posted 17 days ago on techdirt
In one respect at least, China's embrace of digital technology is far deeper and arguably more advanced than that of the West. Mobile phones are not only ubiquitous, but they are routinely used for just about every kind of daily transaction, especially for those involving digital payments. At the heart of that ecosystem sits Tencent's WeChat program, which has around a billion users in China. It has evolved from a simple chat application to a complete platform running hugely popular apps that are now an essential part of everyday life for most Chinese citizens. The centrality of WeChat makes the following move, reported here by the South China Morning Post, entirely logical: The government of Guangzhou, capital of the southern coastal province of Guangdong, started on Monday a pilot programme that creates a virtual ID card, which serves the same purpose as the traditional state-issued ID cards, through the WeChat accounts of registered users in the city's Nansha district, according to a report by state news agency Xinhua. It said that trial will soon cover the entire province and further expand across the country from January next year. The Wall Street Journal has some details of how people register: Under the pilot program, funded by the National Development and Reform Commission, people create a basic identity card by scanning an image of their face into a WeChat mini program, reading aloud four numbers that pop up on the screen and entering their identification number as well as other information. It obviously makes a lot of sense to use the WeChat platform to provide a virtual identity card. It's convenient for users who already turn to WeChat apps to handle most aspects of their lives. It means they don't need to carry around a physical ID card, but can let the software handle the necessary authentication when needed. That's also good news for businesses that want to confirm a person's identity. But it's also an extremely powerful way for the Chinese government to implement its real-name policy for online activities, something that it has so far failed to push through. It will mean that the daily posts and transactions carried out using a mobile will not only be available to the Chinese authorities, but will be unambiguously linked to an individual once such digital IDs become obligatory for WeChat users, as they surely will. That, in its turn, will be very handy for implementing the proposed "citizen score" framework. Once this has been rolled out nationwide, it will form one of the most effective means of control available to the Chinese government, especially if combined with a similarly comprehensive plan to collect everyone's DNA. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Six Sigma is a disciplined, data-driven approach and methodology for eliminating defects in any process -- from manufacturing to transactional and from product to service. This course will focus on the sub-methodology, DMAIC (define, measure, analyze, improve, control) to provide you with both an introduction to Six Sigma and how to implement it in your own business practices. Use audio video lectures, simulated exams, flashcards and tool kits to prepare for the Six Sigma Green Belt and Black Belt Certification Exams. You can also earn 80 PDUs for PMI credential holders. You get 1 year of access and 60 hours of content for $49. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff's upcoming book Fire and Fury, in which former Trump "Chief Strategist" Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family -- including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was "treasonous." Trump quickly responded in kind with one of the most incredible statements you'll see (and that's saying something, given the speaker) which starts out thusly: Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party. It goes on. Normally, none of this would be Techdirt-worthy, but late last night, a new twist was added. According to ABC News, President Donald Trump has hired lawyer Charles Harder to threaten Steve Bannon with a lawsuit for defamation, breach of confidentiality and non-disparagement agreements. And, then, this morning, more news broke of another letter, written by Harder, sent to Wolff and the book's publisher, demanding that the book not be published at all -- and that they send Harder a complete copy of the book. So, let's lay our cards on the table here: the lawyer, Charles Harder, is still the lawyer representing a plaintiff in an ongoing lawsuit against us -- and we've written about many of his other lawsuits, including representing the First Lady, Melania Trump. Not much more needs to be said about him. We're also not huge fans of Steve Bannon. Or Donald Trump. Or, for that matter, of Michael Wolff, who has a long history of... not being very good at his job. So, if you want to accuse us of bias in this post, consider it spread all around. ABC did not publish a copy of the actual letter Harder sent Bannon, but did extensively quote it, so we can piece together most of the letter. Here are the various excerpts: "This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent." "You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff’s book and publicity surrounding the marketing and sale of his book." "Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity...." The letter then cites parts of Paragraph 8 of the Agreement: "Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach." The "Damages and Other Remedies" part of the Agreement is then cited, "Notwithstanding anything to the contrary, each Trump Person will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of any Trump Person’s remedies at law or in equity, all of which are expressly reserved." "Further, as the prevailing party in any litigation arising out of your breach of the Agreement, Mr. Trump and the Company will be entitled to 'an award of reasonable legal fees and costs." Phew. Donald Trump, of course, has a long history of threatening defamation lawsuits, not all of which actually come to fruition. He has actually sued for defamation a few times -- but not very successfully. Also, I'm not sure Trump or his supporters should be all that excited about the idea of a Trump deposition either. In the past, those haven't always gone well (though I'm sure the media would salivate over such a thing). Still, having a sitting President sue a former top advisor and former campaign CEO for defamation would be... unusual. Without seeing everything that Wolff has written, nor seeing everything that Bannon has said, it's difficult to know if anything actually reaches the level of defamation -- nor will we speculate one way or the other. Bannon, of course, may not be the most trustworthy narrator -- and there are already reports that Bannon planned to use the book "to settle scores" against people he disagreed with -- such as Jared Kushner. But portraying people negatively, by itself, is not defamation. So far, most of the comments revealed certainly appear to be statements of opinion not fact. But the full book has not yet been released. We will note, of course, that a pretty long history of US case law (and the good old First Amendment) makes it quite difficult to successfully claim defamation of a public figure -- and there basically is no more public figure right now than Donald Trump. Trump would have to show that Bannon said or wrote false things about Trump, knowing that they were false, or with reckless disregard for the truth. That's not an easy standard to meet but certainly not impossible. I would be very surprised if Bannon went that far, but it's not impossible. And, at least in the excerpted portions in the letter, there does not appear to be an explanation of which statements are actually defamatory and how (which is generally what one does if you're claiming defamation and have an actual basis for such a claim). Of course, there may be other concerns as well. Some are already raising questions about Wolff's reporting in the book, which could create an interesting wrinkle should a case actually show up: Becoming increasingly clear to me that Wolff likely sourced most of the juiciest/most scandalous stories from Bannon's various bloviating interviews, and simply took his word for how he characterized the acts/beliefs of others. Very problematic. https://t.co/0d1BLQ3UqB — Jeff B (@EsotericCD) January 3, 2018 And, as noted, Wolff has been accused of questionable journalistic techniques in the past, which he denies, including claims that he "invented or changed quotes." So it's hardly surprising that a bunch of articles are popping up digging into Wolff's history as well. That said, Axios is also reporting this morning that Wolff recorded his interviews, so if officials want to claim that he made up their quotes, that may backfire badly. As for the breach of confidentiality and non-disparagement clauses, those are other issues entirely. It's certainly been reported in the past that the Trump campaign made staffers sign confidentiality agreements which appeared to be quite broad. Whether or not such an agreement is actually enforceable would certainly be an interesting legal question, and one that would be watched quite closely in the courts -- especially seeing as there has been a lot of discussion lately about how non-disclosure agreements were used to silence the victims of sexual assault, and how perhaps such agreements should be made illegal, but nothing's really happened on that front so far. It does seem worth pointing out that there's a built-in contradiction if Bannon's statements are both defamatory and a confidentiality agreement violation. Because if it's violating confidentiality, well, then that's an admission that it's true and not made up. It's possible that Harder is claiming some statements are defamatory while others breach confidentiality --but it'll be fun determining which ones are which. So, does Trump (and Harder) have a legitimate case against Bannon? Without seeing the details it's difficult to say for certain. However, either way, I think we can express our strong opinion that merely having the President of the United States feel the need to bring in a lawyer to threaten a lawsuit against his former top strategist over some negative things said in a book... is a really bad look. It's no secret that our President appears to have an extremely thin skin when it comes to criticism. Threatening lawsuits certainly doesn't help change that impression. As for getting Wolff and publisher Henry Holt & Co. to stop publishing the book entirely? That seems extraordinarily unlikely to happen. The book has already been distributed to bookstores, and getting a judge to order the publication to stop would be clear prior restraint and an absolute violation of the First Amendment. And, for Wolff and the publisher, you have to imagine that they're loving the threat for all the free advertising it's providing. There's a term for that, I think. On top of that, I'd argue that the President of the US demanding an entire book not be published is even more ridiculous than threatening Bannon with a defamation lawsuit. Banning books is most certainly not something the President should be doing and is an affront to the First Amendment. But, of course, Donald Trump has a long history of attacking the First Amendment, so perhaps it's not a surprise. Many may argue that the threats alone may be the point of all of this. Threatening (or even suing) Bannon for saying mean things after leaving the White House may be intended more as a message to other Trump White House staffers (past, present and future) to shut the fuck up, rather than talk to the press. Historically, trying to enforce a code of silence in this manner doesn't tend to work well. It is likely to only lead to more leaking and more talking to the press -- though perhaps with less willingness to put names on the quotes. And, on top of that, threatening the publisher and author seem only likely to interest more authors in writing about the Trump White House in hopes of a similar "free advertising" blitz from the President and his lawyers. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Under Section 706 of the Telecommunications Act, the FCC is required to consistently measure whether broadband is being deployed to all Americans uniformly and "in a reasonable and timely fashion." If the FCC finds that broadband industry is failing at this task (you may have noticed that it is), the agency is required by law to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment" and by "promoting competition in the telecommunications market." Of course given that the telecom sector is often the poster child for regulatory capture, this mandate often gets intentionally lost in the weeds. This is usually accomplished by simply pretending the lack of competition doesn't exist. Or worse, by meddling with broadband deployment metrics until the numbers show something decidedly different from the reality on the ground. It's a major reason why broadband ISPs (and the lawmakers who love them) whine incessantly every time we try to update the definition of broadband to a more reasonable and modern metric. As such, we engage in this endless tug of war depending on how grossly-beholden the current FCC regulators are to regional telecom duopolies. Regulators not blindly loyal to giant ISPs will usually try to raise the bar to match modern needs, as Tom Wheeler did when he bumped the standard definition of broadband to 25 Mbps down, 4 Mbps up back in 2015. Revolving door regulators in turn do everything in their power to manipulate or ignore real world data so that the industry's problems magically disappear. Case in point: the FCC is expected to vote in February on a new proposal that would dramatically weaken the standard definition of broadband. Under the current rules, you're not technically getting "broadband" if your connection in slower than 25 Mbps down, 4 Mbps up. Under Pai's new proposal, your address would be considered "served" and competitive if a wireless provider is capable of offering 10 Mbps down, 1 Mbps up to your area. While many people technically can get wireless at these speeds, rural availability and geography make true coverage highly inconsistent. The original notice of inquiry (pdf) proposed by the FCC tries to frame this manipulation of the data as a matter of efficiency, asking: "Given that Americans use both fixed and mobile broadband technologies, we seek comment on whether we