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There must be something about using the word "monster" in one's business that turns that business into a true monster from a trademark bully perspective. Readers of this site will be familiar with the two largest offenders along these lines, Monster Cable and Monster Energy Corporation. It's the latter that has continued its prolific trademark bullying ways to date, as recently as earlier this year, when it threatened a root beer company with the word "beast" in its name, claiming that this was too close to "monster" for the purposes of trademark law. Still, as laughable as that spat was, at least it could be said that Monster Energy was going after another beverage company. That isn't the case with Monster Energy's latest failed attempt to block the trademark for a video game company out of Japan. United States energy drink manufacturer Monster Energy failed to block Japanese mobile-game producer Mixi Inc's move to register its trademark Monster Strike in Singapore for its popular mobile game. A trademark registrar held that Energy's bid to ring-fence the word "monster" for its own use was unjustified as both products operate in different business fields and the marks were more dissimilar than similar. "Stripped of its legalese, this dispute is, at heart, about one trader's battle to fence off an ordinary English word - monster - for itself, and to exclude others," said assistant registrar of trade marks Gabriel Ong from the Intellectual Property Office of Singapore in decision grounds last month. It's worth highlighting that the video game company, Mixi Inc., conducts business well outside the realm of the beverage industry. Monster Strike is a mobile game and Mixi Inc. is in the entertainment gaming business. In other words, far from any serious concern over customer confusion, Monster Energy was essentially asserting it could wall off any prominent use of the word "monster" by other, non-competing businesses. Few if any trademark laws in any country allow for this type of language lock, with most trademark provisions necessitating that the offending entity operate in a related industry to that doing the complaining. Even the complaints about claw marks on some of Mixi's branding failed to persuade, it seems. Mr Gabriel Ong found both marks to be more dissimilar than similar, noting that the second word in each differentiated the marks. He added that the marks were registered for types of goods that are unlikely to cause confusion among consumers. There is also no risk of misperception of co-branding nor any likelihood of confusion as the public at large recognise Monster Energy drinks not by reference to the words but the accompanying trademarks above the words, including the "claw" graphics. "It is one thing to describe the goods as Monster Energy, but how they are marketed and sold is another matter," added Mr Gabriel Ong, noting that each can of the Monster Energy drink "invariably bears the claw device", although there were minor variations to each product range. In a 48-page judgment, he found that the opposition by Monster Energy to Mixi Inc's application failed on all grounds and ordered costs for the game producer. It's a good result, but one which begs the question: why does Monster Energy continuing wasting everybody's time and its own money with its bullying behavior? Permalink | Comments | Email This Story

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DreamHost has been fighting the DOJ and its breathtakingly-broad demand for information on all visitors to an anti-Trump website. This has gone on for a few months now, but the origin of the DOJ's interest in the DreamHosted disruptj20.org site traces all the way back to protests during Trump's inauguration. Here's what the DOJ demanded DreamHost hand over: a. all records or other information pertaining to that account or identifier, including all files, databases, and database records stored by DreamHost in relation to that account or identifier; b. all information in the possession of DreamHost that might identify the subscribers related to those accounts or identifiers, including names, addresses, telephone numbers and other identifiers, e-mail addresses, business information, the length of service (including start date), means and source of payment for services (including any credit card or bank account number), and information about any domain name registration; c. all records pertaining to the types of service utilized by the user, d. all records pertaining to communications between DreamHost and any person regarding the account or identifier, including contacts with support services and records of actions taken. These demands conceivably applied to every single one of the site's 1.2 million visitors. The DOJ scaled back some of its demands a week later, but also stated its attempt to "converse" (read: talk DreamHost into compliance) had been rebuffed, with the hosting company stating its desire to continue challenging the subpoena. This demand for information would be in addition to a warrant it served to Facebook, seeking everything ever from the accounts of more than 6,000 users. This was served to Facebook, along with a gag order -- something the DOJ conveniently dropped the night before oral arguments, perhaps sensing it might be in for an unfavorable precedential ruling. Chief Judge Morin of the DC Superior Court has issued a ruling on the DreamHost-targeting subpoena, and it's good news for everyone but the overreaching DOJ. DreamHost reports on the judge's order: Under this order, we now have the ability to redact all identifying information and protect the identities of users who interacted with disruptj20.org before handing over any data to the court. [...] We are now required to hand over a drastically reduced amount of data to the government and will redact any identifying information from every scrap of it that relates to non-subscribers. On top of that, the DOJ will have to submit search protocols and procedures to the court for approval before demanding further site visitor info and limit its requests to info it can show the court is linked to actual criminal activity (violations of DC's rioting statutes). The DC Superior Court will make final determinations on the validity of the government's data requests before any identifying information is released by DreamHost. As the court notes in its order [PDF], it's not interested in assisting the government with its fishing expeditions. Because of the potential breadth of the government's review in this case, the Warrant in its execution may implicate otherwise innocuous and constitutionally protected activity. As the Court has previously stated, while the government has the right to execute its Warrant, it does not have the right to rummage through the information contained on DreamHost's website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities. And this still may not be the end of the DOJ's problems. Even if revised info demands are approved by the court, there are still a handful of potential investigation targets (site visitors and owners) readying their own challenges of the government's data requests. At this point, site visitors who've already attempted to challenge the subpoena obviously don't know if they're actually targeted by the DOJ. The court has dismissed their appeals without prejudice, which will allow them to refile if they make the government's final cut. This is good news for everyone who avails themselves of third-party services (which is pretty much everybody). A little pushback sometimes goes a long way. Anyone seeking to keep their private info private should be taking note on who's willing to challenge the government's overreach and who's willing to act as little more than a data broker for law enforcement agencies. Permalink | Comments | Email This Story

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A year ago, we wrote in great detail about just how ridiculous it was that then Presidential candidate Donald Trump's lawyers had threatened to sue the NY Times over a story about two women who claimed that Trump had groped them inappropriately. Trump insisted to the NY Times that none of it happened, and one of his favorite lawyers, Marc Kasowitz sent a letter calling the story "reckless, defamatory, and constitutes libel per se." It also demanded the article be removed from the Times' website and that a "full and immediate retraction and apology" be posted instead. The letter insisted that "failure to do so will leave my client with no option but to pursue all available actions and remedies." Of course, as we noted at the time, there was basically no chance that Trump would actually sue. The NY Times hit back hard with its response, and it's not a paper easily intimidated by bogus legal threats. Still, it is noteworthy that this week the one year statute of limitations on defamation claims (in New York) passed... and no lawsuit has been filed (though, amusingly, as the Hollywood Reporter points out, the Kasowitz letter demanding a retraction is still posted to Trump's website). As we said last year about this story, it was even more evidence for why we need a strong federal anti-SLAPP law (or, at the very least, stronger state anti-SLAPP laws). New York's anti-SLAPP law remains painfully weak. And while that might not matter directly, since Trump didn't sue, the rise in these kinds of lawsuits and similar threats of lawsuits would be helped tremendously with stronger laws protecting those who the powerful seek to censor and scare. Obviously, Trump might not be too keen on signing such a law right now, but Congress should be working on this. SLAPP suits are becoming an entire industry, helping the rich and powerful silence critics. Congress has the power to stop this abuse of judicial process, and it should follow through. Permalink | Comments | Email This Story

