posted 9 days ago on techdirt
A couple of months ago, we wrote about how publishing giant Elsevier had purchased the open access pre-publisher SSRN. SSRN is basically the place where lots of research that we regularly report on is published. Legal and economics academics quite frequently post their journal articles there. Of course, Elsevier has a well-known reputation for being extreme copyright maximalists in dangerous ways. Having Elsevier take over SSRN concerned a lot of academics, and even led to calls for alternatives, including many asking the famed arXiv to open a social science research operation as well. Indeed, it appears that arXiv was paying attention, because just about a week ago, SocArXiv was announced, and it already has a temporary home hosted by Open Science Framework. And perhaps this came just in time, because just as that happened, Stephen Henderson, a law professor, noted that SSRN took down his paper saying that they didn't think he retained the copyright to it. When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well. Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract. So, download counts are gone, and no article. Not the former working version nor the final version. And then in the revision comments, I found this: It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to [email protected], or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US. So, not only have they completely changed their model, but—at least to me—they gave no effective notice, and they pull papers without asking. Nobody bothered to _ask_ whether I had permission; they simply took down every version of the article and said nothing. Alas. And when I called customer support and someone called back, I pointed out that some profs have hundreds of articles posted for which SSRN doesn’t hold the copyright agreements. “Are you going to take all those down too?,” I asked. The answer, in essence, “Those were posted in error.” Unbelievable. As that story started to make the rounds, SSRN insisted that it was just a technical glitch, in that it had sent the wrong email, but others aren't buying it. @rschon @TomReller we sent the wrong email - that's it - nothing has changed in our policies. There isn't some big conspiracy happening — SSRN (@SSRN) July 15, 2016 Bullshit. "Sent the wrong e-mails" doesn't explain surprise takedowns of papers. https://t.co/PAjjMqOMgI — Paul Gowder (@PaulGowder) July 16, 2016 And now, the Authors Alliance has come out with a notice telling SSRN authors that it may be time to try something new (such as SocArXiv) because Elsevier cannot be trusted. The Alliance notes that after Elsevier purchased SSRN, it reached out to Elsevier to try to get the company to commit to some basic principles of openness, and Elsevier refused: Since we first heard of mega-publisher Elsevier’s acquisition of SSRN, the popular social sciences pre-print and working paper repository, we have expressed concern. Elsevier is not known to be an avid supporter of the open access publishing practices favored by many of our members, and has historically taken a restrictive stance toward author control and ownership of scholarship. In response, we reached out to Elsevier and to SSRN with a set of principles the service could adopt that would reassure authors that SSRN could continue to be a go-to resource for those looking to refine and share their work. We have since heard back from SSRN: they would not commit to adopting even one of our principles. They offered more general reassurances that their policies would continue as before. We were not satisfied, but we decided to wait and see whether our fears would be borne out. The article notes more examples of SSRN pulling down research, even when the authors do retain the copyright, combined with a misunderstanding of how Creative Commons licenses work. It seems fairly clear that this was not just the case of one email improperly sent. And thus, for those who rely on SSRN, it's probably time to start looking for alternative ways of posting documents. SSRN authors: you have not committed to SSRN. You can remove your papers from their service, and you can opt instead to make your work available in venues that show real commitment to the sharing, vetting, and refinement of academic work. The Authors Alliance also points out that researchers don't need to just post their research in one place, and can often host it themselves as well. But, it appears that SSRN under Elsevier is quickly losing trust. Considering that it was basically the go to place for all legal and economics research pre-publishing, that's quite a quick turn around, thanks entirely to Elsevier.Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
Fresh off the news that Mike Huckabee finally settled the copyright infringement suit over his use of a Survivor song at his Kim Davis rally, we have now learned that the campaign for Ted Cruz has apparently also had an issue with properly licensing music for its campaign. There's a degree or two of separation here to be aware of, with the Cruz campaign having hired an ad agency to handle its digital advertising, and with that ad agency apparently flouting the licensing rules of the music it acquired with pretty stunning abandon. Still, while accusations of infringement by musicians against politicians so rarely are simple cases of infringement, instead fraught with politics, this one, as Eric Goldman notes, appears to be pretty straightfoward. Senator Ted Cruz’s presidential campaign allegedly hit the copyright infringement bullseye. (All of the following facts are allegations from the complaint, but the defendants’ motion to dismiss doesn’t challenge any of them). The Cruz campaign’s ad agency, Madison McQueen, downloaded two songs from Audiosocket, which I would categorize as a stock music agency. The songs are “Lens” by Sarah Schachner and “Fear of Complacency” by Brad Couture. In each case, the ad agency agreed to Audiosocket’s standard Small Business License Agreement, which prohibited any use “for political purposes” and included a $25k liquidated damages clause. Audiosocket attached unique IDs to its downloads that fingers the ad agency as the downloader of these songs. Despite the license restrictions, the campaign used both songs in promotional material. Lens was used in the “Victories” video (apparently offline), viewed 78,000 times on YouTube. After the campaign was told that its use was unauthorized, the campaign nevertheless broadcast the video 86 times on Fox Business News (if criminal copyright infringement were being prosecuted, which it won’t be because the DOJ would never go after a sitting Senator for such things, would this fact provide the necessary willfulness?). Fear of Complacency was used in the “Best to Come” video, viewed 12,000 times on YouTube. It's typical for these types of complaints to be layered in nuance and interpretation, with a dash of one side or the other misunderstanding how licensing, copyright, and the rights that surround public performances work. This does not appear to be one of those cases, as the agreement Madison McQueen agreed to is fairly straightforward and specifically forbids the exact use for which the music was incorporated. As Goldman notes, whereas most campaigns would simply apologize and pay to have all of this go away, the Cruz campaign instead offered up a motion to dismiss. That motion didn't rebut any of the allegations. Instead, Cruz's lawyers argued that the musicians had only applied for copyright registrations and had yet to have that process completed, that it's unclear how many times it should be said that the campaign infringed on the copyrights for the songs, that Audiosocket can't stack its copyright complaint alongside its breach of contract complaint, and that all of this is a moot point because -- not making this up -- Cruz lost and gave up on his candidacy. The court, predictably, denied every argument in the campaign's motion to dismiss. Which means it's settlement time. Now that the plaintiffs survived the motion to dismiss, I’d expect the parties to revisit a settlement. The sticking point may be computing damages, especially the liquidated damages where the parties may disagree about how many times the license was breached. If Audiosocket accepts $25k per song, it should take $50k or less to buy them out–easily doable (especially if he still has $9M cash on hand). Audiosocket says it’s not claiming each of the 90k+ streams count as individual breaches (which would lead to over $2B of liquidated damages), but I’m not sure what their compromise position will be, so it’s hard to guess how far apart they really are. To me, the most interesting unresolved question is how this lawsuit and failed motion to dismiss will change any of Sen. Cruz’s positions about copyright law. I’m not familiar with his IP platform, but he now has a first-hand brush with copyright infringement that ought to make him more empathetic towards other well-meaning and honest Americans who find themselves unwittingly staring down the barrel of a copyright infringement shotgun. Unfortunately, if past politicians’ response to being accused of IP infringement is any guide, the chances of Sen. Cruz becoming a champion of user rights are remote. The more interesting question to my mind is exactly how all of this would play out if Senator Ted Cruz was instead local mailman Ted Cruz, without the legal team and political cache that he enjoys to back him up? We talk a great deal around here about citizens who are engulfed in questionable copyright actions, yet here is a Senator who will be able to pay some sum of money that he has at his ready to make all of this go away. You would hope that this would lead to some kind of empathy in the halls of government, but naaaaaaah. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
