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There's such a feeling of helplessness mixed with anger when one of your devices crashes or is lost. All of those files and photos are gone in a second unless you've remembered to back them up somewhere. Today's deal of 88% off of Dripbit Online Backup's Lifetime Subscription could be a handy service to have. You'll be signed up for the "Just Right" plan of 1TB of cloud storage that can be shared across 5 computers with top-notch firewalls and AWS 256 encryption. You will have access to the files you need anytime with any web browser (or app) and can even stream music and movies straight from the cloud to save space on your computer. This deal ends soon, so head on over to the store today. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Senator Bob Corker, who heads the Senate Foreign Relations Committee, appears to now be calling for the NSA to spy on more Americans, rather than fewer, arguing that the metadata collection program that is currently being debated in Congress is so small that he considers it negligent. "It's almost malpractice," Corker said at a breakfast for reporters hosted by The Christian Science Monitor. "That's the best word I can use to describe the amount of data that is being collected." Corker, who said the NSA's data collection needs to be "ramped up hugely", was reacting to a closed-door briefing that national security officials held Tuesday to brief senators on federal surveillance programs.... [....] "I think there was an aha moment (Tuesday) for people on both sides of the aisle when we realized how little data is being collected.... It's beyond belief how little data is part of this program, especially if the goal is to uncover terrorists." Now, this is the same Senator Corker who originally was quite disturbed when he first heard about the very same program after it was leaked by Ed Snowden (suggesting he was completely unaware of it prior to it leaking, despite being a Senator). Back in June of 2013, he sent an angry letter to the President about how such "broad collection" raised "extremely serious concerns." But now he thinks the NSA should actually be spying on more Americans? It sounds like the NSA briefing that was just given to Senators was designed to really ramp up the fear-mongering.Permalink | Comments | Email This Story

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Oh no! The sky is falling! Piracy is decimating musicians! No, it's not. My latest law review article rebuts these cries and shows how new technologies have allowed musicians to participate in every step of the process of creating, developing, and marketing music. The Recording Industry Association of America (RIAA) has claimed that piracy is "too benign of a term to adequately describe the toll that music theft" takes on musicians. And it has claimed that "there are fewer people trying to make money as musicians today" and that, in 2012, "the number of people who . . . describe themselves as musicians has declined since 1999 by 41 percent." Although such numbers sound dire, I explain that the 41 percent figure is vastly overstated. Recalculating the figures for Ars Technica, Matthew Lasar found that the decline was only 8.4 percent. The RIAA's response was that it had not compared data between years, but rather had "looked at MONTHLY data: one month in a year vs. another month a year." Of course, such an exercise allows one to cherry-pick data to achieve desired results. It is no surprise, then, that the RIAA conceded that "different months yield different figures." And, as Mike Masnick pointed out, monthly data "fluctuates pretty drastically" (for example, July figures might be higher because of more weddings). The remainder of the article provides an overview of tools available to musicians. The first step in the production process is creation. There are numerous programs that allow users to create their own music, such as Logic Pro X, Cubase, and Pro Tools 11. The most well-known, GarageBand, lets users assemble as many as 32 tracks of instruments such as drum beats, synthesizer riffs, and guitar sounds. Next comes distribution. Twitter and YouTube are two prominent examples. By shrinking the gap between bands and their fans, Twitter has offered a platform for musicians to connect with their followers. Bearstronaut, for example, used Twitter to release a new single and gain more followers by using a "Tweet for a Track," by which fans retweet a song to their followers and get the single in return. YouTube is another tool that musicians have used to distribute their works. Alex Day, for example, gained more than half a million subscribers and roughly 100 million views within six years of creating a YouTube channel, and he released three singles at once, which "kill[s] chart placement" but is "better for the fans and for the music." Musicians also can do their own marketing. Bandcamp provides musicians with "a rock-solid platform for selling your music and merchandise" and offers "up-to-the-instant stats system [that] reveals who's linking to you, where your music is embedded, which tracks are most and least popular, what's being downloaded and when, [and] which search engine terms are sending traffic your way." Other examples include the Coalition of Artists and Stakeholders (CASH) (an open-source, nonprofit organization "focused on educating and empowering artists and their fans") and ReverbNation's Music for Good Program (which allows artists to split their profits with a charity). Next comes royalty collection. CD Baby Pro offers worldwide music distribution and endeavors to "give independent artists the same royalty collection resources that major label artists" use. TuneCore distributes music to dozens of online services, sends royalties to participating musicians, and provides "detailed sales and daily iTunes, Spotify, and Amazon Music reports." To carry out each of the above steps, musicians can raise funds from various services. The most prominent is Kickstarter, which, as of this writing, has raised $1.7 billion from more than 8 million people to fund 84,000 creative projects. Indiegogo has looser guidelines that "essentially allow for the crowdfunding of anything—projects, trips, charities, and personal wishes." And Patreon allows users to offer ongoing support for continued work and gives content creators the ability to set rewards such as "giv[ing] out their personal cell numbers, . . . play[ing] an online game with patrons, or even provid[ing] behind-the-scenes production diaries." In recent years, touring has become an important source of revenue. Market leader Songkick aggregates concert information, allows users to receive notifications of when bands will be in town, and includes a database of fans' accounts of their concert experiences. Bandsintown presents the bands users might be interested in as word bubbles, with the boldness level of the name indicating the app's confidence that the user will like the group. Timbre allows users to enter their location and receive a list of bands playing in their area. In addition to all these tools, musicians can forge direct connections with fans. Our own Mike Masnick, in this and other fora, has been a pioneer in articulating a business model based on connecting with fans and giving them a reason to buy. Just a few examples: Amanda Palmer, who in three experiments in one month totaling ten hours, made $19,000 from Twitter (compared with "absolutely nothing" from 30,000 record sales) after creating a "Friday Night Losers T-Shirt," hosting a webcast auction, and offering access to a recording studio event for the first 200 fans to request access. Josh Freese, a drummer who offers, for varying levels of payment, drum lessons, visits to museums or Disneyland, clothes from his closet, his Volvo station wagon, service as a personal assistant, a spot on tour, or personal songs. Jill Sobule, who similarly offers, for various levels of payment, access to shows for a year, names mentioned on a "‘thank you' song," concerts at individuals' houses, or the chance to sing on an album. So don't listen to the record labels. Musicians are not confronting doom and gloom. Unlike the late 20th century, in which record labels played a crucial role, musicians today have the tools to undertake every step of the creation, distribution, marketing, and fundraising processes themselves. The irony of the labels' flawed arguments is that they ignore that many independent musicians are thriving today, using tools their predecessors could only have dreamed about. No longer is the 20th-century, label-reliant model needed for success. The record labels may continue to witness the decline of their business model, but musicians may find that "the sky is rising." Michael A. Carrier, law professor and author, Innovation for the 21st Century Permalink | Comments | Email This Story

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Last fall, we noted that UK Home Secretary Theresa May had made it clear that if her Conservative Party were re-elected, one of the first orders of business would be a new "Extremist Disruption Orders" plan that would outlaw any speech or events that the government declared "extremist." She wasn't kidding around. Following last week's election in the UK, David Cameron appears to be announcing just such a plan to basically wipe out anything resembling free expression in the UK (and, yes, I know, the UK doesn't view free expression in the same way as the US does, and there's nothing like the First Amendment there -- you don't have to point that out in the comments). The broad-reaching plans seem absolutely insane: The orders, the product of an extremism task force set up by the prime minister, were proposed during the last parliament in March, but were largely vetoed by the Liberal Democrats on the grounds of free speech. They were subsequently revived in the Conservative manifesto. The measures would give the police powers to apply to the high court for an order to limit the “harmful activities” of an extremist individual. The definition of harmful is to include a risk of public disorder, a risk of harassment, alarm or distress or creating a “threat to the functioning of democracy”. "A risk of harassment"? "Alarm or distress"? That could include just about anything. A "threat to the functioning of democracy"? Does that include public protests or arguing against the current leadership? The likelihood of abuse seems absolutely, astoundingly, massive. They would include a ban on broadcasting and a requirement to submit to the police in advance any proposed publication on the web and social media or in print. The bill will also contain plans for banning orders for extremist organisations which seek to undermine democracy or use hate speech in public places, but it will fall short of banning on the grounds of provoking hatred. Yes, that's right. If you wanted to tweet something that creates "distress," you'd have to first submit it to the police to get their okay. Oh, and here's the really insane part. David Cameron is claiming that he's doing this in the name of free speech. No joke: “For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone. It’s often meant we have stood neutral between different values. And that’s helped foster a narrative of extremism and grievance. “This government will conclusively turn the page on this failed approach. As the party of one nation, we will govern as one nation and bring our country together. That means actively promoting certain values. “Freedom of speech. Freedom of worship. Democracy. The rule of law. Equal rights regardless of race, gender or sexuality. “We must say to our citizens: this is what defines us as a society.” Did you hear that? That's the sound of actual free speech supporters having their collective jaws hit the floor. Here he is, saying that for too long we've been "tolerant" of free expression, and thus we have to ban it, in support of "free speech" and democracy. And he flat out admits that they no longer think "obeying the law" should keep you out of trouble. That's some incredibly Orwellian bullshit right there. As Glenn Greenwald rightly notes, once again it appears that the biggest threat to free speech is not from terrorism, but from those claiming to fight terrorism. He also points us to a video of Theresa May going on and on about how this is about "promoting British values" and stopping those who "look to divide our society." So, they don't want to "divide" society... and they're going to do that by telling everyone they can only have views that the government finds acceptable. In short, the current UK government is promoting an out and out war on free expression, by saying you can only have free expression if you spout government approved thoughts.Permalink | Comments | Email This Story

