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It's extremely difficult to win a defamation suit when the allegedly defamatory statements are THINGS THAT ACTUALLY HAPPENED. It was, on the surface, a bit ironic. A pro se plaintiff who was mentioned in an article about serial filers of lawsuits sued the article's authors and the newspaper that printed it. But the New London Day newspaper, reporter Karen Florin, executive editor Timothy Dwyer and Wyatt Kopp, who was interviewed by the newspaper, prevailed when a judge ruled that no one was defamed in an article that focused on the costs incurred by the court system and defendants when low-income plaintiffs whose court fees are waived file dozens of dubious claims. "After viewing all the revised complaints and evidence in this case, the court cannot identify any statement by Kopp that can be legally construed as defamatory," wrote New London Superior Court Judge Terence Zemetis, who added that "stating that a lawsuit is frivolous is an expression of opinion and is not defamatory." The plaintiff was Sylvester Traylor, a frequent pro se filer whose legal battles (mostly losing) can be found here, as well as other places around the internet. The article at the nominal center of this lawsuit (which was also filed against numerous other parties covering the same proposed bill targeting the abuse of in forma pauperis [waived fees] filing) didn't make any defamatory statements. Everything Traylor took offense to was the direct result of Traylor's own litigious activities. The article simply cites his multiple filings, as well as judges' reactions to his "protracted legal battles." It even directly quotes court orders and opinions -- which are far more damning than anything posted at the New London Day. In July 2012, the Second Circuit Court of Appeals dismissed one of Traylor's filings and warned him that "the continued filing of duplicative, vexatious, or frivolous appeals, mandamus petitions or motions may result in sanctions, including a leave-to-file sanction requiring Traylor to obtain permission from this Court prior to filing further submissions in this Court." In a November 2012 order dismissing a case Traylor brought against 12 state legislators, court officials and an insurance company, Hartford Superior Court Judge Carl J. Schumann wrote that Traylor's "litigious ferver is perhaps understandable, but it has clearly reached the point of becoming unnecessarily costly, wasteful and fruitless." In true "vexatious litigant" style, Traylor accused the paper of making "selective and calculated statements to slant the characterization of the plaintiff's legal cases," claiming its failure to cite the three judgments in his favor was some sort of defamation-by-omission. Even more legally-unsound, Traylor argued that the paper said something it didn't actually say. [T]hough the article did paint a picture that Traylor's lawsuits were "frivolous," it was clear that it was Kopp—not the newspaper—drawing that conclusion, the judge ruled. Not that Traylor has anything to worry about. The article he sued over (along with journalists covering the same bill for local TV stations) discussed an attempt to curb serial litigants who "abused" in forma pauperis privileges granted to indigent filers. The first sought greater legal review prior to allowing cases to advance. The latter suggested litigants could work off their comped filing fees by performing community service. Neither bill went anywhere, so Traylor is free to continue filing "frivolous" lawsuits until informed otherwise by presiding judges. He's also free to fight speech with speech, which the New London Day allowed him to do by printing his short editorial against proposed limitations to waived-fee filings. It also contacted him for the January article he sued over, posting his defense of his actions. And none of that was enough to prevent Traylor from filing another lawsuit. The ultimate defense against defamation accusations is the truth. This will probably be lost on Traylor as it's been lost on far too many serial litigants. If a person wants to complain (via the courtroom) that they've been misrepresented by "slanted" statements, they should at least have the self-awareness to recognize it's their actions that are creating this negative perception. Permalink | Comments | Email This Story

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Documents pertaining to the accidental killing of two men by US drone strikes in Yemen can continue to remain unacknowledged by the agencies guiding the strikes. A federal judge has ruled the CIA and Defense Department (DOD) do not have to confirm or deny whether they have records on the “factual basis for the killing” of either Samir Khan or Abdulrahman al-Awlaki, who were killed in two separate drone strikes in September and October of 2011. The heavily-redacted order does contain some good news, however. The presiding judge ordered the Dept. of Defense and the CIA to turn over FOIAed documents to the ACLU that contain "previously acknowledged facts," thus preventing the Dept. of Justice from turning real life into a bizarre fantasy world where previously disclosed information can be treated as though it was still locked up in the agency's "TOP SECRET" digital filing cabinet. But the obvious downside is this: because the government has been given permission to avoid confirming or denying the existence of the documents the ACLU is seeking, the search for more information on accidental deaths and collateral damage will still consist of issuing speculative FOIA requests, which will then result in more lengthy, expensive litigation. I'm pretty sure the involved agencies believe they can outlast FOIA requesters, especially if they continue to receive mostly-favorable decisions from judges who place more faith in the government and its assertions about national security than in those who view government secrecy with considerably more skepticism. The problem is that the government has the resources to fight long legal battles. Most FOIA requesters do not. This decision also further insulates the government from the repercussions of its own actions. By allowing the agencies to neither confirm nor deny the existence of these documents, it gives the government permission to deflect further inquiries into the oversight governing drone strikes -- and what it does when it suspects a strike has killed the wrong people. If one accepts the government’s claims that Khan and Abdulrahman’s deaths were “accidental,” one at least has to believe the government did some kind of review after the strikes once they recognized two US citizens had been killed. This is what the ACLU suspects. The ACLU and Center for Constitutional Rights have pursued a lawsuit challenging the constitutionality of the strikes, which killed the three US citizens. And, in this lawsuit, the ACLU has challenged the right of the government to keep information related to their deaths secret. This sort of information is definitely of the "public interest" variety and should be given more heft when weighed against national security concerns. The American public isn't necessarily supportive of this highly-secret program and considering its complete lack of say in the matter, the least it should be given is the opportunity to more closely examine the accountability process. Instead, the opinion allows the government to redact much of what it can't Glomar into nonexistence with the most abused FOIA exemption: b(5). Nominally for "deliberative process" documents only, the exemption has expanded to cover almost anything the government doesn't want to (immediately) reveal. About the only way to remove a b(5) exemption is through the courts -- an expensive process with low odds of success. Permalink | Comments | Email This Story

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The Quicklock looks like a normal padlock but does not require an extra set of keys or a memorized combination to open it. The lock opens with a tap of an RF/NFC card (2 included in the purchase) or via Bluetooth and an app on your phone. The lock can be programmed to be used by up to 50 different NFC cards or unlimited phone users and will keep track of who used it and when, according to the Quicklock website FAQ. It's available through the Techdirt Deals store for 18% off of retail and includes a choice of blue or black, 2 NFC cards, a key fob and a micro USB charger. Additional NFC cards, key fobs and even a ring (really?) are available as additional purchases through Quicklock's site. An additional discount is available for this lock only through the Techdirt Store. Use the code QUICKLOCK and get it for $45 (25% off). Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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We recently wrote about a German film distributor that went on a DMCA takedown blitz and managed to send notices for sites that had nothing to do with infringing files (such as IMDB and, er, Techdirt). In a somewhat related story, we learn that representatives of Universal Pictures have likewise gone DMCA happy over infringing versions of movies like Furious 7 and Jurassic World -- even to the point of issuing takedowns not only for the film's IMDB page (for Furious 7), but for "127.0.0.1" for Jurassic World. And while we’re on the topic of self censorship, it’s worth noting that Universal Pictures also asked Google, in a separate notice, to remove http://127.0.0.1 from the search results. The mistakes were made by the French branch of the movie studio, which only recently began sending takedown notices to Google. The company has reported less than 200 URLs thus far including the mistakes above. You can see the notice here. 127.0.0.1 is, of course, the IP address a machine uses to refer to itself. It's also known as "localhost." In other words, it basically means "home." ...Should we delist this house from the address books? This is obviously a case of these companies setting up some kind of automated system, working off of an obviously flawed algorithm, that is causing these errors, rather than having real people going through to see if the targets for these takedown notices are actually infringing. Why do we allow this kind of collateral damage in the DMCA system? Even more ridiculous? The organization representing Universal who sent this notice is TMG, or Trident Media Guard, which is the company that is officially working with the French government on its Hadopi copyright enforcement program. You'd think that a company so closely involved in such issues, working with a major movie studio, might try to be a little more careful about these things. But, of course, when have copyright defenders ever cared about collateral damage like this? And here's the really crazy part: it's not like this is even particularly rare. Chilling Effects has long lists of DMCA complaints that point to 127.0.0.1. We're talking about a whole lot of armed militias running around utilizing a targeting system that wouldn't be trusted in a snowball fight, never mind in the realm of something as important as speech and communication via the internet. Here are just some of the most recent (many filed by NBC Universal): If we have to live with the DMCA, filers ought at least be forced to take responsibility for their own notices. Pointing back to their own flawed algorithms shouldn't be an excuse -- especially when the requests are so obviously wrong.Permalink | Comments | Email This Story

