posted 12 days ago on techdirt
Image licensing giant Getty Images has quite a reputation for being something of a copyright maximalist and occasional copyright troll. The company has been known to blast out threat letters and lawsuits not unlike some more notorious copyright trolls. And that's true even as the company just recently lost a copyright infringement suit in which Getty helped in the infringement. A few months ago, we had told you about Getty starting a new program in which it was making many of its images free to embed, saying that it was "better to compete" that way on the internet, rather than trying to license everything. We actually just tried embedding some Getty images ourselves recently. However, it appears that this new program has not dampened the company's enthusiasm for copyright trolling. Nor has the recent lawsuit loss convinced Getty to be any more careful in how it goes about that trolling. The company may soon regret sending a troll letter to Florida-based intellectual property law firm Schneider Rothman, claiming that the company had engaged in copyright infringement by posting images to its site and demanding $380 (while threatening a lawsuit). The lawyers at Schneider Rothman know better than to make use of infringing images, so they scoured their site to figure out what the issue was. And they quickly figured out the problem -- and it appears to be with the sloppy way in which Getty sends out these demand letters: There was a problem, however. We never copied or displayed the Getty image referred to in Getty’s letter. We looked more closely at what Getty was doing and were shocked to discover what was really going on. You see, Getty is apparently using an image recognition system to generate its letters to accused infringers. Getty’s system identified a thumbnail image on our website here. Getty matched the thumbnail to an image more than six times the size on Getty’s site. We are not responsible for the thumbnail. The thumbnail is displayed on our website because we use the Zemanta plug-in for WordPress. Zemanta put it there, something that should have been obvious to Getty. But Getty did not bother to look. If it had, Getty would have seen that we are simply employing web-feed syndication, a common and generally accepted Internet publishing and search engine optimization practice. So, instead, the law firm has gone to court, filing for a declaratory judgment that it does not infringe. It's interesting to note that the lawyers didn't just include Getty as a defendant here, but Zemanta as well (seeking, at the very least, indemnification, on the off chance that Zemanta did not actually license the image). They note that Zemanta appears to have properly licensed the image, and to then try to shake down their law firm for using Zemanta's properly licensed use of the image is quite problematic. Plus, since the use is just a thumbnail and (thank you Perfect 10!) the use of thumbnails is fair use, Getty should have quite obviously known that its threat letter and demands for payment were bogus. The lawyers at Schneider Rothman don't mince words: Getty’s unfair and deceptive practice has caused actual damages to SRIPLAW by requiring SRIPLAW to expend time and money to bring an action to obtain a declaratory judgment that SRIPLAW did not infringe Getty’s copyright. Getty’s unfair and deceptive practice has damaged other individuals and businesses similarly situated to SRIPLAW who received letters from Getty that falsely claimed copyright violations and, because these other individuals and businesses lack the technical or legal knowledge and/or funds necessary to defend themselves from Getty false claims, have instead paid extortion money to Getty that Getty was not entitled to. Unless enjoined, Getty’s unfair and deceptive practice will damage other individuals and businesses who receive letters from Getty that falsely claim copyright violations and demand settlement payments to resolve such false claims. While it's fun to watch the lawsuits with the small-time copyright trolls like Prenda, it will be interesting to see what happens here, though my guess is that Getty will look to quickly settle this matter...Permalink | Comments | Email This Story

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These days, in the computer security world, it's pretty well known that if you're relying on security by obscurity, you're not being secure. Somehow that message has not reached the techies working on Healthcare.gov. I guess it shouldn't be much of a surprise, given what a disaster the rollout of that site was, but everyone was claiming that the whole thing was under control these days, since real techies had been brought in to fix things. In fact, everyone was so happy with Mikey Dickerson's miraculous saving of the program that the White House set up a special US Digital Service for him to lead, allowing him to save other US government projects from near certain disaster. But when the Associated Press filed a Freedom of Information Act request to find out how Healthcare.gov was handing its security it got rejected because, according to the White House, it might teach hackers how to break into the system: In denying access to the documents, including what's known as a site security plan, Medicare told the AP that disclosing them could violate health-privacy laws because it might give hackers enough information to break into the service. "We concluded that releasing this information would potentially cause an unwarranted risk to consumers' private information," CMS spokesman Aaron Albright said in a statement. Of course, that suggests that merely revealing the security steps the site has taken will reveal massive vulnerabilities -- and, as most people with even the slightest bit of technological knowledge know, if that's the case, then it's likely the site has already been compromised. If revealing the security setup for the site will leave it open to being hacked, we should probably assume the site was hacked a long, long time ago. If they're deploying security right, merely telling the world what they're doing wouldn't increase the risk. The fact that they're afraid it will suggests that the security plan is dangerously weak.Permalink | Comments | Email This Story

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In a world where people are always pushing the idea of "intellectual property" over just about everything, is it really any surprise when people assume all sorts of property-like rights in things that clearly shouldn't have any such thing? In a slightly bizarre lawsuit over the control of a Facebook fan page for the TV series The Game, the creator of the page, Stacey Mattocks, argued that BET effectively appropriated the approximately 6.78 million "likes" the fan page got. The details of exactly how this happened aren't worth getting into, but suffice it to say it was a contract negotiation gone wrong, as BET sought to bring the fan page under its official control. All that matters here is that among the other charges in the lawsuit, Mattocks claims that BET got Facebook to transfer those likes to its official page, which she alleged is a form of unlawful conversion. However, the court has pretty soundly rejected this, noting that there's no property right in Facebook "likes" and thus no property to unlawfully "convert." Based on the record, Mattocks cannot establish that she owns a property interestin the “likes” on the FB Page. As explained in Part I.A, “liking” a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content. At any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button. So if anyone can be deemed to own the “likes” on a Page, it is the individual users responsible for them.... Given the tenuous relationship between “likes” on a Facebook Page and the creator of the Page, the “likes” cannot be converted in the same manner as goodwill or other intangible business interests. Even if Mattocks could claim an ownership interest in the “likes” on the FB Page,she cannot demonstrate that BET’s migration request was unauthorized or wrongful. After Mattocks breached the Letter Agreement by limiting BET’s access to the Page, BET asked Facebook to migrate the “likes” to the other official Series Page. Facebook then reviewed the FB Page in accordance with its corporate-brand policies and determined that BET’s request was valid. More, as already explained, no substantial evidence shows that BET’s request violated any other legal duty to Mattocks. Either way, it's nice to see a legal ruling that recognizes a lack of property rights in the likes other people give to your page. It would be even nicer if we stopped trying to declare everything a form of "property" when that makes no sense at all.Permalink | Comments | Email This Story

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We've seen some unique interpretation of copyright law over the years, but generally the really big companies -- especially content-driven companies -- have semi-decent lawyers. So it's just bizarre and surprising that media giant Thomson Reuters apparently believes that it can license whatever content it wants by merely sending an email and saying that a refusal to respond will be taken as consent that it can use your content. Here's the form letter that Thomson Reuters apparently sent to the Indian site MediaNama, and which it has likely sent to others as well: from: n***********@thomsonreuters.com to: releases@medianama.com date: Wed, Aug 20, 2014 at 6:19 PM subject: Thomson Reuters – use of your website content August 20, 2014 MediaNama MixedBag Media Pvt. Ltd. 20 A Rajpur Road, Civil Lines, Delhi-110054 Dear Sir/Madam, Thomson Reuters – use of your website content Thomson Reuters is a global provider of electronic information, committed to providing our customers with comprehensive, timely and reliable information. Our services include the provision of key financial market content to the largest and most diverse group of financial market participants in the world. Our business customers, who include analysts, fund managers, corporate financiers and traders, watch news and prices on more than 300,000 screens linked to a secure private communications network spanning more than 150 countries. We are writing to seek your consent to use and redistribute certain content from your website (the “Content”), in particular, articles that pertains to companies that have received investment funding from Private Equity firms and other Private Equity related articles, within Thomson Reuters services (the “Services”). For the purpose of this letter Thomson Reuters means the Thomson Reuters Group.1 We may use automated tools in order to identify and obtain such content from your website. As such the Thomson Reuters group shall have the right to use, incorporate and distribute the Content in its Services to its subscribers and to permit such subscribers to use and redistribute the Content. We are aware that you will be receiving numerous requests of this nature and that asking you to give a response in each case would be burdensome for you. We would ask, therefore, that you respond either to the address or e-mail address given below within 14 days of the date at the head of this letter only if you wish to refuse your consent. Otherwise, Thomson Reuters will presume that your consent has been given for the purposes set out in this letter. Performance by Thomson Reuters under this letter will constitute adequate consideration for the purposes of this letter. Please do not hesitate to contact us for any further information; for questions and clarifications, you may contact Maria Nikka De Vera, Research Analyst – Private Equity at n***********@thomsonreuters.com. Yours Faithfully, Kate Brown Head of Content Acquisition – EMEA Reuters Limited 1 “Thomson Reuters Group” shall mean any company from time to time under the control of, controlling or under common control with the entity signing this letter and also includes any third party from time to time authorised by Thomson Reuters. For the avoidance of doubt, Thomson Reuters Group shall also include The Thomson Reuters Corporation and any entity from time to time, that is directly or indirectly controlling, controlled by or under common control with Thomson Reuters Corporation. An entity will be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. Now, some of us don't mind when our content is used in this manner -- and let others freely share it. And, there are cases where I think there's a strong fair use case to be made for things like news clippings and the like -- but India doesn't have a broad fair use structure like the US, so that wouldn't apply here. And, of course, by pushing this bizarre "licensing by failure to respond" setup, it would seem like the company is admitting that it thinks it does need to license the content in question. So here's the question: if we send Thomson Reuters a similar letter, and the company fails to respond, and then we start reposting Reuters stories on Techdirt, how quickly do you think their lawyers would nastygram us?Permalink | Comments | Email This Story