should evaluate the deployment of fixed and mobile broadband as separate and distinct ways to achieve advanced telecommunications capability. Taking into account the differences between the various services and the geographic, economic, and population diversity of our nation, we seek comment on focusing this Section 706 Inquiry on whether some form of advanced telecommunications capability, be it fixed or mobile, is being deployed to all Americans in a reasonable and timely fashion. Would such an inquiry best follow the statutory instruction to evaluate the deployment of advanced telecommunications capability "without regard to any transmission media or technology?" And while that's designed to sound reasonable on its surface, industry analysts like Doug Dawson have quickly pointed out that there's all manner of issues with this effort. One, wireless simply isn't equivalent to a fixed-line connection and may not be for a decade or more in many rural markets, where users not only pay an arm and a leg for capped and metered service, but are often kicked off the network for using these connections like traditional, unlimited fixed-line connections. Folks who believe wireless to be some magical competitive panacea often like to ignore usage caps and higher prices of cellular: "There is a monstrous difference in price between landline and cellular data. A household using 100 gigabytes of cellular data in the month might pay nearly $1,000 per month. Most ISPs report that the average US household now uses between 150 and 200 gigabytes of broadband per month. It’s hard to think of cellular broadband as a substitute for landline broadband with such disparate pricing." Folks that think wireless competition will come and save us all also like to ignore the fact that just two carriers hold a monopoly over business data services and backhaul connections that feed towers, something Ajit Pai's FCC also recently tried to downplay when they redefined what constitutes competition in that segment as well. Again, the goal here isn't efficiency, it's illusion: "The major reason that counting cellular data as equivalent to landline data is that it’s going to largely take the FCC off the hook for promoting broadband. They currently have directed billions from the Universal Service Fund to help build faster broadband networks, mostly in rural America. They can discontinue such programs and not expand their effort if most of rural America is considered to have broadband. With a simple vote a large percentage of rural homes on the wrong side of the digital divide will suddenly have broadband. That’s going to be big news to rural people who already understand that cellular broadband is not really broadband." Again, it's so much easier to justify your apathy to a problem (in this case, broadband coverage and pricing problems caused by market failure and a lack of competition) when you manipulate the data to suggest the problem somehow doesn't exist. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Happy New Year, readers! Here's to the first trademark thuggery of 2K18, propelled by U-Haul's mistaken belief that baseless legal threats are always successful and never result in large amounts of backlash. A little background: several years ago the US Patent and Trademark Office did Americans the disservice of granting two questionable trademarks to U-Haul for purely descriptive phrases: Moving Help and Moving Helpers. U-Haul believes no one should be able to use either of these two words in association with moving assistance services even though there's really no other way to succinctly describe offerings of companies in the moving help business. Years ago, it took a startup that matched up customers with moving helpers to court, claiming everything from trademark infringement to copyright infringement to misuse of trade secrets. It not only sued the startup, but also singled out the husband and wife behind it for separate lawsuits of their own. Since then, U-Haul has apparently targeted several websites for the use of these trademarked phrases, even if the sites made no attempt to lead users to believe U-Haul was the company behind the websites. In terms of customer confusion, it's far more likely customers would be baffled U-Haul "owns" the words "moving help" than by any site not affiliated with U-Haul offering assistance with moving. It's makes about as little sense as granting U-Haul exclusive ownership of the words "moving truck" -- something that, fortunately, has not actually happened. Based on a single courtroom win* and a bunch of successful legal threats, U-Haul has decided to toss its reputation into the internet dumpster. Not content to limit itself to shutting down every use of moving/help/helper it runs across, U-Haul is now in the business of taking jobs away from US military veterans. *More on that "win" below. Gregory Sledge owns Veterans Moving Help LLC, a service that puts homeowners and renters in touch with veterans, providing the former with moving help and the latter with a paycheck. Sledge went from being a homeless veteran to owning his own business, and is now helping out fellow veterans with $25/hour jobs. U-Haul doesn't care for this. Maybe it has nothing against helping veterans earn income, but that will be the end result of its actions if it succeeds. Sledge's business has a solid reputation and several satisfied customers. It also has a URL that U-Haul doesn't want it to have: veteransmovinghelp.com. Late last month, U-Haul sent a cease-and-desist letter [PDF] to Sledge, demanding he shut down his site and surrender the URL to U-Haul. In support of its arguments, it offers its single courtroom victory and a bunch of empty words about infringement. Your use of MOVING HELP® to promote your directly competitive services is likely to cause confusion with UHI’s MOVING HELP® services and as a result constitutes false designation of origin and trademark infringement under section 43 of the Lanham Act, 15 U.S.C. § 1125. The standard for infringement and false designation of origin will undoubtedly be satisfied: The relevant public will believe that there is some connection between the services offered by eMove, Inc. under the MOVING HELP® mark and the services offered by you through your website. Your conduct also clearly violates the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), which prohibits using or registering a domain name confusingly similar to the trademark of another person. Again, the standard for cybersquatting will clearly be met: You have taken a competitor’s trademark (MOVING HELP®) and used it as a domain name (www.veteransmovinghelp.com) to drive customers to your website to promote your directly competitive services. This is the very kind of conduct the Anticybersquatting Consumer Protection Act is designed to stop. These legal salvos make several assumptions -- far more assumptions than any morons in a hurry would. Getting help moving necessitates the use of the words "moving" and "help." Sledge's use of the words is merely descriptive of the services offered. There is zero chance a consumer would think Sledge's site is affiliated with U-Haul, especially if they come across his very reluctant recommendation of U-Haul as a moving service. Sledge's use of the URL for a business with actual customers undercuts the "cybersquatting" accusations. Cybersquatting laws were put in place to prevent speculative purchases of domain names. They weren't erected to prevent multiple companies in the same business from using similar descriptive terms in their URLs. Then the letter gets to the point: putting the "threat" back in "legal threat:" Enclosed is an article from Juris Discourse, which highlights the efforts UHI and eMove are willing to undertake to end misuse of their MOVING HELP® trademark and other intellectual property. As you can see from this article, we engaged in a contentious, expensive and time-consuming two year battle, obtained a significant payment, and forced HireAHelper to stop using our trademarks. I am sending this article to you so you understand the consequences of your improper use of MOVING HELP® on your website. It isn't the victory U-Haul makes it out to be. There was much more in play than incidental use of terms U-Haul managed to secure trademark protection for. The target of that lawsuit - HireAHelper.com -- still exists and is presumably solvent, seven years after U-Haul's "significant" win. U-Haul's counsel also provides a list of websites it has bullied out of existence. Again, this is evidence of nothing. It doesn't shore up its weak claims. All it does is show it's a successful bully. "Might makes right" isn't a credible legal argument and I'm sure U-Haul is hoping for a quick acquiescence rather than actually having to make supportable claims in front of a judge. The threats continue: Should we be forced to pursue this matter further, UHI will seek treble damages, attorneys’ fees, and an accounting of all revenues and profits you have derived from your use of the MOVING HELP® trademark as well as preliminary and permanent injunctive relief and money damages. No one's forcing U-Haul to "pursue this matter further," not even Sledge's refusal to hand over his website nor his angry post on Facebook. U-Haul has zero obligation to pursue this legal threat. Its stupid trademarks aren't going to lapse into unenforceability if it fails to bully a veteran into giving up his livelihood. The onus is on trademark owners to protect their trademarks, but that doesn't equate to scouring the web for common English terms and threatening site owners who have never attempted to portray their offerings as anything more than moving assistance services completely unaffiliated with any nationwide moving company. U-Haul may have been a successful bully in the past, but it's made a serious mistake targeting a company run by a military veteran that provides jobs to other veterans. Nothing pisses people off more than a large corporation trampling all over the little guy just because it has the liquidity and a large staff of lawyers to do so. They tend to like it even less when the "little guys" are men and women who have served their country. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Over the years, Techdirt has published quite a few stories about Vietnam's moves to stifle dissent online. On Christmas Day, Colonel General Nguyen Trong Nghia, deputy chairman of the General Political Department of the People's Army of Vietnam, revealed that the country had secretly created a massive Internet monitoring unit called "Force 47": Nghia said the special force tasked with combating wrongful information and anti-state propaganda is called the Force 47, named after Directive No. 47 that governs its foundation. The team currently has more than 10,000 members, who are "the core fighters" in cyberspace. The three-star general underlined that members of this team are "red and competent," implying that they have both technology expertise and good political ideals in addition to personality. As Tuoi Tre News reports, Force 47 is tasked with fighting "wrongful views". Bloomberg points out some recent moves by the Vietnamese authorities to police the online world: Facebook this year removed 159 accounts at Vietnam's behest, while YouTube took down 4,500 videos, or 90 percent of what the government requested, according to VietnamNet news, which cited Minister of Information and Communications Truong Minh Tuan last week. The National Assembly is debating a cybersecurity bill that would require technology companies to store certain data on servers in the country. The Wall Street Journal notes that heavy sentences have been imposed on people for using the Internet to spread some of those "wrongful views": In recent months, the country has increased the penalties for anyone using Facebook as a platform to attack the government. In November, a young blogger was given a seven-year prison sentence for "spreading propaganda against the state," while a well-known environmentalist, Nguyen Ngoc Nhu Quynh, was handed a 10-year sentence on the same charges in June. Vietnam is hardly alone in wanting to censor online content on a massive scale. As well as the obvious example of China, Germany, too, now requires Internet companies to delete "hate speech". In addition, the UK is threatening to impose tax penalties on companies that don't take down "extremist" material. In order to meet these global demands for rapid and even pre-emptive removal of material, the leading online companies are taking on thousands of people as in-house censors. Both Google and Facebook have promised to increase their "safety" teams to 20,000 people. Against that background, it's hard for the West to condemn Vietnam's latest moves without appearing hypocritical. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Just last month we joked about how confused the creator of PlayerUnknown's Battlegrounds, Brendan Greene, was when he claimed that there was no intellectual property for video games. That's completely wrong, and there are many, many cases to show that it's wrong. Yet... now there's a case that bizarrely, argues that video games don't get copyright (hat tip to Rick Sanders and Owen Barcala for flagging this one). The case is one that's been dragging through the courts for years, bouncing around, concerning publicity rights of former professional football players when used in EA games like Madden NFL. The latest issue involves EA asking for the latest iteration of the case to be dismissed based on another ruling concerning NCAA basketball players and their publicity rights. In that ruling from April of this year, the 9th Circuit ruled (among other things) that federal copyright preempted state-based publicity rights claims. I don't want to dig too deeply into what all of that means, but suffice it to say that under the 1976 Copyright Act, the law says that federal copyright law now trumps all state copyright or copyright-like laws, and you can't hide behind some state law when federal law should apply. Here, the court said that the state-based publicity rights claims were blocked because of that, as the only issue should be covered under federal copyright law, where they would fail. So, EA asked for this other case, filed by Michael Davis, to be dismissed, citing that ruling about preemption of publicity rights claims. But the district court judge, Richard Seeborg, has denied the motion, claiming that the ruling in that earlier case does not apply here. And he does so for... the most bizarre of reasons. Basically, he claims that large parts of video games don't get copyright... because they're interactive. Here, game play in the Madden games is dynamic, interactive, variable, and in the hands of the consumer. Plaintiffs contend the avatars allegedly representing their likenesses even have performance characteristics representing plaintiffs’ own capabilities in their time as active NFL players. While recordings of actual football games are subject to copyright notwithstanding the independent actions of players during the course of the games, such recordings satisfy the requirement of copyright that the work be “fixed” in a tangible medium of expression. See Dryer v. Nat’l Football League, 814 F.3d 938, 942 (8th Cir. 2016) (“Although courts have recognized that the initial performance of a game is an ‘athletic event’ outside the subject matter of copyright . . . the Copyright Act specifically includes within its purview fixed recordings of such live performances.”); 17 U.S.C. § 101. The Madden games, in contrast, allow game play that is not fixed in a tangible medium of expression, and part of plaintiffs’ claims is that their identities are reflected in that game play. So... while there's something compelling about this particular reasoning for those of us who believe copyright has been stretched way too far, I'm pretty sure this is simply... wrong. The term "fixed in a tangible medium" generally just means that the work is somehow "recorded" on some form of media. It's basically saying that ephemeral things do not get copyright, but something that is recorded on paper, film, tape or a digital hard drive or whatever is "fixed." And thus, I'm pretty sure that Judge Seeborg... is just wrong here. There is, potentially, a different argument that might be interesting if the works are created by artificial intelligence -- at which point we'd have to remember Naruto and the fact that non-humans don't get copyright. However, assuming that the actual artistic elements in the game were created by people working for EA, and are "fixed" within the game, it's difficult to see how the judge's ruling would hold up. The fact that the game is dynamic when playing doesn't change the fact that the elements of the game itself are fixed in a tangible medium. I wouldn't necessarily mind it if copyright did, in fact, determine that individual game play elements were not fixed, but I can't see how under the law today that's actually the case. I would imagine that EA will appeal this particular ruling, and lots of copyright holders may weigh in on problems with the ruling itself. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Facebook continues to increase its stranglehold on news delivery, reducing pipelines of info to a nonsensically-sorted stream for its billions of users. Despite the responsibility it bears to its users to keep this pipeline free of interference, Facebook is ingratiating itself with local governments by acting as a censor on their behalf. While Facebook has fought back against government overreach in the United States, it seems less willing to do so in other countries. The reporting tools it provides to users are abused by governments to stifle critics and control narratives. And that's on top of the direct line it opens to certain governments, which are used to expedite censorship. That's what's happening in Israel, as Glenn Greenwald reports: [I]sraeli officials have been publicly boasting about how obedient Facebook is when it comes to Israeli censorship orders: Shortly after news broke earlier this month of the agreement between the Israeli government and Facebook, Israeli Justice Minister Ayelet Shaked said Tel Aviv had submitted 158 requests to the social media giant over the previous four months asking it to remove content it deemed “incitement.” She said Facebook had granted 95 percent of the requests. She’s right. The submission to Israeli dictates is hard to overstate: As the New York Times put it in December of last year, “Israeli security agencies monitor Facebook and send the company posts they consider incitement. Facebook has responded by removing most of them.” This is especially troubling given the context of the Palestinian-Israeli relationship. By favoring Israel's view of "incitement," Facebook is censoring news streams read by Palestinians, giving them a government-approved view of current events. While Facebook is apparently reluctant to take down pro-Israeli calls for violence, it's been moving quickly to delete almost everything Israeli security forces deem "incitement." The info Palestinians see -- filtered through Facebook -- provides a mostly one-sided depiction of ongoing unrest. What makes this censorship particularly consequential is that “96 percent of Palestinians said their primary use of Facebook was for following news.” That means that Israeli officials have virtually unfettered control over a key communications forum of Palestinians. This isn't just a "war-torn Middle East" problem. It's everyone's problem. As Greenwald points out, the company -- which was willing to fight for the rights of US citizens -- seems far less willing to do so when the government's target is a foreigner. Facebook now seems to be explicitly admitting that it also intends to follow the censorship orders of the U.S. government. Earlier this week, the company deleted the Facebook and Instagram accounts of Ramzan Kadyrov, the repressive, brutal, and authoritarian leader of the Chechen Republic, who had a combined 4 million followers on those accounts. To put it mildly, Kadyrov — who is given free rein to rule the province in exchange for ultimate loyalty to Moscow — is the opposite of a sympathetic figure: He has been credibly accused of a wide range of horrific human rights violations, from the imprisonment and torture of LGBTs to the kidnapping and killing of dissidents. But none of that dilutes how disturbing and dangerous Facebook’s rationale for its deletion of his accounts is. A Facebook spokesperson told the New York Times that the company deleted these accounts not because Kadyrov is a mass murderer and tyrant, but that “Mr. Kadyrov’s accounts were deactivated because he had just been added to a United States sanctions list and that the company was legally obligated to act.” That's all it takes: being placed on a list by a government. It's not that Facebook should become a platform for evil people to spread their message, but that it should take more than a government saying it doesn't like someone for Facebook to start deleting accounts. On top of that, Facebook is handling this in classic Facebook moderation mode: Others who are on the same sanctions list, such as Venezuelan President Nicolas Maduro, remain active on both Facebook and Instagram. Sanctions list members should be punished by governments, not private companies. If the US government wants to claim an Instagram account equates to a sanction violation, it's welcome to make that argument in court. The problem with Facebook is its actions are consistently inconsistent. It points to a sanction list it's not even following. It battles overbroad warrants in court, fighting back against baseless intrusions by the government, but grants the government enough credibility to disappear anyone nominated for sanctions by the administration, Around the world, it continues to treat some governments as more equal than others, and it stills seems to prefer access to users to protecting users, especially in countries where censorious actions are the norm. Facebook wants to be all things to all people, but mainly it just wants all people. Sacrificing a few ethical standards is the most expedient choice. While Facebook is welcome to inconsistently apply its moderation standards on its own, it's extremely troubling it's willing to do the same on behalf of world governments. While both may look like censorship, only the latter actually is. And in the long run, it will be the latter that does the most permanent damage. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Intel is in for a very challenging few weeks. Reports began to bubble forth this week suggesting that "nearly all" intel chipsets (and some chipsets from other vendors) have been plagued by a security vulnerability over the last decade that could impact millions upon millions of users. While the full details of the vulnerability have been largely been kept under secret embargo by the security community, the scale of the flaw appears to be monumental. From what's currently known, the vulnerability currently allows programs to gain access to the layout or contents of what previously was believed to be protected kernel memory. You know, the area where everything from passwords, login keys, and files cached from disk are presumably stored away from prying eyes. The problem appears to be unprecedented, and the entire security community is rushing to quickly push out updates for the problem: "There is presently an embargoed security bug impacting apparently all contemporary CPU architectures that implement virtual memory, requiring hardware changes to fully resolve. Urgent development of a software mitigation is being done in the open and recently landed in the Linux kernel, and a similar mitigation began appearing in NT kernels in November. In the worst case the software fix causes huge slowdowns in typical workloads. There are hints the attack impacts common virtualization environments including Amazon EC2 and Google Compute Engine, and additional hints the exact attack may involve a new variant of Rowhammer. So for one, this appears to have been in the wild for years, raising questions as to whether this has already been exploited by the intelligence community and others. And while the nature of the vulnerability isn't being fully disclosed, AMD hinted at the structure of a problem in an e-mail over the holiday to the Linux kernel mailing list stating that AMD products aren't affected: "AMD processors are not subject to the types of attacks that the kernel page table isolation feature protects against. The AMD microarchitecture does not allow memory references, including speculative references, that access higher privileged data when running in a lesser privileged mode when that access would result in a page fault." At least one computer science PHD candidate at Vrije Universiteit Amsterdam claims to have already developed a proof of concept capable of exploiting the flaw to read kernel memory from user mode: Bingo! #kpti #intelbug pic.twitter.com/Dml9g8oywk — brainsmoke (@brainsmoke) January 3, 2018 And while the vulnerability can be patched on the OS level (patches for the Linux kernel are already available even though the notes try to tap dance around the true nature of the issue), early reports indicate these updates could come with a much as a 30% performance penalty, something that will make gamers and other enthusiasts likely weep: "Crucially, these updates to both Linux and Windows will incur a performance hit on Intel products. The effects are still being benchmarked, however we're looking at a ballpark figure of five to 30 per cent slow down, depending on the task and the processor model. More recent Intel chips have features – such as PCID – to reduce the performance hit. Your mileage may vary." In other words, Intel's not only about to take a severe beating for a massive security vulnerability, but the performance of much of its product lineup is about to be dramatically impacted by the fix, which could flood the market with people looking for new, unimpacted CPUs. That's likely great news for AMD sales, but notably less so for Intel PR reps coming off of their holiday break, who'll be tasked with softening the perceived impact of the flaw ahead of more details in a week or two. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Another yearly tradition is, after the new year, we try to take a look at some of the stats on traffic and commenters and such. I know many sites do this before the end of the year, but we're sort of a stickler for actually including the full year's data, so ours comes out sometime after the new year actually starts (and once I have time to really go through the data). For reference, you can see these stories from the past seven years as well: 2016, 2015, 2014, 2013, 2012, 2011 and 2010. As I've mentioned in the past, for comment data, we use our own internal logs. For traffic data, we're using Google Analytics, which... has its own problems -- and which I'm sure many people block. But as we're using it mainly for comparative purposes, it functions as a "good enough" tool for those purposes, even if it may not be entirely accurate. Every year it's fun to see where visitors are arriving from -- and this year Google says visitors showed up from 236 different countries (down three from last year). Since we've been doing this, US traffic has almost always been right around 67% of all our traffic, but this year it bumped up to 70.13%. The UK and Canada remain neck-and-neck and basically tied for second place, with the UK edging out Canada 5.9% to 5.8%. Australia, India, Germany, the Netherlands, France, Finland, and Sweden round out the top 10. The big movers this year were India passing Germany and Finland jumping into the top 10 (leapfrogging over Sweden) and pushing New Zealand out of the top 10. Going around the globe, after India, the Philippines, Singapore, South Korea and Japan round out the top 5 in Asia. The new entrant here is South Korea who had been much lower in the past. In Europe, we've already named the top 6 in the overall top 10 list, but if you're wondering whose next: it's Ireland, Norway, Denmark and Spain. Russia appears to have dropped off the list -- despite quite a few stories mentioning Russia. Hmmm. In South America, Brazil represents exactly 50% of our traffic from that continent, followed by Argentina at 15%, Chile and Colombia each with 8%, and Peru at 7%. In Africa, last year we noted that in previous years most of our African traffic came from South Africa, with negligible amounts coming from elsewhere -- though we started to see traffic from Kenya and Nigeria last year. This year, South Africa still leads, but with just 40% of the African traffic. Nigeria has jumped up in a big way with 23%, followed by Kenya (7%), Egypt (5%), and Ghana (4%). There's always some fun to explore down at the bottom of the list -- and this year we see things like one single visitor from North Korea -- which comes after