A year ago, we wrote about how the band Streetlight Manifesto was urging people to boycott its own album, unless it was bought directly from the band, because their label, Victory Records, wasn't giving them any of the money. Here's what they said at the time: We’re writing today to ask you to please boycott all Streetlight related items by not purchasing any of our records or merchandise from Victory’s website, any traditional CD stores, online third party retailers or any digital distribution service (iTunes, Amazon etc). Victory has a long-time reputation of pocketing all of the proceeds from a band’s music and merch, with shady accounting and generally bully-ish behavior. If you want to support Streetlight, our music and our ability to tour and continue to release music, please make all SM related purchases from our own webstore, The RISC Store (www.riscstore.com), or come out to a show and buy a shirt or cd from us directly. In regards to getting the music we make, you can buy directly from us, or, alternately, we’re sure you can find a way to get the tunes onto your computer that may not be, ahem, traditional… Speaking a Bit metaphorically, there is a Torrent of methods to accomplish this, and Google is your always loyal friend… Believe it or not, things have now gotten even worse. Tim Griffiths writes in to let us know that the band was preparing to launch its latest album, and had even been taking preorders for the album through its own store as mentioned above... but now they claim Victory won't even give them copies of their own album to sell: Q: Why do I not have my record yet? I totally want it. A: Simple – Victory Records has refused to send us any of Streetlight’s new album. Without that – we can not send out pre-orders. Classy move. Read on for more information about your order. The issue is made more complex by the fact that the band's lead singer, Toh Kay, also released a companion album to the SM album, with a very similar name. SM's new album is The Hands That Thieve, while Toh Kay's is The Hand That Thieves. When Toh Kay put up a video from his album, Victory claimed it infringed on their copyright and had it taken down. Q: I wanted to hear the Toh Kay record. The music video – before Victory took it down – was beautiful and so was the song. My gosh. What happened? A: Victory had given Streetlight a choice: either completely kill the Toh Kay record (their absurd reasoning was that its sale would “cannibalize” Streetlight sales, ha!) or hand it over to them so they can release it and exclusively profit from it. Streetlight has experienced and documented years of Victory not paying royalties while continuously profiting from their music, so it was a no-brainer. We had to cancel the record, no matter how much we all loved it and how hard the guys worked on it. That music video, by the way, is also “illegal”. So if you saw it – your eyes are criminals. The band is offering to give back people's money, or figure out other ways to satisfy various orders. As in the past, they've also suggested that alternative means to finding the album might be fans' best path: Q: The Streetlight record leaked online – I already ordered it through you – how should I feel inside about downloading it? A: We can’t tell you how or where to download it – but if you already paid for it, and it’s being withheld from you by the band’s own record label – well, take that how you will. And also, this: Q: This whole situation makes me hate the music industry and I now understand why it – as a business entity – is failing across the board. A: Yeah. I hear ya. I just downloaded Dredd 3D – wanna watch it with me? Remember stories like this the next time labels pretend that they represent the best interests of artists.Permalink | Comments | Email This Story
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There's a worrying trend around the world for governments to extend online surveillance capabilities to encompass all citizens -- often justified with the usual excuse of combatting terrorism and/or child pornography. The latest to join this unhappy club is India, which has put in place what sounds like a massively intrusive system, as this article from The Times of India makes clear: The government last month quietly began rolling out a project that gives it access to everything that happens over India's telecommunications network -- online activities, phone calls, text messages and even social media conversations. Called the Central Monitoring System, it will be the single window from where government arms such as the National Investigation Agency or the tax authorities will be able to monitor every byte of communication. This project has been under development for two years, but in almost total secrecy: "In the absence of a strong privacy law that promotes transparency about surveillance and thus allows us to judge the utility of the surveillance, this kind of development is very worrisome," warned Pranesh Prakash, director of policy at the Centre for Internet and Society. "Further, this has been done with neither public nor parliamentary dialogue, making the government unaccountable to its citizens." That combination of total surveillance and zero transparency is a dangerous one, providing the perfect tool for monitoring and controlling political and social dissent. If India wishes to maintain its claim to be "the world's largest democracy", its government would do well to introduce some safeguards against abuse of the new system, such as strong privacy laws, as well as engaging the Indian public in an open debate about what exactly such extraordinary surveillance powers might be used for. Follow me @glynmoody on Twitter or identi.ca, and on Google+ Permalink | Comments | Email This Story
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A majority of human beings would look at two 7-year-old boys pretending their pencils are guns and say something about "boys being boys" or "someone's going to poke their eye out" and leave it at that. Those who craft and enforce zero tolerance policies see something more sinister. They see "threatening behavior" that must be dealt with swiftly and with as little thought as possible. The end result? Two 7-year-old boys with otherwise clean records were handed two-day suspensions for pointing their pencils at each other and making shooting noises. This ridiculous punishment was (of course) defended at length by school administration. Suffolk Public Schools spokeswoman Bethanne Bradshaw said a pencil is considered a weapon when it’s pointed at someone in a threatening way and gun noises are made. Really? Administration thinks a pencil becomes a weapon when "gun noises are made." (They don't actually think this, of course. They've just crafted a policy that states this, thus preventing administration members from "erroneously" coming to independent conclusions.) I can see a pencil being considered a weapon if it's being "pointed" (in a stabbing motion) at a sensitive area like an eyeball or a neck. Then a pencil is a weapon. When two boys point pencils at each other and make shooting noises, a pencil is still a pencil and their imagination is doing all the heavy lifting. All it would take to "disarm" these kids is asking them to stop. Which is what a teacher did. On the suspension note, the teacher noted that the boy stopped when she told him to do so. Problem solved. No one is harmed and the perpetrators were left with nothing but non-threatening pencils. Why this was written on a suspension note, rather than on a simple concerned note to the parents or better yet, on NOTHING AT ALL, is beyond me. But Bradshaw has an answer for every question and a terrible excuse for every idiotic zero tolerance policy. “Some children would consider it threatening, who are scared about shootings in schools or shootings in the community,” Bradshaw said. “Kids don’t think about ‘Cowboys and Indians’ anymore, they think about drive-by shootings and murders and everything they see on television news every day.” Do they? My kids don't think about that kind of stuff. Then again, they rarely watch the news. Would my boys be "threatened" by a pencil gun? I doubt it. They're probably packing a pencil or two themselves during the school day. I'm going to go out on a limb and say that these hypothetical, hypersensitive children who bruise whenever the wind changes direction do not actually exist, at least not outside of statements like Bradshaw's. They're straw children. Bradshaw also defended the moronic policy using this gem: Bradshaw said the policy has been in place for at least two decades. So... you're saying the administration has been stupidly overreacting since back when MTV still played music videos and no one has once thought that maybe a few policies might need to be updated or relaxed or given a good once over with a dose of context or common sense? Rules can be changed, even big, important ones. (See also: Amendments 1-27 to the Constitution, but pay close attention to nos. 18 and 21.) Nothing's so inflexible that anyone should be reduced to the rhetorical level Bradshaw is, fending off irritated parents with "Yeah, it's a shitty policy but what are you going to do. It has tenure." Bradshaw doubles down on the importance and inflexibility of "rules" as well. “It’s an effort to try to get kids not to bring any form of violence, even if it’s violent play, into the classroom,” Bradshaw said. “There has to be a consequence because it’s a rule." Yeah, I get it. A rule is a rule. And enforcers like Bradshaw are throwing stuff on kids' permanent records that wouldn't pass the laugh test in the real world. Will this file note that the two boys "pointed pencils at each other and made shooting noises?" Or will it state something to the effect that the boys broke the school's policy on violence and threatening behavior? My guess is the latter, which will allow anyone perusing the record to imagine the worst. We can only hope that having these stories reported widely might push a few administrators to consider loosening or removing these so-called "zero tolerance" policies. Unfortunately, to date most administrators (and their policies) seem impervious to public ridicule, and every school-related tragedy just results in a newer, more rigid set of unbreakable rules. Until the day comes when kids can be kids without being suspended for pretending pencils are guns, parents might want to sit their kids down and have a long talk about safe pencil handling and the requirements and responsibilities that come with the "conceal-and-carry" permit they'll be needing before being allowed to start the next school year. Permalink | Comments | Email This Story
