posted 12 days ago on techdirt
There are so many massive trade deals on the go at the moment that it is easy to lose track. In the US, TPP is at the forefront of many people's thoughts; in Europe, it is TAFTA/TTIP. TISA is just starting to appear on the radar, while CETA, the trade agreement between the EU and Canada, is dropping off it. That's because there is a general belief that CETA is "done" -- even if the text needs "legal scrubbing", the assumption is that no more changes can be made. Evidently, somebody forgot to tell the French government, which is calling for the corporate sovereignty chapter to be dropped according to this article in Le Devoir (original in French, found via @StuJT): Although he is generally in favor of this agreement [CETA], the [French] Secretary of State [for External Commerce] considers that before ratifying the treaty it will be necessary either to withdraw current sections on ISDS or rewrite them entirely. Moreover, the opinion of [the French Secretary of State] Matthias Fekl represents not only the official position of France, but also a consensus shared by Germany and the European social democrats. In the daily Le Monde, he said on Wednesday that the only options remaining on the table were "the withdrawal, pure and simple, of ISDS or coming up with something new." There is therefore no question of the Secretary of State signing the Canada-EU treaty without "inventing something new, that is no longer [investor-state] arbitration, but a new way to settle disputes, by integrating public courts in the procedure." That position will be a massive spoke in the wheel for the ratification of CETA, since there is no indication Canada would be willing to remove or renegotiate the corporate sovereignty provisions there. It's also interesting that Germany is mentioned in this context: its position on ISDS has been rather inconstant -- as has France's, for that matter -- and the latest news would seem to indicate that things are still up in the air for that country too. The declaration of the French Secretary of State undermines a speech made very recently by the European Commissioner responsible for trade and TTIP, Cecila Malmström, at a meeting with the International Trade Committee of the European Parliament. Here's the context she gave: the vast majority of the individual responses [to the Commission's consultation on corporate sovereignty last year] rejected either TTIP in its entirety or ISDS more specifically. But the responses from interest groups representing groups of people were more mixed. Let me be clear on how we interpret those results. The consultation was not a referendum even if the responses showed huge scepticism and concerns about the system. What the consultation did do is allow us to understand the main concerns about the system and give us ideas for how to address them. In other words, we are going to ignore what 145,000 people said, and retain the anti-democratic corporate sovereignty structure intact. Malmström then goes on to give some specious reasons why ISDS must be kept in TAFTA/TTIP, albeit in a modified form -- and yet strangely omits to mention a far simpler solution, which is for companies that are worried about their foreign investments to take out insurance -- for example, from the World Bank's Multilateral Investment Guarantee Agency. She then tries to suggest that CETA's ISDS chapter can act as a template for TTIP -- even though a detailed analysis from the Canadian Centre for Policy Alternatives indicates that the new corporate sovereignty provisions it contains are still deeply flawed (pdf). But if France really does stick to its view that ISDS must be removed from CETA, or replaced by a completely different mechanism, the argument that CETA's corporate sovereignty approach shows the way forward for including ISDS in TAFTA/TTIP collapses. Expect the European Commission to ignore this inconvenient fact, and to press on regardless. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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In a long-overdue nod to both privacy and security, the administration finally moved Whitehouse.gov to HTTPS on March 9th. This followed the FTC's March 6th move to do the same. And yet, far too many government websites operate without the additional security this provides. But that's about to change. According to a recent post by the US government's Chief Information Officers Council, HTTPS will (hopefully) be the new default for federal websites. The American people expect government websites to be secure and their interactions with those websites to be private. Hypertext Transfer Protocol Secure (HTTPS) offers the strongest privacy protection available for public web connections with today’s internet technology. The use of HTTPS reduces the risk of interception or modification of user interactions with government online services. This proposed initiative, “The HTTPS-Only Standard,” would require the use of HTTPS on all publicly accessible Federal websites and web services. In a statement that clashes with the NSA's activities and the FBI's push for pre-compromised encryption, the CIO asserts that when people engage with government websites, these interactions should be no one's business but their own. All browsing activity should be considered private and sensitive. The proposed standard would eliminate agencies' options, forcing them to move to HTTPS, both for their safety and the safety of their sites' visitors. To be sure, many cats will still need to be shepherded if this goes into effect, but hopefully there won't be too many details to trifle over. HTTPS or else is the CIO Council's goal -- something that shouldn't be open to too much interpretation. As the Council points out, failing to do so places both ends of the interaction at risk. If government sites are thought to be unsafe, it has the potential to harm citizens along with the government's reputation. Federal websites that do not use HTTPS will not keep pace with privacy and security practices used by commercial organizations, or with current and upcoming Internet standards. This leaves Americans vulnerable to known threats, and reduces their confidence in their government. Although some Federal websites currently use HTTPS, there has not been a consistent policy in this area. The proposed HTTPS-only standard will provide the public with a consistent, private browsing experience and position the Federal government as a leader in Internet security. The CIO's short, but informative, explanatory page lists the pros of this proposed move, as well as spells out what HTTPS doesn't protect against. It also notes that while most sites should actually see a performance boost from switching to HTTPS, sites that gather elements for other parties will be the most difficult to migrate. And, it notes, the move won't necessarily be inexpensive. The administrative and financial burden of universal HTTPS adoption on all Federal websites includes development time, the financial cost of procuring a certificate and the administrative burden of maintenance over time. The development burden will vary substantially based on the size and technical infrastructure of a site. The proposed compliance timeline provides sufficient flexibility for project planning and resource alignment. But, it assures us (at least as much as any government entity can...), the money will be well-spent. The tangible benefits to the American public outweigh the cost to the taxpayer. Even a small number of unofficial or malicious websites claiming to be Federal services, or a small amount of eavesdropping on communication with official US government sites could result in substantial losses to citizens. The CIO is also taking input from the public, at Github no less. A very encouraging -- if rather belated -- sign that the government is still making an effort to take privacy and security seriously, rather than placing those two things on the scales for intelligence and law enforcement agencies to shift around as they see fit when weighing their desires against Americans' rights and privileges.Permalink | Comments | Email This Story

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So far, we only have one example of life -- the biosphere of Earth. Our planet probably isn't unique in the universe, but compared to the other large objects in our solar system, Earth looks special. However, there are a few other spots in our solar system that could support life. It would be so nice to find another living neighbor -- as long as they kept to themselves after we meet them. Jupiter's moon, Europa, could harbor life in vast watery oceans beneath its icy crust. Europa's subsurface oceans hold roughly twice as much water (or more) as the Earth's oceans -- so there could be organisms similar to extremophiles that live near hydrothermal vents at the bottom of our oceans. [url] Life, but not as we know it, could potentially exist on Saturn's giant moon, Titan. There's a sea of liquid methane on Titan which would require a very different biochemistry -- but it's apparently not unthinkable that a theoretical cell membrane called an azotosome might exist. Or not. [url] Optimistic astrobiologists might be surprised to find lifeforms that are more complex than single-celled organisms. Newly discovered Antarctic crustaceans and fish living deep under a glacier in Lake Whillans provide an example of an unexpected thriving ecosystem that is almost completely isolated from the rest of our biosphere. [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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It's been an amount of time that can be measured at the level of a nuclear clock, so I guess there must be another story about a dumbass trademark dispute involving a small craft brewery for some reason. I'm not sure what the hell is going on in the beer-making industry that is setting story after story after story about this kind of thing, but it really needs to stop. Too often these disputes seem to be of the silliest nature, with no customer confusion to worry about and only the most intangible similarities being fought over. But this latest story in which Bell's Brewery, a relatively large "craft" brewery, has filed a federal action against an itty bitty little beer-maker over a trademarked phrase it barely uses and hasn't registered might just be the dumbest of them all. Innovation Brewing of Sylva, N.C. makes only about 500 barrels of beer a year, mostly sold in Jackson County. But size doesn't matter in a tough trademark dispute with the much bigger Bell's Brewery of Kalamazoo, which made more than 310,000 barrels last year. Bell's has filed a federal action against Innovation over the use of its name. Bell's says its unregistered advertising slogan "bottling innovation since 1985" could lead to confusion with customers. While the slogan is used on bumper stickers, it's not present on any of the brewery's beer packaging. Bell's also uses a slogan "inspired brewing" that's been part of the legal complaint that the company believes would be confused with Innovation Brewing's name. Any use of the slogan "bottling innovation" by Bell's has been so minimal that the folks at Innovation Brewing can't even find examples of it. And, while trademarks don't necessarily need to be registered to be valid, one would think that if the slogan and its similarity (blech...) to the competitor's name were worth a legal claim, so too would it have been worth registering with the USPTO. In the meantime, the legal fees and costs of retaining counsel is preventing Innovation Brewing from buying the actual stuff to run its business, like brewing equipment. Fortunately, it appears Innovation Brewing isn't entirely alone in this fight. The Asheville Brewers Alliance, a trade organization representing 45 area breweries and beer-related businesses, has lined up in support of Innovation, a statement said. "There are many instances where craft breweries have encountered trademark issues and have chosen to work together to resolve their differences," it said. "As an Asheville Brewers Alliance member, we support Innovation Brewing and are hopeful that, in the spirit of collaboration, Bell's Brewery and Innovation Brewing will arrive at an agreement amenable to both parties." The dream of an amicable end to all this isn't completely pie in the sky, mind you. The craft brewing space and its penchant for creative labels and off-the-wall naming conventions has actually been surprisingly cooperative on this kind of thing. But, then, calling Bell's a "craft brewery" is massively stretching the term to the point of absurdity. Instead, it seems the legal tendancies of larger corporations have tempted the once-smaller company to the dark side of IP bullying. This, mind you, over a 500 barrel a year producing David that poses no threat and almost certainly no confusion with the much larger Goliath. I typically look forward to my Bell's Hopslam every year. This year, maybe not so much. Permalink | Comments | Email This Story