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We've been covering some of the more troubling details of police militarization across the US, and specifically what's going on in Ferguson, Missouri over the past couple of weeks. However, we knew fairly little about the actual military equipment being used there. And we know that sometimes scary looking military equipment isn't necessarily so scary when put to use. So it's interesting to read a former Marine's analysis of the military equipment being used in Ferguson, which more or less confirms that it not only looks scary but absolutely is scary. Much of the discussion is about how all those "non-lethal" "riot control" weaponry is actually quite dangerous and potentially lethal. Here are a few examples: There are scattered reports of stun grenade use in Ferguson. Also known as flashbangs or flash grenades, this weapon of choice for American SWAT teams (and Israeli soldiers) originated in the British special forces community more than four decades ago. Ostensibly less than lethal, stun grenades have been known to kill or severely injure numerous victims, and the device was recently in the news for burning a 19-month-old baby in Georgia, resulting in a coma, during one of the thousands of domestic police raids this year. They are designed to temporarily blind and deafen, thanks to a shrapnel-free casing that is only supposed to emit light and sound upon explosion. Nonetheless, the list of casualties is long, and the number of flammable mishaps is disconcerting. In Rise of the Warrior Cop, Balko recounts a story of an FBI agent accidentally lighting himself and his vehicle on fire. [....] These "pepper balls" are lethal; the Boston Police Department banned them after a young woman was killed by one. It passed right through the eye and skull to the brain. She was guilty of being present in a rowdy crowd after a Red Sox v. Yankees game in which the former won. The ACLU condemned the use of such projectiles for the purposes of crowd management back in 1997, following an unfortunate incident in Eugene, Oregon. They even convinced Eugene officials to do the same. It's about time St. Louis County and the rest of the country followed suit. [....] Like the stun grenade, employing wooden pellets as a form of riot control was spearheaded by the British decades ago, mainly in Hong Kong. As the ACLU makes clear, considerable litigation has proceeded in the aftermath of such tactics, including suits brought by protesters in Oakland who bore the brunt of these measures around the beginning of the Iraq War. Longshoremen on their way to work also suffered and sued accordingly. As a result, the Oakland police department caved and beating residents with wooden projectiles as a means of crowd management was rendered illegal. There's a lot more in the article as well. But here's the bit that really stood out for me. After posting a picture of militarized police moving down the street looking pretty scary, the former marine, Lyle Jeremy Rubin, explains how they're more well armed than the actual military in Afghanistan: What we're seeing here is a gaggle of cops wearing more elite killing gear than your average squad leader leading a foot patrol through the most hostile sands or hills of Afghanistan. They are equipped with Kevlar helmets, assault-friendly gas masks, combat gloves and knee pads (all four of them), woodland Marine Pattern utility trousers, tactical body armor vests, about 120 to 180 rounds for each shooter, semiautomatic pistols attached to their thighs, disposable handcuff restraints hanging from their vests, close-quarter-battle receivers for their M4 carbine rifles and Advanced Combat Optical Gunsights. In other words, they're itching for a fight. A big one. It's a well-known horror that the US military greets foreign peoples in this fashion as our politicians preach freedom, democracy and peace. It's an abomination that the police greet black communities in the States with the same trigger-happy posture. Especially on the occasion of an unarmed teen's death by cop. He also discusses the general rule that people repeat in our comments all the time: "never point a weapon at anything you do not intend to shoot." And yet, of course, in pretty much every picture of the police here, we see them pointing weapons. And sometimes worse. Here's some video of a police officer in Ferguson not just pointing a weapon at some people livestreaming the protests, but telling the livestreamers that "I will fucking kill you." When the streamers ask him for his name, he says "Go fuck yourself." And, again, remember that this is not in response to any terrorist threat, but to some protests after a fellow police officer killed an unarmed teenager. While that particular officer has since been suspended, it seems worth questioning this particular approach to policing. Actually, isn't it about time we rethought the entire way that this country handles policing?Permalink | Comments | Email This Story

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As Mike recently mentioned, there is a heated debate throughout the internet and the country over whether or not social media and content sharing sites like Facebook and YouTube should be actively taking down videos of American journalist James Foley being beheaded by ISIS/ISIL. The issue, which I've chosen to write about here before, is even more important and serious than perhaps it appears on the face for most people. Mathew Ingram's post dealt with many good aspects of the debate, some of which we'll discuss, but I think he leaves out a large part of the equation. More on that in a moment. Let's start this off by reiterating that this is a subject that needs to be dealt with openly, honestly, and with the kind of seriousness the loss of a journalist to a group like ISIS/ISIL deserves. It is, in that context, incredibly easy to understand why family members of Foley, or his friends, might request the images and video of his death by beheading be removed. It’s easy to understand why the victim’s family and friends wouldn’t want the video or screenshots circulating, just as the family of Wall Street Journal reporter Daniel Pearl — who was beheaded on video by Al-Qaeda in 2002 — or businessman Nick Berg didn’t want their sons’ deaths broadcast across the internet. And it’s not surprising that many of those who knew Foley, including a number of journalists, would implore others not to share those images, especially since doing so could be seen as promoting (even involuntarily) the interests of ISIS. No doubt. The actions taken in that video were as barbaric as can be imagined, glorifying the murder of a non-combatant strictly for being a kafir. An infidel. A non-believer. It takes a stone-heart to watch the video and not wince, cringe, cry. For those close to Foley, it must be agonizing. It's also necessary. After Ronan Farrow compared ISIS content to the radio broadcasts in Rwanda that many believe helped fuel a genocide in that country in the 1990s, sociologist Zeynep Tufekci argued that in some cases social platforms probably should remove violent content, because of the risk that distributing it will help fuel similar behavior. But others, including First Look Media’s Glenn Greenwald, said leaving those decisions up to corporations like Twitter or YouTube is the last thing that a free society should want to promote. And Greenwald is right, in part because the entire concept of a platform like Twitter lends itself poorly to being policed by overseers, but also because we don't need hosts of user-generated content scrubbing the decks for us. Some will say that such despicable acts have no place on Twitter, but ISIS/ISIL has been posting videos to Twitter of beheadings of non-Americans for months without much outcry. Others might suggest that Twitter should actively police their users and disallow extremist groups from the platform entirely, but who gets to decide which group is too extremist to be heard from? And still others will claim that allowing the video to be seen gives ISIS/ISIL exactly what they want and moves their message into the public's eye when it might otherwise be hidden. I say that's a good thing. “I say to America that the Islamic Caliphate has been established,” Abu Mosa, a spokesman for the terror group known as the Islamic State in Iraq and Syria (ISIS), told VICE Media in a video interview posted online Thursday. “Don’t be cowards and attack us with drones. Instead send your soldiers, the ones we humiliated in Iraq. We will humiliate them everywhere, God willing, and we will raise the flag of Allah in the White House,” he added. Abu Mosa was featured in Vice Media's outstanding reporting from inside ISIS/ISIL. But the claim that they will raise their flag over the White House is only one half of the threat; the video of James Foley is how they intend to behave once they've done so. Now, will ISIS/ISIL ever actually achieve this? Likely not, of course, but that isn't the point. Whatever your opinions on the Middle East, on the War on Terror, on the Iraq War, whatever your politics, one must acknowledge that if America truly has any enemies in this world, and we do, then ISIS/ISIL must be counted amongst the most grave of those threats. Think back to the year 2000 and ask yourself how much the average citizen knew about Al Qaeda. The answer should be "very little." So, when the attacks came, the most horrific the American public had ever seen, they came out of seemingly nowhere. Sure, people may have known the name "Osama bin-Laden", but they didn't know what his group was about in detailed form. They didn't know the history. They may not have been able to pick out Afghanistan on a globe. If we're to avoid that history repeating itself, the American public should at least be granted the option of viewing material that highlights exactly who the enemy of secular freedom is and what they are about. Both are on display in the video of ISIS/ISIL beheading James Foley. If the actions of the barbarians in this world are of importance, and they are, then hiding them from the cowering masses does nothing to serve those masses. Does ISIS/ISIL want their video to be seen? Of course, because they think their actions will frighten us into inaction and retreat. It's important that the public not be denied the opportunity to disabuse them of that foolish notion. There is a battleground here and that reality must be dealt with on reality's terms. Burying our heads in the sand must not be an option. James Foley went to the battleground in an attempt to give us a glimpse of the reality that is occurring there. It dishonors him to erect an opaque sheen of censorship before the price he paid. Permalink | Comments | Email This Story

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The European Court of Justice's awful "right to be forgotten" ruling is continuing to memory hole perfectly factual stories -- but publications like the BBC are bringing them back to light. Google has informed the BBC of 12 more stories that it is removing from its index thanks to requests from individuals who'd prefer that their history no longer be accessible to the public. While Google does not reveal who is making the request, it's often not too difficult to figure it out -- even though Google is now warning the BBC that sometimes the requester's name may only be in the comments. Two stories relate to the high-profile case of a British woman found guilty of running "one of Europe's biggest prostitution rings" in 2003. Other stories taken down covered a wide range of incidents. Google removed a 2002 story concerning a dispute between two Somerset families over the ownership of a wire-haired terrier called Wellie. Another removed story concerns a car thief branded an "idiot" by his own barrister, while yet another features an 18-year-old Bristol student convicted of drink-driving after crashing his Mini into the steps of his university campus. Some of the other listed, but memory-holed articles: A man cleared of a stabbing in London in 2010 The jailing of a former Daily Mail employee who threatened to hack the newspaper in 2000 A 2009 diary entry from the BBC's then-Jerusalem correspondent Tim Franks on the merits of hummus A 2005 page of appeals from those looking for family members missing after the Asia tsunami A selection of readers' comments on the terror threat posed by al-Qaeda in 2005 I'm still trying to figure out what good this effort accomplishes. Deleting factual things makes no sense. Allowing people to go back and erase perhaps embarrassing things from their past may have a visceral appeal, but it's just silly. People do embarrassing things that they later regret. It's a part of life. Part of maturing is being able to admit that you did silly things in the past and that you learned from them. Trying to disappear them down the memory hole seems to highlight how an immature person remained immature.Permalink | Comments | Email This Story

