenue for himself and his law firm. A stronger Nevada Anti-SLAPP law means more money for Randazza. Either way, it will be interesting to see whether the "integrity complaint" Juravin filed with the Nevada Attorney General actually goes anywhere. It does seem worth noting, of course, that many states have been passing anti-SLAPP laws (because they're a good thing, and we really should have a federal anti-SLAPP law) and that the Nevada one passed unanimously without a single negative vote (there was one "excused" -- and everyone else voted in favor). That certainly makes Juravin's statement that he "speculate[s]" that "the law would not have passed" if the Nevada legislature were aware of Randazza's promise to contribute to Jones' campaign. Again, making any sort of statement of "if you support this bill then I'll give you money" is not a good idea (even as it's often done implicitly). So, it's reasonable to at least question Randazza's statements on the matter, but considering it "bribery" seems like a pretty big stretch -- and Juravin is far from an unbiased party. At the very least, at the end, Juravin does admit that Roca Labs is in litigation with a company represented by Randazza, but either way, it seems like playing dirty. It appears to be similar to Roca Labs' behavior throughout this entire effort, basically attack or threaten almost everyone calling the company out.Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
For years, there has been concern over using antibiotics in our food supply, feeding animals "sub-therapeutic" medicines that make them grow bigger. The chicken industry seems to be shifting slowly towards removing certain antibiotics from its farms, but are consumers really aware of what the progress is (and isn't)? The Transatlantic Trade and Investment Partnership (TTIP) covers a lot of areas, and one topic that seems to gross out our European neighbors is our chlorinated chicken. While Europeans have painstakingly reduced the incidence of salmonella from their chicken farms with breeding and testing procedures, US growers just give our chickens a bath in chlorinated water tanks. [url] The antibiotics tylosin and virginiamycin are used in chicken feed to help the birds gain weight and grow more efficiently. The problem is that these antibiotics are also "critically important" in human medicine, and the uncontrolled use of these drugs in our food chain could endanger the effectiveness of medicines and create superbugs for us. [url] Purdue Foods now raises an antibiotic-free chicken (well, no antibiotics that are used in human medicine, at least), claiming to be the first to do so for all of its hatcheries. Other chicken growers (eg. Tyson) have been testing antibiotic-free chickens for several years as well, with chickens raised with different kinds of antibiotic-like substances (aka ionophores). Purdue's chickens may also be treated with ionophores, but US farmers are trying to move closer and closer towards an antibiotic-free process. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 7 days ago on techdirt
A few years ago we wrote about an "obscure" but vitally important copyright/fair use case involving Georgia State University. The school was being sued by some publishers (though the lawsuit was financed by the Copyright Clearance Center -- a collection group that collects royalties on these sorts of things) because professors had put certain readings online for download by students as "e-reserves." The big question was how were such things viewed under copyright law. Did it hearken back to a series of lawsuits in the 1990s about "coursepacks" -- which were found to be infringing because they were reproduced by for-profit copy shops) or was it just traditional fair use. Remember, the actual law (17 USC 107) specifically says that "multiple copies for classroom use" is a form of fair use. More than two years ago, a ruling came out and it was massive. In 350 pages Judge Orinda Evans did a four factors fair use analysis on each and every work named in the lawsuit, eventually declaring the majority of them to be fair use (5 were found to be infringing, others were dumped for not having shown that the publishers held the copyright or for de minimis use). The whole ruling was mostly good, but still fairly messy, and had some weird made up rules in there, such as claiming that it's fair use if the reserve was less than 10% of the book. As we noted, the judge seemed to get "excessively formulaic" in making the fair use call. While that might be expected having to go through so many separate analyses, it's not how fair use is supposed to work. Now, the 11th Circuit Appeals court has basically overturned the ruling on fair use, in a ruling that comes in at only 129 pages. But the reasoning isn't that bad. It calls out the same problems that worried us when the original ruling came out. The main concern here is that Judge Evans "gave each of the four factors equal weight" when that's not how the factors are supposed to work. They're supposed to be the things that you look at before making a determination on the use as a whole. Furthermore, the appeals court seemed quite reasonably concerned about Judge Evans' formulaic conclusions. The court further rejects the publishers' misplaced argument about "media neutrality" as a reason why the e-reserves should be treated just like coursepacks. That's good. In the end, the appeals court looks at the four factors, claiming that the use is not "transformative" but that it doesn't really matter, because the use here is for education. There's an awful lot of "on the one hand/on the other hand" reasoning that almost makes it feel like the judges on the panel kept going back and forth until finally deciding when to stop flipping a coin. Where it finally lands, goes back to that whole "multiple copies for classroom use" tidbit in the damn law itself. And thus: In sum, Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it. Furthermore, as described above, allowing latitude for educational fair use promotes the goals of copyright. Thus, we are persuaded that, despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as Defendants’ favors a finding of fair use under the first factor, despite the nontransformative nature of the use. The court says the district court got the 2nd factor wrong (nature of the copyrighted work) by not really looking at each instance, but assuming they were all in favor of fair use. But also admits that the 2nd factor really isn't a big deal in this particular case (again getting at the mistake of trying to weigh all four factors evenly). The 3rd factor (amount of the work) calls out Judge Evans for that weird 10% formulaic calculation. Here, the District Court found that the third factor favored fair use in instances where Defendants copied no more than 10 percent of a work, or one chapter in case of a book with ten or more chapters.... The District Court’s blanket 10 percent-or-one-chapter benchmark was improper. The fair use analysis must be performed on a case-bycase/ work-by-work basis. Campbell, 510 U.S. at 577, 114 S. Ct. at 1170; see supra discussion accompanying note 20. We must avoid “hard evidentiary presumption[s] . . . and ‘eschew[] a rigid, bright-line approach to fair use.’” Campbell, 510 U.S. at 584–85, 114 S. Ct. at 1174 (quoting Sony, 464 U.S. at 449 n. 31, 104 S. Ct. at 792 n. 31). By holding that the third factor favored fair use whenever the amount of copying fell within a 10 percent-or-one-chapter baseline, the District Court abdicated its duty to analyze the third factor for each instance of alleged infringement individually. While it can be worrisome to see a fair use win sent back, in this case, it seems to be mostly for the right reasons. That formulaic 10% rule was a strange one and a point that certainly concerned us in the original ruling. Here, the appeals court is pointing out that it's just the wrong way to do fair use analysis. On the fourth factor, concerning the impact on the market, the court appears well aware of the simple trick of just saying "well, there was a license available, and thus the use harmed the market" noting that this is circular reasoning. As previously explained, licensing poses a particular threat that the fair use analysis will become circular, and Plaintiffs may not head off a defense of fair