posted 19 days ago on techdirt
If you're a gadget watcher or an Apple fanatic, then you already know that tomorrow is Apple's big fall event when it announces new hardware products. Unlike basically every other tech blog in the world, we tend not to cover the announcements (or all of the rumors leading up to those announcements). Every so often something interesting will come out of them and we'll write up that, but for the most part, we recognize that other sites are going to cover the basic beats and we're not the kind of publication that wants to spend our time writing up promotional copy for tech companies. But, sometimes there's some overlap in our usual coverage and these kinds of events. Brian Conroy, a trademark lawyer in Ireland who has a fun blog of trademark-related issues realized that Apple may have leaked some details via its trademark applications. For example, while there are rumors of three new iPhones, Conroy notes that Apple has only applied for two trademarks related to the iPhone 7: "iPhone 7" and "iPhone 7 Plus." That doesn't necessarily mean that there isn't a third option, but the trademark applications seem to suggest only two. Conroy has also dug deep into global trademark filings to basically prove that Apple is the company behind the trademark filing for "Airpods" which many expect to be the name of the new earbuds or something similar that Apple may announce. The trademark itself was noticed a long time ago, filed for a company named "Entertainment in Flight LLC," presumed to be a dummy corporation set up by Apple. But Conroy goes further and shows that Apple may have slipped up in hiding some of this, and that the same Airpods trademark filing in countries like Norway, Malaysia and India came directly from Apple -- and the one in Malaysia points back to the original Entertainment in Flight filing in the US -- more or less proving that Entertainment in Flight is really Apple. Here's Conroy's video explaining this: Trademark law: finally useful for something.Permalink | Comments | Email This Story

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Hopefully you will recall that Take Two Interactive had been facing down two lawsuits brought by Lindsay Lohan and Karen Gravano over character depictions in the company's opus, Grand Theft Auto V. Both filed suit over publicity rights and likeness concerns in New York. Lohan claimed that a character in the game that evaded paparazzi after having sex in public and made some oblique references to similar-sounding movies that Lohan had acted in, along with a female character on the game's cover art, were both ripping off her personage. Gravano, meanwhile, claimed that a different character, one which made references to starring in a reality show about mobster wives and evading mob retribution, was ripping off her personage. While both suits failed to address the fictional differences in the characters, which were both composite characters parodying their celebrity archetypes, Take Two attempted to defend itself with those facts and tried to get the case dismissed. Strangely, the court at the time allowed the case to move forward... ...and now the appellate division has reversed course and tossed both cases out. On Thursday, New York's appellate division first department took a look at both this case as well as one involving ex-Mob Wives star Karen Gravano, who brought a similar lawsuit against Take-Two over Grand Theft Auto V. Gravano had filed a $40 million complaint over the character of "Andrea Bottino," who allegedly used the same phrases the plaintiff did, had a father who was a government informant and had a mutual connection with reality television. Gravano's suit was given a green light by the same trial judge in the Lohan lawsuit. The court's decision makes it clear that both lawsuits, brought for publicity rights reasons, don't stand up to New York's law. First and foremost, this is because the characters in the game aren't a direct composite of either plaintiff. Both Gravano's and Lohan's respective causes of action under Civil Rights Law § 51 "must fail because defendants did not use [plaintiffs'] name, portrait, or picture'" (see Costanza v Seinfeld , 279 AD2d 255, 255 [1st Dept 2001], citing Wojtowicz v Delacorte Press , 43 NY2d 858, 860 [1978]). Despite Gravano's contention that the video game depicts her, defendants never referred to Gravano by name or used her actual name in the video game, never used Gravano herself as an actor for the video game, and never used a photograph of her (see Costanza at 255; see generally Wojtowicz at 860). As to Lohan's claim that an avatar in the video game is she and that her image is used in various images, defendants also never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan (see Costanza at 255). And, second, because the kind of depiction being discussed in these cases is protected First Amendment speech, as should have been obvious from the outset. Even if we accept plaintiffs' contentions that the video game depictions are close enough to be considered representations of the respective plaintiffs, plaintiffs' claims should be dismissed because this video game does not fall under the statutory definitions of "advertising" or "trade" (see Costanza at 255, citing Hampton v Guare , 195 AD2d 366, 366 [1st Dept 1993], lv denied 82 NY2d 659 [1993] [stating that "works of fiction and satire do not fall within the narrow scope of the statutory phrases advertising' and trade'"]; see generally Brown v Entertainment Merchants Assn. , 564 US 786, 790 [2011] ["(l)ike the protected books, plays, and movies that preceded them, video games communicate ideas . . ." and deserve First Amendment protection]). This video game's unique story, characters, dialogue, and environment, combined with the player's ability to choose how to proceed in the game, render it a work of fiction and satire. Meanwhile, one imagines that the legal teams for both women have been handsomely paid for not informing their respective clients of the futility of these lawsuits from the outset. I mentioned early on in these posts that the legal team for Take Two ought to have been able to stroll into court in their underwear, scream "Parody! First Amendment!" and immediately walk out of the courtroom victorious. That it had to go to much more trouble than that is unfortunate, but it's still good to see the court get this right. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Not all Kickstarter campaigns are created equal. Even the mostly-good ones that eventually satisfy their backers are often plagued with delays and poor communication. But once in a while, there's a campaign that runs smoothly, communicates openly, and delivers a great product on time as promised — and Minaal is one company that pulled off such a campaign to launch its line of travel bags. This week, we're joined by co-founder Jimmy Hayes to discuss how they pulled it off and what their experience can teach us about other campaigns and the broader crowdfunding ecosystem. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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The latest leak about the NSA's overseas spying transgressions took the unlikely form of a little-noticed YouTube video -- one that covered mostly-wonkish subject matter. The details of the NSA's malware attack on the French "White House" were revealed during an interview with Bernard Barbier, the former head of the French Intelligence Service, by a local engineering school. The video, of course, has since been removed, but not before French paper Le Monde picked up on the content of the interview. Matt Suiche parses it all out -- an inadvertent confirmation of a Snowden document leaked in 2013 that contained an itinerary item about a discussion between French and US intelligence officials concerning a (at that time "alleged") "May 2012 cyber attack on the French Presidential network." Sure, spies are known for spying on foreign governments. But allied countries were supposed to keep this sort of non-brotherly spying to a minimum. The former head of the French Intelligence Agency described the meeting this way: “I received the order from the successor of Mr Sarkozy (Francois Hollande) to go in the U.S. to shout at them. We were sure it was them. At the end of the meeting, Keith Alexander (Director of the NSA) was not happy. When we were in the bus, he told me he was disappointed because he never thought we would detect them and he even added “You guys are good”. The major Allied Powers, we do not spy on them. The fact the U.S. broke this rule was a shock”  Note that Keith Alexander wasn't sorry the NSA had breached international spy agency decorum, much less attacked the presidential network of a foreign ally. He was only sorry his agency had been caught -- and by a comparatively-unpowered agency at that. Barbier notes elsewhere in his interview that the agency that sniffed out the NSA intrusion did it with 1/20th of the workforce and 1/40th of the budget. The NSA, in his view, is an argument against government bloat. More dollars do not equate to better spying. Indiscriminate targeting and even more indiscriminate collecting lead to a lot of analyst busywork. Despite this disagreement over NSA hacking, it appears Keith Alexander found some common ground with the head of French Intelligence. One of the things the NSA does with the data it collects is kill. France is apparently using its collections the same way. Another surreal part is when Keith Alexander told Bernard Barbier about the “Find & Fire” projects they have in Iraq to identify (within a 7km radius) & eliminate bad guys with drones. So apparently France is working on similar technologies as Barbier managed to convinced them to do the same… So, there's that. Even if spy agencies can't agree on the propriety of snooping on world neighbors, at least they both believe metadata is an indispensable part of their respective extrajudicial killing programs. And, given the nature of this leak, both agencies will probably be taking a closer look at the non-disclosure agreements foisted upon departing employees. Permalink | Comments | Email This Story

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The FBI generally likes to keep as much information as possible out of the public's hands, so its decision to release its files on the Hillary Clinton email investigation are probably best viewed as a one-off, rather than the leading edge of a new era of transparency. The agency certainly couldn't pretend there isn't significant public interest in the content of the investigative files. The outcome of a presidential election could very well hinge on the voting public's interpretation of the documents' content. And the FBI certainly has an interest in clearing the air of any hints of politically-motivated favoritism. That the investigation occurred at all does some damage to Clinton's credibility, while the decision not to pursue prosecution doesn't do much for the FBI's. A closer look at the investigative documents simply gives more credence to the FBI's assertion that it found evidence of stupidity, but not criminal intent. At worst, the private email server allowed Hillary Clinton to better avoid FOIA requests (an effect now nullified by the State Department's ongoing release of nearly every email it's been able to recover) -- something that's a civil violation, rather than a criminal one. From the Washington Post's Matt Zapotosky and Rosalind Helderman's dive into the FBI's docs: [PDF vol. 1, PDF vol. 2] Clinton told the FBI that she used the private server for convenience, not to evade public record laws. But the documents show that former secretary of state Colin Powell appeared to advise her early in her term that private email could give her more control over her communications in the face of public inquiries. In January 2009, according to the FBI, Clinton contacted Powell, who also used a personal email account during his time in office, to ask about his use of a BlackBerry. According to the FBI, Powell “warned Clinton that if it became ‘public’ that Clinton had a BlackBerry, and she used it to ‘do business,’ her e-mails could become ‘official record[s] and subject to the law.’” “Be very careful,” Powell advised Clinton, according to the FBI. “I got around it all by not saying much and not using systems that captured the data.” Clinton's defense of her private email server was that she was using it for convenience and figured any public records requirements were being met by third-party recipients using official government email accounts. Supposedly, this indicates she wasn't trying to duck FOIA requests. However, this explanation doesn't really mesh with her decision to give staffers email addresses on her private server. Once that happened, there were no third parties preserving records. It was all left up to Clinton. Plenty of efforts were made -- deletion, destruction of devices, etc. -- to purge emails that possibly should have been preserved as public records. The only criminal issue would have been the mishandling of sensitive information, something Clinton did regularly. But the FBI found no evidence of maliciousness. Just a surprising amount of stupidity from someone who should have known better. Clinton told FBI agents that she did not know much about how the government classified information. For instance, she said she did not pay attention to the difference between levels of classification, like “top secret” and “secret,” indicating she took “all classified information seriously.” When shown an email she received in which a paragraph had been marked with a “C,” a standard way of indicating it included “confidential” information, Clinton at first speculated to agents that the marking was indicating that email contained bullet points in alphabetical order. Clinton may have pled ignorance when questioned by the FBI, but these statements directly contradict assertions she made to reporters on Monday: “I went into the State Department understanding classification. I’ve been on the Senate Armed Services Committee for years before I was Secretary of State. I take classification seriously. The fact I couldn’t remember certain meetings, whether or not they had occurred, doesn’t in any way affect the treatment I had and still have of classified material.” Clinton says she "understands" classification -- certainly a much different self-assessment than she presented to FBI interviewers. She then says nothing "affects the treatment" of sensitive material. She always handled it "seriously." I certainly hope that word isn't meant to define actions like these: The FBI’s report traced the history of Clinton’s private server use, detailing ad hoc efforts to backup data and respond to requests for records. In one instance, after Clinton left office, someone created a personal Gmail account to move an archive of Clinton’s email on a laptop to a server run by Platte River Networks, a company Clinton had hired. The person then attempted to ship the laptop back to another person connected to Clinton. According the FBI report, the laptop, which had not been wiped, got lost in transit. And the FBI would come to find on the Gmail account dozens of classified emails. While Hillary Clinton may not be directly responsible for a laptop full of email (some of them sensitive) being lost in transit, it was her decision to cobble together a personal email server that led to this mishap. Additionally, while the FBI may not have found any evidence of breach by malicious entities, the private server undoubtedly made an attractive target. With Clinton in sole control of her end of official communications, any breach may have either gone unnoticed or undisclosed for far longer than a similar attack on government-owned servers. This is just another way Clinton sacrificed accountability for "simplicity" by setting up her own server. The denials contained in the FBI report are expected. No one in a similar position is going to admit they set up a personal server to route around FOIA requests and/or more restrictive official government policies. Even if that's not criminal activity, it's still a bad look for a presidential candidate. More concerning is Clinton's blase attitude towards handling sensitive information, something she'll be seeing even more of if elected. Permalink | Comments | Email This Story