Nearly one year to the date from Sacramento mayor Kevin Johnson's filing of a lawsuit against his own city and a local journalist to block the release of emails from his personal Gmail account, a judge has ordered him to turn over most of the emails he's been fighting to withhold. [T]his past Friday, Krueger ruled that Johnson and the city must make public 79 of the remaining 113 emails and records. Ballard Spahr, the firm that represents the mayor pro bono, needs to turn them over by July 18. Johnson had long argued that emails from his personal account weren't subject to public records laws -- even those in which government business was discussed. And, indeed, the city has no policy in place preventing officials from using personal email accounts to conduct official business. However, that's not the same thing as saying these emails can't be obtained with public records requests. When that argument failed to keep the emails from being released, Johnson's lawyer raised the good old "attorney-client privilege" as a shield against public disclosure. Judge Krueger shot that down as well. During the hearing, Humphreys was steadfast in his lobbying to keep some of the records secret. He contested that, since Ballard Spahr had reviewed firsthand many of the emails and attachments in question, they were clearly protected from disclosure because of “attorney-client privilege”—a phrase he repeated ad nauseam. Eventually, Krueger schooled him on the law. “Every document that an attorney has seen does not fall under attorney-client privilege,” the judge explained—adding that this was legal fact no matter how many times Humphreys made a “talismanic recitation of those words.” In the end, it's a win for the Sacramento News & Review, which was one the parties named in Mayor Johnson's email-blocking lawsuit. Given the nature of the disputed emails, it's easy to see why Johnson wanted to keep them out of the public's hands. Many of the communications cover Johnson's takeover of the National Conference of Black Mayors -- a leadership position he held tenuously, briefly, and under a considerable amount of criticism. Johnson's 2015 attempt to obtain an injunction against his own city followed his admission that he had destroyed several public records (in this case, text messages) responsive to requests pertaining to the city's $500 million sports arena. Even though this legal battle has pried loose a few hundred emails over the past year, it's still only a small percentage of Mayor Johnson's "official business" communications safely stashed away in his personal account. “We’ve been fighting in court for a year over a small batch of records that ended up in the hands of the City Attorney,” Garvin wrote. “The much bigger problem is the thousands and thousands of emails that Johnson has refused to turn over, which were generated by his OMKJ email accounts.” Politicians are particularly adept at keeping their communications away from the public. Kevin Johnson is the rule, rather than the exception. Fortunately, the lack of internal policies forbidding this activity isn't preventing courts from finding responsive communications have been improperly withheld. But these findings come at a great expense for public records requesters -- many of which will abandon their requests rather than spend thousands of dollars in legal fees to obtain documents that rightfully belong to the public. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
We've seen plenty of bogus DMCA takedowns and legal threats issued in order to silence critics. Paul Alan Levy has gotten ahold of a weird, long-delayed lawsuit [PDF] filed by an Australian financier against an unknown blogger who wrote a single critical post about him nine years ago. There is somebody on the other side of the Pacific Ocean who has a strongly negative perspective on Nicholas Assef, the head honcho at an Australian financial services firm called Lincoln Crowne – or at least, somebody held such views nine years ago.   We know at least that much because, in 2007, an anonymous individual created a small Google blog, using the URL lincolncrowne.blogspot.com, and posted a “warning” urging people who were considering doing business with Assef and his company to do their due diligence first. And even though the blog is buried deep in the Google search results for someone entering a search using lincoln crowne as the search string (currently, it is on the tenth page of results), Assef is plainly rankled by this criticism. How Assef came across this single post, floating in the internet backwater, is a mystery. But there it is. Before suing the Doe behind the single-post "blog," Lincoln Crowne tried suing Google for defamation in Australia, presumably to use local laws to route around Section 230 protections. It didn't work. Google briefly took down the blog post before restoring it. Having failed in this attempt, Lincoln Crowne is now trying to sue the anonymous blogger, using a poorly-constructed lawsuit with more than a few deficiencies. It not only claims the content is defamatory, but that the defendant's URL is a violation of its trademark. It's a mess, which is somewhat surprising because the firm is being represented by lawyers who seem otherwise competent. Levy provides more insight into the suit's multiple flaws. The trademark claim is based on the proposition that use of the company name in the third-level domain for the blog constitutes infringement. The complaint asks the court to exercise supplemental jurisdiction over the defamation claim, which is based on the allegation that everything written in the blog is a lie (does that include “and” and “the”?). The defamation claim is a bit odd because the statute of limitations for defamation is only one year, and the suit was filed eight years after publication. And the trademark claim is even worse – the blog is simple criticism, without selling any rival products. and there is a Ninth Circuit decision on point: Bosley Medical v. Kremer (a case that I handled), saying that non-commercial gripe sites are outside the scope of the Lanham Act. And even if the site had some commercial aspect, what likelihood of confusion about source could be caused by a blog that is headlined BEWARE LINCOLN CROWNE & COMPANY and then “Warning Warning Warning - Nick Assef"?. Those aren't the only problems. In addition to these spurious claims, the complaint also shifts targets in midstream. The defendants listed on the first page of the suit only include "Does 1-10." Out of nowhere, the lawsuit suddenly starts targeting Google. Also odd is the fact that the default judgment order is sought against Google, which is not a party to the lawsuit and is not in default and which, in any event, could not have been sued for defamation. It is unclear whether plaintiffs have alerted Google to the fact that they are seeking an order from the judge directed at Google rather than at the anonymous blogger. As Levy points out, this sort of thing is common in the Ninth Circuit, where many tech companies are located. Sneaky plaintiffs file against one party and then pepper their complaints with requests for default judgment against better-heeled corporations. Not only that, but the Ninth Circuit seems to enjoy circling this particular bogus lawsuit drain -- much more so than Levy does. I find it tiresome to have to keep going back to courts in the Ninth Circuit to make these arguments: once we win in a circuit, I prefer to preserve Public Citizen's scarce resources by moving on to other jurisdictions. But if nobody speaks up, the win becomes a dead letter and future lawyers then start citing the lower court decision in self-justification. A bogus lawsuit -- running unopposed (as it were) -- can do just as much damage as a legitimate one. And this one is pure frivolity. Even if the long-expired statute of limitations on defamation claims is ignored, the trademark allegations are nothing for Lincoln Crowne's representation to be proud of. In order to demonstrate the "harm" a personal blog showing up 10 pages into a Google search is doing to its business, the company actually had to use "lincoln crowne blogspot" as its search terms to get anything incriminating to show up on the first page. As Levy notes, the likelihood of the average consumer adding the word "blogspot" to their search for Lincoln Crowne hovers at a steady 0%. It wasn't until seven years after the offending post appeared that Lincoln Crowne showed any motivation to secure its own Blogspot-hosted blogs in an attempt to combat the single negative post it had come across, so it's not as if the company has faced an uphill battle against a determined blogger for nine years straight. Either way, the likelihood of confusion is nil and the post itself -- even if considered defamatory -- isn't Google's problem (although the plaintiff would really like it to be) and dates back further than the statute of limitations can be stretched. It's clear from the lawsuit that Lincoln Crowne is just hoping to stick Google with something by injecting wording that asks for the company to be held responsible should the actual Doe defendant fail to appear. That's not proper litigation. That's opportunism. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
Given the cultural phenomenon that is Pokemon Go, it was only a matter of time before security-conscious government agencies would be forced to confront the inevitable: that their employees would be joining in the quasi-AR madness. Kristan J. Wheaton of the Sources and Methods blog was handed an apparently official document from the Defense Department that lays down several common sense rules for employees throwing imaginary balls at imaginary creatures. (A screenshot of the original document can be seen in Thomas Rid's tweet, embedded at the bottom of this post.) One of my contacts (Thanks!) within the intel community put together a tip sheet for friends and family and, having read it, it sounds like good advice for anyone who wants to play Pokemon Go with a reasonable level of safety and privacy. Remember, it is a tip sheet and is designed to be helpful, not comprehensive. If it is not covered here, just remember D2S2 – Don’t Do Stupid Stuff. Considering the source, the list of do's and do not do's is straightforward and on point. And, as Wheaton points out, good advice for anyone playing the game, not just those with high-level security clearances chasing down rarities behind CIA filing cabinets. In short, make sure you're downloading the authentic application, be aware your location will be recorded, and -- more importantly, given the nature of DoD components -- the photos taken during Pokemon hunts might accidentally reveal something meant to stay hidden. Be mindful of your surroundings when using this augmented reality (AR) mobile game, especially when taking pictures of Pokemon during the capture process. Note what's in the foreground and background, including reflective surfaces and information revealing identity and or location (street signs, vehicle license plates, Government buildings, etc.). Disabling AR makes Pokemon easier to catch! The location where you take a picture of a Pokemon is also likely embedded in the picture's metadata. In addition, the DoD suggests employees use something other than their personal Google account to log in and to select usernames that do not reflect their IRL names. Some classic military-industrial complex paranoia surfaces in the penultimate bullet point, however. When physically visiting Pokestops and gyms, maintain awareness of your surroundings. Travel with a buddy or remain in your vehicle with the doors locked. It is not necessary to physically enter the real-world establishment where a Pokestop or gym is located, you may be able to interact with the Pokestop/gym from the curb or even across the street. While there have been reports of strongarm robberies at bogus Pokestops, the whole "situational awareness" vibe adds far more cloak-and-dagger than seems absolutely necessary. The full list at Wheaton's blog is worth a read, though, whether you're a normal citizen or a DC insider neck deep in redacted drone strike reports/Rattatas. US Government operational security guidance for intelligence officers and friends playing Pokémon GO UNCLASSIFIED pic.twitter.com/yAASF3XR46 — Thomas Rid (@RidT) July 16, 2016 Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
Free yourself from wires and tangles and catching yourself on door knobs with the $25 Magnetic Bluetooth 4.1 Wireless Sport Headphones. You can listen to your device from up to 30 feet away and get up to 5 hours of playing time or up to 6 hours of talk time on one charge. The earbuds are magnetized and can clip together around your neck so you don't have to worry about dropping your headphones on the ground when you aren't listening to them. They come with a carrying case and three sizes of earbuds for a comfortable fit. 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

Read More...