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Journalism Professor Jay Rosen has long been the leading advocate in condemning the prominence of "he said/she said" journalism in the mainstream media. This kind of journalism is driven by a complete distortion of what it means to be an "objective" journalist. Bad journalists seem to think that if someone is making a claim, you present that claim, then you present an opposing claim, and you're done. They think this is objective because they're not "picking sides." But what if one side is batshit crazy and the other is actually making legitimate claims? Shouldn't the job of true journalists be to ferret out the truth and reveal the crazy arguments as crazy? Rosen's latest calls out the NY Times for falling into the bogus "he said/she said" trap yet again. This time it's on an article about plagiarism and copyright infringement charges being leveled from one biographer of Ronald Reagan against another. We wrote about this story as well, and we looked at the arguments of both sides, and then noted that author Craig Shirley's arguments made no sense at all, as he was trying to claim ownership of facts (something you can't do). Furthermore, his claims of plagiarism were undermined by the very fact that he admitted that competing biographer Rick Perlstein's quotes were different. Shirley claimed that "difference" in the quotes showed that Perlstein was trying to cover up the plagiarism, but... that makes no sense. Of course, when the NY Times reported on this, it did the "he said/she said" thing, providing no enlightenment whatsoever to the public who was reading it about whose argument actually was legit, and whose was ridiculous. Reporter Alexandra Alter played the false equivalence card: Mr. Perlstein, 44, suggested that the attack on his book is partly motivated by conservatives’ discomfort with his portrayal of Reagan. Mr. Shirley is president and chief executive of Shirley & Banister Public Affairs, which represents conservative clients like Citizens United and Ann Coulter. But Mr. Shirley and his lawyer contend that Mr. Perlstein paraphrased original research without properly giving credit. “The rephrasing of words without proper attribution is still plagiarism,” Mr. Shirley said in an interview. As Rosen notes, this is the "easy" way out for a journalist. Actually figuring out who's right takes work, and hell, you might be wrong. So why take the risk: You’re safer because you could be wrong if you choose, so why choose? You’re safer because even if you’re not wrong you can be accused of bias, and who needs that? You’re safer because people will always argue about [fill in some bitterly contested narrative here] and you don’t want to be a contestant in that. In the middle is safe. Neither/nor is safe. Not having a view of the matter is safe… Right? But, as Rosen notes, thanks to the internet these days, newspapers are increasingly having trouble with this kind of lazy "safe" journalism. Because the public will call them out when they avoid reporting the truth, favoring a false narrative instead. In this case, the NYT's public editor, Margaret Sullivan, (whose job it is to examine whether or not the NY Times is best serving the public) called the paper out for this weak effort in response to complaints from the public. She directly notes the problem of this he said/she said journalism: By taking it seriously, The Times conferred a legitimacy on the accusation it would not otherwise have had. And while it is true that Mr. Perlstein and his publisher were given plenty of opportunity to respond, that doesn’t help much. It’s as if The Times is saying: “Here’s an accusation; here’s a denial; and, heck, we don’t really know. We’re staying out of it.” Readers frequently complain to me about this he said, she said false equivalency — and for good reason. So I’m with the critics. The Times article amplified a damaging accusation of plagiarism without establishing its validity and doing so in a way that is transparent to the reader. The standard has to be higher. As Rosen further points out in his blog post, the ability of the public to weigh in may be changing the equation here. The "easy" and "lazy" response of just doing he said/she said journalism won't cut it because you'll get called out on it. Journalism should be about reporting what's true, not just what people say is true. The continued use of he said/she said is actually "reckless behavior that may easily blow up in its face." Rosen even points out that the BBC is now specifically retraining its reporters to stop inserting "false balance" into stories where there's an underlying truth and an attempt to distort it. It seems amazing that this even needs to be repeated, but it's been that way for so long in many publications. Hopefully, the ability of the public to call it out will make more lazy journalists and editors recognize what used to be the "safe" move is no longer so safe.Permalink | Comments | Email This Story

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In the US, over half of the mobile phones people are using are smartphones, so it's not surprising that there's a nascent market for smart devices trying to take advantage of this existing user base. Wearables like smartwatches and smartglasses are nifty gadgets, but there could be other smart-things that might be hanging around necks or strapped to our arms in the near future. One feature for all of these smart accessories could be personal protection -- allowing the wearer to signal to friends/family/police in an emergency situation. Here are just a few examples (that are available for pre-order or need some crowdfunding love). A portable panic button that connects to your smartphone could be psychologically calming. This particular button lets your friends track your location while you're going down a scary dark alley. (But maybe try to avoid going to dangerous places in the first place, okay?) [url] Smarter jewelry could be a more fashionable take on wearables -- and they can also track your location 24/7. At least it looks nice, but how many more gadgets in your life do you want to charge on a regular basis? [url] If you really want to feel safe, how about a can of pepper spray that also connects to your smartphone? This smartphone accessory also takes a picture of your attacker right before you spray him in the face.... [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Eventually, video game companies are going to have to come to terms with the fact that their biggest fans can also be immensely creative and that they often want to channel that creativity towards adding to the game franchises they love. Thus far, the vast majority of fan-driven projects having anything to do with video game franchises are met with stonewall takedowns and cease and desist letters. The most frustrating of these are when mixed signals are sent to the fans engaged in these projects, where the people doing the work are under the impression that their efforts have been cleared for takeoff only to be grounded late in development. To treat creative folks who can be amongst a company's greatest fans that way is to bite the hand that feeds them in a very real way. And now it's happened again. A group of dedicated Metal Gear fans endeavoring to remake the original 1987 NES title in Valve's Source engine and had been in contact with a Konami rep the entire time. After month's of work, Konami apparently just informed them that they no longer had permission and forced them to shut it all down. "The project has been shut down by Konami," an email sent to the site read. "Seems that they all couldn't agree on the project going ahead." The mod team also revealed that David Hayter was on board to voice Snake, and had even recorded some lines for it. It posted a work-in-progress trailer showing a rough cut of scenes yet to be animated, complete with Hayter's dialogue. In correspondence elsewhere, remake organizer Ian Ratcliffe indicated that he had been in regular contact with a Konami representative in the UK about the project and that he'd been given the all clear, with the stipulation that the game not be sold commercially. The carpet was then pulled out from underneath the team by Konami's legal department in Japan. Ratcliffe was far more understanding than many people might have been. The agreement was made verbally, we first got approval a couple of months back after being told to take the moddb page down. Following that Jay Boor from Konami UK, told me that the agreement was getting written up by Japans legal team. (We were contacted by a couple of guys from Japan initially but since it's all been through Jay.) We were told to keep the page down as they wanted to make the announcement once E3 was out of the way. I'm not really sure what happened to be honest, we had a lot of back and forth with Jay and he was in full support of the project. It seems that the whole of Konami was divided on whether we should go ahead or not but I think ultimately it was Japans decision. I totally understand their reason in doing so, not matter how disheartened the team is, we thank them from the bottom of our hearts for all that they've done, Jay especially. Not to forget the huge amount of support we got from the fans, to which we're more than grateful for. We got to work alongside industry professionals, it's been really inspiring and I feel privileged to have been a part of it. We aren't gonna be sour about the whole thing it's the experience that counts. We're now in the planning stages of making our own IP, in the words of Liquid Snake - "It's not over yet!" It's an amazingly gracious and politic reaction to what was essentially the dicking over of the effort of a dedicated group of fans by Konami's legal team. To spend months working on a title, organizing labor, getting some impressive voice talent on board, all in good faith under the notion that a Konami rep had given the green light, and to then have all that work torn away by the very company whose work you love so much must be a hell of a feeling. Sure, Ratcliffe's team should have gotten the correspondence and the 'okay' in writing, but there's still no reason for Konami to dump on their fans like this. There was no commercial interest here, just the love of the game, so to speak. All in the name of copyright. Permalink | Comments | Email This Story

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In the ongoing fallout Comcast is facing due to the high-pressure sales tactics of their non-sales employees, the company has consistently indicated that these employees are not behaving in a manor consistent with the company's wishes. The common thread in most of these stories consists of customer service duties being handled by customer retention reps as often as not and complaints or attempts to cancel service being met with sales pitches instead of service. Comcast has specifically indicated that these examples are outside of the way they train employees to conduct their business. Comcast, as it turns out, is completely full of shit. The latest reveal via past and current Comcast employees spilling their guts to The Verge is all about employee metrics. And it seems that Comcast sees everyone as part of the sales team. Guidelines for repair reps, which show how a trouble call can be segued into a sales call, are part of S4, Comcast's "universal call flow." S4 is an evaluative measurement to ensure that all agents "give every customer a great call experience every time." It stands for: start, solve, sell, summarize. Part S3, or "sell," includes four parts: "transition to relevant offer," "present offer," "overcome objections," and "proactively close sale." That's not even a retention rep being trained in that document; it's a repair tech. Because, hey, the thing I most want when Comcast's service is failing is the person fixing it to sell me more of that failing service. This is the kind of pressure tactics that lead repair calls down the dark path to an angry customer who likely subsequently finds out that Comcast has a monopoly on service in their area. Where are my free-market conservative friends on this stuff? This is supposed to be in your wheelhouse! It doesn't get any better for customer service reps. Similarly, a scorecard for customer service reps in the Pennsylvania area shows that sales are explicitly worth 18 percent of an agent's performance. Sales are measured again in the general customer service "Pinnacle" metric, which is worth 27 percent. An excerpt from the Pinnacle guidelines says "Sales/Conversion" is one of eight categories measured in an employee's interaction with a customer. A fifth of a customer service reps performance is judged on their salesmanship. Let that sink in for a moment and then remind yourself of this fact the next time you call for a complaint or help with your service. That person you're speaking to is being judged on whether they can sell you on something when they're supposed to be helping you. You can see the full dump of the metrics documents here, but don't eat much before you go looking. You may not be able to keep your meal down. Permalink | Comments | Email This Story