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Once again, we find the public sector lagging behind the private sector in terms of efficiencies, technological aptitude, etc. In this particular case, the public sector is slipping down the "hiding your hooker/gambling purchases from your employer" curve: A not-yet-released Defense Department investigation has found civilian and military employees used government charge cards to make more than $1 million in purchases at casinos and to pay for escorts, according to an internal report. In the private sector, these purchases would normally be covered up by cash advances or by utilizing savvier services who bill customers under innocuous names. Over at the Pentagon, no one seems to care. Just put in on the DoD's tab! Who's going to take a close look at a few thousand credit card statements? Well, the Inspector General apparently did. And discovered that this occurred 4,437 times in a one-year period. Of course, the Pentagon is trying to play this down by pointing out that this total represents only 0.5% of the charges accrued over the same period. Left unaddressed is the principle of the thing, wherein taxpayers are often displeased to find their funds have been spent on hookers and roulette spins. And, of course, this would be displeasure in addition to the preexisting disgruntlement about the normal, everyday spending that helps keep the country operating at a steady clip deficit. The DoD official also offered this reassuring statement that safely hedges the almost-assertions while simultaneously undercutting most of the intended reassurance. Some or all of the charges may have been paid by the individuals, rather than the government, according to the official. This statement is a little better, although essentially meaningless without the context of the full IG report. The Defense official said the individuals who used their cards inappropriately will be held accountable, noting action has been taken on 364 cases and an additional 79 cases are pending action. But the most interesting statement offered in defense of Pentagon employees and their indiscretionary spending is this one: One official speculated to Politico the individuals may have used their government -- instead of their personal -- cards to hide the illicit activities from their spouses. I'm not sure if that makes me feel better or worse about these government employees. This is very much a human nature problem. And the government still hires from the human race because there are currently no better options. No matter how much we'd hope it would hold potential and current employees to a higher standard (perhaps higher than one we're willing to apply to ourselves), there's still going to be a certain amount of misconduct and malfeasance. But even if occasional abuse is unavoidable and the possible motivating factors understandable, the behavior is still far from acceptable. Are we supposed to feel better that this scenario will more likely result in the repayment of charges by the employee who racked them up? Do we raise a half-hearted cheer to the possibility that DoD employees aren't trying to abuse taxpayer funds but rather hiding their gambling and escort purchases from their significant others? I can see how facing the internal wrath of a Pentagon supervisor would be preferable to discussing this activity with a spouse… or their lawyer. But it's still a betrayal of trust -- on several levels -- even if it is only a very small percentage of the whole. Permalink | Comments | Email This Story

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Annoyance with the cable industry appears to have reached the tipping point, with consumers fed up with skyrocketing prices, inflexible programming options and some of the worst customer service in any U.S. industry. The cable industry's ingenious solution? Stop using the word cable. Last week, the cable industry held its annual trade conference, previously dubbed "The Cable Show." Trying to distance itself from the aging, negative associations with the word "cable," the industry has decided to rename the conference The Internet & Television Expo. Former FCC boss turned top lobbyist Michael Powell "hates" the word cable and wanted to turn the page on the word's negative connotations: "I hate the name," Michael Powell, president of NCTA, the cable industry’s trade group, said Tuesday. "It doesn’t fairly capture what they do."...This year’s trade show was renamed to "be more centered around its future as it's associated with the Internet," Powell said on stage at the conference. The term "cable company," he said, "has a proud history, but it needs to be retired." Of course when your entire business revolves around using coaxial cable to deliver Internet and television service, deciding to drop the word in the hopes of forcing a brand refresh might be an uphill climb. Most attendees of the show couldn't remember the new name, and just wound up calling the conference by the old name for simplicity's sake:"It's called Internet something something something, right?” said Chris Gagliano, who works at Anvato Inc., which provides online video software. "I don’t even know what it stands for." Most people preferred to call it the “cable show,” even if that’s not the name anymore. "I'll probably call it that forever," said Brian Hanrahan, a regional sales manager at Optelian, which helps build broadband networks. "Until everyone else starts calling it 'INTX,' I’m going to call it the cable show." Clearly, it's going to take a lot more than a simple word change to erase memories of waiting days for the cable man or spending four hours trying to get an answer from Comcast's kafka-esque phone support system. Atrocious customer service certainly isn't the word "cable's" fault. It's thanks to a lack of competition and the resulting apathy, which by proxy results in skimping on subcontractor and support quality. Eliminating the word cable in the hopes of fixing this industry chain of dysfunction is kind of like trying to put out a forest fire by proudly proclaiming it's a walnut -- it's just not going to get to the root of the problem.Permalink | Comments | Email This Story

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Perhaps, like me, you've never really understood the curious ban some airflights and airlines have had on mobile and electronic devices during flights, take-offs, and landings. Perhaps, like our Jefe, Mike Masnick, you've dismissed the requests from flight attendants that those devices be fully powered down out of hand, because you too are a rebel the likes for which this world is wholly unprepared. And maybe you too cheered when the FAA summarily dismissed these silly rules way back in 2013, thinking that the madness of a few moments without our favorite devices had finally come to an end. But then, as you may know, the Association of Flight Attendants sued the FAA in order to retain the ability to lord over your smart-phones, tablets, and computers on flights. Notably, the AFA's filing made essentially zero claims having anything to do with the safety of electronic devices on the flights. Instead, their argument centered on whether the power to decide whether flight attendants could treat passengers like children who hadn't finished their vegetables resided with the FAA, or if the AFA should have some input. Well, the court has ruled and has firmly told the AFA and flight attendants to go dangle. In this case, it really does not matter whether Notice N8900.240 is viewed as a policy statement or an interpretive rule. The main point here is that the Notice is not a legislative rule carrying “the force and effect of law.” Perez, 135 S. Ct. at 1204. A legislative rule “modifies or adds to a legal norm based on the agency’s own authority” flowing from a congressional delegation to engage in supplementary lawmaking. Syncor, 127 F.3d at 95. That's court-speak for "nice try, now go away." Of course the FAA can make changes to flight rules as it pleases and, when it comes to the use of devices the ban for which has always been cast in the light of flight-safety, an association for flight attendants ought to have about as much input as a doctor's receptionist should have on medical policy. This tantrum of a suit, which is all it ever was, has been dismissed and we are finally free to play Angry Birds during takeoff. Free at last, free at last. More seriously, it's somewhat nice to see some aspect of security theater being done away with regarding anything to do with airplanes and flights. If we could just take this same tact with the rest of airport security, we'd be making a world of improvements. Permalink | Comments | Email This Story