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It's been pretty clear for a while that Uber, the super popular (if sometimes controversial) car-hailing service, has often courted regulatory conflict as a sort of marketing strategy. In cities around the globe, often the best way to get the public to realize that Uber was a convenient alternative to dreaded taxis was to have the local taxi commission/transportation board/whatever announce that whatever the company was doing was illegal. This would cue a blog post or email from the company, and thousands of (previously) happy but (now) annoyed Uber users to flood the government with complaints. Frequently, this would lead to the bureaucrats backing down quickly, and Uber getting a ton of "free" publicity. However, it appears that some places are simply ratcheting up the legal attacks on the company. Last year, we noted that South Korea was threatening to put Uber CEO Travis Kalanick in jail for offering an "illegal" taxi service, and it appears that the country isn't backing down. Kalanick and dozens of others (not just from Uber) have now been charged with operating an "illegal taxi ring" in South Korea. This round includes additional charges against Kalanick, who has wisely been staying out of South Korea for the time being, though the country plans to seek a warrant to have him arrested. "We plan to summon Kalanick soon and check the transaction details of overseas bank accounts to conduct further investigation into those involved in the case," a police official said, speaking on condition of anonymity. "If Kalanick continues to disobey the summons, we plan to seek an arrest warrant against him." Meanwhile, over in France, the police have raided Uber's offices: French police raided Uber's office in Paris this week, as part of an investigation into its controversial UberPop service. According to French media reports, 25 officers raided Uber's headquarters for six hours on Monday, seizing emails, documents, and smartphones used by Uber drivers. The company's low-cost UberPop service has been at the center of ongoing controversy in France, where authorities deemed it illegal under a new law that went into effect on January 1st. The law requires all chauffeurs to be licensed and insured — conditions that, according to French authorities, UberPop does not meet. Uber insists that the service is legal under French law, and has filed appeals with the European Commission. UberPop, which connects clients with non-professional drivers, remains available in France, though some 250 chauffeurs have been fined since the beginning of the year, according to FranceInfo. Again, whether or not you approve of some of Uber's marketing practices (or its privacy or pricing policies), that shouldn't take away from the simple fact that it has actually created a tremendously useful service, enabling easier and often cheaper transportation for many people in a variety of urban areas. It's a powerful service, and it's difficult to see these recent legal attacks as anything more than blatant protectionism of existing taxi cartels that artificially keep prices high while providing generally sub-par service.Permalink | Comments | Email This Story

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For quite some time now, we've been covering how various law enforcement agencies have been using "Stingray" (or similar) cell tower spoofing devices to track the public. Beyond the questionable Constitutionality of such mass surveillance techniques, what's been really quite incredible is the level of secrecy surrounding such devices. We've written about how the US Marshals have "intervened" in various court cases to hide info about the use of Stingrays -- and even telling local law enforcement to lie about their use of the devices. We've written about law enforcement officials claiming "terrorism" as the reason for needing Stingrays, but then using them for everyday law enforcement. We've written about the company that makes Stingrays, Harris Corp., forcing police to sign non-disclosure agreements barring them from revealing any info about their use. It also appears that Harris Corp. misled the FCC to receive approval for its mobile tower spoofing capabilities. Some police departments have even withdrawn evidence rather than talk about their use of Stingrays. Thankfully, there's been growing concern about these devices. Congress has been investigating and now it appears at least some courts are getting skeptical about the use of Stingrays. The New York Civil Liberties Union (NYCLU) has highlighted that a judge in one of its cases has ordered the Erie County Sheriff's Office to reveal information to the public about its Stingray operations. The full ruling [pdf] is worth reading. While denying the NYCLU's claim that the Sheriff's Office didn't conduct a thorough search as required, the judge is not at all impressed by the redactions in the documents that were released: The purchase orders should have been disclosed in their entirety, without redaction of the various words, phrases, and figures thus far withheld. The purchase orders (and more particularly the redacted words, phrases, and prices), were not "compiled for law enforcement purposes" in the sense meant by the statute but, even if they were, their disclosure would not: "interfere with law enforcement investigations or judicial proceedings"; "identify a confidential source or disclose confidential information relating to a criminal investigation," meaning a particular ongoing one; or "reveal [non-'routine'] criminal investigative techniques or procedures, meaning techniques a knowledge of which would permit a miscreant to evade detection, frustrate a pending or threatened investigation, or construct a defense to impede a prosecution.... Further, the purchase orders (or, more precisely, the information redacted therefrom), although clearly constituting inter-agency materials" (the other agency involved was Erie County and its Office of the Comptroller), amount entirely to "instructions to staff that affect the public".... Indeed, the instructions set forth in the purchase orders—'in essence, "Pay this bill of this vendor for this item purchased by the Sheriff's Office at this price"—was and is of quintessentially compelling interest to and of undeniable impact upon the taxpaying public. Finally, the Court finds that the purchase orders, and particularly the matters redacted therefrom, are not "specifically exempted from disclosure by state or federal statute" .... The Court rejects respondent's arguments that the disclosure sought here would, if made, violate a particular federal statute, regulatory scheme, and executive order forbidding (and indeed criminalizing) the export of certain sensitive technology without government license or the illicit revelation of sensitive information about such sensitive technology to foreign nationals. The Court instead is convinced by petitioner's argument that the disclosure of public records pursuant to New York's Freedom of Information Law and the within judicial directive -- even records concerning respondent's ownership and use of a cell site simulator device -- does not amount to the actual export of such arms, munitions, or defense technology. Further, the Court is satisfied by showing on this record that petitioner, a New York not-for-profit corporation, is not a "foreign person," meaning that the disclosures sought by it pursuant to FOIL would not in fact run afoul of related federal legal restrictions on the revelation of sensitive technical data about export-restricted arms or technology. Got that? Basically the court rejects the Sheriff's Office's contention that disclosing this information was somehow "exporting munitions" to "foreign persons." Oh, as for the non-disclosure agreement with Harris Corp.? The judge notes that a non-disclosure agreement is not a federal regulation: At the outset, the Court notes its agreement with petitioner's observation that the FBI-drafted non-disclosure agreement is not itself a federal statute specifically exempting anything from disclosure.... In fact, later in the order, the court says that the non-disclosure agreement itself should be disclosed: Likewise, the Court concludes that this public record ought to have been disclosed in its entirety. As indicated, the agreement was entered into between the FBI and respondent as an apparent pre-condition of respondent's being allowed to acquire and use the cell site simulator. The gist of the letter is not a recitation of the technological capabilities of the device or even the "hows" and "whens" or the advantages of its use for law enforcement purposes, but rather simply the need for the Sheriff's Office to avoid disclosing the existence, the technological capabilities, or any use of the device to anyone, lest "individuals who are the subject of investigation ... employ countermeasures to avoid detection," thereby endangering the lives and safety of law enforcement officers and others and compromising criminal law enforcement efforts as well as national security. The Court has no difficulty in concluding that the agreement (or, more precisely, each redacted-at-length passage of it) was not "compiled for law enforcement purposes" in the sense meant by the statute.... Again, even if it was, the Court would conclude that the disclosure of the non-disclosure agreement would not thwart or prejudice any particular ongoing law enforcement investigation or pending prosecution.... Nor, the Court concludes, would the disclosure of the non-disclosure agreement "identify a confidential source or disclose confidential information relating to a criminal investigation," again meaning a specific ongoing one, or "reveal" other than "routine" "criminal investigative techniques or procedures".... There's a lot more, including other documents, and all of that leads the judge to also grant attorney's fees to the NYCLU. It will be interesting to see if the Sherriff's Office challenges this, but it's a pretty complete win for transparency in an area that law enforcement has been trying to keep totally secret for quite some time now.Permalink | Comments | Email This Story

