posted 11 days ago on techdirt
We were just talking about fan fiction, that most sweet expression of fandom, and why the subjects of that expression shouldn't bother freaking out over it. After all, all fan fiction really is is a love letter to the original creators. Besides, if it's good enough for our founding fathers, it should be good enough for us. More importantly, allowing a fandom to grow and flourish through that kind of expression can literally keep a show going when it otherwise wouldn't. Case in point: Supernatural. If you're not familiar with the show, Supernatural is the ridiculous story of two brothers who kill supernatural things, befriend angels and demons, and generally exhibit the acting chops of a two-day-old potato salad. It's a fun little distraction, but it ain't Breaking Bad as far as the critics are concerned. Oh, and by the way, it's lasted ten seasons, twice as long as originally planned, in part because of a dedicated group of fans that have made the show the 2nd leading television subject on FanFiction.net, behind only Glee (shudder). And it seems the creators of the show know how much they owe to these fans, because they celebrated their 200th (!) episode by making it entirely an homage to fan fiction writers. There are many things that Supernatural does well, one of which being the very idea of using meta episodes to take a trip down memory lane and even make fun of itself occasionally. And no episode was more focused on "The Road So Far" than the show's 200th. Taking a break from the drama of the Mark of Cain and Cas' fading grace, the hour was all about the fans, and more specifically, the fan fiction that has come after 10 years of saving people and hunting things. Yes, the setting for the episode is on the set of an "all-girls production of Supernatural The Musical." Yes, the cast made up of mostly men is represented by female actors, a not-so-subtle nod to the show's demographic. The production is built around a caricature of fan fiction tropes, including everything from sexual tension between the brothers (slash-fic) and the kind of angsty dialogue that is common in fan fiction of this kind. It's over the top and ridiculous...and it's exactly the kind of thing fans of the show will eat up. This is connecting with fans in a wonderful way: not only not hating on the fiction they write, but actually acknowledging it in the show. That's how a campy little show that was planned to last five seasons is on its tenth and counting. Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
The healthcare industry in the US is crazy, and it's not a simple task to assign blame. Many patients aren't paying out of their own pockets because they rely on insurance, but then this arrangement doesn't provide any incentive for patients to try shopping around. On the other hand, even if patients wanted to shop around, it's nearly impossible to determine what the prices of any medical procedures are because they vary widely based on the hospital and what payment arrangements have been negotiated behind closed doors. If you've ever had medical treatment that required any kind of specialized testing or surgery, you've probably never fully understood the resulting bill (congratulations to you if you do understand all your medical bills). Here are just a couple examples of some not-so-uncommon experiences with the healthcare system. Megan Rothbauer had a heart attack, and an ambulance took her to a hospital just three blocks away from a different hospital that works with her Blue Cross Blue Shield insurer. She was unconscious at the time, and the difference has forced her into bankruptcy from the medical bills. If she had been taken to the "correct" hospital, she would have owed about $1,500, but instead her bills exceeded $250,000. [url] Jeffrey Craig Hopper went to the "correct" hospital when he was accidentally hit in the eye with a baseball at a little league game, but he didn't realize that even though the hospital was in-network, that the ER doctor who treated him wasn't. Some states try to minimize this out-of-network billing practice, but during an emergency, it's a bit difficult to shop around for urgent care physicians. [url] Massachusetts passed a law a couple years ago to make medical pricing more transparent, and recently, the state has mandated that insurers must offer real-time prices by provider in user-friendly formats. It's a step in the right direction, but the information isn't exactly consumer-friendly yet because the real-time prices change frequently and are often not listed for easy apple-to-apple comparisons. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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There were some rumors that, with the GOP about to take over the Senate, the Democratic leadership might try to finally move forward with the USA Freedom Act. The Senate bill has been languishing, despite it being considered a "compromise" bill that was widely acceptable to both intelligence community folks and many in the civil liberties community. Over the last few months, civil liberties and consumer activists groups have been growing less pleased with the bill, as the deeper they've explored it, the more worried they've become about some of how it might be abused. However, it's still considered by many to be a good start, if not (in any way) a perfect bill. And, now, Senator Harry Reid has made the move to push forward with the bill in the lame duck session before control of the Senate flips. Reid filed for cloture on the measure late Wednesday, a surprising move intended to address the National Security Agency's mass surveillance practices before Republicans take over the Senate next year. To advance further, the legislation would need 60 votes to end debate on the measure, and then a majority vote to pass it through the chamber. It will be interesting to see if they actually have the 60 votes. Part of the delay has been that they weren't sure that there really were enough votes. And there were still pressures by intelligence community supporters to water down the bill (despite James Clapper saying the bill is okay as is) and by Senators Wyden and Udall to add more privacy and civil liberties protections. If they're moving for cloture, it may mean that Reid is confident that they have the votes... or it's a recognition that it's now or never given the change in control that will happen in January. We'll find out soon enough if this means there's enough support, or if Reid just threw a Hail Mary as a final ploy.Permalink | Comments | Email This Story

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Yes, we're back again with another Roca Labs story already. Lawyer Ron Coleman alerts us to the latest ridiculous legal strategy by Roca Labs: send a DMCA notice to Google to try to hide the negative reviews of Roca Labs on PissedConsumer.com. As you know, Roca Labs is suing PissedConsumer because it hosts some negative reviews of Roca's product (a claimed "alternative" to gastric bypass surgery). The DMCA notice in question claims that thumbnails used on the PissedConsumer reviews violate its copyright, and further, that PissedConsumer violates Roca Labs trademarks by using Roca Labs in the URL for the Roca Labs reviews. The thumbnail image of Roca Labs copyrighted website that can be seen at the URL below. This thumbnail also contains the image of Roca Lab's product that was photographed by Roca Labs and all copyrights are owned by Roca Labs (original studio image is not online). Furthermore, PissedConsumer.com directly uses the name Roca Labs which is a Registered trademarked property (US Registration No. 4145897). To be more specific, pissedconsumer.com uses our company name in the URL and pages. Like many of the legal arguments from Roca Labs, these seem to be almost entirely bogus. First, thumbnail images in this manner are almost certainly fair use -- something Google knows darn well, since it was the key defendant in the case (Perfect 10 v. Google) that established this point. Even outside of that authority, a basic four factors analysis would easily show that using thumbnails for reviews is fair use. Second, the DMCA is not to be used for trademark claims, as the DMCA does not cover trademark. Third, even if it did, the URLs are clearly not infringing, as a huge number of rulings concerning "gripe sites" that use the name of the company they're criticizing in their URL have found. When such sites are clearly not the originating company and there's no likelihood of confusion, such URLs are nearly always found to be non-infringing. Either way, this seems to fit Roca's pattern of doing anything it can possibly do to try to suppress criticism of its product. It really makes you wonder why the company is so worried about letting customers give an opinion about their product, doesn't it?Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
It's been a while since we'd heard anything from the 9th Circuit appeals court concerning Garcia v. Google, the case in which actress Cindy Lee Garcia successfully went after Google for hosting the controversial Innocence of Muslims video on YouTube. Garcia is one of the actresses who claims she was tricked into appearing in the film, leading to death threats. Without doubt, her situation is not a great one to be in, but it doesn't change the basics of copyright law, in which it has long been established that actors do not have a copyright interest in video and film projects they appear in... until Judge Alex Kozinski in the 9th Circuit appeals court suddenly reinterpreted decades of settled copyright law. Back in March, an unnamed judge on the court asked the court to reconsider the case, holding an "en banc" rehearing of the case with a full slate of judges (in most appeals courts en banc would be all judges, but the 9th circuit has so many judges that they limit it to Chief Judge Kozinski and 10 others). Back in April a bunch of folks -- including us at Techdirt -- filed amicus briefs asking the court to rehear. And then... nothing. Well, in July Kozinski issued an "amended" ruling which basically doubled down on the original, but added a few footnotes on how Google might be able to escape Kozinski's own bad ruling with some other arguments at the district level. However, this morning, the court finally announced that it will, in fact, rehear the case en banc, and that the original and amended Kozinski rulings are no longer precedent in the 9th Circuit -- though the current injunction against Google does remain in place. So now we get to go through this process again. It will be some time, but expect a bunch of filings from the parties and amici and eventual oral arguments before a decision. So there's still quite some time until this case is decided -- but, for now, Kozinski's ruling no longer is the "current" word on the matter.Permalink | Comments | Email This Story