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Compared to its early days, when releases of material like Collateral Murder dominated public discourse for weeks, Wikileaks is now only a shadow of its former self, eclipsed largely by Snowden's leaks. That's understandable, perhaps: Julian Assange has been holed up in the Ecuadorian Embassy in London for nearly three years, and it has been hard for the organization to raise funds to pay Wikileaks' running costs. However, that reduced visibility and activity doesn't mean it's not still releasing valuable material, particularly in the area of trade agreements. Today, it has published another interesting set of documents, this time from the field of surveillance: WikiLeaks releases ten months of transcripts from the ongoing German Parliamentary inquiry into NSA activities in Germany. Despite many sessions being technically public, in practice public understanding has been compromised as transcripts have been withheld, recording devices banned and reporters intrusively watched by police. WikiLeaks is releasing 1,380 pages of transcripts from the unclassified sessions, covering 34 witnesses – including 13 concealed witnesses from Germany's foreign intelligence agency, the Bundesnachrichtendienst (BND). The transcripts cover from the start of the inquiry in May 2014 through to February 2015. WikiLeaks has also written summaries of each session in German and English as the inquiry, due to its subject matter, is of international significance. This underlines an important aspect of Wikileaks' work: the fact that it seeks to make the documents it releases useful by providing commentary, summaries and indexes. Those valuable additions are often overlooked, but can play a crucial role in helping people understand the raw material provided. The German parliamentary inquiry has been rumbling on for a year now, but has gained renewed importance with the recent revelations that the German spy service, the BND, has been searching through its databases using "selectors" (keywords) provided by the NSA, with apparently no oversight. Not only were many of the targets for those selectors EU citizens, but they included senior politicians and industry figures, too. Here's Wikileaks' summary: One of the biggest scandals to emerge from the inquiry so far is the recent "selector" spy target list scandal where a BND official revealed that the agency was expected to spy on thousands of targets at the instruction of the NSA. These targets included members of the French government and European industry. This put into question Germany's suitability in taking a leadership role in the European Union. It also showed that international co-operation on mass surveillance, which has been marketed in public as a counter-terrorism measure, is in practice also used by the United States for the purposes of industrial espionage and geopolitical advantage vis-a-vis members of the European Union. The committee requested the full "selector" list of targets provided to the BND by the NSA. The committee was told that the US would first need to be asked permission for the list to be revealed to the committee (even in confidence). Last Wednesday, 6 May 2015, when the answer was meant to be delivered, stalling tactics were used, leaving the German public, and the Parliamentary inquiry, without any ability to understand what their own secret services are up to. The "selector" scandal has now reached the highest political echelons in Germany, with Angela Merkel's earlier outrage over NSA spying -- not least against herself -- looking hypocritical at best, or dangerously naive at worst. Wikileaks' latest release therefore comes at just the right moment for those seeking to understand what has been going on in Germany. It's also a timely reminder that Wikileaks is still able to perform an important service in this respect, despite its straitened circumstances. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Last week we wrote about an attempt by the EU's Trade Commissioner, Cecilia Malmström, to "save" the corporate sovereignty chapter in TAFTA/TTIP as more people wake up to its dangers, and resist its inclusion. Along with tinkering at the edges, her proposal for reform did have one more substantive idea: to create "a permanent multilateral investment court." The intention was presumably to address the key objections to investment-state dispute settlement (ISDS) tribunals -- that they are secret, unpredictable and have no conflict of interest rules or appeals process -- by importing some of the key strengths of traditional courts, which are open and impartial, follow precedent and allow appeals. Of course, that approach begs the question why new courts are needed at all, when national courts already exist. But it seems that we won't be having a debate on that particular issue, since the US has lost no time pouring cold water on the whole idea, as AFP reports: A senior US official rejected Monday an EU proposal to create an international investment court that was aimed at resolving one of the disputes holding up their free trade deal. The comments by US Undersecretary for International Trade at the Commerce Department, Stefan Selig, include the following claim: "The criticisms that they undermine governments' right to regulate, I think are just misguided," Selig said during a visit to Paris when asked about Malmstroem's proposals. As I wrote last year, far from being "misguided," the past experience with corporate sovereignty shows that those criticisms are entirely justified. Selig then goes on to say: The United States believes the ISDS mechanism "increases the security of companies willing to make investments and arguably makes that country, whether it's the United States or any country in Europe, a more attractive investment destination." But again, that assertion is belied by the facts. According to the European Commission's recently-updated figures, in 2013, the total US investment in the EU was €1.65 trillion; the EU investment in the US was even higher -- €1.69 trillion. The size of these numbers is the best indication that companies are more than happy to send money across the Atlantic, even without ISDS. The US refusal even to consider a major reform of corporate sovereignty poses big problems for the EU negotiators. It's clear that the strategy was to try to win over critics of ISDS by promising that its flaws -- admitted even by the European Commission -- would be fixed through the creation of a new court. With that option no longer on the table, it looks increasingly like TTIP's ISDS will simply involve some minor tweaks. However, last week another country was making its position on corporate sovereignty clear, reported here by the Budapest Business Journal: Hungary is against the inclusion of the investor-state dispute settlement (ISDS) clause in the Transatlantic Trade and Investment Partnership (TTIP) free trade agreement between the United States and the European Union, [Hungary's] Foreign Ministry state secretary István Mikola said yesterday following a convention of foreign trade ministers in Brussels. Since TAFTA/TTIP is what is known as a "mixed agreement," both the EU and all the member states must ratify it before it comes into force. If Hungary refuses to do that on the grounds that it contains ISDS, it's possible the whole deal would simply collapse (it's not clear what would happen in practice, because this is largely uncharted territory). Moreover, Hungary is not the only country that is likely to vote down TTIP if it includes ISDS: Mikola said that Hungary's views on the ISDS clause are shared by 6-7 other EU member states, but he did not name those states. That's further evidence that the central stumbling block for TTIP is corporate sovereignty. Indeed, it seems that ISDS is fast becoming as toxic as ACTA three years ago, when politicians rushed to dissociate themselves from the idea before rejecting it completely. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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There are lots of ways companies and people try to get around the abandonment of trademarks in disputes, from claiming a "secret menu" constitutes continued use to simply asserting that having bought a company means the now defunct brands have been incorporated into the new company. But it's simplicity that brings pleasure to me in my ripe old age, so I sort of appreciate this dispute over the trademark of the Electric Daisy Carnival music festival in which two semi-associated music promoters, one now a chef for the Williams sisters of tennis fame (not making that up), essentially claim that they allowed another music promoter to use the festival name for nearly two decades but didn't intend for it to be abandoned. There are actually two complaints before the USPTO to digest here, and the link above has a ton of back-story. The shorter breakdown is that the Electric Daisy Carnival festival put on by Pasquale Rotella has been in existence since 1997. It's something of a rave festival or whatever the kids are calling it these days, draws in something like four-hundred thousand fans a year, and is a staple at the Las Vegas Motor Speedway. In other words, this isn't some obscure get-together. Yet, despite it having gone on for eighteen years, former music promoter Stephen Enos, who now cooks for Serena and Venus Williams professionally, and current music promoter Gary Richards have filed separate complaints to cancel Rotella's trademark. Rotella's company, Insomniac, claims that this is a money-grab. Regardless of the motives, Enos and Richards both have uphill battles, given the clear abandonment of any trademark they might have had. "Trademarks are 'use it or lose it,' they're not like patents, where whoever thinks of it first wins," said Daniel M. Klerman, a professor at USC's Gould School of Law. "Even if there's no doubt that [Richards or Enos] used it first, abandonment is a pretty standard defense. To say, 'We haven't used this in 20 years, but we always intended to revive it,' that's a hard thing to do." You would think that any complaint after all this time would have to come with an explanation for the time-lapse riding side-car. In this case, there isn't any real defense even attempted. Let's first get Enos' take, since he filed his complaint first and we need to let him get back to whipping up Serena's eggs benedict. According to Enos' petition, Rotella later used the Electric Daisy Carnival name without his knowledge to promote a festival at the Coliseum in 1997. Enos claimed that he allowed the festival to continue so as not to disappoint fans in the nascent L.A. dance music scene but that he never intended to relinquish the trademark. Enos' attorney provided screenshots of previous Insomniac websites that said the name was "borrowed from Steve Kool-Aid's original creation." As Rotella continued to use the trademark through the '90s and 2000s, dance music became a lucrative festival phenomenon in America, Rotella first registered the Electric Daisy Carnival trademark in 2002 (he registered "EDC" in 2012, and re-registered "Electric Daisy Carnival" in 2010 ). Steve Kook-Aid was Enos' industry name because the dance music scene is a odd, odd place brah. Anyway, as you can see above, his argument mostly consists of claims that he was just trying to be cool, yo, and can he please have a chunk of the Electric Daisy Carnival value now that it's super successful? Well, unfortunately, there's no "being cool" exclusion to trademark abandonment and the time-lapse between the allowed use and the complaint, even with the nod in Enos' direction by Rotella, is pretty clearly abandonment. Richards, for his part, used to partner with Enos' event company. His explanation for the abandonment is essentially the same, but relies on "oral licenses" arguments in which he advocates not only for his own ownership of the trademark, but for Enos' as well. The two of them apparently had no idea the other was filing these things. Richards' petition says that he and Enos began using the Electric Daisy Carnival trademark in 1991 and that they granted an oral license to Rotella to use the name in 1997. But Richards' complaint said that he similarly never intended to turn over the rights to the trademark and that the mark belonged to him and Enos. The petition claims that Rotella "knowingly made a false, material misrepresentation of fact when he filed the Application, with the intent to defraud the United States Patent and Trademark Office by claiming that he was the true owner of the Mark." Even assuming that anyone buys Richards' claim that they simply gave Rotella an oral license to use the brand, that wouldn't explain why there haven't been any claims over the subsequent decade since Rotella first trademarked Electric Daisy Carnival. Neither does it relate to the abandonment of the trademark in use by either party. Certainly there is no trademark dispute in the opposite direction coming from Rotella, which you'd expect if either Enos or Richards were throwing their own Electric Daisy Carnival festivals. Sorry, guys, but abandonment rules here, even if you were trying to be cool twenty years ago. Permalink | Comments | Email This Story