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Recently, there's been a growing discussion around the concept of a basic income guarantee and its potential to completely change how we think about work, income and leisure. Would it change the world for the better, or create more economic problems than it solves? Albert Wenger from Union Square Ventures joins us this week to discuss the potential of this revolutionary idea. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Now that it's pretty much settled that the public has the right to record the police*, legislators are now moving to peel back this begrudgingly "granted" First Amendment protection. *Exceptions, of course. Far, far too many of them. Filed by Dallas State Representative Jason Villalba (R), the bill prohibits anyone in public within 25 feet of police to record them. The buffer is even greater at 100 feet, for anyone recording video who is also carrying a gun. Only accredited news organizations, like KENS5, would be allowed to record without the buffer zone. Guess who gets to decide whether any unaccredited videographers are "too close" to the action? That's right. It'll be the person deploying handcuffs or demanding the camera be shut off/relinquished. It will all be in the eye of the uniformed beholder who's just going to eyeball the distance between him and the unaffiliated bodies of public accountability, and if it's close, just go ahead and call it a crime. A crime with some rather hefty penalties, considering it involves recording public figures in public areas. Anyone caught filming within the 25-foot radius could be prosecuted for a Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine. For gun-carriers who step within 100 feet, it would be a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine. Blogger Ex-Cop Law Student calls it the "Kory Watkins Law," after the open-carry activist, who has filmed many of his interactions with local law enforcement. This is basically a reaction to the confrontational style of Kory, who has a tendency to get very close to the officers while being loud and armed with either a rifle or a black powder revolver. So Villalba decided that a new law was needed, despite the fact that there is already a perfectly valid law on the book that deals with the issue. Of course, the "valid" law is one that's already frequently abused: "interfering with public duties." This catch-all has snagged many citizens and their cellphones. Villalba's proposal just gives police officers another way to legally violate the First Amendment rights of others. Villalba's hardly a neutral party. According to the Dallas Observer, his best man was a police officer. So are many of his family members and friends. This string of tweets issued as the criticism began to roll in shows pretty clearly which side Villalba is legislating for. There's nothing wrong with having cops as friends (and you can't choose your family members), but favoring a single subset of your constituents in order to -- at least, indirectly -- shield them from accountability isn't something legislators should be doing. They should be doing more to ensure their non-uniform-wearing, non-government employees are better equipped and more empowered to keep their public officials in line. This bill does nothing but create a larger power gap. As always, it's an outsized "concern" for certain people's safety that is driving the legislation. Villalba says cops often can't spare the time or attention to put up yellow tape or ask a photographer to step back. "They have the ability to say, 'Step back, please don't interfere,' but a lot of times these situations are in the heat of a law enforcement officer doing their jobs," he said. With HB 2918, "We're just trying to create enough separation, enough space so that officer feels comfortable." Here's an idea: if they don't have time to push people around, then maybe they shouldn't waste those valuable moments harassing photographers. Most photographers aren't closing the distance between them and cops. It's usually the other way around -- officers approaching people they see filming. 25 feet is "reasonable" but it shouldn't be a misdemeanor and no legislator should be attempting to criminalize First Amendment-protected activity. Interfering with police duties is already illegal and it can be deployed if there's actual interference occurring. If you're being prevented from doing your job (effecting an arrest, etc.), then it's legitimate. If not, then it's perfectly acceptable, no matter how annoying it might be personally. Ex-Cop Law Student points out the logical flaw in Villalba's "cops just don't have the time" argument: Uh, Jason? If they are too busy to tell someone to move back, wouldn’t they be too busy to make an additional arrest? Because the purpose of the law is to criminalize the gathering of information that can be used to exercise the right to free speech. The fact that a law is on the books doesn’t magically make people move back, nor does it encourage the police to welcome citizen photographers. On the contrary, it encourages police officers to suppress free speech. No matter how Villalba might frame it, and no matter how potentially pure his motivations (highly debatable), the fact remains that this law, if passed, will be just as abused as the one already on the books ("interfering with public duties"). In fact, it will be more heavily abused because it gives the recorded the power to control the recordings. Permalink | Comments | Email This Story

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We had been noting, in the wake of the Charlie Hebdo attacks in France, how the country that then held a giant "free speech" rally appeared to be, instead, focusing on cracking down on free speech at every opportunity. And target number one: the internet. Earlier this week, the Interior Minister of France -- with no court review or adversarial process -- ordered five websites to not only be blocked in France, but that anyone who visits any of the sites get redirected to a scary looking government website, saying: You are being redirected to this official website since your computer was about to connect with a page that provokes terrorist acts or condones terrorism publicly. It appears that the French government has a very low opinion of the intelligence of the French public -- believing that merely reading something online will suddenly make them rush to join ISIS. "I do not want to see sites that could lead people to take up arms on the Internet," Interior Minister Bernard Cazeneuve said. "I make a distinction between freedom of expression and the spread of messages that serve to glorify terrorism. These hate messages are a crime." Except... it already appears that France is really just censoring websites with messages it doesn't like. In that first batch was a site called "islamic-news.info." The owner of that site not only notes that he was never first contacted to "remove" whatever material was deemed terrorist supporting (as required by the law), but that nothing in what he had posted was supporting terrorism. He has written a public statement posted on the French news site Numerama, in which he makes it clear that he's a one-man operation, and that he's been doing everything based on a 50 euro/month hosting plan, and that he doesn't support ISIS or Al Qaeda at all. His site is opinionated, but mostly just against current Syrian leader Bashar al-Assad. In fact, he notes that he specifically avoided topics that might be misinterpreted to suggest that he supported terrorists. He did not share ISIS propaganda or similar content. He even points out how he denounced a Syrian fighter who argued for attacks on Europe, saying that such things would reflect poorly on Muslims in Europe. But, with no judicial review, no due process at all, the French government declared the site to be a terrorist supporter and now it's gone. All that talk about France and free speech quickly fade into nothing. As Glenn Greenwald, at the Intercept, points out in response to all of this, blatant government censorship is far more damaging than terrorist attacks (while also noting that governments around the globe are moving in similar directions): In sum, far more damage has been inflicted historically by efforts to censor and criminalize political ideas than by the kind of “terrorism” these governments are invoking to justify these censorship powers. And whatever else may be true, few things are more inimical to, or threatening of, Internet freedom than allowing functionaries inside governments to unilaterally block websites from functioning on the ground that the ideas those sites advocate are objectionable or “dangerous.” That’s every bit as true when the censors are in Paris, London, and Ottawa, and Washington as when they are in Tehran, Moscow or Beijing. France's "motto" is supposedly Liberté, égalité, fraternité. I have difficulty seeing how blatantly censoring websites you disagree with, without any sort of due process, fits with any of those three ideals.Permalink | Comments | Email This Story

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If nothing else, Universal Music Group is becoming a case study for everything that's wrong with YouTube's takedown system. Between nuking its own artists' official videos, targeting MegaUpload's video simply because it utilized some of its roster and using its direct partnership with YouTube to blow past any fair use considerations, UMG has been able to wreak a fair amount of havoc. Its latest demonstration of its "my rights are bigger than yours" attitude towards IP protection has managed to yank someone else's creations right out from under their creator, as TorrentFreak reports. Norwegian musician Bjorn Lynne… has had two of his videos hijacked by Universal Music Group (UMG) which is now running ads alongside his work. “Can I just state publicly that I hate Universal Music Group. For the second time now, they have hijacked my music and claimed ownership of it in all YouTube videos that include my music, thereby monetizing my music,” Lynne writes. Lynne isn't exaggerating. UMG owns the rights to an audiobook that uses one of Lynne's songs as a backing track. No problem up to this point, because anyone -- even UMG -- can use Lynne's tracks if properly licensed, which this apparently was. No, the problem is that UMG is claiming -- by proxy -- that it "owns" Lynne's track. UMG have entered the audiobook in YouTube’s Content-ID system, and as a result they’ve hijacked the ads on the original video. Which is why leaving infringement detection up to algorithms is a bad idea, even if doing otherwise is technically unfeasible. According to Content ID, the backing track belongs to UMG. That's a problem, but it's a fixable one. All it would take is for UMG to release the claim after having the error brought to its attention. But UMG clearly isn't in the business of resolving disputes. It's just there to claim everything Content ID says belongs to it, even when the content clearly doesn't. “One thing would have been to have done this unwittingly, by mistake. But I have ‘disputed’ the claim on YouTube, written an explanation and told them about the origins of this music — then waited the FULL 30 DAYS that the claimant has to process the dispute, only to be told that UMG have reviewed the dispute and UPHELD their claim!” Lynne notes. That's the process available to indie artists: sit back and let major players claim your stuff. If Company A rejects your dispute, the decision is final. In YouTube's eyes, the burden of proof always falls on the accused and the existence of proof ultimately has no bearing on the outcome. All the claimant has to do is push the "REJECT" button and someone else's ad money will be rerouted. Lynee could fight this further, but it would take a stack of money and some ambitious lawyers -- neither of which most indie artists have at their disposal. The only thing UMG has to do is what it did: shrug and return to siphoning money away from Bjorn Lynne. The system works -- at least for the major players. For everyone else, it's just a matter of trying to mitigate the damage they can't prevent, much less reverse. Permalink | Comments | Email This Story