two years of zero North Korean visits. Perhaps the country's internet is opening up after all (that's a joke for people who take things too literally). As always, the country with the longest average duration visit is Gibraltar, and every year, PaulT takes credit for this as he should. Surprisingly, Bangladesh comes in second for duration on the site, and that's with a decent amount of traffic (over 10,000 visitors). If we're looking at larger countries with significant traffic, India, New Zealand and Canada seem to spend more time on the site than visitors from other countries. As has been the case for a while, Chrome remains the most popular browser by far for visiting the site. While last year it broke 50% of all visits, this year it dropped to 48%. Safari is a strong second at 24%. Firefox checks in at 12%. Microsoft's Internet Explorer (4%) and Edge (2%) are barely noticeable -- though they still beat Opera at 0.6%. Windows is the top operating system at 41%, Android is second at 23%. iOS is (again) close with Android at 21%. Macs are 10% and Linux is 3%. Chrome OS shows up at 0.5%. And a miraculous 0.01% of you visited Techdirt on an Xbox. Really: you don't need to do that. I'm happy to see that I actually don't have very good data on what ISPs most of you are using, as it's showing up as "not set" for a bunch of folks, and the numbers on those who are revealing what ISP they're using aren't really big enough to determine very much. Hopefully, this means many of you are practicing good internet hygiene in cloaking information about your connection and what sites you're visiting. For the past few years we've been posting the following chart of where our traffic comes from: As I said last year, we pride ourselves on the fact that so many of our visitors come directly to the site, rather than relying on social media or search, like so many other sites do. Some argue that this means we're leaving traffic on the table by not focusing on pumping up social and search traffic. We like to believe we're building a more loyal audience who visits us because they like what we do -- and it also means we don't have to freak out every time a platform like Google or Facebook changes an algorithm. It's nice to see that our percentage of direct traffic has gone up this year, from 38.5% last year to 42.5% this year. Search traffic declined from 31.3% to 26.5%, while social went up a small amount from 17% to 18.1%. For the sources that do send us traffic, however, Reddit leads the way (yet again), followed by Twitter and Facebook and Hacker News. Other specific sites that have sent us a decent amount of traffic include Instapundit, Drudge Report (though I think that was all from one story) and Popehat. For search traffic, most of the terms that sent a lot of traffic tended to be variation on "techdirt" -- showing how many people use the search bar for navigation these days. Two amusing search terms that ranked fairly high: "can you plagiarize yourself" and "louie louie lyrics." If you're wondering why we got a bunch of search traffic on that one, it's because of this 2015 story we did about the FBI spending years researching the lyrics trying to figure out what they mean and if they're bad -- before realizing that the Kingsmen must have submitted the lyrics to the Copyright Office. And, with that, we move onto the big lists: Top Ten Stories, by unique pageviews, on Techdirt for 2017: Software Company Shows How Not To Handle Negative Review FCC Releases Net Neutrality Killing Order, Hopes You're Too Busy Cooking Turkey To Read It The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity Dead People Mysteriously Support The FCC's Attack On Net Neutrality Supreme Court Says You Can't Ban People From The Internet, No Matter What They've Done Cops Sent Warrant To Facebook To Dig Up Dirt On Woman Whose Boyfriend They Had Just Killed FCC Plan To Use Thanksgiving To 'Hide' Its Attack On Net Neutrality Vastly Underestimates The Looming Backlash Sean Spicer Launches Witch Hunt Over The 'Secure' App He Just Said Was No Big Deal Michigan Lawmaker Flees Twitter After Reports Highlight She Helped AT&T Push Anti-Competition Broadband Law Techdirt's First Amendment Fight For Its Life Glad to see the net neutrality posts got a lot of love this year, though it's not that surprising, I guess. As per usual, posts on the general theme of companies and governments behaving badly tend to be... popular. Perhaps that should be our official tagline... 2017's Top Ten Stories, by comment volume: Techdirt's First Amendment Fight For its Life: 413 comments Our Humanity: 398 comments The FBI Is Apparently Paying Geek Squad Members To Dig Around In Computers For Evidence Of Criminal Activity: 358 comments Defending Hateful Speech Is Unpleasant But Essential, Even When Violence Is The End Result: 322 comments Nazis, The Internet, Policing Content And Free Speech: 288 comments More Legislators Jump On The Blue Lives Matter Bandwagon: 268 comments Case Dismissed: Judge Throws Out Shiva Ayyadurai's Defamation Lawsuit Against Techdirt: 259 comments One Twitter Account's Mission To Make White Supremacists Very, Very Famous: 256 comments Ajit Pai's Big Lie : 252 comments Techdirt Survival Fund: I Support Journalism: 248 comments As we point out every year, the number of comments on a story is often not a good indicator of how much traffic it gets. This year, there were only two posts that show up on both lists. Perhaps it's not surprising that this list differs from the traffic list in that it tends to stray more into "controversial" (read: political) topics than that first list. And, of course, those three posts about the lawsuit against us also received quite a lot of comments as well. Okay, you've made it this far... so now we get to the part people are most interested in every year: the specific lists of individual commenters (well, registered commenters, at least). Obviously, we get a ton of anonymous comments or comments from people who put in usernames, but never register -- but we can't track those, so these lists are only to those who have actually registered. 2017 Top Commenters, by comment volume: That One Guy: 1839 comments PaulT: 1774 comments Roger Strong: 1527 comments Ninja: 1335 comments orbitalinsertion: 1122 comments Stephen T. Stone: 1101 comments Anonymous Anonymous Coward: 682 comments That Anonymous Coward: 680 comments Bergman: 666 comments MyNameHere: 657 comments There's quite a drop off between the 6th and 7th place commenters, huh? It's nice to see some new entrants on the list this year -- with some big names in the past dropping beneath the comment threshold. Of course, one commenter who made last year's list under a different name is almost certainly on this year's list with his "new" name. I'll leave it to you to figure out which one. It should be fairly obvious for regular comment participants... I also don't know why, but I find it amusing that Anonymous Anonymous Coward and That Anonymous Coward came within 2 comments of one another. Top 10 Most Insightful Commenters, based on how many times they got the light bulb icon: Parentheses shows what percentage of their comments got the lightbulb That One Guy: 328 comments (18%) Roger Strong: 239 comments (16%) PaulT: 191 comments (11%) Stephen T. Stone: 129 comments (12%) That Anonymous Coward: 111 comments (16%) Ninja: 102 comments (8%) Mike Masnick: 58 comments (17%) TechDescartes: 47 comments (17%) Anonymous Anonymous Coward: 46 comments (7%) Uriel-238: 42 comments (9%) Not as many changes on this list, though it's only the second year I made this list (with a much higher percentage than last year too!). That One Guy continues his reign at the top of this list -- this is his third year in a row winning the top spot (by a wide margin each time). Roger Strong made a big jump from number 9 last year to number 2 this year, jumping past PaulT (among others) who was in second place last year only to slip to 3rd this year, despite a much higher number of comments getting flagged as insightful. Nice going everyone. Top 10 Funniest Commenters, based on how many times they got the LOL icon: Parentheses shows what percentage of their comments got the LOL icon Roger Strong: 138 comments (9%) TechDescartes: 74 comments (28%) Stephen T. Stone: 24 comments (2%) That One Guy: 24 comments (1%) That Anonymous Coward: 17 comments (3%) Toom1275: 15 comments (5%) Vidiot: 13 comments (9%) stderric: 13 comments (5%) Ninja: 12 comments (1%) MyNameHere: 11 comments (2%) Last year we noted that TechDescartes had shown up towards the end of 2015 but still managed to make it deep into the list of funniest comments that year, and then last year TechDescartes absolutely dominated the leader board. However, this year, Roger Strong leapfrogs over TechDescartes with a huge number of funny comments (though TechDescartes still has an astoundingly high batting average). There's a pretty spectacular drop off after those two. Some of you commenters need to up your funny game -- especially when it appears that at least one of the winners on this list is there sarcastically (I'll leave it to you to figure out who). Okay. With that, the books are closed, and folks need to rev up their commenting engines to get a jump on 2018's list... See you in the comments. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Dive into the world of self-driving cars, speech recognition technology and more with the $39 Complete Machine Learning Bundle. Over 10 courses, you will learn about pattern recognition and prediction and how to harness the power of machine learning to take your programming to the next level. Discover quant trading, how to use Hadoop and MapReduce to tackle large data sets, how to create a sentiment analyzer with Twitter and Python, and much more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Social media platforms doing business in Germany can look forward to a year filled with fines of up to €50m. Germany's hate speech law went into effect on January 1st, providing the country with a new revenue stream it can tap into for the rest of whatever. The Netzwerkdurchsetzungsgesetz (NetzDG) law was passed at the end of June 2017 and came into force in early October. The social networks were given until the end of 2017 to prepare themselves for the arrival of NetzDG. The law gives social media platforms 24 hours to remove "obviously illegal" content. This, of course, raises the question about how obvious "obviously illegal" content needs to be to trigger the 24-hour deletion requirement. Presumably, the government gets to decide how "obvious" the illegality is and how often it gets to collect millions of euros. In what must be considered a show of government largesse, one week will be allowed to handle "complex" removal orders -- again, something likely determined solely by the German government. Given Germany's ultra-weird relationship with its Nazi past, the difference between complex and simple takedown demands isn't likely to be clear cut, putting companies in the path of fines and further German government grousing. I understand that American companies are somewhat obliged to follow local laws when providing services overseas, but they should not be put in the position of being held criminally and civilly liable for the posts of their users. They can attempt to moderate content with an eye on local statutes, but the fines for posting "obviously illegal" content should be levied on the person posting it, rather than the service provider. This ridiculous shifting of liability is even more egregious in Germany. Not only are service providers fined for not removing illegal content, EMPLOYEES of these companies can be directly fined as well. [T]he law also provides for fines of up to €5m for the person each company designates to deal with the complaints procedure if it doesn’t meet requirements. We often see government officials claiming the billions of dollars in profits Google, Facebook, et al rack up somehow should result in perfect compliance with every esoteric, content-related complaint worldwide. But no one's claimed individual employees tasked with government compliance are callous billionaires, and yet the German hate speech law makes that equation with its willingness to bankrupt individuals for not responding to government removal demands fast enough. There are concerns in Germany this law could lead to government censorship and a restriction of free speech. These concerns have already materialized somewhat indirectly. A regime with an interest in censorship and curtailing criticism has already pushed out a carbon-copy of Germany's law. This gives Russia the opportunity to push companies into performing censorship on its behalf, with Germany to point at when critics start questioning Russia's actions. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
