posted 11 days ago on techdirt
A few weeks ago, we wrote about some details from the court hearing in the ridiculous monkey selfie case in which PETA (the People for the Ethical Treatment of Animals) claimed not only that it represented Naruto, an Indonesian macaque monkey, but that the monkey should hold the copyright on this selfie: However, as we've explained time and time again (much to the chagrin of David Slater, the photographer whose camera was used to take the photo), the photo is clearly in the public domain, as it's long been held that the Copyright Act only applies to human authors. In court a few weeks ago, the judge made it clear he didn't believe PETA had any case at all, but Judge William Orrick has now come out with his written opinion in the case explaining his reasoning why. Not surprisingly, it more or less tracks with what he said in court: there is no evidence that the Copyright Act applies to monkeys, and thus, case dismissed -- with leave to amend. The judge cites numerous cases in which the courts clearly say the Copyright Act means a "person" when it refers to author... and PETA cited a grand total of zero cases that argued otherwise: Here, the Copyright Act does not “plainly” extend the concept of authorship or statutory standing to animals. To the contrary, there is no mention of animals anywhere in the Act. The Supreme Court and Ninth Circuit have repeatedly referred to “persons” or “human beings” when analyzing authorship under the Act. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000) (“[A]n author superintends the work by exercising control. This will likely be a person who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be.”) (internal quotation marks, citations and modifications omitted) (emphasis added); Urantia Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997) (“For copyright purposes, however, a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].”) (emphasis added); Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (“As a general rule, the author is the party who actually creates the work, that is the person who translates an idea in a fixed, tangible expression entitled to copyright protection.”) (emphasis added). Despite Next Friends’ assertion that declining to grant a monkey copyright to a photograph “would depart from well-established norms,” Next Friends have not cited, and I have not found, a single case that expands the definition of authors to include animals. And the judge is also convinced by the Copyright Office rejecting non-human copyrights as well: Moreover, the Copyright Office agrees that works created by animals are not entitled to copyright protection. It directly addressed the issue of human authorship in the Compendium of U.S. Copyright Office Practices issued in December 2014 (the “Compendium”). “When interpreting the Copyright Act, [the courts] defer to the Copyright Office’s interpretations in the appropriate circumstances.”... In section 306 of the Compendium, entitled “The Human Authorship Requirement,” the Copyright Office relies on citations from Trade-Mark Cases, 101 U.S. 94 (1879) and Burrow-Giles to conclude that it “will register an original work of authorship, provided that the work was created by a human being.”... Similarly, in a section titled “Works That Lack Human Authorship,” the Compendium states that, “[t]o qualify as a work of ‘authorship’ a work must be created by a human being. Works that do not satisfy this requirement are not copyrightable.”... Specifically, the Copyright Office will not register works produced by “nature, animals, or plants” including, by specific example, a “photograph taken by a monkey.” And thus, sucks for Naruto (and PETA): Naruto is not an “author” within the meaning of the Copyright Act. Next Friends argue that this result is “antithetical” to the “tremendous [public] interest in animal art.” ... Perhaps. But that is an argument that should be made to Congress and the President, not to me. The issue for me is whether Next Friends have demonstrated that the Copyright Act confers standing upon Naruto. In light of the plain language of the Copyright Act, past judicial interpretations of the Act’s authorship requirement, and guidance from the Copyright Office, they have not. Permalink | Comments | Email This Story

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Not that long ago, we mentioned that progress towards an algorithm that could play the game of Go better than humans was on the horizon. It looks like our wetware shouldn't be too smug about being able to play Go now, but we can still have fun playing, right? And it'll still take a while before robots are any good at (non-contact) sports. Ping pong, FTW! Google has announced that its machine learning system AlphaGo has beaten a human expert in 5 games. That's impressive, considering that all other attempts haven't been able to reliably defeat amateur players. In March, AlphaGo is scheduled to play a top player in the world, Lee Sedol, to really test its abilities. And hopefully, this time the human player will lose more gracefully without accusing the computer's side of cheating. [url] There are some games that you can play to win, but it's not a very fun experience. Try playing Monopoly ruthlessly. If you played Monopoly as a kid, you probably didn't learn the rules correctly. And you probably up-ended the board to end the game. [url] Ideally, we humans should take advances in machine learning as an opportunity for more human-machine cooperation to solve the world's most dire problems. Together, machines and people should be able to solve the "wicked" hard problems of poverty, pollution, diseases and more. Maybe we can convince the robots to help us. [url] Oh. And Facebook's effort to get a computer playing Go that can beat humans is "getting close" -- but maybe it can get exponentially better by March? The guy sitting a few feet from Mark has a bit of time to really get his algorithms working. Or maybe it should challenge Alphago to a match to see how the two compare. [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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Back when you were a kid, you may (depending on your age) have checked books out of your library using a circulation card. The cards, like the one pictured below, would allow the librarian to keep track of the books, who had them, and when they were expected back at the library. (Ohio Univ Libraries / CC BY-NC-ND 2.0) This month's Stupid Patent is awarded to Xerox, who on January 19, 2016 was awarded a patent on essentially the library circulation card, but done electronically. The patent, U.S. Patent No. 9,240,000, is entitled "Social Network for Enabling the Physical Sharing of Documents." The patent discusses what it sees as a problem with current methods of sharing documents. Specifically, it says that "systems and methods which enable the sharing of documents among people working in proximate locations, while still promoting worker efficiency and independence, is [sic] needed." In addition, "there is still a need for an efficient social networking platform which is organization specific and which allows members of an organization to know what other members sitting in the same organizational space are reading, what documents they are amendable to sharing, and to which documents they are providing physical access." And how does the patent solve these problems? Claim 11 details one way: 11. A computing system for enabling a physical sharing of a hard copy of a document, comprising: [a] a plurality of programmatic instructions stored on a medium, wherein, when said plurality of programmatic instructions are executed, cause a client computing device to present a first graphical user interface to a user, wherein said first graphical user interface comprises a plurality of printing options for printing the document, wherein said first graphical user interface comprises an input for receiving an indication by the user that the user is willing to physically share the hard copy of the document within a predefined period of time; and [b] a computing device for hosting at least a portion of a social network comprising a profile page of the user, wherein said computing device receives at least one of a characteristic of the hard copy of the document, in response to the user indicating a willingness to physically share the hard copy and publishes said characteristic on the profile page of the user, wherein said profile page is accessible to everyone who is connected to the user in a social network, and wherein said characteristic include at least one of title, date, location of document, or location of printing. This claim is a good example of patent-speak. For various reasons, patent claims are often written in long, obfuscating language that tends to make them difficult to understand for anyone who isn't a patent lawyer. To be clear: patent lawyers will rightly tell you that every word in a claim is important. This is true. But what is also true is that often times claims include terms—such as "plurality of programmatic instructions stored on a medium"—that are essentially meaningless outside the patent system. Claim 11, when given a plain English translation, reads something like this: A computer that, [a] via a GUI, asks the user whether they want to print something using through a variety of methods, and to note whether they want to share the document once printed, for a certain amount of time and [b] if the user says they want to share it, updates the user's status on their profile page that tells people the name of the paper, the date it will be available and where. This claim reads as merely a computerized version of the library's circulation card. A library purchases a book (similar to the printing of claim 11). The library then offers it to one of its patrons, who then decides they would like to borrow it for a certain amount of time. The patron brings the book to the counter, the card is filled out with the patron number and due date, and then placed in the file of all the cards for other patrons to search if they're looking for that book and when it will become available. We just gave Xerox a patent on what amounts to sharing a book, but electronically. When considered this way, it is clear that Xerox's patent is a stupid patent. It deserves our censure. But more importantly, this patent issued this month, on an "invention" from 2011. Ultimately this patent is one of hundreds or thousands of patents that don't describe actual inventions, but rather just rehash old, obvious ideas "on a computer" using confusing language. The failure of the patent office to prevent this patent from issuing is regrettable, and shows just how dysfunctional our patent system is. Republished from the Electronic Frontier Foundation's Stupid Patent of the Month series Permalink | Comments | Email This Story

