posted 11 days ago on techdirt
A few years back, we had a few stories about ridiculous situations in which the Bulgarian Chess Federation was trying to claim copyright on chess moves and had even sued a website for copyright infringement for broadcasting the moves. Of course, chess moves are not just factual information, but they're historically written down and shared widely, because that's part of how people learn to play chess (and get better at it). Studying the moves in various games is part of how people practice chess, and no one is expected to claim "ownership" over the chess moves, because they can't. And yet... we've just come across two separate cases, involving one particular organizer of chess tournaments, trying to abuse the law to block reporting on chess moves -- in both Russia and the US. Both cases are ridiculous, and thankfully, both have failed so far. The Moscow case actually kicked off back in the spring, when the organization Agon, which runs World Chess Championships and the website WorldChess.com, sued some websites, including Chess24, for posting the chess moves of live events. Thankfully, the Commercial Court of the City of Moscow rejected the lawsuit a few weeks ago, though Agon has said it will appeal. There are a number of reasons why Agon lost the case, but the key one: Art. 14.7 of the Competition Act does not apply in particular since the Plaintiff did not establish a regime of commercial secrecy for the information about the chess moves. On the contrary, this information was in the public domain (as the Plaintiff himself admits on page 6 of the statement of claim). Consequently, information about the chess moves is not a trade secret and is not protected by law. Accordingly, the Defendant did not receive, use or disclose information that was a trade or other secret protected by law i.e. he did not violate Art. 14.7 of the Competition Act. Then, just days after that ruling in Moscow, a very similar case was filed in the US by World Chess -- which is owned by Agon. And, it also targeted Chess24, one of the same companies it had sued in Moscow. In the US, it's clear that there's no copyright claim to be made in chess moves -- too many cases clearly preclude trying to claim a copyright in factual data, especially factual data about sports/competitions. Instead, World Chess focused on the pretty much dead and discredited "hot news" claims against a few other chess sites. The entire complaint can basically be summarized as "but... wah... it's not fair!" Defendants have made a pattern and practice of copying and redistributing in real time the chess moves from tournaments covered byWorld Chess shortly after the moves appear on World Chess’s website, and unless restrained by this Court will do the same with respect the November 2016 Championship. World Chess not only asked for an injunction against Chess24 -- but also demanded that the court order the domains of the defendants be transferred over to World Chess. The defendants hit back with a detailed explanation of how ridiculous World Chess's lawsuit was: By its Application for a Temporary Restraining Order and Preliminary Injunction, Plaintiffs World Chess US, Inc. and World Chess Events Ltd. (collectively, “Plaintiffs”) seek to prevent legitimate chess-oriented websites from reporting on, discussing, and analyzing one of the major chess matches of the year – even though the information Chess24 seeks to report on will already be readily available to the public. Plaintiffs attempt to do so by claiming that because they are the organizers and promoters of the chess match they have an intangible, enforceable property right in the facts surrounding that match, and therefore have the exclusive right to publish and report on what the players are doing. The claims made by Plaintiffs run contrary to the well-established law of this Circuit and public policy. Chess24 points out that World Chess is clearly just trying to do an endrun around well-established copyright law, and that's a big no-no. Plaintiffs know that the moves made by professional chess players are precisely the type of factual material that is not protectable by copyright law. But it also cannot be protected under theories of common law misappropriation. The law is absolutely clear in this Circuit that state law claims for misappropriation of unprotectable facts – including live sports plays – are preempted by Section 301 of the Copyright Act. In an effort to avoid preemption, Plaintiffs have relied on an extremely narrow exception for so-called “hot news misappropriation.” That exception plainly does not apply here. In fact, Plaintiffs almost completely ignore the dispositive case in this area -- NBA v. Motorola, 105 F.3d 841, 846 (2d Cir. 1996). In Motorola, the Second Circuit expressly rejected the exact same claim that Plaintiffs attempt to argue here, involving almost the exact same factual circumstances. Specifically, that case held that the NBA could not prevent Motorola from attending and watching basketball games and selling play-by-play accounts of the game to its mobile customers. In contrast to this dispositive case law, Plaintiffs are unable to cite even a single case upholding an injunction like the one sought by Plaintiffs in even remotely similar circumstances. Oh, and also, Chess24 points out to the court that (1) Agon/World Chess just lost a nearly identical case in Moscow and (2) it waited until just days before the tournament in question started to try to force a quick injunction: Even more telling is the fact that although Plaintiffs have been in litigation with Chess24 in Moscow since March (Plaintiffs recently lost that case), they waited until just four days before the start of the WCC to bring this motion. Plaintiffs’ decision to file their lengthy motion at the eleventh hour is not just sharp tactics; it confirms that there is no actual irreparable injury in need of remediation. There was a hearing in court, and the judge, Victor Marrero, rejected World Chess/Agon's request for an injunction. As of writing this, the court has only posted the short order without the full explanation, which is expected to be published later. But, given the facts here, it seems fairly obvious why the court rejected the case -- and it's all of the many reasons that Chess24 laid out in its brief. Hopefully, these companies can finally get it through their heads that you can't copyright chess.Permalink | Comments | Email This Story

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Despite ample lip service to the subject of broadband, huge swaths of United States' broadband markets are becoming less competitive than ever before. Companies like AT&T and Verizon have proven completely disinterested in upgrading huge swaths of their networks, instead pivoting toward content and advertising, as evident by AT&T's $155 billion acquisitions of DirecTV and Time Warner, and Verizon's acquisitions of AOL and Yahoo. CenturyLink and Windstream are following suit, shifting their focus from residential broadband to enterprise service with their respective acquisitions of Level 3 and Earthlink. That's not to say that telcos aren't upgrading their networks at all. Many selectively upgrade customers in markets where fiber is already in the ground and deployment costs are minimal (developments, college campuses), then use marketing magic to pretend these deployments are much larger than they actually are. But in reality most telco execs are now shifting their attention to higher-growth markets like content and advertising, well aware of Wall Street's outright refusal to wait on a return on broadband investment. As a result, not only are these "broadband" companies incapable of technically offering millions of their customers the FCC definition of broadband (25 Mbps), they're quite actively trying to drive these unwanted customers away with the one-two punch of outright apathy or price hikes for 2003-era speeds. As a result, phone companies have seen broadband subscriber net losses in five of the last six quarters. In fact, in the first three quarters of 2016, cable companies added about 2,440,000 broadband subscribers, while Telcos lost about 475,000. Last quarter alone the top cable providers added about 775,000 net broadband customers, compared to a net loss of 150,000 broadband subscribers for the nation's telcos:Cable's faster broadband speeds and telco apathy also mean cord cutting is hitting telcos much harder. Leichtman Research states that pay TV overall lost about 255,000 subscribers last quarter (other estimates from folks like SNL Kagan peg that number at closer to 430,000). But whereas cable providers lost just 90,000 net pay TV customers last quarter, the telcos lost 375,000 net pay TV customers. In short, customers frustrated with slow DSL are fleeing to cable, then signing up for cable TV bundles they may not even want, usually because they're priced more cheaply on promotion than cable broadband alone. Obviously this is all wonderful news if you're a cable broadband provider. As telcos back away from the residential broadband markets they don't want to upgrade, cable's monopoly becomes stronger than ever. As a result, cable providers can implement their weapon-du-jour against streaming video providers (usage caps and overage fees), without fear of the competitive repercussions you'd see in a healthy market. There's also less incentive than ever to lower prices, or to shore up what has historically been some of the worst customer service in any U.S. industry. While some (including AT&T and Verizon) like to claim that fifth-generation wireless will come in and save us from this more powerful cable monopoly, there's absolutely no indication these services will be uniformly available -- or cheap. While 5G technically does provide significantly faster broadband with lower latency, usage caps and overage fees will ensure these services are priced out of the range of many households. And again, with the only competition being either expense and capped satellite broadband, or expensive and capped cable broadband, the end result won't so much be competition as it will be competition theater. Keep in mind cable providers are being allowed to consolidate at a faster rate than ever before, at the same time we seem intent on turning a blind eye to letting incumbent ISPs quite literally write awful protectionist state laws that hamstring broadband competition and creative solutions to spotty coverage. Combine that with the early signs that a Trump Presidency will likely focus on gutting net neutrality and other consumer protections, and the writing on the wall for U.S. broadband markets should start to come into focus.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Another court has handed down a decision that upholds the standard set by the Supreme Court in the Rodriguez decision. That standard is pretty cut and dry: any Constitutional violation is still a Constitutional violation -- whether it lasts 30 seconds or ten minutes. In the context of a traffic stop, any actions taken not supported by reasonable suspicion -- like running a drug dog around the vehicle or spending time begging for consent for a search -- are not allowed under the Fourth Amendment. It was assumed law enforcement would just search for ways to speed up these unrelated activities so that traffic stops wouldn't be "unreasonably prolonged." The Supreme Court gave no guidance on what constituted an unreasonably lengthy traffic stop. Scott Greenfield theorized officers would read this decision to mean they could still do all the things they wanted to do, just so long as the stop ended whenever the "objective" -- usually the delivery of a citation -- was complete. But then, there is the takeaway. Have the dog there before you hand over the ticket and you get a sniff, no Constitution allowed. Don’t rush the ticket, because nobody knows how long it does, or should, take to complete the core mission. And if the dog happens to show before it’s done, boom, lawful. Ask those Frisbee questions before you hand over the paperwork. Seek consent while you still have the driver’s license in hand. Smell the car for that “pungent” odor, peer knowingly for that furtive gesture, or stare carefully for those watery and lethargic eyes, before you hand over the papers. This theory seems have been proven correct. Law enforcement officers have drawn the wrong conclusion from the Rodriguez decision. That's probably to be expected, as law enforcement really loves the relaxed Constitutional guidelines surrounding traffic stops. The upside is that courts aren't allowing them to get away with it. A recent decision covered here found that there was no minimum amount of time needed to violate the Constitution. It was the violation that mattered, not the length of time it took to violate it. In the course of a traffic stop, a drug dog was deployed. That it occurred simultaneously with the normal traffic stop paperwork made no difference. The evidence was suppressed by the court, relying on the Rodriguez