posted 18 days ago on techdirt
Another decision has been handed down that should further discourage public officials from utilizing private email accounts to conduct public business. Certainly public officials are welcome to use any email account they wish, but they shouldn't expect the use of a non-government account to shield their communications from the public. (And, if that's the case, why bother using a private email account while working for the government? All it really does is give the impression you're trying to hide something.) In this case, a Puyallup, Washington councilman (Steve Vermillion) set up his own personal website and email address to use in conjunction with his state congressional run. He continued to use it after this effort had ended, and frequently received emails from constituents and city employees at the private email address. For the most part, Vermillion handled city business through a city account, but still answered questions and engaged in communications related to public work through his private account. These emails were requested under the state's public records law. Vermillion claimed emails contained in this account were not subject to the law. His legal theory -- backed up by the city itself -- was that any emails contained in this account were his "private papers." The denial of the records request resulted in this lawsuit. A lower court found in favor of the records requester and the city immediately appealed it to the state's Supreme Court. The Supreme Court dumped it back down a level to the Appeals Court, forcing the line-jumping defendants to exhaust their other options first. Unusually (for a public records lawsuit), Vermillion theorized his constitutional rights were violated by the records request. These theories failed to persuade the lower court. From the decision [PDF] (via FourthAmendment.com): The superior court denied the City’s motion, but granted West’s motion in part, ruling that (1) the Fourth Amendment’s protections against search and seizure were not implicated because Vermillion had no reasonable expectation of privacy in communications “related to the public’s business”; (2) the privacy protections under article I, section 7 did not apply because West was not seeking private information; (3) the First Amendment was not implicated because West was not asking for political activity records; (4) Vermillion was not subject to the City’s policy prohibiting City employees and volunteers from performing city business on personal or third-party “technology resource[s],” which include electronic or digital communications and commingling of City and non-City data files; and (5) the public has a right to inspect public records located on a personal computer unless the records are “highly offensive to a reasonable person and are not of legitimate public concern.” The superior court then ordered Vermillion “under penalty of perjury [to] produce records that are within the scope of [p]laintiff’s records request.” The Fourth Amendment claim is especially interesting because I have yet to see this raised in conjunction with a public records request. The argument so completely misconstrues these protections it's amazing the city stepped in to help support it. Then again, most government bodies will take any pitch-black port in a transparency storm, so pushing an argument that posits that a government entity searching for government documents somehow violates a government employee's Fourth Amendment protections is one of those things you do just in case it might provide a blueprint for future opacity. Fortunately, the court makes it clear that personal email accounts cannot be used to route around public records requests. Appellants argue that the superior court erred in ordering Vermillion “to produce e[-]mails from his personal e[-]mail account and swear under [penalty of] perjury that he had complied.” Specifically, Vermillion argues that the PRA does not “authorize an agency to require an elected official to search a personal e[-]mail account.” We reject Vermillion’s argument. Nissen squarely addressed this argument and held that an agency’s employees or agents must search their own “files, devices, and accounts,” and produce any public records, including “e-mails,” to the employer agency that are responsive to the PRA request. The Nissen court also held that affidavits by the agency employees, submitted in good faith, sufficient to satisfy the agency’s burden to show it conducted an adequate search for records. Thus, we hold that it was proper for the superior court to require Vermillion to produce to the City e-mails in his personal e-mail account that meet the definition of a public record under RCW 42.56.010(3) and to submit an affidavit in good faith attesting to the adequacy of his search for the requested records. The city raised another interesting argument on appeal. And by interesting, I mean novel. The city (and Council member Vermillion) attempted to push the brand new theory that Vermillion's specific position within the city government somehow made his communications unreachable through records requests. The court found this theory equally unpersuasive. In reply, appellants argue, for the first time, that the result must be different as applied to them because Vermillion was an elected legislative official, rather than an elected executive official. Appellants contend that this distinction is important because “unlike an elected executive official such as a county prosecutor, an elected legislative official has no legal authority to act on behalf of the city through e[-]mail, or to take any unilateral action on behalf of the City at all.” We disagree. A record subject to disclosure under the PRA is not contingent on its possessor’s ability to take unilateral action on behalf of the agency. Instead, a record is subject to disclosure under the PRA if it is “a record that an agency employee prepares, owns, uses, or retains in the scope of employment.” Despite there being very little legal precedent to support these obfuscatory tactics, government employees still hold out hope that the use of private email accounts and personal devices will allow them to skirt their obligations to the public. Sometimes it works simply because the public is unaware of these accounts or devices. You can't FOIA what you don't know exists. But even when the public is aware, it far too often requires going through the time and expense of a lawsuit to force the government to turn over these documents. Permalink | Comments | Email This Story

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By now, lots of people within the Donald Trump campaign have admitted that even they didn't really expect to win -- and thus they're scrambling to get things in order to actually, you know, run the damn country. That includes the transition website, GreatAgain.gov, which (to their credit) the Trump team did get up pretty quickly. Of course, some of the reason they were able to do that was, apparently, that they just copied a whole bunch of text from another website, Partnership for Public Service's Center for Presidential Transition. Now, that site is pretty good, and it's certainly topical, seeing as the whole project is designed to do exactly this: help Presidents transition power. But that doesn't mean that a campaign is just supposed to copy the website wholesale. And, yet, the Trump campaign did exactly that. If the Center were so inclined, it could argue that this is pretty blatant copyright infringement (its website says that the content is covered by copyright, and it doesn't seem to use an open license like Creative Commons, even though it probably should). There is, at least, a strong argument of fair use here, given the nature of what's being done here -- but it's not exactly a slam dunk. Of course, it also leads to some oddities, because, in the rush to copy, the Trump campaign seems to have left in references to the Center itself or charts that weren't copied as well: One post, titled "Help Wanted: 4,000 Presidential Appointments," refers to a "chart below" — but the version on Trump's site has no chart. On the center's website, those lines are followed by a detailed interactive graphic showing the positions requiring Senate confirmation in the departments of Justice and State. Another page on Trump's site, titled "The Offices and Agencies Supporting the Transition," is exactly the same as a page on the nonprofit's site — including a reference to "our own Center library." Both versions link to the nonprofit's online resource. On the nonprofit group's site, the two posts are accompanied by the name of the Partnership for Public Service staffer who wrote them. There is no such attribution on the Trump site. But that's not the only copyright problem here. There's also the fact that GreatAgain.gov has its own copyright notice, in which it is using a Creative Commons license -- and specifically the Creative Commons Attribution 4.0 license, which is pretty permissive. But, of course, it can't actually claim copyright on the Center's material that it just up and copied. And then there's the separate question of can the Trump transition team actually claim any copyright at all? After all, as we've discussed many times, works of the federal government are not subject to copyright protection. But... is the transition site a work of the federal government? That seems like a pretty big gray area, though there's a strong argument that it's not. Yes, the website is hosted on .gov, and everyone knows these people will be the federal government in a few months, they're not technically part of the federal government yet. And given that copyright law already allows the federal government to hold the copyright on works created by outside parties and then assigned to the federal government, it seems most likely that the transition team would be seen as outside the federal government for now. Of course, it's unlikely that any of this will matter. The Center for Presidential Transition doesn't seem that concerned about the copying, and one hopes that there aren't going to be any issues concerning the copyright status of the transition website, but since there has basically been zero discussion at all about the new administration's position on copyright, watching how it handles these kinds of situations is important.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Though the notion of the Facebook "filter bubble" has been around for a while, it's picked up a huge amount of steam following the election of Donald Trump — perhaps just a little too much steam. While Techdirt has long been of the opinion that pointing fingers at Facebook is misguided, there are plenty of people who disagree. This week, we're joined by one such person — long-time media commentator and senior editor at Fortune Mathew Ingram — for a lively debate about just how much of a problem the filter bubble really is, and how you'd go about solving it. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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I've already argued that the rush to point fingers at Facebook for allowing lots of fake news to get passed around is greatly overhyped by people searching for explanations for last week's election results. That doesn't mean that people shouldn't be looking to do something about fake news on various platforms. On Monday, Google also faced some controversy over fake news, when its top result for people searching for "final election results" pointed to a fake news site with made up numbers. In response, a few hours later, Google announced that it was going to start banning fake news sites from using Google's AdSense ad product. A few hours after that, Facebook announced a similar pledge to stop allowing those sites to make money from Facebook. This leads to a few different thoughts: lessening the power of totally fake news sites is certainly a good idea. And cutting off conventional ad revenue paths might be at least somewhat effective in the short term. After all, recent reports have shown that many of the fake news sites were set up by people overseas in a pure arbitrage play to cash in on the easy ad revenue by finding lots of gullible Americans. The young Macedonians who run these sites say they don’t care about Donald Trump. They are responding to straightforward economic incentives: As Facebook regularly reveals in earnings reports, a US Facebook user is worth about four times a user outside the US. The fraction-of-a-penny-per-click of US display advertising — a declining market for American publishers — goes a long way in Veles. Several teens and young men who run these sites told BuzzFeed News that they learned the best way to generate traffic is to get their politics stories to spread on Facebook — and the best way to generate shares on Facebook is to publish sensationalist and often false content that caters to Trump supporters. [....] “I started the site for a easy way to make money,” said a 17-year-old who runs a site with four other people. “In Macedonia the economy is very weak and teenagers are not allowed to work, so we need to find creative ways to make some money. I’m a musician but I can’t afford music gear. Here in Macedonia the revenue from a small site is enough to afford many things.” Of course, this raises lots of other questions. If Facebook can figure out which sites are "fake" news sites, then, um, why doesn't it also adjust its algorithm to either highlight that those are fake news sites or to simply not promote those stories in feeds quite so much? But there are a number of other issues here. Sure, for the purely fake news sites, perhaps this makes sense, but who's determining what sites are "fake" and what's not. Because while it sounds like a black and white kind of thing, that discussion can get fuzzy pretty damn quick. After all, some of the sites that have been discussed publish a mixture of fake and real news. And sometimes "real" publications get tricked and publish fake news too. Remember, just a few weeks ago, Rolling Stone lost a lawsuit for publishing what was basically a fake news story. And, of course, you'll have opinionated partisans on all sides arguing that this or that publication is "fake." We see it all the time when people yell at us for linking to certain websites that haters insist are propaganda for one or the other political parties. Where do these companies draw the line? Another problem is that while Google and Facebook may dominate the ad business, they're hardly the only ones. Hell, we get emails basically every day from new ad networks looking to put ads on Techdirt. Many of them seem dubious, but do kids in Macedonia running fake Trump stories care about how dubious the ad networks are? If they get paid, they'll use them. Finally, while cutting off ad revenue from these sites isn't a horrible idea, it does seem to avoid the actual issue which is how so many people are absolutely terrible news consumers. And, yes, you are too. Everyone is at some point. A story just seems too good to be true, or that fits with your world view, and of course you're going to share it, because that's what we've all been conditioned to do. What would be great was if there was a way to actually train people to be better news consumers -- to actually take the time to learn what's happening and what's really going on -- but that seems like it's just wishful thinking these days.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Last week I wrote a bit about the ridiculous and misguided backlash against Facebook over the election results. The basis of the claim was that there were a bunch of fake or extremely misleading stories shared on the site by Trump supporters, and some felt that helped swing the election (and, yes, there were also fake stories shared by Clinton supporters -- but apparently sharing fake news was nearly twice as common among Trump supporters than Clinton supporters). I still think this analysis blaming Facebook is wrong. There was confirmation bias, absolutely, but it's not as if a lack of fake news would have changed people's minds. Many were just passing along the fake news because it fit the worldview they already have. In response to that last post, someone complained that I was arguing that "facts don't matter" and worried that this would just lead to more and more lies and fake news from all sides. I hope that's not the case, but as I said in my reply, it's somewhat more complicated. Some folks liked that reply a lot so I'm expanding on it a bit in this post. And the key point is to discuss why "fact checking" doesn't really work in convincing people whom to vote for. This doesn't mean I'm against fact checking, or think that facts don't matter. Quite the reverse. I think more facts are really important, and I've spent lots of time over the years calling out bogus news stories based on factual errors. But here's the problem: the general business of fact checking seems to merely serve to, again, reinforce and retrench opinions, rather than change them. As I said in my comment, there are a large group of people out there that view the whole fact checking business itself as a sort of condescending "let them eat facts" kind of thing, in which they're being scolded for believing the "wrong" kind of thing. And this has lead (not surprisingly) to widespread attacks on fact checkers themselves as being "biased." You don't have to look very hard to find (often conservative-leaning) publications argue that "fact checkers" are biased against their views. The famed debunking site Snopes has come in for particular attack this year as just a liberal front. In the past few months, any time I've mentioned Snopes, or seen someone else link to it in our comments, another comment will mock them from linking to such a "biased" or "Clinton-supporting" site. Snopes itself, for it's part, has put up a somewhat amusing page with all of the contradictory accusations of bias it has received over the years from people who dislike its fact checking on certain politicians. Senator Daniel Patrick Moynihan famously stated "You're entitled to your opinion, but you are not entitled to your own facts." It's a good quote, but the problem is that plenty of people do feel entitled to their own facts these days. And straight up fact checking seems like the wrong approach. In psychology, there's a concept known as cognitive dissonance, describing how people basically trick themselves into dealing with contradictory beliefs (the term is technically about the uncomfortable position people are in put in because of the contradictory ideas, but it is commonly used to describe how people effectively trick themselves to get out of that state). It seems to describe how many people end up dealing with inconvenient facts. They don't change their mind -- they just come up with an excuse as to why the facts presented are wrong or biased. And when they're presented in the form of "fact checking" from a big site or news publication, it's easier than ever to dismiss them, because we're told over and over again that "you can't trust the media." That gives people an out -- when they come across inconvenient facts, they insist that there's bias or a problem with the source while not dealing with the actual underlying facts. And studies have shown that fact checking can not just fail to convince people in political debates, it can actually make them cling more strongly to their false beliefs. I'm not quite sure how to deal with this, but I wonder if the overall approach needs to change. It's pretty uncommon to see people change their minds when just handed a big stack of facts. Some have suggested that convincing people they're wrong on something is so complex that it has to involve them literally transforming how they think of themselves, which is not going to happen when you just throw a pile of facts at them. In my experience, the times I've been convinced to change my mind, or seen others change their minds, it tends to come when there are long drawn out conversations, exploring the issues in more depth -- with lots of back and forth. But also it tends to happen in environments where the stakes are lower (e.g., often private, rather than public discussions, where no one "loses face" for realizing they were wrong). Given that, I still don't know what the solution is, but merely pumping up the fact checking isn't going to do much to change anyone's minds. It just angers some, and reinforces the feelings of superiority of others.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Computer and network security is one of the fastest growing and most important sectors of technology. The Ethical Hacker Bonus Bundle will teach you ethical hacking from beginner to master. The 9 courses cover everything from mobile web app security to penetration testing and so much more. This bundle is normally $49 in the Deals Store but for today only it is for sale for only $25! Grab this deal before it disappears. 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

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posted 18 days ago on techdirt
Throughout the campaign, we noted how Donald Trump's views on the First Amendment and free speech were horrific. While some of his supporters insist that he's wonderful for free speech because he's not "politically correct," in almost every way he's positioned himself as an enemy of free speech and the First Amendment (even the whole "political correctness" thing is misleading, because if you mention certain other words, Trump supporters seem to get just as worked up as the "PC police"). He (along with Clinton) promised to censor the internet and brushed off the free speech concerns about doing so, calling people who bring up free speech in that context to be "foolish people." And, then of course, there is the long list of threats to sue his opponents for their ads, news organizations for their articles and other critics as well. Those are all protected speech. It didn't help matters that his very first post-election tweet complained about protesters exercising their First Amendment right to assemble and protest, and the press for supposedly "inciting" them to protest. In the past few days things haven't gotten much better. His campaign manager, Kellyanne Conway threatened Harry Reid with legal action for criticizing the President-elect. Sure, Reid's statement was hyperbolic and a bit ridiculous, but no more ridiculous than stuff that Trump himself said on the campaign trail. You don't go and threaten people for expressing their opinions -- especially when its people from opposing parties. That's what dictatorial strongmen do, not those in a country that has the First Amendment. And, of course, Trump continued to use Twitter to get into a weird spat with the NY Times insisting (incorrectly) that people were unsubscribing because of its coverage of him. @realDonaldTrump @nytimes fact: surge in new subscriptions, print & digital, with trends, stops & starts, 4 X better than normal. — NYTCo Communications (@NYTimesComm) November 13, 2016 And then he insisted that the NY Times was lying in reporting on things he said about having more countries get nuclear weapons. Except he did say those things, and even the friendliest publication to Trump, Breitbart, reported on him saying it. Yes you literally did. Even Breitbart reported it https://t.co/gXXwAkrSH8 https://t.co/KMThfUSPTn — Ashley Feinberg (@ashleyfeinberg) November 13, 2016 No, he's not threatening legal action there, but selectively attacking and calling out certain publications -- especially for their accurate reporting -- is pretty ridiculous and again shows that Trump seems to have a serious inability to recognize that adversarial reporting on the government is kind of an important part of the freedom of the press. And we haven't even gotten to Trump's promise to "open up libel law" to make sure that publications that reported negatively on him have "problems." As we noted when he said this, while he can't just "open up libel laws," he can still create lots of problems for free speech and the First Amendment. And that's why people like Margaret Sullivan are arguing that this is our big First Amendment test. Some people have argued -- including in our comments -- that we should wait and see what Trump actually does. I think we should take him at his word. If he didn't mean, then let's see it by his actions. But in the meantime, it's going to be important to guard our free speech rights carefully, because Trump and his campaign have so far showed almost no respect for them at all. As journalism professor Dan Gillmor said in a recent speech, journalists need to become activists for free speech. At Techdirt, we've always considered ourselves exactly that: strong advocates for free speech and an open internet, and so much of what we talk about stems from that. And we plan to continue to do so, even though we're quite small. I know I've seen lots of people suggest people subscribe to newspapers and some wonderful organizations like the ACLU and EFF -- and we're all for that too. But if you want Techdirt's voice to keep speaking out on this as well, perhaps, think about supporting us as well.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