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The legislative sausage-making process is apparently so streamlined that many sausage-makers are barely involved in the process. It's not that they don't want to be. It's that other sausage-makers want their product to be pushed out the door with a minimum of inspection. Senator Mike Lee posted a video to his Facebook page that contained a rather graphic depiction of expeditious sausage-making. As his printer whirred away behind him, Lee noted that a $47-billion, 1,033-page transportation funding bill was up for a vote. In less than an hour. If I don't have time to read legislation before voting on it, my default vote is no. We received the highway bill today at 3:06 p.m., and it is over 1,000 pages long. Our first vote on this legislation is scheduled for 4:00 p.m. The bill -- which failed to obtain the number of votes needed to open debate -- was a bipartisan effort (led by Barbara Boxer [D] and Mitch McConnell [R]). That's probably the best thing that can be said about it and the legislators behind it. Rather than prove lawmakers can occasionally put aside their differences and actually move forward with the business of legislating, this bill simply signals that both sides of the aisle are willing to resort to bullshit tactics. The bill arrived at the last minute because the effort itself was last minute. Federal highway aid to states is up against a July 31st expiration deadline. Despite its length, the bill is still far from finished. It takes money from a variety of unrelated programs to fund federal aid for the next three years. The problem is the bill authorizes spending for the next six years. That's the other reason the bill's champions were hoping to shove this through with a minimum of debate: the bill leaves it up to the next Senate class to figure out where it's going to get the other $45-60 billion it will need to keep the federal aid flowing. Fortunately, most senators were angered by this last-minute page dump. Sen. Charles Schumer of New York, the No. 3 Democratic leader, said, "I can't remember a time where I have been asked in all my years in the Congress to vote yes ahead of time on a bill we haven't seen, and there are no amendments" allowed. Sen. Richard Blumenthal, D-Conn., called the bill "a black hole." He said Democrats have been told changes have been made to auto, trucking and rail safety provisions that were agreed to last week on a party-line vote by the Senate commerce committee, but no details were provided before the vote. Some Democrats have described the provisions as giveaways to industry that would undermine safety. Schumer is certainly exaggerating. While the very specific facts of this legislative effort may indeed be unique, shoving under-scrutinized bills past legislators is something of a tradition in Washington. PATRIOT Act, anyone? It took until June of 2014 before many lawmakers realized the extent of what they had authorized in 2001. The recording industry pushed through a favorable law change at literally midnight back in 1999. PoliceStateUSA points out that John Boehner dropped a gun control law on the floor when only 10 legislators (out of 435) were on hand to vote. Just recently, the aforementioned Mitch McConnell put a "no questions asked" Section 215 reauthorization bill up for a vote, using his powers as a majority leader to bypass all the hoops the USA Freedom Act was made to jump through. Anything that might be debated heatedly often arrives at a moment when debate is least likely to occur. Thursday afternoons as legislators are all packing up to return to their homes. Late nights when few lawmakers are left in the building. Or -- like this one -- hundreds of pages of legalese released to voting members shortly before a scheduled vote. And, in this case, the bill arrives with a bit of extortion attached. Senators who refuse to vote for something they haven't read face the prospect of dealing with angry locals whose federal aid has just expired. Far too often, legislators allow everything to reach the brink of collapse before making a move. There's not a person out there who thinks the best laws are made at the last minute. No one wants poorly-written funding programs that hobble other sectors in a short-sighted attempt to balance the books for the very immediate future. Even if this manages to make it out alive, it still only "fixes" everything for half of the time period authorized by the bill. So, in three years, there will be another last-minute attempt to secure funding, and it will be any other funding legislators feel is at least temporarily expendable that will be forced to patch up funding holes left by the last Senate session. Sometimes, the sausage doesn't even get made. Instead, a bunch of random ingredients are shoved into a casing and passed off as a finished product. And it's the public that's forced to "eat" this sausage -- both in terms of the asking price, as well as any nasty side effects consumption of the poorly-made sausage may cause. Permalink | Comments | Email This Story

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Government paranoia about "critical infrastructure" will now be extended to drone photography, if New Jersey's proposed legislation is any indication. While law enforcement agencies are still weighing the Fourth Amendment implications of surveillance drones, some local governments are moving ahead with plans to shortchange the First Amendment. This new legislation makes it a criminal offense to use a drone to take a photograph of “critical infrastructure.” And what is “critical infrastructure”? Any “asset” whose incapacity—even partial incapacity—would have an impact on the physical or economic security, or public health or safety, of the state. This specifically includes highways, waste treatment facilities, bridges, tunnels, and more. This proposal would codify something many public employees (especially those in law enforcement/security agencies) already mistakenly believe: that photography of public structures is illegal and probably has something to do with terrorism. Even if the structure is already completely viewable with the naked eye, can be viewed via satellite photography and has been the subject of multiple official photo releases, people with cameras around certain structures are considered inherently suspicious. Now, this misguided "security" concern is being extended to eyes in the sky, something the government seems to believe should be in the possession of government agencies only. The proposed penalties for violations are fairly severe. Specifically, this bill makes it a fourth degree crime for a person to use a civilian unmanned aerial vehicle, commonly referred to as a drone, to conduct surveillance of, gather evidence or collect information or data about, or photographically or electronically record any critical infrastructure without the prior written consent of the entity that owns or operates the critical infrastructure. A fourth degree crime is punishable by up to 18 months imprisonment, a fine of up to $10,000, or both. On top of that, the legislation would help the state build a list of "usual suspects." The bill also prohibits a person from operating a civilian drone unless it is registered with the Division of Aeronautics in the Department of Transportation. In addition, a person is prohibited from operating a civilian drone unless the person maintains liability insurance coverage to insure against loss resulting from liability for bodily injury, death, and property damage sustained by any person arising out of the ownership, maintenance, operation, or use of the drone. The required minimum coverage is to be in an amount determined by the Commissioner of Banking and Insurance in consultation with the Commissioner of Transportation. A person who operates a civilian drone without the required registration or insurance is subject to a civil penalty of not less than $1,000 for a first offense and not less than $5,000 for a second or subsequent offense. In addition, for a second or subsequent offense, a person’s civilian drone registration is to be revoked for a period of two years. So, while law enforcement agencies argue that aerial surveillance has minimal Fourth Amendment impact because public places have a lowered expectation of privacy, they're also supporting legislation that would grant public structures more protection than a member of the public's fenced-in backyard. Of course, the Fourth Amendment only deals with privacy. This legislative push concerns security -- something that tends to receive higher priority than Constitutional rights. Then there's the inherent stupidity of carving out a drone-specific ban. People with regular cameras (or cell phones) will still be able to photograph these structures, as will aerial photographers in planes and helicopters. It's a very specific paranoia -- one limited solely to new tech that's currently subject to very little government control. And that's really what this is all about. Lawmakers have (civilian) drone fever and the only cure is more cowbell legislation. Those pesky men (and women) and their flying machines are harming the nation's security somehow with their democratization of aerial photography. These legislators obviously feel the only entity that should have full access to the skies and everything below is the government. And if the First Amendment has to suffer some cutbacks, so be it. Permalink | Comments | Email This Story

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A few years ago, if you asked cable and broadcast executives if cord cutting was real, most of them would proudly declare that it was a complete and total phantom (like Yeti). The few that could admit to the trend would usually try to argue that the only people engaged in this kind of behavior were losers not worthy of their consideration when contemplating their business models. Of course data has emerged since suggesting that not only is cord cutting very real (albeit slow), the people doing it are affluent, educated, and right in cable's key future target demographic. These days, most cable and broadcast executives, after slowly hemorrhaging basic cable subscribers for several years and watching broadcast TV ratings drop through the floor, will at least admit that cord cutting is real. But there's still a strong contingent among them that desperately wants to believe that cord cutting is a media-manufactured phenomenon and that their beautiful legacy cash cow will somehow live forever. The latest case in point comes via a Fortune article that explains "Why Cord Cutting Is a Myth" without actually doing anything of the sort:"The way content is consumed is changing,” said Amy Banse, managing director of Comcast Ventures. “We’re all aware of that. But I personally believe, and also by looking at our own statistics, that the volume of press around cord cutting doesn’t quite match reality."Again though, Banse doesn't offer any data to support the argument that cord cutting is a mass media hallucination. Factoring cable's failure to scale with new housing growth as the housing market recovered, telecom analyst Craig Moffett (who used to deny cord cutting) notes the pay TV business lost 1.4 million subscribers in the last year. The pay TV industry saw its first net subscriber loss during the first quarter of this year, and the industry is contracting at a 0.5% annual rate. This is before you factor in that many people aren't "cutting the cord" -- they're not signing up for traditional cable in the first place. And all of this is hitting cable and broadcast ratings hard. Comcast's recent earnings say the company lost 69,000 basic video subscribers last quarter and 3 million over the last six years. These are measurable metrics -- some small, some not so small. All important, and none imagined. Still, to hear the cable industry tell it, cord cutting is "over-reported":"George Kliavkoff, president of Hearst Ventures, agreed, and said the topic is low-hanging fruit for the media: “Cord-cutting is a great ‘story,’” he said. “But I think it’s over-reported.” What’s more likely to gain sizable traction, he said, is cord “shaving,” where consumers simply move away from all-encompassing multichannel packages. “A la carte purchasing of channels—and not taking most of them—is a far more interesting area,” he said.The second half of that argument could certainly be true. "Cord shaving" or "cord cheating" is also occurring at an increased rate as cable customers socked with bi-annual rate hikes look for any opportunity to cut their monthly bill. Eventually, these users will also likely be turning their gaze toward redundant cable voice services, forcing cable operators to replace that revenue in new and "creative" ways. This is all part of one conversation. And while yes, some media outlets do overhype cord cutting without nuance or context (as happens with all things), how the media explains what's happening is a distraction. The focus should be on how the cable and broadband industry is failing to adapt to internet video through its refusal to offer truly evolutionary products and pricing. Some of this is semantics. Some cable execs simply don't like to call it "cord cutting," given there's still a cord -- it just happens to be broadband only. But whatever you call it, the answer to all of these problems has a single unified answer. With 2015's rise in new internet video options, cable's going to have to do the one thing it has spent a generation refusing to do: compete on price.Permalink | Comments | Email This Story

