posted 8 days ago on techdirt
Last August, we wrote about the most egregious corporate sovereignty award (so far): $50 billion against Russia, under a treaty that it never even ratified, in favor of the major shareholders of the Yukos oil company. Of course, as everyone pointed out, being awarded $50 billion was one thing, collecting it, quite another. Most people probably assumed that it would be practically impossible to squeeze that money out of a recalcitrant Russia, but we now learn that some serious steps towards that goal have recently been taken, as reported by Der Spiegel (original in German). In Belgium, the bank accounts of the Russian embassy were frozen, as were those of Russia's EU and NATO missions, while in France, something similar happened, with Russian accounts blocked at 40 banks. Understandably, this did not go down well with the Russian government. The country's deputy foreign minister warned, "whoever dares to do that must understand that it will lead to reprisals," something his boss, Sergei Lavrov echoed. Meanwhile, Lavrov's own boss, Vladimir Putin, was also well aware of the situation, and was quoted as saying: "we will defend our interests using legal means." A story on France 24 reports that Russia has already threatened to retaliate against state-linked foreign firms operating in the country, so that's one way that things could escalate. But more seriously, the relations between Russia and EU nations are extremely strained over the conflict in eastern Ukraine; the last thing the situation needs is additional tension caused by arguments over a massive fine. Even if corporate sovereignty doesn't actually cause a war -- well, let's hope not -- the Yukos award may turn into a hindrance to resolving an existing conflict. That's yet another reason to get rid of the whole deeply-flawed system before it causes more serious damage. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
The FISA Court has released its opinion on the interim Section 215 collection activities. The government argued that it was owed six months of uninterrupted, plain vanilla Patriot Act collections, as provided for in the USA Freedom Act. While the new law significantly alters the NSA's collection methods, it was given 180 days to transition to an off-site "collection," housed by telcos and responsive only to targeted searches. But a few points were still unclear. First, Section 215 did actually expire on May 31st. Only the passage of the USA Freedom Act prevented it from going completely dead, and even so, it's no longer a bulk collection. Second, the Second Circuit Court found the collection was illegal under current law. This finding has very limited jurisdiction, of course, and the appeals court has no control over the FISA Court. The FISC can consider this opinion (and it has), but the question of the legality of this bulk collection is still mostly unsettled. Third, the USA Freedom Act provides for the appointment of five people to argue on behalf of the public and potential surveillance targets. The new order tackles this new stipulation… sort of. First of all, however, the FISA Court has the unenviable task of sorting out the numerous conflicts caused by the sunset of Section 215, and its almost immediate sunrise in mutated form, thanks to the provisions of the passed-at-the-last-minute USA Freedom Act. Julian Sanchez at Just Security points out the FISC had a couple of options when interpreting the new law, the old law and various other legal questions. Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing. The opinion appears to authorize old-school Section 215 bulk collecting during the 180-day winddown. What's more interesting is the order's discussion of the brand new advocates that will finally bring an adversarial presence to the court. Sanchez notes the FISC could have simply ignored this stipulation until after the 6-month temporary reauthorization was completed and USA Freedom's version of Section 215 kicked in. But it didn't. However, that doesn't exactly mean it's welcoming the additional arguments and scrutiny. In this opinion, the FISC rubberstamps itself. First, it understatedly notes that things are all kinds of screwed up at the moment. Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts. Having issued its mildly derogatory assessment of Schrödinger's Bulk Collection, the FISA Court moves on to declare that, despite the multiple legal entanglements and legislative changes, this particular request is so straightforward -- and its precedent sufficiently clear -- there's no need to ask a second opinion. Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is "not appropriate" to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A). This would, of course, be the statute cited by the Second Circuit Court as not allowing for the bulk collection of records, but whatever. In this particular case, the FISA Court's assessment is likely correct. If it's expected to see this tangled mess the way legislators intended, rather than as a "hyper-literal evil genie," the government is free to collect bulk records for the next six months while transitioning to the new process. Anyone arguing on behalf of the public will just have to wait until the USA Freedom version goes into effect and attack any deficiencies then. As for the appeals court decision, it has very little bearing now that the Section 215 program is on the way to retirement. The passage of USA Freedom now provides for the legal authority needed to continue this collection, which will no longer be in bulk and much more likely to adhere to the Section 1803 provisions. Sanchez points out an interesting omission -- if it is an omission -- that possibly indicates the government won't even be performing its long-running bulk collection for the next six months. As he notes, no additional order authorizing normal bulk collection has been issued. In the wake of the Snowden leaks, the FISA Court has been pretty punctual with the public release of authorization orders, but there's no order attached to this opinion. Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window. Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended. Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments.   If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together. If so, this would be the first time since 2009 that the bulk collection has been suspended for any length of time, which is significant on its own. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
The ability to sense magnetic fields and control electromagnetic radiation sounds like science fiction, but there are some animals in nature that already have limited magnetosensation. Okay, frogs can't levitate by themselves spontaneously, but it's still pretty cool that migratory animals seem to be able to find their way over vast distances. Check out a few of these links on animals interacting with electromagnetic waves. A team of scientists and engineers have discovered an antennae-like structure in the head of the worm Caenorhabditis elegans that is a biological sensor of the Earth's magnetic field. Other animals such as migrating geese, sea turtles and wolves seem to be able to navigate according to the Earth's magnetic field, but this finding could help further explain how magnetosensation arises. [url] Saharan silver ants keep their bodies cool in the midday desert sun by reflecting a broad range of electromagnetic waves, so they can remain active during the hottest time of the day and avoid predatory lizards. With very little power... comes very little responsibility? [url] If people want to gain magnetosensation, there are some magneto-electronics that can be added to the palm of your hand. This flexible sensor is probably a bit more palatable that implanting a neodymium magnet in your finger..? [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
While the FCC has been engaging in a slew of consumer-friendly moves of late (from tougher neutrality rules to fighting for municipal broadband), a few weeks ago the agency turned heads by fully prohibiting towns and cities from imposing price controls on TV service. According to the FCC's announcement on the matter (pdf), they're doing this because they believe the cable industry is so competitive, such local TV price restrictions are no longer necessary. The FCC voted 3-2 to approve the measure, with Wheeler uncharacteristically siding with the agency's two Republican Commissioners to support it. Wheeler not only bucked consumer advocates and his Commission allies, he ignored the FCC's own intergovernmental advisory committee, which advised against the change. And while Wheeler's been notably more consumer friendly than anybody expected, consumer groups like Public Knowledge weren't big fans of this latest move by the agency boss:"Congress directed the FCC to streamline the process by which small cable operators can file petitions with the FCC for finding that they are subject to effective competition, which exempts them from some regulatory oversight," said Public Knowledge senior attorney John Bergmayer. "In general, Public Knowledge agrees that the FCC should do what it can to make regulatory processes simpler for smaller entities." "However, the FCC has gone beyond Congress's directive, adopting a blanket presumption that all cable operators, large and small, are subject to effective competition. Any analysis that shows that the largest cable companies face effective competition in their local markets is flawed. These companies bundle cable television with high-speed broadband and often have control over valuable programming. They are in a fundamentally different marketplace position than the small cable operators that Congress is concerned with."So why would a consumer-friendly FCC boss suddenly make a decision that seems, on its surface, decidedly not consumer friendly? Well one, the existence of satellite TV and the rise of telco TV has resulted in the FCC repeatedly declaring that the TV business is effectively competitive each time cable ops apply for exemption, making this 22-year-old process effectively obsolete. Even if, as Public Knowledge notes -- broadband bundles and other factors usually mean competition can't always be adequately measured by the number of TV operators in a market. Of course, the FCC had already been traditionally letting cable operators ignore local price caps (the FCC had granted all but four of 224 such exemption requests since 2013) and they're relatively rare; Comcast estimates just 17% of its markets see them. But more importantly, Wheeler knows that internet video is coming. Cable operators and broadcasters have, hand in hand, been raising prices hand over fist on everything from programming to DVR rentals for years, regardless of these limited localized price caps. Wheeler likely hopes that by removing already meager barriers, the cable industry will feel free to raise rates further, and be painfully punished by the rise of internet video. Basically, Wheeler is throwing the cable industry a small bone -- with the intent of letting them choke on it. That might work over the long term, but over the short term the end result will probably only be even higher rates. That could help accelerate cord cutting, and a faster shift toward the more competitive TV market Wheeler is probably envisioning. And while giving the cable industry enough rope to hang itself might work, the problem with his scenario is that broadband ISPs will likely respond to the rise in internet video by increasing their use of broadband caps and overages. And with limited broadband competition, and the FCC generally ignoring the problems inherent with usage caps, that raises a whole slew of issues Wheeler will need to address if he's truly interested in speeding up a television revolution.