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When the Supreme Court ruling in the Aereo case came out, we noted that beyond the bizarre "looks like a duck" test that the Supreme Court made up on the spot, it also appeared to leave open the possibility that Aereo could survive if it simply added a mere delay to its streaming. That's because a key part of the "looks like a duck" test to make Aereo's service a "public performance" was that the shows were streamed "contemporaneously." As Justice Scalia pointed out in his dissent, without any further clarification in the majority ruling, it certainly sounds like Aereo could just function as a remote DVR and be fine. Back in the district court this week, however, the same judge who had originally ruled in Aereo's favor, now seems to believe that the Supreme Court's decision completely wiped out Aereo's chances altogether. This is the problem with these kinds of Supreme Court rulings, where they rule with a focus on one particular aspect (in this case "contemporaneous" viewing) and lower courts interpret it to mean all of Aereo was ruled illegal. This same sort of thing happened with the Grokster case, in which the Supreme Court ruled that Grokster was guilty because of its related actions that "induced" infringement, and the RIAA/MPAA and others simply assumed that the court said all file sharing is illegal. In this case, Aereo went before Judge Alison Nathan to present it with a few different arguments over how the company could stay in business -- either by paying licenses as a cable operator or by time shifting, etc. -- and the judge didn't seem to think any option was available to the company. As the Hollywood Reporter notes, her response was: "Just as a matter of finality, how many bites at the apple does one get?" I would think that the answer is as many bites as is legal, no? All of the proposed alternatives by Aereo are clearly in direct response to the Supreme Court's specific "looks like a duck" ruling. Aereo isn't trying to challenge that, it's looking to work within the rules the Court established. Yet, once again, we see people taking Aereo's efforts at complying with the specific law as laid out by the courts, and interpreting it as somehow circumventing the law. Either way, Aereo has the stigma of "lost at the Supreme Court" attached to it, and it appears that any attempted solution to actually comply with the Supreme Court's ruling will be seen as not being allowed because it's merely trying to get "another bite at the apple."Permalink | Comments | Email This Story

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For years, we've discussed the ridiculous and unnecessary secrecy concerning trade agreements negotiated by the USTR. The text of the negotiating documents and even the US's general position is kept secret until the very end, at which point concerns from the public and innovators no longer matter. Instead, the USTR relies on legacy industry "advisors" who are mostly interested in protecting what they have from disruption, change and innovation. For all the talk of how these agreements are "free trade" agreements, they tend to be anything but. They are focused on protecting a few industries against competition, disruption and innovation. The former US Trade Rep Ron Kirk was unusually honest a few years ago in admitting that these agreements would never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the "Intellectual Property" chapter of the Trans Pacific Partnership (TPP) agreement, and now it's done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration. Large brand-name drug firms want to use the TPP to impose rules throughout Asia that will raise prices on medicine purchases for consumers and governments, and be in effect for the next several decades. With billions at stake, Big Pharma wants the TPP to be a road map for rules that will govern Pacific Rim economies for the next several decades. A U.S. proposal in the text – to provide long automatic monopolies for biotech drugs or biologics, which includes most new treatments for cancer – contradicts the policies included in recent White House budgets and if adopted would undermine key cost savings touted by the administration. The past budgets have included a specific pledge to shorten the same monopoly periods so as to reduce cost burdens on Medicare and Medicaid. If the TPP is ratified with this U.S.-proposed provision included, Congress would be unable to reduce monopoly periods without risking significant penalties and investor-state arbitration. Thankfully, other countries appear to be pushing back on this proposal, but the US is always the 800-pound gorilla in these negotiations. Still, as Wikileaks summarizes, the US is pushing strongly for "drug-company friendly" language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma -- showing how it really feels about public health -- has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely, but rather, are looking to undermine it. Wikileaks explains: Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents. This is a diminished version of the TRIPS agreement that was present in the 2013 text. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines. The new exceptions are set out here and here, having deleted the option for "Other Use Without Authorisation of the Right Holder" in the August 2013 text. The current global norms for justifying exceptions to patents are set out in the TRIPS agreement under either Article 30 or 31. Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking big pharma's monopoly on life-saving drugs. However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation. In short, the TPP will greatly reduce the ability for creating more affordable drugs to save more lives, and increase the pharmaceutical industry's ability to retain monopolies. Elsewhere in the document, we see that the US and Japan (who appear to be aligned a lot against everyone else) are pushing for the following: For greater certainty, a Party may not deny a patent solely on the basis that the product did not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application. Consider this to be the "Eli Lilly clause." As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty ("investor state dispute settlement" or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn't do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective. A bunch of countries are pushing for the right to cancel a patent if it "is used in a manner determined to be anti-competitive," but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something. In the copyright section, it appears that US goes beyond existing US law in asking that "making available" be considered one of the exclusive rights protected under copyright law. Some US courts consider "making available" to be considered part of the "distribution" right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that's not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include "making available" as an exclusive right for copyright holders. There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public's rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced. The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we've seen with statutory damages in the US and how it enables shady practices like copyright trolling. There's a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn't care. If you accidentally record a bit of a movie? Go to jail. There's a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.Permalink | Comments | Email This Story

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For those who lived through the late 90's cryptowars, it's beginning to feel like history is repeating itself. We've seen the series of recent stories about the US government's misguided, FUD-based freakout over some recent moves to enhance privacy through more widely usable encryption, but now we're reaching the stage of the game where the government also starts attacking the "export" of cryptography. If you don't remember, a key part of the original cryptowars was over whether or not strong cryptography could be classified as a weapon, and subject to significant export controls. Thankfully, that idea was mostly scrapped, and encryption flourished, helping to make the internet and other technologies much safer. However, it appears the government is back to going after the export of encryption, as the Department of Commerce recently fined Intel subsidiary Wind River Systems $750,000 for exporting products that included encryption to China, Hong Kong, Russia, Israel, South Africa, and South Korea. While most had recognized that sending encryption (or, well, just about anything) to places like Iran, Cuba and North Korea might be problematic, most people had assumed that other countries, like those on the list above were no big deal. As the linked article (from law firm Goodwin Procter) points out: We believe this to be the first penalty BIS has ever issued for the unlicensed export of encryption software that did not also involve comprehensively sanctioned countries (e.g., Cuba, Iran, North Korea, Sudan or Syria). This suggests a fundamental change in BIS’s treatment of violations of the encryption regulations. Historically, BIS has resolved voluntarily disclosed violations of the encryption regulations with a warning letter but no material consequence, and has shown itself unlikely to pursue such violations that were not disclosed. This fine dramatically increases the compliance stakes for software companies — a message that BIS seemed intent upon making in its announcement. Furthermore, the report understates the simple fact that "encryption is ubiquitous in software products" these days. And that's something that's only growing (a trend that should continue as encryption is increasingly important). But if the Commerce Department has suddenly decided to pick a fight over this issue, it could create a real competitive disadvantage for American tech companies trying to offer products around the globe. So, not only has the US government undermined the US tech industry through surveillance and backdoors, now it's looking to make it more difficult to build in encryption that better protects against such intrusions. It's almost as if the government wants to cede technology leadership to other countries.Permalink | Comments | Email This Story

