posted 14 days ago on techdirt
Sometimes you have to wonder if the various political candidates are trying to lose the knowledgeable techie vote. Chris Christie has been strongly pro-surveillance, and it's not hard to guess where he would come down on the whole "backdooring encryption" debate. However, few of the other candidates have been directly asked about that -- though that may be changing. Jeb Bush has now stated that he's against encryption, because, apparently it harms America. “If you create encryption, it makes it harder for the American government to do its job—while protecting civil liberties—to make sure that evildoers aren’t in our midst,” Bush said in South Carolina at an event sponsored by Americans for Peace, Prosperity, and Security, a group with close ties to military contractors. Bush said “we need to find a new arrangement with Silicon Valley in this regard because I think this is a very dangerous kind of situation.” This is, of course, mostly deeply wrong, while also partially right, but for the wrong reasons. First of all, if we want Americans to be safer we should be demanding more encryption, not less. It is a confused state of mind that, just as we keep hearing about more and more data being leaked and hacked into whether by individual malicious hackers or, potentially, nation states, thinks the "answer" to this is somehow less security, rather than more. However, in a weird way, Bush is actually correct. In some instances, encryption actually does make the government's job harder. But that's a feature, not a bug. Bush should, perhaps, listen to his brother's former Homeland Security Secretary, Michael Chertoff who recently came out against backdooring encryption, noting: ... we do not historically organize our society to make it maximally easy for law enforcement, even with court orders, to get information. We often make trade-offs and we make it more difficult. If that were not the case then why wouldn’t the government simply say all of these [takes out phone] have to be configured so they’re constantly recording everything that we say and do and then when you get a court order it gets turned over and we wind up convicting ourselves. So I don’t think socially we do that. This is an important point that Jeb Bush (and many folks in favor of backdooring encryption) don't seem to get. Separately, from Bush's quote, it appears he's not even familiar with the details of the debate (not that this stops him from opining ignorantly about it). By saying that merely "making" encryption is bad for America, he's just wrong. The debate isn't about making encryption. It's about whether or not encryption should be (or, realistically, can be) compromised via some sort of backdoor. Experts have explained why this actually makes us all worse off, but it's rather disturbing that people like Jeb Bush have summarized the "we should backdoor encyrption" side of things as "we should be against encryption."Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
As you may remember, earlier this summer, we (and many others) wrote about the ridiculous situation whereby Assistant US Attorney Niketh Velamoor not only sought a bogus subpoena for information on some hyperbolic commenters on the site Reason.com, but also obtained a gag order. At the time, I noted that I had sent in FOIA requests to the DOJ for Velamoor's initial application for the gag order as well as for the DOJ's guidelines on requesting a gag order. It turned out that Paul Levy, from Public Citizen, did the same -- though he (wisely, apparently) made his request directly to Velamoor, rather than to the DOJ's FOIA office. From that, Levy received a copy of the gag order application, which we wrote about last month. So, imagine my surprise to have the DOJ finally respond to my FOIA request a month later, only to tell me that it could find no responsive documents to my request. There is no real detail provided. Just this: Of course, FOIA offices are notorious for claiming no responsive docs if you're not 100% accurate in your request, but I think my request was pretty clear. Here was my request: The June 4th application for a non-disclosure order by the US Attorneys Office in the Southern District of NY concerning the subpoena issued to Reason Magazine (or Reason.com). The non-disclosure order was granted on June 4th by Judge Frank Maass and vacated on June 19th. I am seeking the original application. And, as we learned from the document that was released to Levy, it was an "Application for § 2705(b) Grand Jury Non-Disclosure Order to Service Provider." And it was, indeed, filed and approved on June 4th. And it was clearly "In Re Grand Jury Subpoena to Reason.com." The idea that the DOJ's FOIA staff "could find no responsive documents" suggests a serious problem with how the FOIA office works -- or how the US Attorney's Office in NY files their documents. Clearly the document exists. After all it was released to Levy. And the description I gave of the document is pretty damn close to the actual document. I am, of course, free to "appeal" the "no responsive documents" claim, but it's not clear what the point is here, since the document was already released (unbeknownst to the DOJ's crack FOIA team). At the very least, this should call into question how the DOJ handles its FOIA requests.Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
We've long discussed how game downloadable content (DLC) can be done right, but more often than not it's done very, very wrong. On the positive side you have CD Projekt Red, who recently decided to offer two free pieces of DLC for The Witcher 3 every week for months, helping to build a positive relationship with fans while keeping the game consistently in the public (and media's) eye. More often than not however you have efforts like Bungie's recent flubs with Destiny, or Ubisoft's pretty but incredibly shitty DLC approach to Assasin's Creed, Unity. And then there's EA, whose quality control issues, treatment of employees and obsession with low-value microtransactions are now legendary in the gaming industry. The company has made nickel and diming DLC high art, at times stuffing $60 launch titles with dozens of pieces of DLC at $5 or more a pop -- already embedded on the disc. Whether you like this idea or not, there's little debate that EA has quite often pushed the idea of microtransactions too far. But what you might call obnoxious and greedy, EA COO Peter Moore continues to call "innovative value proposition." Speaking recently to Gamespot, Moore quite-proudly proclaimed that it's "nonsense" to believe publishers sell incomplete titles in order to make money off of missing content: "A lot of that resistance comes from the erroneous belief that somehow companies will ship a game incomplete, and then try to sell you stuff they have already made and held back. Nonsense. You come and stand where I am, next to Visceral's studio, and you see the work that is being done right now. And it's not just DLC, this is free updates and ongoing balance changes." Well, one, things like "free updates" and "balance changes" are part of routine maintenance for a title, and since they often involve fixing bugs -- aren't really part of the conversation. Still, Moore would prefer it if gamers thought about future EA DLC as if it were "APIs," not content already on the disc that customers should have gotten with the original game: "Think of them as APIs," he said. "Knowing down the road that something needs to sit on what you've already made, means you have to put some foundations down. What people are confused about is they think DLC is secretly on the disc, and that it's somehow unlocked when we say." And sure, Moore's not entirely wrong. Many are quick to point out that in modern game development, DLC quite often runs parallel and separate from core game design, and the core structure of DLC developed at a later date often exists on disc to make integration easier. Few deny that, and DLC can certainly be done well. But DLC did in fact start with many developers shaving core content off of the original game to make an extra buck, and there's little doubt that many titles are left intentionally sparse so users need to acquire pricey DLC to fully flesh them out. Moore also ignores the unholy atrocity that is pre-order DLC bonuses, which involves only being able to get a vast array of content if you pre-order from select vendors. Cumulatively, the frequency of poorly-implemented microtransactions is still annoying, and it's certainly not "nonsense" if the modern gamer feels that the value proposition of many modern titles from AAA developers has slowly been circling the toilet. On the flip side, it has been interesting to watch the resistance to poorly-implemented DLC slowly erode over the years. Back in 2011, gamer disdain for nickel and dime DLC was utterly palpable. During the first quarter of this year, "extra content" generated roughly $921 million out of EA’s total digital revenue of $2.2 billion, meaning there are plenty of people who now either think DLC offers a great value position or have more disposable income than brains. I personally ignore 99.7% of all DLC. Granted Moore is the same guy who tried to argue that EA won Consumerist's "The Worst Company In America" poll simply because it's big. And EA is the same company that consumes talented developers and shits out broken dreams as a matter of course. As such, EA's probably the last one gamers should ask when trying to differentiate value from a heaping $5 pile of nonsensical, supplementary horse excrement.Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
It's been a while since we last checked in on PRS, a collection group in the UK that generally goes around acting as a kind of collection of prosthetic assbags for the musical artists it purports to represent. Actions like demanding money from a grocery store employee who happened to sing a song at work, demanding money from a woman who played some music for her horses, and demanding payment from small businesses it calls up on the off chance it might hear some music being played far off in the background are all taken under the theory that PRS has the best interests of the musical artists at heart. The problem with this theory is two-fold. First, it appears that, for a collection society, PRS is very terrible at collecting money, seeing as it has come to light that it doesn't have enough money for a copyright tribunal hearing over licensing with a television station. Second, in order to support that legal effort, PRS has decided to do what it always decides to do: slurp just a little bit more money away from the artists it represents. When rights owners choose to licence as one through a collecting society, all deal making is subject to extra rules and regulations in order to satisfy competition law. If the society and a licensee cannot reach an agreement, the matter can be taken to a special court, which in the UK is called copyright tribunal. Which is what ITV is now doing having failed to agree a new deal with PRS covering broadcasts from the start of this year. In the letter to its members, posted by the Music Law Updates website, the PRS executive board says that: “We feel it is vital that we fully participate and vigorously defend this referral to secure a fair return for the use of our members’ work. Copyright tribunals are costly but it’s important to protect and champion your work and ensure you are fairly remunerated whenever it is used." And, with that supposed goal in mind, PRS announces that it will increase admin fees by 1 percent on all revenue it generates from music on television. Not just artists whose music is played on ITV, but all music on television. For those of you keeping score at home, that means a collection society that bills itself as a protector of artists' rights has unilaterally announced an increase in its fees because it actually has to do that job, and it's collecting those increased fees from members who do not stand to directly benefit from this legal action. That, my friends, is quite an operation they have going over there at PRS. “The Executive Board has approved a proposal for a one percent increase in our TV admin rates for a period of one year, this being the fairest way of covering the expected costs in defending this referral. While the tribunal will only rule on the ITV licence, it is an important decision for all members whose music is played on TV, meaning we are sharing the cost across all our TV revenues”. Yes, we're taking more money from you artists who will not be affected by this legal action over this license with this television station because it's extremely important to you, because we said it is. And, keep in mind, we alone have your best interests at heart, which is why we're taking more of your money. It's always been this way. Collection societies serve as skimming operations, gently whisking away some percentage of revenue from artists under the guise of good intentions. But what else could you expect? Given how PRS treats the general public, why would artists expect to be treated any better? Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
The space right above our planet's atmosphere is cluttered with human technology and space junk, and it's getting more crowded up there all the time. Sure, the vastness of the universe is practically infinite, but there are only a few Largrane points, and artificial satellites have started to run into traffic problems -- including intentional satellite destruction that might not be quite innocuous. Wars over outer space might become a real thing in the not so distant future, if it's not happening already. About 1,300 active satellites are orbiting right now, and there doesn't seem to be much agreement on a new code of conduct for spacefaring nations. Anti-satellite weaponry has been around for about as long as artificial satellites have existed, and billions will be spent over the next few years to maintain and further develop military space programs. [url] The US is creating a centralized operations center for monitoring space threats such as spy and military satellites. This project will also aggregate satellite data to try to better monitor situations on the ground (or on the water) as well. Thankfully, no one is training astronauts in zero-G hand-to-hand combat.... [url] Is it possible to launch a satellite as an individual? Not just some weather balloon junk, but a cubesat or something that will actually orbit a few times... Yes, but it'll cost you over $100,000 to hitch a ride on a Soyuz mission. Korean artist, Hojun Song, successfully launched a 1-kg cubesat called OSSI-1 -- so if you have the resources, it can be done. And presumably, your satellite will have to be completely harmless, so you don't start an international incident. [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

Read More...