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Stop re-upping on low quality charging cables that tear after just a few months. The $17 Zus Kevlar MicroUSB Cable is built with the same aramid fiber technology used in aerospace and military applications so normal wear and tear just won't affect them. They are tangle free and come with a velcro tie to keep them neat and tidy. The Deals store is also offering aMFi Certified Lightning Cable and a USB-C cable. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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We've noted for years that usage caps on fixed line broadband connections are little more than a major, unnecessary price hike on uncompetitive markets. But while caps certainly are little more than a cash grab, there's another less talked about problem at play: nobody is making sure ISP usage meters are accurate. That has resulted in a number of instances where an ISP will bill users for consumption when the power is off, and even some instances where ISPs confused MAC addresses and billed the wrong customer for additional monthly consumption. As you might expect, Comcast is often at the heart of these conversations. This week, they're making the news once again for overbilling a customer $1500 for phantom bandwidth consumption, then refusing to provide any solid evidence this phantom consumption actually occurred. Like many users before them, the customers discovered a major discrepancy between their own router logs and and ISP's usage meter. But Comcast being Comcast, the company's historically-bad customer service usually only makes a bad situation worse:"So far, despite all the calls we have made, no one is willing to even provide us with one shred of proof this data was consumed, by what method or website(s) it was used on. They just keep telling us to trust them, the data was used. We have asked for investigations of the Internet history to prove this usage, and they say they will do so, but they never do." As is so often the case, only once the media was involved was Comcast willing to "help." In this case, Ars Technica demanded Comcast prove the errant usage was actually happening, but the company not only couldn't provide any hard data whatsoever -- but it tried to claim the terabytes of extra consumption were being caused by an Apple TV unit that apparently became sentient and started downloading screensavers on its own (subsequently disproven). With Comcast charging hundreds of extra dollars and just simply refusing to show its math, Ars gets to the real meat of the problem:"The months of testing, without any firm conclusions, raise one question with no straightforward answer. If Comcast, the nation's largest Internet provider, can't determine what's pushing its subscribers over their data caps, why should customers be expected to figure it out on their own? On top of that, few customers other than Brad receive such extensive testing. And even that testing would never have happened if his father hadn't contacted a journalist.For what it's worth, Comcast has long stated that it uses a firm by the name of NetForecast to measure its meter accuracy, and that this firm consistently finds that Comcast's meters are accurate to within 1%. But that's not the story coming from Comcast's actual consumers, who get to enjoy the one-two punch of first being charged hundreds of extra dollars for nothing, then having to navigate Comcast's horrendous and inflexible customer service to fix a problem that shouldn't exist in the first place. And as Comcast keeps pushing its caps into new, uncompetitive areas, the volume of complaints will only grow. There are two subjects that telecom regulators simply refuse to address. One being the misleading and often completely fabricated below-the-line fees ISPs use to jack up the price of broadband after a sale. The other being the punitive, unnecessary and potentially anti-competitive usage cap, not to mention the ISP desire to bill like utilities, but their total unwillingness to actually be regulated as such. As a result, no objective third party is ensuring that logged bandwidth consumption is accurate, a major problem as more and more ISPs look to usage caps to milk uncompetitive markets.Permalink | Comments | Email This Story

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Remember how lots of people (including plenty of you right here) were saying that it was no big deal that Gawker was shut down due to a campaign financed by Peter Thiel? Remember how people said it wouldn't mean any harm for anyone else as long as they "don't publish someone's sex tape?" Remember how we pointed out that Thiel's funding campaign included plenty of other lawsuits that had nothing to do with sex tapes? Yeah, about that. It appears that Thiel's favorite lawyer, Charles Harder, who he apparently helped set up in his own law firm with ongoing support for a variety of cases to take down Gawker, has now become the go-to lawyer for another famous hater of media: Donald Trump and his friends. Trump, of course, has repeatedly publicly stated that he has sued a reporter just to cost him money. So, Trump and Harder seem perfect together. Last week, Harder, representing Donald Trump's wife, Melania, sued The Daily Mail and a random blogger in Maryland, claiming defamation. The inclusion of the blogger was weird, but many are saying it was to get the specific jurisdiction they wanted, in Maryland (where anti-SLAPP laws can't be used). And now it appears that Harder has another big name client closely connected to Trump: former Fox News boss Roger Ailes has apparently hired Charles Harder to threaten New York Magazine with defamation claims. If you're not aware, one of the top reporters for NY Magazine is Gabriel Sherman, who has written extensively about Ailes, including an entire book about Ailes. More recently, Sherman has been basically the go-to source for anything having to do with the litany of sexual harassment claims made about Ailes, including being the first to report on Megyn Kelly's statements to investigators that Ailes had allegedly sexually harassed her, and a massive recent story on "the Fox News women" who took down Ailes. Ailes has apparently gone on the offensive, having some high-profile lawyers basically start a ridiculous smear campaign against Sherman, which not only seems to call more attention to Sherman's reporting, but also makes Ailes and his friends look desperate. And, of course, the latest move is apparently to hire Harder to threaten New York Magazine and Sherman, because Harder is now making quite a reputation for himself as the guy to go to when you want to burden publications with questionable legal claims. And NY Mag didn't even publish a Roger Ailes sex tape or anything. NY Magazine notes (not surprisingly) that the threat letter from Harder didn't include specifics, but rather just asked the publication to retain information for a possible legal action. In other words, it feels like a pretty empty threat. But, once again, we're reminded of why we need a federal anti-SLAPP law. Thin-skinned billionaires (and not billionaires) are finding it way too easy to burden publications with bogus defamation claims these days.Permalink | Comments | Email This Story

