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When I was in middle-school, Mortal Kombat was released on home video game consoles. Because my friends and I loved the game so much, we used to draw pictures of the characters doing seriously horrible things to one another. As in, rectal-based spine-retrieval type of stuff. It was fun and it was funny...and if we did that today, I have to assume we all would have ended up arrested and in some kind of psychiatric facility. It's the only conclusion I can draw as America begins to build a tradition of penalizing, and in some cases further traumatizing, children for playing make believe in any way that includes a gun or a bomb. But to really get into a situation where stupid adults take some innocuous creativity by a child and use it as a springboard to absolutely mess with that child's state of mind, we must go to Alabama. A Mobile, Ala., mom says school officials forced her daughter to sign a contract promising not to commit suicide or harm others after the kindergartner "drew something that resembled a gun," then pointed a crayon at another kid and said "pew, pew!" 5-year-old Elizabeth was sent home after school officials made her take a questionnaire to evaluating [sic] her for suicidal thoughts, then had her sign the safety contract promising to contact an adult if she was thinking of suicide or homicide. This all happened while her mom waited in the lobby to pick her up, the upset parent told WPMI. Okay, everyone stop what you're doing right now and seriously think about this for a moment. A public elementary school in the United States, an agent for the public good, coerced a five year old into signing a contract promising not to goddamn off herself because she "pew-pewed" with a crayon. You know, that same thing most of us did as children? The thing where you take some object and point it like a gun and make a cartoon noise? Yeah, a five year old was confronted with the concept of suicide by the school over that. According to her mom, Elizabeth didn't know most of the words on the contract she signed. "Suicide," in particular, was a new one for her. "Mommy, daddy, what is suicide?" Elizabeth's mother says she asked. Holy hell, to foist that upon a child so young is insane. Permalink | Comments | Email This Story

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Even before the landmark United States v. Microsoft Corp. antitrust case, competition law was a bit schizophrenic when it came to the question of interoperability. Monopolists have no general duty to make their products work with those of competitors, but what about the situation where a dominant firm deliberately re-designs products to render them incompatible with others? That is the provocative question raised by several pending antitrust lawsuits filed against Green Mountain Coffee, manufacturer of the Keurig line of single-serve coffee makers and coffee "pod" products. TreeHouse Foods alleged in a complaint last winter that after its patent on "K-Cups" expired in 2012, Green Mountain: abused its dominance in the brewer market by coercing business partners at every level of the K-Cup distribution system to enter into anticompetitive agreements intended to unlawfully maintain Green Mountain's monopoly over the markets in which K-Cups are sold. Even in the face of these exclusionary agreements that have unreasonably restrained competition, some companies, such as TreeHouse, have fought hard to win market share away from Green Mountain on the merits by offering innovative, quality products at substantially lower prices. In response, Green Mountain has announced a new anticompetitive plan to maintain its monopoly by redesigning its brewers to lock out competitors' products. Such lock-out technology cannot be justified based on any purported consumer benefit, and Green Mountain itself has admitted that the lock-out technology is not essential for the new brewers' function. In the consolidated multi-district litigation that ensued, Green Mountain is specifically charged with designing a so-called "Keurig 2.0″ brewer which features technology that allows it to detect whether a coffee cartridge is one of Keurig's K-Cups or is made by a third party that does not have a licensing agreement with the company. The machine will not brew unlicensed coffee pods. The federal court overseeing the MDL cases denied the plaintiffs' motion for an injunction on procedural grounds in September, issuing an opinion which reasoned that commercial success of the "2.0" brewers was uncertain and that coffee competitors would still have open access to some 26 million Keurig "1.0" machines for several years. In other words, the court did not reach the merits of the monopolization claim against Green Mountain. So where does that leave Keurig? As Ali Sternburg observed before revelations of its new 2.0 technology, Green Mountain's prior 20 years of patent protection allowed the company to build a competitive advantage by "cultivating its brand (which likely involves trademark protection), honing its supply chain efficiencies, and generally maintaining its dominance due to having the first-mover advantage." More than ten years before those patents first issued, moreover, the federal courts had ruled that new product introductions by monopoly firms — in one well-known instance, Kodak — would not be considered an antitrust violation because "a firm that pioneers new technology will often introduce the first of a new product type along with related, ancillary products that can only be utilized effectively with the newly developed technology." So-called technological ties exist all over the tech world, from smartphone apps that work only with a single website, to PC printers that only accept chip-enabled ink cartridges from the printer manufacturer, to proprietary media DRM protocols such as Apple's AAC format for music, to Sony's failed attempts at proprietary flash-memory stick technology. Yet there's a profound difference between designing a new photographic system like the then-revolutionary Instamatic II in 1978 (subject of the Foremost Pro Color decision quoted above) and re-designing an existing product line to disable competitive substitutes. The Verge called Green Mountain's tactics "locking down its coffee makers to keep out cheap refills." And despite world-class defense counsel, little that Keurig has said so far connotes serious efficiency or product quality advantages to its pseudo-DRM approach to coffee pods. If those are the facts, the courts will be forced to face the competitive merits of the MDL plaintiffs' claims in circumstances in which innovation, the keystone of the doctrine permitting technological tying, is notably absent. Conversely, the first antitrust competitor, TreeHouse, announced in August that it had successfully reverse-engineered the Keurig 2.0 system so that its coffee pod products "will work in both existing and next generation coffee makers manufactured by the leading supplier of personal at-home brewing systems in the United States." Which is it, innovation or predation? Certainly it is impossible to judge from afar or to make generalizations. Under the burden-shifting legal approach to monopolization claims laid out by the Microsoft courts, proof of exclusionary effects require a Section 2 defendant to come forward with a procompetitve rationale for the challenged practices. Keurig claims its pod-detection interactive technology allows 2.0 coffee makers to determine which type of package (including Vue-packs, an earlier Green Mountain technology for larger brew sizes and more intense flavors that never achieved commercial success) has been inserted and offer up the appropriate user interface. "Keurig 2.0's interactive technology is Keurig's platform for future innovation," write the company's antitrust lawyers. As the law stands today in the U.S., antitrust courts recognize that whether any particular act of a monopolist is exclusionary, rather than a form of vigorous competition, can be difficult to discern: "the means of illicit exclusion, like the means of legitimate competition, are myriad." Faced with conflicting evidence and a non-pretextual claim of efficiencies, the MDL court will therefore be required to balance good versus bad — that is, determine whether "the anticompetitive harm of the conduct outweighs the procompetitive benefit." That's a tall challenge in the case of Keurig. Yet it is also one at the cutting-edge of competition law that presents serious ramifications for disruptive innovation. Could Uber be required as an antitrust matter to open its system to Hailo drivers? Is Twitter liable to TwitPic for integrating its own photo-posting function into the 140-character tweet service, thus effectively putting some third-party companies out of business? Are Microsoft, or Google, or Apple required to open their APIs to competitors or, once opened, legally prevented from reverting to a closed ecosystem? Those are competition questions that cannot, and should not, be answered based on either a 30-year old case involving Instamatic cameras and film or a 15-year old case involving Windows '95 and Internet Explorer 1.0. In another context, American courts have long held that First Amendment protection for the free exercise of religion means the judiciary cannot assess whether a belief system that claims to be a religion really is one, because courts lack the basic competence to make such judgments reliably. One could often say the same thing about competition analysis, since differentiating innovation from exclusion is fraught with dangers. One court of appeals has held, as a consequence, that [t]here is no room in [antitrust law] for balancing the benefits or worth of a product improvement against its anticompetitive effects… There are no criteria that courts can use to calculate the ‘right' amount of innovation, which would maximize social gains and minimize competitive injury. A seemingly minor technological improvement today can lead to much greater advances in the future. Indeed, the leading U.S. antitrust treatise concludes that "[b]ecause courts and juries are generally incapable of addressing the technical merits or anticompetitive effects of innovation, they quickly make the relevant question turn on intent. We believe this is the worst way of handling claims that innovation violates the antitrust laws." Yet a black-letter rule of "per se lawfulness" that necessarily prohibited competitors from challenging product re-designs based on facial claims of technological innovation would, in this author's judgment, go too far in the other direction. Hopefully, the Keurig 2.0 antitrust lawsuits will not end as a re-affirmation of the old legal adage that hard cases make bad law. Reposted from the Disruptive Competition Project Permalink | Comments | Email This Story