posted 14 days ago on techdirt
The presumed illegality of filming police is a law enforcement mental disorder. Far too many officers believe they have the right to perform their public service unobserved. Officers continue to take cameras from bystanders who happen to catch them behaving badly. Abby Phillip at the Washington Post details another apparent act of police misconduct that resulted in more misconduct as officers attempted to shut the recording down. Just after 4 p.m. Thursday, a woman stood a few feet away from several Miami Police Department patrol cars with her cellphone camera recording. After a few seconds, an officer entered the frame, escorting a handcuffed young black man to the back of a police car. Suddenly, the officer put his head inside the car door and appeared to punch the suspect. “Oh!” a woman exclaimed on the recording, reacting to what was unfolding before her. The woman, who the Associated Press identified as Shenitria Blocker, moved closer, and the officer climbed into the back seat of the car. Moments later, the camera shook and the video ended. Here's the video: The camera shake was due to an officer's attempt to take Blocker's phone away from her. Blocker says they then ordered her to delete the footage or face being arrested. While the video does show Blocker moving in very close to the police car to get a better view of the action, any arrestable offense would have been limited to "interference," and that would only be legit if she refused to move away from the vehicle when ordered to. No such order was given. Instead, the cop went for the camera and threatened her with arrest. Even if the cops can't find a sufficiently malleable "violation" to charge photographers with, the law enforcement community (including police departments and, especially, their unions) finds ways to ensure no damning recording goes unpunished. To its credit, the Miami Police Department has suspended the officer caught punching the handcuffed arrestee and is investigating the incident. On the other hand, it hasn't said anything about the unidentified officer who attempted to take Blocker's phone, nor has it issued a statement affirming the public's right to film police officers. The Miami Fraternal Order of Police, on the other hand, is going out of its way to deliver its own brand of "justice" for Blocker having the temerity to catch one of its officers behaving badly. In a statement, the police union said “social media has placed a very negative tone on law enforcement nationwide” and that the officer in question was “protecting our community.” Ah. So that's what happened. A now-suspended officer didn't punch an arrested man who was already in the back of a patrol car. Social media did. In fact, social media should be made to answer for the hundreds of incidents of police misconduct every year. At the very least, people should stop running to social media with their clips of police abuse because being a cop is hard work. But the union has gone farther than simply making the ridiculous assertion that all of these police officers captured on film doing the things they were actually doing is nothing more than negative spin by Social Media Co. LLC. It's also attempting to disparage Blocker herself -- ironically, by using the same social media that's apparently destroying the reputation of its suspect-punching police officer. The union has delivered screenshots of Blocker's since-removed Facebook page, claiming these show Blocker is a bad person and therefore, all video captured by her phone should be disregarded… or something. The remainder of the union’s statement focused on criticizing Smith, the woman who at the time they believed recorded the video. It highlighted screenshots of Smith’s Facebook page and accused her of posting photos of herself with men who have handguns. According to the farcical police officers' group, the real problem is men with guns on Facebook pages, not an officer punching a handcuffed suspect. If only the "community" had done more to raise Ms. Blocker right, Unidentified-and-Suspended Officer X wouldn't have had to punch a handcuffed man in the back of his patrol car. “Our community has accepted behavior that motivates violence in our younger generation. It’s time for the community to take a stand against this reckless behavior and stop the violence,” he continued. “As the saying goes: It takes a village to raise a child. Guns don’t belong in the hands of children.” So, remember: the next time you see a police officer beating a handcuffed person, remember that somewhere out there, there's a male with a gun and someone's daughter might be friends with him. Ask yourself: what's more important here? The reputation of the misbehaving officer? Or the reputation of the misbehaving officer? And then put the camera away. Because as the union sees it, the only people above reproach are the officers whose abusive actions prompt poorly-thought out and thoroughly ridiculous statements from their unions. Permalink | Comments | Email This Story

Read More...
posted 14 days ago on techdirt
Just recently, we noted that a court in Australia, clearly understanding the issues with copyright trolling, had blocked Voltage Pictures/Dallas Buyers Club from pushing out questionable "settlement" letters (i.e., shakedown letters) to subscribers -- and required a huge bond if the organization wanted to move forward. It appears that some US courts may be thinking along similar lines in an effort to stop copyright trolls from abusing the judicial system as a way to shake people down for money in a practice known as "speculative invoicing" (i.e., pay up or we sue you). The world's largest copyright troll, Malibu Media, has been taking some hits lately, pissing off judges who appear to be catching on to the game that Malibu and its lawyers (mainly Keith Lipscomb) are playing. And now, one judge is taking something of a page from that Australian court, in "allowing" Malibu Media to move forward with a case, but with a ton of restrictions to try to avoid the pure shakedown aspect of the business model (ht to Raul for the pointer). The judge, James Bredar, in Maryland, clearly understands what Malibu Media is hoping to do: get ISPs to hand over names and contacts of a bunch of people, so that it can start bombarding them with demands for money, along with threats to "reveal" the names of embarrassing porn titles it's accusing them of downloading in the form of a lawsuit. Judge Bredar is allowing the discovery process to go on, but with restrictions to avoid the standard out-and-out shakedown game of Malibu Media. First off, before any names will be revealed to Malibu Media, all individuals must be given a chance to quash the subpoena: After having been served with the Subpoena, the ISP will delay producing to Malibu the subpoenaed Information until after it has provided the Doe Subscriber with Notice that this suit has been filed naming the Doe Subscriber as the one that allegedly downloaded copyright protected work;b. A copy of the Subpoena, the complaint filed in this lawsuit, and this Order;c. Notice that the ISP will comply with the Subpoena and produce to Malibu the Information sought in the Subpoena unless, within 30 days of service of the Subpoena, the Doe Subscriber files a motion to quash the Subpoena or for other appropriate relief in this Court. If a timely motion to quash is filed, the ISP shall not produce the subpoenaed Information until the Court acts on the motion. Also, Malibu Media will need to pay all of the ISPs' costs, including attorneys' fees, and then if the subscriber does not seek to quash, the ISP will hand over the names... but, Malibu can't start shaking them down. Instead, it needs to hold the information in a confidential manner, and can only use it to file a lawsuit if it thinks it has a case -- and, even then, the name of the individual will be blacked out. Malibu shall reimburse the ISP for its reasonable costs and expenses, including attorney's fees, associated with complying with the Subpoena and this Order. On receipt of the Information from the ISP, Malibu must mark it as "Highly Confidential," and, in the absence of further order of the Court, may only use it to determine whether, pursuant to Rule 11(b), it has sufficient information to amend the complaint to name as an individual defendant the Subscriber. Unless otherwise ordered by the Court, Malibu, its agents, representatives, and attorneys may not disclose the Information received from the ISP to any person not directly involved as an attorney in representing Malibu in this copyright infringement action relating to the Information received, except as provided below. Any person to whom the Information or its contents is disclosed shall be required to sign an agreement to be bound by the provisions of this Order, enforceable by an action for contempt, prior to being informed of the Information or its contents. Any amended complaint filed by Malibu naming an individual defendant shall be filed so that the name and any specifically identifying information is redacted from the publicly available court docket, to be replaced by first and last initials only, with an unredacted copy of the amended complaint filed under seal. More importantly: no shakedown efforts: Malibu is prohibited from initiating, directly or indirectly, any settlement communications with any unrepresented Doe Defendant whose identity has been revealed pursuant to the Subpoena or deposition described in paragraph 4 above. Any settlement communications with an unrepresented Doe Defendant shall be initiated only as approved by the Court. On request submitted to the Court at any time by Malibu or the Doe Subscriber, whether represented or unrepresented, settlement shall be conducted under supervision of one or more Magistrate Judges designated by the Court for this purpose. Unless otherwise ordered by the Court, any settlement negotiations shall be subject to the confidentiality provisions of Local Rule 607.4. This paragraph shall not prevent Malibu from initiating or responding to a request for settlement communications with a Doe Defendant who is represented by counsel. In other words, the court knows what Malibu is up to and will be watching closely. It will be interesting to see if Malibu Media actually follows through or just cuts its losses and moves on to other courts with less aware judges.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