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Oh, AT&T. For a good thirty years the telco has used a halt in "network investment" as a bogeyman to scare government away from any and all consumer protection policies. Do something we don't like, AT&T will usually argue, and we won't invest in the technologies of tomorrow, leaving you all stuck in the stone age and regretting the day you tried to challenge us. Usually said network expansion is a phantom; the company will simply manipulate numbers to actually create artificial broadband gaps, then promise to fill those gaps each and every time they want a regulatory favor. AT&T has been doing it again lately with the DirecTV deal -- promising to shore up broadband gaps that should have filled years ago (thanks to billions in government subsidies) if it's allowed to gobble up a pay TV competitor. Basically, I've watched for ten years as AT&T just shaves off a few million users from their existing or already-planned network build projections, then pretends these users will be new upgrades -- but only if AT&T gets deregulated, faces fewer price controls, gets some new subsidies, or is allowed to buy BellSouth, DirecTV, or T-Mobile. This week, "the good time, down home AT&T network investment bogeyman stage show" came to town in the form of a pouting response to the President's clear support for Title II reclassification. AT&T CEO Randall Stephenson has breathlessly proclaimed that the telco is going to freeze fiber expansion because they're concerned about Title II network neutrality protections:"We can't go out and invest that kind of money deploying fiber to 100 cities not knowing under what rules those investments will be governed," CEO Randall Stephenson said..."We think it is prudent to just pause and make sure we have line of sight and understanding as to what those rules would look like," he added."In other words, do what we want or we'll make sure the United States remains a broadband backwater. The problem? It's a childish, transparent bluff, as AT&T gave up on meaningful fixed-line fiber investment years ago. Despite a decade of massive, sweeping telecom industry deregulation, AT&T's fixed-line network investment has consistently dropped like a stone as the telco focuses on wireless services, where socking users with overage fees and imposing bizarre new anti-competitive pricing models is far more profitable. In fact, AT&T announced yet another $3 billion fixed-line CAPEX investment cut just last Friday, long before the President announced he wanted to go to war over Title II. As for those "100 cities," AT&T says were getting fiber under the "Gigapower" brand? All AT&T's really doing is cherry picking a few high-end wealthy housing developments where fiber is already in the ground, then dressing up those deployments to make them look much, much larger than they actually are. It's something I affectionately refer to as fiber to the press release. When Google Fiber entered the market, pampered, competition-phobic, incumbent ISPs like AT&T, CenturyLink and Frontier began putting on a stage show, proclaiming that they too were joining the 1 Gbps race. Usually these announcements come in the form of a press release with absolutely no meaningful statistics in terms of timeline, coverage areas, or the actual number of users covered. That's again because it's largely bullshit: with a few exceptions, the companies are simply bumping speeds in housing communities where in many cases, fiber was in the ground as part of the building process. You'd be amazed (or perhaps not) just how well this works on the press, helping to craft the image AT&T's keeping pace as a next-generation broadband powerhouse. But not only is AT&T not significantly upgrading the majority of its users to fiber, they're actively pulling out of vast swaths of the United States under the guise of something they're calling the "IP transition." As I've noted previously, AT&T's going state by state, promising state politicians amazing new levels of network investment -- but only if AT&T is completely deregulated and all consumer protections (like having to continue to offer dial tone to old people so they can call 911) is stripped off the books. In reality, AT&T's looking to sever the connections of tens of millions of DSL users they don't want to upgrade, which will only strengthen the cable monopoly in many markets. This week, AT&T's once again pretending that if the government doesn't do what the pampered duopolist wants, they'll freeze fiber investments that were already stagnating by choice. It's a bluff that AT&T never stops using because the press, politicians and public seemingly never learn to stop believing it. Of the dozens of technology news outlets covering AT&T's announcement, only a handful could be bothered to mention that AT&T's 100 city promise was incredibly ambiguous and disingenuous to begin with, or the fact that AT&T had cut fixed-line investment projections already just days earlier.Permalink | Comments | Email This Story

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posted 11 days ago on techdirt
Oh, AT&T. For a good thirty years the telco has used a halt in "network investment" as a bogeyman to scare government away from any and all consumer protection policies. Do something we don't like, AT&T will usually argue, and we won't invest in the technologies of tomorrow, leaving you all stuck in the stone age and regretting the day you tried to challenge us. Usually said network expansion is a phantom; the company will simply manipulate numbers to actually create artificial broadband gaps, then promise to fill those gaps each and every time they want a regulatory favor. AT&T has been doing it again lately with the DirecTV deal -- promising to shore up broadband gaps that should have filled years ago (thanks to billions in government subsidies) if it's allowed to gobble up a pay TV competitor. Basically, I've watched for ten years as AT&T just shaves off a few million users from their existing or already-planned network build projections, then pretends these users will be new upgrades -- but only if AT&T gets deregulated, faces fewer price controls, gets some new subsidies, or is allowed to buy BellSouth, DirecTV, or T-Mobile. This week, "the good time, down home AT&T network investment bogeyman stage show" came to town in the form of a pouting response to the President's clear support for Title II reclassification. AT&T CEO Randall Stephenson has breathlessly proclaimed that the telco is going to freeze fiber expansion because they're concerned about Title II network neutrality protections:"We can't go out and invest that kind of money deploying fiber to 100 cities not knowing under what rules those investments will be governed," CEO Randall Stephenson said..."We think it is prudent to just pause and make sure we have line of sight and understanding as to what those rules would look like," he added."In other words, do what we want or we'll make sure the United States remains a broadband backwater. The problem? It's a childish, transparent bluff, as AT&T gave up on meaningful fixed-line fiber investment years ago. Despite a decade of massive, sweeping telecom industry deregulation, AT&T's fixed-line network investment has consistently dropped like a stone as the telco focuses on wireless services, where socking users with overage fees and imposing bizarre new anti-competitive pricing models is far more profitable. In fact, AT&T announced yet another $3 billion fixed-line CAPEX investment cut just last Friday, long before the President announced he wanted to go to war over Title II. As for those "100 cities," AT&T says were getting fiber under the "Gigapower" brand? All AT&T's really doing is cherry picking a few high-end wealthy housing developments where fiber is already in the ground, then dressing up those deployments to make them look much, much larger than they actually are. It's something I affectionately refer to as fiber to the press release. When Google Fiber entered the market, pampered, competition-phobic, incumbent ISPs like AT&T, CenturyLink and Frontier began putting on a stage show, proclaiming that they too were joining the 1 Gbps race. Usually these announcements come in the form of a press release with absolutely no meaningful statistics in terms of timeline, coverage areas, or the actual number of users covered. That's again because it's largely bullshit: with a few exceptions, the companies are simply bumping speeds in housing communities where in many cases, fiber was in the ground as part of the building process. You'd be amazed (or perhaps not) just how well this works on the press, helping to craft the image AT&T's keeping pace as a next-generation broadband powerhouse. But not only is AT&T not significantly upgrading the majority of its users to fiber, they're actively pulling out of vast swaths of the United States under the guise of something they're calling the "IP transition." As I've noted previously, AT&T's going state by state, promising state politicians amazing new levels of network investment -- but only if AT&T is completely deregulated and all consumer protections (like having to continue to offer dial tone to old people so they can call 911) is stripped off the books. In reality, AT&T's looking to sever the connections of tens of millions of DSL users they don't want to upgrade, which will only strengthen the cable monopoly in many markets. This week, AT&T's once again pretending that if the government doesn't do what the pampered duopolist wants, they'll freeze fiber investments that were already stagnating by choice. It's a bluff that AT&T never stops using because the press, politicians and public seemingly never learn to stop believing it. Of the dozens of technology news outlets covering AT&T's announcement, only a handful could be bothered to mention that AT&T's 100 city promise was incredibly ambiguous and disingenuous to begin with, or the fact that AT&T had cut fixed-line investment projections already just days earlier.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Canada's lawful access/cyberbullying bill (C-13) is still creeping through the country's legislative arteries and generally getting worse as time goes on -- as is to be expected when adding cyberbullying to a long list of presumably thwartable horrors like terrorism, child molestation and drug smuggling. What's desired by many is a generous expansion of government and law enforcement powers. And those desiring this expansion have the horrific scenarios needed to back up their requests for more access. The Standing Senate Committee on Legal and Constitutional Affairs has begun its hearings on the proposed law, opening with an appearance by law enforcement representatives. Michael Geist reports: The Ontario Provincial Police (OPP) was part of the law enforcement panel and was asked by Senator Tom McInnis, a Conservative Senator from Nova Scotia, about what other laws are needed to address cyberbullying. We'll pause right there to briefly address McInnis, Nova Scotia and cyberbullying. McInnis is tossing out this leading question because his home province recently passed a truly terrible anti-cyberbullying law in response to a student's death -- a law that leaves it up to accusers and judges (the accused are not invited) to decide whether any sort of action or communication rises to the extremely low bar of being "harmful" to the accuser's "emotional well-being." If said communications are deemed to be "bullying" (again, without input from the accused), police can seize computers and other electronics, along with user data from the accused's ISPs and then shut off internet access altogether. Now that we know why McInnis would like to see cyberbullying addressed, we can return to the statement he received in response from Special Inspector Scott Naylor of the OPP, which ignores the Senator's lob pass and pursues its own agenda. If the bag was open and I could do anything, the biggest problem that I see in the world of child sexual exploitation is anonymity on the Internet. When we get our driver’s licence we’re required to get our picture taken for identification. When you get a mortgage you have to sign and provide identification. When you sign up for the Internet, there is absolutely no requirement for any kind of non-anonymity qualifier. There are a lot of people who are hiding behind the Internet to do all kinds of crime, including cybercrime, fraud, sexual exploitation and things along those lines. Because some people do bad things (and maybe get away with it), everyone should have to apply for a license to use the internet. Sounds very Russian (and, to be honest, even slightly American) -- something no government official in any part of the "free world" should even appear to be considering. Naylor obviously realizes his idea will be unpopular, hence the "child sexual exploitation" lead-in. That makes his assertion binary. Either you're for an internet driver's license or you're for child molestation: which is it? This is a common law enforcement affliction -- seeing anything that makes the job slightly more difficult as a barrier to be eliminated. And, as always, technological advancements are portrayed as being solely advantageous to criminals. The Internet is moving so quickly that law enforcement cannot keep up. If there were one thing that I would ask for discussion on is that there has to be some mechanism of accountability for you to sign on to an Internet account that makes it like a digital fingerprint that identifies it to you sitting behind the computer or something at that time. There are mechanisms to do it, but the Internet is so big and so vast at this point, and it’s worldwide, I’m not sure how that could happen, but that would certainly assist everybody. In that way I can make a digital qualification that that’s the person that I’m talking to. If I had one choice, that’s what I would ask for. Hey, a man can dream. And then he should be asked to stop talking before he embarrasses himself further. Law enforcement agencies love busting criminals, but seem to resent everything else about the job, like performing investigations, acquiring warrants, etc. Naylor wants a nice, tidy database of internet users he can access whenever he feels he needs to. Senator McInnis, who should know better than to touch a politically-toxic idea like this, not only approved this comment for inclusion but stated that he "absolutely agreed" with Naylor's Orwellian wish. But McInnis and Naylor have no idea what they're asking for/agreeing with, at least not in terms of the Canadian court's position on online anonymity. Leaving aside the deeply troubling inference of requiring licences to the use the Internet in the same manner as obtaining a driver’s licence, the police desire to stop online anonymity suggests that the OPP has not read the Supreme Court of Canada Spencer decision very carefully. If it had, it would know that not only does the court endorse a reasonable expectation of privacy in subscriber information, but it emphasizes the importance of online anonymity in doing so. Naylor and McInnis have just sacrificed their credibility for one of the shoddiest and overused of rhetorical devices: child molestation. Much like terrorism, the threat of pedophilia is summoned as often as is needed to suppress rational arguments and ensure the desired outcome is obtained. These two threats are routinely abused to route around citizens' protections and rights. Whatever powers are granted are then deployed to handle routine criminal activity, the sort of thing that fails to move legislators or create memorable soundbites. "Child sexual exploitation" has become synonymous with mission creep and rights erosion, but those in the position to make legislative changes are rarely interested in appearing to be "soft" on sex offenders, and pitch in happily to cart away citizens' rights and pave the way for frictionless law enforcement and mission creep.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
So, the Roca Labs story continues to get more and more bizarre. There are these stories that we follow, sometimes, that we think can't get any more bizarre... and then they do. Joseph Rakofsky, Righthaven, Charles Carreon and Prenda Law all seemed to have trouble recognizing the infamous first rule of holes1. And it would appear that Roca Labs is very firmly in that camp as well. Roca Labs has chosen to sue Marc Randazza, the lawyer representing PissedConsumer in Roca's case against PissedConsumer. Roca is suing him for defamation, but, as Ken "Popehat" White points out, not for anything specific that Randazza has said, but mostly for stuff that we wrote on Techdirt (and some of what was written by Cory Doctorow on Boing Boing) on the bizarre, and simply wrong, assumption that Randazza somehow fed us what to say. Adam Steinbaugh summarizes the situation nicely: Roca Labs’ theory is that Randazza made defamatory statements to the media, which published them, and then proceeded to make the above statements in pleadings against the company.  The litigation privilege does not extend to statements made outside the litigation — such as statements to the media. But this position is circumspect at best: Roca Labs is vague about the statements supposedly made to the media. Roca Labs simply notes that two media outlets — Techdirt and BoingBoing — published articles before Randazza filed the pleadings, and those articles contain statements that are also critical of Roca Labs for similar reasons: that the complaint is ridiculous and that the product has the aura of being snake oil — a miracle product that will let its consumers shed weight like a snake sheds skin. Roca Labs has pulled a bait-and-switch, essentially saying: “look, the media criticized us for similar things that Randazza criticized us, so let’s assume Randazza said those same things to the media.“ Except each of those statements are observations that anyone familiar with free speech issues would probably have made on their own.  The Techdirt article doesn’t even quote or mention Randazza, and it’s not exactly surprising that either outlet would slam Roca Labs’ complaint: these types of half-baked lawsuits are something of a cause célèbre for Mike Masnick (who, himself, is not exactly a scrivener sycophant of Randazza.)  As for the BoingBoing article, it did little more than quote Techdirt, adding, in total: Roca Labs sells dubious snake-oil like a “Gastric Bypass Alternative,” and their terms of service forbid their customers from ever complaining; they say that Pissedconsumer.com committed “tortious interference” by providing a place where disgruntled buyers could air their grievances. Calling something a “snake oil” is clearly an opinion no journalist would formulate on his own without talking to the defendants’ counsel, right? Much less BoingBoing, which never calls anything snake-oil. You can read the lawsuit itself at the link above or embedded below. It makes a huge number of assumptions -- basically all incorrect -- that Randazza spoke to us in particular for our post. He did not. Either way, the Popehat analysis explains why this whole thing is ridiculous: On to the substance of the claim, if I may use the term very generously. Roca — through Johnny G. — asserts that Marc has been defaming Roca Labs during this litigation by making statements to the press (or, as Johnny G. puts it, to "webzines") and then putting those same statements in court pleadings. They imply he's trying to cloak his statements to the media with litigation privilege by repeating them in court filings. This theory is . . . odd. Moreover, Johnny G. and Roca Labs are conspicuously vague about exactly what statements are defamatory, and exactly how. Other than complaining that Randazza defamed Roca Labs through a very clearly satirical tweet on Halloween, there are few specifics. Roca Labs complains that Randazza's purpose is to "mock, ridicule, humiliate, harm, and continue his war against ROCA," but that's not very specific. Roca Labs complains about statements in articles by Techdirt and tries to attribute them to Randazza, but doesn't explain exactly what Randazza said and exactly how it was wrong. That lack of specificity is probably deliberate — if Roca Labs admitted they were mad over the term "snake oil," they'd have to confront the fact that the phrase is obviously protected opinion. See, e.g., Phantom Touring v. Affiliated Publ'ns, 953 F.2d 724, 728, 730–31 (1st Cir.1992) (holding that description of theatre production as “a rip-off, a fraud, a scandal, a snake-oil job” was no more than “rhetorical hyperbole”). Moreover, in some parts of the complaint Roca Labs is attacking statements that are clearly, objectively true based on Roca Labs' own court documents. For instance, Roca Labs angrily quotes a paragraph in which Techdirt accused them of trying to silence customers. Which is what they are doing. Finally, the complaint attaches a motion for a temporary injunction, in which Johnny G. demands that Randazza cease and desist saying mean things about Roca Labs, retract prior mean things, and remove any online content about Roca Labs. At this point I have to admit that I don't know whether Roca Labs and Johnny G. are powerfully stupid, breathtakingly cynical, unapologetically unethical, or all three. Despite the fact that they are suing a renowned First Amendment lawyer, despite the fact that they are demanding an injunction silencing him, despite the fact that they have lost a similar injunction request in which Randazza schooled them on the First Amendment and prior restraint issues, and despite the fact that it is clear those issues will arise again, their motion makes no mention whatsoever of the overwhelming First Amendment and prior restraint issues presented by their demand. So there's that. The complaint against Randazza also seems to try to smear Randazza for the fact that he's represented the First Amendment interests of some pornographers and other "undesirable" folks, including a pro-pedophilia author. As Popehat further points out, Roca's lawyer also appears to use "defamation per se" incorrectly. We've noted in the past that Roca has used that claim based on a clause in its terms of service that says if you say negative things about the company it will count as defamation per se (which is not how defamation per se works), but Roca again seems confused with it in regards to Randazza. Popehat provides the primer: Most people who use "defamation per se" use it wrong. That is the case here. "Defamation per se" does not mean "this is automatically defamatory." It means that certain statements, if proved false with the requisite mental state (malice or negligence), do not require extra proof of special damages. I can't imagine this particular lawsuit will go far, but I do wonder if Roca Labs and its lawyers will ever recognize that first rule of holes. 1. Stop digging ↩Permalink | Comments | Email This Story