decision. The Idaho Supreme Court has reached the same conclusion in another case -- one that also involved a speedily-deployed drug dog. In this case, the traffic stop lasted over twenty minutes, but the drug dog's involvement was less than three minutes of that total. Much like the earlier decision, the slight delay isn't the deciding factor. The "unnecessary" part of the "prolongment" is. (h/t FourthAmendment.com) From the opinion [PDF]: Deputy Bryce Moore (“Deputy Moore”) arrived at the scene with his drug detection dog (“Hash*”) at approximately 10:38 a.m., ten minutes after he was called and nineteen minutes after the stop was initiated. At that time, Officer Bridges stopped writing the citation and running the warrant checks. Deputy Moore then approached Mrs. Linze and asked for consent to search her vehicle. When she refused consent, Deputy Moore walked Hash around the exterior of the vehicle. Hash gave a positive alert at the front of the vehicle. At trial, the State estimated, based on speaking with Officer Bridges, that the time from Deputy Moore’s arrival to Hash’s alert was two and a half minutes. The State conceded that during those two and a half minutes, Officer Bridges had stopped pursuing the original purpose of the stop and was instead serving a “backup function” to Deputy Moore. *[I know, right?] The State's concession matters. That's what ultimately undoes its bid to prevent suppression of the evidence. Two and half minutes is more than enough time to violate the Fourth Amendment. Here, we have a case in which a police officer had probable cause because Mrs. Linze was driving with a cracked windshield, which constitutes a traffic violation. It follows that the initial seizure was reasonable under the Fourth Amendment. The pertinent question before this Court is whether or not the seizure remained reasonable under the Fourth Amendment once Officer Bridges abandoned the purpose of the seizure in order to aid in a search for contraband. We hold that it did not. The State's argument follows Greenfield's projection: we can violate the Fourth Amendment as long as it happens within a reasonable amount of time. The State suggests that Rodriguez allows a seizing officer to deviate from the purpose of a traffic stop up until the time at which the stop should have been reasonably completed. In other words, for each traffic stop there is an objective amount of time within which that stop should reasonably be completed and any unrelated action taken by an officer within that amount of time does not violate the seized parties’ Fourth Amendment rights. The defense's interpretation more accurately portrays the Supreme Court's findings in Rodriguez. Conversely, Mr. Linze reasons that a deviation from the original purpose of a traffic stop will inevitably lengthen the time needed to complete the original purpose of the seizure, and, accordingly, will result in a stop that “exceed[s] the time needed to handle the matter for which the stop was made.” Under Mr. Linze’s suggested interpretation, the timing of an officer’s departure from the original purpose of the seizure is irrelevant, it only matters that the officer departed from that purpose. Mr. Linze wins. We hold that Mr. Linze’s interpretation of Rodriguez is correct. The United States Supreme Court has plainly established that a traffic stop is a seizure, but it is not an unreasonable seizure under the Fourth Amendment so long as there is a reasonable suspicion that the vehicle is being driven contrary to traffic laws. United States v. Cortez, 449 U.S. 411, 417 (1981). The stop remains a reasonable seizure while the officer diligently pursues the purpose of the stop, to which that reasonable suspicion is related. However, should the officer abandon the purpose of the stop, the officer no longer has that original reasonable suspicion supporting his actions. Indeed, when an officer abandons his or her original purpose, the officer has for all intents and purposes initiated a new seizure with a new purpose; one which requires its own reasonableness under the Fourth Amendment. This new seizure cannot piggy-back on the reasonableness of the original seizure. Once again, law enforcement engages in its own, unsupported interpretation of the Rodriguez decision. And once again, a state court tells it to work on its reading comprehension skills. Then there's this bit of inadvertent hilarity, provided by one of the officers on the scene to shore up the state's "not unreasonably prolonged" arguments. The gist of it is: I'm not killing time to wait for drug dogs. I'm just kind of terrible at traffic stops. At the hearing, Officer Bridges testified that he did not delay the traffic stop while waiting for the K–9 Unit to arrive. He testified that the stop took twenty minutes because: “I was thorough. On warrant checks I ran both through the computer. And my handwriting is very sloppy, so I take my time when I write my tickets. . . . If I would have finished early, I would have called off the canine.” That last part is literally unbelievable. I would not hesitate to bet real money that Officer Bridges has never "called off a canine" in his career as a law enforcement officer. Only the rarest of law enforcement officers would turn down a chance to run a K-9 around a stopped vehicle. The problem now is the Supreme Court says they can no longer do it just because. Permalink | Comments | Email This Story

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We haven't really written much about the insane Theranos scandal, though we discussed it on our podcast. The whole story is pretty crazy -- involving a heavily hyped up company that appeared to basically be flat out lying to everyone about what it could do. The company still exists, but barely. The company's founder and CEO, who was plastered across magazine covers and compared frequently to Steve Jobs, has been banned from running a lab for two years, and the company is now facing a $140 million lawsuit from its biggest partner, Walgreens, who claims that Theranos repeatedly lied to Walgreens. All the while, Walgreens alleges that Theranos: actively misled the company; didn’t live up to the quality and regulatory promises; kept Walgreens in the dark about problems; refused to answer questions as media reports came out about those problems; accused Walgreens of leaking information to the press; and asserted that Walgreens was the one that had breached their agreement. One thing that became clear as the whole scandal broke, was that the company continued to aggressively deny wrongdoing, even as it became more and more obvious that almost everything that Theranos was saying publicly, allowing the company to be valued around $9 billion, was completely bogus. One of the most striking stories that came out a few months ago, was a report on the almost cult-like response from Theranos after the very first of a series of articles exposing the fraud came to light. The reporter who did an amazing job in exposing Theranos was the Wall Street Journal's John Carreyrou. And according to a thorough recounting in Vanity Fair, after Carreyou's first article, rather than honestly addressing the allegations, this happened: By the time she returned to Palo Alto, the consensus was that it was time, at last, for Holmes to address her hundreds of employees. A company-wide e-mail instructed technicians in lab coats, programmers in T-shirts and jeans, and a slew of support staff to meet in the cafeteria. There, Holmes, with Balwani at her side, began an eloquent speech in her typical baritone, explaining to her loyal colleagues that they were changing the world. As she continued, Holmes grew more impassioned. The Journal, she said, had gotten the story wrong. Carreyrou, she insisted, with a tinge of fury, was simply picking a fight. She handed the stage to Balwani, who echoed her sentiments. After he wrapped up, the leaders of Theranos stood before their employees and surveyed the room. Then a chant erupted. “Fuck you . . .,” employees began yelling in unison, “Carreyrou.” It began to grow louder still. “Fuck you, Carreyrou!” Soon men and women in lab coats, and programmers in T-shirts and jeans, joined in. They were chanting with fervor: “Fuck you, Carreyrou!,” they cried out. “Fuck you, Carreyrou! Fuck. You. Carrey-rou!” That same Vanity Fair article notes that the company's lawyer, David Boies, threatened employees for talking to journalists. Boies, you may recall, made a name for himself for taking on Microsoft in the 1990s, but since then has been involved in a series of... well... bad decisions. You may recall him sending out bullshit letters threatening media companies for reporting on the leaked Sony emails a couple years ago. Boies also represented Oracle against Google in the fight over copyrighting APIs, and also represented SCO, back during that company's ridiculous legal fight against IBM over Linux. In this case, Boies wasn't just a lawyer for Theranos, but on their board as well: Meanwhile, Theranos had its lawyers send a letter to Rochelle Gibbons’s attorney, threatening legal action for talking to a reporter. “It has been the Company’s desire not to pursue legal action against Mrs. Gibbons,” a lawyer for Boies, Schiller & Flexner wrote. “Unless she immediately ceases these actions, she will leave the Company no other option but to pursue litigation to definitively put an end [to] these actions once and for all.” It turns out that's not the only people Theranos went after. The same reporter who exposed the fraud and was the subject of those chants recently had another story detailing the ridiculous lengths that Theranos has gone to in an effort to silence one of the whistleblowers who revealed the problems at the company. The story is quite incredible (though, possibly blocked by the WSJ's paywall). The whistleblower was a guy named Tyler Schultz -- who just happened to be the grandson of well known former Reagan Secretary of State George Schultz... who also was on Theranos' board (the board was stocked with famous political people, and few with any actual experience in Theranos' field). The younger Schultz apparently had emailed Elizabeth Holmes pointing out how the company was doctoring research and received a lecture instead: After working at Theranos Inc. for eight months, Tyler Shultz decided he had seen enough. On April 11, 2014, he emailed company founder Elizabeth Holmes to complain that Theranos had doctored research and ignored failed quality-control checks. The reply was withering. Ms. Holmes forwarded the email to Theranos President Sunny Balwani, who belittled Mr. Shultz’s grasp of basic mathematics and his knowledge of laboratory science, and then took a swipe at his relationship with George Shultz, the former secretary of state and a Theranos director. “The only reason I have taken so much time away from work to address this personally is because you are Mr. Shultz’s grandson,” wrote Mr. Balwani to his employee in an email, a copy of which was reviewed by The Wall Street Journal. The rest of the story is pretty incredible. Schultz, smartly, quit that same day, and then reached out to regulators in NY to blow the whistle on misrepresentations by Theranos, helping lead to the eventual unraveling of the company. And, again, rather than deal with the actual problems, the company just targeted the younger Schultz (and, incredibly, the grandfather sided with the company). In the past year and a half, the grandson and grandfather have rarely spoken or seen one another, communicating mainly through lawyers, says Tyler Shultz. He and his parents have spent more than $400,000 on legal fees, he says. He didn’t attend his grandfather’s 95th birthday celebration in December. Ms. Holmes did. “Fraud is not a trade secret,” says Mr. Shultz, who hoped his grandfather would cut ties with Theranos once the company’s practices became known. “I refuse to allow bullying, intimidation and threat of legal action to take away my First Amendment right to speak out against wrongdoing.” First of all, kudos to Tyler Schultz for standing up to this bullying. And, second, what the hell is wrong with Theranos that they seemed so focus on attacking anyone who questions them, rather than focusing on actually fixing the problem. I get that there's this view of Silicon Valley companies where there's something of a "fake it, until you make it" attitude, but there are limits. There's much more in the WSJ story that is really quite incredible. It suggests a level of closing ranks to protect the reputation of Theranos, rather than actually dealing with the fact that their stuff didn't work the way they said it would.Permalink | Comments | Email This Story