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Yet another lawsuit has been filed against social media companies hoping to hold them responsible for terrorist acts. The family of an American victim of a terrorist attack in Europe is suing Twitter, Facebook, and Google for providing material support to terrorists. [h/t Eric Goldman] The lawsuit [PDF] is long and detailed, describing the rise of ISIS and use of social media by the terrorist group. It may be an interesting history lesson, but it's all meant to steer judges towards finding violations of anti-terrorism laws rather than recognize the obvious immunity given to third party platforms by Section 230. When it does finally get around to discussing the issue, the complaint from 1-800-LAW-FIRM (not its first Twitter terrorism rodeo…) attacks immunity from an unsurprising angle. The suit attempts to portray the placement of ads on alleged terrorist content as somehow being equivalent to Google, Twitter, et al creating the terrorist content themselves. When individuals look at a page on one of Defendants’ sites that contains postings and advertisements, that configuration has been created by Defendants. In other words, a viewer does not simply see a posting; nor does the viewer see just an advertisement. Defendants create a composite page of content from multiple sources. Defendants create this page by selecting which advertisement to match with the content on the page. This selection is done by Defendants’ proprietary algorithms that select the advertisement based on information about the viewer and the content being. Thus there is a content triangle matching the postings, advertisements, and viewers. Although Defendants have not created the posting, nor have they created the advertisement, Defendants have created new unique content by choosing which advertisement to combine with the posting with knowledge about the viewer. Thus, Defendants’ active involvement in combining certain advertisements with certain postings for specific viewers means that Defendants are not simply passing along content created by third parties; rather, Defendants have incorporated ISIS postings along with advertisements matched to the viewer to create new content for which Defendants earn revenue, and thus providing material support to ISIS. This argument isn't going to be enough to bypass Section 230 immunity. According to the law, the only thing social media companies are responsible for is the content of the ads they place. That they're placed next to alleged terrorist content may be unseemly, but it's not enough to hurdle Section 230 protections. Whatever moderation these companies engage in does not undercut these protections, even when their moderation efforts fail to weed out all terrorist content. The lawsuit then moves on to making conclusory statements about these companies' efforts to moderate content, starting with an assertion not backed by the text of filing. Most technology experts agree that Defendants could and should be doing more to stop ISIS from using its social network. Following this sweeping assertion, two (2) tech experts are cited, both of whom appear to be only speaking for themselves. More assertions follow, with 1-800-LAW-FIRM drawing its own conclusions about how "easy" it would be for social media companies with millions of users to block the creation of terrorism-linked accounts [but how, if nothing is known of the content of posts until after the account is created?] and to eliminate terrorist content as soon as it goes live. The complaint then provides an apparently infallible plan for preventing the creation of "terrorist" accounts. Noting the incremental numbering used by accounts repeatedly banned/deleted by Twitter, the complaint offers this "solution." What the above example clearly demonstrates is that there is a pattern that is easily detectable without reference to the content. As such, a content-neutral algorithm could be easily developed that would prohibit the above behavior. First, there is a text prefix to the username that contains a numerical suffix. When an account is taken down by a Defendant, assuredly all such names are tracked by Defendants. It would be trivial to detect names that appear to have the same name root with a numerical suffix which is incremented. By limiting the ability to simply create a new account by incrementing a numerical suffix to one which has been deleted, this will disrupt the ability of individuals and organizations from using Defendants networks as an instrument for conducting terrorist operations. Prohibiting this conduct would be simple for Defendants to implement and not impinge upon the utility of Defendants sites. There is no legitimate purpose for allowing the use of fixed prefix/incremental numerical suffix name. Take a long, hard look at that last sentence. This is the sort of assertion someone makes when they clearly don't understand the subject matter. There are plenty of "legitimate purposes" for appending incremental numerical suffixes to social media handles. By doing this, multiple users can have the same preferred handle while allowing the system (and the users' friends/followers) to differentiate between similarly-named accounts. Everyone who isn't the first person to claim a certain handle knows the pain of being second... third… one-thousand-three-hundred-sixty-seventh in line. While this nomenclature process may allow terrorists to easily reclaim followers after account deletion, there are plenty of non-ominous reasons for allowing incremental suffixes. That's indicative of the lawsuit's mindset: terrorist attacks are the fault of social media platforms because they've "allowed" terrorists to communicate. But that's completely the wrong party to hold responsible. Terrorist attacks are performed by terrorists, not social media companies, no matter how many ads have been placed around content litigants view as promoting terrorism. Finally, the lawsuit sums it all up thusly: Monitoring content is easy -- therefore, any perceived lack of moderation is tantamount to direct support of terrorist activity. Because the suspicious activity used by ISIS and other nefarious organizations engaged in illegal activities is easily detectable and preventable and that Defendants are fully aware that these organizations are using their networks to engage in illegal activity demonstrates that Defendants are acting knowingly and recklessly allowing such illegal conduct. Unbelievably, the lawsuit continues from there, going past its "material support" Section 230 dodge to add claims of wrongful death it tries to directly link to Twitter, et al's allegedly inadequate content moderation. The conduct of each Defendant was a direct, foreseeable and proximate cause of the wrongful deaths of Plaintiffs’ Decedent and therefore the Defendants’ are liable to Plaintiffs for their wrongful deaths. This is probably the worst "Twitter terrorism" lawsuit filed yet, but quite possibly exactly what you would expect from a law firm with a history of stupid social media lawsuits and a phone number for a name. Permalink | Comments | Email This Story

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By now, you've almost certainly heard about President Trump's multiple tweet attack on NBC for having a story he didn't like. A few times, Trump has suggested that NBC should "lose its license" because he doesn't like the company's reporting. Separately, he said during a press conference the rather insane comment: "It's frankly disgusting the way the press is able to write whatever they want to write, and people should look into it." Again, the First Amendment is a big part of why the press is allowed to write whatever they want to write. As plenty of people have pointed out -- including FCC Commissioner Jessica Rosenworcel -- this is not how it works... on multiple levels. First of all, NBC doesn't have a license that can be revoked. Local affiliates have the licenses, but that's different -- and those licenses are effectively impossible to revoke because the system was set up to avoid situations like a President trying to censor a TV news station. But there are some much larger issues here, and a big one is that merely having the President threaten to punish a news organization itself may very well be a First Amendment violation. Now, some people will argue that Trump has his own First Amendment rights to whine about anyone he wants... but courts have already noted that if done as part of their role as a government official, that power is limited. Back in 2015, for example, we wrote about a fantastic 7th Circuit ruling by Judge Richard Posner in which he slammed Cook County Sheriff Thomas Dart for using his position to threaten payment companies into not working with Backpage.com. Posner lays out, in great detail, how a government official, making threats, can violate the First Amendment. “The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive .... What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.” And this: The First Amendment forbids a public official to attempt to suppress the protected speech of private persons by threatening that legal sanctions will at his urging be imposed unless there is compliance with his demands.... Posner also dispenses with the argument that a person is free to say what he wants here, noting that when he speaks, he's using his position in the government to enforce silencing of speech. As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.” And to make the point even clearer on where the line is drawn: Sheriff Dart has a First Amendment right to publicly criticize the credit card companies for any connection to illegal activity, as long as he stops short of threats” Trump has complained about news stations in the past -- and that's his right. But when he threatens to silence them by pulling their license (even if that's impossible) he is now directly using the power of government to threaten someone for protected expression. That's... violating the Constitution that the President has taken an oath to uphold. Of course, that's just a recent 7th Circuit ruling. There are other circuits with similar rulings, such as the 2nd Circuit's Okwedy v. Molinari case, in which the court found that Staten Island Borough President sent a letter to a billboard company to complain about some billboards with anti-gay bible verses. In that case, amazingly, there wasn't even a real threat of action -- just a letter which called the billboards "unnecessarily confrontational and offensive" and said that "this message conveys an atmosphere of intolerance which is not welcome in the Borough." There was no direct legal threat, even, just a request to discuss and to act "as a responsible member of the business community." In that case, the court found that even without the explicit threat, it was a First Amendment violation: Thus, the fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff's message, is not necessarily dispositive in a case such as this. What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form. That could certainly apply to Trump's statements. There are some Supreme Court cases that are on point as well. The most famous is the classic 1963 free speech case Bantam Books v. Sullivan. In that case, the Supreme Court found that a Rhode Island commission focused on stamping out obscene/indecent/impure images and language in publications was unconstitutional. The Commission didn't have the direct power to censor -- but rather would create lists of items the majority of the Commissioners deemed objectionable, and then (1) notify the publisher, (2) notify retailers and (3) pass along a recommendation of prosecution. The state argued that since there was no direct power to censor, there was no First Amendment violation. The court disagreed, noting that mere intimidation was violating the First Amendment rights of the publishers. It is true, as noted by the Supreme Court of Rhode Island, that Silverstein was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact—and the finding, being amply supported by the record, binds us— that Silverstein's compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and Silverstein's reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity In short, there's a pretty broad range of case law both at the appeals court level and at the Supreme Court saying that merely threatening action to suppress protected speech is, in fact, a First Amendment violation. Would NBC actually have the guts to sue over this? That's much harder to say -- but it sure would make for an interesting case. Permalink | Comments | Email This Story