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We've argued for quite a long time that treating "pirates" like criminals instead of potential customers is a massive mistake for a whole host of reasons. There's the futility of the legal game, for instance, as well as the possible public relations nightmare that going after the public, even the infringing public, can create. But the best reason to not treat infringers like criminals is because they're often the best actual customers of content out there as well. In study after study, it's shown that a person who engages in some infringement spends more total money on movies, music, and video games than someone who gets everything legit. Pirates, scurvy-laden bastards as they may be, happen to be the creative industries' best customers. And it turns out it's no different in Australia, where a recent government study bore out the same conclusion: infringers spend more money on content than content-saints. Consumers who flirt with the morally ambiguous line of content consumption spend more money, according to a survey released by the Australian Department of Communications. Over a three-month period among respondents aged 12 and over, the survey found that those who consumed a mixture of copyright-infringing and non-infringing content spent on average AU$200 on music, AU$118 on video games, AU$92 on movies, and AU$33 on TV content. Consumers who only consumed non-infringing content spent only AU$126 on music, AU$110 on video games, AU$67 on movies, and AU$22 on TV; whereas pure copyright-infringing content consumers spent a mere AU$88 on music, AU$24 on video games, AU$53 on movies, and AU$8 on TV content. In every market, the sometimes-infringer spends more. In the case of music and movies, the delta between the occasional infringer and the all-legal consumer is huge, much larger than the delta between the all-legal and all-infringement consumers. Video games and television don't show the same delta, but even in those arenas the occasional infringers spent more than the saint. Why? How? Well, because the occasional infringer infringes because they're a fan, a fan perfectly happy to spend money on scarce goods where spending that money makes complete sense. However, the survey also found that the majority of spending on music and movies was not on the content items themselves. "For both music and movies, the majority of the average spend was not from purchases of either digital or physical copies. In the case of music, this primarily consisted of concerts and gigs, and in the case of movies, this primarily consisted of going to the cinema," it said. And since the advents of the VHS and cassette tapes, that's always been the case. Theaters are about experience and live music for great acts will always be in demand, even if bootleg tapes and pirated DVDs are in hefty supply, which they are. For the content itself, the survey respondents essentially indicated that the juice wasn't worth the squeeze. A majority of survey respondents said that they would pay for a music subscription service that charged AU$5 per month, and AU$10 per month for a movie subscription service. Only 5 percent of respondents said that nothing would make them stop consuming copyright-infringing content. In other words, the "everyone just wants everything for free" line the entertainment industries have been pimping for decades is bunk. Instead, the overwhelming majority of customers and potential customers want content on-demand at prices that make sense, in which case they're perfectly willing to fork over the money. And even when they feel the price doesn't make sense, they're still willing to fork over money for things they do value as fans -- even though they may have become fans through pirated content. Either way, the industries win. It's just a matter of how much they want to win. Hint: crying over infringers who spend the most money isn't the optimal response. Frustratingly, this government study was released roughly a month after Australia passed its version of SOPA, largely at the behest of industry lobbyists armed to the teeth with industry numbers showing industry losses at the hands of these same dastardly pirates who are spending so much money on their products. It sure would have been nice if the government had managed to have access to their own data before passing such draconian legislation, rather than relying on the historically unreliable data from the entertainment industry. Permalink | Comments | Email This Story

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Earlier this week, we noted that NY City mayor Bill de Blasio appeared to pick a fight with Uber that he couldn't possibly win. The plan was to create a taxi medallion-like system for car hailing apps like Uber and Lyft, but which would cap the number of such cars that could be on the road. The PR campaign against this effort was tremendous (obviously, some of it pushed by Uber and Lyft -- but much of it by the happy users and drivers on those platforms). De Blasio and his staff apparently believed that there really wasn't popular support for these platforms, which was just wrong. As the negative publicity continued to mount, including having various celebrities weigh in on how stupid the plan was, it appears that de Blasio has backed down and agreed to drop the plan, at least for the time being. The agreement brings a temporary end to a fractious struggle that had consumed City Hall for several days, and inundated parts of the city with mailers, phone calls, advertisements and even celebrity endorsements. Under the agreement, according to three people familiar with the agreement, the city will conduct a four-month study on the effect of Uber and other for-hire vehicle operators on the city’s traffic and environment. To save face, the mayor's office is also claiming that this is a "victory" because Uber agreed to share some data with the mayor's office about usage of the platform. However, this is pretty clearly a victory for Uber, its drivers and the people who use the service. There are some legitimate questions about how these companies operate and what they mean for the cities and residents where they exist, but this move, from the beginning, was clearly about paying back taxi cab companies who had supported de Blasio's election, rather than any legitimate concern for the city.Permalink | Comments | Email This Story