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Back in September, Facebook issued a mea culpa when it realized it had been accidentally inflating a key video metric for over a year. Now, the company has turned up several more audience metrics that were being miscalculated: The company publicly disclosed on Wednesday that a comprehensive internal metrics audit found that discrepancies, or “bugs,” led to the undercounting or overcounting of four measurements, including the weekly and monthly reach of marketers’ posts, the number of full video views and time spent with publishers’ Instant Articles. None of the metrics in question impact Facebook’s billing, said Mark Rabkin, vice president of Facebook’s core ads team. Facebook is always quick to add that last part, of course — and it's technically true, though the indirect impact of performance metrics on how much publishers are willing to spend on Facebook ads is somewhat harder to be sure about. But what's more interesting is Facebook's plan to fix and improve the metrics going forward: For starters, Facebook will provide viewability data from third-party metrics companies like Moat and Integral Ad Science for display ad campaigns. Previously, this data was limited to video campaigns. ... In addition, Facebook said it is working with Nielsen to count Facebook video views, including both on-demand views and live viewing, as part of Nielsen’s Digital Content Ratings metric. ... Lastly, Facebook said it plans to form a Measurement Council made up of marketers and ad agency executives, and will also roll out a blog to more regularly communicate updates about measurement. Well, one thing is clear: fixing Facebook metrics is going to be a huge boon... for the metrics and marketing industries. Big new contracts for metrics companies! Executive jobs on Facebook's new council! A new strut to prop up the ersatz monster of Nielsen ratings! Millions of dollars will be spent fixing and refining these metrics — which Facebook emphasizes are only four of over 220 it collects. Wow, 220! But online advertising still almost universally sucks, so you'd almost think the quantity of metrics isn't helping, and might even be optimizing in the wrong direction... So what exactly are the benefits for publishers and users going to be? Is advertising going to improve in quality? All the pressure on Facebook over this has come from marketing agencies, advertising networks and other tracking and metrics companies. And they're the ones who are still complaining, since Facebook still doesn't plan to allow ad buyers to add third-party tracking tags as some, like GroupM (the world's largest advertising media company), have called for. But given how ultimately useless such metrics generally turn out to be, here's my question: do these companies actually know or even care if any of these things improve the efficiency or efficacy of advertising's ultimate goal — connecting consumers with products they want and generating a positive return on investment for advertisers — or does that not really matter, since they can profit just by showing clients fancier charts with more numbers and boasting about more elaborate tracking mechanisms in a whirlwind of marketing-speak about their new, revolutionary approach to serving everyone the same damn ad for a Thai dating website? I know what I think. But hey, just because a castle is built on sand doesn't mean Facebook can't pay for a few new towers, right? Permalink | Comments | Email This Story

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I'm still baffled about how there are lawyers out there who seem oblivious to Section 230 of the CDA and how you can't just sue a platform because of something a user did. Apparently lawyer Harry J. Jordan from Washington DC is either unaware of the law, or simply decided to ignore it, in filing a silly lawsuit against Google asking for $8 million on behalf of Dawn Bennett and the "sports apparel" firm she runs called DJ Bennett. The story is a fairly familiar one. A guy named Scott Pierson claimed to be a Search Engine Optimization (SEO) expert, and convinced Bennett to pay a large sum of money to improve the performance of DJ Bennett's website. Things didn't work out, there was an exchange of words, some threats to negatively harm the website and an agreement on final payment (and also something about a lost check that was eventually rectified). Bennett claims that after all of this Pierson set up a blog on Google's blogging platform that made a bunch of negative remarks about DJ Bennett, some of which may very well be defamatory. But, do me a favor, and look at the caption on the lawsuit, and tell me where Scott Pierson is as a party to the lawsuit? Hmm. No Scott Pierson? Instead, there's just a giant corporation that didn't do anything here? Yup. This has all the hallmarks of a Steve Dallas lawsuit where a marginally connected big company is sued because "Hey, they've got the money." The rationale for Google being the defendant is just as ridiculous as you'd expect: Google continued to carry Pierson’s blog after plaintiffs’ counsel repeatedly alerted it of the factual distortions and malicious intent of Pierson’s blog and his abuse of the internet process to distort public interest in his blog. Google therefore shares in the responsibility with Pierson in plaintiffs’ financial damages. Plaintiffs will show at trial that they have lost more than $3 million in actual and potential business revenue because of Google’s publication of Pierson’s blog, and separately, Dawn Bennett has suffered several times that amount in damages to her business and professional reputation. Right, see, that's not how this works. Just because Google hosts a blog, it doesn't make it liable for anything posted on it. And that's true even if you alert Google to not liking content. Hell, it's even true if the content has been proven defamatory in court (though Google tends to take things down upon receipt of such a ruling). I can understand why Bennett is upset. But if the content is truly defamatory, then sue Pierson, who is responsible for it. And the lawyer -- Harry Jordan -- should let her know that Pierson is the only one she can sue over this, and should know that any attempt to sue Google will get tossed out of court super fast. But instead, he pushes forward with this lawsuit -- and doesn't even make the slightest attempt to get around Section 230, suggesting he may not even be aware of it. Hell, it's not even clear that Jordan understands defamation law. Unlike most lawsuits of this nature, it doesn't cite the law in question. Instead, it makes claims about what is defamatory that are simply not accurate. Here's what the lawsuit says: A defamatory statement is one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby encouraging others in the community from having a good opinion of, or from associating or dealing with that person. To determine whether Pierson’s blog meets this standard, consideration must be given to what was stated, what was intended by the statement, and how it was likely to have been understood by those to whom it was communicated. That's uh... not what defamation is. Notice that critically missing here is any question of whether the statements are false. A mere statement that exposes someone to public scorn, hatred, contempt or ridicule (assuming it doesn't reach the actual tests for defamation) is clearly protected speech. Just for reference, Washington DC's actual defamation law requires a very different standard, including (as it must) that the statements be false and defamatory. Furthermore, corporations are considered public figures, meaning that the test also must include the "actual malice" standard (which, for all we know, could be shown), but it would still need to be shown against the right defendant. And that's not Google. The lawsuit makes similar and equally problematic claims about "tortious interference" and "intentional infliction of emotional distress." Those are also clearly inappropriate under Section 230. And again, the link to Google is exceptionally tenuous. As Google was aware of plaintiffs’ complaints that Pierson’s blog was factually false and a malicious vendetta against them and meant to cause crippling financial damages, it is therefore equally responsible and liable for the damages plaintiffs’ have suffered. Nah, that's not how it works.Permalink | Comments | Email This Story

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Paul Alan Levy of Public Citizen is finally getting some judges to pay closer attention to bogus libel lawsuits being filed in hopes of delisting negative reviews. The process -- one that's been uncovered by Levy, as well as complaint site Pissed Consumer -- is this: A bogus libel lawsuit is filed, containing little more than conclusory statements and vague allegations about reputational damage. Miraculously, the alleged online defamer is located within days of the filing and convinced to sign an affidavit admitting guilt. These are presented to the judge, who then issues an order for delisting of content by search engines. These orders are lobbed into the overstuffed inboxes of Google, etc. and the reputation management firms behind these bogus lawsuits presumably sit back and issue invoices. At no point is any attempt made to contact the site where the supposedly libelous review is posted because that would just cause too many problems. Sites like Pissed Consumer and Ripoff Report fight back hard against attempts to remove reviews. The easiest route -- at least so far -- has been to bypass the alleged defamer and the original sites altogether and let Google, Bing, et al do the dirty work. One of these bogus lawsuits was filed in Rhode Island, attracting the attention of the site owner whose site was indirectly targeted by the fake lawsuit. Someone calling themselves "Bradley Smith" sued a commenter using the name "Deborah Garcia." That the suit was filed in Rhode Island has little to do with "Deborah Garcia" (whose IP address indicates she resides in California), nor the site where the comments were posted, which is located in North Carolina. Likewise, the supposed plaintiff is also not a resident of Rhode Island, but rather another Californian. But Rhode Island has something the other two states don't: a longer statute of limitations on libel lawsuits. Paul Alan Levy intervened on behalf of Steve "Get Out of Debt Guy" Rhode, whose site was targeted by the fake lawsuit. That move has paid off for Rhode, and will hopefully get the ball rolling on closer inspection of libel lawsuits seeking suspiciously speedy resolutions. Judge William E. Smith issued an order earlier stipulating delisting of the URL by various search engines. Levy has asked the judge to roll it back, given the lawsuit's extremely dubious origins. Levy is now asking Smith to vacate that order, alleging that the suit is a fake — and that Garcia doesn't even exist. Her 1588 Main St. address in Warwick cannot be found, said Levy, who also checked for Garcia at that address in West Warwick. The IP addresses on the negative posts, too, indicate the person commenting was based in California. "Simply put, as we see it, this is a fraudulent lawsuit" filed by an unscrupulous and sophisticated person, Levy told Judge Smith during a hearing Wednesday. It appears Profile Defenders -- a reputation management firm linked to other bogus lawsuits filed elsewhere -- is also connected to this case. Levy produced a contract between Profile Defenders and Rescue One showing that the reputation management firm had successfully removed content from the "Get Out of Debt Guy" website. He also presented an affidavit from the real Bradley Smith, saying he hadn't filed the lawsuit nor participated in its filing in any way. Judge Smith has now granted Levy's request to seek who's behind this lawsuit, starting with the check used to pay the filing fees. Judge Smith is now taking a second look at this lawsuit and is clearly disturbed by what he's seeing. In granting that request, Judge Smith took it a step further, saying he believed something even more foul is in play. "It does appear to me, at first blush, that multiple crimes have been committed," Judge Smith said, referencing possible fraud and forgery. "I'm pretty outraged about it." Smith ordered that a transcript of the proceedings be sent to the U.S. Attorney's Office. Hopefully, this discovery -- and perhaps an investigation by federal prosecutors -- will result in the unmasking of those abusing the court system to cash rep management checks. Hopefully, there will also be meaningful sanctions waiting for lawyers who willingly participated in this scheme. Now that these lawsuits are facing additional scrutiny, it's highly unlikely this reputation management "strategy" has much life left in it, even without the threat of federal scrutiny. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