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Not that long ago, a very common bike lock was rendered ridiculously insecure when it was revealed on the internet that a cheap plastic pen and some twisting skills were all that were needed to open the lock without a key. Lock picking has been around for centuries with some locks being easier to crack than others, making some people distrust various lock-makers or distrust certain lock-pickers. Whoever the "bad guy" is, keeping things secret and safe has been a challenge and will continue to be one. Here are just a few more examples of locks and insecure locks. Some (perhaps your?) Master Lock branded padlocks can be cracked in 8 tries or less. Thieves don't need a soda can shim -- anymore to break into these locks, and hopefully you don't keep anything really valuable behind a combination padlock. [url] The XPUZMAG lock is an unconventional device with a huge key that uses 6 pins to insert into its lock faceplate with 23 holes. It's not the most convenient key to carry around, but if you'd like to foil the casual lockpickers in your neighborhood, this lock would probably do the trick. [url] Alfred Charles Hobbs was an American locksmith who picked the Chubb detector lock in 1851. Before Hobbs demonstrated his lock picking skills, there was about a 70-year period of time when locks were considered to be pretty much perfect security, but after the 1850s, "perfect security" has been merely an illusion. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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Late last year, the IRS began dropping some of its more questionable asset forfeiture cases, most likely in response to reams of bad press about its sketchy enforcement of structuring laws. Many of these cases were built on nothing more than a series of deposits that came close to -- but never exceeded -- the $10,000 needed to trigger federal reporting. While the IRS may say it's looking for tax cheats, fraudsters and money launderers, its targets were often small, cash-based businesses like restaurants and vending suppliers. The IRS also announced that, going forward, it would only pursue asset forfeiture cases that showed the money came from an illegal source. The DOJ followed this up with its own policy shift that roughly matched the IRS's. Despite this change of heart, the IRS and DOJ are still pursuing a case against Lyndon McLellan -- a convenience store owner who had $107,000 taken from him by the feds late last year. McLellan -- on the advice of his banker -- began inadvertently "structuring" his deposits, again to "save" his bank from the burden of extra paperwork. There was seemingly no doubt his business generated the cash he deposited, but the IRS went after him anyway. McLellan's legal representatives (from the Institute of Justice) forwarded details of his case to legislators ahead of IRS testimony in front of the House Ways and Means Committee. One legislator took this time to confront IRS Commissioner John Koskinen about his agency's contradictory prosecution of McLellan. Without naming McLellan, Rep. George Holding (R-N.C.), a former U.S. attorney, asked Koskinen about the seizure: Holding: Are you saying that under the new policy, you have to aver that we have probable cause to believe an illegal act is taking place other than the act of structuring? Koskinen: Yes. Holding: You sure about that? Koskinen: That's what I'm advised by the people who run the Criminal Investigation Division. Holding: The staff pulled for me a case from North Carolina, from my former prosecutorial district, after your policy change. And I've read through the affidavit and the associated documents. There's no allegation of illegal activity, other than the act of structuring... Koskiken: If that case exists, it's not following the policy. This should have resulted in the IRS dropping the case, or at least providing something in terms of evidence justifying its continued pursuit of McLellan. If nothing else, the agency could have played this off as an unfortunate oversight by its prosecutorial arm. Instead of any logical outcome, this questioning resulted in the federal prosecutor handling McLellan's case claiming the real problem wasn't the pursuit of a bogus prosecution. No, the real problem here was people disrespecting the power of a gag order. Prosecutor Steve West emailed this to the Institute of Justice. I'm a bit concerned. At your request, I provided you a copy of the application for seizure warrant, which remains under seal with the Court, and now it appears it has been made available to a congressional committee? I do not know who did that, and I am accusing no one, but it was not from our office and could only have come from your clients. That was certainly not my intent in making this available. Whoever made [the document] public may serve their own interest but will not help this particular case. Oh, and that the public exploration of this contradictory prosecution hurt the feelings of West's office, if not the IRS itself. Your client needs to resolve this or litigate it. But publicity about it doesn't help. It just ratchets up feelings in the agency. And, finally, a half-off sale on sour grapes. My offer is to return 50% of the money. The offer is good until March 30th COB. As Reason's Jacob Sullum points out, there are valid reasons for filing these affidavits under seal. Notifying a structuring suspect of the IRS's intent to seize funds would probably result in a swift draining of targeted accounts. Whether the seizure is justified or not, there's at least a solid reason for the gag order. But in this case, the IRS had already seized the funds and moved forward with its prosecution. There was no "fear of flight," at least not in terms of the money in McLellan's accounts. West's nod to the power of sealed affidavits isn't due to fear of a compromised investigation, but rather due to his irritation at having one of his prosecutions publicly outed as running contrary to both the IRS's and DOJ's policies on structuring seizures. As for the 50% offer, that's similarly disingenuous. At this point, the IRS commissioner has publicly acknowledged that such a case would be in violation of IRS policy. It's already likely on its way to being dropped, despite the prosecutor's suggestion that publicly embarrassing his office and the IRS's forfeiture team might result in the case being pursued out of spite, rather than based on any evidence of criminal activity. Permalink | Comments | Email This Story

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So, just yesterday we had this story about Rightscorp successfully getting one part of a class action lawsuit against it dropped. Specifically, the court found that Rightscorp couldn't be sued for abuse of process for trying to use DMCA subpoenas (512(h) subpoenas) to get information on the people it was intended to shakedown for money. As we've noted, such subpoenas have been rejected when the RIAA tried to use them to get info on Verizon subscribers, but here the court held that merely using them was not "abuse of process." However, it still didn't argue that using them was legitimate. So, it's good to see that, in another Rightscorp case, a court had rejected the use of DMCA subpoenas. In that case, the ISP they were sent to, Cbeyond, refused to hand over the info, and the court sided with Cbeyond (who has since been acquired by Birch Communications). As in the RIAA/Verizon case, the court noted that 512(h) subpoenas are for stored content, not for transit providers like ISPs. The court cites that case, and then agrees with its findings (and others that have relied on the RIAA case), even if it's in a different circuit. The Court finds the opinions of the Courts of Appeals for the District of Columbia Circuit in RIAA and the Eighth Circuit majority in Charter persuasive and well-reasoned. The plain language of Section 512(h) requires, as a prerequisite to issuances of a subpoena, that a copyright owner must file a notice that complies with Section 512(c)(3)(A), including that identifies the allegedly infringing material to be removed or access to which must be disabled. CBeyond does not store or host on its servers the allegedly infringing material, and thus there is no allegedly infringing material to be removed or access to which must be disabled. Because Rightscorp therefore cannot satisfy the notice requirements of Section 512(c)(3)(A), a subpoena cannot be issued under Section 512(h). The court, however, does not agree to Cbeyond/Birch's request for sanctions, noting that since this particular issue hadn't yet been litigated in this circuit (the 11th), it wasn't "frivolous." That's fair enough, though, once again, it seems like Righscorp should know darn well about the RIAA v. Verizon ruling and others like it by now. And, yes, that's not technically binding in other circuits, but the reasoning is completely sound. So, while Rightscorp may have been briefly celebrating in getting the "abuse of process" claim tossed out, it's still a pretty fruitless endeavor as now it is learning first hand that DMCA subpoenas cannot be used the way that Rightscorp wants to use them.Permalink | Comments | Email This Story

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In a somewhat significant procedural move, the Senate failed to move forward on debating "fast track authority" or "trade promotion authority" after the Senate failed to come up with enough votes. The move to hold a debate on the fast track bill needed 60 votes, but only got 52 (with 45 against). Perhaps somewhat surprisingly, Senator Ron Wyden -- who had sponsored the fast track bill -- went against it as well, noting that he (and others) needed more promises on other issues before they'd move forward: Democrats that are supportive of Obama’s trade efforts huddled on Tuesday afternoon to plot their strategy. After nearly an hour, led by Senate Finance Committee ranking member Ron Wyden (D-Ore.), the bloc of about 10 Democrats said McConnell has not offered them sufficient guarantees. “The group is concerned about the lack of commitment to trade enforcement, which is specifically the customs bill,” Wyden told reporters after the meeting. “Until there is a path to get all four bills passed … we will, certainly most of us, will have to vote no.” And thus, we have this weird situation, again, where it's basically Republicans pushing for giving up the Senate's Constitutional authority on trade agreements, and handing it to a Democratic President. Either way, today's vote came down to a bit of horse trading: Democrats want McConnell to package the so-called fast-track Trade Promotion Authority legislation with three other pieces of legislation, including one that would help workers affected by the massive trade agreement and one to crack down on currency manipulation. But McConnell is refusing to guarantee that TPA, Trade Adjustment Assistance, the African Growth and Opportunity Act and a customs enforcement bill, which includes the currency manipulation provisions, will all be passed as part of a deal to open debate on the trade bill. The customs provision in particular is viewed as veto-bait for the White House, potentially complicating the trade package’s future if it is approved. The measure could force the administration to designate China as a currency manipulator, which the White House fears would spark a trade war with Beijing. What happens next, should be interesting. There will likely be a lot more negotiating and some more horse trading, but it seems that Senator Orrin Hatch, who has been the driving force behind the fast track bill, is pretty angry with Wyden for the situation today: Hatch, though, sounded pessimistic about another round of deal-making with Wyden. A visibility agitated Hatch told reporters that the bill had become a “mess,” adding that he was “through talking.” “I’ll always be open, but we’ve just been jerked around here too much,” Hatch said. “I expect people to live their word just like I do.” It still has a chance of things moving forward, but for the moment, the big push to get fast track through in order to allow the TPP agreement to be completed has had to hit the brakes.Permalink | Comments | Email This Story