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Computers are getting smarter all the time. Even though science fiction sometimes tends to paint artificial intelligence in an evil light, humans are building these intelligent machines -- and presumably, we'll have some control over how dangerous they'll ultimately become (but maybe not). People are building artificial brains without really knowing how brains work, but that's how we're learning. Maybe we should be breeding hyper-intelligent parrots, instead? Virginia Tech scientists have a mathematical model for using bacteria to function as a robot brain. Complex emergent behaviors can arise from bacteria-bots and create interesting cyborgs with capabilities that might be attributed to higher order animals. [url] Computerphobia doesn't seem like a common term or actual fear these days, but in the 1980s, when computers were much less familiar, it wasn't crazy to see people approach PCs with anxiety. Computers are just waiting for us to let our guard down before they attack us.... [url] RoboBrain is an online artificial intelligence that any robot might tap into for some cognitive help. Robots might develop more quickly if they can help each other learn via 'cloud robotics' and distributed processing/intelligence resources. Hello, Skynet! [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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The CIA has been fighting to keep POW/MIA records out of Roger Hall's hands for over a decade. With that FOIA battle finally over, the CIA is now fighting to keep its money out of Roger Hall's hands. Judge Royce Lambert's order sounds a little exasperated with this vexatious defendant. First, the CIA admits Hall (and Studies Solutions Results) have mostly won. But it then goes on to claim it shouldn't be required to follow this provision of the Freedom of Information Act -- that "substantially prevailing" plaintiffs are entitled to legal fees. The CIA concedes that the plaintiffs have prevailed on several of their claims and that they are therefore eligible for fees. Opp'n 8. The CIA also "accepts some responsibility for the unnecessarily protracted nature of this litigation" and notes that there is "accordingly no need for the Court to consider whether the plaintiffs are entitled to an award." Furthermore, the CIA does not argue that interim fees are inappropriate or that fees should not be awarded until the conclusion of litigation. So, what is the CIA's problem? It admits fault but only wants to pay a small fraction of what Hall is seeking. Hall claims a decade's-worth of the CIA's admittedly "unnecessarily protracted" litigation has cost him more than $400,000. The CIA thinks $75,000 is more than fair for screwing him around for 10+ years. First, the CIA claims Hall's win isn't much of a win, and if he's racked up hundreds of thousands of dollars in legal fees, it's his own fault. The CIA requests that the Court reduce the requested fees because plaintiffs have achieved only limited success, calling their victory "largely pyrrhic..." The CIA argues that because plaintiffs sought such "extraordinarily broad categories of records," "it was almost inevitable that litigation would ensue." Judge Lambert points to the court record as being contradictory to the CIA's portrayal of the litigation. This allegation is, to some extent, in tension with the statement that it "does not dispute that the plaintiffs have substantially prevailed on several of their claims." Indeed, the Court has repeatedly rejected the claim that the FOIA requests were overly broad and unduly burdensome, and now agrees that plaintiffs have achieved significantly more than a victory. In fact, he points out it's the CIA that's been racking up loss after loss. Overall, the Court finds that the plaintiffs in this case have been quite successful in achieving their objective: obtaining documents unlawfully withheld. When this lawsuit was filed, the CIA refused to release the requested records and failed to respond to plaintiffs' request for over a year. After many years of litigation, the CIA has released more than 4,000 documents, quite a substantial success. The Court finds that plaintiffs' actions in diligently pursuing their claims were reasonable -- even those that were ultimately unsuccessful -- and it will not use the benefit of hindsight to scrutinize every one of plaintiffs' actions. And while the CIA attempted to use a little math to buttress its claims that Hall's litigation has been mostly unsuccessful ("CIA… specifically takes issue with a number of unsuccessful motions filed by the plaintiffs…"), it didn't bother to apply anything of the sort to its counteroffer on legal fees. [T]he court finds it troubling that the CIA did not even attempt to analyze how many hours related to such motions, instead stating only that "a fee award up to $75,000 may be appropriate." Which means the court now has to do the calculations the CIA couldn't be bothered to perform. The CIA… [provided] no basis from which to determine how much of a reduction would be appropriate and [left] such calculations to the Court. This not only inconveniences the Court, but should the Court produce its own analysis for the first time in a written opinion, the plaintiffs would not have a chance to respond. And it comes to much, much more than the CIA offered. Applying the historic Laffey rates to Hall and SSR's total requested hours produces an award of $346,231 after billing 0.8 hours [yes, the CIA argued over 0.8 billable hours -- out of 1,008.7 total] to the clerical rate rather than the attorney rate. Their attorney, James Lesar, agreed that it is appropriate to deduct 15% of the time recorded as a matter of billing judgment, yielding an award of $294,296.40. In addition to the $294,000, another $120,000 will be going to James Lesar himself, bringing the total award to $414,478.40. After being presented with these results, the CIA argued that it was simply too much… by citing other cases with lower awards, no matter their relevance to the issue at hand. The cases the CIA cites in an attempt to show that this award is out of sync with fees awarded in similar cases are not illustrative. Simply listing cases and fee awards is not helpful. The CIA will now be lifting over $400,000 from taxpayers' wallets to pay for its combative, secretive behavior. Records pertaining to prisoners of war and missing in action soldiers are the very definition of "public interest" documents. Throughout the course of this case, the CIA repeatedly claimed otherwise, claiming that the documents might be of interest to surviving relatives/spouses only. The court disagrees. Certainly information regarding missing following the Vietnam and Korean Wars is exactly the type of information that interests the public. Disclosure of this information has the potential to shed light on the extent, nature, intensity, and duration of the government's efforts to locate and show the degree to which the CIA has accurately informed the public about its search efforts and the information it possesses. [...] Information regarding POW/MIAs is not only of interest to the public, but hard to come by. It's the public that's been forced to take part in a pyrrhic victory. More documents have been freed, but it took years of litigation. That bill will be footed by the same public the CIA denies has any interest in the documents. There's more information available now than there was 10 years ago, but every step of the way, the CIA used the public's money to fight against the public's interest. And now it needs another $400,000 from the public to pay back other members of the public. The servicemen and women whose information the CIA fought to withheld would probably have reminded the public that "freedom isn't free." The payout resulting from this extensive legal fight turns those words into a ghastly parody. Permalink | Comments | Email This Story

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While Comcast's failed merger attempt with Time Warner Cable received a well-deserved media and public beating, AT&T's almost-as-bad $49 billion acquisition of DirecTV has been able to largely fly under the radar, despite the fact that only the latter eliminates a direct pay TV competitor. With less public pressure from consumer outrage, the FCC and DOJ appear poised to approve AT&T's deal, and the FCC is circulating an order approving the deal among the agency's Commissioners. Approval could occur as soon as this week. In a statement issued to the FCC website, FCC boss Tom Wheeler states he's pushing for several conditions on the deal he claims will "protect consumers, expand high-speed broadband availability, and increase competition." One of them involves restricting AT&T from using its fixed-line usage caps for anti-competitive advantage:"In addition, the conditions will build on the Open Internet Order already in effect, addressing two merger-specific issues. First, in order to prevent discrimination against online video competition, AT&T will not be permitted to exclude affiliated video services and content from data caps on its fixed broadband connections."The problem? While AT&T's DSL users do face a 150 GB monthly usage cap (with $10 per 50 GB overage fees), AT&T's busy kicking these unwanted customers to the curb because they're too expensive to upgrade. On the other hand AT&T's U-Verse customers, the ones AT&T plans on keeping, don't face an enforced usage cap. As such, a condition preventing them from abusing this non-existent cap isn't much of a condition. Most of AT&T's controversial "zero rating" practices in regards to usage caps are happening on AT&T's wireless network, which the condition wouldn't apply to. Wheeler's also promising that his conditions will force AT&T to deploy upgraded broadband services to more areas than ever before:"If the conditions are approved by my colleagues, 12.5 million customer locations will have access to a competitive high-speed fiber connection. This additional build-out is about 10 times the size of AT&T’s current fiber-to-the-premise deployment, increases the entire nation’s residential fiber build by more than 40 percent, and more than triples the number of metropolitan areas AT&T has announced plans to serve.The problem here is that AT&T's been manipulating its broadband deployment statistics for fifteen years or so to win regulatory favor. The company will take deployments already planned (or in some cases built), pretend these users are new deployments, then promise regulators it will engage in a broadband "expansion" if regulators only agree to "X" (deregulation, more subsidies, more tax breaks, merger approval, whatever). Nobody in DC has ever bothered to actually audit AT&T's endlessly shifting deployment projections, or even call them on the statistical slight of hand. And AT&T appears to be doing that again here. With the FCC's help. Back on April 21st, 2014 -- a month before the deal with DirecTV was even struck -- AT&T announced a shiny new PR campaign (designed to counter Google Fiber's buzz) proclaiming the company would be bringing fiber to "up to" 100 cities. These are cherry picked installs, mostly high-end developments, where install costs are already low because fiber's already in the ground. You might recall that AT&T then pouted and threatened to pull these limited upgrades if net neutrality rules were passed. When pressed by the FCC, AT&T backed down on the threat. But in a highly-redacted June response to the FCC (pdf), AT&T states that the company is promising to deploy fiber broadband to a total 11.4 million homes (this includes the April 2014 plans) should the merger be approved, with only 2 million of this total being actual, new deployment. So only a fraction of this 12.5 million number Wheeler is using is "new" at all, and it's certainly nowhere near "10 times" the size of AT&T's current deployment. The tl:dr version is that AT&T's taking existing (and in some cases finished) deployments, pretending they're totally new deployments only made possible by the DirecTV merger, and the FCC's helping them. The real irony is that AT&T's actually cutting fixed-line investment CAPEX so it can focus on more-profitable capped wireless, and in the process preparing to hang up on tens of millions of unwanted DSL users. This is going to leave cable with an even stronger monopoly than ever before across a huge swath of the country, and few people in the press, public or in government appear to have noticed or care. Instead, we get a mega merger bloated with AT&T's miracle math. I think the majority FCC is ok with AT&T's merger because buying a satellite TV provider on the eve of the Internet TV revolution is basically business seppuku, ultimately made irrelevant by the rise of alternative options. But the elimination of a direct competitor still means higher rates in the short term, and there's an awful lot of actual fiber that $49 billion could help deploy. There's little to no hard consumer benefits here, and as usual AT&T lawyers are doing a bang up job manufacturing some out of very thin air (while filing two lawsuits against the FCC's net neutrality rules to ensure nothing ). Note the FCC hasn't released the full details of the conditions, so hopefully there's more teeth here than Wheeler's original announcement suggests. But his willingness to buy into AT&T's magic math isn't a promising start.Permalink | Comments | Email This Story

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Too busy to sit down and get through your book list? One company thinks they have your answer. Blinkist offers a way to read or listen to summaries of key points of books in about 15 minutes. It features over 1000 books with 40 new ones added each month. They cover a diverse range of topics and authors like Amanda Palmer's "The Art of Asking" and Paul Graham's "Hackers and Painters". You can sync with Evernote, and access your library across your Kindle, phones or computers. The Blinkist Premium edition is available in the Techdirt Deals Store for 62% off of a 1 year subscription. (Blinkist has a free 3 day trial available) Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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We've talked plenty about the value of body cameras and dashcams for police -- in acting as a deterrent to bad behavior by police while supposedly acting as public servants. Of course, that only works if people trust the video not to be edited and doctored. This week there are all sorts of questions being raised about the arrest and hanging death of activist Sandra Bland in Texas. There are plenty of questions about why she was even arrested in the first place, and then plenty more about why she died (the police called it a suicide, which many who knew Bland find highly questionable). In response to some of these concerns, the police released a 52 minute version of the dashcam video of her arrest -- though for some reason, the YouTube version has since been taken down. Perhaps it's because people watching the whole thing noticed a bunch of really sketchy problems with it that suggested the video had been edited, while the audio remained in tact. Ben Norton first posted the details of these, highlighting a bunch of weird artifacts like disappearing cars that magically reappear seconds later: Or the tow truck driver who gets out of his truck, walks behind the car and out of frame... and then suddenly gets out of the truck again: You can skip your "glitch in the Matrix" jokes. They've already been made. Plus, this is about someone who died. The Texas Dept. of Public Safety said it would look into the video problems, and officials have denied any edits and have said that they will re-upload the video (which likely explains why the original has now gone missing). It also seems worth noting that the timing of the edits doesn't make it look like anything important was edited out (it all happens after the arrest itself). It's possible that there was just some sort of weird glitch with this footage, but it's a reminder that anything that calls into question the credibility and accuracy of these kinds of videos will only undermine the purpose of these videos. We've heard too many stories about how some of these cameras can be "turned off" or that police would have access to the coverage before it's released to the public. If officials want these systems to actually work, they have to be trustworthy on their own. While this is likely just going to turn out to be some sort of technical problem that will be fixed, with nothing nefarious at all, it still acts as a strong reminder for the need to make sure that this kind of footage is stored and released in a way that doesn't raise such questions.Permalink | Comments | Email This Story