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Lots of people have been talking the past few days about TorrentFreak's discovery of the fact that Warner Bros., via its hired DMCA agent Vobile, has been issuing DMCA takedowns on its own website. Specifically, in recent notices to Google from Vobile, on behalf of Warner Bros., the infringing domains include WB's own official websites for movies like "Batman, the Dark Knight" and "The Matrix." It's easy to look at this and laugh. And the story's been getting lots of attention thanks to places like the BBC picking up on it as well. And thus, jokes like this one are an easy target: If this is what the singularity looks like, I'm ok with it. https://t.co/N7ybi9OuHE — Matthew Green (@matthew_d_green) September 6, 2016 And, yes, this is hardly the first time that companies have been caught targeting themselves. After all, Viacom famously sued YouTube over Viacom's own promotional clips that it had uploaded to the site. And, the recording industry is famous for taking down the official videos of its artists. But here's why this isn't really a laughing matter: many of the legacy industry players, including Warner Bros. and the MPAA who represent WB, have been pushing very heavily for a revamp of the DMCA that would include a "notice and staydown" provision -- such that once a copyright holder representative sent a notice claiming a work was infringing, platforms would basically be required to block that content from ever appearing again. In response, many of us have pointed out just how bad companies like Warner Bros. are at issuing takedowns, and we're told that such mistakes are rare. But they're not rare. We see them all the time. And if notice and staydown were in place, it could create all sorts of problems. Notice, too, that it wasn't just WB's own site that was the target of this bogus takedown. Just two slots above it are the official Amazon sales link for the movie. Elsewhere in the list were official IMDB pages as well. Yes, Google is actually better than most at going through these notices and rejecting ridiculous requests like this, but most other companies are not. If you send a notice, it's treated as accurate, and down go those sites. Some may consider that fair game when it's something as ridiculous as WB taking down its own sites, but it's not so funny when it's someone else's work -- like the time Fox sent DMCA notices taking down Cory Doctorow's book, Homeland, just because it had the same title as a TV show. Meanwhile, we keep hearing from companies like Warner Bros. about how Google is really to blame, and that it's "obvious" when there's infringing content that should be taken down. If it's so "obvious" why can't WB gets its act together and not take down its own sites? Perhaps it isn't so obvious after all and perhaps we shouldn't make copyright policy based on the bogus claims of companies so clueless that they're issuing DMCA takedowns on their own websites or other official channels?Permalink | Comments | Email This Story

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Colorado legislators legalized recreational marijuana use and now law enforcement agencies in bordering states are camping out on highways hoping for easy busts. All roads in and out of the state are now "drug corridors." This has led to suspicionless stops and seizures by police officers -- predicated on nothing more than a vehicle being on a strip of highway leading to or from a supposed "source" state. Not every bust goes as easily as officers might have hoped. Nebraska deputies tried to make drug conspiracy charges stick to a pair of Minnesotans arrested while on their way to Colorado with more than $60,000 in cash. The conviction didn't stick because it isn't against the law to conspire to perform an act that is legal in another state. It's illegal to buy or sell marijuana in both Minnesota and Nebraska, but not in Colorado, where the two were headed. The charges went away but the $60,000 in cash is likely going to remain in Nebraska law enforcement's possession. Another traffic stop in another Midwestern state has been ruled unconstitutional, partially because Kansas law enforcement officers believed the driver being a resident of marijuana-friendly Colorado was pretty much all the reasonable suspicion they'd need to perform a search. The Tenth Circuit Court of Appeals -- in stripping away the immunity granted to two Kansas Highway Patrol officers by the lower court -- points out the many flaws in the officers' reasoning. [PDF link] Peter Vasquez was pulled over because his temporary tag was unreadable. Once the temporary tag had been verified as legitimate, he should have been free to go. Instead, it was merely the start of a fishing expedition by the officers, who hoped to find the Colorado resident in possession of an illegal substance. In the car, [Officer] Jimerson told [Officer] Lewis that Vasquez was notably nervous and that there were items covered in the front and back seat of the car. Jimerson sent Lewis to check on Vasquez, to “see how nervous he [was]” and to “get a feel for him.” Upon returning, Lewis told Jimerson that Vasquez “look[ed] all scared to death.” Jimerson then checked Vasquez’s proof of insurance which indicated Vasquez also had insurance for two newer cars. Jimerson, suspecting Vasquez was transporting illegal drugs, called Trooper Jason Edie to bring a trained drug dog. Lewis returned to Vasquez and asked where he worked. Vasquez responded “We own a store called Boutiques at Brighton.” Lewis also asked why Vasquez was not driving one of the newer cars listed on his proof of insurance. Vasquez stated that he bought the newest car for his girlfriend. Further, Vasquez told Lewis that he was moving to Maryland, which prompted Lewis to ask “Where’s all the stuff if you’re moving?” Vasquez replied that he already had moved most of his belongings. Lewis issued Vasquez a warning… and then decided to keep pushing Vasquez to give the officers consent to search the vehicle. Vasquez refused. Officer Lewis apparently felt refusing a search was something only guilty people do. After the refusal, Lewis said that he suspected Vasquez was “probably involved in a little criminal activity here” and detained him. The drug dog sniffed the vehicle without alerting. Nothing illegal was discovered during the officers' subsequent search of the car. Vasquez sued the officers for their illegal search. The officers delivering this list of "suspicious" behavior in defense of their actions. They argue the following factors created reasonable suspicion: (1) Vasquez was driving alone late at night; (2) he was travelling on I-70, “a known drug corridor”; (3) he was from Colorado and was driving from Aurora, Colorado, “a drug source area”; (4) the back seat did not contain items the Officers expected to see in the car of someone moving across the country; (5) the items in his back seat were covered and obscured from view; (6) he had a blanket and pillow in his car; (7) he was driving an older car, despite having insurance for a newer one; (8) there were fresh fingerprints on his trunk; and (9) he seemed nervous. The Appeals Court is unimpressed with the officers' "reasonable suspicion" Frankenstein's monster. Such conduct, taken together, is hardly suspicious, nor is it particularly unusual. Completely unimpressed. Neither the dissent nor the Officers explain how these factors, taken together, indicate suspicious behavior. The Officers instead recite them as a list of unrelated facts… [O]fficers must explain why the