So just a few hours ago, we were mocking the company behind the "dating site for cheating on your spouse" site Ashley Madison for abusing the DMCA in the false belief it would somehow stop the full leak of the data. And... now that the full leak of data has actually happened, apparently the geniuses at Avid Life Media (said parent company) are still abusing the DCMA to try to get those horses back in the barnyard. From Vice's Motherboard's Joseph Cox: A few hours ago I received a notice under the Digital Millennium Copyright Act (DMCA) relating to three of my tweets. “Hello,” the email from Twitter starts. “The following material has been removed from your account in response to the DMCA takedown notice copied at the bottom of this email.” The tweet in question had been a "partial screenshot of an apparent floor plan of the Avid Life Media office." But the company asked for more too: ... the DMCA request also asked for another two to be removed. One was a heavily censored screenshot of a spreadsheet which details the shareholders of the company and the percentile of shares they own. The screenshot did not include any names, figures, or other data, but simply the headers of two columns. Another screenshot showed the column headers of a spreadsheet detailing the company's bank accounts. No actual bank data was included. Twitter apparently did not remove these two tweets. It's worth noting, here, that the DMCA notices were not sent on the leaked customer data, but about things that are at least marginally more closely tied to the company -- though it's still unlikely that Avid Life Media has a legitimate copyright claim in any of them. It's possible that it holds the copyright in the floor plan, but such a tweet is pretty clearly fair use. All this should make you wonder why Avid Life Media is running around filing bogus DMCA notices, rather than actually taking care of the damage from this leak?Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Last week, I came across two separate speeches that were given recently about the future of the internet -- both with very different takes and points, but both that really struck a chord with me. And the two seem to fit together nicely, so I'm combining both of them into one post. The first speech is Jennifer Granick's recent keynote at the Black Hat conference in Las Vegas. You can see the video here or read a modified version of the speech entitled, "The End of the Internet Dream." It goes through a lot of important history -- some of which is already probably familiar to many of you. But, it's also important to remember how we got to where we are today in order to understand the risks and threats to the future of the internet. The key point that Granick makes is that for too long, we've been prioritizing a less open internet, in favor of a more centralized internet. And that's a real risk: For better or for worse, we’ve prioritized things like security, online civility, user interface, and intellectual property interests above freedom and openness. The Internet is less open and more centralized. It’s more regulated. And increasingly it’s less global, and more divided. These trends: centralization, regulation, and globalization are accelerating. And they will define the future of our communications network, unless something dramatic changes. Twenty years from now, You won’t necessarily know anything about the decisions that affect your rights, like whether you get a loan, a job, or if a car runs over you. Things will get decided by data-crunching computer algorithms and no human will really be able to understand why. The Internet will become a lot more like TV and a lot less like the global conversation we envisioned 20 years ago. Rather than being overturned, existing power structures will be reinforced and replicated, and this will be particularly true for security. Internet technology design increasingly facilitates rather than defeats censorship and control. Later in the speech, she digs deeper into those key trends of centralization, regulation and globalization: Centralization means a cheap and easy point for control and surveillance. Regulation means exercise of government power in favor of domestic, national interests and private entities with economic influence over lawmakers. Globalization means more governments are getting into the Internet regulation mix. They want to both protect and to regulate their citizens. And remember, the next billion Internet users are going to come from countries without a First Amendment, without a Bill of Rights, maybe even without due process or the rule of law. So these limitations won’t necessarily be informed by what we in the U.S. consider basic civil liberties. This centralization is often done in the name of convenience -- because centralized systems currently offer up plenty of cool things: Remember blogs? Who here still keeps a blog regularly? I had a blog, but now I post updates on Facebook. A lot of people here at Black Hat host their own email servers, but almost everyone else I know uses gmail. We like the spam filtering and the malware detection. When I had an iPhone, I didn’t jailbreak it. I trusted the security of the vetted apps in the Apple store. When I download apps, I click yes on the permissions. I love it when my phone knows I’m at the store and reminds me to buy milk. This is happening in no small part because we want lots of cool products “in the cloud.” But the cloud isn’t an amorphous collection of billions of water droplets. The cloud is actually a finite and knowable number of large companies with access to or control over large pieces of the Internet. It’s Level 3 for fiber optic cables, Amazon for servers, Akamai for CDN, Facebook for their ad network, Google for Android and the search engine. It’s more of an oligopoly than a cloud. And, intentionally or otherwise, these products are now choke points for control, surveillance and regulation. So as things keep going in this direction, what does it mean for privacy, security and freedom of expression? What will be left of the Dream of Internet Freedom? She goes on to note how this centralization comes with a very real cost: mainly in that it's now one-stop shopping for government surveillance. Globalization gives the U.S. a way to spy on Americans…by spying on foreigners we talk to. Our government uses the fact that the network is global against us. The NSA conducts massive spying overseas, and Americans’ data gets caught in the net. And, by insisting that foreigners have no Fourth Amendment privacy rights, it’s easy to reach the conclusion that you don’t have such rights either, as least when you’re talking to or even about foreigners. Surveillance couldn’t get much worse, but in the next 20 years, it actually will. Now we have networked devices, the so-called Internet of Things, that will keep track of our home heating, and how much food we take out of our refrigerator, and our exercise, sleep, heartbeat, and more. These things are taking our off-line physical lives and making them digital and networked, in other words, surveillable. At the end of her speech, Granick talks about the need to "build in decentralization where possible," to increase strong end-to-end encryption, to push back on government attempts to censor and spy. And that's where the second speech comes in. It's by the Internet Archive's Brewster Kahle. And while he actually gave versions (one longer one and one shorter one) earlier this year, he just recently wrote a blog post about why we need to "lock the internet open" by building a much more distributed web -- which would counteract many of Granick's quite accurate fears about our growing reliance on centralized systems. Kahle also notes how wonderful new services are online and how much fun the web is -- but worries about the survivability of a centralized system and the privacy implications. He notes how the original vision of the internet was about it being a truly distributed system, and it's the web (which is a subsegment of the internet for those of you who think they're the same), seems to be moving away from that vision. Contrast the current Web to the Internet—the network of pipes on top of which the World Wide Web sits. The Internet was designed so that if any one piece goes out, it will still function. If some of the routers that sort and transmit packets are knocked out, then the system is designed to automatically reroute the packets through the working parts of the system. While it is possible to knock out so much that you create a chokepoint in the Internet fabric, for most circumstances it is designed to survive hardware faults and slowdowns. Therefore, the Internet can be described as a “distributed system” because it routes around problems and automatically rebalances loads. The Web is not distributed in this way. While different websites are located all over the world, in most cases, any particular website has only one physical location. Therefore, if the hardware in that particular location is down then no one can see that website. In this way, the Web is centralized: if someone controls the hardware of a website or the communication line to a website, then they control all the uses of that website. In this way, the Internet is a truly distributed system, while the Web is not. And, thus, he wants to build a more distributed web, built on peer-to-peer technology that has better privacy, distributed authentication systems (without centralized usernames and passwords), a built-in versioning/memory system and easy payment mechanisms. As he notes, many of the pieces for this are already in existence, including tools like BitTorrent and the blockchain/Bitcoin. There's a lot more in there as well, and you should read the whole thing. Our new Web would be reliable because it would be hosted in many places, and multiple versions. Also, people could even make money, so there could be extra incentive to publish in the Distributed Web. It would be more private because it would be more difficult to monitor who is reading a particular website. Using cryptography for the identity system makes it less related to personal identity, so there is an ability to walk away without being personally targeted. And it could be as fun as it is malleable and extendable. With no central entities to regulate the evolution of the Distributed Web, the possibilities are much broader. Fortunately, the needed technologies are now available in JavaScript, Bitcoin, IPFS/Bittorrent, Namecoin, and others. We do not need to wait for Apple, Microsoft or Google to allow us to build this. What we need to do now is bring together technologists, visionaries, and philanthropists to build such a system that has no central points of control. Building this as a truly open project could in itself be done in a distributed way, allowing many people and many projects to participate toward a shared goal of a Distributed Web. Of course, Kahle is hardly the first to suggest this. Nearly five years ago we were writing about some attempts at a more distributed web, and how we were starting to see elements of it showing up in places the old guard wouldn't realize. Post-Snowden, the idea of a more distributed web got a big boost, with a bunch of other people jumping in as well. It's not there yet (by any stretch of the imagination), but a lot of people have been working on different pieces of it, and some of them are going to start to catch on. It may take some time, but the power of a more decentralized system is only going to become more and more apparent over time.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