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The ACLU has continued its campaign to explore whether or not the government gets a warrant before scouring your email. Last month, they discovered that the IRS doesn't believe in getting a warrant -- leading to the IRS promising to change that policy. Now they've received some documents from the FBI in response to a FOIA request that again suggest that, despite the ruling in US v. Warshak, in which the 6th Circuit said that a warrant is needed to compel an ISP to turn over emails, the FBI believes it can access emails older than 180 days without a warrant, under ECPA. As we've discussed at length, ECPA (the Electronic Communications Privacy Act) is a very outdated piece of legislation which considers emails on a server over 180 days to be "abandoned" because no one considered a cloud computing future. What the ACLU found in these documents is that the FBI hasn't updated its Domestic Investigations and Operations Guide (DIOG) in response to the Warshak ruling, and it still suggests that agents can easily access such emails without a warrant. Instead, it says: In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment. That's a... charitable interpretation of reality. That's what Congress felt back then, but based on a very different network setup. However, as the courts noted in Warshak, the 4th Amendment is still important and still rules. The ACLU also asked different US Attorney's offices for their guidelines, and found that policies differed greatly based on location. Northern Illinois, for example, seemed to recognize the 4th Amendment. But others, including in Texas, still seem to think that no warrant is required. As the ACLU notes, this hodgepodge of rules and the fact that the FBI hasn't changed its guidelines in response to Warshak just highlights the need for comprehensive ECPA reform. If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too. More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here. Permalink | Comments | Email This Story
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Attorney General Eric Holder was in New Zealand for a meeting of Attorneys General from the US, New Zealand, Canada, Australia and the UK. Radio New Zealand got to meet up with Holder and after asking him about the meeting proceeded to ask him about the Megaupload case (mp3), which the interviewer noted was of great interest to New Zealanders. Holder, in his usual fashion, answers with generalities that don't actually answer the questions being asked. He gives his standard "intellectual property theft = bad!" speech: Well I don't want to comment on a case that is pending. But I will say, more generally, that we are very concerned about the theft of intellectual property. It's something that we take very seriously, both in the United States, and I think our allies do as well. With regard that case, we've been cooperating with the New Zealand authorities. And I will just rely on the pleadings we have filed in court to talk about that. First of all, we've pointed this out before, but you would think that the supreme "lawyer" for the government would know the damn law. There is no "intellectual property theft." That's a made up term by copyright maximalists. There is such a thing as copyright infringement, which is what he means. He should use the actual term. Otherwise it does make him look like a pawn of Hollywood.... Which leads right into the next question. The interviewer notes that Kim Dotcom has been saying that the case is all about the DOJ "heeding the beck and call of Hollywood moguls." Holder immediately responds: Well, that's not true. I don't want to comment on that case other than to say that it was brought on the basis of the facts and the basis of the law and it's consistent with the enforcement priorities that this administration has had. Well, yes, the enforcement priorities that have heavily been pushed for by Hollywood. The interviewer notes the various screwups in the case, and Holder doesn't bite, saying that there's been good collaboration and they expect everything to turn out fine in the end. The next question is about how serious Holder is about pursuing extradition, and Holder makes it sound like no big deal: We have made an extradition request. We have an existing treaty between the US and New Zealand that has been used a great many times throughout the years. And I don't see how any individual would not be subject to that treaty. Uh.... that's a bullshit answer. Because the problem with the extradition issue is not whether or not Dotcom is subject to it, but whether or not the issues in the case are subject to it. The DOJ had to bolt on some questionable conspiracy claims to make this work, since mere copyright infringement is not an extraditable offense. Holder also responded to a question about New Zealand's attempt to spy more on citizens and residents by saying he doesn't see how that violates civil liberties. When questioned on that, he throws out some random statement about cooperation to stop terrorism, and again says that spying on people doesn't need to violate civil liberties.Permalink | Comments | Email This Story
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We've discussed for years how the Author's Guild has a very anti-technology, anti-innovation view on the world, and how their positions seem to really be more about representing the interests of big publishers rather than authors. And nowhere is that more clear than in the long-running lawsuit against Google for its book scanning efforts. The guild has already lost a similar lawsuit, against the Hathitrust (a consortium of university libraries) where a court found the scanning (which was done by Google) to be fair use. But the separate lawsuit about Google's own scanning has continued. The parties were back in court on Wednesday, supposedly to discuss the appeal of the lower court's ruling on whether or not the Authors Guild can make this into a class action for all authors. Google had argued that it shouldn't be a class action, since the different issues (and defenses) concerning different authors would be entirely different -- and many authors actually support Google's book scanning project, so it would be weird to include them in the lawsuit. However, the district court disagreed, and said that it's fine to do it as a class action lawsuit. Oddly, however, the three judge panel seemed less interested in that question than in the key question in the case: whether or not the book scanning was fair use. And, while it may be jumping the gun a bit, they certainly suggested that they think the scanning is likely to be considered fair use. Judge Barrington Parker mentioned that he thought the book scanning effort "has enormous value for our culture" and that "there is a rather strong argument about the value of this project" and, finally, that the project has "enormous societal benefit." Those are not the words of someone about to kill off the project. Also on the panel was Judge Pierre Leval, one of the foremost scholars on fair use, and the author of one of the most frequently cited articles on fair use. He apparently quizzed the Author's Guild lawyer about why seeing a tiny snippet on Google Books would hurt an author. Leval also noted the similarities to another key fair use case, the one filed against Google by Perfect 10, concerning image search. There, the court found that thumbnail images were fair use. Leval noted the similarities here. There was also this exchange, as written up by Jeff Roberts at PaidContent: The court drew a laugh when it asked the Guild’s lawyer, Robert LaRocca, if the group would be comfortable betting the whole fair use ruling on a sample scanned book of Google’s choosing. The judges also asked LaRocca to the explain why some authors were supporting Google’s position; he described them as “a very, very vocal group out at Berkeley.” That's incredibly condescending and ridiculous to authors across the country who have realized that having a giant digital index that helps people find books is actually a good thing. Once again, we're seeing the Authors Guild take an anti-progress, anti-technology position, probably costing their own members a huge sum in legal fees. It really makes you wonder who would want to support such an organization.Permalink | Comments | Email This Story