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We've already noted how, despite some empty promises by Sprint and Japanese-owner Softbank, the company's (second) attempted merger with T-Mobile will be a notable job killer. How bad will the damage be? At least one analyst predicts the total number of jobs lost could be more than the total number of people Sprint currently employs (around 28,000). Other analysts estimate the deal could kill something closer to 20,000 jobs, and even the most optimistic tallies put the job damage at somewhere closer to 10,000 lost positions -- most of them either in retail (as duplicate stores are closed) or among redundant management positions. The reduction in major wireless competitors from four to three will also have an obvious, detrimental impact on competition in the space, reducing price competition in the sector and potentially putting an end to the recent, welcome return of unlimited data plans. Just ask career staffers at the Justice Department, who this week leaked word that many of them would be advising agency bosses to block the deal unless their goal is less competition in the space: "When Sprint and T-Mobile bring their expected merger plans to the U.S. Department of Justice for antitrust review, the career staff who do the bulk of the probe into whether the deal will hurt customers will likely recommend that it be stopped, three people familiar with their thinking told Reuters...The Justice Department's main concern is how the deal would affect competition in the U.S. mobile sector. Antitrust staff will want to let T-Mobile continue as it has done, aggressively wooing customers away from market leaders Verizon Communications and AT&T, the people said. Of course whether DOJ and FCC leaders listen to this advice is another question entirely. Trump's "populist" rhetoric on the campaign trail suggested a tough antitrust President who'd block mega-mergers that harm the public interest and market health, but his decision to approve AT&T's mammoth Time Warner merger suggests those promises were relatively hollow. And as you may have noted Trump's FCC boss Ajit Pai is a rubber stamp for giant telecom operators; a commissioner that has yet to stand up to industry on any major subject of note during his five-year tenure. As such, this is being seen as the first real chance for the administration to put its money where its mouth is, and the same Reuters report above notes that analysts are decidedly split on whether that will actually happen: "An informal poll of seven antitrust experts contacted by Reuters found them split between predicting that the deal would be stopped and saying they did not know if it would be allowed. A tiny fraction of deals are blocked. As influential as the career staff is, the final decision will lie with Trump's antitrust enforcer at the Justice Department, Makan Delrahim, and the Federal Communications Commission." There's an ongoing mantra in the telecom space that blind deregulation is some kind of panacea, and that by stripping away all government oversight (including antitrust enforcement) of the broken and uncompetitive sector, connectivity and competition will magically sprout from the sidewalks. But history and real-world data consistently undermines that theory. Regulators' decision to block AT&T's attempted acquisition of T-Mobile -- and Sprint's first attempted merger with T-Mobile -- caused in a notable spike in competition thanks to a resurgent T-Mobile, resulting in unlimited data plans, better international roaming rates, the end of punitive long-term contracts, and more. Again, Sprint has any number of potential suitors or partners that could help the company better compete (Altice, Comcast, Charter, Dish) without reducing overall competition in the sector. Crushing T-Mobile's motivation to disrupt the market by eliminating a major competitor is a notably bad idea, no matter what the industry-funded sales pitches over the next few weeks will try to suggest. Permalink | Comments | Email This Story

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Thanks to an investigation by Norwegian newspaper VG, a long-running child porn operation by Australian police has been (inadvertently) uncovered. An IT specialist at VG was monitoring forum activity and only stumbled on law enforcement's involvement on accident. In comparison to the FBI's takeover of the Playpen site, the Taskforce Argos operation was epic. The FBI held onto the seized Playpen seizure for only a couple of weeks. The Australian police served as replacement administrators for eleven months. The government's turn as child porn site administrators began with the arrest of two men in the United States, one of them a Canadian citizen. Both were apparently actively abusing children as well as running the dark web site. According to data gathered by investigators, Childs Play had more than a 1 million registered users by the time it was shut down. (Estimates suggest fewer than 5,000 accounts could be considered active, however.) Based on estimates from multiple countries now involved in the law enforcement action, the eleven-month hosting effort has resulted in nearly 1,000 suspects being identified. Some have already been arrested. The article is worth a read (as is the Guardian's more succinct take), if for no other reason than the sheer amount of detective work performed by a few journalists. The ends are worthy -- the arrest and punishment of child abusers -- but, as in the FBI's child porn operations, the means are highly questionable. Presumably Australian law enforcement used something similar to the FBI's malware to reveal identifying information about the forum's users. No details have been provided to VG, but there's a good chance details will begin to surface as cases proceed to trial. But it is concerning law enforcement felt a need to continue to distribute child porn for eleven months before deciding to shut down the site. It also seems highly possible the site was only shut down was because the operation had been uncovered by VG's detective work. While impersonating one of the arrested forum moderators, police had to provide a monthly update post to prevent the site's warrant canary from kicking in. One requirement was to include a child porn image with this update, under the assumption law enforcement officers wouldn't be legally allowed to distribute this contraband. That leads directly to another problematic aspect of the investigation: the website was relocated for easier exploitation. It is VG’s understanding that when WarHead surrendered access to Childs Play and Giftbox each forum was stored on servers in separate European countries. Police, lawyers and the suspects themselves refuse to say which. Police in Australia and the European country saw obvious benefits to having the Australian police, rather than a European force, running the site. Australian laws give the police unusually broad powers to monitor suspicious activities online. By consolidating the operation under Australian jurisdiction, investigators now had legal latitude to distribute child porn. The police may not have distributed much directly, but during the eleven months the site operated under new ownership, business was booming. According to statistics compiled by VG's investigation, hosted images quadrupled during that period, from 3,000 to over 12,000 total image. And some of the uploaded images became incredibly popular. On 25 October 2016, two weeks after Argos took over the site, an unidentified user created a discussion thread featuring images of an eight-year-old girl being raped. By August of this year, the post had been viewed 770,617 times – all while the police were running the website. Some victims of child sexual abuse interviewed by VG are upset their images were redistributed by law enforcement. Others are a bit more pragmatic about the investigators' actions. But the redistribution of child porn by law enforcement raises a bunch of questions no one in law enforcement seems interested in answering. Carissa Byrne Hessick, a professor of law at the University of North Carolina, questions [investigator Paul] Griffith’s argument. She is one of the world’s leading legal experts on investigating such abuse. "It sounds like the police tell one story about how damaging the images are when others share them, and another story when the police share them. That’s a kind of hypocrisy I really don’t like. But this sheds light on the argument that any and all sharing of such an image is abuse. If the police say they’re only sharing images that have been shared before, it means the police do not think all sharing is harmful," says Hessick. The counterargument, of course, is law enforcement commits illegal acts for the greater good. But the argument is somewhat hollow when child porn convictions come with restitution orders based on the number of images shared. Eleven months running a child porn site seems like overkill, especially when the two principal members were already in custody by the time investigators took over. Permalink | Comments | Email This Story

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Video games have been steadily becoming more realistic since their first creation. Conversations about this progress has mostly centered around graphical enhancements and tech such as virtual reality that strive to better immerse the player in the fictional world in which they play. But graphical and visual enhancements aren't the only form of realism in which video games have progressed. More unsung have been the enhancements in pure data and detail in these games. For this type of progress, one need only look to management-style simulations games, such as those of the sports realm. In games centered on managing sports franchises, the depth of detail that has emerged has become somewhat breathtaking. Baseball sims, such as the excellent Out of the Park series, are an example of this as is the equally deep Football Manager series for soccer fans. So real, in fact, have these simulations become, that they can occasionally create real-world mishaps, as happened with a French soccer player named Ruben Aguilar. As discussed in this inteview with Goal (in French), there's a mistake in last year's version of the life-destroying management game where Aguilar is incorrectly given dual citizenship of both France and Bolivia. With tens of thousands of players in the game, mistakes are bound to happen from time to time, but the difference here is that it's turned into an international thing. Bolivian players of Football Manager noticed his supposed South American heritage last season, but a string of strong performances in the real world (especially against French giants PSG) this year have blown up to such an extent that he made the TV in Bolivia, with the country's national team management contacting him to inquire about the possibility of him playing for them. The error here was such that it indicated that Aguilar was available for signing to the Bolivian team under the rules of international football. How the error came about is an open question, but the fact is that Aguilar's parents were French and Spanish and he holds no citizenship, or indeed even a passport, for Bolivia. Still, the Bolivian team heeded the calls from its fans to inquire about signing Aguilar, only to learn he was not eligible to play for the team. It's worth repeating that this entire episode came about because of a single error in a single popular sports simulation game. Aguilar himself was forced to respond to all of this on his Facebook page. For the past few weeks, we have received dozens of messages concerning the nationality of Ruben. On Facebook and Twitter many information also circulate. In order to remove doubts; by this communiqué, we affirm that Ruben was born in Grenoble (France), of Spanish father and French mother. As a result, he does not have a Bolivian passport. In any case, we thank you for all messages of support and the enthusiasm aroused to see him wearing the jersey of ‘La Verde’. ¡Muchas Gracias! It's a funny little story, with many folks now poking fun at both the Bolivian team for not doing its homework and Football Manager for making the seemingly inconsequential error to begin with. More interesting to me, however, is how this serves as an indication of how far video games have come in terms of the realism we expect from them. So sure was the public, and even a professional soccer team, that the information in the game was accurate that all of the above acted on that information. That's actually kind of cool. Permalink | Comments | Email This Story

