posted 12 days ago on techdirt
Each week, we post an "awesome stuff" post that looks at a few interesting (and sometimes not so interesting) crowdfunding projects. This week, however, we're doing our own. On Monday, we launched a crowdfunding campaign to support our coverage of net neutrality. The idea is to let us put more resources towards really digging into every aspect of this battle. We're a very small team trying to cover a variety of subjects, and we work quite hard at it, but if we can dedicate greater efforts towards this important debate, we're hoping to really dig deep and look at what's really happening -- beyond just the basic headlines of what's out there. TL;DR: Support our net neutrality coverage and double your impact right now! » We were able to do that with the SOPA/PIPA fight, but as I mentioned in our last post, doing so meant that we lost big on the advertising side. While that didn't stop us, we'd rather not have to worry about that, but rather just focus on just getting you the best reporting we can. While we've written hundreds of stories on net neutrality, here are a few memorable ones to highlight the kinds of things we want to be able to keep bringing you: How telco astroturfers tried to bring down review of a book about net neutrality What inefficient airline boarding processes have to do with net neutrality Asking if Comcast CEO Brian Roberts would pay Netflix's bandwidth bill, after he claimed it was "free." Verizon lobbyists pretending that "blind, deaf and disabled people" are supportive of an internet fast and slow lane Looking at whether or not broadband providers are violating FTC rules by lying about what they're delivering to customers Discussing how Verizon loves to be classified under Title II in order to get subsidies and tax breaks, but pretends it would be deathly if it were expanded As you can see, we really try to dig deeper, past the straight up headlines to see what else is going on. We can do a lot more of that, but we need to reach our funding goal. We're off to an amazing start so far, with it getting well over a third of the way funded in less than a week. But there's still a long way to go, and it needs your help. Please, if you can, look at supporting this project, and sharing it with your friends. Once again, if you donate now, there are matching funds that we get from a group of donors, meaning that every dollar you give creates twice as much impact. Please consider supporting this effort. We won't let you down. Support our net neutrality coverage and double your impact right now! » Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
In the age of innocence that was brought to an end by Edward Snowden's revelations, we broadly knew of three kinds of surveillance: the classic kind, by countries against other countries; the industrial kind, by companies against companies; and - the most recent addition - the Google/Facebook kind, carried out by companies against their customers. Snowden made us aware that countries also carried out large-scale surveillance against huge numbers of their own citizens, the vast majority of whom had done nothing to warrant that invasion of their privacy. But there's a fifth kind of surveillance that has largely escaped notice, even though it represents a serious danger for democracy and freedom: spying carried out by companies against non-profit organizations whose work threatens their profits in some way. A new report called "Spooky Business" (pdf), from the Essential Information organization (founded by Ralph Nader in 1982), throws some much-needed light on this murky world: The corporate capacity for espionage has skyrocketed in recent years. Most major companies now have a chief corporate security officer tasked with assessing and mitigating "threats" of all sorts -- including from nonprofit organizations. And there is now a surfeit of private investigations firms willing and able to conduct sophisticated spying operations against nonprofits. As the study reveals, this kind of activity is now commonplace: Many of the world’s largest corporations and their trade associations -- including the U.S. Chamber of Commerce, Walmart, Monsanto, Bank of America, Dow Chemical, Kraft, Coca-Cola, Chevron, Burger King, McDonald's, Shell, BP, BAE, Sasol, Brown & Williamson and E.ON -- have been linked to espionage or planned espionage against nonprofit organizations, activists and whistleblowers. The victims of this spying, and the methods employed, are varied: Many different types of nonprofits have been targeted with espionage, including environmental, anti-war, public interest, consumer, food safety, pesticide reform, nursing home reform, gun control, social justice, animal rights and arms control groups. Corporations have been linked to a wide variety of espionage tactics. The most prevalent tactic appears to be infiltration by posing a volunteer or journalist, to obtain information from a nonprofit. But corporations have been linked to many other human, physical and electronic espionage tactics against nonprofits. Many of these tactics are either highly unethical or illegal. Most of the report is devoted to describing some of the high-profile surveillance operations that have come to light so far. These are truly fascinating -- all-the-more so for being real-life spy stories, not works of fiction. Here's a sample, involving someone whose name and work have appeared many times on Techdirt: James Love is the Director of Knowledge Ecology International, an organization that works to improve access to essential drugs, to reduce pharmaceutical drug prices worldwide, and to protect consumers in copyright. Love is an award-winning advocate; in 2006, KEI won a MacArthur Award for Creative and Effective Institutions, and in 2013, Love won a Pioneer Award from the Electronic Frontier Foundation. Shortly after the passage of the Affordable Care Act, Love says he received a visit in his offices from a man who said he was recently let go from his job at Pharmaceutical Research and Manufacturers of America (PhRMA). "He said his job involved monitoring what I was doing, every day." Love said. "He told me that PhRMA had hired a private investigator to investigate us, from the West Coast." Separately, from 2007 to 2008, Love says that PhRMA and some companies in the copyright sector funded efforts to investigate the sources of funding for NGOs working on intellectual property issues, and to press those foundations to end their support of consumer advocacy. Around 2008 or 2009, General Electric, Microsoft, Pfizer and other firms funded an effort by the National Foreign Trade Council (NFTC) to provide intelligence on NGOs working on intellectual property issues. Love says, "They approached someone we knew, with a proposal to provide information on Knowledge Ecology International and other NGOs working on intellectual property issues, as part of a program to counter NGO advocacy efforts on behalf of consumers." Eventually, Love says, the NFTC contracted with the Romulus Global Issues Management, an "international policy consultancy" that advises "several members of the Fortune 100." The managing partner of Romulus is John Stubbs, whose wife is Victoria A. Espinel, a former Romulus employee. Espinel was U.S. Intellectual Property Enforcement Coordinator (IP czar) for the Obama administration, and is currently the CEO and President of the Business Software Alliance (BSA). One key fact to emerge from this litany of dubious activity, is how closely it is related to the other kinds of surveillance, and the groups that carry them out: One of the troubling aspects of recent corporate espionage against nonprofits is the use of current and former police, current government contractors, and former CIA, NSA, FBI, military, Secret Service and other law enforcement officers. Even active-duty CIA operatives are allowed to sell their expertise to the highest bidder, "a policy that gives financial firms and hedge funds access to the nation's top-level intelligence talent," writes Eamon Javers. Little is known about the CIA's moonlighting policy, or which corporations have hired current CIA operatives. According to Javers, "There is much about the policy that is unclear, including how many officers have availed themselves of it, how long it has been in place and what types of outside employment have been allowed." Regarding the CIA process for approving moonlighting, U.S. Rep. Anna Eshoo said "My sense is that it is a rubber stamp deal....No one’s really looking at it or keeping a close eye on it." This intermingling of the various kinds of spying gives rise to a phenomenon that Techdirt readers know well: In effect, the revolving door for intelligence, military and law enforcement officials is yet another aspect of the corporate capture of the federal agencies, and another government subsidy for corporations. Taxpayer funds are expended to train the officials who work for the CIA, NSA, Secret Service, military and other intelligence and law enforcement agencies. When these employees leave for employment in the private sector, corporations reap the benefits of this taxpayer-funded education, training and experience. It’s a great deal for the companies that hire these former agents, but not for taxpayers. That fact is just one reason why we should be concerned about the rapid rise of this fifth form of surveillance. It's leading to a further blurring between government and commercial interests that places non-profit organizations and the people who work in them in an even more vulnerable position. "Spooky Business" should be required reading for anyone working in this field. As well as detailing the highly-dubious -- and probably illegal -- activities of corporations here, it also suggests basic ways to reduce the impact of that surveillance. At a time when it's clear that multiple kinds of spying are on the increase, we all need as much help as we can get. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