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The future has pretty much arrived already. We've been waiting for flying cars and super-smart computers, but if we're willing to accept some flaws, these things exist today. (And if you believe the press releases of Lockheed Martin, we'll only need to wait a few more years for practical fusion!) Here are just a few more flying cars (or roadable aircraft) that could be roaming around neighborhood streets. The AeroMobil 3.0 is the latest working prototype for a flying car that's been under development for nearly 25 years. It doesn't have a price tag yet, but it can be re-fueled at a standard car gas station (when its wings are folded) -- and a previous version has already been certified for flight by Slovakia's Aviation Authority. [url] The Maverick can be purchased for $94,000, but it might not be ready for just anyone to fly it. This flying vehicle uses an airfoil-parachute and is aimed at humanitarian missions in areas without airstrips. While a couple of these flying cars have reportedly crashed, there haven't been any major injuries. [url] The MyCopter project is seriously looking at the field of personal air transport systems (PATS) to make personal aviation vehicles (PAVs) idiot-proof. It's probably not possible to make anything idiot-proof, but this project could outline what makes an aircraft more usable by the general public (instead of requiring a pilot's license to fly). [url] Terrafugia has been working on a flying car and is developing an autonomous version. The prototypes aren't commercially available yet, but they're not too far away. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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When last we checked in on the DC area's professional football team, we had just learned that the USPTO had decided to remove certain trademark protections from certain aspects involving the team's name on the basis that it is a demeaning slur against Native Americans. Whatever you think of that particular decision, things are about to get strange. That decision was made following a petition by five Native Americans who appeared before the USPTO and argued successfully that the term "redskin" is disparaging and racist. Daniel Snyder, owner of the Redskins, has since claimed that the team's name is not racist at all and has vowed to continue the fight to keep his trademarks in place. One would have thought that this would mean going through the normal USPTO appeals process. One would have been wrong, it turns out. Daniel Snyder and the Washington Redskins, who insist that they respect Native Americans, have instead decided to take the five Native Americans who petitioned the USPTO for the removal of the team's trademarks to court in a lawsuit. In June, the five activists – Amanda Blackhorse, Marcus Briggs-Cloud, Phillip Gover, Jillian Pappan and Courtney Tsotigh – won a landmark decision from the US Patent and Trademark Office to cancel the NFL franchise’s trademark registration. In their decision in June, the Patent office board said the trademarks were “disparaging to Native Americans.” In response, instead of taking the case to an appellate court, the team decided to sue the five petitioners in a US district court in Virginia. This is an option used when there is a dispute over a trademark; two companies selling products under the same or very similar logos or names, for example. This case is extremely unusual because the five defendants have no vested interest in the team name or logo – they petitioned to have the trademark protection removed because of its offensive nature. On this basis, the defendants’ lawyers filed a motion to have the case dismissed. And that filing was denied by the judge, who will allow this ridiculous lawsuit to go forward. The team's lawyers apparently feel that using a lawsuit outside of its intended purpose is just fine in this case, even if it means the five activists will have to go through the legal proceedings, which will certainly involve some sort of time and monetary cost to them. It's beginning to look as though Daniel Snyder can't take a breath without pissing off at least some Native Americans. But, again, regardless of what you think of the team's name, the important part of this story is that Snyder and the Redskins are pursuing a path specifically designed to chill speech regarding trademarks a corporation might have in place. Should this start some kind of movement to allow for lawsuits against mere petitioners in trademark disputes, well, the team with the most money wins. The point is that allowing this sort of thing to go forward attaches a legal firearm to every dollar a company has within its coffers. Who will dispute a trademark with the threat of an expensive lawsuit staring them down? But even this move might backfire. While legal experts seem to agree the move is absurd, some of the involved parties are champing at the bit. David Glass, the president of the National Coalition Against Racism in Sports and Media, said that he welcomed the legal challenge. “We’re all smiling. We want to get Dan Snyder in court,” he told the Guardian. I imagine one of the things Glass wants to get on the table is Snyder's ridiculous claim that the removal of trademark protections violates his free speech rights, all while taking five activists to court simply for speaking their minds. It'll take some serious tap dancing to make that look logically consistent.Permalink | Comments | Email This Story

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For years and years, the legacy entertainment industry players insisted that if only Google would censor results so they showed what the legacy entertainment companies wanted -- instead of what users actually wanted -- that unauthorized downloading would magically decrease. There was little evidence to support this, but with increasing pressure and threats of either litigation or legislation, Google caved back in 2012, promising to "downrank" sites that get a lot of DMCA notices. We had warned that, contrary to popular opinion from the legacy entertainment industry, that it's not nearly as easy as they think to do this. And, of course, months later, the RIAA was complaining that Google's new rankings weren't good enough, and the MPAA joined in soon after. Last month, Google announced even more significant changes in its effort to appease the legacy entertainment industry and to "fight piracy." This included a big adjustment to how it downranks sites based on DMCA filings. Apparently, the change pretty quickly resulted in popular torrent sites nearly disappearing from Google's index. Of course, as The Pirate Bay pointed out in response, this change actually meant that it got more direct traffic, since people unable to find what they wanted via Google knew to just go somewhere else instead. But, of course, there are consequences to all of this, and into the fray, a bunch of "lesser known" torrent sites have suddenly been getting more traffic. And... it's also allowed sites more likely to push malware to rank much higher in Google results, as noted by new research by TorrentFreak: While the sites mentioned above are offering torrents and clearly benefiting traffic-wise, we have deliberately left out several sites from our report. Thanks to their lack of DMCA breaches some sites are much closer to the top than they should be when Google is presented with movie + torrent searches. Sadly these sites have something evil in mind – malware. Hollywood might publicly warn that some file-sharing sites are havens for viruses and spyware, but Google’s actions have dredged up the real filth from the bottom and that will mean a lot of people paying the price. Having these sites downranked is not on the agenda. For years, of course, one of the go-to talking points for Hollywood was that engaging in unauthorized downloading would lead to malware -- and it's a talking point that never goes away. The thinking of Hollywood is that (1) this may scare some people away from file sharing and (2) they can claim to the press and politicians that they're looking out for the safety of the public with their policy recommendations. Except... in this case, it appears that it's their own silly demands to rewrite Google's search results that are actually putting more people at risk and driving more people to potential malware. Even if there was some malware on top sites, it was usually spotted and dealt with quickly, and rarely would get popular enough to be highly ranked. But by taking out the more accurate results, malware-laden efforts are suddenly able to rise up the rankings. If the RIAA/MPAA were truly concerned about stopping malware, they'd recognize that their own demands to edit Google's search results have put people more at risk. But they won't, of course. Just like everything else, they'll likely blame Google and say that Google should figure out a way to fix this. But here's the thing: this is what's bound to happen when someone wants to edit Google's results to what they want them to be, rather than what users want. This is the fundamental misunderstanding of the legacy entertainment industry in their hatred of Google. They think it's a search engine for the sites it finds, rather than a search engine for the users looking for stuff. It's a fundamental difference that makes all the difference in the world.Permalink | Comments | Email This Story

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In discussions of Taylor Swift pulling her music from Spotify because the service wouldn't make the music available solely to paying subscribers, which pays higher royalty rates, and Aloe Blacc's Wired op-ed calling for higher royalties for songwriters from streaming services (but see: Spirit Animal frontman Steve Cooper's thoughtful piece in Business Insider on "why Spotify is not the enemy"), there are a few important economic realities being ignored. Spotify currently pays about 70% of its revenue to rightsholders.  That typically goes to middlemen — publishers for the musical work copyright, who then pay a portion to the songwriters, and record labels for the sound recording copyright, who then pay a portion to the musicians. VC David Pakman (who testified in November 2012 before the House Judiciary IP Subcommittee about why the current music licensing scheme deters VC investment in new music services) recently analyzed data from middlemen in a few industries and found that many legacy middlemen are not earning the large share they take from creators in the digital age.  Record labels, for example, contributed a lot more value when they coordinated and financed studio time (which can now be done with a basic computer and Internet connection, and possibly a Kickstarter campaign), manufacturing records and CDs and got them to retailers (which is no longer the primary way of selling music), and marketing (which can be done online with free services).  Now, in the digital age, many of these services are no longer needed or performed. In remarks last week at the Web Summit Conference in Dublin, Bono explained that rather than fighting against streaming, artists should be fighting for transparency: Spotify is giving up 70% of all their revenues to rights owners.  But it's just that people don't know where the money is going because the record labels haven't been transparent. The rightsholder middlemen pay a far smaller share to creators than the substantial majority that the services pay, which depends on whether labels have direct deals with services, a digital aggregator/distributor, or whether artists own their rights, and on artists' contracts with their label, as explained in Future of Music Coalition's helpful infographics on how the money flows. And yet artists appear to often blame the Internet services rather than the publishers and labels.  One potential reason for this is that the artists aren't actually making the decisions; the publishers and labels are, because they own the rights and have the bargaining power.  But often it's those contracts that are the reason they're not getting paid enough, not the services. Pakman's data has Spotify currently paying about 70%.  But how much should they pay?  What is the right amount?  100%?  More than 100%? Lost in many of these discussions is the reality that music sales and streams are not the only way to make money anymore.  Streaming services help artists find fans, which enables them to generate sales of goods, like concert ticket sales and other scarce resources. Another important point is that consumers are going to spend different amounts on music.  Many of them are happy to spend nothing on recorded music, and it's better for that to happen through ad-supported streaming sites like Spotify than through piracy.  (For some more thoughts on the economic theory behind this, including demand elasticity and whether an infringement is a lost sale, see this post.) Rightsholders may have delayed the existence of services like Spotify, and may still want them to not exist (which would occur if they were required to pay out more than they take in).  But consumers want services like Spotify.  And they use them.  About 40% of Spotify's more than 40 million users were listening to Taylor Swift before she pulled her music, which some estimates said comes out to $84,000 a week. Services like Spotify aren't just competing against digital sales on services like iTunes.  (Although in Europe, where Spotify launched first, Spotify is now generating more royalties for artists than iTunes, which comports with recent research finding that global streaming revenue will soon surpass physical sales.)  As DisCo has said in many posts (see, e.g., 1, 2, 3):  Giving consumers lawful affordable options for listening to what they want when they want it in a convenient format reduces piracy. Reposted from the Disruptive Competition ProjectPermalink | Comments | Email This Story