posted 9 days ago on techdirt
Last Friday's hearing on encryption was hosted by the Senate Committee on Armed Services and a visibly-irritated John McCain. McCain is no fan of encryption and, apparently, no fan of Apple. Kieren McCarthy of The Register reports (and delivers a stellar headline). Opening the Committee on Armed Services' hearing on cybersecurity this morning, McCain went out of his way to note that Cook has declined the senator's invitation to give testimony alongside three opponents of end-to-end encryption on the company's iPhone. "I must note for the record that these were not our only invited guests," McCain said. "This committee extended an invitation to Apple CEO Tim Cook to offer his perspective on these important issues. He declined. I hope he will reconsider in the future so that this committee can benefit from the widest possible variety of perspectives." "Widest possible variety." The other three "guests" included noted encryption opponent Cyrus Vance, former Bush Homeland Security Advisor Ken Wainstein, and -- producing the only measured take on the issue -- former NSA deputy director Chris Inglis. So, the deck was stacked, and Apple likely felt its testimony would be largely undercut by having to defend itself against baseless assertions and wild allegations, like it did at the last hearing it attended. Back in April, the "intelligence commander" of the Indiana State Police, Charles Cohen, suggested Apple had provided iOS source code to the Chinese -- something it wasn't willing to hand over to the US government. So, while attempting to speak about the issue at hand, Apple's reps had to address idiotic statements like these instead. That's where I was going to conclude my comments. But I think I owe it to this committee to add one additional thought. And I want to be very clear on this: We have not provided source code to the Chinese government. We did not have a key 19 months ago that we threw away. We have not announced that we are going to apply passcode encryption to the next generation iCloud. I just want to be very clear on that because we heard three allegations. Those allegations have no merit. Thanks, but no thanks. McCain and others attending the hearing pretend the encryption problem can be solved by "working together." But Manhattan DA Cyrus Vance used part of his testimony to basically accuse Apple of offering encryption-by-default just to spite the government. The others testifying didn't go quite as far as Vance did in portraying the company as the enemy of justice, but there was really nothing in it for Apple. There's no "working together" going on here, not if the committee offers three invitations to people opposed to encryption (or at least far more sympathetic to law enforcement's requests) but the only outsider asked to attend is one that spent the running time of the last hearing listening to ignorant statements and wild allegations. Not having Apple to kick around obviously bothered McCain. As the hearing progressed and McCain was faced with the fact that all three panelists were effectively saying the same thing, he grew increasingly frustrated at the failure of Cook to serve as a legislative punching bag and repeatedly referred to his absence. His committee "has subpoena power" McCain grumpily noted, implying that he would compel Cook to attend a future kangaroo court. And at the end of the hearing, McCain still wouldn't let the matter drop and complained that it was "unacceptable" that Cook had failed to attend. That's what passes for "working together" in Washington. Threats of forced attendance at upcoming hearings where tech representatives can be sat on one side and angrily glared at when not attempting to defend themselves from speculative assertions and allegations. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
The United States Senate Committee on Armed Services held a hearing about the coming darkness cellphone encryption Friday morning. There was almost no attempt made to address both sides of the issue, most likely because Senator John McCain -- who headed up the "discussion" -- has already made up his mind on how this problem should be handled. Testimony -- all from government officials -- was presented, with Manhattan DA Cyrus Vance leading off. Vance's tune hasn't changed. Encryption is still (apparently) an insurmountable problem and the only "answer" runs directly through Congress. Vance spent most of his speaking time [PDF] criticizing Apple and suggesting its decision to provide encryption by default on its phones was done purely to spite him and the government. Given Apple’s own statements about the security of iOS 7, shortly after Apple’s reengineering of its phones to prevent search warrant access by law enforcement, I asked it in a letter dated March 2015, whether there was a bona fide security reason to make its new operating system, iOS 8, warrant-proof. Apple chose not to answer me, but in March of this year, the House Judiciary Committee compelled Apple to answer the same question. That Committee asked Apple the following question, in writing, “Was the technology you possessed to decrypt these phones”—and the clear reference is iOS7 phones and their predecessors—“ever compromised?” Apple’s written response was: “The process Apple used to extract data from locked iPhones running iOS 7 or earlier operating systems was not, to our knowledge, compromised.” (Emphasis added.) Apple’s answer to this crucial question shows what we have long suspected: That Apple’s method of data extraction under iOS 7 posed no documented security problems. That being so, then there should be no unreasonable security risk going forward if we return to the procedure where court-ordered warrants can be honored by extracting responsive data off of smartphones. In Vance's view, encryption protocols should not be altered until they've been compromised -- a view that aligns nicely with his presumption that the government should always have access to phone contents but runs counter to good security practices. Vance wants Apple to go back to holding the encryption keys and be on hand to unlock the door whenever the government asks. Vance is still pushing his "encryption is a godsend to criminals" narrative -- based on little more than same single recorded prison phone call he referenced months ago. Vance may have a pile of cellphones law enforcement can't break into, but that hardly suggests a majority of criminals are gravitating towards encrypted services. The rise in the number of encrypted communications methods will benefit some criminals, but even high-profile terrorist attacks have been coordinated and planned using methods still open to interception and investigation. The solution is legislation, according to the DA. Vance provides a list of prior legislation crafted to aid law enforcement as support for his theory the government should be allowed access to phone contents. However, his list covers only records collected and stored by third parties -- not the content and communications he's seeking access to. Federal regulation is already important in the communications industry. When telephone companies went from using copper wires to using fiber optics and digital signals, the police could no longer use their old techniques of executing wiretap orders, and so Congress passed the Communications Assistance for Law Enforcement Act (CALEA), mandating that telecom providers build into their systems mechanisms for law enforcement to install court-ordered wiretaps. CALEA has worked. It has saved lives, and it has withstood Constitutional challenge. It has not stifled innovation, as its opponents feared… [...] Here are a few other examples: DEA regulations require all U.S. pharmacies to maintain paper and electronic prescriptions bearing the name of the patient and prescriber, drugs dispensed, and dates filled. FTC regulations require any business that checks a customer’s identification to maintain and provide victims and law enforcement with transaction records relating to identity theft. State regulations require private schools to maintain student data records, including records of attendance and suspected child abuse. I could go on. The point is that companies in nearly every industry are required by law to maintain voluminous customer records and produce criminal evidence when they receive a court order. When your introduction of goods and services into the stream of commerce overlaps with public safety, this is the price of doing business in the United States. In other words: the government should have access to iPhone contents because it has access to other stuff. It's a clumsy comparison at best. At worst, it's a blueprint for unprecedented government intrusion. Vance may be trying to demonstrate that the government has historically had access to a wealth of information thanks to regulators and the Third Party Doctrine and should continue to be granted access, but this inept analogy is worse than apples-to-oranges. Connecting Vance's dots suggests he views personal data and communications as just another set of records "collected" by cellphone providers. He may not openly suggest these are nothing more than "third party" records, but he obviously believes private corporations "owe" this sort of access to the government. Vance says he doesn't want a legislated encryption backdoor, but his solution is basically a legislated encryption backdoor. My Office’s proposed solution is to enact a federal statute providing that data on any smartphone made or sold in the United States must be accessible—not by law enforcement, but by the maker of the smartphone’s operating system—when the company is served with a valid search warrant. And if a person or entity such as Apple offers encryption software, it has to have the ability to provide data in response to a judicial order. The backdoor may be located at the company's headquarters, but it's a backdoor all the same. His testimony also suggests more legislation might be needed to further subvert encryption. Like James Comey, Vance suggests harder nerding will make the impossible possible. This solution is limited to data at rest on smartphones. It would not affect encryption of data in motion. I cannot at this time offer a technical fix to address data in motion. I am confident, however, that engineers from industry and government, working together in good faith, can find one. "Good faith." That's hilarous. The only time law enforcement is interested in a "good faith" discussion is when it's trying to salvage an illegal search. Vance -- like Comey -- believes all concessions must come from the private sector. That's how he defines "working together." He's also concerned a 12-month study from a Congressional committee won't address the issue fast enough. Twelve months of taking testimony resulting in non-binding recommendations in a report will not adequately address the urgency of the problem that local law enforcement faces. Time is not a luxury that local law enforcement, crime victims, or communities can afford. With a nod to civil liberties: Our laws require speedy trials. Victims require justice. And criminals must be held accountable before they can reoffend. I would think that if you don't have the evidence -- if it's on phones that can't be broken into -- you just don't have the evidence. I sincerely hope people aren't being locked up until Congress creates the backdoor Vance is looking for. Of course, we know that is happening, but hopefully not on the scale Vance suggests with his list of police-resistant devices still being held by law enforcement agencies (who assume they contain evidence of criminal activity). The end result of the encryption study can't be determined at this point. But given the nature of this committee -- and its decision to only present one side of the issue -- it appears its greatest purpose may be nothing more than buying time until backdoor/ban legislation is reintroduced. Vance's side hasn't budged an inch. While deference is continually paid to the "smart people" at tech companies, it's only done so under the assumption that they're just holding out on the government. The solution Vance, et al want is supposedly possible, even if it isn't. Any arguments to the contrary are continually treated as deliberate antagonism, rather than basic facts. Backdoored encryption -- no matter who holds the keys -- is a security problem. And it's not going to go away, no matter how many times the same arguments are repeated. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
The TSA is a multibillion dollar agency with nearly zero redeemable qualities. It can only act in hindsight, does almost nothing to make traveling safer, and seemingly devotes most of its screening efforts to toddlers, cancer patients, and ensuring carry-on liquids do not exceed three ounces. What it lacks in competency, it makes up in misconduct. Lines at security checkpoints have slowed to a crawl. Making it through the tedious, invasive process sometimes means inadvertently "donating" expensive electronics to sticky-fingered agents. The TSA's morale is generally on par with Congress' approval rates. And, when it's all said and done, the people hired to protect travelers just plain suck at their job. Despite the Transportation Security Administration's ten-point action plan to reduce long lines at airports across the country, lengthy queues remain. Now, the TSA's summer may be getting even worse: According to a recent report from the House Homeland Security Commission entitled "Misconduct at TSA Threatens the Security of the Flying Public", nearly half of the TSA’s 60,000 employees have been cited for misconduct in recent years. As Katherine LaGrave of the Conde Nast Traveler points out, the problem is only getting worse. Complaints are up 28% over the last three years, with larger airports averaging a complaint a week. Long lines may be causing a spike in the complaints, but the misconduct detailed in the report has very little to do directly with this issue. Attendance issues are part of the problem, but the offenses listed in the report range from missing work to smuggling drugs/humans to "engaging in child pornography activities." Although processes are in place to handle disciplinary issues, they are both bureaucratic and inconsistently applied. Worse, the investigation found that the agency has no specific process in place to fire problem employees. But the obvious takeaway from this report is that the TSA is not improving. It's getting worse, despite the institution of an action plan and added layers of direct oversight. The report also cautions that this will never improve, at least not if the TSA continues to ignore internal issues. It notes that misconduct allegations have increased by nearly 29% in the last three years but opened investigations not increased, but