posted 12 days ago on techdirt
Phew. For quite some time now we've been following the curious case of Cindy Garcia, who by all accounts was duped into being an actress in a film that was eventually sorta/partially released on YouTube as "Innocence of Muslims" and was cited by some as causing violence around the globe (a claim that others dispute). Garcia, for perfectly good reasons, was not happy to be appearing in a controversial film that was entirely different than the film she thought she was in. However, she then tried to use copyright law to take the film down. This seemed laughable on its face, and the district court quickly dismissed it. To the surprise and horror of many, however, on appeal, the 9th Circuit, led by Judge Alex Kozinski, overturned widely settled law for decades and claimed that the copyright claim was valid and further ordered Google/YouTube to block every copy of the movie -- which most people thought was a clear case of prior restraint against the First Amendment. After some back and forth, the 9th Circuit agreed to rehear the case with a full slate of 11 judges (en banc). The case was heard late last year and just today, the 9th Circuit dissolved its previous ruling and is now upholding the district court ruling against Garcia. Judge Kozinski dissented, not surprisingly. Disclaimer: We filed an amicus brief in this case as well. The ruling, written by Judge Margaret McKeown gets right to the point, copyright is not supposed to be used for outright censorship: In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship. As pretty much everyone has noted, the court also points out that it's sympathetic to the position that Garcia was put in by events out of her control. However, that is no excuse for abusing copyright law for the sake of censorship. We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law. And, what that means is that Garcia has no copyright interest just because she appeared in the film. The court repeatedly notes (as did many others) that even the US Copyright Office denied Garcia's attempt to copyright her performance. And, further, notes that if the court were to accept Garcia's claim it would create quite a mess for copyright law: Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed—splintering a movie into many different “works,” even in the absence of an independent fixation. Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.” Take, for example, films with a large cast—the proverbial “cast of thousands”—such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands. The court actually spends a lot of time on this, noting what a ridiculous situation it would make for the entire movie industry, which again raises serious questions about why the MPAA chose not to participate in this case. Untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots. And filming group scenes like a public parade, or the 1963 March on Washington, would pose a huge burden if each of the thousands of marchers could claim an independent copyright. Even beyond the whole swiss cheese thing, the court rightly points out that copyright is given to those who "fix" the work in a tangible medium, and Garcia did, well, none of that: Garcia’s copyright claim faces yet another statutory barrier: She never fixed her acting performance in a tangible medium, as required by 17 U.S.C. § 101 (“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”) (emphasis added). According to the Supreme Court, “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” .... Garcia did nothing of the sort. For better or for worse, Youssef and his crew “fixed” Garcia’s performance in the tangible medium, whether in physical film or in digital form. However one might characterize Garcia’s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film’s ultimate rendition or how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed “by or under [her] authority.” Finally, even though it notes it does not need to, the court addresses the question of "irreparable harm" which was a key part of Kozinski's original ruling. Here, the court rightly points out that, while Garcia may face harm, it's not because of the copyright and abusing copyright law to protect against such harm is not what the law allows. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression. In broad terms, “the protection of privacy is not a function of the copyright law. . . . To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author.” The court further cites cases such as Scientology abusing copyright to try to suppress a study and Hulk Hogan suing Gawker to suppress a sex tape, to show that, while many people seek to abuse copyright law in this manner, it is totally inappropriate. And then there's this: Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a “right to be forgotten,” although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States. And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems: The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar. [....] The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech..... Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,”... and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance. Well done, 9th Circuit. Of course, it's still bizarre it took you two tries to get it right. There is a "concurring" opinion from Judge Paul Watford, in which he argues the majority decision went too far in making broad claims, and he would have preferred a more narrow (and less useful) ruling, focusing solely on the "irreparable harm" question and leaving aside the entire (important) question of whether or not Garcia had any copyright interest in the film. Thankfully, the majority of the panel did not agree with him. And, finally, we get to Kozkinski's panicked defense of his own original ruling: Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit. Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but... In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it. Kozinski is wrong. As most of the rest of the court and the Copyright Office and tons of copyright experts all seem to recognize, Garcia has no copyright interest in her performance. She did not fix it in a tangible medium. Kozinski goes on to argue that this ruling is what will create a true mess of copyright law: The implications are daunting. If Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be “works” under the majority’s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book? Or if part of the draft gets included, is there no copyright in the rest of it? I think the majority ruling does a damn good job responding to this point, by pointing out that it's "moral outrage and colorful language" more than legal analysis: The dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 35, 38. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution. All in all, while it's ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.Permalink | Comments | Email This Story

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Backyard BBQ season is upon us giving us great reasons to head outdoors with family and friends. It's always nice to have a little background music to set the mood. The Sound Kick Bluetooth Speaker (50% off in the Techdirt Deals store) can give you up to seven hours of playtime and could be the speaker you're looking for. This award winning speaker combines portability (it weighs less than two pounds) with a full sound. It has a USB power port that allows you to charge your device while plugged into the speaker and it comes with a simple line-in option that works with a standard headphone jack. This deal comes with free shipping to the continental US. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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So things just keep getting stranger and stranger online. A bunch of mobile operators are apparently planning to start automatically blocking all mobile ads. Now, for those of you who hate ads online, this might seem like a good thing, but it is not. If you want to disable ads on your own, that should be your call. In fact, as we've noted before, we think people on the web have every right to install their own ad blockers, and we find it ridiculous when people argue that ad blocking is some form of "theft." But this is different... and this is dangerous. As the reports make clear, this move has nothing to do with actually protecting the public from malicious or annoying ads... and everything to do with the mobile operators hoping to shake down Google. The plan – which would be devastating to companies reliant on advertising – is not limited to a single European network. Its apparent aim is to break Google’s hold on advertising. The FT report says that “an executive at a European carrier confirmed that it and several of its peers are planning to start blocking adverts this year” and will be available as an “opt-in service” however they are also considering applying the technology across their entire mobile networks. And, the clear plan is to then go to Google and say "give us money or else": The unnamed European carrier in the Financial Times article is reportedly planning to target Google and block its ads to force the company into giving up some of its revenue. The companies are using a product called Shine, which has a big bullshit claim on its page that it "champions the consumer's rights to control mobile ads." If that were the case it would be offering the tool to consumers. It's not. It's selling to big service providers, and then letting those service providers spy on all of your surfing in order to remove the ads. This should be a serious concern for anyone using a service that signs up for Shine. Even if it's an "opt-in" offering, what the company is really doing is a form of deep packet inspection and blocking your mobile internet from acting the way it should. In other words, this looks like a net neutrality violation on a large scale. As we've pointed out in the past, the broadband providers aren't stupid. They know that if they go for a direct plan of blocking or degrading apps you like, it gets people angry. So they look for ways to break net neutrality that look like they're doing the consumer favors -- things like zero rating, and now this. But that's not what's happening at all. This is all just the exact same plan as many broadband providers have had for years: figure out a way to pressure Google into coughing up some of its revenue, not by earning it, but by creating a mess for the company. And, in the process, it's causing a mess for users by mucking with their internet connections, doing deep packet inspection, and blocking content.Permalink | Comments | Email This Story

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Considering the extent of its (most web-related) censorship efforts, South Korea must consider itself fortunate to be next-door neighbors with North Korea. Any time another censorship effort arrives, all the government has to say is, "Hey, at least we're not as bad as…" while pointing its index fingers in an upward/roughly northerly direction. It blocks sites and web pages with gusto, subverting its own technological superiority by acting as a Puritanical parental figure. Not that it helps. Every time the government ropes off one area, citizens carve out another. Four years ago, it attempted to pass a law making government-approved computer security software installation mandatory, supposedly in hopes of heading up the enlistment of citizens' computers into botnet armies. Now, it's telling parents they must install government-approved and crafted spyware on the smartphones of any children under the age of 19. The app, "Smart Sheriff," was funded by the South Korean government primarily to block access to pornography and other offensive content online. But its features go well beyond that. Smart Sheriff and at least 14 other apps allow parents to monitor how long their kids use their smartphones, how many times they use apps and which websites they visit. Some send a child's location data to parents and issue an alert when a child searches keywords such as "suicide," ''pregnancy" and "bully" or receives messages with those words. Last month, South Korea's Korea Communications Commission, which has sweeping powers covering the telecommunications industry, required telecoms companies and parents to ensure Smart Sheriff or one of the other monitoring apps is installed when anyone aged 18 years or under gets a new smartphone. The measure doesn't apply to old smartphones but most schools sent out letters to parents encouraging them to install the software anyway. No one appears to have taken a close look at the inner workings of "Smart Sheriff" at this point, but a similar app known as "Smart Relief" also allows parents to monitor their children's' smartphone activities and sends alerts triggered by any of the 1,100+ words on its watchlist. Some terms it monitors (both in text messages and searches) would obviously raise concerns in parents. Threat, kill, shut up, violence, destroy, handicap, crazy, prostitute, garbage, thief, porn, suicide, pregnancy, inn, obscene, sex, sexual crime, sexual relationship, prostitution, motel, beer, rape, adultery, run away from home, outcast, invisible person, don't have friends, jealousy, lonely, stress, don't want to live, loser, complaint, help, worry, menstruation, adoption, divorce, rape, homosexual love, single parent, IS, terrorism, poison Other trigger terms seem to do nothing more than give parents a reason to lock their kids up until they're old enough to move out: Girl I like, boy I like, dating, boyfriend, girlfriend, breakup… This new mandate is obviously creating a chilling effect. Some have noted the Smart Sheriff app may give government agencies access to minors' communications, all under the pretense of helping parents out. Nearly 80% of South Korean schoolchildren (teens and elementary students) own smartphones. That's a whole lot of communications potentially being delivered to law enforcement and intelligence agencies (if not also to schools and service providers). As a result, smartphones are now no longer viewed as essential equipment by teenagers. To get around the regulations, some students say they will wait until they turn 19 to get a new phone. "I'd rather not buy a phone," said Paik Hyunsuk, 17. "It's violation of students' privacy and oppressing freedom." Open Net Korea, which has tracked South Korean censorship efforts for years, has a translation of the law's stipulations, which not only requires installation of government-approved spyware apps, but also stipulates cellphone providers actively hassle parents who don't seem to be taking the mandated monitoring seriously. Article 37-8 (Methods and Procedures for Providing Means to Block Media Products Harmful to Juveniles, etc.) (1) According to Article 32-7(1) of the Act, a telecommunication business operator entering into a contract on telecommunications service with a juvenile under the Juvenile Protection Act must provide means to block the juvenile’s access to the media products harmful to juveniles under the Juvenile Protection Act and the illegal obscene information under Article 44-7(1)1 of the ICNA (“Information harmful to juveniles”) through the telecommunication service on the juvenile’s mobile communications device such as a software blocking information harmful to juveniles. (2) Procedures prescribed below must be followed when providing the blocking means under (1): At the point of signing the contract: a. Notification to the juvenile and his/her legal representative regarding types and features of the blocking means; and b. Check on the installation of the blocking means. After closing the contract: Monthly notification to the legal representative if the blocking means was deleted or had not been operated for more than 15 days. So, not only is it censorware and spyware, but it's also apparently nagware -- with telecom reps calling or emailing every month to remind parents to perform their duties as proxy surveillance operatives for the South Korean government. Permalink | Comments | Email This Story