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Over the summer, the United Nations commissioner for human rights, Navi Pillay, had said that mass surveillance likely violates human rights. At the time, she said: ‟International human rights law provides a clear and universal framework for the promotion and protection of the right to privacy, including in the context of domestic and extraterritorial surveillance, the interception of digital communications and the collection of personal data. Practices in many [s]tates have, however, revealed a lack of adequate national legislation and/or enforcement, weak procedural safeguards, and ineffective oversight. All of these have contributed to a lack of accountability for arbitrary or unlawful interference in the right to privacy.” Now a new report from a different UN official, issued to the UN General Assembly, backs that up and appears to go further: International human rights law requires States to provide an articulable and evidence-based justification for any interference with the right to privacy, whether on an individual or mass scale. It is a central axiom of proportionality that the greater the interference with protected human rights, the more compelling the justification must be if it is to meet the requirements of the Covenant. The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether. By permitting bulk access to all digital communications traffic, this technology eradicates the possibility of any individualized proportionality analysis. It permits intrusion on private communications without independent (or any) prior authorization based on suspicion directed at a particular individual or organization. The report is clear that it's not talking about just any surveillance -- but mass surveillance. It notes that preventing terrorism is a legitimate reason for targeted surveillance, but that since there's no proof that mass surveillance actually helps stop terrorism, it's in violation: Article 17 of the Covenant provides that any interference with private communications must be prescribed by law, and must be a necessary and proportionate means of achieving a legitimate public policy objective. The prevention of terrorism is plainly a legitimate aim for this purpose, but the activities of intelligence and law enforcement agencies in this field must still comply with international human rights law. Merely to assert — without particularization — that mass surveillance technology can contribute to the suppression and prosecution of acts of terrorism does not provide an adequate human rights law justification for its use. The fact that something is technically feasible, and that it may sometimes yield useful intelligence, does not by itself mean that it is either reasonable or lawful (in terms of international or domestic law) The report also takes on the whole "but it's the internet, you have no privacy anyway" argument pretty clearly: Some argue that users of the Internet have no reasonable expectation of privacy in the first place, and must assume that their communications are available to be monitored by corporate and State entities alike. The classic analogy drawn by those who support this view is between sending an unencrypted email and sending a postcard. Whatever the merits of this comparison, it does not answer the key questions of legality, necessity and proportionality. The very purpose of the Covenant’s requirement for explicit and publicly accessible legislation governing State interference with communications is to enable individuals to know the extent of the privacy rights they actually enjoy and to foresee the circumstances in which their communications may be subjected to surveillance. Yet the value of this technology as a counter-terrorism and law enforcement tool rests in the fact that users of the Internet assume their communications to be confidential (otherwise there would be no purpose in intruding upon them). This is reflected in the assertions made by members of the intelligence communities of the United States of America and the United Kingdom of Great Britain and Northern Ireland following the disclosure of mass surveillance programmes operated by these two States, in which the disclosures were said to have damaged national security by alerting potential terrorists to the fact that their communications were under surveillance. [....] The suggestion that users have voluntarily forfeited their right to privacy is plainly unwarranted. It is a general principle of international human rights law that individuals can be regarded as having given up a protected human right only through an express and unequivocal waiver, voluntarily given on an informed basis. In the modern digital world, merely using the Internet as a means of private communication cannot conceivably constitute an informed waiver of the right to privacy under article 17 of the Covenant. The Internet is not a purely public space. It is composed of many layers of private as well as social and public realms. Those making informed use of social media platforms in which messages are posted in full public view obviously have no reasonable expectation of privacy. The postcard analogy is entirely apposite for the dissemination of information through the public dimensions of Twitter and Facebook, for example, or postings on public websites. But reading a postcard is not an apposite analogy for intercepting private messages sent by e-mail, whether they are encrypted or unencrypted. From there, the report notes that if states wish to impede on this privacy in the name of preventing terrorism, they must show tangible benefits from such surveillance -- and, so far, no government has done so. Furthermore, the report warns of: ...an ever present danger of “purpose creep”, by which measures justified on counter-terrorism grounds are made available for use by public authorities for much less weighty public interest purposes. It's good to see such a clear condemnation of the problems of bulk/mass surveillance efforts -- almost always conducted with no evidence of benefit. Of course, the reality is that this report is unlikely to lead the intelligence community to change its stance on these programs, but it further highlights just how out of step with basic human rights these programs remain.Permalink | Comments | Email This Story

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A few weeks ago, we wrote about how Sirius XM had lost its case concerning the public performance rights over pre-1972 sound recordings by the band The Turtles. As we noted, this ruling effectively upset decades of consensus about public performance rights for pre-1972 works. When that ruling came out, we noted that the judge, in a nearly identical case brought by the RIAA, appeared to be leaning in the opposite direction. It appears that the judge, Mary Strobel, read the other ruling and found it convincing enough to lean back in the other direction. While not a final determination in the case, Strobel has issued a ruling (pdf) that makes it pretty clear that Sirius XM is likely to lose, based on her agreement with that other ruling. Having considered the additional authority, the papers submitted and arguments of counsel, the court is persuaded that it should change its tentative ruling. The ruling itself is more of an essay of "on the one hand, on the other hand" arguments, rather than a typical judicial ruling (in many ways making it more readable), with the judge more or less suggesting that she's not entirely comfortable with this outcome, but that based on the plain language of California's state copyright law, this is the best way to read the law. Of course, the real mess here is because of the different treatment of pre-1972 recordings. Congress should have fixed this years ago by just making pre-1972 recordings subject to federal copyright law. Except... the recording industry has actually fought hard against this. The hypocrisy here is huge. While the recording industry has fought so hard against making pre-1972 sound recordings subject to federal copyright laws, now they suddenly want aspects of federal copyright law (like public performance rights which did not exist under previous laws) to apply to those very same works. If Congress made it so those works were under federal copyright, there wouldn't be an issue and all these works would be treated identically. But the truth is that the RIAA wants to keep these works out of federal copyright law to use them as a weapon against internet innovation. With rulings like these, it can hold companies like Pandora hostage, since those works wouldn't be subject to compulsory rates. As always, it's all about the RIAA seeking to hold back innovative services unless they'll go bankrupt in paying the RIAA.Permalink | Comments | Email This Story