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Last month we wrote about a new copyright reform proposal in Australia, which is basically Hollywood's wishlist. It was put together by George Brandis, who completely flat out ignored the proposals of the Australian Law Reform Commission (ALRC), despite it going through a long and detailed process to come up with quite reasonable reforms. Instead, Brandis buddied up with Hollywood insiders representing US interests, and totally ignored consumer groups. In response to the proposal, Communications Minister Malcolm Turnbull (who has, apparently, been pushing for more reasonable rules to dilute Brandis' extreme proposals) said that a public hearing would be held in September to discuss the proposal, getting a variety of stakeholders in the room together, including consumer rights groups. The major Australian studio, Village Roadshow (the "token" Australian studio in the failed Hollywood-driven effort to sue ISP iiNet a few years back), has apparently decided to opt out of attending the session. While the company's CEO Graham Burke originally said he couldn't make it because he'd be overseas, he actually told Turnbull that he was skipping it because he didn't want to deal with "crazies," by which he apparently means the public who are concerned about their rights being trampled: “My company is not prepared to participate in the forum. As expressed to you previously these Q and A style formats are judged by the noise on the night and given the proposed venue I believe this will be weighted by the crazies,” Burke told the Minister. [....] “What is at stake here is the very future of Australian film production itself and it is too crucially important to Australia’s economy and the fabric of our society to put at risk with what will be a miniscule group whose hidden agenda is theft of movies,” Burke told the Minister. Nice to see what they really think of the public and concerns about how the new rules might trample free speech, an open internet or the nature of innovation. It's a pretty weak argument, showing real desperation when someone insists that the concerns being raised by public interest groups and ISPs about significant legal changes that will have a major impact on the internet as a whole, are just "a miniscule group whose hidden agenda is theft of movies." No one's "agenda" is "theft of movies." People are legitimately concerned about the consequences of putting liability on ISPs over actions of their users. The near certain response is to lead to massive censorship, blocking of free speech, and much greater expenses for consumers -- none of which will have any real impact on infringement of movies. It seems quite telling, actually, that Burke apparently recognizes that he has no good responses to these concerns, and can only respond through insults and ad hominems.Permalink | Comments | Email This Story

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More than four years ago, we wrote about all the buzz that you were hearing about "cyberwar" was little more than an attempt to drum up FUD to get the government to throw billions of dollars at private contractors. We noted that Booz Allen Hamilton (yes, the last employer of one Ed Snowden) had hired former NSA director and also Director of National Intelligence Mike McConnell as its Vice Chairman. He was the leading voice out there screaming about the threat of "cyberwar" getting on TV and having lots of opinion pieces in big name publications -- all of which mentioned his former government jobs, but almost none of which mentioned that his current employer, Booz Allen Hamilton, stood to make billions selling "solutions" to the government. And, indeed, Booz Allen has been raking in the cash on "cybersecurity." This is worth keeping in mind as you read this fascinating interview with NSA whistleblower, Bill Binney, in which he lays this out plain and simple. The real reason for all this NSA surveillance is about money and power. "Stop terrorism" is secondary. After pointing out that all of this data collection has been basically useless in stopping terrorism (as confirmed by multiple independent accounts of the NSA's activities), the interviewer asks Binney why the NSA keeps doing it: So why do they keep doing it? Money. It takes a lot of money, you have to build up Bluffdale [the location of the NSA's data storage center, in Utah] to store all the data. If you collect all the data, you've got to store it, you have to hire more people to analyze it, you have to hire more contractors, managers to manage the flow. You have to start a big data initiative. It's an empire. Look at what they've built! Have you ever looked around all the buildings they've built up because of 9/11? So that's what it's all about, expanding the budget for the intelligence community? If you have a problem, you need money to solve it. But if you solve that problem, you no longer have the justification to get money. That's the way they view it - keep the problem going, so the money keeps flowing. Once you build up this big empire, you have to sustain it. ... Look at the influence and power the intelligence community has over the government. They [the government] are giving them everything they want, they're trying to cover up all their tracks and their crimes. Look at the influence and power they're gaining. As Clay Shirky famously noted years ago, "Institutions will try to preserve the problem to which they are the solution." That appears to absolutely be the case here. It's why there's so much FUD. The NSA and the rest of the intelligence community has built up the threat to be this huge issue that requires huge dollars as well. And once they have the huge dollars and the giant staff, they have to keep that up. So they have to create a continuing problem for which they are the solution -- and since it's all (mostly) done in secret, you get this nefarious circle (as opposed to virtuous), in which more FUD is spread, more money flows in and everyone has to justify themselves to keep it all going. Whistleblowers like Binney and Snowden actually disrupt that circle and put a threat to the money flows.Permalink | Comments | Email This Story

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In yet another case in which police illegal arrested someone for filming the police, the police have been forced to pay up. Unlike the big Simon Glik case, it appears that the NYPD (under new management!) decided to do its best to settle the case and get it off the books. They're paying $125,000 to Dick George, who recorded police doing one of its infamous stop-and-frisks. According to George's lawsuit, not only did the police arrest George and delete the photos from his camera (after he told the kids who were stopped and frisked to get the cops' badge numbers next time), the police flat out knew what they were doing was illegal -- telling George to sue the police: “Now we’re going to give you what you deserve for meddling in our business and when we finish with you, you can sue the city for $5 million and get rich, we don’t care,” Lt. Dennis Ferber said, according to the suit filed in Brooklyn Federal Court. Not surprisingly, the new mayor and new police chief didn't want this case to go very far, and got George to agree to a $125,000 settlement. Will victories like this get police to stop these kinds of things? Doubtful, but it's still good to see.Permalink | Comments | Email This Story

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As rights holders have made clear time and time again, your digital purchases are never truly yours. If someone decides to shut down a service, it's likely your purchases will vanish into the ether along with the service itself. If you want to resell your mp3s or ebooks, you're facing any number of unsettled legal questions and various industries pushing the assertion that your money was exchanged for a limited use license, rather than the acquisition of a product. But there may be some changes forthcoming. As The Digital Reader reports (via Ars Technica), Delaware has just passed a law that allows its residents to pass their digital purchases licenses on to their heirs. Last week Governor Jack Markell signed House Bill (HB) 345, “Fiduciary Access to Digital Assets and Digital Accounts Act”, giving heirs and the executors to estates the same rights over digital content which they would have over physical property. In a case of life imitating art, the new law basically accomplishes what the Daily Mail fictitiously reported in 2012 that Bruce Willis wanted to accomplish; ebooks and other digital content can now be inherited. That's one small right restored. While rights holders still demand real money for permission to use their offerings in pre-approved ways, at least a few people in the US won't have the lives of their digital goods expire along with them. The clunkily-titled Uniform Fiduciary Access to Digital Assets Act law does the following: The Uniform Fiduciary Access to Digital Assets Act solves the problem using the concept of “media neutrality.” If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. UFADAA governs four common types of fiduciaries: personal representatives of a deceased person’s estate; guardians or conservators of a protected person’s estate; agents under a power of attorney; and trustees. UFADAA defers to an account holder’s privacy choices as expressed in a document (such as a will or trust), or online by an affirmative act separate from the general terms-of-service agreement. Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA. Even so, the ruling is very limited. Tech companies outside of Delaware will not be affected. The new law in Delaware only affects Delaware residents and will be probated there. It does not affect the tech companies registered in the state, according to one spokesperson. “If a California resident dies and his will is governed by California law, the representative of his estate would not have access to his Twitter account under HB 345,” Kelly Bachman, a spokesperson for the Delaware governor’s office, said by email. Some goods, like purchases, can be passed on. Online accounts will likely remain out of reach for now. The Uniform Law Commission is pushing for adoption of these sorts of laws elsewhere, so there could be more of this in the future. Things are looking up a bit for consumers, it would seem. Year by year, consumers are gaining more rights over the digital content they buy. If this trend continues then it won’t be long before consumers have the same rights over digital content as they do over physical goods. There's still a long way to go before an iTunes accounts resembles a box full of CDs or records and there's still too many here-today-gone-tomorrow platforms/services selling what amounts to limited digital access instead of actual products, but a small restoration of the right of first sale is still a step in the right direction. The real problem is that we need these laws in the first place, which is the direct result of rights holders placing their piracy fears above their paying customers' concerns. That attitude will be much tougher to fix. Permalink | Comments | Email This Story