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posted 13 days ago on techdirt
This week, the man behind the Stanford Prison Experiment went on a tear against videogames and all sorts of associated culture (reduced to its most gauche symbols). PaulT took first place for insightful by tearing apart his vitriol: "When I'm in class, I'll wish I was playing World of Warcraft" ...as opposed to the "I'll wish I was doing almost anything else" that was the norm before WoW existed? Or, is he pretending that the world was full of dedicated studious children before that? "When I'm with a girl, I'll wish I was watching pornography, because I'll never get rejected." Because porn is a brand new thing that never existed before the internet, and teenagers would never fear rejection if it weren't for porn? "Zimbardo defines excessive porning and video gaming as more than five hours a day" How does this compare to other similar activities such as watching TV? I'll never take any of these people seriously if they pretend that watching hours of trashy reality TV and soaps is OK or that lounging around watching football is fine but it suddenly becomes a problem when you have a controller in your hand. "He added that young men are drinking Coke instead of alcohol and becoming "fat-asses." ...because nobody got fat from drinking beer? Because instead of a fatass playing games in their room, what you really need is a pissed-up teenager with nothing productive to do outside the home? "Unsurprisingly, Zimbardo has recently published a book dealing with these very issues." Ah, OK. So, instead of a dickhead being paranoid about videogames and presenting half-assed research and long-outdated stereotypes as mere fearmongering, he's doing it to make money from book sales? That's not better. What a shame that people will swallow this rubbish rather than dealing with some of the real issues (such as parents who use games and TV as babysitters because they don't have time for productive parenting, have swallowed the 24 hour news cycle exaggeration of danger outside the home, etc). Meanwhile, in a guest post, law professor Michael Carrier laid out countless examples of how technology has benefited musicians, and jupiterkansas won second place for insightful by pointing out that not only does this disprove the RIAA's idea that the music world is ending, it makes them look pretty useless, too: This article lists over a dozen services that any of the major record labels had more than enough resources to create in the last 20 years as a service to musicians - the kind of service they're supposed to be providing. It's their own fault they couldn't see the future past the bottom line. For editor's choice on the insightful side, we start out with the story of yet another company trying to retain ownership of the stuff it sells you via copyright on the software. In this case it was John Deere, prompting one anonymous commenter to point out just how absurd the entire idea is: Additionally, there is about zero market for pirated tractor software. The software is useless unless you own a compatible tractor (and thus you already own a copy of the software.) The copy protection does nothing legitimate. Next, we've got a response from John Fenderson to the latest murmurs from the Internet Security Task Force (actually a coalition of movie studios) — not so much its unsurprisingly-ridiculous statements, but its blatantly manipulative branding: I also like how they call themselves the Internet Security Task Force (ISTF). This is obviously intended to cause confusion with the legitimate and not-corporate-lobby-group, the Internet Engineering Task Force (IETF). They're probably hoping that they will benefit from the established legitimacy of the IETF. Way to not be sleazy, guys! Speaking of entertainment branding, our first place comment on the funny side this week comes in response to the cable industry's decision to distance itself from the word "cable" and drop "The Cable Show" as the name of its annual trade conference. One anonymous commenter had a suggested alternative: Ok let's just call it the Anti-consumer Show then. Next, we've got a bit of an odd one. The aforementioned post about the benefits of technology for creators, and the lies and failures of the RIAA, prompted a vicious but completely-unsupported rebuttal from someone named Phil. It certainly didn't seem like a joke, so the fact that it won second place for funny really illustrates the difference between "laughing with" and "laughing at": As a professional musician earning a terrible living in the industry since 1999, I want to say that the level of ignorance of what musicians are dealing with in 2015 expressed by the authors of this blog and by the commentors here is astounding and depressing. In the 5 minutes I spent reading this rant and the comments that followed it, I was overwhelmed by the number of misinformed or logically faulty arguments expressed. I love debating on the internet and I've had no problem dealing with presidential elections, hot-button social issues, pressing scientific controversies, etc. But the sheer asshattery and blindness expressed here just leaves me speechless. All of you musically ignorant fucks completely deserve the dark ages of original music that is forming even as you dissemble and make endless excuses for the low value that our modern economy has affixed to original music... That sad thing is that from what I can tell, most Americans' musical literacy is so abysmal that they will never be aware of what they have lost. For editor's choice on the funny side, we've got two quick and punchy lines. First, a response from Michael to Wyoming's attempt to control reporters and hide the fact that its streams are contaminated with e. coli: Bullshit in streams leads to bullshit in legislature. Finally, we've got what might be the simplest, most elegant response possible to the sad, amusing announcement that Verizon is buying AOL: Two turkeys don't make an eagle. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 14 days ago on techdirt
Five Years Ago This week in 2010, another shot was fired in the ongoing Apple-Nokia patent war, and in the Apple-HTC war as well. Wired was thus inspired to take on the smartphone patent thicket, and all this was at a time when the USPTO was ramping up patent approvals. On the flipside, though, we also saw the birth of the Defensive Patent License. The RIAA racked up another legal win, this time in its lawsuit against LimeWire, while the YouTube-Viacom case was still winding its way through the court with some amicus briefs that tried to rewrite the DMCA. The Hurt Locker producers were just gearing up for their now-infamous plan to go after thousands of filesharing fans, Games Workshop was suing a Warhammer fan site over trademark issues, and music publishers were still trying to get money from lyrics websites. At least the EU Digital Commissioner recognized the market created by piracy, Brazil decided against a notice-and-takedown system, and the estate of Roy Lichtenstein backed down from threats against a band that appropriated some of the same material used by the famous artist. The Humble Bundle, now an online fixture, was just beginning to strut its stuff and show off some extremely impressive numbers. While the Bundle was going open-source, Rockstar was amusingly caught selling a pirated version of their own game on Steam in order to get around the disc-based DRM they had originally saddled it with. But President Obama was brushing off the whole world of videogames (and tablets, and iPods...) as diversions and distractions. Ten Years Ago In 2005, Napster was in its "legal service" phase, and trying to get into the ringtone market (though record labels were getting fighty over those, too). Speaking of tough rebrandings, former RIAA CEO Hilary Rosen (architect of lawsuits against individual downloaders and anti-consumer policies) was trying to pass herself off as a consumer rights defender. Former Universal Music head Edgar Bronfman Jr., since moved on to Warner Music, was not doing so great in his new gig, and we started to notice other businesses facing new digital challenges, like wedding photographers. Also in 2005: Google went down for a terrifying 15 minutes this week in 2005, followed by some serious eBay outages; Bill Gates made the not-at-all-biased prediction that Windows-based phones would replace iPods (though I guess he was only one word off) while Microsoft was doling out the intellectual property propaganda; Blockbuster was getting ready to give up on online rentals, people were starting to catch on to free credit report scams, and newspapers were trying their hardest to beat Craigslist at its own game. Last but not least, Techdirt held a party to celebrate our 25,000th post. Fifteen Years Ago Bill Gates had some stupid things to say this week in 2000, too. This time it was the claim that if Microsoft was broken up into separate companies, there would be no tablet PCs and Windows never would have had a taskbar. Uh, sure. Napster's position was far more nebulous at this time, with the CEO giving interesting interviews while also caving to Metallica's ban-demands. Of course, this latter event inspired someone to (probably jokingly) start working on a Napster-clone for Metallica songs only. Volkswagen was the first carmaker to get their dealers on-board for direct online car sales (somehow). There were other areas of retail where it wasn't clear that brand mattered much at all. The broader world of ecommerce, plus issues surrounding Napster and eBay, started raising serious liability questions. The internet was of course still raising various underthought social objections too, but some people were starting to push back, noting that the internet keeps lots of people in touch who wouldn't be otherwise, and genuinely makes people closer. And, nearly fifteen years before the launch of our new podcast, Techdirt made a foray into online radio. Forty Years Ago Sony Corp. v. Universal City Studios, the battle fought over Sony's Betamax technology which established the legality of home recording, was a major turning point in modern copyright law. It introduced the question of "substantial noninfringing uses" that has come up time and time again in more recent lawsuits over copying and sharing technology, with mixed results. But it was on May 10th, 1975 that the seed was planted for the whole shebang: Sony released Betamax, in Japan, for the very first time. Permalink | Comments | Email This Story