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The overuse of antibiotics may be leading us into the "post-antibiotic era" where we'll face numerous bacteria that are resistant to our most advanced drugs. We may need to develop different strategies for identifying antibiotics or try various phage therapies to fend off antibiotic-resistant superbugs. Here are just a few links on finding new antibiotics and using bacteriophages in medicine. If we really met the end of antibiotics without any medicines to fight bacterial infections, it would be horrible. If you think Ebola is scary, just read up on MRSA and KPC-Oxa 48. [url] Tweaking antibiotic drugs can still produce some variants that may extend the usefulness of these pharmaceuticals by several years. A chemically-modified vancomycin has been discovered with 10-100 times the potency of the native compound. [url] The strategy of looking for new antibiotics in natural products has provided diminishing returns as researchers discovered they were finding the same compounds again and again, but new ways to genetically identify microbes could help refine the screening process and avoid redundant targets. Compiling a database of known genes could help identify potentially new antibiotics by highlighting the strains that might be more fruitful for novel drug targets. [url] Viruses are not evil. Bacteriophages actually keep us healthy by infecting and killing off disease-causing bacteria. Phage therapy could be a viable alternative to using antibiotics, but using viruses to fight off infections is not a widely used procedure in Western medicine (yet). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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As Mike has reported, the core of the newly-leaked TPP chapter is about granting Big Pharma's wish-list, with other worrying stuff for the copyright industry's benefit thrown in for good measure. But hidden away in the chapter's 70+ pages there's something very different -- and very dangerous. Here's how the Australian newspaper The Age explains it: The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system. That's clearly an incredibly broad definition of trade secret, and will allow a vast range of materials to enjoy this kind of protection. And by requiring criminal penalties, TPP aims to make that protection very serious indeed: TPP countries may criminalise all such disclosures or, if they wish, limit criminal penalties to cases that involve "commercial advantage or financial gain"; are directed by or benefit "a foreign economic entity"; or are "detrimental to a [TPP] party's economic interests, international relations, or national defence or national security." Notice that those are simply options: the default position is to criminalize everything. Moreover, even those "limited" cases could be applied very widely. Particularly troubling is the following aspect of the proposed text: There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the "economic interests" of any TPP country. The chilling effect that this would have on investigative reporting is evident. It would also represent yet another powerful reason not to become a corporate whistleblower. The presence of this section in the latest TPP text is not a complete surprise: a slightly shorter version was already in the previous leak of this chapter, as we reported earlier this year. Moreover, its appearance in TPP seems to be part of a larger push for stronger protection of trade secrets around the world. In 2013, the European Commission proposed new rules "to help protect against the theft of confidential business information." One of the questions in the accompanying FAQ was whether trade secret protection will be part of TAFTA/TTIP. Here's the reply: Trade secrets will be discussed in the TTIP negotiations, and has a heightened level of relevance with the recent allegations of economic espionage carried out by the national Security Agency (NSA). One goal could be to make sure that the two legal regimes are inter-operative facilitating recognition and enforcement of judgments on either side of the Atlantic. The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries. That's a clear signal that trade secrets will indeed be part of TAFTA/TTIP. Unfortunately, the latest TPP leak gives a pretty good idea of just how bad they are likely to be. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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FBI Director James Comey has doubled down on his basic attack on technology and privacy with a speech at the Brookings Institution entitled "Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course." He admits that he wants "every tool" available to law enforcement, and he's worried about that darn tech industry for wishing to keep users' information private. He calls it a "public safety problem." Others may disagree. Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem. We call it “Going Dark,” and what it means is this: Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so. We face two overlapping challenges. The first concerns real-time court-ordered interception of what we call “data in motion,” such as phone calls, e-mail, and live chat sessions. The second challenge concerns court-ordered access to data stored on our devices, such as e-mail, text messages, photos, and videos—or what we call “data at rest.” And both real-time communication and stored data are increasingly encrypted. Of course, many of us look at that encryption itself as a public safety issue on the other side. Greater encryption allows people to communicate safely, securely and privately -- which is an important public safety consideration. The simple fact is that crimes have been committed throughout human history without the ability of law enforcement to eavesdrop on people. It's merely an accident of history that so much communication recently has had backdoors and holes by which eavesdropping was even possible. Closing those doors doesn't mean law enforcement can't solve crimes, and it's silly to mandate backdoors when it's not necessary and can create more problems. Comey seems particularly annoyed that the tech industry is locking stuff up in response to the Snowden revelations, because he argues, that's blocking all sorts of other stuff he'd like to have access to: In the wake of the Snowden disclosures, the prevailing view is that the government is sweeping up all of our communications. That is not true. And unfortunately, the idea that the government has access to all communications at all times has extended—unfairly—to the investigations of law enforcement agencies that obtain individual warrants, approved by judges, to intercept the communications of suspected criminals. Some believe that the FBI has these phenomenal capabilities to access any information at any time—that we can get what we want, when we want it, by flipping some sort of switch. It may be true in the movies or on TV. It is simply not the case in real life. It frustrates me, because I want people to understand that law enforcement needs to be able to access communications and information to bring people to justice. We do so pursuant to the rule of law, with clear guidance and strict oversight. But even with lawful authority, we may not be able to access the evidence and the information we need. Again, there's an interesting sense of entitlement there. There's lots of information law enforcement would like to have, and even may legally have the right to have, but which they cannot have. And that's been true throughout history, and law enforcement has survived and crimes have been stopped and criminals caught and prosecuted. What Comey is advocating here is to make everyone less safe just in case law enforcement wants it. That's a problem. Bizarrely, Comey is quite upset that companies are now marketing the fact that they keep you secure. Encryption isn’t just a technical feature; it’s a marketing pitch. But it will have very serious consequences for law enforcement and national security agencies at all levels. Sophisticated criminals will come to count on these means of evading detection. It’s the equivalent of a closet that can’t be opened. A safe that can’t be cracked. And my question is, at what cost? The cost of privacy and trust. Which are, you know, kind of important too... And then he goes back to his simply wrong declaration that this is about making people "above the law." But that's not true. There is no legal requirement that this information be available. It's not above the law at all. Being above the law means ignoring the law and getting away with it. But, to Comey, being above the law is apparently doing stuff that makes the FBI's job marginally more difficult. I hope you know that I’m a huge believer in the rule of law. But I also believe that no one in this country should be above or beyond the law. There should be no law-free zone in this country. I like and believe very much that we need to follow the letter of the law to examine the contents of someone’s closet or someone’s cell phone. But the notion that the marketplace could create something that would prevent that closet from ever being opened, even with a properly obtained court order, makes no sense to me. I think it’s time to ask: Where are we, as a society? Are we no longer a country governed by the rule of law, where no one is above or beyond that law? Are we so mistrustful of government—and of law enforcement—that we are willing to let bad guys walk away...willing to leave victims in search of justice? And then there's this: He's not a scaremonger, but you should be afraid: I’ve never been someone who is a scaremonger. But I’m in a dangerous business. And, of course, he wants Congress to step in and fix things for him, making everyone less safe: We also need a regulatory or legislative fix to create a level playing field, so that all communication service providers are held to the same standard and so that those of us in law enforcement, national security, and public safety can continue to do the job you have entrusted us to do, in the way you would want us to. A "level field"? Really? The field has been tilted strongly towards the FBI and NSA for well over a decade. It's only now, with further encryption, that it's been leveling out...Permalink | Comments | Email This Story

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Nintendo: it protects what it believes it owns with great vigor. The company has rarely missed an opportunity to make sure that other people are not allowed to alter or mess with the stuff Nintendo insists is Nintendo's. In an apparent effort to maximize the irony combo-meter, Nintendo also has been known to make sure that customers don't mess with or alter the properties those customers actually own, such as online support for games that Nintendo decided to alter long after purchase... just because. But the cold grip of Nintendo's control over its customers' property is apparently no longer limited to games. Nintendo recently released an update for the Wii U that forces you to "agree" to a new end-user license agreement, or else it simply bricks the console altogether. This is how Nintendo's update to its end-user license agreement (EULA) for the Wii U works, as described by Youtube user "AMurder0fCrows" in this video. He didn't like the terms of Nintendo's updated EULA and refused to agree. He may have expected that, like users of the original Wii and other gaming consoles, he would have the option to refuse software or EULA updates and continue to use his device as he always had before. He might have to give up online access, or some new functionality, but that would be his choice. That’s a natural consumer expectation in the gaming context – but it didn’t apply this time. Instead, according to his video, the Wii U provides no option to decline the update, and blocks any attempt to access games or saved information by redirecting the user to the new EULA. The only way to regain the use of the device is to click "Agree." It immediately brings to mind Sony's similiar move with their Playstation 3 product, in which the company unilaterally pushed out an update that would strip the console of serious functionality, including the ability to run other operating systems. It was something users had specifically wanted when they bought the console, and an update was pushed out to then take it away from them, but at least the update could be refused. There were consequences to refusing the update, but it didn't brick the console. Nintendo, in other words, is now officially worse than Sony when it comes to screwing with the console property of their customers. As the EFF post notes, this represents the latest step in a very troubling trend for consumer rights. It's a practice no longer even limited to the digital world, with physical products now including different kinds of DRM or methods to break the product if any payment issues arise. This also only continues to happen as long as customers put up with it. Nintendo may end up learning that lesson the hard way.Permalink | Comments | Email This Story

