posted 11 days ago on techdirt
Oh, Microsoft. The company has now admitted that it ended up sending a bunch of DMCA takedown notices on non-infringing videos, all because someone had posted product keys in comments to those videos. To its credit, Microsoft has apologized and said that it has "taken steps to reinstate legitimate video content and are working towards a better solution to targeting stolen IP while respecting legitimate content." That's all well and good, but this seems like the kind of thing that they should have done long before issuing obviously bad takedowns. This is the kind of thing that happens when you have a tool like the DMCA notice-and-takedown provision that makes it just so damn easy to censor content. Those issuing the takedowns do little to nothing to make sure the content being removed actually infringes. They just use either automated means or someone rushing through the process with little review, sending off takedowns willy nilly with no real concern about how they might kill off perfectly legal content. It still boggles the mind that a basic notice-and-notice regime couldn't suffice to handle situations like this. That and making sure that those issuing bogus DMCA notices receive some sort of real punishment to give them the incentive to stop sending bogus takedowns.Permalink | Comments | Email This Story

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For several years, Techdirt covered the twists and turns of the "Marco Civil" saga, Brazil's bill of rights for the Internet, which finally passed back in March. Rather depressingly, this welcome move seemed to be something of a one-off, but now the Italian Parliament has announced its own draft bill of rights. Here's the introduction (original in Italian -- pdf): The Internet has contributed decisively to the redefinition of both the private and public space, to structure the relationships between people and between people and institutions. It has cancelled borders and built new means of production and the use of knowledge. It has expanded the possibilities for direct intervention in the public sphere by individuals. It has modified the organization of work. It has allowed the development of a more open and free society. The Internet should be considered as a global resource and one that meets the criterion of universality. The European Union is today the region of the world with the highest constitutional protection for personal data, explicitly recognized by Article 8 of the Charter of Fundamental Rights, which is the point of reference for specifying principles concerning the operation of the Internet, even in a global context. This Statement of Rights on the Internet is based upon the full recognition of freedom, equality, dignity and diversity of each person. The guarantee of these rights is a necessary condition for ensuring the democratic functioning of institutions, and in order to avoid the dominance of public and private powers that could lead to a society of surveillance, control and social selection. The Internet is configured as an increasingly-important space for the self-organization of individuals and groups, and as a vital tool for promoting individual and collective participation in democratic processes and meaningful equality. The principles regarding the Internet also take account of its structure as an economic space that makes possible innovation, fair competition and growth in a democratic context. A Declaration of Rights for the Internet is an essential tool to provide a constitutional foundation for principles and rights at a supranational level. There then follow 14 digital rights, including things like basic human rights; right to access the Net; Net neutrality; control of personal data online; protection against surveillance without the approval of a judge; right to online anonymity; and the right to be forgotten. The present document is just a draft, and input will be gathered from many quarters, including the public, who can make comments and suggestions using an online system. That's only in Italian, for understandable reasons, but it would be good if translations into other major languages were made to allow an even wider consultation. After all, a bill of rights for the Internet is something that concerns everyone, not just citizens of enlightened nations like Brazil and Italy. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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So, Apple got plenty of kudos from security and privacy folks in deciding to encrypt mobile phone data, but over on the desktop side, apparently the message hasn't quite gotten through. Instead, it appears that the latest Mac operation system has the company automatically sending all of your desktop searches back to Apple. These aren't internet searches, but just what you're searching for locally. The function is part of Spotlight search, which was updated with last week’s launch of new Mac computers and Apple’s latest operating system, Yosemite OS X, which also is available for download to owners of older machines. Once Yosemite is installed, users searching for files – even on their own hard drives -- have their locations, unique user IDs and search terms automatically sent to the company, keystroke by keystroke. A pop-up window discloses the change, saying collecting the data helps provide results “more relevant to you” as Spotlight also looks beyond individual computers to gather information across the Internet, much like popular search engines such as Google already do. But privacy advocates worry that users won’t understand what information is collected and how to stop the transmission of data to Apple, which happens by default. And, if you think there's no big deal in having this data collected, think again. Testing by The Washington Post found that the locations revealed in Spotlight searches can be strikingly precise, placing a user within a particular building in Washington, D.C., even though the disclosure box on Spotlight refers to collecting “your approximate location." In addition to sharing information with Apple, Spotlight also actively downloads relevant Web pages and Wikipedia articles about the topics covered by a search query, revealing potentially sensitive information about the user’s activities to other Web sites as well. You can (and perhaps should) turn off this "feature" -- and you can see how in some specific cases there may be beneficial reasons for individuals to share this information, the idea of having it on by default just seems like a privacy nightmare.Permalink | Comments | Email This Story

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The number of ways to get people into space is at a record low right now, but some projects on the horizon are planning to get more people living in space in the not too distant future. Commercial space ventures are going to be shuttling (or capsule-ing, as the case may be) people to low earth orbit, and some other projects are aiming for more distant journeys. Here are just a few space exploration plans to keep an eye on if you still want to be an astronaut someday. In December, NASA is planning to launch Orion on a Delta IV Heavy rocket as a test for its next generation manned space vehicle that may one day get astronauts to Mars. No one will be on board for the first trip, but the craft will be gathering data to make sure the vessel is suitable for transporting people comfortably and safely. [url] The Bigelow Expandable Activity Module (BEAM) is an inflatable habitat that can connect to the International Space Station and provide commercial living space for a little over $50 million for a 2 month stay. This will be a steal compared to the current $40 million price tag for an individual to stay on the ISS for a week. (No word yet if you'll be able to re-rent out your spot on Airbnb.) [url] The optimism of the Mars One project should not be dismissed, but the technology to actually build a viable colony on the red planet may be further from reality than 2025. An analysis from some MIT students concludes that Mars One is unlikely to be sustainable with the current state of its technological progress. [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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The facts are in, thanks to Vice Media and Jason Leopold. Washington, DC police have a Stingray cell tower spoofer and have been using it for several years. The Metropolitan Police Department was an early adopter, but moving too fast cost it about five years of use. Back in 2003, the Metropolitan Police Department (MPD) in Washington, DC was awarded a $260,000 grant from the Department of Homeland Security (DHS) to purchase surveillance technology called Stingray — a contraption the size of a suitcase that simulates a cell phone tower and intercepts mobile phone calls and text messages. The rationale behind the DHS grant to MPD and other law enforcement agencies was to help them secure new anti-terrorism technology from private corporations. But the grant fell a little short, because the MPD couldn't come up with the extra several thousands dollars it needed to train officers how to use and maintain Stingray — so the device sat unused in an "Electronic Surveillance Unit equipment vault" at the department for more than five years. In 2008, the Stingray was revived and upgraded and has apparently been in use ever since. Of course, it's no longer terrorism that justifies its usage, but rather good, old-fashioned drug dealing and other vanilla criminal activity, as one memo points out. "The procurement of this equipment will increase the number of MPD arrests for fugitives, drug traffickers, and violent offenders (robbery, assault with a deadly weapon, Homicide), while reducing the time it takes to locate dangerous offenders that need to be removed from the streets of DC." No doubt the news that bad guys are being speedily apprehended will make up for all the dropped calls and blocked data experienced by public servants employed in the metro area. They'll also be pleased to know that all sorts of unfiltered information about their phone calls, location, etc. was hoovered up along with the suspects'. Not that this doesn't affect the "little people," who are just as likely to wonder why their cell phones aren't picking up a signal and are just as likely to be irritated that the local PD is scooping up a bunch of unrelated data in its search for bad guys, but this now affects the "real people" of DC -- policymakers and higher-ups whose complaints actually manage to find worthy ears quite frequently. If the MPD is driving around DC with Stingray devices, it is likely capturing information about the locations and movements of members of Congress, cabinet members, federal law enforcement agents, and Homeland Security personnel, consular staff, and foreign dignitaries, and all of the other people who congregate in the District…. If cell phone calls of congressional staff, White House aides, or even members of Congress are being disconnected, dropped, or blocked by MPD Stingrays, that's a particularly sensitive and troublesome problem. Of course, this has been ongoing for half a decade now, and if no one's complaining about it yet, it's because it hasn't been noticed or it's because too many of those officials mentioned are more than willing to sacrifice their privacy (along with everyone else's) for small gains in law enforcement efficiency -- even more so if the spectre of international terrorism is raised (which it was, initially), despite everyone knowing that the real targets would be normal, no-panic-needed criminal activities (as is almost always the case). Will these newly-freed documents prompt a bit more activity from the Beltway? Well, the cheery outlook says, "anything's possible," which is as much an admission of defeat as it is a rallying cry. The more realistic viewpoint sees that multiple documents have been uncovered over the past few years with little more than a few, very localized reactions being observed. It will probably take more than the off-chance of being swept up in a surveillance dragnet to convince those in charge to take a second look at law enforcement tools and capabilities. In fact, many of them helped agencies (via legislation) like the DHS and FBI sell the courts on the idea that nearly everything related to human communication in this day and age carries with it "no expectation of privacy." Permalink | Comments | Email This Story