use by complaining that every potential licensing opportunity represents a potential market for purposes of the fourth fair use factor. This follows a lengthy back and forth discussion on whether or not there were licenses available, what impact that has on the fourth factor and which party has the burden here. In the end, the court found that the District Court was correct in its initial analysis of the state of licenses, but failed to take into account the fact that the use was transformative in judging the fourth factor. Finally, the court is also troubled that the District Court separately looked at the fact that copyright law is supposed to "promote the dissemination of knowledge" saying that it's fine to recognize that, but it should be considered within the first fair use factor, rather than as a separate issue altogether. I'm not sure I agree with that directly, since I'd argue it not only goes way beyond the first factor but (again) is in the law itself outside of the factor. Still, it's not a horrible point. There is one other slightly troubling part in the ruling, which is that the court seems to suggest that fair use is "an implied license." In a sense, the grant to an author of copyright in a work is predicated upon a reciprocal grant to the public by the work’s author of an implied license for fair use of the work. But that's just wrong. The law itself says "the fair use of a copyrighted work... is not an infringement of copyright." That doesn't mean that it's an implied license. It means that no license is needed. The idea that it's an implied license, unfortunately, takes us back to this idea that every use "must be licensed" which is simply wrong. Still, that's not a huge part of the ruling, but a little pet peeve. Given all that, the case has been sent back to the lower court to reconsider and to correct these errors. As noted, it was good that so much was considered fair use in the original ruling, but a bit troubling on the reasons. Given these new instructions, it seems like the lower court now has a chance to come to the right answer for the right reasons and that's always going to be a better result. There is a "concurring" opinion by Judge Vinson, which is a bit on the wacky side, insisting that, despite the fact that fair use has been a part of the actual statute since the Copyright Act of 1976, it doesn't matter because it was originally common law and thus "fair use analysis does not require conventional statutory interpretation." Then he suggests the court "step back a little" and look at the use and determine if it's fair use or not -- and he's pretty damn sure it's not. Eh, whatever. Let's see what the lower court has to say, and then the inevitable return on appeal.Permalink | Comments | Email This Story

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There's no doubt that even closely related or allied countries treat the issue of free speech quite differently. Perhaps our most natural European cultural equivalent, Britain, has laws that I often find either confusing or silly, with a particular eye towards their long-panned libel laws. But even correcting for cultural differences, I'm having a real hard time figuring out how a UK court can issue an injunction barring the publishing of an author's recounting of his own personal history with sexual abuse at his ex-wife's request. You'll have to forgive the vagueness here, because there are simply no names being discussed on the matter due to the ongoing litigation. A British performing artist has been forced to shelve a book based on his experiences of childhood sexual abuse after his ex-wife obtained an injunction to prevent their young son from reading it. In a case that is alarming freedom of speech campaigners and which publishers say is deeply disturbing, the court of appeal has ordered that the artist cannot publish key sections of the book until the issue has been decided at trial. However, his ex-wife’s lawyers dispute claims that the case could set a precedent undermining the rights of other authors, arguing that it is concerned only with the rights of one child, who has a number of health problems, who they say would suffer catastrophic psychological distress were he to read parts of his father’s work. Let me flesh this out for you a bit. A well-known artist in the UK is publishing a memoir, including sections that deal with the sexual abuse he suffered as a child. His ex-wife obtained the injunction on publishing that factual account of his life because she believes it will harm, by her lawyer's own admission, a single child the two had together. That child is suffering a wide range of health problems, including Asperger's Syndrome, and the ex-wife is suggesting that reading the father's account would cause further harm. All of this, by the way, relies on a Victorian-era case the dealt with the intentional psychological harm some guy perpetrated on a woman in a bar by playing a practical joke on her. Seriously, I'm not making that crap up. To be clear, the injunction is temporary, but the alarming part is that the court seems to be staying the publication in order to ask an incomplete question. While accepting that there was a public interest in the book being published, the court granted a temporary injunction and ruled that the question of whether the boy’s rights should take priority over those of his father should be decided at a full trial. The problem here is that the court shouldn't be tossing that public interest out so easily. Imagine, if you will, a court system that disallows factual information to be revealed simply because someone may find it unpleasant. In this particular case, we have a child with medical issues to consider, a potentially sympathetic "victim", but it need not be so, based on the law if this case sets the wrong precedent. You might simply see young children used as excuses to keep controversial information from ever seeing the light of day. Add on top of that the concept of keeping a victim of sexual abuse from being able to do as he pleases with that information and we're suddenly diving into the arena in which the government is abusing him all over again. Not overtly, of course, but if intimidating homosexuals into staying in the closet is abuse, and it is, the same should be said of abuse-victims being prevented from telling their factual stories. Above and beyond all that, the parents could have tried to reach an agreement to simply not allow their child to read the book until a certain age. Instead, the mysterious ex-wife is robbing the public of a piece of literature in order to protect her son from being parented. Hey, my UK peeps: either you have free speech or you don't. I know you don't have our Constitution, but if the status of speech is such that you can't write about your own lives, you may have a problem. Permalink | Comments | Email This Story

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Google has come out with the latest version of its "How Google Fights Piracy" report (pdf link), going to great lengths to show how the company goes above and beyond what is required by law to try to drive people to authorized copies of content while also increasing opportunities for content creators to monetize their own content. There really aren't too many surprises in the report -- it just looks like an extension of what they've said in the past. The company is apparently about to roll out an update to its program that "downranks" certain sites based on how many DMCA notices it gets -- something that's been a huge point of contention from the RIAA and MPAA. In effect Google is basically saying to the major music and movie companies: you guys still haven't figured out how to optimize your content for search engines (like nearly everyone else online) so, fuck it, we'll do it for you if you'll just stop these ridiculous accusations. Of course, it's unlikely to work. Just this week James Murdoch insisted, incorrectly, that search engines love piracy because it brings them revenue. This has never made any sense at all, but it's a myth that flows through the legacy entertainment industry. How Google actually makes any money from those links is never explained, because there isn't an answer. And the question of why the industry doesn't do a better job getting its own content more highly ranked is ignored