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You may recall that, back during the 2008 Presidential election, the Presidential campaign of John McCain sent YouTube a letter, complaining that the video site did not take fair use into account when deciding to pull down videos after receiving copyright complaints. Apparently, some people had been issuing copyright claims on videos related to his campaign that he believed were fair use, and he was quite upset about it. In particular, McCain was upset about videos his campaign had uploaded that included news clips that were taken down. He insisted this was not just fair use, but that YouTube was an important platform for political speech, and should be much more careful before pulling down political videos. If you can't read that, here are just a few choice quotes from the letter: YouTube is to be congratulated on the groundbreaking contributions it has made to the political discourse.... ... overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech..... ... It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day.... We recognize that the DMCA provides a counternotice procedure (of which we have availed ourselves several times), but this procedure, and the way YouTube has implemented it, provides inadequate protection for political speech, particularly in the context of a fast-paced political campaign..... From there, the McCain campaign went on to propose that political campaigns get special treatment, and that any videos associated with a political campaign get a more thorough human legal review prior to a takedown. If this sounds familiar, it's the same idea we actually heard proposed by the Copyright Office at their recent hearings. That suggestion of carving out political speech for special rights is a very bad idea, but McCain wasn't wrong to note the problem of copyright being used to censor political speech. You know where this is heading, right? It appears that McCain's current campaign (for Senate re-election in Arizona) has... issued a copyright takedown on a video posted by Rep. Ann Kirkpatrick, who is challenging him for his Senate seat. Kirkpatrick apparently uploaded a McCain campaign ad from his 2010 Senate campaign about completing "the danged wall" on the border with Mexico, and uploaded a version with Spanish subtitles. Here's the original ad: Obviously, "the wall" is a political hot potato -- especially this election season -- and Kirkpatrick is (quite reasonably) trying to remind voters (especially Hispanic voters) of McCain's strong support for the wall. That seems like pretty clearly protected free speech in a political campaign. The exact kind of thing that a former McCain campaign once suggested deserved extra protection as fair use. But, now he's just abusing the copyright takedown process to sponsor a rival. McCain's campaign that this was purely about copyright is laughable: The ad in question was not blocked because of its content, according to Lorna Romero, a McCain campaign spokeswoman. "The Kirkpatrick campaign launched a digital ad which was a clear copyright violation and YouTube agreed," Romero said. Again, there's a strong argument that this is fair use. It's certainly not undermining the market for 2010 McCain campaign spots. And, of course, it's not like McCain created the commercial because of the copyright. The whole thing is obviously done to censor a political rival because the message is embarrassing in the context Kirkpatrick raised it in. It seems like the McCain campaign of today, might want to refresh what the McCain campaign of 2008 had to say: While the issues presented by YouTube and other Internet technologies are new, the need to prevent meritless copyright claims from chilling political speech is decidedly not. Thirty years ago, a federal judge confronting a copyright claim over the use of music in a political advertisement correctly recognized the importance of preventing copyright from interfering with political candidates' free and full exercise of their First Amendment right to vigorously debate the issues of the day: In the context of this case, the Court must be aware that it operates in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.... [T]here is practically universal agreement that the major purpose of that Amendment was to protect the free discussion of governmental affairs, including discussions of candidates. This is a reflection of our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, because the identities of those who are elected will inevitably shape the course that we follow as a nation. [....] Though the judge who wrote those words had never used YouTube, the values he articulated are as true today as they were when he wrote them three decades ago. And, yes, they are as true today as well. If only the McCain campaign were familiar with what the McCain campaign wrote, because right now, it appears to be doing the exact opposite, in trying to use copyright to censor political debate.Permalink | Comments | Email This Story

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Limited time offer: Support Techdirt and get a "Nerd Harder." t-shirt! When the "going dark" encryption debates kicked off, a very, very long list of technology and encryption experts wrote a letter explaining that designing backdoors for encryption was a monumentally bad idea that inevitably would lead to weaker security and more vulnerabilities that made everyone less safe. In response to this, FBI Director James Comey, twisted what the letter said around to claim that the tech industry was claiming that it was too hard to backdoor encryption. But there's a difference between saying "this is hard" and "this is dangerous." Either way, a bunch of defenders of backdooring encryption started to pick up on this ridiculous framing, leading Julian Sanchez to coin the term "nerd harder!" as a way of describing non-technical policy people insisting that techies can just solve some problem if they put their minds to it. Then, last week, at the Copyright Office's DMCA hearings, I noted a similar kind of thinking, around copyright issues. That time, a lobbyist for legacy content companies insisted that if Silicon Valley was able to build a self-driving car, surely they could build a technology that would stop infringing content, without harming fair use. It was Nerd Harder all over again. After commenting on that, a few people suggested that Nerd Harder might make a good t-shirt slogan -- and we agree! So we made one. Nerd Harder may be an absolutely terrible policy idea, but it sure does make a nice looking t-shirt. We're doing this as a bit of an experiment, and we're using Teespring to make it work. Teespring is a t-shirt, crowdfunding setup, and we need to have enough people order the shirts in order to actually get them printed. So if we don't get enough orders, no t-shirts. But this also means that the campaign is for a limited time -- just through May 29th -- so put your order in now! And, oh yeah, obligatory xkcd: Permalink | Comments | Email This Story

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About a decade ago, we wrote about a series of silly lawsuits against Google in which search engine optimizers sued Google because their search engine ranking sucked. All of these lawsuits went nowhere fast. The reason why seems fairly straightforward: it's Google's search engine, and it gets to decide how its algorithm works. Having the courts come in and start mucking with that gets problematic fast. While I thought those kinds of cases went out of style a decade ago, apparently another SEO firm, called e-ventures, sued Google after the company called e-ventures' site "pure spam" and removed it from the Google Index. This is a level of punishment that Google has been known to slap on really egregious and sketchy SEO tactics. Google takes a pretty hard line on really scammy tactics, and even once famously banned BMW's website for spammy techniques. Apparently, at some point, Google's web spam team decided that e-ventures was spamming as well, and removed its website. The company sued under a variety of theories, but mainly claims that it did nothing that violated any of Google's stated rules -- and furthermore that Google was misleading in some of its public statements about what it will and won't remove from the web, as well as how it alerts people to those removals. Google hit back with two responses in a motion to dismiss. First, it said that it's protected under CDA 230 for removing content and second that the choices it makes on how the search results are ranked are protected by the First Amendment. Somewhat surprisingly, the district court has rejected both of these arguments. This is troubling for a few reasons, as we'll explain here. First: the CDA 230 claim is a different one than we normally talk about with CDA 230. Normally we're focused on CDA 230(c)(1), which talks about a service provider not being treated as the publisher of content from users. Here, no one denies that this is about Google's own search engine and own actions. But Google is pointing to a different part of the law, sometimes known as the "Good Samaritan" clause in CDA 230(c)(2)(A), which says that no provider shall be held liable for "any action voluntarily taken in good faith to restrict access to or availability of material...." This was designed to actually encourage sites to take down sketchy or "obscene" content. Basically, it's saying that if you decide to take down some content you deem to be obscene it does not remove your Section 230 immunity, and it doesn't mean you're now required to take down content other people find obscene. Google's argument is that this applies to search removals as well, and since it's making a good faith effort to remove content it finds objectionable, it's protected from liability. This argument seems pretty strong within the context of Section 230, but the court doesn't buy it, though it's reasons are kind of odd: The CDA statutory immunity is an affirmative defense which plaintiff is not required to negate in its Complaint. The plain language of the CDA only provides immunity for actions “voluntarily taken in good faith.”... While the CDA defense may properly be considered if it is apparent from the face of the complaint, that is not the situation in this case. Here, plaintiff has included allegations within its Second Amended Complaint that Google failed to act in good faith when removing its websites from Google’s search results. But that seems to wipe away much of CDA 230(c)(2)(A). So long as the plaintiff claims that a content removal is in "bad faith" you lose the immunity? That can't be right... but the court says it's fine for now. Perhaps the bigger issue, though, is the First Amendment claim. Again, the court rejects Google's arguments, and tries to thread the needle carefully. It says that it agrees that Google's search rankings are protected by the First Amendment, but that the real issue here is not the actual search rankings, but rather the statements Google made about why it removes some sites. While a claim based upon Google’s PageRanks or order of websites on Google’s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies.... Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies.... The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google’s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint. This feels like the strongest point the court has, but it still feels pretty weak. Google's policies include some basic catch-alls, saying that it can choose to remove search results based on "policies." That is, it can basically decide what it wants in the search results. And that seems perfectly reasonable. It seems dangerous to think that courts can tell a website what must be included in their search engine. The court also rejects another First Amendment argument in a way that also seems problematic -- saying that while "editorial judgment" is protected by the First Amendment, anti-competitive motives are not: While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google’s reason for banning its websites was not based upon “editorial judgments,” but instead based upon anti-competitive motives.... Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution.... Two thoughts on this: first, the idea that Google is removing an SEO company's websites because of anti-competitive reasons seems ludicrous on its face. I mean, Google links heavily to a number of actual direct competitors all the time. It's beyond reason to suggest that it would target a small no-name SEO firm. Second, again, this semantic setup gives a massive out on the First Amendment. Just claim anything is not "editorial judgment" but "anti-competitive motives" and suddenly the First Amendment issue gets tossed aside? The court also lets motions around trademark, unfair practices and tortious interference move forward, but they're basically rehashes of the points above. The only count it dismisses is a defamation claim, which was a clear nonstarter. While the ruling doesn't mean that e-ventures will succeed overall, since these issues can be debated again in more detail as the case moves forward, it seems likely that Google may try to appeal the basis for these denials. No matter what you think of Google as an entity, having courts tell it what can and cannot be in its index seems very dangerous.Permalink | Comments | Email This Story