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Some of us had hoped that the liberation in Iraq would finally produce an example of a once clamped-down, dictatorial regime giving way to a pluralistic government in the Middle East. The theory was that after years of oppressive rule by the minority Sunni population, an inclusive government would result in functioning democracy, with all the benefits that go along with it. Chief amongst those benefits is the right to free speech, which requires allowing an open and free press. Unfortunately, that hope dwindled somewhat years back, when the Iraqi government joined the list of nations that sought to censor the internet to protect its own power. The importance of that move was probably lost on many people who failed to understand that it was an absolute negation of the freedom gained only years before. And now that negation is apparently continuing under Prime Minister Nouri al-Maliki's government, as they have ordered 10 television networks to be shut down on the charges that they simply don't care for their reporting. Iraq's government ordered 10 television networks shut down Sunday, accusing them of stoking sectarian violence with "unprofessional" and "unethical" coverage of recent clashes in the country's north. Sunday's order from the Communications and Media Commission includes the Qatar-based satellite network Al Jazeera and eight outlets aimed at the country's Sunni Arab minority. Ahmed Saeed, a reporter for Baghdad Satellite TV, said the decree effectively halts his network's reporting. This move is wrong-headed on several levels. First, if media outlets had to be shut down whenever they reported inaccurate information, even America would be left with zero media outlets. Second, considering the targets of these shutdowns, there is a roughly 100% chance that they will be seen as a stifling of speech specifically on the Sunni minority, once in power and now with a minor seat at the government table. The tone here is one of simple revenge rather than any sincere attempt at stifling bad information. Shias censoring Sunnis isn't the way to stop internal conflicts. One needs only look to Syria for evidence that stifling speech won't stop the violence. And most importantly, moves like this will simply push Iraq back to the very arena in which its people suffered for so many years. Censorship of speech and the press is the field upon which folks like Saddam Hussein and al-Qaida play, and have been playing for longer than al-Maliki's government. They're better at it than he is. The cure is open culture, pluralism, and free speech. Push Iraq away from openness and you place it in danger of fascism and theocracy once more. Permalink | Comments | Email This Story
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Nate Anderson, over at Ars Technica, has a good post discussing why Prenda has been able to continue its questionable legal practices for years, despite the fact that judges had been calling John Steele out years ago for this same activity. The real answer is in just how brazen Steele and his partners (mainly Paul Hansmeier and Paul Duffy) seem to have been in pursuing copyright trolling shakedowns. As we had discussed elsewhere, they had figured out ways to go after IP addresses by piling on legal loophole after legal loophole, often via state laws. Anderson has a summary that covers some of the efforts: You could see just how devoted Steele and his partners were to their new business model, though, because even these kinds of warning shots didn't deter them. Steele's initial operation, which became Prenda Law in November 2011, continued to iterate. It filed cases in other Illinois federal districts downstate. It filed in Illinois state courts, jiggering the charges to match the venue (copyright infringement of this kind is a federal issue). It filed in Florida, attempting to use an arcane procedure called a "true bill of discovery" to obtain IP addresses. It filed in California. It tried out "reverse class actions" suits against alleged downloaders. It formed a company in Las Vegas (hiring a "CEO" named Mark Lutz) and set up trusts located offshore (in Nevis) in order to own porn copyrights. No pesky PR department or tentative CEO could hold up Prenda's litigation pain train if the law firm could simply ditch the client and go into business for itself. Anderson further notes that they were never really stopped because these layers upon layers of tricks made it difficult to tease out what was really going on, and judges are happy to clear their dockets (something Team Prenda used to their advantage by quickly dismissing cases any time judges seemed to catch on to different elements): How could the scheme go on for so long even as federal judges complained about fraud, as "John Doe" defendants complained repeatedly that they had no idea what the cases were about, and as critics complained about the injustice of the entire business model? The answer is that federal judges aren't generally investigators. Prenda had gone to great lengths to obscure what was really going on, who was doing what, and where the money went. Judges want to clear cases off their dockets and in rare cases will entertain sanctions motions, but to unravel something as complex as Prenda's behavior required a real investigation. Yet without more details, actual criminal investigators had very little to go on; most of the judicial complaints dealt with behavior in court, not public crimes. So Prenda could essentially turn the entire US judiciary into a laboratory for incrementally refining its porn trolling techniques, testing venues, judges, corporate structures, collection procedures, and legal arguments, looking for perfection. And what it arrived at in the end had a certain devious logic to it. Even Otis Wright, the federal judge in Los Angeles who brought down Prenda's principals and referred them all for criminal and tax prosecution this week, had to concede the conceptual beauty of the system. I think it actually goes even further than that. It's that most judges assume, quite reasonably, that the lawyers appearing before them are not piling upon layers of tricks to try to obscure what may just be criminal activity. Lawyers are given the benefit of the doubt that, while they may sometimes push the boundaries in advocating for a client, they are generally being honest with the court about what's happening. I think it was the sheer audacity of the overall effort by Team Prenda, that goes so incredibly far into loopholes upon loopholes, that most people -- especially judges -- wouldn't even think what was happening was possible. It's so far outside the reality they deal with. Lawyers may go a little overboard in court, but setting up a structure like this, which Judge Wright clearly believes is a direct fraud on the court, with a possible side dish of racketeering, is unbelievable. I know that I was certainly skeptical of some of the more extreme claims about Steele and Prenda from early on -- and was even hesitant to write about some of the wilder assertions made on some anti-troll blogs. However, as more and more evidence started to come out concerning Steele and the others named in this case, it was hard to deny that something massive was going on, and various courts were finally starting to catch on to the fact that these weren't just over aggressive bad lawyers taking on dodgy cases, but rather something much bigger. And while some other judges started down this path first, Judge Wright does deserve kudos for focusing in and really digging out a bunch of details pretty quickly once all of this started to become clear to him. Some joker has set up an IndieGogo campaign to erect a statute in honor of Judge Wright for this ruling. I think that goes a bit far, but the fact that he was willing to pursue this, where other judges just scolded Team Prenda and let them go, definitely deserves some recognition. Still, all of this leaves open the fact that there is something of a bug in the legal system. These kinds of abuses are not easy to catch. It would be good if there were a better way to flag these kinds of abuses earlier in the process, before they can go as far as John Steele and Prenda appear to have been able to take these efforts.Permalink | Comments | Email This Story
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The QWERTY keyboard layout, which was created around 1875, was originally designed to prevent typewriter keys from jamming. This was done by arranging letters that were most commonly used together farther apart. While the QWERTY layout is still used today, it may not be the best layout for virtual touchscreen keyboards, so there have been many efforts to design alternative keyboard layouts. Here are just a few examples. The new KALQ keyboard layout enables faster thumb-typing on touchscreen devices. In the new layout, all the vowels except for "y" are placed in the area for the right thumb, while more keys are assigned to the left thumb. After a short amount of practice, users were able to type 34% faster with the KALQ keyboard than with a traditional QWERTY layout. [url] Minuum is a space-efficient, single-row keyboard layout that uses auto-correction algorithms to intelligently predict the words users are attempting to type. The traditional QWERTY order of letters is mostly in place to make it easier to transition from standard software keyboards, and the powerful predictive typing algorithms ensure accurate text entry.[url] IBM envisions a virtual keyboard that can adapt to each user's unique typing style. The keyboard would gather data on the user's typing habits and compile an "anatomical profile" of the user, which it would then use to subtly adapt the keyboard to the user. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story
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With comprehensive copyright reform back on the table in the US, and with Rep. Bob Goodlatte looking to lead the process, he's hosting the first House Judiciary Committee hearings on the matter, with the initial focus focused on finding consensus. They're starting with five witnesses, all of whom participated in the Copyright Principles Project, which we wrote about a few years ago when it came out. At the time, we wondered if anyone would pay attention to it, so it's actually great to see that it's front and center in this discussion. That document -- which was put together by a wide variety of folks from different backgrounds -- looked at 25 possible areas for reform. All five witnesses participated in the process: Jon Baumgarten, retired Proskauer Rose attorney and former General Counsel of the U.S. Copyright Office (noted litigator on copyright matters including music and movie issues) Laura Gasaway, Professor, University of North Carolina Law School and co-chair of the Section 108 Study Group (libraries) Daniel Gervais, Director, Vanderbilt Law School Intellectual Property Program (international issues) Pam Samuelson, Professor, University of California at Berkeley Law School (convenor of the CPP and copyright law scholar) Jule Sigall, Assistant General Counsel for Copyright, Microsoft and former Associate Register for Policy and International Affairs of the U.S. Copyright Office (tech) Having Samuelson on the list is the key one, as she was the driving force behind the project and is one of, if not the most, knowledgeable folks concerning copyright issues around. I recognize that any copyright reform process could go seriously off the rails once certain lobbyists go crazy over it, but I'm going to take an optimistic approach here and hope for the best. Starting from this position with the folks who were involved in this process is a good place to start, though we'll see where it goes from here.Permalink | Comments | Email This Story