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Copyright is one of the most important fields of law in the digital age, and also one of the most widely misunderstood. The EFF's Parker Higgins joins us to discuss to most common misconceptions about how copyright works, and how it's been abused. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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If you have multiple devices that charge via USB, this could help simplify your cord management. The Kinkoo 6-Port Charger is available in the store for only $35. This little device has a chip in it which detects your device and selects optimal charging speed and can charge up to 85% faster than your standard charger. It is compatible with all 5V USB-charged devices and is designed for US and international voltages (though it's only shipping to the continental US). If you're looking for a new way to support Techdirt, check out the Techdirt Deals for yourself. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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For quite some time now, there have been serious questions about how how the US was able to track down Osama bin Laden's "hiding place" to send in special forces to kill him. The story many people have heard was that the CIA was able to identify the "courier" who was used to help bin Laden communicate with the outside world, and then used that info to figure out where he was. And, a big part of that story -- especially as immortalized in the movie Zero Dark Thirty -- was that the CIA's torture program was instrumental in revealing that information. However, even before the big Senate Intelligence Committee study on the torture program was released, it was revealed that the torture program had nothing to do with identifying the courier, known as Abu Ahmed al-Kuwaiti. However, as you may have heard over the weekend, Seymour Hersh published a somewhat epic story, arguing that almost everything about the bin Laden killing was a lie, and a bunch of stories -- including everything about al-Kuwaiti -- were made up after the fact. Hersh's story is well worth reading (as are some of the criticisms of it that question some of the details). But one key aspect of the report is that finding a courier had absolutely nothing to do with finding bin Laden. Instead, it was a so-called "walk in" -- a Pakistani intelligence official who knew that Pakistan already had captured bin Laden -- who reached out to the US, seeking the $25 million reward for information leading to bin Laden's whereabouts. In other words, even the Senate's torture report gets the story wrong completely. In the Senate report, the identifying of al-Kuwaiti came from traditional interrogation, rather than the torture part. The CIA's response was basically that it was the torture part (the bad cop) that enabled the information to come out separately (good cop). But Hersh's report says the whole courier story is made up whole cloth. While some have questioned the details of Hersh's report, there's now independent verification from other sources to NBC that bin Laden was actually found via a "walk-in," rather than the courier (warning: stupid NBC autoplay video at that link). In Hersh's version, the plan had been to kill bin Laden, and later (perhaps weeks later) come up with a story saying bin Laden had been killed by a drone strike. A few things went wrong -- including one of the US helicopters famously crashing, and there was enough buzz that the US rushed to publicly announce the killing, including Obama's famous speech that, apparently, created havoc since it messed up a bunch of previously agreed to things about how the killing would be presented, and was done without first clearing it with the intelligence community. This resulted in the CIA being rushed in to concoct some cover stories, and some CIA officials quickly realized that this would be a fantastic way to pretend that torture had been useful: Gates also objected to the idea, pushed by Brennan and Leon Panetta, that US intelligence had learned of bin Laden’s whereabouts from information acquired by waterboarding and other forms of torture. ‘All of this is going on as the Seals are flying home from their mission. The agency guys know the whole story,’ the retired official said. ‘It was a group of annuitants who did it.’ (Annuitants are retired CIA officers who remain active on contract.) ‘They had been called in by some of the mission planners in the agency to help with the cover story. So the old-timers come in and say why not admit that we got some of the information about bin Laden from enhanced interrogation?’ At the time, there was still talk in Washington about the possible prosecution of CIA agents who had conducted torture. ‘Gates told them this was not going to work,’ the retired official said. ‘He was never on the team. He knew at the eleventh hour of his career not to be a party to this nonsense. But State, the agency and the Pentagon had bought in on the cover story. None of the Seals thought that Obama was going to get on national TV and announce the raid. The Special Forces command was apoplectic. They prided themselves on keeping operational security.’ There was fear in Special Operations, the retired official said, that ‘if the true story of the missions leaked out, the White House bureaucracy was going to blame it on the Seals.’ In Hersh's version of the story... the courier never even existed (bin Laden was actually pretty cut off from everything). He also notes that there was no firefight at the compound, since the Pakistanis had planned out the whole thing and made sure that no one was guarding bin Laden. But the US made up the idea of a firefight so that it could "kill off" the courier, al-Kuwaiti, who never really existed: There was another reason to claim there had been a firefight inside the compound, the retired official said: to avoid the inevitable question that would arise from an uncontested assault. Where were bin Laden’s guards? Surely, the most sought-after terrorist in the world would have around-the-clock protection. ‘And one of those killed had to be the courier, because he didn’t exist and we couldn’t produce him. The Pakistanis had no choice but to play along with it.’ In other words, if true, not only did the torture not produce the courier, there was no courier at all. And the whole debate about whether or not Khalid Sheikh Mohammed and Hassan Ghul gave up information on al-Kuwaiti during torture efforts or during regular interrogations is entirely meaningless. The whole thing was fiction, invented after the fact. For what it's worth, there were other stories concerning the torture program that seem equally bizarre in retrospect, if Hersh's story is true. Take this Daily Beast article about al-Kuwaiti, in which it claims that one guy was interrogated, and denied ever hearing of al-Kuwaiti: Shortly after the Sept. 11, 2001, terrorist attacks, detainees told CIA interrogators about an especially important courier who went by the name Abu Ahmad al-Kuwaiti. A series of subsequent interrogations, including one of Khalid Sheikh Mohammed, confirmed the courier's importance. In 2004, al Qaeda operative Hassan Ghul revealed that the courier was close to Faraj al-Libi, who replaced Mohammed as al Qaeda's operational commander after Mohammed's arrest. A year later, al-Libi himself was captured, and he protested so adamantly that he'd never heard of al-Kuwaiti that the CIA took it as further evidence that he was their man. Either way, the idea that torture had anything to do with anything is growing progressively weaker... and yet, we still have people defending the torture program, and no one is ever likely to be punished legally for it.Permalink | Comments | Email This Story