have actually gone down 15% over the same period. Then there's this: Almost half of TSA’s entire workforce allegedly committed misconduct, and almost half of that number allegedly did so repeatedly. According to TSA data, from fiscal year 2013 through 2015, almost 27,000 unique employees had an allegation of misconduct filed against them. Moreover, about half of those employees had two or more misconduct allegations filed against them, with some employees having 14, 16, and 18 allegations. In fact, 1,270 employees had five or more misconduct allegations filed against them. The TSA knows -- or should know -- who its problem employees are. It just isn't willing to do anything about them. The TSA's toxic culture didn't form in a vacuum. It started at the top, thanks to legislators granting the agency far too much power and demanding far too little in terms of accountability in return. The TSA has crafted policies containing several exploitable loopholes for upper management to abuse. TSA officials are unwilling to fix internal issues, and have provided nothing to Congressional oversight when questioned about the agency's disciplinary problems. On March 10, 2016, Chairman McCaul requested data from TSA on the number of directed reassignments that have taken place to understand the depth of this type of misconduct and to give TSA an opportunity to present information in its defense. However, almost four months later, TSA has only provided about half of the requested data stating that it has required manual review of case files. If this information is not readily available to provide to Congress, it is likely not readily available to TSA decision-makers, and indicates that TSA is not providing oversight of these types of reassignments. The agency refuses to track misconduct on its own, suggesting it would rather have a bunch of warm bodies in place than anyone truly interested in the important job they've been entrusted with. Everything rolls downhill from there. If the agency is unwilling to do even the minimum to curb misconduct, it should come as no surprise that it's become host to a large number of misbehaving employees. Fifteen years of mismanagement has turned a response to a horrific attack into a playground for people who like lots of power and zero accountability. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
It only takes $2 and a few minutes to ruin someone's life. Field tests for drugs are notoriously unreliable and yet they're still considered to be evidence enough to deprive someone of their freedom and start a chain of events that could easily end in joblessness and/or homelessness. Ryan Gabrielson and Topher Sanders -- writing for the New York Times magazine -- take a detailed look at these field tests, filtered through the experience of Amy Albritton, who spent 21 days in jail thanks to a false positive. A traffic stop that resulted in a vehicle search turned up an empty syringe and a "suspicious" crumb of something on the floor. The field test said it was crack cocaine. Albritton was taken to a county jail where she spent the next three weeks after pleading guilty to possession, rather than face a trial and a possible sentence of two years. The crumb of whatever had been sent on to a lab for verification, but with Albritton's guilty plea, there was no hurry to ensure the substance retrieved from Albritton's car was actually illegal. In fact, with the case adjudicated and closed, the evidence could simply have been destroyed. It wasn't. Long after Albritton had been released, the substance was tested. On Feb. 23, 2011 — five months after Albritton completed her sentence and returned home as a felon — one of Houston’s forensic scientists, Ahtavea Barker, pulled the envelope up to her bench. It contained the crumb, the powder and the still-unexplained syringe. First she weighed everything. The syringe had too little residue on it even to test. It was just a syringe. The remainder of the “white chunk substance” that Officer Helms had tested positive with his field kit as crack cocaine totaled 0.0134 grams, Barker wrote on the examination sheet, about the same as a tiny pinch of salt. [...] The powder was a combination of aspirin and caffeine — the ingredients in BC Powder, the over-the-counter painkiller, as Albritton had insisted. [...] The crumb’s fragmentation pattern did not match that of cocaine, or any other compound in the lab’s extensive database. It was not a drug. It did not contain anything mixed with drugs. It was a crumb — food debris, perhaps. Barker wrote “N.A.M.” on the spectrum printout, “no acceptable match,” and then added another set of letters: “N.C.S.” No controlled substance identified. Albritton was innocent, but with a guilty plea, she now had a criminal record. And three weeks in jail turned her life upside down. Albritton had managed the Frances Place Apartments, a well-maintained brick complex, for two years, and a free apartment was part of her compensation. But as far as the company knew, Albritton had abandoned her job and her home. She was fired, and her furniture and other belongings were put out on the side of the road. “So I lost all that,” she says. [...] Albritton gave up trying to convince people otherwise. She focused instead on Landon [her son]. Using a wheelchair, he needed regular sessions of physical and occupational therapy, and Albritton’s career managing the rental complex had been an ideal fit, providing a free home that kept her close to her son while she was at work, and allowing her the flexibility to ferry him to his appointments. But now, because of her new felony criminal record, which showed up immediately in background checks, she couldn’t even land an interview at another apartment complex. With a felony conviction, she couldn’t be approved as a renter either. As the authors point out, 90% of jurisdictions will allow prosecutors to accept a guilty plea based on nothing more than highly-unreliable field test results. The test used in Albritton's case contains a chemical that turns blue when exposed to cocaine. Unfortunately, it also turns blue when exposed to 80 other legal substances, including acne medicine and household cleaners. The tests are about as accurate as you'd expect for a $2 test. Differences in ambient temperature can affect test results, as can the alteration of the order in which the three tubes in each test are used. A positive field test is still a long way from being a credible indication of an illegal substance. In Las Vegas, authorities re-examined a sampling of cocaine field tests conducted between 2010 and 2013 and found that 33 percent of them were false positives. Data from the Florida Department of Law Enforcement lab system show that 21 percent of evidence that the police listed as methamphetamine after identifying it was not methamphetamine, and half of those false positives were not any kind of illegal drug at all. In one notable Florida episode, Hillsborough County sheriff’s deputies produced 15 false positives for methamphetamine in the first seven months of 2014. But they're just good enough to destroy lives. Fortunately, the article reports a few positive developments. Some people who have pled guilty to possession charges based on field tests have had their convictions overturned when lab tests come back clean. This is after the fact -- sometimes years after the fact -- so it does little to undo the damage already done. In addition to only allowing someone who's life has been drastically altered to maybe finally make some forward progress, this sort of thing is limited only to those jurisdictions where crime labs are required to test every incoming sample, whether or not a conviction has already been obtained. Very few labs have this requirement. The standard M.O. is to simply destroy "unneeded" evidence if the case has been closed. The most immediate fix would be to discard the faulty tests and develop something far more precise for field testing. But until that occurs, it seems unlikely law enforcement will abandon a product that allows officers to develop probable cause for drug possession arrests. A more immediate route towards ensuring few wrongful convictions would be to institute a requirement that all field-tested substances be tested by a lab before the prosecution can move forward. Otherwise, the system is basically convicting people on suspicion, rather than actual guilt. In the county where Albritton was arrested, this change has been made. Last year, Devon Anderson, the current Harris County district attorney, prohibited plea deals in drug-possession cases before the lab has issued a report. That's still not enough to prevent the accused's world from falling apart while waiting for a lab test. The labs issue reports in about two weeks, but defendants typically wait three weeks before they can see a judge — enough time to lose a job, lose an apartment, lose everything. But it's still better than the alternative: doing nothing. Since this policy was implemented, dismissals are up 31% in the county, thanks to lab tests showing substances seized were not illegal. Permalink | Comments | Email This Story

Read More...
posted 10 days ago on techdirt
This week, after Verizon tried to "debunk" the simple reality that its wireless plans are terrible, one commenter broke down the numbers to show how expensive they are compared to Comcast. Michael won first place for insightful by underlining the horror of what just happened: When someone holds up Comcast as a better deal, you know you have a problem... Meanwhile, we asked why the UK's Intellectual Property Office was praising the National Portrait Gallery's brazen copyright heist of public domain images, and That One Guy won second place for insightful with a classic quotation: How's that saying go again? “It is difficult to get a man to understand something, when his salary depends on his not understanding it.” -Upton Sinclair For editor's choice on the insightful side, we've got a pair of anonymous responses to the post that will also bring us our funniest comment in a few moments — Newt Gingrich's silly and dangerous claim that anyone visiting extremist websites should go to jail. First, one commenter demonstrated the uselessness of any policy that fails to consider context and consequences: Well, I guess if you want to increase the prison population exponentially, it sounds like a good idea. Perhaps being part of the "party of fiscal responsibility" he should outline the estimated costs of implementing such a ridiculous policy up front, including: - how much it'll cost to feed & water all these felons - estimated welfare costs, since their job prospects after getting out of jail would be close to or equal to zero Seems like someone didn't learn from "3 strikes" "mandatory minimum sentences" or the "Rockefeller drug laws" Then, another commenter surmised a truly unintended consequence of such a rule: Surprise web redirect will be the new swatting If something this dumb comes to pass, instead of calling SWAT teams to your house, teen brats will just redirect your web browser to a "known terrorist web page". But that would never be abused. Over on the funny side, first place comes as promised in response to Gingrich as well — Gwiz topped the charts with a simple and slightly surrealist joke: Maybe he's right. I looked at an ISIS website once and it turned me into a Newt. In second place, we've got another response to Verizon's facile defense of its wireless offerings. Vidiot tried to envision the fiction necessary to support Verizon's claims of serving its customers: Service with a smile "We bring together options customers tell us they want..." Me: "I want a bigger bill every month. Can you do that for me?" VZ: "Sure!" Me: "I'd like my rollovers to be totally useless, too." VZ: "Can do! After all, the customer is always right..." For editor's choice on the funny side, our first comment comes from a different telco tantrum in Europe, where a coalition of telcos and hardware vendors are protesting net neutrality by threatening to withhold next-gen wireless. One anonymous commenter put it in simple terms: In other news, 5 year old threatens to hold breath until he gets a cookie. Finally, after a Sony VP abused the DMCA to try to hide his Wikileaks-listed salary, Pixelation began devising countermeasures: I'm going to take a trademark out on $320,000 and sue Yankelevits for infingement. Based on music industry numbers I should be able to recover millions. That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
Five Years Ago This week in 2011, we saw several examples of misuse and abuse of intellectual property. After a big riot in Vancouver, some rioters tried to use copyright to hide their identities only to have that plan completely backfire; Michael Jackson's estate tried to block a prank caller from selling a recording because it contained Jackson's voice; a company in Sturgis, South Dakota trademarked the name of the town and started suing over the sale of souvenirs; and Newport Television was abusing the DMCA to shut down criticism. Meanwhile, the monkey selfie copyright conflict was getting underway: we received a request from the photographer's news agency to take down the photos, and so we explained in more detail why the photo was likely in the public domain, while David Slater made his own case for ownership. Ten Years Ago This week in 2006, we saw the BPI start asking UK ISPs to start disconnecting people when provided with "unequivocal evidence" of copyright infringement, and the UK's indie labels joined the fight as well — but at least one ISP was not convinced by the evidence they were provided with. Meanwhile, the BPI was also pushing to get music sharing on the agenda for the G8 summit. In the US, Hollywood's own newspaper made the case that congress shouldn't just be helping Hollywood when it comes to copyright, and we also wondered how long the RIAA would be allowed to continue abusing the legal system. The entertainment industry was also trying to get its way by attaching some of its desires to a telco reform bill, and there was a major development on another critical front related to freedom of speech when the FCC's decency fines were increased tenfold. Fifteen Years Ago This week in 2001, we saw a questionable study spelling doom and gloom for movie theatres due to piracy, while music retailers were complaining about their own doom at the hands of record labels and their legal online offerings. Metallica finally closed the book on Napster, having successfully killed the service, and we saw that some of the biggest fighters in the copyright battles were radical librarians defending their industry. Microsoft (which was in the midst of a disastrous weeklong MSN Messenger outage) was caught bullying poor school districts for copying software, while Apple was quietly

Read More...