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For the second year running, all snooping-on-citizens requests have been granted by our nation's most secret court, the United States Foreign Intelligence Surveillance Court. A secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States “for foreign intelligence purposes,” the Justice Department reported this week. The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either. This surveillance was supposed to be limited to American citizens in contact with entities outside of the United States, but requesters found that adding the words "Al Qaeda" into the mix allowed eavesdropping on email and phone calls that never leave the country. This being a secret court, one running without oversight and immune from lawsuits, it seems operatives can request pretty much anything and have it approved. It's the ultimate rubber stamp process and one that can be asked for after the fact. Even a still-theoretical rejection can't slow down the spying. The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request to the secret court, and the surveillance can continue during the appeals process if, in a rare case, the spy court rejects the surveillance application. On the bright less oppressively gloomy side, there has been a slight reduction in National Security Letters, those wonderful sheets of paper law enforcement and security agencies use to compel pretty much any business (ISPs, banks, credit agencies, etc.) to hand over as much data on the named citizen as possible. The same Justice Department report this week said the government issued 15,229 National Security Letters last year, down from 16,511 in 2011. We'll have to see how much this number tails off in 2013 considering a federal judge ruled these letters unconstitutional in March. There's no reason to stop writing these letters quite yet, though. The ruling has been stayed for 90 days pending the administration's appeal. Given the track record of this administration (and the last), one would expect these letters to live a full, healthy (and unconstitutional) life, perhaps revived by an Executive Order or some sort of "national safety/security" exemption. On top of the usual concerns about increased surveillance of American citizens is the fact that this 2-page "report" gives us no useful information about whether all of this spying is actually having any impact in the War on Terror. As an instrument of public oversight, the annual reports on FISA are only minimally informative. They register gross levels of activity, but they provide no measures of quality, performance or significance. Neither counterintelligence successes nor failures can be discerned from the reports. Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined. The less data there is available, the fewer questions there are to answer. Right now, there's plenty of questions, but until the courts force the issue (a route that doesn't look terribly promising, despite the recent decision on National Security Letters), these questions can be safely ignored. Permalink | Comments | Email This Story
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If you recall the insane concept of "hot news," you know all about the attempt to treat factual information as intellectual property as long as you were breaking that information as news. Courts have since seen through that kind of insanity, but that doesn't keep some of the more obnoxious organizations out there from attempting end-arounds that amount to the same thing. And since I used the word "obnoxious," you just had to know that the latest example of this is going to feature Dr. Phil, who is every bit an M.D. as I am a velociraptor. Many months back when people still gave a damn about college football, Dr. Phil had a two-part series with Ronaiah Tuiasosopo, the man who says he perpetrated the hoax of a fake, dead girlfriend on Notre Dame linebacker and now NFL draft-dropper Manti T'eo. Deadspin covered the story, including the use of clips from the show, in which Tuiasosopo performed his falsetto girl-voice in one of the most awkward television moments this side of that one time when Tom finally caught Jerry and ripped his limbs off in victory (FYI, that never happened). Dr. Phil has apparently cried copyright foul. His reason for this is that some of history's worst math mixed with a touch of irony told him that Deadspin's coverage cost him massive amounts of viewers. Peteski Productions is arguing that Deadspin spoiled a two-part cliffhanger on the Dr. Phil program by posting a clip of Ronaiah Tuiasosopo speaking in what he said was the voice of the fictitious girlfriend "hours before the Dr. Phil Show aired to over 98% of its viewers." In other words, the clip was posted after the episode of Dr. Phil had already been broadcast in some markets, breaking the show's own news blackout on the question of whether or not Tuiasosopo would perform the female voice. According to Broadcasting & Cable, the first and second parts of the interview drew 4.8 million and 4.3 million viewers respectively, exceeding the show's average of 4.1 million. That performance helped make Dr. Phil the No. 1 rated syndicated talk show for that sweeps period. Keep the math we're discussing here in mind, because the level of stupid is about to approach epic proportions. Dr. Phil's ratings during those two shows exceeded their averages. Meanwhile, the two Deadspin posts in question garnered a grand total of 164k views together. The lawsuit alledges that the second Deadspin post, which had 103k of those views, caused the drop in viewership between the first and second episodes of the Dr. Phil show. Read that again. A post with roughly 100k views cost Dr. Phil 400k viewers. Clearly, Dr. Phil's doctorate isn't in mathematics. Nor is it in intellectual property law, I'm afraid, as most people would have to conclude that using the short clips to report on the story, with additional commentary, would very likely fall under fair use. So, there you have the bad math part. But I promised you irony, didn't I? For that, we'll return to the lawsuit, which references Deadspin's ex-editor, AJ Daulerio's joking claim about how people refer to the site as a "content remora" and then the lawsuit helpfully goes on to describe exactly what that is. A remora is a fish, sometimes called a suckerfish, which attaches itself to other fish like sharks. The host fish gains nothing from the relationship but the remora is enriched by obtaining benefits (usually food and transportation) from the host. Got it? The lawsuit is claiming that Deadspin is leeching off of Dr. Phil, providing nothing to them but benefiting from Dr. Phil's laborious undertakings. So why is this ironic? Well, because Deadspin broke the damned T'eo story to begin with. No Deadspin, no Dr. Phil shows with higher-than-average ratings. The remora reference would only be apt if remoras left their host sharks regularly to order those sharks Chinese takeout and deliver said takeout personally. And, of course, Daulerio's use of the term, in context, shows that he was actually mocking those -- like Dr. Phil -- who falsely imply that Gawker and its sites like Deadspin only leech off of someone else's content. The whole point of Daulerio's statement was to show that they're not, in fact, leeching, and yet Dr. Phil's lawsuit attempts to flip that around. So take your own advice and get real, Dr. Phil. This was a case of fair use and your piss-poor math is as laughable as it gets. You should be thanking Deadspin for the story in the first place, not slinging mud and lawsuits in their direction.Permalink | Comments | Email This Story
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We had noted that Team Prenda (under new names) appeared to still be up to their old tricks, filing lawsuits and trying to get names to shake down with settlement demands. And you might have thought that with the big Judge Otis Wright ruling against them they might settle down. But, no, John Steele insists that Livewire Holdings -- the main shell company at the center of the fight -- is still filing new cases. In an extended interview with AVN news, Steele goes even further than his earlier comments promising an appeal and complaining about Judge Wright: “The hearing regarding me in March was 12 minutes long and there was no evidence or testimony admitted. I have never had any ownership interest in AF Holdings, Ingenuity13, or Prenda Law and no evidence otherwise was ever presented. I am not an attorney in this matter, and have never practiced law in California. In fact the first time I heard of this case was when Mr. Gibbs told me he got an Order to Show Cause in February 2013 regarding this case.” He continued, “I would also comment that the attorneys representing myself, Paul Hansmeier, Paul Duffy, and the others were not allowed to make argument nor were we allowed to present witnesses. And normally with orders regarding sanctions, the Court will point to evidence, testimony, or something to explain the sanction. In this order, there is nothing.” Again, this is pretty funny on multiple levels. The claim that he didn't even know about the case until February is almost laughable, especially considering that Gibbs noted that he took regular instruction on this very case from Steele. Furthermore, it's well known that Steele reads the various anti-copyright trolling blogs regularly -- and they've been following this case for quite some time. As for the claim that they "were not allowed to make argument," again, that's not true. Their lawyer told the Judge that they were pleading the fifth. In another