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Section 108 of copyright law doesn't get very much attention (though, we did just mention it in regards to an archive of Howard Stern/Donald Trump interviews). It's the part of the law that grants some fairly narrow exceptions to copyright for libraries and archives. In short, it was a recognition that libraries and archives are good and important things, and copyright law under the 1976 Copyright Act would basically make them illegal. Rather than fixing the fact that copyright law was too broad, Section 108 simply carved out a few important exceptions. Many of those exceptions are, unfortunately, under attack from all the usual sources. However Section 108 is important to protect until we fix wider problems with copyright law. Of course, some parts of 108 have rarely, if ever, been tested. The Internet Archive is looking to fix that. It just announced that it is making a bunch of books published between 1923 and 1941 available on the Archive. As you may know from the handy dandy public domain term chart at Cornell, thanks to the 1976 Copyright Act (and various extensions) tons of works that should have been in the public domain long before now have been locked up and unavailable. The key date is 1923. Works before that are clearly in the public domain. After that, it gets... fuzzy. But, Section 108(h) has a neat little exception for libraries and archives: (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply. (2) No reproduction, distribution, display, or performance is authorized under this subsection if— (A) the work is subject to normal commercial exploitation; (B) a copy or phonorecord of the work can be obtained at a reasonable price; or (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies. And thus, the Internet Archive believes it's free to make a bunch of out of print books available: The Internet Archive is now leveraging a little known, and perhaps never used, provision of US copyright law, Section 108h, which allows libraries to scan and make available materials published 1923 to 1941 if they are not being actively sold. Elizabeth Townsend Gard, a copyright scholar at Tulane University calls this “Library Public Domain.”  She and her students helped bring the first scanned books of this era available online in a collection named for the author of the bill making this necessary: The Sonny Bono Memorial Collection. Thousands more books will be added in the near future as we automate. We hope this will encourage libraries that have been reticent to scan beyond 1923 to start mass scanning their books and other works, at least up to 1942. As the Internet Archive's Brewster Kahle notes, it's unfortunate and disappointing that it even needs to make use of this clause, because copyright was never supposed to last this long in the first place. The idea that stuff published in 1941 is still under copyright is completely insane. If the Founding Fathers had their way, almost all works from the 20th century would be public domain by now (14-year copyright term, renewable once if you took extra actions). Some corporations saw adding works to the public domain to be a problem, and when Sonny Bono got elected to the House of Representatives, representing part of Los Angeles, he helped push through a law extending copyright’s duration another 20 years to keep things locked-up back to 1923.  This has been called the Mickey Mouse Protection Act due to one of the motivators behind the law, but it was also a result of Europe extending copyright terms an additional twenty years first. If not for this law, works from 1923 and beyond would have been in the public domain decades ago. Still, the law is the law... and, part of it includes Section 108(h). The Archive has, amusingly, named the collection the Sonny Bono Memorial Collection: Today we announce the “Sonny Bono Memorial Collection” containing the first books to be liberated. Anyone can download, read, and enjoy these works that have been long out of print. We will add another 10,000 books and other works in the near future. “Working with the Internet Archive has allowed us to do the work to make this part of the law usable,” reflected Professor Townsend Gard. “Hopefully, this will be the first of many “Last Twenty” Collections around the country.” Of course, there's more to this as well -- part of the goal is to encourage other libraries and archives to do the same. For many years we've pointed to the research of Paul Heald, who has demonstrated the massive hole in access to important cultural works due to copyright. Specifically, he's found while public domain books have a big market, publishers who hold copyright only keep very recent books on the market. And that creates a massive culture gap in our history: Perhaps the Sonny Bono Memorial Collection will help fill in just a small bit on the left hand side of that tragic cultural gorge. Permalink | Comments | Email This Story

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What is it exactly that makes not storing sensitive customer data unprotected on an Amazon server so difficult for some people to understand? Verizon recently made headlines after one of its customer service vendors left the personal data of around 6 million consumers just sitting on an Amazon server without adequate password protection. A GOP data analytics firm was also recently soundly ridiculed after it left the personal data of around 198 million adults (read: almost everybody) similarly just sitting on an Amazon server without protection. Time Warner Cable (4 million impacted users) and an auto-tracking firm named SVR Tracking (540,000 users) also did the same thing. Now Accenture (who you would think would have the expertise to know better) has decided to join the fun. Reports this week indicate that the company left hundreds of gigabytes of sensitive customer information...you guessed it...sitting open to anyone on the internet in an unsecured Amazon server. That includes 40,000 passwords sitting in one backup database that were stored in plaintext: "Technology and cloud giant Accenture has confirmed it inadvertently left a massive store of private data across four unsecured cloud servers, exposing highly sensitive passwords and secret decryption keys that could have inflicted considerable damage on the company and its customers. The servers, hosted on Amazon's S3 storage service, contained hundreds of gigabytes of data for the company's enterprise cloud offering, which the company claims provides support to the majority of the Fortune 100. As is usually the case, the scope and damage of these kinds of screw ups are generally under-reported, as the exponential impact of the exposed data becomes clear. For example in this case, much of the data included passwords and encryption keys that will likely prove helpful in hacking not only Accenture, but other companies' systems: "One of the other servers contained a folder that stored keys and certificates that could be used to decrypt traffic between Accenture and its customers as it traveled across the internet. Vickery said he also found credentials that appear to relate to Accenture's access to Google's Cloud Platform and Microsoft's Azure, which could give an attacker further access to the company's cloud assets, as well as virtual private network keys, which could have allowed an attacker to access Accenture's internal corporate network." When news outlets originally reached out to Accenture, the company insisted that "none of our client's information was involved and there was no risk to any of our clients," insisting that the company's "multi-layered security model" worked as intended. Security researchers have subsequently proven that simply wasn't the case, resulting in Accenture issuing an updated statement saying they're investigating the issue more deeply. All told, it's unclear how many times this exact same story needs to play out before companies stop leaving data sitting unprotected in an Amazon bucket, but it's abundantly clear we have at least a few more trips around this merry-go-round of dysfunction before the lesson sinks in. Permalink | Comments | Email This Story

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More libel-related bullshittery happening on the internet. And, again, Eugene Volokh is on top of it. Between him, Paul Levy of Public Citizen, and Pissed Consumer, we've seen a huge amount of shady-to-completely-fraudulent behavior by lawyers and rep management firms exposed. This is more of the same, although it doesn't appear anyone in the SEO business was involved. Jordan Wirsz is an investment manager with a problem. He's previously gotten in trouble with state regulators for running investment schemes without a license. It's not a huge problem, but it's enough to make people think twice before trusting him with their money. Faced with state regulator decisions cluttering up his search results, Wirsz has apparently opted to make his Google searches even less flattering. He took a commenter named "Richard" to court, alleging defamation based on the contents of comments "Richard" posted to sites like RipoffReport. He won a default judgment, which conveniently contained several URLs not linked to "Richard" or the alleged libel. The list of URLs included, in the middle, three official Arizona government documents, which of course couldn’t have been posted by any “Richard”; their author isn’t an anonymous commenter, but rather the Arizona Corporation Commission, which Wirsz did not sue. Unsurprisingly, the material in the order is based on Phillips’s application for default judgment, which said that “Defendant posted” various statements, and that “such statements and similar statements have been posted at” various links, including the azcc.gov links — even though the azcc.gov links are actually quite different criticisms of Wirsz, which are not libelous and which are unrelated to “Richard.” And that's not all. The default judgment a judge agreed to includes other URLs not related to "Richard" and his supposed libel. Some of the other URLs in the default judgment (and the takedown request) were Scribd.com copies of various documents in this very case, such as an earlier court order granting a preliminary injunction against “Robert,” which were uploaded to Scribd by RipOffReport… Some other URLs pointed to other Scribd documents uploaded to RipOffReport that didn’t even mention Wirsz, except that Scribd’s other-recommended-document list at the bottom of the pages mentioned one of the Wirsz orders. Volokh wasn't able to get anyone involved to comment on the court order. Wirsz is now represented by a different lawyer -- not the Brandon Phillips who obtained the court order, nor the Brian Dziminski who served the order to Google. Obviously, Wirsz hoped Google was as inattentive as the judge signing the order, but it appears Google didn't comply with the court order's demands it delist government agency URLs. This bogus scrubbing of search results continues, but is certainly becoming much less of a sure thing than it used to be. One rep management company engaging in fraudulent libel lawsuit tactics is paying out $70,000 and may be out even more once the US Attorney's Office is done with it. Another rep management firm is facing two legal actions over its fraud on the court for the same bogus lawsuit v. bogus defendant tactics. With Google paying more attention to incoming court orders, the law of diminishing returns has finally been enacted. Permalink | Comments | Email This Story