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For years we've noted how the cable industry (and companies that feed off of it like Nielsen) have been in stark, often comic denial about the changes happening in the legacy cable sector. But every few months or so, a select rotation of news outlets also feel compelled to pooh pooh the entire notion of cord cutting, broadly declaring that the idea is a "myth" perpetuated by a select cadre of mean bloggers hellbent on confusing the public for some unfathomable reason. More often than not it's the editors trotting out the "myth" headline to gain hits, despite the story itself doing a piss poor job actually debunking the concept. One case in point is the Boston Globe, which recently proclaimed that because cord cutting is happening slowly in a country jam-packed with Luddites, the phenomenon at worst isn't real, and at best isn't important: "The thin trickle of households that have dropped pay TV in recent years is barely enough to make a dent in the industry. Just under 100 million households have some form of pay TV according to Nielsen surveys, whether it comes via cable, satellite, or alternatives like Verizon Fios and AT&T U-Verse. That’s lower than it was a few years ago, when 105 million households had pay TV, but it’s hardly a revolution and there’s no sign of an accelerating trend." Here's one of several problems with that analysis: just looking at pay TV subscriber totals doesn't tell the full story. One, several cable companies have started including their own $15-$40 standalone streaming service customers in with those totals, meaning the total tally of "pay TV subscribers" now includes -- ironically -- customers that have cut the cord. For example, Dish Network last quarter proclaimed it saw a net gain of 35,000 pay TV customers. But the company is now including its Sling TV streaming video customers in that total. Subtract those, and Dish actually lost an estimated 215,000 traditional TV customers. Comcast has now quietly started doing something similar after launching its $15, creatively-named "Stream" service in several beta markets. And while yes, these are technically still "paying TV customers," the difference is more than just semantics if you're analyzing which customers still subscribe to traditional television -- and paying upwards of $120 a month -- and which customers have flocked to much, much cheaper standalone streaming platforms (still a rarity among cable companies that don't want to cannibalize their own TV rolls like Dish appears willing to do). The Globe continues:"A separate survey by the Leichtman Research Group found that about 83 percent of households had pay TV subscriptions in 2015. That's down from the 87 percent with pay TV in 2010, but actually higher than the 81 percent in 2005. Bottom line, pay TV remains a staple of the American diet. Again though, just looking solely at total TV subscriptions doesn't illustrate what's actually happening. Another trick cable companies have used for years is to offer broadband and TV service bundled at a promotional price point significantly cheaper than just getting broadband alone. As a result, you've got millions of households that sign up for TV only because it's the better deal. In many cases these users, especially Millennials, aren't even using -- and didn't want -- the traditional TV service they signed up for. And, given they're on short-term promotions, it's far from certain they'll be sticking around. That's a short-term "solution" that makes investors feel cozy looking at the raw numbers, but it doesn't solve cable's real problem, and it doesn't somehow prove cord cutting isn't real. And now the newest trend is forcing customers to subscribe to legacy TV if they want to avoid usage caps, which is going to continue to prop up traditional TV subscriber tallies. To really understand shifting viewing behaviors, analysts have to look at how many customers are actually using the TV subscriptions they're signed up for. That's why traditional subscriber totals have remained static or in slight decline, but broadcast and cable ratings have been in free fall. As ESPN has painfully realized, this is also thanks to "cord trimming," or the act of reducing overall programming packages in an attempt to avoid relentless rate hikes -- more common than severing the cord completely. None of this is mythical, just a little more complicated than claiming the cord cutting is akin to yeti and unicorn. Analysts also tend to forget to factor in the fact that traditional cable TV subscriptions are either flat or in decline as the housing market recovers and grows. In short, that means millions of new houses and apartments aren't signing up for traditional cable, something that's also left out by just looking at subscriber rolls. Sanford C. Bernstein analyst Todd Juenger penned a research note this week pointing out that once people are faced with re-subscribing to cable after moving, many aren't bothering. In many instances, people aren't cutting the TV cord, they're refusing to connect it in the first place. That's especially true of Millennials heading out into the wild for the first time. Like the Boston Globe, Techcrunch also recently penned a missive declaring cord cutting a "myth," but like most other articles of this type failed to factor in the above details. It also makes a few odd logical leaps, like declaring that cord cutting isn't a thing because consumers have "their own definition of TV": "The story goes, "Cord-cutters are canceling their cable services and going over-the-top, therefore it's the demise of the television business as we know it." This premise is wrong. Here’s why: The consumer has their own definition of TV. To start, we should clarify that consumers now perceive “TV” as content, not as content delivered through a linear hardware box in their living room. HBO, Netflix, Amazon, Hulu, Buzzfeed — consumers don’t care about where content derives, they only care that it’s quality." In short, Verizon-owned Techcrunch had to redefine television to try and make the point that "cord cutting" as a concept somehow isn't real. But nobody is arguing that TV as a concept will die; it will just mutate. Traditional cable operators will eventually realize they need to compete on price, and they'll ultimately adapt. Right now though, the name of the game is fiddling with subscriber TV totals to calm investors, while generating the illusion among consumers that they're competing on price and flexibility. The result is so-called "skinny bundles" that are intentionally underwhelming and saddled with post-sale charges and fees, while the cable and broadcasters happily push bi-annual rate hikes on the majority of their legacy TV customers. So no, the traditional cable industry isn't "beating cord cutting," it's just fiddling with subscriber totals and forcing millions of customers to take TV service they may not want. And cord cutting isn't a "myth," many analysts just aren't yet seeing the full picture. The reality is that cord cutting is a very real, but very slow phenomenon. Slow in part because many TV subscribers are intimidated by new technology, something that will shift as these services get better and easier to use (and, to be blunt, old cable users die off). It's also slow in part because broadcasters were afraid of killing the legacy cash cow and licensing their content to potential disruptors like Apple. But the flood gates are slowly opening, and 2016 and 2017 are slated to be packed with new, cheaper streaming TV options that should accelerate the trend to the point where denial will no longer be an option. Claiming cord cutting is a manufactured fantasy certainly helps cable companies and the research firms making a living telling myopic cable executives precisely what they want to hear. And right now, what these executives want to hear is that cord cutting and cord trimming are just a small blip on the radar, easily conquered without seriously competing on price. These executives also want to be told that all of these problems will magically evaporate once Millennials start procreating. Once that happens, the theory goes, Millennials will magically realize that they really love traditional cable, its high prices, and utterly atrocious customer service. So really, at the end of the day, who's telling myths, exactly?Permalink | Comments | Email This Story