A few weeks back, Ken "Popehat" White lit the famed Popehat Signal to seek pro bono legal help for the creators of a new Kickstarter project called "Oh The Places You'll Boldly Go" -- which was a parody mashup of Dr. Seuss and Star Trek. As White wrote at the time, this seemed like a clear case of a big corporate bully -- Dr. Seuss Enterprises -- bullying a small group of artists having some fun, creating a parody that was almost certainly protected by fair use. I believe this project is protected by Fair Use. Under the first relevant factor, it's "transformative," in that it adds a new message or meaning to Dr. Seuss's work. It doesn't merely offer a Star Trek episode in Dr. Seuss style; rather, it uses the style to comment on and contrast the Stark Trek and Seuss sensibilities and styles. With respect to the "substantiality" factor, the parody only uses Seuss's recognizable and oft-parodied style; it does not copy actual art or story lines. With respect to the last factor, the work doesn't harm the market for Seuss's work. In other words, people won't buy less Seuss because they bought this parody. Either way, the Seuss people issued a takedown to Kickstarter that killed the crowdfunding campaign. The creators of the parody did get legal representation, and responded to Dr. Seuss Enterprises threatening counterclaims, and then also filed a counternotice with Kickstarter to get the campaign reinstated. Dr. Seuss Enterprises, rather than considering what thuggish bullies they might look like, decided to go ahead and sue last week, which they needed to do to keep Kickstarter from reinstating the project. You can read the whole ridiculous complaint yourself, if you'd like. The lawsuit is claiming both copyright and trademark infringement (of course) along with unfair competition. The complaint includes a number of examples of what it calls the parody's "slavish copying" apparently not caring that that's kind of the point of a parody: Somewhat ridiculously, the lawsuit is even using the fact that the parody creators admitted in the required "risks & challenges" section of their Kickstarter campaign page that they may get sued as evidence that they knew this was infringing: On its Kickstarter page, Defendants admit that their blatant and willful infringement presents “Risks and challenges” to their project: While we firmly believe that our parody, created with love and affection, fully falls within the boundary of fair use, there may be some people who believe that this might be in violation of their intellectual property rights. And we may have to spend time and money proving it to people in black robes. And we may even lose that. Except, of course, if you actually read that, they don't admit that at all. They admit that some thuggish idiotic bullies who think copyright gives them more rights than it does may force them to waste time and money in court to prove fair use. And they were totally right about that. Of course, this is not new territory for Dr. Seuss Enterprises. A few years back we had another story about it legally threatening another parody, which mocked how frequently "Oh The Places You'll Go" is read at graduations at a time when graduates were having more and more difficulty finding jobs. Many people love Dr. Seuess books. And it's not like they're going out of style or hurting for cash these days. Decades after Theodore Geisel's death, Dr. Seuss books still absolutely and totally dominate the charts for children's book sales. I'll admit that my kids have a few on their bookshelf, but as long as Dr. Seuss Enterprises continues this kind of ridiculous bullying of perfectly reasonable parodies, I will never buy another Dr. Seuss book and recommend others do the same. Nothing good comes from rewarding giant enterprises that seek to stifle creative expression.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
For some time now broadband providers have taken a page out of the banking playbook and hitting consumers with sneaky, below-the-line fees for TV and broadband service. Whether it's the use of "regulatory recovery fee" (a bogus fee designed to sound like it's government-mandated to misdirect blame) or an entirely pointless and nonsensical fee like CenturyLink's "Internet Cost Recovery Fee," these surcharges exist for one purpose: they let the ISP advertise one price, then charge something dramatically different. You'd be hard pressed to find any regulator willing to crack down on this practice, leaving a rotating crop of lawsuits as the closest ISPs get to seeing actual punishment for such behavior. A few years ago Time Warner Cable was sued for false advertising and deceptive business practices after promotional rates wound up being significantly larger once the customer bill came due. While that suit still stumbles forward, Time Warner Cable (and new owner Charter) have just been hit with another, similar suit, this time more specifically focused on the company's use of "broadcast TV fees" and regional sports network fees. The plaintiff in this case isn't seeking any monetary damages; the complaint itself going to great lengths (pdf) to point out how these kinds of deceptive charges now account for more than 20% of Charter's revenues. The case spends a lot of time focusing on the now-industry-standard "broadcast TV fee," which tries to take the cost of programming and bury a portion of it below the line:"In March 2014, TWC began utilizing a shady backdoor way to increase prices to its prospective and current television service subscribers, while continuing to advertise and promise the same flat lower monthly rates for its service plans. Rather than implementing a top-line price increase for its advertised television service or bundled service plans - which would have been noticed by its prospective and current customers - TWC instead kept the advertised price the same and hid the price increase in a newly invented and inadequately disclosed “Broadcast TV Fee.”You might recall that Comcast, when also sued for this exact same fee, tried to claim that taking the cost of business and hiding it below the line was just its attempt at being "transparent" with the company's customers. And of course once this fee is implemented it quickly soars — in Time Warner Cable's case having tripled in just three years to an additional $6.05 per month. These fees not only let companies falsely advertise a lower price, it also allows them to falsely crow about how they haven't raised rates in "X" years, even if they're technically raising rates pretty much constantly. And while the FCC had been pondering a "nutrition label" for broadband & TV services that would have required ISPs be more clear about pricing, that program was voluntary and, like so many recent FCC initiatives, isn't particularly likely to see much attention under a Trump Presidency.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
FBI Director James Comey believes encryption is perhaps the biggest threat to public safety yet. So big, in fact, that he can only engage in hyperbole about it. There's been very little done to quantify the problem, even by the agency that seems to fear it most. In 2015, Comey told senators that a "vast majority" of devices seized by US law enforcement "may no longer be accessible" due to encryption. Comey has a very strange definition of "vast majority," as Marcy Wheeler points out. In a speech at the end of August, Jim Comey claimed that the FBI had been unable to open 650 of the 5,000 devices it got in its forensics centers. "We believe in the FBI that we need a conversation. If at the end of the day the American people say, “You know what, we’re okay with that portion of the room being dark. We’re okay with”—to use one example—“the FBI, in the first 10 months of this year, getting 5,000 devices from state and local law enforcement and asked for assistance in opening them, and in 650 of those devices being unable to open those devices.” That’s criminals not caught, that’s evidence not found, that’s sentences that are far, far shorter for pedophiles and others because judges can’t see the true scope of their activity." That left the impression that encryption thwarted the FBI in 13% of all cases. But it's not even 13%. Comey has given the impression that the agency has hard numbers on encryption, but there's still nothing to work with. The 13% percent presented by Comey includes all inaccessible phones -- a number that includes physically-damaged phones and phones where data had been deleted. So the "problem" is far less of a problem than has been presented. While it's true that the number of encrypted devices encountered will rise with the continued implementation of encryption-by-default, the "darkness" predicted by Comey and others (like Manhattan DA Cy Vance) is still nothing more than a rhetorical tactic. But nothing's going to move ahead legislatively if the FBI can't demonstrate necessity. And 13% isn't going to cut it, even if that number is inflated. James Comey is basically acting as an anti-encryption lobbyist, as Wheeler points out: So unless the FBI, after I asked in early September, went back and recalculated their quarterly numbers (I’ve got a question in to clarify this point), then the FBI is presenting a false claim about encryption. This is what's being used willingly by Senators Burr, Feinstein, and others to push anti-encryption legislation forward: overstated fears and massaged numbers. Comey wants the private sector to "nerd harder" and bend math to his will, ignoring the realities and repercussions of doing so. This fits in perfectly with his nonscientific approach to curbing or ending encryption: unverifiable claims backed by fuzzy numbers and a continued unwillingness to address the situation as it is, rather than what he portrays it to be. Permalink | Comments | Email This Story

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Techdirt has been covering China's relentless clampdown on every aspect of the online world for some time, culminating in the new "cybersecurity" law that's just been passed. But if you think the Chinese authorities are now done, you'd be wrong. They are branching out into an entirely new field -- cinema -- with a law that the official Xinhua News Agency calls "the first of its kind in China": The top legislature on Monday adopted a film industry law, promising harsh punishment for firms that fabricate box office earnings, data or information. That makes it sound like it is mostly about regulating the commercial activities of China's cinema industry. And it's true that there are some measures designed to prevent fraud, apparently something of a problem in the country: Film distributors and theaters will have all their illegal earnings confiscated and be fined up to 500,000 yuan (about 73,800 U.S. dollars) if they falsify ticket sales data, according to the law adopted at the National People's Congress (NPC) Standing Committee bimonthly session after a third reading. If their illegal earnings exceed 500,000 yuan, the fine will be up to five times their illegitimate earnings. They may also be hit with an operating suspension or have their business certificates revoked in serious cases, according to the new law. But the meat of the legislation is probably to be found in the following aspects: The law specified that actors, directors and other staff should be "excellent in both moral integrity and film art," maintain self-disciplined and build a positive public image. ... The [government] media watchdog is also establishing a "professional ethics committee," aiming to guide organizations and people in the radio, film and media circles to practice "core socialist values." And it's not just the actors who must be on their best behavior under the new law: China will support the making of films championing excellent Chinese culture and socialist core values. Chinese groups can cooperate with overseas counterparts in film shooting, excluding overseas organizations and individuals that engage in "activities damaging China's national dignity, honor and interests, or harming social stability or hurting national feelings," the law said. Since China is now the world's second-largest film market according to Xinhua, there will probably be plenty of Western companies that will be interested in co-productions. But the new rules mean that the Chinese government's interest in a film's storyline is now quite explicit, and that anything that "hurts national feelings" is a definite no-no. That probably means more discreet compromises of the kind recently seen in the film Doctor Strange, where a Tibetan Ancient One mysteriously turned into a Celtic Ancient One. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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When Colorado made recreational marijuana use legal, neighboring states were quick to predict lasting damage would be done by this flouting of federal law. "It's still illegal here," they sued briefly, before being booted back to reality by the Supreme Court. “In passing and enforcing Amendment 64,” the lawsuit said, “the state of Colorado has created a dangerous gap in the federal drug control measures enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining [their] own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems.” It has turned out to be far less of a "stress" than they imagined. More than a few law enforcement agencies have been happy to place patrol cars at the border and snag alleged pot purchasers as they exit the state. This hasn't always worked out well for them, but nothing about these enforcement actions suggests law enforcement (part of the criminal justice system) was too bothered by the influx of drug busts. Of course, it's kind of difficult to nail someone for a fully-legal purchase. Buying from an authorized weed dealer isn't like buying from someone 16 degrees removed from a Mexican cartel. The purchase is legal. Any travelling outside the legal boundaries isn't. But the fact that marijuana can be purchased legally in some states has led to shifting attitudes both inside and outside of law enforcement. It's no longer considered de facto criminal activity worthy of punishment. Court decisions have played a small part in this forced loosening of drug enforcement efforts. One court told cops they couldn't presume everyone with a Colorado license plate was participating in drug trafficking. Another court informed eager locals they couldn't arrest (and seize assets from) people traveling to Colorado, even if they clearly stated they intended to purchase marijuana while there. The criminal nexus actually had to be in the jurisdiction covered by the law enforcement agency involved and "might do something illegal in the future within this jurisdiction" isn't probable cause for an arrest. Even without these court decisions, law enforcement is finding there's not much point in panicking about Colorado's drug tourism industry. Kansas Attorney General Derek Smith wisely decided to hold off on boarding the Amendment 64 lawsuit bandwagon until he had some evidence of actual harm in hand. Turns out, he couldn't really find any. [L]aw enforcement was reporting fewer – not more – marijuana-related offenses. This was confusing to Schmidt, who said he’d heard from law enforcement that Colorado marijuana was king. So he invoked a 19th-century law to survey law enforcement agencies. And he received a huge response: 390 law enforcement agencies and district attorneys painted the first large-scale picture of the impact of Colorado’s legalization on Kansas. The early results suggest it is having a big impact, but it may not all be negative. The amount of marijuana being confiscated appears to be dropping quickly. But the potency of the marijuana is increasing. It's good to know it's no longer just the Drug War increasing drug potency. Legalizing drugs appears to have the same effect, only without the corresponding drain on public funds. Even more interesting is the attitude law enforcement is taking, even with a potentially unlimited number of drug busts available. The issue of legality/illegality may appear black/white, but government employees tend to respect government entities, even when they do something like legalize a drug that often acts as a revenue stream for drug warriors. In some jurisdictions, law enforcement are no longer enforcing marijuana laws much, and even when they do, it has become difficult to win convictions. Users may receive a fine in one county, probation or jail in another and told to move along in others. [...] Some officers won’t issue citations for marijuana possession, according to the report. “Our local deputies and sheriff tell me they stop at least five cars a day with personal-use marijuana inside and absolutely refuse to issue a citation or report for it,” according to the district attorney’s office in Clark County. “They simply confiscate it and send them on their way.” Some of this relaxation may be due to diminishing returns. More prosecutions are being undone by local juries composed of people who no longer believe firing up the occasional joint to be a criminal act worthy of jail time. Some juries are refusing to hand out marijuana convictions. “I have had a number of potential jurors during voir dire opine their belief that marijuana should be legal,” according to the district attorney in Labette County. “Oddly enough, these statements were made in non-marijuana cases.” This is true for young and old, black and white, according to the district attorney in Leavenworth County. The elderly say it should be allowed for medicinal purposes, while young jurors tell the DA it’s “less serious than tobacco or alcohol, and they oppose the use of tax funds to prosecute marijuana cases.” Of course, there are still some district attorneys who wish the rest of the criminal justice system would take their marijuana possession prosecutions more seriously, complaining that lax sentences have resulted in the "absconding" of dangerous pot purchasers to their home states. More pragmatically, those in charge of housing inmates are relieved more cases are dead-ending as they'd rather use their limited space to house actual dangerous felons, rather than Kansans caught on a weed run. If anything, the information collected shows a more relaxed approach to enforcement would see nearly no appreciable harm come to the state of Kansas. Law enforcement resources aren't infinite and they should be focused on criminal acts with victims, rather than people legally purchasing a drug for recreational use. Unfortunately, despite the lack of evidence supporting theories of harm, state AG Derek Smith still holds out hope that he'll find something to justify a legal weed lawsuit. “Here you have our sister state – we love them, we get along great with them most of the time,” Schmidt said. “But doggone it, they have done something that federal law says they may not do, and it’s Kansans who are paying a price for that.” Any price Kansans are paying for Colorado's marijuana sins are being imposed on them by overzealous enforcement. A legal distributor in the next state makes it pretty difficult to build a local, fully-criminal marijuana distributorship that can compete on price or potency. Playing hardball with drug tourists does nothing but blow taxpayer dollars on looking out-of-touch and ineffectual. Permalink | Comments | Email This Story

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Spotted by Eriq Gardner over at The Hollywood Reporter, Sony has applied for a patent measuring how accurate reporters are. From the patent abstract: The methods and systems take into account a multiplicity of approaches to reputation determination and integrates them together in a way that determines not only a reputation index but a veracity scale on which to gauge that reputation. The system proposed herein will create reputation indices based on input from other participants in the ecosystem taking into account the weighting of the value of the input of the various participants based on their credibility as applied to the judgment at hand. The system will also take into account temporal components, the historical value of the work, passive input based on usage behavior, comments by casual observers as well as independent assessment in public fora. The system is able to be applied to journalists and their work to generate a veracity scale for articles. While I'm sure many can see the value in actually rating journalists on how accurate/truthful their reporting is, the idea that a rating system like this should be patentable is fairly ridiculous. I mean: Like anyone wouldn't have come up with such a system if there wasn't patent protections? Separately, as the EFF's Vera Ranieri asks, it's questionable whether or not granting such a patent would be consistent with the First Amendment. Remember, just a month ago, a top judge at the Federal Circuit appeals court (the place where all patent case appeals go to) noted that patents could be rejected on First Amendment grounds if "they are allowed to obstruct the essential channels of scientific, economic, and political discourse." So if this patent were granted, and (bizarrely) it excluded others from ranking the accuracy of journalists -- would that violate the First Amendment? Hopefully the patent office rejects this patent application entirely and we never have to find out.Permalink | Comments | Email This Story

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Back when most people still expected Hillary Clinton to be our next President, there was a lot of talk about how President Obama would try to shove through the ratification of the TPP agreement in the lame duck session between the election and the inauguration -- so that Clinton wouldn't have to flip flop on the agreement yet again. Of course, with Trump elected, that was going to be even more difficult, and now basically everyone in the administration and Congress has agreed that the TPP is dead. There will be no effort to ratify it in the lame duck session, and it certainly seems unlikely that President Trump will push to revive it. While other countries in the agreement may move forward, it doesn't matter unless the US ratifies. It's expected that the other major trade deal, the TTIP, is also unlikely to move forward at this point. Of course, this doesn't mean we're out of the water. These agreements may be dying, but not for the right reasons -- and that's what should worry folks. The reason why many of us have been worried about TPP and TTIP is not because of the actual free trade parts of the agreement that involve lowering or getting rid of tariffs -- but rather much of the other stuff in there, including dangerous and damaging copyright and patent policies, along with the whole ISDS setup, which is really a provision for corporate sovereignty, giving companies the effective ability to veto certain regulations. But, that doesn't seem to be the reason why Trump is against these deals. Rather, almost all of his commentary on these agreements is about how other countries are "winning" and the US is "losing" from these trade deals -- and how he's ready and willing to jack up tariffs and basically set off trade wars with some of our largest trading partners. That's bad, and will likely cause a lot more harm than good. Furthermore, the fact that Trump is either unaware or doesn't understand the actual problems with these agreements suggests that there will be ample opportunity for lobbyists to work them in to future agreements. So while the problems of the TPP (and TTIP) are now off the table, there is plenty to watch out for going forward.Permalink | Comments | Email This Story