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Post sponsored by Call them patent assertion entities, non-practicing entities, or, in the words of John Oliver, raccoons, but whatever you do, don’t call them small inventors. Patent trolls do not create jobs or products, and their profits certainly are not small. In an effort to clear the air of all the misinformation going around by the patent troll lobby, we spent the day with Jeff Glueck, COO of tech startup Foursquare, as he and other Consumer Electronics Association (CEA) and Engine Advocacy startup members met with members of Congress and their staff to describe his many encounters with patent trolls. A frontrunner in the industry, Glueck has worked in leadership positions at various tech companies, such as mobile software startup Skyfire and now Foursquare. So it should come as no surprise that he needs two hands to count all of his encounters with frivolous patent lawsuits. As he describes it: The typical troll process is to shake down small companies or startups with the expectation that business owners will settle rather than endure the cost of fighting frivolous claims in court. It's sad when you work hard to create real inventions and a group of lawyers with a vague patent — that never should have been granted in the first place — is able to derail your business with a groundless claim. ... Small businesses take it on the chin. Last year, patent trolls targeted small businesses and tech companies about 80 percent of the time. Now, that number is approaching 90 percent. You may as well call it an all-out assault on the innovation economy. In fact, 2015 is on track to be a record-breaking year for the patent troll lobby. Comparatively speaking, patent trolls have filled over 11 percent more lawsuits this year than at this point of 2014. Even worse, they are attacking tech startups more than ever before. Patent trolls traditionally have targeted small businesses that are least equipped to defend themselves. For those select small businesses courageous enough to fight back, the costs are steep financially and the reward is purely ideological. It can take over a million dollars and three years to defend your company going all the way to trial against a troll. Few small businesses or startups have that luxury. And that’s only counting legal fees and legal costs. For small business, a bigger cost can be the time and distraction, or the way that customers and partners may shy away from doing business with you while under a patent assault. As CEO at Skyfire, Jeff saw a baseless patent troll suit against his first major telco customer delay launch of Skyfire’s mobile network software by 15 months. With a deployment on hold, Skyfire couldn’t get paid, and had to keep the company alive at a cost of $15 million dollars until ultimately the troll was defeated in court. Now, in his role at Foursquare, he sees the company dealing with five trolls at any one time, and roughly a million dollars annually in costs dealing with trolls: That’s nearly ten engineers we would hire tomorrow, but instead that money is going to lawyers. As a country, our leadership in software is a huge potential job growth engine. We can have companies focus on improving their products to grow users and revenues globally, or we can have an economy derailed by everyone suing everyone. The current climate is daunting for tech entrepreneurs, and Glueck is focused on a solution. In this case, it’s legislative — the U.S. House of Representatives Innovation Act, which is slated for a floor vote this month: We’re fans of H.R. 9. We need to put a stop to the corrupt process of venue shopping – it’s un-American. Overly burdensome upfront discovery is being used as a weapon and fishing expedition to force companies into settling regardless of the merits of the case.  Narrowing early discovery will take away a weapon for trolls. An automatic stay for innocent users will also help to protect innocent small businesses – from restaurants to tech startups – who just simply use a product. They don’t make it. Ahead of the upcoming crucial vote for the tech community, contact your member of Congress and urge him or her to support innovative startups like Foursquare by reforming America’s patent litigation system. The patent troll lobby is big and its pockets are deep; don’t let these extortionists get away with another cent.                                 (function(d, s, id) {                   var js, fjs = d.getElementsByTagName(s)[0];                   if (d.getElementById(id)) return;                   js = d.createElement(s); js.id = id;                   js.src = '//p2a.co/js/embed/widget/advocacywidget.min.js';                   fjs.parentNode.insertBefore(js, fjs);                 }(document, 'script', 'advocacy-actionwidget-code'));                 Permalink | Comments | Email This Story

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On Twitter yesterday, Brian Fitzpatrick, a tech entrepreneur, noted that while trying to enjoy the in-flight entertainment on the United Airlines flight he was taking, the in-flight Wi-Fi system told him he need to install its special brand of DRM. They didn't even try to sugarcoat it with some fancy confusing name. It's literally called the DRM plugin: Today in NOPE News: it's not "Okay" for @United to install DRM on my laptop. pic.twitter.com/kzUL2RqNDO — Brian Fitzpatrick (@therealfitz) July 21, 2015 In case you can't see the image, it says: Click 'Okay' to download the latest DRM Plugin. After installation playback should resume immediately, if it doesn't then you may need to restart your browser. Fitzpatrick kindly sent me a bunch more screenshots and details. That little error message pops up -- along with other error messages -- when you go to watch a movie: This is part of United's "beta test" of its "Personal Device Entertainment" option, that allows you to apparently fuck up your computer, just to get access to the short list of films and TV shows that United has contracted to allow you to watch while in flight. The "requirements" on United's website only shows "the latest version" of various browsers (oddly, Chrome is excluded -- which we'll get to) and Flash Player 15 or higher. Notice that it doesn't say anything about "our own personal malware." The only indication something may be up is in this infographic that says "you may be prompted to download a plug-in." No biggie. Fitzpatrick also realized that if you don't have Flash (which is actually a good security practice) United will helpfully offer to install it for you as well: Because what's flying the friendly skies without the opportunity to push multiple pieces of software that might put your computer at risk! At this point, United will provide lots of detailed instructions on how to install the DRM-you-never-wanted on your machine: Notice the more detailed instructions to get it to work in Chrome (and the earlier note about how this system doesn't support Chrome)? That's because the plugin is using NPAPI, which is a security nightmare and is no longer supported in Chrome for security reasons. As the Chrome team has noted: "NPAPI is a really big hammer that should only be used when no other approach will work." So, not only is United trying to install unnecessary and annoying DRM on your computer, it's also doing so in a way that it is recognized as being a security nightmare. That's encouraging. In the interest of science, Fitzpatrick dug a little deeper and discovered that the "DRM plugin" in question is actually Panasonic's Marlin DRM -- something we actually wrote about years ago, as an attempt to create an "open source" DRM. Though, amusingly, Fitzpatrick notes that the DRM comes with strong copyright warnings itself: This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Panasonic Avionics Corporation or its subsidiaries, affiliates, ad suppliers (collectively "PAC") own intellectual property rights in the Software Product. The Licensee's ("you" or "your") license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement"). How sweet. You need to abide by Panasonic's rules when you install its security nightmare of a DRM you didn't want, just to watch an in-flight movie. And, really, after all this, people should be asking but why? What "threat" model requires United to force dangerous malware onto your computer? And the answer is likely that Hollywood requires it, because to Hollywood everything is a threat, and the idea that someone might be paying hundreds of dollars for flights and they might also then make a copy of a movie... well, that's just too much to handle, and they have to first ask you to break your computer and put all your data at risk. Isn't that sweet of Hollywood? Oh wait, no I didn't mean sweet. I meant insane. I'm sure that United Airlines didn't think through much of this and the details when it agreed to these ridiculous terms. It just thought it was adding an option that sounded nice. Letting people have access to more entertainment options, including on their own devices sure sounds like a nice option for some passengers. But if it comes with forcing people to put their computers and information at risk, it gets problematic fast.Permalink | Comments | Email This Story