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Following on a ruling nearly two months ago, where the UK's Investigatory Powers Tribunal -- for the very first time -- found that GCHQ had broken the law with its surveillance of client/attorney communications, now the IPT has ruled against GCHQ again. The IPT says that GCHQ held emails of human rights activists for too long -- but found that the initial collection of those emails was no problem at all. In respect of the Third Claimant (The Egyptian Initiative for Personal Rights), the Tribunal has found that email communications of the Third Claimant were lawfully and proportionately intercepted and accessed, pursuant to s.8(4) of RIPA. However, the time limit for retention permitted under the internal policies of GCHQ, the intercepting agency, was overlooked in regard to the product of that interception, such that it was retained for materially longer than permitted under those policies. So, no problem spying on human rights organizations -- just make sure you delete the emails within the allotted timeframe. And, of course, the court concludes that this is a pretty minor violation, given that there's no evidence anyone actually looked at the data after they should have destroyed it: We are satisfied however that the product was not accessed after the expiry of the relevant retention time limit, and the breach can thus be characterised as technical... Still, it notes, even a technical breach is a breach and thus slaps GCHQ on the wrist. This seems like pretty weak sauce all around, but at the very least, the IPT is finally recognizing that GCHQ isn't following the law at times. It's not nearly enough, and the level of oversight is laughable. And, of course, none of these breaches, technical or otherwise, likely would have come to light at all without Ed Snowden.Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Mississippi drug warriors had their eye on nearly $300,000 in "forfeited" funds but threw it all away by issuing one of the most deficient search warrants ever. It's not that it was loaded with errors or questionable probable cause assertions. It's that it omitted perhaps the single most important element of a search warrant -- the location being searched. Appellant Mississippi Bureau of Narcotics (hereinafter “the State”) had a search warrant signed and executed at the home of Bobby Ray Canada and Beverly Turman. Section one of the search warrant, denoting the location for the search to be executed, was completely blank. The State collected, among other things, $293,720 from the home, and the State then filed a civil forfeiture action. Canada and Turman filed a summary judgment motion, arguing that the search warrant was blank and void, and therefore, the search violated their Fourth Amendment Rights. The trial judge granted the summary judgment motion. The State appealed. We hold the summary judgment motion to be well taken and affirm. The State didn't deny that its officer had served a warrant with a blank space where the location to be searched should have been. But it claimed it had supporting documentation that made this omission irrelevant. The State responded, arguing that the proceedings should be stayed because the affidavit and the underlying facts and circumstances sheet, listing the location of the search, were sealed by the State for other investigations, and they were needed to show the validity of the search warrant in the instant case. The State alleged that Judge Brown had seen and signed the affidavit and the underlying facts and circumstances sheet when he signed the search warrant. After the search warrant was signed – but before the search warrant was executed – both documents were sealed. So the State briefly unsealed the documents to show the trial judge that, yes, the warrant was clearly and significantly deficient, but look, we wrote down the location in other places. The trial judge remained unimpressed by the officer's inability to fill out a search warrant properly. Summary judgement was granted and the State appealed, arguing that the warrant was still valid (really?) and even if it wasn't, the "good faith" exception applied. The State’s argument hinges on the incorporation of the affidavit and the underlying facts and circumstances sheet. Yet the record before the Court contains neither the affidavit nor the underlying facts and circumstances sheet. In effect, the State has asked us to make a ruling on something that has not even been presented to us. Despite the State's failure to produce these documents, the appeals court still entertained the government's argument. Even while pretending to have the relevant information in front of it, the court still found the government's arguments weak and unappealing. Based on a plain reading of both the Mississippi and United States Constitutions, the State’s case fails; the warrant is void and unenforceable on its face. 5 ¶11. Further, in Miller v. State, 93 So. 2 (Miss. 1922), the Court faced a similar issue where one section of a search warrant was completely blank. In Miller, the search warrant was blank as to the name of the person to be searched and the place to be searched at the time of its execution. Id. at 2. After the warrant was executed, the proper person and place was filled in on the warrant. The Court held that “[a] blank warrant or a blank affidavit amounts to nothing." As to the so-called "technical error" that resulted in the lack of a very important search warrant element, the court finds that the very malleable "good faith" exception cannot be stretched to cover this omission. A warrant with a blank section cannot even rise to the level of “failing to particularize” a place. It is clearly, facially defective, and the whole premise of the good faith exception would be negated if we were to find the exception applies. Thus, we hold that the good faith exception does not apply, and the instant issue is, therefore, moot. The Fourth Amendment wasn't erected to be an irritant to law enforcement and a criminal's best friend. It was put in place to protect citizens from government officials and employees who hold vastly more power than those whose lives they intrude on in the course of their duties. Walking around with a warrant that doesn't specify where or what is to be searched is no better than simply demanding random homeowners open their doors and allow the police to root around in their belongings. That's simply not allowed. If the government wants to breach the privacy of someone's house, it needs the proper paperwork. This clearly wasn't proper and this officer's omission -- although likely not intentional -- gave the warrant no more power than a random page torn from a notebook. In doing so, the State just "lost" nearly $300,000. Given the state of asset forfeiture, it would be clearly erroneous to equate large amounts of cash with guilt, despite our government's proclivity for doing exactly that. The perverted incentives of asset forfeiture programs may have led to this glaring omission, as the drug task force named in the filing appears to have rushed through filling out its warrant in its haste to crack open a private residence and avail itself of the sweet, sweet cash it expected to find waiting inside. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
A smallish victory for Fourth Amendment protections comes today as the Supreme Court has struck down a Los Angeles ordinance that allowed police warrantless, on-demand access to hotel/motel guest records. This win is very limited, and the court's discussion of the issue at hand pertains solely to the Los Angeles statute and doesn't address the potential unconstitutionality of other, similar records sweeps granted by the Third Party Doctrine. Nor does it address the potential Fourth Amendment violations inherent to "pervasive regulation" of certain businesses -- like the records legally required to be collected and handed over on demand to law enforcement by entities like pawn shops, junk yards and firearms dealers. The 5-4 decision focuses on the specifics of the Los Angeles statute, and it's those specifics that are problematic. The court finds that merely accessing these records without a warrant isn't necessarily unconstitutional, but rather that any demand for records cannot be challenged and that any challenging party can be fined or jailed. The questions presented are whether facial challenges to statutes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional because it penalizes them for declining to turn over their records without affording them any opportunity for precompliance review. Because there is no reasonable avenue to challenge these searches, business owners are really only given one option: comply. This has the potential to lead to abusive behavior. A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U. S., at 533 (holding that “broad statutory safeguards are no substitute for individualized review, particularly when those safeguards may only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril. In the end, there's no warrant requirement. All that's needed is for the city's statute to provide an avenue for searches to be challenged. The court suggests administrative subpoenas but notes that it could take any form that similarly allows business owners to challenge the records search before the search occurs and helps prevent police from using the statute as a "pretext for harassment." The dissent, written by Justice Scalia, claims that even this very narrow decision is too expansive. Scalia argues that the new requirement places an undue burden on law enforcement officers by potentially forcing them to obtain ex parte search warrants for every motel they visit, simply because they won't know in advance which owners will challenge the search. In a city with over 2,000 hotels, the dissent sees this as unreasonable and untenable. The prevailing opinion refers to the dissent's fears as "overblown," stating that a vast majority of businesses will still be compliant with law enforcement requests. In both Scalia's and the government's eyes, any alteration of the existing statute can only lead to a majority of motel owners refusing instant access to registry information, but this narrow view turns rare exceptions into the rule and fails to consider the numerous options still available to law enforcement to perform unchallenged searches. The decision doesn't demand warrants or subpoenas for every motel registry check. It only orders these measures be in place for when they are needed, giving business owners the chance to challenge warrantless searches without facing jail time or fines. This is more consistent with the Fourth Amendment, and it still provides the LAPD plenty of leeway to perform motel spot checks without worrying about extra paperwork. It's a small, extremely narrow win for the Fourth Amendment rights of Los Angeles motel owners, but beyond that, it's of very limited use elsewhere. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Network engineers are the unsung heroes who keep the very foundations of our digital world intact while the rest of us build on top of them. They laugh at our frontend JavaScript and backend PHP, and dig beneath it all to the guts of the internet. Today's daily deal goes out to them, and to the next generation that will take up their mantle: it's the Network Engineer's Learning Bundle, a collection of seven online courses covering Python, Java, Vagrant, Linux, shell scripting and more, all with a focus on network engineering and architecture. At full price the package is worth $493, but you get lifetime access to all seven courses for only $59. If this piques your interest, please buy this bundle — the rest of us need you to keep our networks up and running! Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

Read More...