as well. And, of course, there's a real risk that by strengthening the "signalling" power of DMCA notices, what Google is really doing is giving the legacy players a tool for search engine "de-optimization", so that rather than improving their own offerings, they now have every incentive in the world to just file a bunch of DMCA notices against sites they don't like. This is why there's reasonable fear from many that this new move by Google will actually lead to an increase in bogus DMCA notices that result in legitimate content being censored. But, here's the thing: as we said when Google first came out with this report, it will never be enough for the legacy guys in Hollywood. That's because they incorrectly blame Google for their own inability to adapt to the changing market. They blame their diminishing revenue on Google, and even as Google makes it harder and harder to find unauthorized content, that revenue isn't going to come back... so they'll still blame Google. But Google was never the problem. The legacy entertainment industry and its political supporters will continue to point to search results that don't exist and search terms that are never used as some sort of "proof" because that's what they do. Rather than adapt, they really just want Google to do things for them. And for whatever reason, Google is doing more and more... and it's unlikely to ever please the likes of James Murdoch, because Google "not doing things" was never the real problem.Permalink | Comments | Email This Story

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A Georgia appeals court has said that parents of a 7th grader can be held liable for what their son posted on Facebook. At issue is a Facebook post where the son created a fake Facebook profile of a classmate of his, posting distorted images of her to make her look fat (ah, junior high schoolers...) and then including "profane and sexually explicit comments on the page depicting her as racist and promiscuous." Alerted to this, the kid's school suspended him, and his parents grounded him. However, the Facebook page stayed up for 11 months. The parents of the girl then sued the parents of the boy, claiming that they had "breached a duty to supervise their child's use of a computer and an Internet account" and, further, that they had "breached a duty to remove defamatory content existing on their property." The court rejected that second argument, but found the first argument at least reasonable enough to proceed to a jury. Part of the issue is that, after finding out about the fake page, the boy's parents, beyond grounding him, didn't look into what the page was, and where it was. The court argues that this could be negligent, because having been informed of the problematic page their son created, they may have had a responsibility to then monitor that page. In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication. But that seems problematic on any number of levels. There is no indication that the boy continued to post to the page after being disciplined for it. So there wasn't any issue with the parents' ongoing supervision of his computer and internet usage. The idea that they could retroactively be held liable because once they found out about it they only punished him and didn't go further to find and delete the page he created seems awfully troubling. And that's before even getting to the issue of why the liability should be put on the parents anyway. There's this myth out there that parents should supervise any and all computer/internet usage. Not only is that impossible, it's also a bad idea. Yes, parents should help kids learn to use the internet, including some early supervision, but part of learning to do something is learning to do it on your own. That means teaching them about risks and how to deal with them, and encouraging them to ask questions or raise concerns if they find them -- but it shouldn't mean watching over their shoulder every moment online. This kind of ruling doesn't necessarily mean that parents across Georgia need to immediately start spying on their kids' surfing activities, but it does suggest -- ridiculously -- that upon notification of a problem, they suddenly have a responsibility to monitor and clean up any messes their kids caused. That's very dangerous thinking. However, there is another interesting angle, which lawyer Marc Randazza has suggested on his blog, that the parents should make use of CDA Section 230 to claim they're immune from liability. Remember, the whole point of CDA 230 is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." And yet, this ruling effectively holds the parents responsible for the speech of their son. CDA 230 is mostly used to protect service providers from liability, but the law clearly also applies to "users." As Randazza notes: It is without dispute that the content was provided by another person, namely the son. The son, therefore, is the liable party – not the parents – and under the CDA, any claim to the contrary appears to be barred. He points to one case, in California that seems at least marginally analogous: In Delfino v. Agilent Techns. Inc., 145 Cal. App. 4th 790, 806 (2006), the California court of appeals found that when an employee used the employer’s computer network to send threatening messages, the employer was not liable. In that case, the court held that although the defendant-employer merely acted as the provider of the computer system, the plaintiff’s tort claims in essence sought to hold the employer liable for the publication of the threatening messages. Id. Therefore, the employer was immune under § 230. Randazza further notes, in a footnote, that the rulings in two of Prenda/AF Holdings failed lawsuits, claiming "negligence" for leaving WiFi opened, further reinforce the idea that Section 230 should apply in cases involving things like "negligence" for enabling the actions of others. It's too bad the lawyers for the parents either chose not to raise this argument, or perhaps didn't even realize it was open to them.Permalink | Comments | Email This Story

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For many, many years, we've noted the serious problems of the DMCA's "notice and takedown" provisions -- which, arguably, violate the First Amendment. A potential alternative regimen, which would be much more reasonable, and avoid many of the censorship problems of the DMCA, would be to do a notice and notice setup, in which service providers would pass along notices to the user, with an established time period for that user to respond, either by fixing the issue or issuing a counternotice. Then the service provider could decide how to respond, in either taking down the content or leaving it up. Unfortunately, that's not how the current DMCA safe harbors work. The notice-and-takedown provision does not require immediate takedown, but heavily incentivizes it by granting the service provider immunity from liability if they take the content down. This doesn't mean that the service provider is automatically liable if they choose not to take the content down (courts have found service providers to still be protected otherwise), but they can't use the simple and quick process of the safe harbor to get any lawsuits dismissed. Rather they might have to go through the full process of the lawsuit. Thus, some companies immediately take down all requested content in response to a DMCA request, just to give themselves protections under the safe harbor. Many, more reasonable, companies at least do a first-pass review over how legitimate the DMCA notice is, rejecting obviously frivolous ones, but still quickly taking down plenty of content (often mistakenly). Github, the super popular site for storing software repositories has been hit with more than a few DMCA notices in its time -- in fact, it has a repository publicly listing them all. Just recently, we had noted some controversial ones, including Qualcomm shutting down its own repository and the MPAA taking down Popcorn Time repositories, despite them containing no MPAA copyright covered material. Github has now made a very interesting move in changing its DMCA process to one that is basically a notice-and-notice policy, and one which also does not create collateral damage for non-infringing forks of projects. First, whenever possible, users