posted 12 days ago on techdirt
It's Olympics season again. What is normally an expose of how the IOC and the USOC become the biggest IP bullies on the block has had a little spice added to it this year in the form of a host country that by all reports is woefully unprepared for its duties while simultaneously being rocked by a pest-spread disease with the delightful symptom of shrinking the brains of fetuses. And if that doesn't make you believe that some combination of a god and/or the universe wants the Olympics to cease to be, perhaps the fact that the whole fiasco will be broadcast by NBC will. Yes, running in parallel with our posts about IOC bullying, you will find a history of posts about NBC's strange attempts to turn back the clock on its broadcast of the games. Historically, this has meant limiting the live streaming of most of the events, making it as difficult to find and watch any event as possible, and delaying all kinds of event broadcasts until NBC deems that the public wants to watch them. But have heart, dear friends, for the NBC overlords have listened and have declared that these Rio Olympics will be the "most live Olympics ever." For Rio 2016, NBC says this will be its "most live Olympics ever" with 4,500 hours of coverage streaming on NBCOlympics.com and the recently renamed NBC Sports app. Also new this time around is that the NBC Sports app is on connected TV devices (it launched on Roku and Apple TV last year), not just mobile. Now, I'll just go ahead and note here that while NBC has been very busy patting itself on the back for how much more live coverage there will be of the Olympics in Rio compared with previous broadcasts, the fact that there is a time difference of exactly one hour between East Coast time and Brazil means that all the live coverage is probably just happenstance rather than any concerted effort by NBC. But, hey, the company has still gotten the message that live coverage only makes sense in a hyper-connected world where view-on-demand can be achieved by the devices we carry around in our pockets at work and while in transit, right? Sure! Except for the opening ceremony, because you idiots aren't smart enough to be able to watch that live. The Rio Olympics formally begin August 5th with the opening ceremony from the Maracanã stadium. Proceedings start at 7 p.m. Eastern Time, only you won’t be able to watch them on NBC until at least an hour later. At a press conference yesterday, NBC execs announced plans to broadcast the ceremony at 8 p.m. Eastern Time and 7 p.m. Central Time, each on one hour delays, and at 7 p.m. Mountain Time and 8 p.m. Pacific Time, on two and four-hour delays respectively. So why the need for anywhere between a one and four our delay to watch the opening ceremony? Two reasons. First, forget all of that hyperconnectivity thing we just talked about, this shit has to only air during prime time. Also, without post-production and planned narration of the ceremony, you viewers won't get all of the great story lines NBC wants to feed you. By doing a short tape-delay of one hour, it allows us to put it in a time period when more people are home to watch, because it is a Friday night and they get out of their commute or home from wherever they are. And it allows us to curate it with the narrative and storytelling of our announcers to explain what’s going on. And it allows us to put in commercials without cutting out large chunks of the show. Also, the opening ceremony is really for all of the penis-less viewers out there. And we all know how the ladies don't really like sports but do like their soap operas, amirite? The people who watch the Olympics are not particularly sports fans. More women watch the Games than men, and for the women, they’re less interested in the result and more interested in the journey. It’s sort of like the ultimate reality show and mini-series wrapped into one. And to tell the truth, it has been the complaint of a few sports writers. It has not been the complaint of the vast viewing public. Now, to the point about the prime time coverage. Look, hyperconnected or not, it is certainly true that many adults only have certain hours of the day to which they can dedicate some couch-time and watch a bunch of people from a bunch of countries walk around in a circle for a while. But that doesn't mean NBC couldn't also stream the ceremony live for those that want it live. The commentary might be pared down and perhaps we wouldn't get all of the juicy narrative NBC wants to inject for lady viewers, who we all know universally hate sports and all that, but there is value to live coverage that many people want. It's not just a small number of sports writers. As for that context it claims it needs to inject, that's not the whole story. What the delay really allows NBC to do is inject commercials wherever it wants without omitting any countries from the ceremony while also being able to cut out any undesirable content (i.e. political content) that shows up in the ceremony. NBC has an incentive to air the ceremony live, but by delaying, they are sacrificing the chance to be first so they can tailor the coverage, cut out any shenanigans, and pick the best places to cut away to commercial. And, of course, cut anything controversial. As Gary Zenkel, NBCSG’s president, pointed out, it’s a show, not a competition. Which, fine, if NBC wants to act as the speech filter for its viewers, so be it. But who is going to be surprised when NBC also screams bloody murder at people seeing results, highlights, and even coverage of the opening ceremony that will be available on other streams from other nations' broadcasts, on Twitter and Facebook and the like? NBC can't seriously delay its coverage and get mad when all the customers whose demands it ignores move on to other options. But that's exactly what will happen. We've been here before, after all. And no matter how "live" these Olympics are this go-round, delaying the broadcast and stream of the opening ceremony leads me to believe I know exactly how it will go this time too. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
In these past few weeks, the world has become divided into two camps: those who are sick of hearing anything about Nintendo's new smash mobile hit, Pokemon Go, and those who can't get enough of it. While the media tags along for the ride and with the app shooting up the charts as the craze takes hold, it's worth keeping in mind that this is Pokemon and Nintendo we're talking about, two connected groups with a crazy history of savagely protecting anything to do with their intellectual property. Still, it was strange to learn that Nintendo is issuing all kinds of takedown requests to "pirate" versions of the Android app that are available roughly all over the place. The reason I wrapped that word in quotation marks above is that the Pokemon Go app is entirely free and even the unofficial versions of the app still point the user back to the app's official store for any in-game purchases. Nintendo is obviously not happy with this black market distribution. Although it doesn’t seem to hurt its stock value, the company is targeting the piracy issue behind the scenes. TorrentFreak spotted several takedown requests on behalf of Nintendo that were sent to Google Blogspot and Google Search this week. The notices list various links to pirated copies of the game, asking Google to remove them. Thus far the efforts have done little to stop the distribution. The files are still widely shared on torrent sites and various direct download services. The copies on APKmirror.com remain online as well. So why is Nintendo engaging in a losing war against its own popularity instead of deciding to spend the time counting the money that is streaming in from its smash hit instead? Well, the speculation is that this has all to do with the geographic release windows for the app. With no commercial gain to be had from stopping people playing the game, I’m guessing Nintendo is just trying to keep it in the hands of users in countries where Pokémon Go has been officially released. Maybe to cut back on stuff like the problems some Korean gamers are having right now. The issue appears to be that the game doesn't really function in countries where it hasn't been officially released yet. This means that users of the unofficial apps in these countries are likely to find that no Pokemon exist to be collected, or are at least far more sparse than they will be once the release is official in that country. This has led to some minor frustration from those who downloaded the app from an unofficial source, as they wander around doing essentially nothing. But so what? That isn't really Nintendo's problem and there's no way that the company will take on any ill-will from those downloading unofficial copies of the game where it hasn't been released yet. The app, keep in mind, is a free one and points to Nintendo's in-game store for purchases whether it's from the official app or the unofficial one. There's literally no money lost in this in any way and, it can easily be argued, the widespread availability from many different sites may well be super-charging the viral nature of the product. That should be a huge win for Nintendo, as the company gains new and free distribution channels at zero cost. If this is about the geo-restricted release dates, I sort of get it, but I only sort of get it because I already know how crazy-insane Nintendo is in terms of controlling every last aspect of every last product it offers. The company just can't help itself, even when it can be argued the "pirated" apps are doing way more good than harm. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
We've written a fair amount about Turkish President Recep Tayyip Erdogan. Lately, it's mostly been about his ridiculously thin skin over insults, and his willingness to take his hurt feelings international. But, even prior to that, he had a history of irrational hating on social media. Back when he was Prime Minister, he tried to blame Twitter for social unrest, even going so far as to order it banned in the country. And, when that failed, he actually sued his own government over the failure to block content on Twitter that he disliked. Now, as you hopefully know from news sources other than Techdirt, as I write this, it appears that there's a military coup going on in Turkey, trying to usurp Erdogan. As part of that effort, all those social media sites that Erdogan himself does not like, including Facebook, Twitter and YouTube are being blocked. For Erdogan himself, that's meant that he's been cut off from his own means of communication to the public, leaving him to use Apple's Facetime to call a local TV station to put him on the air: Turkish TV broadcasts a message from Erdogan claiming he's in control and will punish the coup leaders pic.twitter.com/8grmFarUfl — Eliot Higgins (@EliotHiggins) July 15, 2016 And, of course, the social media blocks aren't even that effective anyway -- with many Turkish citizens using VPNs to get around the blocks. Plenty of people are now seeing live coverage of what's happening in Turkey thanks to Facebook Live and Twitter's Periscope. See the shocking Turkish coup on the amazing Facebook Livehttps://t.co/uImGjxXXRm pic.twitter.com/vTBp8S8cjJ — Chemi Shalev (@ChemiShalev) July 15, 2016 The revolution will be televised - extraordinary scenes from Ataturk airport on Periscope pic.twitter.com/LIgByX6OwC — Rory Cellan-Jones (@ruskin147) July 15, 2016 I have no idea how this will turn out, but from the perspective of how the internet has changed the media landscape, this is all fairly incredible to watch as it plays out. Update: And the irony gets thicker. Erdogan is now reaching out to the public... via Twitter: Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