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I really hate stories where there is no one to root for. Unfortunately, this is one of those stories. C'est la vie. If you were ambulatory enough to get to your computer these past few weeks, you likely came across a video from a Donald Trump rally, in which a group of five young girls, only three of which are seen in the video, called the USA Freedom Kids hip-bobbed a serenade to the Trumpster about how awesome America is. It was horrible. It was jingoistic and patronizing with just a dash of discomfort as these young girls were dressed in pleated red, white and blue skirts and tops. So that you don't think I'm exaggerating the level of horror here, see the video of the whole thing below, if you can stomach it. That video is from the YouTube account for The USA Freedom Kids. I embedded their video instead of this one that was uploaded by a Phoenix, Arizona Fox affiliate, because, well... Yeah, it was taken down by EMI. But why, you ask? While many of us would thank anyone or anything that could tear the existence of this horror show away from wherever unsuspecting innocents might happen across it, what stake does EMI Music have in this song sung by The USA Freedom Kids? It’s possible that YouTube’s auto-removal bots finally caught some infringement (real or perceived) on the song, though if that’s the case, it’s odd it took them so long. The more likely case, though, is that someone realized that “Over There,” the World War I song that Freedom’s Call’s tune is taken from, is still copyrighted. And that the copyright belongs to Sony/ATV Music Publishing, EMI Music Publishing’s parent company. Fox 10 Phoenix didn’t immediately respond to a request for comment, nor has EMI. Given the autobots haven't gobbled up other versions of the recording, it appears most likely that EMI specifically targeted the one shared by Fox. Now, look, what the hell am I supposed to do here? I don't want that video to exist, but I also don't like EMI being able to disappear content of any kind in favor of protecting their rights to a song that was created before my grandfather graced Earth. It's like trying to decide whether to back Stalin or Pol Pot in a fistfight: I'm just wishing there was a way where everyone could lose. There are so many reasons why it's ridiculous that EMI could take down this video to begin with: the age of the song, the nature of the use for political speech by these girls, the fact that a news organization did the sharing in its capacity on reporting the news, etc. But this is what you get when you mix silly politics with insanely over-reaching copyright law, I suppose. Permalink | Comments | Email This Story

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EPIC is reporting that the DOJ has finally caved and is handing over a document it requested last fall. The document EPIC sought was the "Umbrella Agreement" between the US and Europe on the handling of each entities' citizens' data. On September 8, 2015, European and US officials announced that they have concluded an agreement, the so-called Umbrella Agreement, which is a framework for transatlantic data transfer between the US and the EU. The proposed goal of the Agreement is to provide data protection safeguards for personal information transferred between the EU and the US. Despite the announcements, neither US officials nor their European counterparts made the text of the Agreement public. Two days after this announcement, EPIC filed expedited FOIA requests on both sides of the pond for the text of this agreement, arguing (logically) that the people this would affect had a right to know what their governments were agreeing to. EPIC specifically had concerns that the US would offer less protection to foreign citizens' data than to its own citizens, given that it has historically refused to extend these niceties to those residing elsewhere on the planet. The DOJ has provided EPIC with a copy of the agreement. In doing so, it hopes to bring to an end EPIC's FOIA lawsuit against the agency. But the DOJ notes in the letter attached to the agreement that it's only doing so in the most begrudging fashion. If only its partners on the other side of the Atlantic hadn't blinked first… After carefully reviewing the record responsive to your request, I have determined that, as a matter of discretion, this document may be released in full. While this record is likely subject to Exemption 5, which concerns certain inter- and intra-agency communications protected by the deliberative process privilege, given the fact that the European Commission has provided you with a copy of the record and is making the file publicly available on its website, I have determined to release the record as a matter of discretion. That's the "most transparent administration" at work. The European Parliament released the agreement on September 14, 2015 -- six days after the announcement. The DOJ, on the other hand, held out for nearly six months and is only releasing it because it's already in the public domain. And it's arguing that it should still be exempt as a "deliberative document" -- using the government's most-abused FOIA exemption -- even when another, larger government agency has determined the document deserves no such protection. Permalink | Comments | Email This Story

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Stanford Law professor Barbara van Schewick, one of the leading scholars on net neutrality, has filed a report with the FCC detailing how T-Mobile's Binge On clearly violates net neutrality. As we've been highlighting, Binge On has numerous problems when it comes to net neutrality, and appears to clearly violate some of the FCC's rules. There's also the fact that T-Mobile flat out lied about it and claimed that it was "optimization" when it's really throttling. The 51-page report by van Schewick details the problems with Binge On in great detail, noting that it falls afoul of the FCC's transparency rules, that it unfairly picks winners and losers and that it harms competition. The core argument: Binge On undermines the core vision of net neutrality: Internet service providers (ISPs) that connect us to the Internet should not act as gatekeepers that pick winners and losers online by favoring some applications over others. By exempting Binge On video from using customers’ data plans, T-Mobile is favoring video from the providers it adds to Binge On over other video. T-Mobile says that it does not intend to become a gatekeeper on the Internet: It says Binge On is open to all legal video streaming providers at no cost, as long as they can meet some “simple technical requirements.” The idea is that any discriminatory effects of Binge On disappear as more providers join the program. However, the technical requirements published on T-Mobile’s website are substantial. They categorically exclude providers that use the User Datagram Protocol (UDP), making it impossible for innovative providers such as YouTube to join. They discriminate against providers that use encryption, a practice that is becoming the industry standard. While some providers can join easily, a significant number will need to work with T-Mobile to determine whether their service can be part of Binge On. Many will have to invest time and resources to adapt their service to T-Mobile’s systems. The smaller the provider, the longer it will likely take for T-Mobile to get to it. The result: Binge On allows some providers to join easily and creates lasting barriers for others, especially small players, non-commercial providers, and start-ups. As such, the program harms competition, user choice, free expression, and innovation. What's perhaps even more interesting is that van Schewick includes in the report alternatives that T-Mobile could have adopted that would have created similar plans that actually benefit consumers without messing up net neutrality: Binge on in its current form violates net neutrality. However, T-Mobile could offer alternative innovative plans that benefit customers and allow the ISP to compete without violating net neutrality. For example, T-Mobile could offer customers a zero-rated low-bandwidth mode at the same speed as Binge On, but contrary to Binge On, customers would be able to use this mode to watch video or do anything else online. It would be their choice. Alternatively, T-Mobile could allow customers unlimited access to the entire Internet after customers reach their cap, just at a slower speed – the same speed currently offered through Binge On. After reaching their cap, customers could watch video or do anything else online; again it would be their choice. This option offers customers truly unlimited video, unlike Binge On. Contrary to advertising, Binge On video is limited: Customers can watch video included in the program only until they reach their monthly data cap through other Internet uses that are not zerorated. As such, advertising Binge On as “unlimited” video might violate the FCC’s transparency rule, which requires ISPs to accurately describe their service. In contrast, this alternative option would allow T-Mobile to offer “unlimited video streaming” that stands up to its name and respects net neutrality. Finally, T-Mobile could increase the monthly data caps on its capped plans to account for the average amount of video that people are watching. Customers could use that additional bandwidth to do anything online, including watching video. Again, it would be their choice. All of these alternative plans are entirely consistent with net neutrality. Of course, the remaining question is still the really big one: will the FCC actually do anything about Binge On... Van-Schewick-2016-Binge-on-Report-20160129Permalink | Comments | Email This Story

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Over in Japan, there's been a big political scandal brewing over the last few days, leading the country's economy minister Akira Amari to resign amid charges that he received significant bribes from a construction company. What makes that relevant to us here is that Amari was also Japan's leading negotiator on the Trans Pacific Partnership (TPP) agreement, and his resignation and the bribery charges are raising additional (and fairly serious) questions about whether or not Japan really should support the TPP. So far, the bribery that's been discussed does not appear to directly impact that TPP, but it at least raises other questions about whether or not the TPP itself was compromised by similar corruption (of course, some may argue that the entire process, in which big companies basically helped write the thing, is itself corrupt). Amari had been expected to travel to New Zealand in the next few days for the TPP signing ceremony, but obviously someone else will now have to go. Japan's role in the TPP has always been somewhat controversial. It was late to join the effort, and there has been a lot of fear within the country, which has kept up some protectionist trade policies for quite some time, some of which the TPP would force them to remove. As I've said, I actually think the TPP's efforts to remove actual tariff barriers should be applauded, but it's the majority of the rest of the agreement that's so troubling -- including things that seem actually the opposite of free trade, like increasing protectionist intellectual property laws. Indeed, Japan was often one of the most aggressive in pushing for stricter copyright and patent rules within the TPP. And now we have to wonder if that was actually done because Japan believed it was in its best interests, or if other, perhaps more corrupt factors played a part. The signing ceremony is just the beginning of the process, of course. The ratification by various countries is the big fight. Amari's resignation and the related scandal now increase the chances that Japan may not be ready to approve the TPP, and that could put the entire agreement at risk.Permalink | Comments | Email This Story

