posted 18 days ago on techdirt
Normally, reading a report on an earnings forecast by a video game company is no more interesting than it would be if the company made, say, toilet bowl brushes. But every so often, you can catch a glimpse of where a company thinks the gaming industry is going and how gaming might evolve next. One such report on Activision's earnings has some interesting tidbits to go along with the company's acknowledgement of the known trends in digital distribution. The report starts off with Activision reporting that its overall sales strategy is focused on shifting as much effort to digital/internet sales as possible. This is no surprise of course, as the trend for gaming to shift away from shiny discs and towards downloads has been in place for a while now. Still, hearing Activision report that three-fourths of its revenue now comes from sales over the internet is jarring. But the really interesting stuff comes when Activision talks about how the internet has made it possible for a gaming company to go beyond making "games" and instead creating living, evolving game worlds for players to immerse themselves in. Activision also said two of its newest games -- the space-age shooting game Destiny, and the digital card game Hearthstone: Heroes of Warcraft -- have accumulated more than 50 million registered users and are now responsible for more than $1 billion sales. Hearthstone, for tablets and smartphones, is offered for free to download, and makes its money by charging for upgrades and additional items over time. Destiny is also designed to get players spending money over the next ten years of its development by offering additional storylines and other items. Activision says Destiny's player base clocks around 3 hours of playtime a day. The 11-year old World of Warcraft game is one of Activision's best known and longest-running active games. That has helped executives see the value in creating titles of all types that operate less as products burned onto physical discs and played over a short time to living titles, regularly expanded and updated over time. So far, it's paying off. Activision said a record 76 percent, or $538 million, of its total revenue came from sales over the Internet of full-game downloads and in-game adds-ons. MMOs are not new. As the quote above notes, WoW is over a decade old. That said, gamemakers might have waited until recently to decide that evolving, online gaming worlds are going to be the new norm in gaming. The way Activision is talking about this sounds like the idea of making "games" is going to take a backseat to making evolving, always-running, decades-spanning game worlds in which the sales strategy will be an ongoing participation by gamers, rather than simply having them plunk down $40 at a retailer to take their shiny disk home and pop it into a console. Activision isn't alone in this line of thinking. This shift, though more dramatic with Activision, follows an industry trend with other large game makers, like Electronic Arts and Take-Two Interactive, which have both seen consistent boosts to sales over the Internet in recent quarters. These companies are beginning to see success in the games industry as less a matter of selling the most units and more a question of how to get gamers to play a single game for longer -- and spending real money in the virtual worlds as well. Ten years ago, the method for measuring the play time in gaming was measured in hours. Ten hours was a short game, twenty was about average, and a forty-hour game was massive. Now game developers are looking to measure game time in years, not hours. It's a massive shift in business models. This isn't to say that the more traditional "game" is immediately going away, of course. Activision is still going to pump out Call of Duty games, and is even reportedly looking to revive the Guitar Hero brand. But this sort of reminds me of how it felt at the start of the adventure game decline fifteen or so years back. They didn't die off immediately, or at all, really. Instead, the industry just slowly stopped making as many of them, bit by bit, until the point-and-click adventure game became the niche market it is today. Will old-fashioned "games" follow the same trajectory? The money trend seems to indicate it might. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Hangovers are pretty common for alcohol drinkers, but oddly, medical science doesn't really have an exact cause for the phenomenon. Sure, there's a bit of dehydration and trace amounts of toxic compounds from some alcoholic spirits, but brain inflammation from high alcohol levels seems to be just something that happens (pending further study). There have been some studies on hangovers, but no reliable cure just yet. If you want to try a few things that might work, check out some of the links below. The Hangover Club offers a service to deliver you a certified registered nurse and a drip bag that goes right into your bloodstream -- that's not at all guaranteed to cure a hangover or act as any kind of treatment for a disease. However, if you're otherwise healthy, it won't hurt (too much), and there could be some placebo effects mixed with some actual pain/nausea medications to relieve hangover symptoms. [url] A "drunken headache cure" written on sheets of papyrus in Greek has been translated. The treatment involves wearing a kind of wreath around your neck made up of twigs from a particular shrub. Yup. That's probably 100% effective for a hangover. [url] Try preventing a hangover by just not drinking as much, and drinking more slowly and eating some food with your drinks. Duh. One drink per hour. And liquor before beer? Nope. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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We recently wrote about some dangerous terms of service from a big prison messaging service, JPay, in which the company claimed to flat out own any content that anyone sent through its service. While the company itself did not appear to be doing stupid things to enforce this, this clause did allow prison guards to put one prisoner in solitary confinement after his sister posted a video he had sent via JPay to social media. The prison claimed it was doing so to protect JPay's intellectual property. The company has now told Dave Maass at EFF that it has dropped this clause from its terms of service: It has recently come to our attention that there is language in our Terms of Service that impacts our customers and their families. The language states that JPay owns all content transmitted through our Email, VideoGram and Video Visitation services. Our intention was never to take ownership and profit in any way from our customers’ content. That is not and has never been JPay’s business and we have removed this language from our Terms of Service. From its inception, JPay has pledged to make our customers our top priority and we will continually strive to meet this pledge as best and as quickly as we can. Maass is suggesting that they take it a step further and ask prison officials not to punish inmates who use their system, claiming that it's to protect JPay's intellectual property.Permalink | Comments | Email This Story

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For many years now, we've been talking about the problematic practice of "pay for delay" in the pharma industry. This involved patent holders paying generic pharmaceutical makers some amount of money to not enter the market in order to keep their own monopoly even longer. There's a complex process behind all of this, which often involves the larger pharmaceutical company first suing a generic maker, and then "settling" by agreeing to pay a sum of money to the generic maker. But, part of the "settlement" is that the generic drugmaker stays out of the market for longer than they otherwise would have needed to do so. Not surprisingly, the rise of such pay for delay, or "reverse payment" deals, came as a result of the Hatch-Waxman Act from 1984, which was supposed to encourage generic drugs to enter the market. But, because Congress does a really crappy job understanding game theory, those behind the bill failed to realize they were actually setting up incentives for the reverse (we'll get to how and why in a moment). Either way, there have been a number of anti-trust lawsuits filed over these practices and finally, in 2013, in a case against Actavis, the Supreme Court ruled that these kinds of deals may violate antitrust laws, and the FTC had every right to use antitrust law against drugmakers. Late last year, the FTC finally put those powers to use (meanwhile, over in Europe, regulators have been going after the same practice). And yet, even with the Supreme Court weighing in, all is not yet settled. Here in California, there was a separate case, revolving around pharma giant Bayer and the making of its super popular drug Cipro. There were a few different issues raised in this case, focusing mainly on whether California's state antitrust law could also be used against these deals (rather than just federal antitrust law) and also what "test" had to be used to determine if these deals violated the law (and, as part of that, whether you could presume that any such pay for delay deal must violate antitrust law). The ruling itself [pdf] is a bit dense, but says that, yes, California's antitrust law does apply, and Bayer's efforts may violate antitrust law. But, in the process, it does a pretty good job laying out just how ridiculous the Hatch-Waxman Act was in terms of the incentives it actually set up, compared to the stated purpose of the bill: The Hatch-Waxman Act illustrates the law of unintended consequences. Congress wrote into the act a substantial incentive for generics to enter markets earlier by offering a 180-day exclusivity period to the first generic filer, and only that filer, to challenge a patent.... The theory was that a generic would be more likely to challenge dubious patents if offered the carrot of an enormously valuable six-month period in which only it and the brand could produce a drug.... Otherwise, ―free rider‖ problems might arise: every generic would have an incentive to hold back and let some other generic be the one to shoulder the risk and litigation costs associated with challenging a patent. In other words, somewhat incredibly, Hatch and Waxman basically decided the best way to encourage more non-monopoly-covered drugs on the market was... to grant them more monopolies. Ugh. What is it with politicians falsely assuming that everyone needs a government granted monopoly to do anything? And, as with most government-granted monopolies, things don't quite go according to plan: This solution may well have encouraged more generics to file patent challenges, but not without creating a series of new problems. In other settings, a patentee might have little incentive to buy off a challenger in order to preserve its monopoly and continue reaping monopoly profits, for the simple reason that paying off the first challenger would simply encourage another challenger, and then another, and then another.... Two features of the Hatch-Waxman Act change this dynamic. First, the 180-day exclusivity period created a bottleneck; no one else could receive FDA approval until after its expiration.... Second, other generics tempted to challenge a patent in the wake of a settlement with the first-filing generic would have to wait out an automatic 30-month stay the brand could obtain just by opposing their requests for FDA approval.... This legal regime means that, regardless of the degree of likely validity of a patent, the brand and first-filing generic have an incentive to effectively establish a cartel through a reverse payment settlement.... In other words, since Hatch-Waxman gives one generic company its own monopoly, the incentives are for the patent holder to figure out a way to pay off that company to not actually make use of that monopoly, thus allowing the original pharma company to keep its monopoly even longer. Hey, how about we don't deal with the problems of government granted monopolies by piling more government granted monopolies on top of them? Just a thought... And, because of all of these issues, it also can be used to block challenge to the validity of a pharma patent: Rather than expend litigation costs on either side, the brand and generic can reach a settlement that reflects the likely validity or invalidity of the patent (stronger patent, smaller settlement; weaker patent, bigger settlement), grants the generic a share of monopoly profits, and leaves the brand the sole manufacturer of the product. It is likely for this reason that reverse payment settlements, practically unheard of before the Hatch-Waxman Act, have proliferated in the years since its enactment.... This is probably not what Congress intended. You think? Either way, that question on the validity of the patent comes into play in the analysis of how antitrust law applies. After all, patents are technically an exception to antitrust law, since they're a government sanctioned monopoly. But what about an invalid patent? Courts thus must reconcile the two bodies of law, making ―an adjustment between the lawful restraint on trade of the patent monopoly and the illegal restraint prohibited broadly by‖ antitrust law.... At the extremes, this is easy. If a patent were known to be invalid, a private agreement nevertheless giving it effect would be plainly illegal.... Conversely, if a patent were known to be valid, an agreement foreclosing competition no more than the statutory monopoly would not restrain trade beyond what federal law permitted, and the rights patent law affords the patentee would supersede any state law prohibition. Difficulties emerge when we move from a hypothetical patent known to be determinately valid or invalid to the real world, where validity may be unclear. When assessing the antitrust implications of an agreement arising from a patent, the truth about the patent‘s validity cannot always be known. The issue is how antitrust and patent law should accommodate each other under these conditions of uncertainty. The ruling notes the importance of being able to regularly test the validity of patents to make sure bad patents don't stay in place, robbing the public domain (as well as the public of such benefits). Thankfully, the court recognizes that giving a government granted monopoly has tremendous costs, so they shouldn't just be given out willy-nilly: Patents carry with them a frequent cost—monopoly premiums the public must bear.... The willingness to pay that cost depends upon a quid pro quo: ― " 'the public interest in granting patent monopolies‘ exists only to the extent that 'the public is given a novel and useful invention‘ in 'consideration for its grant.‘ " ... Accordingly, patent policy does not support unquestioned protection of every inventor‘s rights, but instead favors ―eliminating unwarranted patent grants so the public will not 'continually be required to pay tribute to would-be monopolists without need or justification.' " ... Vigorous testing for validity is thus desirable in order to weed out patents that shield a monopoly without offering corresponding public benefits. And, in the end, the California Supreme Court notes that while it need not follow the lead of the federal Supreme Court in determining if patent law pre-empted antitrust law, the reasoning makes sense. As for which "test" to apply to see whether there is antitrust here, the Court notes that rather than hard-and-fast rules and buckets, the distinctions may be a bit more fuzzy than some assume. So rather than choosing one of the three big "rules" -- "rule of reason," "per se" or "quick look" -- the Court notes that there's more of a "sliding scale." Instead, it looks at the overall situation to determine if these practices violated antitrust law. The overall analysis is long and detailed, but the court recognizes that what's going on here and how these efforts can certainly harm the public, creating an "anticompetitive effect." It lays out a basic process for determining whether or not these agreements are anticompetitive, but rejects the idea that all such pay to delay deals must be anticompetitive (which would have been a nicer standard). Either way, this ruling certainly will make life more difficult for pharmaceutical companies looking to do pay to delay deals, meaning that it's good for the public and their health.Permalink | Comments | Email This Story