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Typically, when we've talked about photojournalists in the past, it's been about how they will occasionally make demands for payment for the pictures or videos they've taken with little to no regard for the way fair use works. For the times we've instead focused on stories involving any kind of trouble for photojournalists, the stories are usually about how law enforcement harrasses anyone who tries to document it doing its job. That makes the story of Maya Vidon-White, a photographer in Paris, a new one for me. Maya is currently the subject of criminal charges in France. Her crime? Documenting the aftermath of the now-infamous Paris terror attacks. Vidon-White was in Paris at the time of the attacks and managed to snap photographs of the immediate aftermath just outside of the Bataclan concert hall, where gunmen murdered 89 people and wounded hundreds more. One photograph she took and later sold to a news outlet for publication showed an injured man, Cedric Gomet, on the ground receiving medical attention. Under an obscure French law, this is apparently a crime. About two months after she took the photo, Vidon-White was told that she was being prosecuted under the so-called Guigou law, which prohibits the publication of photos showing the victims of terrorist attacks in a way that violates their "human dignity." The lawyer for Gomet's family, Jean Sannier, says the photographer and VSD violated the law by publishing the Bataclan photo on a double-page spread, and by not blurring out Cedric's face. The family has filed charges against both Vidon-White and VSD, and are seeking damages totaling €34 000, in addition to legal fees; the photographer could face a fine of up to €15,000. "The fact that VSD thought it was right to publish this photo on November 17th, saying that Cedric was still alive, was extremely painful for the family and those close to him," Sannier said in a phone interview. "Even if the family knew he was at the Bataclan the night of the 13th, his friends were not necessarily aware, and they were all happy to learn [from the photo] that he was alive." Part of the issue here is that French weekly magazine VSD mistakenly stated in its story, of which the picture was a part, that Gomet was still alive. In actuality, he had died after the photo was taken from his wounds. There is nothing to suggest that this mistake was anything other than an error, yet the family and its lawyer keep bringing up the point. It's hard to imagine that an honest mistake would suddenly open up a news organization to criminal charges and civil damages, nevermind that Vidon-White had nothing to do with the facts relayed within VSD. As for this application of Guigou law itself, the attempt is every bit as ridiculous as the law itself. The legislation invoked here appears to be named after Elisabeth Guigou, one-time Minister of Social Affairs and Minister of Justice in France. In 2000, she had sponsored the law which was aimed at keeping news publications from publishing photographs of those accused of crimes if they were wearing handcuffs or in scenes where it might somehow indicate a presumption of guilt. That in itself is a silly bit of control exerted by government over what might otherwise be a free press...but it's difficult to see how its aims would apply to the photograph taken by Vidon-White. Vidon-White's lawyer appears equally confused. The lawyer representing Vidon-White, Vincent Tolédano, says the case should be thrown out because the law only applies to victims who are still alive, and therefore does not cover the families of the deceased. The Guigou law was passed in 2000, after survivors of a 1995 metro bombing filed a lawsuit against a magazine that had published images of them. In an email, Tolédano pointed to a document circulated by the Judicial Ministry, which says that images violating the law must contain a "degrading" element, and that an image of a victim, in itself, isn't "sufficient." "The image produced by Maya Vidon-White... does not contain the 'degrading' dimension required by law," Tolédano said in an email. "We must therefore not confuse, in the horror of an event, the pain of the victims, who command the utmost respect, and the work of journalists." After all, there's no implication that the victim of the terrorist attack shown is guilty of anything at all. He's a victim. On top of the questionable application of the law, someone is going to have to explain to me exactly how we're supposed to operate in an age where the picture, or video, is everything in news stories, but we're going to attempt to legislate limits of those depictions that can be shown to the public. If a photojournalist isn't allowed to faithfully portray the aftermath of one of the most newsworthy and important events in recent French history, one with global implications, then don't pretend to have a press anymore. There's no point. The case currently sits before a French judge who will decide whether the case can proceed. It should be tossed immediately. Permalink | Comments | Email This Story

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As Techdirt has reported, the public backlash against corporate sovereignty in TAFTA/TTIP was so strong in the EU that the European Commission was forced to come up with Plan B. It now wants to replace what has been called "the most toxic acronym in Europe" -- ISDS, which stands for "investor-state dispute settlement" -- with ICS: the investment court system. That was little more than a re-branding exercise, since most of the key flaws remained, but at least it suggested that the European Commission recognized that corporate sovereignty had become a serious problem that needed to be addressed. However, it seems that others didn't get that memo -- or, more likely, just don't care what the EU public thinks. A new leak reveals that a group of EU governments want to extend the use of ISDS, and to embed corporate sovereignty even more deeply in the fabric of the European economy. The plan by the five countries -- Austria, Finland, France, Germany and The Netherlands -- is to give corporate sovereignty rights for all cross-border investments made within the EU. That would allow EU companies to challenge EU governments over things like local health and safety laws, or environmental regulations, with the public paying for any losses in the ISDS tribunals. The original rationale for corporate sovereignty was to protect only foreign investors when they put money into a country; this has been turned on its head in a so-called "non-paper", now leaked, which calls for domestic investors to enjoy the same special extra-judicial rights (pdf). The background to this extraordinary idea is a move last year by the European Commission to terminate some old bilateral investment treaties (BITs) between European Union members: Many of these intra-EU BITs were agreed in the 1990s, before the EU enlargements of 2004, 2007 and 2013. They were mainly struck between existing members of the EU and those who would become the "EU 13". They were aimed at reassuring investors who wanted to invest in the future "EU 13" at a time when private investors -- sometimes for historical political reasons -- might have felt wary about investing in those countries. The BITs were thus aimed at strengthening investor protection, for example by means of compensation for expropriation and arbitration procedures for the settlement of investment disputes. Since enlargement, such 'extra' reassurances should not be necessary, as all Member States are subject to the same EU rules in the single market, including those on cross-border investments (in particular the freedom of establishment and the free movement of capital). All EU investors also benefit from the same protection thanks to EU rules (e.g. non-discrimination on grounds of nationality). By contrast, intra-EU BITs confer rights on a bilateral basis to investors from some Member States only: in accordance with consistent case law from the European Court of Justice, such discrimination based on nationality is incompatible with EU law. As the European Commission rightly points out, one of the key points about the EU is that it offers the same protection to all EU investors, wherever they are based, and wherever they put their money in the European Union. And yet, rather than complying with that call from the Commission, the five countries involved in this new plan want to go in precisely the opposite direction. The leaked "non-paper" even has the gall to use the biased nature of ISDS as a reason to extend it yet further: modern guarantees on investment protection are necessary to the level playing field for EU-investors vis-à-vis their foreign competitors, to ensure the continued availability of competitive financing terms for EU-investors and to promote intra-EU investments. The dismantling of intra-EU BITs will be perceived by investors, banks and creditors alike as an overall decrease in the legal protection for EU investors and create a competitive advantage for foreign investors who can rely on clearly defined and uniform protection standards under the forthcoming EU agreements or on Member States’ BITs. If EU investors are not afforded comparable protection as their foreign competitors, incentives for EU investors to locate their foreign investments outside the EU will be created and the functioning of the internal market will be compromised. By an amazing coincidence, in February the Business Europe lobby group sent a letter to the European Commission calling for corporate sovereignty to be extended to intra-EU investments. It's not hard to guess why there is this sudden push from countries and companies. As Techdirt has reported, the corporate sovereignty provisions are without doubt the most contentious part of the proposed TAFTA/TTIP agreement, and many are demanding that they be dropped completely. The introduction of corporate sovereignty for all intra-EU investments would allow supporters of ISDS in the EU-US trade agreement to argue that the same protection must be offered to US companies investing in the EU -- the perfect circular argument. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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There's no shortage of new man-made materials being developed, and they come in all different shapes, sizes and purposes. Sometimes it's about making something old in a new way, or giving something common an extremely uncommon property — or just producing something in previously unimaginable quantities. Here are some new developments from the world of synthetics. Concrete is a significant but often-overlooked source of greenhouse gas emissions, but what if you could replace it with a new material made from those very emissions themselves? Researches have found a way to turn captured carbon dioxide into a new construction material they've dubbed CO2NCRETE, though it's currently only at the proof-of-concept stage. [url] Transparent wood has been created at the microscopic level, but now researchers are demonstrating a new form that could be mass-produced. Wood has endured as one of the most reliable and useful building materials, and a transparent version could be an ideal material for solar cells, among other things. [url] Bolt Threads is a startup that just raised $50 million in funding to "brew" spider silk and other insect fibres in huge quantities. Spider silk is an incredible material limited primarily by the fact that it is extremely difficult and expensive to farm, but these new methods could completely change that within the next few years (and change the face of the global textile market in the process). [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff. Permalink | Comments | Email This Story