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As we've noticed in the past, if there's a place to start fixing U.S. broadband competition, it's the nearly two-dozen state protectionist broadband laws written and passed by the nation's incumbent ISPs. Said laws either hinder or outright ban towns and cities from building and/or improving their own broadband networks, even in cases where local private companies refuse to. In several instances, the laws even prohibit government collaboration with private companies in any way. The laws are usually passed under the pretense of protecting communities from their own financial missteps, with assorted industry mouthpieces like Marsha Blackburn playing up the failures of a few select municipal broadband projects. Of course, like any business plan, these ventures can be built on solid or rotten frames, and several have been quite successful. In contrast, these protectionist laws take local choice away entirely, replacing it with mechanisms that do little more than insulate the nation's lumbering broadband mono/duopoly from competition of any kind. Fortunately, in the last year or so, these laws have started to see some renewed public attention as projects like Google Fiber have people clamoring for faster, cheaper broadband service. Colorado's 2005 state law hindering community broadband bills was pushed for by local incumbents CenturyLink (formerly Qwest) and Comcast, which, like AT&T, have a long and quite sleazy history of passing awful laws, trying to sue such operations out of existence, or engaging in misleading disinformation campaigns (like telling locals their taxpayer money will go toward subsidizing porn). In Colorado's case, the 2005 law fortunately included provisions allowing locals to build networks if they call for an election. Last week, Boulder and six other communities voted to move forward with the idea of building their own networks. Comcast is busy in Washington trying to maintain a clean facade in order to get regulatory approval of its $45 billion acquisition of Time Warner Cable, so it didn't challenge the efforts, something that helps explain the campaign's success:"How were they able to secure such a big victory? There might be some factors at work that are bigger than even Colorado. Comcast, the state's largest cable provider, did not fight the referendum, perhaps because it is focused on getting its proposed merger with Time Warner Cable approved in Washington. (Comcast declined to comment for this report.)" Like so many technology issues (net neutrality springs to mind), this issue of community broadband has somehow been caught in the partisan politics team cheerleading wormhole, even though letting a giant corporation write your state laws and erode local authority simply to protect its mono/duopoly revenues isn't something either Conservatives or Progressives would support in a sane world. Refreshingly, a lot of the community revolt against these laws currently occurring in places like Colorado, North Carolina and Tennessee is being championed by Republicans and Democrats alike, who collectively (though belatedly) seem to have realized that better, cheaper broadband ultimately benefits everybody. Earlier this year, FCC boss Tom Wheeler stated he'd be using the FCC's authority to ensure "timely" broadband deployment to dismantle portions of some of these laws, though the net neutrality debate appears to have put the issue on the back burner. That's a shame, since we've long pointed out that net neutrality issues are only a symptom of the deeper issue: a lack of competition. Dismantling idiotic laws purchased by ISPs to maintain that status quo is the very first place we need to look if that problem is ever going to be seriously addressed.Permalink | Comments | Email This Story

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As we've noticed in the past, if there's a place to start fixing U.S. broadband competition, it's the nearly two-dozen state protectionist broadband laws written and passed by the nation's incumbent ISPs. Said laws either hinder or outright ban towns and cities from building and/or improving their own broadband networks, even in cases where local private companies refuse to. In several instances, the laws even prohibit government collaboration with private companies in any way. The laws are usually passed under the pretense of protecting communities from their own financial missteps, with assorted industry mouthpieces like Marsha Blackburn playing up the failures of a few select municipal broadband projects. Of course, like any business plan, these ventures can be built on solid or rotten frames, and several have been quite successful. In contrast, these protectionist laws take local choice away entirely, replacing it with mechanisms that do little more than insulate the nation's lumbering broadband mono/duopoly from competition of any kind. Fortunately, in the last year or so, these laws have started to see some renewed public attention as projects like Google Fiber have people clamoring for faster, cheaper broadband service. Colorado's 2005 state law hindering community broadband bills was pushed for by local incumbents CenturyLink (formerly Qwest) and Comcast, which, like AT&T, have a long and quite sleazy history of passing awful laws, trying to sue such operations out of existence, or engaging in misleading disinformation campaigns (like telling locals their taxpayer money will go toward subsidizing porn). In Colorado's case, the 2005 law fortunately included provisions allowing locals to build networks if they call for an election. Last week, Boulder and six other communities voted to move forward with the idea of building their own networks. Comcast is busy in Washington trying to maintain a clean facade in order to get regulatory approval of its $45 billion acquisition of Time Warner Cable, so it didn't challenge the efforts, something that helps explain the campaign's success:"How were they able to secure such a big victory? There might be some factors at work that are bigger than even Colorado. Comcast, the state's largest cable provider, did not fight the referendum, perhaps because it is focused on getting its proposed merger with Time Warner Cable approved in Washington. (Comcast declined to comment for this report.)" Like so many technology issues (net neutrality springs to mind), this issue of community broadband has somehow been caught in the partisan politics team cheerleading wormhole, even though letting a giant corporation write your state laws and erode local authority simply to protect its mono/duopoly revenues isn't something either Conservatives or Progressives would support in a sane world. Refreshingly, a lot of the community revolt against these laws currently occurring in places like Colorado, North Carolina and Tennessee is being championed by Republicans and Democrats alike, who collectively (though belatedly) seem to have realized that better, cheaper broadband ultimately benefits everybody. Earlier this year, FCC boss Tom Wheeler stated he'd be using the FCC's authority to ensure "timely" broadband deployment to dismantle portions of some of these laws, though the net neutrality debate appears to have put the issue on the back burner. That's a shame, since we've long pointed out that net neutrality issues are only a symptom of the deeper issue: a lack of competition. Dismantling idiotic laws purchased by ISPs to maintain that status quo is the very first place we need to look if that problem is ever going to be seriously addressed.Permalink | Comments | Email This Story

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The New York Times has obtained some rather enlightening footage from law enforcement asset forfeiture seminars. In it, various speakers -- including police officers and attorneys -- present this extremely popular law enforcement program as a great way for agencies to get the things they want. Without a trace of self-awareness or remorse, speakers indulge the perverted incentives that have seen this swell from $407 million (in 2001) to $4.3 billion in 2012. In one seminar, captured on video in September, Harry S. Connelly Jr., the city attorney of Las Cruces, N.M., called them “little goodies.” And then Mr. Connelly described how officers in his jurisdiction could not wait to seize one man’s “exotic vehicle” outside a local bar. “A guy drives up in a 2008 Mercedes, brand new,” he explained. “Just so beautiful, I mean, the cops were undercover and they were just like ‘Ahhhh.’ And he gets out and he’s just reeking of alcohol. And it’s like, ‘Oh, my goodness, we can hardly wait.’” Too bad the cops couldn't wait. No Mercedes for them. The city attorney notes, not without remorse, that if they hadn't jumped the gun and had waited until the intoxicated man had actually entered his vehicle, the police could have scored a brand new Mercedes for nothing more than a drunk driving violation. Other officials involved in law enforcement asset seizures were even more blunt. According to the head of the forfeiture unit in Mercer County, New Jersey (Sean McMurtry), assets seized are closely tied to law enforcement agency "wish lists." Mr. McMurtry made it clear that forfeitures were highly contingent on the needs of law enforcement. In New Jersey, the police and prosecutors are allowed to use cars, cash and other seized goods; the rest must be sold at auction. Cellphones and jewelry, Mr. McMurtry said, are not worth the bother. Flat screen televisions, however, “are very popular with the police departments,” he said… Mr. McMurtry said his handling of a case is sometimes determined by department wish lists. “If you want the car, and you really want to put it in your fleet, let me know — I’ll fight for it,” Mr. McMurtry said, addressing law enforcement officials on the video. “If you don’t let me know that, I’ll try and resolve it real quick through a settlement and get cash for the car, get the tow fee paid off, get some money for it.” Prosecutors at this seminar noted that seizures are rarely challenged. Further adding to the imbalance are "first hearings," which are presided over by prosecutors whose offices often directly benefit from asset seizures, rather than by more impartial judges. Adding to this farcical display of "justice" is the fact that many law enforcement agencies have expanded the reach of these programs. What used to be limited to fraud or drug cases -- with the intent being to reimburse the defrauded and cripple the finances of powerful drug dealers -- is now just another form of punishment, one that allows law enforcement agencies to stock up on flat screen TVs and vehicles. [M]cMurtry… said forfeiture contributes to only a small percentage of local budgets but it is a good deterrent and works especially