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Earlier this year, we covered a very troubling situation involving Kim Dotcom and the US government. As you almost certainly already know, Dotcom is fighting extradition from New Zealand to the US to face a bunch of charges concerning criminal copyright infringement. We've written about those charges as well as the extradition fight many times. However, while all of this was going on, the Justice Department filed a separate lawsuit, not against Dotcom himself, but against all of his stuff. We've talked for years about the problems of the "asset forfeiture" program in the US, and Dotcom's case drives all of those points home. And, even if you think that Kim Dotcom is absolutely guilty, a horrible person, responsible for billions of dollars in losses to the film and music industries, you should still be concerned about the asset forfeiture aspects here. Again, this lawsuit is technically entirely separate from the ongoing case against Dotcom himself. Instead, it's USA v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto -- which is a catchy name if you're trying to hide what you're really doing, which is stealing all the assets of someone in a foreign country. The Attachment A in the title of that lawsuit is basically a listing of all of Kim Dotcom's assets. In asset forfeiture cases, since the government is technically filing the lawsuit against the stuff, arguing that the stuff itself is guilty, it leaves only limited ability of the original owner of that stuff to try to block the government from taking it all. And, that was made much more difficult by Dotcom (who has never even been to the US) fighting extradition in the (entirely separate) lawsuit against him. The DOJ, somewhat perversely, used the extradition fight to argue that Dotcom is a "fugitive," to basically say that he can't try to block the forfeiture, and the judge agreed. The end result? The court gave the DOJ a huge green light to legally steal millions of dollars worth of assets from Kim Dotcom despite the lack of any court ruling or admission of guilt. That seems like a rather big due process concern. While a New Zealand court has put a temporary stop to the US government taking the New Zealand portion of the assets, back in the US, there is an appeal going on over the initial ruling. As part of that, three organizations that you wouldn't normally think of as associating themselves with the likes of Dotcom, have stepped up to argue that the whole civil asset forfeiture effort against Dotcom's stuff is a complete farce. The Cato Institute, the Institute for Justice and the National Association of Criminal Defense Lawyers have filed an amicus brief in the appeal arguing forcefully about how ridiculous this whole case is (not the case against Dotcom, but the case against all his stuff). As the Cato Institute notes in its blog post about this: The Fifth Amendment’s Due Process Clause requires an opportunity to be heard and an opportunity to defend against government-initiated actions against your property. Unlike an escaped criminal appellant who is scorning the court’s jurisdiction, in civil forfeiture, it’s the government that has dragged Dotcom and the others into court. Moreover, given the amount of abuse in civil-asset forfeiture, the government shouldn’t be allowed both to profit from the forfeiture and suppress defenses by calling residents of other countries “fugitives.” Finally, the reasons for fugitive disentitlement in criminal appeals simply can’t be transferred to civil-asset forfeiture. When an individual is “on the run” from criminal prosecution, courts can’t enforce judgements against them, but a valid forfeiture order would be fully enforceable against Dotcom if the court has jurisdiction over the property. Fugitive disentitlement is also used to deter felons from escaping justice, but there’s no similar concern here, where the property can’t run away and the claimants are merely residing in their home countries. The Fourth Circuit should not only allow the Megaupload defendants to challenge the seizure, it should also consider striking down as unconstitutional all uses of fugitive disentitlement in civil-forfeiture cases. Frankly, if Dotcom is eventually found guilty of that which he is charged with (which is a separate issue altogether), then it could be perfectly reasonable to argue for asset forfeiture of the proceeds from such illegal acts. But to argue for civil asset forfeiture entirely separately from that process and to abuse the process by arguing he's a "fugitive" in order to get those assets is particularly ridiculous: Under civil forfeiture laws, the government can take property without an underlying criminal conviction based only on the allegation of a crime. Those whose property has been seized can get it back by proving that their property is “innocent.” The government, however, is preventing the defendants from even making that argument. Using the “fugitive disentitlement” doctrine, the government is blocking the defendants from challenging the forfeiture. Fugitive disentitlement has historically been applied only to criminals who escaped custody while appealing a conviction, the idea being that a court could decide to dismiss the appeal because any judgment would be unenforceable against an absent defendant. Here, the government has decided that, because the Megaupload defendants aren’t coming to the United States to defend their property, they are “fugitives” who have lost the ability to defend against that seizure — and the district court agreed. As the filing itself notes: Stripping the claimants of their due process rights isn’t just unconstitutional, it’s dangerous. There’s a growing literature on the abuse of civil forfeiture—and those abuses are directly tied to the protections given to the claimants here, as well as the ability of government officials to directly benefit from forfeitures. This court should not ratify a doctrine that would make abuses even easier. Moreover, the reasons for invoking the fugitive disentitlement doctrine in criminal appeals are inapplicable to civil forfeiture actions. First, unlike an order against an absent criminal defendant, a valid forfeiture order where the court has rightful jurisdiction will be fully enforceable. Second, the claimants here haven’t scorned the district court’s authority as a fleeing criminal defendant would. Third, by appearing before the court via counsel, the claimants haven’t disrupted the court’s processes or offended its dignity. Finally, unlike with criminal appellants—who may need to be deterred from flight by the threat of disentitlement—the claimants are merely continuing to lawfully reside in their home countries. Once again, even if you think Dotcom is the root of all evil in the world, even then you should be concerned about this particular aspect of the case(s) against him. It seems telling to me that, in the comment sections on our previous posts, those who have argued that Dotcom is clearly guilty, seem to have no problem with the asset forfeiture. They don't see it as any sort of due process violation because they've already decided he's guilty in their minds, just as the US government has. But that's not how due process works. You're supposed to be found guilty first. If these people are so sure that Dotcom is guilty, why not wait until that's shown in a court of law, rather than having to go through this separate process to take all of his stuff?Permalink | Comments | Email This Story

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Comcast executive David Cohen is, by dictionary definition, a lobbyist. And not just any lobbyist; a gushing profile piece by the Washington Post in 2012 called him a "wonk rock star" and the company's "secret weapon," who uses "his vast network of high-powered contacts" to help craft Comcast-friendly regulations and apply pressure on DC policy makers. You know, a lobbyist. Unless you're Comcast, which has now e-mailed me repeatedly to demand I stop calling him that. After I mentioned that Cohen was hosting a $2,700 per plate fundraising dinner for Hillary Clinton last month, I received this e-mail from Comcast spokesperson Sena Fitzmaurice on June 18:"Karl – your piece today is offensive and inaccurate. David Cohen doesn’t pretend he’s not a lobbyist – he isn’t by the definition of the legal term – we keep very close records of his time and activities to make sure the law is complied with – to imply that we are not complying with the law with no evidence is irresponsible journalism."You see, the legal DC definition of a lobbyist was beefed up slightly back in 2007, when the Lobbyist Disclosure Act was notably amended by the Leadership and Open Government Act of 2007. Those changes required that if an employee spends more than 20% of their time lobbying, they have to register with the government as a lobbyist, detail their travel with lawmakers, and more fully outline their contributions to politicians and their myriad foundations. Comcast addressed these changes by simply calling Cohen something else. Cohen's technical title ever since has been Senior Executive Vice President of Comcast Corporation, though more recently the company has been calling him the company's "Chief Diversity Officer" with a big focus on "community investment":"David L. Cohen is Senior Executive Vice President of Comcast Corporation. David has a broad portfolio of responsibilities, including corporate communications, government and regulatory affairs, public affairs, legal affairs, corporate administration and community investment, and serves as senior counselor to the CEO. He also serves as Chief Diversity Officer for the company."Cohen played the starring role in selling regulators on Comcast's acquisition of NBC Universal in 2011, crafting conditions it would later be discovered Comcast ignored at its leisure. Cohen's secret weapon during that transaction was Internet Essentials, a program that promised low-income households $10, 5 Mbps broadband for a limited time should they jump through a laundry list of conditions. The program was frequently criticized for being intentionally hard to qualify for, though it provided an endless sea of PR opportunities to help portray Comcast as an agent of pure altruism. Cohen also spearheads Comcast's entirely-above board (and very common in telecom) practice of giving money to minority groups and organizations with the unwritten expectation that they parrot anti-consumer policy positions. These groups then sing the praises of Comcast's latest merger or sell their constituents downriver on issues like net neutrality, helping to create an artificial sound wall of support for Comcast policies, which, as you may have noticed in your travels, often don't benefit Comcast customers or the internet at large. So while Cohen is clearly a lobbyist by dictionary definition or for anybody with optic nerves, he's not a lobbyist by legal definition. He's just a guy that really, really loves minority communities and helping the poor, and just happens to spend the lion's share of his time whispering in politicians' and regulators' ears. In fact, as Fitzmaurice was kind enough to illustrate in another e-mail to me on July 18, Cohen has absolutely nothing to do with lobbying whatsoever:"While I know asking you to be accurate may be futile, David Cohen is not Comcast’s top lobbyist, in fact he is not a lobbyist at all. Lobbyist has a very specific legal definition, and David Cohen does not fit it. David has several different sections of the business which report up to him, only one of which is Government Affairs. The top lobbyist in Washington is Melissa Maxfield."I responded by informing Fitzmaurice that I'm using the Random House definition of lobbyist, not Washington's intentionally flimsy, watered down definition: NOUN 1. a person who tries to influence legislation on behalf of a special interest; a member of a lobby. I write a lot about Comcast. Without bragging (since frankly it's often unpleasant and I'd often rather be doing something else), I might write more about Comcast than potentially anyone on the internet. By and large my experiences with Comcast's public relations department have actually been very positive, and on the very rare instance where they contact me to let me know a data point or statistic is in error (two or three times in a decade, looking at my inbox archive), I'm happy to correct it. But this is curiously the first issue that the company has felt the need to repeatedly reach out to me on, suggesting it's a potentially sensitive subject for some strange reason. So, out of respect for Comcast's integrity and this nation's great and unimpeachable legal apparatus, I've decided to acquiesce and start calling Cohen something different. I'm tossing around a number of potential titles. Funpants McGillicutty? Comcast's "Overlord of entirely-authentic-and-not-at-all-politically-motivated-altruism"? Doctor Shnitzel-Fuhrer? Surely readers have a few suggestions.Permalink | Comments | Email This Story