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A couple of months ago we mentioned the long-running legal battle between the Swedish energy company, Vattenfall, which is suing Germany using corporate sovereignty provisions in the Energy Charter Treaty after the German state decided to phase out nuclear power stations. The rumored figure we mentioned then was the already-generous €3.7 billion; but it has just been revealed that Vattenfall is actually demanding even more -- €4.7 billion, to be precise. We know this is the real figure, because it was mentioned by Germany's Minister of the Economy, Sigmar Gabriel (original in German.) This fact may help to explain persistent reports that Germany will not agree to the inclusion of an investor-state dispute settlement (ISDS) chapter in either TAFTA/TTIP or CETA (the Canada-EU trade agreement). Germany is already experiencing first-hand the dangers of such corporate sovereignty provisions, and clearly wants to avoid suffering any more on this front. The latest information, reported by the German news magazine Der Spiegel, points out that two other energy companies, RWE and E.on, are unable to sue in the same way as Vattenfall, because they are German companies, and the ISDS option is only available to foreign investors. This underlines the fact that, far from creating a level playing-field, corporate sovereignty is biased against local companies. For this reason, RWE and E.on are also trying to sue in Germany's national courts in order to obtain compensation, as Vattenfall is doing with the ISDS tribunals; whether they can depends on a ruling from Germany's constitutional court, due early next year. Interestingly, Vattenfall is also suing the German government through these courts -- which shows how ISDS gives foreign investors extra ways of claiming compensation. Finally, the Der Spiegel article points out that the original estimate of the potential costs to the German government (and thus to the German taxpayer, who has to pick up the bill) from the action in the national courts, which were put at between €15 billion to €20 billion, are probably too high. That's because the price offered for supplying electricity has now dropped, bringing down potential profits too. That demonstrates the danger of granting corporate sovereignty tribunals unchecked power to make awards in favor of companies based purely on the latter's probably exaggerated claims about uncertain "losses" far into the future. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Fusion has been a promising potential energy source for decades. The joke is that it's always just 30 years away. Every so often, people working on various forms of fusion make some news with press releases claiming that they've discovered some revolutionary new way to achieve cheap/free/clean fusion. But whenever a fusion science "breakthrough" is announced in a press release in lieu of a peer-reviewed journal, it usually turns out to be disappointing. Everyone wants to see fusion energy become a reality, but it'd be nice to see real scientific progress towards it instead of promotional hype to boost the reputation of a lone inventor or a company's skunkworks program. It's great to be optimistic about the future of fusion; just don't cry "wolf" too many times, okay? Lockheed Martin has issued a press release claiming a "breakthrough" in fusion and a prediction that they'll have a working prototype within the next 5 years. This new approach appears to achieve a "high beta" so that more plasma can be contained, but it would be nice if more of the science were publicly available -- especially before the press release. [url] University of Washington engineers have proposed a fusion reactor design they call the dynomak which could produce energy more cheaply than coal. Getting to a breakeven point might be a bigger hurdle than making fusion energy cheap. [url] Andrea Rossi’s E-Cat device is a "cold fusion" (or low-energy nuclear reaction, LENR) generator that claims to produce oodles of energy without any waste or any negative side effects whatsoever. Independent verification of this device's capabilities is claimed, but what is really necessary is independent replication of this device. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Earlier this year, FBI Director James Comey suggested that the FBI might consider backing off its policy of refusing to hire anyone who has used marijuana in order to find competent computer folks who can deal with online crimes. After some backlash (and some support) for those statements, Comey quickly backed down, claiming it was all just a joke. Now, TorrentFreak has revealed that beyond pot smoking disqualifying you, so might your history of downloading some music and movies. This came up at a Sacramento State Career Center information session held by the FBI, where the FBI made it clear that your downloading practices matter to the agency. “If you’re doing that, stop doing it.” Dupree said. He explained how the FBI will ask people during interviews how many songs, movies and books they have downloaded because the FBI considers it to be stealing. During the first two phases of interviews, everything is recorded and then turned into a report. This report is then passed along to a polygraph technician to be used during the applicant's exam, which consists of a 55-page questionnaire. If an applicant is caught lying, they can no longer apply for an FBI agent position. “If you are accepted to intern at FBI and fail the polygraph you can no longer apply to FBI again.” Dupre said. From the sound of that, your history might not fully disqualify you, but it may come up again later in the process. TorrentFreak, though, found a post from a few years ago on a job board, where someone says that his downloading past kept him from being hired by the FBI. It's interesting to note that TorrentFreak also turned up an article saying that downloading unauthorized content does not disqualify you from the CIA. The difference here actually makes some sense -- since the FBI actually does handle some cases involving copyright (though, that still seems ridiculous). Either way, if the FBI is barring people who use pot and who have infringed on copyrights, they're going to find themselves with an increasingly limited supply of computer experts for its computer crimes division.Permalink | Comments | Email This Story

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For years, plenty of people have been wondering why HBO absolutely refused to offer a standalone internet offering for cord cutters (and cord nevers), with the general response being that "the math" was against it. Basically, HBO gets a ton of money from cable, and every time new customers sign up, that's free money for HBO without having to spend anything on marketing. A standalone product may not even bring in as much money and would require HBO to do more marketing efforts on its own for the offering. Of course, as we pointed out in response to that argument, "waiting for the math to make sense" is a kind of predictor for legacy companies that wait too long to innovate and find that the future has become the present while they're still in the past. Eventually, the timing was going to be right, and apparently HBO has decided that time is now. Or, at least, sometime next year. The company announced plans to launch a stand-alone internet offering leading to much speculation. Actual details are lacking, and there's some speculation that it might be a very different product than the current HBO Go offering. Some are saying it may actually be in coordination with another player (like Amazon or Hulu). Reading too much into at this point doesn't do much good. Of course, this has also led to some speculation that it may increase people cutting the cord -- and that's likely true for the segment of the population that has cable for HBO (duh) and not for sports (a bigger driver). However, the real point here may be that where HBO goes, others are likely to follow -- including sports. HBO's decoupling with cable TV may not single-handedly change the cable TV market, but it's a sign of a much larger shift that started long before and is now dragging HBO along with it. The traditional cable TV market has been ripe for disruption for quite some time. This is just a single mile marker in an ongoing process.Permalink | Comments | Email This Story