It never stops: somehow the concept of trademark disputes and alcohol are intrinsically intertwined or something. I've always been surprised at how many trademark disputes involving beer or liquor I seem to come across, from small breweries battling egotistical families, to small breweries battling big breweries, and to small breweries battling Texas A&M (seriously...). But this one is a new one, even for me. See apparently Duke University and the heirs of John Wayne, a.k.a. The Duke, have had something of a long Hatfields vs. Mccoys type of feud. Both entities have separate trademarks on "Duke" that mostly results in each going after the other every time either tries to expand into a different market while using the moniker. This latest go 'round is over bourbon, which I love, and Duke University is claiming that a John Wayne themed bourbon might be mistaken as a university-branded bourbon. A federal lawsuit filed last week is the latest salvo in a long-running legal duel between the North Carolina university and California-based John Wayne Enterprises over commercial products featuring the name. The late actor used the moniker since childhood, when he adopted the name of the family dog. Lawyers for the university say allowing the Wayne estate to use the name could cause confusion and "diminish, dilute and tarnish" the value of the name, for which both parties hold trademarks. And you can see Duke University's point. After all, their logo... ...is strikingly similar to the proposed logo for Duke Bourbon... I can just sense all of you scratching your heads in concentration as you try to determine whether or not those two brands are related. Here's a crazy thought: maybe the fact that the bourbon label doesn't include the word "university", has a completely different color scheme, shows the damned picture and signature of one of the most famous movie stars in the history of cinema, and even has the state of Kentucky make a cameo, while Duke University is in North Carolina, all means that the likelihood of confusion is essentially null, void, and damn it why do we have to have this stupid conversation? The most likely scenario is one where these two entities are so used to just going legal every time one of them does anything with the word "Duke" that they can't help themselves any longer. They're just feuding to feud at this point, which would be fine except that isn't the purpose of trademark law and it sets a crappy example for everyone else to follow. You'd think an institution like Duke University would be better than that. Permalink | Comments | Email This Story

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The USTR's position on trade agreements is incredibly antiquated. It acts as if it's an extension of "American business" and seems to believe that the only ones fighting against its various trade agreements, like the Trans Pacific Partnership (TPP) agreement and the Transatlantic Trade and Investment Pact (TTIP) are these meddling "public interest" groups, which don't understand the importance of big business. It's why the USTR recently created a special "public interest" committee to pretend that it was listening to criticism while shunting them off to their own little corner to be ignored. But the real problem is that the USTR doesn't pay much attention to actual innovative business: entrepreneurs and startups that are doing much of the important work today that will be important for the future. Instead, they tend to only listen to the last generation of companies: the legacy players and behemoths who are looking to protect themselves against competition and innovation. So it was great to see during this week's TPP negotiations (though held in even more secrecy than usual) the EFF presented negotiators with two important letters about different aspects of the TPP, signed by the organizations that the USTR would like to pretend its helping -- and yet those organizations are not at all happy about it. The first letter, signed by dozens of internet and technology companies, warns about dangerous intermediary liability concerns based on the leaked draft of the TPP's intellectual property section. We were among those that signed this letter. We'd prefer to comment on the actual draft of what's in the document, but the USTR still keeps that as a closely held secret (unless you happen to be an RIAA lobbyist, then you have full access). The provisions regarding intermediary liability are particularly concerning. We are worried about language that would force service providers throughout the region to monitor and police their users' actions on the internet, pass on automated takedown notices, block websites and disconnect Internet users. Irresponsible righsholders can burden intermediaries with many thousands of automated takedown requests every day, using systems that operate with little or no human oversight. These systems rely on a "takedown first and ask questions later" approach to pages and content alleged to breach copyright. Burdening these service providers with these new liabilities could also add new costs that may be passed onto Internet users. These automated systems have also led to many forms of legitimate speech being taken down, even when they are protected under fair use... We oppose any kind of proposal for an enforcement regime that could lead to a "notice and staydown" system, where there is little to no recourse for users to challenge takedowns and restore removed content. The second letter comes from a large group of libraries, public archives, authors and educators, decrying the possibility of copyright term extension being enabled by the TPP. It's hard to argue that librarians and public archivists are "freetards" and "digital anarchists." These are folks who are legitimately concerned about the impact of excessive copyright on knowledge. The public domain provides an immense social and economic benefit to all sectors of society. Through the public domain, in conjunction with today's affordable communications technologies and networks, access to knowledge is available to even the most impoverished members of the community. The public domain also spurs the creation of popular and valuable new derivative works, both commercial and non-commercial. For example, the spate of recent Sherlock Holmes spin-offs was made possible by the passage of that property into the public domain, as recently affirmed by a US court decision. The most immediate threat to this invaluable resource would be the extension of copyright terms by another 20 years, adding to the TRIPS minimum term generally of life plus 50 years. Despite wide divergence on other issues, almost all contemporary economists are in agreement that copyright term extension makes no sense. One would hope that the USTR is actually willing to listen to these organizations most directly impacted by the rules it's trying to force in through the backdoor known as international trade agreements. Unfortunately, it often seems tuned only to the voices of legacy industries looking for greater protectionism. Still, the more that organizations speak up, the more the USTR may finally be forced to listen. The EFF is still allowing more companies and organizations to sign onto both letters. You can do so on the intermediary liability letter or the copyright term extension letter at each of those links.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
We've talked about how strawberries are actually not berries and about a few cool tidbits about growing them. If you like strawberries, here are just a few more links for your perusal. American strawberry farmers enjoy access to the strawberry breeding program at UC Davis which accounts for more than half of the ancestry of strawberries in our supermarkets. The proprietary strawberry breeds created in this program are generally sold to any grower that wants to use them, but potential changes to the university's program could make desirable strawberries harder to obtain. [url] The Marshall strawberry almost went extinct -- even though it had been called "the tastiest strawberry in America" -- in 2007. A single clone at the USDA's Germplasm Repository was re-grown among some strawberry enthusiasts (circa 2009), and a Kickstarter campaign is helping to create an organic strawberry farm dedicated to this variety. [url] The use of methyl bromide as a fumigant has been around for decades in strawberry fields, but it's an ozone-depleting chemical (and a possible carcinogen). Alternatives are being tested as methyl bromide is (slowly) phased out, and some disinfestation techniques appear to be promising replacements. (It should be noted that even some organic strawberry farmers get plants from nurseries that use methyl bromide, and new techniques to control disease organisms can use more water.) [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
For many years, we've been pointing out that the big pharmaceutical industry has become so focused, and so reliant, on patents that they've lost sight of the plot. They don't even consider other potential business models or, you know, keeping people healthy. These days, everything is about getting and extending patents, allowing them to charge exorbitant markup rates on drugs around the globe. It's now reached the point that even The Onion is deftly mocking big pharma's patent focus, with a story titled: "New Pfizer Breakthrough Miraculously Extends Lifespan Of Near-Death Patents." Here's a snippet: “At Pfizer, patents always come first. Our primary goal is, and always will be, keeping them alive and healthy for as long as possible. And that’s why we couldn’t be happier to announce this wonderful development.” Hilty added that nothing causes Pfizer officials more distress than seeing a once robust patent expire at a young age, a “terrible tragedy” that allows dozens of generic manufacturers to copy it and offer pharmaceuticals to customers far more cheaply. It's both funny and depressing at the same time, because it's pretty damn accurate. It's disappointing just how far the pharmaceutical industry has gone over the years. Back in 1929, one of the leaders in the pharmaceutical industry, George Merck, declared: We try never to forget that medicine is for the people. It is not for the profits. The profits follow, and if we have remembered that, they have never failed to appear. The better we have remembered it, the larger they have been. That's a noble position to take. That's not how the pharmaceutical industry acts today. At all.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