In the past few weeks, we've written about two troubling rulings in the 9th Circuit appeals court concerning the CFAA, the Computer Fraud and Abuse Act. That law, that was literally written in response to Ronald Reagan being freaked out by the (fictional) movie War Games, was designed to go after hackers and make computer hacking into other people's computers a crime. The law is woefully outdated and unfortunately vague, with terms like "unauthroized access" and "exceeds authorized access." For years, many of us have been pushing for Congress to reform the law to make it not quite so broad, because in its current setup it's the law the DOJ relies on when all else fails. That's why the DOJ loves it. If you did something it doesn't like on a computer, it'll try to use the CFAA against you. The two recent cases were not helpful. The first, called Nosal II (because it was the second CFAA case involving David Nosal trying to use data from his former employer), found that convincing a former colleague to share their password with you could violate the CFAA. The court tried to limit the impact of this, by adding some caveats, and insisting that mere password sharing wouldn't qualify without some additional event that indicated a lack of authorization, but it does still seem like a vague standard that many will try to use going forward. The second case, Facebook v. Power, found that Power violated the CFAA by continuing to access Facebook accounts, with permission of those Facebook users, after Facebook had sent a cease-and-desist. The court found that the cease-and-desist acted as a clear point that said "you're not allowed here." But it's difficult to square that with the original Nosal ruling (Nosal 1) which found that merely violating a terms of service was not a CFAA violation. So ignoring a terms of service is not a CFAA violation, but ignoring a cease-and-desist letter is. It's not clear why one has power over the other, though perhaps there's an argument that a cease-and-desist is a proactive action towards an individual by a website, whereas a terms of service is broadly applicable. Still, it feels weak. And, it raises tricky situations like the following, first raised by Andy Sellars, about a situation in which one individual alerts another that they can no longer visit a website. Let's say this happened between two presidential candidates. Hypothetically. If so, that’s devastating for critical speech. Imagine Trump sending a C&D to Clinton’s campaign, barring access to https://t.co/BFK7Ukdtpw. — Andy Sellars (@andy_sellars) July 12, 2016 And, as Eriq Gardner at the Hollywood Reporter notes in response, the answer is totally unclear. And that seems really problematic. I had tossed out some hypotheticals in my original post on the Facebook v. Power ruling, but this is a good one as well, because you could absolutely see some political candidates issuing that kind of cease-and-desist. There may be arguments about whether then accessing such a website would create a loss necessary to qualify for the CFAA, but it's still quite worrisome that the court has now put in place a vague standard that at least suggests that you can bar someone from a website by merely telling them not to go there. That's going to create a bunch of messy litigation going forward.Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
As you probably remember, a jury decided in Google's favor after a somewhat wacky trial that its use of some of the Java APIs was considered fair use. Oracle, of course, isn't going down quietly. It immediately asked the judge, William Alsup, to reject the jury's verdict, which he refused to do. Everyone expects that Oracle will appeal this as high as it can go, though its chances aren't great. In the meantime, though, Oracle isn't done trying every possible door at the district court level. Last week it simply asked for a new trial in what I can only describe as Oracle's sour grapes motion. It starts out by claiming that "the verdict was against the weight of the evidence" and thus a new trial is necessary. And then it whines about a whole bunch of other issues, including Google's plans to use Android on computers, meaning that the "harm" portion of the trial was unfairly limited to just tablets and phones. It also whines about certain limitations and exclusions of information it was not allowed to present. These are purely "waaaaah, we lost, fix it, waaaaaah" kinds of arguments. The court also excluded lots of Google evidence as well, and Oracle may not really want to revisit some of that either. You can read the full document below or at the link above, but analyzing all of it is pretty silly. It's strictly a sour grapes argument that is unlikely to go anywhere. At the same time, Oracle filed yet another motion for judgment as a matter of law... that also seems unlikely to go anywhere. Here, though, the argument is basically that the jury got fair use wrong. The argument here is pretty laughable. It goes through each of the four factors and argues why the jury got it wrong. Now, it's true, as some have argued, that a court can take the four fair use factors and basically come to any conclusion it wants, but it's hard to see Judge Alsup doing that here. It would be shocking to see him do so actually. And, rather than go through each argument, I'll just present the table of contents of Oracle's filing here so you can see how desperate the company is: Basically, Oracle is continuing to falsely pretend that fair use only applies to non-commercial use (it doesn't), and that creating something new with an API isn't transformative unless it's like artwork or something (this is wrong). Oracle's interpretation of fair use is not supported by the history or case law of fair use, and it would be shocking to see the court accept it here. Meanwhile, on the flip side, Google is looking to punish Oracle's lawyers and asking for sanctions against them for revealing in open court sensitive information that had been sealed by the court. On January 14, 2016, Oracle’s counsel Annette Hurst disclosed in open court representations of sensitive confidential financial information of both Google and third-party Apple Inc., as well as extremely confidential internal Google financial information.... After Ms. Hurst’s improper disclosures, Oracle and its counsel neither sought to remedy the effects of the disclosures nor acknowledged their wrongdoing. They instead refused to take responsibility for the disclosures, claimed they were inconsequential because Oracle hoped to use the information at trial (which it never did), and even argued that Google’s motion to seal the third party Apple information—which Judge Ryu subsequently granted,... —was “merely a delaying tactic.” ... Within days of the disclosures, and following Oracle’s failure to take remedial action, this information became headline news for major news outlets, at least one of which noted that, thanks to Ms. Hurst, the press could finally report on confidential information that had theretofore been only a subject of speculation. Oracle’s disclosures and its subsequent actions reveal a profound disregard for this Court’s Protective Order and for other parties’ confidential information. Google and third party Apple were harmed by Oracle’s counsel’s disclosure regarding the terms of a significant and confidential commercial agreement. Google believes it is important, both for this case and for other cases in this District, for the Court to make clear that Oracle’s counsel’s actions were improper, that Oracle’s excuses for the disclosures are invalid, and that Oracle’s failure, after the fact, to cooperate in remedying the disclosures was inconsistent with the Protective Order. Disclosing confidential/sealed information in court is a pretty big deal, though I have no idea how the court will rule on this matter. Either way, it's safe to say that there's little love lost between Google and Oracle (and their lawyers).Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
For a while now, some in the copyright community have been pushing for a copyright "small claims court" as an alternative to filing a federal lawsuit over copyright law. It's true that, especially for small copyright holders, the cost of filing a lawsuit may appear to be rather prohibitive. But it's not clear that a small claims court is the answer. A few years ago, we wrote about some potential concerns with such an approach, but have also admitted that if set up right, it could have some advantages. But that requires it be set up right. Unfortunately, a new bill has been introduced, by Rep. Hakeem Jeffries, along with Rep. Tom Marino, to officially set up such a system -- and it's done in a way that looks like it will not be well-designed, and instead will lead to a massive rush of small claims, especially by copyright trolls. The bill is called the Copyright Alternative in Small-Claims Enforcement Act of 2016, or CASE Act, and... it's got problems. The "good" news, if you can call it that, is that claims that would go before this appointed tribunal, made up of copyright lawyers recommended by the Register of Copyrights and appointed by the Librarian of Congress, would have much lower statutory damages availability than the federal courts. A copyright claim in a federal court has statutory damages up to $150k, for willful infringement. In the small claims system, the maximum statutory damages would be $15k. But, really, that's just half of today's official statutory damages -- because if there's no willful infringement, the Copyright Act puts a cap at $30k. In the small claims world, there's no option to claim willful infringement. Another potentially good feature is that this small claims setup would be able to hear two kinds of claims: the standard ones involving claims of someone violating one of the established rights under copyright law... but then also to hear cases about abusive DMCA notifications, under Section 512(f) of the DMCA. Of course, as we've noted in the past, the federal courts have effectively written 512(f) out of the law and refuse to punish those who file bogus DMCA notices. It's not at all clear how things would change here. The bill explicitly notes that the remedies for a 512(f) bogus DMCA notice claim would be limited "to those available under this chapter." But it's unclear if that really means that you could get $15k for a bogus DMCA filing. And that's because the section on statutory damages is clearly written only with people suing for copyright infringement in mind, and not people suing over bogus DMCA takedowns. For example, it notes that in order to qualify for the $15k maximum statutory damages, it only applies to "works timely registered." But... how does that make sense for 512(f) claims? In those cases, the question of whether or not the defendant timely registered a copyright makes no sense at all. If someone sends a bogus DMCA takedown over a copyright that doesn't exist or that they don't hold, why should its registration status matter? It's almost as if Rep. Jeffries (or the lobbyists who wrote this bill) only tossed in the part about 512(f) claims to appease people concerned about abusive DMCA takedowns, and then completely forgot about it after they included that. But the really big problem in my mind is that this seems likely to just be swamped by copyright trolls. We already see that they're flooding the federal court system, where multiple rulings against joinder (i.e., the ridiculous bundling of thousands of possible file sharers together) has meant that when trolls do sue, they're generally limited in how many people they can sue. Making the process cheaper, but still offering statutory damages amounts that can be quite scary to the average American, and that can still get the job done of scaring threatened users into paying up fines that are much smaller than the $15,000. And, yes, this small claims system will allow for discovery, which is the key feature that trolls want. They want to sue, and then get discovery where they can send demands to ISPs for names of subscribers based on IP addresses, and there doesn't appear to be anything in the bill to stop that. It does note that parties seeking discovery need to show "good cause" to enable discovery, but that may be a fairly low bar. It also notes that responding to discovery requests to non-parties in the dispute will be "voluntary" so perhaps ISPs will resist, but that's not certain. And thus, this three-panel board may find itself on the receiving end of a ton of ridiculous claims from trolls who have no intention of following through with the case. One would hope, with the federal court system's copyright docket currently overrun with trolling cases, that whoever drafted this law would have thought through a better plan to stop that from happening here. Another potential issue: the bill would let individuals go after not just actual infringers, but also service providers if they fail to follow through on a DMCA takedown notice. Basically, it exports the DMCA safe harbors to this small claims process as well, but that may mean that internet platforms are going to get dragged through this process that was meant to focus on small claims that could be easily adjudicated. There's also this oddity. After laying out the specific responsibilities of the three individuals who will handle all of these small claims cases, the bill notes: When not engaged in performing their duties as prescribed in this chapter, to perform such other duties as may be assigned by the Register of Copyrights. What, exactly, is that going to entail? Who knows how this will actually play out. A few years back, the UK introduced its own small claims copyright system. But I have no idea how it's doing. I haven't seen any numbers or indication of how widely it's used. Perhaps it works great and is a useful tool for dealing with small scale infringement issues. But I do worry about the way the bill is currently written and how it can be abused, especially by trolls who just want to pressure people into settling, and where the threat of a $15k award might be plenty.Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