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Earlier this year, we wrote about how the entire Medium.com website was being blocked in Malaysia, after a publication it hosted, called the Sarawak Report, had been doing detailed, independent journalism on corruption in the Malaysian government, including a story about $700 million magically appearing in the Malaysian Prime Minister's personal bank account. The government first blocked access to the Sarawak Report's own website, and then to all of Medium after Sarawak started reposting all of its articles there. The government had first contacted Medium, via the Malaysian Communications and Multimedia Commission (MCMC), asking the company to remove an article. Medium's legal team wrote back to the MCMC, requesting more details to understand if the request was legitimate. But without any further response, the Malaysian government just blocked all of Medium. And, apparently, that was just the beginning. Because the government is now pushing a new law that gives the MCMC much more power to silence criticism online. And a big part of this is removing the intermediary liability protections that service providers have. This is a topic that we've discussed an awful lot -- especially with regards to things like Section 230 of the CDA in the US, which makes websites immune from liability for actions of their users. Many people try to attack these protections, claiming that they're just protecting big companies, but they're actually very much about protecting the public's ability to speak freely -- and the situation in Malaysia is a perfect example. Without strong intermediary liability protections, websites will now have very strong incentive to immediately block or take down any content that might displease the government, for fear that leaving it up will lead to legal consequences. This is also why we're so concerned about the recent lawsuits in France claiming that Twitter, Facebook and YouTube didn't take down offensive comments fast enough. Expecting service providers to police and monitor content is a path to widespread censorship. In Malaysia, a coalition of civil society/public interest groups are fighting back against this new law, and trying to spread the word about its possible impact. These changes, if introduced and passed by Parliament, together with the amendments to restrict bail for all offences under Section 124 of the Criminal Procedure Code, which has been used against activists and the media. Both the amendments will have combined effect of entrenching censorship in an environment already heavily regulated for the media and publishing. It is regrettable that the government has done little consultation with stakeholders, proving yet again the absence of political will for open and democratic law making processes in Malaysia. Civil society stands to be most affected by the proposed amendments as we constitute the majority of the internet population, and as such, it is critical that our views and voices are duly recognised and reflected. We agree that the laws governing the internet need to be reviewed for them to have stronger provisions for privacy and protections for freedom of expression. But these are not being prioritised; instead we see a pattern of reviewing laws to extend the powers of the executive to conveniently target media, political opponents and individuals critics. The attempts to crack down on free speech on the internet around the globe are extremely concerning. The success in some countries is only making other countries even bolder in their attempts to suppress speech as well.Permalink | Comments | Email This Story

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Last week, we wrote about a terrible idea from Minnesota politician Joe Hoppe, for the PRINCE Act (Personal Rights in Names Can Endure Act), which was a massively broad publicity rights law, clearly designed to capitalize on Prince's recent death. In fact, as we noted, the bill could be read to violate itself, since the whole point was to block people from exploiting the likeness or name of a famous person like Prince for various purposes, including commercial purposes and fundraising. Hoppe, apparently missing the irony entirely, had no problem saying that he was pushing the bill to exploit Prince's death. “I’ve had people say, `Is it just prompted by the death of Prince?’ Yeah, essentially it is. Really, what it’s doing is it’s attempting to recognize the right of publicity postmortem,” Hoppe said. Thankfully, lots of people spoke out against the bill -- including many in Minnesota itself, pointing out how the law would stifle free speech for no good reason. Apparently surprised by the unexpected backlash to his attempt to exploit Prince's death by stopping others from exploiting Prince's death, Hoppe has now announced that the bill is being set aside for the rest of this legislative session -- but may come back in the future. Hopefully, if it does, Hoppe will have taken some time to understand just how problematic broad publicity rights laws can be.Permalink | Comments | Email This Story

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We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. Well, after doing four copyright books in a row, I figured it was finally time to change things up a bit, so this week, we're moving on to a technology that actually could change a lot of things -- including raising policy questions in a ton of areas: the blockchain. For the longest time, I've been meaning to write a post with the title "the Greatest Trick Bitcoin Ever Pulled Was Making People Think It Was About The Currency," but I never got around to it. Of course, in the last few months, there's been more and more understanding about the importance of the underlying blockchain technology as the truly revolutionary part of all of this. Of course, the blockchain and Bitcoin go hand in hand, and it's Bitcoin that helps make the blockchain actually work the way it needs to work, so attempts by some to separate the two entirely seem a bit extreme. Either way, Don Tapscott and Alex Tapscott, who have been writing books about innovation and the culture of innovation for a very long time, have now released Blockchain Revolution: How the Technology Behind Bitcoin Is Changing Money, Business, and the World. And it's a really well written and comprehensive overview of why the blockchain has the potential to be so revolutionary, but it's also about the challenges ahead. If you follow the space closely, I don't think there's anything that surprising about the book, but it does a really good job of pulling together a number of different threads and summarizing the potential of the blockchain very concretely. And, if you don't understand all this blockchain/Bitcoin stuff at all, or why it matters, but want to understand it, then this is absolutely a book worth reading. Considering the possibility of the blockchain remaking a variety of different businesses, while opening up new areas for possible innovation, I highly recommend check out this book to help you think through the possibilities.Permalink | Comments | Email This Story