will have a chance to fix problems before we take content down. Second, we will not automatically disable forks in a network based on the takedown of a parent repository unless the takedown notice explicitly includes them. Last but not least, we've published a completely revamped DMCA policy as well as a pair of how-to guides for takedown and counter notices to make our process more transparent and easier to understand. It's that first one that is most interesting to me for a variety of reasons. The company admits that it sort of did this informally in the past, but now it's official policy: The first change is that from now on we will give you an opportunity, whenever possible, to modify your code before we take it down. Previously, when we blocked access to a Git repository, we had to disable the entire repository. This doesn't make sense when the complaint is only directed at one file (or a few lines of code) in the repository, and the repository owner is perfectly happy to fix the problem. In practice, our support team would often shuttle messages between the parties to work out a way for them to fix it. That usually worked out well and everyone ended up happier at the end of the day. So we are making it a formal part of our policy, and we are going to do it before we disable the rest of the repository. It's absolutely true that this seems like a much better overall policy for everyone -- but it's still surprising (if unfortunate that it's surprising) that any company would be willing to take such a step, since, technically it's opening the company up to some amount of greater liability -- and lawyers tend to be averse to any move that may increase a company's legal liability. So, kudos to Github and its lawyers for recognizing that sometimes you have to let in a little legal risk for the good of the overall community.Permalink | Comments | Email This Story

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Apparently, the New Zealand government is not a huge fan of press freedom. The national police force recently raided and ransacked the home of Nicky Hager, an independent journalist who has been a thorn in the current leadership's side for some time now. In August, one month before New Zealand’s national election, Hager published Dirty Politics, which showed that key figures in Prime Minister John Key’s National Party were feeding derogatory information about their opponents to a virulent right-wing blogger named Cameron Slater. Hager published evidence in the form of incriminating emails, provided by a hacker, demonstrating coordination between National Party officials and Slater. The ensuing scandal forced the resignation of a top Key ally, Justice Minister Judith Collins, and implicated numerous other National Party officials and supporters. Despite the scandal, the National Party won a resounding victory in the election, sending Key to a third term as prime minister. And then, once safely back in power, the government wasted little time: On October 2—less than two weeks after the election—detectives from a regional “major crime team” came to Hager’s Wellington home armed with a search warrant authorizing them to seize anything that might lead them to the identity of his source for Dirty Politics. The warrant shows that prior to the raid, a police “intelligence analyst” had studied Hager’s media appearances in an effort to discover information about his sources for the book, taking particular note of references Hager made to knowing the source’s identity. Over at The Intercept, Glenn Greenwald and Ryan Gallagher note that Hager was also working with them on some Snowden documents as they concerned what was happening in New Zealand. As you may recall, right before the election, Greenwald had used some Snowden documents to show that Prime Minister Key had lied about mass surveillance -- leading Key to petulantly lash out with ad hominems at Greenwald, referring to him as a "loser." Greenwald made it clear that they would likely be revealing more about New Zealand's activities -- and now wonders if that might be another reason why Hager was raided, once the government figured out who Greenwald was working with. Either way, the search seems quite excessive and seriously raises questions about New Zealand's respect for the freedom of the press: Once they entered the property, detectives spent ten hours sifting through Hager and his family’s personal effects, making copies of any USB storage devices they found and seizing Hager’s computer, personal documents, a camera, a dictaphone, CDs, and dozens of other items—not to mention his daughter’s laptop, cellphones, and iPod. The whole thing seems fairly crazy, and clearly done to intimidate Hager and others for daring to actually call out the government's bad behavior. These are the kinds of actions that we're supposed to believe no longer happen in modern democracies, but they seem to be happening on an increasingly frequent basis.Permalink | Comments | Email This Story

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Over the summer, a research report came out detailing how "lawful intercept" offerings from Hacking Team and FinFisher could be used to hack computers via YouTube videos. YouTube quickly closed the vulnerability that enabled this (a man-in-the-middle attack on non-SSL'd videos), but it appears that criminals are still figuring out ways to use YouTube videos to hack your computer. The latest trick: exploiting ads on popular YouTube videos: This was a worrying development: not only were malicious ads showing up on YouTube, they were on videos with more than 11 million views – in particular, a music video uploaded by a high-profile record label. The ads we’ve observed do not directly lead to malicious sites from YouTube. Instead, the traffic passes through two advertising sites, suggesting that the cybercriminals behind this campaign bought their traffic from legitimate ad providers. In order to make their activity look legitimate, the attackers used the modified DNS information of a Polish government site. The attackers did not compromise the actual site; instead they were able to change the DNS information by adding subdomains that lead to their own servers. (How they were able to do this is unclear.) The traffic passes through two redirection servers (located in the Netherlands) before ending up at the malicious server, located in the United States. The target here: computers using Internet Explorer (based on our stats, this means that most of the people reading this site were safe from this particular attack). Once again, we see how scammers are using traditional ad networks to do nefarious things. And yet publishers still wonder why so many people decide to use ad blockers.Permalink | Comments | Email This Story

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Techdirt has been following the fascinating experiment of allowing the public to crowdsource proposals for new laws in Finland. As we reported, the Citizen's Initiative Act requires the Finnish Parliament to process any bill that collects 50,000 signatures from citizens of voting age. Last year, a bill to make copyright more balanced and better suited to the digital age managed to gather the requisite number of signatures, offering hope that it would be presented to the Finnish Parliament for a vote. But as TorrentFreak explained more recently, the Finnish Parliament's Education and Culture Committee recommended that the "Common Sense For Copyright" bill should be rejected. TorrentFreak quotes the digital rights group EDRi's explanation of what happened: "In its report, the Committee notes that the initiative suggests several ambitious amendments, but that it considers it impossible to propose, based on the initiative, even partial changes to the existing copyright law," EDRi notes. "The report states that the initiative includes internal contradictions and that many of the amendments it suggests are too significantly incompatible with the current legislation." That's rather telling, because the measures in "Common Sense For Copyright" are hardly radical: The draft, the brainchild of the Open Ministry nonprofit, calls for reduced penalties for copyright infringement and current penalties to be applied only in cases of a commercial scale. Fair Use provisions would also be expanded, alongside