well against repeat offenders, such as domestic violence perpetrators who repeatedly violate a restraining order. As noted earlier, agencies are also seizing the vehicles of drunk drivers, even for first offenses. A police officer attending this seminar notes that the vehicle seized often doesn't belong to the drunk driver, but another family member, like a parent or spouse. But the officer (and the department he represents) doesn't care. The vehicle is as guilty as the suspect, even if the vehicle doesn't belong to the suspect. This allows the PD to punish an innocent party for the wrongdoing of another (and, of course, take advantage of the seized asset). Officials may argue that seizures are a good deterrent, but that was never the program's intention. It was about providing retribution to members of the public (in fraud cases) and weaken large-scale criminal enterprises (like drug syndicates and organized crime). Now, law enforcement agencies are using it to punish drunk drivers and restraining order violators. Vehicles and cash have been seized in cases related to prostitution, shoplifting -- even statutory rape. Law enforcement agencies have found a steady stream of income and they love it. Officers aren't just taking advantage of an easily-abused system. They're actively engaged in telling others how to get the most out of asset forfeiture. The New York Times reviewed footage of three law enforcement seminars and saw all of the following: In the sessions, officials share tips on maximizing profits, defeating the objections of so-called “innocent owners” who were not present when the suspected offense occurred, and keeping the proceeds in the hands of law enforcement and out of general fund budgets[...] Officials offered advice on dealing with skeptical judges, mocked Hispanics whose cars were seized, and made comments that, the Institute for Justice said, gave weight to the argument that civil forfeiture encourages decisions based on the value of the assets to be seized rather than public safety. The Dept. of Justice is actively involved in this exploitative use of asset forfeiture laws. According to documents obtained by Muckrock, the DOJ provides a way for agencies to skirt restrictive state laws and directly profit from asset seizures. Unless their state specifically prohibits it, agencies enrolled in the equitable sharing program can petition a DOJ agency to "adopt" their seizure. In an adoptive seizure, if the local agency has seized the property without any help from the feds, they get to keep 80 percent of the profits while the DOJ takes the rest. Proceeds from joint seizures, in which DOJ agencies cooperate with their local counterparts in the investigation, are split based on how much effort each agency contributed. Even if local governments attempt to head off the inevitable result of these perverted incentives (like Missouri does by diverting asset forfeiture proceeds to its education fund), the federal government is there to kick that door wide open -- yet another way the government of and by the people directly contributes to the abuse of the very same public it's supposed to be protecting.Permalink | Comments | Email This Story

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Part One Billion in "You Don't Own What You Pay For," the ongoing saga in which paying customers purchasing "licenses" find themselves in possession of products inferior to those purchased physically or, worse, to those never purchased at all (i.e., "pirates"). You might have noticed Steam downloading a sizeable update for Grand Theft Auto: San Andreas over the weekend and wondered what that was about. A fancy secret tying into GTA V's return to the west coast, perhaps? Not quite. The patch added support for XInput controllers like the Xbox 360 pad, which is nice, but also removed seventeen songs from various radio stations. No more angsting out and gunning it across Gant Bridge in the wrong lane listening to Killing in the Name, I'm afraid. There's no such thing as a perpetual or "forever" license, not when it comes to content. RockstarNexus has the full list, which seems to include the same 17 songs removed from the iOS versions prior to release. IPhone/iPad users will know these songs are missing going in. But those who purchased the game through Steam are only finding this out after the fact. Rockstar released no patch notes and any account set to auto-update went ahead and stripped content right out of purchasers' games. It's not like Rockstar didn't have options. It has dealt with music licensing issues before, but never in a way that has affected previously purchased games. When music rights expired for some songs in GTA: Vice City, Rockstar left them in for folks who already owned it then made a separate version without them for new purchasers. It's pretty unpleasant that they didn't do the same here too. This would have been the right way to handle this. Bundling in content removal with various bug fixes and notifying no one ahead of time is terrible way to treat paying customers. Add to that the fact that the pushed update seems to be responsible for a number of deleted/bricked saves, and you've got a bit of a PR problem on your hands. But underneath it all lies the absurdity of licensing. Rockstar licensed songs from labels only to see them expire more quickly than the game's marketability. This put it in the position of having to retroactively alter its game, and it was those who purchased nothing more tangible than a license who were negatively affected. Sure, Rockstar will never be able to "own" the recordings used in its game, but it seems like purchasers should be able to keep their purchased goods intact, even if the purchased item is nothing more than ones and zeros scattered across a variety of storage devices. Permalink | Comments | Email This Story

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Back in April, we wrote about massive protests that took place in Taiwan as a result of a lack of transparency during trade negotiations with mainland China. Those protests became part of what is now known as the Sunflower student movement, whose name refers to the use of sunflowers by the protesters as a symbol of hope. Techpresident has a fascinating article looking at the Taiwanese online community called g0v, which has been playing a key part in the Sunflower movement, and which is now trying to make government more open and accessible using open source tools: g0v believes that current online participation tools like social media outlets and online message boards fell short in creating offline action or collaboration. g0v places itself at the center of open-sourced, hands-on, and public-spirited activism with a desire to engage citizens to create real social change. g0v's work is proving that open-source communities can successfully open up and improve government. Ideologically, g0v does not believe that its activism needs to create an enemy out of government, but rather that everyone -- the government and the people -- wins when creative solutions improve existing public structures. The post goes on to describe g0v's hackathons, its first conference, and the Open Political Donation Project. This brought together 9,000 volunteers to digitize 300,000 political donation records as a pointed response to Taiwan's old Campaign Donation Act of 2004, which allowed the public access to campaign donation documents, but only as a paper copy, or in person at a government office. What's fascinating here is to see how the people involved in the Sunflower student movement have moved on from simply protesting against something -- Taiwan's secret trade negotiations with China -- to creating new tools to open up government and engage citizens. As the Techpresident piece concludes: g0v's brand of activism is about making sure government does its job better. g0v explains on its website, it substituted the "o" in gov for a "0" to change the way we see government working. Through civic tech, hacktivism, and a belief that government can and should work, g0v is already showing that it can change the way that government sees itself and the way that people can interact with their government. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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I imagine it must be very, very annoying to be the creator of a video game and to feel as though some other company came along, cloned your work, and is now making money off of that clone. It's this annoyance factor that likely leads to so many legal proceedings over game "clones", even if so many of them fail because the it's the expression that matters in copyright suits, not a general or generic idea. Unique expressions are what matter. Even in totally misguided legal attempts, those involved usually have the good sense to go after games that directly copy graphics and such, not the general ideas behind the games. Which is simply not the case when it comes to Glu Mobile's lawsuit against Hothead Games over the latter's production of Kill Shot and its supposed straight cloning of Deer Hunter. Glu Mobile is suing mobile game studio Hothead Games for copying it popular Deer Hunter 2014 mobile game. Hothead’s Kill Shot isn’t about hunting deer at all. Rather, you’re a sniper that hunts enemy soldiers. Nevertheless, Glu alleges in a federal lawsuit filed in San Francisco today that Hothead’s title violated copyright and trade infringement laws. “Kill Shot is effectively a complete ripoff of our game Deer Hunter 2014,” said Chris Akhavan, the president of publishing at San Francisco-based Glu Mobile, in an interview with GamesBeat. “The only difference is that in Kill Shot, you are shooting humans. In our game, you are shooting deer and other animals.” It's not the only difference, though. Let's get this started by saying that the games do indeed have similarities. They are both shooters undertaken from the first person perspective with realistic guns and aiming sights that are used to shoot living things. But those living things are different, the settings are different, the concepts and themes are different, and even the models of the guns, while both realistic, are different. This is straight copying only insofar as the copying is of common and generic shooter-game concepts. Even the image Glu Mobile hand-picked to include in their filing demonstrates this. Yes, similar, but not the same, and even the similarities are of the basic shooter-game style variety. Yes, you can scope in on targets, but the scopes are different and scopes don't equal copyright. Yes, there's bullet time animations, but that doesn't equal copyright either, or else everyone owes the Max Payne franchise a pretty penny. While similar, these games aren't really any more similar than, say, Doom and Duke Nukem 3D. Or any other first person shooter from the 90's, for that matter. And this is from the image in their filing. Videos of the games in action show the differences more starkly. Again, similar, but they're both shooters, so what did you expect? Generic genre similarities don't rise to copyright or trademark claims. The trade dress claim in particular seems misguided, since the themes involved are quite different and none of the names of the games or companies even come close to being similar. This should end up as yet another lesson that similar generic concepts, such as sniping and zooming, don't translate to cloning as far as copyright is concerned. And, while the filing accuses a lot of copying, the reader is left with the feeling that there isn't a whole lot of weight there. Glu alleges that Hothead Games, based in Vancouver, Canada, copied things like Deer Hunter 2014’s marketing, tutorial, user interface, controls, virtual economy, pricing of items, and even some of its flaws. Akhavan noted, for instance, that a miscategorized assault rifle in Deer Hunter 2014 was also miscategorized in Kill Shot. Glu’s tutorial has 21 steps, of which Glu says Hothead copied 18. Many player reviewers mistake Glu Mobile as the publisher of Kill Shot because of the similarities, Akhavan said. Again, similar, but not the same. It seems clear that Kill Shot was inspired by the type of game genre of which Deer Hunter is a part, but basic interface and control schemes are not creative expression of a protected kind, and pointing to similar mistakes within the games when it comes to whether a weapon qualifies as an assault rifle is a stretch (trust me, it's an easy mistake to make and get yelled at by gun activists for). I can see why Glu Mobile might be annoyed, but I think their time would be better spent building on the massive success of their gaming franchise than in court suing a competitor. Permalink | Comments | Email This Story