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Batteries are the bane of our mobile existence, limiting the usefulness of our devices and bottlenecking the power that can be built into them. External battery packs have unsurprisingly become a popular item, but with heavy usage they are just another device that needs to be regularly replaced, and another source of batteries that end up in the trash. For this week's awesome stuff, we're looking at the BETTER RE: a small piece of inspired engineering that aims to stem that waste and expense by making old smartphone batteries reusable as external battery packs. The Good BETTER RE is, quite simply, a universal smartphone battery adapter. You can hook up any battery inside the chassis and the BETTER RE lets you charge it up and use it to charge your devices. This just seems like a great idea. The creators rightly point out that device-churn has picked up the pace, and today the average smartphone is thrown out while its battery still has lots of life left. This is incredibly inefficient and expensive, not to mention a serious disposal headache and environmental concern — and now we're putting millions of additional external batteries in circulation alongside the phones themselves. The BETTER RE stems that tide from both directions, extending the usefulness of phone batteries and reducing the need for new externals. For the individual, it means a powerpack that lasts forever instead of wearing itself out — plus you can use it as a secondary charger, with quick and simple test functions, making it easier to have multiple phone batteries in rotation. There are also stackable expansion units, so you can amp up those old batteries to charge new, high-power devices. At $50, the BETTER RE is not dirt-cheap but it seems quite reasonable when you consider that it won't need to be regularly replaced the way batteries themselves do. And as a cool bonus, the creators have been stockpiling and testing old batteries, and will throw them in for $10 a piece on top of the regular pledges. The Bad Even the BETTER RE can't truly free us from the tyranny of batteries. There are some obvious limitations to the device when compared to a dedicated high-power battery unit: though it's great for smaller phones, even with three units stacked it can't quite give a full charge to an iPad Air, and the charge it does give takes hours; though it's currently designed to work with just about any smartphone battery of any size, there's no guarantee that compatibility will remain; and, of course, more and more devices are being built with non-removable batteries, which could put the brakes on the entire idea. Because of all this, I actually suspect that the biggest markets for the BETTER RE won't be wealthy high-tech countries but rather parts of the world where cheaper, smaller phones still reign supreme — and that's not a problem, as many devices have found huge success and made a real impact by targeting such markets. The Stylish Function is what makes the BETTER RE interesting, but it bears mention that it's no slouch on the fashion front either. It's built from aluminum (in white or black, brushed or matte, all of which look very nice in the product shots) and walnut and maple hardwood. As a nice bonus, laser-engraving on the wood endpiece is included with most backer tiers. Permalink | Comments | Email This Story

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Back in March, we reported on a campaign in Japan seeking to raise awareness about the extreme copyright provisions in TPP. Of course, making copyright even more unbalanced is just one of many problems with TPP, and arguably not even the worst. Now activists in the country have launched a much broader attack on the whole agreement by filing a lawsuit against the Japanese government in an attempt to halt its involvement in the talks. As Mainichi reports: A total of 1,063 plaintiffs, including eight lawmakers, claimed in the case brought to the Tokyo District Court that the Trans-Pacific Partnership pact would undermine their basic human rights such as the right to live and know that are guaranteed under the Constitution. The envisaged pact would not only benefit big corporations but jeopardize the country's food safety and medical systems and destroy the domestic farm sector, according to their written complaint. As well as oft-voiced concerns that Japan's key agricultural sector would be harmed, the plaintiffs are also worried that TPP will push up drug prices -- something that is a big issue for other nations participating in the negotiations. The new group rightly points out that corporate sovereignty jeopardizes the independence of Japan's judicial system, and said that the secrecy surrounding the talks: violates the people's right to know as the document is confidential and the negotiating process will be kept undisclosed for four years after the agreement takes effect. Although it is hard to judge how much of a threat this move represents to Japan's continuing participation in TPP, the legal firepower behind it is certainly impressive: according to the Mainichi story, there are 157 people on the legal team. At the very least, it shows that resistance to TPP and its one-sided proposals is growing -- and not just in the US. But you can't help thinking it would have been a good idea for concerned Japanese citizens to have made this move earlier, rather than leaving it to the eleventh hour, with TPP close to the finishing line. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Some NYPD officers have continued to cling to the belief that citizens aren't allowed to film them, despite plenty of documentation otherwise. A letter issued to the Baltimore PD, but that CC'd law enforcement in general noted that "the justification for [filming police] is firmly rooted in longstanding First Amendment principles." (The footnote appended to this added: "There is no binding precedence to the contrary.") The NYPD's own Patrol Guide states this: “[T]aking photographs, videotapes or tape recordings” do not constitute probable cause for arrest or detention so long as the activity does not jeopardize the safety of officers or others. The NYPD's chief of federal litigation likewise reminded officers that bystanders could film police officers provided they didn't interfere with duties or operations. It would seem to be clearly established (including decisions to this effect from all but one circuit court in the US) and yet certain officers are still shutting down citizens with cameras and arresting them on clearly bogus charges. The NYPD is currently facing a lawsuit from the ACLU that hopes to obtain a ruling declaring this activity to be covered by the First Amendment. That lawsuit may ultimately prove to be extraneous as the Southern District of New York (which oversees New York City) has now confirmed that citizen recordings are protected First Amendment activity. The facts behind the suit are this: Douglas Higginbotham was covering the Occupy Wall Street protests for a New Zealand TV station. While shooting footage from atop a phone booth, he was ordered to get down by NYPD officers. He attempted to climb down but there were too many people crowded around the booth. So, the cops dragged him down by his feet, damaging his camera in the process. He was then cuffed with zip ties for three hours (and sprung from them with a butter knife because the NYPD is apparently more interested in the cuffing process than the releasing process) and charged with disorderly conduct. Higginbotham claimed the arrest was performed in retaliation for his filming police officers, and as such, was a false arrest. The NYPD countered by claiming Higginbotham's supposed "failure to disperse" justified the charge. The court found otherwise: The parties dispute whether, as a journalist covering the protest, Higginbotham can properly be said to have been “congregating” with the protesters within the meaning of the statute. The Court need not resolve this question, however, because there is a different reason why the statute does not cover Higginbotham’s conduct: the defendants’ order for Higginbotham to climb down from the telephone booth was not an order to “disperse.” That word, as used in the statute, means “[t]o separate, go different ways.” Oxford English Dictionary (2d ed. online version Mar. 2015). There is no allegation that Higginbotham was ordered to “separate” himself from the rest of the crowd, by leaving the scene of the protest. On the contrary, as alleged, the defendants instructed that he climb down from the phone booth into the crowd. Further, “[a] group can disperse; an individual cannot.” Because the defendants’ order was directed at Higginbotham alone, it could not be an order to disperse. The NYPD also raised a variety of other justifications for this arrest (including potential damage to the phone booth and creating a "hazard" by his being on top of the phone booth) but these were also dismissed as inapplicable by the judge. The department also claimed that, even if there were no legitimate reason to arrest Higginbotham, the officers were entitled to qualified immunity. In support of qualified immunity, the defendants merely summarize their version of the facts and assert that “the officers were objectively reasonable and patently not incompetent.” (Defs.’ Br. 12.) At the summary judgment stage, they will have the opportunity to try to demonstrate this by submitting evidence showing that reasonably competent officers in their situation could have at least disagreed on whether probable cause existed. Based solely on the complaint, however, the Court cannot conclude that this must have been the case. Finally, the court addresses the First Amendment issue, and here the NYPD officers again attempt to claim immunity. The defendants further assert that they are entitled to qualified immunity because the right to record the police is “insufficiently defined.” The "no one directly -- at that moment -- told us not to" defense is one that should be undermined considerably by statements and policies issued by the NYPD itself. The court doesn't need a copy of the Patrol Guide to arrive at the same endpoint. The Court concludes, however, that the right to record police activity in public, at least in the case of a journalist who is otherwise unconnected to the events recorded, was in fact “clearly established” at the time of the events alleged in the complaint. When neither the Supreme Court nor the Second Circuit has decided an issue, a court “may nonetheless treat the law as clearly established if decisions from . . . other circuits ‘clearly foreshadow a particular ruling on the issue.’” The court then goes on to point out that the First Amendment rights the officers claimed were "insufficiently defined" had been clearly established by years of precedent rulings. Certainly, the right to record police activity in a public space is not without limits, and some uncertainty may exist on its outer bounds. For instance, it may not apply in particularly dangerous situations, if the recording interferes with the police activity, if it is surreptitious, if it is done by the subject of the police activity, or if the police activity is part of an undercover investigation. As alleged, however, Higginbotham’s conduct falls comfortably within the zone protected by the First Amendment. The complaint alleges that he was a professional journalist present to record a public demonstration for broadcast and not a participant in the events leading up to the arrest he was filming. There is nothing in the complaint suggesting that his filming interfered with the arrest. Accordingly, and in light of the case law consensus described above, a reasonable police officer would have been on notice that retaliating against a non-participant, professional journalist for filming an arrest under the circumstances alleged would violate the First Amendment. Now, this is still far from the final ruling, so there's no precedent specific to the NYPD's territory set at this point. But the court's denial of qualified immunity in respect to Higginbotham's First Amendment claims serves notice that future assertions of well-meaning, not-patently-incompetent ignorance won't be entertained by this court. The plaintiff's suit will move forward and the officers accused of taking retaliatory action against a photographer will have to move right along with it. I would expect a settlement in the near future if the NYPD wishes to prevent the Second Circuit from joining the rest of the circuit courts in establishing a First Amendment right to record. Permalink | Comments | Email This Story