As we've noted, AT&T and Verizon are working hard to dump all of the DSL customers they're too cheap to upgrade to fiber, so they can focus on much more profitable (read: capped) wireless broadband service. A company by the name of Frontier Communications is doing the lion's share of the acquisitions, recently acquiring all of AT&T's customers in Connecticut, as well as all of Verizon's fixed-line broadband customers in California, Texas, and Florida. Unfortunately for these acquired users, Frontier is exhibiting the kind of steep, sustained incompetence that should probably be making these customers very nervous. As we noted back in May, Frontier recently had to stop selling broadband service via the company's website -- because it apparently couldn't figure out how to get the technology to work. If that didn't make new Frontier customers nervous, last week the company made headlines again after it was discovered the company apparently has no idea how to automatically reset user e-mail passwords or what cryptography is. Apparently, the only way for Frontier users to have their e-mail passwords reset is to e-chat with a support rep named Shawn, who is happy to share your password with you in plain text: "Silverman had forgotten the password to this little-used account but found that the Frontier e-mail website provides no self-service method for resetting the password. The only option was to chat with a Frontier employee. And that employee, Shawn from tech support, had access to Andrew's password in plain text and was ready and willing to share it." That the company isn't salting and hashing stored passwords is obviously a red flag, but it gets worse: "I'm not comfortable giving out passwords. Is there a password reset page?" Silverman asked. "I'm sorry there isn't," Shawn replied. "Are you OK with me posting the password in chat? It is a secure network and I have the password in front of me." Silverman pointed out how ridiculous this system is but accepted Shawn's offer and received the password. Before ending the chat, Shawn tried to sell Silverman antivirus software, computer tech support, or "identity protection." Silverman declined. The Frontier system then e-mailed Silverman a full transcript of the chat, including the password in plain text. The only information Frontier obscured was his account number." So to recap: Frontier isn't capable of building a website that can sell broadband service, or one that allows for automatic e-mail password resets. It also apparently stores the password in plain text making it easy for any Frontier employee to see, and is happy to both post said password into an e-chat platform (which at least uses HTTPS) and over unencrypted e-mail. For good measure, the company will then upsell you on security and "identity protection" services and software. Amusingly, Frontier still insists that its systems are secure: "Frontier insisted that its password practices are secure but was stingy with details...Frontier also said that it only provided Silverman a password after "we verified identity first through security questions." But as Silverman told Ars, "the only security challenges they posed were to provide the account number OR the landline service number in combination with the last 4 of the social security number." Of course these kinds of security questions aren't remotely secure either. Earlier this month "The Martian" author Andy Weir noted on Facebook that it was incredibly trivial for his Comcast e-mail account to be hacked after the ISP gave up his password after simply being given the last four numbers of his social security number and his street address. Regardless, the Frontier user proceeds to wonder just how secure Frontier's billing systems are. It also obviously raises questions about the quality of the company's quickly-expanding broadband empire. So yeah, pro tip: if you're one of the six people still using your ISP's e-mail services, it might be time to stop, since security is pretty clearly a distant afterthought. And if you're one of the millions of monopoly victims customers getting gobbled up by Frontier as AT&T and Verizon sever their ties to unwanted DSL customers, you may want to think about either moving, or building your own broadband ISP with at least a rudimentary understanding of cryptography.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Cameras have come a long way in a few short years: the cameras have gotten smaller and lighter, people are more concerned about ISO than megapixels, etc. However, you still need to zoom and choose what to focus on for that perfect shot. Until.... A light field camera like the $79.99 First Generation Lytro 16GB Camera takes away the need to choose your focus and perspective. With a microlens array, the Lytro takes in more information about the light coming from all distances in the picture. Download the photos and with the Lytro app, you can refocus shots, view them in "3D" or change the perspective. The 16GB camera stores up to 750 photos, and it weighs under 1 pound for easy portability. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
When it comes to the nexus between competition and regulation, competition is all too often cursed with fair-weather friends. For today's example, we'll take a trip down the copyright regulation rabbit hole. It begins with a Copyright Royalty Board (CRB) proceeding for setting webcaster rates under a statutory license in Section 114 of the Copyright Act. The process, called "Web IV" because it is the fourth such proceeding under this section of the Copyright Act,[1]was announced late last year and should conclude by the end of 2015. By mid-December, non-interactive webcasters like Pandora and iHeartMedia will know how much they must pay to stream (or "publicly perform") recorded music to listeners from 2016-2020.[2] These statutory license rates, part of a complex multi-tiered system that, as we've noted in the past, legally requires discrimination against new technologies, are set for 5-year periods and are paid to an entity called SoundExchange. SoundExchange is designated to collect royalties under the statutory license for certain uses of sound recordings, including Internet radio play of music. (Perhaps you're thinking, "wait, I thought radio stations didn't pay royalties to play records on the air?" You would be right: traditional terrestrial radio does not pay royalties for playing sound recordings – which has historically been defended with the argument that radio play provides valuable promotion for sound recording owners. But in another example of copyright law discriminating against new entrants, while conventional terrestrial radio is not compelled to pay for the public performance of sound recordings, Internet radio must pay to do the same, under Section 106(6) of the Copyright Act.) The rate Internet radio services pay is supposed to represent what a "willing buyer" would pay a "willing seller." During the round of rate setting that governed 2006-2010, however, the CRB announced a fairly punitive "willing buyer/willing seller" rate, which was so high that it exceeded some webcasters' total revenues. The risk that the Internet radio industry would collapse led Congress to enact the 2008 and 2009 Webcaster Settlement Acts, under which most non-interactive music licensees directly negotiated settlements with SoundExchange for that time period. An important wrinkle to this legislative action, however, was that Congress also directed that these settlements could not be used as benchmarks for future rates – which includes the current rate setting proceeding. So, why is this relevant? It matters because in the current Web IV rate setting proceeding, SoundExchange has argued that recent deals struck in the free market by non-interactive webcasters should not be used as the benchmarks for non-interactive rates. Those deals include an arrangement between Pandora and the collection of indie labels known as Merlin. The terms of that deal were lower than the existing statutory rate, and encouraged Merlin music to be played more (and thereby the music of major labels to be played less). At the time, rights-holders openly criticized Merlin for entering in the deal, noting that it could become a benchmark, and might result in prices coming down. It was a peculiar moment: despite all the cheerleading of moving toward a free market in music licensing of willing buyers and willing sellers, Merlin came under fire for actually being a willing seller at the best price it thought it could get. SoundExchange previous said it was seeking "rates that reflect a fair market value for recorded music… based heavily on evidence of other deals that exist in the marketplace". Now, however, it argues that an analogous free-market deal with Merlin should be ignored, because it was in some way influenced and thereby tainted by settlements reached 6-7 years ago.[3] This situation illustrates an issue larger than webcaster rate setting: there is cognitive dissonance about what it means to have free-market transactions in lieu of statutory licenses. In parts of the music industry, there is hostility to the statutory licenses. While statutory (or "compulsory") licenses help overcome the enormous transaction costs of licensing millions of works from millions of rights-holders, they don't allow rightsholders to say "no" to all uses.[4] These statutory licenses, it is sometimes argued, are unfaithful to the notion of copyrights being property rights. Such transactions would be better handled in the free market, the argument goes, and so statutory licenses should be repealed. Nevertheless, the free market enthusiasm disappears when a free-market deal was actually reached outside the statutory license. To the dismay of other licensors, Merlin's competitive price was *lower* than the statutory rate, and suddenly the free market doesn't look so hot. Hence, Merlin was criticized and now efforts are being made to expunge Merlin's deal from the record. There are numerous transactions cost-related reasons why — absent better copyright ownership records — it is impossible to have a completely free market in music licensing at present. Still, insofar as anyone is going to champion competition as an alternative to statutory licenses, that means accepting prices that may be below statutory rates. If "free market" means rates can only be higher than statutory rates, then we don't have a free market; we have a price floor. Or, stated otherwise: we're not really talking about "willing buyers and willing sellers" if we're only going to entertain market-based deals that come in above the statutory rate. [1] Officially, "In re Determination of Royalty Rates and Terms for Ephemeral Recording and Digital Performance of Sound Recordings." [2] The CRB only sets rates for "non-interactive digital music services"; interactive services like Spotify, which are "interactive" because users can determine themselves which music is delivered, fall outside the statutory license. [3] The rationale for this is that Congress directed in Section 114(f)(5)(C) that Webcaster Settlement Act (WSA) agreements shall not "be admissible as evidence or otherwise taken into account" in a rate settlement proceeding. Because SoundExchange contends the Merlin agreement resembles the 2008-09 settlements, considering the Merlin rate would be "taking into account" a WSA agreement.Instead, SoundExchange contends that the benchmarks for non-interactive rates should be deals between interactive services like Spotify. When all the relevant apples are inadmissible, we're left referring to oranges. [4] In econ-speak, we would say that statutory or compulsory licenses resemble a liability rule more than a property rule. Reposted from the Disruptive Competition Project Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