interview, with the LA Times (where the reporter appears to have spelled about half the participants' names wrong), Steele gamely predicts that "There's going to be a lot of egg on people's faces" after his appeal. We'll see about that. But... back to the AVN story. Steele goes back to attacking the opposing lawyer, Morgan Pietz, Judge Otis Wright and (of course) the EFF. He then claims (incorrectly, mind you) that copyright holders are "winning the vast majority" of these kinds of trolling copyright cases. He's pretending that this is still about copyright trolling, not massive fraud on the court for which he's almost certainly about to be investigated by federal prosecutors for possible racketeering charges and tax evasion, because a federal judge has suggested that both areas need to be investigated. His only response to all of that is to say that the Illinois State Bar investigated him already and was okay with his actions. We'll see about that as well. But the really amazing part is that, after insisting that he has nothing to do with these lawsuits, he tells AVN that Livewire Holdings, the master shell corporation involved in all of these shenanigans, is filing new cases this week: For his part, Steele told AVN that it is his understanding that Livewire Holdings, one of the entities identified by Judge Wright—by way of an actual Prenda relationship chart included in the order—as being a member of the Prenda family, “is filing multiple new cases this week." “Hopefully,” he added defiantly, “the pirate that got away in this matter will be caught and brought to justice down the road.” I've said it before, but Steele really reminds me of people I've known who think they're a hell of a lot smarter than they really are. They think (1) that they've discovered a brilliant loophole that no one else could possibly figure out and (2) that they can talk their way out of anything. In Steele's case, each time he opens his mouth, it's likely he's digging himself a slightly deeper hole. He's hired expensive lawyers. You'd think they'd tell him to shut up already, because he's doing his own case a lot more harm than good. Of course, if it's true that Livewire is still filing new cases, after a federal judge has called them out on this behavior (and ordered his ruling be given to every court involved in any litigation involving Livewire and all of Team Prenda), that may come back to haunt him even more.Permalink | Comments | Email This Story
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For years, we've talked about how casinos were able to get away with not paying people who won jackpots from electronic gambling machines, by claiming that their wins were really because of software glitches. That always seemed like a highly questionable practice, but even more questionable was filing criminal charges against winners who won because of those glitches. We talked about one such case back in 2007, and then another one in early 2011. That 2011 case involved two guys, John Kane and Andre Nestor, who had figured out a bug in some video poker software from International Game Technology, a gaming giant. The bug was very complex. It involved a series of different steps that had to be taken: play one game on the machine until you have a high payout, then switch to a different game, play until an option popped up to "double up" (basically a double or nothing proposition on a "high card wins" bet), then add more money to the machine, exit the specific game, change the denomination amount to the game maximum, and then switch back to the original game played. At that point the high payout from the initial round shows, allowing that amount to be re-awarded. On top of that, it would recalculate the award by the new denomination level, often increasing the "payout" by 10x. Apparently Kane discovered this bug by accident from playing a ridiculous amount of video poker. His lawyer claims that Kane was obsessed with video poker and probably played it more than anyone. He also insists that there was no research or effort that went into this. It was just a fluke from playing so often that Kane found the bug -- and then got his buddy Nestor (and a few others) involved in using this bug to win an awful lot of money. When Nestor was arrested, he was reasonably angry about the whole thing: “I’m being arrested federally for winning on a slot machine,” he said. “It’s just like if someone taught you how to count cards, which we all know is not illegal. You know. Someone told me that there are machines that had programming that gave a player an advantage over the house. And that’s all there is to it.… “Who would not win as much money as they could on a machine that says, ‘Jackpot’? That’s the whole idea!” The feds, of course, hit them with CFAA (Computer Fraud and Abuse Act) charges, the same highly questionable hacking law we've been writing so much about lately. The feds argued that Kane and Nestor "exceeded authorized access" -- one of the most troubling parts of the CFAA. The DOJ argued that: In short, the casinos authorized defendants to play video poker. What the casinos did not do was to authorize defendants ‘to obtain or alter information’ such as previously played hands of cards. To allow customers to access previously played hands of cards, at will, would remove the element of chance and obviate the whole purpose of gambling. It would certainly be contrary to the rules of poker. However, the court was skeptical of this argument, and after the 9th Circuit's ruling in last year's case against David Nosal, where they said that merely violating an employer's computer use policy did not mean you had exceeded authorized access, the court asked the DOJ to explain how the CFAA still applied in light of the Nosal ruling. Apparently, the DOJ realized that the CFAA charges no longer made sense and, yesterday afternoon dropped those charges. In a simple filing with no explanation, the DOJ asks the court to dismiss the two CFAA-related charges in the indictment. Kane and Nestor still face a single wire fraud charge, but that's much less of a threat than the CFAA charges. At the very least, it's good to see increasing pushback on the DOJ for its regular abuse of the CFAA to pile on charges.Permalink | Comments | Email This Story
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The EFF has inducted singer Prince into its "Takedown Hall of Shame" by giving the purple one the "Raspberry Beret Lifetime Aggrievement Award" for his consistent and neverending abuse of the DMCA process to take down content he has no right to takedown. In giving him the award, they list out three examples we've spoken about before: Prince's recent DMCA takedown on six second clips on Vine of a Prince concert at SXSW. These clips were clearly fair use -- showing tiny snippets where the music isn't even recognizable. Prince's DMCA takedowns sent over fan-recorded concert videos of his performance of Radiohead's song "Creep." As EFF points out, Prince has no real copyright claim here. The copyright of the song is Radiohead's -- and Radiohead demanded that the videos be put back online -- and the copyright on the video is whoever took the videos. But that didn't stop Prince. Of course, no surprise here, Prince's connection to the infamous YouTube takedown of Stephanie Lenz's 29-second video of her toddler dancing to a Prince song in her kitchen. The lawsuit over that one is still going on. That one might actually be more about Universal Music than Prince, but given his other takedown actions, it would be surprising if he didn't support Universal on that one (even if he's had other disagreements with the label). Of course, if the EFF wanted, it could make the list even longer. Prince sent a cease & desist to an artist who put together a puppet-based tribute to the artist. He similarly threatened a bunch of fan websites, claiming that any photos of him or his album covers was infringement. Oh, and then there was the time he sued 50 musicians for having the temerity to record a tribute album to Prince for his birthday. Such a nice guy.Permalink | Comments | Email This Story
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We've been dealing with the New York police department lately, thanks to the mayor and the police chief using the recent Boston bombing as an excuse to increase surveillance efforts and enact other policies to further encroach on New Yorkers' civil liberties. Whenever something terrorist-related occurs, it seems as though the NYPD's reps can't keep their opinions to themselves, even as the department itself drifts further and further away from being a sterling example of How Things Should Be Done. In a recent Christian Science Monitor article dealing with "teenagers, terrorism and social media" (focusing on the recent Cameron D'Ambrosio arrest for making "terrorist threats" via some improvised rap lyrics posted to Facebook), Sgt. Ed Mullins of the NYPD shows up to make some very disturbing statements about your rights and responsibilities as a (mere) citizen. It starts with the worst kind of "policy" and goes downhill fast. Using a zero tolerance approach to track domestic terrorists online is the only reasonable way to analyze online threats these days, especially after the Boston Marathon bombing and news that the suspects had subsequently planned to target Times Square in Manhattan, Mullins says. The way law enforcement agencies approach online activity that appears sinister is this: “If you’re not a terrorist, if you’re not a threat, prove it,” he says. "Zero tolerance" is never "reasonable." It never has been and it never will be. In fact, it's the polar opposite. Zero tolerance policies simply absolve the enforcers of any responsibility for the outcome and grant them the privilege of ignoring mitigating factors. It allows them to bypass applying any sort of critical thinking skills (the "reason" part of "reasonable") and view every infractions as nothing more than a binary IF THEN equation. Mullins goes even further than this, though, asserting that the burden of proof lies with the person charged, not the person bringing the charges. This