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We've been quite critical of so-called corporate sovereignty provisions in various trade agreements. These provisions -- which trade negotiators prefer to call "investor state dispute settlement" (ISDS) rules (in part because they're so boring when called that, no one pays attention to how pernicious they are) -- basically allow companies to take governments to special tribunals, if new laws and regulations somehow interfere with their attempts to profit. A key example of how this is used under existing (via NAFTA) corporate sovereignty provisions is Eli Lilly demanding $500 million from Canada for daring to reject two of its patents because the drug in question didn't actually prove to be useful. Eli Lilly claims that this undermined the company's "expected future profits" and thus filed this suit, undermining the sovereignty of the country of Canada to determine what is, and what is not, patentable. Another popular use of corporate sovereignty claims is the tobacco industry, going after countries that pass "plain packaging" laws (which say that all cigarette packaging needs to be without logos and trademarks and such). Whether or not you agree with such laws, the idea that big tobacco companies can take entire countries to these tribunals, demanding many millions of dollars based on laws those countries decided to pass, seems troubling. It's especially been concerning to health officials who have long favored plain packaging regulations. Apparently, the latest move to salvage corporate sovereignty provisions in the Trans Pacific Partnership (TPP) agreement has the USTR attempting to throw Big Tobacco under the bus by removing tobacco from the ISDS provisions. This is an incredibly cynical and political move, designed to try to quiet some of the health activists' talking points about the plain packaging fights -- while leaving the overall basis of these corporate sovereignty provisions wholly in place. While I don't always (or often) agree with the AFL-CIO, its response to this cynical attempt to carve Big Tobacco out of the deal is dead on: The proposed carve-out will not stop multinationals like Veolia from suing the government of Egypt for raising the minimum wage. It won’t stop the pharmaceutical giant Eli Lilly from suing Canada over patent requirements or stop extractive company Pacific Rim Mining (a Canadian company that has since been bought by the Australian multinational OceanaGold) from demanding compensation when El Salvador refuses to let it pollute the local water supply by operating a gold mine. Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision. In fact, the cheap attempt by the USTR to toss Big Tobacco under the bus to get a deal done really does more to underline the problems of corporate sovereignty positions, rather than to help smooth things over. If ISDS isn't appropriate for Big Tobacco, why is it appropriate for Big Pharma? Or big mining companies? The USTR has continued to push out-of-date regulatory concepts into modern trade agreements. These are clearly designed not with the public interest in mind, but with a focus on what's best for the representatives of a few giant companies who are close to the USTR. Helping a few giant multinationals undermine regulations around the globe may be good for future job prospects in the industry, but it's hardly the incentives we should want for public servants.Permalink | Comments | Email This Story

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It's amazing how often trademark claims are used simply as a tool for censoring critics. A legal framework that is supposed to be about protecting consumers has been twisted into a strong-arm thug. That said, most times the plaintiffs in these cases at least make a show of pretending that they aren't simply trying to suppress critical speech -- even if the courts frequently see right through those attempts and opt to protect free speech. That doesn't appear to be the case in one federal court in Virginia, which has failed to protect the mocking speech of conservative group Radiance Foundation in a blog post criticizing the NAACP. In that case, Radiance Foundation v. NAACP, the fight was over a blog post that criticized the NAACP. The Radiance Foundation is a conservative non-profit that advocates for what it perceives to be appropriate family values. In a blog post titled “NAACP: National Association for the Abortion of Colored People,” Radiance claimed that the NAACP embraces “all things liberal, most things socialistic, and nothing pro-life.” The NAACP responded with a letter to Radiance threatening a lawsuit if it did not cease “using” the NAACP’s trademark. Radiance called on the courts for protection, asking for a declaration the blog post was protected speech. After a bench trial, Judge Raymond Jackson ruled against Radiance, finding that the post infringed the NAACP’s trademark and giving little credence to Radiance’s First Amendment claim. I'm not entirely certain where the misunderstanding on the judge's part is here, but it's been well-established that the First Amendment, and criticism in particular, trumps trademark law. The Radiance Foundation's speech, while wholly obnoxious, is and ought to be protected. As a group that relies on the criticism of well-established powers to advance its agenda, I would think the NAACP would want to be especially careful not to erode the power of free speech in the land it hopes to change. Attempting to apply trademark law to political speech instead of simply economic speech, meaning advertising, is a dangerous step. The EFF in particular appears eager to get involved in the case. Today EFF, together with the ACLU of Virginia, filed an amicus brief in the appeal of this ruling. We are supporting Radiance’s appeal not because we agree with its message, but because a decision holding it liable for trademark infringement threatens a huge range of expression. Our brief explains that Judge Jackson’s decision misreads both trademark law and the First Amendment. There are many cases holding that use of a trademark in speech commenting on or criticizing the trademark owner is not infringement. Moreover, the First Amendment provides an independent reason for dismissing this trademark claim. We hope the Fourth Circuit agrees and protects the right to mention or mock a trademark, just as it protects the right to mock a trademark owner. It's the right decision and a great place to take a stand, because it highlights the ideal: the protection of free speech, even if it is speech with which one disagrees. DV.load("//www.documentcloud.org/documents/1312880-eff-alcu-amicus-brief-radiance-v-naacp.js", { width: 560, height: 550, sidebar: false, text: false, container: "#DV-viewer-1312880-eff-alcu-amicus-brief-radiance-v-naacp" }); Eff Alcu Amicus Brief Radiance v Naacp (PDF) Eff Alcu Amicus Brief Radiance v Naacp (Text) Permalink | Comments | Email This Story

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Eugene Volokh points our attention to yet another bizarre copyright case, Denison v. Larkin, in which lawyer Joanne Denison argued that the Illinois Attorney Registration and Disciplinary Commission (IARDC) infringed on her copyrights by using portions of her own blog as evidence against her during a disciplinary proceeding. Not surprisingly, the court soundly rejected this particular interpretation of copyright law. Basically, Denison created a blog about what she and some others believed was "courtroom corruption" concerning a particular 90-year-old woman. Some of those involved in the story filed a disciplinary complaint against Denison, "alleging professional misconduct in making false statements on her Blog." The complaint itself included "15 paragraphs of text" from the blog. Further, she claims that the IARDC "copied over 1,000 pages of the Blog and 'then incorporated [it] into further exhibits.'" She also sued Nextpoint, a company that the IARDC apparently used to save copies of the blog. The (rather patient) court goes through a full fair use analysis, finding (rather easily) that all four of the traditional "fair use factors" weigh heavily in favor of fair use. Based on that, it finds no direct infringement -- and without any direct infringement, the claims of contributory and vicarious infringement fail as well. Amusingly, Denison tried to argue that the "commercial use" fair use factor weighed in her favor because "the IARDC sells its decisions to companies such as Lexis Nexis and Westlaw for paid or unpaid benefits." The court rather simply points out: "This statement is unfounded." In the end, it was an easy fair use win (and those are always handy), though this case appeared to be absurd from the start. So it's great to see the court make quick work of it without causing any trouble to fair use.Permalink | Comments | Email This Story