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Anti-Muslim troll and self-proclaimed First Amendment warrior Pam Geller's stupid lawsuit against the DOJ for social media companies' removal of her Islamophobic posts has reached an end (if only temporarily). DC District Court Judge James Boasberg's decision pretty much aligns with the DOJ's motion to dismiss: in short, Geller is wrong about Section 230, wrong about the DOJ's "enforcement" of this affirmative defense, and not even close to targeting the right entity(ies) in her lawsuit. (via Eric Goldman) A very short recap: Geller routinely posted anti-Mulism content to social media platforms. These platforms would take her posts down and occasionally suspend her accounts. Geller felt this was censorship (it isn't) so she sued not Facebook, not Twitter, not any other social media service but the federal government. In her view Section 230 of the CDA is not a defense, but an excuse for social media platforms to remove her dubious contributions. What Geller ignores is that Section 230 is likely the only reason her posts stay live at any platform for any length of time, simply because it shields Facebook et al from being held civilly liable for content created by users. Boasberg's opinion [PDF] only runs 11 pages but it's more than enough to dispense with Geller's ridiculous legal arguments. He gets right to the crux of the issue in the first paragraph. Facebook, YouTube, and Twitter may be host to a mélange of cat videos, musings from long-lost cousins, and odes to Beyoncé, but not all content is welcome on these social-media platforms. Pursuant to their private terms of service, the companies have repeatedly taken down some of Plaintiffs’ posts criticizing Islam. Plaintiffs — two non-profit organizations and their leaders — allege that such action constitutes censorship and discrimination on the basis of content, viewpoint, and religion. Yet a quick glance at this case’s caption reveals a surprise: Plaintiffs have not named the companies as Defendants. Instead, they have sued only the United States Attorney General, alleging that a provision in a federal statute — § 230 of the Communications Decency Act — enables the companies’ censorship and discrimination and violates the First Amendment. And nails this point home again and again. These and other actions led Plaintiffs to conclude that Facebook, YouTube, and Twitter employ their company policies to suppress the speech and activities of disfavored speakers, including Plaintiffs, and to discriminate against “certain political parties, national origins, and religions,” particularly Israelis, Jews, and conservatives. Yet Plaintiffs have not brought this suit against the social-media companies. Instead, in July 2016, they named the United States Attorney General as the lone Defendant. The court also addresses Geller's convoluted argument that the DOJ -- via Section 230 of the CDA -- is somehow responsible for content moderation efforts performed by Facebook and others. [Section 230] does not grant the Attorney General any power to impose criminal or civil liability, nor to direct or forbid interactive computer services to take any particular action vis-à-vis third-party users, including deleting objectionable content. Indeed, § 230 affords Defendant no role — enforcement or otherwise — of any kind, nor does it delegate any enforcement role to any federal agency or federal official. This brings it back to a question of standing: Geller and her co-plaintiffs have none. The attorney general has no power to enforce Section 230. Even if the court were to grant Geller standing and find her arguments actionable, the remedy Geller seeks would have zero effect on the actions she's suing over. It would not constrain Facebook, Twitter, or YouTube from invoking § 230 as a defense to any state-law discrimination or censorship action brought against them by Plaintiffs, nor would it restore Plaintiffs’ removed content or legally prevent the social-media platforms from deleting or otherwise editing Plaintiffs’ content in the future. And the court isn't interested in handing down orders based on Geller's theoretic extrapolations. Plaintiffs’ argument rests on the entirely speculative implication that Facebook, Twitter, and YouTube would voluntarily change course and permit Plaintiffs’ censored content to stand were the Attorney General to declare § 230 unconstitutional. Indeed, even absent the affirmative defense supplied by § 230, the private social-media companies could argue that they cannot be compelled to publish a particular message. Which brings this all back to the original -- and strongest -- point of this decision: lawsuits are generally more successful when they target the right defendants. [emphasis in the original] If Plaintiffs remain unhappy with the companies’ content decisions, they can sue them and attempt to defeat any § 230 defense that is raised — e.g., by invoking the same constitutional arguments offered here. Section 230 has been under attack recently and courts have, unfortunately, been humoring some novel legal theories. Fortunately, Geller's legal theories are far too novel to be entertained by this court. Sure, it's an attack on Section 230 protections, but only in the most abstract definition of the word. Geller's case never had a chance, and she seems -- at least to date -- unwilling to go directly at the social media platforms she feels have wronged her. But she's free to spend her money fighting pointless legal battles, just like an other US citizen. 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After making it a key plank of the Trump/Pence campaign that the public needed to see what was in Hillary Clinton's emails, it does seem somewhat ironic that VP Elect Mike Pence is now headed to court to protect what's in some of his emails as governor of Indiana. The administration is fighting to conceal the contents of an email sent to Gov. Mike Pence by a political ally. That email is being sought by a prominent Democratic labor lawyer who says he wants to expose waste in the Republican administration. The circumstances are different, but the general principle is the same -- and there's a really important issue at stake when it comes to FOIA and public records issues. The background is fairly convoluted, but here's a quick summary. After President Obama announced a plan to defer enforcement of certain immigration laws for certain individuals, a few states were upset about it, and Texas and Indiana (where Pence is governor) sued the President. Pence hired an outside law firm to handle the case, and a local lawyer thought this was a waste of taxpayer funds. The lawyer filed public records requests to get access to emails about the decision to hire the law firm and to find out the costs to taxpayers. Pence's office released some emails, but they were apparently redacted in places -- and in one case an email referred to an attached white paper that was not included. The lawyer who filed the request, William Groth, went to court to demand that the Pence administration reveal the full email with the attached white paper. The Pence administration has argued that it's not subject to public records requests as "attorney-client" work material -- but also that the courts are not allowed to question what the government chooses to release or redact under public records laws. A lower court agreed -- following an Indiana Supreme Court ruling saying that the courts cannot "meddle" in public records decisions by the legislative or executive branch due to "separation of powers." That's a bizarre reading of the law that seems to actually turn the concept of separation of powers on its head, as it kind of destroys a key part of that separation: the checks and balances of the three branches of government. Either way, Groth has appealed, and that means that Pence is effectively going to court to argue that his emails as governor need not be revealed. Now, you can (and I'm sure some folks will...) argue that this is entirely different than the Clinton situation. But... it really isn't. The key issue in talking about the "33,000" emails that Clinton supposedly deleted was the fact that her legal team basically made the decision by themselves what documents were related to her government work and should be turned over, and which were personal, and thus deleted. If Pence is arguing that his office alone should get to determine which emails can be revealed and which cannot, it seems fairly hypocritical of him to also have argued that Clinton and her team shouldn't have been able to make the same decision. But, of course, this is politics and the only real form of consistency is you argue for what benefits you and your team, no matter how contradictory it may be compared to when you're in similar situations. But getting beyond the hypocritical symmetry here, this is an incredibly important issue. For many, many years, we've reported on how various governments -- federal, state, local -- seem to go out of their way to avoid truly complying with various FOIA and public records regulations. Indiana's ruling that such decisions cannot be challenged in court is ridiculous and basically takes away all of the power behind the state's public records law. Government officials can just refuse to release or redact whatever they want and get away with it. That's not any way to create government transparency. It's a way to hide corruption and sketchy behavior.Permalink | Comments | Email This Story

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The Complete 2016 Learn to Code Bonus Bundle inlcudes 12 courses covering the essential coding languages. Learn Ruby on Rails, Python, PHP OOP, PDO, Angular JS and more through over 1,000 lessons and over 16 hours of instruction. There is a big price drop today only, from $65 to only $35. Act quickly and grab this super deal today before it's too late. 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

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Long-time readers may remember our coverage of a slow-moving copyright case over public domain images from The Wizard of Oz and other movies. In brief: back in 2006, Warner Bros. sued vintage/nostalgia merchandise company AVELA, which had obtained restored images from old promotional posters for the films and was selling them for T-shirts and other products. Nobody disputed that these specific images were in the public domain, because the promo materials had not been registered for copyright even though the films were -- but Warner claimed that the images nevertheless infringed on the copyright in the characters established by the film. The court originally sided with Warner in full, but on appeal found that the exact two-dimensional reproductions of the images on T-shirts and the like were not infringing, but instances where they were combined with text and other images or used to create three-dimensional models were, and awarded some pretty huge damages. To complicate matters, there's also a trademark claim wrapped up in all this. There was another appeal, and now a court has upheld the ruling and the damages, giving movie studios another weapon in their war on the public domain (here's a PDF of the full ruling). Now, there are a lot of layers here, and I'm going to focus on The Wizard Of Oz, since it provides the most interesting example. The 1900 book is in the public domain. The 1939 movie is still under copyright held by Warner. The associated 1939 promo materials were not registered (a requirement at the time) and are in the public domain. And many characters and other elements of the movie are also covered by trademark, also owned by Warner. Absolutely none of these facts are in dispute -- but put them all together and you have a giant mess that illustrates the flimsiness of the idea/expression dichotomy, and how something can supposedly remain in the public domain while being gutted of all its usefulness to the public. Let's consider the line the court drew between different kinds of use, because it's one of those things that makes a certain amount of legal and logical sense but produces an utterly absurd result. Basically, the court said that Warner can't stop someone from making unmodified reproductions of material that is undisputedly in the public domain -- that is clearly non-infringing -- but since that material includes images of characters from a work that is not in the public domain, modifying it (by combining it with other images or turning it into 3D objects) violates those other copyrights and becomes infringement. The existence and limits of character copyright are highly complex and questionable to begin with (Warner does not in fact own the characters, because those are from the book, but only the original elements of the film's expression of those characters) but if you believe in them to any extent this makes some sense: a single image of a character entering the public domain does not invalidate all copyrights associated with that character. But... consider what this means: if you are remixing copyrighted material, making your own creative changes to it weighs in your favor in a determination of infringement; if you're making use of public domain material, creative changes might magically turn it into infringement. That's not how the public domain is supposed to work. This latest ruling is mostly upholding the last one, so let's go see what the court said in 2011: The film actors' portrayals of the characters at issue here appear to rely upon elements of expression far beyond the dialogue and descriptions in the books. AVELA has identified no instance in which the distinctive mannerisms, facial expressions, voice, or speech patterns of a film character are anticipated in the corresponding book by a literary description that evokes, to any significant extent, what the actor portrayed. ... At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue, except for any aspects of the characters that were injected into the public domain by the publicity materials. Damn those publicity materials, "injecting" content into the public