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Protecting your personal information can seem like a daunting task. Who can you trust online or in the real world? One way to keep your information safe could be to use Blur Premium Privacy Protection which is on sale at 74% off of a lifetime subscription. Blur allows you to create temporary, masked email addresses, credit card numbers, and phone numbers -- so you can reveal your information only to those you truly trust. The lifetime subscription also includes a password manager you can use on mobile and desktop devices. They use AES-256 encryption and host-proof hosting for the encryption keys. Blur is compatible across a broad range of browsers, Android and iOS devices and Windows and Mac computers. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Ellen Seidler -- anti-piracy activist and tilter at windmills -- continues down the road to irrelevance with her latest post at Vox Indie. Seidler's film And Then Came Lola debuted in 2010. As of 2015, this remains Seidler's sole foray into motion pictures. Over the past half-decade, she's filled her time with futile anti-piracy efforts and endless documentation of those futile efforts. Rather than dial back her anti-piracy efforts and put that time and energy towards something more positive, she's decided to explore the limits of her credibility. Her latest post deals with her (presumably futile) effort to take down a takedown notice posted to Chilling Effects. Earlier this week I sent Chilling Effects a DMCA takedown notice, requesting that the site remove links that lead directly to a pirated stream of our film, And Then Came Lola. How did the pirate link make its way to Chilling Effects? Well, it’s not a new tale. In fact, I’ve repeatedly written about the fact that pirate links reported (and removed) by Google search are routinely reposted on Chilling Effects. Google even goes so far as to provide a direct link to the reposted content so as not to inconvenience its users. As she notes (and documents), it only takes users a matter of seconds to uncover the link Google removed from its search results and head directly to it to avail themselves of free copies of Seidler's film. (It should be noted that the DMCA notice she's trying to remove links back to Wolfe Video -- home of Kathy Wolfe, who spends "half her profits" on anti-piracy efforts while offering no evidence that this produces any return on investment.) So, her solution is to issue a takedown notice to Chilling Effects to have the DMCA notice itself removed from the clearinghouse database. I've reached out to Chilling Effects to see if it can provide me a copy of this takedown notice as I'd really like to see the rationale deployed to justify the removal of posted takedown notice. Unsurprisingly, she had trouble locating where she should send this bogus takedown notice. Prior to sending my DMCA notice to the good people at Chilling Effects, I attempted to search for its DMCA agent and an email to use. I couldn’t find one so resorted to sending my notice to the only email listed on the site [email protected] which I found on the “about” page. Seems to me if you are in the business of sharing links to various sites reported for piracy, in order to comply the actual law, Chilling Effects should list a DMCA agent. It should also publish its removal process policy. It would seem obvious that Chilling Effects wouldn't need a DMCA notice because it does nothing more than archive takedown notices voluntarily forwarded to it by other sites. Takedown notices have already been complied with before they hit Chilling Effects. In essence, her takedown notice would be analogous to someone issuing a takedown notice to have a legal document removed from a third-party host, despite the fact that the document is actually a matter of public record. While she admits Chilling Effects can also be a useful research tool, she's more concerned about its secondhand "posting" of infringing links to her content. But that's just it. It can't be useful for research by not posting the notices it receives. And it's a very valuable tool for documenting DMCA abuse which, while far from the majority of takedowns issued, is still prevalent enough it needs to be watched. Simply allowing takedown notices to vanish into the ether after they've been complied with (or rejected) would lead to an increase in abuse. People looking to silence critics or whitewash the internet would be far more prone to do so if they knew their takedown notices wouldn't be archived at publicly-accessible sites. Seidler stresses how easy it is to go from point A (search results) to point B (Chilling Effects) in order to achieve objective C (infringing content) but rather than see this as the way the web is supposed to work, she sees a conspiracy aimed at uniting pirates with pirated goods in an overarching scheme to stick it to copyright holders. Permalink | Comments | Email This Story

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There are plenty of proponents of the First and Second Amendments, both of which tend to be very divisive at times. There's enough overlap that many fully support both, but there's also enough dissension that many use the First to argue for the dismantling of the Second. This is often countered by assertions that without the Second there would be no First, because when it all comes down to it, nothing beats back encroaching governments faster than armed revolutions. Thanks to the advent of 3D printing, we've reached a nexus point. The law says you may own (certain types of) guns. The law also prevents the distribution of guns to other countries we're currently not getting along with. Being able to print weapons makes a mockery of these restrictions. We're no longer talking about crates of guns being smuggled aboard freighters or low-flying Cessnas. Now we're dealing with the reality that anyone, anywhere in the world, can download and manufacture a gun. Cody Wilson, of gun manufacturing advocacy group Defense Distributed, is that nexus. Shortly after Wilson debuted his fully-functioning 3D printed gun, he received a cease and desist from the State Department, ordering him to stop distributing his blueprint. That worked about as well as you can imagine. Wilson's gun manufacturing advocacy group Defense Distributed, along with the gun rights group the Second Amendment Foundation, on Wednesday filed a lawsuit against the State Department and several of its officials, including Secretary of State John Kerry. In their complaint, they claim that a State Department agency called the Directorate of Defense Trade Controls (DDTC) violated their first amendment right to free speech by telling Defense Distributed that it couldn't publish a 3-D printable file for its one-shot plastic pistol known as the Liberator, along with a collection of other printable gun parts, on its website. Because a blueprint isn't a fully-formed gun -- at least not until the end user completes the process -- Wilson is arguing that his design is nothing more than free speech. If so, then the State Department's orders violate Wilson's First Amendment rights. By declaring the publishing of a blueprint on the internet to be indistinguishable from exporting weapons, the government is engaging in prior restraint, according to arguments made in his lawsuit. As Andy Greenberg at Wired points out, the government has used the International Traffic in Arms Regulation (ITAR) to regulate not-actually-guns before. ITAR already has a long history of being used to threaten Americans who publish controversial code. In the 1990s, the same regulations were used to threaten cryptographers with prosecution for posting online the first freely available strong encryption tools. Under ITAR regulations, a piece of uncrackable crypto software like PGP was considered a military munition. PGP inventor Phil Zimmermann was even investigated by the Department of Justice for three years at the height of what has come to be known as the Crypto Wars. This, too, was challenged on First Amendment grounds, but that particular angle was left without closure. The government simply shifted regulation of computer code to the Commerce Department and carved out an exception for encryption. Good news for those producing encryption tools, but of very limited use to Wilson. In fact, this argument may end up doing more damage than good, if the government chooses to play regulatory roulette in order to avoid having the First Amendment question answered with a legal opinion that may not be in its favor. Chances are that a favorable exception won't be in the offing -- replaced instead with a newfound desire to regulate internet traffic and/or place more burdens on intermediaries to police web traffic involving weapon blueprints. The chance of additional regulatory restrictions on the sale and use of 3D printers is even better. Already, private companies are taking proactive -- but stupid and futile -- moves to keep themselves distanced from something the government clearly thinks is an illegal act. Beyond regulation of the components, there's the potential for both free speech and gun ownership to be worse off by the end of this. But, as noted above, it's not just the First Amendment being brought into play here. Wilson has more constitutional challenges. Its complaint also cites the second amendment, arguing that by restricting Defense Distributed’s sharing of printable gun files the government denied the group’s members and followers the right to bear—and acquire—arms. And it questions the authority of the State Department to regulate the publication of technical data, a power it’s long assumed it had been granted by Congress under the Arms Export Control Act of 1976. Defense Distributed is hitting the State Department with a fifth amendment argument, too. It claims that its staff had their right to “due process” violated. No government agency, it says, can hold the threat of prosecution over Defense Distributed’s head without even a decision on whether its publications are illegal or not—and without a time limit on when it must make that decision. If you're begging for more gun regulation, this seems to be a good way of working backwards towards it. I'm sure that's the last thing Wilson wants, but the issues raised here are simply too enticing for the government to ignore. Its expressed concern relates to "exported" weapons, but there are implications right here at home. People may decide to print their own guns rather than abide by their state's respective restrictions. Felons who are forbidden to purchase guns may decide to invest in 3D printers. But, despite the introduction of new technology, this really isn't markedly different from the way the gun "market" has worked for years. Straw buyers purchase weapons for those who can't, and criminals are largely unconcerned with many laws, not just the gun-related ones, making any gun restrictions essentially meaningless. But the government is apt to view this as a bold new era of unregulated gun manufacturing and will act swiftly and ridiculously to tame the Wild West of weapon printing. No doubt legislators and regulators will have visions of terrorists and foreign enemies operating 3D printing mills to mass produce weapons, as if the old way of buying black market weapons was somehow more impractical than gathering the equipment and expertise needed to safely generate dozens of weapons that actually work. There's actually an upshot to global distribution of gun blueprints and 3D printing technology. For people under oppressive regimes, the addition of self-contained, secret gun manufacturing could allow for uprisings and revolutions or simply act as a deterrent for additional ruling class power grabs. But underneath all of this is the bitter reality that the government is ignoring. No matter what the courts decide and no matter what legislation and regulations are thrown at it, this is already a done deal. Wilson may have taken his plans down in response to the State Department's order, but it's already made its way to the edges of the internet -- reposted at websites and file lockers and spread via torrents. Other gunmakers have already made design tweaks and improved on Wilson's early models. These updated versions have similarly spread across the web. Opting for oppressive, restrictive legislation will do nothing but cause collateral damage -- if damaging everything but the intended target can truly be considered "collateral." If Wilson prevails on constitutional grounds, it will only result in the government searching for a different route to get what it wants: illusory control. It won't simply accept the fact that this is the new reality and that efforts to stop it are not only futile, but harmful to its own citizens. If it chooses to view code for a printed weapon as either a weapon or weaponized code, it will use public safety and national security to explain away any rights that end up underfoot. Permalink | Comments | Email This Story