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Want to artificially decrease the lifespan of your product in order to keep your revenue stream intact? DRM's got your back, yo. It never asks, "Why?" It only asks, "Why not?" Run out of refills on Proprietary Cat Waste Cleaning Product™ and a $200 luxury litter box becomes indiscernible from its $10 counterpart. Like generating a tremendous amount of waste along with your single cup of coffee? Hey, great, but your k-cup refill better be on brand or your expensive coffee maker will be about as active as the one you picked up from a garage sale for $2. Or less so, considering the second-hand one at least generated a funky burning smell before shorting out the kitchen wiring. But this one tops both of those in what the installed DRM does to artificially shorten the lifespan of the product. (h/t Techdirt reader Kaden) The IlluMask is a $30 "light therapy" mask that utilizes LED lights to zap away bacteria, stimulate skin cells and otherwise fight acne/aging (depending on what model you purchase.) Sounds great (if you buy IlluMask's claims). A lifetime of skin revitalization, and all for just $30. Oh, wait. The trouble is, it is limited to 30 daily uses of 15 minutes each, totaling just 7 1/2 hours, effectively lasting you a month. At the end of which, you just discard the device and get a new one. That seems like a ridiculous waste of a perfectly fine, functional device whose LED’s can last at least 30,000 to 40,000 hours. Even if we ignore the negative environmental impact of discarding plastic masks loaded with perfectly good LEDs, there's still the incredible audacity of IlluMask's claim that its mask will only last 30 days, at which point the LEDs doing all of the facial revitalization/bacteria zapping are suddenly useless, even with well over 99.97% of their lifespan still ahead of them (based on 35,000 hours). IlluMask offers its own rationale for this completely fake 7.5-hour time limit, and it's about as credible as Keurig's "because safety" claims. $1 per day. Simply put, 30-uses per mask is the best way for us to offer you high-performance light-therapy—typically available for a “high-performance” price—at $1 per day. We believe everyone should have access to modern technology—and we believe that technology should work. illuMask’s patented 30-use system makes it happen. Really? It actually seems like it's the best way to ensure new purchases every day which, no matter how "affordable" it is, has nothing to do with telling people the LEDs in their masks are basically useless after delivering less than 8 hours of light on a 30-40,000 lifespan. I do, however, wholeheartedly believe this part of IlluMask's explantion is 100% true -- "...the best way for us..." -- because that's the only entity that truly benefits from treating long-lasting bulbs like disposable razor blades. Those not paying attention to what IlluMask is actually doing -- creating a renewable market where one shouldn't logically exist -- will look at the company's chart comparing its $30/month product to more expensive options like dermatologists' treatments ($OMG!) and feel they're still getting a good deal. Others, like "Bebefuzz" of Lollipuff.com will find a way to route around IlluMask's arbitrary retirement date. The good news is that circumventing IlluMask's internal 30-day kill switch is incredibly simple. If you like mucking about with a soldering iron, you can even add your own on/off switch (circumventing the DRM bricks the 15-minute timer). If you'd rather not deploy additional electronics and a soldering iron you likely don't already own, you can just do this: 1. Change the batteries if lights are getting dimmer. 2. Use a screwdriver and open the case. Then remove batteries and unscrew screws so the plastic battery holder on top of the circuit board can be moved over. Be careful NOT to damage any of the delicate wiring. 3. Now that the circuit board is exposed, put the batteries back in their slots. 4. Using a piece of wire (such as a paper clip) touch one end of your wire and place it where the thin copper wire connects to the circuit board (silver spot marked LED). Touch the other end to the little RESET copper circle--located on the left of the circuit board (use the copper circle above the word RESET, not below). 5. Press the start button while the wire is in place. 6. Move your wire from the RESET button to the TEST button. 7. Press the start button again while the wire is in place, and the count should reset to 30! A paperclip and a screwdriver. Tools of circumvention that can be found in any home. Doing this likely voids any warranty on the product (and makes IlluMask supersad), but it's a product made to be disposable. Worst case scenario: another $30 spent and another try at soldering/paperclipping the product into something that lasts nearly as long as its components. DRM: depriving you of 99.97% of your purchase's potential lifespan. That's hardly a tagline that will move more units, but the less consumers know, the better it is for companies like IlluMask. Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
With the record labels desperate for any new source of revenue, they've been increasingly trying all sorts of convoluted plans to try to find "untapped" sources of revenue. Apparently mixtapes and mashups are next on the list. As you're hopefully aware, mashups have become a big deal in the world of music and remixes of various songs have become popular in interesting ways. Artists like Girl Talk and DJ Earworm have become incredibly popular. In the past, we've discussed how these kinds of remixes and mashups are almost certainly fair use, but things are tricky in the world of music samples, because of some totally screwed up court rulings. You have crazy rulings on the books like Bridgeport Music v. Dimension Films where the judge not only quoted the Ten Commandments as an authority (no, really), but also announced "get a license or do not sample," because he didn't even want to think about the concept of fair use. This has created something of a problem for new music services, such as Spotify, Pandora and the like, where they often will not offer remixes and mashups, even when they're super popular. The problem for those services -- which do pay for licenses -- is often "who to pay?" on those songs. The answer should be that it's fair use and quite frequently acts as promotion for the original works, so it will help get those original songs more plays and licensing revenue that way. But no one wants to take the legal risk. So, instead, it looks like we may end up with a completely bogus licensing regime that isn't required because of fair use -- but is going to happen, because everyone's scared to make the fair use argument. The WSJ has an article on a company that is jumping into the space, called Dubset Media, that has come up with its own system to analyze mashups and remixes to figure out how much of a song they use and then pay out royalties based on that amount: Dubset Chief Executive Bob Barbiere estimated that online music mixes could eventually generate $1.2 billion a year in additional revenue for the industry. Currently all the big subscription music services “deal with same library, but now you’re dealing with a whole new world of content that could help drive new subscription,” he said. Dubset spent the past several years creating its “MixScan” technology to analyze DJ mixes, which it hosts on a small music-streaming service it operates called Thefuture.fm. Before posting music on the site, Dubset analyzes it, measuring how many seconds each individual song is heard and logging the data into its library. It then pays royalties based on the number of times users listen to a given mix, along with the length of time each song was featured in the mix. As the article notes, Dubset has actually been around for quite some time. I've spoken to some of the founders before, and actually thought some of what they were doing was interesting in putting together a platform for these kinds of mashups and remixes. But the latest move to work with the major labels to then try to license these works to other platforms has me worried about what it may mean in the long run for this art form. The article itself seems weirdly devoid of any discussion on the actual copyright implications of this. It doesn't mention copyright of fair use at all. It's not even clear how Dubset Media determines the royalties, though apparently it's negotiating with the major record labels on some sort of deal. Perhaps those record labels will agree, because this is money from nowhere -- in fact, it appears to be the potential of money out of fair use, where no money needs to be paid. And that likely means that once the labels start getting a sense that there is some money to be made in licensing remixes and mashups, they're going to want more money from remixes and mashups -- because that's how the major labels always act. And that's likely going to mean a pretty big crackdown on the way most remixes and mashups are made and distributed, because the labels are going to want cold hard cash for each one. Remixes and mashups started as an amateur pursuit -- a fun thing to do, or a way to show off some skills. And while there certainly are plenty of professionals now doing it, you can bet that the labels are going to try to lock up and monetize all of it. There's an excellent documentary, called Copyright Criminals, that tells the story about the early days of hip hop, in which most people considered it perfectly legal (or just didn't care) to sample others' music to make hip hop songs. And then people started getting sued, and the whole nature of sampling changed. When you had to pay for every sample, suddenly sampling was crazy expensive. So much so that some of the most creative hip hop albums of all time, like De La Soul's 3 Feet High and Rising and the Beastie Boys' Paul's Boutique could not be legally made today. The only barely underground community of mashups and remixers brought that world back, at least partially, allowing us to see the kind of amazing creativity and music that could have been created if only the law allowed it. People weren't suing over it for a variety of reasons -- including the fear of a potential legal loss that reinforced the fair use argument -- but also because it really was just a side thing. But this move, to try to start licensing it all, regardless of the fair use question, seems likely to create another shift in remixes and mashups -- one where major labels eagerly searching for coins in the couch cushions, suddenly make it nearly impossible for anyone without a big bank account to take part in this art form.