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Legislators like pushing cyberbullying/cyberharassment bills, but seldom seem to consider how their badly/broadly-written laws will be abused. Like many legislators pushing cyber legislation, New Jersey politician David Norcross just wanted to help the children. State Sen. Donald Norcross (D-Camden) said the bill is tailored specifically to protect children, closing a loophole in state law that prevents people from being criminally prosecuted for online harassment of minors. "There have been cases of cyber harassment across the country that have taken a tragic turn, and ended in the loss of life," Norcross, who co-sponsored the bill with state Sen. Nicholas Sacco (D-Hudson), said. "We have to make sure that our state laws reflect the reality that children are being harassed and bullied every day on the Internet. That means making sure those who engage in this conduct can be held accountable under the law." The bill would ban people from using electronic devices and social media to threaten to injure or commit any crime against a person or his property, or send obscene material to or about someone. So much for the "specific tailoring." Norcross wanted to protect kids from bullies, but instead it's "protecting" a cop from a local man with a long history of colorful speech and law enforcement interactions. They’ve busted him for smoking pot, running a business past curfew, and not keeping his restaurant’s kitchen clean enough. On Friday, however, it was Ed Forchion’s mouth that got him slapped in handcuffs, freedom of speech notwithstanding. Days after Forchion stood outside his eatery and pot temple shouting “f— the police!” and calling one of the police officers a “pedophile,” NJ Weedman was charged with cyber-harassment and disorderly conduct. The cyber-harassment charge, according to a copy of the complaint filed by Officer Herbert Flowers, was based on a Facebook and YouTube video of the confrontation in which Forchion is heard telling Flowers he’s a pedophile, while the disorderly conduct was for Forchion’s F-bombs against police “in public and social media forum.” F-bombs are protected speech, so even the "disorderly conduct" charge is largely baseless. But the use of the cyberharassment law -- which carries a possible penalty of 18 months in jail and a $10,000 fine -- is completely ridiculous. If Forchion committed no crime by calling Officer Flowers a pedophile in person, no crime was committed simply because this confrontation was recorded (by a third party) and posted to YouTube (also, apparently by a third party). This is simply a bad law being abused because that's what bad laws -- no matter how well-intentioned -- allow people like Officer Flowers to do. Officer Herbert Flowers has a history of subjectively interpreting Constitutional rights. He may have been upset by Forchion's F-bombs, but that doesn't explain his decision to punish Forchion for using his First Amendment rights. But Flowers has been down this road before. Here's the conclusion reached by the New Jersey Appeals Court, at the tail end of a six-year legal battle. [W]e conclude that a reasonable police officer in 2006 could not have believed he had the absolute right to preclude Ramos from videotaping any gang activities or any interaction of the police with gang members for the purposes of making a documentary film on that topic. The unreasonable police officer was none other than Herbert Flowers. Ramos is a documentary filmmaker. In 2006, he was working on a project about the emergence of gangs in Trenton. Flowers is a police officer employed by the Trenton Police Department. Ramos contends that he had five encounters with the Trenton Police during the time he was filming the activities of various members of the “Sex Money Murder” Bloods sect, one of the largest Bloods gang units in Trenton. Three of the encounters involved Flowers. He alleges that Flowers’ actions during those three encounters interfered with his constitutional rights to free speech and assembly, as well as his right to be free from unlawful police search and seizure. One of those encounters: On July 6, 2006, the Trenton police responded to a call from the Trenton Public Library to investigate a meeting being held by known gang members on its premises. One of Ramos’s sources gave him a tip that he should go to the library to film the events as they unfolded. Once Ramos arrived at the library, Flowers told him he was interfering with a police investigation, adding: “I am sick of you already, I am sick of seeing you, I do not want to hear you anymore, you are not allowed here anymore.” Ramos asserts that Flowers grabbed his video camera and put it in his car. Flowers then told Ramos: “If I see you again … I am locking you up and I don’t care what for … you better not let me see you again … watch what happens.” The filmmaker was charged with multiple violations after his arrest by Flowers. Only one charge stuck (obstructing a sidewalk), which was downgraded to a mere city ordinance violation. Flowers is using a badly-written law meant to close statutory loopholes that prevented adults from being charged for harassing minors via social media to punish an adult for saying mean things to him to his face. Because Flowers didn't arrest Forchion on the spot, this means he had to go looking for "evidence" of Forchion's supposed "cyberharassment," which the officer somehow feels is a better statutory match for verbal abuse he experienced in person. Sure, Flowers could try to sue Forchion for defamation, but that takes time and Flowers' own cash. Flowers would rather have taxpayers finance his vendetta and see Flowers face a possible $10,000 fine and a stretch in jail than walk away from the disorderly conduct charge he likely won't be able to make stick. This is why we warn against the unintended consequences of laws like these. It's not because we don't care about bullied kids. It's because adults -- especially those in positions of power -- will abuse them to stifle speech. Rather than simply ignore the personal attack, Flowers chose to treat it as a criminal offense. The end result is that Forchion, a.k.a. "NJ Weedman" -- a person who runs a "pot temple" he apparently feels is beyond the reach of state regulation -- is now the least ridiculous participant in this confrontation. Permalink | Comments | Email This Story

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We've written a few times now about Rule 41, a proposal that was put forth by the Justice Department last year, in what they claimed was a mere "administrative" change to the rules covering their ability to hack into computers. But the reality is that the change would allow the DOJ/FBI to basically hack into millions of computers overseas based on a single warrant and basically no oversight. The whole concept was a disaster, as many civil liberties and tech companies explained at the time. But none of that mattered, apparently. The Judicial Conference Advisory Committee approved the request back in March, and the Supreme Court gave its blessing a few weeks ago. This is a very dangerous power being handed over to a government agency that has shown a history of being willing to abuse such powers. And it was done without any legislative change, but merely by running it up through the courts as a mere administrative change. At least some in Congress are not happy about this. Senators Ron Wyden and Rand Paul have now introduced a bill to stop this change, called the Stopping Mass Hacking Act, or SMH Act, which is explained here. Of course, there's really not much to explain: the bill basically just says that the new rules will not be allowed to go into effect. The explanation is just more details on how awful Rule 41 will be for everyone. Of course, "SMH" has another definition as well that may be more recognized by folks on the internet: Shaking My Head. And, it seems that Wyden is well aware of this, as he's put up a Medium post about this new bill with the title Shaking My Head, and this gif: Well played. In that post, Wyden notes: For law enforcement to conduct a remote electronic search, they generally need to plant malware in — i.e. hack — a device. These rule changes will allow the government to search millions of computers with the warrant of a single judge. To me, that’s clearly a policy change that’s outside the scope of an “administrative change,” and it is something that Congress should consider. An agency with the record of the Justice Department shouldn’t be able to wave its arms and grant itself entirely new powers. [....] These changes would dramatically expand the government’s hacking and surveillance authority. The American public should understand that these changes won’t just affect criminals: computer security experts and civil liberties advocates say the amendments would also dramatically expand the government’s ability to hack the electronic devices of law-abiding Americans if their devices were affected by a computer attack. Devices will be subject to search if their owners were victims of a botnet attack — so the government will be treating victims of hacking the same way they treat the perpetrators. There's a lot more in that article describing just how ridiculous this situation is. It's a travesty that it was pushed through as an administrative change, and hopefully the rest of Congress agrees. Of course, getting Congress to actually rein in the power of law enforcement to spy on people, tragically, feels like a long shot. Either way, it's worth letting your own Senators know how important this issue is to you.Permalink | Comments | Email This Story

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Become a master of Microsoft's suite of offerings with the The A to Z Microsoft Office Training Bundle. Pay whatever you want and you get a two-course bundle covering Access and One Note. Beat the average price listed on the site and you gain access to 8 more courses covering Excel, Outlook, Word and PowerPoint. Ten percent of the proceeds will be donated to charity. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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A couple weeks ago, we wrote about a phone call (and follow up emails) we received from Homeland Security indicating an interest in sending us a subpoena, asking for any identifying information we had on a commenter. That commenter had posted a (somewhat ridiculous) comment, in response to another story, about a guy who had nearly a quarter of a million dollars taken by him by Customs and Border Patrol (CBP) under civil asset forfeiture rules. The commenter, somewhat weirdly, suggested that the guy who had this money stolen might "know people" who could murder the agents who took the money. It was clearly not a threat. It was random idle speculation. But, for whatever reason, the sister agency of CBP, called Homeland Security Investigations (HSI -- which was formerly Immigration and Customs Enforcement, or ICE), decided that it wanted to subpoena the information on the commenter. Through our lawyer, we noted that we had serious First Amendment concerns about the chilling effects this might have if even weird comments like that lead to federal law enforcement knocking on people's doors. We explained that we were happy to look over the details, but in the absence of more information suggesting a real and legitimate threat, we were inclined to resist complying with the subpoena to protect our users. We also noted that we were publishing the info on Techdirt at the time, given a similar situation with Reason's website came with an almost certainly unconstitutional gag order, and we wanted to explain what was happening prior to any similar order. Some people have asked for an update on the situation and it's this: nothing has happened. We haven't received any subpoena at all. In fact, we've received no further communications at all from Homeland Security. It is possible that something is still coming, but we hope that the agents at HSI and anyone else involved with this have realized that this is not a worthwhile activity. We'll keep you updated, should anything change.Permalink | Comments | Email This Story