There's a new brand of terrorism on the loose and Washington State Senator Doug Ericksen is the only one who can stop it. (h/t Jeff Pohjola) State Sen. Doug Ericksen, R-Ferndale, said Wednesday he is preparing a bill that would create a new crime of “economic terrorism...” Gotta love it when legislators start creating crimes out of thin air. What would compose "economic terrorism" in the eyes of Sen. Ericksen? Would it be market manipulation? Intentional flash crashes? Setting currency on fire in a crowded theater while shouting "Fire!"? Sadly, no. It would be First Amendment-protected activity. From the senator's website: - Timely measure criminalizes illegal protests aimed at causing economic damage - Applies to unlawful disruption of transportation and commerce - Allows treble damages against funders and organizers So, calling for a boycott of Starbucks because their "holiday" cups are crafted from pieces of the Shroud of Turin would definitely be "aimed at causing economic damage." Walking around outside and hassling otherwise unoffended coffee buyers would "disrupt commerce." And, at the end of the prosecutorial day, the person who created the "official" boycott Facebook page could be charged with a felony and forced to pay back $10-12 for the one cup of coffee disrupted. Digging into the details of Ericksen's proposal only uncovers more stupidity. The measure would allow felony prosecution of those who intentionally break the law in an attempt to intimidate or coerce private citizens or the government by obstructing economic activity. Weird. This leaves the possibility of unintentionally breaking the law, which presumably should lead to dismissed charges. Mens rea is nice and all, but this is just redundant verbiage meant to show how serious Ericksen is about his proposed law. This new puntitive measure will apparently felonize the hell out of protesters who mean it the most. Or whatever. “I respect the right to protest…" Says Ericksen, clearly not respecting the right to protest. If protesters break existing laws, then they can be dealt with accordingly. There's no reason to craft a new law and create a new form of criminal activity that uses the First Amendment as a doormat for its jackboots. Ericksen feels super-strongly about this new law. So strongly, in fact, that he seems to have almost zero grasp on the logistics of its deployment. He didn’t indicate who would determine when protesters become economic terrorists. Great. Let's just leave that in the hands of law enforcement, which has always been wonderful when allowed to exercise its own discretion. Give them a "blue lives matter" law and they'll throw the book at every drunken arrestee who calls them names. Give them the latitude to decide when picketing crosses into "economic terrorism," and I'm sure they'll make the right call. Speaking of picketing, Ericksen says his proposed law won't target this. Or strikes. But picketing and strikes are often meant to achieve the same ends the senator says should now be criminal actions: economic damage and disruption of transportation or commerce. So, he's set his own bill against itself and feels those in charge of enforcing even the stupidest of laws will just sort it all out for him. If this somehow becomes law, it will face an immediate First Amendment challenge. If it somehow survives that, it will become a burden for the criminal justice system, with both prosecutors and defenders having to work their way through a slough of trumped-up charges. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Take your IT career to the next level and ready yourself for the MCSE exam with the $60 Microsoft Certified Solutions Expert: Server Infrastructure Bundle. Over the 5 courses, you will learn how to install, configure and administer Windows Server 2012. Complete the courses at your own pace and by the end, you'll be ready to take the MCSE exam and get that certification to help beef up your resume. This is your last chance to buy one of our most popular bundles in the Deals Store. 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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posted 12 days ago on techdirt
Last week, we wrote about some bizarre DMCA claims made by a guy named "Mike Ferrell" who claimed to represent the Burlington, Massachusetts Police Department, demanding that Google remove a bunch of stories because it violated the copyright the police department held on certain mugshots. We pointed out how crazy this was -- and also questioned whether or not "Ferrell" really represented the police department, because the language used in the takedown was a word salad of nothingness. In case you didn't remember: Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us. Mike Kent, the Chief of Police in Burlington reached out to us over the weekend to let us know that whoever sent the notices, it was not his department. He says they have no one working for them by the name of Mike Ferrell, and that the Burlington PD "has no issues whatsoever with these mugshots being used." So... that leaves open the question of just who is impersonating the Burlington Police Department, and filing completely bogus DMCA notices in an attempt to censor news stories. It would seem that the most obvious options are those who were featured in those stories about arrests in Burlington. The very first notice that Ferrell sent, focused on stories about a particular prostitution sting, and named the nine men who were arrested, along with mugshots. It would seem that perhaps one (or more!) of those nine men would have pretty strong incentives to seek to have those stories deleted from Google. Either way, we've been pointing out for years that copyright is an easy tool for censorship -- and here's yet another example. If you want something censored, just try to work out a copyright conneciton of some sort. In this case, it appears to have failed, but mostly because whoever filed it wasn't very good at pretending to work for the police.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Since Admiral Michael Rogers took over for previous NSA boss, General Keith Alexander, a couple of years ago, he's mostly stayed out of the public eye. While Alexander became the face of excessive NSA surveillance exposed by Ed Snowden, Rogers seemed to want to present himself as the face of a cleaned up NSA. On Friday, it was even reported that Rogers was the "top candidate" to take over as Director of National Intelligence from retiring James Clapper. That is, he was in line for a big promotion (though, oddly, another report released at the same time noted that Trump was considering getting rid of the role of "Director of National Intelligence" and moving back to a pre-9/11 setup where the various intelligence agencies have no one coordinating their actions. But, over the weekend, a bizarre story broke in the Washington Post, detailing how both Clapper and Defense Department boss Ash Carter had been strongly recommending that President Obama fire Rogers for a variety of problematic actions. The most shocking -- though buried in the article -- is that the NSA has had multiple breaches revealing its most powerful hacking tools. We already know about the whole Shadow Brokers thing, revealing some powerful hacking tools, and that an NSA contractor named Harold Martin was arrested a few months ago for apparently hoarding all sorts of classified info. As we noted at the time, the fact that Martin was doing so years after Snowden, raised serious questions about how well the NSA could really keep its secrets. And the Washington Post revealed that it's even worse: But there was a second, previously undisclosed breach of cybertools, discovered in the summer of 2015, which was also carried out by a TAO employee, one official said. That individual also has been arrested, but his case has not been made public. The individual is not believed to have shared the material with another country, the official said. Rogers was put on notice by his two bosses — Clapper and Carter — that he had to get control of internal security and improve his leadership style. There have been persistent complaints from NSA personnel that Rogers is aloof, frequently absent and does not listen to staff input. The NSA is an intelligence agency but part of the Defense Department, hence the two overseers. FBI agents investigating the Martin breach were appalled at how lax security was at the TAO, officials said. “[Rogers] is a guy who has been at the helm of the NSA at the time of some of the most egregious security breaches, most recently Hal Martin,” a senior administration official said. “Clearly it’s a sprawling bureaucracy . . . but I think there’s a compelling case that can be made that some of the safeguards that should have been put in place were either not fully put in place or not implemented properly.” The WaPo story also notes that there may be some turf battle issues going on here as well. We've long highlighted the serious problems of the NSA also running the US Cyber Command, noting that this creates a tremendous conflict of interest, since it makes the NSA more willing to not reveal vulnerabilities it discovers, since they may be more useful offensively as well. Apparently many in the administration agree, and the plan was to split the NSA and US Cyber Command, and get rid of Rogers at the same time. But, Senator John McCain apparently freaked out and insisted that the NSA and Cyber Command had to remain stuck together, or he would block any new nominees to head the NSA. At the same time, the reason Carter is upset with Rogers is that he feels he's done a poor job in mounting cyberattacks against ISIS (for what it's worth, in his own weird way, this was also a point that Trump would make during the campaign when asked about cybersecurity -- meaning that it's a bit odd he'd now consider promoting the guy who was responsible for what he'd been making fun of during the campaign...). There's another oddity in the story: Rogers meeting with Trump was done without telling his superiors -- a massive breach of protocol for a military official: In a move apparently unprecedented for a military officer, Rogers, without notifying superiors, traveled to New York to meet with Trump on Thursday at Trump Tower. That caused consternation at senior levels of the administration, according to the officials, who spoke on the condition of anonymity to discuss internal personnel matters This made some wonder if Rogers did this as a last gasp effort to save his job. For what it's worth, when asked about the story, Rogers said he's "accountable" for his actions: "I'm not going to go down that road," Rogers said, interrupting a journalist who asked about The Washington Post story during a forum where the admiral was speaking. He added, "I'm accountable for my actions." No matter what, at the very least, we're left (once again!) wondering what the hell is going on with the NSA. This is yet another example of how the organization is a mess that can't seem to keep track of its most powerful secrets and hacking tools. And they want us to "trust" them not to abuse those tools? They can't even keep track of them. And, the guy who's been in charge for the last two and a half years may now be getting a promotion (with a brief "being fired" thrown in between).Permalink | Comments | Email This Story

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There have always been questions about the tax implications of cryptocurrencies like Bitcoin. A few years ago, the IRS came out with some guidelines, declaring cryptocurrencies to be property, rather than currency, and then taxed more like equity. But late last week, the IRS went to court to basically demand Coinbase turn over all info it has on everyone. Coinbase is one of, if not the, leading online cryptocurrency exchanges and places where many people store their cryptocurrency in an online wallet. It's a company that has bent over backwards to comply with the laws. But, no matter, the IRS basically thinks everyone who uses it is a tax cheat. Here's what the IRS demanded: All records of account/wallet/vault activity including transaction logs or other records identifying the date, amount, and type of transaction (purchase/sale/exchange), the post transaction balance, the names or other identifiers of counterparties to the transaction; requests or instructions to send or receive bitcoin; and, where counterparties transact through their own Coinbase accounts/wallets/vaults, all available information identifying the users of such accounts and their contact information. Uh, yeah, that's not very limited. It's not limited at all. The IRS literally wants everything. Why? Because, according to the IRS, it's investigating one single tax cheat. In a declaration, IRS agent David Utzke, talks about a single tax cheat, and says this gives him a basis for requesting all info. After using a traditional abusive offshore arrangement for approximately 5 years, Taxpayer 1 became fatigued with the effort required to manage his offshore accounts, attorneys, and applicable regulations, and discovered virtual currency while conducting internet research on the topic. Taxpayer 1 began testing the use of virtual currency and eventually abandoned the use of his offshore structure. Taxpayer 1 was able to use virtual currency to repatriate his assets without governmental detection. For example, Taxpayer 1 originally worked with a foreign promoter who set up a controlled foreign shell company which diverted his income to a foreign brokerage account, then