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Whether you believe Austin's SXSW to be a venerated institution or believe it's outlived its usefulness, you probably believe the last thing it should do is morph into a many-tentacled IP monster a la the Olympics or the Super Bowl. And yet, that appears to be something those behind SXSW seem to be considering. SXSW consulted with Populous, the design and planning committee that has worked with organizers for the Olympics, the World Cup and the Super Bowl in the past. Dan Solomon of Texas Monthly notes that most of the outrage aimed at this partnership has very little to do with impending IP ridiculousness and thuggery, but rather at the possibility that SXSW might have to relocate at some point in the future. Immediately, local media seized on the idea that SXSW is implicitly threatening to move out of Austin if the massive changes suggested in the report regarding the way the city and the festival interact aren't made. The Austin Business Journal ran with the headline "Festival overload could force SXSW to move away from Austin, report says," while Culturemap Austin asked, "Bullying tactics or lack of options? SXSW says without changes it may leave Austin." But that's not the biggest story here, says Solomon. He quotes SXSW co-founder Roland Swenson as saying its basically "unimaginable" that the conference would be held anywhere but Austin. It's not the nearly-nonexistent threat of relocation. It's the potential re-imagining of SXSW as a something more notable for its IP enforcement than for its many concerts and events. The more disturbing recommendations are laid out in terms that wouldn't look out of place in Philip K. Dick's dystopias. Or Anthony Burgess's, for that matter. It recommends the creation of a "Legal Injunctive Zone," or a "Clean Zone." According to the report, the "Clean Zone" would be a perimeter around some part of the city that: "protects the brand equity of SXSW and its sponsors but would be made to work with existing businesses and their interests so as to uphold sponsor values and private property rights—in return this may involve a financial exchange linked to the permit process that provides the City with additional funding for security and safety personnel." The report also recommends "soft searching" attendees for "forbidden items" -- presumably anything not bearing a major sponsor's logo -- as well as busting up nearby events not officially sanctioned by the SXSW committee. In order to ensure the profitability of SXSW, the city will have to abandon its equitable treatment of vendors and event organizers. The current policy of the City with respect to the permitting process as ‘first come, first served’ and/or ‘must treat everyone equally’ appears to have become detrimental to event planning process and management of the key stakeholder interests. The SXSW event is one of the largest events in the world, and bespoke treatment is needed to facilitate a continuing safe event in Austin. Note that the report conflates profitability and protection of sponsors' interests with "safety." It speaks highly of "brand equity" and uses these buzzwords to justify the deployment of tactics sure to land SXSW on the receiving end of First Amendment lawsuits. "Clean Zone" ordinances tend to pop up in cities with one-time events like the Super Bowl or the All-Star Game, and their constitutionality is usually challenged quickly: The ACLU sued the city of New Orleans over theirs before the Super Bowl in 2013, resulting in a settlement that restored most of the rights that were restricted before the event. A federal lawsuit filed in Dallas was settled in 2012 after a man was cited by police for having a van with Best Buy logos on it within the Super Bowl clean zone. The organizers may feel the current business model -- one that allows non-SXSW entities to benefit from the influx of attendees without kicking back a portion of the revenue -- is unsustainable in the long term. It may be, but the workarounds suggested here are much worse, especially in the long term. "Clean zones" tend to end up in lawsuit settlements that are either late-breaking compromises, or months (or years) later cash payouts, as in Dallas. But the questions surrounding a SXSW clean zone would be harder to kick down the road, given that the event happens every year. SXSW may be making more of an effort to protect its image and secure its legacy, but following these suggestions will only make the event more famous for the antics of its IP enforcers than for the concerts and conferences held under its name. It's one thing when a once-in-a-decade or once-in-lifetime event puts a city under the control of "brand equity" martial law. It's something else entirely when it's year after year. Permalink | Comments | Email This Story

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Don Henley, poster boy for IP reform and former member of some band from the 70's, is back in the legal news again thanks to his tireless, misguided efforts to "protect" he and his former band's creations from the "harmful" actions of others. For being such a die-hard defender of intellectual property rights, Henley sure doesn't seem to have much of a grasp on the underlying laws and concepts. This is a guy who thinks the world would be a better place if the DMCA were rewritten to hold third party platforms and services responsible for the infringing acts of their users. This is also a guy who hates having his music covered by others -- so much so that he and a bunch of his peers (pretty much literally: the group included Steven Tyler, Joe Walsh and Sting) signed off on a letter opposing the creation of a compulsory license for remixes. Henley doesn't want anyone covering his tunes, but he can't do much about it, thanks to compulsory licensing. Now he's fighting to prevent anyone from remixing his work without his permission. (Which, of course, won't be granted. He doesn't even allow the licensing of his creaky 40+-year-old classic rock standards in his catalog.) Knowing that, it comes as no surprise that Henley would sue a retailer for having the audacity to use a play on words in its advertising that indirectly calls to mind a radio hit from his old band, whose name I certainly won't be mentioning. This is the ad that triggered Don Henley's lawsuit: Marie-Andree Weiss runs down all of the details of Henley's claims against the t-shirt maker and they are several. First, there's the trademark infringement claim, because Don Henley has trademarked his own name, but only specifically for studio recordings and live music. So, in this case, Henley can't argue that it violates his specific trademark. Instead, he'll likely try the ever-popular "consumer confusion" angle. He will probably concentrate his efforts on the similarity of the marks and the intent of Defendant when selecting the mark factors. The ad coupled Plaintiff’s name with the name of one of the many hit songs of his band. The “Take it Easy” song may appeal to customers shopping at a company which provides a “No Bull Guarantee” on its e-commerce site, or may just restate the company’s customer service philosophy. In which case, Weiss suggests the defendant take the fair use route or argue that the alleged mark wasn't used at all, what with "to don" meaning to wear something and 'henley" being a generic name for a style of shirt. Henley is also claiming false advertising and -- because this suit was filed in California -- violations of his right to publicity. In both cases, the simplest defense may be to point out that common English words were used, neither of which violate registered marks of Henley's publicity rights. There's also ample room for a First Amendment debate in each of these defenses. Unfortunately, as Weiss points out, Henley has previously taken a clothing retailer to court over something similarly ridiculous... and won. This is not the first time that Plaintiff has filed a trade mark infringement, false advertising and right of publicity suit against a retailer over the use of a Henley shirt, as Plaintiff filed a similar suit in Texas in 1999, Henley v. Dillard Department Stores. In that case, the ad featured a Henley shirt and “a photograph of a man wearing a henley shirt with the words, "This is Don" in large print, beside the picture, and an arrow pointing toward the man's head from the words. Underneath the words is the statement, "This is Don's henley" in the same size print, with a second arrow pointing to the shirt” adding further that “Sometimes Don tucks it in; other times he wears it loose—it looks great either way. Don loves his henley; you will too." If Henley wins this suit, it won't make him any richer. He claims any winnings will be donated to charity. I suppose some might view this as honorable and decent, but it seems like the world would be a better place if certain rights holders didn't view it as a God-given mission to protect their marks and their recorded antiquities from anyone and everyone. Weiss' post goes further into the legal weeds if you're interested in sussing out the merits of each claim. If not, just know this: Don Henley is suing a company for using English words he thinks he owns, no matter what the context. Even if it was a barely-shaded shout out to his old hit, so what? The potential harm here was nil, but thanks to the court system, will now only be limited to Don Henley's overactive imagination. Permalink | Comments | Email This Story

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GigaOm points our attention to complaints from some Dutch hosting companies that the government there is increasingly pressuring them to simply remove content claiming that it is "jihadist," but without any attempt to get a court order or to file criminal charges. We've seen this before, of course. The US government effectively forced Wikileaks to scramble for new hosting after pressure caused its hosting providers to pull the plug. Other services are pressured into removing certain types of content as well. In the story linked above, the Dutch Hosting Provider Association (DHPA) claims that prosecutors are simply going to hosting companies and declaring, without any court order or underlying legal argument, that certain content is jihadist and should be removed. Feeling pressured and threatened, many hosts will simply remove that content. While the content may be incendiary, does that mean that there should be no due process at all? And the very real risk of overblocking doesn't seem to concern those demanding the content be taken down. The story notes one example of a video of a group of men around a campfire shooting guns -- but they note it's not entirely clear why they're shooting. And yet, they were told to take the video down. It's easy to say "this content is dangerous, take it down," without recognizing the slippery slope of censorship this creates. No one is defending efforts to recruit people into jihadist groups, but leaping immediately to censorship without due process or any evidence of actual law breaking is not the way to protect a free and open society. It seems very much like the opposite.Permalink | Comments | Email This Story