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The Privacy and Civil Liberties Oversight Board (PCLOB) is supposed to be an independent body that makes sure that the intelligence community is not abusing its surveillance powers. It was created to go along with the PATRIOT Act, as a sort of counterbalance, except that it initially had basically no power. In 2007, Congress gave it more power and independence and... both the Bush and Obama administrations responded by... not appointing anyone to the PCLOB. Seriously. The Board sat entirely dormant for five whole years before President Obama finally appointed people in late 2012. Thankfully, that was just in time for the Snowden revelations less than a year later. The PCLOB then proceeded to write a truly scathing report about the NSA's metadata collection under Section 215 of the PATRIOT Act, calling it both illegal and unconstitutional. While the PCLOB was less concerned about the NSA's Section 702 program (which includes both PRISM and "upstream" collection from backbone providers) the group has been working for nearly two years on an investigation into Executive Order 12333 -- which is the main program under which the NSA spies on people. However, as Marcy Wheeler points out, Congress seems to be bending over backwards to try to undermine and undercut the PCLOB. That's especially unfortunate, because at one point there was even a bipartisan effort to give the PCLOB more power, but things seem to have gone the other way instead: As I reported, during the passage of Intelligence Authorization last year (which ultimately got put through on the Omnibus bill, making it impossible for people to vote against), Congress implemented Intelligence Community wishes by undercutting PCLOB authority in two ways: prohibiting PCLOB from reviewing covert activities, and stripping an oversight role for PCLOB that had been passed in all versions of CISA. In the 2017 Intelligence Authorization HPSCI passed on April 29, it continued more of the same. The new changes are subtle, but problematic. The first is that the PCLOB is limited to spending money only on issues for which Congress has directly approved the spending. In other words, if Congress doesn't want the PCLOB investigating a certain area, no problem, it can just make it clear that funding does not cover that area. That kind of voids the PCLOB's supposedly "independent" nature. The second issue is that it requires that the PCLOB warn intelligence community bosses if they're going to investigate a new program. While these changes may not seem like a big deal, they do suggest a clear attempt to undermine the power and authority of the PCLOB. Perhaps that's why the head of the PCLOB, David Medine, resigned early, before his appointment was up, just a few months ago. At a time when we need a lot more independent oversight of government surveillance powers, it's unfortunate to see Congress apparently pushing for less oversight.Permalink | Comments | Email This Story

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Given the fact that the FCC has recently bumped the standard definition of broadband to 25 Mbps to highlight competition gaps; reclassified ISPs as common carriers; passed real net neutrality rules for the first time ever; taken aim at the industry's use of protectionist state law to keep the duopoly intact; pushed for improved broadband privacy rules, and is now taking aim at the cable industry's monopoly over cable set top hardware, it's not really surprising that the cable industry isn't happy right now. One could argue (especially if you've studied regulations across the pond) that this is just what it looks like when a telecom regulator is doing its job after falling asleep for arguably fifteen years. But former FCC boss turned top cable lobbyist Michael Powell sees things differently. Powell took the opportunity at the cable industry's annual INTX trade show in Boston to throw a bit of a hissy fit, complaining repeatedly that the industry was under "relentless" and unprovoked "regulatory assault":"We find ourselves the target of a relentless regulatory assault,” Powell told attendees. “The policy blows we are weathering are not modest regulatory corrections. They have been thundering, tectonic shifts that have crumbled decades of settled law and policy."...What has been so distressing is that much of this regulatory ordinance has been launched without provocation," said the NCTA head. "We increasingly are saddled with heavy rules without any compelling evidence of harm to consumers or competitors."Who says telecom lobbyists can't be comedic geniuses? Of course the cable industry enjoys some of the worst customer satisfaction ratings of any industry in America thanks to generations of regulatory capture and little real competition in broadband. After a generation of treating captive consumers poorly there's really not a more hated sector than cable, and the industry's reputation is only getting worse as it rushes to take advantage of limited competition and impose usage caps. As a result, complaints to the FCC have been skyrocketing. "Compelling harm" should be apparent to everyone just by looking at their cable and broadband bill, and every time they call Comcast customer support. And despite a lot of cable sector chirping about "innovation," as AT&T and Verizon back away from unwanted DSL markets, cable broadband's monopoly is only growing in the face of less competition, meaning less incentive than ever to compete on price or improve customer service across huge swaths of territory. And you really can't find a man more responsible for keeping this status quo intact than Powell, who ran the FCC from 2001 to 2005. Powell was a vibrant example of sector dysfunction and revolving door regulators; completely incapable of even admitting the TV or broadband sectors had or has problems. His tenure was just one chapter of a more-than-fifteen-year, bipartisan stretch during which the FCC was little more than a lapdog to the sector it was supposed to be policing. As such, cable enjoyed decades of almost total local, state and federal regulatory capture, all while crowing about the immense benefits of "free markets." The result of this aggressive dysfunction forged the cable industry we all know and love today. Powell is best remembered for his decision to try and push broadband over powerline as a major third avenue of sector competition, thereby justifying regulatory inaction on other fronts. But Powell intentionally ignored something everybody in telecom had known for years: the technology would never actually work due to the massive radio interference it caused. But by braying about broadband over powerline being the "great broadband hope," Powell managed to deflect criticism that he was busy actually making the sector substantially worse through total inaction and ineptitude. Other FCC bosses like Kevin Martin and Julius Genachowski carried on that proud tradition. Fast forward a decade and Powell's now lobbying for the very companies he once "regulated," complaining about unfair persecution of an industry that has been begging for a kick in the teeth for the better part of most of our adult lives. And while there are certainly plenty of sectors that deserve a hands-off regulatory approach to protect fledgling organic market evolution, the cable sector is a unique, braying beast built on the back of apathy, revolving door regulation, and an utter disdain for the captive consumers the sector serves. As such, Powell won't find too many people crying themselves to sleep just because the FCC finally decided to do something about it.Permalink | Comments | Email This Story

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So over in the UK, they just had the annual Queen's Speech in which the Queen lays out a bunch of regulatory proposals, and (as per usual) it's a bit of a mixed bag when it comes to the internet. As plenty of the headlines have blared, one part calls for universal broadband access, with a minimum speed of 10 Mbps (I'm assuming they're only talking about downstream speeds, rather than symmetrical, but who knows...). It would also include "automatic compensation" if your internet connection goes down. That's a very good idea as a starting point (I'd argue the speed should be even higher, but it's a start). But... with that comes some things that sound a lot... worse. First off, there would be an expansion of the ridiculous "porn licensing" program in the UK whereby sites will need to do "age verification" if they have adult content. Not that anyone's saying that porn should be easily accessible to kids, but age verification is hardly foolproof, and can lead to a variety of other problems, including undermining the privacy of web surfers and just a general chilling effect on creating certain types of content online, for fear of it being locked away or filtered if it's deemed too mature. There are also concerns about how the government implements this ridiculous plan for 10 year prison sentences for infringers, and how that will impact a free and open internet. And then there's the expansion of internet surveillance that is equally worrisome. There's a lot of stuff about "restricting extremist activity" and trying to stop the children from being radicalized ("think of the children!"). In theory, those must sound like nice ideas, but in practice, they're a broad framework for a massive censorship regime. Free speech groups are already raising concerns about all of this: The new proposals should avoid creating an environment that could make it even harder for people of all faiths and ideologies to express their beliefs and opinions, the groups said. Current legislation already prohibits incitement to violence and terrorism, and a compelling case for broadening them further through civil measures has not been made. “The government’s move to counter extremism must not end up silencing us all,” said Jodie Ginsberg, Chief Executive of Index on Censorship. “We should resist any attempts to make it a crime for people of faith to talk publicly about their beliefs, for political parties to voice unpopular views, and for venues from universities to village halls to host anyone whose opinions challenge the status quo. We urge the government to use its consultation to ensure this does not happen.” As with many regulations, many of these feel like "x is a problem, something should be done, this is something" kinds of solutions, without much thought or concern to the nuances behind the implementation and the wider consequences (intended or not) of those proposals. That's unfortunate, especially when it comes to a platform as important and central to our lives as the internet.Permalink | Comments | Email This Story