posted 8 days ago on techdirt
Why is it that many efforts made "for the children" are so stupid most tweens could point out the obvious flaws? Back during the discussion of the UK's now-implemented ISP porn filtration system, Rhoda Grant of the Scottish Parliament wondered why the internet couldn't be handled the same way as television, where all the naughty "programming" isn't allowed to take to the airwaves until past the nationally-accepted bedtime. “If there’s a watershed on the TV then why isn’t there one for the internet?” The children are right to laugh at you, Ralph Rhoda. Cutting through the mocking laughter comes the German government, armed with a law that has its origin in more captive content (movies -- the kind shown in theaters) and attempting to apply it to the internet (ebook sales). Heise.de and Boersenblatt reported on Friday and Thursday that the Jugendschutzbehörde (Youth Protection Authority) has handed down a new ruling which extended Germany's Youth Media Protection Law to include ebooks. As a result of a lawsuit (legal complaint?) over the German erotica ebook Schlauchgelüste (Pantyhose Cravings), the regulators have decided that ebook retailers in Germany can now only sell adult ebooks between 10 pm and 6 am local time (4 pm and midnight, eastern US). The law behind this baffling proclamation states it is intended to protect children from coming to harm via "advertising or teleshopping." It was written in 2002, and was no less stupid in its belief that it could somehow force online retailers to take certain items off the "shelves" for two-thirds of the day. It's only receiving attention now because the Youth Protection Authority trying to hammer it into place over bits of the internet. As Nate Hoffelder points out, the law's origins date back further to a point when such an action was both a.) not thoroughly ridiculous and b.) could mostly be enforced. Boersenblatt says that the 10 pm to 6 am window originally came from restrictions on adult cinema (where it made sense), but I still don't understand what the regulators were thinking in applying that rule to the internet. Do they really believe that the adult internet, including porn sites, pirate sites, video sites, etc, is going to be turned off for 16 hours a day? How will this work in practice? With lots of regulation, meddling, filtering and other stuff that won't actually keep the determined from accessing the porny ebooks they're looking for. Retailers selling ebooks in Germany (hello, Amazon!, etc.) will have to figure out what "youth-endangering" means, apply it to their existing ebook stock, and "wall off" those titles behind some sort of filtering system until 10 pm (local time) every night. Or else.* *Unspecified legal action. In other words, it won't work. And I wouldn't expect this application of the law to last for very long once larger internet retailers begin pointing out the amazing amount of unworkable flaws in this half-baked "plan" to save German kids from electronic erotica. I think the children this is supposed to protect will find that, when given the choice between hurtling a few governmental roadblocks for the opportunity to pay for written erotica and just, say, going almost anywhere else on the internet to get the same sort of stuff for free, they'll do the latter. And no one will be saved, Youth Protection Authority or no. But the YPA gets to say it tried, and I guess that's all that matters. It will just have to live with the mocking laughter. Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
In the previous instalment of the long-running saga involving alleged pirates of the Dallas Buyers Club film in Australia, the court agreed that Australian ISP iiNet should hand over information about its customers. But it added an important proviso: the letter and telephone script to be used to contact and negotiate with them had to be approved by the court first in effort to prevent "speculative invoicing" of the kind all-too familiar elsewhere. Last week, more details emerged in another court hearing before the same judge. He was was concerned that the proposed letter from Dallas Buyers Club LLC (DBC) and Voltage Pictures LLC, the film's foreign sales agent -- which DBC is currently suing (pdf), in another twist in the plot -- would not quote a specific figure that those supposedly infringing would be asked to pay, as the Australian Finance Review reported: Judge Nye Perram said he was concerned DBC was effectively being given a blank cheque, by not stipulating a dollar figure, which could allow the company to ask for a "very high number". "I need comfort that you aren't going to extort these people," Judge Perram said. The judge also refused a request by DBC that the draft letter and telephone script should be withheld from the public -- DBC claimed that doing so "could weaken the company's bargaining position and reveal to alleged infringers how they could reduce the penalties sought." As a result, The Sydney Morning Herald obtained copies of both the letter and the script, and published some interesting details. For example, the letter expects parents to shop their own children: "If the person whom you believe to have engaged in Piracy is under 18 years of age, then please provide us with the full name and address of that person, confirm that that person is under 18 years of age, confirm whether you are the parent or guardian of that person and whether you are authorised to engage with us on behalf of that person," the letter will demand. The proposed telephone script for people who ring the number given in the initial letter is even more extraordinary: Callers who admit to the downloads will be asked to provide detailed personal answers including their employment status, whether or not they have a terminal illness, what their annual income is and whether or not they're serving in the military. It will also ask the callers to incriminate themselves further: "How many titles do you have available now and in the past on the BitTorrent network?" call centre operators will ask, according to the script. It's not yet clear whether the judge will allow these incredibly intrusive questions -- he's expected to hand down his ruling next month. But it's an indication of the approach that DBC wants to take, and yet another reason why those receiving these emails should consider seeking legal advice, as The Sydney Morning Herald notes in a useful article on the topic. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 9 days ago on techdirt
The Sunday Times got hammered this week over its article that simply parroted the government's talking points, and its responses were less than stellar. After they attempted to shunt all the blame onto said government, rw won most insightful comment of the week by pointing out the other side of the complicity coin: This is why governments want to define "Journalists" as only those working for major media outlets. In second place, we've got a comment that brings up a point I've never really thought of (and one that I admit I'm not sure about, but need to consider more) from Lane D on the subject of biometrics: This is just my opinion But I wish people would stop thinking of biometrics as a replacement for passwords. Think of them as a replacement for your username, but not as a replacement for a password. For editor's choice on the insightful side, we start with a comment from last week's Techdirt History post, which is technically outside the boundaries for this week, but comments on those posts rarely get a shot, so why not? After we pointed to an older post asking if intellectual property was fundamentally immoral, one anonymous commenter made a pretty excellent case for "yes": Intellectual property must give people the brainpower of a bowl of lukewarm oatmeal. It does. It's the word "property" that does it. It's like gold fever, but for imaginary property. Is intellectual property immoral? Yes it is. First of all, it misrepresents the Constitutional limits of a temporary monopoly privilege as a thing that can be owned, and should therefore be owned permanently like actual property. Secondly, it creates a breed of froth-mouthed adherents who not only disregard everyone else's rights, they insist on getting laws passed that actively infringe upon them. Thirdly, it facilitates theft from the public domain via expansion, locking up works that were formerly free to use. Fourthly, it robs us of our cultural heritage by letting unprofitable works on celluloid film decay instead of enabling them to be copied and saved for future generations. Seriously, don't get me started on how utterly offensive and morally bankrupt "intellectual property" is. You can call it intellectual output if you will but if I see anyone calling it property or describing the experience thereof as "consuming," believe me I will put you straight. Let's not be using words from the real thieves' lexicon. /End rant Next, we've got a comment on our cross-post from the new Copia Institute website about hacking policy through innovation, not lobbying. After one commenter suggested that was difficult verging on impossible, another anonymous commenter composed an excellent response: The Internet upsets information monopolies. (Encyclopedias) And yet Wikipedia has come to dominate without requiring any policy changes. But I could also repeat: Netflix, Amazon Prime Netflix has also come to dominate without requiring any policy changes. Innovation like SpaceX threatens fat dinosaurs SpaceX is doing just fine without any policy changes. Of all the things you've mentioned, only Uber and Lyft are hindered by current regulations. Your examples most contradict your premise that "you must convince the ruling class to allow us mere peasants to create innovation." Over on the funny side, first place comes from our post about Comcast's use of misleading polls in a misguided attempt to fix its horrible reputation. DannyB did a hilarious job of imagining what one of these polls might look like: 1. How many problems have you had with your Comcast service? [x] Zero [_] Less than one 2. Which of the following problems have you experienced with Comcast? (Please check all that apply.) [_] Was unable to express in words how happy I was with Comcast service! [_] Could not reach enough Comcast people to express my joy with Comcast service. [_] The online payment system has a bug that will not allow me to pay more than the actual price for the service. 3. How would you rate your Comcast service? [_] Fantastical [_] Amazing [_] Wonderful [_] Marvelous [_] Good Thank you for your feedback. As a reward for sending us feedback, would you like to receive craptacular email offers from selected Comcast partners? [_] Yes! Please fill my inbox to overflowing! [_] No. (but fill my inbox anyway) For second place, we head to a post we titled "Designer Knockoff Enthusiast Issues DMCA Notice Targeting Half The Internet, Fails To Remove A Single URL." Did you catch the error? No? Thankfully, one anonymous commenter did: FYI, you have a typo in your headline. It should read: DMCA Notice Enthusiast Issues Blog on Designer Knockoffs ... For editor's choice, we return to the Sunday Times saga, where CNN asked the reporter some tough questions and got some unimpressive responses. Agonistes pointed out the other big story here: Ubelieveable I'm absolutely shocked that a CNN employee asked relevant and coherent questions of a guest. (To be honest, I watch so little TV news these days that I don't even know if it's fair to target CNN specifically — but given the general feebleness of that entire journalistic medium at the moment, the sentiment seems right.) Finally, we've got a comment in response to the news that the EU Human Rights court declared sites liable for user comments. Jigsy offered up the only thing that can safely be said about this bad decision: [ This comment cannot be viewed due to disapproval by the European Human Rights Court. Sorry about that. :/ ] That's all for this week, folks! Permalink | Comments | Email This Story

Read More...
posted 10 days ago on techdirt
Five Years Ago If you're reading this from a Starbucks, take a moment to celebrate: it was this week in 2010 that the chain first announced its plan to offer free Wi-Fi (something we'd been saying since 2003). Once you're done celebrating, it's time to come back to the reality of all the stupid stuff that was happening that same week. In the midst of the campaign to sue people who shared The Hurt Locker, the producers defended their use of the true story it was based on as part of their free speech rights, though at least one independent director was pointing out that filesharing only hurts bad movies. Following the RIAA's victory over LimeWire, music publishers decided to pile on with their own lawsuit, while some people were starting to question the IsoHunt decision and Rapidshare was countersuing Perfect 10 for being a copyright troll. The government was getting ready to enact a law that made universities subsidize the entertainment industry, while a new anti-piracy campaign compared downloading to "killing" pop stars — while we noted that big labels and singers seem to copy from each other quite a lot. Who could blame them? Copying is often efficient and smart, copyright is barely workable when recording everything is standard, and (some) content creators were starting to come to terms with the fact that their work will be shared. Others, like the producers of Twilight, were suing fashion designers for simply mentioning Bella and holding official Twilight t-shirt design contests where no official Twilight material is allowed. Still others, like many modern jazz musicians, were being held back by the copyright regimeseeking special exemptions from said regime. The RIAA was busy up in Canada, astroturfing for a Canadian DMCA and doing a damn good job of it. Ten Years Ago Oh the formats, they are a'changin' — this week in 2005, the bell began to toll for many an old medium. Wal-Mart supposedly announced that it would no longer sell VHS movies, and though it later denied the report, the signs still couldn't be clearer, much like they were for cassette tapes, supposed death of the music industry. EMI jumped on the CD copy protection bandwagon, accelerating that format's path to obsolescence, while reports were urging the music industry to embrace file sharing. Libraries were introducing (but still struggling with) digital downloads, the number of mainly-online news readers hit 20%, and surveys were already showing that people much preferred watching movies at home. And when formats shift, industries panic. Some were calling for universal DRM or struggling to maintain their walled gardens, some were still pressuring congress to approve the broadcast flag, journalists were railing against Wikipedia and Warner Movies was threatening ISPs in the hunt for user data, while the MPAA was doubletalking about Grokster and Bob Geldof was calling eBay evil. Fifteen Years Ago Not much changes. This week in 2000, the RIAA was going crazy against Napster and seeking the removal of all major label songs, while the CEO was insisting the service is completely legal. Internet speeds were getting closer to making movie piracy a large-scale reality, while the MPAA's attack on illegal rebroadcasting signalled that it would surely behave much like the RIAA when faced with that reality. The web was already changing journalism and people were already going online for news... and journalists already weren't getting it. One person was surprisingly on-the-ball, though: Courtney Love, one of the first musicians to speak out with real insight on the music industry moving into the digital age. The UK's Royal Navy embarrassed itself by accidentally emailing lots of confidential info to a teenage girl, while the US Navy was touting its new ability to send emails from submarines. JP Morgan made its own embarrassing error when it failed to pay the $35 to renew jpmorgan.com. Meanwhile, it was still trendy to ask the big questions about the internet: what do people really think of it? Does it actually increase productivity? And how do you keep kids innocent online? 64 & 193 Years Ago June 14th marks two concurrent and related anniversaries in the history of computing. First, in 1822 it was the day Charles Babbage proposed his Difference Engine, the theoretical mechanical marvel that heralded the computing revolution way ahead of schedule. So it's fitting that it was also on June 14th, over a century later in 1951, that UNIVAC I, the first ever commercial computer produced in the US, was dedicated. Permalink | Comments | Email This Story

Read More...