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I really thought we were done writing about Walter O'Brien -- the claimed "inspiration" for the TV show Scorpion. We already wrote two separate posts detailing the questionable, unbelievable or obviously false claims that he has made recently. And we did another post calling out the "professional journalists" who simply repeated his claims without any skepticism. And, once again (since this comes up every time), I have absolutely no problem with CBS making whatever TV show they want. The problem I have is with O'Brien using the obviously bogus claims to try to build a business on false premises, leading people to believe that giving him money will get you results not unlike those in the obviously farcical TV series. In that last post, we noted that a couple of the journalists who had originally written fawning profiles had taken the concerns to heart and had tried to reach out to O'Brien to respond about the inconsistencies. Susan Karlin, at Fast Company, had written a profile about O'Brien that repeated many of the claims. When many of us raised questions, that story was briefly dropped behind an unimpeachable paywall (it said it was behind the paywall, but offered no way to pay) and then reemerged with a note acknowledging the questions raised and saying that Karlin was reaching out to O'Brien for a followup. We were skeptical that any followup would happen, but alas, late last week Karlin had a new story describing O'Brien's weak attempts at responding to the questions about his life story. It appears he avoided most of the really damning stuff -- ridiculously claiming that "non-disclosure agreements" prevented him from discussing them. On the IQ question: IQ: Regarding his absence from IQ lists, O'Brien wrote: “I was about nine years old when a teacher administered my IQ test," said O'Brien. "Unfortunately, as I was nine, I didn't know that I needed to keep the paperwork for future reference.” O'Brien did not respond to a follow-up question asking, since he was using his IQ as a marketing element, why he didn’t later take a Mensa-endorsed test in case that figure got challenged. First off, this proves what we said in our last post, that all of his claims about being "the fourth smartest" are complete bunk. Elsewhere, he had admitted that it was the Stanford-Binet test he took. At age 9, in 1983, the version of the Stanford-Binet that was out was known as the L-M version (two versions ago), in which the scores were not based on standard distributions, but rather a ratio scoring system (i.e. "this score at this age, compared to a normal person at this age"). And yet, to back up his claim of being the 4th smartest, he pointed to this chart, which uses the modern Stanford Binet "standardized" scoring system to compute "rarities." So he's mixing his metrics. Worse, research has shown that scores on the L-M test (especially at the high end) correspond to lower scores on the current Stanford-Binet test (SB5). So, even if the test was accurate, his score would be lower. On top of that, all the test showed was that at age 9 Walter was probably much brighter than other kids his age. It means nothing about him being particularly smart today. At the very least, for someone who puts so much weight on his IQ score and claims to be so smart, you'd think maybe (just maybe) he'd actually have a working understanding of how IQ scores work. O'Brien did clear up some of the inconsistencies about his appearance in the International Olympiad in Informatics in Argentina, showing that he absolutely did attend (he has a "participant" certificate). O'Brien completely ignored the question about why his visa application to come to the US claims he came in 6th place in that competition, when it's clear he did not. At best there are reports that he came in 90th, though the explanation for why that 90th place doesn't show on the website for the Olympiad doesn't make much sense: “The application from Ireland to compete had just missed the cut-off deadline,” said O’Brien. “We applied for an exception and it was granted, that's why Ireland doesn't appear in the registry, but did compete, and I certainly was there.” But, clearly, the website was updated after the competition to show who won, so it's difficult to understand why they did not add his results. O'Brien does admit to having faked the picture of the headquarters, as we pointed out, but says that the company was run virtually and he never thought people would think it was real: Regarding the Photoshopped German building, he added, “I apologize if the building image on the website was misleading, as it was just a cool graphic that our website designer provided years ago. To me it was clearly a made up image since it has a large scorpion tail reflected in the glass and no sky in the background, but I can see how you could think it was our headquarters.” Regarding the bogus number of 2600 employees and the UPS Store as his address: O’Brien said Scorpion was run virtually, to reduce overhead, utilizing approximately 2,600 pre-screened independent contractors on an as-needed basis to solve large software problems for companies, individuals, and governments. “Most of our systems are either in the cloud (like Amazon's) or at a large customer's data center (like a military base), so we spend our time either at a customer site or telecommuting from our laptops,” he said. "Because we are virtual (and for security reasons), as with many companies, we use a P.O. box for our address.” I'm all for virtual businesses running online, but there is no business in the world making over a billion dollars that can run entirely virtually without at least some semblance of a real office -- and various stories have claimed that Scorpion makes over a billion dollars in revenue. You don't run a billion dollar business out of a UPS store box. No one does. Small businesses run out of such things -- which is great for them. It's logistically impossible to run a large business that way. The "2,600 pre-screened independent contractors" excuse is also bogus. First of all, I'm quite familiar with the expert network business, and I've never seen an expert network so careless as to come even close to suggesting that the network members are the equivalent of employees. But, more importantly, with every expert network, it's very common for the members of that network to promote that they're members on things like LinkedIn. And yet, it seems that almost none of these folks associated with Scorpion do so. It's possible that the rolodexes of the very small number of people (it appears to be less than 10) who actually do work at Scorpion may total up to 2600 people, but that's a very misleading way to promote the business. Speaking of incredibly misleading ways to promote your business, O'Brien also responds to the hilarious claim that Scorpion was a venture fund with $204 billion under management: O’Brien also stood by the $204 billion venture fund. That figure “was true at the time,” said O’Brien. “That statement simply referred to the total net worth of all the investors and venture capitalists that Scorpion had a relationship with and often hire Scorpion for due diligence. This is collectively referred to as a fund source as we are allowed to show these investors any new companies or inventions that we thought were worth the investors taking a closer look at.” That's bordering on fraud -- to the point that it seems like the SEC might be interested. You don't get to claim "because I sometimes work with these investors, I can claim to have a fund worth the value of all their assets." He also never bothers to explain why -- if he was managing a fund with over $200 billion and building up a company with over $1 billion in revenue (out of a UPS store) and 2,600 "independent contractors" -- he was still working a day job doing QA for The Capital Group. Karlin also turns up some other lies from O'Brien that we had missed. O'Brien claimed that the following happened back in 1992: 1992 Presented A.I. discoveries, Invited to speak at the Artificial Intelligence and Cognitive Science conference at the University of Limerick (A.I.C.S.), by special invite from Dr. Padraig Cunningham. The youngest Scientist ever invited to present his SPEAKART project. This project was a fifth generation computer application, in the Dublin Hitachi research lab which resulted in being offered an apprentice position at HITACHI. Karlin contacted Dr. Cunnigham and found a rather different story: “That’s not true that I invited him to speak,” said Padraig Cunningham, now a professor in computer science at University College in Dublin, when contacted by Fast Company. “And he wasn’t offered an apprentice position at the Hitachi Dublin lab. I’d just finished working there in September, 1992, and he was not offered a job. “I Googled his name and found this softer version of events in a news article published on one of his sites,” he added. (It reads: “Later that year [1992] Dr. Padraig Cunningham of T.C.D. invited him to attend the two-day Artificial Intelligence and Cognitive Science Conference in Limerick University.”) “It appears he later hardened his claims that he was invited to speak and got a position at Hitachi,” said Cunningham. “This is a really old item, but it’s consistent with the idea that he’s become more effusive about his claims.” This is the same thing that seems to keep coming up with O'Brien. He takes snippets of reality and extends and extends and extends those claims, embellishing the story each and every time. Being invited to attend a conference eventually turns into being invited to speak and then into getting a job. In regards to all the other obviously bogus claims -- including the ones about "catching the Boston Marathon bombers," stopping wars, having his software misused leading to 2,600 civilian casualties in the Gulf War (yes, same number of "independent contractors" he now claims to have), stopping soldiers in Afghanistan from drinking water laced with arsenic from local drug lords... O'Brien doesn't want to respond to any of it. “Much of our company’s work, especially with military/government clients is subject to strict Non-Disclosure Agreements, so we can’t say more than has been cleared for news. “I’ve answered all the questions I have time to right now,” he replied in response to follow-up questions. “All that remains to be said is that I’m proud of and stand by my career, my company, and all the good we have done.” It appears the strict non-disclosure agreements allow him to promote things that are extraordinarily dubious (and debunked by other information), but not to actually present any evidence to confirm. How convenient.Permalink | Comments | Email This Story

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Not all things can be trademarked, and one of the most common reasons a term, word, or phrase is refused protection is if it is purely descriptive. The stock examples of this make sense to us inuitively: a company couldn't trademark "Black Computers" as part of their business, since the term is neither unique nor does it do anything besides simply describing the product. But I think real-world examples of this sort of thing drive the point home even more. Via the wonderful Five Useful Articles newsletter (a comedic newsletter about intellectual property that you should subscribe to), we learn that there is a company called "Legal Hackers LLC" and that the company has a trademark application in for the term "Legal Hackers." We also learn that there is a cordial but healthy discussion going on throughout the legal hacking community over whether or not this should be allowed. Indeed, one hacker-lawyer (which is an awesome title) has filed a dispute against the mark (embedded below) and fleshed out his reasoning in a blog post. From a trademark law standpoint, I think the term “Legal Hackers” is descriptive and therefore should not be eligible for protection on the primary trademark register. In reviewing the application record at the USPTO, the examining attorney did not raise the descriptiveness issue, although such oversights are not uncommon. I don’t think anyone would deny that the term “hacker” has been in use since well before April 2012 to describe a certain type of activity (the earliest Urban Dictionary entries date to 2003 and reference pop-cultural use of the term relating to computer hackers at least as early as 1982 (Tron) and 1983 (War Games)). Since then, “hacker” (or “hack” or “hacking”) has been used to near-ubiquity to describe innovation in just about any thing or activity you can think of: Ikea, Gardening, Running, Walking, apparently even Sex (thanks Buzzfeed). In fact I challenge you to think of some activity and run a Google search on that activity plus “hack.” Any of these categories are simply descriptive of the activity being hacked–I can’t see how “Legal” is any different. It's not different, of course. What is different in this particular case is that you don't have one company fighting another over the trademark application. Instead, you have a cadre of legal hackers going up against a single company, Legal Hackers, for attempting to lock up a term the the former thinks applies to what they do. This would be the grassroots version of trademark disputes, with a subsection of the public balking at a company's attempt to lock up the language describing what they do. The post doesn't only make the legal argument, however. Common sense plays a role as well. Beyond the formal legal argument, however, I think having the term “Legal Hackers” under trademark protection is a bad idea. For one, the notion that someone could tell someone else they can’t call themselves a Hacker of any sort seems inappropriate, if not unheard of. I can see a legitimate argument that “my hack is better than your hack,” or “I’m a better hacker than you are,” or even “your hack isn’t truly a hack because it’s something most people would normally do so it isn’t hack-worthy.” But I can’t find legitimacy in a claim that “your hack isn’t a hack because I own the term “Hack” and I get to say what is or isn’t one.” Or, “You aren’t a hacker because I control the term “Hacker” so I get to say who is and who isn’t.” Taken further, the idea that the ability to bestow or withhold the “hack” or “hacker” label would carry the weight of federal trademark law is preposterous. Look, the good news is that both sides of this discussion appear to be friendly, cordial sides that genuinely have good interests. That said, I love this story because to me, it means more to see trademark opposition come not from an economic interest, but from a genuine community and language interest. This isn't someone trying to make a buck, it's a group of people who love their community and love what they do and don't want to see the ownership of some of the language surrounding their activities. DV.load("//www.documentcloud.org/documents/1314535-86247678.js", { width: 560, height: 550, sidebar: false, text: false, container: "#DV-viewer-1314535-86247678" }); 86247678 (PDF) 86247678 (Text) Permalink | Comments | Email This Story