For the last two and half years or so, my Congressional Representative, Jackie Speier, has insisted that she was just about to introduce a federal law outlawing revenge porn. And then it wouldn't come. There would be an article saying it was almost ready... and then nothing. Months would go by, another article would appear... and then nothing. Finally, on Thursday, Speier introduced the bill, insisting that the delay was in convincing Silicon Valley companies to sign on to it. Of course, that leaves out the fact that the reason many refused to sign on was because previous iterations of the bill were incredibly problematic and almost certainly unconstitutional. With two and half years to work on it, however, the finally introduced bill, called the Intimate Privacy Protection Act of 2016, or IPPA, is not nearly as bad as it could have been, nor as bad as some of the suggestions passed around by those who "consulted" on drafting the bill. But that doesn't mean the bill isn't unconstitutional. Let's be clear: revenge porn is horrific. The creeps who put up revenge porn sites deserve to be shamed and mocked. The people who actually upload images to such sites or visit them are complete losers who need to get a life. But there are really important legal issues that come up when you try to outlaw such things, starting with the First Amendment. Yes, yes, as everyone will say, there are some exceptions to the First Amendment (though if you claim that shouting fire in a crowded theater is one of them, you're going to be mocked as well). But the exceptions to the first First Amendment are very narrowly prescribed by the Supreme Court, and they're much more narrow than most armchair lawyers believe. Looking over the list, it's pretty difficult to see how revenge porn fits. Next up, context matters a lot, and while the bill tries to take some of that into account, it's unclear if it actually succeeds. The bill has a vague and nearly totally undefined "public interest" exception -- but what does that actually include? That's left unclear. Remember last year when Lenny Kravitz accidentally exposed himself at a concert. Was everyone who passed around videos of images of that violating this new revenge porn bill? It would seem so. That would be "knowingly" using an "interactive computer service... to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image... of the naked genitals... of a person, with reckless disregard for the person's lack of consent to the distribution." Remember, tons of people were passing around that image and video last year. Should all of them face five years in prison plus fines? That seems... extreme. And extremely problematic. The ACLU has a rather simple request to fix this problem with the law: add an intent requirement, such that it only applies to those who "maliciously and intentionally invade another person's privacy." Even that may have some First Amendment issues, but supporters of the law refused to add an intent standard, claiming that such a standard would be too limiting, and wouldn't cover those who weren't motivated by "malice" but by money or fame. But, that's ridiculous. Any court would likely decide that setting up a revenge porn site for money was a form of malice. Thankfully, this version of the law says that it does not apply to online platforms, as defined by Section 230 of the Communications Decency Act, which is a big jump from where some of the crafters of this bill were a few years ago, in which they openly discussed undermining CDA 230 as a way to attack revenge porn. In the end, two and a half years of effort means that the bill isn't as horrible as some of the earliest suggestions, but it's still not clear that it's constitutional. It seems likely that the ACLU, and possibly others, will likely challenge this law should it pass and then I guess we'll find out what the courts actually think of it.Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
Learn how to edit your pictures like a pro with the $29 Ultimate Adobe Photo Editing Bundle. The 8 courses cover what you need to know about Adobe Photoshop and Lightroom, from becoming familiar with the interfaces and learning shortcuts to how to properly use layers and color correction to enhance your photos. Throughout the courses, you'll be learning from graphic designers and entrepreneurs about how to create images for various industries or your own social media, and you will have unlimited access to the instructional materials so you can reference them whenever you need them. You'll learn how to take your photos from merely Instagram good to frame-worthy. 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

Read More...
posted 12 days ago on techdirt
Former Speaker of the House Newt Gingrich is making some news today for some silly remarks he made on Fox News last night in response to the attack last night in Nice, France. It comes right at the beginning of this video: All of the press -- for good reason -- is focusing on the first part of what he said, about deporting anyone "of Muslim background" (whatever that means) who "believes in Sharia." We'll skip over why this is totally clueless and unconstitutional, because plenty of other news sites are handling that. Instead, we'll move on to the second craziest thing he said, right after that first statement, which is something that fits much more with Techdirt's usual themes: Gingrich then claims two ridiculous things, each only slightly less ridiculous than his first statement: Anybody who goes on a website favoring ISIS, or Al Qaeda, or other terrorist groups, that should be a felony and they should go to jail. Any organization which hosts such a website should be engaged in a felon. It should be closed down immediately. Our forces should be used to systematically destroy every internet based source... He then goes on to note that if we can't take them off the internet, we should just kill them all. Which, you know, I'm sure won't anger any more people against us. Either way, this is idiotic. Merely visiting a website should put you in jail? What if you're a journalist? Or a politician? Or a researcher trying to understand ISIS? That should be a felony? That's not how it works. This also assumes, idiotically, that merely reading a website about ISIS will make people side with ISIS. It's also not, at all, how the law works. Same with the second part about it being a felony to host such content. We're already seeing lawsuits against social media sites like Facebook, Twitter and YouTube for hosting accounts from ISIS, and many are voluntarily taking down lots of those accounts. But making it a felony to keep them up? That's also not how the law works. Reacting to a very real problem with stupid unconstitutional solutions suggests someone who has no clue what he's doing.Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
The other day I saw the following tweet and was very confused: That's a tweet from the UK's Intellectual Property Office (IPO) asking how does the UK's National Portrait Gallery in London "manage the copyright of national treasures like Shakespeare?" My initial response, of course, was "Wait, Shakespeare is in the bloody public domain, you don't have any copyright to manage!" It seems rather easy to manage "the copyright" of Shakespeare when there is none. But it turns out the link is... even worse. It's to a blog post on the IPO website eagerly praising the National Portrait Gallery for engaging in out-and-out copyright fraud. You'd think that the Intellectual Property Office would recognize this, but it does not. The tweet was doubly misleading, also, because it's not the works of William Shakespeare, but rather a portrait of William Shakespeare. The IPO then explains that the National Portrait Gallery is doing a brisk business licensing these public domain images, noting that: According to the gallery’s most recent statistics – the top five individual portraits licensed from its website are, in descending order: William Shakespeare, Richard III, Queen Elizabeth 1, King John and King Henry V. Obviously, all of those portraits were created centuries ago -- and are in the public domain. So why is the National Portrait Gallery licensing them at all? Well, I'm pretty sure this goes back to an issue we've written about quite some time ago. While in the US the caselaw is clear that merely digitizing public domain images does not create a new copyright, the National Portrait Gallery in London has always taken the opposite view. Back in 2009, we wrote about this very same museum threatening Wikimedia Commons for posting scans of high resolution images of public domain works that were downloaded from the NPG's website. But, here's the thing: just a few months ago, we wrote that the UK Intellectual Property Office (the same organization as above) had declared that scans of public domain works are also in the public domain in Europe (including the UK... for now at least). Here's what the UK's IPO said just months ago about copyright on scans of public domain images: However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own 'intellectual creation'. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work. And, then, just months later, it's praising the National Portrait Gallery for falsely claiming copyright on such images and on then fraudulently profiting by licensing those images based on copyrights it doesn't hold? And the IPO's whole focus seems to be on just how much money can be made here. Read this and try not to feel sick: Online availability and easy access to images and other data are crucial aspects of modern museum and library curation. Huge databases of valuable information are available. Users need to know where to find these resources and how to use them without infringing copyright. Museums and libraries are developing strategies to improve access for researchers, to give access to businesses users who want to develop their own intellectual property (IP) by using cultural resources and develop their own brands and merchandising. Mathew Bailey, Rights and Images Manager at the National Portrait Gallery, balances the high wire between providing public access to our shared national assets and the need to encourage, develop and supply the creative economy with legally certain, quantifiable, marketable IP. The commodity he deals in – our heroes – couldn’t be more volatile. Then, to make matters even stupider, the UK's Intellectual Property Office notes that no one has any idea who created any of these top portraits: It’s no accident the names of the artists who painted the UK’s top five portraits are uncertain - King John looks like he’s just sat on a thistle, whereas Richard III only half fills his canvas. The lives of Richard III, King John and Henry V were all dramatised by Shakespeare during the reign of Elizabeth I. She was an image conscious monarch in the first age of mass communication and Shakespeare was her blockbuster dramatist. Shakespeare’s narratives add value and are the real reason why he, Richard, Elizabeth, John and Henry are still top of the portrait pops. It didn't occur to Dan Anthony, who wrote this article, to recognize the absurdity of the fact that the National Portrait Gallery is claiming a copyright in works where it doesn't even know the name of the artists who created those works? Holy crap. How does the UK IPO find these people? Oh, and then the article ends with this: All images © National Portrait Gallery, London. Bloody hell. They are not. They're in the public domain. Here's Shakespeare's portrait: You can find it, accurately listed as being in the public domain over at Wikipedia. Dan Anthony at the UK IPO is incredibly misinformed, and he should ask his own colleagues, who just months ago made it clear that such images were in the public domain, before posting such ridiculousness on the IPO's website.Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