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The availability of NFL games online has long been a bit of a joke when compared to the NBA or MLB, in large part thanks to the league's exclusive deal with DirecTV for out of market games. The televised bastard child of this unholy union is NFL Sunday Ticket, which charges consumers between $250 and $350 a season to watch their favorite games. And while DirecTV has eased up a little on the restriction that you need to subscribe to DirecTV's other services to get Sunday Ticket, trying to order the standalone broadband-only service over at the DirecTV website results in the user being accosted with a bevy of fine print:"*NFLSUNDAYTICKET.TV service is only available to non-DIRECTV customers who live in a select apartment building where DIRECTV service is not available, attend select universities, or live in one of the following metro areas: New York City, Philadelphia, or San Francisco. NFLSUNDAYTICKET.TV UNIVERSITY only available to students enrolled in eligible universities. Blackout rules and other conditions apply.Even if you qualify, it's still a pretty far cry from services like MLB.TV, which is available for as little as $60 a year. Each time the exclusive arrangement is up for renewal, wiser NFL fans quietly pray the NFL will realize the benefits of broader, less-exclusive distribution of games, but ultimately a huge check from DirecTV almost always wins out (this last check clocked in at around $12 billion for an eight year deal). There is, however, some fleeting legal fisticuffs on the horizon that might (but probably won't) shake up this cozy arrangement. Last month, DirecTV and the NFL were hit with a class action lawsuit (pdf) alleging that the companies' exclusive distribution arrangement for NFL games under the NFL Sunday Ticket brand violates antitrust laws. The suit took specific aim at the inflexibility of the packages sold to consumers:"The league and DirecTV offer NFL Sunday Ticket only as all-or-nothing. Purchasers of NFL Sunday Ticket must buy all out-of-market games for all teams even if they are only interested in watching the games of a particular team. Likewise, consumers must buy the complete season of games and may not purchase individual games."Major League Baseball and the National Hockey League have been hit with similar suits (which the NFL is also included in), and both leagues have so far responded with slightly-more-flexible fare (like NBA's League Pass, which allows the purchase of individual games). The NFL, however, is also now facing a second lawsuit (pdf) from a sports bar owner in San Francisco alleging that locking bars to DirecTV service to extract "monopoly rents" (From $2,500 to $120,000 depending on size) constitutes an "illegal monopoly":"Defendants have colluded to sell the out-of-market NFL Sunday afternoon games only through DirecTV. Such an arrangement eliminates competition in the distribution of out-of-market Sunday afternoon games and requires anyone wishing to view these games to subscribe to DirecTV and purchase NFL Sunday Ticket at the supracompetitive price dictated by DirecTV."It's unclear if either suit will convince a judge to blow up the NFL and DirecTV's cozy cuddling, but a successful suit could have far-reaching implications. AT&T's $49 billion acquisition of DirecTV is contingent on DirecTV maintaining its exclusive relationship with the NFL, meaning AT&T can walk away should the arrangement crumble. Regardless of the suit(s), you'd hope that the NFL some day wakes up and realizes the benefits of broader, more flexible NFL game distribution when it comes to battling pirated game streams and users who are having to use VPN to get cheaper international NFL streaming options.Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
Techdirt has been covering discussions to establish a harmonized pan-African legal framework for the protection of plant breeders' rights for a couple of years now, in particular the fears that this will benefit Western seed companies the most, at the expense of Africa's plant diversity and seed independence. As the African Regional Intellectual Property Organization (ARIPO) website reports, what is now known as the "Arusha Protocol for the Protection of New Varieties of Plants" has been agreed: The ARIPO Protocol for the Protection of New Varieties of Plants has been adopted by the Diplomatic Conference that was held in Arusha, the United Republic of Tanzania on July 6, 2015. … The Protocol seeks to provide Member States with a regional plant variety protection system that recognizes the need to provide growers and farmers with improved varieties of plants in order to ensure sustainable Agricultural production. Eighteen Member States of the Organization were represented at the Diplomatic Conference namely; Botswana, The Gambia, Ghana, Kenya, Liberia, Lesotho, Malawi, Mozambique, Namibia, Rwanda, São Tomé and Príncipe, Sierra Leone, Sudan, Swaziland, United Republic of Tanzania, Uganda Zambia and Zimbabwe. As well as those African nations, a number of international organizations took part in the discussions: the World Intellectual Property Organization, the EU's Community Plant Variety Office, France's National Seeds and Seedlings Association, the United States Patent and Trademark Office and the International Union for the Protection of New Varieties of Plants. The inclusion of representatives from the US, EU and French plant organizations is indicative of some of the key driving forces behind the Arusha Protocol. That stands in stark contrast to a rather significant absence from the talks: the Alliance for Food Sovereignty in Africa (AFSA), an association that champions "Small African Family Farming/Production Systems based on agro-ecological and indigenous approaches." AFSA writes on its site: Despite AFSA's well-established track record of constructive engagement with ARIPO on the Draft ARIPO PVP Protocol, and despite it being a Pan African network of African regional farmers and NGOs, working with millions of African farmers and consumers, AFSA was purposely excluded from the Arusha deliberations. This is not the first time that AFSA has been unwelcome at ARIPO meetings, as we reported last year. That's presumably because AFSA has long-standing concerns about the whole move towards giving plant breeders greater rights in Africa. Here's its view on the new Protection of New Varieties of Plants (PVP) protocol: The Arusha PVP Protocol is part of the broader thrust in Africa to ensure regionally seamless and expedited trade in commercially bred seed varieties for the benefit, mainly, of the foreign seed industry. Multinational seed companies intend to lay claim to seed varieties as their private possessions and to prevent others from using these varieties without the payment of royalties. Germplasm developed by farming households over centuries is increasingly under threat of privatisation; and ecologically embedded farming practices risk being destabilised and dislodged. The broader modernisation thrust of which the Arusha PVP Protocol is an intrinsic part, is designed to facilitate the transformation of African agriculture from peasant-based production to inherently inequitable, inappropriate and ecologically damaging Green Revolution/industrial agriculture. Such a transformation will lead to many farming households being threatened with marginalisation or extinction, without alternative options for survival. While AFSA is worried that the new Protocol will harm traditional cultivation practices, supporters claim that it will lead to more and better plant varieties being created, to the benefit of farmers. That would obviously be welcome, assuming it isn't simply a cover for multinational companies to privatize and industrialize Africa's food production. Unfortunately, the refusal to allow the participation of representatives of traditional African farming in drawing up the new Arusha Protocol has to raise fears that this is precisely what is planned. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
Police misconduct and abuse allegations are always greeted with defensive department statements about "thorough investigations" and "taking allegations seriously." And yet, when it's all said and done, very little has been done to prevent future abuse. The most common outcome is a temporary reassignment. Sometimes there are suspensions, most of which are simply paid vacations. Even if a cop manages to get fired, his union will step up to try to get him his job back. In some cases, officers are allowed to resign rather than face firing -- a move that ensures vacation, sick time and pensions are paid out. The public is supposed to take these various levels of wrist-slapping very seriously. And law enforcement officers and agencies are supposed to make sure this illusion of accountability isn't completely shattered. But one former officer of a Canadian police department has just stripped the veneer of respectability coating the law enforcement discipline process. Back in 2011, Constable Craig Markham did all sorts of things a cop shouldn't do. On September 28, 2011, the Appellant [Craig Markham] received a text on his personal cell phone from A.S. inquiring about her common law partner, N.C., who had just been arrested and was in police custody facing serious drug related charges. N.C. was an acquaintance of the Appellant. The Appellant accessed the Service’s internal records system as well as CPIC and searched out information regarding N.C. He then proceeded to the cells where N.C. was being held and had a discussion with him. After leaving N.C., the Appellant phoned a mutual acquaintance of theirs, E.C., and advised him that N.C. had been arrested. The Appellant again accessed the Service’s internal records, copied the synopsis form and the occurrence report pertaining to N.C.’s arrest to his Service email account, and emailed it to his personal email account. The next day the Appellant again accessed the Service’s system to inquire about E.C. and A.S Markham was fired for passing confidential information to a member of the public. Or, rather, the Waterloo Police Service attempted to fire him. He appealed the decision, which resulted in three years of paid suspension while he waited for his case to be heard. Markham was finally, officially fired for these violations early last year after his case was heard. No. Wait. He resigned because the Waterloo Police Service Board gave him this option. The Hearing Officer gave the Appellant seven days to resign or he was to be terminated from all employment with the Service. The Appellant sought a lesser penalty. You would think that being allowed a graceful exit and three years of fully-funded free time would be payment enough. But no, Markham had to rub it in. In what has to be one of the stupidest moves ever performed by a disgraced public servant, Markham sent an email to the department's legal rep gloating about his paid time off. (via Information Liberation) A