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When the Supreme Court ruling in the Aereo case came out, we noted that beyond the bizarre "looks like a duck" test that the Supreme Court made up on the spot, it also appeared to leave open the possibility that Aereo could survive if it simply added a mere delay to its streaming. That's because a key part of the "looks like a duck" test to make Aereo's service a "public performance" was that the shows were streamed "contemporaneously." As Justice Scalia pointed out in his dissent, without any further clarification in the majority ruling, it certainly sounds like Aereo could just function as a remote DVR and be fine. Back in the district court this week, however, the same judge who had originally ruled in Aereo's favor, now seems to believe that the Supreme Court's decision completely wiped out Aereo's chances altogether. This is the problem with these kinds of Supreme Court rulings, where they rule with a focus on one particular aspect (in this case "contemporaneous" viewing) and lower courts interpret it to mean all of Aereo was ruled illegal. This same sort of thing happened with the Grokster case, in which the Supreme Court ruled that Grokster was guilty because of its related actions that "induced" infringement, and the RIAA/MPAA and others simply assumed that the court said all file sharing is illegal. In this case, Aereo went before Judge Alison Nathan to present it with a few different arguments over how the company could stay in business -- either by paying licenses as a cable operator or by time shifting, etc. -- and the judge didn't seem to think any option was available to the company. As the Hollywood Reporter notes, her response was: "Just as a matter of finality, how many bites at the apple does one get?" I would think that the answer is as many bites as is legal, no? All of the proposed alternatives by Aereo are clearly in direct response to the Supreme Court's specific "looks like a duck" ruling. Aereo isn't trying to challenge that, it's looking to work within the rules the Court established. Yet, once again, we see people taking Aereo's efforts at complying with the specific law as laid out by the courts, and interpreting it as somehow circumventing the law. Either way, Aereo has the stigma of "lost at the Supreme Court" attached to it, and it appears that any attempted solution to actually comply with the Supreme Court's ruling will be seen as not being allowed because it's merely trying to get "another bite at the apple."Permalink | Comments | Email This Story

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For years, we've discussed the ridiculous and unnecessary secrecy concerning trade agreements negotiated by the USTR. The text of the negotiating documents and even the US's general position is kept secret until the very end, at which point concerns from the public and innovators no longer matter. Instead, the USTR relies on legacy industry "advisors" who are mostly interested in protecting what they have from disruption, change and innovation. For all the talk of how these agreements are "free trade" agreements, they tend to be anything but. They are focused on protecting a few industries against competition, disruption and innovation. The former US Trade Rep Ron Kirk was unusually honest a few years ago in admitting that these agreements would never get adopted if the public actually knew what was in them. A year ago, Wikileaks helped leak the "Intellectual Property" chapter of the Trans Pacific Partnership (TPP) agreement, and now it's done so again with a more recent version of the chapter. Public Citizen has put together a thorough analysis, highlighting a key change: the US pushing to delay access to affordable treatments for cancer and other diseases, in direct contrast to the pledges of the Obama administration. Large brand-name drug firms want to use the TPP to impose rules throughout Asia that will raise prices on medicine purchases for consumers and governments, and be in effect for the next several decades. With billions at stake, Big Pharma wants the TPP to be a road map for rules that will govern Pacific Rim economies for the next several decades. A U.S. proposal in the text – to provide long automatic monopolies for biotech drugs or biologics, which includes most new treatments for cancer – contradicts the policies included in recent White House budgets and if adopted would undermine key cost savings touted by the administration. The past budgets have included a specific pledge to shorten the same monopoly periods so as to reduce cost burdens on Medicare and Medicaid. If the TPP is ratified with this U.S.-proposed provision included, Congress would be unable to reduce monopoly periods without risking significant penalties and investor-state arbitration. Thankfully, other countries appear to be pushing back on this proposal, but the US is always the 800-pound gorilla in these negotiations. Still, as Wikileaks summarizes, the US is pushing strongly for "drug-company friendly" language that undermines existing agreements under TRIPS. In particular, TRIPS has long allowed countries to authorize the production of cheaper generic drugs to deal with significant health problems. Big Pharma -- showing how it really feels about public health -- has been angry about this for years, and appears to be using TPP as a vehicle to try to undermine it. Of course, they know better than to kill off this provision entirely, but rather, are looking to undermine it. Wikileaks explains: Also new in the May 2014 text is a "drug company-friendly" version of the TRIPS agreement for compulsory licensing of vital drugs patents. This is a diminished version of the TRIPS agreement that was present in the 2013 text. In theory, by issuing a compulsory licence, a government can authorise cost-cutting generic competition with patented drugs, in exchange for royalty payments to the patent holder. It is a key tool to promote affordable access to medicines. The new exceptions are set out here and here, having deleted the option for "Other Use Without Authorisation of the Right Holder" in the August 2013 text. The current global norms for justifying exceptions to patents are set out in the TRIPS agreement under either Article 30 or 31. Article 30 is a 3-step test that is restrictive in what it grants exceptions for, and is open to interpretation with regards to procedures for doing these tests. Article 31 (referred to in the August 2013 text and now gone) is the one generally used on all compulsory licensing for HIV and cancer drugs. Whilst it is more restrictive, it is limited to cases where patent holders are paid, so as long as a drug qualifies (as most HIV and cancer drugs do) it is possible to get an exception to the patent held by big pharmaceutical companies, breaking big pharma's monopoly on life-saving drugs. However, the new version of the text of the TPP IP Chapter has deleted the option to use this assessment procedure, requiring many judgement calls on aspects such as how this might "prejudice" the patent holder. This will mean that the procedure is more restrictive and open to interpretation, and therefore lobbying and manipulation. In short, the TPP will greatly reduce the ability for creating more affordable drugs to save more lives, and increase the pharmaceutical industry's ability to retain monopolies. Elsewhere in the document, we see that the US and Japan (who appear to be aligned a lot against everyone else) are pushing for the following: For greater certainty, a Party may not deny a patent solely on the basis that the product did not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features establishing that the invention is new, involves an inventive step, and is capable of industrial application. Consider this to be the "Eli Lilly clause." As you may recall, Eli Lilly is currently demanding $500 million from Canada under a corporate sovereignty ("investor state dispute settlement" or ISDS) tribunal, because Canada rejected some of its patents for not being any more effective than existing offerings. For most of us, it seems like a perfectly reasonable reason to reject a patent: your patented drug doesn't do anything to make it more useful than existing products. Canadian law agrees. But big pharma, like Eli Lilly flips out, because they want to produce new drugs that they can patent as old patents run out, hoping to trick people into wanting the new, much more expensive "new new thing" rather than the old, generic, cheaper offering that is just as (if not more) effective. A bunch of countries are pushing for the right to cancel a patent if it "is used in a manner determined to be anti-competitive," but of course, the US and Japan are completely against such a thing. Instead, the US and Japan say it should only be cancelled on grounds that would have been justified for refusing to grant the patent in the first place. In other words, most of the countries recognize that patents can be abused in anti-competitive ways and want to protect against that. The US and Japan, on the other hand, appear to be happy with enabling anti-competitive abuses with patents. That says something. In the copyright section, it appears that US goes beyond existing US law in asking that "making available" be considered one of the exclusive rights protected under copyright law. Some US courts consider "making available" to be considered part of the "distribution" right, but others have disagreed (saying that the distribution right only covers works that have actually been, you know, distributed). While the legacy entertainment industry likes to pretend this is settled law and merely making available equals distribution, that's not entirely clear. No matter, in the agreement, the US (and Japan) push to require everyone to include "making available" as an exclusive right for copyright holders. There was great fanfare a few years ago when the USTR announced that, for the first time ever, it would include some language about fair use to appease those who were concerned about how these agreements only ratcheted up the enforcement side of copyright, and not the public's rights. Except, when the details finally leaked, we realized the proposed language was actually about limiting fair use by putting a much stricter definition on it. That language is still in the agreement. There still appears to be debate about copyright term length, with at least some pushing to extend the copyright term, because, hey, copyright terms always expand. This comes despite even the head of the Copyright Office agreeing that copyright terms should be reduced. The US is also looking to definitively kill off any chance of an Aereo-like solution (even if Congress were to pass a law in response to the Supreme Court), by saying that such a service shall not be allowed without authorization of the copyright holder. The agreement would also extend broken anti-circumvention rules that block non-infringing and perfectly reasonable uses. The US is (of course) pushing for more criminal copyright efforts (Vietnam and Malaysia are pushing back). The US, against pretty much everyone else, is also pushing for statutory damages to be a necessary option for civil copyright cases, despite the massive problems we've seen with statutory damages in the US and how it enables shady practices like copyright trolling. There's a lot of debate about whether or not recording a movie in a theater should be a criminal act. The US, of course, is pushing for what appears to be an extreme definition where any recording should absolutely be seen as criminal. Other countries would like it to be more flexible, leaving it up to the countries to decide if they want to make it criminal. Singapore says the taping should be willful, and Mexico says it should only apply to a significant part of the film. The US doesn't care. If you accidentally record a bit of a movie? Go to jail. There's a lot more in there, but, once again you can clearly see why the US remains so against any transparency at all in these negotiations. Having to actually answer for why they're only concerned with protecting the rights of the legacy copyright industry and pharmaceutical industries, while paying little to no attention to the impact on public health, knowledge and innovation, would apparently put a damper on their future job prospects.Permalink | Comments | Email This Story