flips our judicial system on its head (along with the judicial systems in many other countries) and, if applied the way Mullins views it, puts accused citizens in the impossible position of trying to prove a negative. This is just completely wrong, and it's a dangerously stupid thing for someone in his position to believe, much less state out loud. (Mullins also heads the Sergeants Benevolent Association, the second-largest police union in New York City.) Believe it or not, Mullins is not done talking. What he says next doubles up on the "dangerous" and "stupid." “This is the price you pay to live in free society right now. It’s just the way it is,” Mullins adds. No. It isn't. This is the price Mullins is charging to live in the NYPD's severely stunted version of a "free" society. The NYPD has been harassing young minorities at the rate of 500,000 impromptu stop-and-frisks per year for the better part of the last decade. For the past 10 years, the NYPD has been regularly trampling citizens' civil liberties simply because they attend a mosque. The NYPD and Mayor Bloomberg have worked ceaselessly to make New York the most-surveilled city in the U.S. That's the price New Yorkers are paying. It has nothing to do with living in a free society. The NYPD takes liberties away and high-ranking cops like Mullins have the gall to suggest there's some sort of equitable exchange occurring. Mullins doesn't seem to understand (or just doesn't care) that if you take away freedom you no longer have a free society. It has been said that eternal vigilance is the price of liberty, but "eternal vigilance" isn't shorthand for oppressive surveillance and zero tolerance policies that make freedom less "free." "Eternal vigilance" isn't treating the Constitution like a relic too worn and tattered to serve any purpose in these "dangerous" times. And being an officer of the law isn't an excuse to shut your intellect off and allow your brain stem and broad policies to "work" in concert in order to treat loudmouth teens on Facebook like a guy with a trailer home full of explosives. This "vigilance" is supposed to be put to use by citizens in order to prevent authorities like Mullins from encroaching on our liberties. It's not solely limited to a united military effort against foreign powers. There are plenty of people apparently willing to attack our freedom from the comfort of the home front. Permalink | Comments | Email This Story
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We've been covering the latest efforts by copyright maximalists to screw over the blind in the decades-in-waiting WIPO treaty process to help them get more access to content by creating clear carveouts in copyright law that protect the rights of the blind and of those who are transforming works for the blind. Basically, it's about protecting the fundamental rights of the blind to have access to information that others have because they have sight. This process has gone on for ages, in large part because copyright maximalists absolutely fear the idea that anyone might put forth an agreement that ever so slightly pushes back on the maximalist agenda. The amazing thing is that they're not even subtle about this. Last year, we noted that in a video by Jamie Love showing Alan Adler, a VP for the Association of American Publishers, Adler was quite upfront about the fact that they're against this agreement for the blind not because of the blind folks who need the help, but rather because they're afraid of even opening the door to expanding things like fair use -- which he claims is some sort of attack on copyright. Jamie Love has now called our attention to a letter sent by the Intellectual Property Owners Association (IPO) to Teresa Stanek Rea, the Acting Under Secretary of Commerce for Intellectual Property and the Director of the USPTO, concerning this treaty, in which the IPO is equally explicit that its main complaint is any expansion of user rights like fair use is simply not acceptable. From the full letter, which is also embedded below: IPO supports international action that addresses the needs of the visually impaired in meaningful ways, but we are concerned about the VIP treaty as currently drafted, focused exclusively on L/Es and not on the rights holders whose copyrights are at stake. We are also concerned about the potentially negative, precedential effect that a one-sided, exceptions-focused VIP treaty may have on parallel developments at WIPO and in other international negotiations This is all sorts of hilarious. After all, the folks at IPO have long supported incredibly one-sided agreements that only focus on the expansion of copyright, and they're among those who have actively fought any attempt to include user rights (they prefer to call them "limitations and exceptions") in such agreements. So for them to suddenly step up and complain that this one small, narrowly focused agreement is a problem because it "only" focuses on such things, without regards to their "rights holders whose copyrights are at stake" is pretty funny. Why has IPO never been concerned about the rights of the public and users in every other such agreement? Our main concern about the VIP treaty, as currently drafted, is that it addresses L/Es to copyrights in isolation, without parallel provisions addressing IP holders’ rights. The proposed VIP treaty would create specific L/Es to copyright protection, with the aim of broadening access to print works for the visually impaired. However, it would not reflect the importance of protecting the copyright of those who created the work. Okay, so simple question for the IPO folks: in all future agreements that it supports, will it agree to support a "balance" that addresses user rights, rather than focusing on "copyrights in isolation without parallel provisions addressing users rights?" The idea that the "rights" here are only one way and must be constantly ratcheted up is disingenuous and somewhat sickening. It's this position that has kept the blind community from having access to all sorts of works for decades. And during those decades, folks like IPO have supported all sorts of incredibly one-sided expansions to copyright law without concerns for any public or user rights.Permalink | Comments | Email This Story
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So, hey, remember that one time that Disney thought it'd be a pretty sweet idea to celebrate the death of Osama bin Laden by applying for trademarks on Seal Team 6's name so they could apparently sell snow globes? Pretty much everyone who came across the story dropped a verbal brick on the Mouse for what looked like quite an elegant mix of cynicism and a lack of patriotism, causing them to drop their applications shortly after. Personally, I'm having a hard time thinking of a better exemplification of what is currently the 'American way' than locking up language due to the brave actions of others, but I guess my brand of cynicism just isn't cool with the kids these days. Anyhoo, guess who now wants to lock up the name of a traditional Mexican holiday to sell some swag? Yup, Mickey is back to his old habits with multiple applications on "Día De Los Muertos", more commonly known as the Day of the Dead. Disney filed 10 requests in the U.S. Trademark and Patent Office this month to coin the phrase. Disney's filings are mainly for merchandise, presumably connected to an upcoming film. The areas they are hoping to secure include “education and entertainment services,” “fruit preserves; fruit-based snack foods,” “toys, games and playthings,” “clothing,” “footwear,” “backpacks,” “clocks and jewelry” and more. You know, as someone who likes to think they write things people occasionally find funny, I have to tell you how special it is when someone out there does all the setup work for you. I mean, a national holiday during which families come together to pray for their recently departed... and you're going to make fruit preserves and snacks about it? Seriously, I don't even have to write a joke about this. It writes itself. What are they going to call the snacks, Fruit Roll-Out Your Deads? Berry Departeds? It's a gold mine! As for the other areas in which they applied for the mark, it's worth noting that approximately an infinite number of other folks are already producing Día De Los Muertos merchandise. Note that nearly all of the markets Disney applied for are covered already, with the exception of all the fruit snacks and preserves. In the article, some helpful trademark lawyer made sure we all know that Disney getting their marks approved wouldn't mean people couldn't celebrate the holiday, because ostensibly we're all complete morons and didn't know that already. The point is that making a movie shouldn't allow Disney to suddenly lock up the name of a traditional holiday for markets that are mostly already well served by other providers. Hell, why not just lock up Christmas and be done with it? Oh, wait.... Update: And.... just like that... withdrawn.Permalink | Comments | Email This Story
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While we recently discussed how EA's silence has managed to push the backlash over the SimCity launch debacle into the background, anyone at all familiar with the story realizes what a complete botch it was. The initial backlash was bad enough, but it was made all the worse when company executive after company executive came out of the woodwork to excuse, obscure, and otherwise make misleading comments about the more egregious aspects of the launch failure. The most frustrating of these was the insistence that the online requirement for the game was in no way a form of DRM, it was a simply a matter of vision in core gameplay, and anyone confusing the two doesn't understand the gaming software business. You know who does know a great deal about that business, however? The creator of the Sim City franchise, and legend, Will Wright. And when asked to comment about the latest iteration of the franchise, which he didn't have a hand in, he spoke quite plainly. "I feel bad for the team", he says. "I could have predicted - I kind of did predict there'd be a big backlash about the DRM stuff." Yeah, that's Wright telling EA that they should have seen this coming. He goes on to say that he actually enjoys the game quite a bit, but adds in some fairly harsh words for the anti-customer method of the launch. "That was basically inexcusable, that you charge somebody $60 for a game and they can't play it. I can understand the outrage. If I was a consumer buying the game and that happened to me, I'd feel the same." To understand the gravity of a legend like Wright making these comments, it would be as if the leaders of the world went on a world tour telling you how great the entire planet was in every way and how you had only them to thank for it being so mega-awesome, all the while war, murder and famine occurred around you. Then, just as you were getting fed up with the lies and BS, whatever God you might believe in parted the heavens, poked his head through, and said, "Hey, not bad, but you guys kind of f%@#ed the whole thing up." Permalink | Comments | Email This Story