During this open comment period for the FCC's proposed rulemaking on net neutrality, it's been great to see hundreds of thousands of comments go in to the FCC on the matter. It's also been fantastic to see that a number of innovative startups have decided to speak out on how important an open and free internet is for being able to build their businesses, to innovate and to compete on the modern internet. They also point out that the current plan from Commissioner Tom Wheeler would put that all at risk. Here are three interesting ones worth mentioning. First up, is Kickstarter. CEO/co-founder Yancey Strickler wrote a great opinion piece for the Washington Post along with a blog post highlighting the company's actual FCC filing, which is similar to the WaPo piece. Here's just a bit of it, but gives you a sense of why this is so important: Kickstarter, like Wikipedia, Twitter and every other service on the Web, was built on the foundation of an open Internet. We would not exist without it. The more than 60,000 creative ideas that have been brought to life using Kickstarter �” from new technologies to new restaurants to new symphonies �” also depend on a free and open Internet. Once a fast lane exists, it will become the de facto standard on the Web. Sites unwilling or unable to pay up will be buffered to death: unloadable, unwatchable and left out in the cold. It won’t be enough anymore to have a great idea and to execute it well. New entrepreneurs will have to pay their ISP tax, too. Though Kickstarter is the largest and best-known “crowdfunding” platform, there are now dozens of similar sites out there. Competition is good. It inspires a better experience for customers. We’re happy to compete on the basis of our product. Under a paid-prioritization system, however, this kind of competition would end. Sites like ours would succeed or fail not on the basis of their passion or service but on whether they have the resources and desire to pay the big Internet carriers. This proposed system would incentivize entrepreneurs to divert resources from their customers and staff and into paid deals with ISPs. Trading healthy competition for deep pockets is a terrible way to create an innovative, competitive economy. That third paragraph is a key point that policy makers often don't get about the startup world. People in the startup world thrive on competition -- and they're happy with an open playing field because they believe in their own ability to out-innovate others. It's that sort of entrepreneurial spirit that makes such wonderful innovations online. The whole idea of putting up roadblocks for competitors is the type of thing that tends to happen later in a company's life, when they're less about innovating and expanding markets, and more about protecting their turf. The end of net neutrality would make it easier for turf protecting, but make it much harder for the kind of open competition and innovation that drives so many entrepreneurs. The next company is Etsy, the famed online marketplace, which has a blog post from Althea Erickson (the company's director of public policy) and a link to the company's comment with the FCC from CEO Chad Dickerson. Both are worth reading. Etsy’s continued growth depends on equal access to consumers. Any rule that allows broadband providers to negotiate special deals with some companies would undermine our and our sellers’ ability to compete. Etsy hosts over 25 million products; yet we are a low-margin business. We made a values-based decision to charge only $0.20 to list an item and 3.5% of every sale, much lower than other e-commerce platforms. We spend considerable resources ensuring that large, high-resolution photos load quickly and efficiently. We have also considered offering our sellers the ability to create and share videos, which they could use to introduce themselves and the unique process behind their products. But our low margins would not allow us to pay for priority access to ensure our site loaded as quickly as rival sites if the FCC’s proposed rules went into effect. If a consumer were to click on an Etsy shop and perceive delays in images loading or videos buffering, they would likely click away to another site, and our seller would lose that sale. We can’t predict the future of e-commerce or product innovations, but we want to ensure that Etsy sellers can reach buyers with the same technologies as any other online retailer. Ultimately, the micro-businesses who sell on Etsy would suffer most if the FCC moves forward with this proposal. Most US Etsy sellers (88%) are women running micro-businesses out of their homes. Taken individually, they may be small, but together they sold over $1.35 billion worth of goods last year. The Internet has democratized access to entrepreneurship for a whole new cohort of Americans, and Chairman Wheeler’s proposal threatens to undermine this progress by creating a pay-to-play environment that gives even greater advantage to entrenched interests. As with Kickstarter, Etsy is highlighting how the real impact will be on the users of these services, people who have been able to build tons of unique and wonderful businesses that mostly wouldn't have been possible before. They are now -- but they could be at risk if the FCC mucks this up. The final company is payments company Dwolla, which posted its comment to the FCC from the company's founder and CEO Ben Milne. Here's an excerpt: Dwolla supports an open Internet and we rely on it for the success of our business. Without an open Internet, companies, such as ours, would not be able to achieve the level of innovation made possible today. Technical discrimination and pay-to-play deals may directly harm Dwolla. We are working hard to develop our networks and scale our breakthroughs to the masses. Dwolla does not believe we can sustain our low-cost value proposition should a pay-for-priority come to fruition. We believe that there are legitimate concerns around the payments incumbents’ ability to outbid newer companies, such as ourselves, with existing cash on hand. Should we be negatively affected, Dwolla could be forced to increase transaction rates to our users, which conflicts directly with our low-cost business model. Additionally, Dwolla’s real-time payments service is dependent on the speed and reliability of payments. This impacts both us and our users. First, conducting business outside of the fast-lane would mean slower transactions and an impairment of one of our major competitive advantages; second, our users would not be able to transact amongst themselves with the same ease and assurances. Government policy should encourage competition and innovation in payments processing, which would result in greater efficiency, speed and low-costs for businesses and consumers across the economy. The FCC should impose a rule against unreasonable discrimination, relying on Title II of the Communications Act. Technical discrimination and pay-for-play arrangements considered by the FCC will only stymie the types of innovation and creative solutions needed to address our country’s financial needs, which we believe the CFPB should encourage for the benefit of all consumers. While so many like to pit the net neutrality fight as just a battle between internet giants like Netflix against broadband giants like Comcast, it's stories like the three above that show it's about much, much more than that. These three platforms have had tremendous success over the past few years, but in all three cases, the success is driven by the fact that they've enabled people and many thousands of small businesses and entrepreneurs to do things that simply weren't possible before. It's a powerful message that's often lost in this debate. As a reminder there are just a few days left if you want to add your own comments for the FCC to consider. And, as a further reminder, our crowdfunding campaign for our net neutrality reporting is still ongoing. If you support it, it will allow us to dig deeper and explore how the potential rules might impact companies like those above and many others as well. And, if you pledge now, you'll have double the impact thanks to the matching funds that have been agreed to by some key donors.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Things had been a bit quiet on the Garcia v. Google front for the past few months. As you may recall, this was the ridiculous legal fight, in which an actress, who was in the infamous "Innocence of Muslims" film, sued Google for not taking down the video after she made a copyright claim on it. The district court rightly laughed that argument out of court, noting that as an actress in the film, she had no copyright interest in the film. However, in a move that left nearly everyone in the copyright world scratching their head, on appeal, famed judge Alex Kozinski basically made up an entirely new section of copyright law to say that she did, in fact, have a copyright interest in her role in the film, and that because of that, Google was ordered to remove every copy of the entire film from its sites and that Google couldn't talk about it for a period of time. Once all this came out there was an immediate uproar and a variety of challenges. Kozinski shot down an emergency motion to stay the ruling, but did amend the original order to admit that copies of the video without the scene including Cindy Lee Garcia could remain up on the site. Still, another judge on the court actually asked the entire court to reconsider, and Google asked the entire court to reconsider the entire case, leading a whole bunch of folks to weigh in -- all on the side of Google. Even we weighed in in a filing written by lawyer Cathy Gellis, highlighting how Congress clearly intended to protect intermediaries from liabilities in situations like this. Things had been entirely silent on the case for a really long time, but this morning, the court issued "an amended opinion," which appears to be Kozinski both doubling down on his original, ridiculous ruling while at the very same time offering a bunch of outs for the lower court to fix what Kozinski himself totally screwed up. It's the most bizarre type of tap dancing you'll see in a judicial ruling in a long time. Basically, for all of the arguments that show why Kozinski is wrong, he just puts his arms up and says "hey, no one raised that issue, so we ignored it." Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office’s refusal to register doesn’t “preclude[] a determination” that Garcia’s performance “is indeed copyrightable.” .... But the district court may still defer to the Copyright Office’s reasoning, to the extent it is persuasive.... After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine..., and section 230 of the Communications Decency Act.... Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them That latter issue, of how Section 230 is relevant here, is the one that we raised in our brief, so it's nice that he "acknowledges" that it exists here, but this is still a pretty weak response. Later, he does this again with the First Amendment argument. In the original, he totally dismissed any First Amendment questions with a breezy (and misleading) "the First Amendment doesn't protect copyright infringement." Here he tries to "clarify" that by admitting that "oh yeah, there's fair use," but it doesn't matter since Google didn't raise fair use: “First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” ... Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings. Of course all of this ignores the basic fact that none of those arguments made sense at all because it was absolutely ridiculous to argue that an actress had a copyright interest in a film in the first place. It's long been established that that's simply not true. Furthermore, as the new dissent snarkily points out in a footnote, Kozinski's desire to avoid addressing these rather obvious flaws in his own argument are pretty damning: The majority’s amended opinion also attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments it failed to address, because they were not raised by the parties. Maj. op. at 11, 19. Yet, the majority could consider these arguments sua sponte “under exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties.” ... The majority’s failure to even engage this inquiry, instead quickly dismissing arguments against its view, confirms its error This amended ruling is a bizarre look into the mind of Judge Kozinski. He seems to recognize that he messed up royally in the original decision... but he's too proud to let it go. So, instead, he's basically doubling down on his original, questionable reasoning, while adding in all these ways that the impact of his own terrible decision might effectively be minimized, if only people raised a variety of defenses that shouldn't have mattered in the first place, if Kozinski hadn't read the law so incredibly wrong. Even if it does go back to the district court, and the court rules correctly under Kozinski's "new" rules, the original precedent would still stand. Of course, this process isn't even close to over. The ruling notes that the court is still considering an en banc rehearing with a larger panel of judges from the 9th Circuit, who would hopefully overrule Kozinski entirely, and drop this horrible precedent. But, for now, we have to wait, and live with Kozinski's unwillingness to admit to his mistakes.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Last year, in a move simultaneously symbolic, thuggish and completely futile, GCHQ officials forced The Guardian to destroy computers "containing" Snowden documents. The fact that the documents were also housed elsewhere (including at two American newspapers) mattered little. The point was simple: we can get to you. In the service of "national security," the GCHQ came down on the journalistic entity with something straight out of the Running A Dictatorship For Fun And Profit handbook. Exact words deployed: "You've had your debate. There's no need to write more." NSA officials notably refused to comment on the GCHQ's actions, perhaps hoping critics would view the silence as disapproval or, at the very least, pointedly not condoning the hardware destruction. The White House publicly condemned the destruction, stating that it was "hard to imagine" this sort of thing happening domestically. That was just the PR front, apparently. Documents obtained by the AP show that NSA officials and administration staff were not only notified in advance of the GCHQ's plans, but also offered their support of this action. General Keith Alexander, the then director of the NSA, was briefed that the Guardian was prepared to make a largely symbolic act of destroying documents from Edward Snowden last July, new documents reveal. The revelation that Alexander and Obama's director of national intelligence, James Clapper, were advised on the Guardian's destruction of several hard disks and laptops contrasts markedly with public White House statements that distanced the US from the decision. GCHQ's attempted prior restraint found support from the upper levels of the NSA. Presumably, officials knew how empty the effort was (what with documents having been spread to the New York Times, ProPublica and others), but that still didn't stop at least one official from greeting the GCHQ's plans with enthusiasm. An email to Alexander from Rick Ledgett, now deputy director of the NSA, has the subject line "Guardian data being destroyed", and is dated 19 July, a day before the destruction of the files. Most is heavily redacted, but Ledgett remarks: "Good news, at least on this front." Ledgett has a bizarre definition of "good news." All this move did was confirm that the GCHQ cared more about pretending it could somehow regain control of the situation than it did about freedom of the press. These obtained documents show the NSA's top men think the same way. Given these two countries' close surveillance relationship, this news comes as a bit of a surprise (considering earlier administration statements) but certainly not as a shock. When one "free world" country applauds another's low-rent thug tactics (even in secrecy), the message is clear: the public needs to be taught not to question things above its pay grade. Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
We recently wrote about Microsoft going to court and convincing a judge to (with no adversarial hearing) allow it to seize a bunch of domain names from No-IP, redirecting all traffic to them through Microsoft's own servers. Those servers quickly encountered problems, meaning that many people who relied on No-IP's dynamic DNS system, found that they couldn't access their sites. Microsoft later blamed this on a "technical error" but it still appeared that the seizure effort was a gross abuse of the legal process. Remember, in the lawsuit that allowed Microsoft to seize the domains, it had claimed that No-IP parent Vitalwerks had been breaking the law. Either way, it appears that Microsoft has now returned all the domains to No-IP and settled the lawsuit. According to a joint statement by the companies: Microsoft has reviewed the evidence provided by Vitalwerks and enters into the settlement confident that Vitalwerks was not knowingly involved with the subdomains used to support malware. Those spreading the malware abused Vitalwerks’ services. Microsoft identified malware that had escaped Vitalwerks’ detection. Upon notification and review of the evidence, Vitalwerks took immediate corrective action allowing Microsoft to identify victims of this malware. The parties have agreed to permanently disable Vitalwerks subdomains used to control the malware. In the process of redirecting traffic to its servers for malware detection, Microsoft acknowledges that a number of Vitalwerks customers were impacted by service outages as a result of a technical error. Microsoft regrets any inconvenience these customers may have experienced. No-IP for its part has also put out a more detailed explanation for how all of this happened. It's worth reading. It also takes apart a number of Microsoft's claims, including the company's claim that, prior to returning the domains, it had "fixed" the problems people were having accessing their sites. No-IP reiterates that if Microsoft had just contacted the company first, it would have taken down the abusive customers. Clearly, even though the situation was settled, No-IP is reasonably upset that it happened in the first place: While we are extremely pleased with the settlement terms, we are outraged by Microsoft’s tactics and that we were not able to completely and immediately restore services to the majority of our valuable customers that had been affected. At No-IP, we are firm believers that the Internet should be free and open. We will continue to fight for the rights of our users and our business. Moving forward, we have provisioned a solution that will reduce the risk of domain seizures. Later it notes: We hope that Microsoft learned a lesson from this debacle and that in the future they will not seize other companies domains and will use appropriate channels to report abuse. Wouldn't that be nice.Permalink | Comments | Email This Story

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As you may recall, a few months back, a big story broke involving the CIA spying on Senate Intelligence Committee staffers who were investigating the CIA's torture program. The details revealed that in the course of their investigation, the CIA had given the staffers an internal document they didn't think they'd given them, which revealed that an internal CIA analysis more or less agreed with the Senate analysis (which has been described as "scathing"). This was a very different position than what the CIA had said publicly. After some in the Senate had asked for the "full report" rather than the draft that the staffers had been given, the CIA believed (incorrectly it appears) that the staffers had gotten access to unauthorized classified materials, and searched the special private network that had been set up just for those staffers. This happened after previous problems with the CIA doing questionable things concerning the Senate staffers network. In the end, both sides asked the DOJ to investigate the other side. The DOJ has now said that it won't pursue either claim: "The department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation," said Justice Department spokesman Peter Carr. Perhaps this isn't too surprising. The fact that the CIA itself handed the document to the staffers made that claim a pretty clear dead end. However, the CIA searching through the staffers' computer network always seemed a lot more questionable, but perhaps not criminal. It seems likely that the DOJ realized that to pursue either side in this would create a huge political mess, and it was just easier to let the case go, and let the two sides continue to glare angrily at each other.Permalink | Comments | Email This Story