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Jason Kottke of the always informative and entertaining kottke.org just posted a very interesting look at the genesis of UK law enforcement. In 1829, the UK government shifted policing from a paramilitary force comprised mainly of volunteers to an organized force comprised of citizens. But it made it very clear that UK police derived their power from the consent of the people, rather than from a government mandate. The government referred to it as "policing by consent," and even though the guiding principles are nearly 200 years old at this point, they still sound revolutionary, especially in light of escalating militarization, misconduct and abuse by law enforcement here in the US. (Side note: this was released via a UK Freedom of Information request that was posed as a question. "Could you please confirm precisely what the Home Secretary meant by the statement ‘policing by consent’, with a practical example to demonstrate if possible." That's something that also sets apart the UK government from the US government. I cannot imagine a situation where a FOIA request answers a direct question. The standard m.o. here is to demand requesters know as much as possible about the information they're seeking before they ask for it.) The Nine Principles of Policing 1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment. (US: militarized police and the highest incarceration rate in the world) 2. To recognise always that the power of the police to fulfill their functions and duties is dependent on public approval of their existence, actions and behaviour and on their ability to secure and maintain public respect. (US: police have power whether or not their actions and behavior meet with public approval. When met with disapproval, misconduct and enforcement activity tend to increase, rather than decrease.) 3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws. (US: even law-abiding citizens have reason to fear the police.) 4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives. (US: use of force and compulsion normal "tools of the trade," applied generously and disproportionately.) 5. To seek and preserve public favour, not by pandering to public opinion; but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour; and by ready offering of individual sacrifice in protecting and preserving life. (US: too much to detail here. Minorities ("wealth or social standing") receive the most police "scrutiny." Very rarely are police interactions marked by courteousness and good humour. And the UK has no unwritten "First Rule of Policing" (make it back home uninjured/alive; constant deference to officers claiming they "feared for their safety"). BY READY OFFERING OF INDIVIDUAL SACRIFICE IN PROTECTING AND PRESERVING LIFE. If you don't want to be in dangerous situations, don't become a cop -- apparently the only dangerous job in the US that puts the employee's safety ahead of the general public's. 6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective. (US: physical force is generally deployed at the first sign of potential non-compliance, even if said non-compliance is simply verbal "contempt of cop." Physical force should also escalate immediately at the first sign of a struggle and continue escalating until suspect is completely incapacitated/in a coma/dead.) 7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence. (US: the thin blue line, now thicker than ever, continues to isolate police not only from the public they serve, but from accountability.) 8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty. (US: too many police have emptied their weapons into suspects in retribution for endangering officers. Too many officers have handed out extra physical force as payback for flippant comments, moving too slowly, or anything other situation where unearned respect isn't being shown.) 9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them. (US: Ferguson, Missouri. Beyond that, police in the US seem to believe a show of force is a good deterrent. This is part of the reason they acquire military vehicles and weapons. Intimidation seems to be preferable to competent, efficient policing. My-gun's-bigger-than-yours policing is nothing more than treating playground one-upmanship as a credible law enforcement tactic.) You can choose anything on this list and find its correlating inversion on display in the US. Not once is "officer safety" cited as a reason to use physical force. Not once does the list make a demand for unearned respect. And above all, it makes it clear that this power is granted by the consent of the public, not provided by the State. What the public gives, it can rescind. The government's only involvement is administrative. US police forces talk a good game in mission statements about "honor" and "integrity," but not once do they acknowledge the fact that they are servants of the public or that they are, in fact, just the public in different clothing. They are part of the government, an institution which derives from the consent of the governed. But there is no way to revoke that consent. Police unions and government officials continue to shelter misbehaving officers and any punishments handed down are delayed and largely ineffective in deterring future misconduct. With rare exceptions, police officials circle the wagons when one of theirs is accused of excessive force or criminal activity. The public is treated as irritating, ungrateful outsiders who don't realize how difficult it is to be a cop and who are better surveilled than heard. Permalink | Comments | Email This Story

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Back in April, we wrote about a really enraged John Steele (famous for his likely leading role in the Prenda scam) angrily hitting back against a sealed motion for contempt against him, arguing that he was lying and hiding assets in his attempt to plead poverty, after a court ordered Team Prenda to file detailed financial statements. They did not do so. Instead, as the court noted: In the case where there has been no attempt to comply with the Court's order, plaintiff's counsel must show a "complete inability to pay." ... Plaintiff's counsel, "stated differently, . . . [has] the burden of establishing clearly, plainly, and unmistakably that compliance is impossible." .... The Court finds that plaintiff's counsel has not met its burden. They submitted incomplete, and to say the least suspicious, statements of financial condition. Attached to each statement was a letter from their certified public accountant ("CPA"). In these letters, the CPA indicates a departure from generally accepted accounting principles. He further notes that plaintiff's counsel elected to omit substantially all of the disclosures required by generally accepted accounting principles. The Court finds these statements insufficient to establish plaintiff's counsel's inability to pay. Following that, lawyers Dan Booth and Jason Sweet filed the motion that got Steele so angry -- highlighting significant evidence that Steele and others had hid money offshore. Steele hit back at that, with little effect, and, as Fight Copyright Trolls now alerts us, the original filing that reveals some of Steele's financial shenanigans has been unsealed. Not surprisingly, it paints a picture of a lot of "shell games" for how the money was moved around. Here's just some of the details: 1. On December 13, 2011, Steele opened a CitiCard account. In the application for the account he identified his income amount as $900,000.00 and his total income for 2011 as $930,000. See Exhibit A hereto. 2. A statement from Fifth Third Bank shows that Steele had $2,177.005.27 in personal savings accounts there on September 5, 2012. See Exhibit B hereto. By September 25, 2012, two deposits totaling that amount had been transferred from Steele’s personal account into Prenda’s IOLTA account. The remainder of that money was then wired to an unknown destination the next day. See Exhibit C hereto. 3. On December 18, 2012, Prenda Law, Inc. (“Prenda”) paid out $5,000.00 to McCullough Sparks, an asset protection law firm located in Provo, Utah. See Exhibit D hereto. McCullough Sparks promotes its key service as the “541 Trust,” which “removes assets from your personal ownership and from any disclosure of your personal assets. It is a private document and it cannot be discovered through any public records.” See Exhibit E hereto. A CPA would not know about such a trust unless Plaintiffs’ Counsel disclosed it to them. 4. Plaintiff’s Counsel brought this case, like hundreds of others, as part of their coercive litigation settlement practice. See Dkt. No. 61 pp. 14-19. Between 2010 and 2013, when that practice was at its height, BluePay, one of several online credit card processors they used to process settlements from Doe defendants, processed more than $4.4 million in settlement monies, paid out to Prenda, Steele Hansmeier PLLC, Media Copyright Group, LLC, and LiveWire Holdings, LLC. See Exhibit F hereto; see also Dkt. No. 124 p. 4 n.3 (detailing relationships between Plaintiff’s Counsel and these and other non-parties). 5. Smith’s subpoenas sought information about eighteen closely related non-parties. See Dkt. No. 116-1; Dkt. No. 124 p. 4 n. 3. The non-parties opened at least forty-seven bank accounts in just two of the banks subpoenaed since 2010, and have closed all but a few of those accounts. Several of these accounts were opened and shut so quickly as to suggest that Plaintiff’s Counsel have transferred monies between accounts and related entities in a deliberate attempt to obscure its sources and their current holdings. For example, on August 13, 2012, Steele withdrew $29,924.56 from Media Copyright Group, LLC. See Exhibit G. He then opened two Fifth Third Bank accounts in his personal name the same day, depositing $27,924.56 into the account identified in Exhibit H and $2,000 into the account identified in Exhibit I. He then closed the account in Exhibit H on September 25, 2012, transferring all its funds into the other account in Exhibit I, which he closed on January 7, 2013 (after transferring $1,000 to Prenda Law, Inc. on October 2, 2012.). 6. Likewise, on December 15, 2011, John Steele transferred $159,000 from his personal account to that of Steele Law. See Exhibit J. That same day, Steele Law transferred $160,000 into the account of Miami Beach Consulting (“MBC”). Id. MBC is a business owned by John Steele’s wife, Kerry Steele (neé Eckenrode). See Exhibit K. Four days later, $150,000 of that money was wired to an unknown destination via Sabadell Untd. Bank, a subsidiary of Banco de Sabadell, S.A. and provider of international banking services.6 Miami Beach Consulting’s account was closed two months later. See Exhibit L. 7. Duffy and Steele are the two signatories Prenda’s IOLTA and operating accounts with Fifth Third Bank. See Exhibit M hereto. This tends to refute Steele’s repeated denials that he has an ownership interest in Prenda.7 Similarly, and despite his denials otherwise, Paul Hansmeier was a partner in Media Copyright Group (a/k/a/ 6881 Forensics), the IT firm which Plaintiff’s Counsel used to identify alleged infringements. A check made out to Media Copyright Group from Alpha Law and signed by Hansmeier clearly states “capital contribution” “for 50% interest” See Exhibit N hereto. In the footnotes, it also highlights that the use of "Steele Law" for transferring money is especially suspect, given that Steele claimed that Steele Law was gone as an entity ten months earlier. The filing also discusses money transfers to Latvia, combined with evidence that Steele had been reading about hiding money in Latvia with a program designed to get you a Latvian passport and citizenship. It's still somewhat circumstantial evidence, but as FCT notes, it's somewhat surprising that Steele apparently missed the deadline to try to keep this particular document sealed... On top of that, in a second filing, even more questionable moves are revealed. Again, just a snippet: A. Sabadell Bank. Smith has identified transactions between accounts owned by Steele and Sierra Investment Partners (“Sierra”) totaling $212,125.00. See, Ex. Q. Sierra is a business Steele co-owns with Robert Balzebre that maintains an account at Sabadell Bank. See, Ex. R. Mr. Balzebre has been involved with Steele in several business ventures going back to 1997—including Steele Hansmeier. See Ex. S. Continued discovery would clarify the true extent of Steele’s financial holdings. B. ING. Hansmeier transferred at least $62,979.00 into an account at ING (now owned by Capital One). See Ex. T. Similarly, Hansmeier has transferred $515,000 to Monyet LLC with the notation that such checks were for “estate planning.” See Ex. U. Smith can only surmise that Monyet’s account(s) may also be found at ING. Said company has no discernible address, officers, employees, products or services—but a transfer from Livewire indicates who the owner is: “Monyet/Paul Robert Hansmeier.” Id. C. Pershing, LLC. Steele’s frenzied attempt to prevent GMS Group, from complying with discovery though Smith has not yet subpoenaed them, is now understood. Dkt. No. 158. Documents produced by Pershing include statements from GMS Group. Pershing is a clearing firm for GMS Group, and while it has in its possession some documents from GMS Group, it by no means has them all. What Smith was able to obtain indicates Steele transferred via GMS Group in excess of $200,000.00 to various accounts, and under at least two other of his business aliases/shell companies to banks with branches in the US, UK and Canada. See Ex. V. Remember how, among other things, Judge Wright had referred Team Prenda to the IRS? I wonder if they'll be interested in some of these transactions....Permalink | Comments | Email This Story