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A bunch of folks have been pointing us to the new "whitepaper" released by Kim Dotcom, which lays out two key things: why the lawsuit against him is a complete legal sham and also why it was driven by a corrupt connection between the US government and the MPAA. The paper is written by his lawyers, including Ira Rothken and Richard Amsterdam (whose addition to his legal team was discussed a few months ago). Frankly, most of this reads like the lawyers refining the eventual motion-to-dismiss filing that they expect to submit to the federal court (should it ever get there). The majority of it is taken up with the clear legal statements as to why the lawsuit is based on very questionable theories. The main point, as we've discussed before in the context of other cases, is that the DOJ seems to have completely made up a legal theory of contributory copyright inducement. While there is such a thing in civil contexts, it's not there in criminal contexts. Supporters of the DOJ will argue that there is aiding and abetting, but the rules there are quite different and, again, it doesn't look like Dotcom and crew would be guilty of such a charge. The overall point is clearly stated in the whitepaper. Here's a snippet: The fact of the matter is that the notion of criminal liability for secondary copyright infringement does not exist in U.S. law. The attempt by prosecutors to expand criminal liability for secondary infringement by couching it as “aiding and abetting” or “conspiracy” goes against established precedent in case law and repeated positions taken by the U.S. Congress. The Copyright Act creates civil and criminal liability for various acts of copyright infringement, but it does not expressly give rise to liability for infringement committed by third parties. Furthermore, the U.S. Supreme Court has defined specific circumstances under which service providers may be held civilly liable (i.e., not criminally responsible) for direct copyright infringement by third parties, such as distributing “a device with the object of promoting its use to infringe copyright.” The fundamental legal problem with this aspect of the government’s case is that only Congress can create new criminal liability; judges cannot. Previous instances in which courts have imposed civil liability for secondary copyright infringement – based on application of common law principles – do not apply in criminal proceedings, as federal crimes are “solely creatures of statute.” Whatever authority the courts may have had to recognize a contributory theory of copyright liability in the civil context, the courts simply have no power to impose a basis for criminal liability beyond what is expressly authorized by statute. One surprising inclusion is that the whitepaper supports this well known point -- that courts can't create new criminal liability -- by extensively quoting legal analysis from Jay Prabhu from years ago. This is a bit of dagger twisting by Dotcom's legal team. Prabhu, well after writing those analysis, took a job in the Justice Department, and eventually was put in charge of the DOJ's "cybercrime" unit -- and has been a key prosecutor against a number of copyright cases, including various domain seizures. In fact, he's the one who signed the indictment against Dotcom. To use his own words against the case is amusing. The filing also lays out a number of arguments that we've seen before, including a further explanation of how the DOJ was being totally disingenuous in arguing that Megaupload refused to remove works it knew were infringing, by pointing out the files they mentioned were ones that Megaupload has clearly been asked to preserve as part of an investigation into copyright infringement. There's also an interesting and more detailed than previous discussed defense on the point about Megaupload's rewards program. We had pointed out how silly it was to use this element against Megaupload, since it was a general rewards program to get people to make use of its cloud storage, and there was nothing in the program that induced more infringement (in fact, it seemed like a great tool for a content creator to make money by releasing his or her own works via the rewards program). On this, Dotcom's whitepaper points out not just those points, but also (1) the fact that lots of other sites have similar rewards programs (2) specific features Megaupload included in its rewards program that made it bad for infringement (including file size limits and required identification) and (3) the fact that they had dropped the program long before the indictment. While I do wonder how wise it is to basically give the DOJ their opening brief way before they would actually see it in court -- and giving them a lot more time to respond to it -- there are a few reasons why this move could make sense. First, they're so damn confident in their argument that it doesn't really matter. That may be risky. Another point may be that it signals to the DOJ that they may want to look for ways to extricate itself from the case quickly, because it's not going to go as easy as the DOJ has assumed from the beginning. The other issue may be that Dotcom and his legal team realized long ago that the court of public opinion probably matters more in the long run than the federal court system in the US. To that end, of course, the paper has a second section, which has received most of the attention: all about the supposed corrupt process that brought about the indictment. When Megaupload hired Richard Amsterdam, he specifically noted that the details of the case suggested a typical "contract prosecution," and the paper seeks to lay out that argument clearly, highlighting the close relationship between the Obama Administration (mainly via VP Joe Biden) and MPAA boss Chris Dodd. Chris Dodd’s jump from the U.S. Senate into the cockpit of the MPAA was an equivalent move. As the new Chairman and CEO of the MPAA, Chris Dodd improperly leveraged his friendship with Joe Biden to achieve the MPAA’s objectives. Former Senator Dodd’s relationship with the Vice President– who comes off manipulated, a cheerfully credulous facilitator – together with the Obama Administration’s ravenous hunger for campaign contributions, has given the MPAA absolute control over how the U.S. Department of Justice plays the game in enforcing copyright law. This capture is nowhere more clearly demonstrated than in the Megaupload/Kim Dotcom prosecution. Frankly, while this section is getting the most attention, I actually find it to be the weakest and most poorly supported part of the paper, which would probably be more compelling without it. I don't doubt that the close connections between the MPAA and various folks in the DOJ and in the VP's office contributed to Megaupload being a target, but trying to make it out as anything more than that seems like a stretch. Yes, the MPAA complained regularly about Megaupload, and that clearly helped put a target on its back. But, it's quite likely that the over-eager folks at the DOJ ran with this one on their own. The MPAA (with the help of the press) had worked over time to paint Kim Dotcom as "Dr. Evil" of the copyright world. Everything about the process of taking down Megaupload screams of a bunch of feds who totally bought into the theatrical version of the MPAA's vision, without much effort to understand what was really happening. The myriad mistakes and sloppiness in the case really suggest that the DOJ assumed that the stories the MPAA told were so accurate that everything about this case would be a layup. The investigation, the indictment, the raid, the handling of evidence -- all of it was done in a sloppy way -- as if they expected no one would challenge any of it. I'm sure there was influence and pressure that went into this, but painting it as a case where Chris Dodd called up Joe Biden and said, "Destroy Megaupload" is probably a massive exaggeration. Instead, it seems quite likely that MPAA folks just kept playing up the theatrical version of Kim Dotcom as evil (and, Dotcom himself actually helped promote this sort of view of himself at times as well...), and then the DOJ's imagination combined with its general over-aggressive nature towards any copyright issues just sort of took over from there. Either way, the paper is definitely a worthwhile read. I'm sure a group of folks at the DOJ are taking their time reading through it quite carefully. I imagine that we'll eventually see their response in court.Permalink | Comments | Email This Story