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Despite its terrible name, the $20 LithiumCard Wallet Battery seems like a really cool product. It is roughly the thickness of 5 credit cards stacked together and is designed to fit in almost any wallet. The charge cord (Lightning or microUSB -- select your preference from the drop down menu) can be easily tucked away in the battery. It comes with a Nanostik pad for attaching to your device if you'd rather not carry it in your wallet. The 1200mAh promises a quick charge wherever you go. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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A couple of years ago, the Commerce Department put out a somewhat problematic "Green Paper" on copyright, that at times seemed to have been pretty heavily influenced by the maximalist view of the world, without recognition of how widely copyright is abused. Lots of people responded to it with their concerns -- including an excellent response from (believe it or not) Hollywood screenwriters who actually pointed out the problems of copyright maximalism, statutory damages, abusive takedowns and attacks on fair use. I don't know if it was that letter that really influenced things, but the Commerce Department has now come out with its follow up "White Paper" and it's really quite good. It basically says that copyright's statutory damages are a huge mess and need to be fixed. We've argued in the past how statutory damages are a big part of the reason why copyright law is so messed up. If you don't know, copyright law allows rightsholders to ignore actual damages (especially if they don't exist) and elect to go for "statutory damages" in which they can seek $750 to $150,000 per work infringed. And, of course, they always claim to go for the $150,000. And when you're talking about someone non-commercially sharing, say, 20 songs, and the fact that they could suddenly be on the hook for $3 million, it begins to be clear how copyright law seems totally divorced from reality. Those crazy statutory damages have a number of super damaging effects: Massive chilling effects. Any hint of a lawsuit gets people to back down as the damages can be debilitating, even if there was no actual damage. Copyright creep. People use copyright threats for reasons having nothing to do with actual copyright, such as to censor content they don't like, because they know that threat of statutory damages is so powerful. Parasitic and abusive businesses, such as copyright trolling, which heavily relies on the threat of $150,000 in statutory damages per work to extort money from individuals. Thankfully, there's been at least some recognition in Congress that maybe it's time to revisit statutory damages, and this new white paper from the Commerce Department should be quite helpful on that front. What's slightly amazing, honestly, is that some of the folks involved in the writing of the paper actually include some fairly well-known copyright maximalists, who have historically always pushed for expanding copyright law and been against fixing statutory damages. In this paper, they don't ask for a total overhaul of statutory damages, like many of us feel would be appropriate, but still do push for reforms that recognize the widespread abuse and chilling effects of statutory damages (the paper even namechecks Righthaven and Prenda Law as examples of abusing statutory damages for copyright trolling). Key reforms the paper supports include expanding eligibility for "innocent infringement," which greatly lowers the statutory damages. Historically, courts almost never allow innocent infringement defenses. Expanding that would help out many cases of blatant trolling. But the big change is giving the courts much more discretion in determining the proper amounts for statutory damages, including a specific list of factors that judges and juries should be tasked to consider before determining an award -- and that includes both actual losses to the copyright holder and the "benefits" to the infringer. The Task Force recommends that Congress enact a new paragraph in Section 504 of the Copyright Act specifying factors that must be considered when determining statutory damage award amounts. The aim is to ensure a greater degree of predictability in copyright infringement cases across the country and address some other concerns raised in this proceeding. In considering what factors should be included, we have drawn upon existing model jury instructions as well as federal case law. The Task Force considered proposing federal model jury instructions, but concluded that a statutory set of factors would be preferable since they will be binding on all courts. We believe that litigants and courts would be well-served by requiring consideration of a uniform set of factors designed to result in an appropriate award based upon the facts of each case. The nine factors listed below are those that will most often be applicable in a statutory damages determination. We believe that they should be non-exclusive, so that courts are not foreclosed from considering other factors that may be relevant in a particular case. The Task Force proposes a new clause in subsection Section 504(c)526 as follows: FACTORS TO CONSIDER -- In making any award under this subsection, a court shall consider the following nonexclusive factors in determining the appropriate amount of the award: The plaintiff’s revenues lost and the difficulty of proving damages. The defendant’s expenses saved, profits reaped, and other benefits from the infringement. The need to deter future infringements. The defendant’s financial situation. The value or nature of the work infringed. The circumstances, duration, and scope of the infringement, including whether it was commercial in nature. In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement. The defendant’s state of mind, including whether the defendant was a willful or innocent infringer. In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment. When calculating the total award, all of these factors should be weighed holistically, in the context of the entire case, to ensure that the overall award is appropriate. Frankly, that's a pretty good list overall. The fact that it includes whether the infringement was "commercial in nature" also seems like it could be super helpful in getting rid of many of the worst abuses. There are, of course, other potential improvements that can and should be made to statutory damages, but this is a good start, and it's great to see it come from the Commerce Department, that in the past seemed a little too smitten with Hollywood's love of statutory damages. Separately, the paper also embraces the value of remixes in culture, and why fair use is so important for that to thrive. It doesn't recommend any changes to the law over that (which is too bad), but at least it's not the typical maximalist view of "remixes have no value, or should first be licensed entirely." It does suggest, however, that there be clearer "guidelines" to provide clarity over when fair use should be applied to remixes to at least take away some of the chilling effects of copyright threats. Remixes make valuable contributions to society in providing expressive, political, and entertainment content. It is important that the copyright framework continues to allow the broad range of remixes to thrive, ensuring that a vibrant fair use space coexists with effective licensing structures. The Task Force concludes that the record has not established a need to amend existing law to create a specific exception or a compulsory license for remix uses. We have several recommendations that would make it easier for remixers to understand when a use is fair and to obtain licenses when they wish to do so. Specifically, the Task Force recommends pursuing three goals: The development of negotiated guidelines providing greater clarity as to the application of fair use to remixes; Expanding the availability of a wider variety of voluntary licensing options; and Increasing educational efforts aimed at broadening an understanding of fair use. Those are decent recommendations to start with, and again, it's nice to see a real recognition of the importance and cultural value of remixes. And, finally, the paper looks at the question of digital first sale rights, and whether or not there's a way to "preserve the benefits" of first sale rights (which allow you to, say, resell a book you bought without having to first get approval of the copyright holder). The paper basically says that it's too early to try to change the law on this issue. This may be the only somewhat disappointing aspect of the paper, as it seems to argue the typical maximalist response of "well, new licensing solutions should take care of that." But first sale rights are not just about licensing. And just because there may be easier licensing solutions, you're still creating a permission framework where previously the exchanges were permissionless. And that creates a market friction. However, the paper does recognize that there are some concerns here -- especially from libraries, and recognizes the issue may need to be revisited in the future. Overall, it's a surprisingly good paper that (not surprisingly) doesn't go as far as I might have liked, but goes much further than I would have expected from the government these days.Permalink | Comments | Email This Story

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So we recently reported on a claim that ISIS had been spotted making use of their very own encrypted messaging app, and highlighting how totally useless US laws requiring tech companies to backdoor encryption would be in that situation. However, it turns out that we should have been a lot more skeptical of the original report, coming from a single sourced security company. Over the years, we've learned that single-sourced security company claims are often highly suspect, and designed much more to get attention or increase FUD, than based on any real issue. The good folks over at Daily Dot are now reporting that this encrypted messaging app doesn't really appear to exist, and their investigation is pretty thorough and fairly convincing. Just like the claims that ISIS had a "training manual for encryption," this claim appears to be false. That said, it still doesn't mean that ISIS is actually relying on encrypted apps that would be opened up by a US legal change requiring encryption backdoors. As we noted in our last post, research from the Open Technology Institute showed that almost all the popular encrypted communications app that were named as being used by ISIS were either open source or not maintained by a US company, meaning any such law would be basically meaningless to ISIS folks trying to communicate. And given the open source nature of many of those apps, it wouldn't be surprising at all to find out that, eventually, someone forks an existing project to create a separate one relied on by ISIS. And none of that would be impacted by US laws anyway. So the only impact would be on weakening the safety and security of Americans who rely on encryption every day to keep themselves safe.Permalink | Comments | Email This Story