former Waterloo Regional Police officer who was suspended with pay for three years sent an email to police thanking them for his continued salary while he sat at home, played golf, travelled and took a course to become a firefighter. “I am very thankful and fortunate to have received such a nice gift from WRPS over the last three years. You have opened up other doors for me and have paid me to sit back and watch. What a dream come true,” Craig Markham wrote in an email on March 27 addressed to the police service’s solicitor. Markham made over $90,000 a year pursuing his hobbies while his case was being appealed. He might have gotten away with it if he hadn't felt compelled to apprise his former department of the details of his extended vacation. Unfortunately for him, his audaciously moronic move pissed off his former boss. Police Chief Bryan Larkin presented the letter to members of the Region of Waterloo Police Services Board at a meeting last week. “He (Markham) mocks what is supposed to be a fair and judicial system,” Larkin said in an interview. “It sends a bad message to the community,” Larkin said. “More importantly, it harms and takes away from the incredible work of the 760 officers who are out there everyday putting their lives at risk.” Larkin is completely right. And every police department that allows (or is forced to by union contracts) its misbehaving officers to take paid vacations as "punishment" for wrongdoing is making the situation worse. Markham just exposed the system for what it really is: a great way to abuse the public's trust and get paid for doing nothing. Unbelievably, Markham is now trying to play the victim. “I think it’s disgusting that Bryan Larkin released my email,” Markham told the meeting. “He is using me as a scapegoat.” Whatever Larkin is using Markham for, it's the first thing he's earned in over three years. Markham claims the email was sent in a "moment of frustration," but it's rather difficult to square that with his boasts about using unearned paychecks to travel and play golf -- the total of which approaches $350,000. But despite his email's jocular recounting of hobbies pursued and unearned money spent, Markham still maintains he's still an upstanding dude. “I’m not the taxpayer bandit,” Markham said. “It’s not like I came in during the middle of the night with a mask on and robbed the taxpayer.” “It just sounds like I laid on the beach and drank pina coladas for three years.” As for the first part? No, it's actually worse. Markham robbed taxpayers behind their backs, collecting paychecks he hadn't earned while fighting to reclaim a position he didn't deserve. He abused the public's trust and spent more than three years taking their money in exchange for nothing at all. As for the last? I can't think of anyone else to blame for what this "sounds like." If Markham doesn't like being misrepresented by his own words, maybe he should have chosen them more carefully. The only silver lining (beyond a possible overhaul of disciplinary policies in Waterloo) is the fact that only the province of Ontario allows its law enforcement officers to collect paychecks while suspended. If Markham had done the same thing anywhere else, he might have actually felt the sting of accountability. But he did it in Waterloo and managed to continue abusing the public's trust even after exiting the field of public service. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
The Apollo 11 Moon landing was a pretty big deal in 1969 (and it still is). It's been just 46 years since a human being first set foot on the moon, and it's a bit disappointing that we haven't been back more recently. Fortunately, there are some folks still working on manned space exploration (phew, SpaceX..), so people won't be limited to just visiting the ISS or Tiangong 1. If you're a space enthusiast, check out a few of these links on manned spaceflight stuff. Neil Armstrong's Apollo 11 spacesuit isn't on display for the public to gawk at (for its own protection), but a Kickstarter project is aiming to raise a cool half million bucks to digitize the suit and document it thoroughly so that it can be made more accessible to the public. Donations to this project will go to the Smithsonian Institution, and a portion of every donation may be tax deductible. Too bad none of the rewards include a 3D printable file of an entire suit.... [url] China has a unique place in space faring history -- with its taikonauts gaining equal footing with US astronauts and Russian cosmonauts. The Chinese space program has been back to the moon with a lunar rover, and it plans to bring back moon rocks in a couple years. People may walk on the moon again in a few years, too, but they probably won't have NASA logos on their suits. [url] Robert Behnken, Sunita Williams, Eric Boe, and Douglas Hurley will be the next US astronauts... to fly on private spaceships. The first test flights will begin as early as 2017 with SpaceX and Boeing taking astronauts to the International Space Station. Commercial tickets to get to the ISS will cost under $60 million (less than a Soyuz trip), but there's not that much room on the ISS for tourists. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
The NYPD doesn't care for transparency. Its relationship with open records requesters ranges from "frosty" to "antagonistic." It even employs its own in-house, completely arbitrary classification system in order to prevent even more of its documents from making their way into the hands of the public. And, despite policies specifically mandating the preservation of records, NYPD officials are apparently preemptively deleting certain communications to ensure they'll never be made public. Attorneys for the city have failed to turn over even one email from the files of former Police Commissioner Raymond Kelly or former Chief of Department Joseph Esposito regarding summons activity over the last eight years, attorney Elinor Sutton writes in new filings in Manhattan Federal Court seeking sanctions against the city. “It is simply not tenable that Commissioner Kelly and Chief Esposito did not — in the entire period of 2007 through the present — write or receive emails using terms” related to the word “summons,” Sutton writes. Seven years of discussing police business and not once did Kelly or Esposito use the word "summons," one of the most common terms used when discussing police business. How can this possibly be? Well, when you're looking for evidence that NYPD bosses and supervisors instituted illegal quotas, the word "summons" would figure prominently in responsive documents... if said documents hadn't been memory-holed for the preservation of the greater good their positions. And it's not just the top two men in the NYPD that have a "summons" hole in their communications. Searches for responsive emails/texts from three other high-ranking NYPD officials came up empty as well. What Sutton has obtained that points to an unofficial quota system has come from whistleblowers and "other means." Sutton has copies of emails and texts -- sent using NYPD phones/email accounts -- that discuss quota-like "expectations" for officers and reprisals for failing to hit these numbers. But the NYPD's own search for these same documents has found nothing. This either means the NYPD isn't performing thorough searches or it has been destroying incriminating documents. Either way, the NYPD's lack of responsive documents looks very suspicious. And the city itself is complicit in the "vanishing" of possibly culpatory evidence. [C]ity lawyers didn’t advise the NYPD to preserve communications related to summonses until 2013 — three years after the suit was filed, Sutton says. The city won't say much about the lawsuit or its police department's actions, but this contradictory set of sentences says a lot more than the city rep probably intended it to. In a response filed last week, city attorney Qiana Smith-Williams said the alleged evidence destruction was “short on meritorious claims” and that the sides had not yet “exhausted the possibility of a settlement.” If you believe the opposition's case is lacking in merit -- and you have an inexhaustible amount of (public) funds to fight it -- why would you be entertaining a settlement? The obvious answer is this: a settlement would allow the city to end the discovery process, maintain its secrecy, allow those involved in the quota scheme to avoid further examination/punishment. Handing out (public) money to the plaintiffs in settlement form also allows the city/NYPD to move on without having to admit wrongdoing. A payout means nothing changes. Quotas will still remain, but steps will be taken to ensure it's better hidden. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
Muckrock has a story of Alex Richardson, seeking information on the IRS's Whistleblower Office, which has been receiving some scrutiny lately. Richardson filed a bunch of FOIA requests and discovered that the IRS apparently would like to make his life as difficult as possible. First he got an infamous GLOMAR "neither confirm nor deny" response -- which was supposed to be limited to national security issues. However, with at least one request, a package with a CD just arrived... and Richardson was dismayed to find the contents of the CD encrypted. That seems a bit strange for a response to a FOIA request, since whatever is being delivered is supposed to be public, but whatever. The letter accompanying the CD explains, for reasons unknown, that while the IRS was only returning 6 of the 23 pages that had been located, it was doing so with encryption, and it would send the key separately. Again, this seems like weird operational security for public documents. Now, also, in the response letter, it noted that the reason only 6 pages are included is because the rest were withheld under FOIA exemptions: So you had to imagine that in those 6 pages, there should at least be some relevant information. Nope. It appears that the IRS went through all that to give a final middle finger to Richardson, because when he finally decrypted the documents... they're all redacted too. Six pages, entirely blacked out. Which makes you wonder why the other 17 were "withheld" in the first place. What difference could it have made? As Muckrock notes at the end of its piece: Just GLOMAR us next time, IRS. Save us both a lot of grief, and it's a lot less cruel. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
A few years ago, there was no reason to see Apple and Google as direct competitors — but thanks to the mobile space, all that has changed. Now the two tech giants are going head-to-head in a contest for the mobile device market share, but their approaches to this race remain very different. This week, we discuss the nuances of this competition and what these two different approaches can teach us about business models and innovation. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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