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Another clear case of fair use is greeted by a major studio with, "Hey, that's our stuff!" A new campaign from Greenpeace targeting Lego's partnership with Shell has been nuked from orbit by Warner Bros. Entertainment. The short video depicted a stylized, Lego-built Arctic (complete with Eskimos, arctic wolves and Halo's Master Chief) being slowly swallowed by oil to a downtempo cover of The Lego Movie's impossibly catchy theme song "Everything is Awesome." You used to be able to watch it on YouTube, where it had racked up nearly three million views before this happened. Apparently, Warner Bros. Entertainment took issue with the use of the theme song and the inclusion of the two Lego Movie characters (seen briefly near the end of the 90-second video) and issued a takedown. Whether or not you agree with Greenpeace's complaint, there's no denying the fact that its use of the theme song and very brief use of these characters is clearly parodic fair use. Greenpeace has now moved the video to Vimeo, where it will possibly receive a stronger fair use defense from the hosting company, although still in the form of "oblige takedown request first, investigate later." It may work a little harder to defend this one up front, considering all the viewers that were heading to YouTube to catch Greenpeace's new viral video are now landing on its doorstep. Warner Bros.' action here isn't exactly censorship (as it probably was agnostic about the video's message) but it's not exactly forgivable either. Seeing as this video probably didn't trigger an automated takedown by YouTube's content-matching system, it was most likely the result of an active search for infringement, which means whoever's policing content for WB ignored everything but the song and the brief appearance of its Lego Movie characters. Once again, digital shouts of "MINE!" trump fair use.Permalink | Comments | Email This Story

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It's no secret that Google has a much larger market share than Microsoft's Bing search engine -- especially in Europe where Google has been much more successful than its competitors. However, Bing and other search engines are still subject to the terrible EU Court of Justice ruling on the right to be forgotten, which has resulted in Google removing a bunch of links. As we noted, Google was flooded with requests, and had to set up a process and staff to handle them all -- something it hasn't done a very good job with so far. So, what's Microsoft doing? Well, it's taking it's time, but is promising to get a request form similar to Google's up. It doesn't sound like it's going to have to hire a very big staff to do so, because it appears that Microsoft's biggest concern in Europe may be more that it's been forgotten by Europeans. Almost no one is asking Bing to forget them: When Google released its web form on May 30, for instance, it received about 12,000 requests within the first 24 hours. Microsoft is thought to have received fewer than 20 requests that day. Ouch. That's almost insulting. Hell, even we received a request under that ruling (though a bogus one).Permalink | Comments | Email This Story

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As was expected since last week, the FTC has officially announced that it has filed a lawsuit against Amazon for the way it handled in-app purchases, specifically arguing that the company made it way too easy for children to rack up huge bills without realizing it. This comes about seven months after the FTC went after Apple over the same issue, but Apple agreed to settle with the FTC, while still pointing out angrily that it had changed its in-app purchasing process years earlier. Unlike Apple, Amazon has decided that it will fight, rather than settle. This might not be that crazy. While there may be something to the fact that these companies should be more careful about keeping kids from buying lots of digital crap on their parents' bills, when you take a step back, it does look like the FTC is deciding it can regulate the user interface decisions of internet companies, and that has some potentially troubling implications -- especially with Amazon where its "one click" purchasing has become a part of its brand. That's not to say the company shouldn't reconsider how the shopping works on its mobile apps, but it's not clear that the FTC really should be stepping in here. Of course, in the meantime, Apple has decided that while it's not happy about the FTC forcing it to settle, if it's going to go through that treatment, Google ought to as well. A Politico FOIA request turned up an email from Apple's general counsel, Bruce Sewell, to two FTC commissioners, basically saying "hey, Google is doing the same thing we're doing..." by pointing to a Consumer Reports article that highlighted that Google's in-app purchases allow your "kid to spend like a drunken sailor" for a period of 30 minutes (longer than the 15 minutes that got Apple in trouble). It was a rather obvious effort to create FTC problems for competitors, though it's understandable that a company on the firing line is tempted to point out others doing the same thing. This does seem like an area where the companies should be improving, based on consumer complaints alone (and there are many...), but it does raise questions about whether or not the FTC's mandate really should go so far as to basic UI choices for certain companies.Permalink | Comments | Email This Story

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Politicians are supposed to represent the will of the public. It rarely works that way in practice, but the strongest demonstration of that may be what's happening in the UK with this new data retention bill. We wrote about it earlier, but MP Tom Watson has more details on how this is an "erosion of political trust," in which leaders of multiple parties in Parliament worked together to do a deal that clearly goes against the will of the public, and then sought to shove it through with no debate at all. As Watson notes, there's no reason to nitpick about what's in the draft bill, because it's basically guaranteed to become law at this point: The bill was published in draft form a few hours ago. It's pointless attempting to scrutinise it because, thanks to the secret deal, we know it will be law by the end of next week. However, he notes that the bill clearly expands surveillance of the public, in direct contrast to what the EU Court of Justice ruling, which "prompted" this new law, said: The judgment said the previous legislation was not "necessary and proportionate". The draft bill does use these words, but it's barely a nod to the court's requirements. The judgment said clearly that the mass retention of the data of every citizen was not proportionate. This legislation ignores this, allowing its retention for 12 months. The bill says that new regulations may be passed to restrict the use of retention notices, but these are not set out. And these new restrictions won't be passed by all parliamentarians but as statutory instruments through small committees of a select few MPs. The really damning point is that this is just a bunch of political elites agreeing to spy on the public... because they can: While the Lib Dems can spin as much as they like that this isn't the draft communications data bill, this is clearly a light version of it which ignores the ruling of a court on fundamental rights and extends surveillance powers overseas. The party spent the day crowing about the concessions granted to civil liberties groups such as Don't Spy on Us, but the concessions aren't even in the bill. We have to trust this government to deliver these concessions. Is this a game we should be willing to play? Yet the details are irrelevant. A secret deal between elites has removed the possibility of parliamentary scrutiny and engagement with civic society. The bill, warts and all, will be law next week. Theresa May has in the past stood strongly for the idea of policing by consent. What a shame she doesn't think the same principles apply to our security services. The party leaders will get their way next week, but the price will be further erosion of the authority of our political institutions. Today parliament feels a little further away from our citizens. Larry Lessig has long pointed out that when governments act this way, the public trusts them less and less, and their actual mandate to govern is made much less powerful. Of course, when they can snoop on all of your communications, what do they care?Permalink | Comments | Email This Story

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We recently had a post by Tim Geigner, questioning whether it was appropriate for a local blog, Blog for Arizona, to out one of its crazier comment trolls as local politician John Huppenthal. There was a good debate in the comments as to the appropriateness of such actions. Bob Lord, of BFA, asked if we would be interested in posting his response. Here it is. Was Blog for Arizona out of line for outing John Huppenthal as an anonymous commenter, as Mr. Geigner suggests in his recent post? In this specific case, absolutely not. Among other things, Huppenthal invited us to publish his comments; he was so careless that his identity could be ascertained from the comments themselves, with no reference to the IP addresses we had, and he was posting from a government agency, which would be required to divulge the sites he visited if asked. Let's put all that aside and approach the more fundamental question: How secure should a John Huppenthal be in his anonymity? He cited the Founding Fathers, several of who wrote anonymously when penning the Federalist Papers. But the issue here is not the right to anonymous speech. Nobody disputes that right. The issue is whether there is a right to anonymous speech with zero risk of being exposed, even if the speaker is a public figure. In our judicial system, very few rights are absolute. Why? Because there are competing interests. For example, public figures do not receive the same level of protection from defamatory statements as ordinary citizens do. If I publish an unfavorable statement against Joe Sixpack, Joe only need show the statement was false in a suit for defamation. But if I make the same statement about an elected official, he has to show not only that the statement was false, but that I made it with reckless disregard for the truth. Why the difference? Because of the competing