If you listen to Comcast , AT&T, Verizon and their army of paid allies, nothing bad will happen now that the FCC has voted to kill net neutrality protections. In fact, Comcast argues, without government oversight of an uncompetitive market, investment and jobs will soon be miraculously springing forth from the sidewalks. It will, the industry argues, be impossible to even measure the incredible innovation that will be created by letting entrenched ISPs (and their natural monopoly over the broadband last mile) run roughshod over the backs of American consumers and smaller competitors. But even among folks that support net neutrality, there's pretty clearly a contingent that still believes the damage caused by the repeal of the rules will somehow be subtle. Because the net neutrality debate in recent years wandered into more nuanced and quirky areas like interconnection and zero rating, they believe the ultimate impact of the repeal will likely be modest. After all, these harms (like Comcast exempting its own content from usage caps, or Verizon covertly choking interconnection points) were murky and out of the intellectual or technical reach of many Luddite consumers. The good folks at Boing Boing, for example, warn readers that the impact of the death of net neutrality will somehow be "hard to spot." Julian Sanchez similarly shared his concerns that net neutrality advocates are harming the overall goal of the movement by warning of dire outcomes in the years to come. Actual harms, Sanchez insists, will be "pretty much invisible": I suspect the doomsday approach to net neutrality is going to backfire badly. Because if the sophisticated neutrality arguments are right, the actual harms are all going to be pretty much invisible to the end user. The visible effects will be stuff people like. — Julian Sanchez (@normative) December 15, 2017 Of course most of the folks that really understand net neutrality have acknowledged that the harms initially may be muted. ISPs will initially want to be on their best behavior in the new year as they wait for the inevitable lawsuits against the FCC (for ignoring the public and ignoring rampant comment fraud) to shake out, wary of providing the ongoing proceedings with any ammunition. And, as we've noted, ISPs are well aware that even then the rules could simply be recrafted at a later date, which is why they're pushing for a fake net neutrality law that makes federal apathy on the subject the law of the land. But should ISPs win in the courts or on the Hill, the end result of what they're trying to accomplish will be anything but subtle. Anybody believing otherwise doesn't understand the full scope of what ISPs lobbyists are (so far successfully) up to here. That's because the FCC didn't just repeal net neutrality. The repeal of the neutrality rules is, in fact, just one part of a much larger vision the ISPs have been lobbying for for years. And that vision includes gutting FCC oversight of broadband ISPs entirely, then shoveling any remaining oversight to an FTC whose authority over ISPs is currently being challenged in court and may soon be all but worthless. With federal oversight out of the way, ISPs have also successfully lobbied the FCC to pre-empt any states that get the crazy idea of protecting consumers from these regional telecom mono/duopolies. Subtle, nuanced violations of net neutrality (like zero rating) were the end result of fairly tepid, inconsistent regulatory oversight of administrations' past. But what we're talking about here is the wholesale dismantling of adult regulatory oversight of some of the least-liked, least-competitive companies currently operating in America. Anybody that has studied history (or watched Comcast and AT&T do business) and still thinks the resulting harms will be subtle once adult supervision leaves the building simply doesn't understand the full scale of what's being attempted here. As such, "net neutrality violations" will only be a small part of the problem. Net neutrality infractions are just a symptom of a lack of competition. They're just "creative" efforts to abuse a lack of competition. With neither oversight nor competition, there's no longer a need to be creative or measured. And the impact will be a diverse array of compounded problems, including higher prices, expanded and tightening usage caps and overage fees, even worse customer support (if that's possible for the telecom sector) and even greater privacy abuses than we've grown accostomed to. Should Comcast, AT&T and Verizon successfully win in court and make the repeal permanent, all bets are off. History tells us repeatedly that the one-two punch of regulatory capture and limited competition has very real, very obvious harms. With no rules and little to no real oversight, there will no need for the pretense we saw as ISPs attempted to creatively tap-dance around the FCC's modest 2015 rules. If you think these companies will be reasonable and measured when they finally receive the green light, you may soon get a very intimate lesson in regulatory capture and natural monopolies. That said, there remain reasons for hope. The FCC engaged in so much bizarre behavior, made so many procedural gaffes and leaned so heavily on bogus data that the repeal has a good shot at being overturned in the courts. And the subsequent efforts to have ISP cronies in Congress pass bogus net neutrality rules appear to be facing too much justifiable skepticism to gain much traction (though this effort will see a renewed push with multiple legislative efforts -- and lots of phony, farmed support -- in the new year). With a little luck and some elbow grease, the doomsday scenarios quite correctly being predicted may still not come to pass. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Something with a hint of retaliatory ugliness has reared its head in Laredo, Texas. Citizen journalist Priscilla Villarreal has been arrested for releasing information Texas law enforcement meant to keep secret. Villarreal -- a.k.a. Lagordiloca -- has been an unofficial fixture of Laredo nightlife for a few years now, cruising the town after dark to livestream footage of newsworthy events. She's well-known to local law enforcement, though not exactly well-liked, which may have something to do with her recent legal troubles. Villarreal, 32, surrendered to Laredo police on December 13 after being charged with two felony counts of “misuse of official information,” stemming from her reporting on a Border Patrol agent’s suicide last April. Villarreal denies that she did anything illegal, and her attorney says the police department is simply trying to silence her because it does not like the way she reports. She often swears while she narrates her live-streamed footage, and she sometimes captures graphic images. She has been known to verbally spar with police officers in public. "Misuse of official information" could be defined as nearly anything, thanks to its loose construction. It criminalizes the publication of information the government wishes to keep secret if the government feels the person doing the publication intended to profit from it or defraud someone by using it. Neither of those seem to fit Villarreal's actions, but that hasn't stopped the PD from moving forward with charges. Police allege that Villarreal solicited information—the identity of a Border Patrol agent who committed suicide—from police officer Barbara Goodman before the department officially released that information through its public information office. “Information provided by Officer Goodman pertaining to the case in question was used by Priscilla Villarreal in her Facebook page ‘Lagordiloca News Laredo TX,’ immediately notifying her followers of the incident,” states the criminal complaint filed against Villarreal. “Villarreal’s access to this information and releasing it on ‘Lagordiloca News Laredo Tx,’ before the official release by the Laredo Police Department Public Information Officer placed her ‘Facebook’ page ahead of the local official news media which in turn gained her popularity in Facebook. That last part -- "gaining popularity" -- is the linchpin of the Laredo PD's case. That's the closest the department can come to satisfying the "profit from" aspect of the law. But it's unclear that the attention of Facebook followers is enough to make these charges stick. This is the end result of a months-long investigation of Officer Goodman and Villarreal's relationship. According to the police, Officer Goodman and Villarreal had more than 500 phone conversations from January to July of 2016 -- some of them supposedly coinciding with Villareal broadcasts where information that hadn't been officially released by the department sometimes made its debut. Included in the info retrieved from Goodman's phone were messages about the Border Patrol agent who committed suicide. If there's anyone at fault here, it's the officer handing out confidential information to the press. But no charges have been filed against Goodman, who may not have published the info, but handed it over to someone with the capability to do so. The PD only seems interested in Villarreal, who did nothing more than publish information given to her by a law enforcement officer. This push by the Laredo PD to silence a journalist may end up being nothing more than a departmental embarrassment. Police officials probably should have discussed the proposed charges with their partner in crime(fighting) before issuing an arrest warrant. The Webb County District Attorney's Office has never prosecuted a misuse of information case involving a citizen, the office's spokesperson said Friday. There's no reason the DA should start now. The PD appears to have sniffed out the source of the leaks. It's that source who should face punishment for the violations the department is trying to pin on Villarreal. A journalist isn't expected to know what information is being rightfully withheld by law enforcement, and that determination is even harder to make when the info is received directly from a law enforcement officer. This looks far too much like the PD flexing its muscle to make life miserable for a freelance journalist officers don't particularly care for. It bears no resemblance to the actual job of law enforcement. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
There may be a significant shift in police interrogation methods over the next several years. The Marshall Project reports one of the nation's largest police consulting firms is abandoning a technique that has been used by a majority of law enforcement agencies over the last six decades. It's called the Reid Technique, and it's been linked to a large number of false confessions. But after fifty-plus years of religious reliance on the technique, the consulting firm says it's no longer going to be training officers to deploy it. Wicklander-Zulawski & Associates, a consulting group that says it has worked with a majority of U.S. police departments, said Monday it will stop training detectives in the method it has taught since 1984. "Confrontation is not an effective way of getting truthful information," said Shane Sturman, the company's president and CEO. “This was a big move for us, but it's a decision that's been coming for quite some time. More and more of our law enforcement clients have asked us to remove it from their training based on all the academic research showing other interrogation styles to be much less risky." It should have been viewed as risky from the beginning. The technique, first deployed in 1955 by a police polygraph expert named John Reid, uses nine steps to push arrestees towards confessions. It relies in part on officers making judgment calls on body language, when not encouraging them to directly lie to arrested subjects. The thing about the Reid Technique is that the first deployment in 1955, by Reid himself, secured a false confession. This resulted in a state supreme court decision tossing out the suspect's conviction on the basis the false confession had been coerced. Despite this inauspicious start, the Reid Technique has remained popular pretty much everywhere, even as confessions secured with the technique are frequently proven to be false. Given its creator was deeply fond of polygraph testing, it should come as no surprise the confessions elicited by the technique would be dubious at best. The company behind the technique claims it's still as useful as ever, if not even better given recent, unspecified "updates." Joseph P. Buckley, the president of John E. Reid & Associates, which licenses the Reid method, said Wednesday that Wicklander-Zulawski’s announcement was “very misleading and disingenuous.” He said the technique has consistently held up in court and that it is not “confrontational” except when evidence already suggests the suspect’s guilt. The technique relies on confrontation. It relies on officers lying about the amount of evidence they've gathered, making false claims about admissions from conspirators, or simply refusing to believe anything an arrestee says unless it agrees with their predetermined conclusions. It's a terrible system but it's been in use for years and no one's in a hurry to let it go -- especially when convictions and plea deals go on the immediate bottom line. Exonerations -- if and when they happen -- are years or decades down the road. They're someone else's problem on someone else's criminal justice ledger. The sad thing is the Reid Technique was better than the interrogation technique it replaced: violent beatings. But all it did was shift the violence from the front of the house to back of the house, replacing beatings with a large number of easily-avoidable false confessions. After decades of ruined lives, a major player in law enforcement training has decided it's no longer interested in making police officers worse. That's a huge step forward. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
For many years now, during the first week of January, we write a post about Public Domain Day. That's the day -- January 1st -- where works that have reached the statutory limit reach the public domain. The Public Domain Review has an excellent collection of the Class of 2018 -- showing what works entered the public domain this week in the "life plus 50" copyright countries (Canada, New Zealand, and many countries in Asia and Africa) and the "life plus 70" copyright countries (most of the EU, Brazil, Israel, Russia, Turkey, Nigeria). For life plus 70 countries, the works of Aleister Crowley and Winston Churchill are now in the public domain. For the life plus 50 countries, Rene Magritte's paintings, the song compositions of Woody Guthrie and Otis Redding, and the writings of Jean Toomer are now in the public domain -- among many others. Except, as we note each and every year, there is no such "graduating class" in the US. Because, thanks to Disney's heavy lobbying, copyright keeps getting extended and extended and extended. If you're interested, the Center for the Study of the Public Domain at Duke University has also put together its depressing annual "What Could Have Entered the Public Domain..." list for the US, if the law had remained as it was prior to 1978, when the maximum length of copyright was 56 years. Under that setup, Josepher Heller's Catch-22, Salinger's Franny & Zooey and Robert Heinlein's Stranger in a Strange Land all would have entered the public domain. Grok that. Movies including Breakfast at Tiffany's, West Side Story, and The Guns of Navarone all would have entered the public domain as well. And, of course, a ton of music: What 1961 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the influential music from 1961, January 1 2018 would have been a rocking day for you under earlier copyright laws. Patsy Cline’s classic Crazy (Willie Nelson) would be available. So would Stand By Me (Ben E. King, Jerry Leiber, Mike Stoller), Runaway (Del Shannon, Max Crook), and Let’s Twist Again (Kal Mann, Dave Appell). You could publicly perform or set short films to Surfin' (Brian Wilson, Mike Love) or Crying (Roy Orbison, Joe Melson), all without permission or fee. Today these musical works remain copyrighted until 2057 There's much more as well. As