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Robots are poised to take over a LOT of repetitive tasks that people are still doing because it's been hard to get computer vision and robot arms to replicate some kinds of detailed work. Machines are getting a better quickly, though, and plenty of manual labor jobs could be eliminated in the near future. Automation isn't quite ready to take over a huge fraction of the labor market just yet, but it might not be too long before no one will be able to joke about young kids looking for an unskilled job and upselling fries with a fast food order. A home-cooked meal could be made from scratch by a $15,000 robot in 2018 (brought to you by Moley Robotics). Do not get in this robot's way... or else "to serve man" may have an undesired meaning. [url] Fast food might be prepared faster with a burger-flipping robot from Momentum Machines. A burger robot can churn out 360 burgers per hour and never ask for a raise. (But can it serve breakfast after 10:30am?) [url] McDonald's is installing a few self-ordering kiosks to automate some of the ordering process at its restaurants. This isn't exactly a new trend for retail establishments, but this might get a tad less appetizing when all fast food comes out of fancy vending machines. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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A little over a year ago, we noted how nice (if somewhat surprising) it was to see the FTC take a stand for Tesla and its direct sales model. Just as states -- generally under pressure from auto dealers who hate competing with Tesla -- were starting to explore laws to ban Tesla from those states, the FTC noted that it felt many of these plans were designed to hold back competition and innovation and it was prepared to step in. A year ago, it said things like this: Removing these regulatory impediments may be essential to allow consumers access to new ways of shopping that have become available in many other industries. Shots fired. In response to this (and public outcry), New Jersey and some other states appeared to back down. But not Michigan, home to the big US automakers, who aren't at all happy with this new upstart competitor from California. Last fall, Michigan passed a law that made it even more difficult for direct sales like Tesla. The FTC didn't do anything specifically about that (yet), but there's a new bill under discussion in Michigan that would carve out an exception to the new ban on direct sales of vehicles, but just for a new category called "autocycles," such as those from Elio Motors. The FTC used this opportunity to question why there's a ban on direct sales of vehicles in the first place. In a letter commenting on the Michigan proposal, FTC staff supports the movement to allow for direct sales to consumers—not only Tesla or Elio, but for any company that decides to use that business model to distribute its products. Blanket prohibitions on direct manufacturer sales to consumers are an anomaly within the larger economy. Most manufacturers and suppliers in other industries make decisions about how to design their distribution systems based on their own business considerations, responding to consumer demand. Many manufacturers choose some combination of direct sales and sales through independent retailers. Typically, no government intervention is needed to augment or alter these competitive dynamics—the market polices inefficient, unresponsive, or otherwise inadequate distribution practices on its own. If the government does intervene, it should adopt restrictions that are clearly linked to specific policy objectives that the legislature believes warrant deviation from the beneficial pressures of competition, and should be no broader than necessary to achieve those objectives. Opening the door by a crack is a step in the right direction, and we urge policymakers in Michigan to take this small step. But beyond company-specific fixes lies a much larger issue: who should decide how consumers shop for products they want to buy? Protecting dealers from abuses by manufacturers does not justify a blanket prohibition like that in the current Michigan law, which extends to all vehicle manufacturers, even those like Tesla and Elio who have no interest in entering into a franchise agreement with any dealer. The full letter is below -- and it does a nice point-by-point debunking of the laughable arguments by those who insist bans on direct sales to consumers are necessary. Here's just a snippet: Those who support a blanket prohibition on direct manufacturer sales have made a number of arguments that FTC staff find unpersuasive. Perhaps the central concern reflected in the current laws regulating the manufacturer-dealer relationship is that government intervention is required to protect independent dealers from abusive behavior by their suppliers. But a blanket prohibition of direct manufacturer sales is not a narrowly crafted provision to protect franchised dealers from abuse in their franchise relationships. Such a prohibition is categorical, going well beyond the many other statutory provisions that protect dealers from such abuse. It extends to every entity engaged in manufacturing, assembling, or distributing new motor vehicles, even a manufacturer that has never entered into a franchise agreement. Advocates for existing dealers also argue that manufacturers that sell directly to consumers will not provide them with adequate service. This argument presupposes that automobile manufacturers in a competitive environment will act contrary to their economic self-interest. If consumers greatly value post-sale service and would be unlikely to purchase or recommend any automobile without a reasonable assurance of quality future service, then any manufacturer will have an incentive to supply such service or else see its sales decline to the benefit of its rivals. This competitive pressure is a strong motivation for manufacturers to either provide good service themselves or continue to contract with an independent service provider, such as a dealer, to do so. Finally, advocates for a categorical ban on direct sales argue that direct-selling manufacturers would charge higher prices to consumers. In their view, consumers benefit from the “intrabrand” competition between dealers of the same brand of vehicle. In other words, rival dealers in the same area that sell the same make and model of car compete for business and competition between them can lower prices for car buyers. Manufacturers, they maintain, would not be subject to the same competitive pressures. This view is inconsistent with modern economic learning and with the Supreme Court’s widely accepted observation that strong “interbrand” competition—competition between rival manufacturers—can suffice as a source of downward pressure on price. Manufacturers in a competitive market face acute pressure to keep prices low to keep buyers from shifting their purchases to a competing manufacturer’s product. Thus, forcing firms to use inefficient distribution methods can result in higher prices and other forms of consumer harm. As described above, this is not merely a theoretical possibility. Statistical evidence shows that states that have placed strong limitations on gasoline refiners’ ability to operate their own retail outlets tend to have higher prices than those that allow refiners to use whatever combination of dealer and company-operated stations they prefer. A continuing ban on direct sales by manufacturers perpetuates the current closed system of motor vehicle sales in Michigan. The system limits competition among existing, well-established manufacturers, all of whom must sell through the established network of independent auto dealers. A direct sales ban deters experimentation with new and different methods of sales by current auto manufacturers, and also by future entrants to the market. Michigan’s consumers are paying the price of such a dictate. The essential mechanism that drives markets—the interaction between the supply by manufacturers and the demands of consumers—is being curbed. The market is less responsive to consumer preferences and less innovative in anticipating their evolving needs. It's nice to see the FTC continuing to monitor this situation and to speak out against clearly anti-competitive moves.Permalink | Comments | Email This Story

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Last month we wrote about Mozilla's move to deprecate HTTP in favor of encrypted HTTPS, which followed on Chrome's move to do something similar. What surprised me a bit was the response from many in our comments who didn't think this was a good idea. People talked about how it added complications to development, or pointed to problems with the whole concept of trusting certificate authorities and a variety of other problems. Some worried about the costs associated with getting a certificate. Ben Klemens, who has written eloquently for years about the problems of software patents, wrote an article noting that this would make it difficult for individuals to easily set up their own web platforms, and require them to rely on a third party with whom you'd have to identify yourself (the certificate authority). Of course, there are many attempts to deal with these issues, such as the big Let's Encrypt project from EFF and others to offer free certificates. And, if you're hosting websites online, you're likely already going through a third party hosting provider, and it's not clear how dealing with a certificate authority is really all that different. But the most compelling argument I've seen for why this is so important comes from Eric Mill, who discusses why this is so important by highlighting the many, many ways in which the web has changed over the past few years -- allowing both companies and governments to readily abuse the unencrypted nature of the legacy web, putting all of us at risk. This is a real problem that HTTPS goes a long way in solving: But when I look at the last few years, I see a very different web than the one I was introduced to: Verizon injects tracking headers into unencrypted traffic so they can sell your browsing activity to advertisers. This program started in 2012, after Verizon realized they "had a latent asset", but wasn't noticed until 2014. Other companies like Turn piggyback on Verizon's tracking header to sell your data to even more people, because they "are trying to use the most persistent identifier that we can in order to do what we do", says Turn's chief privacy officer. Comcast injects ads into unencrypted traffic, because "it's a courtesy, and it helps address some concerns that people might not be absolutely sure they're on a hotspot from Comcast". Andreas Gal (Mozilla's CTO, in his personal capacity) has claimed that Yahoo and Bing "can acquire search traffic by working with large Internet Service providers" to harvest users' Google search results to improve their own -- and strongly implies that they used to do this before Google shut them out through encryption. Even if you support better competition against Google, I doubt you expected your ISP to make deals to sell your traffic to other corporations without your knowledge. The nation of India tried and failed to ban all of GitHub. HTTPS meant they couldn't censor individual pages, and GitHub is too important to India's tech sector for them to ban the whole thing. The nation of China weaponized the browsers of users all over the world to attack GitHub for hosting anti-censorship materials (since like India, they can't block only individual pages) by rewriting Baidu's unencrypted JavaScript files in flight. We discussed that last one last month as well, in noting how HTTPS would prevent attacks like the one China launched (and is constantly launching elsewhere as well). And, also, it's not just corporate abuse, but government/intelligence community abuse as well: The NSA scans just about everything that goes through the internet backbones and saves as much of it as possible, in collaboration with intelligence agencies around the world. This is called "upstream collection", and their "posture" is to "collect it all". The NSA's upstream collection program has not been reformed. It will not be reformed by the current draft of the USA Freedom Act, in fact was endorsed by the only government agency whose job it is to review it, and the most meaningful court victory so far -- while a wonderful and important precedent -- addresses a separate program that only touches data about telephone calls. After the Charlie Hebdo attacks, France is now making bulk internet spying explicitly legal and giving its intelligence services vast powers to work with ISPs to surveil the network. The United Kingdom is likely to do something similar, after Cameron's strong re-election means he can make good on his pledge to make all online communication subject to monitoring. Pretty much everyone agrees that the security certificate system has its problems. We've been pointing that out for years. But encouraging more encryption now is solving real problems today. And, as Mill notes, Klemens' and others' concerns about this move towards HTTPS being a kind of "recentarlization" of the web are also misguided. All of those examples above show how big companies and governments are, themselves, abusing the unencrypted nature of the internet to take control and force a distributed system to act more like a centralized system by inserting themselves in the middle. HTTPS actually helps protect a more decentralized web by blocking those man in the middle attacks: When I look at all these things, I see companies and government asserting themselves over their network. I see a network that is not just overseen, but actively hostile. I see an internet being steadily drained of its promise to "interpret censorship as damage". In short, I see power moving away from the leafs and devolving back into the center, where power has been used to living for thousands of years. What animates me is knowing that we can actually change this dynamic by making strong encryption ubiquitous. We can force online surveillance to be as narrowly targeted and inconvenient as law enforcement was always meant to be. We can force ISPs to be the neutral commodity pipes they were always meant to be. On the web, that means HTTPS. The security certificate system isn't perfect. But an unencrypted web has serious and dangerous flaws that put us all at risk. In the old days, people could keep their homes unlocked as well, but that got widely exploited so now most of us lock our doors. It's not perfect and it has problems, but the overall protection is worth it. That's even more true online where encryption is important in enabling greater freedom of expression and protection of privacy.Permalink | Comments | Email This Story