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Via Josh Taylor, we learn of the recently released "Intergovernmental Agreement on Identity Matching Services", which is a fancy way of saying that the federal government and Australian state and territory governments had agreed to work together on a big face recognition surveillance system. But the truly incredible thing is that these Australian governments have decided to try to out-Orwell Orwell, by arguing that pervasive facial recognition is actually... good for privacy. The Identity Matching Services will help promote privacy by strengthening the integrity and security of Australia’s identity infrastructure—the identity management systems of government Agencies that issue Australia’s core identity documents such as driver licences and passports. These systems play an important role in preventing identity crime. Identity crime is one of the most common and costly crimes in Australia and is a key enabler of serious and organised crime. Identity crime is also a threat to privacy when it involves the theft or assumption of the identity of an individual. The misuse of personal information for criminal purposes causes substantial harm to the economy and individuals each year. That's... an impressive level of bullshit. As Steven Clark points out... that's not privacy. Wait ... what? ... that's not privacy, though ... *headdesk* https://t.co/yIedIHigOF — Steven R Clark (@maelorin) October 5, 2017 We often see people make the silly claim that security and privacy are at odds with one another, which we believe is generally not true. In fact, there are strong arguments that greater privacy increases security by better protecting everyone (go encryption!). But here, Australia appears to be trying to flip that rationale totally on its head by arguing that the more security you have, the better it is for privacy, because they'll catch those nasty criminals who aim to do harm to your privacy. But... that's not privacy. Indeed, it says nothing of how governments, for example, might violate everyone's privacy with such a system (which is a larger concern than your everyday criminal). It's difficult to take such a system seriously, when this is how they approach the privacy question. Permalink | Comments | Email This Story

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Still holding on to that old cassette collection? Yeah, they're cool. Sure. But at some point you're going to need to digitize them or risk losing them entirely to time. This $21 Audio Cassette to MP3 Music Converter hooks up to your laptop and allows you to convert tapes to MP3 files for easy digital access. Once converted, you can then transfer to your phone or tablet for sharing any time. Don't let that collection go to waste! 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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When you've got an official narrative to deliver, you need everyone to pitch in to keep it from falling apart. No one can say ICE didn't try. The Trump administration -- bolstered by supporting statements conjecture from DOJ and DHS officials -- has portrayed undocumented immigrants as little more than nomadic thugs. Unfortunately, there's hardly any evidence available to back up the assertion that people here illegally are more likely to commit serious criminal acts. Back in February, shortly after Trump handed down immigration-focused executive orders, ICE went all in on arresting undocumented visitors and immigrants. Included in this push was a focus on so-called "sanctuary cities" like Austin, Texas, which had vowed to push back against Trump's anti-immigrant actions. Emails obtained by The Intercept show ICE doing all it can to prop up Trump's "dangerous criminal" stereotyping. Unfortunately, despite all of its efforts, ICE failed to come across many dangerous criminals during its February sweeps. On February 10, as the raids kicked off, an ICE executive in Washington sent an “URGENT” directive to the agency’s chiefs of staff around the country. “Please put together a white paper covering the three most egregious cases,” for each location, the acting chief of staff of ICE’s Enforcement and Removal Operations wrote in the email. It's a good starting point, especially if the administration is relying on you to back up its assertions. ICE was willing to go the extra mile to do just that, apparently. “If a location has only one egregious case — then include an extra egregious case from another city.” This is an interesting ploy: cannibalizing nearby cities' reporting in order to present some semblance of an "egregious case" immigrant nightmare --one that would need to be stripped of redundancy before final presentation. Unfortunately for ICE agents, you can't make something out nothing. Three cases per city proved to be almost impossible. Many raids failed to uncover even one egregious case. With the clock ticking down, some ICE offices decided to grab "egregious cases" completely unrelated to the current operation. In February 11, an official responded to a colleague’s list of egregious cases by pointing out that they were unrelated to the ongoing operation. “The arrest dates are before any operation and even before the EO’s. What is up with these cases?” the official wrote. What's up with those cases is there were almost zero new cases to report to the man upstairs. Hundreds of arrests were made, but many involved people with no prior criminal record. In the remaining arrests, most of the priors found were minor violations, with the worst being drunk driving. Not exactly the "public safety threat" the Trump administration had promised. When it became clear the "egregious case" reports might total only a handful of serious criminal offenses from hundreds of arrests nationwide, ICE quickly applied its own spin. As criticism escalated, ICE shifted to downplaying the operation as “no different than the routine,” telling reporters that the raids were the same “targeted arrests carried out by ICE’s Fugitive Operations Teams on a daily basis,” and suggesting off the record that claims to the opposite were “false, dangerous, and irresponsible.” As it became clear that dozens of individuals with no criminal history had been apprehended, ICE shifted gears and told reporters that in addition to targeting safety threats, the raids were always meant to target those whose only crimes were immigration-related, like re-entering the U.S. after deportation… By spinning it this way, ICE can pay needed lip service to the administration's "dangerous immigrants" narrative and portray the lack of egregious cases as the result of the banal day-to-day work of immigration enforcement. But in doing so, it undercuts the narrative it's trying to serve. If there are so many dangerous criminals out there, why isn't ICE focused on them, rather than dozens of people whose only criminal act is a lack of documentation? ICE can't have it both ways. Neither can the White House. Permalink | Comments | Email This Story

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While the lack of competition in residential broadband gets plenty of well-deserved attention, the business broadband market in the United States may be even worse. Just one of three companies (Verizon, AT&T, or CenturyLink) dominate what's dubbed the business data services (BDS) market, which connects everything from cellular towers to ATMs to the broader internet. According to the FCC's own data (pdf), 73% of the special access market is controlled by one ISP, 24% of markets usually "enjoy" duopoly control, and only a tiny fraction of markets have more than two choices of BDS providers. This essential monopoly or duopoly allows these companies to overcharge numerous retailers and organizations for connectivity, and the regulatory capture in the telecom market means countless politicians work tirelessly to keep things that way. Case in point: back in April Trump's FCC announced it would not only be scrapping previous plans to try and make this market more competitive, but would be fiddling with data to try and distort the very definition of "competition." Under the FCC's new plan, countless markets will now be deemed "competitive" if businesses have access to just one broadband provider: "Pai's definition of "sufficient competition" has drawn fire. The plan would treat an entire county as competitive "if 50 percent of the locations with BDS demand in that county are within a half mile of a location served by a competitive provider." A county would also be considered competitive if 75 percent of Census blocks in the county have a cable provider." Distorting data and lowering the bar to ankle height to "solve" a lack of competition is part and parcel for Ajit Pai's FCC, which is also trying to weaken the definition of competition in the residential sector as well. Again, if you distort the data to make it look like the market is functioning perfectly, it's easier to justify your complete and total apathy to what -- if you've spent any time with Comcast -- is pretty clearly a broken market. Needless to say, consumer advocates and the smaller companies harmed by these policies aren't particularly pleased with the FCC's recent decisions. They've been trying for the better part of a decade to fix the lack of competition in the special access and BDS markets, and were just on the cusp of making progress when the FCC dramatically changed course post-election. According to research by the Consumer Federation of America (CFA), roughly half of the $40 billion in revenue made in this market is courtesy of a lack of competition and monopoly over-charging of smaller businesses. As a result, Public Knowledge and the Consumer Federation of America have filed an amicus curiae brief (pdf) urging the US Court of Appeals for the Eighth Circuit to vacate the FCC's BDS order. The filing argues that the FCC's actions here run in stark contrast to both FCC precedent and, you know, reality: "The Court should vacate and remand the Order. The Order is arbitrary and capricious. The Commission departed from its past precedents without explanation or justification, and reached a conclusion that is contrary to the record in the Business Data Services docket. Further, the Order concludes, contrary to the record and established antitrust analysis, that duopoly markets are sufficiently competitive to discipline market power and prices, and that potential competition can effectively check market power, even by monopoly service providers." Of course there's a reason giant ISPs like Comcast and AT&T employ an army of economists eager to distort, stretch, and otherwise mutilate data until it justifies policy that protects them from real competition. In fact, the groups at one point indicate that Ajit Pai's FCC tried to use concrete to justify its latest effort: "The order cites studies analyzing three-firm and four-firm markets, but fails to explain how its analysis is relevant to the one-firm and two-firm markets the commission embraces as sufficiently competitive, Curiously, the Commission relies on a study involving ready-mix concrete for the proposition that the addition of competitors beyond a second has diminishing returns..." There's numerous other slights of hand the FCC used to justify its total apathy to the broken BDS market, including claiming that wireless competition from fifth-generation (5G) networks will make everything magically work out -- while ignoring that just two companies (AT&T and Verizon) hold the vast majority of the spectrum needed to compete in that space. Granted if you've watched as the FCC abuses logic to justify dismantling everything from net neutrality to privacy protections, it's all par for the course for an agency that prioritizes incumbent revenues over consumers, competition, or the health of the market itself. Permalink | Comments | Email This Story