the Center notes in a companion post, this should be seen as highly problematic. Locking up our culture like this does no one any good -- except for a very, very, very, very small number of copyright holders on the few works that are still economically viable. Even worse, because things are locked up for so long, so much of our culture becomes orphan works -- which tend to disappear entirely, as no one can even figure out who holds the copyright in question, should they even want to make use of it. And, without the public domain, we lose access to potentially wonderful aspects of culture: What happens when works enter the public domain? Sometimes, wonderful things. The 1947 film It’s A Wonderful Life entered the public domain in 1975 because its copyright was not properly renewed after the first 28-year term. The film had been a flop on release, but thanks to its public domain status, it became a holiday classic. Why? Because TV networks were free to show it over and over again during the holidays, making the film immensely popular. But then copyright law reentered the picture…. In 1993, the film’s original copyright holder, capitalizing on a recent Supreme Court case, reasserted copyright based on its ownership of the film’s musical score and the short story on which the film was based (the film itself is still in the public domain). Ironically, a film that only became a success because of its public domain status was pulled back into copyright. The one bit of good news, hopefully on the horizon is that this should be the last year that nothing enters the public domain on Public Domain Day. While Disney and other big copyright holders have been able to continually push out the eventual entrance of new works into the public domain in the US, if nothing changes, next January we will finally have works published in 1923 enter the public domain in the US. There had been rumblings about another attempt at copyright term extension in the US a few years back, but it's been much quieter in the past few years, as I think even the lobbying powerhouses in the music and movie industries have realized this isn't a fight they could win, or one really worth having. That doesn't mean someone won't try to extend the term again, but I hope most people now recognize what a bad idea it would be. Of course, it's still ridiculous that it's only now that those works from the 1920s are entering the public domain -- while other countries are at least getting works from the 1940s or 1960s. Rather than worrying about copyright term extension, it seems we should really be exploring ways to bring copyright term back down to a much more reasonable time frame. Permalink | Comments | Email This Story

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Happy new year, podcast listeners! We'll be back with our regular weekly episodes starting next Tuesday, but this week it's time to look back at 2017 and highlight some of the most interesting episodes that you might have missed. First, we head all the way back to last January and our second episode of the year: the CES 2017 post-mortem, our second look at the most interesting things from the Consumer Electronics Show. Mike is getting ready to head back to CES again this month, so we'll have another installment in this now-regular feature coming very soon: It will surprise nobody that, later that month, politics took center stage for a few episodes. We had a discussion about how people can change government, and then dug into some details with a look at the new FCC, and the dangers ahead for net neutrality (it is no great miracle that many of our warnings were correct): Fast-forward to March, and you may remember the massive Amazon Web Services outage that crippled huge portions of the internet and turned out to have been caused by a single typo. This prompted an episode all about how we got to this dangerously delicate situation online, and what to do about it: Also in March, we took a look at another form of utter dependency on monolithic corporations that threatens the future of technology — DRM, and the threat it represents to the very concept of ownership: We kicked off the month of May with a discussion about the surveillance state, followed by a closer look at the history of the crypto-wars: After that, it was our most popular episode of the year by a wide margin, in which we sat down with Cory Doctorow to discuss his compelling new book Walkaway, among many other things: May was also a time of widespread viral mourning for the supposedly "dead" MP3 file format. Somewhat irritated by the misinformation and misunderstandings, we dedicated an episode to putting that idea to rest as best we could: Fast-forward again to August, and we celebrated Techdirt's 20th birthday with an episode all about the history of the blog: In October, politics and copyright converged in the legal mess around Donald Trump's appearances on the Howard Stern show, and we were joined by Cathy Gellis to discuss what the situation really was: Finally, almost a full year after our initial conversation about the new FCC, we were joined by former agency chair Tom Wheeler himself to discuss just what was happening under Ajit Pai's purview: And that's a wrap on the highlights of 2017! Of course, there were plenty more episodes, so be sure to check out the full list and subscribe for more using the links below. We'll be back with a brand new episode next week! Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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The Sixth Circuit Appeals Court has now had the dubious privilege of hosting a legal challenge by Juggalos (as fans of the Insane Clown Posse are known). The case traces back to 2014, following the FBI's 2011 designation of Juggalos as a gang in its National Gang Threat Assessment report. This posed problems for Juggalos, thanks to local law enforcement treating fans of a band as though they were part of a crime syndicate. There appeared to be some actual injury (to use the legalese) suffered by Juggalos, who detailed additional hassling by The Man in their ACLU-aided lawsuit against the FBI. The State Trooper indicated that he detained Parsons for an inspection because of the hatchetman logo on the truck. The State Trooper indicated that he considered Juggalos to be a criminal gang because of the DOJ’s designation. The State Trooper asked Parsons if he had any axes, hatchets, or other similar chopping instruments in the truck. Parsons truthfully answered that he did not. The State Trooper continued to search the truck and interrogate Parsons for about an hour, delaying Parsons’ time-sensitive hauling work. During the search, the State Trooper did not find any weapons or contraband. The State Trooper did not issue a ticket or other citation to Parsons. The FBI responded to the Juggalos' First Amendment complaint with "not our fault." The DOJ argued it was not responsible for any rights violations suffered by Juggalos as a result of its gang designation because it wasn't the DOJ's fault local lawmen took the contents of the gang threat assessment seriously. Justice Department attorney Amy Powell said the group and its fans have no standing to sue. She said the government is not responsible for how police agencies use information in the 2011 national gang report. Powell said a "subjective chill" as alleged by plaintiffs was not enough to be in court. "There is no general right of protection to a social association," she said, referring to First Amendment violations argued by Insane Clown Posse and its fans. If so, gang reports are a waste of time and money. If law enforcement isn't supposed to take guidance from the DOJ to heart, there's really no point in the agency issuing any. It sounds exactly like the excuse the FBI deployed when questioned by the FCC about non-disclosure agreements the feds made local law enforcement sign before acquiring a Stingray device. The FBI said it was shocked (shocked!) to hear local cops and prosecutors were following the terms of the NDA they had signed. The Sixth Circuit Court doesn't agree the plaintiffs have no standing to sue. As the court notes, sufficient allegations have been made to allow the suit to continue. But the DOJ's Plan B is going to keep the case from being pursued any further. The alternate legal theory advanced by the DOJ simply states the gang threat assessment can't be reviewed by the court. And the court agrees. From the decision [PDF]: The district court initially granted a motion by DOJ and FBI to dismiss the case for lack of standing. We reversed that decision, finding that Appellants had alleged facts sufficient to demonstrate standing to pursue their APA claims against DOJ and FBI. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701 (6th Cir. 2015). On remand, DOJ and FBI filed a second motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the Juggalo gang designation was not reviewable because it was not a final agency action and was committed to agency discretion by law. The district court granted the motion to dismiss, holding that the Juggalo gang designation was not a final agency action and, even if it was, it was committed to agency discretion by law. This dovetails right into the DOJ's "not our fault" argument. The court finds the injuries suffered by the band and its fans stem directly from actions by third parties -- local law enforcement agencies -- who were not legally-bound to act on the advice given in the gang assessment report. First, the Juggalo gang designation does not result in legal consequences because it does not impose liability, determine legal rights or obligations, or mandate, bind, or limit other government actors. As noted above, Congress directed NGIC to “collect, analyze, and disseminate gang activity information,” and to submit an annual gang-activity report to Congress. § 1107, 119 Stat. at 3093. That is the extent of NGIC’s legal authority. NGIC does not control other agencies or law-enforcement officers, nor are any agencies or law-enforcement officers required to consider the 2011 NGIC Report on gang-related issues. Instead, the 2011 NGIC Report, as the product of NGIC’s task to “collect, analyze, and disseminate,” is merely an informational agency report. [...] [T]he Juggalo gang designation does not result in legal consequences because the harms that Appellants suffered were caused by third parties who discretionarily relied on the gang designation. As the district court explained, each of the harms suffered by Appellants “constitutes a decision to act that rests on the shoulders of others . . . and not the Defendants or the agency action at issue in this case.” The government officials who harmed Appellants were not bound by the Juggalo gang designation nor were they required to consider the 2011 NGIC Report. Thus, the government officials’ actions are not direct consequences of the Juggalo gang designation in the 2011 NGIC Report, but are the product of their own independent decision-making. This would seem to invite the filing of handful of lawsuits against the individual agencies that violated the Juggalos' rights. If the locals weren't legally-bound to take the FBI's Juggalo gang designation to heart, it seemingly follows they should be liable for any legal injuries caused. The problem with taking this route is that it would allow law enforcement agencies to defer to the FBI's gang guidance. Under the same circumstances, the allegations of additional hassling by law enforcement officers would likely be waved away by assertions of good faith reliance on DOJ threat assessment reports. They're not "bound" by the report, but they can likely rely on it to make threat determinations that result in longer, more explorative interviews and traffic stops. It's lose-lose for Juggalos if the court's going to allow the DOJ to give law enforcement agencies information (no matter how unreliable) and then claim it has zero responsibility for choices made by end users. Permalink | Comments | Email This Story

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Because prudence is always in short supply but stupid is the world's foremost renewable resource, an ousted director of a Tennessee culinary school is appealing the dismissal of a defamation suit he brought against his replacement for things a journalist said. The original lawsuit didn't live long, fortunately. Heavily quoting a Tennessean article by journalist Jim Myers, Tom Loftis -- the former head of the culinary school at the Nashville university -- sued Randy Rayburn (Loftis' replacement) over things Myers said. Loftis apparently expected his status as a private person (given more reputational protection by courts than public figures) to overcome the deficiencies of his lawsuit. But the deficiencies won and Loftis lost, having failed to show how words written by Jim Myers were somehow libelous statements issued directly by Randy Rayburn. Loftis should have quit while he was behind. He's already on the hook for the legal fees racked up by Rayburn's defense at this point, but apparently feels the best use of a university severance package is as an accelerant for the fire consuming what's left of his reputation. Daniel Horwitz, who defended Rayburn against Loftis' first legal leap of faith, is back on board defending against the appeal. According to Loftis, the lower court erred by refusing to read his defamation lawsuit the way Loftis would prefer it to be read: as a false light invasion of privacy lawsuit. There are shades of difference, but the latter tort allows negative impressions to be actionable, rather than relying on actual defamatory statements made by the defendant. This is about the only choice Loftis has (other than walking away from this) considering there's no indication the statements he's suing about are anything other than Jim Myers' (not Randy Rayburn's) opinions. It won't make any difference. The allegations remain unchanged. Loftis is still trying to twist the words of a journalist into statements made by his replacement. But nowhere in Myers' article on the cooking school will you find a direct quote of Randy Rayburn. For that matter, you'll find almost nothing in the piece that indicates the statements Loftis is suing over are anything more than Myers' take on the Nashville culinary scene. This is hammered home in Rayburn's reply brief [PDF], something neither he nor his representation probably thought they'd ever have to do. The entirety of Mr. Loftis’s complaint concerned statements that were neither made