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We already wrote a bit about Seymour Hersh's big story, arguing that pretty much everything the public has been told about the Osama bin Laden raid is false. There are plenty of questions that have been raised about some of the specifics in the story, but some people noticed that nearly four years ago, there was a tweet and a blog post, both by RJ Hillhouse, that both made the same basic argument. Hillhouse is well connected with the intelligence community and has told The Intercept that she thinks Hersh's sources are different than her own: “I would be shocked if … my sources would talk to [Hersh], given their politics and given the sensitivity that the administration had toward this story.” She notes that after her original post, she was strongly pressured to shut up about the issue, and did so (though she didn't delete her post or tweet). Either way, in a new post, she seems pissed off that Hersh is getting credit for the story, saying that it's "plagiarism." Seymour Hersh's story, "The Killing of Bin Laden," in the London Review of Books has a fundamental problem: it's either plagiarism or unoriginal. If it's fiction--as some have implied, it's plagiarism. If it's true, it's not original. The story was broken here on The Spy Who Billed Me four years ago, in August 2011 That's silly. First of all, it's not plagiarism, even if it's not true. Just because he heard the same thing from other sources, that wouldn't make it plagiarism. As for the "not original" claim -- well, who really cares? There's this weird obsession some people have with who "broke" a particular story. But the fact is that the story itself happened to others before whoever reported it learned about it. Yes, breaking a story is a nice thing, but it's weird how some people seem to want to claim "ownership" over a story just because they were the first ones to write about it. Yes, it's interesting that Hillhouse had a very similar story a few years ago -- which may lend some additional credence to Hersh's story -- but being first isn't always the most important thing. Getting the story widely spread seems a lot more important, which is evidenced by the fact that the story is only now "news" -- whereas Hillhouse's version more or less faded away. It seems like yet another case in which people overvalue being "first" as opposed to actually getting something more widely accepted and understood.Permalink | Comments | Email This Story

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The streak continues. A highly-dubious IRS asset forfeiture case receives some media attention, closely followed by the agency dropping the case. Federal prosecutors have dropped an attempt to seize $107,000 from a North Carolina small business owner using asset forfeiture laws following several weeks of media scrutiny. According to the Institute for Justice, a public interest law firm, the Internal Revenue Service and Justice Department moved Wednesday to voluntarily dismiss their case against Lyndon McLellan. McLellan's case was raised (as a "hypothetical") by Rep. George Holding during IRS testimony in front of the House Ways and Means Committee. Holding asked IRS Commissioner John Koskinen why the agency was continuing to pursue a questionable "structuring" case against McLellan, considering both the IRS and the DOJ had issued policy revisions stating the government would not do this unless there was evidence the deposited money originated from criminal activity. Koskinen agreed that McLellan's case should be dropped and promised to look into it. Meanwhile, the prosecutor overseeing McLellan's case contacted the Institute for Justice, claiming that its release of case details to House members would not only not help McLellan's case but could actually make it worse for him -- citing the vaguely-threatening "ratcheting" of "feelings" within the IRS by this public disclosure. He then offered McLellan a "final offer" of half his money back. McLellan didn't take the offer. Now, he's getting all of his money back -- which he'll need, considering he's already racked up plenty of expenses fighting the IRS and DOJ. McLellan still had to pay for a lawyer, not to mention $19,000 to have his business audited. The government also refuses to pay for interest earned on money after it has been seized. While the IRS may be curbing its dubious forfeitures, there are still problems that need to be addressed within the DOJ itself. Last week, the Justice Department said it would investigate two other prosecutors after one business owner whose assets were seized said he had been punished more harshly after publicizing his case and another said he had been threatened with a felony charge if he did not agree to give up some of his money. Kind of dispels the notion that asset forfeiture has anything to do with "justice." As these programs continue to suffer from mainstream exposure, those heading up prosecutions seem unwilling to scale back their efforts accordingly. They can see the revenue stream drying up and they're getting desperate. There will be more than a few forfeiture victims whose cases will stay off the radar. Unfortunately for them, these "zealous" prosecutors appear willing to do whatever they can to ensure funds seized with no evidence of criminal intent or origin remain inaccessible to those who actually earned them. Permalink | Comments | Email This Story

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We've written in the past about the somewhat bizarre copyright history of Adolf Hitler's infamous book Mein Kampf. The copyright is currently held by the state of Bavaria (which got it from the US government after the US seized the Nazis' publishing house at the end of World War II). Bavaria has used the copyright to bar the publication of the book in Germany for decades. However, in the past few months, extra attention has been paid to it because the copyright is set to expire at the end of the year, putting the book into the public domain in Germany. But, apparently, that's not even the most interesting story about copyright and Hitler. David Post has a fascinating post about copyright as censorship, which starts out about the Katz v. Chevaldina case that we've written about in the past. It involved Ranaan Katz, the partial owner of the Miami Heat, who was upset about comments a blogger, Irina Chevaldina, was making about him on her blog. Katz went so far as to acquire the copyright on an "unflattering photo" that Chevaldina had used in a blog post mocking him and then sued Chevaldina (and Google, which hosted the blog on its Blogger platform, but was eventually dropped from the suit) for infringement. This was after Katz had tried and failed to sue Chevaldina for defamation. So, instead, he decided to use copyright law to censor her. It was a perfect example of what Matthew Schruers has shrewdly called copyright "immigration," where people who can't censor people through other laws turn to copyright as a last resort. The amazing thing was that it actually worked at first. The court sided with Katz and issued a ridiculously broad injunction, raising questions about copyright misuse and (of course) the First Amendment. Eventually, though, the court got it right, noting that the use of the photo was clearly fair use. Katz, not getting the message, appealed his SLAPP suit, and it's now before the 11th Circuit, which will hopefully make quick work of it. If you want to read more about that, I highly recommend the EFF's amicus brief and its related blog post. So... what the hell does all of that have to do with Hitler? Well, in that article by David Post, he points out that there's actually a fairly long history of people using copyright for censorship -- and it turns out that none other than Adolf Hitler apparently liked to use copyright this way (yes, this post is pre-Godwin'd -- deal with it). And, to make this even stranger, apparently Hitler used that copyright-as-censorship/copyright immigration plan against then-news reporter/future Senator Alan Cranston. Cranston himself explained what happened in an interview: While I was doing my foreign correspondence work, I read Adolph Hitler's Mein Kampf, the book he wrote while he was in prison before he became the dictator, outlining his plans for Germany and the terrible things he intended to do in the world. There was no English language version of it. When I quit journalism and came back to try to get involved in activities in the United States, one day in Macy's bookstore in New York I saw a display of Mein Kampf, an English language version, which I'd never seen before, which hadn't existed. I went over to look at it out of curiosity and as I picked it up, I knew it wasn't the real book. It was much thinner than the long book that I had read, which is about 350,000 words. So I bought it to see how come. And delving into it I found that it was a condensed version, and some of the things that would most upset Americans just weren't there as they were in the version I had read, the original, in German. So I talked to an editor friend of mine in New York, a Hearst editor named Amster Spiro, and suggested that I write and we publish an anti-Nazi version of Mein Kampf that would be the real book and would awaken Americans to the peril Hitler posed for us and the rest of the world. So we did that. I spent eight days [compiling] my version of Mein Kampf from the English language version that I now had, the original German language version, and another copy that had just appeared. A book was then selling for around three dollars normal price. Hitler was getting forty cents royalty for each copy that somebody bought that wasn't [even] the real thing. We proceeded to print in tabloid the version that I wrote, with a very lurid red cover showing Hitler carving up the world, and we sold it for ten cents on newsstands. It created quite a stir. Some Nazis went around knocking down newsstands that displayed it in St. Louis and the German part of New York and elsewhere in the country. We sold half a million copies in ten days and were immediately sued by Hitler's agents on the grounds we had violated his copyright, which we had done. We had the theory that [though] he had copyrighted Mein Kampf in Austria, he had destroyed Austria with his army, so we said he destroyed his copyright at the same time. Well, that didn't stand up in court, and a Connecticut judge ruled in Hitler's favor. No damages were assessed, but we had to stop selling the book. We got what was called an injunction. But we did wake up a lot of Americans to the Nazi threat. If you're interested, the case is Houghton Mifflin v. Stackpole Sons, and it's an interesting read. The issues are certainly a bit different, but it does show that Hitler and his publishers looked to actively prevent Americans from knowing the full extent of his views... using copyright law. As Post notes: It was not copyright law’s finest hour – its Korematsu, one is tempted to say. Hitler gets to continue to receive royalties, and to control publication of his book, 10 weeks before he marches into Poland and war breaks out in Europe. The defendant doesn’t seem to have raised “fair use” as a defense in the case, relying instead entirely on a theory that because Adolf Hitler was a “stateless person”, any assignment of his copyright rights was invalid.... It’s hard to know whether there’s something noble about a US federal court going through the arcana of international copyright jurisprudence in order to give Hitler – even Hitler! – his day in court, or appalling that it would allow copyright law to be mis-used in a matter of such crucial public importance. So, now, next time you feel like Godwin'ing any conversation on copyright-as-censorship, feel free to just declare "that's like something the Nazis would do!" and point to this story.Permalink | Comments | Email This Story