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ASIO -- Australia's NSA -- runs the tightest spying ship in the spying-ship-spying-on-spying-ships business. It's all detailed in one tiny paragraph hidden 26 pages deep in an 100+ page Inspector General's report. [pdf link] "ASIO intercepted, without warrant, calls made from one of its own regional offices due to a technical error. The data was deleted and processes put in place to ensure it does not happen again." I'm not sure what tipped the spooks off. Maybe it was the range of the familiar voices (possibly their own, even!) heard during the transcription process. Or maybe it was the embarrassing moment where one ASIO agent admitted to the agent at the other end of the line that he was a "long-time listener" but a "first-time caller," shortly before the feedback loop made the call too painful to continue. The above screw-up didn't violate the privacy of anyone but a few privacy-violators and the Inspector General readily notes that this sort of thing won't be happening again. Presumably, future warrantless interception will be checked against the very short list of DO NOT SPY numbers, most of which should be readily apparent by their in-house extension numbers. The report quickly moves on from this little embarrassment but failing to clarify whether it was the interception or the lack of a warrant that was the problem. A "we don't spy on ourselves" policy would make sense but wouldn't necessarily be a violation of the Telecommunications (Interception and Access) Act. On the other hand, the warrant requirement for ASIO is basically an impediment no thicker than the ink applied by a rubber stamp -- all that stands between what the agency wants to do and what it's going to find a way to do anyway. As the laws governing ASIO's surveillance stand now, a warrant is nothing more than a nice afterthought. The Bill introduces the concept of a "delayed notification search warrant" -- often referred to in the United States as a 'no-knock warrant' -- which would allow Australian Federal Police to search premises without prior warning and "without having to produce the warrant at the time of entry and search". Maybe the warrant was still in transit, or maybe ASIO though the interception of its own calls fell under one of its other broad warrants, some of which could easily be interpreted as pertaining to every device connected to the Internet. But these are this year's laws and that is last year's violation, so it still doesn't add up. What it does do is throw some hazy light on an agency that thrives in the dark and just successfully ushered in a brave new world of domestic surveillance. This incident proves a valuable point about trust (namely: don't) and answers an important rhetorical question: Who watches the watchers? Clearly, the watchers do. Sometimes. But only inadvertently. And it won't happen again. Permalink | Comments | Email This Story

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The West's constant push for stronger patent protection in agreements like TPP and ACTA is based on the belief that they will then be able to deploy their supercharged patents against the rising economic might of China. What this completely overlooks is the fact that China will be able to turn the self-same strengthened patent regime against the West by acquiring patents and suing Western companies. Techdirt has already reported on how China is providing financial incentives for its companies to file huge numbers of patents overseas. Now it has taken another step in bolstering its patents strategy against the West by setting up a company called Ruichuan IPR Funds. Here's a press release that the site Citizen Outreach has issued on this move: With China's creation of Ruichuan IPR Funds, imagine the assault that U.S. companies will face. Reports are that this government-sponsored troll has been seeded with $50 billion to acquire patents that will be used in actions against U.S. companies. Inasmuch as trolls aren't sticklers for the quality of the patents they purchase, Ruichuan IPR Funds will be able to build a massive arsenal for use in harassment litigation. China will now be in a better position to manipulate markets, handicap the overseas competition, and push itself to the head of the pack in the global patent wars. A little hyperbolic perhaps, but essentially correct -- and completely foreseeable. The Chinese government's move is part of a larger story that recapitulates America's own evolution from a "pirate" nation that fuelled its industrial revolution by ignoring the law and appropriating Western Europe's patented ideas, to one using the same legal instruments against European companies. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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FBI Director James Comey is apparently a likable guy, but if he's going to attack encryption, it might help if he actually understood it better than, say, the editorial board of the Washington Post, who recently argued against "backdoors" in technology, and for a magical "golden key" -- as if the two were somehow different. We wrote a quick take on Comey's Brooking's talk last week, but the deeper you dive into his talk the more and more evident it is that he not only doesn't quite understand the issues he's talking about, but that he doesn't even seem to understand when his own statements conflict with each other. Just two days earlier, in a 60 Minutes interview, Comey had insisted, incorrectly, that the FBI can never read your email without a court order. This was simply false, and Comey had to 'fess up to that at the Brookings event when called on it. But if he needed to "clarify" that, it seems like he needs to do much more clarifying as well. Because much of his speech presented scenarios for why the phone encryption now being put in place by Apple and Google would have harmed investigations -- and after digging into those examples, it appears that his explanations were, once again, incorrect. Here are his examples: In Louisiana, a known sex offender posed as a teenage girl to entice a 12-year-old boy to sneak out of his house to meet the supposed young girl. This predator, posing as a taxi driver, murdered the young boy and tried to alter and delete evidence on both his and the victim’s cell phones to cover up his crime. Both phones were instrumental in showing that the suspect enticed this child into his taxi. He was sentenced to death in April of this year. In Los Angeles, police investigated the death of a 2-year-old girl from blunt force trauma to her head. There were no witnesses. Text messages stored on her parents’ cell phones to one another and to their family members proved the mother caused this young girl’s death and that the father knew what was happening and failed to stop it. Text messages stored on these devices also proved that the defendants failed to seek medical attention for hours while their daughter convulsed in her crib. They even went so far as to paint her tiny body with blue paint—to cover her bruises—before calling 911. Confronted with this evidence, both parents pled guilty. In Kansas City, the DEA investigated a drug trafficking organization tied to heroin distribution, homicides, and robberies. The DEA obtained search warrants for several phones used by the group. Text messages found on the phones outlined the group’s distribution chain and tied the group to a supply of lethal heroin that had caused 12 overdoses—and five deaths—including several high school students. In Sacramento, a young couple and their four dogs were walking down the street at night when a car ran a red light and struck them—killing their four dogs, severing the young man’s leg, and leaving the young woman in critical condition. The driver left the scene, and the young man died days later. Using “red light cameras” near the scene of the accident, the California Highway Patrol identified and arrested a suspect and seized his smartphone. GPS data on his phone placed the suspect at the scene of the accident and revealed that he had fled California shortly thereafter. He was convicted of second-degree murder and is serving a sentence of 25 years to life. The evidence we find also helps exonerate innocent people. In Kansas, data from a cell phone was used to prove the innocence of several teens accused of rape. Without access to this phone, or the ability to recover a deleted video, several innocent young men could have been wrongly convicted. Powerful stories, right? Just imagine if the data on those phones were locked up and unavailable to law enforcement? Well, imagine-no-more, because people have been looking into these stories, and Comey's fear mongering doesn't check out. First up, The Intercept looked into these cases and their results can be summed up in the URL slug which includes "FBI Dude Dumb Dumb." In the three cases The Intercept was able to examine, cell-phone evidence had nothing to do with the identification or capture of the culprits, and encryption would not remotely have been a factor. In the most dramatic case that Comey invoked — the death of a 2-year-old Los Angeles girl — not only was cellphone data a non-issue, but records show the girl’s death could actually have been avoided had government agencies involved in overseeing her and her parents acted on the extensive record they already had before them. In another case, of a Lousiana sex offender who enticed and then killed a 12-year-old boy, the big break had nothing to do with a phone: The murderer left behind his keys and a trail of muddy footprints, and was stopped nearby after his car ran out of gas. And in the case of a Sacramento hit-and-run that killed a man and his girlfriend’s four dogs, the driver was arrested a few hours later in a traffic stop because his car was smashed up, and immediately confessed to involvement in the incident. The link provides a lot more details about each of those cases, suggesting phones had little to nothing to do with any of those stories, and if there were encryption on those phones it wouldn't have made the slightest difference. And it's not just the folks over at The Intercept recognizing this. The Associated Press called bullshit on most of the examples as well. And, remember, these were the hand-picked examples the FBI came up with after weeks of time to prepare its case for not allowing such encryption. And they don't hold up under scrutiny. During the Q&A, Comey was again challenged on these and asked for "real live examples" where encryption would be an issue and his answer did not inspire confidence that Comey has any idea what he's talking about: Rescuing someone before they’re harmed? Someone in the trunk of a car or something? I don’t think I know – yet? I’ve asked my folks just to canvas – I’ve asked our state and local partners are there some examples where this – I think I see enough, but I don’t think I’ve found that one yet. I’m not looking. Here’s the thing. When I was preparing the speech, one of the things I was inclined to talk about was — to avoid those kids of sort of ‘edge’ cases because I’m not looking to frighten people. Logic tells me there’re going to be cases just like that, but the theory of the case is the main bulk of law enforcement activity. But that said I don’t know the answer. I haven’t found one yet. In the talk, Comey also disputed the notion of a "back door," but rather claimed he wanted a "front door." We aren’t seeking a back-door approach. We want to use the front door, with clarity and transparency, and with clear guidance provided by law. We are completely comfortable with court orders and legal process—front