factors considered together are suspicious, and not simply recite isolated factors, leaving it to the courts to glean how they create reasonable suspicion. Other attempts by the officers to salvage their illegal search are met with similar disbelief by the court. The Officers also argue that Vasquez gave vague or inconsistent answers to questions about his travel plans. However, the Officers do not explain what these answers were or why they were contradictory. On reviewing the record, which contains a video recording of the interactions between the Officers and Vasquez, we cannot find anything even arguably inconsistent in Vasquez’s answers. But it's the officers' insistence that Vasquez's status as a resident of Colorado somehow matters that ires the court most -- as if simply living in a supposed "drug source state" were enough to justify not only a stop, but a search as well. The court not only smacks down these two officers, but every lazy, presumptuous law enforcement officer who would use similarly faulty reasoning to justify detaining motorists. As we have said previously, “that the defendant[] [was] traveling from a drug source city—or . . . a drug source state—does little to add to the overall calculus of suspicion.” Such a factor is “so broad as to be indicative of almost nothing.” Moreover, our fellow circuits have concluded the state of residence of a detained motorist is an “extremely weak factor, at best” in the reasonable suspicion calculus because “interstate motorists have a better than equal chance of traveling from a source state to a demand state.” See also: this post. The appeals court goes on to show what this "source state" garbage means in practice. Currently, twenty-five states permit marijuana use for medical purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law. Thus, the Officer’s reasoning would justify the search and seizure of the citizens of more than half of the states in our country. It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate. The court makes an excellent point. The "you ain't from around here" theory of policing hasn't gone away. Agencies focused on drug interdiction and/or forfeiture have declared pretty much every major interstate highway to be a drug corridor. The appeals court points out that it would have been equally suspicious for Vasquez not to have been utilizing I-70 to travel from Colorado for Maryland. There's just no way to win, not when so many traffic stops have so little to do with the violations (real or imagined) officers cite before getting down to the real business of seeking consent for vehicle searches. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
This week, almost all of the top comments came in response to the various posts about our Copying Is Not Theft gear. First, it's an anonymous commenter who won the top spot on the insightful side by examining the root of the rage that came in response to the shirt: The problem is... People assume the statement "Copying is not theft" is akin to saying: "Copying is not wrong". What they refuse to see or admit is that theft and copyright infringement are different things - the copyright-maximalist propaganda has done its job well. It's all rather sad, really... that people have come to assume that copying is somehow as bad (or worse?) than stealing. It's almost incomprehensible that we've reached this point. In second place, we've got Go5 with a creator's perspective: I'm a creator. And I collaborate closely with other creators. Our stuff gets copied all the time. There's even one guy who word-for-word, shot-for-shot, copies lots of our content, in Chinese, within hours of release. I appreciate his perseverance. Our stats prove we get more traffic with him than without. Thanks to the internet, the whole English-speaking world is our market. Copying is what happens when you create in a public arena. Sometimes it's flattering, usually it's just someone trying to cash in. Occasionally there's a useful insight into our product or process. Altogether, copying might account for a few bucks of revenue we'd otherwise receive. Is this "stealing?" Nope. First, the copy doesn't stop anyone from seeing our original, in fact it often drives them to us so we get the revenue (plus SEO) anyway. Second, copies increase the appetite for our work and the venues to promote it, both vastly more valuable than a few extra views. Creators' jobs are to be unique and relevant. I'd be worried if we weren't being copied. For editor's choice on the insightful side, just for a change of pace and because it fits so well with the last comment, we're going to grab a comment from our Facebook page, where Dariusz G. Jagielski shared another creator's perspective: I am a game developer. Working on my first indie game under nickname of "Darkhog". I won't tell you what it is as I don't want to spam Techdirt. Use google if you want to get to it. It's on TigForums. Anyway, the thing is that even though I intend to sell this game, I don't care about people copying it if they can't afford it or their stupid government banned it (happened before to totally innocent games such as Pokemon). I don't intend even to try to "protect" it (as in, putting expensive, invasive, broken already anyway and potentially damaging DRM, a.k.a. Denuvo or any other kind of DRM). Because DRM is bullshit and copying is not theft. Filesharers who will like it, will buy it, jerks wouldn't buy it anyway just to spite me and people who can't buy it because of their financial situation and like it will spread the word about game which will lead to more legitimate sales. Let the games begin. (If you want to check out his game, you can find it here.) Next, we pivot away from the Copying Is Not Theft gear briefly, for a response from Anon E. Mous to AT&T's attacks on Google Fiber, supposed beneficiary of "government favoritism": Gotta love the irony here. We have a AT&T VP criticizing Google for it's short comings when AT&T's own failure have been going on for years with failure to deploy and even bring better broadband services to various states. Meanwhile this AT&T VP is forgetting is they and other providers teamed up to deny Google access to their poles, and have gone to great lengths to get cities, and state governments to pass stautes that would thwart competitiors and limit what municipalities could do on their own to bring a company like Google into build out in their town/city. So it's more than a little rich that the AT&T VP is knocking Google when AT&T history isnt exactly a beacon of light. All it shows is how much of an irritant Google was to them in the cities and states where AT&T had to actual do something to compete with another provider. Not to worry though I am sure AT&T will continue to pillage the consumers pockets while doing the least possible in the way of improvements and satisfying the customer Over on the funny side, the first place winner is another anonymous commenter, this time with an excellent quip in response to James Comey's request for an "adult conversation" about encryption: So, Comey wants an adult conversation. What adult will he choose to represent him in this conversation? For second place, we return one last time to the Copying Is Not Theft campaign, where aethercowboy zeroed in on the irony of the anger: I wonder where all these people got the idea that copying was theft. Do you think they came up with that idea on their own? For editor's choice on the funny side, we start out with an election debate where the assertion was made that Bush, Obama and both Clintons are "cancers". Regardless of how you feel about any/all of those politicians, you've got to tip your hat to this anonymous response: That is plainly not true. Yes, Bush was a Cancer. But Bill Clinton and Obama were both Leos, and Hillary is a Scorpio. Finally, after always-on PDF DRM was found screwing over consumers, Underprepared Hiker composed a piece of short fiction: There I was stranded in the Alaskan wilderness freezing, I managed to gather up some sticks to make a fire but I had no idea how to make a fire. No big deal I thought and grabbed my smartphone and opened up my copy of "Wilderness Survival Guide" only to be presented with some stupid message about how I had to be on the Internet to read it! I mean WTF, the time I need this e-book the most and it will not open!?!?!?!K!