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For those who lived through the late 90's cryptowars, it's beginning to feel like history is repeating itself. We've seen the series of recent stories about the US government's misguided, FUD-based freakout over some recent moves to enhance privacy through more widely usable encryption, but now we're reaching the stage of the game where the government also starts attacking the "export" of cryptography. If you don't remember, a key part of the original cryptowars was over whether or not strong cryptography could be classified as a weapon, and subject to significant export controls. Thankfully, that idea was mostly scrapped, and encryption flourished, helping to make the internet and other technologies much safer. However, it appears the government is back to going after the export of encryption, as the Department of Commerce recently fined Intel subsidiary Wind River Systems $750,000 for exporting products that included encryption to China, Hong Kong, Russia, Israel, South Africa, and South Korea. While most had recognized that sending encryption (or, well, just about anything) to places like Iran, Cuba and North Korea might be problematic, most people had assumed that other countries, like those on the list above were no big deal. As the linked article (from law firm Goodwin Procter) points out: We believe this to be the first penalty BIS has ever issued for the unlicensed export of encryption software that did not also involve comprehensively sanctioned countries (e.g., Cuba, Iran, North Korea, Sudan or Syria). This suggests a fundamental change in BIS’s treatment of violations of the encryption regulations. Historically, BIS has resolved voluntarily disclosed violations of the encryption regulations with a warning letter but no material consequence, and has shown itself unlikely to pursue such violations that were not disclosed. This fine dramatically increases the compliance stakes for software companies — a message that BIS seemed intent upon making in its announcement. Furthermore, the report understates the simple fact that "encryption is ubiquitous in software products" these days. And that's something that's only growing (a trend that should continue as encryption is increasingly important). But if the Commerce Department has suddenly decided to pick a fight over this issue, it could create a real competitive disadvantage for American tech companies trying to offer products around the globe. So, not only has the US government undermined the US tech industry through surveillance and backdoors, now it's looking to make it more difficult to build in encryption that better protects against such intrusions. It's almost as if the government wants to cede technology leadership to other countries.Permalink | Comments | Email This Story

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A couple of months ago we mentioned the long-running legal battle between the Swedish energy company, Vattenfall, which is suing Germany using corporate sovereignty provisions in the Energy Charter Treaty after the German state decided to phase out nuclear power stations. The rumored figure we mentioned then was the already-generous €3.7 billion; but it has just been revealed that Vattenfall is actually demanding even more -- €4.7 billion, to be precise. We know this is the real figure, because it was mentioned by Germany's Minister of the Economy, Sigmar Gabriel (original in German.) This fact may help to explain persistent reports that Germany will not agree to the inclusion of an investor-state dispute settlement (ISDS) chapter in either TAFTA/TTIP or CETA (the Canada-EU trade agreement). Germany is already experiencing first-hand the dangers of such corporate sovereignty provisions, and clearly wants to avoid suffering any more on this front. The latest information, reported by the German news magazine Der Spiegel, points out that two other energy companies, RWE and E.on, are unable to sue in the same way as Vattenfall, because they are German companies, and the ISDS option is only available to foreign investors. This underlines the fact that, far from creating a level playing-field, corporate sovereignty is biased against local companies. For this reason, RWE and E.on are also trying to sue in Germany's national courts in order to obtain compensation, as Vattenfall is doing with the ISDS tribunals; whether they can depends on a ruling from Germany's constitutional court, due early next year. Interestingly, Vattenfall is also suing the German government through these courts -- which shows how ISDS gives foreign investors extra ways of claiming compensation. Finally, the Der Spiegel article points out that the original estimate of the potential costs to the German government (and thus to the German taxpayer, who has to pick up the bill) from the action in the national courts, which were put at between €15 billion to €20 billion, are probably too high. That's because the price offered for supplying electricity has now dropped, bringing down potential profits too. That demonstrates the danger of granting corporate sovereignty tribunals unchecked power to make awards in favor of companies based purely on the latter's probably exaggerated claims about uncertain "losses" far into the future. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Fusion has been a promising potential energy source for decades. The joke is that it's always just 30 years away. Every so often, people working on various forms of fusion make some news with press releases claiming that they've discovered some revolutionary new way to achieve cheap/free/clean fusion. But whenever a fusion science "breakthrough" is announced in a press release in lieu of a peer-reviewed journal, it usually turns out to be disappointing. Everyone wants to see fusion energy become a reality, but it'd be nice to see real scientific progress towards it instead of promotional hype to boost the reputation of a lone inventor or a company's skunkworks program. It's great to be optimistic about the future of fusion; just don't cry "wolf" too many times, okay? Lockheed Martin has issued a press release claiming a "breakthrough" in fusion and a prediction that they'll have a working prototype within the next 5 years. This new approach appears to achieve a "high beta" so that more plasma can be contained, but it would be nice if more of the science were publicly available -- especially before the press release. [url] University of Washington engineers have proposed a fusion reactor design they call the dynomak which could produce energy more cheaply than coal. Getting to a breakeven point might be a bigger hurdle than making fusion energy cheap. [url] Andrea Rossi’s E-Cat device is a "cold fusion" (or low-energy nuclear reaction, LENR) generator that claims to produce oodles of energy without any waste or any negative side effects whatsoever. Independent verification of this device's capabilities is claimed, but what is really necessary is independent replication of this device. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Earlier this year, FBI Director James Comey suggested that the FBI might consider backing off its policy of refusing to hire anyone who has used marijuana in order to find competent computer folks who can deal with online crimes. After some backlash (and some support) for those statements, Comey quickly backed down, claiming it was all just a joke. Now, TorrentFreak has revealed that beyond pot smoking disqualifying you, so might your history of downloading some music and movies. This came up at a Sacramento State Career Center information session held by the FBI, where the FBI made it clear that your downloading practices matter to the agency. “If you’re doing that, stop doing it.” Dupree said. He explained how the FBI will ask people during interviews how many songs, movies and books they have downloaded because the FBI considers it to be stealing. During the first two phases of interviews, everything is recorded and then turned into a report. This report is then passed along to a polygraph technician to be used during the applicant's exam, which consists of a 55-page questionnaire. If an applicant is caught lying, they can no longer apply for an FBI agent position. “If you are accepted to intern at FBI and fail the polygraph you can no longer apply to FBI again.” Dupre said. From the sound of that, your history might not fully disqualify you, but it may come up again later in the process. TorrentFreak, though, found a post from a few years ago on a job board, where someone says that his downloading past kept him from being hired by the FBI. It's interesting to note that TorrentFreak also turned up an article saying that downloading unauthorized content does not disqualify you from the CIA. The difference here actually makes some sense -- since the FBI actually does handle some cases involving copyright (though, that still seems ridiculous). Either way, if the FBI is barring people who use pot and who have infringed on copyrights, they're going to find themselves with an increasingly limited supply of computer experts for its computer crimes division.Permalink | Comments | Email This Story

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For years, plenty of people have been wondering why HBO absolutely refused to offer a standalone internet offering for cord cutters (and cord nevers), with the general response being that "the math" was against it. Basically, HBO gets a ton of money from cable, and every time new customers sign up, that's free money for HBO without having to spend anything on marketing. A standalone product may not even bring in as much money and would require HBO to do more marketing efforts on its own for the offering. Of course, as we pointed out in response to that argument, "waiting for the math to make sense" is a kind of predictor for legacy companies that wait too long to innovate and find that the future has become the present while they're still in the past. Eventually, the timing was going to be right, and apparently HBO has decided that time is now. Or, at least, sometime next year. The company announced plans to launch a stand-alone internet offering leading to much speculation. Actual details are lacking, and there's some speculation that it might be a very different product than the current HBO Go offering. Some are saying it may actually be in coordination with another player (like Amazon or Hulu). Reading too much into at this point doesn't do much good. Of course, this has also led to some speculation that it may increase people cutting the cord -- and that's likely true for the segment of the population that has cable for HBO (duh) and not for sports (a bigger driver). However, the real point here may be that where HBO goes, others are likely to follow -- including sports. HBO's decoupling with cable TV may not single-handedly change the cable TV market, but it's a sign of a much larger shift that started long before and is now dragging HBO along with it. The traditional cable TV market has been ripe for disruption for quite some time. This is just a single mile marker in an ongoing process.Permalink | Comments | Email This Story