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It's a mantra I've been repeating for some time now, but the alcohol and brewing industry has a trademark problem on its hands. We've seen instance after instance of the explosion in the craft brewing industry being hampered and harassed over trademark concerns, both from within the industry and from the outside. Most of these disputes lay bare the fact that trademark law has moved well beyond its initial function of preventing consumer confusion into a new era of corporate bullying and protectionism. But at least in most of these instances, the victim of all this is a victim once. Larry Cary, on the other hand, must be starting to feel like a punching bag, having had to now twice change the name of his alcohol-making business over trademark concerns. Cary opened North Coast Distilling on Duane Street in 2014. In October, he was sued by California-based North Coast Brewing, and spent about $10,000 changing his name to Pilot House Spirits. Then Cary was sued in January by House Spirits Distilling, which claimed his new name violates "established valuable trademark rights and goodwill throughout the United States." The distillery, known for Aviation American Gin, has registered "House Spirits" and "House Spirits Distillery" with the U.S. Patent and Trademark Office. His business will become Pilot House Distilling as part of a settlement with House Spirits Distilling. To be fair, in the current climate, both of these trademark disputes ring as fairly valid from the complainant's perspective. The names in both instances were similar enough that I can understand the concern. That the solution the second go around was a name nearly indistinguishable from the name that had so offended House Spirits Distilling at once raises the question as to just how injurious the original was in the first place, but can also be seen as House Spirits Distilling behaving in an accommodating way. In other words, I can't really say there are any bad guys in this story. The problem instead is one of bloat. For the alcohol industry, there is at once an era of increased trademark protectionism, an era in which the bar for originality and uniqueness to get the USPTO to approve a trademark has clattered to the floor, and an era of explosion in participation in the industry. That's a recipe for strife and confusion over who is allowed to enter the market using what language and under what circumstances. Some might fairly point out that these trademark protections have contributed to the explosive market to begin with. I would argue vehemently with them, but even for those on that side of the argument there must certainly be an acknowledgement that we're quickly approaching the level of diminishing returns. If the industry wants to continue to grow, it should be paying attention to the hurdles its placing in front of startup participants. Cary said he'll have to spend another $10,000 to $15,000 changing the name on all his products and properties to Pilot House Distillery, adding that every time he names his business or products, he checks trademarks. "What I've learned is even if you do everything right and you trademark it… if someone has bigger pockets than you, they can do whatever they want," he said. What happens when we're faced with more stories of business folk playing brand-name musical chairs, all because there is too little language left available? Permalink | Comments | Email This Story

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Geology is the ultimate riddle. All we have is a snapshot in time — the earth as it stands today — but within that snapshot are the remnant clues to untangling four and a half billion years of planetary development. Every turned stone might answer a question, or it might raise some new ones, as these latest steps towards a complete understanding of our planet's geology demonstrate. Fossilized pebbles found in Australia might upend our timeline of how earth came to sustain life. The 2.7-billion-year-old stones show signs of oxygen in the atmosphere that wasn't supposed to show up until a few hundred-million years later when algae started pumping it out. [url] The shape of Hawaii and the underwater islands that share its formation has long been a source of debate, and a radical new idea seeks to explain it. Instead of relying on plate tectonics, the new model suggests it all had to do with mixing plumes of mantle. [url] A NASA satellite recently found something odd about the Caspian Sea: its bed is covered in mysterious scrape marks. Though it's possible the scratches are man-made, the most likely explanation is ice gouging during the sea's annual thaw. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff. Permalink | Comments | Email This Story

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If your social media "presence" has been submitted as evidence, you'd better leave everything about it unaltered. That's the conclusion reached by the judge presiding over a Fair Housing Act lawsuit. The plaintiff didn't go so far as to delete Facebook posts relevant to the case at hand, but did enough that the defense counsel (representing the landlord) noticed everything wasn't quite the way it was when the plaintiff was ordered to preserve the evidence. According to one of the lawyers for the defense, she accessed plaintiff’s accounts at one point despite not being “friends” with plaintiff. She later looked at the accounts and saw many posts were missing. The Plaintiff also testified that, to her knowledge, she never deleted anything. She did hide a few posts from her timeline which appeared there because she had been tagged by others. She said she thought she originally set her Facebook account to private and she merely double checked this after defendant filed its spoliation motion. Whether or not the plaintiff was telling the truth about the Facebook account's privacy settings ultimately doesn't matter. She changed something after being instructed not to. This resulted in posts being hidden from public view. According to the court, this flip of a digital switch was a violation of the order to preserve evidence. By altering her Facebook account, Thurmond violated the Court’s May 21 order. Her conduct had the effect of hiding her postings from public view, and hence from defendants’ counsel’s view. There were no sanctions for this action. Just a few stern words from the judge. The damage done was minimal as the defense counsel was still able to obtain the "missing" posts. The plaintiff herself offered to print out the hidden posts in an effort to comply with the order. Of course, this offer came after she had altered the privacy settings and the defense counsel had noticed the alteration. The damage, however, could cost the plaintiff her case, even if the judge isn't going to issue sanctions for violating a preservation order and even though the defense was able to recover the missing posts. Of course, it does not appear that the postings were deleted, and they remain available for defendants’ use, and defendants have not shown that they were prejudiced by Thurmond’s conduct in violating the order. Nevertheless, it is troubling that the posts were removed from public view after this Court issued a consent order designed to preserve the status quo of her social media accounts. Also troubling is Thurmond’s execution of an affidavit that contained a statement she knew to be inaccurate. Although the false statement was ultimately immaterial to the issues in the pending motions, Thurmond’s willingness to sign the affidavit knowing or having reason to know that it included a false statement threatens the integrity of the judicial process. Thurmond’s conduct in both respects is certainly a fair subject for cross-examination at trial and could result in the impeachment of her credibility. As Venkat Balasubramani points out, changing privacy settings on relevant social media accounts during litigation is something to do "at your own peril." In this case, the damage was minimal. At most, the plaintiff undercut her own credibility. That may cost her a positive ruling, but it won't result in anything more serious like jail time. What is a larger problem are the federal rules for evidence preservation, which include preserving evidence you possibly won't even know is evidence until you've been indicted. As we've seen in the past, rules meant to prevent corporations from using culpatory documents for bonfire fuel are instead being used by the feds to stack charges against defendants who've done normal computer housecleaning, like culling hard drive clutter or clearing their browser history. Sarbanes-Oxley says evidence -- which now apparently includes every bit of your digital presence in addition to physical files -- relevant to "foreseeable investigations" must be preserved. Since citizens don't initiate investigations, the ball is completely in the government's court, and every investigation seems "foreseeable" once it's underway. Those being investigated may not have seen it coming, but they're still saddled with a post facto requirement to preserve evidence dating back to whatever arbitrary point the government declares to be the beginning of the alleged wrongdoing. Civil litigants may get away with nothing more than some words from an irritated judge, but federal defendants won't be nearly as lucky. Thanks to the misuse of this law, anyone changing privacy settings to a social media account does so "at their own peril." Permalink | Comments | Email This Story

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Those of us who dwell on the internet already know the Internet Archive's "Wayback Machine" is a useful source of evidence. For one, it showed that the bogus non-disparagement clause KlearGear used to go after an unhappy customer wasn't even in place when the customer ordered the product that never arrived. It's useful to have ways of preserving web pages the way they are when we come across them, rather than the way some people would prefer we remember them, after vanishing away troublesome posts, policies, etc. Archive.is performs the same function. Screenshots are also useful, although tougher to verify by third parties. So, it's heartening to see a federal judge arrive at the same conclusion, as Stephen Bykowski of the Trademark and Copyright Law blog reports. The potential uses of the Wayback Machine in IP litigation are powerful and diverse. Historical versions of an opposing party’s website could contain useful admissions or, in the case of patent disputes, invalidating prior art. Date-stamped websites can also contain proof of past infringing use of copyrighted or trademarked content. The latter example is exactly what happened in the case Marten Transport v. PlatForm Advertising, an ongoing case in the District of Kansas. The plaintiff, a trucking company, brought a trademark infringement suit against the defendant, a truck driver job posting website, alleging unauthorized use of the plaintiff’s trademark on the defendant’s website. To prove the defendant’s use of the trademark, the plaintiff intended to introduce at trial screenshots of defendant’s website taken from the Wayback Machine, along with authenticating deposition testimony from an employee of the Internet Archive. The defendant tried to argue that the Internet Archive's pages weren't admissible because the Wayback Machine doesn't capture everything on the page or update every page from a website on the same date. The judge, after receiving testimony from an Internet Archive employee, disagreed. He found the site to a credible source of preserved evidence -- not just because it captures (for the most part) sites as they were on relevant dates but, more importantly, it does nothing to alter the purity of the preserved evidence. [T]he fact that the Wayback Machine doesn’t capture everything that was on those sites does not bear on whether the things that were captured were in fact on those sites. There is no suggestion or evidence … that the Wayback Machine ever adds material to sites. Further, the judge noted that the archived pages were from the defendant's own website and he'd offered no explanation as to why pages from his own site shouldn't be considered as evidence of alleged infringement. It's nice to know that what many of us have considered an independently-verifiable source of evidence is also acceptable in federal courts. It's more than just a handy way to preserve idiotic statements and potentially-illegal customer service policies. It's also a resource for litigants who might find their opponents performing digital cleanups after a visit from a process server. Permalink | Comments | Email This Story