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Techdirt has been reporting on the disturbing rise in the use of malware by governments around the world to spy on citizens. One name that keeps cropping up in this context is the FinFisher suite of spyware products from the British company Gamma. Its code was discovered masquerading as a Malay-language version of Mozilla Firefox, and is now at the center of a complaint filed in the UK: Privacy International today has made a criminal complaint to the National Cyber Crime Unit of the National Crime Agency, urging the immediate investigation of the unlawful surveillance of three Bahraini activists living in the UK by Bahraini authorities using the intrusive malware FinFisher supplied by British company Gamma. Here's why Privacy International is acting now: While it's long been known that Gamma has provided surveillance capabilities to Bahrain, amongst other countries, the extent of Gamma's complicity in Bahrain's unlawful surveillance of individuals located abroad has only recently been confirmed. Two months ago, a number of internal Gamma documents were published revealing that Gamma is both aware of, and actively facilitating, the Bahraini regime's surveillance of targets located outside Bahrain through the provision of intrusion technology called FinFisher to the Bahraini authorities. The analysis by Bahrain Watch clearly shows that, amongst the Gamma documents published online, those targeted by the Bahraini government with FinFisher technology were [the activists] Mohammed, Jaafar, and Saeed, along with prominent Bahraini opposition politicians, democracy activists and human rights lawyers. Privacy International believes that this alleged surveillance of Bahraini activists while in the UK constitutes an unlawful interception of communications under the UK's Regulation of Investigatory Powers Act 2000 -- the infamous RIPA -- and further argues that Gamma is "liable as an accessory under the Accessories and Abettors Act 1861 and/or encouraged and assisted the offence under the Serious Crime Act 2007." If this reasoning is accepted, it could create an important precedent, at least in the UK. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Solar energy is actually extremely abundant (obviously not at night). The problem is capturing it all without covering huge areas of land (or sea) in an economical way and then storing the energy efficiently so that we can use it when we need it (ahem, like at night). Nature has developed photosynthesis, but if we're going to rely more heavily on solar energy, we're going to need to improve on plants or come up with other ways to create and store solar energy. Here are just a few projects that rely on the sun to make fuel. Lawrence Berkeley National Laboratory is working on an artificial photosynthesis process that could produce hydrogen as a fuel. These scientists are looking at molecules designed to absorb sunlight and create an electrical current that can break water into molecular hydrogen and oxygen. [url] Natural photosynthesis isn't all that efficient, so maybe researchers can augment plants with nanomaterials to give photosynthesis a little boost. Adding carbon nanotubes to chloroplasts can enhance photosynthesis by a measurable amount, but scaling this augmentation up might be tricky. Also, we should probably figure out how this actually works before we introduce this grey-green goo into the environment.... [url] The SOLAR-JET project is working on a chemical reactor that uses sunlight to power the production of syngas from just water and carbon dioxide. The syngas will be further reacted using the Fischer-Tropsch process to make a form of jet fuel (hence the name of the project). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Back in July, we wrote about a ridiculous lawsuit filed by the AARC -- the Alliance of Artists and Recording Companies -- trying to make use of a misreading of the Audio Home Recording Act (AHRA) to pretend that it means that Ford and GM have to pay royalty money for every CD ripping car stereo they install. As we noted, the AHRA is basically a deadletter law. The law itself effectively killed any possible innovation in the area that it was designed to tax for royalties -- machines that make repeated copies of content. The recording industry tried to pretend that basic MP3 players met the definition and sued one of the first such players, the Diamond Rio. The court soundly rejected the argument in that case, and thanks to that, probably 99% of you have MP3 players (or, nowadays, smartphones that play MP3s). In our original post, we went into much greater detail about why the AARC was clearly misreading both the law and the caselaw in a desperate attempt to kick up some royalties from the big automakers. Ford (along with Clarion) have now responded and do a damn good job explaining why the AARC is simply wrong. The the filing is pretty short and sweet in explaining the problems with the AARC's argument: Congress enacted the AHRA in 1992 to regulate a then emerging technology that for the first time enabled high quality serial copying of copyrighted musical recordings. “Serial copying” refers to the creation of copies of a musical recording from another copy of that recording as opposed to the creation of copies from the original recording. This activity concerned the music industry, which was a proponent of the AHRA. However, rather than directly prohibit serial copying outright, Congress exempted certain products and devices— specifically including computers and hard drives—from compliance while requiring other specifically defined “devices” to also incorporate technology to prevent serial copying. The automotive navigation systems here are exempted. Neither Ford nor Clarion is in the business of facilitating the serial copying of music. Ford is one of the largest automobile manufacturers in the world; it builds and sells some of the best-selling cars and trucks, certain models of which include navigation systems. Clarion manufactures and supplies Ford with navigation systems for its vehicles. Each such navigation system is a complex computer and includes a central processing unit that interprets and executes complex instructions and a 40 GB hard drive for storage of an operating system, computer software programs, databases, and other information (“Nav System”). [....] By its own Complaint, Plaintiff admits that this feature of Defendants’ Nav System consists of recording CDs to the system’s own hard drive, where the music is stored with various software programs and other data. It alleges nothing about making serial copies of CDs, digital audio tapes and the like. Under a plain reading of the AHRA, these automobiles with a Nav System are not capable of making a “digital audio copied recording” of a “digital musical recording” as defined under the Act. This is because the AHRA states that digital musical recordings do not include (1) material objects in which one or more computer programs are fixed or (2) material objects in which data other than sounds are fixed. Here, the Nav Systems are nothing less than automotive computers with hard drives containing both programs and data other than sounds. They do not reproduce digital music recordings in materials objects addressed by the statute, that is, CDs, LPs, cassettes, or digital audio tapes. The Nav Systems are outside the AHRA’s scope. Not surprisingly, the filing relies heavily on the ruling in the Diamond case, and I see that one of the lawyers listed on the filing is Andrew Bridges, who handled the Diamond case in the first place. You never know how these kinds of court cases will turn out in the end, but it seems unlikely that the AARC is going to get rich off of this last gasp effort to squeeze money out of automakers.Permalink | Comments | Email This Story

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We've written before about the recent trend among video game publishers in trading access for YouTube personalities to their games and positive coverage. Nintendo had been the most notable example of this to date, but they certainly aren't alone. This most recent example concerns Warner Bros.' Middle-earth: Shadow of Mordor and the deals the publisher struck with YouTubers, which are far more restrictive than those we've seen previously. "Videos will promote positive sentiment about the game. Videos must not show bugs or glitches that may exist. Maximize awareness for the Shadow of Mordor video game during the 'Week of Vengeance' through gameplay content, key brand messaging, and information and talent usage on Twitch channels. Persuade viewers to purchase game, catch the attention of casual and core gamers who already know and love Middle-earth. Requirements involve one livestream, one YouTube video, and one Facebook post/tweet in support of the videos. Videos will have a strong verbal call to action, a clickable link in the description box for the viewer to go to the game's website to learn more about the game [and] to learn how to register and play the game. Twitch stream videos will have five calls to action. Videos will be of sufficient length to feature gameplay and build excitement." "Videos must include discussion of the Nemesis System. This really should take up the bulk of the focus, such as how different the orcs are, how vivid their personality and dialogue are, gathering intel and domination abilities, exploiting their strengths and weaknesses. Videos must include discussion of the action and combat that takes place within the game, such as brutal finishers, execution moves, and wraith powers. The company has final approval on the YouTube video… at least 48 hours before any video goes live." Now, look, there's been a great deal of discussion as of late about the evils of the current gaming journalism scene, yet here's the shining example of corruption and nobody's up in arms. I can't quite figure that out. What these publishers are doing is creating a sub-section of the YouTuber ecosystem that will be first to market with reviews of gaming products but also in chorus with one another in heaping praise as a contractual obligation. Delightful. The Kotaku article says that this is an uncomfortable, systemic, and long-term problem. It isn't, and here's why: it can only work for a tiny period of time. And that period of time is coming to an end. Now that these deals are coming into the light with more regular frequency, they are only serving to condition the public to one thing: not trusting positive reviews of games. It's the inevitable result of this sort of thing. If the gaming public knows that you have these deals, they'll almost certainly decide not to trust positive YouTuber reviews of games. The negative reviews, on the other hand, certainly will be trustworthy. So, in the end, gamers will only have negative reviews to base decisions on when it comes to the games they buy. That ain't no way to run an industry. It's time the major publishers wised up to this sort of thing. Any short-term benefit is going to be far outweighed by the long-term distrust they're sowing. Permalink | Comments | Email This Story