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We've been quite critical of so-called corporate sovereignty provisions in various trade agreements. These provisions -- which trade negotiators prefer to call "investor state dispute settlement" (ISDS) rules (in part because they're so boring when called that, no one pays attention to how pernicious they are) -- basically allow companies to take governments to special tribunals, if new laws and regulations somehow interfere with their attempts to profit. A key example of how this is used under existing (via NAFTA) corporate sovereignty provisions is Eli Lilly demanding $500 million from Canada for daring to reject two of its patents because the drug in question didn't actually prove to be useful. Eli Lilly claims that this undermined the company's "expected future profits" and thus filed this suit, undermining the sovereignty of the country of Canada to determine what is, and what is not, patentable. Another popular use of corporate sovereignty claims is the tobacco industry, going after countries that pass "plain packaging" laws (which say that all cigarette packaging needs to be without logos and trademarks and such). Whether or not you agree with such laws, the idea that big tobacco companies can take entire countries to these tribunals, demanding many millions of dollars based on laws those countries decided to pass, seems troubling. It's especially been concerning to health officials who have long favored plain packaging regulations. Apparently, the latest move to salvage corporate sovereignty provisions in the Trans Pacific Partnership (TPP) agreement has the USTR attempting to throw Big Tobacco under the bus by removing tobacco from the ISDS provisions. This is an incredibly cynical and political move, designed to try to quiet some of the health activists' talking points about the plain packaging fights -- while leaving the overall basis of these corporate sovereignty provisions wholly in place. While I don't always (or often) agree with the AFL-CIO, its response to this cynical attempt to carve Big Tobacco out of the deal is dead on: The proposed carve-out will not stop multinationals like Veolia from suing the government of Egypt for raising the minimum wage. It won’t stop the pharmaceutical giant Eli Lilly from suing Canada over patent requirements or stop extractive company Pacific Rim Mining (a Canadian company that has since been bought by the Australian multinational OceanaGold) from demanding compensation when El Salvador refuses to let it pollute the local water supply by operating a gold mine. Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision. In fact, the cheap attempt by the USTR to toss Big Tobacco under the bus to get a deal done really does more to underline the problems of corporate sovereignty positions, rather than to help smooth things over. If ISDS isn't appropriate for Big Tobacco, why is it appropriate for Big Pharma? Or big mining companies? The USTR has continued to push out-of-date regulatory concepts into modern trade agreements. These are clearly designed not with the public interest in mind, but with a focus on what's best for the representatives of a few giant companies who are close to the USTR. Helping a few giant multinationals undermine regulations around the globe may be good for future job prospects in the industry, but it's hardly the incentives we should want for public servants.Permalink | Comments | Email This Story

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posted 16 days ago on techdirt
It's amazing how often trademark claims are used simply as a tool for censoring critics. A legal framework that is supposed to be about protecting consumers has been twisted into a strong-arm thug. That said, most times the plaintiffs in these cases at least make a show of pretending that they aren't simply trying to suppress critical speech -- even if the courts frequently see right through those attempts and opt to protect free speech. That doesn't appear to be the case in one federal court in Virginia, which has failed to protect the mocking speech of conservative group Radiance Foundation in a blog post criticizing the NAACP. In that case, Radiance Foundation v. NAACP, the fight was over a blog post that criticized the NAACP. The Radiance Foundation is a conservative non-profit that advocates for what it perceives to be appropriate family values. In a blog post titled “NAACP: National Association for the Abortion of Colored People,” Radiance claimed that the NAACP embraces “all things liberal, most things socialistic, and nothing pro-life.” The NAACP responded with a letter to Radiance threatening a lawsuit if it did not cease “using” the NAACP’s trademark. Radiance called on the courts for protection, asking for a declaration the blog post was protected speech. After a bench trial, Judge Raymond Jackson ruled against Radiance, finding that the post infringed the NAACP’s trademark and giving little credence to Radiance’s First Amendment claim. I'm not entirely certain where the misunderstanding on the judge's part is here, but it's been well-established that the First Amendment, and criticism in particular, trumps trademark law. The Radiance Foundation's speech, while wholly obnoxious, is and ought to be protected. As a group that relies on the criticism of well-established powers to advance its agenda, I would think the NAACP would want to be especially careful not to erode the power of free speech in the land it hopes to change. Attempting to apply trademark law to political speech instead of simply economic speech, meaning advertising, is a dangerous step. The EFF in particular appears eager to get involved in the case. Today EFF, together with the ACLU of Virginia, filed an amicus brief in the appeal of this ruling. We are supporting Radiance’s appeal not because we agree with its message, but because a decision holding it liable for trademark infringement threatens a huge range of expression. Our brief explains that Judge Jackson’s decision misreads both trademark law and the First Amendment. There are many cases holding that use of a trademark in speech commenting on or criticizing the trademark owner is not infringement. Moreover, the First Amendment provides an independent reason for dismissing this trademark claim. We hope the Fourth Circuit agrees and protects the right to mention or mock a trademark, just as it protects the right to mock a trademark owner. It's the right decision and a great place to take a stand, because it highlights the ideal: the protection of free speech, even if it is speech with which one disagrees. DV.load("//www.documentcloud.org/documents/1312880-eff-alcu-amicus-brief-radiance-v-naacp.js", { width: 560, height: 550, sidebar: false, text: false, container: "#DV-viewer-1312880-eff-alcu-amicus-brief-radiance-v-naacp" }); Eff Alcu Amicus Brief Radiance v Naacp (PDF) Eff Alcu Amicus Brief Radiance v Naacp (Text) Permalink | Comments | Email This Story

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Eugene Volokh points our attention to yet another bizarre copyright case, Denison v. Larkin, in which lawyer Joanne Denison argued that the Illinois Attorney Registration and Disciplinary Commission (IARDC) infringed on her copyrights by using portions of her own blog as evidence against her during a disciplinary proceeding. Not surprisingly, the court soundly rejected this particular interpretation of copyright law. Basically, Denison created a blog about what she and some others believed was "courtroom corruption" concerning a particular 90-year-old woman. Some of those involved in the story filed a disciplinary complaint against Denison, "alleging professional misconduct in making false statements on her Blog." The complaint itself included "15 paragraphs of text" from the blog. Further, she claims that the IARDC "copied over 1,000 pages of the Blog and 'then incorporated [it] into further exhibits.'" She also sued Nextpoint, a company that the IARDC apparently used to save copies of the blog. The (rather patient) court goes through a full fair use analysis, finding (rather easily) that all four of the traditional "fair use factors" weigh heavily in favor of fair use. Based on that, it finds no direct infringement -- and without any direct infringement, the claims of contributory and vicarious infringement fail as well. Amusingly, Denison tried to argue that the "commercial use" fair use factor weighed in her favor because "the IARDC sells its decisions to companies such as Lexis Nexis and Westlaw for paid or unpaid benefits." The court rather simply points out: "This statement is unfounded." In the end, it was an easy fair use win (and those are always handy), though this case appeared to be absurd from the start. So it's great to see the court make quick work of it without causing any trouble to fair use.Permalink | Comments | Email This Story