doors that provide the evidence and information we need to investigate crime and prevent terrorist attacks. Right. So, just like the question of what's the difference between a back door and a magic golden key, Comey was asked about the difference between a front door and a back door, and his answer was... he doesn't know. When asked technical questions about the solution he was suggesting, Comey didn’t have the answers. At one point, the host, Benjamin Wittes, a senior fellow at the Brooking Institution, asked Comey to explain his “front door” distinction, to which he responded, “I don’t think I am smart enough to tell you what 'front door' means.” Yup. You're the director of the FBI and you just gave a key speech -- pushing for legislation -- which focuses on the idea of wanting a "front door" into technology, and when questioned on what the hell that means your answer is "I don't think I'm smart enough to tell you what 'front door' means"? This isn't making me feel any safer. You know what would make me feel safer? A hell of a lot more encryption. And you know who agrees? the FBI. This is from the FBI's own website for "safety tips to protect your mobile device" In case you can't read it, it says: Depending on the type of phone, the operating system may have encryption available. This can be used to protect the user’s personal data in the case of loss or theft. It also recommends passcode protecting your phone (which is how these default encryption systems now work). So, um, here we have the FBI telling people to encrypt their phones... and complaining that such things will lead to the end of the world, though it's unable to actually give an example, or even explain what its new proposal is really about. As Marcy Wheeler pointed out before the speech, this sort of clueless dichotomy seems to follow Comey around. In that 60 Minutes interview, he both talked about how dangerous the internet is, and why people need to protect themselves... and then attacked one of the most important tools for people to protect themselves. It's almost as if Comey has absolutely no idea what he's talking about. And that's because he almost certainly does not. He may understand other issues related to crime and law enforcement, but when it comes to encryption, it appears he's reading the hastily prepared script of someone else. The simple fact is that he's wrong. Strong encryption is in the public interest and not only protects people from questionable surveillance, but from bad actors as well. It's the best way to make us all safer -- much better than relying on FBI agents running around trying to snoop on phones. Thankfully, so far, the folks in Congress don't sound particularly impressed by Comey's demand for "front doors" that he's not smart enough to understand. Hopefully it stays that way.Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Deputy Matt -- the psuedonym employed by the law enforcement officer behind this op-ed -- is here to blame everyone else but he and his fellow officers for today's law enforcement-hostile climate. It all leads back to Ferguson… When we finally located the son, who is of mixed ethnicity (dad is white, mom is Hispanic), he instantly began cussing and yelling at us. He took a fighting stance and said he was not going to do anything we told him. Luckily, we were able to calm him and get him into handcuffs without any blows being thrown. We asked why he was so hostile towards us. His response? Ferguson. The cops could not be trusted because of what happened in Ferguson, Missouri. He told us that he wanted to kill all white cops because of what “they” had done to Michael Brown. From the strength of a single anecdote, a nationwide attitude is extrapolated. It's not just criminals -- who Deputy Matt fully expects to be less-than-submissive -- it's everybody. Sadly, this feeling has not only infected the normal criminal element that I expect that behavior from, but even seems to be effecting [sic] middle class families as well. As goes the middle class, so goes the country. Deputy Matt could learn something from reactions to Ferguson. He could. But he finds it easier to blame everyone else for the unpleasantness of his job. Cops are still the wonderful, self-sacrificing people they've always been, he says. It's the American public that's gone downhill. The same people who we used to count on for support, the good, law abiding general public, are now reluctant to trust us. We, the local cops they have seen and contacted in the past, have not changed. We have done nothing different. The public is wrong. And why is the public wrong? Because it's too stupid to avoid being led by the nose. What has changed is the public’s perception of us, created by the reckless reporting by nearly every news outlet very early after the shooting of Michael Brown. The rush to be first with the story over the desire to be correct is having dire consequences nationwide, and quite honestly, has made my job more difficult and more dangerous. While I have my own issues with mainstream media and its shallow coverage of certain issues, Deputy Matt's problem seems to be that this one time, the slant briefly went the other direction. For the most part, the mainstream doesn't cover incidents like these. And when it does, it follows safe narratives (rioters!) and grants way too much deference to statements made by law enforcement/government officials. Compared to the way those outside the mainstream cover incidents like officer-involved shootings, Deputy Matt would be better off not biting the hand that (more often than not) feeds him. Going beyond the thinly-veiled insults (people are stupid and they get their information from sensationalistic sources) to the heart of Deputy Matt's argument ('It's everyone else!'), I'm inclined to agree with the general push of his article: cops haven't changed. To Deputy Matt, this signifies the blame should lie with the public. To anyone who's been paying attention over the past several years, the problem is that cops haven't changed. Many still believe they can operate without scrutiny, oversight or accountability. The omnipresence of recording devices (operated by both the public and officers themselves) doesn't prevent misconduct, brutality or unjustified killings. It just makes it more difficult to cover up. It also (very occasionally) forces law enforcement officials to hold officers accountable, but these are sadly still the exception rather than the rule. Putting more eyes on officer behavior and tactics -- whether it's by bloggers and journalists dedicated to this field or by the thousands of hours of amateur footage hosted at YouTube -- has resulted in a shift in the public's perception. But Deputy Matt is wrong to blame it on the public… or mass media… or Ferguson. The problem is Deputy Matt and the officers he's decided to speak for. They haven't changed. The cop who always laid a few extra licks on an "uncooperative" arrestee still does so… only there's a good chance the punches/baton swings/taser bursts have been captured on "tape." The cop who always performed a little extracurricular searching during routine traffic stops continues to do so… only now he's being served with civil rights lawsuits and the dashcam recording of his illegal efforts is splashed all over the news thanks to the plaintiff's lawyer. If the public no longer implicitly trusts the police to be the "good guys," the problem isn't the public. It's the cops who take money from citizens just because local laws say they can. It's the multiple agencies who feel the only way to handle the drug problem is as violently as possible. It's cops who shoot people's pets, rather than allow the animals' owners to restrain them. It's officers who constantly "fear for their lives" endangering the lives of citizens around them with careless use of deadly force. This is what's changed the public's perception of law enforcement. Sure, some of it may be based on bad info and careless hyperbole, but a majority of the damage done to the reputation of law enforcement has been inflicted by the officers themselves. Ferguson may have (slightly) altered the mainstream media's approach to officer-involved shootings. The more apparent side effect has been a heightened awareness of the immense divide between the general public and those charged with policing them. In between, there's a certain amount of hashtag activism and coat tail riders -- some of which culminates in a teen arrestee miles from ground zero name-dropping Ferguson as an excuse for his anti-cop aggression. But Deputy Matt's complaint ignores even the slightest, most minimal bit of culpability on behalf of his fellow officers. This massive blind spot prevents him from seeing the truth directly in front of him: if the public -- generally-speaking -- no longer trusts police officers, it's because -- generally-speaking -- police officers aren't worthy of the public's trust. Permalink | Comments | Email This Story

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posted 12 days ago on techdirt
Earlier this month, we wrote about the DEA's decision to set up a fake profile of a woman who was charged in a case related to drug dealing. The DEA argued that the woman's "consent" to using evidence from her seized cell phone in their investigation included allowing them to (without telling her) set up a Facebook profile in her name, post pictures of hers and other children (from the phone) and "friend" people that the woman knew in real life, in an effort to get more evidence in the drug case. After the story got attention, thanks to a Buzzfeed article, the DOJ said it will "review the practice" of creating such fake Facebook profiles (implying this isn't the only one). Facebook itself has now stepped into the fracas, noting that the DEA's actions are a "knowing and serious breach" of the site's policies, and that those policies still apply to the government. Most fundamentally, the DEA's actions threaten the integrity of our community. Facebook strives to maintain a safe, trusted environment where people can engage in authentic interactions with the people they know and meet in real life. Using Facebook to impersonate others abuses that trust and makes people feel less safe and secure when using our service. Indeed, as we have observed at Facebook, such deceptive actions are often used to further harmful conduct, such as trolling, hate speech, scams, bullying, and even domestic violence. This impact is markedly different from undercover investigations conducted in the "real" world. It further asks that the DEA "immediately confirm that it has ceased all activities on Facebook that involve the impersonation of others or that violate our terms and policies." Of course, I wonder if it would even be possible for Facebook to figure out when the DEA sets up a fake profile, but it appears that this tactic by the DEA may not be usable going forward. You can read the full letter below or download it here (pdf).Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
The voting was somewhat slow this week, especially on the funny side, but that's no reason to ignore the great comments that rose to the top. After we noted that, despite the positive trend of increased exposure of police abuse, there doesn't seem to be any decrease in the abuse itself, That One Guy won first place on the insightful side by exploring the big reason for that: They remain 'oblivious' to it for the simple reason that it doesn't matter. Sure they got recorded macing someone for talking back, or beating someone, or robbing someone. What happens when that recording goes public? Nothing. They aren't fired, they aren't shifted to a desk-job to account for their inability to act like an adult around other people, any 'investigation' inevitably clears them, and if that doesn't work their union will almost always fight to get their job back, no matter what they were charged with. They don't care because even when people record their abuses of authority and criminal actions, they are never held accountable for them. Once they see their own paychecks docked, their own pensions reduced to pay out settlement funds... Once they start getting fired or demoted for their actions... Once they are held accountable and charged with the crimes they commit under the 'authority' of their badge... Only then then will care, but not a second before. Meanwhile, federal law enforcement has apparently been scrutinizing its applicants' downloading habits in recorded job interviews. This spurred Michael to win second place for insightful with a simple question: So they can record interviews, but they are unreliable for interrogations? For editor's choice on the insightful side, we start with the shortest and simplest of many responses to the ludicrous notion that questioning the government's claims about Kim Dotcom, while giving Dotcom the benefit of the doubt in his statements, shows a "pro-piracy bias". RD said what everyone with a basic sense of justice was thinking: Wrong. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a *pro due process* bias. This week, we also criticized (with some reluctance, and a great hope that he'll rethink his opinion) Neil deGrasse Tyson for some of his views on technology, startups and innovation. Hij expanded on our point, noting that Tyson's comments display exactly the kind of shortsightedness that scientists so often face: What I find sad about this is that there is no shortage of people who look at what physicists and mathematicians do and use this same argument. I can easily go to the local uni, pick out a random physicist and make fun of his work saying it has no bearing on the things that matter to me. Dr. Tyson has been tireless in trying to combat this argument, and now here he is using it on someone else. He should be celebrating everybody who creates new ideas no matter how small or shallow. The problems start when we start pointing at "the other" and denigrating their work. Dr. Tyson of all people show understand this. With that, we head over to the funny side, where are top two comments are neck-in-neck, separated by only a single vote. In first place we've got beech, with his proposed reason for USTR secrecy surrounding the TPP agreement: Uhh, is it because if the terrorists find out we'll all be dead? That seems to be the usual reason. Just barely in second place we've got ChurchHatesTucker, who balked at how relaxed we were about the release of Keith Alexander's financial disclosure documents: Oh, sure. Today it's Alexander's self serving investments, but tomorrow it'll be the US' nucular launch codes. And then where will you be, hippy? For editor's choice on the funny side, we start with a comment about Aereo — or rather, about the judge who asked them "just as a matter of finality, how many bites at the apple does one get?". One anonymous commenter seemed just as confused by this question as we were, and attempted to clarify: Judge, are you saying that you only take one bite of an apple and throw the rest out? That seems like a huge waste of apples. And finally, we've got a comment that I enjoyed primarily because I'm always happy to know that people are aware of how broken the premise of Lucy is. After we took a look at ways of harnessing energy from the sun in one of our DailyDirt posts, Zonker was inspired: For some reason this makes me think of taking the (flawed) concept of the recent movie "Lucy" and applying it to the plant kingdom: what happens when plants achieve 100% energy capture from sunlight? Come on Hollywood, let's make this happen. ...Actually, I think they pretty much did: Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Five Years Ago: We were still wondering about the attempts to insert the morality question into copyright, noting that it is almost always used to "cover up the inability to justify the expansion of rights on economic grounds." In a somewhat related post, we wondered what kind of industry sets up a group to specifically oppose what consumers want -- and the answer was: Hollywood. Another such group is the BSA, and it was finally having some of its nastier practices revealed. Sticking to the copyright question, we wondered if libraries really needed licenses to lend out ebooks, since they don't need permission to lend out regular books. ASCAP had a judge disabuse it of the notion that a ringtone is a public performance while a guy who uploaded his own book to Google and clicked the wrong button (making it available) then sued Google for infringement. The Associated Press and News Corp. were demanding money from Google (of course) along with other "aggregators" though, News Corp. apparently forgot it had its own aggregators who didn't appear to pay up any money at all. Oops. NY's Department of Labor reduced the unemployment benefits of an unemployed blogger because he put AdSense on his blog (making around $1/day), claiming that it was unrevealed employment. This was back in the day when people were still insisting that YouTube could never be profitable, but at least things like UK's Channel 4 were agreeing to put full shows on the site. In a surprise move, EMI actually did a licensing deal with Grooveshark, which (of course) later went away. A bunch of new music streaming services were hitting the market, and we didn't expect much from Mog or Rdio. Rdio's still around, but Mog got bought by Beats which got bought by Apple. Indian officials wanted to block Skype while Finland was declaring broadband a human right. We also had our first post about the ridiculous Jenzabar case in which a former Tiananmen Square activist turned entrepreneur was abusing trademark law to stifle a documentary that made her look bad. Finally, five years ago, we disagreed with something Larry Lessig wrote -- which doesn't happen all that often around here. Ten Years Ago: John Ashcroft's Justice Department was eager to be Hollywood's private police force. But, in an important decision, the Supreme Court decided not to review an important ruling that said the RIAA couldn't demand names from ISPs without first filing a lawsuit (copyright trolls keep "rediscovering" this supposed "loophole" without checking out the case law on it). Starbucks thought it was going to get into the music business while Amazon thought it was going to rent DVDs (a la Netflix). Google also released its desktop search offering, which never took off. Remember the OQO modular computer system? Probably not. It was insanely hyped varporware that people were talking about for years, but then it finally came out ten years ago and was overpriced and not very impressive. Applied Digital, a company famous for overstating claims about its "implantable" VeriChip was up to its usual games. Diebold e-voting machines had their usual problems. The FCC was in the process of killing off line sharing and people were realizing that all the doom and gloom predictions about how the phone "do not call" list would kill the economy were not even close to true. Fifteen Years Ago: We were getting close to Y2K and suggesting that it wasn't going to be a big deal (we were right on that one!). Bertelsmann and Xerox started experimenting with an early print on demand books offering, while we were excited that e-paper was finally coming. On the patent front, noted patent maximalist Priceline was suing Microsoft for patent infringement, while Visa had to settle a lawsuit with a woman who gambled away $70,000 online and blamed Visas for not stopping her. While it obviously didn't apply to that woman, studies were showing that people were still afraid to use credit cards online. Oh yeah. Also, 15 years ago this week, we wrote a short post about how people kept stealing other people's AOL passwords to break into their accounts. The story itself isn't noteworthy. But for the next fifteen years -- yes, right up until now -- idiotic people doing searches on "how to steal AOL passwords" somehow ended up on that page and would post details of the accounts whose passwords they wanted. Twenty Years Ago: We weren't yet publishing, but the first Netscape Navigator was released, sparking part of the revolution that led us to start Techdirt just a few years later. I still remember when Netscape came out. I had been a loyal user of the Mosaic browser, and so I rushed to download Netscape. But, since I had a pokey 2400 baud dialup modem in my dorm room at college, I had to make sure my roommate was okay with me leaving the phone line tied up all night to download the "massive" Netscape file (which I think was a massive 4 megs). If I remember correctly, the phone hung up in the middle of the first night and I had to wait until the next night to get the whole file down.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
As you may be aware, I'm a big believer in standing desks, and we've written about standing desk crowdfunding projects in previous awesome stuff post. However, my other obsession concerning working is the ability to have a fully functional "office in a bag" that I can take on the go. I may write about that one of these days in an awesome stuff post, but I have a full setup with a second monitor, portable ergonomic keyboard and more that I take on the go with me -- but I haven't yet found a workable portable standing desk. I'm left at the mercy of wherever I might be at the time, if there's a surface high enough to stand at. The most appealing has been the Ninja Standing desk, which has some really cool features, but is still pretty big when packed up. The more recent StorkStand was pretty creative in that it makes use of chair backs (and we'd mentioned it in the past too, but, again it was not really that portable). However, for whatever reason, there are a bunch of new attempts at offering portable standing desks on Kickstarter -- so this we'll profile them. The StandStand Disclaimer: the creator of this project sent a sample one to us to check out. The StandStand portable standing desk focuses on pure simplicity. Three pieces of lightweight wood that slot together to make a compact standing desk, and which can then be stacked up to be about the size of a laptop. Smaller than nearly all other options I've seen, and definitely meets the bill if you just work off of a laptop and want to be able to do standing on the go. Having played around with it, it's a little less stable than I would probably like, but not in any serious way. Of all the options I've seen, definitely the most portable, but there are tradeoffs in terms of what it's useful for compared to other options. ZentDesk The ZentDesk looks pretty awesome, actually. Basically it gives you pretty much all of the super useful features of a standing desk, and even comes with monitor stands (which would be very helpful for my setup). The downsides, though, are that it's huge and expensive. These appear to be the basic tradeoffs: simple and small vs. too big but with all the bells and whistles. Refold's Portable Cardboard Standing Desk The name of the Refold Portable Cardboard Standing Desk is pretty accurate. It's a foldable cardboard standing desk. When folded up it has a nice handle and you can take it along. But even folded up, it's huge. Bigger than the ZentDesk. You could maybe take it down to the corner coffee shop, but even then you'd need to find a place to put it, rather than a table to put it on, as with the other options. In the end, none of these portable standing desks truly meet the need that I'm looking for -- and it may just be because it's impossible to have the features I want in a package the size I want. But, it won't mean I won't keep looking...Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
As you may be aware, I'm a big believer in standing desks, and we've written about standing desk crowdfunding projects in previous awesome stuff post. However, my other obsession concerning working is the ability to have a fully functional "office in a bag" that I can take on the go. I may write about that one of these days in an awesome stuff post, but I have a full setup with a second monitor, portable ergonomic keyboard and more that I take on the go with me -- but I haven't yet found a workable portable standing desk. I'm left at the mercy of wherever I might be at the time, if there's a surface high enough to stand at. The most appealing has been the Ninja Standing desk, which has some really cool features, but is still pretty big when packed up. The more recent StorkStand was pretty creative in that it makes use of chair backs (and we'd mentioned it in the past too, but, again it was not really that portable). However, for whatever reason, there are a bunch of new attempts at offering portable standing desks on Kickstarter -- so this we'll profile them. The StandStand Disclaimer: the creator of this project sent a sample one to us to check out. The StandStand portable standing desk focuses on pure simplicity. Three pieces of lightweight wood that slot together to make a compact standing desk, and which can then be stacked up to be about the size of a laptop. Smaller than nearly all other options I've seen, and definitely meets the bill if you just work off of a laptop and want to be able to do standing on the go. Having played around with it, it's a little less stable than I would probably like, but not in any serious way. Of all the options I've seen, definitely the most portable, but there are tradeoffs in terms of what it's useful for compared to other options. ZentDesk The ZentDesk looks pretty awesome, actually. Basically it gives you pretty much all of the super useful features of a standing desk, and even comes with monitor stands (which would be very helpful for my setup). The downsides, though, are that it's huge and expensive. These appear to be the basic tradeoffs: simple and small vs. too big but with all the bells and whistles. Refold's Portable Cardboard Standing Desk The name of the Refold Portable Cardboard Standing Desk is pretty accurate. It's a foldable cardboard standing desk. When folded up it has a nice handle and you can take it along. But even folded up, it's huge. Bigger than the ZentDesk. You could maybe take it down to the corner coffee shop, but even then you'd need to find a place to put it, rather than a table to put it on, as with the other options. In the end, none of these portable standing desks truly meet the need that I'm looking for -- and it may just be because it's impossible to have the features I want in a package the size I want. But, it won't mean I won't keep looking...Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Dave Winer has a short, but important post discussing how a new round of entrepreneurs (and VCs) are too focused on locking in users, rather than making use of open standards. They worry that, if they provide open access to the data their systems accumulate, no one will come to their website, therefore no one will be able to enjoy their lock-in, thereby justifying their multi-million dollar valuations. Why should we care? Problem isn't that they're young, the problem is they have a too-thin value-add to support the kind of investment they've taken on. Since VCs are now investing in news startups, they are really testing the value of lock-in. I wonder how many of the new crop of VCs understand how this has shaken out in the past. I remember when RSS was just getting started, there were all kinds of fancy content management APIs, some were even in the process of being standardized. They all very quickly evaporated when RSS took hold. The difference between a four-screen spec and a bookshelf. Because you need all that complexity to hide all the lock-in. There was no place for lock-in in RSS. It was too obvious how it worked. Going for proprietary solutions that lock users in is a short-term strategy from a company afraid of its own ability to innovate. Those who actually know they can continue to innovate long term don't need to worry about locking people in, because people will want to stay. Furthermore, by keeping things open, you enable a wider ecosystem to grow up around things, providing even more value (much of it you don't have to build yourself). It's the same old story around open access, open source and other similar concepts. It's protectionism vs. free markets. It's copyright vs. creative commons. Openness breeds innovations and creativity -- and that's fearful for those who don't think they can compete. They need barriers, hurdles and tollbooths to try to keep people from leaving. It's short term thinking. Winer blames venture capitalists for this line of thinking: I think the VCs do a disservice to young technologists. When I was young, I would have said no thanks to lock-in. I'm not going to be so dishonest as to create tools that offer users no choice. I want to win because my stuff is deep and powerful and performs fantastically and has the features users want. Why? I chose my profession because I love what I do. There are lots of ways to make money. I'm not looking for scams and shortcuts. To be fair, I don't think all venture capitalists push for lock-in. There are many who do, but there are also many who recognize the value of openness and what it means for the long term and building truly sustainable businesses. We'll see what happens. The long term is a bitch, and it has a tendency to plow under get-rich-quick schemes and I know you think it's idealistic but evolution only builds on open formats and protocols. That's how technology layers. It's true some patents hold, and some lock-in gets built on. Look at PDF for example. But there's a reason HTML took us places PDF never could. The ability of anyone to do anything they wanted to, without having their API key revoked. That's a big enabler of creativity, to use terminology VCs understand. To some extent, I think this goes back to the pernicious myth of the "sustainable competitive advantage." This is a line you hear all too often from venture capitalists, and as I've said for over a decade, it's misleading in the extreme. Really successful businesses have a series of fleeting competitive advantages. The idea of a "sustainable competitive advantage" is a recipe for stagnation and resting on your laurels rather than ongoing innovation. Recognizing that a competitive advantage is always fleeting and competitors are always working hard to catch up is a recipe for continuous innovation and improvement. It's the same thing with lock-in vs. openness. Building for lock-in leads to stagnation and resting on one's laurels. You got them in, and then you just look to set up tollbooths. Building on top of openness allows you to continue to innovate and to better serve the people who love your services and it keeps them there because they're happy, not because it's too difficult to leave. Proprietary solutions and lock-in can and do work in the short term, but it's a dangerous long-term solution that often leads to less innovation. Building on openness creates greater opportunity, greater innovation and better overall solutions.Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
The Roca Labs story just keeps getting weirder and weirder. You can click that link to go back through the earlier stories, since I won't rehash them all here, but the latest is that Don Juravin, the "vice president" of Roca Labs who filed an earlier affidavit in the case (which caused some problems with actor Alfonso Ribiero's lawyers), has apparently decided to go directly after Marc Randazza, the lawyer representing Consumer Opinion Corp. (better known as PissedConsumer.com) in the lawsuit that Roca filed against that company. Juravin has put out a press release accusing Randazza of bribing a Nevada politician in order to get Nevada to pass an anti-SLAPP law (thanks to Adam Steinbaugh for the pointer). You kind of have to read the whole thing to get a feel for it. The press release is clearly designed to attack Randazza's (somewhat well known) reputation for defending the First Amendment rights of folks who work in the adult entertainment industry. It is said that politics make strange bedfellows; so what could be stranger than Democratic State Senator Justin Jones, a Mormon with family values, and Marc Randazza, a porn attorney and a speech advocate for pedophiles whose client list includes Phillip Greaves author of "The Pedophile's Guide”, Kink.com, Bang Bus and Milf Hunter. So what brings these two opposite personalities together: money and politics. So what's the specific details of the supposed "bribery"? Randazza recently wrote a blog post -- since taken down -- talking about how he had met Justin Jones and promised to support his campaign if he'd support an anti-SLAPP law: "Two years ago, my partner, Ron Green, introduced me to a guy. That guy’s name was Justin Jones. Justin was running for State Senate in Nevada. … I shook his hand and said “if you will sponsor an Anti-SLAPP bill, I’ll vote for you, and I’ll contribute to your campaign.” He promised me that he would do so. Within days of taking office, he made good on his promise. Today, Nevada has the strongest Anti-SLAPP law in the country" Now, this is perhaps not a particularly wise thing to say either in private or in public concerning a politician. It's possible that the statement on the blog is exaggerated as well. But to Juravin -- who amusingly describes himself as a "concerned public citizen" who "believes in the integrity of our electoral system and that no one person should wield undue influence over government officials" -- it's apparently a sign of our failing republic. Uh huh. Juravin -- whose company it should be noted has threatened us with what I would argue would be a SLAPP lawsuit -- also claims that the reason Randazza likes anti-SLAPP laws is because he can make money with them, and not because, you know, free speech is a good thing and thuggishly trying to shut people up is a bad thing. Mr. Randazza is a proponent of an Anti-SLAPP law (pornography lawyers generally want to be able to say and show anything), and he has brought numerous SLAPP lawsuits and generated tens of thousands of dollars in revenue for himself and his law firm. A stronger Nevada Anti-SLAPP law means more money for Randazza. Either way, it will be interesting to see whether the "integrity complaint" Juravin filed with the Nevada Attorney General actually goes anywhere. It does seem worth noting, of course, that many states have been passing anti-SLAPP laws (because they're a good thing, and we really should have a federal anti-SLAPP law) and that the Nevada one passed unanimously without a single negative vote (there was one "excused" -- and everyone else voted in favor). That certainly makes Juravin's statement that he "speculate[s]" that "the law would not have passed" if the Nevada legislature were aware of Randazza's promise to contribute to Jones' campaign. Again, making any sort of statement of "if you support this bill then I'll give you money" is not a good idea (even as it's often done implicitly). So, it's reasonable to at least question Randazza's statements on the matter, but considering it "bribery" seems like a pretty big stretch -- and Juravin is far from an unbiased party. At the very least, at the end, Juravin does admit that Roca Labs is in litigation with a company represented by Randazza, but either way, it seems like playing dirty. It appears to be similar to Roca Labs' behavior throughout this entire effort, basically attack or threaten almost everyone calling the company out.Permalink | Comments | Email This Story

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For years, there has been concern over using antibiotics in our food supply, feeding animals "sub-therapeutic" medicines that make them grow bigger. The chicken industry seems to be shifting slowly towards removing certain antibiotics from its farms, but are consumers really aware of what the progress is (and isn't)? The Transatlantic Trade and Investment Partnership (TTIP) covers a lot of areas, and one topic that seems to gross out our European neighbors is our chlorinated chicken. While Europeans have painstakingly reduced the incidence of salmonella from their chicken farms with breeding and testing procedures, US growers just give our chickens a bath in chlorinated water tanks. [url] The antibiotics tylosin and virginiamycin are used in chicken feed to help the birds gain weight and grow more efficiently. The problem is that these antibiotics are also "critically important" in human medicine, and the uncontrolled use of these drugs in our food chain could endanger the effectiveness of medicines and create superbugs for us. [url] Purdue Foods now raises an antibiotic-free chicken (well, no antibiotics that are used in human medicine, at least), claiming to be the first to do so for all of its hatcheries. Other chicken growers (eg. Tyson) have been testing antibiotic-free chickens for several years as well, with chickens raised with different kinds of antibiotic-like substances (aka ionophores). Purdue's chickens may also be treated with ionophores, but US farmers are trying to move closer and closer towards an antibiotic-free process. [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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A few years ago we wrote about an "obscure" but vitally important copyright/fair use case involving Georgia State University. The school was being sued by some publishers (though the lawsuit was financed by the Copyright Clearance Center -- a collection group that collects royalties on these sorts of things) because professors had put certain readings online for download by students as "e-reserves." The big question was how were such things viewed under copyright law. Did it hearken back to a series of lawsuits in the 1990s about "coursepacks" -- which were found to be infringing because they were reproduced by for-profit copy shops) or was it just traditional fair use. Remember, the actual law (17 USC 107) specifically says that "multiple copies for classroom use" is a form of fair use. More than two years ago, a ruling came out and it was massive. In 350 pages Judge Orinda Evans did a four factors fair use analysis on each and every work named in the lawsuit, eventually declaring the majority of them to be fair use (5 were found to be infringing, others were dumped for not having shown that the publishers held the copyright or for de minimis use). The whole ruling was mostly good, but still fairly messy, and had some weird made up rules in there, such as claiming that it's fair use if the reserve was less than 10% of the book. As we noted, the judge seemed to get "excessively formulaic" in making the fair use call. While that might be expected having to go through so many separate analyses, it's not how fair use is supposed to work. Now, the 11th Circuit Appeals court has basically overturned the ruling on fair use, in a ruling that comes in at only 129 pages. But the reasoning isn't that bad. It calls out the same problems that worried us when the original ruling came out. The main concern here is that Judge Evans "gave each of the four factors equal weight" when that's not how the factors are supposed to work. They're supposed to be the things that you look at before making a determination on the use as a whole. Furthermore, the appeals court