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Not too surprisingly, the Wall Street Journal has been a big booster of the Trans Pacific Partnership (TPP) agreement over the past year, repeatedly praising the deal and claiming it will save the world in all sorts of ways. Most of that is based on the faulty belief that the TPP is actually a "free trade" deal (it's actually the opposite), with some of it just being the standard WSJ faith-based belief that "if big businesses like it, it must be good." Given that, it's a bit surprising that even the WSJ is now calling out the US Trade Rep (USTR) for its blatantly misleading propaganda about the TPP. As Glyn recently wrote about, the Peterson Institute for International Economics released a summary showing tiny economic gains from the TPP -- to the point that it makes you wonder what the fuss is. Some folks have already called into question the Peterson Institute's methodology, suggesting the results may be even worse, but even if we accept the organization's findings, the benefits to the TPP are miniscule: increasing GDP 0.5% by 2030. But, no matter. The USTR decided to hype up this report... by tweeting out a chart so misleading that even the WSJ called it out as bogus propaganda. From the way that chart is drawn, it sure looks like a really big gap between "with TPP" and "without TPP." But, of course, it's really just the difference between $25,754 billion and $25,885 billion. Yes, $131 billion is nothing to sneeze at, but on an economic projection 15 years out, that's a rounding error. But the chart, of course, makes it look like a big deal. Here's the notoriously TPP-supporting WSJ explaining how ridiculous the chart is: Notice anything wrong here? Look at those two values on the right side of the column. With the Trans-Pacific Partnership, U.S. real national income will be $25,885 billion in 2030. Without, it will only be $25,754 billion. That’s a difference of $131 billion. But the chart presents that gap as about the same, in size, as the gap between $18,154 billion and $25,754 billion. That’s a difference of $7.6 trillion. Yep, that’s trillion with a “t.” The WSJ then tried to help out with its own, more accurate chart: But, of course, even that chart is somewhat misleading, since the y-axis is truncated (which the WSJ itself admits). So, to help out, we created our own chart based on Peterson's numbers (in Table 2, in case you're wondering): Notice how you basically can't see the difference between the two lines. Yeah. Compare that to the USTR's gloating above. And people wonder why we call out the USTR for being a secretive, totally dishonest organization. Amusingly, when the WSJ reached out to the USTR, the USTR pretended that its original chart was an "error" and promised an "updated" chart: “We noticed the error and are tweeting out updated, corrected graphics now,” said Andrew Bates, press secretary for the Office of the USTR. So... what is the "updated, corrected graphics"? Here: So, uh, yeah, its "corrected" graphic is even more misleading in that it just hides the base altogether and makes it look like this change is some huge change. Oh, and the original graphic, which the USTR admits is an "error"? That one is still up. Because of course it is.Permalink | Comments | Email This Story

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I'm not certain why people think this will work, but there seems to be an idea floating around a few of our fellow citizens that they can simply force their favorite sports teams to do what they want by filing trademarks for things they never intend to use. You may recall the story about a jackass in North Dakota who wanted to prevent the University of North Dakota from changing its name from The Fighting Sioux to, well, anything else that had been suggested by filing for trademarks on all the other things that had been suggested. Such a strategy was doomed to fail from the beginning for any number of reasons, but mostly because you actually have to be using what you're trying to trademark in commerce in order to get it approved, and trolling isn't a commercial enterprise as far as I know. Now we have another story, though it shifts from one of trolling to one of simple sadness, as a Raiders fan who doesn't want his team to move to San Antonio, as reportedly might soon happen, has decided to launch a preemptive strike by filing for a trademark for "San Antonio Raiders." An Oakland Raiders season-ticket holder who wants the team to remain in the East Bay has filed a trademark application for the name “San Antonio Raiders.” “I figured if I took over the name, San Antonio Raiders, I could force (the team) to stay in Oakland,” Lane Blue of Fresno, California, said in a phone interview. I'm loathe to heap any real anger upon a Raiders fan, because it seems to me that life as a Raiders fan must be so horrible so as to warp the brain to some degree, but anyone with a bare minimum of knowledge of how trademarks work knows this isn't going to work. Again, you have to use the mark in commerce to get a trademark at all, and Lane Blue would have to show that he's using the mark in a way with which the Raiders would be competing. Also, if the team really is planning on a move to San Antonio, it would be criminal for the team's lawyers not to have already begun the trademark filing process. Regardless, you can expect the application to be reviewed and summarily denied. But the larger point is that this is a symptom of what permission culture does: it makes the uninformed think that tools like trademark allow for a sort of monopolistic control where it actually doesn't. Why does it do this? Well, because too many times trademark, and other intellectual property laws, skirt or outright cross the line into that exact sort of heavy-handed protectionism, albeit in a less obvious way. So sorry, Raiders fan. You can't use intellectual property to force your team to stay nearby. Now, maybe if your last name was Disney, on the other hand... Permalink | Comments | Email This Story

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So much for those "inalienable rights." The Sixth Amendment -- among other things -- guarantees representation for criminal defendants. This guarantee has been declared null and void in two states: Utah and Pennsylvania. The problem isn't that these states aren't willing to comply with both the Sixth Amendment and the Supreme Court's Gideon v. Wainwright decision. It's just that they're not going to spend any of their money doing it. In these states, funding for indigent defense is left up to local governments, with no additional support coming from the state level. This causes problems for smaller locales, which often don't have the revenue to fully fund the legal defenders the accused are (supposedly) entitled to. But it's not just a matter of funding. It's also a matter of priorities. The state of Utah is currently being sued because of its unwillingness to ensure public defenders are properly funded. There's money available, but lawmakers have shown an unending willingness to only fund half of the criminal justice equation. Utah is one of only two states nationwide that provide no state funding for indigent defense. It ranks 48th in the nation in per capita funding of indigent defense, according to the complaint. Nor has the state set standards for contracted indigent defenders, or ensured that counties provide "constitutionally adequate" legal representation, the men say. Utah counties design and administer their own indigent defense programs. Washington County uses fixed-price contracts to pay local attorneys for indigent defense, and budgeted $760,688 for indigent defense in this year. The county budgeted $2.8 million for prosecution this year, and the state has budgeted $18.6 million for criminal prosecution, and not a dime for defense. The lawsuit points out that the lack of funding has hampered both of their cases. For one of the two defendants bringing the suit, the lack of funding resulted in his public defender's contract not being renewed, basically leaving him without capable representation. At the time this lawsuit was filed, Plaintiffs were being represented by public defenders. During that representation, Washington County did not renew the public defender contract for Mr. Paulus’ public defender which makes it impossible for him to continue to his currently scheduled trial date. Mr. Paulus faces 25 years to life in the Utah State Prison if he is convicted of his crimes. Mr. Paulus had a previous public defender, Ed Flint, who had obtained a private investigator interview a number of witnesses, but Mr. Flint had not retained any expert witnesses because of the contract issues with the Defendants as it relates to the public defender system in Washington County. As of the date of the filing of this action, Aric Cramer, who had two contracts and subcontracted with Ed Flint, did not have these two contacts renewed. Mr. Cramer would also subcontract with Ariel Taylor. On information and belief, one of those contacts are still unfilled. On information and belief, attorney Ariel Taylor has been awarded one of those two vacant contacts. However, Mr. Taylor has no knowledge or involvement in the Mr. Paulus’ case prior to the non-renewal of Mr. Flint and Mr. Cramer’s contracts. And it's not just that defendants are in danger of losing lawyers familiar with their cases if contracts aren't renewed. Years of underfunding and neglect by local governance has led to an ad hoc public defense network which does little to ensure defendants receive competent assistance. Defendants exercise no supervision over the county indigent defense programs. They have also failed to establish, require, or enforce any practice standards or gridlines for the portions of noncapital indigent defendants receive constitutionally adequate representation. National standards pertaining to the administration and provision of indigent defense programs have been in existence for decades . State and local entities across the country have adopted many of these practices standards. Washington County has refused to do so. The lawsuit is aiming for class status, which would draw in many other criminal defendants -- either imprisoned or still awaiting trial. The numbers cited in the suit aren't anomalous. The complaint that defenders' offices are underfunded can be heard all over the nation. It's just that two states have further tipped the scales in favor of prosecutors by passing all costs on to local governments. And when there's a limited amount of money to spend, it plays better with voters to hand it to the law enforcement side, rather than a system that helps "guilty" people "escape" punishment. Yes, I'm aware our justice system is predicated on the presumption of innocence, but that's the ideal, not the prevailing perception. A system that is routinely a travesty at best is a complete debacle in Utah, quite possibly to the point of being unconstitutional. But that's the way the accused are treated. The system prefers plea bargains to trials and convictions to exonerations by a large margin -- something that can be immediately confirmed by taking a glance at government balance sheets. At best, this case will force the state to start funding indigent defense. But much more needs to be done before the system can be considered equitable. Permalink | Comments | Email This Story