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Wearable devices would be a whole lot more convenient if they didn't need to be charged regularly -- if only self-winding watches could also be smartwatches. It's not an entirely crazy idea, but smartwatches would have to be very energy efficient and not use much power in the first place. Nano-generators and ambient energy harvesting aren't quite ready to keep the latest gadgets going indefinitely, but folks are working on this problem. One energy-harvesting nanogenerator made of zinc oxide nanorods can turn sound into electricity. A pocket-sized device with arrays of these little nanorods can convert sound vibrations into a 5-volt power supply. Not exactly a revolutionary battery replacement... yet? [url] Controlled bursts of plasma could transfer energy quickly from location to location, but it's not that easy to direct plasma outside of a vacuum tube surrounded by electromagnets. Researchers just need a little more funding to get 1.21 GW of lightning into a flux capacitor, and then we'll be all set. [url] Thermoelectric materials can convert heat into electricity, but decades of research hasn't yet produced a thermoelectric generator that wasn't for niche or novelty applications. A thermoelectric generator (TEG) prototype could be attached to solar heat collectors or the engine of a vehicle to capture waste heat, but commercialization is still years away. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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We all know that Nintendo wraps itself in copyright law like some kind of really boring security blanket. Every once in a while, the company will make some noise about being more open and accommodating to its biggest fans and the like, but that noise is usually followed up by a rash of takedowns and C&D letters. The most recent battlefront Nintendo has entered in the war against its own fans is the floral planter arena. One woman, admittedly inspired by her love of the Pokemon game series, shared her design for a 3D printed planter on a commerce website. Claudia Ng had recently purchased a 3D printer, and one of her first projects was to create the model for a Pokémon-themed planter for a friend. She posted it online, and it quickly went viral...She then put the design on Shapeways, a site that allows you to create and share your own 3D-printed objects, and once again the design blew up. It's a simple idea, but one that we've yet to see in official merchandise. The game the design came from wasn't named, but the listing made a few winking references to the Pokémon franchise. Sales went well, but of course it couldn't last. No, it couldn't last, because Nintendo sent a cease and desist notice to Shapeways, indicating that the planter was infringing on its copyright. Shapeways complied and took the design down and all was just and right in Nintendo's world again. This, by the way, is a picture of what corporate giant Nintendo was so determined to keep from spreading. You can certainly see why Nintendo was so super-concerned, because if you squint just right, spin around three times, and are a little drunk, that thing looks like a bulbasaur with an artichoke coming out of its ass. It should be noted, by the way, that there's no competing licensed product from Nintendo that's taking sales away or anything. Not that that fact is keeping Nintendo from wanting all the money generated in addition to the takedown, of course. "Shapeways got a cease and desist from Pokémon International for infringement. They received this on Friday, and Shapeways took it down within the last hour," Ng told Polygon. "They are asking for all the money associated with this model and shapeways will not be printing or shipping any order for the past few days." She may be put in contact with Pokémon International, and she's not sure if anything will come from that potential meeting. This outcome isn't very surprising for anyone involved. "I thought that this would fall under the boundaries of derivative and transformative work. I'm also not a lawyer, and I guess that is the least defined of rules and regulation," she explained. Against Nintendo, it's unlikely a simple craftsperson like Ng will prevail. And, just to be clear, given the admitted inspiration by the Pokemon character, it's not like Nintendo is exactly wrong that there is some infringement here. It's just that there's absolutely no reason to throw the legal hammer around instead of working out some kind of other arrangement with one of their biggest fans. But, hey, you know...Nintendo. Permalink | Comments | Email This Story

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Hot off of doing its best to kill off any commercial use of drones, the FAA is now looking to ground some attempts at building ride sharing for amateur pilots. While plenty of people are referring to AirPooler as an "Uber for airplanes," it's not really like that. Here, the idea is that if you're a pilot flying somewhere, you can post your plans and if someone was looking to travel that route, they can hop on board and pay some of the fuel costs. The end result basically benefits everyone. The pilot has lower costs, the traveler gets a cheap flight and everyone's better off. This kind of thing happened informally all the time in the past, usually by word of mouth and bulletin boards. Airpooler is just formalizing the process. But the FAA... doesn't like it. It claims that any offsetting of the pilots costs makes it a commercial endeavor and that violates the FAA's rules on private (non-commercial) pilots. Private pilots as a general rule may not act as pilot in command of an aircraft that is carrying passengers or property for compensation or hire nor, for compensation or hire, may they acts as pilot in command of an aircraft. Now, there is an exception to that rule if the passengers are paying a pro rata share of the expenses of the flight. So this shouldn't be a problem, right? Wrong. The reasoning here is about as opaque as a foggy morning in San Francisco. The FAA repeats that there's an exception for expense sharing, but then argues that AirPooler can't rely on this exception. As such, although § 61.113(c) contains an expense-sharing exception to the general prohibition against private pilots acting as pilot in command for compensation or hire, a private pilot may not rely on that narrow exception to avoid the compensation component of common carriage. For this reason, the FAA has required a private pilot to have a common purpose with his or her passengers and must have his or her own reason for travelling to the destination. Likewise, although airline transport pilots and commercial pilots may as as pilot in command on an aircraft carrying passengers for compensation or hire, they may not conduct a commercial operation involving common carriage without obtaining a part 119 certificate. You have urged that the test for compensation in commercial operations is "the major enterprise for profit" test set forth in the definition of commercial operator. Specifically, you state that a pilot would not be engaged in a major enterprise for profit "if accepting only the cost reimbursements allowed under § 61.113." Based on the fact that the FAA views expense-sharing as compensation for which an exception is necessary for private pilots, the issue of compensation is not in doubt. Therefore, the "major enterprise for profit" test in § 1.1 is wholly inapplicable. Accordingly, we conclude that, with regard to pilots using the AirPooler website, all four elements of common carriage are present. By posting specific flights to the AirPooler website, a pilot participating in the AirPooler serve would be holding out to transport persons or property from place to place for compensation or hire. Although the pilots participating in the AirPooler website have chosen the destination, they are holding out to the public to transport passengers for compensation in the form of a reduction of the operating expenses they would have paid for the flight. This position is fully consistent with prior legal interpretations related to other nationwide initiatives involving expense-sharing flights. Got it? I've read it over half a dozen times and I'm still confused. There's an exception that says that a passenger can pay their share of the expenses and it doesn't make it a commercial flight, but... that doesn't apply here because it's compensation, as clearly determined by the fact that there's an exception for this kind of compensation. Say what? AirPooler apparently plans to ask the FAA "to elaborate" though the FAA's historical approach to almost any innovation seems to be "well, let's wait and not really make a decision for as long as is humanly possible." End result: significantly less innovation, not just from the likes of AirPooler, but all of the entrepreneurs who won't even try to build startups in the space.Permalink | Comments | Email This Story

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Satire: some people just don't get it. More specifically, some folks out there don't have the capacity to read what is an obviously satirical news piece and/or headline and recognize it as such. You all know what I'm talking about: you jump on Facebook and see an article shared by a "friend" that contains the headline, "Barack Obama Admits To Being A Muslim Terrorist Puppy-Puncher" and the accompanying "I told you so!" commentary from your friend sends you into a snigger as you see that it's a link to The Onion, Clickhole, or Infowars. You know, sites that are clearly filled with joke articles that nobody in their right minds would believe. This is one of the great joys of Facebook and social media in general: watching your friends fall for bullshit. In fact, I'm pretty sure that's what Facebook is for. But Facebook doesn't agree, apparently, as the site is now experimenting with tagging links from these kinds of sites with a "satire" notification. We can only assume this was implemented as a reaction to users believing that Onion links are nonfiction reports (you can lose hours flipping through Literally Unbelievable, a site that catalogs such boneheaded moments), but we're not sure what compelled Facebook to go so far as to assert editorial control. What's more confusing is this limited implementation, which itself takes a while to explain. Original posts on friends' feeds and The Onion's official Facebook page don't come with a tag. If users save the article to a read-later list, the tag will vanish as well. And other satiric sites, particularly The Onion's newest sibling site, Buzzfeed-spoof Clickhole, are immune to the tag. Forget confusing, this is yet another inch down the slippery slope in the war on humor and me-getting-to-make-fun-of-people, and I won't stand for it, damn it. People I haven't seen since high school getting fooled by The Onion has been one of the great pleasures in my life and it's just not right for Facebook to chip away at that fun just because it appears to have finally acknowledged that its users are, by and large, idiots. For what it's worth, The Onion itself appears to concur with this assessment in an article reacting to Facebook's move. DOYLESTOWN, PA—Describing him as frequently frustrated and overwhelmed, sources confirmed Monday that local Facebook user Michael Huffman is incredibly stupid. “I need stuff easy,” said the absolute dipshit, adding that he finds many things confusing, and that those things must be changed so that they make sense to him. “I like looking at things on Facebook, but I don’t understand a lot. Help, please.” At press time, someone had reportedly fixed everything for the goddamn imbecile. Funny, but here's an idea. Instead of ruining everyone's righteous good time by tagging satire articles for people, how about instead we work on some kind of integration between Facebook and Snopes? That would be twice as useful and none of the nonsense I regularly combat with Snopes on Facebook makes me laugh, so no harm no foul. Guys? Yes? Permalink | Comments | Email This Story