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Many folks use their smartphones as their everyday cameras as the lens and technology have greatly improved. I do get nostalgic for the old SLR I learned photography on with its loud shutter, heavy casing and multiple lenses. Today's deal of 39% off of the TRNDlabs Smartphone Photo Bundle could bring back some of the fun of fumbling with lens changes while trying to frame the perfect shot. It comes with six lenses (8x Telephoto, 2x Telephoto, Fisheye, Wide, Macro, and 60x Magnifying Microscope), carrying case, cleaning cloth, and tripod. The 8x Telephoto and 60x Microscope lenses attach via a phone case while the others attach with a magnet. The kit is made for iPhone 4/4S,5/5S,6, 6 Plus or the Galaxy S5 (make sure you select your phone when ordering) and this deal comes with free shipping to over 40 countries and a 90-day manufacturer’s warranty. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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If you go all the way back to when the RIAA shut down Napster, you may recall that within just a short while, Gnutella launched, providing a more distributed system that became the core of a number of file sharing programs, which ended up growing much, much larger than Napster. It's the classic hydra situation: you cut off one head, and eight more (or even more than that) come back in return. It's a message that has been obvious since the days of Napster... and yet it's one that the legacy entertainment industry and its friendly politicians still can't seem to grasp. It's why we've always said that the industry would have been so much better off looking for ways to embrace and work with the leading providers in the space, rather than shutting them down. But, clearly, they don't get it. As the Sony email leaks showed, "site blocking" is still considered a top priority for Hollywood, even though it doesn't take a genius to realize that it doesn't work. Now we can add some more evidence: the European Commission itself decided to do a study looking at what happened after the website kino.to was shut down, and shows that it was a complete failure if the industry was looking to stop people from consuming unauthorized videos. As we've seen before with other site blocking efforts and over-enforcement, there is a very brief impact in decreasing access to infringing works, and a very, very small increase in sending traffic to licensed offerings -- but that only lasts until alternatives come along, usually within weeks. The overall impact on stopping access to unauthorized videos? Basically none whatsoever. And, by scattering users out to a variety of new sites, it made it even harder for the industry to track what people were doing. In the case of Kino.to, it took all of four weeks for people to find new places to go: The results from our empirical analysis show that the shutdown of kino.to led to a significant but short-lived decrease in the usage of unlicensed video streaming websites. Unsurprisingly, this effect is particularly large for individuals who were using kino.to previous to its shutdown, with decreases of more than 30% in overall piracy consumption during the four weeks directly following the intervention. We nevertheless observe that consumption of pirated content increases again following the fourth week after the shutdown. This increase is driven both by substitution towards existing alternative unlicensed platforms and by the entry of new platforms following the shutdown. You can see how this works pretty easily in the following graph. Yes, there's a very brief decline in unauthorized streaming, but then it goes right back to about the same level... and appears to be generally climbing upward: As for helping convince the users to suddenly start paying for content? A tiny, tiny effect that also does not seem to last: Second, we find limited substitution into consumption of licensed offline video content, proxied by visits to specific types of websites. Our results show that consumers do not increase their visits to websites of movie theaters or to DVD-related Amazon webpages. However, we find a small increase in clicks to licensed online video services (such as Maxdome, Lovefilm, and iTunes) after the shutdown, providing evidence that the intervention was successful in converting part of kino.to's users toward legitimate video consumption. Perhaps more importantly, we also find that heavy kino.to users disproportionately increase their visits to websites of licensed video services. This substitution was nevertheless undermined by the existence of alternative unlicensed streaming websites, which allowed consumers to rapidly transfer their consumption of copyright infringing videos from kino.to to other platforms. In particular, we document a large increase in clicks to the second-most popular platform - movie2k.to - directly after kino.to disappears. Only five weeks after the intervention, we also observe the entry of a new platform - kinoX.to - which manages to quickly appropriate a significant share of the unlicensed video streaming market at the expense of movie2k.to and the other smaller platforms. These results reflect both the high elasticity of supply to the shutdown, and the fact that consumers face little difficulty in switching from one platform to another. And, the end result is the basic hydra effect, where the audience fragments: Third, we assess how the shutdown affected the overall structure of the market for unlicensed video streaming. While the market was largely dominated by kino.to before its seizure, the intervention triggered an increase in competition between alternative platforms, ultimately resulting in a much more fragmented market. After the shutdown, the market was evenly split between movie2k.to (the second largest player at the time of the shutown), kinoX.to (kino.to's substitute), and a remainder of 12 websites which cumulatively account for one third of the market. We also observe that concentration of demand decreases after the shutdown, and that consumers diversify their unlicensed movie consumption more as opposed to concentrating it on a single platform. Again, you can see the impact of this hydra effect right here: Some may argue that this is the intended impact, and that if these sites have a smaller audience it makes them less sustainable, though there's little evidence to support that. It seems that a much clearer message from this study is what many of us have been saying all along: taking down sites does not change what people want. And if the industry itself is failing to serve the public and music and movie fans in a compelling and convenient manner, then other providers will come in and do it instead, whether or not it's legal. And that's where the audience will go. The more the industry fights against this, the harder it becomes for the legacy industry to figure out ways to work with the leading providers to build a legitimate service. Instead, it just pisses off people and sends them further and further away. That can't be good for business. Given that, it seems like it would make a hell of a lot more sense for the industry to focus on providing what people want rather than wasting so much time, effort and money into trying to shut down the sites they don't like.Permalink | Comments | Email This Story

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The folks over at the App Developer's Alliance (a trade group for app developers) recently posted the following video of Peter Braxton discussing his run in with a patent troll: In short: Braxton started a company called Jump Rope Inc., which made an app that would let you pay a fee to skip a line (first use case: pay your way to get into a popular bar ahead of the line). No matter what you might think of that kind of app, Braxton was quickly threatened and then sued by a patent trolling operation called Smart Options which has a patent (US Patent 7,313,539) on a "method and system for reserving future purchases of goods or services." In short, it's a patent on electronic options buying -- which should never be patentable in the first place. It's "take something that happens in the offline world (options buying) and put it on a computer" which isn't supposed to be patentable. Either way, the idea that line jumping violates a patent for options buying seems doubly ridiculous. And, Braxton actually went to court to fight it, spending his own money to do so after returning his investors' money. As he noted, his investors had bought into a startup, not a lawsuit. Eventually, he not only won the case, but Smart Options was ordered to pay attorneys' fees under Rule 11 for filing a frivolous lawsuit (including never actually using the Jump Rope app and falsely describing its functionality in the lawsuit): Despite Jump Rope’s warnings that its application did not meet the limitations of claim 1, however, Smart Options did not purchase a Jump or ensure that the basis for its claims was not “factually inaccurate” before continuing to pursue its infringement claims.... Smart Options’ failure to avail itself of the easy, inexpensive opportunity to actually test and analyze Jump Rope’s product, particularly after it received Jump Rope’s initial Rule 11 motion, is unreasonable.... Moreover, even if Baker had purchased a Jump or had sufficient information about Jump Rope’s application to compare its functionality to the ‘539 patent, Smart Options failed to reasonably construe the claim terms in order to allow for such a comparison.... [....] Smart Options also could not have sufficiently compared its patent with Jump Rope’s product, not only because it did not have familiarity with its functionality, but because it did not construe the claim terms. Smart Options, therefore, did not conduct a reasonable pre-filing investigation and had no reasonable factual basis to file its complaint, or to refuse to withdraw the complaint during the safe harbor period after Jump Rope served its original Rule 11 motion and letter..... For the foregoing reasons, the Court grants Jump Rope’s motion for sanctions. Specifically, the Court awards Jump Rope all of the reasonable attorney’s fees directly resulting from Smart Options’ frivolous complaint, including attorney’s fees incurred during the filing of the present Rule 11 motion. Braxton discusses some of this in the video, but adds in another tidbit that is absolutely crazy. After that ruling above, Smart Options appealed and both sides went to mediation to try to resolve it (Braxton noted he had no money to continue the lawsuit). Here's how Braxton describes how that went in the video: This is the first time that I met the plaintiff, after a year and a half of litigation. He waived confidentiality and he said: "Look, I'm going to make this real easy for you. This isn't a mediation. This isn't arbitration. This is what you're going to do. You're going to settle the lawsuit. We're not going to pay you any Rule 11 capital. We may or may not win this case," they said, "but what we are going to do when this case is over. We're going to sue you with another patent in our portfolio of patents and you're going to start this process all over again. This kind of story is not that unusual. For years, we've pointed to the similar story of how IBM tried to shake down Sun Microsystems in its early years, threatening over seven patents. Sun's engineers and lawyers went through all seven showing how they didn't infringe and were then told: "OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" Originally, after seeing that video, I was going to just focus on that threat to sue again with this post, but as I continued investigating the story, it turns out that it gets even weirder and more ridiculous. For what it's worth, Smart Options' lawyers claims he never made such a threat... but also in the next breath does claim that the company has other patents that Jump Rope violates. But, the crazier part is in a NY Times article that tried to follow up on this story. The reporter, Daivd Segal, heard Braxton's story, and called up Erich Spangenberg, one of the world's most notorious patent trolls, who definitely has experience with situations like the one above. In fact, Spangenberg once got hit with a ruling saying he had to pay $4 million for suing the same company with the same patent twice, despite an earlier settlement promising not to do so. Spangenberg's response to the questions about Braxton's situation? He smelled blood in the water and agreed to invest in Braxton's company -- basically buying low, with a promise that he could then strong arm Smart Options into going away. Really: A free consultation quickly became the beginnings of a negotiation. Mr. Spangenberg offered to take an equity position worth $500,000, in exchange for solving all of Jump Rope’s legal problems. “I’m going to invest as well,” Mr. Spangenberg said. “Peter, what do you need to get this back up while we raise money from people with lots of money?” “About half a million bucks,” he said. “That’s what I figured,” Mr. Spangenberg replied. “So we’d fund that.” And Spangenberg knows that he's buying distressed assets here: “Look, I’ll get $500,000 in equity for taking the legal piece off his plate,” he said. “It’ll cost me $100,000 to make the lawsuit go away.” He promised to locate “pressure points” on either Smart Options or Hugh McNally, its C.E.O. “I get to make a great investment on great terms,” he said. “Then I let Citadel” — a large hedge fund that had expressed interest in funding Jump Rope — “put a big chunk of money into it and I go off and do something else.” The article notes that Spangenberg has now invested in about 25 similarly "distressed" companies -- distressed by other patent trolls playing the same game that Spangenberg perfected. And, even the terms mentioned above weren't good enough. In the end, the article reports, Spangenberg's IP Nav bought 40% of Braxton's company for merely $200,000. The story tries to play this out like a "patent troll done good," but it's horrifying. It's one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It's certainly not good for innovation in any way. People fighting against the patent reform bill that's currently making its way through Congress keep insisting that the bill is designed by big tech companies to harm startups. But that's ridiculous. The bill would have significantly helped Braxton, allowing him to get out of the lawsuit faster and for less money, and likely awarding attorneys' fees in a simpler and faster process. In fact, it's more likely that Smart Options never would have sued in the first place if the PATENT Act were law at the time.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
The folks over at the App Developer's Alliance (a trade group for app developers) recently posted the following video of Peter Braxton discussing his run in with a patent troll: In short: Braxton started a company called Jump Rope Inc., which made an app that would let you pay a fee to skip a line (first use case: pay your way to get into a popular bar ahead of the line). No matter what you might think of that kind of app, Braxton was quickly threatened and then sued by a patent trolling operation called Smart Options which has a patent (US Patent 7,313,539) on a "method and system for reserving future purchases of goods or services." In short, it's a patent on electronic options buying -- which should never be patentable in the first place. It's "take something that happens in the offline world (options buying) and put it on a computer" which isn't supposed to be patentable. Either way, the idea that line jumping violates a patent for options buying seems doubly ridiculous. And, Braxton actually went to court to fight it, spending his own money to do so after returning his investors' money. As he noted, his investors had bought into a startup, not a lawsuit. Eventually, he not only won the case, but Smart Options was ordered to pay attorneys' fees under Rule 11 for filing a frivolous lawsuit (including never actually using the Jump Rope app and falsely describing its functionality in the lawsuit): Despite Jump Rope’s warnings that its application did not meet the limitations of claim 1, however, Smart Options did not purchase a Jump or ensure that the basis for its claims was not “factually inaccurate” before continuing to pursue its infringement claims.... Smart Options’ failure to avail itself of the easy, inexpensive opportunity to actually test and analyze Jump Rope’s product, particularly after it received Jump Rope’s initial Rule 11 motion, is unreasonable.... Moreover, even if Baker had purchased a Jump or had sufficient information about Jump Rope’s application to compare its functionality to the ‘539 patent, Smart Options failed to reasonably construe the claim terms in order to allow for such a comparison.... [....] Smart Options also could not have sufficiently compared its patent with Jump Rope’s product, not only because it did not have familiarity with its functionality, but because it did not construe the claim terms. Smart Options, therefore, did not conduct a reasonable pre-filing investigation and had no reasonable factual basis to file its complaint, or to refuse to withdraw the complaint during the safe harbor period after Jump Rope served its original Rule 11 motion and letter..... For the foregoing reasons, the Court grants Jump Rope’s motion for sanctions. Specifically, the Court awards Jump Rope all of the reasonable attorney’s fees directly resulting from Smart Options’ frivolous complaint, including attorney’s fees incurred during the filing of the present Rule 11 motion. Braxton discusses some of this in the video, but adds in another tidbit that is absolutely crazy. After that ruling above, Smart Options appealed and both sides went to mediation to try to resolve it (Braxton noted he had no money to continue the lawsuit). Here's how Braxton describes how that went in the video: This is the first time that I met the plaintiff, after a year and a half of litigation. He waived confidentiality and he said: "Look, I'm going to make this real easy for you. This isn't a mediation. This isn't arbitration. This is what you're going to do. You're going to settle the lawsuit. We're not going to pay you any Rule 11 capital. We may or may not win this case," they said, "but what we are going to do when this case is over. We're going to sue you with another patent in our portfolio of patents and you're going to start this process all over again. This kind of story is not that unusual. For years, we've pointed to the similar story of how IBM tried to shake down Sun Microsystems in its early years, threatening over seven patents. Sun's engineers and lawyers went through all seven showing how they didn't infringe and were then told: "OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?" Originally, after seeing that video, I was going to just focus on that threat to sue again with this post, but as I continued investigating the story, it turns out that it gets even weirder and more ridiculous. For what it's worth, Smart Options' lawyers claims he never made such a threat... but also in the next breath does claim that the company has other patents that Jump Rope violates. But, the crazier part is in a NY Times article that tried to follow up on this story. The reporter, Daivd Segal, heard Braxton's story, and called up Erich Spangenberg, one of the world's most notorious patent trolls, who definitely has experience with situations like the one above. In fact, Spangenberg once got hit with a ruling saying he had to pay $4 million for suing the same company with the same patent twice, despite an earlier settlement promising not to do so. Spangenberg's response to the questions about Braxton's situation? He smelled blood in the water and agreed to invest in Braxton's company -- basically buying low, with a promise that he could then strong arm Smart Options into going away. Really: A free consultation quickly became the beginnings of a negotiation. Mr. Spangenberg offered to take an equity position worth $500,000, in exchange for solving all of Jump Rope’s legal problems. “I’m going to invest as well,” Mr. Spangenberg said. “Peter, what do you need to get this back up while we raise money from people with lots of money?” “About half a million bucks,” he said. “That’s what I figured,” Mr. Spangenberg replied. “So we’d fund that.” And Spangenberg knows that he's buying distressed assets here: “Look, I’ll get $500,000 in equity for taking the legal piece off his plate,” he said. “It’ll cost me $100,000 to make the lawsuit go away.” He promised to locate “pressure points” on either Smart Options or Hugh McNally, its C.E.O. “I get to make a great investment on great terms,” he said. “Then I let Citadel” — a large hedge fund that had expressed interest in funding Jump Rope — “put a big chunk of money into it and I go off and do something else.” The article notes that Spangenberg has now invested in about 25 similarly "distressed" companies -- distressed by other patent trolls playing the same game that Spangenberg perfected. And, even the terms mentioned above weren't good enough. In the end, the article reports, Spangenberg's IP Nav bought 40% of Braxton's company for merely $200,000. The story tries to play this out like a "patent troll done good," but it's horrifying. It's one patent troll beating up on a startup, and then allowing a second one to come in and vulture up the leftovers. It's certainly not good for innovation in any way. People fighting against the patent reform bill that's currently making its way through Congress keep insisting that the bill is designed by big tech companies to harm startups. But that's ridiculous. The bill would have significantly helped Braxton, allowing him to get out of the lawsuit faster and for less money, and likely awarding attorneys' fees in a simpler and faster process. In fact, it's more likely that Smart Options never would have sued in the first place if the PATENT Act were law at the time.Permalink | Comments | Email This Story