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Biology does whatever it can do, and it's usually pretty messy about it. Just when people think they've figured out a nice hierarchical system for classifying plants and animals and microscopic organisms, we find out that there's more going on and some things aren't as clear cut as we thought. We could divide up life into several kingdoms and/or three domains, but taxonomy isn't getting simpler with time. Life is a continuous spectrum that can't be separated easily, and classifications could become even more complicated in the future. If you thought a platypus was weird, check out a few of these creatures. The tardigrade (aka water bear) is a strange eight-legged critter that is so resilient that it can survive in space -- and it can inherit genes from its environment. Horizontal gene transfer from bacteria, fungi and Archaea has contributed to about 17.5% of the tardigrade's genome, making it the record holder for an animal. For reference, the human genome has 5-8% of its DNA from foreign sources like retroviruses. [url] Solar-powered sacoclossans are herbivorous sea slugs that can absorb chloroplasts from their food and use these disembodied algae parts as both a form of camouflage (from the green color of the chloroplasts) and as a source of energy. These chloroplasts don't get passed down to offspring, but young sacoclossans eat algae and obtain chloroplasts just like their parents did. [url] A new species of 'coywolf' is emerging in eastern North America from interspecies breeding, resulting in an animal with wolf, coyote and dog DNA. Millions of these animals populate a vast geographic area including rural and urban environments. These adapted coywolves can eat a variety of things -- from discarded human foods to rodents and small mammals like cats -- and hopefully these animals aren't related to Michael Corvin. [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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Remember Roca Labs? The somewhat shady manufacturer of some goop that the company claimed was an "alternative to gastric bypass surgery." This was the company that initially sued the site PissedConsumer.com because it was hosting negative reviews of Roca's product -- and Roca claimed that because it pressured buyers into a gag clause saying they wouldn't say anything bad about the product, that PissedConsumer was engaged in tortious interference. There was a lot more as well, including threatening to sue us at Techdirt (more than once!) for reporting on the case, suing Pissed Consumer's lawyer Marc Randazza for defamation and a variety of other shenanigans (even including some bizarre side stories on Nevada politics, despite it being a Florida company). Anyway, late last year the FTC smacked down Roca for its misleading marketing and its non-disparagement clauses. Roca is still fighting that fight, but soon after it also lost the case against PissedConsumer. However, there was (yet another) separate legal fight that didn't get much attention in all of this. In late 2014, we had reported that, in continuing with its efforts to hide any negative reviews, Roca Labs had sent a clearly bogus DMCA takedown to Google (see it here), claiming that the reviews on PissedConsumer's site violated its copyrights. What I had not realized was PissedConsumer actually had filed a separate lawsuit against Roca back in January of 2015, focused solely on these bogus DMCA takedowns, arguing that they had violated the infamous DMCA 512(f) clause on bogus takedowns. As we've noted, 512(f) cases are rarely successful, as courts don't seem to care much about them, and the law is written in such a manner that it's usually pretty easy to dance around a claim of "misrepresentation" in a DMCA takedown. And, in this case, the court dismissed the case, by basically saying that it was really nothing more than a counterclaim in the other, original, case filed by Roca. However, in a somewhat surprising move (actually, very surprising), the court has now agreed that the decision to dismiss the case was a mistake, and that this is a separate issue from the original case, and not a counterclaim. The reasoning is somewhat technical and procedural, but at the very least, it appears that the case against Roca for abusing the DMCA is back on track.Permalink | Comments | Email This Story

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We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. This week's book is (I think...) our first fiction book in the series. It's also not out yet, but it's coming out on Tuesday so you can pre-order it now. It's Barry Eisler's new Ed Snowden-inspired thriller The God's Eye View. Barry was kind enough to send me a pre-publication draft of the book and it's wonderful on multiple levels. First off, it's a "can't put it down, have to keep turning the pages" thriller that you'd expect from Eisler, whose previous thrillers have ended up on the NY Times best seller list. He knows how to keep you totally gripped to the story and in a state of suspense throughout. But it's more than just a page-turner thriller. The book is clearly inspired by the Ed Snowden revelations, and not only does it have tons of little Easter Eggs for people who have followed the surveillance debate, but it also includes at the end details of how many of the "crazy" and outlandish spy programs and tactics described in the book are actually happening today, based on the Snowden leaks and other related investigative reporting and whistleblowers. So it's an educational book as well, that helps highlight why we should be so worried about the kind of power and surveillance the NSA is capable of pulling off today. If you want to convince someone why the NSA's powers are so concerning, and want to do it in a truly entertaining way, this is the book for you. It's also pretty cheap for a new release these days. If you're signed up for Amazon's Kindle Unlimited, it's actually included so it doesn't cost anything extra. But if you're not, the ebook is just $5.99, which is way below most ebooks these days. If you don't know Barry Eisler, he's a former CIA spook, who became a best selling novelist, and who famously turned down a huge publishing contract to self-publish. He's also written a bunch of guest posts for us and been on our podcast (twice!). Finally, if you're in the California Bay Area, on Wednesday night, I'll be interviewing Barry at a Commonwealth Club event about the new book and probably lots of other topics as well (surveillance, publishing and who knows what else...). It'll be a fun discussion, so if you're in the area, check it out. And, either way, I highly recommend the book.Permalink | Comments | Email This Story

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What happens when you lower the barriers to entry? More participants join the market. It works everywhere, even when the market is "law enforcement" and the "customers" are everyone else. Vigilant Solutions, one of the country’s largest brokers of vehicle surveillance technology, is offering a hell of a deal to law enforcement agencies in Texas: a whole suite of automated license plate reader (ALPR) equipment and access to the company’s massive databases and analytical tools—and it won’t cost the agency a dime. [...] Vigilant is leveraging H.B. 121, a new Texas law passed in 2015 that allows officers to install credit and debit card readers in their patrol vehicles to take payment on the spot for unpaid court fines, also known as capias warrants. When the law passed, Texas legislators argued that not only would it help local government with their budgets, it would also benefit the public and police. Well, we can see how this will benefit law enforcement and others on the government food chain, but it's unclear how this will benefit the public. The bill's sponsor said the law would "relieve the burden" of having their vehicles impounded or being jailed for unpaid fines. But beyond those vague perks, the benefits seem to flow mostly in one direction. The EFF quotes legal blogger Scott Henson of Grits for Breakfast, who speculated the combination of license plate readers and credit card readers would push cops towards chasing down unpaid fines rather than enforcing traffic laws or performing more routine patrol duties. If so -- and it appears to be the case -- this is exactly the outcome Vigilant was expecting. It didn't hand out its tech for free. There may be no price tag on the plate readers at the point of purchase, but that's only because Vigilant has points on the back end. The “warrant redemption” program works like this. The agency gets no-cost license plate readers as well as free access to LEARN-NVLS, the ALPR data system Vigilant says contains more than 2.8-billion plate scans and is growing by more than 70 million scans a month. This also includes a wide variety of analytical and predictive software tools. The government agency in turn gives Vigilant access to information about all its outstanding court fees, which the company then turns into a hot list to feed into the free ALPR systems. As police cars patrol the city, they ping on license plates associated with the fees. The officer then pulls the driver over and offers them a devil’s bargain: go to jail, or pay the original fine with an extra 25% processing fee tacked on, all of which goes to Vigilant. To make this relationship even more explicit, officers who issue tickets to parked vehicles rather than drivers leave a note instructing them to visit Vigilant's website to pay the fine. On top of the 25% fee, Vigilant also gets to collect massive amounts of sweet, sweet driver data, which it can then sell to other law enforcement agencies (database access licenses) and private firms (insurance companies, repo men, etc.). And, if the locals seem understaffed, Vigilant is more than happy to pick up the slack. In early December 2015, Vigilant issued a press release bragging that Guadalupe County had used the systems to collect on more than 4,500 warrants between April and December 2015. In January 2016, the City of Kyle signed an identical deal with Vigilant. Soon after, Guadalupe County upgraded the contract to allow Vigilant to dispatch its own contractors to collect on capias warrants. As the EFF points out, this freemium service benefits Vigilant and law enforcement, but does very little for the general public… including protect them from Vigilant's inability to perform its job competently. During the second week of December, as part of its Warrant Redemption Program, Vigilant Solutions sent several warrant notices – on behalf of our law enforcement partners – in error to citizens across the state of Texas. A technical error caused us to send warrant notices to the wrong recipients. These types of mistakes are not acceptable and we deeply apologize to those who received the warrant correspondence in error and to our law enforcement customers. Apologies are nice, if of limited utility, but… [T]he company has not disclosed the extent of the error, how many people were affected, how much money was collected that shouldn’t have been, and what it’s doing to inform and make it up to the people affected. As has been discussed here before, turning law enforcement agencies into revenue-focused entities is a bad idea. Case in point: asset forfeiture. Further case in point: speed trap towns. Improper incentives lead to improper behavior. Agencies may like the idea of a "free" license plate reader, but the price still has to be paid by someone -- and that "someone" is going to be the general public. As priorities shift towards ensuring ongoing use of the "free" ALPRs, other criminal activity is likely to receive less law enforcement attention. Unpaid fines and fees are in law enforcement's wheelhouse, but should never become its raison d'etre. Once it does, the whole community suffers. Anything that could be implemented to lower crime rates would also serve to lower revenue, making it far less likely to be implemented. Fewer infractions mean fewer opportunities to collect court fees. And while the legislators pushing the new law Vigilant is leveraging talked a good game about sending fewer people to overcrowded jails, the governments overseeing these agencies still have budgets to meet and law enforcement to lean on to ensure this happens. Actually achieving the bill's stated aims would mean a steady reduction in court fees, which would lead to the loss of "free" plate readers. And no one wants that, at least not on the government side of things. Permalink | Comments | Email This Story