domain! Now, I have a few questions about this. How does an image on a T-shirt infringe on a film character's mannerisms, voice or speech patterns? Of that list of distinguishing characteristics, only facial expressions apply -- individual specific facial expressions captured in images that are in the public domain. And could we perhaps get some slightly narrower wording than "at the very least the scope of the film copyrights covers all visual depictions of the film characters"? Because goddamn. Let's say you were inspired (as many have been) by the character of the Tin Woodsman, and wanted to create something to celebrate him. What can you do? Well, you can start with L. Frank Baum's original description: Just before them, was a very big tree that had been partly chopped through, and standing right beside it, with an uplifted axe in his hands, was some sort of a man, yet made entirely of hollow tin. He was slightly rusted, but he was a tin-smith's masterpiece nevertheless. His tin head and arms and legs were all jointed upon his tin torso, but he stood perfectly motionless, as if he could not stir at all. This was one of the most astonishing things that Dorothy had ever come across in all her young life. That's definitely in the public domain. So far so good. But perhaps your fondest memories are visual — his pointy nose and his steam-pipe hat! Well, fair enough, because that's all there in the original illustrations from 1900: Okay, you're still in the clear! This piece of our shared culture is over a century old, and it belongs to us all to enjoy and repurpose as we see fit -- as it should. But hey, in your research, you've come across something interesting: original movie posters from 1939 that were never registered for copyright! Obviously the creators didn't see a great deal of long-term commercial value in their promotional materials, and were happy to let them live in the public domain. You are especially fond of one of the images -- another illustration of the Tin Man, based on his portrayal in the movie, which was itself based on the earlier illustrations: Perfect! Not only is that image in the public domain due to lack of registration, its most identifiable elements are virtually identical to the original illustrations, so you doubt it would even qualify for much copyright protection in the first place. You put it on a T-shirt. Everything's still fine, and you still haven't infringed a single copyright. But... something's missing. A final touch. Perhaps a short line of text, his most famous quote -- a six-word sampling, hardly enough to infringe on anything by any reasonable standard. Voila! Your final product is complete: STOP! THIEF! You've gone too far this time, chump. Yes, somehow that final step turned this from a perfectly legitimate use of public domain material into a grievous infringement on the rights of Warner Bros. You are no longer simply using a public domain image, you are using the mannerisms (maybe?) and voice (uh...) of a copyrighted character to create a new work. Basically, it feels like the court badly wanted to just give Warner the farm and block all uses of the images, but had to begrudgingly admit that it couldn't stop the most direct and obvious cases of reproducing something in the public domain -- so it settled for stopping everything else so long as there was the tiniest, flimsiest reason to argue it infringed on the film. To make things weirder, a trademark claim was involved too. In some ways, this claim was much stronger: Warner owns a variety of trademarks on material and images from the film, and the court reasonably found a likelihood of confusion for consumers who might think the products are official Wizard Of Oz merchandise. But the law already includes an important caveat, via the Dastar ruling, to prevent this sort of perpetual-copyright-via-trademark -- and the court knocked that down with some granular interpretation: Images of the film actors in character and signature phrases from the films are not communications, concepts, or ideas that the consumer goods embody as Dastar defines these terms. Products marketed under AVELA’s licenses employ iconic film characters’ pictures to associate the products with Warner’s films, not to copy the film itself. Accordingly, these are trademark claims, not disguised copyright claims, and Dastar does not bar them Dastar basically says that the right to reproduce public domain material without attribution trumps any claims that doing so is a false designation of origin ("reverse passing off") in violation of trademark law, by clarifying the narrow definition of "origin" -- stating that it does not mean the origin of the ideas and concepts in a work, but the actual commercial origin of a specific product. Somehow, Warner convinced the court that these T-shirts were not copying the content of the film but were in fact associating themselves with the official creators of the film and confusing consumers as to the origin of the product, and thus the trademark claim is still valid. How can both these things be true? If the public domain images of the characters are not communications, concepts or ideas as defined in Dastar, and were not used to "copy the film itself," then how can their use be subject to a claim based on the character copyrights from the film? And if they are somehow infringing on copyright, how are they not protected from a trademark claim by Dastar? Yes, you can tease out a legal interpretation that technically resolves this paradox -- but you can't make it sound any less stupid. We all know that Warner Bros., Disney, and pretty much every other company that has made a fortune by mining the public domain for material will stop at nothing to make sure future generations can't do the same. The courts need to stop letting them get away with it, but that's unlikely when we've got judges talking about things being "injected" into the public domain -- as though entering the public domain was some rare, undesirable aberration, not the default state and ultimate fate of all content. 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For much of the last year we've talked about how the FCC's decision not to ban zero rating (or the practice of exempting some content from usage caps) when crafting net neutrality rules was a horrible oversight. As we warned initially, it simply opened the door to wireless carriers and ISPs abusing net neutrality in entirely new ad creative ways. As a result, despite having net neutrality rules, we now have companies like AT&T, Verizon and Comcast all exempting their own streaming content from the caps while still penalizing smaller streaming startups and competitors. While the anti-competitive implications of this should have been clear to most people, the FCC apparently decided it was best not to ban the practice, instead promising to enforce net neutrality on a "case by case basis." But outside of launching a glacial-moving "informal information inquiry" last year, the FCC had given no indication it planned to actually protect this aspect of net neutrality. That was until last week, when the agency fired off a letter to AT&T stating that its plans to exempt its upcoming "DirecTV Now" streaming service is technically anti-competitive and could harm consumers and competitors:"In the letter to AT&T from the FCC's Jon Wilkins, the agency states that this behavior "may obstruct competition and harm consumers by constraining their ability to access existing and future mobile video services not affiliated with AT&T." "It is not difficult to calculate usage scenarios in which an unaffiliated provider's Sponsored Data charges alone could render infeasible any third-party competitor's attempt to compete with the $35 per month retail price that AT&T has announced for DIRECTV Now," the letter said. "Unaffiliated video providers not purchasing Sponsored Data would likewise face a significant competitive disadvantage in trying to serve AT&T Mobility's customer base without zero-rating."And while it's great the FCC finally woke up to the fact that ISPs are using caps to both raise rates on uncompetitive markets and hamstring streaming competitors, the FCC's letter is almost comical in how late in the game it finally arrives. Given that the man heading up Trump's telecom transition team (Jeffrey Eisenach) is a paid consultant and think tanker employed by Verizon and other large ISPs, there's every indication a Trump Presidency will go easier on mammoth broadband providers like AT&T and Comcast than ever before. As a result, the FCC's move here should generally be seen as the agency giving a pointless lecture on playing with matches after the barn has burned down. For what it's worth, AT&T is simply responding to the inquiry by claiming it can't possibly be acting anti-competitively because other companies can get cap-excempt status too -- provided they pay AT&T significantly more money:"While we welcome additional questions, we hope the FCC will consider the enormous value consumers find in obtaining free data or free streaming where someone else is footing the bill for their data. We welcome any video provider that wishes to sponsor its content in the same “data free” way for AT&T Mobility customers and we’ll do so on equal terms at our lowest wholesale rates," the company added. "Saving consumers money is something we all should support."In short you've got a company using arbitrary usage caps to give its own content a leg up, and a regulator that couldn't be bothered to see the negative impact of this behavior apparently until it had one foot out the door of governance. Where we head now isn't clear, but I think it's fairly apparent that all of the griping concerning usage caps and zero rating will likely seem downright quaint in around three to six months.Permalink | Comments | Email This Story

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Hillary Clinton has stepped forward to officially (such as it were...) blame FBI Director James Comey for robbing her of an election win. “There are lots of reasons why an election like this is not successful,” Clinton told top donors on a farewell conference call Saturday. “But our analysis is that [FBI Director James B.] Comey’s letter raising doubts that were groundless, baseless, proven to be, stopped our momentum,” she said. Clinton is referring to Comey taking it upon himself to step into the breach and declare to Congress there might be something suspicious about emails he hadn't seen (and his agency hadn't yet acquired a warrant to look at) discovered on former Congress member Anthony Weiner's laptop. Comey's announcement arrived with only a couple of weeks left until the election, prompting nearly everyone to criticize his decision to insert himself into a normally hands-off pre-election period. Clinton blaming Comey, though, looks more like a candidate looking for anyone else to blame but herself, her staff, and the DNC, which aided her run greatly by agreeing to sandbag her competition. Comey's belated announcement (and even more belated "never mind") arrived far too late to push undecided voters into Trump's corner. Those who had already decided who they were voting for wouldn't have been swayed either, as it either confirmed their beliefs that Clinton was a crook who would never be punished, or that Clinton was being baselessly persecuted by a politicized FBI. What data has been gathered from talking to voters about their sentiments pre- and post-election shows barely any correlation, much less causation. Clinton says her campaign's "analysis" points to Comey. But what exactly have they "analyzed?" Marcy Wheeler takes a good look at the information currently available and finds nothing that indicates Comey's announcement played a part in the election results. What these two pieces — from Trump’s data analyst and Hillary’s pollster — suggest is a correlation between the Comey letter and Trump’s improved chances. But there’s no proof of causation — certainly not that Comey is the primary explanation. In fact, temporally, the correlation is not perfect. Trump’s analysts say the trend started before the Comey letter. This was a weird election, but it is still highly unlikely that a letter released on October 28 can entirely explain a trend that started before October 28. Even shifting the focus entirely to swing states does nothing to solidify either party's claims that Comey's announcement swayed the election. Late-deciding voters went for Trump in several key states, but voters also broke in the other direction -- at odds with the narrative the Clinton campaign has decided to push. In