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Whether you believe Austin's SXSW to be a venerated institution or believe it's outlived its usefulness, you probably believe the last thing it should do is morph into a many-tentacled IP monster a la the Olympics or the Super Bowl. And yet, that appears to be something those behind SXSW seem to be considering. SXSW consulted with Populous, the design and planning committee that has worked with organizers for the Olympics, the World Cup and the Super Bowl in the past. Dan Solomon of Texas Monthly notes that most of the outrage aimed at this partnership has very little to do with impending IP ridiculousness and thuggery, but rather at the possibility that SXSW might have to relocate at some point in the future. Immediately, local media seized on the idea that SXSW is implicitly threatening to move out of Austin if the massive changes suggested in the report regarding the way the city and the festival interact aren't made. The Austin Business Journal ran with the headline "Festival overload could force SXSW to move away from Austin, report says," while Culturemap Austin asked, "Bullying tactics or lack of options? SXSW says without changes it may leave Austin." But that's not the biggest story here, says Solomon. He quotes SXSW co-founder Roland Swenson as saying its basically "unimaginable" that the conference would be held anywhere but Austin. It's not the nearly-nonexistent threat of relocation. It's the potential re-imagining of SXSW as a something more notable for its IP enforcement than for its many concerts and events. The more disturbing recommendations are laid out in terms that wouldn't look out of place in Philip K. Dick's dystopias. Or Anthony Burgess's, for that matter. It recommends the creation of a "Legal Injunctive Zone," or a "Clean Zone." According to the report, the "Clean Zone" would be a perimeter around some part of the city that: "protects the brand equity of SXSW and its sponsors but would be made to work with existing businesses and their interests so as to uphold sponsor values and private property rights—in return this may involve a financial exchange linked to the permit process that provides the City with additional funding for security and safety personnel." The report also recommends "soft searching" attendees for "forbidden items" -- presumably anything not bearing a major sponsor's logo -- as well as busting up nearby events not officially sanctioned by the SXSW committee. In order to ensure the profitability of SXSW, the city will have to abandon its equitable treatment of vendors and event organizers. The current policy of the City with respect to the permitting process as ‘first come, first served’ and/or ‘must treat everyone equally’ appears to have become detrimental to event planning process and management of the key stakeholder interests. The SXSW event is one of the largest events in the world, and bespoke treatment is needed to facilitate a continuing safe event in Austin. Note that the report conflates profitability and protection of sponsors' interests with "safety." It speaks highly of "brand equity" and uses these buzzwords to justify the deployment of tactics sure to land SXSW on the receiving end of First Amendment lawsuits. "Clean Zone" ordinances tend to pop up in cities with one-time events like the Super Bowl or the All-Star Game, and their constitutionality is usually challenged quickly: The ACLU sued the city of New Orleans over theirs before the Super Bowl in 2013, resulting in a settlement that restored most of the rights that were restricted before the event. A federal lawsuit filed in Dallas was settled in 2012 after a man was cited by police for having a van with Best Buy logos on it within the Super Bowl clean zone. The organizers may feel the current business model -- one that allows non-SXSW entities to benefit from the influx of attendees without kicking back a portion of the revenue -- is unsustainable in the long term. It may be, but the workarounds suggested here are much worse, especially in the long term. "Clean zones" tend to end up in lawsuit settlements that are either late-breaking compromises, or months (or years) later cash payouts, as in Dallas. But the questions surrounding a SXSW clean zone would be harder to kick down the road, given that the event happens every year. SXSW may be making more of an effort to protect its image and secure its legacy, but following these suggestions will only make the event more famous for the antics of its IP enforcers than for the concerts and conferences held under its name. It's one thing when a once-in-a-decade or once-in-lifetime event puts a city under the control of "brand equity" martial law. It's something else entirely when it's year after year. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Don Henley, poster boy for IP reform and former member of some band from the 70's, is back in the legal news again thanks to his tireless, misguided efforts to "protect" he and his former band's creations from the "harmful" actions of others. For being such a die-hard defender of intellectual property rights, Henley sure doesn't seem to have much of a grasp on the underlying laws and concepts. This is a guy who thinks the world would be a better place if the DMCA were rewritten to hold third party platforms and services responsible for the infringing acts of their users. This is also a guy who hates having his music covered by others -- so much so that he and a bunch of his peers (pretty much literally: the group included Steven Tyler, Joe Walsh and Sting) signed off on a letter opposing the creation of a compulsory license for remixes. Henley doesn't want anyone covering his tunes, but he can't do much about it, thanks to compulsory licensing. Now he's fighting to prevent anyone from remixing his work without his permission. (Which, of course, won't be granted. He doesn't even allow the licensing of his creaky 40+-year-old classic rock standards in his catalog.) Knowing that, it comes as no surprise that Henley would sue a retailer for having the audacity to use a play on words in its advertising that indirectly calls to mind a radio hit from his old band, whose name I certainly won't be mentioning. This is the ad that triggered Don Henley's lawsuit: Marie-Andree Weiss runs down all of the details of Henley's claims against the t-shirt maker and they are several. First, there's the trademark infringement claim, because Don Henley has trademarked his own name, but only specifically for studio recordings and live music. So, in this case, Henley can't argue that it violates his specific trademark. Instead, he'll likely try the ever-popular "consumer confusion" angle. He will probably concentrate his efforts on the similarity of the marks and the intent of Defendant when selecting the mark factors. The ad coupled Plaintiff’s name with the name of one of the many hit songs of his band. The “Take it Easy” song may appeal to customers shopping at a company which provides a “No Bull Guarantee” on its e-commerce site, or may just restate the company’s customer service philosophy. In which case, Weiss suggests the defendant take the fair use route or argue that the alleged mark wasn't used at all, what with "to don" meaning to wear something and 'henley" being a generic name for a style of shirt. Henley is also claiming false advertising and -- because this suit was filed in California -- violations of his right to publicity. In both cases, the simplest defense may be to point out that common English words were used, neither of which violate registered marks of Henley's publicity rights. There's also ample room for a First Amendment debate in each of these defenses. Unfortunately, as Weiss points out, Henley has previously taken a clothing retailer to court over something similarly ridiculous... and won. This is not the first time that Plaintiff has filed a trade mark infringement, false advertising and right of publicity suit against a retailer over the use of a Henley shirt, as Plaintiff filed a similar suit in Texas in 1999, Henley v. Dillard Department Stores. In that case, the ad featured a Henley shirt and “a photograph of a man wearing a henley shirt with the words, "This is Don" in large print, beside the picture, and an arrow pointing toward the man's head from the words. Underneath the words is the statement, "This is Don's henley" in the same size print, with a second arrow pointing to the shirt” adding further that “Sometimes Don tucks it in; other times he wears it loose—it looks great either way. Don loves his henley; you will too." If Henley wins this suit, it won't make him any richer. He claims any winnings will be donated to charity. I suppose some might view this as honorable and decent, but it seems like the world would be a better place if certain rights holders didn't view it as a God-given mission to protect their marks and their recorded antiquities from anyone and everyone. Weiss' post goes further into the legal weeds if you're interested in sussing out the merits of each claim. If not, just know this: Don Henley is suing a company for using English words he thinks he owns, no matter what the context. Even if it was a barely-shaded shout out to his old hit, so what? The potential harm here was nil, but thanks to the court system, will now only be limited to Don Henley's overactive imagination. Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
GigaOm points our attention to complaints from some Dutch hosting companies that the government there is increasingly pressuring them to simply remove content claiming that it is "jihadist," but without any attempt to get a court order or to file criminal charges. We've seen this before, of course. The US government effectively forced Wikileaks to scramble for new hosting after pressure caused its hosting providers to pull the plug. Other services are pressured into removing certain types of content as well. In the story linked above, the Dutch Hosting Provider Association (DHPA) claims that prosecutors are simply going to hosting companies and declaring, without any court order or underlying legal argument, that certain content is jihadist and should be removed. Feeling pressured and threatened, many hosts will simply remove that content. While the content may be incendiary, does that mean that there should be no due process at all? And the very real risk of overblocking doesn't seem to concern those demanding the content be taken down. The story notes one example of a video of a group of men around a campfire shooting guns -- but they note it's not entirely clear why they're shooting. And yet, they were told to take the video down. It's easy to say "this content is dangerous, take it down," without recognizing the slippery slope of censorship this creates. No one is defending efforts to recruit people into jihadist groups, but leaping immediately to censorship without due process or any evidence of actual law breaking is not the way to protect a free and open society. It seems very much like the opposite.Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Techdirt has been reporting on the disturbing rise in the use of malware by governments around the world to spy on citizens. One name that keeps cropping up in this context is the FinFisher suite of spyware products from the British company Gamma. Its code was discovered masquerading as a Malay-language version of Mozilla Firefox, and is now at the center of a complaint filed in the UK: Privacy International today has made a criminal complaint to the National Cyber Crime Unit of the National Crime Agency, urging the immediate investigation of the unlawful surveillance of three Bahraini activists living in the UK by Bahraini authorities using the intrusive malware FinFisher supplied by British company Gamma. Here's why Privacy International is acting now: While it's long been known that Gamma has provided surveillance capabilities to Bahrain, amongst other countries, the extent of Gamma's complicity in Bahrain's unlawful surveillance of individuals located abroad has only recently been confirmed. Two months ago, a number of internal Gamma documents were published revealing that Gamma is both aware of, and actively facilitating, the Bahraini regime's surveillance of targets located outside Bahrain through the provision of intrusion technology called FinFisher to the Bahraini authorities. The analysis by Bahrain Watch clearly shows that, amongst the Gamma documents published online, those targeted by the Bahraini government with FinFisher technology were [the activists] Mohammed, Jaafar, and Saeed, along with prominent Bahraini opposition politicians, democracy activists and human rights lawyers. Privacy International believes that this alleged surveillance of Bahraini activists while in the UK constitutes an unlawful interception of communications under the UK's Regulation of Investigatory Powers Act 2000 -- the infamous RIPA -- and further argues that Gamma is "liable as an accessory under the Accessories and Abettors Act 1861 and/or encouraged and assisted the offence under the Serious Crime Act 2007." If this reasoning is accepted, it could create an important precedent, at least in the UK. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Solar energy is actually extremely abundant (obviously not at night). The problem is capturing it all without covering huge areas of land (or sea) in an economical way and then storing the energy efficiently so that we can use it when we need it (ahem, like at night). Nature has developed photosynthesis, but if we're going to rely more heavily on solar energy, we're going to need to improve on plants or come up with other ways to create and store solar energy. Here are just a few projects that rely on the sun to make fuel. Lawrence Berkeley National Laboratory is working on an artificial photosynthesis process that could produce hydrogen as a fuel. These scientists are looking at molecules designed to absorb sunlight and create an electrical current that can break water into molecular hydrogen and oxygen. [url] Natural photosynthesis isn't all that efficient, so maybe researchers can augment plants with nanomaterials to give photosynthesis a little boost. Adding carbon nanotubes to chloroplasts can enhance photosynthesis by a measurable amount, but scaling this augmentation up might be tricky. Also, we should probably figure out how this actually works before we introduce this grey-green goo into the environment.... [url] The SOLAR-JET project is working on a chemical reactor that uses sunlight to power the production of syngas from just water and carbon dioxide. The syngas will be further reacted using the Fischer-Tropsch process to make a form of jet fuel (hence the name of the project). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
Back in July, we wrote about a ridiculous lawsuit filed by the AARC -- the Alliance of Artists and Recording Companies -- trying to make use of a misreading of the Audio Home Recording Act (AHRA) to pretend that it means that Ford and GM have to pay royalty money for every CD ripping car stereo they install. As we noted, the AHRA is basically a deadletter law. The law itself effectively killed any possible innovation in the area that it was designed to tax for royalties -- machines that make repeated copies of content. The recording industry tried to pretend that basic MP3 players met the definition and sued one of the first such players, the Diamond Rio. The court soundly rejected the argument in that case, and thanks to that, probably 99% of you have MP3 players (or, nowadays, smartphones that play MP3s). In our original post, we went into much greater detail about why the AARC was clearly misreading both the law and the caselaw in a desperate attempt to kick up some royalties from the big automakers. Ford (along with Clarion) have now responded and do a damn good job explaining why the AARC is simply wrong. The the filing is pretty short and sweet in explaining the problems with the AARC's argument: Congress enacted the AHRA in 1992 to regulate a then emerging technology that for the first time enabled high quality serial copying of copyrighted musical recordings. “Serial copying” refers to the creation of copies of a musical recording from another copy of that recording as opposed to the creation of copies from the original recording. This activity concerned the music industry, which was a proponent of the AHRA. However, rather than directly prohibit serial copying outright, Congress exempted certain products and devices— specifically including computers and hard drives—from compliance while requiring other specifically defined “devices” to also incorporate technology to prevent serial copying. The automotive navigation systems here are exempted. Neither Ford nor Clarion is in the business of facilitating the serial copying of music. Ford is one of the largest automobile manufacturers in the world; it builds and sells some of the best-selling cars and trucks, certain models of which include navigation systems. Clarion manufactures and supplies Ford with navigation systems for its vehicles. Each such navigation system is a complex computer and includes a central processing unit that interprets and executes complex instructions and a 40 GB hard drive for storage of an operating system, computer software programs, databases, and other information (“Nav System”). [....] By its own Complaint, Plaintiff admits that this feature of Defendants’ Nav System consists of recording CDs to the system’s own hard drive, where the music is stored with various software programs and other data. It alleges nothing about making serial copies of CDs, digital audio tapes and the like. Under a plain reading of the AHRA, these automobiles with a Nav System are not capable of making a “digital audio copied recording” of a “digital musical recording” as defined under the Act. This is because the AHRA states that digital musical recordings do not include (1) material objects in which one or more computer programs are fixed or (2) material objects in which data other than sounds are fixed. Here, the Nav Systems are nothing less than automotive computers with hard drives containing both programs and data other than sounds. They do not reproduce digital music recordings in materials objects addressed by the statute, that is, CDs, LPs, cassettes, or digital audio tapes. The Nav Systems are outside the AHRA’s scope. Not surprisingly, the filing relies heavily on the ruling in the Diamond case, and I see that one of the lawyers listed on the filing is Andrew Bridges, who handled the Diamond case in the first place. You never know how these kinds of court cases will turn out in the end, but it seems unlikely that the AARC is going to get rich off of this last gasp effort to squeeze money out of automakers.Permalink | Comments | Email This Story