posted 10 days ago on techdirt
As we move ever deeper into the digital age, the question of data preservation as gotten bigger and bigger. Recently, people got a scare when it was suggested that SSDs have an even more dismal lifespan than presumed, though it turned out people were taking that study slightly out of context. Today, we look at an entirely different approach preservation: the Nanoform, an engraved sapphire disk that keeps your precious data around forever. The Good I imagine almost everyone feels a little attraction to the Nanoform. It's just a damn cool idea that plays on all sorts of curious, in-built human fascinations: precious minerals, miniaturization, and of course the desire for permanence. The engraved disks are beautiful, even just for the sheer amount of information that's packed in — one shot shows the entire text of War and Peace taking up only a fraction of a single disk. You could easily make one to include your entire life's memoirs, every letter you've ever written, a whole family history of photos, and then some. The engraved and sealed sapphire disks will likely live up to their promise of an essentially-infinite lifespan — we're not dealing with complex ways of storing bits and bytes, but a straightforward use of the world's third-hardest mineral. The whole concept puts me in mind of the Pioneer Plaques or the Voyager Golden Record (and indeed, the Nanoform might be a great choice for any future irresistible plans to attach a message to a spacecraft). The Bad Well, let's face it: this isn't exactly practical. The Nanoform gets its data permanence by trading in data usefulness: it's an analog medium, retaining things for curious posterity or just decoration rather than being a serious means of storage. Retrieving it doesn't require a card reader or a disk drive, just a magnifying glass or a microscope. Getting it back onto a computer requires a high-res scanner (and all the massive limitations that method entails). So I think it's safe to say that, outside some incredibly fringe cases that I can't quite think of, the Nanoform is for fun not function — and given its understandably hefty price tag, it's outside many people's "fun" budgets. The impact of the price is softened slightly, though, by the fact that a Nanoform really will last a lifetime — a very rare thing in the days when people regularly spend just as much money on devices that are either bricked or obsolete within a few years. The Giftable Once many years ago, I met someone carrying a huge binder of printed pages, and asked what it was. She explained that today was the birthday of her best friend, with whom she had almost-daily instant messaging conversations that dwindled late into the night covering every aspect of both their lives, and so as a gift she had printed off their entire chat history. Later I saw the gift being given, and it was clearly one of the most fun, interesting and genuinely moving presents the person had ever received. I thought about that story when I saw the Nanoform. If I were to make a guess, I'd say the number one place the Nanoform will catch on is the world of gifts. Weddings, anniversaries, birthdays — a permanent, decorative record of a lifetime is a fitting and excellent gift for all of them. And just like in that case, our online lives produce a huge amount of material that could make such a memento highly personal and meaningful. Of course, that abundance of data about our lives is something that makes a lot of people nervous, but few people are willing to truly let go of it precisely because it represents so many memories. Maybe transcribing some of that information to an indestructible sapphire disk and getting it the hell off the cloud is exactly the solution nostalgia needs. Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
Earlier today, Google announced on its website that it will now be letting the victims of revenge porn request removals from the Google search index: Our philosophy has always been that Search should reflect the whole web. But revenge porn images are intensely personal and emotionally damaging, and serve only to degrade the victims—predominantly women. So going forward, we’ll honor requests from people to remove nude or sexually explicit images shared without their consent from Google Search results. This is a narrow and limited policy, similar to how we treat removal requests for other highly sensitive personal information, such as bank account numbers and signatures, that may surface in our search results. In the coming weeks we’ll put up a web form people can use to submit these requests to us, and we’ll update this blog post with the link. We know this won’t solve the problem of revenge porn—we aren’t able, of course, to remove these images from the websites themselves—but we hope that honoring people’s requests to remove such imagery from our search results can help. If I were in Google's shoes, I would be quite tempted to institute the same policy -- and I'm supportive of things that will actually end or limit revenge porn. So I hope that this works great and that it's an effective solution both to help limit the damage to victims and in further decrease the "value" (whatever that might be) to the scum of the earth who run revenge porn sites (or who frequent them). But... at the same time... I worry about the unintended consequences of this move. First, as Alex Byers correctly notes, this will only embolden Hollywood to mistakenly claim that this shows that Google can remove unauthorized content just as easily. That's a silly claim, because Google already does exactly this for copyright holders, thanks to the DMCA, and it takes down millions of links per year thanks to such requests. So, in some sense, this shouldn't give any more ammo to Hollywood, because all it's really doing is expanding the DMCA process to revenge porn. My second concern, though, is that this will then embolden lawmakers into thinking that "Oh, see, we can just expand the DMCA (or something like it) to cover revenge porn." This looks like such an appealing solution if you're a politician, and Google's move will certainly be used to support it. But it's not that easy as we'll explain in the third concern. But giving politicians more reasons to expand these types of legal regimes is fraught with risk, and Google's move will almost certainly be cited as evidence that it's a perfectly reasonable strategy. And that brings us to the third concern: this process will be abused. This is the big one. We know the DMCA is abused. It's abused widely. Every day. We report on many of those abuses. Expanding the avenues under which takedowns can be abused is going to lead to more abuse. Some will argue that such abuse is a reasonable price to pay to protect the victims of revenge porn. Copyright holders frequently argue that the abuse of the DMCA is similarly no big deal, or a reasonable level of collateral damage for protecting their copyright. It's still troubling, however, that legitimate and perfectly reasonable speech can be taken down. Finally, the fourth big concern: in some ways, this is an extension of the "right to be forgotten" process that has gotten so much attention in Europe, though in a very specific class of cases. But, again, some will use this as evidence to argue for the expansion of the class of cases that it should cover, and that's going to lead to an awful lot of judgment calls, some of which many people may have trouble with. In the end, I'm conflicted, but worried. I'd love to see a way to stop revenge porn, but I still worry a lot about how wide a net any "solution" casts around it. Perhaps I'm being too pessimistic, and this will actually be effectively narrowly targeted. And if so, that will be fantastic. I hope I'm wrong. But for too long we've seen too many people looking to find ways to censor all sorts of content they dislike, and to find cracks in the dam to try to push censorship agendas. And thus, while I'm fully supportive of coming up with plans to actually end revenge porn, I'm nervous that wading into this territory will only open up a path to greater censorship and dangerous unintended consequences.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
A DOJ subpoena leaked to Ken "Popehat" White showed the government was more than willing to stomp all over free speech to "protect" unthreatened federal judges. The order targeted comments at Reason.com that -- while inflammatory and ugly -- were decidedly not "true threats." Even if one was inclined to believe Reason commenters were going to hunt down the judge who presided over the Dread Pirate Roberts trial and use bullets/woodchippers to make her "pay" for her heavy-handed sentence, there was no non-ridiculous way to perceive someone saying "there's a special place in hell" for Judge Katherine Forrest as somehow being a "true threat." While White (and many others) commented on the subpoena, Reason itself remained quiet on the matter, outside of a short post asking commenters to refrain from commenting at Reason on the "subject matter" of Popehat's post. About 10 days later, White speculated that there could be a gag order in place, citing a couple of anonymous tipsters, as well as his own conclusions drawn from the available evidence. The existence of a gag order would be an active effort on the part of the government to chill speech at Reason, preventing it from discussing the subpoena it had received as well as encouraging it to extend this chilling effect to its commenters -- which it did. No more speculation is needed. Reason did indeed receive a gag order related to the DOJ's subpoena. For the past two weeks, Reason, a magazine dedicated to "Free Minds and Free Markets," has been barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com. That gag order has now been lifted. Reason's attorney discussed the matter with the Attorney General's office, pointing out the obvious fact that the subpoena and the comments it targeted were public knowledge, thanks to Popehat's post. As ridiculous as the subpoena and the circumstances surrounding it were, Reason still felt compelled to maintain silence while the gag order was in effect. Reason's Nick Gillespie and Matt Welch note that the subpoena originally appeared without an accompanying gag order. Instead, it only contained a request that the contents of the order not be shared with anyone. The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party. While you are under no obligation to comply with our request, we are requesting you not to make any disclosure in order to preserve the con?dentiality of the investigation and because disclosure of the existence of this investigation might interfere with and impede the investigation. Moreover, if you intend to disclose the existence of this subpoena to a third party, please let me know before making any such disclosure. After a discussion with the Assistant US Attorney General, Reason notified the commenters affected, thus allowing them to retain counsel if they wished to assert their First Amendment right to anonymity. At about 10:30 am ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked [AUSA Niketh] Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, "No." Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena. Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused. Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was "coming close" to interfering with the grand jury investigation. After this call, Reason notified the commenters. Six hours later, the gag order arrived, accompanied by an email and another phone call that saw Velamoor follow up his inability to recognize free speech protections with bogus accusations of criminal behavior. Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters' constitutional rights and laying out the timeline of Reason's notification to them. Velamoor told her that he now had "preliminary information" suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was "looking into it further." So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney's office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further. The accusations weren't the only vague part of this debacle. The gag order itself is straight boilerplate, which suggests the DOJ hasn't dug very deeply into the situation it's issuing court orders for. The opening paragraph is nothing more than a list of possible reasons for obtaining a gag order, none of which fit this specific situation. The Court hereby determines that there is reason to believe that notification of the existence of the attached subpoena will result in one or more of the following consequences, namely, endangering the life or physical safety of an individual; flight from prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; or otherwise seriously jeopardizing an investigation or unduly delaying a trial. Not a single one of these potential scenarios fits "overzealous investigation of normal internet comment thread hyperbole," but then, of course, no subpoena/gag order boilerplate ever would. Combined with the gag order, this subpoena is nothing more than government bullying. Unfortunately, it's a grand jury subpoena, and grand juries aren't exactly known for their thoughtful decisions or balanced presentations of evidence. As the Reason writers point out, the site's comment thread is often a profane and highly-offensive battleground: Reason's unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing, and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread). As ugly as it is, it's free speech, it's protected and it's to be celebrated, rather than chilled into a pale shadow of its former self. When the government wades into comment threads armed with subpoenas, gag orders and a willingness to deliberately misread the sort of hyperbolic "discussion" native to the internet, it does harm to the First Amendment it's supposed to be protecting. To live in a world where every stray, overheated Internet comment—however trollish and stupid it may be—can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already. Normally, I would say something like, "One hopes this will be tossed as soon as a judge reads the complaint," but it's a grand jury handling this, so those deciding whether or not probable cause exists to hand out indictments likely won't have the legal background nor the inclination to go against the prosecutor. Instead, they'll be given a narrative by the prosecutor and a list of recommended charges. Once those charged face a judge, they may find the indictments tossed, but that's a long, dark road to travel just for talking about bullets, woodchippers and hell's special places in a comment thread. Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
Americans eat about 4.5 billion pounds of seafood annually -- placing third behind China and Japan. The US ranks 15th in farmed seafood production, and America exports about a billion pounds of caught fish every year. The oceans might seem like an endless supply of fish, but we're actually starting to over-fish several species. Here are a few suggestions for what seafood to order and some technological alternatives to traditional fishing. The top three seafoods for Americans are shrimp, tuna and salmon -- making up more than half of all the food Americans eat that comes from the sea. Maybe there's an argument for eating more oysters and mussels... or maybe we should try to eat some lesser known species such as Atlantic porgy, Acadian redfish and Pacific sablefish? [url] Scientists and fishermen are looking for mating Atlantic codfish by listening for 'cod grunting' sounds. Cod populations are low, and fishermen want to avoid catching cod to allow them to bounce back (and to avoid fishing limits). [url] The Oceansphere is a proposed automated fish farm that could grow 1,000 pounds of tuna from eggs to harvest size off the coast of Hawaii. Not everyone seems to be a fan of automated aquaculture technology, but if these fish farms actually work, they could be a more sustainable way to get tuna onto dinner plates. [url] Lockheed Martin and Kampachi Farms have actually started testing a mobile fish farm at a depth of 2-3 miles, anchored to the sea floor, but able to drift within a 5 mile radius with ocean currents. Kampachi Farms says they've successfully harvested fish from their aquapods, but some critics are still concerned about the impact these fish farms might have on the environment. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
New Hampshire is continuing to lead the way in privacy. After becoming the first state to ban the use of automatic license plate readers, its legislators are now attempting to rein in warrantless tracking of cellphone users. A couple of false starts (dating back to last year) resulted in no changes (and complaints from app makers that the wording might make some of their offerings illegal). But it now appears to be moving forward again after the implementation of some changes. The heart of the bill is this paragraph: No government entity shall place, locate, or install an electronic device on the person or property of another, or obtain location information from such an electronic device, without a warrant issued by a judge based on probable cause and on a case-by-case basis. As Watchdog.org points out, the spirit of the law is somewhat undermined by the letter of the law. There are noteworthy exceptions, many of which appeared in previous iterations. Tracking is permitted without a warrant with the informed consent of a device owner, unless the owner knowingly loaned it to a third party. You can track calls for 911 emergencies. A parent or legal guardian can provide informed consent to locate a missing child. The government can track its own property or employees in possession of that property. And alcohol ignition interlock control devices placed by court order would also be traceable without a warrant. The other problem with the bill is a problem with all bills introduced by state legislators: it can't lock out federal intrusion, at least not in its present form. The bill states that it does not apply to "federal government agencies." So, if local law enforcement wants to engage in warrantless tracking of cellphones, all it has to do is partner up with a federal agency. On top of that, there are the loopholes that have always been exploited. Stingray use -- one method of tracking location -- has routinely been hidden under more innocuous paperwork, like pen register orders. Obtaining cellphone records -- including location data -- is primarily done with subpoenas, considering most laws still treat these as third-party business records. While the law would force some of the latter requests to take the form of a search warrant, it doesn't make a clear distinction between real-time tracking and historical data. What it does appear to outlaw is the warrantless, real-time tracking of GPS location, meaning tracking devices can only be deployed after obtaining a warrant. This is certainly a step forward, one perhaps partially prompted by the Supreme Court's US v. Jones decision. However, this would go against precedent in the First Circuit Court (which covers New Hampshire), which has found that warrantless GPS tracking devices may constitute a "search," but not to the extent that a lack of a warrant should automatically result in suppression of evidence. (Also somewhat aligned with the Supreme Court's reluctance to declare all GPS tracking worthy of a warrant.) The court then held that it was reasonable for the agents to use the GPS device in Sparks’ case based upon reliance on clear precedent. However, the court noted that they did not decide the issue of whether any exceptions to the warrant requirement exist for future installation use of the GPS device to monitor suspect’s movements. Therefore, future use of such GPS monitoring is governed under the United States v. Jones. As such, the court of appeals affirmed the denial of the motion to suppress. Although this case appeared before the judges after the Supreme Court's US v. Jones decision, the events of the case proceeded that finding. This may change rulings in the future, but for now, the First Circuit has not made it expressly clear that tracking devices require warrants. As the proposed law pertains to physical tracking devices, it's much more closely aligned with the Supreme Court's decision. Left unclear is its application to Stingray devices and obtaining historical cell site location information from telcos -- both forms of "tracking" that don't involve attaching a monitoring device to a "person or property." Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
I wasn't aware of this, but human-Knicks-mascot Spike Lee is reportedly making a film about violence in Chicago. This is annoying for a whole host of reasons, including how insanely relatively low the city's murder count is compared to historical averages. That said, it's not like there isn't a severe violence problem in tiny, tiny pockets of areas here in my home city, so if he wants to make a film about it, fine, go ahead, for all the good it will do. But the film is also reportedly going to feature the term "Chiraq", a silly comparison between the homicide counts in Chicago versus the death toll in Iraq, because that's apparently a valid comparison. Annoying as the term is, however, it's more annoying to see some money-grubbing preacher from Chicago try to force Spike to alter the title, claiming ownership of the word and spouting off all kinds of easily refutable nonsense about its origins. Emmett Benjamin, who filed trademarks for "Chiraq" in Illinois within the last two months, said that when he heard about the film a few months ago, he thought it could threaten the work he has been doing as part of his temple in Oak Park, the House of Christ Temple Divine. "We had been working on this for almost an entire year ... and realizing (the term) Chi-raqi will be put in danger," Benjamin said. "We put over $100 into marketing last year to try to spread awareness, and I hate to say it, but Spike Lee's project would seem to be a result of our hard work in marketing." Emmett is burying the lede here, because if he and his church are able to turn $100 worth of marketing into terminology adoption by one of the most famous movie directors of our time, well, Emmett should get out of the god business and start himself a marketing firm. Now, I'll emphasize from that quote that Benjamin has "filed" for trademarks, not successfully registered any regarding "Chiraq." That said, his church does indeed produce films to raise awareness of what he calls "Chiraqi - a nation of persecuted black people." So, does he have a common law claim to the word? Nope. One legal expert doubted Benjamin's chances for securing rights to Chiraq. Jonathan Masur, a professor at the University of Chicago Law School, said that Benjamin could receive a legitimate trademark only if he were the first person to use the world commercially. "The word comes from rap and hip-hop, people who have been using the words," Masur said. "I am dubious that this person is the first person to use the word." Almost certainly not. As best as I can find, the term "Chiraq" has been used since at least 2012 and almost certainly earlier. 2012 was when someone posted a definition in Urban Dictionary. The term has been quite prominent in music, media, and film circles ever since. And Benjamin doesn't even pretend to have coined the phrase himself. Benjamin, who uses the terms Chiraq and Chiraqi interchangeably, also wants to make sure that the low-income "people of color" in Chicago, who coined the term, receive proceeds from the film. "The term was originally coined by young men and women in the streets of Chicago living in the battle zone with the police and sometimes other gangs and other people," Benjamin said. "The name belongs to the people of Chicago. We are merely protecting it and holding it for them." Yeah, that isn't actually how trademark works, my friend. Like, at all. Collective city ownership of a term, such that a preacher purporting to represent them might extract money from a filmmaker and control the title of his films is a concept not found in the law, or really anywhere outside of said preacher's head. On top of that, he'd likely have to convince a court that his films would be confused for Spike Lee's, a claim he hasn't made because it would take a level of hubris I believe is attainable only by FIFA executives. And even if he wanted to make that case, Spike Lee is using the term in a film to comment on violence in Chicago, meaning he could likely simply shout "First Amendment!" and dance out of the courtroom to go continue making his film. Sorry, sir, but "Chiraq: This Time It's Personal, A Spike Lee Joint" will be made, and there's nothing you and I can do about it. Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