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The keyboard and mouse combination has been a standard for several decades now, but there's always room for some improvement. Touchscreens are a nice way to interact with phones and tablets (and phablets), and maybe someday we won't be able to keep our greasy fingers off our 5K desktop and laptop screens either. We're always looking out for interesting input devices, and here are just a few other input methods that might get popular. If you're using a small touchscreen, it doesn't always make sense to cover up parts of it with your finger. Apple will offer its "digital crown" as an alternative to the touchscreen, but there's also a gesture recognition app for devices that have a camera and some decent processing power. [url] Everything gets smaller and smaller, so what's smaller than a smart watch? A smart ring. An integrated accelerometer and some touch sensors could make a wearable ring a more convenient gesture input device. Battery life might be a bit of a challenge for such a small device, but then again the first "smart rings" don't actually look that small. [url] More advanced touchscreens may be able to tell the difference between a finger, a knuckle, a fingernail or a stylus. But will these futuristic devices be able to understand the frustration behind a closed fist banging on them? [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Each year, CEA (the Consumer Electronics Association) inducts a new group of inventors, engineers, business leaders, retailers and journalists to our Consumer Electronics Hall of Fame. And it's not lost on us that we celebrate innovation and disruption tonight in New York City, where New York State Attorney General Eric Schneiderman has fired the most recent shots against creative disruption and the sharing economy in his ongoing attack against Airbnb. The term "sharing economy" refers to platforms that make it easy for anyone to become an entrepreneur by offering up an unused resource for sale or rent, be it an empty bedroom, a parked car or a skill. While still a fledgling industry, the sharing economy will have a substantial impact on our nation's overall economic success -- enhancing competition and consumer choice, lowering barriers to entrepreneurship and boosting consumption overall -- but that depends on regulatory atmospheres at the federal and local levels that promote, rather than stifle, innovation and entrepreneurship. More Choices, Greater Efficiency The sharing economy includes new platforms for existing providers of different goods and services (like transportation, lodging or cleaning) that let consumers compare prices and features before they buy. For example, some people may choose not to purchase a vehicle because they find their needs are met through ridesharing, while others who might decide to buy a new car using their supplementary income from ridesharing. There are also platforms for selling unique items (Etsy) or offering specific, freelance labor services (oDesk, TaskRabbit) – production and exchange opportunities not previously available to consumers. Lowering Barriers to Entry Suppliers in the sharing economy –- sometimes referred to as "micropreneurs" -- have backgrounds as varied as the goods and services available. Peer-to-peer businesses allow for flexibility in hours and payment for skills or basic services that may not constitute full-time employment. More, these jobs eventually may act as "on ramps" to full-time, sole proprietorships or other entrepreneurial activities. Growing the Pie The peer-to-peer businesses enabled by these new platforms can draw on underused human capital: People supplement their full-time jobs with extra work as Airbnb hosts or Lyft drivers, for example, or professional providers can find additional work via platforms like Uber and Kitchit. Technological change that generates more output from the same capital, or that facilitates a more efficient use of labor, increases productivity. This kind of productivity-enhancing, technological change typically contributes to long-term economic growth -- a "bigger pie" -- that can often boost other industries as well. The 2014 Consumer Electronics Hall of Fame induction celebrates the promotion of technology, the delivery of consumer products in new, exciting and profitable ways, and the importance of ensuring that innovation and entrepreneurship can thrive. But when this innovation threatens legacy businesses such as broadcasters, hotels, or taxis, these entrenched industries use their heft to influence regulation and enforcement to block competition. CEA stands with Airbnb and the countless other disruptive innovators that fuel the sharing economy and, in turn, drive our greater economic growth. Gary Shapiro is president and CEO of the Consumer Electronics Association (CEA), the U.S. trade association representing more than 2,000 consumer electronics companies, and author of the New York Times best-selling books, Ninja Innovation: The Ten Killer Strategies of the World's Most Successful Businesses and The Comeback: How Innovation Will Restore the American Dream. His views are his own. Connect with him on Twitter: @GaryShapiro.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
As we just got done stating, the wireless industry would have you believe that it doesn't need net neutrality rules applied to wireless because the sector is just so damn competitive, and all that competition will keep companies on their very best behavior. In a recent Wireless Week editorial, former FCC Commissioner-turned-Comcast-lobbyist-turned-wireless-industry lobbyist Meredith Attwell Baker proudly proclaimed that we don't need neutrality rules because of "82% of Americans having four or more providers competing for their broadband business." Except the number of major wireless carriers doesn't really mean much when AT&T and Verizon together dominate 85% of retail sales, and have an 80% plus market share of the special access market -- the lines that feed cellular towers. And while it's true that T-Mobile has disrupted the industry of late with some more consumer friendly policies and a lot of highly-entertaining rhetoric, there's only so much the company can do with that kind of duopoly in place. In a recent filing with the FCC, T-Mobile highlighted how AT&T charges them an arm and a leg for roaming. AT&T shot back insisting that T-Mobile should spend less time complaining and more time building their own network, but that can be hard to do when AT&T and Verizon also own the lion's share of available spectrum. While AT&T and Verizon fend off neutrality rules by over-stating competition, the press helps their case by repeatedly over-stating T-Mobile's impact on the overall market (price war! price war!). If you pay closer attention, all of the industry's big four players make it clear that despite all the noise, not much has changed. In an investor research note this week, several Jefferies analysts say they've spoken with Verizon Wireless, which doesn't plan to seriously compete with T-Mobile (or a growing chorus of MVNOs) because they feel they simply don't have to:"According to the note, Verizon's management "does not believe the wireless industry feels much different than in the past, contrary to the broad view that competition is intensifying to detrimental levels." Verizon Communications CEO Lowell McAdam and Fran Shammo have made similar comments in public at recent investor conferences. "Management again highlighted that it does not intend to broadly price down its subscriber base, but instead offer discounts to at-risk customers while making surgical plan changes," the Jefferies analysts wrote."And by "surgical," Verizon means "largely cosmetic." So far, Verizon Wireless has pretended to compete by offering superficial price reductions on only their most expensive plans -- with the goal of heavily upselling users. Even T-Mobile, whose escape from AT&T's hungry maw has resulted in a shift away from device subsidies (and toward phone financing plans that may not be any better a value), admits they're not eager to have a price war, even if they could get roaming issues sorted out. Underneath the dull roar of their faux-punk rock CEO Tom Legere, the company's CFO concur's with Verizon's take that meaningful pricing changes really haven't occurred:"The carrier says it has been competing more effectively by doing away with subscriber "pain points" like service contracts and international data fees. But its executives have also been signaling that they don't plan to start a price war. "When you really analyze a lot of the pricing moves that have been made, there has not been a significant repricing," (T-Mobile) Chief Financial Officer Braxton Carter said at a Morgan Stanley conference last week."It's rather nice for them that they have the choice. As we've long noted, you probably don't need net neutrality rules if you've got meaningful competition, but what the broadband industry generally engages in is superficial theatrics, or what I affectionately refer to as "wink wink, nod nod" competition. It's that lack of more meaningful competition that has allowed Verizon and AT&T to engage in all manner of anti-competitive behavior, whether that's attacking users for tethering, blocking Facetime, blocking competing mobile wallet platforms, disabling device GPS so you'll use their more expensive services, cramming, or just good-old fashioned ripping people off with false advertising and stealth charges. Limited competition from T-Mobile can't magically change these realities all alone, and it certainly can't automatically thwart the dumb, anti-competitive ideas to come. That's not to say things can't improve down the road (especially if Sprint can turn its fortunes around and MVNOs improve service coverage and reliability), but declaring that you don't need consumer neutrality protections on wireless simply because four carriers exist isn't much of an argument.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