In a move that's sure to only increase the nation's respect for law enforcement, police departments have been arresting people for "threatening" social media posts. This activity follows the tragedy in Dallas, where five police officers were killed by a man armed with a rifle. Naomi LaChance of The Intercept has more details. Four men in Detroit were arrested over the past week for posts on social media that the police chief called threatening. One tweet that led to an arrest said that Micah Johnson, the man who shot police officers in Dallas last week, was a hero. None of the men have been named, nor have they been charged. Four more arrests have occurred elsewhere: Last weekend in Connecticut, police arrested Kurt Vanzuuk after a tip for posts on Facebook that identified Johnson as a hero and called for police to be killed. He was charged with inciting injury to persons or property. An Illinois woman, Jenesis Reynolds, was arrested for writing in a Facebook post that she would shoot an officer who would pull her over. “I have no problem shooting a cop for simple traffic stop cuz they’d have no problem doing it to me,” she wrote, according to the police investigation. She was charged with disorderly conduct. In New Jersey, Rolando Medina was arrested and charged with cyber harassment. He allegedly posted on an unidentified form of social media that he would destroy local police headquarters. In Louisiana, Kemonte Gilmore was arrested for an online video where he allegedly threatened a police officer. He was charged with public intimidation. Arresting people for speech is problematic, especially when the content of the communications doesn't rise to the level of a "true threat." The Supreme Court's Elonis decision says this distinction is important. It's not enough for a person or persons to subjectively view the communication as threatening. It needs to be viewed through the "reasonable person" lens. In these cases, perception appears to be everything. In the wake of the Dallas shooting, it's entirely normal for police officers to view the world a little differently. But this altered view -- one that's likely to be less skewed as time goes on -- can't be allowed to override the First Amendment and deprive individuals of their freedom to speak, not to mention their actual freedom. And just as certainly as law enforcement officers and officials are likely to view certain acts of blowhardiness as threatening in the immediate aftermath of a shooting targeting police officers, certain citizens are likely to vent their frustration and anger in particularly stupid ways, but without the intention or ability to carry out the perceived threat. Caution should be exercised on both sides of the interaction. However, those with the power to arrest, detain, and charge citizens for stupidity should be the more cautious of the two parties -- simply because they still hold the power, despite recent events. Those in power should also take care to carry this out with some sort of consistency, if that's the route they're choosing to take. It can't just be deployed against a bunch of nobodies who mouthed off about their contempt for law enforcement. If this is how it's going to be handled, those who speak with the same rhetoric in defense of law enforcement need to be held accountable. Former congressional rep Joe Walsh tweeted out that this was now "war on Obama" after the Dallas shootings and yet no one showed up at his door to arrest him for threatening the President. It's bad enough that power is being misused to silence criticism of law enforcement violence. It's even worse when this power is deployed in a hypocritical fashion. Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
For many, many, many, many years, we've followed the rather crazy trials and tribulations of trying to get an international treaty signed to make it easier for the blind to access copyright-covered works (basically requiring countries to allow visually-impaired accessible versions to be reproduced and distributed). This is a treaty that people have tried to get in place for years and years and years, and it was blocked again and again -- often by legacy copyright industries who flat out refuse to support any kind of agreement that could be seen as strengthening user rights, which they see (ridiculously, and incorrectly) as chipping away at copyright. Amazingly, despite a last minute push by the MPAA and the Association of American Publishers, an agreement was reached and signed in 2013, called the Marrakesh Agreement. As we noted at the time, we fully expected the legacy copyright industries to refocus their efforts on blocking ratification in the US, and that's exactly what's happened. Hell, it took almost three years for the White House to finally send over the treaty to the Senate for ratification. That happened back in February, and they sent it together with another copyright-related treaty, the very troubling Beijing Treaty that creates an entirely new form of copyright for performers. So far, the Senate has moved on neither issue. However, to have the Marrakesh Treaty go into effect, it needed 20 countries to ratify it. And while the US has sat still, a few weeks ago, Canada became the 20th country to complete the ratification process. That means the agreement officially goes into effect on September 30th of this year. As the EFF noted: That’s another significant step for a treaty that has already made some important breakthroughs as the first international treaty focused exclusively on the rights of users of copyrighted material. Typically, if user’s rights are considered at all, they’re relegated to a section on “limitations and exceptions” or even as non-binding introductory text. In the Marrakesh Agreement, they are front and center. That post also noted that it should be a no brainer for the US to ratify this: United States law is already compliant with Marrakesh, but the government has not yet ratified the agreement. To do so requires a two-thirds vote from the Senate, and then a formal ratification from the President. Even at a time when passing legislation has proven exceedingly difficult, the Marrakesh Agreement would be a relatively easy and uncontroversial way to demonstrate leadership internationally and help bring books to millions of blind, visually impaired, and print-disabled people around the world. But why hasn't it happened? According to KEI, a group that fought hard for many years to get the agreement in place, the legacy copyright industries are working hard to block it in Congress: The Obama Administration has asked the US Congress to ratify the treaty... but Congress has yet to act, in large part due to lobbying from the Association of American Publishers.... The AAP lobbied the Administration for changes in the U.S. ratification package, and now have asked the Congress for changes that they failed to obtain in the interagency review process. The U.S. ratification already represents compromises, including limitations of exports to countries that have ratified the treaty, a provision that currently excludes all of Africa and Europe. But the AAP continues to press for additional amendments to the ratification legislation. This isn't a huge surprise, the AAP more or less admitted that they would refuse to support anything that established greater user rights, since that would be seen as an attack on "their rights." And, of course, the MPAA has also been working hard to block it, whining that this treaty could (gasp!) "affect other future treaties." All of that is just shameful. This is a no-brainer situation. Helping the visually impaired get access to these works is something everyone should agree is a good thing. And yet, because they're so scared of user rights expanding in any way at all, the legacy industries have to block it.Permalink | Comments | Email This Story

Read More...
posted 12 days ago on techdirt
At the heart of copyright and patents there is -- theoretically -- an implicit social contract. People are granted a time-limited, government-backed monopoly in return for allowing copyright material or patented techniques to enter the public domain once that period has expired. And yet copyright and patent holders often seem unwilling to respect the terms of that contract, as they seek to hang on to their monopolies beyond the agreed time in various ways. In the case of copyright, this has been through repeated extensions of copyright's term, even though there is no economic justification for doing so. In the realm of pharma patents, a number of techniques have been employed. One is "pay for delay." Another is the granting of "data exclusivity." And a third is the use of "evergreening." Techdirt wrote about the last of these a while back, so it's no surprise that companies have continued to "innovate" in this field since then. For example, AstraZeneca is trying to use a variant of evergreening for its anti-cholesterol pill Crestor. As a New York Times article explains: Crestor is the company’s best-selling drug, accounting for $5 billion of its $23.6 billion in product sales last year. About $2.8 billion in sales were in the United States, where the retail price is about $260 a month, according to GoodRx.com. Here's how AstraZeneca hopes to hold on to that lucrative market, even though its patent on the drug is now coming to an end, and it should be entering the public domain: The company is making a bold attempt to fend off impending generic competition to its best-selling drug, the anti-cholesterol pill Crestor, by getting it approved to treat [a] rare disease. In an unusual legal argument, the company says Crestor is entitled to seven years of additional market exclusivity under the Orphan Drug Act, a three-decade-old law that encourages pharmaceutical companies to develop treatments for rare diseases. In May, AstraZeneca won approval of Crestor to treat children with the rare genetic disease of homozygous familial hypercholesterolemia (HoFH ). That gives it an additional seven-year patent on the drug, but only for that particular -- very small -- market. However, the designation means that detailed prescription information about using Crestor to treat children in this way must not be included on the label. AstraZeneca's clever lawyers are trying to turn that into an extended patent for all uses of the drug: AstraZeneca immediately petitioned the F.D.A., arguing that if the correct dose for children with HoFH could not be on the generic label, then it would be illegal and dangerous to approve any generic versions for any use at all. That is because doctors might still prescribe the generic for children with HoFH and choose the wrong dose, posing "substantial safety and efficacy risks." Needless to say, AstraZeneca was only asking for generic versions to be kept off the market for another seven years for safety reasons, not because doing so would bring it billions more in exclusive sales to the general population. Of course. The New York Times article goes into more detail about the fascinating legal background to AstraZeneca's argument here, and notes that other drug companies have tried the same approach in the past, without success. Even if this particular ploy does fail again, we can be sure that pharma companies will be back with other sneaky ways of extending their patent monopolies -- implicit social contract be damned. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...