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As you may recall, earlier this year, Newsweek "relaunched" with a cover story by reporter Leah McGrath Goodman claiming to have unmasked the real creator of Bitcoin. Bitcoin was created by someone (or some people) using the name Satoshi Nakamoto, but no one knew who it really was, and over the past few years Nakamoto had more or less disappeared from the Bitcoin scene. Newsweek claimed that Nakamoto was really a person named Satoshi Nakamoto, who actually goes by the name Dorian Nakamoto. The article was weakly sourced, heavy on speculation and based its key arguments on some really clueless assumptions. The most ridiculous parts involved the "forensic analysis" that Newsweek supposedly relied on in identifying Nakamoto. Specifically, this "forensic analyst" looked at the original Bitcoin paper and noted what she said were "old-school technological tropes" -- specifically, discussions about saving disk space, mentioning Moore's Law, and the use of two spaces after a period. This, according to Newsweek, pointed to a much older engineer: "The idea of conserving any kind of resources, and this is part of my formation, my long background in systems testing, that was a critical issue. But those are very very old-time concerns," she said. "To even mention disk space, things like that — disk space is cheap! And Moore's Law is an old maxim that computing power will double. We've gone exponentially away from Moore's law, but that was what it was all about in that interim period." Except that while disk space is cheap, the size of the Bitcoin blockchain is a big deal since the whole basis of Bitcoin relies on an ever growing blockchain, and if you didn't figure out ways to minimize the need to redownload the entire blockchain, it would create a massive problem for Bitcoin. The concerns about space weren't archaic at all, but right on point. As for the claim that "we've gone exponentially away from Moore's law"? I mean, that's just flat out wrong. Either way, it became pretty clear pretty quickly that Dorian Nakamoto wasn't Satoshi Nakamoto -- though Newsweek (bizarrely) still stands by its story. The latest, however is that Dorian Nakamoto has launched a crowdfunding effort to sue Newsweek on a website called NewsweekLied (and for those wondering, Nakamoto's lawyer has confirmed the page is legit). I sympathize with Nakamoto, having his life shaken up by a shoddy reporting job, plucking him out of obscurity and incorrectly naming him as the creator of Bitcoin. But... I have a lot of trouble seeing how any lawsuit could possibly make sense. In fact, it seems likely that any lawsuit could actually make things worse for Dorian Nakamoto. From the details on the website, it appears that they're likely to use a combination of false light and defamation claims. Both would be pretty difficult to prove, though false light is perhaps a lower bar in this case. The real problem, though, is that most of what is in the article could be considered to reflect positively on Nakamoto, rather than negatively. Claiming he was a secret, if eccentric, creator of a global cryptographic currency phenomenon? Even if it's false (as it appears to be), how would that be "highly offensive to a reasonable person" as required under California law? As for a defamation claim, they probably wouldn't have to show "actual malice" since Nakamoto wasn't a public figure (though, potentially Newsweek would argue that the Nakamoto they thought they were identifying was a public figure, and thus the higher bar should apply), but they would still have to show the harm to Nakamoto's reputation, leading to the same problem as the false light issue. Also, Nakamoto's lawyers would likely have to show that Newsweek knew the story was wrong (which doesn't appear to be the case) or that it was "negligent" in reporting the story. While I think we agree that Newsweek was sloppy and there was just generally bad reporting and bad conclusions involved, to reach the level of negligence is not easy. And here's where it gets even more difficult for Nakamoto. As we've discussed many times in the past, California (thankfully!) has a strong anti-SLAPP law that protects publishers from being sued in an attempt to silence their reporting on issues of public interest. We're big fans of California's anti-SLAPP laws and you'd have to imagine that Newsweek would seek to be protected under that law. And, the bigger issue for Nakamoto is that under California's anti-SLAPP law, if Newsweek were to win, it can go after Nakamoto for its legal fees. And, the law actually would allow Newsweek to go even further, and file a SLAPPback lawsuit, to seek compensatory and punitive damages (though, that might be a longshot for Newsweek). As ridiculous as the original article was, and as sympathetic as I may be to Dorian Nakamoto's situation, it's difficult to see how his lawsuit has much of a chance. Conceivably, there could be other claims made, or additional evidence that Nakamoto's lawyers think they have on Newsweek, but it seems like a massive longshot and a situation that could potentially create more legal headaches for Nakamoto than it solves.Permalink | Comments | Email This Story

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The impact of the Supreme Court's ruling in Alice v. CLS Bank continues to reverberate around the industry. We've already noted that courts have been rapidly invalidating a bunch of patents, and that related lawsuits appear to be dropping rapidly as well. And, now, a new analysis from a (pro-patent) law firm suggests that the US Patent Office is rejecting a lot more software patents as well. Following the ruling, the US Patent Office issued new rules for examiners, and even withdrew some notices of allowances. And it appears all of this is having an impact. The link above is Vox summarizing some findings from patent lawyer Kate Gaudry of law firm Kilpatrick Townsend, who argues that the data suggests the USPTO is rejecting software patents at a much higher rate. In short, back in January, art units at the USPTO rejected applications based on Section 101 of US Patent law only about 24% of the time. Section 101 covers what is patent eligible, and was the key part in the decision in the Alice case. Effectively, in the Alice ruling, the Supreme Court said that just doing something on a generic computer wasn't patent eligible under Section 101. Following that ruling, in July, the rejection rate jumped to 78%. Yes, from 24% in January to 78% in June. That's massive. The data also shows that units that focus on "other kinds of technology saw little change in their rejection rates." As the Vox story notes, Gaudry is freaked out that this will destroy innovation. "Without incentive, say goodbye to the quick pace of innovation we enjoy." But that's ridiculous, as anyone who actually works in software innovation knows. Patents have long been a drag on innovation in the field, setting up minefields and tollbooths that have worked to limit the pace of innovation, not speed it along. The idea that without patents there are no incentives is pure ignorance. The incentive is building a useful tool or service and being able to monetize it in a variety of ways. The idea that competition destroys incentives is simply ignorant of the history of innovation and basic economics. The rapid decline in software patents is a huge boon for innovation.Permalink | Comments | Email This Story