As you may have heard... a couple weeks ago during an onstage performance, rocker Lenny Kravitz had something of a wardrobe malfunction (potentially NSFW link), in which his pants split open and he exposed himself to the audience. This has resulted in lots of discussion about a variety of topics, including from the person who is taking credit for the piercing we now all know Kravitz has. And while Kravitz initially appeared to laugh it off, soon after, his lawyers started going after anyone sharing the images or videos, tossing out just about any ridiculous legal argument they could think of including "copyright, human rights, right-of-publicity and performer's rights." In case you're wondering, basically none of those apply, though the specifics may matter in that there may be some very, very marginal cases where some of the images may go against some right. But mostly, the lawyers are spewing nonsense. The "human rights" claim is laughable. The copyright claim is so bizarre no one's even sure what copyright he's claiming (if you're wondering, the music he was playing at the time was a cover song, so he doesn't hold the copyright on that either), but it's certainly not in the photos themselves, where the copyright belongs to the photo taker. Rights-of-publicity depend state to state, but generally are focused on things like the use of a famous person's likeness to endorse a product. That's not happening here. As for "Performer's Rights" those are, generally speaking, about rights to be reimbursed for the use of a performance -- and almost never include a right to exclude usage. A recent paper on performers' rights in Europe (where the malfunction happened...) makes it clear: Equitable remuneration rights and the remuneration granted under exceptions and limitations to certain exclusive rights do not give rightholders the possibility to authorise or to prohibit the exploitation of their work but do at least ensure them an income. But here's the thing: I'm somewhat surprised that Kravitz's lawyers aren't trying to argue that this is "revenge porn" and breaking the law that way? Revenge porn, or nonconsensual pornography, laws are popping up all over the US, and a federal revenge porn bill has been rumored for many, many, many, many months -- with the promise always being that it's coming "next month." In fact, just a few days ago we got the latest such promise. The latest rumors are that the bill will make it a criminal act to share a "non-consensual" image of someone's naked bits. Which raises the question: could anyone who shared or linked to the images of videos of Lenny Kravitz's junk... possibly be a criminal? Right now, it would depend on the state law in question. Arizona's law, which has thankfully been put on hold after the court's realized it was unconstitutional, would almost certainly make anyone in Arizona who shared the image guilty of a criminal act. It says that it's "unlawfully to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure." And while there's an exception for "images involving voluntary exposure in a public or commercial setting," from the statements by Kravitz's lawyer, I think they'd argue this was hardly "voluntary." Arizona's law also makes the crime more serious "if the depicted person is recognizable," which, you know, he is. That would make it a "class 4 felony" subjecting someone to between six months and two years in prison for sharing the photo. Yikes. Thankfully, that law is on hold. How about California's revenge porn law, which leaves the issue not entirely clear. Under that law, "Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person," may be violating the law, but there is a caveat that might create an out. It only applies only in situations where: "the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress." Do the people agree that it should remain private? Probably not, but perhaps that's an issue that Kravitz's lawyers could fight over in court. But the last line is more troubling. So long as Kravitz's lawyer argue that the distribution of the image caused "emotional distress" perhaps there's a claim here. And that seems pretty problematic. There are a few other exemptions under the law, including if "the distribution is made in the course of reporting an unlawful activity," but it's not clear that applies here either. At the very least, it seems like this could get tied up in court while people argue about it. As for the federal law that Rep. Jackie Speier is pushing, we still don't know the specific details, but most reports say that she's been working closely with Professor Mary Anne Franks on it (note: Franks dislikes Techdirt and will all too regularly lob ad hominem attacks our way). Franks has written some draft legislation that she would like to see enacted. Under her draft bill, thankfully, Kravitz and his lawyers would have a bit more trouble putting random tweeters in jail, but it still might get dicey. It does criminalize "transferring, publishing, distributing or reproducing" an image or video that includes "intimate parts" which "means the naked genitals" -- but it has some vague exceptions: (1) Images involving voluntary exposure in public or commercial settings; or (2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment. Again, Kravitz's lawyers would clearly argue that it's not a voluntary exposure. Then that would leave open the discussion of whether or not people reposting the image did so "in the public interest." It doesn't clearly fall into any of the listed "public interest" areas, but the draft law clearly states that things are not "limited" to those areas. And that's where it begins to get pretty damn dicey on First Amendment grounds. You end up in a position where, say, someone who retweeted such an image is not only facing potential criminal charges, but then is in the position of having the burden placed on them to argue that retweeting an amusing image of Lenny Kravitz's junk is "in the public interest." And, that's the kind of thing the First Amendment is supposed to prevent. No one should be in court needing to argue that their expression is "in the public interest." Because that's a massive can of worms. Now, contrary to what Franks has falsely said about myself and others, I don't think that "violations of sexual privacy" are okay. But I do worry that in the rush to criminalize activity that we all agree is ridiculous and problematic, that we end up overcriminalizing things, including issues related to free expression. I'm quite happy to see that most revenge porn sites in the US are now out of business, following various legal efforts (almost none of which relied on revenge porn laws...). I'm quite happy to see folks like Adam Steinbaugh expose and ridicule those behind revenge porn sites, shining a spotlight on people who can only be described as scum of the earth for thinking such things are okay. However, thinking that non-consensual porn is immensely problematic does not mean that we should just toss aside the First Amendment concerns with the bills that are proposed to criminalize the practice. In this case, I'm using the example of Lenny Kravitz and his wardrobe malfunction to hopefully highlight that this is not such a simple problem, and -- contrary to the argument of Franks and others -- could have some very real world consequences on issues of the First Amendment and free expression.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
We've been discussing the concept of "fair use" and how ridiculous it is that the USTR seems to be ignoring it. Back in 2012 there was great fanfare out of the USTR, when they said, for the very first time, they'd be including "limitations and exceptions" in the TPP proposal. "Limitations and exceptions" being a misleading euphemism for fair use (and some other related concepts all focused on the public's rights). However, as we noted soon after, the leaked text showed that while it was true that this would be the first such agreement that included such a concept, it only did so by limiting the ability of countries to implement a full fair use regime. Then, with the latest leak of the negotiating text (from right before the most recent round of negotiations) we noticed how ridiculous it was that the fair use section was voluntary while all the sections on copyright enforcement were mandatory. Specifically all the enforcement sections said that countries "shall" implement this or that. But when it came to "limitations and exceptions" it just said that countries "shall endeavour to achieve appropriate balance." In other words: you have to ratchet up copyright law, but with fair use, you know, maybe think about it and try your best. With all this going on, apparently some tech/internet folks have been complaining to the USTR, and the USTR is actually considering reopening the negotiation on that point to improve the fair use bit. According to Maira Sutton at EFF: As of last month, it seemed that all of the TPP countries had agreed to this language. In late July, however, tech companies' renewed pressure seemed to have changed the game. The USTR offered to go back in and revise these provisions ahead of the last negotiation round. According to a spokesperson for the U.S. Chamber of Commerce, in exchange for support for the controversial Fast Track legislation, the USTR promised to make the TPP's exceptions and limitations language more permissive and be a requirement, rather than being purely a suggestion, for all TPP countries. And... guess who went ballistic? Yup. Hollywood. According to Inside U.S. Trade, rightsholder groups like the Motion Picture Association of America (MPAA) are "livid" about the USTR's move to revisit the language on exceptions and limitations. They're pushing back hard, urging members of Congress—including every House member from California—to pressure the USTR not to touch these closed provisions. Why? Probably not because revisiting the language will actually cause any real harm to creators. The more likely explanation is that the copyright maximalists are worried that their tight grip over the USTR is slipping. This isn't all that surprising. Remember, as part of the Sony email leak, one of the emails showed MPAA boss Chris Dodd freaking out about the possibility that the TPP might include some sort of fair use. From the letter Dodd sent to USTR Michael Froman:: I am writing to you today regarding your Wednesday remarks at the Center for American Progress. I am concerned about your suggestion that previous free trade agreements’ copyright provisions were unbalanced and that USTR has addressed this lack of balance by including “fair use” in the TPP. Quite to the contrary, the recently ratified US-Korea FTA was supported by a broad cross-section of US industry, from tech and the internet community to the copyright community, and furthermore has been held up as a model agreement. As I know you are aware, the inclusion of “fair use” in free trade agreements is extremely controversial and divisive. The creative community has been, and remains, a strong and consistent supporter of free trade, but the potential export of fair use via these agreements raises serious concerns within the community I represent. Over the last 24 hours, I have received calls from my member companies questioning what they perceive as a significant shift in US trade policy and, as a consequence, the value of the TPP to their industry. Amusingly, this is the same MPAA who ridiculously claims to love fair use. As Sutton notes, this reaction is almost certainly fear over losing lobbying control over the USTR -- a main channel through which it has pushed its agenda for the past few decades. But there is another important point in Sutton's post: why should it require Google and other internet companies to step up before the USTR took this issue seriously? Plenty of us out here in the public have been arguing about this issue for years -- including in letters sent directly to the USTR. But we're totally ignored until "big industry" comes along and says the same thing. That's really messed up. The big media lobbyists' theatrics over this minor amendment are embarrassing, but they do raise one important issue: our trade negotiators are a lot less interested in the needs of ordinary users and creators than the needs of powerful companies. Why else was a last-minute intervention by Google sufficient to bring the USTR back to the negotiating table on this topic, where the sustained interventions of EFF and 10 other major public interest groups from around the world were not? These kinds of regulatory laundering efforts shouldn't be at the whims of big companies, whether or not you agree with the policies being pushed. I'm just as uncomfortable with internet companies pushing the agenda as I am with Hollywood companies doing so. This entire process has been a ridiculous lesson in corporate give aways with little interest for the public. The only thing "transparent" here is how the USTR is focused solely on the desires of big companies, with absolutely no concern for the public interest. That seems like a fairly big problem, especially considering that Congress basically abdicated its (Constitutionally-guaranteed) role to step in and block bad provisions of these agreements.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