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There has been some concern all along that the new USA Freedom Act, isn't necessarily a good deal -- but for the most part folks in the civil liberties world tended to agree with the general view well presented by Access, that the USA Freedom Act is "better than nothing, but less than we deserve." That is, it is reform in the right direction, if very limited. Yes, there were some who disagreed, leading to a bit of a split among individuals and groups who are normally together on issues like this. Last week's big ruling about NSA surveillance under Section 215 throws a wrench in just about everything, however. It was a huge win, but it immediately raised a bunch of questions. Currently on the table (and requiring some sort of vote before June 1st -- or Section 215 disappears...) are two main proposals. The USA Freedom Act, which renews Section 215, but somewhat limits the ability of the NSA to use that authority for bulk collection, and Mitch McConnell's bill that just re-authorizes Section 215 straight up, through 2020. Before the ruling last week, McConnell's plan seemed absolutely ridiculous. But revisit it under last week's ruling. One could make the argument that if Congress just took up McConnell on his offer, and renewed 215... it would still lead to the end of the bulk data collection, because the Second Circuit has now said that Section 215 doesn't authorize such a program. This, of course, would be subject to an appeal and a big fight and an eventual Supreme Court decision, so there's some risk involved and it might not end up where things are now. But, suddenly, one could argue that McConnell's bill actually would cut off the program that people are so focused on killing off (leaving aside the other surveillance programs). And, given that fact, the USA Freedom Act seems like even less of a good deal, because it actually lays out more specifically ways in which the NSA can collect data, if probably not quite everyone's data. So, under that ruling again, it's arguable that the current USA Freedom Act would lead to greater NSA surveillance than even renewing Section 215! That's kind of mixed up and crazy. Either way, this shakeup has made people realize that USA Freedom may no longer be the best option on the table. There's a new ground floor to deal with here -- and that means that folks like the EFF, who grudgingly supported USA Freedom as an interim step, have now pulled their support, arguing that USA Freedom needs much more in it to make it worthwhile again: In light of the Second Circuit’s decision, EFF asks Congress to strengthen its proposed reform of Section 215, the USA Freedom Act. Pending those improvements, EFF is withdrawing our support of the bill. We’re urging Congress to roll the draft back to the stronger and meaningful reforms included in the 2013 version of USA Freedom and affirmatively embrace the Second Circuit’s opinion on the limits of Section 215. Most importantly, the Second Circuit’s correct interpretation of the law should be expressly embraced by Congress in order to avoid any confusion going forward about what the key terms in the statute mean, especially the terms “relevant” and “investigation.” This recognition could be in the bill itself or, less preferably, in legislative history. The House Judiciary Committee has already included such language in its report to the full House of Representatives, but now the Senate must include the language in the bill or in its own legislative history. This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection. As the EFF statement notes: This is also an opportunity and a new context for Congress to address the shortcomings of the newly introduced USA Freedom Act that we previously wrote about. Congress should put back key provisions that were dropped along the way as well as remove those that were introduced at the behest of the intelligence community. First, the "super minimization" procedures, which were key privacy procedures that mandated the deletion of any information obtained about a person not connected to the investigation, should be reintroduced. Key provisions establishing a higher legal standard and compliance assessment for the use of pen register/trap-and-trace devices, legal standing to sue the government over surveillance practices, and the original transparency provisions allowing government and corporate disclosure of surveillance orders should also be resuscitated. Second, provisions introduced by the intelligence community that must be deleted include an increase in the maximum sentence for material support to terrorism to 20 years. Another change was the introduction of a clause allowing the intelligence community to obtain an emergency exception to spy within the United States on a “non-United States person” for 72 hours—without any court order. These were added as “sweeteners” without any public showing that they are necessary. The next few weeks are going to be rather interesting. At the very least, last week's ruling threw a bit of a wrench into the way most people expected this fight to play out. The Second Circuit decision has changed the playing field. Members like Senators Leahy and Mike Lee and Representatives Jim Sensenbrenner, Robert Goodlatte, and John Conyers should be applauded for working incredibly hard to get the USA Freedom Act through Congress. Yet as a result of the Second Circuit decision, the USA Freedom Act's modest changes appear even smaller compared to the now judicially recognized problems with the mass collection of Americans’ records. We've supported the USA Freedom Act through all three iterations, more reluctantly each time, but with this new court opinion we’ve decided that Congress can significantly strengthen the bill if we are to support it.The Second Circuit aptly compared the current debate to the troubled times of the 1970s. Two years ago Senator Leahy mentioned that his first vote in the Senate was for the Senate resolution that created the Church Committee. The Church Committee investigated the intelligence community for three years and ushered in the Foreign Intelligence Surveillance Act in 1978—one of the most robust surveillance reform bills ever. In that same speech, Senator Leahy vowed to "recalibrate" a failing surveillance system via the USA Freedom Act. We urge Senator Leahy and others to draw upon the vigor of that first vote to push for a stronger reform bill. The Second Circuit’s decision mandates we not settle for less and that we strengthen the USA Freedom Act so it better protects our rights and freedoms. Permalink | Comments | Email This Story

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I've been a Pink Floyd fan for most of the time I've been alive, so it was rather disappointing to see band leader and professional misanthrope Roger Waters recently come down with a terrible case of "get the hell off of my lawn." Speaking to a reporter earlier this month, Waters, the man who once blasted oblivious, recording industry bean counters in "Have a Cigar," assailed Silicon Valley as a corrupt den of "rogues and thieves." Rogers also pined for a simpler age -- one when musicians and artists were screwed more directly by their music label:"Most of all I feel enormously privileged to have been born in 1943 and not 1983, to have been around when there was a music business and the takeover of Silicon Valley hadn't happened and, in consequence, you could still make a living writing and recording songs and playing them to people,” the bass guitarist and singer said.Right, because as this outlet has covered extensively, the Internet has destroyed the music industry, and it's simply impossible to make any money off of art in this day and age. The fact that the Internet and piracy effectively turned albums into promotional material to sell merchandise and concert tickets is a very difficult idea for older generations to grok, but it's still kind of painful to see a rock hero of my youth fall victim to aggressively rigid neurons. Waters doesn't stop there, and proceeds to trot out a litany of well-tread conflations, distortions and other flimsy arguments, joining folks like U2 manager Paul McGuinness in no longer understanding how the music industry he's a part of (kind of, since he hasn't released a new album in 23 years) actually works:"When this gallery of rogues and thieves had not yet interjected themselves between the people who aspire to be creative and their potential audience and steal every f***ing cent anybody ever made and put it in their pockets to buy f***ing huge mega-yachts and Gulfstream Fives with. These … thieves! It’s just stealing! And that they’re allowed to get away with it is just incredible." Waters went on to say that music lovers must take some responsibility for this parlous situation. “I blame the punters as well to some extent, a whole generation that’s grown up who believe that music should be free,” he said. "I mean why not make everything free? Then you could walk into a shop and say ‘I like that television’ and you walk out with it. No! Somebody made that and you have to buy it! 'Oh, I'll just pick up few apples.' No! Some farmer grew those and brought them here to be sold!"And here you were foolishly thinking that the Internet managed to open a massive new universe of music distribution possibilities and business models, helping countless artists connect more directly with their fans. As we've noted probably more times than can be counted, "free" isn't the business model -- free is part of one potential business model, and when done right, resonates incredibly well with consumers. It's certainly fine if you don't like that, but that doesn't really change reality in the age of broadband and piracy. Of course if it makes Roger feel any better, the same wolfish recording industry Roger used to mock is still there at the end of the gravy train, working tirelessly to prevent artists from seeing their just deserts in the Spotify age. There's certainly plenty to criticize about some specific new Internet-based business models where artists still get screwed; but Waters doesn't really do that -- he just shakes his cane at the general direction of the Internet and "pisses and moans," as my grandfather used to say. I'll of course never stop loving Pink Floyd ("Animals" in particular), and Waters' lessons on critical thinking, empathy and alienation are pretty much bone-grafted to my personality. Sadly though, he's also now a perfect example of the dangers of letting your aging synapses get so rigid you can't see new forest growth for the trees -- since I'd like to believe, maybe foolishly, that's not an inevitable symptom of aging. Of course I was one of those deviant rogues who helped destroy the music industry by swapping free tapes like this one:Permalink | Comments | Email This Story