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If the name Kali Kanongataa doesn't ring a bell, he was the man who sued roughly all of the news for copyright infringement earlier this year. The whole episode stemmed from Kanongataa having put the birth of his child up on Facebook through the site's live streaming function in 2016. Many, many news organizations used snippets of the video in their reporting on the viral nature of the video, which had been viewed over 100,000 times. Kanongataa ultimately lost those suits on obvious Fair Use grounds and the various news organizations subsequently petitioned to be awarded attorney's fees, which the court ultimately granted. Well, Kanongataa has since petitioned the court to vacate or reduce those attorney's fees awards on two grounds. First, Kanongataa claims his financial situation is such that these awards would bankrupt him. As the court notes however, denying the request, Kanongataa only claimed this and failed to provide any sort of evidence of his financial situation. The difficulty here, however, is that the plaintiff has submitted no evidence at all as to his financial circumstances only an unsworn statement in a memorandum by his lawyer, which does not cut it. As Judge Chin illustrated in the Muller case, reductions in fee awards based on an unsuccessful party's limited means typically, or at least often, are made in response to evidence rather than airy claims.  And this is not unique to fees under the Copyright Act. A party resisting an award of costs under Rule 54 on the basis of inability to pay, for example, bears the burden of proving the extent of its financial resources. While Kanongataa's subsequent claim that NBC specifically inflated the amount of time billed for its defense was also denied, the real gem in the court's written response is in a later portion on the matter of Kanongataa's financial situation. Where the court again highlights that Kanongataa submitted absolutely zero evidence for his financial situation, the court footnotes the following: The Court expresses no view on whether and to what extent plaintiff may have recourse against his attorney for the attorneys' fees awarded here in View of any attorney advice to pursue this case and the failure to submit evidence of plaintiff's financial condition. The court can preface this footnote any way it wants, but this sure reads like a heavy-handed hint to Kanongataa that he may want to look into recouping costs through his attorney for even bringing this case before the court in the first place, never mind failing to properly advise him on his claims of financial strife. This pretty clearly reads like a court that knows this is a case that never should have made it past the idea stage in Kanongataa's head, with clear implications that his attorney should have advised him against, or refused to even assist him with, putting any of this in motion. One wonders exactly what sort of faces Kanongataa's attorney made upon reading this. Permalink | Comments | Email This Story

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A couple of weeks ago, we wrote about a proposal from the International Association of Scientific Technical and Medical Publishers (STM) to introduce upload filtering on the ResearchGate site in order to stop authors from sharing their own papers without "permission". In its letter to ResearchGate, STM's proposal concluded with a thinly-veiled threat to call in the lawyers if the site refused to implement the upload filters. In the absence of ResearchGate's acquiescence, a newly-formed "Coalition for Responsible Sharing", whose members include the American Chemical Society (ACS), Brill, Elsevier, Wiley and Wolters Kluwer, has issued a statement confirming the move: Following unsuccessful attempts to jointly find ways for scholarly collaboration network ResearchGate to run its service in a copyright-compliant way, a coalition of information analytics businesses, publishers and societies is now left with no other choice but to take formal steps to remedy the illicit hosting of millions of subscription articles on the ResearchGate site. Those formal steps include sending "millions of takedown notices for unauthorized content on its site now and in the future." Two Coalition publishers, ACS and Elsevier, have also filed a lawsuit in a German regional court, asking for “clarity and judgement” on the legality of ResearchGate's activities. Justifying these actions, the Coalition's statement says: "ResearchGate acquires volumes of articles each month in violation of agreements between journals and authors" -- and that, in a nutshell, is the problem. The articles posted on ResearchGate are generally uploaded by the authors; they want them there so that their peers can read them. They also welcome the seamless access to other articles written by their fellow researchers. In other words, academic authors are perfectly happy with ResearchGate and how it uses the papers that they write, because it helps them work better as researchers. A recent post on The Scholarly Kitchen blog noted: Researchers particularly appreciate ResearchGate because they can easily follow who cites their articles, and they can follow references to find other articles they may find of interest. Researchers do not stop to think about copyright concerns and in fact, the platform encourages them, frequently, to upload their published papers. The problem lies in the unfair and one-sided contracts academic authors sign with publishers, which often do not allow them to share their own published papers freely. The issues with ResearchGate would disappear if researchers stopped agreeing to these completely unnecessary restrictions -- and if publishers stopped demanding them. The Coalition for Responsible Sharing's statement makes another significant comment about ResearchGate: that it acquires all these articles "without making any contribution to the production or publication of the intellectual work it hosts." But much the same could be said about publishers, which take papers written by publicly-funded academics for free, chosen by academics for free, and reviewed by academics for free, and then add some editorial polish at the end. Despite their minimal contributions, publishers -- and publishers alone -- enjoy the profits that result. The extremely high margins offer incontrovertible proof that ResearchGate and similar scholarly collaboration networks are not a problem for anybody. The growing popularity and importance of unedited preprints confirms that what publishers add is dispensable. That makes the Coalition for Responsible Sharing's criticism of ResearchGate and its business model deeply hypocritical. It is also foolish. By sending millions of take-down notices to ResearchGate -- and thus making it harder for researchers to share their own papers on a site they currently find useful -- the Coalition for Responsible Sharing will inevitably push people to use other alternatives, notably Sci-Hub. Unlike ResearchGate, which largely offers articles uploaded by their own authors, Sci-Hub generally sources its papers without the permission of the academics. So, once more, the clumsy actions of publishers desperate to assert control at all costs make it more likely that unauthorized copies will be downloaded and shared, not less. How responsible is that? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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For many, many years now, we've talked about problems with the CFAA -- the Computer Fraud & Abuse Act -- which was passed in Congress in the 1980s in response to the Hollywood movie War Games (seriously). It was a messed up moral panic back then, and over the years it's been abused widely in both civil and criminal cases to define almost anything as hacking. Over the past few years we've been following two cases in particular related to the CFAA: the David Nosal case and the Power.com case. Both involved fairly twisted interpretations of the CFAA -- and, unfortunately, the 9th Circuit found both to be okay. And, unfortunately, this week, the Supreme Court declined to review both cases, meaning they remain good (if stupid) law in the 9th Circuit (which will likely influence cases elsewhere). I won't go into all of the background in both cases, but the super short version is that under the Facebook v. Power ruling, it's a CFAA violation for a service to access a website -- even if at the request of users -- if the website has sent a cease-and-desist. That shouldn't be seen as hacking, but the court said it's "unauthorized access." Power was a service that tried to help consolidate different social networks into a single user interface for users -- and lots of people found that valuable and signed up for the service. But, Facebook didn't like it and sent a cease-and-desist to Power. Power figured that since users were asking it to continue and they were the ones who had the accounts, it was okay to continue. The court, unfortunately, claimed that it was a CFAA violation -- the equivalent of "hacking" into a system (despite having legit credentials) just because of the cease-and-desist. In the Nosal case, the court said that merely sharing your passwords can be a CFAA violation. In that case a guy looking to compete with his old firm had someone still there share a password so he could log in and get customer info. That may be unethical and problematic -- but should it be the equivalent of computer hacking? While the 9th Circuit had rejected an even broader interpretation of the CFAA that would say merely violating a terms of service became "unauthorized access" it said okay to the password sharing one. There was some hope that the Supreme Court would hear these cases and explain that these rulings stretched the CFAA to dangerous degrees. Unfortunately, that's not the case. And so we're back where we've been for a few decades now: talking about why Congress needs to reform the CFAA and fix these problems that leave the law wide open to abuse -- especially in an era where so many people use dozens of services, and sometimes do things like share passwords or ask others to log into sites for them. These should never be seen as "hacking" violations, but in the 9th Circuit, they are. Permalink | Comments | Email This Story