A question that is almost always ignored when crafting legislation is "How will this new law be abused?" In the case of Spain's horrific Gag Law (officially [and hilariously] known as the "Citizen Security Law"), the answer is, "As much as possible." Just a couple of weeks away from a Spanish citizen being fined for calling his local police force "slackers," a Spanish woman has been fined for posting a picture of police car parked in a handicapped spot to her Facebook page. A Spanish woman has been fined €800 (£570) under the country’s controversial new gagging law for posting a photograph of a police car parked illegally in a disabled bay. The unnamed woman, a resident of Petrer in Alicante, south-east Spain, posted the photo on her Facebook page with the comment “Park where you bloody well please and you won’t even be fined”. The police tracked her down within 48 hours and fined her. If nothing else, the new law has reset law enforcement priorities. If law enforcement is insulted, the perpetrator needs to be tracked down before the trail goes cold. According to the original report at Petreraldia.com, differing narratives have emerged. One version of the incident says the officer who parked in the handicapped spot approached the photographer and explained the situation, apparently hoping to prevent a disparaging upload. If so, it didn't take. Another version says the uploader called to apologize to the police, presumably to ward off a citation. If so, that didn't take. And yet another version says there was no interaction between police and the photographer until they showed up at her home to hand her a ticket. What really happened isn't important, because there's the Official Police Narrative. The spokesman for the police informed Petreraldia that "in an emergency" police are allowed to park wherever they want, so as to expedite the apprehension of suspects. The "emergency" behind this illegal parking job? An "incident of vandalism in a nearby park." And, of course, the only other official remnant of this one-two punch of exemplary policework is the €800 ticket. It seems the police -- if they felt so demeaned by the Facebook post (which was swiftly removed by the original poster) -- could have asked for an apology, rather than €800. Or the department could have offered its explanation of the situation (as it did!), rather than fine the citizen. But the law is the law, and as such, must be abused to the fullest extent allowable. Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Last month, you may recall, the news broke that the "dating site for people who want to cheat on their spouse," Ashley Madison, had its systems hacked, and all its data leaked. For rather obvious reasons, this had a lot of people rather worried about what would be revealed. However, the company insisted that there was no problem at all, because it had used the DMCA to take down all leaked copies. We pointed out how ridiculous this was on multiple levels. First, that's not what the DMCA is for, and as embarrassing as this was for Ashley Madison's parent company Avid Life Media, it does not hold the copyright in such data. Second, the idea that this would actually stop the data from reaching the public was ludicrous. And... it took longer than expected, but less than a month later, the data file has leaked online, and you can bet that lots of people -- journalists, security researchers, blackmailers and just generally curious folks -- have been downloading it and checking it out. Maybe, next time, rather than claiming copyright, the company will do a better job of protecting its systems.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
And away we go. Techdirt (myself specifically) has been talking for some time about the impending expansion of major sports streaming options as the cord-cutting trend has continued. It only makes sense: leagues and marketers will go where the audience is. The most recent trend started slowly with the FCC voting to end its blackout rule. That decision was important for streaming, because one of the dumbest ideas that migrated over from broadcast and cable television was the idea that local blackouts of broadcasts and streams were in any way a good idea. Even as the NFL, NBA, NHL and MLB all have incrementally increased streaming options, those efforts have continued to be hampered by local blackout restrictions. Well, Major League Baseball just took a giant step over the blackout line and is now effectively straddling it, announcing that local streaming will be available in fifteen markets in the 2016 season. There is no specific timetable for a potential announcement of a deal between FOX and MLB. The two sides hope to complete the agreement around the end of this season, which would give the league and RSNs a full offseason to market the availability of the new local streams before Opening Day 2016. MLB Commissioner Rob Manfred, working with the league's president of business and media, Bob Bowman, has made in-market baseball streaming a key league priority, including personally participating in several negotiating sessions. Per the above, this specific deal is going to be done with MLB teams that have broadcasting deals with Fox. But don't think for a single moment that that's where it ends. Even if MLB can't get similar deals in place for the other half of teams in the league, which would fully free up the fantastic MLB.TV product for local streaming, any modicum of success that Fox has with this program will be immediately adopted by the other broadcasters. They really don't have a choice. Cord-cutting isn't going away and it's been professional and college sports that have long kept subscribers tethered. The trickle of streaming options in sports has been turning into more of a deluge, and the cable industry should be expecting some tough times ahead in the next, oh, say three to five years. Because if Manfred has this on his priority list for MLB, please believe that the commissioners in the other leagues have it on theirs as well. And when sports streaming really gets going, it's the end of cable as we currently know it. Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
It used to be only the people wearing tinfoil hats that were worried about satellites flying above us all the time. However, satellite technology is getting cheaper and easier to access, and more satellites are looking down at us than are looking at the stars. No one should be worried about a bunch of Helicarriers targeting everyone just yet, but we're making progress towards a sky filled with some pretty advanced technology. China is building yet another GPS network called Beidou. The US has GPS. Russia has GLONASS. The EU has Galileo. Do we really need another one? [url] Nanosatellites could provide an always-on connection for ground sensors, making disaster relief efforts more efficient and providing tons of useful data. Terran Orbital wants tiny satellites orbiting at 600 km above us to provide reliable (not necessarily fast) wireless connections to all kinds of devices. [url] Satellite imagery can be used for a bunch of business intelligence services. Retail parking lots can be monitored during prime purchasing seasons. Mining operations and construction projects could be tracked to ensure foreign companies are making the progress they say they're making. (And drones will be spying on everyone!) [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

Read More...
posted 15 days ago on techdirt
If you still watch traditional TV chances are you've increasingly been accosted with blacked out content and annoying ticker warnings as cable operators and broadcasters bicker over programming contracts. Whether it's Fox News's ugly fight with Dish, DirecTV's feud with The Weather Channel, or the Cablevision - News Corporation fight that blacked out the World Series a few years back, these obnoxious disputes have only gotten uglier over the last few years as programming costs have soared and the cable and broadcast industry works tirelessly to ensure its looming irrelevance. For the consumer, these fights usually go something like this: you're bombarded with on-screen tickers and ads from both your cable operator and the broadcaster telling you the other guy is being a greedy villain during a contract standoff. After the programming contract expires, content you're paying for gets blacked out (which you're of course never given a refund for) by one side or the other in the hopes of pushing negotiations along. After a month or two the two sides then ultimately strike a confidential new programming deal. A few weeks later your cable bill sees a price hike -- potentially your second of the year. It's kind of a lose-lose scenario for consumers, who get used as public relations pinatas (call your cable operator to complain!), lose access to content they're paying for, and then get accosted with an endless series of rate hikes. For the last few years, the FCC has generally had a hands off approach to these disputes (boys will be boys, and all that), but as they've gotten uglier and consumers have increasingly been railroaded, pressure has mounted for the regulator to at least do something. According to a new blog post by FCC boss Tom Wheeler, the FCC head says he's looking at a number of ideas that could help ease the pain of these idiotic standoffs. Maybe. One, the FCC is considering lifting rules that prohibit cable companies from simply piping in another region's local broadcast affiliate, allowing them to at least provide customers with some version of ABC, NBC, Fox or CBS while negotiations continue. The agency also suggests it's going to look more closely at the very definition of "good faith negotiations," since these blackouts make it clear there's not much of that actually going on: "The NPRM currently before the Commission undertakes a robust examination of practices used by parties in retransmission consent negotiations, as required by Congress. The goal of the proposed rulemaking is to ensure that these negotiations are conducted fairly and in a way that protects consumers." Since these are private business contracts, the FCC injecting itself into these negotiations is going to piss off free marketeers and the cable and broadcast industry to no end, but the industry brought it upon itself by behaving like absolute jackasses for the last few years. Not only have they consistently held traditional TV customers hostage, some broadcasters have even blocked access to online content in petulant responses to contract feuds. In its fight with Cablevision in 2010, News Corporation went so far as to get Hulu to block Cablevision broadband customers from accessing all Fox content. Viacom did something similar in 2014 when it blocked all CableONE broadband customers from accessing Viacom content online, even if those broadband users were paying for TV from another provider. Let that sink in a little bit: you pay for Viacom content through, say, DirecTV, but you can't access that content through your broadband provider because the cable arm of your ISP is engaged in a TV content contract dispute. And while broadcasters do deserve the lion's share of the blame for soaring programming rates, the cable providers aren't faultless since they're quick to impose rate hikes of their own (modem fees, broadcast TV fees, set top rental charges, charges to pay over the phone) as often as possible. Layer this lost content and annoyance on to existing high prices and the industry's absolutely legendary reputation for atrocious customer service, and you've uncovered the industry's ingenious plan to more efficiently dig its own grave on the eve of the cord cutting revolution.Permalink | Comments | Email This Story

Read More...