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You'll recall how last year, Keurig Green Mountain created a surprising, negative public relations tsunami with the news it would be using a form of "coffee DRM" in its latest Keurig 2.0 coffee maker. The new technology basically prevented anyone from being able to use refill pods from competitors, or any of the more environmentally-friendly, more cost-effective refillable pods available online. Company CEO Brian Kelley and Keurig's marketing department then made matters dramatically worse when they tried to claim the ham-fisted market lockdown was "critical for performance and safety reasons." The story got notably more amusing when "hackers" started defeating the company's DRM measures with rather low-brow hacks consisting of pieces of Scotch tape. Competitors similarly began either developing pods that quickly defeated the embedded technology, or gave away plastic clips that confused the system into accepting competitors' pods. In short, what Keurig thought was a clever way to lock down a market and make extra money, wound up making the company look like a tone-deaf, anti-competitive, mechanical dinosaur powered by over-caffeinated nitwits. A little more than a year after the embarrassing saga began, Keurig appears to finally be beginning a not-entirely graceful about-face on the matter. After the company's stock took a notable nose dive and sales of brewers and accessories dropped 23% last quarter, Kelley claims he's now seen the error of his ways. Sort of. Reading the actual transcript of Keurig's latest earnings call, Kelley still can't help but minimize the backlash as the concerns of a "small percentage" of "passionate" users. Meanwhile, while Keurig focuses heavily on the fact it was wrong for pulling the company's own, reusable "My K Cup" from the market, the fact Keurig tried to bulldoze its way to market domination via obnoxious, heavy-handed DRM is, as you might expect, downplayed dramatically:"I would tell you the other thing we heard loud and clear from the consumer while very small percent of consumers, a very vocal and intense, passionate consumer who really wanted the my K-cup back, what we learned that it’s important the message and the signal that it sends, the ethos that it sends is that we want consumers to be able to brew every brand, any brand of coffee in their machine and bringing the my K-cup back allows that. ...My K-cup wasn’t going to work with a new system as the new system had to identify the pod versus a carafe, so we took the My K-cup away and quite honestly we’re wrong. We missed, we didn’t – we underestimated, it’s the easiest way to say, we underestimated the passion that consumer had for this. And when we did it, and we realized it, we’re bringing it back because it was we missed it. We shouldn’t have taken it away, we did. We are bringing it back.So yes, while it's great to hear the company admit it was "wrong," Kelley only admits to being wrong for pulling Keurig's own reusable pod from the market, not necessarily for trying to block all competing products -- or for spending a year trying to argue that the ridiculous foray into DRM was necessary for the safety and security of Keurig's products. Meanwhile it's still apparently going to take Keurig until Christmas to re-introduce its own, refillable pod, and, contrary to media coverage, there's no clear statement here that the company's planning to back away from coffee DRM entirely. Still, it's at least a partial victory, and Keurig's sort-of-mea-culpa is the perfect way to belatedly celebrate this week's International Day Against DRM.Permalink | Comments | Email This Story

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This is kind of bizarre. When you normally think of an organization like Consumers' Research, you think that it should be looking out for the consumer's best interests, and pushing back against corporations that are looking to make life worse for consumers. But apparently that's not how it is. Consumers' Research -- importantly -- is not to be confused with Consumers Union, which puts out Consumer Reports (and owns Consumerist). Consumers Union actually was created back in 1936 after a bunch of staffers revolted from Consumers' Research and set up their own thing. And while Consumers Union took off, Consumers' Research languished, such that many have probably never even heard of it. Somehow, however, it got a bizarre opinion piece published in the Hill all about strengthening the US's intellectual property laws and supporting trade agreements (like TPP and TTIP) that do so (the article is actually from a few months ago, but a reader just sent it to me). The piece is written by Joe Colangelo, who is the executive director of the organization -- though, from his LinkedIn profile, it appears he only graduated college (with a political science degree) in 2007, and then was in the Navy until 2011. After that he was a sales manager for some company and a consultant at Booz Allen (the giant government contractor) before becoming exec director of Consumers' Research. It's not clear what (if any) "consumer" background he has, other than (I assume) buying stuff every so often. The opinion piece is a mess from the beginning: With both sides of the aisle focusing on bettering the middle class this new Legislative session, Congress should consider determining how to better protect the intellectual property of innovative Americans. America’s knowledge-based economy requires international treaties and enforcement of current laws to keep American IP safe and to encourage innovation. Wait, why? There's a ton of research showing that greater enforcement of IP and stricter IP laws have actually done plenty to discourage innovation. It's why most of Silicon Valley is pushing for new laws to fix the patent system, not strengthen it. And, it's why plenty in Silicon Valley are worried about agreements like the TPP for not including important features like fair use, a lack of which will stifle innovation. IP-intensive industries create more high paying U.S. jobs than any other sector. A 2010 report by the U.S. Department of Commerce and the Patent and Trademark Office found that direct employment in IP-intensive industries in the U.S. accounted for 27.1 million jobs, and indirect activities associated with those industries provided an additional 12.9 million jobs for a total of 40 million jobs. Jobs related to IP industries comprise a staggering 27.7 percent of all jobs in the U.S. economy. Oh gosh. Not this report again. It's been debunked so many times even bringing it up tends to be a sign of someone who is obviously ignorant of the facts. Once again, the report assumes -- incorrectly -- that if an industry gets a lot of copyright/patents/trademarks every bit of that industry only exists because of existing copyright/patent/trademark laws. It doesn't take into account that much of the economic activity may have nothing to do with those laws. Nor does it consider if there would be even greater economic activity if those laws were different -- either weaker or stronger. All you have to do to understand how messed up the report is, is to recognize that the leading "employer" cited in the report... is grocery stores. Anyone who thinks that grocery stores exist because of IP laws is clearly delusional or ignorant. Yet, Colangelo not only accepts the study's questionable methodology, but falsely assumes it means more or stronger IP must mean more such jobs -- even though the report makes no such claim at all. Colangelo makes a random reference to a meaningless Apple patent, and some nonsense about "21st Century policies" and then starts ranting about piracy: Illegally downloading content is not a legitimate option. Just as in the physical world, online, freedom does not mean lawlessness. Users must be aware of the consequences of internet piracy. Pirating a movie is just as illegal as slipping a DVD into your pocket and stealing it at a discount store. A truly free Internet, like any truly free community, is one where people can engage in legitimate activities safely and where bad actors are held accountable. Remember, folks, this is a guy supposedly supporting consumers' interests, and he's pushing the laughably misleading line (that even most of Hollywood has given up on) that a download of a movie is the same as stealing the DVD. Does he think "a truly free internet" is one in which legitimate news websites are shut down just because the entertainment industry (wrongly) asserts that there is some infringing music on the site? Next up, we get a supposed "consumer advocate" repeating the Chamber of Commerce's talking points: Unfortunately, too many foreign governments treat IP theft as a victimless crime and look the other way, ignoring the economic and societal benefits that innovative economies offer. The lure of access to the U.S. market should be used as an incentive to convince trading partners that they should adequately protect IP rights, and to this end, the Global Intellectual Property Center recently published its third annual International IP Index. The Index serves as a tool for both government leaders and industry to evaluate the IP environments in 30 diverse economies around the globe. Effective IP protections are critical to trade agreement negotiations to protect software developers, artists, creators, innovators, and industry. The Global Intellectual Property Center is a front group for the Chamber of Commerce. The Chamber of Commerce has a long history of opposing basically any and all consumer rights. I'm beginning to get the feeling that "Consumers' Research" is not, in fact, a consumer group any longer, but a mouthpiece for the Chamber of Commerce, and a faux consumer group. These talking points do seem an awful lot like the old SOPA talking points, whose campaign was led by the Chamber of Commerce. Protecting IP is more than just a policy imperative – it’s enshrined by our Founding Fathers in the U.S. Constitution in Article 1, Section 8: “To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause, articulated by the Founders, is rooted in the notion that the best way to encourage creation and dissemination of new innovations and creative works to the benefit of both the public good and individual liberty is to recognize one’s right to the fruit of their intellectual labor through intellectual property rights. Actually, that clause is rooted in the notion that Congress is supposed to actually "promote the progress" for the public, like you would think a consumer advocate would support -- and that means that it can use such powers if and only if they benefit the public. The Constitution does not require Congress to expand copyright and patent laws. It just gives it the option to do so if those laws benefit the public. It appears that, as the fight for TPP heats up, you can expect all sorts of ridiculous bloviating from astroturfers and front groups. This particular article certainly suggests that "Consumers' Research" and Joe Colangelo are much more aligned with the interests of the Chamber of Commerce and its anti-consumer sentiment than anything that resembles a "consumer advocacy" group -- no matter the organization's historical legacy.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
Every time people tell me that lawyers now have a strong enough understanding of "the Streisand Effect" such that it's less likely to happen these days, I laugh. There's always someone new who hasn't figured it out yet. This story was pointed out to us by Chris O'Donnell, who said he never realized that Barbra Streisand had been a member of the Phi Sigma Sigma sorority. You see, back in November of 2011, a former member of Phi Sigma Sigma posted to a thread on the Penny Arcade forums, detailing some of the "secrets" of the sorority, including its silly secret handshake. The overall thread was started by someone asking fraternity and sorority members to reveal various secrets, such as initiation rituals. The thread was actually started in early 2010, but long after it had died out, someone under the name "stepscloser" posted the following: Phi Sigma Sigma secrets are: Phi Sigma Sigma (PSS) secretly stands for Philanthropic Social Society. However, this is never written down or recorded (until now) because it is so "sacred". The Handshake consists of a series of motions. Member A first begins with the pointer finger and the thumb surrounding Member B's pointer finger and thumb. This is the "Phi". Then Member A wraps the remaining fingers, middle, ring and pinky around the hand as a symbol of the "Sigma". Depending on who is the senior member, the pinky finger is wrapped around the older member's hand. Next is the hand knock. It goes Knock. Pause. Knock. Pause. Knock, knock, knock. The meetings are set up usually with the President, VP and other officers sitting at the front. The President wears a yellow or gold robe and the officers wear royal blue robes. The remaining members sit across from the officers in a pyramid formation with the base closest to the officers and the apex farthest from the officers. Members are seated by class order, then by alphabetical order. The table at which the President and Vice President are seated consists of candles on each side. Two gold candles and one blue at each corner of the table. Members usually recite an oath, "We, the members of Phi Sigma Sigma, promise to keep secret and sacred all of our proceedings." The way to enter the pyramid is by using the hand knock to notify the members you are wanting to enter the room. The President will respond back with her gavel by repeating the knock. The person will enter then travel to the apex of the pyramid formation. The President will say the secret and sacred words "Remove the Veil" and then the member will respond back with the Chapter's name, example, "Zeta Eta." The Gold and King Blue symbolize "Perpetuity" and "Sincerity". At initiation, blue "veils" (tulle from the local fabric store) are placed on the heads of the potential new members and are later removed to symbolize some sort of occult transformation and that they are full-fledged members. So, yeah. Never having cared much about fraternity/sorority anything, that sounds about as much like I'd expect some random silly initiation ritual/secret handshake to sound like. The kind of thing people make up to make people feel like they're special for joining a group, while it has no real significance. Either way, considering it was on a thread that was long since dead, chances are this would pass on into oblivion. But, no. A year later, the sorority had its lawyers contact Penny Arcade to file a very misguided DMCA notice: I am legal counsel to the board of directors of Phi Sigma Sigma, Inc. Phi Sigma Sigma was founded on November 26, 1913, and today maintains over 100 active collegiate chapters throughout the United States and Canada. This letter constitutes notification of claims of intellectual property infringement and violation of Digital Millennium Copyright Act, 17 U.S.C. Section 512 (the “DMCA”). Phi Sigma Sigma is the owner of certain trade secrets including, but not limited to, certain rituals conducted by members of Phi Sigma Sigma (collectively, the “Trade Secrets”). These Trade Secrets constitute confidential and proprietary information of Phi Sigma Sigma. We ask that you expeditiously respond to this notice by immediately removing or disabling access to this infringing material including, but not limited to, removing the entire posting and all replies. Please promptly confirm any action that you take within ten (10) business days of receipt of this letter. Of course, trade secrets are not covered by the DMCA, and the information in the post was not covered by copyright, so already this lawyer is on shaky, shaky ground. Penny Arcade's "Gabe" (aka Mike Krahulik) refused to comply, noting that the sorority could just change the damn handshake if it was that important. The lawyer never followed up to sue Penny Arcade, but apparently is now suing the former member in King County Superior Court, though it's not clear the sorority has any idea who "stepscloser" actually is. Now, attorneys representing the sorority are seeking a court order restraining the former member – “Jane Doe” in the lawsuit – from disclosing confidential information about Phi Sigma Sigma. They’re also seeking financial compensation for harm they claim has been done to the sorority. “The defendant knew that the information that she was posting had not been publicly disclosed and would damage” the sorority, attorney Karin Jones said in the civil lawsuit. “The defendant admitted in her posting that the confidential information she disclosed is never written down or recorded and that that the organization and its members consider the information ‘sacred.’” Yeah, good luck with that one. At least they gave up on the ridiculous idea that this was a copyright violation. Either way, now this long dead thread on an old internet forum post, that no one had been paying much, if any, attention to, is suddenly getting tons of attention. You would have thought that the sorority would have realized how idiotic this was after the Gabe post from two-and-a-half years ago, but apparently the message didn't get through.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