to a foreign bank account, and lastly back to Taxpayer 1 through the use of an automated teller machine (ATM). Once Taxpayer 1 abandoned the use of his offshore structure in favor of using virtual currency, the steps described above were the same until his income reached his foreign bank account. Once there, instead of repatriating his income from an ATM in the form of cash, Taxpayer 1 diverted his income to a bank which works with a virtual currency exchanger to convert his income to virtual currency. Once converted to virtual currency, Taxpayer 1’s income was placed into a virtual currency account until Taxpayer 1 used it to purchase goods and services. Taxpayer 1 failed to report this income to the IRS. Utzke also mentions two other taxpayers, which were companies, not individuals, but which used Coinbase. He notes that others are laundering money and thus likely to be using cryptocurrencies. That may be true, but it seems like a pretty big stretch to argue that means Coinbase should cough up all details on all transactions. In the IRS's memorandum of support, it insists that it's just trying to find all the tax cheats, so it should get to look at all the records. Since 2009, the use of virtual currency has increased exponentially. Some users value the relatively high degree of anonymity associated with virtual currency transactions because only a transaction in virtual currency, such as buying goods or services, is public and not the identities of the parties to the transaction. Because of that, virtual currency transactions are subject to fewer third-party reporting requirements than transactions in conventional forms of payment. However, due to this anonymity and lack of third-party reporting, the IRS is concerned that U.S. taxpayers are underreporting taxable income from transactions in virtual currencies. Further, because the IRS considers virtual currencies to be property, United States taxpayers can realize a taxable gain from buying, selling, or trading in virtual currencies. There is a likelihood that United States taxpayers are failing to properly determine and report any taxable gain from such transactions. .... The issuance of the summons is warranted here because (i) the summons relates to an ascertainable group or class of persons; (ii) there is a reasonable basis for believing these U.S. taxpayers failed to comply with internal revenue laws; and (iii) information sufficient to establish these U.S. taxpayers’ identities is not readily available to the IRS from other sources. Coinbase posted a short blog post Friday evening expressing concern over this while exploring the issues: Our customers may be aware that the U.S. government filed a civil petition yesterday in federal court seeking disclosure of all Coinbase U.S. customers' records over a three year period. The government has not alleged any wrongdoing on the part of Coinbase and its petition is predicated on sweeping statements that taxpayers may use virtual currency to evade taxes. Although Coinbase's general practice is to cooperate with properly targeted law enforcement inquiries, we are extremely concerned with the indiscriminate breadth of the government's request. Our customers’ privacy rights are important to us and our legal team is in the process of examining the government's petition. In its current form, we will oppose the government’s petition in court. We will continue to keep our customers informed on developments in this matter. What happens here is going to be a big, big deal in the cryptocurrency world. The IRS had to know that this was going to get attention, and perhaps that's the intent. But this seems like a massive overreach.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Techdirt has written plenty of stories about Vladimir Putin's increasingly harsh clampdown on Internet freedom. But, like China, Russia is still coming up with new ways to tighten its control. One is the legal requirement that the personal data of Russian citizens must be stored on Russian soil. Now, a US company has fallen afoul of that 2015 law: Russia's communications regulator [Roskomnadzor] ordered public access to LinkedIn's website to be blocked today (17 November) to comply with a court ruling that found the social networking firm guilty of violating data storage laws. According to the EurActiv story, the ban is being put in place immediately: LinkedIn's site will be blocked within 24 hours, the Interfax news agency cited Roskomnadzor spokesman Vadim Ampelonsky as saying. One internet service provider, Rostelcom, said it had already blocked access to the site. What's curious is that LinkedIn is not the only US company to have flouted Russia's data localization law: both Google and Facebook have also ignored it. A post on NBCNews suggests the following is the reason for that discrepancy: A spokesman for the [Roskomnadzor] watchdog had earlier said that LinkedIn was punished for alleged leaks of user data, Russian media reported. Information about 120 million LinkedIn user accounts was stolen in 2012, the attack reportedly blamed on Russian hackers. Irrespective of the messy details of the LinkedIn case, requirements that personal data must be stored locally are likely to become an increasingly hot topic. Already, the EU is unwilling to finalize the Trade in Services Agreement (TISA) in part because of US demands that it should include unrestrained data flows -- something that could be illegal under EU privacy laws if applied to personal information. With the person who will soon run the CIA keen on expanded government spying powers, it is almost certain that the current Privacy Shield framework, which allows the personal data of EU citizens to be sent to the US, will be struck down by the Court of Justice of the European Union. If that happens, the only way companies like Google, Facebook -- and LinkedIn -- would be able to operate in the EU would be to store their data on the continent. If they fail to comply, they won't be blocked, as in Russia, but they could be hit with a fine of up to 4% of their global turnover. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
This week, we all balked at one of the most flagrant (or at least explicit) examples of police abuse we've seen in a while, where a cop literally declared his lack of time for "constitutional bullshit". Our top two comments on the insightful side are both anonymous and both come in response to that story. First, one commenter found the faint, tiny, and kind of shocking silver lining for the victim: The only surprising thing about this... ...is that the cops didn't shoot his dog. Next, another commenter expressed a slice of the rage this and similar stories cause: "I don’t have time to play this constitutional bullshit." Can we just tattoo this phrase right on the faces of officers that say or do this shit? And when they scream for their "constitutional" rights regarding cruel or unusual punishment, how about we just tell them, you already said you didn't have time to play this constitutional bullshit! For editor's choice on the insightful side, we start out on our post about Twitter's banning of alt-right accounts, where the conversation quickly turned to the fact that both sides of the political spectrum are guilty of trying to suppress the other's ideas. One commenter suggested only liberals get people fired, but Vaultnode was quick with a counter-example: And "the Right" got a Nintendo PR representative fired for the content of her (distasteful) thesis in college. Both "sides" are guilty of having outrage mobs that got people fired. Identity politics is pure idiocy and hurts everyone, regardless of political policy learnings. Next, we head to our post about a prosecutor who got off with a disturbingly light punishment for altering a police transcript and deceiving the court. Varsil, a lawyer, arrived to explain how shocking that is: Now, I'm not American, but I am a lawyer, and this seems absolutely insane to me. A one year suspension? I can't see how behaviour like that calls for anything less than disbarment. He attempted to perpetrate a fraud on the court process. It baffles the mind to think that after a year they're going to let this guy slide back in. As much as people claim lawyers are all lying unethical weasels, the opposite really has to be true. The system functions on the basis of lawyers not deceiving each other or the court. There are certainly times when you can (and may be required to) not say anything, but there is never an excuse for lying to opposing parties or the courts. If I pulled something like this the bar association in my area would have me suspended the instant they caught wind of it, and I can't imagine any other outcome other than disbarment. The fact that this guy is a prosecutor shouldn't spare him, either--it makes it all the more egregious that he is subverting the fairness of the trial process. At this point how can the public be convinced that the other matters he may have touched aren't equally tainted in some fashion or another? Surely a full and complete review of every file he's been on now becomes necessary. Unbelievable. Over on the funny side, our first place comment comes in response to our story about the Dr. Seuss estate's lawsuit against a parody book. Baron von Robber tried to one-up our Seussian lingo: I do not like copyright maximalists and spam. In second place, we've got a response from Nathan F to Mike Pence's legal attempts to keep his emails secret: VP Elect Mike Pence is a special snowflake so of course he can refuse to turn over the emails (that would show wrongdoing on their part). Why in the world are you bothering these powerful people when they are busy trying to run the country (into the ground)? For editor's choice on the funny side, we start out with a response to the infuriating ruling that essentially dragged public domain Wizard Of Oz materials back into copyright, where I.T. Guy had an idea for a new t-shirt targeting the judge, to replace the "infringing" ones: I am going to start making tee shirts with Raymond Gruender's picture on it in a tin man hat with the caption: "If I only had a brain." Finally, we've got an anonymous comment exploring customer confusion issues on our post about the trademark spat between the Toronto Maple Leafs and Snoop Dogg's new medical marijuana company: I'm so confused .. I went to see a hockey game and now I have 2 bags of cheetos and some oreos That's all for this week, folks! Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Over the past couple of weeks in our look at 2011, SOPA began to rear its head. This week things really hit full steam, and so for this history post we're going to focus just on what went down in the SOPA fight five years ago. All eyes were on the upcoming House Judiciary Committee hearings, which were stacked 5 to 1 in favor of censoring the internet. Leading up to them, we pointed out how attempts at censorship in the UK demonstrated how SOPA would fail, that Silicon Valley hadn't realized it was in DC's crosshairs, and why all filmmakers should speak out against the bill. Soon, the chorus of voices opposed to SOPA (and its partner PROTECT-IP) began to grow at an astounding pace: Facebook, Twitter, eBay and other big internet companies spoke up, and were joined by over 100 lawyers and law professors and then hackers, the ACLU, consumer rights groups, and human rights groups; venture capitalists explained how it would break the internet, a study showed how it would chill innovation and investment, and the EFF warned about its regulation of VPNs, proxies and other privacy tools; Ron Paul joined the ranks of congressional opposition and Joe Biden explained why the bills were un-American; a study showed that the majority of Americans opposed SOPA, and even Canadians were speaking up, fearing collateral damage. And we featured voices ranging from filmmakers and technologists to health care activists explaining the damage SOPA would do. How did the other side respond? First Amendment expert Floyd Abrams twisted himself in verbal knots explaining how SOPA would censor protected speech but somehow not violate the First Amendment; the House Judiciary Committee denied that its hearings were stacked in any way; Viacom made the absurd and hilarious threat that failing to pass SOPA might mean Spongebob Squarepants dies; and the bill's congressional sponsors weakly tried to say it was going to protect the troops. Then the hearings got underway and were largely a SOPA love-fest, though a lot of Representatives expressed serious concerns. Meanwhile, we still had more questions: how would we even guage SOPA's success? Do you really want to give China and other oppressive regimes a blueprint for internet censorship? Following the hearings, even more people spoke up: the EU Parliament warned the US against censorship efforts, Nancy Pelosi called for a better solution, multiple Senators came out against PROTECT-IP, security experts warned against DNS filtering, and the Washington Post's Dominic Basulto wrote an incredulous column about the message SOPA sends to the world. It even started to become a congressional election issue, with challengers calling out the SOPA support of incumbent representatives. And amazingly, as we all now know, the protests had not yet even come close to their peak. Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