seemed quite reasonably concerned about Judge Evans' formulaic conclusions. The court further rejects the publishers' misplaced argument about "media neutrality" as a reason why the e-reserves should be treated just like coursepacks. That's good. In the end, the appeals court looks at the four factors, claiming that the use is not "transformative" but that it doesn't really matter, because the use here is for education. There's an awful lot of "on the one hand/on the other hand" reasoning that almost makes it feel like the judges on the panel kept going back and forth until finally deciding when to stop flipping a coin. Where it finally lands, goes back to that whole "multiple copies for classroom use" tidbit in the damn law itself. And thus: In sum, Congress devoted extensive effort to ensure that fair use would allow for educational copying under the proper circumstances and was sufficiently determined to achieve this goal that it amended the text of the statute at the eleventh hour in order to expressly state it. Furthermore, as described above, allowing latitude for educational fair use promotes the goals of copyright. Thus, we are persuaded that, despite the recent focus on transformativeness under the first factor, use for teaching purposes by a nonprofit, educational institution such as Defendants’ favors a finding of fair use under the first factor, despite the nontransformative nature of the use. The court says the district court got the 2nd factor wrong (nature of the copyrighted work) by not really looking at each instance, but assuming they were all in favor of fair use. But also admits that the 2nd factor really isn't a big deal in this particular case (again getting at the mistake of trying to weigh all four factors evenly). The 3rd factor (amount of the work) calls out Judge Evans for that weird 10% formulaic calculation. Here, the District Court found that the third factor favored fair use in instances where Defendants copied no more than 10 percent of a work, or one chapter in case of a book with ten or more chapters.... The District Court’s blanket 10 percent-or-one-chapter benchmark was improper. The fair use analysis must be performed on a case-bycase/ work-by-work basis. Campbell, 510 U.S. at 577, 114 S. Ct. at 1170; see supra discussion accompanying note 20. We must avoid “hard evidentiary presumption[s] . . . and ‘eschew[] a rigid, bright-line approach to fair use.’” Campbell, 510 U.S. at 584–85, 114 S. Ct. at 1174 (quoting Sony, 464 U.S. at 449 n. 31, 104 S. Ct. at 792 n. 31). By holding that the third factor favored fair use whenever the amount of copying fell within a 10 percent-or-one-chapter baseline, the District Court abdicated its duty to analyze the third factor for each instance of alleged infringement individually. While it can be worrisome to see a fair use win sent back, in this case, it seems to be mostly for the right reasons. That formulaic 10% rule was a strange one and a point that certainly concerned us in the original ruling. Here, the appeals court is pointing out that it's just the wrong way to do fair use analysis. On the fourth factor, concerning the impact on the market, the court appears well aware of the simple trick of just saying "well, there was a license available, and thus the use harmed the market" noting that this is circular reasoning. As previously explained, licensing poses a particular threat that the fair use analysis will become circular, and Plaintiffs may not head off a defense of fair use by complaining that every potential licensing opportunity represents a potential market for purposes of the fourth fair use factor. This follows a lengthy back and forth discussion on whether or not there were licenses available, what impact that has on the fourth factor and which party has the burden here. In the end, the court found that the District Court was correct in its initial analysis of the state of licenses, but failed to take into account the fact that the use was transformative in judging the fourth factor. Finally, the court is also troubled that the District Court separately looked at the fact that copyright law is supposed to "promote the dissemination of knowledge" saying that it's fine to recognize that, but it should be considered within the first fair use factor, rather than as a separate issue altogether. I'm not sure I agree with that directly, since I'd argue it not only goes way beyond the first factor but (again) is in the law itself outside of the factor. Still, it's not a horrible point. There is one other slightly troubling part in the ruling, which is that the court seems to suggest that fair use is "an implied license." In a sense, the grant to an author of copyright in a work is predicated upon a reciprocal grant to the public by the work’s author of an implied license for fair use of the work. But that's just wrong. The law itself says "the fair use of a copyrighted work... is not an infringement of copyright." That doesn't mean that it's an implied license. It means that no license is needed. The idea that it's an implied license, unfortunately, takes us back to this idea that every use "must be licensed" which is simply wrong. Still, that's not a huge part of the ruling, but a little pet peeve. Given all that, the case has been sent back to the lower court to reconsider and to correct these errors. As noted, it was good that so much was considered fair use in the original ruling, but a bit troubling on the reasons. Given these new instructions, it seems like the lower court now has a chance to come to the right answer for the right reasons and that's always going to be a better result. There is a "concurring" opinion by Judge Vinson, which is a bit on the wacky side, insisting that, despite the fact that fair use has been a part of the actual statute since the Copyright Act of 1976, it doesn't matter because it was originally common law and thus "fair use analysis does not require conventional statutory interpretation." Then he suggests the court "step back a little" and look at the use and determine if it's fair use or not -- and he's pretty damn sure it's not. Eh, whatever. Let's see what the lower court has to say, and then the inevitable return on appeal.Permalink | Comments | Email This Story

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There's no doubt that even closely related or allied countries treat the issue of free speech quite differently. Perhaps our most natural European cultural equivalent, Britain, has laws that I often find either confusing or silly, with a particular eye towards their long-panned libel laws. But even correcting for cultural differences, I'm having a real hard time figuring out how a UK court can issue an injunction barring the publishing of an author's recounting of his own personal history with sexual abuse at his ex-wife's request. You'll have to forgive the vagueness here, because there are simply no names being discussed on the matter due to the ongoing litigation. A British performing artist has been forced to shelve a book based on his experiences of childhood sexual abuse after his ex-wife obtained an injunction to prevent their young son from reading it. In a case that is alarming freedom of speech campaigners and which publishers say is deeply disturbing, the court of appeal has ordered that the artist cannot publish key sections of the book until the issue has been decided at trial. However, his ex-wife’s lawyers dispute claims that the case could set a precedent undermining the rights of other authors, arguing that it is concerned only with the rights of one child, who has a number of health problems, who they say would suffer catastrophic psychological distress were he to read parts of his father’s work. Let me flesh this out for you a bit. A well-known artist in the UK is publishing a memoir, including sections that deal with the sexual abuse he suffered as a child. His ex-wife obtained the injunction on publishing that factual account of his life because she believes it will harm, by her lawyer's own admission, a single child the two had together. That child is suffering a wide range of health problems, including Asperger's Syndrome, and the ex-wife is suggesting that reading the father's account would cause further harm. All of this, by the way, relies on a Victorian-era case the dealt with the intentional psychological harm some guy perpetrated on a woman in a bar by playing a practical joke on her. Seriously, I'm not making that crap up. To be clear, the injunction is temporary, but the alarming part is that the court seems to be staying the publication in order to ask an incomplete question. While accepting that there was a public interest in the book being published, the court granted a temporary injunction and ruled that the question of whether the boy’s rights should take priority over those of his father should be decided at a full trial. The problem here is that the court shouldn't be tossing that public interest out so easily. Imagine, if you will, a court system that disallows factual information to be revealed simply because someone may find it unpleasant. In this particular case, we have a child with medical issues to consider, a potentially sympathetic "victim", but it need not be so, based on the law if this case sets the wrong precedent. You might simply see young children used as excuses to keep controversial information from ever seeing the light of day. Add on top of that the concept of keeping a victim of sexual abuse from being able to do as he pleases with that information and we're suddenly diving into the arena in which the government is abusing him all over again. Not overtly, of course, but if intimidating homosexuals into staying in the closet is abuse, and it is, the same should be said of abuse-victims being prevented from telling their factual stories. Above and beyond all that, the parents could have tried to reach an agreement to simply not allow their child to read the book until a certain age. Instead, the mysterious ex-wife is robbing the public of a piece of literature in order to protect her son from being parented. Hey, my UK peeps: either you have free speech or you don't. I know you don't have our Constitution, but if the status of speech is such that you can't write about your own lives, you may have a problem. Permalink | Comments | Email This Story

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Google has come out with the latest version of its "How Google Fights Piracy" report (pdf link), going to great lengths to show how the company goes above and beyond what is required by law to try to drive people to authorized copies of content while also increasing opportunities for content creators to monetize their own content. There really aren't too many surprises in the report -- it just looks like an extension of what they've said in the past. The company is apparently about to roll out an update to its program that "downranks" certain sites based on how many DMCA notices it gets -- something that's been a huge point of contention from the RIAA and MPAA. In effect Google is basically saying to the major music and movie companies: you guys still haven't figured out how to optimize your content for search engines (like nearly everyone else online) so, fuck it, we'll do it for you if you'll just stop these ridiculous accusations. Of course, it's unlikely to work. Just this week James Murdoch insisted, incorrectly, that search engines love piracy because it brings them revenue. This has never made any sense at all, but it's a myth that flows through the legacy entertainment industry. How Google actually makes any money from those links is never explained, because there isn't an answer. And the question of why the industry doesn't do a better job getting its own content more highly ranked is ignored as well. And, of course, there's a real risk that by strengthening the "signalling" power of DMCA notices, what Google is really doing is giving the legacy players a tool for search engine "de-optimization", so that rather than improving their own offerings, they now have every incentive in the world to just file a bunch of DMCA notices against sites they don't like. This is why there's reasonable fear from many that this new move by Google will actually lead to an increase in bogus DMCA notices that result in legitimate content being censored. But, here's the thing: as we said when Google first came out with this report, it will never be enough for the legacy guys in Hollywood. That's because they incorrectly blame Google for their own inability to adapt to the changing market. They blame their diminishing revenue on Google, and even as Google makes it harder and harder to find unauthorized content, that revenue isn't going to come back... so they'll still blame Google. But Google was never the problem. The legacy entertainment industry and its political supporters will continue to point to search results that don't exist and search terms that are never used as some sort of "proof" because that's what they do. Rather than adapt, they really just want Google to do things for them. And for whatever reason, Google is doing more and more... and it's unlikely to ever please the likes of James Murdoch, because Google "not doing things" was never the real problem.Permalink | Comments | Email This Story