@# So I yelled as loud as I could "F$*# you DRM!" fortunately some mountain man heard me and guided me to safety. Thank god my e-book had DRM, without it I'd still be sitting there next to my fire following the books directions of "when lost, stay put, help will come" Thank you DRM, you saved my life! That's all for this week, folks! Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Five Years Ago Today, we're just going to focus on one thing that happened this week in 2011, since it bears relation to the discussion raging around our Copying Is Not Theft t-shirt and, specifically, the "threats" we regularly receive that people are going to copy it or other Techdirt content to teach us some kind of lesson. As we've always stated in response, we're totally fine with people copying our material as we consider it all to be public domain — and there are really only two caveats. The first is that we don't approve of copiers claiming to be affiliated with us when they're not, and the second is even more serious: we definitely don't approve of other people trying to exert control over our public domain content by claiming their own copyright on it. And that's exactly what happened this week in 2011 when Gregory Evans of LIGATT Security copied a Techdirt post in one of his "books" that was actually just a compilation of articles. As we said at the time, we (unlike almost everyone else he copied) are fine with our articles being used in a book without permission — but we were not fine with the fact that he also included a prominent copyright notice for all content in the book. Copying is one thing; copyfraud is another. Ten Years Ago This week in 2006, as the iPod-loving world was still coming to terms with the horrors of the Foxconn factory, the company was busy trying to destroy the lives of the bloggers who exposed conditions there — only to back down when faced with a global storm of terrible publicity. The RIAA, meanwhile, was following the MPAA's lead and trying to fill schools with pro-copyright propaganda "education" (not to mention continuing to insist that it should be allowed to rifle through people's hard drives). And when you can't get the people to agree with you, just fake it — like the recording industry did in Canada with a questionable survey showing that apparently Canadians were desperate to pay bigger copyright levies on blank CDs. Fifteen Years Ago This week in 2001, music companies were still struggling to get consumers interested in buying downloadable music, and the real insight and projections came from looking at how college kids were reacting to new digital entertainment offerings. But at least the industry got happy news when the Copyright Office declared that

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posted 22 days ago on techdirt
Happy long weekend, Techdirters! We've got two big offers on the go — one that, like the summertime, is coming to an end, and one that just got started. As long-time readers know, we have a philosophy here called CwF+RtB: we connect with fans and then try to give them a reason to buy, and we owe a big thanks to all the fans who keep proving that it's a damn good philosophy indeed. We've actually been experimenting with some expansions to our traditional on-site advertising recently, but we've never much liked that world (thus our failure to follow most of the media's lead in getting angry about ad blockers, instead offering the ability to turn off ads on Techdirt if you so choose) and, unsurprisingly, we ran into plenty of problems right away: deceptive and clickbait-ish ads, technical problems that interfered with the site for some people, and the fact that both we and our readers have the well-trained ad-blindness of any internet native. So we quickly shut down those new programs, because we'd much rather focus on direct offers like these that give our readers a chance to support Techdirt and get something good in return. First, I'm sure you've seen our latest line of t-shirts, hoodies and other gear: Copying Is Not Theft. It's the one that's been riling people up way more than we expected on Twitter and our Facebook page. Their ire over the message is matched only by the desire to buy the gear that said ire seems to inspire in others — which is a fancy way of saying that a lot of you snatched up a t-shirt after realizing just how controversial it was. But, if you haven't gotten yours yet, time is running out! The Copying Is Not Theft campaign closes on Monday at 8:00pm PDT, and we won't be taking reservations after it ends (the shirt will come back some day, but we aren't setting a date and it might be a while). So hurry up and place your order before it's too late! Next, we've got a brand new deal for Techdirt readers. I probably don't need to tell anyone reading this how important a VPN is if you're concerned about your privacy and security online, and that's why we've teamed up with Private Internet Access (one of the most popular and highest rated VPN providers out there) to offer a one-year subscription to the Techdirt Crystal Ball for free when you sign up for a VPN account. The Techdirt Crystal Ball is a special members-only feature that lets you read, share and comment on upcoming Techdirt posts before they go public on the front page of the blog, giving you a glimpse into our internal editorial queue and letting you get the jump on the conversation: Normally Crystal Ball access costs $15/year via our Insider Shop, but you can get a full year for free: just use our special affiliate link to sign up with Private Internet Access. We won't auto-renew the Crystal Ball subscription or force you to cancel to avoid being charged — after the year is up, it will expire automatically. Once again, happy long weekend everyone! Thanks for checking out these offers and helping us grow our CwF+RtB philosophy instead of tangling with crappy ad networks. All the profit from these and everything we sell goes to supporting (and expanding!) our ongoing reporting — we couldn't do it without you. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Every so often, we've written about examples of historical "moral panics" -- those moments when "concerned citizens" (often including the press and/or politicians) freaked out about the moral horrors of... some awful "new" thing. You all know the obvious ones: like comic books and Dungeons & Dragons, but we like to highlight the truly oddball ones that people these days don't realize were ever possibly considered a threat to our moral fabric. Things like chess and the waltz. Oh, and of course the printing press. Evil, evil, evil filthy things that will warp the minds of our young people and make them lazy, violent and degenerate. A few years ago, we wrote about the delightful

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posted 23 days ago on techdirt