In a big interview with the German media outlet Spiegel, President Obama was asked about his interest in pardoning Ed Snowden in response to the big campaign to get him pardoned. Obama's response was that he could not, since Snowden has not been convicted yet: ARD/SPIEGEL: Are you going to pardon Edward Snowden? Obama: I can't pardon somebody who hasn't gone before a court and presented themselves, so that's not something that I would comment on at this point. I think that Mr. Snowden raised some legitimate concerns. How he did it was something that did not follow the procedures and practices of our intelligence community. If everybody took the approach that I make my own decisions about these issues, then it would be very hard to have an organized government or any kind of national security system. At the point at which Mr. Snowden wants to present himself before the legal authorities and make his arguments or have his lawyers make his arguments, then I think those issues come into play. Until that time, what I've tried to suggest -- both to the American people, but also to the world -- is that we do have to balance this issue of privacy and security. Those who pretend that there's no balance that has to be struck and think we can take a 100-percent absolutist approach to protecting privacy don't recognize that governments are going to be under an enormous burden to prevent the kinds of terrorist acts that not only harm individuals, but also can distort our society and our politics in very dangerous ways. And those who think that security is the only thing and don't care about privacy also have it wrong. This is simply incorrect -- as is known to anyone who remembers the fact that Gerald Ford pardoned Richard Nixon before he had been indicted. And it appears that the President knows this. Because, as the Pardon Snowden campaign points out, Obama pardoned three Iranian Americans who had not yet stood trial. That happened this year. So for him to say it's impossible to pardon someone who hasn't gone before the court is simply, factually, historically wrong. And there's a Supreme Court ruling that makes this abundantly clear. 150 years ago, in the ruling on Ex Parte Garland, the Supreme Court stated: The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment. It extends to every offence known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency, or after conviction and judgment. The power is not subject to legislative control. A pardon reaches the punishment prescribed for an offence and the guilt of the offender. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights. It gives him a new credit and capacity. There is only this limitation to its operation: it does not restore offices forfeited, or property of interests vested in others in consequence of the conviction and judgment. Separately, the argument that if Snowden goes to court he can "make his arguments" is also wrong. And President Obama also knows this. The Espionage Act, under which Snowden is charged, does not allow any sort of whistleblower or public interest defense at all. As Snowden’s lawyer, the ACLU’s Ben Wizner has explained, this isn’t hypothetical. When Daniel Ellsberg stood trial under the Espionage Act, his attorney asked him why he decided to leak the Pentagon Papers to journalists. The prosecution objected to the mere question, and the judge sustained the objection. No matter the egregiousness of the government’s actions, a whistleblower’s motivation has no place in an Espionage Act trial. That means that Snowden wouldn’t be able to explain why he felt the public should know what the NSA was doing, he wouldn’t be able to point to the federal courts that ruled against the NSA in the aftermath of the disclosures, and he wouldn’t be able to cite subsequent advances to cybersecurity. His conviction and severe punishment would be a foregone conclusion. There may be reasons why the President doesn't wish to grant a pardon to Snowden, but his stated reasons are completely bogus.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
This is (unfortunately) not a huge surprise, but it appears that a Trump administration is going to be much worse for civil liberties and surveillance. Earlier today, Donald Trump named his choices to head the CIA -- Rep. Mike Pompeo -- and to be the next Attorney General -- Senator Jeff Sessions -- and both have terrible records on surveillance, civil liberties and whistleblowing. They also are problematic in other areas, but in the areas where we cover, it's not looking good. Let's start with Pompeo. In an op-ed piece for the Wall Street Journal back in January of this year, Pompeo called for expanding surveillance powers rather than limiting them. He criticized the USA Freedom Act and any other attempt to even moderately cut back on surveillance and said we had to go the other direction, claiming "What’s needed is a fundamental upgrade to America’s surveillance capabilities." Congress should pass a law re-establishing collection of all metadata, and combining it with publicly available financial and lifestyle information into a comprehensive, searchable database. Legal and bureaucratic impediments to surveillance should be removed. That includes Presidential Policy Directive-28, which bestows privacy rights on foreigners and imposes burdensome requirements to justify data collection. While (at least) that same editorial did say that a backdoor on encrypted products "would do little good," he's no fan of encryption. He just thinks that if you use it, it should be considered a "red flag" that you're up to no good: There has been much debate about whether providers of communications hardware and software in the U.S. should be obliged to give the government backdoor access. Such a mandate would do little good, since terrorists would simply switch to foreign or home-built encryption. New technologies can cloak messages in background noise, rendering them difficult to detect. Forcing terrorists into encrypted channels, however, impedes their operational effectiveness by constraining the amount of data they can send and complicating transmission protocols, a phenomenon known in military parlance as virtual attrition. Moreover, the use of strong encryption in personal communications may itself be a red flag. In another opinion piece for the National Review, he attacks reformers and those who support Ed Snowden while announcing his own bill to give the NSA greater surveillance powers: Those who today suggest that the USA FREEDOM Act, which gutted the National Security Agency’s (NSA) metadata program, enables the intelligence community to better prevent and investigate threats against the U.S. are lying. I use that word intentionally, because these candidates know better. Less intelligence capacity equals less safety. To share Edward Snowden’s vision of America as the problem is to come down on the side of President Obama’s diminishing willingness to collect intelligence on jihadis. No Republican candidate who does that is worthy of our vote. I have just introduced the Liberty through Strength Act II in the House of Representatives to restore the NSA’s tools. We cannot expect our intelligence professionals to prevent terrorist attacks while handcuffing them at the same time. Just to be extra clear: Pompeo doesn't just dislike Ed Snowden, he has declared him a traitor who should be "given a death sentence." It's absolutely the case that we have not been able to secure all the American information that we needed to, and that we've had the traitor Edward Snowden steal that information. He should be brought back from Russia and given due process, and I think the proper outcome would be that he would be given a death sentence for having put friends of mine, friends of yours, who served in the military today, at enormous risk, because of the information he stole and then released to foreign powers. Pompeo has also defended the CIA's torture program against critics: “These men and women are not torturers, they are patriots,” and, “The programs being used were within the law, within the constitution.” There's also the fact that Pompeo has basically no experience in the intelligence community. He was an Army officer and a businessman, only entering Congress a few years ago. In that link, Motherboard quotes someone from the intelligence community questioning how Pompeo is qualified to run the CIA: “None of us believe that a couple of years in the Army followed by sitting on a committee in Congress qualifies anyone for any position in the CIA, much less as the Director,” a former military officer who also worked in the intelligence community told Motherboard on condition of anonymity. “We believe that the ongoing nepotism used to select unqualified and in some cases, dangerous people for leadership in these key positions may well lead to a catastrophic failure for the United States.” So, yes, here's someone with little actual experience in intelligence, but who is absolutely sure the answer is greater surveillance of Americans, and who supports programs that have been declared to be torture. And they're putting him in charge of the CIA. On to Sessions. He's also a huge supporter of increased surveillance, and not a fan of civil liberties. Going back a decade ago, Sessions very publicly supported President George W. Bush's surveillance programs that included warrantless wiretapping of Americans. “This is a reasonable assertion of executive power, and it’s more than an academic discussion,” Sessions said. “There are 3,000 Americans who have no civil rights today because they were killed as a result of communications from foreign terrorist organizations who called in to sleeper cells who then carried out the catastrophic 9/11 attacks. President Bush’s surveillance program authorizes only an intercept of an international call or email in which one of the parties is connected to al Qaeda. I think the terrorist surveillance program is a reasonable response.” For what it's worth, Sessions is wrong here. The surveillance program -- as we later learned -- enabled much, much, much more than that, and included mass surveillance on the communications data of millions of Americans. And the "connection to Al Qaeda" was expanded to include many hops away, and much more than Al Qaeda. But as far as I can tell, Sessions never admitted that his statement was wrong or changed his views on Presidential surveillance powers. Just this year, Sessions spoke out against encryption on mobile phones in discussing the legal fights between Apple and the FBI: Senator Jeff Sessions of Alabama questioned Cook’s position. "Coming from a law enforcement background, I believe this is a more serious issue than Tim Cook understands," Sessions said. He said accessing phones is critical to law enforcement. "In a criminal case, or could be a life and death terrorist case, accessing a phone means the case is over. Time and time again, that kind of information results in an immediate guilty plea, case over," Sessions said. He added that the ability for government to access a phone should not be abused. He's also spoken out vehemently against NSA reform that limits surveillance, complaining about the very modest changes in the USA Freedom Act. In 2006, the National Security Agency transitioned the bulk telephone-metadata acquisition program authorized under the president’s Terrorist Surveillance Program to the business-records court-order authority of Section 215. Since shortly after 9/11, this program has been helping to keep Americans safe by acquiring non-content call records, i.e., telephone numbers and the date, time, and duration of a call. This program has yielded invaluable intelligence that has helped prevent attacks and uncovered terrorist plots. Nevertheless, the Obama administration has built up unnecessary barriers that sacrifice the fragile operational efficiency of the program without actually accomplishing anything in terms of data security. He claimed this despite the fact that this article was published years after it had been revealed that the government had never relied on the Section 215 data to save lives, and even where it was used, other means were used to stop any kind of attack. On top of that, just recently, Sessions tried to massively expand the surveillance powers of the Justice Department, in an amendment he tried to attach to ECPA (Electronic Communications Privacy Act) Reform. We've been calling for ECPA Reform for many, many years, but to stop warrantless surveillance and data collection. But Sessions' plan was to make it even easier for law enforcement to get data, so long as they "declared it was an emergency." A provider of electronic communication service or remote computing service shall disclose to a governmental entity a wire or electronic communication (including the contents of the communication) and a record or other information pertaining to a subscriber or customer if a representative of the governmental entity reasonably certifies under penalty of perjury that an emergency involving the danger of death or serious physical injury requires disclosure without delay. And, the thing is, many companies will help out law enforcement voluntarily in such situations. But Sessions was trying to make it mandatory, which would be massively abused. And that doesn't even touch on Session's horrific history concerning civil rights, which generally doesn't bode well for his views on related civil liberties. I know that we'd heard from some Trump supporters telling us that they believed he wouldn't be as bad on surveillance as Obama or Bush. But, so far, it certainly looks like he's worse, given who he is planning to appoint.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