You can't build a better police force if you can't get anybody to apply for the job. Perhaps this partially explains the hesitance of law enforcement agencies to rid themselves of badly-behaving officers. Without a healthy pool of potential hires to pull from, attrition can become a real problem. Many people are dissuaded from pursuing law enforcement careers after negative interactions with officers. This is where agencies are hurting themselves. Racism in law enforcement is a problem that can't be ignored. Some of it is overt. And some of it is the only conclusion you can draw when incidents like the following occur. Twelve McKinney, TX, police officers responded to a complaint about teens at a local, private pool. Like too many interactions, it escalated far too quickly, beginning with Officer Eric "Barrel Roll" Casebolt (who has since resigned) tumbling into the frame of the cell phone video before yelling at/cuffing anything black, culminating in him throwing a 14-year-old black girl to the ground and sitting on her, only momentarily interrupted by him chasing off two black teens who tried to come to her aid by pointing his pistol at them. The teen who recorded this incident was white. No orders were ever yelled at him, despite him being close to the action and openly recording Casebolt's one-man raid. (If anyone can explain Big & Khaki's purpose/position in this incident, I'd love to hear it.) What was actually in the heart and mind of Officer Casebolt we'll never know. But we can certainly see what it looks like. And what it looks like is black=bad and everyone else of other races not worth giving a second look. If this mindset -- or this appearance -- is ever going to change, there needs to be some more diversity in the police workforce. I'm not suggesting another mutation of affirmative action, but it would probably help community relations if responding officers had a bit more in common with those they're policing. As was noted in the aftermath of the Michael Brown shooting in Ferguson, minorities were routinely being charged with the pettiest of violations (and arrested when fines weren't paid) by a police force that was predominantly white. In many other cases, it's been pointed out that many police forces not only do not mesh with the racial makeup of their communities, but often live miles away from the places they patrol -- distancing themselves both literally and figuratively from the people they serve. In New York City, years of "broken windows" policing and stop-and-frisk tactics have combined to ensure its force won't be less white nor less disconnected from the communities the officers patrol, at least not for the forseeable future. Commissioner William Bratton is blunt about probable causes. “We have a significant population gap among African American males because so many of them have spent time in jail and, as such, we can’t hire them,” he said in a 20 May interview. Because many black men have been convicted of a felony, they are automatically disqualified. This is a problem -- not just for the NYPD -- but for policing as a whole. Bratton (who has since clarified this remark -- more on that in a bit) is going to have trouble finding minority officers because his force spent most of the last 25 years either busting them for petty crimes (the "broken windows") or shoving them up against the nearest wall for suspicionless questionings and patdowns. Those who could make a positive impact due to their rapport with the communities they serve (because they grew up/live there) are already disqualified from serving. As noted, Bratton has clarified this statement: Bratton said that when he had raised the “unfortunate consequences” of an explosion in stop-and-frisk tactics as one of the factors behind a difficulty in recruiting African American officers, he had meant that being the subject of such stops could discourage black people from applying. “Stop, question and frisk is not preventing people from coming on the job,” Bratton said on Wednesday. “It’s not something that prohibits them. What it might do, however, because of a negative interaction with a New York City police officer – why would they want to become a New York City cop when they feel that they’ve been inappropriately dealt with in stop, question and frisk?” While this points out that summons and misdemeanor charges won't keep black men from joining the NYPD, it doesn't make things much better. In fact, given the pervasiveness of stop-and-frisk, it possibly makes things worse. Rather than just disqualifying felons, it has alienated thousands more who were never arrested or charged. Their only interactions with the NYPD have been of the "hassled" variety -- stopped, patted down and questioned simply for being black, young and living in their own neighborhoods. Now that stop-and-frisk has been dialed back significantly (only 48,000 last year -- compared to 4 million stops from 2002-2013), there's a chance this may, at some point in the future, pose less of a problem. This unconstitutional program -- in addition to alienating black applicants -- decimated the NYPD applicant pool for several years before someone finally realized what was happening. Bratton said on Wednesday that at one time, police department applications had included a question about whether the applicant had ever been the subject of stop-and-frisk. But answering “yes” would not have disqualified the applicant, he said. “We changed that question,” Bratton said at the press conference. “They were asked starting in 2009 and 10, ‘Have you been, basically the subject of a stop?’ We took a look at that as part of the changes we were making as part of the overall stop, question and frisk program. We changed that question. Because really it was not a qualifier ... It’s really information that’s of no use or value to us in the application process.” Nearly 400,000 stops a year means tossing out tons of applications, presuming even a small percentage of those stopped weren't already deterred from entering the police force thanks to these largely-negative interactions. But this isn't just an NYPD problem. It's a problem for all police forces who spend most of their time coming down hard on minorities by enforcing petty ordinances to the nth degree or doing what Officer Casebolt did in the above situation -- "busting" black kids while whites and other minorities roamed free. If this sort of thing remains unchecked, hiring policies alone will prevent police forces from being more representative of the communities they serve. Left untouched, this will result in more and more agencies becoming predominantly composed of white officers, even as the population being policed remains a blend of minorities. On top of any present racism (something unavoidable when hiring humans), the increasingly homogeneous police force will only exacerbate "us vs. them" thinking, as hired officers will be pulled from a pool of people who've never experienced the negative aspects of law enforcement. The fix isn't Affirmative-Action-on-steroids. The solution is the elimination of tactics that lend themselves to racist behavior and further drive a wedge between the policed and the police. The only way to ensure you can get the best -- and most useful -- police officers is to stop preemptively culling your potential workforce with abusive behavior and policies. Internal housecleaning is also in order, but what the NYPD's experience shows is that bad policies lead to the continued deterioration of the police force… which leads to the continued deterioration of policework… and so on, until your police force bears almost no resemblance to the communities it polices. Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
As you may have heard, Leonard Nimoy's son Adam Nimoy is working on what sounds like an incredible and touching documentary called "For the Love of Spock" -- about both the Star Trek character of Spock and about Leonard Nimoy's career (for the none of you who don't already know this, Nimoy played the iconic Mr. Spock in the TV show and movies). It had begun as a documentary just about the character of Spock, but after Leonard Nimoy passed away earlier this year, the focus has expanded to cover his life as well. It sounds really great, but Adam is trying to raise $600,000 on Kickstarter to make it happen. There are a lot of reasonable expenses included in that $600k, but one stood out to me: the need to license images and footage of Nimoy: It will also enable us to license the hundreds of film clips and still photographs of Mr. Spock as he has appeared on television and in feature films over the last fifty years. It's worth noting that part of the thinking behind this was to get the documentary out in time for the 50th anniversary of the original Star Trek. In other words, if anything, this documentary is only going to help draw a lot more attention to the whole Star Trek franchise which can only be good for the rightsholders. In other words, the fact that the rightsholders haven't stepped up and just granted a free license to Adam Nimoy is ridiculous and short-sighted. Admittedly, the rights behind Star Trek are a little muddled due to the CBS/Viacom corporate split a decade ago, with each company still owning pieces. But, either way, it seems that both CBS and Viacom/Paramount Pictures should recognize that they stand to benefit greatly from having this documentary. The idea that they can't sort this out themselves and give Nimoy the photos and clips he needs seems ridiculous. Supporting this documentary seems like a great idea -- and it sounds like much of the money will go towards all of the other important work in putting together an excellent end product. It just seems ridiculous that at least a decent chunk of the money has to be used to pay off CBS and/or Paramount to convince them to let Nimoy make a movie that will only help their own bottom line.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
Oh, the defamation threat letters we see. They are all too frequent. Thankfully, some people know how to respond to them well. This one was found via Popehat and involves NY lawyer Michael Popsis receiving a defamation threat letter written by Florida lawyer Casey Cummings on behalf of his client David Shavolian. Shavolian got some attention a few years back when a sexual harassment lawsuit was filed against him by a former employee. The allegations in the lawsuit were somewhat salacious, leading to news coverage, such as in the Daily News, which posted the headline: "Boss made her stand beside him while he urinated: harassment suit." The allegations in the lawsuit itself went even further, including the following (as laid out in the ruling in the case): Popsis had written about the case, but not the particularly tabloid worthy aspects of it. Rather, he had focused on the benchslap that Savolian's lawyer had received for trying to get the case dismissed by arguing that the allegations, if true, did not fit under the state's anti-harassment laws. The judge found that to be quite incredible: This Court is aghast that any attorney would, with a straight face, claim that the conduct alleged (which, solely for purposes of this motion, is deemed to be true) does not fit squarely within the City and State anti-discrimination and anti-harassment laws. Talk about a hostile work environment! If defendants are correct, these laws, and similar ones throughout the country, would have to be scrapped as ineffective and rewritten from scratch. Based on the totality of the complaint, including matters not mentioned above, defendant Shavolian seems to have hired plaintiff principally so that he could sexually harass her, and, once she was beholden to him for her employment, to have followed through completely. [I]f plaintiff is to be believed, Shavolian showed his true colors well before he hired her, and, conceivably, plaintiff accepted employment with the idea of bringing this lawsuit. Be that as it may, the City and State have made clear that the conduct alleged is unacceptable in the workplace and have imposed liability for it (and, in