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Lawyer Martin Husovec has a post detailing an important case that has been referred to the EU Court of Justice, which could have a tremendous impact on legal liability for those who offer open WiFi in the European Union. It's tough to improve on Martin's summary of the post, so here it is: The case arose between an entrepreneur selling light and audio systems who is also a member of the German Pirate Party and record label. The entrepreneur operates an open and free of charge WiFi in his store. He uses the WiFi sometimes as a tool for advertising of his store (preloaded home page points to his shop and name of the network bears its name) and sometimes to agitate for his political views (pointing to particular websites such as data protection campaigns, etc.). After receiving a letter informing him about a copyright infringement allegedly committed via his hot-spot, the entrepreneur unusually sued the right holder pursuing the negative declaratory action. The right holder as a defendant later counter-claimed asking for damages, injunctive relief and pre-trail costs as well as court fees under the above mentioned doctrine of BGH. The referring court is hesitant whether mere conduit safe harbour of Article 12 allows especially for injunctive relief on which the German concept of Stoererhaftung is based. It points to similar cases before the Hamburg court (Case No. 25b C 431/13 and Case No. 25b C 924/13) that recently denied such claims arguing that mere conduit safe harbour prevents them. The court comes to conclusion that the plaintiff did not infringe the rights himself, and thus is considering what kind of measures can be imposed on a WiFi operator such as defendant. It is very symptomatic to German case-law on injunctive relief that the Munich court does not even mention applicability of Article 8(3) InfoSoc in this case. Despite the fact that its case is clearly about its local transposition and European limits. He then digs deep into the specific questions raised by the court, and I recommend reading his detailed thoughts and explanations of what the different questions likely mean and the possible risks from different outcomes. The end result, though is that either some basic safe harbors could be established for those offering WiFi (as is mostly the case here in the US), or the court can continue to drag the EU in the other direction, putting often draconian liability and regulations on those who merely offer open WiFi. Martin "hopes" the court won't add to the burdens of open WiFi operators by increasing liability and rules. However, he also notes that it's a chance for the court to actually protect and encourage free WiFi by clearing up that merely offering it shouldn't make one liable for the actions on that network. But, he points out: In order this to happen, somebody should explain the court the innovative potential and social use of open WiFis beyond mere household use, which most of the judges are [only] familiar with. In other words, this is an important case to watch for those of us who believe in the value and importance of open WiFi.Permalink | Comments | Email This Story

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Back in November 2013, the French think-tank Forum d’Avignon published a manifesto entitled, "Principles of a universal declaration for Internet users' and creators' rights in a digital era," which tried to define the concept of an individual's "digital cultural data." The same group has now put together what it rather grandly calls a "Preliminary Declaration of the Digital Human Rights". That might sound like a good idea, but as Techdirt has discussed before, thinking in terms of "rights" and "laws" isn't always the best way to proceed in these sort of areas. That's certainly the view of a heavyweight collection of French civil society organizations, which have issued a statement about what they see as key problems with the declaration (via @maliciarogue.). First of all, they point out that the group behind the declaration is not entirely disinterested here: It is worth noting that the Forum d’Avignon is a French think tank whose main goal is to deepen the links between culture and economy. We hereby denounce the Forum's use of digital privacy's debate to its own profit, that is in order to reinforce copyright. One big problem is the absence of any appreciation of the importance of the public domain: Article 5 of the Declaration poses that « any use of the data as a creative work » is subject to prior consent of the individual. Such a formulation completely ignores the fundamental role of the public domain as well as the exceptions and limitations to copyright, which are all essential in balancing and preserving the system. The statement also points out that trying to apply copyright law to personal data is unsatisfactory, because it puts the onus on individuals to defend their privacy: Similarly, the application of copyright law to personal data is a dangerous solution for it is based on the sole individual responsibility and control of the use of data which identify oneself. The French State Council and the National Digital Council rightly warned against such a conceptual framework as it could lead to greater discrimination and therefore inequalities in the protection of privacy. We are not all equal with the exploitation and protection of our data and it is essential that common rules exist. The statement concludes: We therefore emphasise that personal data is not a form of creative work and must not be considered as such. Equally, a form of creative work is not personal data and must not be considered as such. The protection of personal data is a fundamental stake in the digital age. It needs to be balanced with freedom of expression and the right to information. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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60 Minutes, which has been harshly criticized for running puff pieces for the NSA and FBI recently, is at it again. Last night, they ran two unrelated yet completely conflicting segments—one focusing on FBI Director Jim Comey, and the other on New York Times reporter James Risen—and the cognitive dissonance displayed in the back-to-back interviews was remarkable. First up was 60 Minutes correspondent Scott Pelley's interview with FBI Director Jim Comey. 60 Minutes aired the first part of the interview last week, which ran 14 minutes and did not contain a single adversarial question. This time, Scott Pelley asked him at least asked a couple softballs about civil liberties, although the primary one Comey just refused to answer. The main focus of the piece, however, was Comey's supposed commitment to "the rule of law." "That's a principle over which James Comey is willing to sacrifice his career," Pelley explains to the audience. He then proceeded to re-tell the infamous "hospital bed" scene from 2004 during the Bush administration, where Comey, then deputy attorney general, threatened to resign unless Bush altered the original NSA warrantless surveillance program. Bush relented a bit and so Comey stayed on as deputy attorney general for more than a year afterwards. Comey is portrayed as the hero, who stopped illegal surveillance from going forward. What Comey did was certainly admirable, but this episode happened in March 2004 and only pertained to a small portion of the NSA's illegal activities. The NSA's illegal warrantless wiretapping program (as the public knew it) was first exposed more than eighteen months later in December 2005. 60 Minutes explains this in the very next segment but couldn't apparently put two and two together: Jim Comey was presumably also responsible for signing off on the illegal program the New York Times exposed after his hospital bed protest. During this segment, 60 Minutes interviewed James Risen about the Obama administration's war on leaks and described the scoop he is most famous for: his Pulitzer Prize-winning story exposing that same warrantless wiretapping program. Risen explains to 60 Minutes correspondent Lesley Stahl that the NSA was not only gathering metadata without a warrant on Americans in 2005, but the content of phone conversations as well. And as Stahl herself points out—and as former NSA chief Michael Hayden basically admits in the segment—this was in direct violation of the 1978 law the Foreign Intelligence Surveillance Act, which required court orders to conduct such spying. Critically, Risen's first story in December 2005 makes it clear the warrantless wiretapping of Americans was ongoing at the time. And we learned just last year as part of the Snowden revelations that Comey's hospital protest was over Internet metadata, not illegal eavesdropping on phone calls. So to sum up: the government was breaking the law in December 2005. This is the program that Comey had presumably signed off on after the much-talked-about incident and he remained deputy attorney general. Yet Comey is still uncontroversially portrayed as a man dedicated to "the rule of law." This information was readily available to 60 Minutes, as it's in the most well-known recounting of the hospital bed scene done by reporter Barton Gellman for the Washington Post and in his book The Angler in 2007. As Barton Gellman reported in 2007, Comey forced some changes with his potential resignation in 2004, but "much of the operation remained in place." "Imagine you're doing ten things one day, and the next day you're only doing eight of them," an unnamed official told Gellman in The Angler. "That's basically what happened here." Cross posted from the Freedom of the Press Foundation. Permalink | Comments | Email This Story