interest. As a society we don't want people with information about public figures to be overly fearful of coming forward. If we were to attempt absolute protection of the anonymity of public figures in their online comments, we necessarily would have to encroach upon the freedom of the press and the associated protection of confidentiality of sources. Suppose Blog for Arizona did not expose Huppenthal directly, but instead had one of our writers speak off the record to a reporter, who then called Huppenthal out based on a confidential source and asked Huppenthal to request that Blog for Arizona publicize all its information. Huppenthal would have no practical choice but to comply, or just fess up. So, unless we're willing to encroach upon the freedom of the press, the protection of anonymous commenters could not be complete to the degree Mr. Geigner desires. Now, consider the issue from the perspective of the blogger. I have knowledge that an elected official who is up for re-election, John Huppenthal, is a racist who believes the Holocaust was more the work of Darwin than of Hitler. Should I have no ability to let the public know what Huppenthal is all about? Perhaps, but only if Blog for Arizona and I had guaranteed Mr. Huppenthal that his anonymity would be protected. Otherwise, imposing some sort of legal gag order on bloggers does not seem the way to go. The bottom line: We don't need to make it any easier for creeps like John Huppenthal to go undetected. A risk of detection is inherent in anonymous speech. Whatever chilling effect arises from the outing of a Huppenthal, a chilling effect that I submit is minor or non-existent, is outweighed by the value to the public of the outing.Permalink | Comments | Email This Story

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Public transportation is a tough problem -- collecting taxes to build out expensive infrastructure is always going to be a touchy political battle. Inevitably, there will be some people who won't see the benefits and others who will, disproportionately. Creating some hybrid of public and private transportation seems like the future (as well as the lesser-known past). Here are just a few links on getting around without your own personal vehicle. New York City has an unofficial system of private buses/vans/shuttles that fill the gaps in the Big Apple's bus and subway system. The New York City Taxi and Limousine Commission supposedly regulates this type of commerce, but the number of illegal shuttles operating in the city far outnumbers the officially-issued licenses. [url] Florida East Coast Industries (FECI) is developing a private railroad for passengers. The All Aboard Florida project is starting construction now, proudly stating that it is doing so with zero dollars of taxpayer funding. [url] Elon Musk wasn't a fan of the high speed rail project in California, so he proposed his own Hyperloop concept. If you haven't heard about this whitepaper, you must have been in a coma.... [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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While Uber gets much of the attention in the ridesharing space, many people I know in San Francisco swear by Lyft instead. Lyft has the reputation of being the more laid back, friendlier version of Uber. Rather than Uber's infamous "surge pricing," Lyft has happy hour discounts. Rather than the sleek corporate feel of Uber, Lyft is famous for drivers putting giant pink mustaches on their cars, encouraging passengers to sit up front... and to give drivers a good old fashioned fist bump. While Uber has been available in New York City for sometime, Lyft took its time, finally announcing plans to opening up in NYC on Friday (well, Brooklyn and Queens, initially, staying away from taxi central Manhattan). Not surprisingly, the NYC Taxi and Limousine Commission was not pleased with this. While Lyft says it's tried to work with the TLC, the TLC disagrees, noting that Lyft agreed to a single meeting that just happened this week. So, of course, it's not surprising that within a day, the TLC officially declared Lyft an "unauthorized service," in NYC, meaning that it may start cracking down -- something NYC did last year to the other top competitor in the space, Sidecar. Lyft says it's still planning to launch, insisting that it doesn't believe the rules the TLC are citing apply to it. Basically "come at us, TLC!" The TLC insists that it wants Lyft to be able to operate in New York City, even saying that it's willing to change some of its rules, but bureaucracies -- especially those with close ties to highly regulated industries that have a history of keeping out competition -- don't tend to move very fast. As we've noted before, cities that quickly ban these kinds of services are basically advertising themselves as places not friendly to innovation and/or run by corrupt officials. For all the arguments about how these services don't meet the "stringent" requirements for existing taxi regulations, almost everyone I know prefers using services like Lyft and Uber over traditional cab services. They're much more convenient and personally I've found the service to be significantly better overall. Part of the problem is that the regulations were built for a different time, when there was significant information asymmetry between a rider and a driver, allowing drivers to take advantage of riders. But, these kinds of services actually flip that equation: they provide much greater information to the rider, and even give them a big say in passing on similar information to others, in the form of ratings. Thus, there are natural incentives to provide a better overall service, making many of the purposes of existing regulations stale and obsolete. But, of course, as often happens in highly regulated industries, those who already made it through the hurdles like those regulations because they limit competition, and allow prices to be higher due to scarcity. It also gives them less incentive to provide better services. Thus, you get into a world of regulatory capture, where things are worse off for everyone. While, yes, the "intentions" of these regulations may be good, the reality is that the information exchange enabled by technology makes many of those regulations obsolete. A slow moving bureaucracy (especially one dealing with regulatory capture) isn't going to move very fast, but that's harmful for overall innovation in the space and setting up the best conditions for citizens of NYC, who probably prefer a better overall experience in getting around.Permalink | Comments | Email This Story

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Ross "Dread Pirate Roberts" Ulbricht's attorneys had recently seized on some debate within the US government over whether or not Bitcoin was actually money to try to sneak through a loophole to get out of the money laundering charges against him. As you may recall, the IRS recently declared that virtual currency was more akin to equity/property than money. And Ulbricht's lawyers hoped that distinction might help. It did not. The judge clearly wasn't buying it: [T]he defendant alleges that he cannot have engaged in money laundering because all transactions occurred through the use of Bitcoin and thus there was therefore no legally cognizable "financial transaction." The Court disagrees. Bitcoins carry value - that is their purpose and function - and act as a medium of exchange. Bitcoins may be exchanged for legal tender, be it U.S. dollars, Euros, or some other currency. Accordingly, this argument fails. Later in the ruling, the judge goes even further: In fact, neither the IRS nor FinCEN purport to amend the money laundering statute (nor could they). In any event, neither the IRS nor FinCEN has addressed the question of whether a "financial transaction" can occur with Bitcoins. This Court refers back to the money laundering statute itself and case law interpreting the statute. It is clear from a plain reading of the statute that "financial transaction" is broadly defined.... It captures all movements of "funds" by any means, or monetary instruments. "Funds" is not defined in the statute and is therefore given its ordinary meaning. While this was the headline argument, many of the other arguments that Ulbricht's lawyers made were more important -- focusing on the nature of Ulbricht merely setting up the marketplace, and not being liable for how it's used. Judge Katherine Forrest is, once again, not impressed. It's worth pointing out here, that Section 230 liability protections do not apply to criminal behavior, so that particular out wasn't ever really on the table. But the general concept of intermediary liability is clearly tied up in this case. In particular, here, Ulbricht argued that there was no "conspiracy" since he wasn't "conspiring" with users of Silk Road, just setting up the marketplace. The court notes that Ulbricht appeared to be much more involved than just merely running an open market: Ulbricht argues that his conduct was merely as a facilitator - just like eBay, Amazon, or similar websites.6 Even were the Court to accept this characterization of the Indictment, there is no legal prohibition against such criminal conspiracy charges provided that the defendant possesses (as the Indictment alleges here) the requisite intent to join with others in unlawful activity. Moreover, in this case, the charges in the Indictment go further than Ulbricht acknowledges. The Indictment alleges that Ulbricht engaged in conduct that makes Silk Road different from other websites that provide a platform for individual buyers and sellers to connect and engage in transactions: Silk Road was specifically and intentionally designed for the purpose of facilitating unlawful transactions. The Indictment does not allege that Ulbricht is criminally liable simply because he is alleged to have launched a website that was - unknown to and unplanned by him - used for illicit transactions. If that were ultimately the case, he would lack the mens rea for criminal liability. Rather, Ulbricht is alleged to have knowingly and intentionally constructed and operated an expansive black market for selling and purchasing narcotics and malicious software and for laundering money. This separates Ulbricht's alleged conduct from the mass of others whose websites may - without their planning or expectation - be used for unlawful purposes. In other words, it's one thing to set up a marketplace. It's another thing to set up a marketplace with the specific intent of using that marketplace to enable criminal behavior. I'm still a little troubled by the possible implications of this -- and even how it might be read back towards cases like the ridiculous lawsuit against Tor we were just discussing. Overall, though, it seems clear that the court isn't going to let Ulbricht off easy. There appears to be some level of guilt-by-association in this latest ruling, some of which may lead to interesting legal challenges down the road, but it's pretty clear that Ulbricht has a long legal road in front of him -- meaning that it's actually likely he'll work out some sort of plea deal rather than continue to fight.Permalink | Comments | Email This Story