posted 15 days ago on techdirt
Copyright expert and professor Pam Samuelson, one of the most respected scholars of copyright law, has published a short paper explaining what she calls the "three fundamental flaws in CAFC's Oracle v. Google decision." As you may recall, that ruling was a complete disaster, overturning a lower court decision that noted that application programming interfaces (APIs) are not copyrightable, because Section 102 of the Copyright Act pretty clearly says that: In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. But CAFC got super confused, and basically ignored 102 while misunderstanding what an API actually is. After the White House itself got confused, the Supreme Court refused to hear the case. This means that the CAFC ruling stays in place, despite it being at odds with lots of other courts. And this might not be a huge problem, since most copyright cases won't go to CAFC. The only reason the Oracle case went to CAFC was because it started out as a patent case, and CAFC gets all patent appeals, even if the appeal has nothing to do with patents. Except... of course, now there's incentive to toss in a bogus patent complaint along with a questionable "interface copyright" complaint just to get it into CAFC's jurisdiction. Samuelson's paper is a good read (and we'll get to it), but I'd actually argue it's a bit too tame, and leaves out the really fundamental flaw in the CAFC ruling and in the White House brief: these non-programmers don't realize that an API is not software. Almost all of the mistakes stem from this simple fact. They assume that an API is software. And this is highlighted very clearly in the CAFC ruling where they quote Pam Samuelson out of context and then completely miss what she's actually saying. Here's from that ruling: Google argues that “[a]fter Sega, developers could no longer hope to protect [software] interfaces by copyright . . . Sega signaled that the only reliable means for protecting the functional requirements for achieving interoperability was by patenting them.” ... (quoting Pamela Samuelson, Are Patents on Interfaces Impeding Interoperability...). And, Google relies heavily on articles written by Professor Pamela Samuelson, who has argued that “it would be best for a commission of computer program experts to draft a new form of intellectual property law for machine-readable programs.” Pamela Samuelson, CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form.... Professor Samuelson has more recently argued that “Altai and Sega contributed to the eventual shift away from claims of copyright in program interfaces and toward reliance on patent protection. Patent protection also became more plausible and attractive as the courts became more receptive to software patents.”... Although Google, and the authority on which it relies, seem to suggest that software is or should be entitled to protection only under patent law—not copyright law— several commentators have recently argued the exact opposite. See Technology Quarterly, Stalking Trolls, ECONOMIST, Mar. 8, 2014, http://www.economist. com/news/technology-quarterly/21598321-intellectualproperty- after-being-blamed-stymying-innovationamerica- vague (“[M]any innovators have argued that the electronics and software industries would flourish if companies trying to bring new technology (software innovations included) to market did not have to worry about being sued for infringing thousands of absurd patents at every turn. A perfectly adequate means of protecting and rewarding software developers for their ingenuity has existed for over 300 years. It is called copyright.”); Timothy B. Lee, Will the Supreme Court save us from software patents?, WASH. POST, Feb. 26, 2014, 1:13 PM, http://www.washingtonpost.com/blogs/the-switch/wp/ 2014/02/26/will-the-supreme-court-save-us-from-softwarepatents/ (“If you write a book or a song, you can get copyright protection for it. If you invent a new pill or a better mousetrap, you can get a patent on it. But for the last two decades, software has had the distinction of being potentially eligible for both copyright and patent protection. Critics say that’s a mistake. They argue that the complex and expensive patent system is a terrible fit for the fast-moving software industry. And they argue that patent protection is unnecessary because software innovators already have copyright protection available.”). But this is just wrong. If you actually look at Samuelson's quotes, she's talking about interfaces not software. Notice in every quote she is not actually talking about the software itself, but "interfaces," "functional requirements" and "program interfaces." The absolute worst is the first quote, where Samuelson writes "interfaces" and CAFC inserts a "[software]" to imply that it's the same thing. It's not. The two paragraphs are not actually at odds. It is entirely reasonable to argue that interfaces shouldn't be protected by copyright (thanks to Section 102) and that software should not be patentable. It only looks like they're disagreeing if you're confused and you think that an API is the same thing as the software itself. But that's like saying a recipe is the same as a meal or that a dictionary is the same as a novel that uses those words. It's not the same thing. So while Samuelson's new paper is great, I still feel like she holds back on that key issue, which is so just blatantly wrong, and seems to underline why non-technical people (including the judges in this case) got so confused. Of course software is copyrightable. The argument is over whether or not an API necessary for interoperability is copyrightable. And, as Samuelson's paper notes, it had been widely accepted prior to the CAFC ruling that the answer is no because they're "procedures, processes, systems and methods" under Section 102. A second flaw was the CAFC’s overbroad view of the extent to which the “structure, sequence and organization” (SSO) of computer programs are protectable by copyright law. During the 1980s, some courts regarded program SSO as having a broad scope of protection under copyright law. But in the last two and a half decades, courts and commentators have recognized that the SSO concept is too imprecise and misleading to be useful in software copyright cases. The SSO concept does not help courts make appropriate distinctions between protectable and unprotectable structural elements of programs. Procedures, processes, systems, and methods of operation, almost by definition, contribute to the SSO of programs that embody them. However, this does not make those elements protectable by copyright. The design of many program structures, including APIs, is inherently functional and aimed at achieving technical goals of efficiency. This disqualifies them as protectable expression under U.S. law. Anyway, the rest of the paper is a good read, and hopefully it means that eventually this issue will get back to the Supreme Court -- and one hopes, at that time, someone can at least get through to them that an API is not software.Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
We've already written a few articles about the confirmation that AT&T is going above and beyond what's required by the law to be a "valued partner" of the NSA in helping with its surveillance campaign. While it's long been known that AT&T was giving fairly direct access to its backbone (thank you Mark Klein!), the latest released documents provide much more detail -- including that AT&T often does the initial "sifting" before forwarding content it finds to the NSA. To some NSA apologists, this is proof that the NSA isn't so bad, because it doesn't have full unencumbered access to everything, but rather is relying on AT&T to do the searching and then handing over what it finds. Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that AT&T does, in fact, have full access. But, still, as Cindy Cohn at the EFF is noting, if the NSA thinks that having AT&T sift first and then voluntarily hand stuff over somehow absolves it of violating the 4th Amendment with these collections, well, then the NSA is wrong. First some law: the Fourth Amendment applies whenever a "private party acts as an ‘instrument or agent’ of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others. The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights.  It seems that the NSA may have been trying to do just that. But it won't work. Given that the EFF is already challenging this collection in the Jewel v. NSA case, it seems like the latest leak may be somewhat helpful.Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
We've already written a few articles about the confirmation that AT&T is going above and beyond what's required by the law to be a "valued partner" of the NSA in helping with its surveillance campaign. While it's long been known that AT&T was giving fairly direct access to its backbone (thank you Mark Klein!), the latest released documents provide much more detail -- including that AT&T often does the initial "sifting" before forwarding content it finds to the NSA. To some NSA apologists, this is proof that the NSA isn't so bad, because it doesn't have full unencumbered access to everything, but rather is relying on AT&T to do the searching and then handing over what it finds. Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that the NSA does, in fact, have full access. But, still, as Cindy Cohn at the EFF is noting, if the NSA thinks that having AT&T sift first and then voluntarily hand stuff over somehow absolves it of violating the 4th Amendment with these collections, well, then the NSA is wrong. First some law: the Fourth Amendment applies whenever a "private party acts as an ‘instrument or agent’ of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others. The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights.  It seems that the NSA may have been trying to do just that. But it won't work. Given that the EFF is already challenging this collection in the Jewel v. NSA case, it seems like the latest leak may be somewhat helpful.Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
The US government's desire to keep terrorists off airplanes has resulted in heavily-populated "watchlists" -- lists short on due process and long on hunches. The TSA, in particular, has embraced a mixture of borrowed ideas and junk science to staff airports with Behavioral Detection Officers, who attempt to keep terrorists from boarding planes by looking for any number of vague indicators. The end result is a billion-dollar program with the accuracy of a coin flip. That's the physical version of the government's "predictive policing" security efforts. The same sort of vague quasi-science is used to populate its "no fly" list. The U.S. government’s reliance on “predictive judgments” to deprive Americans of their constitutionally protected liberties is no fiction. It’s now central to the government’s defense of its no-fly list—a secretive watch list that bans people from flying to or from the United States or over American airspace—in a challenge brought by the American Civil Liberties Union. Court filings show that the government is trying to predict whether people who have never been charged, let alone convicted, of any violent crime might nevertheless commit a violent terrorist act. Because the government predicts that our clients—all innocent U.S. citizens—might engage in violence at some unknown point in the future, it has grounded them indefinitely. The court itself found the "no fly" list's redress processes (or lack thereof) to be unconstitutional, as it was basically unchallengeable by listed travelers. (And the only sure way for a person to discover they were on the "no fly" list was to buy a ticket to somewhere and attempt to board a plane.) According to the court, the list and its lack of proper redress was a perfect storm of civil liberties violations. In summary, on this record the Court concludes the DHS TRIP process presently carries with it a high risk of erroneous deprivation in light of the low evidentiary standard required for placement on the No-Fly List together with the lack of a meaningful opportunity for individuals on the No-Fly List to provide exculpatory evidence in an effort to be taken off of the List. While the DHS has slightly improved its redress process for those who find themselves on the list, it hasn't made any changes to its dubious selection standards. In fact, it's made this part of the process worse. [T]he U.S. government launched its predictive judgment model without offering any evidence whatsoever about its accuracy, any scientific basis or methodology that might justify it, or the extent to which it results in errors. In our case, we turned to two independent experts to evaluate the government’s predictive method: Marc Sageman, a former longtime intelligence community professional and forensic psychologist with expertise in terrorism research, and James Austin, an expert in risk assessment in the criminal justice system. Neither found any indication that the government’s predictive model even tries to use basic scientific methods to make and test its predictions. As Sageman says, despite years of research, no one inside or outside the government has devised a model that can predict with any reliability if a person will commit an act of terrorism. And there go any redress improvements. To get off the list, a person must convince the government he or she won't commit a criminal act that its "predictive model" has determined they might. At least in the FBI's terrorist "investigations," there's a minimum of intent and activity. In the case of would-be travelers like the ACLU's clients, there's nothing more than a predictive model spitting out probabilities. In all likelihood, the predictive model used by the US government is based on more than faulty science. It's also based on faulty reasoning. As Doug Saunders at the Globe and Mail points out, analysts researching tracking and surveillance of would-be terrorists are finding the usual presumptions are mostly wrong. Analysts began looking at the work of Paul Gill, a criminologist at the University College of London. In a highly influential 2014 paper titled “Bombing Alone: Tracing the Motivations and Antecedent Behaviours of Lone-Actor Terrorists,” Dr. Gill and his colleagues analyzed known terrorists not by what they thought or where they came from, but by what they did. In the weeks before an attack, terrorists tend to change address (one in five) or adopt a new religion (40 per cent of Islamic terrorists and many right-wing terrorists did so). And they start talking about violence: 82 per cent told others about their grievance; almost seven in 10 told friends or family that they “intended to hurt others.” A huge proportion had recently become unemployed, experienced a heightened level of stress or had family breakdowns. And most had done things that looked like planning – including contacting known violent groups. Predictive modeling often looks like "thought policing," but that is of little use, apparently. There are other indicators that are far more telling, but these factors aren't being given proper weight by the models in use. Saunders notes that there has been a shift in modeling over the past couple of years, thanks to research from analysts like Paul Gill, but that shift in predictive factors hasn't slowed legislators from demanding even more futile, invasive "thought policing." Unfortunately, governments, including Canada’s, are behind the curve: Just as their terrorism experts and security employees have abandoned policies which resemble the policing of thoughts, they're passing disturbing laws to make such obsolete practices easier. The DHS may be using smarter modeling now, but it's not as though it's been examining its existing list to remove those who don't match the vague criteria. Instead, it's only responding to challenges made by travelers who find themselves on the list, and even then, it may still withhold information a listed flyer could use to challenge their status if the agency deems the release of such info a threat to national security. The nod to due process leads to an exchange of information and paperwork with the government, but there's nothing adversarial about the redress procedure. It's your word against theirs, with the agency -- not a court -- making the final determination as to whether a person can ever board an airplane. Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
Grab the Train Simple WordPress 4.0 Fundamentals Course for $25 and start mastering the basics behind one of the most popular open-source platforms. Learn how to set up self-hosted sites and blogs and how to customize them with plug-ins and themes. You'll also learn how to manage and update your site and how to utilize WordPress' many features to create a site you've always wanted. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

Read More...