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Not too long ago, Kuka filmed an ad hinting that their industrial robot arm was fast enough and had software that enabled it to play ping pong with professional table tennis player, Timo Boll. However, that match was pretty disappointing because it never really showed the robot arm returning a tournament-level serve from Boll (or even returning any kind of shot that wasn't highly edited to make it look more dramatic). Here are a few ping pong playing robots in reality -- and they are not yet ready to compete with humans. Japanese electronics maker Omron demonstrated a ping pong robot at the 2014 Ceatec tech expo, and its 600+kg bot can play nicely with a human for over 100 volleys. This robot isn't exactly going to beat anyone at a game, but it has reflexes in the sub-millisecond range, and presumably, software/hardware upgrades could make it more intimidating. [url] German researchers trained a robot to play ping pong, and it can return some gentle shots and keep its returns on the table (for the most part). Katharina Muelling and her colleagues were learning about how to teach robots physical skills by imitation, so maybe if they'd used a professional table tennis player to train their robot.... [url] Chinese humanoid robots have played ping pong against each other in a rally lasting 176 strokes. It's not the most exciting game, but these bots can do both a forehand and backhand stroke -- and play against humans, too. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
There's some new data out about patent lawsuits that paint an interesting picture. First, the law firm Goodwin Procter put out a new manual for fighting patent trolls (found via GigaOm), showing that patent trolling has been immensely profitable. It shows how the median damages awarded to trolls has been much higher than to operating companies, which is the exact opposite of what you'd think it should be -- companies that are actually competing in the space have at least a slightly more legitimate claim than those simply setting up toll booths. But it's the trolls who get rewarded: It's worth noting that even this chart significantly underplays things, since very few patent trolling efforts actually reach court in the first place. Many, many companies just pay up when threatened, and many more settle after cases have been filed rather than actually allowing a trial to reach conclusion and have damages awarded (if any). But... that all may be changing. We've been writing a lot about how the Supreme Court's ruling in Alice v. CLS Bank had resulted in the courts rapidly invalidating a bunch of crappy software patents, and that may be taking a toll. Legal analytics firm Lex Machina has been crunching the numbers and noticed a significant and noticeable drop off in September patent lawsuit filings. Historically, there's usually a summer lull in patent lawsuit filings, but they pick back up in September (back to school patent trolling!). And, each year the number of patent filings in September keeps going up and up and up. In 2011, there were 385 patent lawsuits filed in September, and in 2012, it was 460. In 2013, it was 548. And yet, here in 2014, there were just 329 cases filed in September, a noticeable drop. Lex Machina has a bunch of charts showing the data, but this one is the most telling to me: You can see a bunch of lawsuits rushed to get filed prior to the Supreme Court hearing the case, and then a pretty steady stream over the summer. As we've noted, right when the ruling came out, it wasn't entirely clear how far reaching it would be -- but within about a month people began to realize that it really was going to invalidate a large number of bad patents, and then the lawsuits started dropping rapidly. It will be interesting to see how this plays out over the rest of the year.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
We've written a few times now about Walter O'Brien, the claimed inspiration for the CBS primetime TV show Scorpion. As our reporting has shown, a very large number of the claims about O'Brien's life simply don't check out when you look into the details, and in many cases appear to be flat out false. As we've said repeatedly -- though people keep bringing this up -- we don't care at all about Hollywood folks exaggerating a "based on a true story" claim. What concerns us is (1) the journalistic integrity of those engaged in promoting the false claims about Walter O'Brien for the sake of a TV show and (2) the fact that O'Brien has been using this to promote his own business, which may lead people to giving money to him under questionable pretenses. Each time I write about him, more people who have known him in the past come out of the woodwork to repeat the same claims: nice enough guy, but always massively exaggerating nearly everything. In this post, however, I want to focus on the first part of my concern: the journalistic integrity question. Three of the main articles often cited in support of O'Brien's claims both come from "CBS News." They're actually local CBS affiliates, rather than the main CBS News, but they're clearly trading on the CBS News brand, trust and credibility, and yet they're so ridiculous as to raise serious questions about CBS's journalistic standards. First up, we've got an article from CBS 2 Los Angeles, with news "reporter" Crystal Cruz. Like many such stories, it brings up the bogus "4th highest IQ in the world" which has already been shown to be false in our last post. It also ridiculously claims that Scorpion is "a billion dollar business" which, again, there is no evidence to support at all. Then there's this: “The naval bases in Afghanistan, we predicted the drug lords could do biological warfare to the water supply to the base and put arsenic in the water supply to the base, and we predicted that three months ahead, before it happened,” O’Brien said. “It changed military policy because of it, and that saved over 400 lives.” As this is being discussed in the video version, it shows a map of Afghanistan, which only serves to reinforce the fact that Afghanistan is a landlocked country. Naval bases aren't particularly useful there. Yes, there was a Navy presence -- and the Marines are a part of the Navy -- there really isn't what most people would consider to be a naval base. But, more importantly, the US military also doesn't use local drinking water because of their fear of contamination in the first place. They bring in bottled water for drinking. There are some reports (from UNICEF) of arsenic-contaminated water in Afghanistan, but it's from local mining operations, not any reports of sabotage by "drug lords." A reporter might have looked into all of this, but CBS wants to promote its TV show. The Baltimore affiliate of CBS News, WJZ had a piece written by "reporter" Linh Bui repeating a bunch of claims about Walter that are dubious, at best. The whole "fourth highest IQ in the world" is there, of course. She also claims that Homeland Security found O'Brien in the 1980's, despite it only coming into existence after 2001. She quotes O'Brien saying that he's "stopped wars" without ever actually doing any fact checking to see if there's any basis for that at all. More recently, Boston's WBZ, the local CBS affiliate, had its Emmy winning news anchor Kathryn Hauser claim that Walter' O'Brien helped find the Boston marathon bombers. Again, there has been no evidence that we've seen to date that comes anywhere close to supporting that claim. There was a TV interview that suggested that the FBI likely used software that was like software that O'Brien created (though, we've yet to see any evidence that Walter actually has created such software in the first place). But over time, that claim has continued to morph into this claim that he actually helped find the bombers. You'd think, that with Hauser actually being in Boston she might have gone and asked local law enforcement if there was any truth to the claim at all. But she didn't. It's pure speculation as to why she didn't, but it's hard not to notice that all three of these reports are posted to CBS News sites and the TV show is airing on CBS. Comments on the latter two stories have pointed out problems with O'Brien's story, but no corrections or followups have been forthcoming. Because that would take actual reporting -- and would contradict the narrative that parent company CBS is selling. Two other stories that had financial ties to the show have both put up notices pointing out concerns raised about his claims, but neither has been able to find any followups. The first was an article by CNET's Tim Stevens, which repeated some of Walter's usual claims, but after a few people contacted him, he (unlike others) was quick to admit that he may have made a mistake in taking O'Brien at his word and appended an update to the story. Since then Stevens has requested followups with O'Brien, all of which appear to have been ignored. CNET is... owned by CBS. Then there's Fast Company, where Susan Karlin wrote a similar profile of O'Brien, again repeating many of his claims. However, after people questioned it, she too was quick to add a note that many of O'Brien's claims have been questioned and there are "inconsistencies" in his story. Karlin also notes that she has contacted CBS and O'Brien along with other show producers for comment, but appears not to have received any follow up either. As we noted in our last post, Fast Company produced the Techmanity conference where O'Brien was one of the featured speakers. Still, I appreciate Stevens' and Karlin's willingness to admit that they may have been taken in by O'Brien's claims, and it's quite telling that it appears that O'Brien and CBS are unwilling to do any followups with those who question the details. The really questionable activity is by CBS News itself for simply refusing to acknowledge the questions and simply repeating questionable claims about O'Brien that help the CBS primetime lineup.Permalink | Comments | Email This Story

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