by nor attributed to the Defendant, Mr. Randy Rayburn. In fact, at no point in the article was Mr. Rayburn even quoted. Further, nearly all of the objectively innocuous statements referenced in the article did not mention Mr. Loftis, were incapable of conveying any defamatory meaning or inference as a matter of law, and could not seriously be considered “highly offensive” by any reasonable person. Critically, Mr. Loftis also pleaded that the only statements in the article that did mention him were accurate—rendering this lawsuit “possibly unprecedented” in its frivolousness. It goes on to point out the negative implications of the court treating this appeal with any more respect than it actually deserves. Despite its frivolousness, however, the implications that the instant lawsuit will carry if its dismissal is not forcefully affirmed by this Court are anything but. Simply put: forcing the supposed source of a news story to defend against a $1.5 million lawsuit for the transgression of being mentioned alongside coverage that a hypersensitive plaintiff considers unflattering poses serious and severe risks to the viability of newsgathering in Tennessee. Consequently, if allowed to move forward, this lawsuit would threaten both free speech and the public’s willingness to engage with journalists at all. I don't think Loftis has any better chance on appeal. His brief [PDF] claims the court never considered his false light claim, but Rayburn's reply points out the lower court clearly did so… and it did so right out of the gate. Looking to the Trial Court’s actual Order, the Order’s first paragraph specifically referenced both of Mr. Loftis’s theories of relief, noting that “Mr. Loftis has filed claims for false light invasion of privacy and defamation by implication or innuendo based on statements contained in a newspaper article attached to his Amended Complaint that was written by Jim Myers and published by the Tennessean.” Next, Paragraph 3 of the Trial Court’s Order recited the legal standards that govern both defamation and false light claims, and it correctly noted that “there is significant and substantial overlap between false light and defamation.” Thereafter, Paragraph 4 of the Trial Court’s Order applied the law to the facts of Mr. Loftis’s Amended Complaint. After so doing, the Court held that “the statements contained in the Tennessean article are not capable of conveying a defamatory meaning and that they do not give rise to liability as a matter of law.” At this point Loftis is doing more than just wasting his own money. He's wasting his opponent's money. Considering he's going to be on the hook for both sets of legal fees, he really should have allowed the suit to peacefully expire when the lower court declared it dead. Permalink | Comments | Email This Story

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Built by linguists and language lovers, Grammarly’s writing app finds and corrects hundreds of complex writing errors in every email and app. It's the tough-love editor you need to produce clearer, more effective, mistake-free work. Grammarly leaves standard spelling and grammar checkers in the dust, giving your work the extra polish you and your readers expect. You will get explanations for all your mistakes, and can turn on genre-specific writing style checks. A 1 year subscription to Grammarly Premium is on sale for $69.98. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Eugene Volokh has an incredible -- and incredibly disturbing -- story about how Jia Yueting, a Chinese billionaire, appears to have convinced a Washington state court to issue an unconstitutional gag order against a critic who lives in Washington state. Jia is famous for his company LaEco in China, as well as his attempt to create an electric car giant competitor to Tesla in the US called Faraday Future. Almost exactly a year ago, we wrote about how Faraday Future was flailing with a series of incredible stories leaking out of the company. A large number of top execs were fleeing the company and there were reports of questionable activities, including Jia demanding that Faraday Future employees design a car for LeEco, without payment or credit. In the past year, it does not appear that things have gotten much better for Jia, and he was just ordered to return to China to deal with debts that appear to be piling up. China has ordered a tech tycoon to come home and face the music. The country's markets watchdog on Monday demanded LeEco founder Jia Yueting return to China before the end of the year to fix his business empire's financial woes. The China Securities Regulatory Commission said that Jia, whose whereabouts are unknown, has not made good on earlier promises to provide interest-free loans to the embattled company. Not surprisingly, there are many online critics of Jia. One of them is a resident of Washington state, named Yingqiong Gu who criticized Jia on WeChat, the ever-present social network/communications app that is insanely popular in China. Back in October, Jia sued Gu to try to get the criticism to stop. As Volokh notes, it is entirely possible that Gu made defamatory statements about Jia. But the First Amendment tends to reject any attempt to silence speech. While some states will allow injunctions against defamatory speech, that tends to be only after the content has been determined by a court to actually be defamatory. Here, however, the court agreed first to a temporary restraining order less than a week after the complaint was filed, and a preliminary injunction a few weeks later. Now, some of what's described in the complaint goes beyond speech, and includes what could be considered harassing behavior: Defendant has further followed Mr. Jia while he goes about his daily activities, including investor meetings Mr. Jia attends and the Los Angeles-area restaurants he has visited. Finally, Defendant has identified and publicized sensitive personal information, including Mr. Jia's current address and photos of his family. I'm not sure if that's enough to constitute "harassing" behavior, but maybe. If the restraining order were limited to that, perhaps it would be acceptable. But it appears the real target of the gag order is to silence Gu and his criticism of Jia. Here's the crux of Jia's complaint: Defendant has been publishing defamatory statements concerning Plaintiff on social media platforms and to journalists, in an effort to harm Mr. Jia's reputation and sow distrust among potential investors and employees of Faraday while Mr. Jia is in the process of trying to raise capital to fund Faraday's continued growth. These defamatory statements include claims that Plaintiff has engaged in money laundering, cheated investors as part of a Ponzi scheme, attempted to evade Chinese authorities by relocating to the United States, created shelters to protect assets from creditors, and raised money from Chinese-national investors in a purported racist scheme to transfer wealth to non-Chinese individuals. The publication of these false statements has harmed Mr. Jia's and Faraday's reputation at a critical time for the company as it continues to raise capital needed to begin mass production of its vehicles. The filing in Washington follows on a similar filing Jia made against Gu in California, in which another temporary restraining order was put in place against Gu's apparent "harassing, harmful activities." Jia's complaint in Washington claims that Gu is violating that order because he "continued to publish defamatory statements." But, again, speech and actions are not the same. Publishing criticism is not harassment, and if the content has not yet been judged to be defamatory, a court can't block it. But it did. The restraining order is quite broad. Rather than just barring any harassing activities it orders Gu to remove content he's posted: Defendant, including his agents, employees, or representatives or anyone acting on their behalf, are required to immediately remove posts on WeChat.com that contain defamatory statements concerning Plaintiff and/or reveal private information concerning Plaintiff and his family... And it blocks him from writing more: Defendant including his agents, employees or representatives or anyone acting on their behalf, are further enjoined from publishing or causing to be published any posts or commentary concerning Plaintiff or his family on WeChat.com, TouTiao.com or any other internet location or website. That language was in the requested TRO. There's a handwritten, barely legible, exception which states that he can post "objective facts from public records" but "may not include any commentary, editorial comments, or other statements that attack plaintiff's credibility or reputation." That already appears to be unconstitutional. Commentary and editorial comments that attack someone's credibility or reputation can be perfectly protected free speech -- such as if they are true or are based on stated evidence. It is blatantly unconstitutional for a judge to order someone to stop attacking someone's credibility if those attacks are not defamatory. Even worse, in the preliminary injunction, the judge even removes the exception for posting "objective facts from public records." As Volokh notes, this is problematic. While some courts will allow injunctive relief against defamatory speech, it first has to be shown to be defamatory, and then can only apply to that specific speech. The order here goes way beyond that: Here, there was no trial, no "final determination" and no "decision on the merits" — only a judgment of likelihood of success on the merits following a 15-to-20-minute-long hearing. I don't think it's permissible to order someone in such a situation to take down criticism of a prominent businessman's business practices (criticism that might ultimately be proved false, proved true, or found to be opinion). And this is concerning a well known public figure. We've talked a lot about how the powerful and wealthy are abusing the court systems to silence critics. The courts should not be helping. 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What do you do when you're faced by an existential, evolutionary shift that threatens your entire, overly-comfortable industry? Why you raise rates, of course! Comcast is one of six cable providers who have informed customers that they've raised the rates for the new year, despite the record-setting shift toward cord cutting during 2017. Everything Comcast offers is seeing price hikes of some kind, ranging from increases in the company's traditional channel bundles, a price increase for Comcast's standalone streaming platform, and even the fee charged for renting a modem (which is now $11 per month). Comcast's even jacking up the obnoxious fees it's currently facing several lawsuits over. That includes the "Broadcast TV fee," which is simply a part of the cost of doing business (paying for content) buried below the line, letting Comcast advertise one rate -- then sock consumers with another price entirely once the bill comes due. That fee, which Comcast has insisted is just its way of "being transparent," was just $1.50 when introduced in 2013 -- and will be bumped to $8 per month in the new year: With cord cutting setting records, why doesn't Comcast feel the need to actually adapt to changing markets? It doesn't have to. The company is securing a bigger monopoly over broadband in a growing number of markets thanks to telcos that no longer think it's worth it to upgrade aging DSL lines. That means there are more markets than ever where if you want a decent broadband connection that meets the FCC's 25 Mbps definition of broadband, Comcast is your only option. As a result, Comcast knows that it can simply jack up the cost of broadband as well to counter any TV revenue losses without being punished by the pesky nuisance of competition. This, of course, includes Comcast's implementation of arbitrary and unnecessary usage caps and overage fees, which have proven a handy weapon in hamstringing streaming alternatives. It doesn't take an economics degree to know that when you're the only provider in a market for a product that many feel is a necessity, that prices will rise quickly. Publicly, Comcast and other cable providers will lay the blame squarely at the feet of broadcasters, who consistently demand higher and higher rates for the same product. But that ignores the fact that Comcast is a broadcaster (NBC Universal, several regional sports networks), and is jacking up pricing on numerous services, hardware rental costs, and other products that have nothing to do with the cost of programming. Granted, with the Trump administration laying the groundwork for gutting federal and state oversight of an already quite dysfunctional and broken cable and broadband market, you can expect a lot more where this came from over the next few years. Permalink | Comments | Email This Story