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Recently, we covered the ongoing jailing of a former Philadelphia police officer for his refusal to unlock encrypted devices for investigators. "John Doe" is suspected of receiving child porn but the government apparently can't prove its case without access to hard drives and Doe's personal computer. So far, it's claiming the evidence it's still seeking is a "foregone conclusion" -- an argument the presiding judge found persuasive. The "foregone conclusion" is based on an interview with Doe's estranged sister, who claims she once saw something resembling child porn on Doe's computer -- although she can't say for sure whether it involved the devices the government seeks access to -- and its own expert, who says it's his "best guess" that child porn can be found on the devices. Hardly compelling, but compelling enough that Doe has spent seven months in jail to date. The government has filed its response to Doe's motion to stay the contempt order. It argues that Doe can spend the rest of his life in jail for all it cares. If he wants to be released, he just needs to unlock the encrypted devices. (via Brad Heath) Doe faces no irreparable harm in the absence of a stay. In arguing otherwise, what he fails to recognize is that his imprisonment is conditional – it is based entirely on Doe’s continued defiance of the district court order. There can be no question that loss of liberty is a recognized harm. But Doe’s incarceration is by his own hand. His release pending an appeal is entirely avoidable through obedience to the court order. The government goes on to point out that Doe -- once he's unlocked the devices -- can then present his arguments for evidence suppression. Doe could choose to obey the court’s directive by unencrypting his devices, and his release would be granted. This is no way affects his appeal. He would still be able to persist in his appeal, and, if successful, the evidence the government would gain through forcing Doe to unencrypt his devices would be suppressed. The “irreparable harm” Doe complains of now is not “irreparable” in any sense, as it is entirely within Doe’s control. As the government notes, civil contempt charges are meant to be coercive. As such, the only person keeping Doe from being released from prison is Doe himself. Of course, if the drives contain what the government claims they contain, he'd just be exchanging an indefinite sentence for a more finite one. The added wrinkle to this case is the terms of Doe's confinement for contempt. Doe is in solitary confinement -- something the UN has declared to be torture -- supposedly for his own protection. It's generally true that the prison population has no love for child porn fans. They're not overly fond of imprisoned law enforcement officers either. And the nuances of the case -- that Doe has not actually been convicted of child porn charges but rather has been jailed for contempt of court -- will likely go unexamined by other inmates. So, it may be that Doe's solitary confinement would be less torturous than spending time in general population, but at the end of it, we have a person jailed indefinitely in solitary confinement for nothing more than contempt charges. The government's arguments on behalf of the jailing seem to assert that it has plenty of evidence already in hand. If so, the question is why the government hasn't moved forward with prosecution, rather than pushing for Doe to decrypt his devices. Either it has a case or it doesn't. If it doesn't, then the indefinite jailing is punitive -- a punishment for the defendant not being more helpful in building a case against himself, which is the root of Fifth Amendment protections, no matter how the government chooses to phrase it. Permalink | Comments | Email This Story

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Stories about copying turn up a lot on Techdirt. That's largely as a consequence of two factors. First, because the Internet is a copying machine -- it works by repeatedly copying bits as they move around the globe -- and the more it permeates today's world, the more it places copying at the heart of modern life. Secondly, it's because the copyright industries hate unauthorized copies of material -- which explains why they have come to hate the Internet. It also explains why they spend so much of their time lobbying for ever-more punitive laws to stop that copying. And even though they have been successful in bringing in highly-damaging laws -- of which the DMCA is probably the most pernicious -- they have failed to stop the unauthorized copies. But if you can't stop people copying files, how about stopping them from doing anything useful with them? That seems to be the idea behind an IBM patent application spotted by TorrentFreak, which it summarizes as follows: Simply titled "Copyright Infringement Prevention," the patent's main goal is to 'restrict' the functionality of printers, so they only process jobs when the person who’s printing them has permission to do so. It works as follows. When a printer receives a print job, it parses the content for potential copyrighted material. If there is a match, it won't copy or print anything unless the person in question has authorization. As with so many patents, the idea is simple to the point of triviality: only a company more concerned about the quantity of its patents, rather than their quality, would have bothered to file an application. Nonetheless, it's a troubling move, because it helps legitimize the idea that everything we do -- even printing a document -- has to be checked for possible infringements before it can be authorized and executed. But why stop with printers? We've already seen Microsoft's Protected Media Path for video, a "feature" that was introduced with Windows Vista; it's easy to imagine something a little more active that matches the material you want to view or listen to against a database of permissions before displaying or playing it. And how about a keyboard that checks text as you type it for possible copyright infringements and for URLs that have been blocked by copyright holders? There is a popular belief that the computer in Stanley Kubrick's "2001: A Space Odyssey" was named "HAL" after IBM, by replacing each letter in the company name with its predecessor. That's apocryphal, but with this latest patent application IBM is certainly moving squarely into HAL territory. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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The weird saga of the insanely thin-skinned Turkish President Recep Tayyip Erdogan continues. As you'll recall, he's on a legal crusade against a German comedian who recited a purposely ridiculous insulting poem about Erdogan on TV (as a response to the stories about Erdogan's thin skin). Erdogan's lawyers found a little used (and little known) "lese majeste" law on the German legal books that makes it a crime to insult representatives of foreign nations. The comedian, Jan Bohmermann, admits that the poem in question was over the top, but that was the point. When you hear about a foreign leader spending so much effort on trying to sue anyone who insulted him, no matter how slight, it's actually pretty tempting to add to the pile of insults. For ridiculous geopolitical reasons, German Chancellor Angela Merkel has allowed the case to move forward, and now a Hamburg court has told Bohmermann that he has to stop repeating at least some of the poem so as not to offend the sensitive ears of Erdogan: In Tuesday's ruling the court found that "Erdogan does not have to put up with the expression of certain passages in view of their outrageous content attacking (his) honour." Why not? While it may sound flip, it's a serious question. He's the leader of a country of almost 80 million people. Shouldn't we be at least a little concerned that he apparently turns into a cowering puddle of emotions the second people make fun of him? Most people put up with other people insulting them just fine, and we aren't leaders of a major nation state. Why is a German court so willing to toss out any basic free speech rights around satire just to please a foreign leader who can't take a joke? The court didn't ban the entire poem, but even just picking what can and can't be said seems like a ridiculous thing for a court to be involved with at all: The court ruled that only six lines of the 24-line poem by German comedian Jan Boehmermann could be recited, offering the Turkish leader a partial legal victory. What a shameful ruling for Germany.Permalink | Comments | Email This Story

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Dive into the world of microcomputers with the Complete Raspberry Pi 3 Starter Kit. For $120 (55% off), you will receive a Raspberry Pi 3 and a quick start kit which includes an 8 GB SD card with Raspbian OS pre-installed, power cord and various cables to get your Raspberry Pi 3 up and running in no time. You also gain access to 6 courses covering everything from how to automate your home to building robots to parallel programming and more to help you take full advantage of what the Raspberry Pi 3 is capable of. If you already have a Raspberry Pi 2, most of your accessories will work with the 3. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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