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Europe's use of the copyright levy system, effectively a tax on blank media that is supposed to compensate copyright holders for an alleged "loss" from copies made for personal use, has produced a whole string of messy situations -- for example, in the Netherlands, Portugal, Spain and the UK. These have come about as governments have tried reconcile an antiquated system originally designed for cassette tapes with modern digital technologies. The EU's highest court, the Court of Justice of the European Union (CJEU), has just handed down an important judgment in this area. The IP Kat blog explains the background: Finland-based Nokia sold mobile phones to business customers in Denmark, who resold them to both individuals and business customers. Whilst all Nokia phones have an internal memory (i.e. the storage device is non-detachable), certain models have an additional memory card (i.e. which is detachable). On these detachable memory cards, users could store data (e.g. contact details, photographs) as well as files containing audiovisual works (e.g. music, films which may have been downloaded from the web or from DVDs, CDs, MP3 players etc). In this regard, these memory cards are "multifunctional media" with the capacity to be used for private copying (in relation to the audiovisual files), as well as for uses unrelated to private copying (e.g. storing personal data). Nokia disputed its liability to pay a private copying levy to the Danish collecting society, Copydan Båndkopi, in relation to the detachable memory cards that were imported into Denmark for use in its mobile phones between 2004 and 2009. That gives an idea of just how complicated the issues raised by copyright levies have become. The IP Kat blog goes on to analyze the CJEU's reply to six questions that were referred to it by a court in Denmark, seeking clarification. The answers are as complicated as the issues, so you may prefer this alternative summary from Hogan Lovells's Global Media and Communications Watch blog: The CJEU takes the view that, in principle, it is irrelevant whether a medium is unifunctional or multifunctional. Copyright levies may be imposed, if at least one function allows for private copying, even if this function is of ancillary nature. However, the primary function of the carrier is to be taken into account whilst assessing what might be a fair compensation. Member States may further distinguish between storage media which is detachable (like in Nokia's case) and media which is non-detachably integrated in a device. However, the differentiation must be reasonably justified. Actually, it's not as simple as that, because there's another issue that needs to be addressed: A particular problem exists where storage media is sold to business customers without a clear picture of whether those are sold on to private individuals only or also to business customers. The latter do not fall under the private copying exemption and hence the compensation requirement does not apply (see: CJEU, Case Ref.: C-467/08). Manufacturers and importers may also be required to pay copyright levies. However, this is only justified if practical difficulties ask for such regulation. Those may arise from, for instance, the impossibility of or at least practical severity associated with identifying the final users of the relevant medium. Further, adequate exemption schemes must be in place allowing manufacturers and importers to prove that Article 5(2)(b) of Directive 2001/29 and thereby the private copying exception does not apply to their sales. Even that is not the end of it: the blog post goes on to discuss some of the other detailed issues raised by the CJEU's ruling. However, it is relatively simple to summarize the entire judgment in a single sentence: that the EU's copyright levies are a complex, unworkable mess, and should be abolished completely across the whole of Europe, as has already happened in some of the more sensible EU Member States. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Open records laws are in place to force governments into public accountability. The word "force" isn't hyperbolic. There's plenty of evidence strongly suggesting most government entities are still very resistant to the idea. Lawsuits, public figures using personal email addresses, excessive fees, abuse of FOIA exemptions… all of these run contrary to the spirit of open records laws. Some run contrary to the letter. Out in Nevada, legislators are crafting the "worst bill of the 2015 legislature" -- one that targets the state's open records laws specifically in hopes of further separating public officials from accountability. Meet Senate Bill 28, which has its first hearing this afternoon before the Senate Government Affairs Committee. Brought on behalf of the Nevada League of Cities and Municipalities, SB28 attempts to make the release of public records so expensive that no one bothers asking for them. Enter the Nevada League of Cities and Municipalities, which has been working for many months on a plan to spare its members from all those annoying records requests. Under Nevada’s public records law, governments can charge a fee if a request requires an “extraordinary use” of personnel or resources. So SB28 defines “extraordinary use” as a threshold that’s absurdly common... Under the bill, “extraordinary use” of a government’s personnel or technological resources totals more than 30 minutes of work or “requires the governmental entity to produce or copy more than 25 pages of records or, for a request for a record to be delivered electronically, the equivalent amount of electronic data that, if printed using a type size not greater than 12 characters per inch, would produce more than 25 pages of records, to comply with the request.” The world has shifted to digital, but governments cling to paper -- or "equivalents." This isn't some endearingly old-school trait, handed down by aged reps who have waged legislative wars for decades using nothing more than typewriters, fountain pens and dead trees. There's nothing quaint about it. It's simply a way to escalate fees while pretending to be "burdened" by the public's desire for transparency and accountability. Agencies could charge 50 cents per page for documents as well as the cost for employees’ time to fill the request. An amendment offered by the Nevada League of Cities and Municipalities (NLCM) would reduce the cost per page to 25 cents for physical documents and charge the cost for any storage media used to fill requests electronically. Either amount is ridiculous, considering most open records requests will be responded to digitally. (Even PACER's more "reasonable" $0.10/"page" charge for electronically-accessed documents… or search results… or search results that return nothing… is ridiculous. But it's still cheaper than many municipalities' per-page charges.) Equally ridiculous is the proposal that any request taking "longer than 30 minutes" to fulfill be designated "extraordinary." This would push nearly every request into this category, making them subject to excessive fees or outright refusal. The same goes for the 25-page limit. Government employees are paid to fulfill these requests. It's part of their job, and they have no business claiming that fulfilling open records requests is an imposition and a hardship. Very occasionally, outside help (usually of the legal counsel variety) will be needed, and government entities have every right to recoup fees paid. But they should err on the side of under-reimbursement, considering taxpayers have already paid for: a) the generation of the records being sought b) the wages of the person(s) fulfilling the request, and c) the fees paid to outside consultants Only the offset of direct costs can be justified (so as to keep agencies from carving holes in their own budgets). Everything else is prepaid. Per-page fees are nothing more than agencies skimming a bit more cash from the public's collective income. In defense of this terrible bill, supporters cited "abusive" records requests, including a former government employee's "weekly records request," which is apparently being deployed as some sort of blackmail. Brian MacAnallen, representing the City of Las Vegas, discussed two extraordinary requests. One required the city to review more than 2,500 emails. It took more than 250 hours to meet and resulted in 14,352 pages of documents being released. The city and the reporter who made the request scheduled a time to review the documents, but the reporter did not show up. The other required the review of 7,434 emails of which 204 were determined to meet the request requirements. The review required 160 hours of employees’ time. Senior-level employees, including the city attorney, were required to review the documents before release. A representative of the City of Henderson mentioned that his city was forced to complete weekly requests made by a disgruntled former employee. The former employee told city officials these requests would continue unless the city paid the former employee a sum of money. In every case but the last, there are existing legal remedies in place. Excessively large requests can be handled either by charging the requester for reasonable expenses or by asking him or her to narrow the scope. This is common practice everywhere, and Nevada is no exception. The only change this bill would make is that it would allow normal requests for small amounts of documents to be refused for passing the 30-minute time limit and make larger requests (for a few hundred pages) prohibitively expensive. As for the latter -- while tricky to navigate without further damaging open records laws -- the city could certainly gather documentation concerning the employee's stated motive and run it by the judicial branch for possible remedies. The danger, of course, is that any remedies may allow government entities to deny requests based solely on perceived motive. (This, too, has been part of the government's FOIA abuse. The FBI and other agencies have denied documents to certain prolific FOIA requesters solely on the theory that the requesters are seeking to trick agencies into releasing exempt information by sending multiple, overlapping requests for the same subject matter.) Government agencies -- funded and sustained by tax dollars -- shouldn't be a worse deal for citizens than a trip to the local copy shop. And these agencies certainly shouldn't aspire to Domino's Pizza levels of bureaucratic opacity. "Thirty minutes or it's DENIED!" isn't exactly a slogan that inspires confidence in these agencies' trustworthiness.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Algorithms for image recognition are getting better all the time, but computer vision is still very different from how humans look at images. Computers aren't capable of describing an image as well as a typical 5-year-old, but they can sift through millions of images before a kid can blink. Here are just a few examples of algorithms getting better at seeing the same things that we see. Computers could play "Where's Waldo?" using a variety of techniques. Is there an optimal way to play Where's Waldo? Perhaps, but where's the fun if you use an algorithm? [url] The Viola-Jones algorithm is commonly used in cameras for face detection, but it's a relatively simple software trick that only picks up full faces that are looking directly at the camera. More advanced algorithms can now spot a face at an angle and even when the face is partially blocked. An approach called the Deep Dense Face Detector can even recognize upside-down faces, using a neural network technique, and it might vastly improve automated image recognition. [url] A visual Turing(-like) test would challenge algorithms to evaluate images compared to human visual recognition. As with the original Turing test, the passing grade for artificial intelligence would continually change as AI gets better. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