The Kingdom of Bhutan is probably best known for its splendid location in the Himalayas, and for eschewing measurements of Gross Domestic Product in favor of Gross National Happiness. In the one Techdirt story so far about the nation, we also reported that Bhutan's government seemed to lack a sense of humor when it came to the Internet. Three years later, the online situation threatens to deteriorate further: Bhutanese journalist Namgay Zam is facing defamation charges over a Facebook post, marking the first time that anyone in the Himalayan country has been taken to court over their social media activities. As the detailed Global Voices post makes clear, this is a complicated story, involving not just journalists, but also senior judges and powerful business and political figures. The ramifications of this case are likely to be serious. Here's what the country's prime minister said, quoted on the Bhutanese Web site Kuensel Online: As of now, Bhutanese are using social media in a sensible manner but often we come across news that takes an unhealthy trend. For that, we do have a social media policy coming into force where we have incorporated certain restrictions regarding what we can share on social media and what we can't share or what kind of news can come into the social media, among others. It remains to be seen what that new policy will entail, and the extent of the censorship imposed. But it's sad to see a country that cares about maximizing national happiness taking precisely the same route as less enlightened nations. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Law professor Eric Goldman (who has guest blogged here on occasion) has announced that he'll no longer be blogging at Forbes. There are a few different reasons why -- including some personal/family related ones, but one of the reasons that stands out is that he's unhappy with Forbes' decision to block people using ad blockers: Forbes turns away readers who use ad blockers, and that creates problems for me. First, I’ve heard complaints that the technology misidentifies some users as using ad blockers when they don’t, leaving those users stuck. Second, many of my readers do use ad blockers, and Forbes’ policy hinders those readers from being able to read my posts. Worse, I felt like I lost some reader goodwill for contributing to a venue with an unpopular ad blocking policy. We've discussed Forbes' anti-ad blocker policies, even wondering if we should stop linking to Forbes articles. I know that, for a while, Forbes was misidentifying me as using an ad blocker and not letting me access stories on the site. I can say that, more than once, I wasn't able to read some of Goldman's posts, that we might have written about, because of those blocks. Most of our focus was on how this impacted readers and also folks like us who might send Forbes traffic -- but it's worth also thinking about how it impacts writers as well, and taking away their audience, or otherwise upsetting them. We've seen in the past some writers leave publications that had put up paywalls, and now the same impact may be happening for those that block ad blockers as well.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
For quite some time now, we've seen EU regulators talk fairly openly about their desires to harm American internet companies, mostly in a misguided attempt to boost local European companies (and to collect more money). It's why we keep hearing about weird, carefully targeted regulations designed to pump up how much money companies like Google, Apple and others pay. At the same time, parts of Europe (Ireland, in particular) have been doing basically everything they can think of to woo American tech companies. Ireland has successfully offered ridiculously friendly policies, leading many large internet companies to set up offices in Dublin, and then use that as the place where they "recognize" all their revenue. There are a variety of tax dodges employed here, which go by fun names like Dutch Sandwich and Double Irish. US Companies have been doing this for many years, and while it (frankly) looks pretty sleazy, they do seem to mostly play by the rules. We can argue over whether or not the tax breaks they get are worth it, but the whole thing just feels sketchy in that it's clearly playing some jurisdictional games to get lower tax rates. Of course, there's also been another looming issue on all of this, which is that these giant internet companies have been pushing heavily to be able to get the cash that they've been accumulating in Ireland back into the US, without then having to pay all those taxes on it. So they've been pushing for some sort of "amnesty" period or "holiday" where they can bring the cash back in. Frankly, the whole thing is a little ridiculous. With so much money on the line, you can see why these companies play games, but that still doesn't make it right. The internet giants often seem to put this issue at the top of their lobbying priority list, and that's unfortunate. The thing that I like about Silicon Valley is that much of the industry comes from actually creating new and useful things and building stuff up. Playing tax dodging games is the opposite of that. It's playing political games and it feels super counterproductive. Now, add on top of that the fact that the EU has realized that rather than just create new laws that will tax internet giants, it can just go ahead and hit Apple with a massive tax increase all by itself. Apple Inc. was ordered to pay as much as 13 billion euros ($14.5 billion) plus interest after the European Commission said Ireland illegally slashed the iPhone maker’s tax bill, in a record crackdown on fiscal loopholes that also risks inflaming tensions with the U.S. The world’s richest company benefited from selective tax treatment that gave it an unfair advantage over other businesses, the European Union regulator said Tuesday. It’s the largest tax penalty in a three-year campaign against corporate tax avoidance. Apple and Ireland both vowed to fight the decision in the EU courts. No one comes out of this looking very good. The tech companies playing tax haven games look bad -- even if you think the tax rate is too high and they should be trying to get it lowered. The EU government looks typically jealous and petty towards American companies. And of course, people are already talking about a possible trade war over this issue. Frankly, I'd much rather tech companies be focused on innovation in their products, rather than in their tax strategies.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Prestigious Pets, a Texas pet-sitting company, has done a severe amount of damage to the "prestigious" half of its name over the past several months. After front-loading its inevitable reputational ruin by adding a KlearGearian "non-disparagement clause" to its service contracts, the company doubled-down with a $1 million defamation lawsuit after losing out on its small claims court bid to extract $6,766 from an unhappy customer for "lost work opportunities" and "libelous and slandurous [sic] harm." The unhappy customers, whose Yelp review only stated the pet sitter Prestigious Pets hired had overfed their fish, were forced to defend themselves against a clearly baseless lawsuit. Fortunately, Chris Dachniwsky of law firm Thompson & Knight stepped up to represent the couple on a contingency basis. Even better, Public Citizen's Paul Alan Levy is reporting the court has tossed the lawsuit and found [PDF] the non-disparagement clause Prestigious Pets deployed to its own detriment is unenforceable. A state District Court in Dallas (Judge Jim Jordan of the 160th District) has struck down a lawsuit over a non-disparagement clause in a form consumer agreement, holding that it could not be enforced against a consumer who expressed dissatisfaction about the service provided by a local business. Although we have won default judgments in Utah against Kleargear and in New York against Accessory Outlet, this case represents the first time a company defended its non-disparagement clause with a brief, and thus the first time we have had a judge’s ruling refusing to enforce such a clause. [...] What the decision does make clear is that