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Techdirt has been following the complicated German reaction to Edward Snowden's revelations about US and UK surveillance of people in that country, whether or not in high places, for some while now. Although the German public has been deeply shocked by the leaks, the German government has been keen to preserve good relations with the US. But the revelation that there was not just one but probably two double agents working for the US within the German secret services has taken the country's unhappiness with its ally up a notch, and German Chancellor Angela Merkel has finally reacted with a classic diplomatic punishment, reported here by the Guardian: The German government has asked the top representative of America's secret services in Germany to leave the country. Members of the government's supervisory panel announced the measure at a press conference in Berlin this afternoon. Clemens Binninger, a member of Angela Merkel's Christian Democrats, who chairs the committee that oversees the intelligence services, explained that the move came in response to America's "failure to cooperate on resolving various allegations, starting with the NSA and up to the latest incidents". This comes just after the Independent newspaper carried the following story about another significant German response to US (and UK) spying: Chancellor Angela Merkel's government is planning to scrap a no-spy agreement Germany has held with Britain and the United States since 1945 in response to an embarrassing US-German intelligence service scandal which has deeply soured relations between Berlin and Washington. The unprecedented change to Berlin's counter-espionage policy was announced by Ms Merkel’s Interior Minister, Thomas de Maizière. He said that Berlin wanted "360-degree surveillance" of all intelligence-gathering operations in Germany. ... Mr de Maizière told Bild that he was now not ruling out permanent German counter-espionage surveillance of US, British and French intelligence operations. His remarks were echoed by Stephan Mayer, a domestic security spokesman for Ms Merkel’s ruling Christian Democrats. “We must focus more strongly on our so-called allies,” he said. It may well be that some "unofficial" German spying on the US had been going on until now, but the fact that Angela Merkel's interior minister has made an official statement of his country's intent to spy on the US, UK and France is a clear signal of her displeasure with the surveillance activities of those "so-called" allies. Given Germany's rapidly-escalating response here, an interesting question is: What will it do if/when the next big spying scandal breaks? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Remember how the tapes of the CIA's torture campaign were "destroyed" under suspicious circumstances, despite orders not to destroy them? It appears something similar has happened in the UK, where files on the UK's role in CIA rendition efforts have been "accidentally destroyed." I'm wondering if anyone can read that claim without rolling their eyes. When Tyrie asked the Foreign Office (FCO) to explain which government department keeps a list of flights which passed through Diego Garcia from January 2002 to January 2009, FCO minister Mark Simmonds replied: "Records on flight departures and arrivals on Diego Garcia are held by the British Indian Ocean Territory immigration authorities. Daily occurrence logs, which record the flights landing and taking off, cover the period since 2003. Though there are some limited records from 2002, I understand they are incomplete due to water damage." The Foreign Office would not say whether the damaged files were UK or US records, or say where they were located. An FO spokesperson maintained that because the damage "was only recently discovered" it did not know how or when it occurred. Convenient story. As the report notes, this follows earlier vehement denials from the UK government that Diego Garcia was used for rendition... only to later have to admit that they were lying. Ministers of successive governments have repeatedly given misleading or incomplete information about the CIA's use of Diego Garcia. In February 2008, the then foreign secretary, David Miliband, was forced to apologise to MPs and explain that Tony Blair's "earlier explicit assurances that Diego Garcia had not been used for rendition flights" had not been correct. Miliband said at this point that two rendition flights had landed, but that the detainees on board had not disembarked. Once again, it appears that the intelligence community is more focused on covering its tracks than on making sure it's not violating everyone's rights.Permalink | Comments | Email This Story

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So, yesterday we wrote about the already bizarre lawsuit filed by Jason Lee Van Dyke, a Texas lawyer, on behalf of Shelby Conklin, against a revenge porn site, Pinkmeth, and (even more ridiculous), the Tor Project. There were many, many problems with the lawsuit, starting with the cluelessness of Van Dyke in going after the Tor Project, when he clearly had no idea what it was or did, or any idea about how Section 230 of the CDA works (in fact, it appears he misrepresented a similar case, in which GoDaddy was protected by Section 230). There were also some problems with the First Amendment aspects of this, and Van Dyke's argument that aiding someone in being anonymous was some sort of aiding and abetting of law-breaking. Thankfully, this morning Van Dyke admitted that he was dropping the Tor Project from the lawsuit -- though he doesn't appear to have apologized or admitted to his own errors. Instead, it appears he's been doubling down -- which we'll get to later in this post. But first, the story has taken a different twist, as Jay Wolman in our comments pointed to something even more bizarre: Van Dyke claimed that Pinkmeth's "address" (also where he had the lawsuit served) was the same address as Kyle Bristow, Esq. Pinkmeth had previously facetiously indicated that Bristow was its attorney (and uses a picture of Bristow on its Twitter account). But it's clear that whoever is behind Pinkmeth is joking. Bristow and Van Dyke have worked together to try to shut down revenge porn sites like Pinkmeth in the past, and Pinkmeth is clearly mocking Van Dyke by claiming that Bristow is its lawyer. But Van Dyke still "served" Pinkmeth at Bristow's offices, knowing that it's bogus. As Wolman notes, since Van Dyke knows this is not actually Pinkmeth's offices, what he's done clearly borders on "fraud on the court." Meanwhile, our friends at Above the Law have even more on this situation, including the fact that Bristow was declared the leader of a hate group while he was in college, who has openly advocated racist and homophobic positions. As for why Bristow, who appears to have rather stone-aged views of the world, is now focused on fighting revenge porn? Well, his argument kind of speaks for itself: “Revenge pornography is nothing more than a manifestation of liberalism,” Bristow said. “Most victims on revenge pornography websites are young, white, blonde, middle class, American women. Women who the pornographers can link to conservatism or Christianity are especially targeted for harassment.” Yes, as Above the Law notes, Bristow is against revenge porn because it's "defiling white blondes in an effort to undermine Christianity." As bad as we think revenge porn sites and their operators are, somehow I doubt that's the goal. Either way, Van Dyke pretending to believe that his buddy Bristow actually represents Pinkmeth is just the latest in a long line of problems with the lawsuit... Meanwhile, as another commenter on our original story pointed out, Van Dyke appears to be freaking out on Facebook, threatening to sue people who are posting negative reviews of his firm: Sometimes, combined with the threats of lawsuits, he directly threatens physical harm on people: And, much of the rest of the time, he's displaying just the sort of "professionalism" we're sure that the Texas bar approves of: Separately, when someone sent him a copy of my original article, he laid out his own "legal strategy," in which he explains that he's filing this on the expectation that Pinkmeth will default and then he'll get his injunction (some of the companies that he's seeking the injunction to apply to may have a word or two to say about that). Oh, and at the end, he flat out admits that "it's my job to violate the civil rights of people like you." Lovely. Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