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It appears that efforts to censor the internet globally continues to spread, with the latest being a report out of Pakistan that the Pakistan Telecommunication Authority (PTA) has told ISPs that they need to start blocking an astounding 429,343 websites at the domain level as quickly as possible, following a Supreme Court order to the PTA about the evils of porn online. The move apparently follows a recent order by the Supreme Court wherein the telecom sector’s regulatory body had been asked to “take remedial steps to quantify the nefarious phenomenon of obscenity and pornography that has an imminent role to corrupt and vitiate the youth of Pakistan”. PTA said it has decided to take pre-emptive measures to block such websites at the domain level to control dissemination of pornographic content through the internet as it provided ISPs with a list of 429,343 domains to be blocked on their respective networks. The order apparently was issued just a few weeks ago, which raises the question of how the PTA put together a list of so many domains so quickly... and how carefully that list has been vetted. The answer, of course, is that it hasn't been vetted. And that means that tons of perfectly legitimate content is about to get blocked in Pakistan. Remember, this is the same country that once blocked all of YouTube, and did so in a way that basically knocked Pakistan off the internet, while also blocking YouTube throughout many countries across Asia. Let's hope mistakes of that nature aren't made again. Even so, it's pretty obvious that mistakes will be made. First, that list is going to include tons of sites that aren't pornography. Is there a way to appeal? Who knows! Second, it's likely that in the process of blocking "at the domain level" some may choose to block IP addresses of certain sites, not realizing that many IP addresses are shared among multiple domains, meaning that lots of other sites may get sucked up as well. And then there's the issue of what good will this do anyway. People who really want to access porn on the internet won't have trouble finding it. I'm pretty sure there are more than 429,343 websites with porn on the internet, and even if there weren't, I'm guessing that VPNs and proxies work just as well in Pakistan as they do elsewhere.Permalink | Comments | Email This Story

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It is critical to backup your data today. It only takes one problem with your computer, and your photos, files and music could be gone. The $49 Genius Rescue Cloud Backup promises a convenient and easy solution. The Genius Rescue app runs in the background while you work and backs up your files automatically. You can access your files from any device anywhere in the world. It features 2TB of storage space and easy ways to restore old or lost files to your computers, so you can rest a little easier knowing they're backed up safely. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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In an article that's actually a bit (but just a bit) more thoughtful than the headline applied to it ("How Corporations Profit From Black Teens' Viral Content"), Fader writer Doreen St. Felix tackles the cultural appropriation of creative works. Sort of. While the article does quote from a 2008 essay about the historical cultural appropriation of black artists' works by record labels, etc., the article does not point out any specific appropriation occurring here -- at least not in terms of the two creators St. Felix has chosen to write about. And it has nothing to say about how these corporations are "profiting" from this supposed appropriation. One of those is Kayla Newman, whose offhand comment in a Vine video birthed a new slang term. In the video everyone knows, uploaded on June 21st, 2014, Kayla admires her precisely arched eyebrows: “We in this bitch. Finna get crunk. Eyebrows on fleek. Da fuq.” Newman's Vine video has generated 36 million loops, moving "on fleek" from her lips to the Urban Dictionary and beyond. Some of those stops have been corporate. St. Felix points to IHOP and Denny's Twitter accounts' use of the phrase in an attempt to "feign cultural relevance." That appears to be the extent of the "appropriation." No one's monetizing the phrase, nor have these corporate entities done damage to anyone but themselves by deploying it. Newman hasn't seen any money from creating the slang term, although it's not for a lack of trying. “I gave the world a word,” Newman said. “I can’t explain the feeling. At the moment I haven’t gotten any endorsements or received any payment. I feel that I should be compensated. But I also feel that good things happen to those who wait.” The other artist quoted in the Fader article is a dancer named Denzel Meechie. Meechie performs improvised dance routines to various songs. This has earned him millions of views on YouTube. It has also seen his original account shut down by the rightsholders of the songs he dances to. In mid-September, YouTube shut down Meechie’s channel, which had accrued hundreds of thousands of subscribers. “I had too many copyright strikes,” he said, referring to his use of songs without explicit legal permission from labels. Ironically enough, some artists whose labels have issued takedowns have actively sought out Meechie because of his viral cachet. According to Meechie, labels contact YouTube and demand his videos be taken down, often without the knowledge of their own artists, some of whom pay him directly to help boost their buzz. “And it’s crazy, you know, because the artists ask me to put the videos up.” That's what happens when you turn over copyright enforcement to algorithms. Once again, we're not seeing much evidence of corporate cultural appropriation of black artists' creations. But the essay St. Felix quotes from does have something relevant to say about the intellectual property power structure. “Black artists had no input in [copyright law], and examination reveals that it is in some respects incompatible with Black cultural production in music,” writes Greene, arguing that multiple copyright standards were specifically structured to preclude black blues artists, especially women, from claiming ownership. It's not just black artists, though. It's all artists. Intellectual property laws have been refined by corporations and their lobbyists to provide the most protection for those with the means to benefit from extended copyright terms and ridiculously generous readings of trademark claims: corporations. But K.J. Greene's next assertion (from her cultural appropriation essay) goes right off the rails. “The idea/expression dichotomy of copyright law prohibits copyright protection for raw ideas,” Greene wrote. “I contend that this standard provided less protection to innovative black composers, whose work was imitated so wildly it became ‘the idea.’” Opening up the law to include protection of ideas won't stop the IHOPs of the world from borrowing slang from a teen on Vine. It will, however, be exploited thoroughly by the same labels and studios that exploited black artists in the past. It won't level the playing field. And beyond all of that, it's just a stupid thing to say. As is some of this, when St. Felix tries to tie this all together. In some sense, the roaring debates over white appropriation of black slang, music, and dance have worked as an avatar for circumstance of the independent black creator in the digital age. But the analog is insufficient. Intellectual property and viral content should be interrogated from a legal standpoint[...]. The copyright statute under which Meechie’s YouTube account got flagged and then taken down should be re-examined, as should the legal gray areas that leave individual creators like Newman in the cold. We can agree that the killing of Meechie's original YouTube account should be examined more closely, but the fault lies with labels that have opted for efficiency over accuracy -- the deployment of bots that only recognize certain arrangements of ones and zeroes, eliminating any of the nuance or context that make fair use a viable defense. As for Newman, it's entirely unclear how much income St. Felix -- or even Newman herself -- expects a viral video loop that birthed a slang term to generate. Users can't monetize Vine loops, at least not directly. Pursuing someone for copyright infringement (if they used the Vine loop in a YouTube compilation video, for example) would be of limited usefulness. If the concern is limited to the worldwide "unauthorized" use of "on fleek," the route for monetization runs through the trademark office. Unlike copyright, trademark doesn't apply automatically. It must be applied for, accepted and -- most importantly -- put to use. These steps aren't cheap. But why should anyone expect this contribution to the English language to generate income? It's two words from a seven-second video, and the only way it would conceivably be protected would be as a trademarked phrase, which would only prevent others from using it under specific circumstances for specific goods/services. It will not return "ownership" to Newman. Nor will it rebalance the IP playing field. There's arguably nothing protectable here, no matter how Newman, St. Felix or essayist K.J. Greene feel about it. Yes, corporations are opportunists who will often use current slang to coat their advertising with "How do you do, fellow kids?" vibes. But they're not co-opting cultures. They're just acting the way we expect corporations to act: make various stabs at youthful relevance with (usually) awful results. St. Felix's article does a great job tracing the origin of the phrase, but never comes close to making a point about cultural appropriation or tying this supposed act to corporate profits. The point that does come through is that something is wrong with IP laws, but the fixes suggested here would only make things worse. And even embracing the ridiculous concept of extending IP protections to unformed ideas still wouldn't turn two words into money. Being outraged that corporations frequently behave in a manner that only furthers their own interests is a nonstarter. Stretching the shameless repurposing of slang by corporate Twitter accounts and the merciless actions of infringement bots to be indicative of a new era of exploitation of black artists is reading far too much into the predictable actions of both corporations and the bots that work for them. 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A few years ago, we highlighted an absolutely ridiculous claim by a pro-copyright expansion think tank, arguing that it was a myth that copyright could ever be used for censorship. In that article, we listed out a number of examples of copyright being used absolutely for reasons of censorship, including a few by government actors. But, by far, one of the worst abusers of copyright law (and US copyright law specifically) to censor critical speech is the government of Ecuador. We've written a few times about Ares Rights, a Spanish company that was regularly sending DMCA notices in the US to try to suppress any kind of criticism of Ecuador's government (and also on criticism of Ares Rights). These stories demonstrated fairly blatant abuse of the DMCA, as none of the stories in question involved copyright infringement in the slightest. There was no reason for the takedown other than to hide content that the Ecuadorian government didn't like. Last fall, Buzzfeed took the story one step further, in getting access to some leaked documents proving that Ecuador's President, Rafael Correa, used the country's intelligence budget to censor critical content, often using copyright takedown requests. The records, seen by BuzzFeed News, show that at least one contract, for just under $4.7 million, was signed with a Mexican company that then successfully removed material from YouTube, Facebook, Vimeo, and Dailymotion. Videos removed by the company, which filed weekly reports on successful deletions, included a critical documentary by filmmaker Santiago Villa, an electoral broadcast from a rival accusing Correa of behaving like a dictator, a video from a former aide to Correa’s wife alleging persecution, and a report of a jailbreak from Ecuador’s highest-security prison. The article makes the Ares Rights connection, though noting that it appears that Ares Rights was brought in as a subcontractor to the original company the government hired. If you thought this publicity on the censorship-by-US copyright law plan might cause Ecuador and Ares Rights to back off, you'd be wrong. A new report from the Committee to Protect Journalists, notes that Ecuador and Ares Rights continue an active campaign to censor critics by abusing US copyright law. On December 30, César Ricaurte, the executive director of Fundamedios, received a copyright complaint with the potential to close his entire website. The complaint, filed on behalf of Ecuador's communications regulator SECOM by a company called Ares Rights, ordered the independent press freedom group to remove an image of President Rafael Correa from its website, he told CPJ. The incident, which Fundamedios denounced on its website as censorship, is an example of how copyright complaints have been used against Ecuadoran news outlets and groups critical of the Correa administration. The article, among other things, notes that Ares Rights and Ecuador are relying, in part, on the fact that various US trade agreements and treaties mean that companies need to "respect" the copyrights from foreign countries, and that's why the DMCA is an effective tool, even if all of the parties are outside of the US. Either way, this should certainly reinforce the fact that copyright is frequently used for censorship. Sometimes it's censorship that many people approve of, such as blocking someone merely making use of someone else's work -- and sometimes it's used to censor political criticism. Until people recognize, however, that copyright is absolutely (and regularly) used for censorship, it's difficult to have any realistic discussion of how to prevent the abusive kind of censorship with kinds that people may find more reasonable.Permalink | Comments | Email This Story