It's no secret that ISP support reps will consistently tell you whatever you'd like to hear when trying to sell you on more expensive packages, even if the claims are miles from reality. Sometimes that's just a support rep going rogue to meet numbers and try to make a sale, and sometimes it's part of a consistent, scripted effort to mislead the consumer. Frost and Sullivan analyst Dan Rayburn says he ran into the latter recently when he called to renegotiate his FiOS triple play bundle rate with the telco, and was informed, repeatedly, that he needed to upgrade his speed from 50 Mbps to 75 Mbps if he wanted Netflix to stream properly. That wasn't the brightest move on Verizon's part, since Rayburn covers the streaming video sector for a living. Rayburn was quick to highlight that Ookla data shows that the average bitrate delivered to a Verizon customer last month was around 3.5 Mbps. Even in a household full of streaming video fanatics, there's really not much that 75 Mbps will provide that 50 Mbps won't. And while Rayburn warns that uninformed users can easily fall into Verizon's trap, it should only take the average consumer about five minutes of Google use to avoid this pitfall. Netflix's website informs users the company's standard definition streaming service eats about 1 GB of data per hour per stream of standard def video, and Netflix recommends roughly 3 Mbps for standard def content. High definition video meanwhile consumes around 3 GB per hour, per stream, with Netflix recommending 5 Mbps for HD video. Even if you're part of the tiny number of people with a 4K set looking to stream Ultra HD, you'll only need a connection of around 25 Mbps, according to Netflix. Of course this requires the average consumer to know what a gigabyte is, which is no safe bet. Rayburn proceeds to document that this wasn't just a one-off situation, but that Verizon lied about his need for 75 Mbps to obtain "smoother" Netflix streaming numerous times:

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posted 18 days ago on techdirt
Look, I don't even know where to begin with this, so let's just dive right in. A trailer for the upcoming release of the latest game in the Metal Gear Solid series came out a while back and, for reasons I can't even begin to explain, a whole load of folks out there decided that a doctor that appeared in the trailer looked an awful lot like a real-life Italian doctor. But not just any doctor. This doctor is apparently working on achieving the first ever successful human-head transplant with spinal reconnection. For almost a week now, some parts of the gaming internet have been going nuts over the visual similarities between the doctor that features in the trailer for Metal Gear Solid V: The Phantom Pain, and the controversial real-live Dr Sergio Canavero, the neurosurgeon who recently found sudden fame when he claimed that he was ready and able to perform the first human head transplant in medical history. He’s even found a prospective patient, a Russian called Valery Spirodonov, who suffers from a terminal muscle-wasting disease. The images of the character and Canavero, when placed side-by-side, are certainly striking. Apparently there have been people calling up Doctor Canavero and questioning him about his relationship to the game, of which he claims to have none. Those callers have been spurred on by all kinds of conspiracy theories being drawn up to explain the similarities. TED Talks by the doctor deal with some of the issues and language supposedly appearing in the MGS game, MGS creator Hideo Kojima has talked about how the new game will deal with controversial issues (head-transplants would probably count), and some have even made claims that the doctor isn't a real doctor and this is all just a media stunt (it isn't, Dr. Canavero is a real, published doctor). Kotaku's UK site got Canavero on the phone and he claimed to have nothing to do with the game or Kojima. As it turns out, Konami used an actor for the character model in question and it's the actor that happens to resemble Canavero. In other words, it's just a weird coincidence. Except Dr. Canavero doesn't think so. I pointed out his resemblance to the actor from whom Konami actually did the scanning for the three-dimensional model, but he tells me that his lawyer has suggested something different that involves a conference held in Cyprus: "One of the sponsors was coincidentally a game developer. Maybe some people there...I don't know...maybe they recorded the thing from certain angles, maybe the cameras were set up in the right spots... I do not know. It's just a hypothesis, but maybe it's not too far-fetched." Cavanero goes on to point out that this isn't such a bad thing, as he's raising money for his HEAVEN project (you know, the whole taking one person's head and sticking it on another person's body thing) and this has brought some additional notoriety to him. That makes this next bit more perplexing: “I went to the Polizia Postale [the authority in charge of this kind of thing here in Italy] and filed a complaint towards Mr.Kojima. There is also a Twitter account that is not mine, so I reported this to the Police too, they will now investigate both the matters. In the meantime my lawyer is sending a letter to the Japanese company [Konami] to ask for compensation [for using my image without permission].” Except that it wasn't his image, it was the image of an actor who resembles him. Some people look alike, for better or worse. In any complaint resulting in a court case, it would seem to me that Konami and Kojima need only trot in the actor around which they built the character model and that should be it. Why it should even have to get that far, considering that Cavanero can't stop talking throughout the interview about how beneficial this whole coincidence has been, is beyond me. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Medicine is often a somewhat gruesome practice. To treat some injuries/diseases, sometimes you need to perform some extreme surgeries. It's not always pretty. However, some surgeons are working on unusual procedures that sound a bit more like Frankenstein than modern medicine. Transplants from animals, whole head transplants -- if these procedures actually work, doctors could extend the lifespans of people in a way that brings up more and more questions about the quality of a person's life. These operations are far from perfected now, but so were a lot of surgeries not too long ago. Some unconventional surgeons say a human head transplant will be possible in the near future. This sounds like a sci-fi movie -- because there is a movie coming out about transferring minds (not heads). The first real patient could be Valery Spiridonov -- a man with Werdnig-Hoffman disease -- who still needs a donor body and a medical facility to support the operation. [url] Xenotransplantations have been attempted for over a century, and there are still lots of problems with implanting an animal organ into a human body. Beyond the animal rights protests, the odds of success for an organ transplant are hindered by immune system rejection responses and possible disease transmission problems. Genetically engineering an animal for better results might be a promising approach, but the technology to grow organs might catch up. [url] Genetically modified piglet hearts have survived in the body of a baboon (in its abdomen) for more than a year now. The piglet hearts were designed to minimize organ rejection, and the next step is to try to replace a baboon heart with one of these pig hearts. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
An interesting angle on the FBI's Stingray secrecy has emerged from -- of all places -- a Princeton gathering of cryptographers that included Edward Snowden via his "Snobot." Generally speaking, the FBI is a very secretive agency, as can be readily gleaned from its tendency to answer FOIA requests with page after page of fully-redacted documents. That it has managed to rope so many law enforcement agencies -- including prosecutors and states' attorneys' offices -- into highly-restrictive non-disclosure agreements is somewhat of a surprise, considering its position as a partner in law enforcement, rather than an overseer of local agencies like the DOJ. These NDAs keep almost all information about Stingray device usage out of our nation's courts. The desire to protect these specifics is all-encompassing, resulting in prosecutors and police departments cutting suspects loose (including those who have already pled guilty) rather than allowing information to make its way into the public domain. But there could be more to it than just a naturally-secretive agency being secretive. It may be that it fears law enforcement agencies -- if left to their own devices -- will destroy the effectiveness of IMSI catchers by deploying the devices too often and with too little care. In a discussion about the NSA's use of exploits, the following observations were made. FBI operations can be opaque because of the care they take with parallel construction; the Lavabit case was maybe an example. It could have been easy to steal the key, but then how would the intercepted content have been used in court? In practice, there are tons of convictions made on the basis of cargo manifests, travel plans, calendars and other such plaintext data about which a suitable story can be told. The FBI considers it to be good practice to just grab all traffic data and memorialise it forever. The NSA is even more cautious than the FBI, and won’t use top exploits against clueful targets unless it really matters. Intelligence services are at least aware of the risk of losing a capability, unlike vanilla law enforcement, who once they have a tool will use it against absolutely everybody. IMSI catchers are "top exploits." While there's plenty of information out there on its capabilities, very little of it has been confirmed by the FBI or other law enforcement agencies. What makes the "exploit" better is that almost every deployment has been successfully hidden… from everyone. Parallel construction, abuse of pen register orders, dismissal of cases -- all of it works together to keep actual usage details out of the public's hands. Because of this, there's very little anyone can do to avoid being swept up by Stingray devices other than avoid using cell phones. Most criminal enterprises require communication and cell phones are the cheapiest, easiest way to maintain contact. While spoofers can be sussed out with tools and apps, it requires the sort of proactive effort that often isn't present -- or practical -- in many criminal ventures. Yeah, you can sweep a hotel room for bugs, but you can't stop anyone from parking nearby and hoovering up call data and communications. If this assessment is accurate, the FBI may be applying this intense pressure simply to prevent "vanilla" law enforcement agencies from using Stingrays as often and as carelessly as possible. Every deployment increases the risk of exposure. Tying cop shops up in NDA strings keeps dissemination to a minimum and encourages at least some form of risk analysis before deployment. It's the FBI saving law enforcement agencies from themselves, and protecting itself and its tool of choice at the same time. [Or not. The Baltimore PD deploys its Stingrays around 600 times a year, so there are exceptions to this theory… or some agencies simply just don't care whether the effectiveness of this "exploit" suffers from diminishing returns. And definitely click through to read the entire piece by Ross Anderson. It also discusses how intelligence agencies work around crypto they can't crack -- very germane to the discussion of the FBI's current decrypt-or-else complaints.] Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Back when AT&T stopped offering unlimited wireless data, it grandfathered many of the unlimited users it had at the time. Unfortunately for those users, AT&T immediately started waging a quiet war on these customers as part of a concerted effort to drive them like cattle to more expensive plans. That included at one point blocking Facetime from working at all unless users switched to metered plans (but net neutrality is a "solution in search of a problem," am I right?) and throttling these "unlimited" LTE users after they'd consumed as little as three gigabytes of data. Then, just about a year ago, the FCC (like it has on a number of consumer telecom issues like telco accounting fraud or municipal broadband) miraculously awoke from a deep, fifteen-year slumber and decided to do something about this kind of behavior. FCC boss Tom Wheeler started warning telcos that they can't use congestion as a bogeyman to justify cash grabs, and that network management should be used to actually manage network congestion -- not as a weapon to herd users to more expensive options. The FTC also filed suit against AT&T for false advertising over its "unlimited" claims. While AT&T tried to unsuccessfully tap dance around the lawsuit (ironically claiming it was protected by Title II classification), this regulatory pressure appears to have worked. AT&T this week updated the company's policy for grandfathered unlimited data customers suggesting the company has modified its network management practices. Back in March, the company's policy looked like this:"As a result of the AT&T network management process, customers on a 3G or 4G smartphone with an unlimited data plan who have exceeded 3 gigabytes of data in a billing period may experience reduced speeds when using data services at times and in areas that are experiencing network congestion. Customers on a 4G LTE smartphone will experience reduced speeds once their usage in a billing cycle exceeds 5 gigabytes of data. All such customers can still use unlimited data without incurring overage charges, and their speeds will be restored with the start of the next billing cycle."As of this week, the policy now looks like this:"As a result of AT&T’s network management process, customers on a 3G or 4G smartphone or on a 4G LTE smartphone with an unlimited data plan who have exceeded 3 gigabytes (3G/4G) or 5 gigabytes (4G LTE) of data in a billing period may experience reduced speeds when using data services at times and in areas that are experiencing network congestion. All such customers can still use unlimited data without incurring overage charges, and their speeds will be restored with the start of the next billing cycle."In other words, gone are the references to throttling unlimited LTE users just because they hit a totally arbitrary threshold, and the company is now using network management to manage the damn network, not to make an extra buck. AT&T will of course find other, clever ways to annoy these users until they switch to more expensive plans, but it's at least good to see that the network congestion bogeyman (fear the exaflood!) isn't quite as effective as it used to be when it comes to justifying high rates, misleading consumers or conning regulators.