In the wake of the Aereo ruling, I'd been meaning to do a post questioning whether or not the ruling had effectively overturned the ruling in the ivi case from a few years earlier. We had seen some people in our comments point out that, following the Aereo ruling, Aereo had an easy solution: just start paying retransmission fees. Except... that's exactly what ivi had tried to do, and the court had shut them down, using almost the opposite reasoning as the Supreme Court. Specifically, the Second Circuit appeals court (the same that had decided in Aereo's favor) ruled that internet services were not cable companies under the law, and couldn't just pay retrans fees: Congress did not, however, intend for Section 111's compulsory license to extend to Internet transmissions. Indeed, the legislative history indicates that if Congress had intended to extend Section 111's compulsory license to Internet retransmissions, it would have done so expressly -- either through the language of Section 111 as it did for microwave retransmissions or by codifying a separate statutory provision as it did for satellite carriers. See 17 U.S.C. §§ 111, 119. Extending Section 111's compulsory license to Internet retransmissions, moreover, would not fulfill or further Congress's statutory purpose. Internet retransmission services are not seeking to address issues of reception and remote access to over-the-air television signals. They provide not a local but a nationwide (arguably international) service. Accordingly, we conclude that Congress did not intend for Section 111's compulsory license to extend to Internet retransmissions. So, uh, which is it? Aereo has now decided that if the Supreme Court is going to call it a duck for looking like a duck, it's damn well going to quack like a duck too. It has told the lower court that it intends to pay retransmission fees under Section 111, more or less claiming directly that the Supreme Court overruled the ivi ruling. For what it's worth, Aereo's "wacky" (but seriously questionable) "competitor" FilmOn, already made a similar declaration of being a cable company, though as we've learned with FilmOn, you should take almost every claim it makes with a huge grain of salt. Of course, this is a big problem with the Supreme Court's ruling. By coming up with this wacky "looks like a duck" test, it's encouraging companies like Aereo to use that test in a variety of ways, even though copyright law has never worked that way. Lots of things that "look like" each other face different rules: think of terrestrial radio and internet radio stations. Under the "looks like a duck" test, internet radio stations should be able to declare themselves the same as terrestrial radio stations and stop having to pay performance fees to musicians. And, of course, the networks themselves don't like Aereo embracing the duck, even though the company is only doing so because of the network's own lawsuit. On July 1, however, its counsel suggested that Aereo has rethought its entire legal strategy and will raise before this Court a brand new defense based on Section 111 of the Copyright Act. Aereo never before pled (much less litigated) Section 111 as an affirmative defense. Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a “cable system” under Section 111 given its prior statements to this Court and the Supreme Court. But it's not Aereo that made that decision. It's pretty clearly the Supreme Court and its stupid "looks like a duck" test. The entertainment industry might want to be careful what it wishes for. It applauded the dreadful looks like a duck test, and now it's freaking out when Aereo actually tries to apply it.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Remember last year when the UK loudly rejected an attempt by the government to create a "Snooper's Charter" that would give the government much more power to sniff through everyone's private data? This was the law David Cameron insisted was needed based on crime dramas he watches on TV (how do these people get elected?). You may also recall that, earlier this year, the European Court of Justice found that the EU's Data Retention Directive was invalid as a breach of "the fundamental rights to respect for private life and to the protection of personal data." Just a few weeks ago, we noted that the UK government had told telcos to ignore that ruling and to carry on retaining people's data. It appears that telcos told the UK government to pound sand, and David Cameron and his friends are now using that as an opportunity to rush through a version of the Snooper's Charter, requiring internet companies to retain data. Member of Parliament Tom Watson raised the alarm about this yesterday, detailing how the government was trying to rush through a broad bill in near secrecy: If you look on Parliament’s web site tonight, you will not see the name, nor the text of the Bill to be considered. None of your elected backbench MPs have been told what Bill is to be debated on Monday. It’s Wednesday evening. Tomorrow, MPs are on a ‘one line whip’ ie they can return to their constituencies this evening. Imagine how outrageous it would be, if tomorrow, the government were to announce emergency legislation to an empty chamber. Imagine if that emergency legislation was to be introduced on Monday or Tuesday, with the intention of it slipping through the Commons and the Lords in a single day. Imagine if that Bill was the deeply controversial Data Retention Bill. It’s a Bill that will override the views of judges who have seen how the mass collection of your data breaches the human rights of you and your family. And that's what's happened so far. Early this morning, the draft of the bill was released, entitled the "Data Retention and Investigatory Powers Bill," or DRIP. Think of it as drip, drip, dripping away your privacy and civil liberties. As people reading through the bill have noted, it's quite clear that it goes much further than just dealing with the "fallout" from the European Court of Justice ruling. In particular it has this rather open ended clause that appears to give the government the power to effectively change the rules at will: The Secretary of State may by regulations make further provision about the retention of relevant communications data. The government is trying to calm people down about this by first setting up a "Privacy and Civil Liberties Oversight Board" (PCLOB) modeled after the PCLOB in the US, and will also include a "transparency" report. But the bigger claim they have is that this is just a "temporary" thing with a sunset provision: The laws will expire in 2016, requiring fresh legislation after the election. The Regulation of Investigatory Powers Act will be reviewed between now and 2016 to make recommendations for how it could be reformed and updated. Lib Dems insist the new legislation does not represent an extension of existing surveillance powers or the introduction of the snooper's charter. Except, if you've paid any attention at all, you know damn well that these sunset clauses almost never work. It's much, much more difficult to get rid of a bad law once it's in place. And when it comes to things like surveillance, every time the renewal period comes up, politicians go on a FUD rampage about how many people will die if the government can't keep searching through all your data.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
As the evolution of video games as a major entertainment medium marches on, you would expect to see more and more studies done as to their effects. And, since the chief topic among those having this conversation seems to center around the effect of violence in games, that's where much of the focus of these studies is going to go. Now, we've already discussed one study that linked violent video games and the so-called Macbeth Effect, in which the gamer feels the need to cleanse themselves of the wrong-doing with a conversely benevolent action. That study was important because it demonstrated that the effect of violent games might have the opposite effect of the all-to-prevalent theory that virtual violence begets real-life violence. A recent study appears to boil this down even further, indicating that instead of feeling any kind of desensitizing effect, immoral actions taken in video games produce a more sensitive, compassionate person. A study led by Matthew Grizzard, assistant professor in the department of communication at the University at Buffalo, reaffirmed previous research saying that committing immoral acts in games can cause players to feel guilt. Moreover, the study found that players would become more sensitive to the specific moral codes that they violated while playing — and according to Grizzard and his co-authors, that may eventually lead players to practice prosocial behavior (that is, voluntary behavior for the benefit of other people). The study was done at an unnamed Midwestern university, sampling nearly 200 individuals for testing purposes. The game used was Operation Flashpoint: Cold War Crisis, an older game that was previously used in a study that first tried to measure guilt in the gaming population. The methodology used by several researchers from major universities is interesting, to say the least. First, the researchers randomly assigned the participants to play a game or perform a memory recall task. They randomly assigned the gaming segment to play Cold War Crisis in two ways: Either they would play as terrorists (the "guilt condition"), or as U.N. peacekeepers in the "control condition." The researchers also split the memory recall participants into two groups: They asked the guilt condition people to write about a time in which they felt particularly guilty, while they requested the control condition folks to write about a normal day. What they found is that feelings of guilt were more profound in those gamers who played as terrorists compared with those that played as peacekeepers. The rationale at work is that terrorists are unjustified in killing the U.N. characters, but not vice versa. What that demonstrates is that players taking what they deem to be immoral actions within a virtual environment are emotionally stimulated in thinking about those actions and develop thoughts and opinions based on those actions, building generally towards empathy through guilt. Coupled with other research, this is important. Research has shown that guilt and increased moral sensitivity in real life often lead to prosocial behavior. Thus, the study's authors concluded, there's some likelihood that the same could be true for guilt resulting from immoral virtual behavior. In other words, playing violent games can make you feel guilty, which may cause you to do nice things for other people. It's important to note that still other research has shown that with increased play at relatively high rates, these feelings of guilt tend to lessen over time. That likely has more to do with the player's comfort level in accepting that their actions are all just part of a game and having already settled their feelings on those actions. In the meantime, for the vast majority of gamers who play games at what we'd consider normal intervals, violence in games may actually lead to pro-social behavior rather than the stereotype result that's blasted around our media. Permalink | Comments | Email This Story

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