We've already made it clear that we're quite concerned about how freedom of expression will fare under President Trump. He has a long history of threatening and/or suing those who cover him factually, but in a manner he dislikes. And while he hasn't (as far as I can tell) threatened to sue anyone since the election, he appears to have become somewhat obsessed with the NY Times. Since winning the election he's tweeted at least six times about the NY Times, insisting (incorrectly) that it was losing subscribers and (incorrectly) that it had "apologized" to readers for its Trump coverage. He also claimed (incorrectly) that it had said he hadn't spoken to foreign leaders -- when the actual article just said that his conversations with foreign leaders happened without State Department briefings (which is fairly stunning). Here's what the NY Times said: One week after Mr. Trump scored an upset victory that took him by surprise, his team was improvising the most basic traditions of assuming power. That included working without official State Department briefing materials in his first conversations with foreign leaders. But Trump claimed something entirely different: And, yes, I know that there are some folks who just flat out hate the NY Times and think that it lies and such. And I've certainly complained my fair share about weak or misleading coverage by the NY Times over the years, but it's still problematic when a President or President-elect is directly attacking any publication. It creates serious chilling effects on reporters. And, it can be even worse than that. As Yashar Ali noted in a Twitter thread, attacking a company as "failing" has real consequences, especially one that is traded on the public markets, potentially harming all sorts of everyday investors. I'm guessing that many who just hate the NY Times won't care about this, but it is serious. There's a reason why Presidents don't go around attacking companies or saying that they're "failing" or that their business is in trouble. Because that has real consequences. I still don't think that journalists should be suing Trump for defamation, as some have suggested, but it would be nice if our President-elect recognized that going around and attacking the press -- even if he disagrees with its coverage -- is entirely inappropriate.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
Regardless of what one thinks about the apparent result of the 2016 election, it will inevitably present a number of challenges for America and the world. As Mike wrote about last week, they will inevitably touch on many of the tech policy issues often discussed here. The following is a closer look at some of the implications (and opportunities) with respect to several of them, given the unique hallmarks of Trump and his proposed administration. Free speech/copyright. Like Mike, I find Trump's expressed views towards free speech deeply troubling. His threats to "open up our libel laws" would do a tremendous disservice to Americans' ability to speak freely, and, unless enough people in Congress see the problem, as Mike noted, there's little hope that the long-needed federal anti-SLAPP law could be brought forth and survive his veto. But there may yet be reason for optimism on this front: the proposed bill already had bi-partisan support, and in addition to Democrats there are several #NeverTrump GOP members who have since been chilled by threats from his supporters and who may also recognize the need for it. There's also still the opportunity to expand anti-SLAPP laws in individual states, and here Trump's bluster might help that process, as well as ultimately help fortify our defenses for free speech overall. As someone with a track record of attacking people he does not like, and who has just accumulated an awful lot of power, he is Exhibit A for why America has a robust tradition of free speech in the first place. The problem here is that our previous decades of relative political stability have allowed attitudes to become a bit too casual about the importance of free speech as an escape valve against tyranny. But now that the need to speak out is so critical for so many, perhaps it will make us all be a little less glib about it. One area where we need to be less glib is in copyright. While I would not be surprised to see Trump do something damaging in this space (probably in furtherance of Trump TV), copyright policy has always cut across party lines, and saner policy has in the past had the support of several GOP members of Congress, some of whom may still be in office. The silver lining here is that now that the need to preserve free speech is so apparent, it may become easier to point out how copyright policy interferes with it. For instance, because President Trump, or anyone supporting him in government or otherwise, can so easily cause criticism of him to be disappeared simply by sending a takedown notice or have people cut off from their online services with simply the mere allegations of infringement (as they effectively could right now thanks to recent jurisprudence on DMCA Section 512(i)), opposing voices are extremely vulnerable. As the opposition party, Democrats in particular need to start realizing how IP rights in general (copyright and also trademark and other quasi-IP monopolies like publicity rights) have been providing censors with enormous leverage over other people's speech. Now that these levers can be used against them and their constituencies, perhaps they will be more likely to see the problem and finally push back against it (or at least stop actively trying to make the situation even worse). Mass surveillance/encryption. The problem with the policy debates on mass surveillance to date is that they have tended to get bogged down by the assumption that the government was inherently good, and that all the spying it did was in furtherance of protecting its people. Until now many of those who disagreed with that assumption have largely been marginalized. Now, however, it appears that millions of people will have serious doubts about the motivations of the chief executive. It is therefore going to be much harder for surveillance advocates to push the "trust us," argument when the incoming government has already indicated its strong desire to punish its internal enemies. Libertarians were already alarmed by the power of the surveillance state, and more Democrats may start seeing things their way pretty soon. The opportunity here is that there is now a new framing to help people see what a significant constitutional violation and danger this surveillance represents. Encryption raises the same issues, and, as with mass surveillance, the public and even other members of Congress may also soon come to the painful realization about how important it is for them and the public to have robust, workable, non-backdoored encryption available to them too. After all, as we saw with Nixon, it is not unprecedented for a President to spy on his political adversaries. But this time Trump can leverage the NSA to do it. Net Neutrality/Intermediary immunity. There are (at least) two other policy areas where the importance of continuing to protect free speech principles remains evident. Regarding net neutrality, there's little reason to believe Trump will have anything positive to contribute along these lines, unless he decides it is to his business advantage. But what has also become apparent from this election is the tremendous damage consolidated mass media can cause to democracy. Politics is too important to be left to just a few outlets to tell us about, yet without net neutrality that's the situation we will be left with. The danger posed by homogeneous media is also why bolstering the protection of internet intermediaries is so important. Their protection is what helps ensure that a diversity of voices can be heard. The unfortunate reality is that there will likely be a lot of calls by people unhappy with this election and its fallout to limit those voices, particularly those whose message is most divisive, and with them also the platforms that facilitate their speech. But it will be important to hold fast to the intermediary-shielding principles that have to date largely protected platforms from liability in their users' content. It's only by leaving them free to operate without fear of liability that they are most able to voluntarily refuse the most awful content and be available for the most good. Neither is the case if the government effectively takes that decision away from them with the threat of punitive law, particularly when that law will inevitably reflect the government's own agenda regarding what it considers to be worthwhile content or not. Internet governance. With regard to Internet governance, at least the TPP appears to be dead and with it its speech-chilling provisions. Trump claims to detest free trade treaties, and in this regard his presidency may be helpful for innovation policy, which has been poorly served by US trade representatives trying to bind the United States into secretly negotiated international trade agreements that undermine key American liberties by imposing crippling limitations and liability on tech businesses and other platforms. On the other hand, from time to time international accords are helpful and even necessary for technology businesses to continue to thrive, innovate, and employ people worldwide. (See, e.g., the former Safe Harbor rules.) Unfortunately Trump's presidency appears to have precipitated a loss of credibility on the world stage, creating a situation where it seems unlikely that other countries will be as inclined to yield to American leadership on any further issues affecting tech policy (or any policy in general) as they may have been in the past. The bigger concern with respect to Internet governance, however, is whether tech policy advocates from America will be taken seriously in the future, if we go back on previous promises developed in thorough processes involving all stakeholders. It was already challenging enough to convince other countries that they should do things our way, particularly with respect to free speech principles and the like, but at least when we used to tell the world, "Do it our way, because this is how we've safely preserved our democracy for 200 years," people elsewhere (however reluctantly) used to listen. But now people around the world are starting to have some serious doubts about our commitment to internet freedom and connectivity for all. So we will need to tweak our message to one that has more traction. Our message to the world now is that recent events have made it all the more important to actively preserve those key American values, particularly with respect to free speech, because it is all that stands between freedom and disaster. Now is no time to start shackling technology, or the speech it enables, with external controls imposed by other nations to limit it. Not only can the potential benevolence of these attempts not be presumed, but we are now facing a situation where it is all the more important to ensure that we have the tools to enable dissenting viewpoints to foment viable political movements sufficient to counter the threat posed by the powerful. This pushback cannot happen if other governments insist on hobbling the Internet's essential ability to broker these connections and ideas. It needs to remain free in order for all of us to be as well.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