posted 16 days ago on techdirt
Back in 2011, This American Life toured an office building in Marshall, Texas, and found eerie hallways of empty offices that serve as the 'headquarters' of patent trolls. For many, that was the first introduction to the strange world of the Eastern District of Texas, its outsized role in patent litigation and, especially, its effective support of the patent troll business model. Trolls love the Eastern District for its plaintiff-friendly rules, so they set up paper corporations in the district as an excuse to file suit there. Meanwhile, defendants find themselves dragged to a distant, inconvenient, and expensive forum that often has little or no connection to the dispute. The remote district's role has only increased since 2011. The latest data reveals that the Eastern District of Texas is headed to a record year. An astonishing 1,387 patent cases were filed there in the first half of 2015. This was 44.4% of all patent cases nationwide. And almost all of this growth is fueled by patent trolls. Happily, lawmakers have finally moved to restore some balance. The latest version of the Innovation Act in the House includes language that would make it much harder for trolls to file in the Eastern District of Texas. The proposal goes under the decidedly mundane name of "venue reform" but it could actually be crucial to the effort fix our broken patent system. The Luckiest Court in the Universe The Eastern District of Texas is a federal court district running along the Texas-Louisiana border. The district covers a largely rural area without much of a technology industry. It is just one of 94 federal district courts. (Some states, like Vermont, have a single federal district, while others, like Texas and California, have as many as four.) If patent cases were distributed evenly among the federal district courts, each one would have received about 33 cases so far this year – a far cry from the 1,387 filings in the Eastern District of Texas. Accident? We don't think so. In fact, we ran a calculation to see how likely it is that at least 1,387 of 3,122 patent cases might end up there by chance. This was the result: This probability is so vanishingly small that you'd be more likely to win the Powerball jackpot 200 times in a row. Obviously, something other than chance is attracting trolls to this remote district. Now that folks are taking notice, some Eastern District of Texas jurists are feeling a bit defensive. Former Judge Leonard Davis, for example, recently said: "To say the Eastern District is responsible [for the patent troll problem] is to say that the Southern District of Texas is responsible for immigration problems." This is nonsense. The Southern District of Texas gets immigration cases because it sits on the U.S.-Mexico border. There is no equivalent reason for the Eastern District of Texas to be a hotbed of patent litigation. To understand why the district sees so much patent trolling, we need to look deeper. How We Got Here The Eastern District of Texas was not always so popular. In 1999, only fourteen patent cases were filed there. By 2003, the number of filings had grown to fifty-five. Ten years later, in 2013, it was 1,495. This massive rise in litigation followed the appointment of Judge T. John Ward in 1999, and his drive to create local patent rules. Judge Ward's rules, while similar to patent rules in other federal districts, had some additional plaintiff-friendly features such as a compressed discovery schedule and a short timeline to trial. This so-called "rocket docket" attracted patent plaintiffs eager to use the compressed schedule to pressure defendants to settle. For those cases that went to trial, the district got a reputation for huge patent verdicts. As one commentator explained, the Eastern District's "speed, large damage awards, outstanding win-rates, likelihood of getting to trial, and plaintiff-friendly local rules suddenly made [it] the venue of choice for patent plaintiffs." The explosion in patent litigation promptly led to a burst of new economic activity in East Texas. As the BBC wrote, Marshall is a "sleepy town kept busy with patent cases." The patent litigation boom creates business for hotels, restaurants, trial graphics services, copying, expert witnesses, jury consultants, court-appointed technical advisers, and, of course, lawyers. In other words, patent litigation has become important to the economic health of the communities surrounding the courthouse. But the federal courts don't exist to generate business for a particular region. Tipping The Scales on Both Procedure and Substance So why are these plaintiff-friendly rules so important? First, the rules impose particular burdens on defendants. If a patent case proceeds to discovery—the process whereby parties hand over information potentially relevant to the case—it will usually be more expensive in the Eastern District of Texas. This is because the local discovery order in patent cases requires parties to automatically begin producing documents before the other side even requests them. In patent troll cases, this imposes a much higher burden on defendants. Operating companies might be forced to review and disclose millions of documents while shell-company patent trolls tend to have very few documents. Trolls can exploit this imbalance to pressure defendants to settle. Second, the rules make it harder to eliminate cases early. The Supreme Court's decision in Alice v CLS Bank invalidated many of the low-quality software patents favored by patent trolls. But this only helps defendants if they are able to get a ruling to that effect from the judge overseeing their case. Judges Rodney Gilstrap and Robert Schroeder recently indicated that they would require patent defendants to ask permission before they can file a motion to dismiss raising Alice. This means that defendants in the Eastern District of Texas will more often be forced to go through expensive discovery. When judges in the Eastern District do issue rulings on challenges raising Alice, their decisions are very different from jurists in other parts of the country. Recent data from Docket Navigator analyzed all challenges under 35 USC § 101 so far this year: Nationwide: 71% granted or partially granted; 29% denied (76 decisions) Northern District of California: 82% granted or partially granted; 18% denied (11 decisions) District of Delaware: 90% granted or partially granted; 10% denied (10 decision) Eastern District of Texas: 27% granted; 73% denied (11 decisions) While each challenged patent claim is different, the overall trend suggests judges in the Eastern District of Texas are applying Alice in a way that is far more favorable to patent owners. The Alice decision, and its companion, Octane Fitness v. Icon Health & Fitness gave judges additional tools for quickly dismissing meritless patent cases and holding unscrupulous plaintiffs to account. This means that patent trolls—particularly those that bring weak cases hoping to use the cost of defense to extort a settlement—now need a favorable forum more than ever. Small wonder we've seen a spike in EDTX filings. We have also written about unfair rules that make it harder for patent defendants to file for summary judgment in the Eastern District of Texas. These rules have a real impact. A recent study found that judges in the Eastern District granted only 18% of motions for summary judgment of invalidity while the national grant rate is 31%. And that statistic, of course, does not include all the summary judgment motions that would have been filed had the defendant been given permission. Judges in the Eastern District of Texas have also harmed defendants by delaying rulings on motions to transfer (these are motions where the defendant asks for the case to be moved to a more sensible location). Delay prejudices defendants because they are stuck litigating an expensive case in a remote forum while the judge sits on the motion. (The judges' rules make clear that a pending motion to transfer or a motion to dismiss is not grounds to stay discovery in a case). The Federal Circuit recently issued a stern order (PDF) finding that an Eastern District magistrate judge had "arbitrarily refused to consider the merits" of a transfer motion. When that transfer motion was finally considered, it was granted (PDF), but not until after extensive litigation had already occurred, and requiring the parties to pay for a court-appointed technical advisor (PDF). More generally, studies have also found the Eastern District of Texas is reversed by the Federal Circuit at a higher rate compared to other districts. Venue Reform Can Fix the Mess It's time for Congress to act. Although the Federal Circuit has overruled some of the Eastern District of Texas' most egregious venue decisions, it has failed to bring basic fairness to where patent cases are litigated. We need new legislation to clarify that patent cases belong in forums with a real connection to the dispute. Fortunately, Congress is looking at the problem. Representative Darrell Issa recently offered an amendment (PDF) to the Innovation Act that would tighten venue standards in patent cases. On June 11, the House Judiciary Committee approved the amendment. If this bill becomes law, shell company patent trolls will no longer be able to drag out of state operating companies all the way to Eastern Texas. It's long past time for Congress to bring fairness to where, and how, patent cases are litigated. Contact your representative and tell them to pass the Innovation Act and to ensure that any final bill includes meaningful venue reform. Republished from the Electronic Frontier Foundation Deeplinks blog Permalink | Comments | Email This Story

Read More...