this Court’s humble opinion, rightfully so). Quite a classic benchslap, which Popsis found interesting. Now the letter from Shavolian's current lawyer, Casey Cummings, argues that that post about the benchslap is somehow defamatory. It does not, of course, include any clear explanation of what factual statements are defamatory (because that would be difficult). Rather, all it does is include a somewhat bizarre declaratory defamation ruling from the state of Florida... filed against "Anonymous John Doe 1." Seriously, go look at how questionable that lawsuit is. It is super sketchy. It highlights three sites that it declares are "defamatory" including the NY Daily News story linked above, a blog post at The Real Deal (a blog about NY real estate) and a link at Ripoff Report highlighting the story. The blog post at the Real Deal appears to be gone, but the others still remain. But notice what the lawsuit says. It does not accuse the NY Daily News of defamation. It does not accuse The Real Deal of defamation. It does not accuse Ripoff Report of defamation. It accuses "Anonymous John Doe 1" of writing the content on all three of those sites. Really. And then, it says that "Anonymous John Doe 1" may reside in Florida, to give the court jurisdiction. The Defendant may reside within the State of Florida, although the actual residence of the Defendant is unknown in that the Defendant has chosen to publish the Digital Defamation anonymously on an Internet Service Provider (ISP) known as Therealdeal.com, Nydailynes.com and Ripoffreport.com. Any attempt at service of process so as to obtain in personam jurisdiction would be a futile act based upon the Defendant's concealment of his identity and place of residence. Got that? This anonymous John Doe 1 has used these three "ISPs" to publish "digital defamation" anonymously. Even though the article in the Daily News has a byline. And while the original story on The Real Deal is down, a quick check shows that its stories appear to carry bylines as well. From there, the lawsuit makes a bunch of bizarre claims, without ever actually identifying the "defamation" in question. At first, I wondered if maybe it was referring to comments posted below those articles, but if that's the case, it should have made that point much more clearly. But, in paragraph 30 of the complaint, it makes it clear that it's talking about the original articles themselves, because it notes that "the various titles of the Digital Defamation are..." and then lists the titles of the original posts themselves, rather than, say, comments beneath them. The only potentially defamatory claim stated was about whether or not Shavolian had been arrested -- which is alleged in a comment below the Ripoff Report story, but is clearly not in the original Daily News story. The lawsuit goes on to (incorrectly) cite Section 230 of the CDA to say that Shavolian cannot sue the Daily News, Real Deal, Ripoff Report or Google (hang on, we'll get back to that) directly for defamation. We're big believers here in Section 230 protections around here, but while they would apply to Ripoff Report and Google, if he's really claiming the original articles on the Daily News and Real Deal were defamatory, then Section 230 wouldn't apply. It only applies to the intermediaries, not the original publishers. Finally, to top it all off, having pretended that "Anonymous John Doe 1" wrote the articles at the Daily News and the Real Deal, and claiming that he can't sue those sites directly and then saying it would be impossible to identify Anonymous John Doe 1, he requests a declaratory judgment in his favor since Anonymous John Doe 1 will obviously not show up in court. It's pretty clear what the intention here is: get a confusing/confused court ruling saying "defamation" to then wave around to threaten people into taking down stories that are not defamatory. Since no Anonymous John Doe 1 was identified, and because the Florida court apparently didn't even do the most basic review of the details here, it gave a ruling in favor of defamation -- using some more procedural nuttiness, saying that it was "in rem" -- a ruling against the content itself, rather than the person (I'm not even going to dig down into how ridiculous a rabbit hole that is...). And then, based on that, it issued an order that "Anonymous John Doe 1" remove those three web pages and, on top of that, that Google, Yahoo and Bing remove those links from their search results. And, yes, that's really, really sketchy. It seems like a backdoor way to get a court to claim "defamation" without allowing a defense, and then being able to wave that ruling around to try to take down stories that almost certainly are not defamatory. Shavolian's lawyer in that case, Steven Andrews, played some interesting games there. I don't see how it could possibly be appropriate to tell the court that "Anonymous John Doe 1" wrote the articles at The Daily News and The Real Deal, when even a glance at those pages would show otherwise. And, finally, that brings us back around to the letter that a different lawyer representing Shavolian, Casey Cummings, sent to Pospis arguing that Pospis's post about the benchslap was somehow controlled by this nutty ruling, and thus he needed to take it down. Even leaving aside just how sketchy and questionable the original ruling is, Pospis's post didn't reference any of the three links listed in that ruling at all. The whole thing stinks of trying to mislead. Unfortunately for Shavolian and Casey Cummings, Pospis actually understands the law and sent a lovely response along with an even more detailed blog post that highlights other reasons why this is frivolous, beyond even those discussed above. Pospsis didn't even bother to dig into the ridiculous Florida ruling and what is alleged there. Instead, he just makes two other key points. First, even if what Pospis wrote was defamatory (which it wasn't), the statute of limitations on defamation in NY is one year. And his post was published more than a year ago. In the letter, this is expressed deliciously by citing the NY statute followed by "see also a calendar." Second, there is absolutely nothing in Pospis's post that even remotely approaches anything defamatory. In his letter, Pospis points to the hallmark of defamation bullies: the failure to cite a single statement: In that vein, I note that you fail to identify even a single false statement of fact in the post that you have falsely and irresponsibly characterized as "defamatory." As such any defamation action commenced in New York would be patently frivolous and subject the plaintiff and/or its attorney to sanctions, including attorney's fees. In the blog post, Pospis goes further, noting that his original post was commenting on a matter of tremendous public interest, involving public court documents. He concludes: I have zero tolerance for bullies who threaten to misuse defamation law to censor protected expression. I certainly hope, for the sake of his practice and his clients, that Mr. Cummings has better things to do with his time than threaten out-of-state lawyers with meritless defamation lawsuits. It is indeed a dark day for free expression when lawyers are dissuaded, under the threat of litigation, from writing about and/or commenting on judicial proceedings. Free speech is more likely to die by a thousand ostensibly innocuous cuts (e.g., threats like Mr. Cummings’), rather than by sweeping legislative reforms, constitutional amendments, and the like. It still is quite amazing how frequently people (including some lawyers) think that if they can throw around semi-official looking claims, that people will ignore the details. Sometimes, though, it backfires in a big, bad way.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
TGIF. It's time to get ready for the weekend! Whether you're crashing at home or heading out into the wide world, you want your devices charged and ready to go. Take a look at these deals designed to give your devices the juice they need so you can binge Netflix or take unlimited selfies. Get the Kinkoo 40W 6-Port High Speed Charger for 29% off and plug in up to 6 USB charged devices for high-speed charging. Everyone in the house can have a dedicated port and the Kinkoo can detect what type of device you've plugged in and select the optimum charging speed to get you back up to 100% faster. The Smart Charge Kit can help you figure out how efficiently your charges are working. The device plugs into your lightning or microUSB cable and has an LED display to let you know how quickly your device is being charged. It's available for $21 in the store -- just remember to pick the right option in the drop down menu when you order. For you Apple folks out there, the braided MFi-Certified Lightning Cable gives you 10 feet of tangle free cable to charge you lightning compatible devices. Get it now for 33% off and worry no more about short charging cables forcing you into uncomfortable positions while you browse Techdirt in bed or on the couch. We haven't forgotten about the Android users! For 50% off, the ZeroLemon 18W 'Quick Charge 2.0' Android Charger can charge your devices 75% faster. You can even use it for non-Android devices (they'll be charged at their regular speed), so you only need to carry one gadget. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
A week and a half ago, we wrote about a story from Ken "Popehat" White revealing a highly questionable subpoena from the DOJ sent to the Libertarian website Reason.com, concerning some silly comments made by users there. The comments were talking about killing the judge who was presiding over the Ross Ulbricht/Silk Road trial, but were the usual comment nonsense that no one takes seriously. Except... the DOJ sometimes gets a little overzealous whenever comments even obliquely mention killing judges. As we mentioned, a few years ago, we were contacted by the US Marshals service under similar circumstances -- but never received a subpoena. When we told them that we wouldn't be removing the comment, they said they understood and we never heard anything else. With Reason, things appear to have gone a lot farther since there was a subpoena. But, now White is raising a further issue: did the DOJ also get a gag order on the subpoena preventing Reason from speaking about it. He quotes two anonymous sources while admitting that's not particularly trustworthy. Instead, let's focus on the other evidence which is fairly compelling. At the top of the list: when White called the US Attorney in charge of the investigation, he suggested there was a gag order: First, AUSA Velamoor told me during our call on June 5, 2015 that he "believed" there was a gag order. I was skeptical at the time because it doesn't make sense to issue a subpoena to a libertarian news organization before you have the gag order in hand.... Second, in thinking about the call with AUSA Velamoor, I remember that he asked me when someone gave me the subpoena. In retrospect, that inquiry makes sense if he obtained a gag order after issuing the subpoena, such that the timing of the disclosure was legally significant. At the very least, this suggests that the DOJ had thought about a gag order, whether or not it actually got it. But that leads us to the second, rather compelling bit of evidence. Reason's absolute silence on this: Third, Reason has now gone ten days without commenting on the story. This story — the federal government using grand jury subpoenas to uncover anonymous commenters — is squarely in Reason's wheelhouse, and would normally provoke justifiable outrage from them. A slight delay in commenting was consistent with them waiting until their lawyers figured out what was going on; this prolonged silence strongly suggests compulsion. In fact, it actually goes a step further. Reason didn't totally go without comment. It actually posted the following message to its site: Please refrain from any discussion of the subject of the article at Popehat.com and its contents on our site. Thanks. Once again, that would tilt the scales in favor of a gag order. And, as White notes, if there is a gag order, that's insane and it's quite likely that Reason is challenging it in court -- though it can't talk about it. Yet. Unless the government has evidence we don't know about — and there's reason to doubt that — it is shocking and outrageous that the U.S. Attorney's Office sought a gag order and continues to enforce it. Think about it. This is an order telling an American publication that writes about freedom and abuse of government power that it can't talk about an abuse of government power. It is classic prior restraint, which is one of the most disfavored forms of censorship in American law. As White further notes, there are very, very few cases in which such a gag order is allowed, and it's very, very difficult to believe that any of those apply to a situation with some angry commenters on a website. And... to make matters even more stupid, this gag order is particularly ridiculous in light of the fact that Popehat has already written about the story and it's been covered by tons of other media outlets as well. The government did not merely seek an order gagging a magazine about a subpoena designed to pierce the anonymity of people commenting about a controversial case on a political website. The government has, apparently, continued to insist that the gag order be maintained even after the existence and content of the subpoena has been very widely publicized. What conceivable justification can there be now to prohibit Reason.com from discussing the subpoena, the gag order, and their significance? At this point, the gag order on Reason doesn't prevent the commenters from learning anything. The only thing it prevents is Reason discussing, and criticizing, and questioning the government's decision to subpoena commenters and gag them. As White rightly notes, this appears to be a frightening abuse of power, now being used to restrict further discussion of an initial abuse of power. Both abuses deserve widespread scrutiny.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