We've been pointing out that in the rush to claim that Facebook is a media company that must take responsibility for the content that is posted and shared on the site, there's really an implicit call for blocking content that is somehow deemed "bad." People keep acting like Facebook, rather than its users, has the responsibility to edit what is on the site. That's dangerous -- and for yet another example of how, we've now got a German official saying that Facebook has to be classified as a media property and be held criminally liable if it doesn't magically delete "hate speech." This is really, really dangerous. Yes, we know that Germany has much stricter hate speech laws, but if you have to have them, at least hold the proper party responsible: those doing the speaking (and, yes, as we've pointed out repeatedly, hate speech laws are almost always abused by governments to silence and punish people they don't like). Facebook, to some extent, has brought this on itself. In the past, it's made promises, to Germany in particular about how it will help curb "hate speech" on the site. And, eventually, the government is going to get upset and say "you're not doing enough." Earlier this year, Facebook (along with Google, Microsoft, and Twitter) tried to appease European bureaucrats by signing an agreement to respond to complaints of hate speech within 24 hours. But now officials want more. Because once you give governments the power to censor speech, they're always going to want more. None of this is to say that Facebook needs to leave any particular speech up on its site. It's a private company and gets to make those decisions. But when governments get involved, things get scary quickly -- especially as the EU does still have safe harbors in the Ecommerce Directive that are supposed to limit liability for platforms. The statement made here, by German Justice Minister Heiko Maas, is a deliberate attempt to get around that Directive by declaring Facebook no different than a newspaper, which is responsible for what it prints. That's ridiculous on any number of levels, starting with the fact that newspapers literally pick everything that they print, whereas a platform like Facebook doesn't. It's all on the users. The really ridiculous thing here is that statements like this make things worse. It makes it clear to these platform companies that no matter how much they try to appease government officials on things like this, they're always going to push for more and more censorship power.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
Have you ever used the internet to search for photos of a potential vacation spot? Or perhaps you've Googled some pictures of furniture you wanted to buy? Who hasn't, right? But if Getty Images gets its way, you may have far fewer viewing options. That's because Getty recently wrote a letter to the Senate Judiciary Committee urging its members to turn a failed copyright claim into an antitrust issue. Getty's main contention -- not antitrust-related at all -- is that internet-search results display images without authorization from the copyright holder, and thus infringe copyright. But the courts haven't agreed. One reason we have the internet is that the Supreme Court back in 1984 held that making a home recording of a movie for personal playback without prior authorization is a "fair use" under the copyright law. When the internet came into being, this consumer "fair use" determination opened the door of the internet to consumers, rather than limiting it to businesses and government exchanging data among themselves. The courts ruled that consumers could also participate by searching for text and images. What this meant for online images and Google's search engine was decided 10 years ago in the court of appeals copyright case Perfect 10 v. Amazon. In that case, image search and display as carried out by Google was determined to be not infringing. Getty's letter complains about enhancements that Google made back in 2013, to better allow consumers to compare the images in their search results. The letter claims that it is "anti-competitive" for Google now to allow users to inspect a variety of images more closely, to choose the best one, while the high-resolution images themselves remain only on the provider's -- not Google's -- site. (Would they have complained if Google had downloaded and offered these itself? Of course.) A proprietor might consider this option to compare as "anti-competitive," but for a consumer, comparison is the essence of competition. The evolution of image search reflects a better understanding of what users want and an effort to give it to them. Google, Yahoo and Bing's search engines all use a variety of signals to determine relevant and useful search results, including images. Dumbing down search is a bad deal for consumers, and is neither required by nor consistent with sound competition policy. And even though these searches are lawful, Google and other search engines provide a simple tool to opt any image out of search. Getty's letter acknowledges, but dismisses, this fact -- because as everyone knows, it is image search that drives business to Getty and its competitors. Getty is a major player in its field, and its image collection is even bigger after recently locking up more content in the stock-photo market through an exclusive licensing deal with Corbis, once a rival stock-image company. But concern about new entrants (such as Adobe) is classic incumbent behavior, especially when threatened by innovation. (Google does not compete in the stock-photo market, and is not a rival player in this area.) Search drives traffic to all photography websites, not just Getty's. Making search work better for users and creators is not a violation of copyright law, and we should be very cautious before we start claiming that facilitating competitive search is an antitrust violation. Gary Shapiro is president and CEO of the Consumer Technology Association (CTA), the U.S. trade association representing more than 2,200 consumer technology companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiroPermalink | Comments | Email This Story

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posted 15 days ago on techdirt
CleanMyPC will help to get your old computer running like new again. It scans your whole computer to clean up junk files and other things you don't need to speed up your computer and drastically boost its performance. The single computer license, which is on sale for $28, includes all updates and is compatible with Windows 7, 8, and 10. 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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posted 15 days ago on techdirt
Sorry folks — we aim to maintain a certain level of quality with these deals, and we failed by letting this one slip through the cracks. We don't find this product to be reputable software. We won't promote it further, and we're looking into having it removed from our StackCommerce store entirely. CleanMyPC will help to get your old computer running like new again. It scans your whole computer to clean up junk files and other things you don't need to speed up your computer and drastically boost its performance. The single computer license, which is on sale for $28, includes all updates and is compatible with Windows 7, 8, and 10. 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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posted 15 days ago on techdirt
Update: We've written up a followup to this post, noting that the Chief of Police in Burlington insists that this was not done by them, and they have no problem with the press using these images. It would appear that someone else is abusing copyright law to try to block these stories -- and since the stories are about people being arrested, it's not hard to put together a list of people with motives to abuse copyright law in this manner. Please read the follow up post, before reading this original post below. Here we are with yet another example of copyright as censorship. This one comes from the Shooting the Messenger blog, which dug up a fascinating story of how the Burlington, Massachusetts Police Department appears to be abusing copyright law to try to censor articles written about people they've arrested. Specifically, a representative from the police department has filed a bunch of DMCA notices with Google, targeting around 30 news stories, claiming the Police Department holds the copyright on the mugshots used in those stories. You can see one of the notices over at the Lumen Database, and you'll quickly notice that it's not like they're targeting fly-by-night websites, but all sorts of big name press outfits, including CBS, the Boston Herald and the Denver Post. The explanation given is pretty silly too in that it's barely comprehensible: Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us. Now, as we've discussed in the past, works of the federal government are simply not subject to copyright law. When it moves down to the states, it's either not entirely clear or subject to specific state laws. And in Massachusetts, the rule is that "records created by governments are not copyrighted and are available for public use." Separately, in Massachusetts, it's been determined that mugshots are public records, meaning that the police department has even less control here. And of course, even if these images were subject to copyright protections, their use in reporting would clearly be fair use. Assuming that Mike Ferrell actually represents the Burlington Police Department, it appears that he and the police department are flagrantly violating the law in an attempt to censor news stories in the public interest. If he doesn't represent the Burlington Police Department, he's also misrepresenting himself, and potentially committing perjury, as an official DMCA notice requires stating, under the penalty of perjury, that you're authorized on behalf of the copyright holder. No matter what... something not good is happening here, and it's yet another in an increasingly long list of examples of censorship by copyright.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
Here we are with yet another example of copyright as censorship. This one comes from the Shooting the Messenger blog, which dug up a fascinating story of how the Burlington, Massachusetts Police Department appears to be abusing copyright law to try to censor articles written about people they've arrested. Specifically, a representative from the police department has filed a bunch of DMCA notices with Google, targeting around 30 news stories, claiming the Police Department holds the copyright on the mugshots used in those stories. You can see one of the notices over at the Lumen Database, and you'll quickly notice that it's not like they're targeting fly-by-night websites, but all sorts of big name press outfits, including CBS, the Boston Herald and the Denver Post. The explanation given is pretty silly too in that it's barely comprehensible: Good afternoon My name is Mike Ferrell. I am the agent legal from the Burlington Police Department (Intellectual Property, Piracy, Copyright/DMCA) located in Massachusetts. I inform you that the infringing content in question awarded or issued previously are infringing our Copyright since these photographs/images are our property, is fully belonging to us. We are the properties, authors or creators of the content that previously indicated content and request of immediate actions appropriate or respective. We need it more soon as possible relevant/correct actions/measures are taken as more before possible, or otherwise we proceed to take action on our own. Thanks circumvention content: http://www.burlingtonpolice.org/Arrest-of-two-men-in-death-of-woman.html http://www.burlingtonpolice.org/Three-man-arrested-in-connection-with-string-of-store-jewelry-robberies.html http://www.burlingtonpolice.org/Nine-arrested-in-sting-operation.html http://www.burlingtonpolice.org/Teens-arrested-in-mosque-vandalism-incident.html http://www.burlingtonpolice.org/Eight-arrested-in-prostitution-sweep.html http://www.burlingtonpolice.org/Seven-johns-charged-in-reverse-prostitution-sting.html circumvention mechanism: Providing photographies/images protected for us. Now, as we've discussed in the past, works of the federal government are simply not subject to copyright law. When it moves down to the states, it's either not entirely clear or subject to specific state laws. And in Massachusetts, the rule is that "records created by governments are not copyrighted and are available for public use." Separately, in Massachusetts, it's been determined that mugshots are public records, meaning that the police department has even less control here. And of course, even if these images were subject to copyright protections, their use in reporting would clearly be fair use. Assuming that Mike Ferrell actually represents the Burlington Police Department, it appears that he and the police department are flagrantly violating the law in an attempt to censor news stories in the public interest. If he doesn't represent the Burlington Police Department, he's also misrepresenting himself, and potentially committing perjury, as an official DMCA notice requires stating, under the penalty of perjury, that you're authorized on behalf of the copyright holder. No matter what... something not good is happening here, and it's yet another in an increasingly long list of examples of censorship by copyright.Permalink | Comments | Email This Story

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