Virginia, where beltway security clearance holders might have felt more animosity towards a candidate who skated on a federal investigation involved the mishandling of classified documents, late-deciders opted more often for Clinton than Trump. None of this really adds up to anything, which would be fine if Clinton's camp wasn't so ready to insist that it does. While it did seem Clinton would have grabbed an insurmountable lead in the wake of Trump's post-"grab 'em by the pussy" debate flame-out, the real issues affecting undecided voters the most weren't Trump's sexism or Clinton's private email server, but far more common worries: the economy, crime, and a distrust for anything considered to be part of the government establishment. Clinton does list something in her "blame Comey" speech that should have been obvious all along -- something that pretty much undercuts her narrative that the FBI director cost her the election. “Just as we were back up on the upward trajectory, the second letter from Comey essentially doing what we knew it would — saying there was no there there — was a real motivator for Trump’s voters,” Clinton said. No matter what Comey said -- nor what was found during the Email Investigation 1.5 -- would have changed the minds of entrenched voters. Those supporting Clinton saw more exoneration. Those supporting Trump saw more evidence of a rigged system. It just didn't matter. As for the rest of the undecided nation, the original email investigation and its last-minute sequel were too far off in the weeds to be considered worth examining more closely. Writing for Techdirt and conversing with like-minded individuals tends to give the impression that everyone follows these developments closely, but a majority of Americans simply don't care about the wonkish details. If something can be explained simply (Hillary is/is not a crook), then the nuances aren't important. Clinton thought those nuances should have mattered. Trump knew they wouldn't. Blaming Comey is handy but does nothing to help future candidates better prepare for this fractured American landscape we still call "united." It is, in fact, its own form of denial. The Democrat focused on the outside events she said affected her campaign in the last three weeks of the election. She said nothing about other, larger forces at work — Trump's message of change in a restive time, his pledge to represent the aggrieved working class, the difficulty of any political party winning a third consecutive presidential term, her own limited attention to economic anxiety, or the sexism and discomfort that surrounded her attempt to become the first female president. [...] Neither [Clinton communications director Jennifer Palmieri] nor Clinton herself addressed how Clinton's decision seven years ago to use a private system for her government communication had opened the door to the FBI inquiry in the midst of her second run for the White House. While government agencies sounded the alarm about hackers attacking voter data and infrastructure, Trump pushed a rigged election narrative. And for no apparent reason, the FBI felt it just couldn't wait to inform Congress about something it knew next to nothing about, less than two weeks before election day. There were plenty of reasons for voters to feel less than confident about candidates and the process of electing them, but campaigns were won and lost without the FBI's assistance -- no matter how gratifying it might be to pass the buck in the wake of a surprising loss. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Despite turning LabMD into a stone -- based on some suspect data breach allegations by a data protection company engaged in shady sales tactics -- the FTC is still seeking to extract as much blood as possible. Thanks to the FTC's ongoing efforts against LabMD, the company has been closed, has less than $5000 to its name, and is fighting back against the commission with pro bono help. The FTC wants to punish LabMD for a patient file that ended up file sharing services thanks to an employee's use of Limewire at work. (The file was in folder that end up being "shared" by default Limewire settings [My Documents].) Tiversa, a company that prowled file sharing services for sensitive documents in hopes of leveraging these into data security contracts, took this info to the FTC when LabMD refused to purchase its offerings. Since that point, the FTC has bankrupted LabMD by forcing it to defend itself against a supposed breach that never resulted in the misuse of patient data. Tiversa has seen its own fortunes diminish, culminating in an FBI raid of its offices in March of this year. The FTC overturned an Administrative Law Judge's (ALJ) decision in July, giving itself permission to restore its charges against LabMD for the breach -- ones the ALJ had dismissed. The FTC claims LabMD "left" the mistakenly-shared file out somewhere in the internet, as if the company actually had any way to "retrieve" it once it had been uploaded. Seemingly unconcerned that LabMD is now a defunct company, the FTC still wants it to implement a series of expensive steps to ensure the data it won't be collecting in the future is better protected. Having found that LabMD violated the FTC Act, the Commission’s Final Order will ensure that LabMD reasonably protects the security and confidentiality of the personal consumer information in its possession by requiring LabMD to establish a comprehensive information security program. It also requires LabMD to obtain periodic independent, third-party assessments regarding the implementation of the information security program, and to notify those consumers whose personal information was exposed on the P2P network about the unauthorized disclosure of their personal information and about how they can protect themselves from identity theft or related harms. LabMD has asked for a stay of this injunction pending its appeal. That stay has been granted by the Eleventh Circuit Appeals Court. (via the Office of Inadequate Security) The appeals court points out [PDF] several things about the stay the FTC is contesting, not the least of which is the company's inability to actually follow the injunction if granted, much less have any reason to do so, given its current situation. The costs of complying with the FTC’s Order would cause LabMD irreparable harm in light of its current financial situation. [...] The costs associated with these measures are hotly debated by the parties. LabMD says the costs will exceed $250,000. The FTC does not offer its own estimate, but disputes the $250,000 figure. Regardless, it is clear that the postage for the notice requirements alone would be more than $4,000. Certainly the costs of all the other measures would add to that amount. LabMD is no longer an operational business. It has no personnel and no revenue. It now has less than $5,000 cash on hand. It reported a loss of $310,243 last fiscal year, and has a pending $1 million judgment against it on account of its early termination of its lease. LabMD cannot even afford legal representation, and is relying on pro bono services for this appeal. Given the company's financial ruin, the injunction would serve no possible deterrent purpose. There's nothing left to destroy and, unfortunately, nothing to be gained by LabMD, even if it ultimately prevails. Ordinary compliance costs are typically insufficient to render harm irreparable. But given LabMD’s bleak outlook, the costs of compliance pending appeal would constitute an irreparable harm. This is especially so because if LabMD is ultimately successful on appeal, the costs would not be recoverable in light of the FTC’s sovereign immunity. Furthermore, the court feels there's absolutely no risk to the further exposure of patients' data, even with the file still supposedly in the wild. The company has its own copy, residing on a computer that is never connected to the internet. If a customer requests data, LabMD hooks it up to printer and mails or faxes them a hard copy. As for the FTC's claim that a file that has been in the wild since 2005 would result in future breaches of patient confidentiality, the court is rather skeptical. For those patients whose personal information was in the 1718 file, there is no evidence of a current risk to them. Specifically, there is no evidence that any consumer ever for nefarious purposes before this appeal terminates. suffered any tangible harm, or that anyone other than Tiversa, LabMD, or the FTC has seen the 1718 file. Although the FTC’s Order denying LabMD’s stay application says there remains a potential risk of harm to consumers whose information was in this file, we think it improbable that a party downloaded this information now years ago, has not used it for several years, but may yet use it for nefarious reasons before this appeal terminates. Finally, the court has a few choice words for the FTC's dictionary attack -- used to shore up its weak claims of future harm from the escaped file. [I]t is not clear that the FTC reasonably interpreted “likely to cause” as that term is used in § 45(n). The FTC held that “likely to cause” does not mean “probable.” Instead, it interpreted “likely to cause” to mean “significant risk,” explaining that “a practice may be unfair if the magnitude of the potential injury is large, even if likelihood of the injury occurring is low.” The FTC looked to different dictionaries and found different definitions of “likely.” It is through this approach that it argues its construction is correct, considering the statute’s context as a whole. Even respecting this process, our reading of the same dictionaries leads us to a different result. The FTC looked to dictionary definitions that say “likely” means “probable” or “reasonably expected.”Reliance on these dictionaries can reasonably allow the FTC to reject the meaning of “likely” advocated by LabMD, that is, a “high probability of occurring.” However, we read both “probable” and “reasonably expected,” to require a higher threshold than that set by the FTC. In other words, we do not read the word “likely” to include something that has a low likelihood. We do not believe an interpretation that does this is reasonable. The sick thing is that even if LabMD ultimately prevails, it won't matter. It cannot recover any of its expenses and the company has been gutted by its fight against the FTC. That the whole situation appears to have stemmed from a data protection company's shady sales pitch is even worse. Tiversa not only was uncooperative during the FTC's investigation of LabMD, but it has also drawn the attention of the House Oversight Committee, which was unimpressed by the Tiversa's tactics both before and after the FTC's investigation of LabMD. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