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Earlier this year, we discussed an interesting leak from December 2013 revealing discussions about the creation of a new transatlantic Regulatory Council as part of the TAFTA/TTIP agreement currently being negotiated. The central idea was to give a new body powers to vet proposed laws and regulations on both sides of the Atlantic, with a view to promoting trade and regulatory convergence -- two of TTIP's stated aims. Further leaks this year confirmed that negotiators are still working on implementing this idea in the agreement. Now Corporate Europe Observatory (CEO) has obtained yet another leak, but not one from the TTIP talks. Instead, this is an internal document from the European Commission, which proposes setting up a similar regulatory body for the EU, independently of TTIP: A new bureaucratic body is to have considerable power to stop the Commission from tabling proposals that don't adhere to a set of business-friendly principles. Furthermore, the Commission wants to be able to pull an "emergency brake" if its proposals are significantly changed in the "wrong" direction by either the Council or the European Parliament -- could be laws improving working conditions, could be environmental regulation. The leaked document is entitled "Better regulation for better results -- An EU agenda", ostensibly to be released later in May. One aspect of the proposed system is that all new regulations would require impact assessments. Although that's sensible enough, there's a catch: if modifications are made to proposed regulations later on -- for example by the European Parliament, which frequently amends texts in this way -- that fact could be used to put a brake on the legislative process pending further examination: Imagine if the European Parliament agreed with the Council on a compromise that would introduce more ambitious social or environmental goals to a law proposed by the Commission, for instance if a proposal that would ban a few "endocrine disruptors" due to a damaging effect to children would be extended to cover more substances. Such a scenario would then allow the Commission to pull the brake and call for an independent investigation. This would enable any business lobby coalition to regroup and focus on a particular outcome of the assessment, it could slower the procedure substantially, and possibly change the upcoming law to its original, less ambitious form. This would clearly act as a disincentive for MEPs to try to improve legislation, since doing so would lead to delays and more lobbying that might make it even worse. In this way, the proposed system would have a chilling effect on the more democratic parts of the European Union's legislative process, and enhance the powers of the (unelected) European Commission. Another important element of the proposal that is not quite what it seems concerns transparency: It is striking how much the leaked document goes on about public consultation and transparency. “Lighten the Load – Have Your Say” reads the appealing slogan, depicting an ostensibly new style of open governance from the Commission, where business and citizens are to be able to comment again and again on a proposal at almost every stage of the decision process, starting from the very first inception of an idea. That's misleading because of parallel moves by the European Commission to strengthen and broaden the protection of "trade secrets," as another report by CEO reveals. In practice, then, what greater "transparency" would really mean would be greater opportunities for businesses to lobby during all phases of drawing up new laws and regulations. The public, by contrast, would not have access to the full range of materials, some of which would be deemed "trade secrets." What's striking is that this one-sided kind of transparency is exactly what the US is asking for in TAFTA/TTIP: This deregulatory push is also clearly related to TTIP, where both businesses and the US government have asked for more "transparency" and "stakeholder participation" in the EU at the very early stages of the legislative process, in fact well before a proposal is even presented to decision-making bodies. Another key TAFTA/TTIP demand from the US side is the increased use of impact assessments -- just as the new Scrutiny Board would require: TTIP will boost the use of impact assessments, and will introduce an emphasis on the effect new legislative proposals might have on US companies, on whether it is in sync with US rules, and whether it supersedes international standards. This "coincidence" suggests that the European Commission is already working on proposals that will meet US demands in TTIP, so that by conceding them -- in theory -- EU negotiators can obtain some of their key goals in return. That may already have happened elsewhere: there is speculation that one reason why the European Commission watered down its key Fuel Quality Directive (FQD) was to accommodate US demands in TTIP's energy chapter. As the TAFTA/TTIP negotiations proceed, we can probably expect to see more proposals from the European Commission that pre-implement US demands in this way. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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It's quite easy to get caught up in some trademark disputes where the trademarks are of a short nature and the industries are such that there are only so many ways to present a product. In those situations, it's too simple to point at two brands and claim they are similar, therefore, boom, trademark infringement. Instead, a little context matters. Let me show you what I mean using one recent example. Two soda makers, Big Red and Catawissa Bottling Company, are currently at odds over the latter's Big Ben's Soda brand. Big Red, the Austin-based maker of bottled red soda, is suing a small Pennsylvania soda maker, Catawissa Bottling Company, alleging that its Big Ben Cream Soda – also red in color – infringes upon its trademark, reports the Dallas Morning News. According to court documents, Big Red attorneys say Catawissa's soda "is currently packaged in the same manner as Big Red soda: a clear bottle bearing a water droplet and the 'Big Ben' words" which are themselves substantially similar to the 'Big Red' words," and that the typeface and graphics on the bottles of the two sodas are too similar. Again, you can see where a little context is important here. Both companies are making bottled soda. For that reason, we can pretty much just throw the part about both being sold in a clear bottle out, because, duh, there's nothing unique in the industry there. It's the other claims that are important. The least important of them is the "Big Ben" brand name, because "Big" is the only similarity, "Big" is a super-common word that isn't unique, while "Ben's" and "Red" have nothing to do with each other. The name of the "Big Ben's" brand is only relevant if the other claims Big Red makes are true: if the packaging graphics are similar, if the type-font of the words is similar, and if there is likely to be customer confusion resulting from either. Judge for yourself how valid Big Red's claims are. How similar is the packaging and font to you? If you answered that they don't look similar at all, then ding, ding, ding, you're correct! There seems to be little chance of customer confusion over the two brands at all, honestly. The only Big Red's dispute that might make some kind of sense would be if it thought that Catawissa had seen Big Red's popularity and tried to come up with a brand, any brand, that appeared just similar enough to try and make customers think it was a cheap knock-off. There would be a problem with that theory, however. It should be noted that Catawissa has been making Big Ben-brand soda since 1926. Big Red's trademark dates back to 1957, and was the result of a consumer nickname that stuck. It's a product almost a century old, in other words. Oops. Big Red, I'll note for you, is partially owned by the same company that makes Dr. Pepper and Snapple, so I'm sure there's some access to a bit of legal firepower on their end. It'd just be nice if all that firepower was reserved for actual infringement cases. Permalink | Comments | Email This Story