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Roca Labs says it can help you lose weight by pumping your stomach full of its proprietary Fix-a-Flat-but-for-humans concoction. Once the product sets in, your stomach will have much less room for food. You'll eat less, lose weight, or spend hundreds of dollars trying! If you find Roca Labs' product suspect or aren't happy with the results, you have a few options available. You can try to get your money back, but that seems to be a route not worth taking. You can complain about the product, but then you'll face the possibility of being sued. Roca Labs has sued people for posting negative reviews. Roca Labs has threatened to sue people for writing about the lawsuits filed against reviewers. Roca Labs has also sued opposing lawyers, alleging some sort of internet conspiracy to ruin its "good" name. Roca Labs has also threatened to sue us two separate times. Those it hasn't sued, it has hit with bogus DMCA notices. Judging from its recent history and the complaints filed with the FTC (acquired via FOIA request), Roca Labs appears to spend a majority of its income on marketing and litigation. Customer service expenditures seem to be hovering around $0. First, there are the legal threats. Very concerned as this product line is promoted as a "gastric bypass" for children, pregnant women, and overweight persons, but is a ingestible supplement.   I wrote about the product on my site, and was contacted by a lawyer in Israel and threatened to remove it or BUY three containers of the product, USE IT and rescind my posting. Absolutely NOT. --- If you as a blogger write anything about their product ads, which are incredibly outrageous, they send you a letter saying they will sue you. BUT, you can purchase the product, try it out, write a review and then they will refund your money. --- I see the 5th paragraph of section of Merchandise Return & Refund Policy seems to violate the Right of Free Speech. The 5th paragraph says and I quote:"If, for whatever reason, you become dissatisfied with The Formula or The Support, you agree not to make, write, post, distribute or disseminate in any way any negative comments about,or relating to, Roca Labs, The Formula, or The Support. This includes writing anything on the internet and making a complaint with Paypal, your credit card company, the Better Business Bureau, etc... Doing so, in light of these clear terms and conditions, would constitute breach of contract and defamation and would be actionable in Florida court. If you can cannot agree to this, The Company asks you not to purchase The Company’s product. Sure enough, Roca Labs' Terms and Conditions contain a stupid non-disparagement clause [emphasis mine]: You agree that regardless of your personal experience with RL, you will not disparage RL and/or any of its employees, products, or services. This means that you will not speak, publish, cause to be published, print, review, blog, or or otherwise write negatively about RL, or its products or employees in any way. This emcompasses all forms of media, including and especially the internet. This paragraph is to protect RL and its current and future customers from the harm of libelous or slanderous content in any form, and thus, your acceptance of these Terms and Conditions prohibits you from taking any action that negatively impacts RL, its reputation, products, services, management, or employees. We make it clear that RL and its Regimen may not be for everyone, and in that regard, the foregoing clause is meant to prevent “one person ruining it for everyone.” Should any customer violate this provision, as determined by RL in its sole discretion, you will be provided with seventy-two (72) hours to retract the content in question. If the content remains, RL would be obliged to seek all legal remedies to protect its name, products, current customers, and future customers. Noted directly below it is the fact that this clause is unenforceable in California -- the only state that bans non-disparagement clauses. It appears to be linked to a discount Roca will give you should you choose to be its gastric jelly ambassador, but it's worded in a way that it affects anyone who purchases its products. If you choose to disparage the company and have signed up to spread the Roca gospel, you'll forfeit the discount. Note the phrase "should ANY customer violate this provision." Asking for a refund seems to be impossible. Complaints detail the fact that Roca Labs apparently offers no live customer service. On top of that, the company only gives you three hours to stop the shipment of your order. Anything later than that means you'll be charged the full amount. Roca Labs justifies its "no refund" policy by claiming each shipment is made from scratch and specifically tailored to each customer. Sales and shipments are one way only. If nothing else, customers can be assured their account balances will be thinner by the end of their Roca Labs experience. [part of a CS chat transcript included in one complaint] Roca Labs Premium Support manager Sharon K. replied Hello (b)(6), There is nothing to cancel as no other shipments are due to you. Your procedural kit was shipped in full on 11413. When you ordered you chose to pay your balance in 3 easy installments, the first payment was taken out on 11313 and you have a balance of $420, which is 2 more payments of $210. You cannot cancel paying your balance as this is what you owe for what is shipped. We are so sorry to hear about the medical condition. The return policy was made clear to you several times before you ordered. http:www.RocaLabs.com/return We will be willing to consider partial refund after all payments are made and you have provided a letter from you doctor verifying your claim. You should note that unpaid balances are forwarded to the legal department and added fees are charged which can end up in Florida court with charges totaling $3,200 or so. We trust and love our customers and hope they will never abuse the credit we extend them so they can afford the procedure. Please get also familiar with the Terms of the purchase. There are more than 100 complaints, most of which revolve around the fact that once Roca Labs has access to your credit card information (which it acquires during its "qualification" process), your account will be charged for the entirety of the purchase, no matter what. There are no refunds, no returns and -- as its Terms and Conditions state -- the company reserves the right to charge you even more if you make your unhappiness with the product public. Roca Labs tells customers they need to cancel within three hours of placing an order and then makes it impossible for anyone to do that. If you wish to cancel your order before it has been shipped, you must immediately contact the Customer Care Department via the Website in writing for a full refund. But... Generally, Customer Care/Support is available 24 hours, 7 days a week. We will make every effort to respond to you within one (1) business day of any written contact. For your protection after your order has shipped RL requires that all contact must be in writing with Customer Care/Support through the Website ONLY. How will you know when your three-hour clock starts? Apparently, you won't. You have to run through Roca's "qualification" process before being approved. But apparently you'll only find out if you've been approved by Roca ringing you up for the purchase you haven't agreed to yet. Went on line 2/16/14 and did app 2 c if qualify for product. Didn't receive any correspondence or confirmation, just a 210.00 charge on my CC. ---- Application' process does not exist and there is no two hour cancellation window. Your acceptance turns out to be supplying your credit card number. Using my credit card, I placed an order for Roca Lab's diet product on May 4th @ 6:04 in the morning. The website discloses a 24 hour 'approval' process. It also states that after receiving 'approval' you have a two hour window to cancel the order. In less than 12 hours, after doing further research on the company, I called customer service to cancel the order. I was advised to send an email to the company. I did that and received an email stating that ' You placed your order on date & time . Your kit went into production on 3/4/2014 6:07 AM . Cancellation can ONLY be done by contacting our support desk at: [email protected] within 2 hours of submitting your health application' The website does not state this in the application screen. In fact it states that cancellation can be done after being 'approved'. I never received 'approval' from the company. The inability to speak to anyone directly is noted repeatedly in the FTC complaints. Unable to contact a human to talk about the product effectiveness or to change payment methods. ---- I have been having problems because they arent deligently answering my every questions, everything is done by email ---- YOU CANNOT SPEAK TO A REAL PERSON - you get messages via email or text, no real person! I even tried contacting the manager option (option 3)and only got a message back saying they know about my call. ---- Tried to contact customer service on-line but found no way to do so. Everything was directed to a Nurse which cost money to get support… ---- I tried sending the product back and paid $15.62 to return it, (after calling and not being able to talk to a real person) then they would not accept it… ---- Charged twice for the 'processing of application fee I found it ironic that when contacted about the additional charge and the fact that we were concerned it may be a scam that we were notified it would be addressed within 24 hours. Their policy says if you cancel within the first 2 hours that they will refund. There is no way to contact them for immediate cancellation. Then there's this, via Adam Steinbaugh -- taken from a deposition of a former employee of Roca Labs. Q: At what point did you believe that Roca Labs was -- did you come to believe that Roca Labs was deceptive or unethical? A. When he asked me to dress up like a fat person so I could talk to his customers online about the product that I had never taken and about the weight loss that I had never lost because I've never been on a diet in my life. [...] Q. Now, when -- when you were terminated on October 25th, that followed a conversation with Mr. Juravin; correct? A. Uh-huh. Q. And the gist of that conversation was that you refused to sign the contract because of the nondisclosure agreement and the reduction in pay; right? A. Yes. Q. And in the course of that conversation you talked about the fat suit incident in connection with the nondisclosure agreement? A. I did. And this, which ties into Roca Labs' claims that every product it ships out is made uniquely for the person ordering it (justifying the "qualification" questionnaire and fee): A. I don't know exactly the time period between the phone call and when I took the product. But we had not been opening the product in the beginning of my employ with him. We just started opening the product towards -- I guess into October he got a second shipment that was not -- he thought it had too much product. So he wanted to take some out and put it in smaller bags and that concerned me when I saw that he was opening the powder. [...] A: I just thought that really shouldn't be -- you know, a product that people consume shouldn't be taken out of their packaging and repackaged without any type of sanitary handling of it. The handling of the product was not sanitary at all and there was roaches on the floor and dust everywhere, cars were being parked in the garage. You know, there was nothing sanitary about any of it. From the FTC complaints: I received a box that looked like it had been tampered with and when I emailed them about it, they said that I am just 'claiming that'. The 100+ complaints lodged with the FTC are likely only a small fraction of those actually displeased with the company and its no-refund policy. Its Terms and Conditions have probably deterred others from speaking out, what with the threat of being charged even more for a product that they don't want constantly hanging over their heads. With this in mind, it's tough to take any positive reviews of Roca Labs seriously. Instead, they take the appearance of gunpoint cheeriness, where "participants" have the "option" of vehemently praising the company or watching an additional $500-1000 disappear from their bank accounts. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Jotting down notes with a pen and re-typing them up to share with others is a pain. The Equil Digital & Ink Combo Smartpen 1 seems to have solved that problem. The pen has ink in it and works on any type of paper. You just need to place the receiver at the top of the page and your handwritten notes and sketches will be transferred to your device. You can even create customized commands based on your gestures and it's small enough to easily take with you. It's compatible with Android, iOS, MacOs and Windows and is available in the Techdirt Deals store for 47% off. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Oh boy. Today in Streisanding, we've got a lawsuit filed by Adam Miller, a faith healer, against against Stephanie Guttormson, supposedly over claims of copyright infringement and defamation, though neither claim holds up under much scrutiny. Instead, this looks like a typical SLAPP suit, in which Miller is upset about a video that mocks him and his faith healing and decides to sue over it. Enter Stresiand Effect. The video is currently up, and the view count is rapidly escalating. At the time the lawsuit was filed (according to the lawsuit) it had about 1,500 views. Now it's much more: There's nothing too surprising in the video, but it basically uses one of Miller's own promotional videos and intersperses some commentary and criticism. The lawsuit... is... well... a joke. First, he claims copyright infringement, though this is pretty obviously fair use. It's being used for criticism and commentary, and in order to make that work, it needs to show clips of the video. Miller's lawyer tries, weakly, to present a few arguments to try to get around fair use, including arguing that it's commercial use. Of course, as we keep repeating, commercial use does not mean that you can't have fair use. Tons of fair use involves commercial use. And, even given that, it's ridiculous to argue that this is "commercial use." The best the lawsuit can do is claim that the inclusion at the end of the video of a couple of "advertisements" makes it commercial. That, alone, probably isn't even enough to claim this is "commercial use," (which is generally more about selling the actual work or directly profiting). Plus, it's not even accurate. The "advertisements" aren't really advertisements at all, but rather a friendly acknowledgement of who sent her the video, with a link to that guy's own website and audio bookstore, with a mention that Guttormson appears on that guy's podcast every so often. The lawsuit also claims too much of the original video was used, but there's little evidence to support that. Guttormson comments on basically every clip in the video, so it's hard to see how she's using "more of the original work than was necessary" as the lawsuit claims. The lawsuit also alleges, as part of the copyright claim, that "Guttormson is liable for the actual harm caused to Mr. Miller as a result of Guttormson’s infringement and statutory damages." That's an interesting claim, but completely bullshit in the copyright context. The "actual harm" has to be over the copyright. Unless there was "actual harm" in Miller no longer being able to license/sell that video to a third party because they felt they could see it all for free through Guttormson's video (a crazy claim), then there's no actual harm. If the commentary in Guttormson's video, which mocks Miller's wacky faith healing nonsense, created "actual harm," well, that's not a copyright issue and is unrelated to any copyright claim. The lawsuit also makes some claims about how the video itself was never actually released, but rather was password protected in Miller's wife's account. So the lawsuit alleges that Guttormson must have "hacked" into Eve Miller's account. In the video itself, however, as mentioned above, Guttormson notes that it was actually David Smalley who sent her the video. And while it's not entirely clear, from the comment threads under the video, it certainly sounds like Miller's video was most likely publicly available somewhere online. The evidence of "hacking" here seems really weak. And if there was hacking, the evidence that it was Guttormson is non-existent. As for the defamation claims... there are only two specific things called out in the lawsuit. The first is this: As just one example, Guttormson explains what happens at an appointment with Mr. Miller, “You will be fed faith-based bullshit.” This statement is false and defamatory; Mr. Miller’s work does not require a client to hold any faith, and he has worked with non-believers and atheists. Um. Okay, it appears that Miller's lawyer is misrepresenting what "faith-based" means in this context. Guttormson isn't saying that those seeing Miller are expected to "have faith in a certain religion." She's saying that the treatment by Miller is not evidence based but is based on someone's blind "faith" in Miller being able to actually do something. And, besides, Miller's own words show that he's pitching a bunch of faith-based quackery. In the video clip, he himself explains the process, noting talking first about how he talks to people who come to them about things that happened in their childhood, like "traumas" that might explain their illnesses (really) and then says: And then after we get through this, we put them on the table, and great holy spirit comes and breaks up dark cellular structure that creates any illness. Because I believe that illnesses are of a dark path. That's like the definition of "faith-based" right there. The other "defamation" claim is about the title of the video, which refers to Miller as a "con man." For the most part, courts don't consider phrases like that defamatory though (there are some exceptions, but it very much depends on context and if they're alleging a very specific thing, rather than a general insult). The link there is from Perle & Williams on Publishing Law and notes: As Dean Prosser observed, "[A] certain amount of vulgar name-calling is tolerated on the theory that it will necessarily be understood to amount to nothing more." Thus, "communism" is too amorphous a characterization to be actionable, as is the term "grifter." The term "crook" has been held by one court to be a word of general disparagement rather than an allegation of specific criminal conduct, and thus was not slander; a restaurant critic's remark that a restaurateur was a "pig" and a television news editorial that referred to a chiropractor as a "quack" and a "cancer con artist" were held to be expressions of opinion; the words "those bastards" were held "mere epithets... as terms of abuse and opprobrium" and as such were not actionable for defamation; referring to a judge as "incompetent," "arrogant," "biased," and "one of the 10 worst judges in New York" was not held to be defamatory; calling a stockholder a "silly, stupid, senile bum" was not held to be slanderous; referring to Carl Sagan as a "butt-head astronomer" was held not libelous; and referring to a masonry contractor as a "shithead" was held not actionable.... In short, the likelihood that calling Miller a "con artist" is "defamation," let alone "defamation per se" as the lawsuit alleges, is... quite unlikely. Even more to the point, this was a video that almost no one had seen. And now, because of this lawsuit, not only are tons more people checking it out, even more people will start investigating Adam Miller and the claims he makes about his "healing" services. Miller's website has gone down, but a quick look through the internet archive shows that it's chock-full of quackery (note to Miller's lawyer: that's not defamatory, so buzz off): What this healing work is... The Great and Holy Beings, such as Mother Mary, Jesus, Buddha, Quan Yin, Saint Germain, Archangel Michael and many others come into a person's body and transmute with light every single cell and raise the vibratory rate. In other words, diseases or injuries in the body have a very low, darkened vibration and when a Holy Being works with any person it changes the cellular structure permanently and the issue that is being worked on will never come back. This work is permanent. It is important to understand that Adam Miller is not a conduit, or psychic or related to any other work on the planet. This work is a result of Adam's death experience. Adam Miller would never claim to do this work himself. It is done by Holy Beings only. So, uh, yeah. And he's the one claiming that "faith-based bullshit" is defamatory? Yikes. Meanwhile, before filing the lawsuit, it appears that Miller posted another video announcing his response to the video above. In it he notes that a lawsuit is being prepared. But he also has a bunch of his "happy clients" give testimonials or complain about Guttormson, claiming that what she said was, like, really mean and "unprofessional." If Miller had merely posted his response including such testimonials, that would be perfectly fine. You deal with speech you dislike with more speech. But suing someone with bogus claims of defamation and copyright infringement? When you're spewing quackery? Not only is that going to flop in court, it's just going to lead a lot of people to examine what you're selling yourself...Permalink | Comments | Email This Story

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I'm not sure where so many public officials get the idea that the job is best-suited to those with the thinnest skin. Be careful what you write about police officers online — if you live in Granby, Que., you could get slapped with a hefty fine. The municipality about an hour outside of Montreal is seeking the right to issue fines ranging from $100 to $1,000 to people caught insulting police officers or municipal employees on the internet. Maybe it's a Quebec thing? Here's a TD post from way back discussing Rawdon, Quebec, which -- in a postively Ardisian move -- not only forced a site offline but sent the cops after the site owner. The city council of the small town of Rawdon, Quebec (population: 9400) has managed to get a court order to shut down an online forum (French only) because its users were posting messages that were considered 'defamatory and detrimental to the reputation' of the elected board. Police raided the forum owner's house, copied his entire hard drive and asked him to delete the offending posts, and when he said he had over 8,000 messages to look through, they did not specify which ones were specifically targeted. But hey, #NotAllCanadiens. The South Pittsburg City, Tennessee has also done its part to ensure governing bodies aren't stung by the harsh words of constituents. The commissioners of a small Tennessee town have just voted to ban negative comments about it from social media. This stupid move was prompted by "criticism and lies" being posted online, which supposedly "hampered" the town's government from performing its duties. Granby's bylaw rewrite didn't originate from the bruised feels of council members or city commissioners, but rather from its police force, which found Kevlar body armor may be great for stopping bullets, but does little to stop hurtful words. The move comes after town officials discovered a Facebook page called Les policiers zélé de Granby — The Zealous Police of Granby. And, of course, defenders are stepping up to explain that this is no more than an extension of stupid, previously-existent bylaw. According to Catherine Bouchard, the director of legal services for Granby, a bylaw already exists for face-to-face insults and has been used in recent years for online slurs. In order to raise the level of online discourse, insults directed at a select group of people -- public servants -- must be criminalized. The deputy mayor's justification is even worse. "In my opinion, if I threaten you via my keyboard, it's as though I am making that threat right in front of you.… For me, it's the same thing," said Robert Riel, Granby's deputy mayor. Threats are a criminal offense and I would assume there are laws in place to address these. Insults -- whether they're face-to-face or from behind keyboards -- are just the end result of the world being filled with people that aren't always pleasant. If the insult rises to the level of defamation, there's legal recourse for that. If the insults turn into harassment, again, turn to the law. But all of these different forms of unprotected speech are being thrown in with protected speech under a single, badly-written bylaw. Statements from the town's lawyer throw out terms like "slurs," "defamation" and "insults" as though they were all legally interchangeable, making her grasp of the law appear every bit as tenuous as the deputy mayor's. And then there's this: "If you put something out on the internet, I don't know what the expectation of privacy is," Bouchard said. "Let's say I write something about you that's derogatory or that's insulting … do I have the freedom to write anything about you? "Your freedom of speech does not give you the right to say anything about anybody you want in an insulting manner. I can't destroy your reputation and who you are because I have freedom of speech." Well, actually you can destroy a citizen's reputation, Ms. Bouchard. You see, the bylaw only protects city officials from insults, not the general public. Cops and council members can retaliate against those who have hurt their feelings by sending a suddenly-motivated police force to cite offenders. Bouchard and those voting for this act as though free speech is zero sum. Bouchard acts like public figures would have no other way to counter online insults if it wasn't for this skewed law. The same online platforms and forums can be accessed both by the public and their representatives. But this bylaw can only be used by public figures. The Huffington Post coverage notes that the local police hadn't offered any comment, but were "eagerly awaiting" the results of the vote. I bet they were. I'm sure there's a few officers who can't wait to take down the people behind the "insulting" Facebook page -- those clever malcontents who thought they were above the law when they expressed themselves using protected speech. Permalink | Comments | Email This Story

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Whoa. In a huge ruling, the Second Circuit appeals court has ruled that the NSA's bulk phone records collection is not authorized by the PATRIOT Act. In other words, for all the debate about the renewal of Section 215 this month, which the government insists enables such bulk collection, this appeals court says "nope." The ruling is important on a number of different points, even though it doesn't touch on the constitutionality of the program. It does make some other key points though. The biggest, as Rep. Jim Sensenbrenner (author of the PATRIOT Act) has said all along is that, contrary to the US government's claims, Section 215 does not authorize the bulk collection of any data. We hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards. The actual ruling is overturning a district court ruling, that had previously tossed out a challenge to the Constitutionality of the bulk metadata program by the ACLU. This ruling reinstates that case and sends it back to the lower court. As part of that, the court doesn't yet rule on the constitutionality of the overall program, but rather just notes that from the plain reading of Section 215, it does not mean that it authorized the government to collect such a massive trove of phone records. The other key point in the ruling is on the question of "standing." The DOJ regularly claims that people cannot challenge these programs unless they have specific evidence that they were spied on under the program. Plenty of cases have been thrown out after plaintiffs couldn't prove that the government had directly applied the program to their information, and thus the courts said they lacked standing. In this case, at least, the district court had found that the ACLU had standing, and the appeals court reconfirms that. But here's the key point: the court notes that merely the collection of the data is enough to show standing. This is in contrast to the DOJ's attempt to claim that the collection doesn't matter -- it's only if the government then looks at the data. The court disagrees, reminding the DOJ that the Fourth Amendment applies to not just "searches" but also "seizures" and the data collection is a seizure: Appellants in this case have, despite those substantial hurdles, established standing to sue, as the district court correctly held. Appellants here need not speculate that the government has collected, or may in the future collect, their call records. To the contrary, the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program. Nor has the government disputed that claim. It argues instead that any alleged injuries here depend on the government’s reviewing the information collected, and that appellants have not shown anything more than a “speculative prospect that their telephone numbers would ever be used as a selector to query, or be included in the results of queries of, the telephony metadata.” But the government’s argument misapprehends what is required to establish standing in a case such as this one. Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata. And, as the district court observed, it is not disputed that the government collected telephone metadata associated with the appellants’ telephone calls. The Fourth Amendment protects against unreasonable searches and seizures. Appellants contend that the collection of their metadata exceeds the scope of what is authorized by § 215 and constitutes a Fourth Amendment search. We think such collection is more appropriately challenged, at least from a standing perspective, as a seizure rather than as a search. Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them. “[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling. That's a very important finding and one that I imagine will also be quite useful in challenging other aspects of NSA surveillance. Furthermore, the court notes that even beyond the "seizure" aspect, the government is clearly doing "searches" as well: The government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data. The DOJ tried to rely on the big ruling against Amnesty International at the Supreme Court a couple years ago, noting that that was dismissed because the record collection there was speculative. Yet, in this case, that's not true: Here, appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected. Amnesty International’s “speculative chain of possibilities” is, in this context, a reality. The court also finds that there's standing on First Amendment grounds, thanks to the chilling effects of surveillance: Appellants likewise have standing to assert a First Amendment violation. Appellants contend that their First Amendment associational rights are being violated, both directly and through a “chilling effect” on clients and donors. The Supreme Court has long recognized that an organization can assert associational privacy rights on behalf of its members, stating that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute . . . a restraint on freedom of association.” There's a lot more in the ruling as well, including a clear rejection of the idea that the program and the orders of the FISA court to collect this data are somehow "not reviewable" by the judicial system. The DOJ says that because the court orders are secret, that means there can't be judicial review. The 2nd Circuit's response is basically, "you're really undermining your own case here": Upon closer analysis, however, that argument fails. The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information. That Congress may not have anticipated that individuals like appellants, whose communications were targeted by § 215 orders, would become aware of the orders, and thus be in a position to seek judicial review, is not evidence that Congress affirmatively decided to revoke the right to judicial review otherwise provided by the APA in the event the orders were publicly revealed. And then there's this lovely line: In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence... Hey, DOJ/NSA: this court isn't buying what you're selling. Next up, the DOJ trots out a standard talking point, about how collecting all this info is just like a grand jury subpoena. Once again, the court points out that's ridiculous, focusing on the fact that Section 215 requires the information to be "relevant." We've discussed in the past how the NSA has reinterpreted relevance to mean "might be useful at some point in the future." And the court explicitly rejects that: The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry. Rather, the parties ask the Court to decide whether § 215 authorizes the “creation of a historical repository of information that bulk aggregation of the metadata allows,”.... because bulk collection to create such a repository is “necessary to the application of certain analytic techniques,” ... That is not the language in which grand jury subpoenas are traditionally discussed. Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted. And further on that point: The government has not attempted to identify to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant.... Put another way, the government effectively argues that there is only one enormous “anti‐terrorism” investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort. And, as the court notes, that doesn't just redefine "relevant" it reads it right out of the law: The government’s approach essentially reads the “authorized investigation” language out of the statute. Indeed, the government’s information‐gathering under the telephone metadata program is inconsistent with the very concept of an “investigation.” To “investigate” something, according to the Oxford English Dictionary, is “[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.” 8 Oxford English Dictionary 47 (2d ed. 2001). Section 215’s language thus contemplates the specificity of a particular investigation – not the general counterterrorism intelligence efforts of the United States government. But the records in question here are not sought, at least in the first instance, because the government plans to examine them in connection with a “systematic examination” of anything at all; the records are simply stored and kept in reserve until such time as some particular investigation, in the sense in which that word is traditionally used in connection with legislative, administrative, or criminal inquiries, is undertaken. Only at that point are any of the stored records examined. The records sought are not even asserted to be relevant to any ongoing “systematic examination” of any particular suspect, incident, or group; they are relevant, in the government’s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry. The court regularly cites the PCLOB report that found the Section 215 program unconstitutional, and seems to have clearly understood the deeper issues with this program. While it falls short of ordering the program to stop (noting that the program is set to end at the end of this month anyway), this ruling is pretty suggestive of how the court might eventually rule on the program's constitutionality if it returns. Oh, and how can we leave out this tidbit on "secret law": Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware. And it totally rejects the usual NSA defenders' stance that it wasn't secret because members of Congress could have found out about the program if they took significant steps. Not enough, the court says: In 2010, the Senate and House Intelligence Committees requested that the Executive Branch provide all members of Congress access to information about the program before the reauthorization vote. In response, the Executive Branch provided the Intelligence Committee chairs with a classified paper on the program, which was then made available to members of Congress. That availability, however, was limited in a number of ways. First, the briefing papers could only be viewed in secure locations, for a limited time period and under a number of restrictions.... The government does not dispute appellants’ assertion that members of Congress could not bring staff with them when they went to read the briefing papers, nor discuss the program with their staff. And, of course, no public debate on the program took place. In 2011, briefing papers were also provided to the Intelligence Committees, but only the Senate Committee shared the papers with other members of that body who were not committee members. The House Intelligence Committee did not share the papers at all with non‐members, leaving the non‐committee Representatives in the dark as to the program. We had highlighted Rep. Mike Rogers (then head of the House Intelligence Committee) for failing to make the documents available, and it's nice to see the court pick up on that. While this doesn't go all the way to ending the program, this is a huge ruling from an important appeals court. This issue will still have to play out for years in other courts and eventually the Supreme Court, but today's ruling by this court is a huge victory for the 4th Amendment, even if the court didn't go all the way there in its analysis.Permalink | Comments | Email This Story

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Post sponsored by We're just shy of the midway point of 2015, but already this year both the U.S. House and Senate have taken huge steps to end legalized extortion in America. This could be the year we finally drive patent trolls back under the bridge. Last week, a bi-partisan group of senators introduced S. 1137, the Protecting American Talent and Entrepreneurship (PATENT) Act, to hold these bad actors accountable for their frivolous lawsuits and baseless threats. Patent trolling has become such a problem that this diverse group of Republicans and Democrats — Judiciary Chairman Chuck Grassley, Ranking Member Patrick Leahy, and Sens. John Cornyn, Charles Schumer, Orrin Hatch, Amy Klobuchar and Mike Lee — joined together under the umbrella of a fair, common sense patent reform bill. So far, the legislation has been publically supported by companies across most sectors of the economy, The New York Times editorial board and President Obama. Even comedy host John Oliver joined the fight against patent trolls, dedicating an entire segment to this critical issue. According to Julie Samuels, executive director and president of the board for Engine Advocacy: It's no surprise that patent trolling continues to be a huge problem, and one that disproportionally affects startups, inventors, creators, and the public interest. A very high percentage of startups who have received a demand letter reported 'significant operational impact' in the form of deferred hiring, change in strategy, cost ­cutting, reductions in personnel, decreased valuation or total shutdown. This is not how the patent system is supposed to work. Today, the Senate Judiciary Committee will hold a hearing on the PATENT Act, with testimonies from Samuels and Mark Chandler of Cisco Systems, Kevin Rhodes of 3M Company, Diane K. Lettelleir of JCPenny Corporation and Henry Hadad of Bristol-Myers Squibb. The Senate bill comes on the heels of H.R. 9, The Innovation Act, re-introduced in February by House Judiciary Committee Chairman Bob Goodlatte (R-VA), which currently has a bi-partisan group of more than 20 co-sponsors. Both pieces of legislation will close legal loopholes used by those who abuse the patent system. The only difference this time around is that the Senate is joining the fight against patent trolls. During the last congress in 2013 the same legislation passed in the House by an overwhelming bipartisan majority, but was not taken up by the Senate. Remember, politics is a "squeaky wheel" process and policymakers will only club the trolls if they hear from voters like you. Join the Innovation Movement — the Consumer Electronics Association's grassroots campaign advocating for public policies spurring the innovation and startup economy — in urging Congress to pass these patent litigation reform bills. By filling out the action box below or by texting the word “trolls” to 52886 you can tell your members of Congress to shut down the patent abuse racket! (function(d, s, id) { var js, fjs = d.getElementsByTagName(s)[0]; if (d.getElementById(id)) return; js = d.createElement(s); js.id = id; js.src = '//admin.phone2action.com/js/embed/widget/widget.js'; fjs.parentNode.insertBefore(js, fjs); }(document, 'script', 'phone2action-actionwidget-code')); Permalink | Comments | Email This Story

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We've long talked about how companies are only just starting to figure out the litany of ways they can profit from your cell location, GPS and other collected data, with marketers, city planners, insurance companies and countless other groups and individuals now lining up to throw their money at cell carriers, auto makers or networking gear vendors. For just as long we've been told that users don't need to worry about the privacy and security of these efforts, and we definitely don't need new, modernized rules governing how this data is being collected, protected, or used, because, well, trust. Automakers (and the cellular carriers that control the on-board infotainment systems) for example are collecting and sharing an ocean of data with only a casual glimpse toward security and transparency. No worry, however, as they promise that they're totally thinking about consumers as they use this data for a litany of new, utterly non-transparent purposes you hadn't even thought about. Like your automaker taking your car's GPS and performance data and selling it to insurance companies to potentially impact your insurance rates. As yet another example of how your cell and location data may come back to bite you in unforeseen ways, reports suggest that researchers are now exploring the use of metadata to better determine whether you should receive a bank loan. It's relatively early in the effort, but the research is showing that it's not particularly hard to determine a customer's potential finance risk simply by studying their cell behavior:"Daniel Björkegren, an economist at Brown University in Providence, Rhode Island, is working with EFL to predict whether someone will pay back a loan based on their cellphone data. He combed through the phone records of 3000 people who had borrowed from a bank in Haiti, looking at when calls were made, how long they lasted and how much money people spent on their phones. The algorithm looks at this metadata to get a sense of a person's character. Do they promptly return missed calls and pay their phone bills? That suggests they might be more responsible. Are most of their calls made in an area far away from the bank branch? Then it may be hard for the bank to keep tabs on their whereabouts. Björkegren found that the bank could have reduced defaults by 43 per cent by using the algorithm to pick better people to give loans to. The results were presented at the NetMob conference in Cambridge, Massachusetts, earlier this month."It's worth noting that despite the collected data being anonymized, researchers were able to identify people 90% of the time with just 4 pieces of information. That's yet another example of how anonymous data isn't really anonymous, and if the data gets into the wild -- the fact that it has been "anonymized" doesn't really mean all that much. And with the security on everything from "smart" TVs to home IOT devices usually being relatively flimsy, there's going to be an awful lot of new data on you out there floating around the ether to include in analysis. And while such a system might be great for the banks, it's probably not so great for you if you didn't want your cell data used in this way. And as the article notes, should you protect your privacy and opt out of your cell data being used in tangential business relationships, customers in the not-so-distant future might find themselves labeled as "suspicious" by companies -- simply for not being in a sharing mood.Permalink | Comments | Email This Story