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Back in April, humble Peoria, Illinois, made national news when its mayor and police department combined forces to shut down a parody Twitter account. The account, named after Mayor Jim Ardis, sent out a few days worth of sex-and-drugs tweets, something that very obviously would not have come from a mayor's actual Twitter account (exception: Rob Ford). This very public display of stupidity may cost the City of Peoria, along with the many other defendants named in the lawsuit filed on behalf of the Twitter account owner (Jon Daniel) by the ACLU. Obviously, the First Amendment was all but forgotten in the mayor's quest to make this account -- one that was only seen by Mayor Jim Ardis and a handful of others -- disappear. As is to be expected in responses to allegations, almost everything damning is denied. The only allegations the city's lawyers affirm are those that can't be refuted. Freedom of Information requests by Matt Buedel of the Peoria Journal Star brought the warrant application and email conversations between the police department and Mayor Ardis into the public eye. As a result, the city's plausible deniability options are extremely limited. But that hasn't stopped the city from making some very questionable denials. (via Ars Technica) Defendants admit that from March 9 through March 19, 2014, Plaintiff tweeted from a twitter account, @peoriamayor, which used a picture of Defendant Ardis, the mayor of Peoria, as the account’s avatar. Defendants further admit that they pursued available legal means to shut down the account and to identify and pursue legal action against its creator. Defendants deny that they embarked on a plan to violate Plaintiff’s constitutional rights. Defendants admit that, after obtaining appropriate warrants, Peoria Police Department officers searched Plaintiff’s residence and seized certain of his personal property, and imaged certain personal information as a result. Defendants deny that they arrested, detained and interrogated Plaintiff for the crime of false personation of a public official. While there's no record that indicates the defendants "embarked on a plan" to violate Daniel's First Amendment rights, his rights were violated all the same. But the last sentence skirts the edges of plausibility. While it's true that the police never issued an arrest warrant for the charge of false personation, it did use that charge to obtain a search warrant of Jon Daniel's home. Daniel was picked up by the police and questioned about his involvement with the Twitter account, but he was never truly arrested. Instead, he was detained -- the sort of thing that can turn indefinite while simultaneously freeing the police from having to file any possibly damning paperwork. So, the first part ("arrest") didn't happen. But the last two ("detained," "interrogated") did. The claim that the city used "legal means" to pursue the Twitter user is also dodgy. While all the appropriate paperwork was indeed legal, the charge under which they were acquired was bogus, as became completely apparent when the State's Attorney's office refused to prosecute. While still in full denial mode, the city also takes issue with certain characterizations made by the plaintiff. 28. On March 20, 2014, Ardis and the City, in a letter to Twitter written by the Interim Corporation Counsel for the City, threatened to file a federal lawsuit seeking an injunction against Twitter to terminate the Twitter account. Twitter suspended the Twitter account that same day. ANSWER: Defendants admit the allegations contained in paragraph 28, except Defendants deny the characterization of the letter as “threatening.” A letter that informs a party that efforts will escalate if cooperation isn't forthcoming is, by definition, a "threatening" letter. There's no way around it. The only way the city counsel's letter wouldn't have been threatening is if it hadn't been written at all. The defendants may not like the characterization (which, it should be noted, is a characterization the plaintiff never makes in the allegations), but that's an inarguable point. Friendly letters don't contain warnings about potential legal actions. Further on, the city's lawyers attempt to deny the plaintiff felt the way he claims to have felt. At the police station, Mr. Daniel was told he had to take everything out of his pockets before entering an interrogation room. Mr. Daniel emptied the contents of his pockets, which included his cellular telephone, and placed the items on a chair in the station. He was then taken into an interrogation room. Mr. Daniel reasonably believed he was not free to leave the interrogation room or the police station. ANSWER: Defendants admit the allegations contained in paragraph 37, except Defendants deny Plaintiff’s characterization of the interview room as an interrogation room, and further deny that Plaintiff reasonably believed he was not free to leave when he was at the police station. I'm not sure how a defendant can claim a plaintiff is wrong about their beliefs. We're not talking about creation vs. evolution or round earth vs. flat earth but whether Daniel felt he could just get up and walk out of the interrogation/interview room. Most people -- many of them "reasonable" -- feel that being detained by police officers only ends when the officers say it ends. They may be able to force the issue by asking (repeatedly) "Am I free to go?" but it's a nearly universal feeling that one does not simply leave an interview room -- especially when a police officer or two are standing in it. Not only is it a terrible claim to make in general, but it's an awful thing to say in a court document. This is the City of Peoria telling the judge that it knows how Daniel felt when he was detained and he didn't feel the way he says he felt in his allegations. That's a pretty audacious statement even if it is the sort of thing that routinely graces defendants' response filings. And, finally, the city asks everyone to trust that it hasn't dug through the contents of the numerous electronic devices that were seized. Defendants deny that Defendant Hughes searched Plaintiff’s electronic devices. Defendants admit that Defendant Feehan imaged Plaintiff’s cell phone, and that other electronic devices which may have belonged to Plaintiff may also have been imaged for subsequent review by detectives, but state affirmatively that the State’s Attorney’s Office indicated it would not be pursuing charges against Plaintiff before any such data was reviewed and that, as a result, it was determined that the data would not be reviewed. First off, we're expected to believe no searching occurred (or will occur) despite the fact that the electronics were imaged by the Peoria police. At the very latest, the police secured warrants to search the electronics by April 17th. It wasn't until April 23rd that it was announced that the State Attorney was dropping the charges. That's nearly an entire week. (Daniel's phone -- seized during his "interview" with the Peoria PD -- wasn't returned until May 2nd, and only after he non-threateningly threatened legal action.) The investigation was still open during the intervening six days and the police had secured warrants, so it seems highly unlikely no one took at look at the data obtained. And unless someone specifies otherwise during the course of this lawsuit, the police still have the imaged content. The denials are followed by a three-page list of affirmative defenses that states the rest of the defendants are either entitled to qualified immunity or not directly liable for these actions. The most ridiculous claim here is that shutting down a parody Twitter account (one that was marked as a parody before most of the legal action took place) wasn't a violation of Daniel's First Amendment rights. With regard to Plaintiff’s First Amendment claim, Defendants have qualified immunity from liability for the damages claimed by Plaintiff because Defendants did not violate any clearly established constitutional rights of which a reasonable person would have known. So, the city's lawyers feel Jon Daniel "reasonably" should have known he could just walk out of a police interview room at any time, but that shutting down a Twitter account and searching a house for electronics related to it wasn't the sort of thing that any "reasonable person" might find to be a violation of their First Amendment rights. I realize a lot of this is just normal defensive legalese, but it doesn't make some of these assertions any less ridiculous, especially considering the events leading to this litigation -- namely, a mayor's offense at a clearly parodic Twitter account culminating in the seizure of every electronic device in Daniel's house. The fact that internal emails show that the police knew they had no solid legal footing to pursue this case is going to hurt the city's claims that everything about this debacle was lawful and reasonable.Permalink | Comments | Email This Story

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If you've been watching what's going on in Ferguson, Missouri, lately, you're quite well aware that the police have been basically spraying tear gas almost everywhere they can. Suddenly, articles are springing up all over the internet about the use of tear gas -- which, it turns out is technically banned for use in warfare as a chemical weapon. The history of how that came about, however, is a bit complicated, as this State Department notice on tear gas discusses. Basically, there was a dispute over whether or not tear gas violated the Geneva Conventions. Here's a snippet: In 1966 the Communist countries strongly criticized the United States for using tear gas and chemical herbicides in Vietnam. In the General Assembly, Hungary charged that the use in war of these agents was prohibited by the Geneva Protocol and other provisions of international law. The United States denied that the protocol applied to nontoxic gases or chemical herbicides. Joined by Canada, Italy, and the United Kingdom, the United States introduced amendments to a Hungarian resolution that would have made the use of any chemical and bacteriological weapons an international crime. In its final form the resolution called for "strict observance by all states of the principles and objectives" of the protocol, condemned "all actions contrary to those objectives," and invited all states to accede to the protocol. During the debate the U.S. Representa-tive stated that it would be up to each country to decide whether or how to adhere to the protocol, "in the light of constitutional and other consider-ations." Interpretation of the protocol remained a thorny problem. In his foreword to a U.N. report on chemical and biological weapons (July 1, 1969), Secretary General Thant recommended a renewed appeal for accession to the protocol and a "clear affirmation" that it covered the use in war of all chemical and biological weapons, including tear gas and other harassing agents. Discussion in the Conference of the Committee on Disarmament (CCD) showed that most members agreed with the Thant recommendations. Swedish Ambassador Myrdal, a strong advocate of the broad interpretation, stressed the danger of escalation if nonlethal chemical agents were permitted. She also pointed out that the military use of tear gases should be distinguished from their use for riot control and that there was a similar difference between using herbicides in war and employing them for peaceful purposes. On the other hand, U.K. Disarmament Minister Mulley held that only the parties to the protocol were entitled to say what it meant. Years later, there was a push to officially renounce the use of chemical weapons in war, which became the chemical weapons treaty... but it included exceptions for domestic use. Those exceptions were mainly pushed by the US: The 1993 Chemical Weapons Convention doesn't apply to domestic law enforcement. (The United States was a major proponent of the exemption, fearing that the convention might be interpreted to prohibit lethal injection.) The Washington Post has a detailed look at how it's being used in Ferguson, and how the police there seem to think it's perfectly safe: Ferguson police chief Tom Jackson has defended the use of tear gas. “There are complaints about the response from some people,” he said, “but to me, nobody got hurt seriously, and I’m happy about that.” But another report highlights that the negative health effects of tear gas are severely underestimated by law enforcement groups who use it. In an interview with Vox.com, Sven-Eric Jordt, a scientist who studies tear gas, warns that law enforcement has become too complacent with this narrative that tear gas is a harmless way of dispersing crowds: I frankly think that we don't know much about the long-term effects, especially in civilian exposure with kids or elderly or people in the street who might have some kind of lung disease already. There's very few follow-up studies. These are very active chemicals that can cause quite significant injury, so I'm concerned about the increased use of these agents. [....] I'm very concerned that, as use has increased, tear gas has been normalized. The attitude now is like, this is safe and we can use it as much as we want. Even as it's been banned for use in war. Something seems... very, very wrong with this situation.Permalink | Comments | Email This Story