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posted 15 days ago on techdirt
Earlier this week, the House voted overwhelmingly in favor of the USA Freedom Act, which takes some small steps towards limiting the NSA's surveillance efforts. And, in fact, as Rep. Justin Amash has pointed out, many of the no votes actually came from people who felt USA Freedom doesn't go nearly far enough (which is true). As we mentioned at the time, the fight now moves to the Senate, and the opening gambit is that Senator Mitch McConnell has pushed out a "short term" reauthorization, that would just renew Section 215 through July 31st, supposedly to give the Senate more time to "debate" this issue. This is as opposed to his original bill that renewed it through 2020. But there's a fight being set up here. A whole bunch of Senators have said that they won't, under any circumstances vote for any renewal bill, short or long: A bipartisan group of lawmakers on Thursday issued a clear and direct joint statement declaring their intent to oppose any extension of the Patriot Act's expiring surveillance authorities that does not end the National Security Agency's bulk collection of U.S. call data. "We will not agree to any extension of the NSA's bulk-collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals," the group, which includes Sens. Patrick Leahy and Mike Lee in addition to Reps. Bob Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler, said. Meanwhile, on the flip side, you have McConnell and Senate Intelligence Committee boss Senator Richard Burr spewing pure nonsense about how not renewing Section 215 will somehow put us all at risk: "We're not taking up the House bill," Senate Intelligence Committee Chairman Richard Burr, another defender of the NSA, told reporters Wednesday. "The program as designed is effective, and members are reluctant to change things that are effective just because of public opinion." Burr said he views the USA Freedom Act as "one and the same" as allowing the Patriot Act provisions to expire entirely. "Because when you do away with bulk storage, you basically have an unworkable system in real-time," he said. Almost everything Burr states above is totally false. First of all, the program "as designed" is not effective. That's the conclusion of almost everyone who has looked at the details. The White House task force set up to study the program said that it couldn't find any terror attacks stopped by the program. Three Senators on the Intelligence Committee have said the program has never been useful. The Privacy and Civil Liberties Oversight Board (PCLOB) could find no justification for the program. A district court judge, Richard Leon, spoke out about how surprised he was that the DOJ presented no evidence that the program was useful. How stupid does Burr think everyone is to then go out there and claim that the program is "effective" and that the Senate believes it's effective. Separately, the argument that "doing away with bulk storage" creates an "unworkable system" makes no sense either. Given the recent 2nd Circuit ruling, it also appears to be advocating for a program that is both illegal and unconstitutional. And, of course, that raises a separate point. Even if the Senate does a clean renewal of Section 215, the court has already ruled that that law does not allow for such bulk collection/storage. So, Burr can't claim it's necessary to renew 215 to keep bulk collection, since the law does not actually allow that. A lot of this is just idiotic political posturing. As Amash notes, this may all just be a game by McConnell and other surveillance state supporters in the Senate to water down an already weak USA Freedom Act bill to make it even less useful (or worse). Either way, this is all going to come to a head next week. The Senate wants to get this done by the 22nd of May (even though Section 215 doesn't expire until the end of the month), as they're not supposed to be in session the final week of the month. Stay tuned for next week...Permalink | Comments | Email This Story