Back in 2012 (pre-Snowden!), we wrote about why Google should encrypt everyone's emails using end-to-end encryption (inspired by a post by Julian Sanchez saying the same thing). Since then, securing private communications has become increasingly important. That's why we were happy to see Google announce that it was, in fact, working on a project to enable end-to-end encryption on Gmail, though it was still in the early stages. In December of last year, Google moved that project to Github, showing that it was advancing nicely. As we noted at the time, one interesting sidenote on this was that Yahoo's Chief Security Officer, Alex Stamos, was contributing to the project as well. Thus it's not surprising, but still great to see, that Stamos has now announced the availability of an end-to-end encryption extension for Yahoo Mail (also posted to Yahoo's Github repository. It appears to function similarly to existing third-party extensions (like Mailvelope), but it's still good to see the big webmail providers like Yahoo and Google taking this issue more seriously. It's still not ready for prime time, and it's unlikely that either provider is going to make this a default option any time soon, but offering more, better (and more user friendly) options to give everyone at least the option of doing end-to-end encryption is a very good sign. It also raises a separate issue that I think is important: many have argued that companies like Yahoo and especially Google would never actually push for end-to-end encryption of emails, because it takes away the ability of those companies to do contextual advertising within those emails. But that's an exceptionally short-sighted view. If Google, Yahoo and others don't do enough to protect their users' privacy, those users will go elsewhere, and then it won't matter whether or not the emails are encrypted, because they won't see them anyway. Focusing on the user first is always going to be the right solution, and that includes encrypting emails, even if it means slightly less ad revenue in the short term. Hopefully, Google, Yahoo and others remember this simple fact.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
The FBI's preference for easily-investigated terrorism is well-documented. We're routinely assured that all sorts of domestic surveillance tech and agency opacity is necessary to protect us from a whole host of threats, but for the most part, the terrorists "apprehended" by the FBI seem to be people who've had the misfortune of being "befriended" by undercover agents and/or confidential informants. When over 90% of the funding, idea generation, transportation and motivation comes from those saving us from terrorism, we have reason to be worried. While the FBI performs its predatory handcrafting of "extremists," the real terrorists -- who don't need someone else to provide weapons, money and motivation -- are still going about the business of terrorism. This isn't to say that all, or even a majority, of the FBI's anti-terrorist resources are devoted to digging a hole and filling it back up. But a portion of it is, and that portion is squandered completely. And these numbers, gathered by The Intercept, put the squandered portion at nearly 50% of the total. Informant-led sting operations are central to the FBI’s counterterrorism program. Of 508 defendants prosecuted in federal terrorism-related cases in the decade after 9/11, 243 were involved with an FBI informant, while 158 were the targets of sting operations. The (supposed) terrorist in this case -- who was 25 years old when FBI agents dressed him up as a terrorist (having provided the weapons and bomb-making material) and recorded a so-called "martyrdom video" written and directed by undercover agents -- was broke and apparently unable to aspire to anything, much less a series of bombings culminating in death-by-suicide-vest. The agents referred to Sami Osmakac as a "retarded fool" without a "pot to piss in." According to The Intercept's in-depth report, Osmakac couldn't have financed his own glorious Muslim "revenge." He couldn't even afford to replace the dead battery in his '94 Honda. He had no money, no social life and no wheels. And yet, the FBI portrayed him as capable of doing the following: After recording this video in a rundown Days Inn in Tampa, Florida, Osmakac prepared to deliver what he thought was a car bomb to a popular Irish bar. According to the government, Osmakac was a dangerous, lone-wolf terrorist who would have bombed the Tampa bar, then headed to a local casino where he would have taken hostages, before finally detonating his suicide vest once police arrived. And yet, when it came down to it, the FBI had to supply everything, including a ride. The FBI provided all of the weapons seen in Osmakac’s martyrdom video. The bureau also gave Osmakac the car bomb he allegedly planned to detonate, and even money for a taxi so he could get to where the FBI needed him to go. To the government, Osmakac was a dangerous "lone wolf." To several psychiatrists and psychologists, he was a "very disturbed" young man. To the agents actually on the case, he was a joke -- a small-minded wannabe with minimal aspirations and "pipe dreams." The audio captured after the "martyrdom video" -- which was never meant for public consumption -- contains plenty of mockery from his FBI handlers. “When he was putting stuff on, he acted like he was nervous,” one of the speakers tells Amir. “He kept backing away …” “Yeah,” Amir agrees. “He looked nervous on the camera,” someone else adds. “Yeah, he got excited. I think he got excited when he saw the stuff,” Amir says, referring to the weapons that were laid out on the hotel bed. “Oh, yeah, you could tell,” yet another person chimes in. “He was all like, like a, like a six-year-old in a toy store.” Because Osmakac couldn't be counted on to follow through with the FBI's conceived plan, agents had to go on the offensive. They forced $500 into Osmakac's hands to use as a down payment on weapons. To the DOJ, the money that was hesitantly accepted was an indicator of Osmakac's willingness to kill for his ideology. But the FBI couldn't do it directly, or it would be open to claims of entrapment. Instead, it laundered it through a confidential informant -- who was also Osmakac's employer and who was paying the would-be terrorist out of his FBI paycheck. Then, the FBI helped Osmakac load up a vehicle with pretend bombs and real weapons and pounced as soon as the task was completed. To be sure, Osmakac was a disturbed man with dreams of becoming a devout Muslim in another country, but he was also professionally diagnosed with schizophrenia -- something that certainly would have made him appear unhinged and potentially dangerous. But would he have turned terrorist without the FBI's extensive help? That's a bit harder to answer, especially since the FBI kind of took a lot of the uncertainty out of the equation. Rather than simply surveil a possible threat, it stepped in to push him in a direction he'd only talked about -- and even then, in mostly delusional terms. But this is what passes for "investigation" with the FBI: sting operations, overactive informants and undercover agents, and no small amount of self-congratulatory backpatting when all the work is done.Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
We've talked a lot about massive copyright trolling operation, Malibu Media (which is also known for providing porn under the name xArt). In some other cases, it's been revealed that Malibu Media is one of many operations that appear to be little more than a copyright delivery system for a series of German companies that are behind the scenes of almost every major copyright trolling operation these days. The company is also somewhat infamous for its shady practices and the way in which it files many questionable lawsuits -- including the use of "Exhibit C" -- totally unrelated films that it claims the accused also downloaded illegally, but over which Malibu Media has no copyright claims. That exhibit clearly served only to try to pressure individuals into settling, so there wouldn't be a public court document insinuating a list of embarrassing films had been downloaded. Its latest move seems to go seriously over the line in yet another effort to try to force defendants to pay up and settle. In this case, involving a "John Doe" defendant, the court had been clear that any documents involving the name of the defendant needed to be filed under seal. That came after the court had rejected the defendant's attempt to have the whole subpoena thrown out, but was clearly on to Malibu Media's usual tricks pressuring people into settling. As summarized in a new filing from Booth Sweet (the lawyers for the defendant), the court had been abundantly clear that Malibu Media was not to publicly name the defendant: Here, the Order was sent by the Court to the Plaintiff. The Court's language could not have been more clear. “If the summons and its return disclose the Defenan[d]t’s name and identifying information, Defendant shall file the same under seal.” [....] Nor was the intent of the Court’s Order lost upon the Plaintiff. In its motion to file its summons and return of service, Plaintiff specifically noted: “To comply with the Court’s Protective Order [CM/ECF 20], Plaintiff seeks leave of Court to file its proposed summons and affidavit of service under seal.” [....] In approving the Plaintiff’s request to file its summons and return of service under seal, the Court once again took pains to establish the following procedure to balance Defendant's privacy interests with the presumption of open judicial proceedings. Simultaneously with filing its proposed summons under seal, Plaintiff shall also file a Reference List and an amended complaint. The Reference List, which shall be filed under seal, must contain Defendant's name and any other identifying information that Plaintiff deems necessary to the prosecution of its case, as well as an appropriate identifier that uniquely corresponds to each item listed. See Fed. R. Civ. P. 5.2(g). The amended complaint and all subsequent filings shall be publicly filed and must refer to Defendant only as John Doe and use the identifier provided in the Reference List for other identifying information.... So what do you think happened? Well, first, as has happened in many other Malibu Media cases, the company and its trolling lawyers failed to serve the defendant, so Booth Sweet filed for a motion to dismiss. In response... Malibu Media filed another filing (a "summons and reference list") that was not redacted and not under seal. And did so at a time that made it difficult to fix in a timely manner: On March 13, 2015, Plaintiff, in violation of the Court’s repeated Orders, filed an unredacted summons and reference list with John Doe’s name and address plainly visible. See Docs. 24 & 25. By choosing to file these documents at 8:00 PM on a Friday evening, Plaintiff intentionally chose a time when it would be difficult to correct, and the embarrassment alone might cause John Doe to seek a non-trial disposition just to end the matter. More so, the documents are dated March 12, 2015, further compounding the inference that Plaintiff intentionally waited until Friday evening to file them. Furthermore, Booth Sweet notes that Malibu Media pulled this same damn trick in multiple other cases as well, including another one done late on a Friday evening: Malibu Media v. John Does 1-14, No. 12-cv-0764-BAH, ECF No. 35 (D.D.C. 2012) Plaintiff filed an un-redacted first amended complaint and summons, both identifying the John Doe there by name, in express contravention of the Court’s protective order. Before a sanctions motion was filed, the matter was dismissed due to Plaintiff’s failure to timely serve the complaint. Malibu Media v. John Does 1-14, No. 12-cv-2084, ECF #37 (E.D. Pa. Nov. 1, 2012) Plaintiff filed un-redacted notices “in the other cases affected by the October 3 Order, naming all the Doe defendants” on a Friday evening. Id. at n.1. Malibu Media v. John Does 1- 14, No. 12-cv-263, ECF #48 (N.D. Ind. Dec. 14, 2012) Plaintiff’s motion to strike un-redacted complaint it filed in violation of court order, blaming error on paralegal. In fact, Booth Sweet notes that not only does the unredacted filing late on a Friday seem questionable, the entire filing is questionable as it is entirely inappropriate here: Plaintiff’s deadline to serve the Defendant was February 28. To date, no extension to effectuate service has been granted—which begs the question why these documents were even filed in the first place. These documents are neither necessary at this point in the litigation nor relevant to opposing Defendant’s pending motion to dismiss. However, they are essential to a Plaintiff, who unable to obtain a quick settlement, is all to happy to act out of spite. It really is incredible how frequently we see this kind of gamesmanship in copyright trolling cases. I guess when you look on the federal judicial system as a system worth gaming for extortionate payouts from individuals, it shouldn't be that surprising that the lawyers would also look to game other aspects of the system as well. The judge in the case, Judge Timothy Black, has wasted little time in ordering Malibu Media's lawyer, Yousef Faroniya, to explain why he shouldn't be sanctioned for clearly disobeying the court's orders: Defendant moves the Court to order Plaintiff and its counsel to show cause why they should not be sanctioned or held in contempt for publicly filing Defendant's name and address in contravention of two Court orders directing Plaintiff to file this information under seal. For the reasons set forth in Defendant's motion, the Court finds that Defendant has established a prima facie case that Plaintiff and its counsel "violated a definite and specific order of the court requiring him to perform or refrain from performing a particular act or acts with knowledge of the court's order." ... Accordingly, Plaintiff and its attorney Yousef Faroniya are ORDERED to show cause in writing by March 20, 2015 at 5:00 p.m. why they should not be sanctioned or held in contempt for publicly filing Defendant's name and address in violation of the Court's Orders dated January 21, 2015 and February 26, 2015. Defendant may file a response by March 24, 2015 at 5:00 p.m. The Court will set this matter for a hearing, if appropriate, after receipt of the written responses. The Clerk is DIRECTED to withhold issuance of the summons until this matter is resolved. And, in a footnote, the judge makes it clear that Faroniya "shall specifically address Defendant's allegation that substantially similar conduct has occurred in other cases involving Plaintiff." Given how frequently we see this kind of gamesmanship, it's still somewhat amazing that Malibu Media and its lawyers haven't yet collapsed into a Prenda- or Righthaven-style mess.Permalink | Comments | Email This Story

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The FBI and DOJ are one step closer to having one of their "keeping up with the digital Joneses" requests granted. While the default phone encryption offered by Apple (and at some point in the future by Google) still remains free of law enforcement/intelligence "Golden Backdoors," the agencies are one step closer to being legally permitted to hack nearly any computer in the world. A judicial advisory panel Monday quietly approved a rule change that will broaden the FBI's hacking authority despite fears raised by Google that the amended language represents a "monumental" constitutional concern. The Judicial Conference Advisory Committee on Criminal Rules voted 11-1 to modify an arcane federal rule to allow judges more flexibility in how they approve search warrants for electronic data, according to a Justice Department spokesman. No longer bound by physical jurisdictions, the FBI will be able to perform remote searches all over the globe. This is its "21st century" fix -- a permission slip to implant malicious software in any computer, located anywhere, in order to track suspected criminals. That performing these actions may strain international relationships or break local laws is just the acceptable collateral damage inherent to modern-day crimefighting. There's still plenty of time left before it goes into effect, and several chances that this rule change might be found to be just as potentially damaging -- both to the Fourth Amendment and rights of citizens in other nations -- as tech companies and privacy advocates are portraying it. The judicial advisory committee's vote is only the first of several stamps of approval required within the federal judicial branch before the the rule change can formally take place—a process that will likely take over a year. The proposal is now subject to review by the Standing Committee on Rules of Practice and Procedure, which normally can approve amendments at its June meeting. The Judicial Conference is next in line to approve the rule, a move that would likely occur in September. The Supreme Court would have until May 1, 2016 to review and accept the amendment, which Congress would then have seven months to reject, modify or defer. Absent any congressional action, the rule would take place on Dec. 1, 2016. While the fight against the rule change will continue, its procession through the next couple of steps will likely be as quiet as its passage by the judicial advisory panel. Those in the position to shut this down are going to find it hard to argue against law enforcement and national security talking points. Any light shed on "arcane" federal rules and laws should throw a bit on other outdated pieces of legislation, like the CFAA or the Stored Communications Act, which are more in need of an update than Rule 41. Of course, the DOJ likes those the way they are, what with their broad language and deference to law enforcement. Rather than bring American citizens "up to date" with fixes to those bad laws, we'll likely instead receive expanded government power with no corresponding bump for the governed. And as for the rest of the world -- it will be playing by our rules, whether it wants to or not. Permalink | Comments | Email This Story

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The legacy recording industry continues to seek any possible way to force people to pay, now that many people see no reason to continue to fork over money to the old gatekeepers. After years of seeking increasing "you must be a criminal" levies on hard drives, blank CDs and other media, there has been a more recent focus on just trying to get broadband access providers to add a "piracy tax" to all internet connections. Over in Belgium, the collection society SABAM has been leading this charge. Back in 2011, it suddenly started demanding 3.4% of all internet connection fees from ISPs in Belgium. When the broadband providers refused to just pay up, SABAM sued in 2013. And it's not going particularly well. The court has now rejected SABAM's claims, noting (correctly) that internet access providers are mere conduits and shouldn't have to pay for the actions of their users. This is the right decision, though there's a decent chance that SABAM will appeal. Either way, this shows the incredible entitlement felt by some in the industry. They feel that if people no longer want to pay them, that everyone should be forced to pay. That's really quite incredible when you think about it. In most businesses, if customers are no longer interested in buying what you're selling at the price you're offering, you have to learn to adapt. But the legacy recording industry still seems to think the problem is with the public, rather than with its own business model.Permalink | Comments | Email This Story

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If you recall the responses to Netflix's botched DVD unit spinoff attempt or the outrage over those price hikes from a few years ago, there were many folks who expected Netflix to implode long before it became the powerhouse it is today. According to the latest Nielsen data, roughly 37% of all households now have a Netflix account, and the company plans to reach 200 countries by the end of this year. Netflix has largely revolutionized television, yet for some reason there's a contingent of folks who just can't stop complaining that Netflix should be more like traditional cable. Case in point, Wired complained a few years ago that Netflix wasn't complete until it implemented a channel surfing feature, because having the choice of a mountain of different options was apparently too difficult. Similarly there's been seemingly endless lamentation over the last few years about how Netflix's choice to release seasons all at once is bad because it kills the "water cooler marketing buzz" created as office workers prattle about each week's show plotlines. Of course, as noted previously, people apparently love to binge watch, and there's absolutely nothing wrong in giving the people what they want. Still, the idea that Netflix isn't "cable enough" never seems to go out of style. The latest example comes courtesy of Rex Sorgatz over at The Message, who not only laments that Netflix has destroyed the "water cooler" chatter that helps drive show marketing buzz, but complains that Netflix's release style ensconces him in a cocoon of spoiler paranoia, from whence he's unable to hold any conversations about TV programs without spoilers:"But you see the problem: We can’t talk about buzzy Netflix shows because our schedules are out of sync. The rough expectations for knowing if your friends are on episode 12 or episode 1 have been destroyed. Netflix thinks it has performed a noble act by releasing the entire season en masse, but it has actually wreaked havoc on the best part of television: talking about television."Has Netflix really done that? Really? It seems to me Netflix is giving people what they want -- a whole lot of content to be consumed on whatever schedule people see fit. As Frank Underwood himself noted in 2013, dumping an entire season at once gives viewers the power to do whatever they want. Still, Sorgatz proceeds to argue that this is a "problem" in desperate need of fixing, and as such, he's offered this solution: "This, I propose, is what Netflix, Amazon, and HBO should do. They need to bring back the schedule, updated to modern lives. That schedule should be: Every day, a new episode is released, always at the same time, and blind to time zones. Imagine if House of Cards had played out over two weeks, like a mini-series...Can you imagine? The conversation around this viewing window would be massive, almost unbearable. Fans would feel compelled to catch up every night, so as to be involved in tomorrow’s discussion. And if you missed a day or two, catching up would be painless." Except if you think about it, that actually solves nothing. If I'm able to watch the show on Tuesday night but you've got an evening cheese club meeting, I'll still spoil the show for you when we meet on Wednesday. Here's a crazier idea: we just accept that Netflix is very different from the traditional cable experience (which is still available if that's your preference by the way), and that this is a good thing? It seems so much simpler than endlessly complaining that Netflix isn't more like a cable TV industry most of us agree is in desperate need of a sharp kick in the ass.Permalink | Comments | Email This Story