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This is apparently the price we pay to live in the Land of the Free: Grievances over lost privacy run through a trove of roughly 250 complaints by people whose laptops and phones were searched without a warrant as they crossed the United States border. Filed with the Department of Homeland Security since 2011, mostly during the Obama administration, these stories add a personal dimension to a growing debate over rights, security and technology. There are nearly 100 pages of long, detailed complaints in the document [PDF] turned over by the DHS in response to the Knight Institute's' FOIA request. The incidents detailed are troubling, seemingly going beyond what's needed to actually secure the nation's borders. Multiple complaints show intrusive searches and questioning are routine, even if the destinations traveled to are equally routine. My fiance and our families along with 38 guests were there to celebrate our wedding, While going through Customs again I was asked to take a seat on the wall. but this time my wife was told to do the same. After 10 minutes a customs officer approached vs and told us to go with him. This time both my bags and my wifes bags were searched. Along with being searched the officer asked a series of very personal questions about my background. I answered the questions to the best of my ability. He then proceeded to ask me questions if I was ever charged with rape or child molestation. Even when I gave him a stern no he asked the question three more times. All this is going on while my newlywed wife is standing right next to me. I do not see why is was necessary for your officer to talk to me that way and treat me like that in front of my wife. My background proves that I have never been charged with either offense. [...] As soon as I got out of the car I was questioned by the custom officer who was there to inspect the car and he wanted to have proof that I had a P2 because I told him I work in the states as a singer. When I was inside the customs officer at the booth questioned me then went outside to check on the status of my vehicle. Once he was back inside he then asked me to enter a room and had another female customs officer along with him. Once we were inside he joked and said the reason for the female officer to be present was because he didn't want me to feel like he was hitting on me as he was sure it happens a lot with other customs officers. He had my phone along with another passengers and asked me to open only mine although they were both locked. He also told me that he had the right to do this without my permission. His reason for doing this was on the passenger's phone there was a picture of me and he felt he needed to make sure I wasn't in the U.S for escorting purposes. I told him I am a singer and also do a lot of modeling and he was my boyfriend and I don't feel that was a valid reason to go through my personal property and that I felt he was taking it to far by accusing me of being an escort. He told me once again that he could do this and that he didn't need my permission and that I had no idea of the high tech devices that they had in there that would make the average person crazy if they knew what they could do. [...] I visit my cousins in Canada with my wife and children once in a while with my automobile. Every time I cross the American border to return to my home in Rochester, New York I get detained for 4 plus hours. Four to Five officials come to my car and they lead my family and I to the border. They lock my family and I in a room for hours. Also an official always comes from Buffalo to question me. They make me fill out an information sheet they go through my children's and wife's cell phones, laptop, and purses. After having all of our possessions and information, they still take 4 plus hours to release us. [...] My laptop was detained by CBP officer March 13th at Denver Airport. This was the second time in a row I was subjected to additional screening and talking as officer described it. They told me the reason was, because we have had problems with other people with J2 Visa. Is this REALLY a valid reason to detain my personal items, because CBP has problems with someone else? DHS gave my laptop back to my wife. After demanding it they gave her a receipt that shows EIGHT persons have been handling my personal laptop computer and external hard drive. They told at the same time that all my files were copied and to be reviewed. [...] During the complainants visit of the site of a historical monument, a worker asked complainant if he would like to leave his bag in the care of the museum workers. When complainant returned for the bag, the FBI had seized and placed all of complainants belongings across tables. FBI questioned complainant for a couple of hours and scanned and shipped his laptop to the FBI office in long Beach. Complainant has experienced difficulties flying internationally and even domestically since this incident… Upon return to the United States, the DHS questioned the complainant at LAX because they thought complainant was the owner of his brothers store. Complainants brother was arrested for possession and selling counterfeit merchandise in April 2010… The LAX DHS searched through complainants computer,phones, and other belongings for approximately 5 to 6 hours. For the most part, DHS complaints are as effective as shouting into the void. Until 2015, there were no redress options available to citizens receiving extra screening or banned from flying. A series of lawsuits finally forced the DHS to at least tell affected travelers they were forbidden from traveling, but the agency still relies on court decisions saying almost all rights are waived within 100 miles of US borders. Those who aren't US citizens are even more screwed. There have been a handful of legislative efforts to force DHS, CBP, and TSA to limit intrusive searches of electronic devices, but so far nothing has landed on the president's desk. As of now, DHS components barely have to conjure up reasonable suspicion to search devices' contents, and little more than that to seize these items indefinitely. This is the status quo -- or at least would be if it had remained in stasis since 2001. But it constantly appears to be getting worse. And there won't be any improvement for the next four years at least. This administration treats foreign citizens as criminals and Trump's DOJ has made "securing the borders" one of its priorities. Carrying out this objective hasn't been left to smarter processes or better use of intelligence, but rather taken the form of hyper-aggressive enforcement and further diminishing of rights near our nation's borders. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
It's that time again! In lieu of the top comments of the week, we're using this last Sunday of the year to look at the comments that racked up the most funny and insightful votes in all of 2017. We'll be highlighting the top three comments in each category, and noting where they ranked in terms of combined votes as well. (For those of you who are still interested in this week's winners, here's first and second place for insightful, and first and second place for funny.) The Most Insightful Comments Of The Year In the last week of January, we were still reeling from the inauguration and choking on the words "President Trump" when the cheeto-in-chief hit us with another gut-punch: the disgusting and transparently racist Muslim travel ban, enacted via a sloppy and ill-fated executive order. Mike, like most decent people with any kind of platform, felt compelled to speak out, and his post about "Our Humanity" became (unsurprisingly) a busy discussion which swelled to nearly 400 comments in less than a month, and yielded both of our 2017 winners on the insightful side. In first place, it's one of our most prolific commenters and frequent winners: Roger Strong. Roger got in with the first comment, and used it well to deliver a simple but highly appropriate quote: "The way a government treats refugees is very instructive because it shows you how they would treat the rest of us if they thought they could get away with it." - Tony Benn, British Minister of Parliament for 47 years Not only did this rocket to the top of the insightful leaderboard, it hit second place on the list for combined insightful and funny votes as well — not because it racked up any votes for comedy, but just based on the sheer weight of its insightful votes. Yup: to probably nobody's surprise, 2017 has been a year that demanded more thoughtfulness than cleverness, with the first place funny comment getting just barely more funny votes than the third place insightful comment got in its category — and staying well behind the second place winner for insightful. That winner? Mike Masnick himself, in an early reply to a critic of the travel ban post. As a general rule, we exclude staff comments from the weekly posts, but let's make an exception for the year-end round-up and for Mike's response (which also scored quite a lot of funny votes, bringing it to first place on the combined insightful-funny list) to the accusation that we were cherry-picking and making an emotional argument, and that only children are convinced by this: Really? Because that seemed to be the basis of the entire platform of the President of the United States. In third place, we have our only true anonymous winner this year (though the funny side is entirely pseudonymous commenters). It came in on the last day of August, in response to our post about Jeff Sessions attempting to use Hurricane Harvey as proof that the police need to be militarized. Someone claiming relevant expertise (naturally this can't be confirmed, but they sure appear to deliver on that claim with a very convincing argument!) offered a much more practical way of looking at things: Speaking as a first responder/first responder trainer... ...no. What's needed instead are exactly the kinds of resources that this administration wants to strip out of FEMA: simple, basic essentials that are relatively inexpensive and save lots of lives. Let me give you a timely example. The Cajun Navy, bless their hearts, showed up in force in Houston to do whatever they could to supplement the hopelessly-overwhelmed local, state, and federal personnel. And now some of them are dead, because they didn't have lifejackets (PFDs). A minimal PFD for this kind of work costs about $100, a good one is about $250, a bulk order for several thousand would no doubt drive the price down. No, it's not very cool and sexy and oh-gosh-look-at-the-pretend-soldiers, but it's a basic tool that keeps people alive in situations where they'd otherwise die. A quarter-million dollars worth of PFDs is chump change in comparison with the overall expense -- flying helicopters is REALLY expensive -- but it would yield value far beyond its price. That's just one example. There are a lot of others, including swiftwater rescue training -- something that almost none of the Houston city personnel have had because there's no money for it. But SWR is essential for anyone trying to perform rescues in fast water, particularly in urban areas where there are all kinds of hazards under the surface. Two days of quality SWR instruction costs $250/student and is probably enough to keep them from dying while trying to keep other people from dying. Harvey. Sandy. Katrina. This is the new normal. There will be another one. Soon. And money needs to be spent on basic gear and basic training before one of these turns into a multi-thousand person casualty event. So don't buy the cops AR-15's: buy them PFDs and SWR training. Those are FAR more likely to keep them alive. That's it for the insightful side. Now on to... The Funniest Comments Of The Year In first place on the funny side, we have our one and only returning winner from last year's list. In 2016, A Non-Mouse got a special category all their own with an impressive outlier comment that won third place in the insightful and funny categories separately, and first place in combined votes. As noted, things are rather different this year, with the insightful side dominating the charts: the first place winner for funny only managed to squeak into the combined leaderboard at ninth place (and is the only top-three funny winner to crack that chart at all). But the comedy didn't start with the comment — it started with the operator of allofgarden.com, an Olive Garden review website, who in July responded to a frivolous legal threat with an hilarious letter that, among other things, demanded a response "in limerick form". Naturally, the limericks began rolling into the comments — and A Non-Mouse's entry won the day by purposely misreading the "brandenforcements" email address that sent the initial threat: There once was a man Branden Forcements who confused some reviews for endorsements His threats that came after caused so much laughter that perhaps he should seek new employments In second place on the funny side, we have what is undoubtedly the shortest winning comment in Techdirt history (possibly tied for that spot, though certainly not beaten!) In early August, after a psychiatrist filed a ridiculous lawsuit over a completely wordless one-star review, frequent pseudonymous commenter Baron von Robber swooped in with the one-character comment that had to be made: * Finally, for third place we head back to May, when a hacker tried to extort money out of Netflix by threatening to leak the upcoming season of Orange Is The New Black, only to discover that he had deeply misunderstood Netflix's business model and its ability to actually compete with piracy. This rendered his threats facile and futile — something that Michael, another frequent pseudonymous commenter, elegantly summed up with a brief bit of dialogue: Hacker: "Pay me $60,000 or I am going to advertise for you!!!!" Netflix: "..." Hacker: "That's it! I'm starting my advertising campaign!" Netflix: "...umm...ok." And that, folks, is our round-up of the winning comments for the year! Keep up the great work everyone — I'm looking forward to seeing what comes in 2018. 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posted 22 days ago on techdirt
Five Years Ago This week in 2012, we were a bit surprised and confused to see pirated movies being shared from Hollywood IP addresses — and, it soon turned out, from all major record labels, and several government agencies including the DOJ. Whether this was just amateur honeypotting was unclear, but whatever the case, Hollywood still broke records at the box office that year. Meanwhile, the Senate was debating the extension of FISA — which means they were rejecting amendments that could improve it and passing it with all its problems intact. Ten Years Ago This week in 2007, we took a look at Hollywood's ongoing crusade to convince ISPs around the world to block sites it doesn't like, and also at how the industry's supposed challenges with digitally archiving films are caused by their obsession with ownership and copyright, not technological limitations. The MPAA, at least, realized (after years of complaints) that elaborately DRM-laden DVD screeners for the Oscars are not worth the effort. Meanwhile, as the EU began looking to destroy fashion innovation by enforcing fashion copyrights, we were even more distressed to hear copyright mentioned in the same breath as the great pyramids of Egypt and the works of Michelangelo. Fifteen Years Ago This week in 2002, people were telling the Copyright Office just what they think about the terrible parts of the DMCA, as Declan McCullough was treading the line of fearmongering but still providing a good look at some of the injustices the law enables. Cablevision's Optimum Online broadband was threatening to ban customers who use file trading services (regardless of the purpose of their use), and Hollywood was still obsessed with DRM — and this is an industry smart enough to fire the guy who convinced them selling DVDs might be a good idea! Permalink | Comments | Email This Story

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