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A couple of years ago we wrote about how the patent system creates perverse incentives for companies that make antibiotics to exploit them as fully as possible while they are still under patent. That, in its turn, drives antibiotic resistance, which is becoming an extremely serious problem. At the end of our previous post, we noted that this situation would be a perfect opportunity to try something different, such as offering some form of prize to pharmaceutical companies that come up with new antibiotics. Remarkably, the UK government's Review on Antimicrobial Resistance (pdf) has just suggested exactly that: we want to make antibiotics R&D commercially sustainable so that the field can attract the best minds from research organisations, small biotech companies, large firms or not-for-profit entities. To do that we propose a system by which a global organisation has the authority and resources to commit lump-sum payments to successful drug developers. Payment would have to be set against selective criteria agreed in advance. Such an approach would 'de-link' the profitability of a drug from its volume of sales, supporting conservation goals by eliminating the commercial imperative for a drug company to sell new antibiotics in large quantities -- a key factor in contributing to the development and spread of resistance. As that notes, the key to this approach is to "de-link" profitability from sales volume so there is no business pressure to over-use new antibiotics. One way to do that is to offer not a patent, but a hefty lump sum to any company that comes up with a new antibiotic. Another benefit is that the scale of the money on offer -- around $2 billion per new antibiotic -- is likely to encourage participation from companies all around the world, especially startups, since the scheme would be open to all. The UK review suggests supporting innovative approaches directly: A global AMR [antimicrobial resistance] Innovation Fund of around 2 billion USD over 5 years would help boost funding for blue-sky research into drugs and diagnostics, and get more good ideas off the ground. Big pharma should have a role in paying for this innovation fund: it needs to look beyond short-term assessments of profit and loss, and act with ‘enlightened self-interest’ in tackling AMR, recognising that it has a long term commercial imperative to having effective antibiotics, as well as a moral one. The 44-page document goes into more detail about the thinking behind the proposed scheme, how it might be implemented in practice, and the problems it would face. It's a bold approach, but given the continuing failure of the current patent-based system to come up with new antibiotics, it's one that governments around the world need to consider seriously. After all, as the review warns: if we fail to act on AMR, then an additional 10 million lives would be lost each year to drug-resistant strains of malaria, HIV, TB, and certain bacterial infections by 2050, at a cost to the world economy of 100 trillion USD. Compared to that figure, the few tens of billions of dollars needed to implement the new approach has to be a bargain. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We've pointed out for years how strong a supporter of civil liberties Senator Ron Wyden has been, but the one guy who probably had an even stronger record on that front was Senator Russ Feingold. Feingold was the only Senator who consistently voted against the PATRIOT Act and increases to government surveillance. In fact he was the only Senator to vote against the PATRIOT Act in the first place. And, at that time, he gave a speech in which he accurately predicted how the NSA would abuse the PATRIOT Act: And under this new provisions all business records can be compelled, including those containing sensitive personal information like medical records from hospitals or doctors, or educational records, or records of what books someone has taken out of the library. This is an enormous expansion of authority, under a law that provides only minimal judicial supervision. Under this provision, the government can apparently go on a fishing expedition and collect information on virtually anyone. All it has to allege in order to get an order for these records from the court is that the information is sought for an investigation of international terrorism or clandestine intelligence gathering. That's it. On that minimal showing in an ex parte application to a secret court, with no showing even that the information is relevant to the investigation, the government can lawfully compel a doctor or hospital to release medical records, or a library to release circulation records. This is a truly breathtaking expansion of police power. If anything, Feingold underestimated how this provision would be used, because even he didn't predict it would be used to have phone companies hand over every record on every phone call. Feingold was also the first to raise the alarm about "secret interpretations" of the law, well before others started pointing that out as well. Thus it was ridiculous and disappointing to see Feingold voted out of office in the 2010 "Tea Party" wave. He lost to Senator Ron Johnson, a Tea Party favorite... who went on to vote in favor of key bills to expand the spying power of the intelligence community. Feingold has now announced that he wants that Senate seat back, and will be challenging Johnson in the 2016 election: "[L]et’s fight together for change. That means helping to bring back to the U.S. Senate strong independence, bipartisanship and honesty," Feingold said in a video announcing his campaign. "So today I'm pleased to announce that I'm planning to run for the United States Senate in 2016. And this effort begins with listening to you. " His announcement didn't mention anything about surveillance or civil liberties, but considering his track record on that front, he would be an important addition to the Senate on these key issues -- especially since we lost Senator Mark Udall in the last election, after he had picked up many of the civil liberties issues that Feingold used to champion.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Over the past century, there have been dozens of management philosophies that have been touted as "the way" to keep employees motivated and encourage excellence and productivity. But it's far from a solved problem. Stack ranking (aka vitality curve) has fallen out of favor a bit, and a trend of self-managing has appeared that could keep employees more satisfied with their bosses -- because if you're managing yourself, you only have yourself to blame. Some companies are trying to quantify various metrics for organizational behavior to make it more objective and fair. Maybe we'll know how it all works in a few more decades, but in the meantime, check out these HR experiments. Zappos issued a kind of ultimatum to its employees -- accept its experimental new management system or take a severance package. Over 200 employees (about 14% of the workforce) chose to leave the company, which doesn't necessarily mean that all of these former employees didn't like "Holacracy" -- but it suggests that self-management policies aren't for everyone, either. [url] Google experimented with a flat organization circa 2002, but it ended after a few months when a flood of mundane managerial details overwhelmed the few people with obvious authority at the company. Since then, Google has continued with a data-driven culture to help develop its management techniques and policies -- finding that engineers hate technical micromanagement, but really like to be closely managed when it comes to career guidance. [url] If a company's org chart is flat, there's presumably no promotions for many employees, so how can flat organizations keep employees happy? Okay, a growing company can still offer expanded roles with more responsibilities, but a large, stable company may need to design stock option plans and bonuses to keep people around. But if money isn't a great motivator.... [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
This isn't a huge surprise, but after getting rejected on Tuesday, Senators went back into deal-making mode. And, after passing a bill to crack down on currency manipulation, enough Senators who voted no earlier in the week now voted yes to move the fast track ("trade promotion authority") bill forward to a floor debate. That debate should happen next week, and apparently there will be some attempts to add some amendments to improve the fast track bill, though it's unclear if any of those have a legitimate chance of getting in. In short, chances are the fast track bill will pass the Senate next week, meaning that the real question is whether there are enough votes in the House. The whole thing still seems quite bizarre. You have House and Senate Republicans (the party that regularly insists that it believes in the Constitution as originally written) voting to give up their Constitutional authority to oversee international commercial under the Commerce Clause, and hand it to a President in the opposing party. And, yes, this is the same President that Congressional Republicans are trying to block on almost every other move, and whom they often insist ignores Congressional powers under the Constitution to use powers not granted to the Executive branch under the Constitution. Why would they do that? And, at the same time, most in the President's own party are against doing this. Again, while I know that many who are opposing the TPP and TTIP are just against trade deals in general, I am generally in favor of good free trade deals. It's just that the TPP is not that. It's barely even a "trade" deal at all. And thus, it's quite bizarre to see the politics of how this has all played out.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
Whatever you might think of Uber in terms of its attitude and practices (and, really, people feel this weird need to rant on about such feelings, but that's unrelated to the point of this post -- so no need to tell everyone), you can't really deny that it has truly revolutionized the way that many people are able to get around in a variety of metropolitan areas. And Uber and its various competitors have done this by building a better system that is much more convenient and easy to use, and actually using much more realistic market forces, rather than doing silly things like artificially limiting the number of taxi medallions to keep taxi services scarce and expensive. Of course, the old beneficiaries of the system, have hit back any way they can. As we've written repeatedly, various cab companies and bureaucrats seem to go out of their way to attack such ride sharing services. The typical go-to claim from those hating on ride hailing services is that because they're less regulated, they're more subject to fraud and abuse or unsafe driving conditions. There is, however, little evidence to back that up. While there are some anecdotal stories of bad ride hailing drivers, we're already seeing innovative ways to deal with that. For example, in India, Uber recently added an emergency button to its app, which would directly alert police if a rider was in trouble. In short, what we've seen is that, through innovation, competition and (most importantly) an abundance of information, a better overall result can occur. The reasons for many taxi regulations in the past was because of clear information asymmetry: taxi drivers could (and frequently did) screw over passengers, because there was basically no recourse. There was no way for a rider to know if the driver was safe or not, and (more importantly) no real way for that rider to then warn future passengers. But ride hailing services changed that in a big way by flipping the equation, and allowing a good way to rate drivers and to create incentives for those drivers to do a good job. It's not perfect, but, frankly, my own experience in using Uber and Lyft has been that the overall experience has been much, much better than using a traditional cab. In New York City -- a place where cabs have long been limited by its famous medallion system -- there's been a struggle to deal with this innovative change. Just last year, we wrote about the Taxi and Limousine Commission declaring Lyft to be illegal. And, a few months ago, a NYC politician proposed a bill that would require the TLC to create its own Uber-like app. Because, apparently, innovation works by having the government mandate another part of the government copy an innovative company? Either way, the TLC is now looking to go even further, in proposing new rules that say that basically any ride hailing app should be fully regulated by the NYC TLC and including a bunch of conditions that really don't seem necessary. Some of them just seem like relics from a previous era that are there because they were there in the past. It's difficult to see why that makes any sense. And then there are new requirements that also seem bizarre. Like this: The website and/or smartphone application must provide Passengers, upon request, with an estimate of the total fare, inclusive of all fees and any price multiplier or variable pricing policy in effect, for the ride. I can see how that would be a nice feature to have, but should it be required by the government? If Uber doesn't provide that and Lyft does, then isn't that just a competitive advantage for Lyft? And, really, do existing taxi systems already do that beyond a driver tossing out a random estimate off the top of his head on how much it will cost to go somewhere? Then there's something really concerning: buried in the rules is the idea that drivers can only work for one provider at a time. I've seen many drivers that work for both Lyft and Uber (and sometimes others as well). Specifically, the rules have a "one device" rule -- saying drivers can only use a single device at a time, but many drivers that I've seen who work for multiple services have separate devices (and some, like Uber, will offer to rent you a special phone just for being an Uber driver, if you don't want to/can't use your own phone). A Base Owner must not dispatch a For-Hire Vehicle that is equipped with more than one electronic device in addition to the dispatch equipment required by the Vehicle’s affiliated Base... Again, I'm sure the TLC would argue that this is for safety reasons. Elsewhere in the document it suggests that by arguing that this single device cannot be handheld: a For-Hire Vehicle may be equipped with one electronic device that is used to accept dispatches from a Base or FHV Dispatch Application, provided that that the device is mounted in a fixed position and not hand-held and use of the electronic device is limited to either voice or one-touch preprogrammed buttons or keys while the Vehicle is in motion. And, sure, you can reasonably worry about the driving safety of someone who has multiple such devices, though I've seen plenty of drivers with two or three phones lined up in a way that seems perfectly reasonable. The more glaring concern here, though, is that such a rule basically locks in the incumbents and harms the upstarts. If a driver can't drive for Uber and a new ride hailing startup, they're likely to just stick with Uber, and the upstarts get cut out. That's a problem. Even if that's not the intention, it's these kinds of regulations that all too often lock things in so that incumbents stay in power, while startups are blocked. Furthermore, just the idea that any new service in this space has to now go and plead with the TLC to get "licensed" is going to slow and limit the opportunities for new and innovative players in this space. Uber got to where it was by building a useful service, not having to ask local bureaucrats for permission every time. The next generation of companies looking to reinvent the space won't be so lucky -- and that may mean we all suffer.Permalink | Comments | Email This Story

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