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posted 17 days ago on techdirt
We've written before about the recent trend among video game publishers in trading access for YouTube personalities to their games and positive coverage. Nintendo had been the most notable example of this to date, but they certainly aren't alone. This most recent example concerns Warner Bros.' Middle-earth: Shadow of Mordor and the deals the publisher struck with YouTubers, which are far more restrictive than those we've seen previously. "Videos will promote positive sentiment about the game. Videos must not show bugs or glitches that may exist. Maximize awareness for the Shadow of Mordor video game during the 'Week of Vengeance' through gameplay content, key brand messaging, and information and talent usage on Twitch channels. Persuade viewers to purchase game, catch the attention of casual and core gamers who already know and love Middle-earth. Requirements involve one livestream, one YouTube video, and one Facebook post/tweet in support of the videos. Videos will have a strong verbal call to action, a clickable link in the description box for the viewer to go to the game's website to learn more about the game [and] to learn how to register and play the game. Twitch stream videos will have five calls to action. Videos will be of sufficient length to feature gameplay and build excitement." "Videos must include discussion of the Nemesis System. This really should take up the bulk of the focus, such as how different the orcs are, how vivid their personality and dialogue are, gathering intel and domination abilities, exploiting their strengths and weaknesses. Videos must include discussion of the action and combat that takes place within the game, such as brutal finishers, execution moves, and wraith powers. The company has final approval on the YouTube video… at least 48 hours before any video goes live." Now, look, there's been a great deal of discussion as of late about the evils of the current gaming journalism scene, yet here's the shining example of corruption and nobody's up in arms. I can't quite figure that out. What these publishers are doing is creating a sub-section of the YouTuber ecosystem that will be first to market with reviews of gaming products but also in chorus with one another in heaping praise as a contractual obligation. Delightful. The Kotaku article says that this is an uncomfortable, systemic, and long-term problem. It isn't, and here's why: it can only work for a tiny period of time. And that period of time is coming to an end. Now that these deals are coming into the light with more regular frequency, they are only serving to condition the public to one thing: not trusting positive reviews of games. It's the inevitable result of this sort of thing. If the gaming public knows that you have these deals, they'll almost certainly decide not to trust positive YouTuber reviews of games. The negative reviews, on the other hand, certainly will be trustworthy. So, in the end, gamers will only have negative reviews to base decisions on when it comes to the games they buy. That ain't no way to run an industry. It's time the major publishers wised up to this sort of thing. Any short-term benefit is going to be far outweighed by the long-term distrust they're sowing. Permalink | Comments | Email This Story

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