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Back in 2010, Redditor Yasir Afifi found an unusual device on his car while taking it in for an oil change. Other Redditors surmised it was some sort of tracking device -- something that was confirmed a few days later when two SUVs full of cops and FBI agents showed up to reclaim it. While doing so, the FBI agent also asked the sort of probing questions that make the agency an indispensable part of our nation's counterterrorism efforts. From the ruling by Judge Beryl Howell: The agents also asked the plaintiff other questions, including “whether he was a national security threat, whether he was having financial difficulties, [and] whether he had been to Yemen . . . .” They also said other, more unsettling things: After returning the GPS device, defendant Kanaan made several comments to the plaintiff that indicated to the plaintiff that the FBI had knowledge of the plaintiff’s movements, including commenting on certain restaurants at which the plaintiff ate, a friend with whom he associated, and a new job at which he worked. Id. at ¶ 46. At the end of the encounter, the plaintiff alleges that defendant Kanaan suggested to him that he was not a national security threat and that he was no longer of use to the FBI. Apparently, part of the justification for deploying this tracking device was a comment one of Afifi's friends had left at Reddit -- a comment that skewers a lot of unproductive terrorism hysteria (and the agencies that thrive in this atmosphere). bombing a mall seems so easy to do. i mean all you really need is a bomb, a regular outfit so you arent the crazy guy in a trench coat trying to blow up a mall and a shopping bag. i mean if terrorism were actually a legitimate threat, think about how many fucking malls would have blown up already.. you can put a bag in a million different places, there would be no way to foresee the next target, and really no way to prevent it unless CTU gets some intel at the last minute in which case every city but LA is fucked...so...yea...now i'm surely bugged : / End result? A tracking device on Afifi's car, and for something he didn't even write. So, he sued the FBI and the DOJ for violating his First, Fourth and Fifth Amendment rights. The suit was stayed by the court while the Supreme Court sorted out US v. Jones -- a case dealing with warrantless GPS tracking. Unfortunately, the Court returned not much in the way of a decision, stating that GPS tracking did constitute a "search," but didn't go so far as to add a warrant requirement, suggesting the longer the tracking lasts, the worse it is constitutionally. Whether or not this was warrantless surveillance isn't answered in Howell's decision. None of Afifi's claims survive. Qualified immunity nullifies Afifi's First and Fourth Amendment Bivens claims with an assist from the circuit courts' split on warrantless GPS tracking. As the events in question took place nearly two years ahead of the Supreme Court's decision, Howell defers to the rulings in place at that time (2010) as governing the agents' actions. [T]he warrantless use of a GPS device was lawful under Ninth Circuit precedent at the time of its use in the present case. In other words, the individual defendants’ warrantless use of the GPS device was valid in California, the jurisdiction in which the individual defendants used the GPS device. Afifi's First Amendment claim also goes down, seeing as there's no judicial precedent for chilling speech with a GPS tracker. The plaintiff has failed to cite a single case from any Circuit holding that the warrantless use of a GPS device violates an individual’s First Amendment rights. To be sure, the qualified immunity analysis does not require a “case directly on point,” Al-Kidd, 131 S.Ct. at 2083, but a court must take caution in properly defining the scope of the right violated (“We have repeatedly told courts . . . not to define clearly established law at a high level of generality.”). [...] The plaintiff’s inability to cite a single case in support of his contention that the warrantless use of a GPS device violated his First Amendment rights dooms his claim. Afifi's claim of Privacy Act violations caused by the FBI's continued retention of his case records after closing the investigation doesn't fare any better. There's plenty of precedent out there stating that relevant investigative records are forever even if the investigation isn't. In addition, the fact that the investigation into the plaintiff is now closed does not render the records invalid under Section (e)(7). The D.C. Circuit has held that an agency may maintain records from an authorized investigation even after that investigation was closed, because “[m]aterials may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed...” The present case is no different. The records now in the FBI’s possession may permit the FBI to verify or evaluate any new intelligence received, assess the reliability of other sources, and ensure accountability regarding how the FBI responded to the information it received. Howell also points out that challenges to warrantless searches generally result in suppression of evidence, not nullification of entire investigations. Afifi's claims that he is being locked out by potential employers because of his run-in with the FBI are dismissed as "self-inflicted" -- not because Afifi had the misfortune of being acquainted with a person whose Reddit comment drew FBI heat, but because he "reported his confrontation with the FBI agents to local and national media, and the media published numerous stories about the encounter." The moral of this tale seems to be that if you discover a tracking device on your vehicle, there's no faster way to be rid of it than posting pictures of it on a heavily-trafficked website. (As opposed to, say, throwing it in a lake, as one commenter suggested.) You may not find relief through the courts, but at least you'll be ensured of some form of closure. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
As Techdirt readers know, corporate sovereignty provisions in both TAFTA/TTIP and, increasingly, TPP, are emerging as one of the biggest stumbling blocks to public acceptance of these deals. The revolt against "investor-state dispute settlement" (ISDS), as corporate sovereignty is more officially known, began earlier for TTIP. Indeed, it was already so strong at the beginning of 2014 that the European Commission had to pull out corporate sovereignty completely from the negotiations, while it held a public consultation on the subject. The hope was evidently that only lobbyists would bother answering the rather opaque and biased questions that were posed, but that's not how things worked out. An unprecedented 150,000 responses were received, the vast majority of which called for ISDS to be dropped. Despite that clear rejection, the European Commission signalled it would carry on anyway, but promising a "new and improved" version of ISDS. The difficulty of addressing its flaws is evident from the fact that it is only this week that the EU's Trade Commissioner, Cecilia Malmström, was finally able to unveil a proposal that may prove the last chance for corporate sovereignty in TTIP. Even she is forced to admit that she has "concerns" about ISDS: I have heard many concerns about dispute settlement between investors and states (ISDS) and the rules included in many of the existing agreements. To a large extent, I share these concerns, especially when it comes to the sometimes unclear definitions that leave too much room for interpretation and possible abuse, and the lack of transparency. I therefore made it one of my priorities to thoroughly modernise the traditional form of ISDS. The full paper -- which is "without prejudice to the final position of the European Commission on the matters described within" -- runs to 12 pages, and has five basic elements (pdf). These are: a right for governments to regulate; improving the establishment and functioning of arbitral tribunals in order to increase legitimacy of the ISDS system; an appellate mechanism; addressing the relationship between ISDS and domestic courts; and moving towards a multilateral system. Malmström's own summary of the proposal is as follows: I want to ensure fair treatment for EU investors abroad, but not at the expense of governments' right to regulate. Our new approach ensures that a state can never be forced to change legislation, only to pay fair compensation in cases where the investor is deemed to have been treated unfairly (suffered discrimination or expropriation, for example). Our new approach also makes arbitral tribunals operate more like traditional courts, with a clear code of conduct for arbitrators. It furthermore guarantees access to an appeal system. And, as a medium term goal, it sets out to work towards the establishment of a permanent multilateral investment court. Already, there are several analyses of why these don't address the many and deep problems of corporate sovereignty chapters. For example, there's a detailed consideration by Gus Van Harten, entitled "A parade of reforms: the European Commission’s latest proposal for ISDS", where he concludes: the most recent proposal (a) reflects a move away from essentially fake reforms to something potentially more meaningful but (b) is insufficient to satisfy the minimum criteria of independence, fairness, openness, subsidiarity, and balance, and (c) is not reliable until it is backed by clear language and a negotiating red line for any agreement providing for ISDS. The analysis by the Seattle to Brussels Network, a large group of development, environment, human rights, women and farmers organisations, trade unions, social movements and research institutes, is, as you might expect, rather more scathing: The Seattle to Brussels Network is of the opinion that the Commission's proposals do not contribute to any meaningful reform of the ISDS system. They 1) ignore the outcome of the Commission’s own public consultation on the issue; 2) do very little to address the fundamental problems of the ISDS system; 3) would dramatically expand the reach of ISDS, increasing the likelihood of claims against European governments; 4) are misleading in suggesting that the ISDS system was already meaningfully reformed in the recently concluded EU-Canada trade agreement (Comprehensive Economic and Trade Agreement, CETA) and would be significantly further improved in TTIP; and 5) ignore the elephant in the room: that there is no need for ISDS. That last point is really crucial. According to the European Commission's own figures, even without corporate sovereignty rights, the total US investment in the EU in 2013 was €1.65 trillion; from the EU into the US it was €1.69 trillion. ISDS is an irremediably flawed solution to a problem that doesn't exist. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Spend five minutes going through the exploding-number of posts we've done over the past two years about trademark scuffles in the craft brewery industry and one thing will become abundantly clear: craft alcohol has a huge trademark problem. Interestingly, craft brewers had had a traditionally amicable set of unwritten rules when it came to trademark disputes, often times choosing to work direclty with each other to find agreeable resolutions and generally being quite awesome to each other when this sort of thing came up. Under those conditions, craft brewing has exploded in popularity and the number of brewers in the United States has likewise exploded. These past two years have seen a departure from the awesomeness of the past, as trademark disputes have become more common. But the latest trademark dispute involving a craft brewery is going to turn this into a whole different animal, as a brewery and a winery are bickering over the term "Northstar." A Washington state wine producer this week filed a lawsuit in U.S. District Court against Boulder's Twisted Pine Brewing Company, alleging trademark infringement and other unfair practices. The suit revolves around the local brewery's award-winning Northstar Imperial Porter, which Ste. Michelle Wine Estates says infringes on its Northstar-brand wine by using the same name. The specific complaint, filed Thursday in Seattle, includes allegations of federal trademark infringement, federal unfair competition, unfair competition under Washington State Common Law, Washington state consumer protection violation and common law trademark infringement. I can't recall whether I did so in public, but I've been telling my fellow Techdirt writers for over a year now that the USPTO needed to get out in front of this exact situation by drawing a distinction between the wine and beer industries. This situation is the reason why. Now that craft breweries are becoming as numerous and popular as the plethora of United States wineries, this clash of brands and terms had to happen. Had a bright line been drawn between these two very distinct industries, which overlap very rarely (winemakers don't often also make beer as a matter of percentages), this suit could have been tossed immediately. Instead, we're forced to ask a really dumb question: would the kind of person likely to buy Twisted Pine's Northstar Imperial Porter be confused into thinking they were buying something from Ste. Michelle Wine Estates because they offer a Northstar-branded wine? No, they wouldn't. Nobody has ever gone out looking for a specific wine brand and wondered if that brand also sold beer. Conversely, nobody has ever gone out to buy a porter brew and wondered if the brewery bothered to make wine for some reason. That both companies sell alcohol doesn't matter any more than the Atlanta Hawks and Chicago Blackhaws are both sports teams: they operate in two different markets and industries. As Brendan Palfreyman, an attorney involved in the alcohol industry, notes, this is all going to come down to the question of how similar wine and beer are. "Often times, an important issue in these types of disputes is the relatedness of the goods, because, in order to find trademark infringement, courts will look to not only how similar the trademarks are, but also how similar the goods here. Here, a key issue will likely be whether the court finds that beer and wine are 'related goods' for trademark purposes." They shouldn't be, period, paragraph. Wine and beer are as distinct as bottled water and soda. Perhaps a ruling in this case will put us on the road to a firm distinction. The craft brewery industry has enough of a trademark problem as it is. Permalink | Comments | Email This Story

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