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We've argued repeatedly that it's a bad idea to demand that internet platforms like Twitter and Facebook be more proactive in policing content on their services, because it will lead to really bad results -- especially in the political realm. There's been a really dumb move over the past few months, demanding that Twitter kick Donald Trump off Twitter, pointing out that he's pretty clearly violating many of their terms of service. For example, threatening war with North Korea would likely violate the rules against "violent threats (direct or indirect)." And, of course, our President is a walking, tweeting harassment and "hateful conduct" machine. But, Twitter has recently said that it wouldn't kick Trump off the service (which we agree is the right move), because it has a different standard for "newsworthy" tweets, whatever that means. And, yes, some people will claim that it's unfair to have a double standard, but I think Twitter is correct to not kick Trump off the service. It certainly wouldn't stop the President from getting his thoughts out there, and would only increase the silly martyr act that he and his most vocal supporters love to focus on. But, really, the bigger issue is why anyone should expect Twitter to be doing this kind of decision making in the first place. When you look at other communications systems -- like email or the web in general -- we don't kick people entirely off email or force them to takedown their website just because they say something stupid. And, when it gets into political content, it gets even sillier. For example, while Twitter won't do anything about Trump (again, the right move...), it did decide to block a campaign ad from Rep. Marsha Blackburn, who is eagerly running for the Senate to take over the seat Bob Corker is vacating. The ad sounded inflammatory and stupid, claiming that she "stopped the sale of baby body parts" and Twitter rejected it for being "inflammatory." Of course, all this did was kick the old Streisand Effect into high gear, giving Blackburn tons of free publicity and extra views of her ad, which was posted on YouTube, without having to buy any advertising. Twitter basically gave her a much wider reach for free by rejecting the ad. And, of course, after all the damage was done, Twitter changed its mind. Now, I tend to think that Blackburn is one of the worst members of Congress (she's terrible on basically every issue we care about her) and would prefer she not move across Congress to be in the Senate, but she should be able to post whatever stupid ad she wants on Twitter, and just let people on Twitter rip it to shreds, rather than being barred from posting such an ad. It seems pretty straightforward, but we shouldn't want a private company -- especially one as consistently confused about these things as Twitter -- to be the final arbiter of what political ads or political speech are okay, and what is too "inflammatory." That only leads to bad results -- and all of the free publicity Twitter just gave Blackburn's dumb ad will mean that other politicians will seek to create even more ridiculous ads to get the free "bump" from a Twitter ban. That hardly seems healthy for democracy. Permalink | Comments | Email This Story

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Frequent FOIA requesters CREW (Citizens for Responsibility and Ethics in Washington) and NSA (National Security Archive) are trying to obtain a court ruling forcing the Trump administration to stop standing in the way of transparency and accountability. Their complaint [PDF], filed earlier this year, accuses the Trump administration of not just serious impropriety, but of actually taking proactive steps to ensure there's no documentation of its questionable deeds. From early on in this Administration, White House staff have used and, on information and belief, continue to use certain email messaging applications that destroy the contents of messages as soon as they are read, without regard to whether the messages are presidential records. Presidential statements made on Twitter sent from the President’s personal Twitter account, which are subject to federal record-keeping obligations, have been destroyed. The President also has implied that he is secretly tape-recording some or all conversations with Administration officials, and it is unclear if these tapes are being preserved. And there is at least one news report that, when the ongoing congressional and FBI investigations were disclosed, White House aides purged their phones of potentially compromising information. These practices violate the Presidential Records Act. On top of that, the lawsuit alleges the White House is going even darker by consolidating power and forcing federal agencies to route as much as possible through administration staff to ensure as many records as possible could be considered exempt from FOIA requests. The DOJ has filed its motion to dismiss [PDF]. And it's incredibly dismissive, as Eriq Gardner reports: In a court filing Friday, not only do attorneys at the Justice Department say that courts can't review this, but they also argue that when it comes to laws pertaining to government record-keeping, judicial review would be inappropriate even if Trump deleted secret recordings with administration officials or even if his staff purged phone records because they expected to be subpoenaed in connection with various investigations. Over the course of 36 pages, the DOJ tells the court the plaintiffs are wrong, the court is wrong… pretty the only entity entirely in the right is the President and his staff, who efforts cannot be questioned under the Presidential Records Act. Courts cannot review the President’s compliance with the Presidential Records Act (“PRA”). As the D.C. Circuit has squarely held, “permitting judicial review of the President’s compliance with the PRA would upset the intricate statutory scheme Congress carefully drafted to keep in equipoise important competing political and constitutional concerns.” Armstrong v. Bush, 924 F.2d 282, 290 (D.C. Cir. 1991) (“Armstrong I”). Indeed, “Congress . . . sought assiduously to minimize outside interference with the day-to-day operations of the President and his closest advisors and to ensure executive branch control over presidential records during the President’s term in office,” and so “it is difficult to conclude that Congress intended to allow courts, at the behest of private citizens, to rule on the adequacy of the President’s records management practices or overrule his records creation, management, and disposal decisions.” The DOJ's arguments are pretty blunt, considering they're spread over 30 pages. The DOJ flatly states the plaintiffs have no standing as they can allege no harm but possibly-thwarted FOIA requests at some point in the future. Even if the court somehow finds a way to grant standing, the DOJ states this won't help the plaintiffs' case at all. Even if Plaintiffs had standing, the vast majority of their claims are precluded by the PRA. As noted above, the D.C. Circuit held in Armstrong I that private litigants may not bring suit to challenge the President’s compliance with the PRA. While the D.C. Circuit subsequently held that courts hearing FOIA cases may review the President’s PRA guidelines to ensure that he does not improperly treat agency records subject to FOIA as though they were instead presidential records subject to the PRA, see Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1294 (D.C. Cir. 1993) (“Armstrong II”), D.C. Circuit law does not permit judicial review of whether the President is properly managing and preserving those records that are in fact subject to the PRA. The DOJ likely has a point. Congress did give the President's office lots of leeway on how to handle records retention. It's the sort of thing that seems like a good idea when you're the party in power but not so much when things change hands. For everyone else on the outside, it's just another way the government insulates itself from accountability. Permalink | Comments | Email This Story

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Back in 2014, the police in Peoria, Illinois raided the home of a guy, Jon Daniel, suspected of running a Twitter account parodying Peoria's mayor, Jim Ardis. Despite knowing no laws had been broken, Ardis pushed hard to prosecute the person for daring to mock him on Twitter. It didn't end well. A year and a half later, the taxpayers of Peoria were on the hook to pay Daniel $125,000 to settle the lawsuit filed against the city (with help from the ACLU). Someone might want to share that story with the police in Miami Beach. Last week they arrested a guy for having a Twitter parody account of the police spokesperson, Ernesto Rodriguez. The story sounds fairly familiar to the Peoria story. As in that case, police are claiming that the "crime" committed by Ernesto Orsetti here is "falsely impersonating" a public official. Yet, as the Miami New Times notes, just a little while ago Rodriguez (the real one) joked with reporters and made it clear he considered it a parody account. He also appears to have made some tweets that are clearly laughing off the parody account. It seems like the approach that the real Rodriguez took to this, laughing it off, makes a lot more sense than going and arresting the guy -- especially given what happened in Peoria. Permalink | Comments | Email This Story