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Today's copyright-induced stupidity is brought to you by… a whole host of regulatory institutions. An anonymous Techdirt reader sent in a pointer to this ridiculous warning that greets those accessing the National Association of Legal Assistants practice tests. (Press "Sign In" to view the legal threats pop-up.) These online practice tests and all items contained herein are protected by federal copyright law. No part of this examination may be copied, reproduced or shared in any manner, in part or whole, by any means whatsoever, including memorization or electronic transmission. While I realize there have been several attempts to broaden the coverage of copyright and extend its length towards the far end of perpetuity, I was unaware that federal copyright law now provides remedies for the creation of infringing memories. This would be merely inane (but still noteworthy), if this stupidity began and ended with the NALA's stern warning. But a search for that wording finds examples elsewhere. Here's the National Board of Chiropractic Examiners making the same ridiculous claim: These sample tests and all items contained herein are protected by federal copyright law. No part of these tests may be copied, reproduced, or shared in any manner, in part or in whole, by any means whatsoever, including memorization or electronic transmission. Here's Michigan State University going one step further than the previous two and basically stating that studying for a test is copyright infringement. The examination and the items contained therein are protected by copyright law. No part of this examination may be copied or reproduced in part or whole by any means whatsoever, including memorization, note-taking, or electronic transmission. Who else thinks copyright law forbids the storage of infringing copies in the original cloud storage system, the human brain? American Board of Perianesthesia Nursing Certification Texas Pharmacy Technician Certification Board American Association of Veterinary State Boards Oncology Nursing Certification Corporation National Commission for Health Education Credentialing, Inc. The list goes on from there, but as you can see, anyone offering some sort of expensive testing process/licensing claims you can't memorize their tests. How they aim to prevent this remains unanswered. Presumably, if someone duplicates the test from memory and offers these materials to others, they would pursue this as infringement. It's clear they're trying to head off students selling questions and answers, something that could undermine the certification system. (Of course, these agencies could change their questions from year-to-year to head this off, but that would be far more difficult than just smacking around applicants with highly-dubious legal language.) But claiming that memorization is forbidden under copyright law is just idiotic. Unauthorized duplication and distribution might be, but creating cached copies in your mind while studying certainly isn't. It's an integral part of studying for tests. Throughout their educational existence, students use memorization to become familiar with the subject matter, and now, when they attempt to apply that in hopes of receiving certification, they're greeted with notices that say this practice is against the law. Then there's the question of fair use, that awkward part of copyright protection that many rights holders tend to ignore. A few sample questions being reproduced would be an obvious case of fair use, but according to the (literally) "don't even think about it" warnings, this would also be an actionable offense. A better solution would be to simply strike that asinine wording and deal with actual duplication of test materials that stretch beyond the limits of fair use. Those performing these acts of infringement are generally in it to profit from those who can't be bothered to learn the material. Chances are, most people wouldn't view the edited legal preamble as providing a but-I-can-store-it-in-my-brain loophole. The same goes for note-taking, which a few of these notices also single out. The problem isn't the person's notes, which are still personal. It's the duplication and distribution to the public. You can still keep people from taking notes during the actual tests, but you certainly can't keep them from remembering what they've seen. Permalink | Comments | Email This Story

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TorrentFreak has the exceptionally troubling story of a federal district court in Oregon issuing an incredibly broad and questionable order, effectively wiping a bunch of websites out, without ever letting the websites in question know that they were being "tried" in court. The request came from ABS-CBN, a giant Filipino entertainment company arguing infringement, of course. But the argument against these sites is somewhat questionable already, made worse by the demand that the whole thing be done under seal (without alerting the site operators). Then Judge Anna Brown granted the temporary restraining order, basically deleting these sites from the internet, without even a sniff of an adversarial hearing. You may recall that the entertainment industry insisted that SOPA was needed for exactly these cases -- overseas sites they claimed were "rogue" sites dealing in infringement. They claimed there was no way to take them down. And, even SOPA had more limitations than what Judge Brown allowed here. If you have rogue judges like Brown issuing orders like this, who needs SOPA. It's already in place in her view of the world. The complaint itself is raising some questions, as it makes long-debunked claims such as saying that the sites use of "meta tags" boost how the sites show up in search engines. That may have been true in the 90s, but it hasn't been true for over a decade, at least. Further, the complaint argues that the site operators have some sort of proactive requirement to "implement means to prevent infringement," but the law requires no such tools or filters -- only that the sites properly respond to takedown notices for copyright infringement (trademark is a bit different, but the trademark claims here are also quite weak). The filing was done under seal based on the bogus excuse that if the sites operators were alerted they might be "tipped off" that something was happening and make an effort to prevent the sites from being shut down. We'll get into why that goes against Supreme Court precedent and the First Amendment in a moment, but first let's look at how broad and ridiculous the actual restraining order is. The judge grants the restraining order against the defendants ordering them to stop making use of ABS-CBN trademarks and copyrights, which isn't too surprising. But then stretches the order to include tons of non-parties to the lawsuit: Upon Plaintiffs' request, those with actual notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars, and domain name registreies or their administrators, shall cease facilitating access to any or all domain names and websites through which Defendants engage in the (i) copying, distribution, performance, and promotion of Plaintiffs' copyrighted works and\or broadcast content or (ii) use of the ABS-CBN Marks It also orders domain registrars to hand over the domains to ABS-CBN and to block further transfers. Again, all of this is done without ever notifying the defendants, who are named as Jeffrey Ashby, Lenie Ashby and a bunch of Does operating a variety of domain names. The ruling is extremely questionable. The whole reason why the entertainment industry pushed so hard for SOPA was because they knew you couldn't pull a stunt like this. It seems that Judge Brown doesn't know about this or doesn't care. That's what happens when you only hear one side of an argument in a case. However, as we've discussed in the past, such one sided rulings that shut down entire websites with no notice to the operators of those websites, are illegal under the Supreme Court's ruling in Fort Wayne Books v. Indiana. When it comes to any sort of expressive content, the court held that seizing the content prior to an adversarial hearing violates the First Amendment: In a line of cases dating back to Marcus v. Search Warrant, 367 U. S. 717 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as "obscene." In Marcus, and again in A Quantity of Copies of Books v. Kansas, 378 U. S. 205 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a "procedure `designed to focus searchingly on the question of obscenity.' " Id., at 210 (quoting Marcus, supra, at 732). See also, e. g., Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968). We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U. S. 483, 492 (1973), the Court noted that "seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding." As a result, we concluded that until there was a "judicial determination of the obscenity issue in an adversary proceeding," exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492-493. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see New York v. P. J. Video, Inc., 475 U. S. 868, 874-876 (1986). Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979). It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule. Maryland v. Macon, supra, at 470. These same concerns render invalid the pretrial seizure at issue here. And yet... the judge appears to ignore that entirely. That's incredibly troubling for the precedent it sets. It may very well be true that the sites in question were engaged in infringing activity and deserve to lose any lawsuit filed against them. But it's also possible that they were not engaged in such activities -- and yet their sites are preemptively shut down and destroyed, without them even knowing there was a legal proceeding under way. That's prior restraint. I actually spoke to Rob Holmes, an "intellectual property cybercrime consultant" who is working with ABS-CBN in this case. Holmes is a Techdirt reader and someone whom I've had good discussions with on related subjects in the past -- but he's obviously defending this ruling. As he told me: The subjects will have plenty of opportunity in the near future to defend their actions. We proved beyond a shadow of a doubt that they were bad actors and, rightfully, the judge made us work hard to prove it. The reason a case is filed under seal is so that the criminals do not have time to put a contingency plan into action. Otherwise our efforts would not be effective. It's no different than conducting a raid on a crackhouse. This operation is not only making financial profit from their piracy, but their ads contained malware that infected the computers of all of their users. They are also employing other black-hat techniques in attempts to make money. You know my case history. The whack-a-mole game is a scam for all involved. From an IP enforcement standpoint, when someone messes with your company's livelihood, you stop them. And you make sure that all watching are discouraged. Period. I have to take issue with nearly everything that Rob says here. The fact that they'll have plenty of opportunity after the fact to dispute the charges against them is besides the point. Who knows if this is a legitimate operation or not, but if it is, and this action totally destroys it, then it's a bit late to go and complain to the courts after it happened. The whole point of the Supreme Court ruling discussed above is that you have to have an adversarial hearing first. The whole "contingency plan" argument is bogus as well. Any action required in the restraining order could easily be issued at a later date against any other sites that these individuals happen to set up as well. Rob's comparison of this to a "crackhouse" and calling them criminals is also dangerously misleading. First, this a civil, not criminal case. Second, as the Supreme Court noted, when you're dealing with things like drugs, it's reasonable to seize it. When it's expressive material, you can take or copy a single example for the purpose of evidence, but you cannot shut the speech down. But that's what the judge did here. The claim that the case "proved beyond a shadow of a doubt" that they were bad actors is simply laughable as well. Again, only one side of the story has been told here, and already in the complaint itself there are highly questionable arguments (such as arguing that the sites had a requirement to take proactive action against possible infringement). Whether or not you have to "play whack-a-mole" (and as a trademark expert, Rob should know that it's actually whac-a-mole) to stop scammers that does not remove the rights of those who operate the sites. And those rights include the First Amendment and the right to an adversarial hearing before expressive content -- websites -- are taken out of commission. Who knows if the site operators will really fight back here. They may not. They may, in fact, be engaged in infringement and not wish to challenge any of this in court. But, even so, that doesn't change the massively problematic nature of this move by ABS-CBN, and the denial of basic due process and the First Amendment to the operators of those sites. People have rights for a reason. We don't just stomp them out without due process just because one party has told a court that they're "bad actors."Permalink | Comments | Email This Story

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