This week, after a congressman and former Trump advisor raised the spectre of pulling FCC licenses over media bias and noted that only 32% of people trust the media and only 37% think it was balanced in its handling of the election, That One Guy won most insightful comment of the week by drawing a comparison to another important public opinion figure: The same group that he's getting his 32% number from also puts public approval of congress at a whopping 18%, suggesting that even if the public was on board with censoring unpopular news groups they likely wouldn't want or trust congress to be the ones deciding who gets silenced. Maybe he's just annoyed that more people trust the news than trust him, and are more than twice as likely to say that the media is doing a good job as say that congress is? Meanwhile, when the actual creators of email expressed their displeasure at Shiva Ayyadurai getting money for his bogus claim, one commenter drew an odd comparison to claims that Al Gore created the internet, and Ehud Gavron won second place for insightful by underlining the huge difference: The Al Gore thing is the exact opposite of this topic. He never said he invented the Internet. "Conservative" pundits looking to make fun of him made that up. What he said is he was on the committee that approved DARPA funding that led to research on interconnected networks and eventually the Internet. So HERE we have a guy who DID NOT invent email saying he did. In the Gore case we have a guy who DIDN'T invent something NOT saying he invented it, but the Republican Party talking points, ever a bastion of twisting anything just so we can get back to 1972 says he says he did. E For editor's choice on the insightful side, we start out with an anonymous response to defenders of mass surveillance freaking out about who now holds the keys: I have been saying for a long time now that all parties should fear surveilance. Eventually a party will have the power to shut down opposition with these powers and data on everyone. Now people are starting to understand. I guess they thought "their guy" would be the one in power when it happened. Doesn't say much for that person that they thought "their guy" abusing power would be ok. Next, we've got a response from David to the common claim that Trump is a positive for at least representing "real change", summing up exactly how many of us feel about that sentiment: Well, I agree with needing real change. Problem just is that a real change for the worse is not helping. Over on the funny side, for first place we return to the post about Shiva Ayyadurai, where Roger Strong mused about the earliest applications of his tool: Once he got his email program running, his first emails were legal threats to the writers of RFCs 524, 561, 680 and 724 and 733. In second place, we've got some satire from Mr Big Content on the notion that an ex-member of the band Boston could be blocked by trademark from saying that's what he is: If Facts Cannot Be Owned, Where Would The Incentive Come From To Create More Of Them? We all know teh World is running out of resources. Thats a fact, and facts are resources, too. Therefore, were running out of facts as well! And thats another fact. So you see, their are only so many facts. We need a robust, thriving fact-creation industry!! Our new President Trump will only be able to do so much by himself. Thats why we must have stronger laws to encourage teh ownership of more facts. And thats why rigged kangaroo-court cases like these must be REJECTED BY ALL LAW-ABIDING CITIZENS!!! For editor's choice, we start out with some edits from Jeremy Lyman to the government's cyberwar-with-Russia "strategy": Here, let me cyber- that for you. These cyber-leaks are directly cyber-responsible for cyber-loss of cyber-American cyber-lives and cyber-endangers cyber-field operatives' cyber-safety and that of their cyber-families at cyber-home. We need to cyber-find and cyber-jail these cyber-leakers as cyber-quickly as cyber-possible since that cyber-will cyber-obviously cyber-undo cyber-any cyber-harm cyber-that cyber-has cyber-occurred. And finally, after a spat between ESPN and Nielsen over subscriber numbers continued with ESPN looking to be in pretty rough shape, TechDescartes wondered how it could possibly come as a surprise: You would think that the ESP Network would have seen this one coming. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Five Years Ago One topic naturally dominates this week's look at 2011, and will for several weeks to come: SOPA. The industry's plan was becoming clear: pretend the bill doesn't say what it says and offer up nonsensical interpretations. Pay no attention to the studies showing it will harm investment and innovation, the fact that it will not solve infringement, the loud voice of Rep. Darrel Issa opposing the voice, the huge censorship concerns summarized in Time magazine, or the opposition of the American Library Association. The House of Representatives certainly seemed to have no problem ignoring all these concerns either. No effort was made to resolve the convoluted language in the bill, and we pointed out that it also massively expands the copyright industries' diplomatic corp. Soon, the internet began planning the first of many protests. Ten Years Ago This week in 2006, Australia was facing its own copyright reform, but began to smarten up as Google explained how it would kill the internet and the government actually looked into (and debunked) the industry's absurd claims of losses. Meanwhile, much like today, people in the US were discussing what the recent election would mean for various policy issues — in this case, the Democratic takeover of the House in 2006. It actually offered some encouragement, but lots of questions, for areas like copyright policy and telecom policy and net neutrality. Fifteen Years Ago This week in 2001, the world was still reeling from September 11th while also preparing for the holiday seasons. These things intersected in the occasional prediction that fear of going to malls would drive shoppers online — but evidence didn't back this up, and besides, there were a lot of other factors in what the e-holidays would bring. As for physical retailers selling high-tech equipment, they were facing their own crisis. Meanwhile, Microsoft was under the anti-competitive microscope and negotiating with the DOJ, while the Hewlett-Packard/Compaq merger met with disapproval from both the Hewlett family and the Packard family. One-Hundred Years Ago This week we can note an interesting centennial in the history of technology and politics. On November 7th, 1916, an experimental New York radio station broadcast the U.S. election results in audio for the very first time (they had previously only been broadcast in morse code). Amusingly, this first ever broadcast also called the election wrong, declaring Charles Evan Hughes the winner before signing off at 11 PM, only to find out the next day Woodrow Wilson had actually won. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
It would be sort of fun to watch the more authoritarian governments of the world attempt to combat internet memes with censorship if it weren't both so damaging to the free speech ideals I hold so dear and if recent, ahem, events weren't making these stories hit a little closer to home than they would have but a few months ago. Countries like Russia and Indonesia have both taken steps to attempt to make illegal the time-honored tradition of putting up a famous person's picture and then typing words across it. Despite both governments' insisting that these legislative attempts are all to do with protecting people's honor and/or quelling false information about the subjects of these memes, the truth is that the aims behind them are more to do with clamping down on dissident speech and protecting those in power from criticism. That, indeed, is why these laws tend to be worded so vaguely. Vague enough, in fact, that it's quite clear that they can be used to criminalize pretty much any speech that the ruling government doesn't like. And joining in on this fascist fun now is Spain, which is attempting to criminalize memes in the vaguest manner possible. The scheme was put before Congress and would see restrictions placed on “spreading images that infringe the honour of a person,” referencing a 1992 law that is now outdated due to the emergence of the internet. PP politicians want the new ruling added to the unpopular Citizen Security Law, which was introduced in 2015 and places curbs on public protests, social media commentaries and disrespecting the police. It has been referred to as “the gag law” by critics. Let's just drive that point home: the Spanish government is considering an addition to a wildly unpopular law designed to keep people from voicing their displeasure at the government that would further criminalize people voicing their displeasure at the government. This isn't so much the ruling Spanish party putting its fingers in its own ears and shouting "La la la, we can't hear you", as it is putting the barrel of a gun in its detractors' mouths and shouting the same thing. It's a terrible idea for remaining in power, which is why I assume there are no ostriches running federal governments. To drive that point home, it seems the PM Rajoy found himself quickly the subject of many memes as a result of banning memes. Rajoy quiere que no haya más imágenes como esta, coartar nuestra libertad de expresión. #SinMemesNoHayDemocracia pic.twitter.com/3kQZlOGheu — cagonros (@cagonros_) November 8, 2016 And... Ahora el PP quiere prohibir los memes y considerarlos delito. Rajoy, te pasas #SinMemesNoHayDemocracia pic.twitter.com/OSxvIJQ5Gb — Código Nuevo (@CodigoNuevo) November 8, 2016 Seniorita Streisand, at the government's service, it seems. The good news in the case of Spanish meme-makers is that there is some confidence that this law won't be passed due to the ironically slim support the Popular Party has in the government. They may not find it so easy, however, since they hold only 137 of the 350 available parliamentary seats after the PP finally received approval for a second term thanks to support from liberal party Cuidadanos, leaving Rajoy with the weakest mandate in Spain's recent political history. Free the meme, Spain. Free the meme. Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
As was expected, IMDb is suing the state of California over its new "ageism" law. The law has its genesis in actress Junie Hoang's lawsuit against the website, in which she claimed that the site's publication of her actual age caused her to be passed over by producers looking for younger women. The law, which becomes effective January 1, applies to database sites that allow paid subscribers to post resumes, headshots or other information for prospective employers. Only a paying subscriber can make a removal or non-publication request. Although the legislation may be most critical for actors, it applies to all entertainment job categories. Although the law will (theoretically) apply to other database sites, it's really just a continuation of actress Junie Hoang's failed legal battle against IMDb. The narrowly-written law only applies to sites with paying subscribers, but it does allow those subscribers to alter facts or remove them completely. As such, it's still a potential First Amendment issue. This is why IMDb is seeking to have the law ruled unconstitutional. "IMDb shares the worthy goal of preventing age discrimination," writes attorney John C. Hueston in the complaint. "But AB 1687 is an unconstitutional law that does not advance, much less achieve, that goal. To the contrary, rather than passing laws designed to address the root problem of age discrimination, the State of California has chosen to chill free speech and undermine public access to factual information." Even though the law supposedly affects other sites, it's pretty obvious the real target of the legislation is the website now suing the state. From the complaint [PDF]: IMDb strongly opposes discrimination in all forms, including age discrimination in casting. But prejudice and bias, not truthful information, are the root causes of discrimination. This law unfairly targets IMDb.com (which appears to be the only public site impacted by the law) and forces IMDb to suppress factual information from public view. Moreover, the factual information being suppressed from IMDb is available from many other sources, not least including Wikipedia, Google, Microsoft (Bing), and Apple (Siri). As such, AB 1687 sets a dangerous and unconstitutional precedent for other general purpose websites and news sources, and should be deeply troubling to all who care about free speech. It's California's "right to be forgotten as being as old as you actually are" statute. And it doesn't even address the actual problem. Making it illegal to post factual information is a terrible idea and one that will ultimately affect the ways facts are handled by data aggregators subject to this law. But like Hoang's lawsuit, the law makes no attempt to target those actually engaging in the alleged ageism: movie and television studios. Instead, it targets those who gather information about actors and actresses, as if vanishing away simple facts will change the discriminatory hiring practices engaged in by some of California's largest companies. Adding further problems is the law's attempt to regulate a website that isn't even located in the state. Notably, AB 1687 contains no territorial limitations at all. It purports to impose financial penalties on IMDb, a Delaware corporation with its offices in Seattle, if it refuses to censor itself when, for example, a California actor requests the removal of his age from IMDb.com after it is added by an IMDb.com user in Germany. Making things even more stupid is the Screen Actors Guild's heavy lobbying for the IMDb-targeting law. A union with the combined power of thousands of actors should be able to take on the studios directly, rather than cozying up to lawmakers to carve out First Amendment protections for their dates of birth. That suggests one of two things: the SAG finds legislators easier to push around, or the SAG doesn't want to bite the hand that feeds it roles. Either way, targeting IMDb does nothing to further the Guild's supposed battle against ageism. Permalink | Comments | Email This Story

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