exemptions for those wishing to backup purchased media and time-shift commercial content. The fact that the Parliamentary committee thought that even these mild measures were "too significantly incompatible with the current legislation" underlines just how great the gulf is between actual copyright law and what many people feel would be fair. Sadly, a report on the Finnish public broadcasting company YLE's website confirms that not only did the Finnish Parliament refuse to consider the bill, it has dismissed out of hand every crowdsourced bill that reached the 50,000 threshold: Each of the six citizen's initiatives that have proceeded through the proper channels to reach the parliamentary floor for discussion has failed. The Finnish Parliament says it doesn't have the time to hear them and they can’t be moved to another date. Activists say technical shortcomings are poor justification for the slowness of the process. That's a truly disappointing end to a story that began on a hopeful note. When politicians won't even allow the public these tiny expressions of democracy -- just as the European Commission refused to allow a purely symbolic online petition against TAFTA/TTIP to go ahead -- is it any wonder that people feel disenfranchised and disenchanted with politics these days, or that they are starting to take to the streets as a result? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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When I was in middle-school, Mortal Kombat was released on home video game consoles. Because my friends and I loved the game so much, we used to draw pictures of the characters doing seriously horrible things to one another. As in, rectal-based spine-retrieval type of stuff. It was fun and it was funny...and if we did that today, I have to assume we all would have ended up arrested and in some kind of psychiatric facility. It's the only conclusion I can draw as America begins to build a tradition of penalizing, and in some cases further traumatizing, children for playing make believe in any way that includes a gun or a bomb. But to really get into a situation where stupid adults take some innocuous creativity by a child and use it as a springboard to absolutely mess with that child's state of mind, we must go to Alabama. A Mobile, Ala., mom says school officials forced her daughter to sign a contract promising not to commit suicide or harm others after the kindergartner "drew something that resembled a gun," then pointed a crayon at another kid and said "pew, pew!" 5-year-old Elizabeth was sent home after school officials made her take a questionnaire to evaluating [sic] her for suicidal thoughts, then had her sign the safety contract promising to contact an adult if she was thinking of suicide or homicide. This all happened while her mom waited in the lobby to pick her up, the upset parent told WPMI. Okay, everyone stop what you're doing right now and seriously think about this for a moment. A public elementary school in the United States, an agent for the public good, coerced a five year old into signing a contract promising not to goddamn off herself because she "pew-pewed" with a crayon. You know, that same thing most of us did as children? The thing where you take some object and point it like a gun and make a cartoon noise? Yeah, a five year old was confronted with the concept of suicide by the school over that. According to her mom, Elizabeth didn't know most of the words on the contract she signed. "Suicide," in particular, was a new one for her. "Mommy, daddy, what is suicide?" Elizabeth's mother says she asked. Holy hell, to foist that upon a child so young is insane. Permalink | Comments | Email This Story

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Even before the landmark United States v. Microsoft Corp. antitrust case, competition law was a bit schizophrenic when it came to the question of interoperability. Monopolists have no general duty to make their products work with those of competitors, but what about the situation where a dominant firm deliberately re-designs products to render them incompatible with others? That is the provocative question raised by several pending antitrust lawsuits filed against Green Mountain Coffee, manufacturer of the Keurig line of single-serve coffee makers and coffee "pod" products. TreeHouse Foods alleged in a complaint last winter that after its patent on "K-Cups" expired in 2012, Green Mountain: abused its dominance in the brewer market by coercing business partners at every level of the K-Cup distribution system to enter into anticompetitive agreements intended to unlawfully maintain Green Mountain's monopoly over the markets in which K-Cups are sold. Even in the face of these exclusionary agreements that have unreasonably restrained competition, some companies, such as TreeHouse, have fought hard to win market share away from Green Mountain on the merits by offering innovative, quality products at substantially lower prices. In response, Green Mountain has announced a new anticompetitive plan to maintain its monopoly by redesigning its brewers to lock out competitors' products. Such lock-out technology cannot be justified based on any purported consumer benefit, and Green Mountain itself has admitted that the lock-out technology is not essential for the new brewers' function. In the consolidated multi-district litigation that ensued, Green Mountain is specifically charged with designing a so-called "Keurig 2.0″ brewer which features technology that allows it to detect whether a coffee cartridge is one of Keurig's K-Cups or is made by a third party that does not have a licensing agreement with the company. The machine will not brew unlicensed coffee pods. The federal court overseeing the MDL cases denied the plaintiffs' motion for an injunction on procedural grounds in September, issuing an opinion which reasoned that commercial success of the "2.0" brewers was uncertain and that coffee competitors would still have open access to some 26 million Keurig "1.0" machines for several years. In other words, the court did not reach the merits of the monopolization claim against Green Mountain. So where does that leave Keurig? As Ali Sternburg observed before revelations of its new 2.0 technology, Green Mountain's prior 20 years of patent protection allowed the company to build a competitive advantage by "cultivating its brand (which likely involves trademark protection), honing its supply chain efficiencies, and generally maintaining its dominance due to having the first-mover advantage." More than ten years before those patents first issued, moreover, the federal courts had ruled that new product introductions by monopoly firms — in one well-known instance, Kodak — would not be considered an antitrust violation because "a firm that pioneers new technology will often introduce the first of a new product type along with related, ancillary products that can only be utilized effectively with the newly developed technology." So-called technological ties exist all over the tech world, from smartphone apps that work only with a single website, to PC printers that only accept chip-enabled ink cartridges from the printer manufacturer, to proprietary media DRM protocols such as Apple's AAC format for music, to Sony's failed attempts at proprietary flash-memory stick technology. Yet there's a profound difference between designing a new photographic system like the then-revolutionary Instamatic II in 1978 (subject of the Foremost Pro Color decision quoted above) and re-designing an existing product line to disable competitive substitutes. The Verge called Green Mountain's tactics "locking down its coffee makers to keep out cheap refills." And despite world-class defense counsel, little that Keurig has said so far connotes serious efficiency or product quality advantages to its pseudo-DRM approach to coffee pods. If those are the facts, the courts will be forced to face the competitive merits of the MDL plaintiffs' claims in circumstances in which innovation, the keystone of the doctrine permitting technological tying, is notably absent. Conversely, the first antitrust competitor, TreeHouse, announced in August that it had successfully reverse-engineered the Keurig 2.0 system so that its coffee pod products "will work in both existing and next generation