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Last month Techdirt wrote about the case of the giant pharma company AbbVie seeking to prevent the European Medicines Agency from releasing basic health safety data that AbbVie claims contains commercially sensitive information. Unfortunately, an interim injunction has just been granted to that effect: The European Medicines Agency (EMA) has been ordered by the General Court of the European Union not to provide documents as part of two access-to-documents requests until a final ruling is given by the Court. These interim rulings were made as part of court cases brought by two pharmaceutical companies, AbbVie and InterMune. The companies are challenging the Agency's decisions to grant access to non-clinical and clinical information (including clinical study reports) submitted by companies as part of marketing-authorisation applications in accordance with its 2010 access-to-documents policy. As the EMA notes, it's not as if the release of this data is unprecedented: Since November 2010, the Agency has released over 1.9 million pages in response to such requests. This is the first time that the policy has been legally challenged. That obviously raises the question of why AbbVie and InterMune have problems with drug safety data being released when other companies don't. Fortunately, there is very broad support for the EMA's attempt to make this important information available for other researchers to check and analyze: Since the two pharmaceutical companies filed these legal actions, the EMA has received more than 30 statements of support from various stakeholders, including the European Ombudsman, national competent authorities, members of the Agency's Management Board, Members of the European Parliament, academic institutions, non-governmental organisations, citizens' initiatives and scientific journals, some of whom have also applied to formally intervene in defence of the EMA at the Court. There's a crucially important principle here, that public safety must outweigh any claims of commercial confidentiality. Let's hope that the General Court of the European Union recognizes that in its final judgment, which will have a major impact on health and safety not just in Europe but, as a knock-on effect, around the world too. Follow me @glynmoody on Twitter or identi.ca, and on Google+ Permalink | Comments | Email This Story
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People seem really good at forgetting history. While most people realize that Google bought YouTube early on in that company's existence, they tend to forget that this was, in part, because YouTube was beating the pants off of Google's own online service called Google Video. The big difference? Google Video's launch focused very much on selling videos and using annoying DRM that had to check in with a server any time you wanted to watch. It was a complete and total failure, which probably cost an even larger amount when you realize it made Google more desperate to buy YouTube. A few years later, Google tried again, playing up the ability to pay for videos... and once again it flopped pitifully. A 10 day test brought in just a little bit over $10,000 -- which is hardly worth the effort involved. Perhaps the third time's the charm? People are reporting that YouTube is getting ready to launch a paywall feature, which may have 50 "channels" locked up behind the wall. The idea is to be more of a Hulu or Netflix-type competitor, though rather than a flat fee for access to all locked up content, YouTube thinks people will pay $1.99/month per channel. That seems... pretty high. Perhaps they're hoping that times have changed and what failed in the past is now okay because people are accustomed to paying for this kind of thing. However, I still have trouble seeing how this succeeds. If anything, this just seems like a tool with which Hollywood can hang itself. It may jump on this thinking that it's a great new way to build an online revenue stream, without realizing all the potential hazards. Cable and satellite channels, which traditionally rely on a dual revenue stream model, are eyeing YouTube’s subscription service to generate revenue from older shows and new programming, according to another person familiar with the project. I'm sure plenty of old school execs are thrilled about this idea... until they see the actual numbers. This isn't about helping the old industry adapt, but giving them the tools to see how unlikely they are to succeed with a paywall.Permalink | Comments | Email This Story
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The origins of life are incredibly mysterious. The life that we normally interact with is made up of chiral molecules, and no one actually knows why only certain chiral molecules are involved in our biology. No one knows how life began, or where it began, or when. Lots of basic questions about life have no solid answers. Attempts to duplicate the creation of life have generally only produced inanimate molecules (except for synthetic life based on existing lifeforms). Here are just a few fascinating links on the topic of life. Moore's law probably doesn't apply to biology, but if it did, it suggests that life as we know it began before the Earth existed. Genetic complexity as a function of time has been extrapolated backwards, but it's obviously more of an interesting thought experiment than a meaningful biological theory. [url] NASA's Curiosity rover has analyzed some martian rock samples to answer the question: "could life have ever been supported on Mars?" The answer seems to be yes, but that still doesn't mean Mars had (or has) any life. [url] Do we need to look for alien life that's already amongst us? A shadow biosphere on earth could be an explanation for some mysteries like "desert varnish"... or Occam's razor might start cutting in here. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story
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Last week, when the USTR's infamous Special 301 Report (pdf) came out, one of the things that I was most interested in was how the USTR would treat Germany. After all, back at the beginning of March, Germany's lower house, the Bundestag, passed a somewhat watered-down, but still troubling, bill concerning the quoting of "snippets," saying they would need to be licensed. The watered down part noted that "single words or the smallest excerpts" would not require a license, but no one has defined what "smallest excerpts" means. At the beginning of April, the upper house, the Bundesrat, declined to challenge the bill, effectively making it law in Germany. The text of the bill notes, in part, that: The producer of press materials (press publisher) shall have the exclusive right to make these press materials publicly available, in whole or in part, for commercial purposes, unless it is a matter of single words or smallest text excerpts. While there's still uncertainty over what it means, CCIA alerted the USTR that this almost certainly represented a violation of the Berne Convention's Article 10(1), which states: It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. It is difficult to see how the German law does not violate that, and thus, it would appear that the new law is a form of a trade barrier on US companies due to improper use of intellectual property laws -- which is exactly what the Special 301 report is supposed to call attention to. Of course, historically, the USTR has only used the Special 301 report to call out countries who aren't creating strict enough copyright, patent and trademark laws -- not those which have made them too strict. So here we had a clear example where Germany had created a form of an "IP" law that went too far, beyond our trade agreements, in a clear attempt to try to create a form of a trade barrier against US companies, to block them from doing things like creating a new search engine. So how would the USTR react? Well, apparently by ignoring the issue entirely. The only mention of Germany in the entire report is the following: U.S. industry has expressed concerns regarding the policies of several developed trading partners, including Finland, Germany, Greece, Hungary, Italy, Korea, New Zealand, Poland, Portugal, Romania, Spain, Turkey, and Taiwan, on issues related to innovation in the pharmaceutical sector and other aspects of health care goods and services. No further explanation or discussion is given. Basically, it looks like the USTR really just doesn't much care when other countries create even stricter IP laws -- or when those IP laws might impact the internet industry.Permalink | Comments | Email This Story
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While Judge Otis Wright may have been careful to set the financial punishment for Prenda at just less than how much it will cost to appeal, it appears that will not stop John Steele from appealing. Apparently, Steele doesn't seem to recognize that speaking to the press given his current situation may not be that wise, because he told porn news publication Xbiz the following about his reaction to the ruling: Steele on Tuesday told XBIZ that he plans on appealing Wright's order with the 9th U.S. Circuit Court of Appeals. "Obviously we don't agree on the ruling," Steele said. "Judge Wright based his order on an eight-minute hearing where there was no testimony, no evidence introduced. Clearly Judge Wright does not like this type of litigation and he's no fan of intellectual property law." Actually, Judge Wright did not base his order on just that eight-minute hearing (I believe it was actually 12 minutes, but who's counting?). He based it on all of the piles upon piles of evidence presented before that, combined with Steele and his partners' decision to refuse to testify. For Steele to now complain that "there was no testimony, no evidence introduced" is pretty laughable, since the reason there was no such information brought forth at that particular hearing was mainly due to Steele and his partners' own decision. However, there was plenty of testimony and evidence introduced previously, and Wright's order was based on that. The whole point of that last hearing was to give Steele, Hansmeier and Duffy a chance to respond to and refute that evidence. They did not do so. To now complain about it is pretty funny. Separately, the argument that Judge Wright "is no fan of intellectual property law" is equally silly. Wright seems pretty clearly to be annoyed, not at intellectual property law itself, but by the clear abuse of those laws.Permalink | Comments | Email This Story
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