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OSTraining is one of the top learning and reference sites for web development professionals. You can become a pro web developer with a lifetime of guidance from OSTraining for $59.99. With instruction from experts in their fields and unlimited access to an enormous library of classes and courses, you'll learn to build and launch amazing websites using open source platforms like WordPress with languages like JavaScript, HTML, and more. You don't have to know a line of code to get your website up and running, but you'll learn that too. 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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The DOJ is apparently going to pick up where the ousted FBI boss James Comey left off. While Attorney General Jeff Sessions continues building his drug enforcement time machine, Deputy AG Rod Rosenstein is keeping the light on for Comey's prophesies of coming darkness. Rosenstein recently gave a speech at the US Naval Academy on the subject of encryption. It was… well, it was pretty damn terrible. Once again, a prominent law enforcement official is claiming to love encryption while simultaneously extolling the virtues of fake encryption with law enforcement-ready holes in it. The whole thing is filled with inadvertently hilarious assertions, like the following: Encryption is a foundational element of data security and authentication. It is essential to the growth and flourishing of the digital economy, and we in law enforcement have no desire to undermine it. Actually, Rosenstein has plenty of desire to do that, which will be amply demonstrated below, using his own words. But the advent of “warrant-proof” encryption is a serious problem. Under our Constitution, when crime is afoot, impartial judges are charged with balancing a citizen’s reasonable expectation of privacy against the interests of law enforcement. The law recognizes that legitimate law enforcement needs can outweigh personal privacy concerns. The law indeed recognizes this and provides law enforcement access to communications, documents, etc. with the proper paperwork. What the law cannot do is ensure the evidence is intact, accessible, or exactly what law enforcement is looking for. Rosenstein is disingenuously reframing the argument as lawful access v. personal privacy, when it's really about law enforcement's desires v. user security. The latter group -- users -- includes a large percentage of people who've never been suspected of criminal activity, much less put under investigation. Weakened encryption affects everyone, not just criminal suspects. Our society has never had a system where evidence of criminal wrongdoing was totally impervious to detection, especially when officers obtain a court-authorized warrant. But that is the world that technology companies are creating. Our society has had plenty of systems where evidence was "impervious to detection." Calls, text messages, emails, personal conversations, passed notes, dead drops, coded transmissions, etc. have existed for years without law enforcement complaining about everything getting so damn dark. Law enforcement has never had 100% access to means of communications even with the proper paperwork in hand. And yet, police departments and investigative agencies routinely solved crimes, even without access to vast amounts of personal communications. Rosenstein follows this loop a few times, always arriving at the same mistaken conclusion: law enforcement should be able to access whatever it wants so long it has a warrant. Why? Because it always used to be able to. Except for all those times when it didn't. Since Rosenstein isn't willing to handle the encryption conversation with any more intellectual honesty than the departed James Comey, he's forced to come up with new euphemisms for encryption backdoors. Here's Rosenstein's new term for non-backdoor encryption backdoors. Responsible encryption is achievable. Responsible encryption can involve effective, secure encryption that allows access only with judicial authorization. At worst, this means some sort of built-in backdoor, sort of what Blackberry uses for its non-enterprise customers. Nearly just as bad, this possibly means key escrow. These are the solutions Rosenstein wants, but he doesn't even have the spine to take ownership of them. Not only does the Deputy AG want tech companies to implement whatever the fuck "responsible encryption" is, he wants them to bear all expenses, cope with customers fleeing the market for more secure options, and be the focal point for the inevitable criticism. Such a proposal would not require every company to implement the same type of solution. The government need not require the use of a particular chip or algorithm, or require any particular key management technique or escrow. The law need not mandate any particular means in order to achieve the crucial end: when a court issues a search warrant or wiretap order to collect evidence of crime, the provider should be able to help. In other words, the private sector needs to build the doors and hold the keys. All the government needs to do is obtain warrants. Rosenstein just keeps piling it on. He admits the law enforcement hasn't been able to guilt tech companies into backdooring their encryption. That's the old way. Going forward, the talking points will apparently portray tech companies as more interested in profits than public safety. The approach taken in the recent past — negotiating with technology companies and hoping that they eventually will assist law enforcement out of a sense of civic duty — is unlikely to work. Technology companies operate in a highly competitive environment. Even companies that really want to help must consider the consequences. Competitors will always try to attract customers by promising stronger encryption. That explains why the government’s efforts to engage with technology giants on encryption generally do not bear fruit. Company leaders may be willing to meet, but often they respond by criticizing the government and promising stronger encryption. Of course they do. They are in the business of selling products and making money. In other words, tech companies are doing it for the clicks. This is a super-lazy argument often used to belittle things someone disagrees with. (A phrase that has since been supplanted by "fake news.") This sort of belittling is deployed by (and created for) the swaying of the smallest of minds. Having painted the tech industry as selfish, Rosenstein airlifts himself to the highest horse in the immediate area. We use a different measure of success. We are in the business of preventing crime and saving lives. The Deputy AG makes a better point when he calls out US tech companies for acquiescing to ridiculous censorship demands from foreign governments. If companies are willing to oblige foreign governments with questionable human rights records, why can't they help out the US of A? It's still not a very strong point, at least not in this context. But it is something we've warned against for years here at Techdirt: you humor enough stupid demands from foreign governments and pretty soon all of them -- including your own -- are going to start asking for favors. It would be a much better argument if it wasn't tied to the encryption war Rosenstein's fighting here. Comparing censorship efforts and VPN blocking to the complexities of encryption isn't an apples-to-apples comparison. Blocking or deleting content is not nearly the same thing as opening up all users to heightened security risks because the government can't get at a few communications. Whatever it is Rosenstein's looking for, he's 100% sure tech companies can not only provide it, but should also bear all liability for anything that might go wrong. We know from experience that the largest companies have the resources to do what is necessary to promote cybersecurity while protecting public safety. A major hardware provider, for example, reportedly maintains private keys that it can use to sign software updates for each of its devices. That would present a huge potential security problem, if those keys were to leak. But they do not leak, because the company knows how to protect what is important. Companies can protect their ability to respond to lawful court orders with equal diligence. It's that last sentence that's a killer. This is Rosenstein summing up his portrayal of tech companies as callous, profit-seeking nihilists with a statement letting everyone know the DOJ will pin all the blame for any future security breaches on the same companies who got on board with the feds' "nerd harder" demands. This is a gutless, stupid, dishonest speech -- one that deliberately misconstrues the issues and lays all the blame, along with all the culpability on companies unwilling to sacrifice users' security just because the government feels it's owed access in perpetuity. 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For much of the year, Sprint has been trying to butter up the Trump administration to gain approval for a merger with T-Mobile. Sprint's previous attempts at such a merger were blocked by regulators, who correctly noted that reducing wireless competitors from four to three would raise rates and reduce carrier incentive to improve and compete. But with the Trump administration spearheading a new wave of mindless merger mania in the telecom space, Sprint is poised to try again, and is expected to formally announce its latest attempt to acquire T-Mobile in just a matter of weeks. Of course like any good merger, that will involve countless think tankers, lobbyists, consultants, fauxcademics and other policy voices willfully ignoring M&A history, insisting that the deal will magically spur competition, save puppies, cure cancer, and result in countless thousands of new jobs. But many respected sector analysts are busy noting that the job is expected to be a mammoth job killer. How much of a job killer? One analyst predicts the merged company could result in more net job losses than the total number of employees Sprint currently has: "Together, the companies reported employing 78,000 in their most recent disclosures. Sprint, based in suburban Kansas City, accounts for 28,000 of those, and T-Mobile for 50,000. Merging the companies, said a report by Jonathan Chaplin of New Street Research, could eliminate “approximately 30,000 American jobs” — which is more than Sprint employs. Craig Moffett, another major Wall Street analysts, has previously predicted the net job losses could possibly be somewhere closer to around 20,000: "Last August, (Moffett) put pen to paper and found reason to expect 20,000 job cuts from a merger. Moffett’s report showed most of those would be retail workers. Sprint and T-Mobile each want more retail outlets, but a combined company wouldn’t need as many stores as both have currently. It would make business sense to close stores near each other. “We conservatively estimate that a total of 3,000 of Sprint and T-Mobile’s branded stores (or branded-equivalent stores) would eventually close,” Moffett’s report said. Each of those, he said, would mean the loss of five full time jobs, or 15,000 jobs in total. A merger also would threaten “overhead” jobs, the kind concentrated in headquarters such as Sprint’s and T-Mobile’s in the Seattle area. Of course that will be the precise opposite of the claims you'll start seeing over the next few weeks as the lobbying sales pitch for the megamerger heats up with the help of an often unskeptical media. Ignored will be the fact that the government's decision to block AT&T from acquiring T-Mobile helped foster some real competition in the space, resulting in the return of simpler, unlimited data plans. Also ignored will be the fact that the remaining three companies -- T-Mobile, Verizon and AT&T, will have less incentive than ever to engage in real price competition, potentially resulting in unlimited data being killed off again. Most of these sales pitches will attempt to paint a picture where Sprint was going to collapse anyway, despite a deep-pocketed owner in Japan's Softbank -- and an improving balance sheet. But there are countless M&A options for the company that don't involve reducing competition in the space, including an acquisition by Charter and Comcast (who want to bundle wireless with cable and broadband service) or French-owned Altice, which has been gobbling up U.S. cable companies and has expressed its own interest in jumping into the wireless space. Despite the obvious job losses and competition reduction, few expect the Trump administration to block the deal, since approving it will let the President, as is his tendency, proudly convince his loyal base he helped create jobs that technically don't exist. Sprint and its Japanese owner Softbank already paved the road for this bullshit parade earlier this year, when it let Trump falsely claim credit for thousands of Softbank jobs that technically may never arrive, and were announced long before Trump was even elected anyway. In very 2017 fashion, expect none of this to matter once the merger sales pitch begins in earnest over the next several weeks. Permalink | Comments | Email This Story

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