coffee makers manufactured by the leading supplier of personal at-home brewing systems in the United States." Which is it, innovation or predation? Certainly it is impossible to judge from afar or to make generalizations. Under the burden-shifting legal approach to monopolization claims laid out by the Microsoft courts, proof of exclusionary effects require a Section 2 defendant to come forward with a procompetitve rationale for the challenged practices. Keurig claims its pod-detection interactive technology allows 2.0 coffee makers to determine which type of package (including Vue-packs, an earlier Green Mountain technology for larger brew sizes and more intense flavors that never achieved commercial success) has been inserted and offer up the appropriate user interface. "Keurig 2.0's interactive technology is Keurig's platform for future innovation," write the company's antitrust lawyers. As the law stands today in the U.S., antitrust courts recognize that whether any particular act of a monopolist is exclusionary, rather than a form of vigorous competition, can be difficult to discern: "the means of illicit exclusion, like the means of legitimate competition, are myriad." Faced with conflicting evidence and a non-pretextual claim of efficiencies, the MDL court will therefore be required to balance good versus bad — that is, determine whether "the anticompetitive harm of the conduct outweighs the procompetitive benefit." That's a tall challenge in the case of Keurig. Yet it is also one at the cutting-edge of competition law that presents serious ramifications for disruptive innovation. Could Uber be required as an antitrust matter to open its system to Hailo drivers? Is Twitter liable to TwitPic for integrating its own photo-posting function into the 140-character tweet service, thus effectively putting some third-party companies out of business? Are Microsoft, or Google, or Apple required to open their APIs to competitors or, once opened, legally prevented from reverting to a closed ecosystem? Those are competition questions that cannot, and should not, be answered based on either a 30-year old case involving Instamatic cameras and film or a 15-year old case involving Windows '95 and Internet Explorer 1.0. In another context, American courts have long held that First Amendment protection for the free exercise of religion means the judiciary cannot assess whether a belief system that claims to be a religion really is one, because courts lack the basic competence to make such judgments reliably. One could often say the same thing about competition analysis, since differentiating innovation from exclusion is fraught with dangers. One court of appeals has held, as a consequence, that [t]here is no room in [antitrust law] for balancing the benefits or worth of a product improvement against its anticompetitive effects… There are no criteria that courts can use to calculate the ‘right' amount of innovation, which would maximize social gains and minimize competitive injury. A seemingly minor technological improvement today can lead to much greater advances in the future. Indeed, the leading U.S. antitrust treatise concludes that "[b]ecause courts and juries are generally incapable of addressing the technical merits or anticompetitive effects of innovation, they quickly make the relevant question turn on intent. We believe this is the worst way of handling claims that innovation violates the antitrust laws." Yet a black-letter rule of "per se lawfulness" that necessarily prohibited competitors from challenging product re-designs based on facial claims of technological innovation would, in this author's judgment, go too far in the other direction. Hopefully, the Keurig 2.0 antitrust lawsuits will not end as a re-affirmation of the old legal adage that hard cases make bad law. Reposted from the Disruptive Competition Project Permalink | Comments | Email This Story

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Over the summer, the United Nations commissioner for human rights, Navi Pillay, had said that mass surveillance likely violates human rights. At the time, she said: ‟International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data. Practices in many [s]tates have, however, revealed a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight. All of these have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy.” Now a new report from a different UN official, issued to the UN General Assembly, backs that up and appears to go further: International human rights law requires States to provide an articulable and evidence-based justification for any interference with the right to privacy, whether on an individual or mass scale. It is a central axiom of proportionality that the greater the interference with protected human rights, the more compelling the justification must be if it is to meet the requirements of the Covenant. The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether. By permitting bulk access to all digital communications traffic, this technology eradicates the possibility of any individualized proportionality analysis. It permits intrusion on private communications without independent (or any) prior authorization based on suspicion directed at a particular individual or organization. The report is clear that it's not talking about just any surveillance -- but mass surveillance. It notes that preventing terrorism is a legitimate reason for targeted surveillance, but that since there's no proof that mass surveillance actually helps stop terrorism, it's in violation: Article 17 of the Covenant provides that any interference with private communications must be prescribed by law, and must be a necessary and proportionate means of achieving a legitimate public policy objective. The prevention of terrorism is plainly a legitimate aim for this purpose, but the activities of intelligence and law enforcement agencies in this field must still comply with international human rights law. Merely to assert — without particularization — that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use. The fact that something is technically feasible, and that it may sometimes yield useful intelligence, does not by itself mean that it is either reasonable or lawful (in terms of international or domestic law) The report also takes on the whole "but it's the internet, you have no privacy anyway" argument pretty clearly: Some argue that users of the Internet have no reasonable expectation of privacy in the first place, and must assume that their communications are available to be monitored by corporate and State entities alike. The classic analogy drawn by those who support this view is between sending an unencrypted email and sending a postcard. Whatever the merits of this comparison, it does not answer the key questions of legality, necessity and proportionality. The very purpose of the Covenant’s requirement for explicit and publicly accessible legislation governing State interference with communications is to enable individuals to know the extent of the privacy rights they actually enjoy and to foresee the circumstances in which their communications may be subjected to surveillance. Yet the value of this technology as a counter-terrorism and law enforcement tool rests in the fact that users of the Internet assume their communications to be confidential (otherwise there would be no purpose in intruding upon them). This is reflected in the assertions made by members of the intelligence communities of the United States of America and the United Kingdom of Great Britain and Northern Ireland following the disclosure of mass surveillance programmes operated by these two States, in which the disclosures were said to have damaged national security by alerting potential terrorists to the fact that their communications were under surveillance. [....] The suggestion that users have voluntarily forfeited their right to privacy is plainly unwarranted. It is a general principle of international human rights law that individuals can be regarded as having given up a protected human right only through an express and unequivocal waiver, voluntarily given on an informed basis. In the modern digital world, merely using the Internet as a means of private communication cannot conceivably constitute an informed waiver of the right to privacy under