Over the years, we've certainly seen plenty of ridiculous attempts to overclaim trademark writes, often for the sake of censorship. While it's not always the case, generally speaking, it's smaller, less sophisticated companies and trademark holders who do this. Larger companies do have a habit of trademark bullying on the margins, but they tend to know better than to send absolutely insane trademark threats just because someone mentions their brand. Apparently, IMAX is an exception to that general rule. IMAX apparently believes that merely mentioning IMAX without a license is infringing on its trademark. Even if you're a media company writing about a product and you interview someone who says something nice about IMAX. Because IMAX is wrong. Also: IMAX. You see, our friends over at Ars Technica recently wrote a review of the SteamVR offering, and it included a quote from a game designer, Denny Unger, who was talking about how cool SteamVR is and said: "It’s like saying, 'I have an IMAX theater in my house.' It’s so much better that we can get away with a cumbersome setup." That quote also did become a part of the headline to the story, which appears to be what tipped off IMAX's elite crack squad of trademark censors, who proceeded to send Ars Technica this ridiculous letter which states: IMAX Corporation has been the owner of the federally registered trademark in the United States and Canada since 1970. Any unauthorized use of our trademark is expressly forbidden. We believe that your incorrect reference to IMAX when describing this product is misleading to readers as we do not believe that it is possible for a virtual reality system to replicate the experience of an IMAX theatre, which is provided by cutting edge projection and sound technology on screens up to 35.72 metres. We request that all future articles regarding this "room-scale" virtual reality system make no reference to our registered trademark. Ars Technica's response to this ridiculous threat is perfect. It points out, first of all, that the quote mentioning IMAX is actually praising IMAX: In other words—Unger thinks SteamVR is awesome, and to express its awesomeness, he compared it to IMAX, another thing he clearly thinks is awesome. But then explains some rather basic things about trademark law that you would think a company the size of IMAX would already know. First of all, this isn't a story about IMAX, and it contains just one (nice!) reference to IMAX. The statement wasn't Ars' speech at all, but one that an Ars writer chose out of many possible interview quotes. But that's all a bit of an aside, because the important point is that despite Ruby's fantastical interpretation of what a trademark means, we're actually allowed to say whatever we want about IMAX. I can say IMAX screens look like SteamVR, or that they look like my 47" Vizio TV, or that they remind me of purple bunnies. We can review IMAX directly, we can compare it to other products, we can love 'em, we can hate 'em—all without their permission. The standard in trademark law is to determine whether there's infringement by detecting whether there would be a "likelihood of confusion" between two products. But again, we're very far away from that test here. That standard would only apply if we were selling movie tickets; there are no consumers who confuse reading an article about virtual reality with going to the movies. And, you know what, I don't think enough people have compared IMAX to purple bunnies. Ars Technica's Joe Mullin also points to our own article about how, if anyone is messing with IMAX's trademark, it's IMAX itself, which for years now has been installing much smaller screens but still calling them IMAX, confusing lots and lots of people. It's been years since we mentioned that, and I don't think we otherwise would have had need to do so if IMAX itself hadn't reminded us of this little fact. So, yeah, IMAX, maybe send your staff to some remedial trademark school, because the media can absolutely say IMAX without your "authorization." IMAX. IMAX. IMAX. IMAX.Permalink | Comments | Email This Story

Read More...
posted 11 days ago on techdirt
There's no shortage of competitors in the anti-piracy field. Most of the manual labor involved in issuing DMCA takedowns has been handed over to proprietary software -- turning this into a high-margin, low-effort business for content protection companies. Some are only occasionally competent. Some are frequently horrific. And some are like Guard Content. Though claiming to be located mere blocks away from the Simpsons family in "Springfield, USA," almost every word on its site appears to be only a fair approximation of English, suggesting either outsourcing or a location far removed from the proverbial heart of the nation. Guard Content's "Contact" page clarifies that the Springfield it calls home is actually in Illinois, but it does so in reverse while leading off with wording that suggests this may actually be the address of the company that created the website. And it wraps this up with "You are welcome!" which is no "Thank you! Come again!" but will have to do. This address doesn't actually exist. East Princeton Ave. in Springfield, IL, only covers addresses from 600-1100, due to it being located between 6th and 11th Street. There is no "13 E Springfield Ave." The area code (646) traces back to Manhattan, NY, further separating this contact information from reality. But it all comes together when you view the site registration info, which puts the site owner at "Iaran 5, Alabama, AL 36006" and lists a Ukrainian email address. The Ukrainian email address makes more sense when any attempt to purchase Guard Content's services leads you to this: But this is the Age of the Internet. Physical locations don't matter. The real question is: DOES IT WORK? Let's take a look at the sales pitch. Our organization different from other organizations that agents of our company work with clients on strategies to protect against piracy individually. Excellent. Plenty of personal contact and a tailored application of Guard Content's "strategies," if I'm reading that more correctly than it's written. Let's see some specifics: We use a special anti-virus program that scans the Internet every day in search of stolen online products and goods. Now, you're probably thinking to yourself, "I have content I'd like to protect, but since my offerings aren't viruses, will this service work for me?" I DON'T KNOW. I can only assume the internet continues to get safer every day, thanks to Guard Content's constant anti-virus scanning. It hits all the best places, too, like warez sites, "auction sites," cyberlockers and the always-popular "orrent sites." Let's dig a little deeper. How does this powerful anti-virus software find infringing material? Our software will scan the Internet open spaces in search of copyright infringement, and our agents will receive and process the information. Ah, so it's not just the sites. It's the space between the sites. Got it. Then we will send DMCA takedown obtained to get the content that really violated copyrights. Presumably, content only slightly violated will be left untouched. All information is carefully checked by our experts and the customer is always informed and is aware of all the events and happenings. Well, I have my doubts about, well, several of these claims actually, but this last one in particular. We'll see why in a moment. But it should work well, considering the service starts at $80/mo. and tops out at $400/mo. It seems expensive, but not so much when you consider a "team of experts" is willing to serve you a physically-impossible "27 hours a day, 7 days a week." And, if nothing else, let's remember why we're all here: Napster or something. A lot of people remember situation, when MP3 files was stolen illegal from computer of sound record company and owners lost not just files, they lost millions. This example of internet piracy, and it is not the most horrible one. Guard Content's "team of experts" seems to have all of three clients at the moment, but we're going to focus on Rob Percival, who doesn't seem to be getting his money's worth, despite receiving a majority of Guard Content's attention. Rob Percival successfully Kickstarted a set of "complete iOS developer courses," which he now sells through Udemy and other outlets. I know this because Guard Content tried to have his Kickstarter page delisted by Google. The DMCA notice also targeted several legitimate outlets connecting potential buyers with Percival's offerings. It also attempted to delist pages at Reddit, Apple.com, makeuseof.com and Quora, where Percival's courses are discussed and recommended. Not content with "saving" Percival from additional sales, Guard Content also targeted a random developer's LinkedIn page. And, for no apparent reason (other than completely misunderstanding what Chilling Effects does), Guard Content asked for the removal of 13 of its previous takedown requests from the DMCA archival service. This isn't an anomaly. Guard Content does consistently low-quality work for Percival, either by duplicating previous requests or by targeting pages based on little more than the presence of words like "iOS," "Udemy" or "online course." In another request, it tried to take down Kickstarter pages for two iOS developers, as well as two pages of courses at Udemy.com offered by other developers. Other stupidity/ineptitude contained within this DMCA takedown request include demands to remove stories from Businessweek and MacWorld, as well as the demand for the takedown of the entire PeerTorrent.com domain. Fortunately for everyone involved, Google is less stupid than Guard Content's requests. The legitimate links remain live and accessible via the world's largest search engine. But this is a "service" Guard Content charges actual money for -- and, in Percival's case -- it would be doing more harm than good if it weren't for the recipient of the requests being vastly more competent than the sender. I've let Rob Percival know about Guard Content's blundering efforts on his behalf. I assume he'll probably find his anti-piracy dollars are better spent elsewhere. An easy, accessible system for combating infringement is a generally a good thing. The problem is twofold: this means anyone can file a request, no matter their personal level of competence. Secondly, low quality "services" are not only taking advantage of this option, but they're taking advantage of their customers. Permalink | Comments | Email This Story

Read More...