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While dumb criminals doing dumb criminal-y things with technology aren't exactly new around Techdirt, we can't help but be amazed at the things some of these folks think they're going to get away with. That said, much of the silliness tends to occur after the fact. A murderer takes a selfie with his victim after the crime is committed. A phone thief uses the stolen phone to upload selfies of himself to his victim's account. A teen pimpette brags about her crimes after committing them. But, in what may be a first, today we bring you a UK man who proactively used social media to post the location of his to-be-committed robbery before then committing said robbery. Not surprisingly, it didn't take long for the public and the police to put two and two together. Andrew Hennells, 32, posted a comment on his profile which read: "Doing. Tesco. Over" at 19:25 GMT on 13 February. Just 15 minutes later, after he had held up the King's Lynn store, police caught Hennells with a knife and £410. I must commend Hennells on his attempts to streamline police action this way. With all the fervor we've heard about attempts to use technology for so-called pre-crime efforts, folks like Hennells might give potential investors of those prospective systems pause as they negate their use entirely. Now, police weren't solely reliant on the Facebook posts to put Hennells in cuffs, but they obviously didn't harm the effort. Sgt Pete Jessop said Hennells's Facebook confession had made it easier to secure a guilty plea. "It was a bizarre and unusual case," he said. "The pictures and posts on Facebook helped us confirm what we already knew. None of this takes away from the seriousness of the crime or the trauma experienced by the victims of the robbery." No, but it sure is good for a chuckle at the stupid. God's speed, Mr. Hennells. Permalink | Comments | Email This Story

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Mother Nature is actually really good at making some impressively strong and tough materials. Kevlar and steel are pretty strong and useful, but there are a few natural materials that are stronger. Spider silk has been a synthetic target for decades, but being able to create just the spider silk protein isn't enough to make super strong fibers. Spiders actually produce different kinds of silk for different purposes with different mechanical properties, and the process of spinning spider silk isn't easy to duplicate without using spiders. If we're going to use less "plastic" in the future, we might need to figure out how to re-create some unique natural materials. The strongest natural material was previously thought to be spider silk, but the teeth of a type of mollusk (a limpet) is apparently stronger -- with a very high tensile strength that exceeds spider silk and Kevlar. Limpet teeth consist of protein packed with nanofibers of a mineral called goethite, and this composite material has a unique ability to maintain its strength regardless of its size -- usually larger structures tend to break more easily than smaller ones because they contain more flaws. [url] Tough seashells and corals are made of calcium carbonate, and it's been a mystery how this material forms -- but a piece of the puzzle has been found. Calcium carbonate can take the form of calcite or aragonite (and usually crystallizes into aragonite in seawater), but when the concentration of magnesium is reduced or eliminated, only calcite will form. If researchers can generalize the ability to predict crystal structure formation, it could have practical applications for a variety of material science problems. [url] Spider silk is often cited as being "stronger than steel" with possible applications for bulletproof vests or other amazing things. The problem is actually making spider silk on a large scale -- which means making the silk without growing a massive number of spiders. Various methods have been tried, such as using genetically modified bacteria, goats, silkworms, and alfalfa to produce strong silk fibers, but so far, we haven't quite been able to reproduce desirable spider silk fibers without using spiders. (There is at least one commercial use of spider silk, but it's used as a powder, not a fiber, for cosmetics.) [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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Vigilant Solutions' automatic license plate readers are everywhere, even places where you wouldn't expect them. Like, mounted on private companies' vehicles. This isn't new. BetaBoston investigated the private ALPR growth industry early last year. Unfortunately, there's been very little good news to report since then. In fact, there still isn't. Vigilant's ALPR database currently houses more than 2 billion plate scans, with nearly 100 million more being added every day by law enforcement agencies and repo companies. It actually has two databases. One can be plugged into by law enforcement. The other, housed by Vigilant-owned Digital Recognition Network, can be accessed by certain members of the public: car dealers, insurance companies, private detectives… basically anyone willing to pay access fees and who can offer a suitable justification for digging through a multi-billion plate database. But when confronted with the possible privacy issues this massive database creates, the company is swift to point out the obvious: license plates on vehicles are, in fact, public. But this justification for the creation of the database fails to carry over to those requesting information about what's in the database. Public records requests have routinely been denied by law enforcement, who claim releasing publicly-obtained, by definition public, license plate photos is somehow a privacy violation. Todd Hodnett, founder of Digital Recognition Network (corporate "child" of ALPR manufacturer Vigilant Solutions), says privacy concerns should be addressed by anyone but the company making the ALPR equipment and the one housing billions of plate photos accessible by non-government entities. Hodnett… added that state and federal laws protect the privacy of motorists' information. State lawmakers, he said, could instead focus on restricting public access to the records and requiring state government oversight and more transparency. He also points out the hypocrisy of the current situation: "For the state on one hand to require that you place a license plate with six or eight alphanumeric characters on your vehicle and then on the other hand come back and say that is private - well it doesn't make any sense," he said. "It is not private. Otherwise, how could they require you or mandate you to expose it?" It's a good point, but one Hodnett ultimately doesn't care about. At present, plates are considered "public" -- which allows his company to do what it does with no legal ramifications. And when the massive database of plate and location info is threatened, DRN's parent company (Vigilant) is prone to filing lawsuits claiming its license plate photography is protected speech. It also goes to great lengths to portray any limitation of its plate readers as a threat to public safety. Brian Shockley — vice president of marketing at Vigilant — plans to warn legislators that Massachusetts risks getting left behind in the use of a new tool that helps fight crime. “I fear that the proposed legislation would essentially create a safe haven in the Commonwealth for certain types of criminals, it would reduce the safety of our officers, and it could ultimately result in lives lost,” Shockley is scheduled to say in testimony prepared for the hearing before the Joint Transportation Committee. This may sound reasonable, but Shockley's claim doesn't stand up to scrutiny. As it stands now, ALPRs seem nearly as likely to return false positives as generate useful leads. Until there's any serious pushback, Vigilant is free to arm both cops and citizens with plate scanners and sell access to both. And until someone starts seriously considering the fact that a plate/location database containing billions of records unrelated to criminal activity might be a bit of a privacy issue (in terms of long-term tracking of people's movements), Vigilant has no reason to alter even the most questionable of its practices. After all, it's not as if law enforcement agencies and their private customers (through DRN) have any problem with limitless collection and retention. Fulton County Police Dept. Corporal Kay Lester: "Per our understanding, the data that we contribute stays on the database indefinitely," Lester said in an email. "We can change the time frame if we choose, but since the data is only accessible to (law enforcement agencies), we currently have elected not to do so." This is the standard m.o. for most law enforcement agencies in the country. As McClatchy reports, only 10 states have implemented laws governing collection and retention of license plate photos. There's even less oversight of Vigilant's "private" collection -- the database accessible by corporate customers. Until laws are passed governing the private side of Vigilant's collection activities, the company is free to hold onto everything forever. Permalink | Comments | Email This Story

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Last week we wrote about the hypothetical situation of CCTV cameras being installed in every home. It turns out that this particular dystopia is closer than we thought: an article by Kashmir Hill on the Fusion site passes on the news that Hertz is putting cameras inside its rental cars as part of its "NeverLost" navigational system: Hertz has offered the NeverLost navigational device for years, but it only added the built-in camera feature (which includes audio and video) to its latest version of the device -- NeverLost 6 -- in mid-2014. "Approximately a quarter of our vehicles across the country have a NeverLost unit and slightly more than half of those vehicles have the NeverLost 6 model installed,” Hertz spokesperson Evelin Imperatrice said by email. In other words, one in 8 Hertz cars has a camera inside -- but Imperatrice says that, for now, they are inactive. "We do not have adequate bandwidth capabilities to the car to support streaming video at this time," she said. So why did it install them? "Hertz added the camera as a feature of the NeverLost 6 in the event it was decided, in the future, to activate live agent connectivity to customers by video. In that plan the customer would have needed to turn on the camera by pushing a button (while stationary)," Imperatrice explained. "The camera feature has not been launched, cannot be operated and we have no current plans to do so." But of course, Hertz would hardly go to the trouble and expense of fitting its cars with this feature unless, at some future point, it did plan to use them. Morever, that future use might go well beyond "live agent connectivity", as Hill rightly points out: you could imagine camera mission creep, such as Hertz using it to capture video of what a trouble renter is up to in the vehicle, or to see who is really driving the car, or to snoop on a singing -- or snuggling -- driver. According to the Fusion article, Hertz doesn't seem to be telling anyone about the camera, on the grounds that the company doesn't plan to use it, and so there's nothing for customers to know. But if and when it does announce its presence, there will be precisely the problem Techdirt mentioned last week: that people in front of it would naturally be worried they were being spied upon -- even if assured to the contrary -- and would start constraining their speech and behavior. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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