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Another whistleblower is facing charges brought by this administration -- one that has prosecuted more whistleblowers than all other administrations combined. Thomas Tamm, a DOJ lawyer during the Bush era, exposed the NSA's super-secret domestic surveillance program, whose authorization ran directly from the Attorney General to the Chief Judge of the FISA Court. His whistleblowing led to a Pulitzer for the New York Times. The information Tamm gave to NYT reporters detailed something referred to only as "the program." The two-person approval process eliminated much of the paper trail and allowed the NSA to perform warrantless domestic surveillance. Colleagues of Tamm's at the DOJ's Office of Intelligence Programs and Review even told Tamm this was "probably illegal." As Cyrus Farivar points out, Tamm has spent several years being investigated, but, so far, nothing has stuck. In 2007, his house was raided by 18 FBI agents who seized every electronic device they could find in Tamm's house and pressured him to plead guilty to espionage charges. Two years later, Tamm received the "Ridenhour Truth-Telling" prize. Two years after that, the government dropped the espionage charges. But the government isn't done with Tamm. In what it likely views as a wrist slap, it's bringing ethics charges against Tamm for bypassing the "proper channels" to expose government wrongdoing. Basically, it's a bar complaint -- the government's last-ditch attempt to make Tamm pay for making it look bad. Respondent became aware that there were some surveillance applications that were given special treatment. The applications could be signed only by the Attorney General and were made only to the chief judge of the Foreign Intelligence Surveillance Court. The existence of these applications and this process was secret. Respondent learned that these applications involved special intelligence obtained from something referred to as "the program." When he inquired about "the program" of other members of the Office of Intelligence Policy and Review, he was told by his colleagues that it was probably illegal. Even though Respondent believed that an agency of the Department of Justice was involved in illegal conduct, he did not refer the matter to higher authority within the Department. For more than a decade, the government has gone after Tamm. All it's left with is this: a threadbare claim that Tamm's decision to bring this information to the press was a breach of trust. His "client" -- the DOJ -- was not handled in accordance with its "Rules of Professional Conduct." Still, it's more than the government actually needed to do. It could have used the opportunity to shut down a program that was considered "probably illegal" by other DOJ lawyers. Instead, it shot the only messenger it could: the person exposing the wrongdoing. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
It's striking that from a situation where there were very few studies of the likely effects of the TPP agreement, we've moved to one where they are appearing almost every week. Recently Techdirt wrote about a World Bank study, and one from Tufts University; now we have one from the Peterson Institute for International Economics, which calls itself "a private, nonprofit, nonpartisan research institution devoted to the study of international economic policy." Here's its summary of the results: The new estimates suggest that the TPP will increase annual real incomes in the United States by $131 billion, or 0.5 percent of GDP, and annual exports by $357 billion, or 9.1 percent of exports, over baseline projections by 2030, when the agreement is nearly fully implemented. Annual income gains by 2030 will be $492 billion for the world. While the United States will be the largest beneficiary of the TPP in absolute terms, the agreement will generate substantial gains for Japan, Malaysia, and Vietnam as well, and solid benefits for other members. The agreement will raise US wages but is not projected to change US employment levels; it will slightly increase "job churn" (movements of jobs between firms) and impose adjustment costs on some workers. That figure of 0.5% cumulative GDP gain by 2030 is in line with the other studies discussed previously here on Techdirt. But there are various issues with both that figure and the study itself, which are highlighted by Dean Baker, co-director of the Center for Economic and Policy Research, in a post on Medium. One of the most serious is something we've noted before: despite attempts to present them as otherwise, the predicted gains are extremely small. Baker explains this well: The study's projection of a cumulative gain to GDP of 0.5 percent by 2030 implies an increase in the annual growth rate of 0.036 percentage points. This means that if the economy was projected to grow by 2.2 percent a year in a baseline scenario, it will instead grow at a 2.236 percent rate with the TPP, assuming the Peterson Institute projections prove correct. The projections imply that, as a result of the TPP, the country will be as rich on January 1, 2030 as it would otherwise be on April 1, 2030. Then there's the matter of the econometric modelling technique adopted. The Computable General Equilibrium (CGE) analysis employed by the Peterson Institute makes some very big assumptions: The model assumes that the TPP will affect neither total employment nor the national savings (or equivalently trade balances) of countries. This "macroeconomic closure" assumption allows modern trade models to focus on the goals of trade policy -- namely sustained productivity and wage increases through changes in trade patterns and industry output levels. With minor variations, the assumption is used in most applied models of trade agreements. That means -- by definition -- these CGE models can tell us nothing about the effects of TPP on employment, and assume that no jobs are lost or gained overall. Baker points out another major consequence of this approach: by design the model assumes that trade balance for the United States is not changed as a result of the TPP. This means that whatever changes we see in exports, according to the model, will be matched by an equal change in imports. As a result, the predicted boost of $357 billion to US exports thanks to TPP is matched by a balancing boost of $357 billion to imports as well. Baker also offers an explanation of why the CGE model makes its rather surprising view on employment: In prior decades most economists were comfortable with this sort of full employment assumption since it was widely believed that economies quickly bounced back from recessions or periods of less than full employment. In this view, if a trade agreement led to a larger trade deficit it would soon be offset by lower interest rates, which would provide a boost to investment and consumption. However: in the wake of the 2008 crash, fewer economists now believe that the economy has a natural tendency back to full employment. Many of the world's most prominent economists (e.g. Larry Summers, Paul Krugman, Olivier Blanchard) now accept the idea of "secular stagnation." This means that economies really can suffer from long periods of inadequate demand. That risk is one key reason why the lack of currency controls in TPP is a big problem: if one or more of the countries in the TPP began running larger trade surpluses with the United States, and then bought up large amounts of dollars to prevent an adjustment of their currency, there is nothing the United States could do within the terms of the agreement. Another analysis of TPP comes from a very different quarter: the New Zealand government, as part of the formal process of ratifying the treaty. Even though the document runs to 279 pages (pdf), relatively few of them are devoted to how the modelling results were obtained, and how plausible they might be. The independent team behind a new "expert paper", part of a series exploring many aspects of TPP from a New Zealand viewpoint, was not impressed by what it found there (pdf): [The writers in the expert group] found that the standard of documentation of the modelling is dreadfully inadequate -- just 20 pages of text in the published report. The authors [of the New Zealand government report] should have chosen, or been asked to present, a much weightier and more detailed account of every facet of the data, assumptions, modelling and results. Not only is the methodology poorly explained, but the results are underwhelming too. The official predictions of economic gains for New Zealand are summarized as follows by the team of economists: The government has used modelling to derive estimates of the economic benefit for New