The last few weeks have revealed a bunch of deceptive practices by law enforcement -- mainly the FBI. First, there was the revelation that the FBI had impersonated an online news story to install malware in trying to track a high school bomb threat. Then, there was a story from a couple of weeks ago about the FBI turning off internet access at some luxury villas in Las Vegas, and then acting as repair technicians to get inside and search the place (while filming everything). That was a story we had hoped to cover, but hadn't yet gotten to it. However, after the NY Times editorial board slammed that operation, FBI Director James Comey wrote a reply defending the FBI's "use of deception." First, Comey defends the fake news story, noting that it was perfectly legal... under "Justice Department and FBI guidelines at the time." As Scott Greenfield notes, this is the "Nixon answer" to questions of illegality by the executive branch: By Comey’s hand, he defines lawful as approved by the Department of Justice and FBI. To put this less tactfully, it’s lawful if he says it’s lawful. It’s the executive branch Nixon answer, that the president can commit no crime because he’s the president. Comey also defends the practice because it worked, as if that's the justification needed: In 2007, to solve a series of bomb threats and cyberattacks directed at a Seattle-area high school, an F.B.I. agent communicated online with the anonymous suspect. Relying on an agency behavioral assessment that the anonymous suspect was a narcissist, the online undercover officer portrayed himself as an employee of The Associated Press, and asked if the suspect would be willing to review a draft article about the threats and attacks, to be sure that the anonymous suspect was portrayed fairly. The suspect agreed and clicked on a link relating to the draft “story,” which then deployed court-authorized tools to find him, and the case was solved. No actual story was published, and no one except the suspect interacted with the undercover “A.P.” employee or saw the fake draft story. Only the suspect was fooled, and it led to his arrest and the end of a frightening period for a high school. Except, of course, all sorts of illegal and privacy-invasive investigative techniques may work to catch criminals, but we don't allow them, because of the impact on everyone else. That's what the whole 4th Amendment is about. And basic concepts like protecting privacy. Yes, we'd catch more criminals if the FBI had mandated microphones and cameras in everyone's house, but we don't allow that because it goes too far. The fact that "it works" makes no comment on whether or not it's appropriate or legal. As for the Vegas sting using fake internet technicians, Comey's response there is even more pathetic, chiding the press for reporting on public filings in the court case before the Justice Department has responded: The Las Vegas case is still in litigation, so there is little we can say, but it would have been better to wait for the government’s response and a court decision before concluding that the F.B.I. engaged in abusive conduct. Marcy Wheeler has the best response to that, highlighting how the FBI, in this very same case (but it's also true in lots of high-profile FBI cases) put out press releases that only gave its side of the story, and claimed things as fact that were misleading and inaccurate -- but didn't seem to have any problem with the press taking its one side of the story without considering the response from the accused: Jim Comey thinks the press shouldn’t report on this until after the government has had its shot at rebuttal? Does he feel the same about the army of FBI leakers who pre-empt defense cases all the time? Does Comey think it improper for his FBI to have released this press release, upon defendant Wei Seng Phua’s arrest, asserting that he is a member of organized crime as a fact and mentioning a prior arrest (not a conviction) that may or may not be deemed admissible to this case? According to the criminal complaint, Wei Seng Phua, is known by law enforcement to be a high ranking member of the 14K Triad, an Asian organized crime group. On or about June 18, 2013, Phua was arrested in Macau, along with more than 20 other individuals, for operating an illegal sport book gambling business transacting illegal bets on the World Cup Soccer Tournament. Phua posted bail in Macau and was released.  I didn’t see the FBI Director complaining about press stories, written in response to the press release, reported before the defense had been able to present their side. And, so, apparently, not only does the FBI director think it's proper to use deceptive practices if "it works," he also thinks that the press should only report on the FBI's side of the story, furthering the deceptive practices with what's effectively propaganda. The use of deception by law enforcement is already questionable enough. Asking the press to be a willing participant in that deception is simply ridiculous.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
For quite some time now, we've been concerned about the continued expansion of "secondary liability" concepts, adding more and more liability for copyright infringement to parties who are often far removed from any actual infringement. There are two major concerns with this. First, putting liability on one party for the actions of another just seems generally problematic. But, perhaps more importantly, when you put potential liability on an unrelated party, the end result is almost always excessive policing in a manner that hinders or entirely blocks perfectly legitimate activity and speech. That's why a recent court ruling in Germany is so problematic. It's the followup to an earlier ruling that found a domain registrar, Key-Systems, liable for actions done by the users of a torrent tracking site H33T. H33T just hosted the torrent (which, we should remind you, is not the actual infringing file), and some users used that tracker to torrent the album Blurred Lines. When H33T failed to respond to a takedown notice, Universal Music went after the registrar, and the court said it was Key-System's responsibility to stop the infringement. Of course, the only way for the registrar to do that is to yank the entire domain. The case was appealed, but the appeals court upheld the lower court ruling. Even though the registrar pointed out (accurately) that it had no way of knowing if the torrent was actually infringing, the court said that the registrar was responsible for assuming it must be infringing once it had contacted the domain owners and not received a response. That's an interesting shifting of the burden of proof. The court also seems unconcerned that the only way the registrar can remedy the situation is to take everything down, saying that if the website didn't want this to happen it should have responded promptly to the takedown notices it had received. Much of this seems to focus on assuming guilt unless one can prove innocence, and further believing that it's somehow "obvious" to recognize when someone is infringing on copyrights. As the Universal Music lawyer tells TorrentFreak in the link above, the company is quite excited about this new power, and will "have this in mind when looking at other domains."Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Recently Techdirt wrote about the extraordinary tirade by the new GCHQ boss, Robert Hannigan, which boiled down to: "however much we spy and censor online today, it's still not enough." It was so full of wrong-headed and dangerous ideas that it was hard to capture it all in one post. Here's one thing we didn't have room for last time: Isis also differs from its predecessors in the security of its communications. This presents an even greater challenge to agencies such as GCHQ. Terrorists have always found ways of hiding their operations. But today mobile technology and smartphones have increased the options available exponentially. Techniques for encrypting messages or making them anonymous which were once the preserve of the most sophisticated criminals or nation states now come as standard. These are supplemented by freely available programs and apps adding extra layers of security, many of them proudly advertising that they are "Snowden approved". There is no doubt that young foreign fighters have learnt and benefited from the leaks of the past two years. Leaving aside the rather pathetic dig at Snowden at the end there, and the unsubstantiated statement that terrorists have benefited from his leaks, the key message here is that strong encryption is now used routinely by the wrong people, and that it presents an "even greater challenge" to the world's security services. If that lament sounds familiar, it's because suddenly, over the last few weeks, it has become the persistent refrain of law enforcement agencies in both the US and UK. First we had the FBI Director James Comey talking about his agency's fears about things "going dark" because of encryption; then we heard from NYPD Commissioner Bill Bratton about how encryption "does a terrible disservice to the public"; a couple of weeks later, former NSA General Counsel Stewart Baker suggested the reason Blackberry had failed was because it used "too much encryption". Now it seems that the baton has been passed to the UK. The day after Hannigan led the way with his piece in the Financial Times, the head of London's Metropolitan Police added his voice to the chorus of disapproval, as the London Evening Standard reports: London's police chief today warns society against letting parts of the internet become a "dark and ungoverned" space populated by paedophiles, murderers and terrorists. In a call for action, Met Commissioner Sir Bernard Hogan-Howe says encryption on computers and mobile phones is frustrating police investigations, meaning parts of the web are becoming "anarchic places". What's particularly interesting is that as part of his visit to New York to make this speech, Hogan-Howe was also planning to meet all the senior US officials who had just voiced their concerns about encryption in precisely the same terms: Sir Bernard has spent several days in talks with New York and Washington police chiefs about the threat of terrorism and what he calls "the challenges and opportunities" of technology. Today he was meeting FBI director James Comey. He was also telling law enforcement experts behind closed doors at the New York police department that the internet is now a safe haven for criminality, adding: "Privacy is important but in my view the security of communications methods and devices is growing beyond what any genuine domestic user could reasonably require." It's hard not to see this as part of a concerted and organized counter-attack against growing calls to rein in US and UK surveillance in the wake of Snowden's revelations. The common line on both sides of the Atlantic is that encryption has gone too far -- that "the security of communications methods and devices is growing beyond what any genuine domestic user could reasonably require". The clear implication is that only "paedophiles, murderers and terrorists" would want strong crypto, and that for law-abiding citizens with nothing to hide, crypto with backdoors is good enough. But it isn't, of course. Law-abiding citizens with nothing to hide have a perfect right to real privacy online, just as they have a right to use doors, walls and curtains to screen off their private lives from the world's gaze. As Techdirt has noted before, placing backdoors in nominally secure systems simply makes them completely insecure, since there is no way to stop the bad people from using them too. Moreover, weakening crypto would not only make the Internet vastly less secure for billions of users, it would also undermine millions of online businesses and thus the economies with which they are now so deeply intertwined. We can expect more of these blatant attempts to demonize strong cryptography, and to paint its mere use as a sure sign of terrorism and depravity. But we have been here before. During the 1990s the US government tried to introduce backdoors into secure communications using the Clipper chip. Civil society won those first Crypto Wars; now it needs to gird its loins to fight and win Crypto Wars 2.0. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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