article 17 of the Covenant. The Internet is not a purely public space. It is composed of many layers of private as well as social and public realms. Those making informed use of social media platforms in which messages are posted in full public view obviously have no reasonable expectation of privacy. The postcard analogy is entirely apposite for the dissemination of information through the public dimensions of Twitter and Facebook, for example, or postings on public websites. But reading a postcard is not an apposite analogy for intercepting private messages sent by e-mail, whether they are encrypted or unencrypted. From there, the report notes that if states wish to impede on this privacy in the name of preventing terrorism, they must show tangible benefits from such surveillance -- and, so far, no government has done so. Furthermore, the report warns of: ...an ever present danger of “purpose creep”, by which measures justified on counter-terrorism grounds are made available for use by public authorities for much less weighty public interest purposes. It's good to see such a clear condemnation of the problems of bulk/mass surveillance efforts -- almost always conducted with no evidence of benefit. Of course, the reality is that this report is unlikely to lead the intelligence community to change its stance on these programs, but it further highlights just how out of step with basic human rights these programs remain.Permalink | Comments | Email This Story

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A few weeks ago, we wrote about how Sirius XM had lost its case concerning the public performance rights over pre-1972 sound recordings by the band The Turtles. As we noted, this ruling effectively upset decades of consensus about public performance rights for pre-1972 works. When that ruling came out, we noted that the judge, in a nearly identical case brought by the RIAA, appeared to be leaning in the opposite direction. It appears that the judge, Mary Strobel, read the other ruling and found it convincing enough to lean back in the other direction. While not a final determination in the case, Strobel has issued a ruling (pdf) that makes it pretty clear that Sirius XM is likely to lose, based on her agreement with that other ruling. Having considered the additional authority, the papers submitted and arguments of counsel, the court is persuaded that it should change its tentative ruling. The ruling itself is more of an essay of "on the one hand, on the other hand" arguments, rather than a typical judicial ruling (in many ways making it more readable), with the judge more or less suggesting that she's not entirely comfortable with this outcome, but that based on the plain language of California's state copyright law, this is the best way to read the law. Of course, the real mess here is because of the different treatment of pre-1972 recordings. Congress should have fixed this years ago by just making pre-1972 recordings subject to federal copyright law. Except... the recording industry has actually fought hard against this. The hypocrisy here is huge. While the recording industry has fought so hard against making pre-1972 sound recordings subject to federal copyright laws, now they suddenly want aspects of federal copyright law (like public performance rights which did not exist under previous laws) to apply to those very same works. If Congress made it so those works were under federal copyright, there wouldn't be an issue and all these works would be treated identically. But the truth is that the RIAA wants to keep these works out of federal copyright law to use them as a weapon against internet innovation. With rulings like these, it can hold companies like Pandora hostage, since those works wouldn't be subject to compulsory rates. As always, it's all about the RIAA seeking to hold back innovative services unless they'll go bankrupt in paying the RIAA.Permalink | Comments | Email This Story

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The overuse of antibiotics may be leading us into the "post-antibiotic era" where we'll face numerous bacteria that are resistant to our most advanced drugs. We may need to develop different strategies for identifying antibiotics or try various phage therapies to fend off antibiotic-resistant superbugs. Here are just a few links on finding new antibiotics and using bacteriophages in medicine. If we really met the end of antibiotics without any medicines to fight bacterial infections, it would be horrible. If you think Ebola is scary, just read up on MRSA and KPC-Oxa 48. [url] Tweaking antibiotic drugs can still produce some variants that may extend the usefulness of these pharmaceuticals by several years. A chemically-modified vancomycin has been discovered with 10-100 times the potency of the native compound. [url] The strategy of looking for new antibiotics in natural products has provided diminishing returns as researchers discovered they were finding the same compounds again and again, but new ways to genetically identify microbes could help refine the screening process and avoid redundant targets. Compiling a database of known genes could help identify potentially new antibiotics by highlighting the strains that might be more fruitful for novel drug targets. [url] Viruses are not evil. Bacteriophages actually keep us healthy by infecting and killing off disease-causing bacteria. Phage therapy could be a viable alternative to using antibiotics, but using viruses to fight off infections is not a widely used procedure in Western medicine (yet). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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As Mike has reported, the core of the newly-leaked TPP chapter is about granting Big Pharma's wish-list, with other worrying stuff for the copyright industry's benefit thrown in for good measure. But hidden away in the chapter's 70+ pages there's something very different -- and very dangerous. Here's how the Australian newspaper The Age explains it: The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system. That's clearly an incredibly broad definition of trade secret, and will allow a vast range of materials to enjoy this kind of protection. And by requiring criminal penalties, TPP aims to make that protection very serious indeed: TPP countries may criminalise all such disclosures or, if they wish, limit criminal penalties to cases that involve "commercial advantage or financial gain"; are directed by or benefit "a foreign economic entity"; or are "detrimental to a [TPP] party's economic interests, international relations, or national defence or national security." Notice that those are simply options: the default position is to criminalize everything. Moreover, even those "limited" cases could be applied very widely. Particularly troubling is the following aspect of the proposed text: There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the "economic interests" of any TPP country. The chilling effect that this would have on investigative reporting is evident. It would also represent yet another powerful reason not to become a corporate whistleblower. The presence of this section in the latest TPP text is not a complete surprise: a slightly shorter version was already in the previous leak of this chapter, as we reported earlier this year. Moreover, its appearance in TPP seems to be part of a larger push for stronger protection of trade secrets around the world. In 2013, the European Commission proposed new rules "to help protect against the theft of confidential business information." One of the questions in the accompanying FAQ was whether trade secret protection will be part of TAFTA/TTIP. Here's the reply: Trade secrets will be discussed in the TTIP negotiations, and has a heightened level of relevance with the recent allegations of economic espionage carried out by the national Security Agency (NSA). One goal could be to make sure that the two legal regimes are inter-operative facilitating recognition and enforcement of judgments on either side of the Atlantic. The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries. That's a clear signal that trade secrets will indeed be part of TAFTA/TTIP. Unfortunately, the latest TPP leak gives a pretty good idea of just how bad they are likely to be. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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FBI Director James Comey has doubled down on his basic attack on technology and privacy with a speech at the Brookings Institution entitled "Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course." He admits that he wants "every tool" available to law enforcement, and he's worried about that darn tech industry for wishing to keep users' information private. He calls it a "public safety problem." Others may disagree. Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem. We call it “Going Dark,” and what it means is this: Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so. We face two overlapping challenges. The first concerns real-time court-ordered interception of what we call “data in motion,” such as phone calls, e-mail, and live chat sessions. The second challenge concerns court-ordered access to data stored on our devices, such as e-mail, text messages, photos, and videos—or what we call “data at rest.” And both real-time communication and stored data are increasingly encrypted. Of course, many of us look at that encryption itself as a public safety issue on the other side. Greater encryption allows people to communicate safely, securely and privately -- which is an important public safety consideration. The simple fact is that crimes have been committed throughout human history without the ability of law enforcement to eavesdrop on people. It's merely an accident of history that so much communication recently has had backdoors and holes by which eavesdropping was even possible. Closing those doors doesn't mean law enforcement can't solve crimes, and it's silly to mandate backdoors when it's not necessary and can create more problems. Comey seems particularly annoyed that the tech industry is locking stuff up in response to the Snowden revelations, because he argues, that's blocking all sorts of other stuff he'd like to have access to: In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications. That is not true. And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals. Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch. It may be true in the movies or on TV. It is simply not the case in real life. It frustrates me, because I want people to understand that law enforcement needs to be able to access communications and information to bring people to justice. We do so pursuant to the rule of law, with clear guidance and strict oversight. But even with lawful authority, we may not be able to access the evidence and the information we need. Again, there's an interesting sense of entitlement there. There's lots of information law enforcement would like to have, and even may legally have the right to have, but which they cannot have. And that's been true throughout history, and law enforcement has survived and crimes have been stopped and criminals caught and prosecuted. What Comey is advocating here is to make everyone less safe just in case law enforcement wants it. That's a problem. Bizarrely, Comey is quite upset that companies are now marketing the fact that they keep you secure. Encryption isn’t just a technical feature; it’s a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at all levels. Sophisticated criminals will come to count on these means of evading detection. It’s the equivalent of a closet that can’t be opened. A safe that can’t be cracked. And my question is, at what cost? The cost of privacy and trust. Which are, you know, kind of important too... And then he goes back to his simply wrong declaration that this is about making people "above the law." But that's not true. There is no legal requirement that this information be available. It's not above the law at all. Being above the law means ignoring the law and getting away with it. But, to Comey, being above the law is apparently doing stuff that makes the FBI's job marginally more difficult. I hope you know that I’m a huge believer in the rule of law. But I also believe that no one in this country should be above or beyond the law. There should be no law-free zone in this country. I like and believe very much that we need to follow the letter of the law to examine the contents of someone’s closet or someone’s cell phone. But the notion that the marketplace could create something that would prevent that closet from ever being opened, even with a properly obtained court order, makes no sense to me. I think it’s time to ask: Where are we, as a society? Are we no longer a country governed by the rule of law, where no one is above or beyond that law? Are we so mistrustful of government—and of law enforcement—that we are willing to let bad guys walk away...willing to leave victims in search of justice? And then there's this: He's not a scaremonger, but you should be afraid: I’ve never been someone who is a scaremonger. But I’m in a dangerous business. And, of course, he wants Congress to step in and fix things for him, making everyone less safe: We also need a regulatory or legislative fix to create a level playing field, so that all communication service providers are held to the same standard and so that those of us in law enforcement, national security, and public safety can continue to do the job you have entrusted us to do, in the way you would want us to. A "level field"? Really? The field has been tilted strongly towards the FBI and NSA for well over a decade. It's only now, with further encryption, that it's been leveling out...Permalink | Comments | Email This Story

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Nintendo: it protects what it believes it owns with great vigor. The company has rarely missed an opportunity to make sure that other people are not allowed to alter or mess with the stuff Nintendo insists is Nintendo's. In an apparent effort to maximize the irony combo-meter, Nintendo also has been known to make sure that customers don't mess with or alter the properties those customers actually own, such as online support for games that Nintendo decided to alter long after purchase... just because. But the cold grip of Nintendo's control over its customers' property is apparently no longer limited to games. Nintendo recently released an update for the Wii U that forces you to "agree" to a new end-user license agreement, or else it simply bricks the console altogether. This is how Nintendo's update to its end-user license agreement (EULA) for the Wii U works, as described by Youtube user "AMurder0fCrows" in this video. He didn't like the terms of Nintendo's updated EULA and refused to agree. He may have expected that, like users of the original Wii and other gaming consoles, he would have the option to refuse software or EULA updates and continue to use his device as he always had before. He might have to give up online access, or some new functionality, but that would be his choice. That’s a natural consumer expectation in the gaming context – but it didn’t apply this time. Instead, according to his video, the Wii U provides no option to decline the update, and blocks any attempt to access games or saved information by redirecting the user to the new EULA. The only way to regain the use of the device is to click "Agree." It immediately brings to mind Sony's similiar move with their Playstation 3 product, in which the company unilaterally pushed out an update that would strip the console of serious functionality, including the ability to run other operating systems. It was something users had specifically wanted when they bought the console, and an update was pushed out to then take it away from them, but at least the update could be refused. There were consequences to refusing the update, but it didn't brick the console. Nintendo, in other words, is now officially worse than Sony when it comes to screwing with the console property of their customers. As the EFF post notes, this represents the latest step in a very troubling trend for consumer rights. It's a practice no longer even limited to the digital world, with physical products now including different kinds of DRM or methods to break the product if any payment issues arise. This also only continues to happen as long as customers put up with it. Nintendo may end up learning that lesson the hard way.Permalink | Comments | Email This Story

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