Zealand and estimated an increase in real GDP of 0.9% by 2030 or $2.7 billion annually. The increase is modest. A continuation of currently forecast levels of growth would mean that NZ GDP would be 47% higher by 2030 without TPPA, versus 47.9% with TPPA. The expert group are even more scathing about the way in which the supposed benefits of removing "non-tariff barriers" (NTBs) have been included: The government's analysis estimated that reducing NTBs would account for $1.7 billion of the $2.7 billion estimate for gains from the TPPA. The modelling is not specific about the types of NTBs that exist amongst the TPPA countries, aside from the definition that they are 'measures that are discriminatory and are for the purposes of restricting trade'. There is no adequate explanation about which countries maintain these barriers, how they are distinguished from legitimate NonTariff Measures (that are not for the purposes of restricting trade), what proportion of NTBs would be removed, what provisions in the TPPA would remove them or what the risks would be to societies as a result of their removal. That lack of specificity is a serious problem, because most of the gains from TPP are supposed to come from removing NTBs. Without the details, there's no way of knowing how plausible the assumptions are. In any case, as the economists go on to note rather acidly: This approach implies that societies maintaining higher levels of protection for social, environmental and health reasons, and a more developed system of business regulation, will generate benefits by removing their regulations. This may be a view held by some neoliberal economists but it is not the view of many other economists, and not supported by evidence. The appearance of these new studies, together with those that were published before, underlines the fact that, whatever the source, it seems impossible to find any compelling economic justification for signing up to the agreement, since the gains are so pitiful -- and that's without including possible costs, which are never discussed. That this is only now becoming incontrovertible, in the wake of the publication of the TPP text last year, also shows why all the key documents should have been released as they were written in order to allow this kind of in-depth analysis to be conducted and debated as the talks proceeded. Not, as is happening currently, just a few days before the official signing ceremony on February 4 when it's a bit late to do much about it. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
The NYPD is once again in the middle of a transparency/accountability controversy. The law enforcement agency has achieved the dubious distinction of being more difficult to obtain public records from than federal three-letter agencies like the CIA and NSA. The latest news does nothing to improve its reputation. Some of this is due to its in-house classification system, which allows it to arbitrarily declare potentially-responsive documents "secret" -- something it does quite often with no apparent oversight. Some of it is due to the department's general antagonism towards transparency and openness, which keeps documents not marked secret out of the public's hands just because. Its steadfast belief that the only entity truly entitled to information is the NYPD has seen this attitude carried over to discovery requests in civil lawsuits and criminal cases, much to the general disgruntlement of presiding judges. With the NYPD's court-ordered body camera program going into effect, the recorded footage is the latest target of FOIL (Freedom of Information Law) requests. TV station NY1 asked for a "sampling" of body-worn camera footage from five weeks of recording. In return, the NYPD has given it nothing but delays… and a high-dollar estimate. When the NYPD first rolled out its body camera pilot program, the idea was increased transparency and accountability. But last spring when NY1 requested five weeks worth of footage under the state’s Freedom of Information Law, known as FOIL, the NYPD said it would cost NY1 $36,000 so that an officer could first review and edit the video, to address privacy and other concerns. After a couple rounds of appeals, the TV station has taken the next step. It sued the NYPD, citing a number of FOIL violations. The NYPD denied NY1's request for unedited footage without specifying what material it plans to redact, how much material will be excluded from disclosure, or how the redaction will be performed. Instead, Respondents suggested that they may provide with edited footage, but only on the condition that remit $36,000.00, the alleged cost to the NYPD of performing its unidentified redactions. FOIL does not permit public records to be withheld absent a full explanation of the materials that are exempt from disclosure. FOIL also does not permit agencies to levy any charge for review and redaction of records (let alone a $36,000.00 charge). As a result, the response to NY1's request violates FOIL. Indeed, the response to NY1's request for footage runs counter to both the public policy of openness underlying FOIL, as well as the purported transparency supposedly fostered by the BWC program itself. Redacting footage isn't necessarily inexpensive, but the NYPD has provided no justification for the $36,000 fee. The FOIL request doesn't ask for anything more than a "sampling" of the recorded footage. The NYPD responses don't specify whether the agency considers this to be every minute of footage recorded during those time periods, or something considerably more limited. It is true that the footage will have to be redacted, at least in part. But without further information, the "reasonableness" of the NYPD's fee demand can't be assessed. This FOIL paywall runs contrary to the law's purpose, as well as the presumption of disclosure stressed in comments made by NYC Mayor Bill de Blasio, who lauded the new body-worn camera program as a step forward in transparency and accountability. If the footage remains solely in the possession of the NYPD, there will be no additional transparency or accountability. On the other hand, NYPD Commissioner Bill Bratton seems to feel the state's public record law only applies to other government agencies. The NYPD currently ranks at the bottom of the list for city agency FOIL responsiveness. That seems unlikely to change if this is how the department responds to requests for footage. "We have never released 911 calls, and video recorded by these officers, I think, would be under the same protection of not being released, even to FOIL requests," said Police Commissioner William Bratton. Unfortunately, this response from the NYPD -- despite effectively pricing NY1 out of the market for these public records -- directly contradicts the commissioner's beliefs. Obviously, the NYPD FOIL team feels these documents are responsive to public records requests. However, it's more than willing to do whatever it takes to ensure this responsiveness remains in the realm of the theoretical. Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Current robotic developments are impressive, but about 200 years ago, mechanical watches and clockwork mechanisms were at the height of miniaturized, complex technology. Watch complications (the functions other than the time in hours and minutes) have continued to grow in complexity with thousands of parts and dozens of time-related functions, but these features can't quite compare to the millions of "apps" that are available now. Check out a few of these clockwork examples and stop complaining about needing to recharge your battery every night. Parmigiani Fleurier is a watch making company with a 'Restauration' workshop -- restoring intriguing mechanical devices such as a singing bird pistol from 1815. If you don't know what a singing bird pistol is -- it's the most expensive gag gift ever. It looks like a gun, but when you pull the trigger, a little clockwork bird pops out and whistles at you. This particular pistol was restored in painstaking detail, and we're lucky there was no DRM to prevent anyone from taking these things apart and fixing them. [url] The Ethiopian Caterpillar is another automaton from 1820. Only six of them are known to exist, and if they weren't encrusted with jewels, they'd be even more creepy looking. [url] The only pair of singing bird pistols known to still exist in working condition were sold at auction a few years ago for nearly $6 million. And if you're wondering how the birds actually sing, there's a miniature system of bellows and whistles that are driven by clockwork to produce the sounds. [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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