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A Georgia appeals court has said that parents of a 7th grader can be held liable for what their son posted on Facebook. At issue is a Facebook post where the son created a fake Facebook profile of a classmate of his, posting distorted images of her to make her look fat (ah, junior high schoolers...) and then including "profane and sexually explicit comments on the page depicting her as racist and promiscuous." Alerted to this, the kid's school suspended him, and his parents grounded him. However, the Facebook page stayed up for 11 months. The parents of the girl then sued the parents of the boy, claiming that they had "breached a duty to supervise their child's use of a computer and an Internet account" and, further, that they had "breached a duty to remove defamatory content existing on their property." The court rejected that second argument, but found the first argument at least reasonable enough to proceed to a jury. Part of the issue is that, after finding out about the fake page, the boy's parents, beyond grounding him, didn't look into what the page was, and where it was. The court argues that this could be negligent, because having been informed of the problematic page their son created, they may have had a responsibility to then monitor that page. In this case, it is undisputed that Dustin used a computer and access to an Internet account improperly, in a way likely to cause harm, and with malicious intent. The Ahearns contend that they had no reason to anticipate that Dustin would engage in that conduct until after he had done so, when they received notice from the school that he had been disciplined for creating the unauthorized Facebook profile. Based on this, they contend that they cannot be held liable for negligently supervising Dustin’s use of the computer and Internet account. The Ahearns’ argument does not take into account that, as Dustin’s parents, they continued to be responsible for supervising Dustin’s use of the computer and Internet after learning that he had created the unauthorized Facebook profile. While it may be true that Alex was harmed, and the tort of defamation had accrued, when even one person viewed the false and offensive postings, it does not follow that the Athearns’ parental duty of reasonable supervision ended with the first publication. But that seems problematic on any number of levels. There is no indication that the boy continued to post to the page after being disciplined for it. So there wasn't any issue with the parents' ongoing supervision of his computer and internet usage. The idea that they could retroactively be held liable because once they found out about it they only punished him and didn't go further to find and delete the page he created seems awfully troubling. And that's before even getting to the issue of why the liability should be put on the parents anyway. There's this myth out there that parents should supervise any and all computer/internet usage. Not only is that impossible, it's also a bad idea. Yes, parents should help kids learn to use the internet, including some early supervision, but part of learning to do something is learning to do it on your own. That means teaching them about risks and how to deal with them, and encouraging them to ask questions or raise concerns if they find them -- but it shouldn't mean watching over their shoulder every moment online. This kind of ruling doesn't necessarily mean that parents across Georgia need to immediately start spying on their kids' surfing activities, but it does suggest -- ridiculously -- that upon notification of a problem, they suddenly have a responsibility to monitor and clean up any messes their kids caused. That's very dangerous thinking. However, there is another interesting angle, which lawyer Marc Randazza has suggested on his blog, that the parents should make use of CDA Section 230 to claim they're immune from liability. Remember, the whole point of CDA 230 is that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." And yet, this ruling effectively holds the parents responsible for the speech of their son. CDA 230 is mostly used to protect service providers from liability, but the law clearly also applies to "users." As Randazza notes: It is without dispute that the content was provided by another person, namely the son. The son, therefore, is the liable party – not the parents – and under the CDA, any claim to the contrary appears to be barred. He points to one case, in California that seems at least marginally analogous: In Delfino v. Agilent Techns. Inc., 145 Cal. App. 4th 790, 806 (2006), the California court of appeals found that when an employee used the employer’s computer network to send threatening messages, the employer was not liable. In that case, the court held that although the defendant-employer merely acted as the provider of the computer system, the plaintiff’s tort claims in essence sought to hold the employer liable for the publication of the threatening messages. Id. Therefore, the employer was immune under § 230. Randazza further notes, in a footnote, that the rulings in two of Prenda/AF Holdings failed lawsuits, claiming "negligence" for leaving WiFi opened, further reinforce the idea that Section 230 should apply in cases involving things like "negligence" for enabling the actions of others. It's too bad the lawyers for the parents either chose not to raise this argument, or perhaps didn't even realize it was open to them.Permalink | Comments | Email This Story

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For many, many years, we've noted the serious problems of the DMCA's "notice and takedown" provisions -- which, arguably, violate the First Amendment. A potential alternative regimen, which would be much more reasonable, and avoid many of the censorship problems of the DMCA, would be to do a notice and notice setup, in which service providers would pass along notices to the user, with an established time period for that user to respond, either by fixing the issue or issuing a counternotice. Then the service provider could decide how to respond, in either taking down the content or leaving it up. Unfortunately, that's not how the current DMCA safe harbors work. The notice-and-takedown provision does not require immediate takedown, but heavily incentivizes it by granting the service provider immunity from liability if they take the content down. This doesn't mean that the service provider is automatically liable if they choose not to take the content down (courts have found service providers to still be protected otherwise), but they can't use the simple and quick process of the safe harbor to get any lawsuits dismissed. Rather they might have to go through the full process of the lawsuit. Thus, some companies immediately take down all requested content in response to a DMCA request, just to give themselves protections under the safe harbor. Many, more reasonable, companies at least do a first-pass review over how legitimate the DMCA notice is, rejecting obviously frivolous ones, but still quickly taking down plenty of content (often mistakenly). Github, the super popular site for storing software repositories has been hit with more than a few DMCA notices in its time -- in fact, it has a repository publicly listing them all. Just recently, we had noted some controversial ones, including Qualcomm shutting down its own repository and the MPAA taking down Popcorn Time repositories, despite them containing no MPAA copyright covered material. Github has now made a very interesting move in changing its DMCA process to one that is basically a notice-and-notice policy, and one which also does not create collateral damage for non-infringing forks of projects. First, whenever possible, users will have a chance to fix problems before we take content down. Second, we will not automatically disable forks in a network based on the takedown of a parent repository unless the takedown notice explicitly includes them. Last but not least, we've published a completely revamped DMCA policy as well as a pair of how-to guides for takedown and counter notices to make our process more transparent and easier to understand. It's that first one that is most interesting to me for a variety of reasons. The company admits that it sort of did this informally in the past, but now it's official policy: The first change is that from now on we will give you an opportunity, whenever possible, to modify your code before we take it down. Previously, when we blocked access to a Git repository, we had to disable the entire repository. This doesn't make sense when the complaint is only directed at one file (or a few lines of code) in the repository, and the repository owner is perfectly happy to fix the problem. In practice, our support team would often shuttle messages between the parties to work out a way for them to fix it. That usually worked out well and everyone ended up happier at the end of the day. So we are making it a formal part of our policy, and we are going to do it before we disable the rest of the repository. It's absolutely true that this seems like a much better overall policy for everyone -- but it's still surprising (if unfortunate that it's surprising) that any company would be willing to take such a step, since, technically it's opening the company up to some amount of greater liability -- and lawyers tend to be averse to any move that may increase a company's legal liability. So, kudos to Github and its lawyers for recognizing that sometimes you have to let in a little legal risk for the good of the overall community.Permalink | Comments | Email This Story

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Apparently, the New Zealand government is not a huge fan of press freedom. The national police force recently raided and ransacked the home of Nicky Hager, an independent journalist who has been a thorn in the current leadership's side for some time now. In August, one month before New Zealand’s national election, Hager published Dirty Politics, which showed that key figures in Prime Minister John Key’s National Party were feeding derogatory information about their opponents to a virulent right-wing blogger named Cameron Slater. Hager published evidence in the form of incriminating emails, provided by a hacker, demonstrating coordination between National Party officials and Slater. The ensuing scandal forced the resignation of a top Key ally, Justice Minister Judith Collins, and implicated numerous other National Party officials and supporters. Despite the scandal, the National Party won a resounding victory in the election, sending Key to a third term as prime minister. And then, once safely back in power, the government wasted little time: On October 2—less than two weeks after the election—detectives from a regional “major crime team” came to Hager’s Wellington home armed with a search warrant authorizing them to seize anything that might lead them to the identity of his source for Dirty Politics. The warrant shows that prior to the raid, a police “intelligence analyst” had studied Hager’s media appearances in an effort to discover information about his sources for the book, taking particular note of references Hager made to knowing the source’s identity. Over at The Intercept, Glenn Greenwald and Ryan Gallagher note that Hager was also working with them on some Snowden documents as they concerned what was happening in New Zealand. As you may recall, right before the election, Greenwald had used some Snowden documents to show that Prime Minister Key had lied about mass surveillance -- leading Key to petulantly lash out with ad hominems at Greenwald, referring to him as a "loser." Greenwald made it clear that they would likely be revealing more about New Zealand's activities -- and now wonders if that might be another reason why Hager was raided, once the government figured out who Greenwald was working with. Either way, the search seems quite excessive and seriously raises questions about New Zealand's respect for the freedom of the press: Once they entered the property, detectives spent ten hours sifting through Hager and his family’s personal effects, making copies of any USB storage devices they found and seizing Hager’s computer, personal documents, a camera, a dictaphone, CDs, and dozens of other items—not to mention his daughter’s laptop, cellphones, and iPod. The whole thing seems fairly crazy, and clearly done to intimidate Hager and others for daring to actually call out the government's bad behavior. These are the kinds of actions that we're supposed to believe no longer happen in modern democracies, but they seem to be happening on an increasingly frequent basis.Permalink | Comments | Email This Story

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