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Robots are cool in so many ways. People usually think of them as huge machines that are clumsy and awkward. However, robots come in all sizes nowadays -- and they're getting smaller while still being able to do some tough jobs. Bots aren't just vacuuming our floors. They'll soon do a lot more tasks autonomously and replace a lot of physical labor. Here are just a few examples of robots pulling (sometimes more than) their weight. There's a European robot project, Autonomous Vehicle Emergency Recovery Tool (AVERT), designing robots that can maneuver under a parked car, lift it up and move it someplace else by remote control. These robots only lift a car about an inch off the ground, and they're supposed to help police and/or security teams to move suspicious cars to safer locations. But it might be nice to have autonomous bots re-park cars.... [url] The Muscle Suit is a wearable suit -- powered by compressed air that can help people lift heavy objects with minimal effort. It only weighs 12 pounds itself, takes less than a minute to put on, and is controlled.. by a mouthpiece. These kinds of supersuits come in several varieties, but this one is designed to be harmless to the wearer. [url] Tiny robots that weigh several grams can pull over a hundred times their own weight. The trick for these bots is a gecko-inspired sticky material combined with an inchworn-like movement. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
There's a really big battle brewing concerning privacy protections online that involves some Silicon Valley tech companies, Ireland and the US government. And chances are this fight is going to get nasty. A few weeks ago, you might have heard that Twitter announced an interesting change in its privacy policy and terms of service, saying that all non-US users would technically now be managed under Twitter International Company, based in Dublin, Ireland. And, last week, Dropbox made a very similar announcement, noting that all non-North American users were now technically under Dropbox Ireland, while users in the US, Canada and Mexico remain under Dropbox in the US. Twitter's new terms go into effect on May 18th, and Dropbox's on June 1st (unless you're opening a new account before then, and the new terms apply immediately). Over the last decade, Ireland has become a popular destination for US tech firms to set up international operations, in part because of Ireland setting itself up as sort of a tax haven for tech firms via its "Double Irish" tax dodge. A bunch of tech companies have been criticized for this, though the response of "we're following exactly what the law allows" is reasonable enough. Either way, that tax loophole is closing, though others may show up instead. But this move doesn't seem predicated by that. Instead, there are two related elements that may be at work here. First: Ireland is also seen as having some of the most company-friendly privacy laws in the EU, though those are also coming under some amount of scrutiny. But, at the same time, by claiming that users are now under the Irish company, it gives Twitter and Dropbox at least some power to try to say no to US government requests for information. So, depending on if you're more afraid of government intrusions in your data than corporate intrusions (as I am), then these moves are probably good for your privacy. Except... the US government still thinks that it can do whatever the hell it wants. First, in some ways, data inside the US has potentially more protections against the US government in a somewhat bizarre way. Whether you believe it or not, the NSA cannot "hack" its way into US computer systems. It can only use the various other processes it has to demand information from companies. Overseas, however, there are no such restrictions. The NSA has interpreted Executive Order 12333 to mean that it can hack into anything overseas, and this was the authority it used to break into the data centers of Google, Yahoo and likely more overseas (sneaking in via Level 3 and others). But, that still requires hacking into stuff. If US tech companies believe they can successfully fend off such hacks, putting non-US users under Irish law does give them greater protection from the NSA. The NSA can no longer use its other authorities in the US to get the FISA Court to demand information (along with gag orders) from these companies. Or... maybe not. As we've been discussing, there's an ongoing court battle between the US Justice Department and Microsoft, over whether or not the DOJ can issue a warrant demanding Microsoft hand over information stored in Ireland. Microsoft has resisted, but the courts have so far sided with the DOJ. Ireland recognizes this is an important fight, and has asked for the EU to come out in support of Microsoft's position. Meanwhile, with a new Attorney General in office, the DOJ has made it clear that it's going to continue this course of action: US prosecutors will continue to seek data stored in Ireland using a federal search warrant, despite leadership changes at the Justice Department. A spokesperson confirmed in an email that the department's position has "not changed," two weeks after Loretta Lynch, the Obama administration's choice to head up the federal agency, was confirmed by Congress as the new US attorney general. This battle is going to be rather important for those other companies seeking to protect users under Irish law. Warrants aren't supposed to apply outside of the US. But the DOJ (and the courts) have been simply making up new laws, in arguing that if it's a US company, but the data is overseas, the warrant magically morphs into a quasi-warrant/subpoena hybrid. But that's ridiculous. Warrants and subpoenas have different purposes and different protections -- and the DOJ wants the best of both worlds. As Microsoft itself explained in one of its legal filings: The Government's interpretation ignores the profound and well established differences between a warrant and a subpoena. A warrant gives the Government the power to seize evidence without notice or affording an opportunity to challenge the seizure in advance. But it requires a specific description (supported by probable cause) of the thing to be seized and the place to be searched and that place must be in the United States. A subpoena duces tecum, on the other hand, does not authorize a search and seizure of the private communications of a third party. Rather. it gives the Government the power to require a person to collect items within her possession, custody, or control, regardless of location, and bring them to court at an appointed time. It also affords the recipient an opportunity to move in advance to quash. Here, the Government wants to exploit the power of a warrant and the sweeping geographic scope of a subpoena, without having to comply with fundamental protections provided by either. There is not a shred of support in the statute or its legislative history for the proposition that Congress intended to allow the Government to mix and match like this. This fight is far from over -- and with companies like Twitter and Dropbox now trying to shift more non-US users under Irish laws, the fight with Microsoft is going to become even more important. And, that's not even getting into the discussion of how all of this is, effectively, driving US businesses overseas. The US's efforts to spy on everyone is, once again, harming the US economy, rather than helping it.Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
No sooner had General Petraeus received a mild scolding for handing over pages and pages of classified information to his biographer/mistress than the defense team handling Jeffrey Sterling's case saw a point of entry to argue that the proposed sentence of 19-24 years in prison was too severe. Petraeus, who was also a CIA official, received two years probation and a $100,000 fine. The defense has asked for something more in line with recent prosecutions of whistleblowers and leakers: something between Petraeus and John Kiriakou (30 months), as it were. The government has responded and it sees nothing wrong with punishing certain leakers one way and punishing Jeffrey Sterling another. Federal prosecutors on Thursday defended their use of the Espionage Act to prosecute a former CIA officer who leaked information to a New York Times reporter and suggested it was “mistaken” for him to receive a sentence far below what federal guidelines call for because he gave materials to a journalist, rather than a foreign government. The government argues that Sterling's leaks were far more severe than any of those cited in the defense's filing (Petraeus, Kiriakou, Stephen Jin-Woo Kim), seeing as they compromised "Russian assets" and caused the eventual shutdown of an (at that time) ongoing operation. The filing also argues that Petraeus' disclosure of classified info to his biographer -- arguably a member of the public -- was not the disclosure of classified info to a member of the public. Petraeus had given his biographer – who possessed a security clearance – access to classified information and improperly stored classified information at his residence. None of this classified information was included in his biography, made public in any other way, or disclosed by his biographer to any third parties. It cites the government's prosecution of reporter James Rosen in support of its arguments -- itself a bad precedent. It also notes that no two cases are alike, although not in the way the defense team argued that same point. Each national security case is unique. Each comes with its own intelligence equities and problems, which, unless one is intimately involved in the prosecution of the case, will never be understood completely. Government knows best! It's well-established that each case is unique, although not in the way the government presents it. A lot of sentencing decisions are based on prosecutors' recommendations. If they don't really have an urge to punish someone, they'll offer plea bargains and lighter sentencing. If they want to turn someone into an example, they'll be as aggressive as possible -- stacking charges and rejecting lesser pleas. This type of behavior is common to the entire spectrum of the justice system, from the county level all the way up to DOJ-prosecuted cases. So, it's redundant to say each case is unique. What the government needs to acknowledge is that it frequently acts inconsistently when prosecuting leakers and whistleblowers. But it won't. Additionally, should one wish to obtain a wrist slap for espionage charges, the best bet is hope for a timely trial that might cause the government to weigh its vindictive urges against the potential disclosure of classified information. As this Court noted in sentencing Mr. Kiriakou: . . . I recognize the difficulty the government has in prosecuting these types of cases. They have to balance the potential danger of disclosure of very sensitive information when deciding how to proceed, and in balancing those concerns, they came up with this plea. Kiriakou, Sentencing Transcript at 20-21 (January 25, 2003). Indeed, this Court indicated it would have sentenced Kiriakou within the Guidelines had the case not been a binding plea. We can only speculate about the difficulties faced by the prosecutors and intelligence counterparts in these other cases. The prosecution in Petraeus, for example, undoubtedly considered the difficulty of proving intent and willfulness on the part of the defendant, elements of a § 793 offense, as well as the likelihood that very sensitive classified information would necessarily be disclosed at trial, when it decided to resolve the case through a plea agreement. We can "only speculate" as well, but we know what it looks like from the cheap seats: favoritism towards those who play on the government's "team," and harshly treating those who point out the government's wrongdoing. Even Kiriakou's comparably-light sentence was far too harsh for the supposedly-criminal acts he performed, which were completely indistinguishable from other CIA officials' -- including CIA Director Leon Panetta's -- disclosure to the screenwriters behind Zero Dark Thirty. All the government's filing does is further confirm that the justice system isn't really all that "just." The Petraeus prosecution pretty much shattered any remaining illusions about the fairness of the system. Some get wrist slaps. Some get the thrown book. [Updated] And it appears Sterling will receive something in between the two extremes. The government was pushing for a sentence of 188-235 months, but it appears to have settled for something closer to Kiriakou's sentence: 42 months. The presiding judge even cited his case when sentencing Sterling: “To put you at ease, the guidelines are too high,” [Judge Leonie] Brinkema said as the sentencing hearing got underway, glancing at Sterling and his lawyers, Ed MacMahon and Barry Pollack. She went on to say that Sterling’s case was similar to Kiriakou’s, for which she had also been the presiding judge, because both involved the disclosure of the identity of an intelligence agent. She said Sterling should serve more time because Kiriakou had pleaded guilty whereas Sterling pleaded innocent and was found guilty by a jury. Brinkema added that “a clear message” had to be sent to people in the intelligence community that a price will be paid for revealing the identities of intelligence agents and assets, though she also said, in what appeared to be a reference to Petraeus not serving any prison time, that the judicial system had to be fair. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
Back in November, we noted a class action lawsuit filed against Righstcorp in California, arguing that its process of shaking people down with robocalls violated various laws. In the first amended complaint, the plaintiff, John Blaha, focused on two issues: (1) that the robocalls violated the Telephone Consumer Protection Act and (2) that the use of DMCA 512(h) subpoenas were an "abuse of process." As we discussed, every few years, copyright trolls think they've rediscovered 512(h) and think they've found a magic key that lets them send subpoenas to ISPs, identifying people to shake down, without first filing a lawsuit. Of course, over a decade ago, a court soundly rejected that argument in a case the RIAA filed against Verizon, pointing out that if the RIAA wanted to find out names from Verizon it had to file a lawsuit first. In response to this, Rightscorp (and Warner Bros., a Rightscorp client) tried to get the abuse of process claims tossed, by arguing they violated the First Amendment, and were subject to California's anti-SLAPP law. Now, as you know, I'm a huge supporter of anti-SLAPP laws, and California's is pretty good. But it seemed like a huge stretch to argue that the class action lawsuit was an attempt to stifle Rightscorp's free speech rights. Unfortunately, the court disagrees, and says that the abuse of process claim should get tossed thanks to the anti-SLAPP law. The court points out that the subpoena is clearly protected under the anti-SLAPP statute, and thus, there's the question of whether the lawsuit is likely to prevail. It notes that, for an abuse of process case, the plaintiff needs to show an "ulterior motive" and that the actions were committed willfully "in the use of the process not proper in the regular conduct of the proceedings." Unfortunately, the court doesn't see either as being the case. It notes no "ulterior motive" by Rightscorp: The first fatal deficiency in Plaintiff’s abuse of process claim is that Plaintiff raises no ulterior motive in Defendants’ use of the subpoenas. Whether or not § 512(h) subpoenas should validly be issued under the circumstances in which Defendants sought them, there is no allegation and no evidence that Defendants sought to do anything other than what their subpoena requests indicated – identify potential copyright infringers for the purpose of pursuing Defendants’ rights under the Copyright Act. Plaintiff’s extensive discussion of the elements of abuse of process... can be summarized as a view that seeking and obtaining some form of court order that should not have been issued is sufficient to satisfy both elements of the abuse of process tort. But, despite extensive rhetoric, Plaintiff provides no authority for this view and the most relevant authority is against it.... Again, the only “ulterior motive” identified by Plaintiffs is the motive disclosed on the face of the subpoena requests.... A disclosed motive is, by definition, not ulterior. The issue here is basically this: those of us who follow copyright trolling know perfectly well that these subpoenas have an "ulterior motive," which is to shake down a large number of people for money. The problem, though, is that the court sees the specific aspects of the subpoena -- identifying a potential infringer -- as well within the proper bounds of going after them for copyright infringement. Whether or not the motive is an "ulterior" one seems to depend on if you view the overall process to be "filing a lawsuit against an alleged infringer" (as the court does) or "shaking down as many people as possible, with no intention of ever really going to court" (as people who follow copyright trolls know is the actual situation). And, while it's true that the first step in both processes is basically the same, this case is arguing that there's an ulterior motive in the eventual plan, but the court is basically saying that doesn't really matter at this point. The court also claims that Rightscorp's subpoenas are protected by litigation privilege -- which is another concept that (like anti-SLAPP laws) tends to be a good thing for free speech -- which says that no tort can arise from statements made during litigation. But here's the problem with that: this isn't really litigation. Rightscorp isn't suing people. It's just using the court system to get contact info and then launching the robocalls. Still, the court argues that since the 512(h) subpoenas are communications via a court, litigation privilege covers it. While the complaint points to the later shakedown letters, the court (rightly) notes that those letters are not part of the 512(h) subpoena, and thus are not part of the "abuse of process" claim. The entirety of Plaintiff’s claim is based on communications by Defendants to various courts in order to acquire subpoenas. Plaintiff’s opposition misses the point by focusing on the later communications made by Defendants to the now-identified potential infringers. But these communications are not the basis of the abuse of process claim; the complaint is clear that the abuse of process is alleged to have occurred when Defendants obtained (and served)4 the subpoenas knowing that the subpoenas were improper under the law. The case is far from over, and I still have some problems with the way the court ruled here, but if I have to be wrong, at least I'm wrong in a way that says California's anti-SLAPP law is strong.Permalink | Comments | Email This Story

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