non-disparagement clauses in form consumer contracts are susceptible to attack in court and that businesses in states with anti-SLAPP statutes should act with care before suing to enforce them. Any company seeking to enforce these stupid clauses is basically pointing a loaded gun at its own reputation when doing so. Taking someone to court over them is pulling the trigger. Suing unhappy customers has almost never worked out in favor of those filing lawsuits. Even if, by some off-chance, the court agrees with them, the public won't. Unfortunately, the very short opinion doesn't necessarily say the court will never find these clauses enforceable. But this particular case is dismissed with prejudice, meaning Prestigious Pets can't drag the unhappy customers back into court over the same claims. Here's the decision in full, which is greatly aided by the state's anti-SLAPP law. Legal fees will be paid by Prestigious Pets, which means Thompson & Knight's good deed is the rare kind that may go rewarded, rather than punished. On July 29, 2016, the court heard Defendants, Robert Duchouquette and Michelle Duchouquette's, Motion to Dismiss Plaintiffs' Claims Under Texas Citizens' Participation Act. Having considered the Motion, Plaintiffs' Response, Defendants' Reply, Plaintiffs' Sur-Reply, the supporting affidavits and exhibits of the parties and the argument of counsel, the court grants Defendants' Motion to Dismiss. IT IS THEREFORE ORDERED AND ADJUDGED that all causes of action alleged in Plaintiffs' Original Petition are dismissed with prejudice and that Plaintiffs, Kalle McWhorter and Prestigious Pets, LLC, take nothing from Defendants, Robert Duchouquette and Michelle Duchouquette in this action. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, upon notice and hearing, Defendants are entitled to recover their court costs and reasonable and necessary attorneys' fees incurred in defending this action as justice and equity may require pursuant to § 27.009(a) of the TEXAS CIVIL PRACTICE AND REMEDIES CODE and recover sanctions against the Plaintiffs sufficient to deter them from bringing similar actions described in Chapter 27 of the TEXAS CIVIL PRACTICES AND REMEDIES CODE. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The Intercept has obtained what appears to be another set of leaked documents -- these ones originating from the Florida Department of Law Enforcement. The first document released (assuming that more are on the way) is a catalog of law enforcement-only tech products from UK firm Cobham, including Stingray-like devices capable of not only locating suspects, but also intercepting their phone calls and messages. Information about Cobham’s own suite of Stingray-style boxes is almost nonexistent on the web. But starting far down on Page 105 of the catalogue is a section titled “Cellular Surveillance,” wherein the U.K.-based manufacturer of defense and intelligence-oriented hardware lays out all the small wonders it sells for spying on people’s private conversations, whether they’re in Baghdad or Baltimore... From the catalog [PDF]: Cobham designs and manufactures Active Cellular Surveillance Systems. These are designed for tactical operations in short to medium range missions and provide the user with intelligence to help identify and monitor criminal activities, criminals and terrorists. They can also be employed for humanitarian operations. Solutions are typically used for: • Counter terrorism and organized crime operations, identifying and monitoring suspects, exploring target contact details and intercepting outgoing voice calls and SMS messages. • Situational control, enabling identification and network denial of cellular devices through ‘intelligent’ jamming, including creating controlled areas of coverage. • Suspect geo-locating capabilities. Cell emulators, direction finders and coverage analysis provide ideal applications for: suspect identification, exploration of target’s contact networks, suspect monitoring and search and rescue. In-country support contracts are available to ensure effective maintenance and support of the cellular technologies. Harris' Stingrays also provide the same interception capabilities, but every law enforcement agency that has been forced to discuss their use of IMSI catchers denies using these features, including the FBI. But the fact that this capability is in the hands of law enforcement is still a concern. [ACLU attorney Nathan] Wessler said “the note at the top of the page about the ability to intercept calls and text messages (in addition to the ability to geo-locate phones)” is of particular interest, because “domestic law enforcement agencies generally say they don’t use that capability.” Also remarkable to Wessler is the claim that cellphone users can be “tracked to less than 1 [meter] of accuracy.” Just as concerning is the fact that law enforcement has routinely deployed this equipment using only pen register orders -- locating suspects using legal paperwork that's only supposed to cover numbers dialed by a phone, not its current location. With these features built in, law enforcement agencies have access to wiretap capabilities at pen register prices, in terms of the Fourth Amendment. Also of note are the variety of IMSI catchers offered by Cobham, which include products with enough power to grab as many connecting phones as a full-blown cell tower. Others offer the capability to deny service to all phones within their reach or, conversely, grab up to 200 unique cell phone identifiers a minute. Cobham also sells body-worn companion trackers for use with its larger cell tower spoofers, designed to be worn covertly to better narrow down the location of devices. Cobham also offers cities complete surveillance systems with IP mesh networks for securely transmitting footage, data, etc. to control centers and cameras that do more than simply watch -- they also tag, track and locate suspects. Add-ons include thermal cameras and ground sensors. And there's so much more. A plethora of covert surveillance cameras which Cobham will gladly shove into anything from a street light cover to a smoke detector (or a splice boot, wall clock, utility pedestal…). Many of the product descriptions contain a bit of military op lingo -- which makes sense considering Cobham's history of acquiring US defense and intelligence contractors like Sparta and Argotek, along with its partnership with Northrop Grumman. (It also -- like other purveyors of surveillance/intelligence tech -- is less than discriminate as to who it sells to. Its customer list includes Pakistan, Saudi Arabia, and Singapore.) What could make more sense than selling repurposed war gear to law enforcement agencies which seemingly view themselves as both military forces and intelligence agencies? Finally, like all good leaked documents, this catalog comes with a warning to unauthorized readers. This catalog is the property of Cobham Tactical Communications and Surveillance and must be returned upon request. Yeah. Let us know how that goes. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The National Association of Secretaries of State (NASS) [yes, there's an association for everything] has just announced its selections to head up a DHS "working group" tackling "election infrastructure cybersecurity." Like any committee formed in response to a hot-button topic, the appointees are better known for their years of tenure in government positions than their technical acumen, as the ACLU's Chris Soghoian points out. 4 state gov officials, 0 tech experts, appointed to new DHS Election Infrastructure Cybersecurity Working Group. https://t.co/jKH3SScpd4 — Christopher Soghoian (@csoghoian) September 1, 2016 4 state gov officials, 0 tech experts, appointed to new DHS Election Infrastructure Cybersecurity Working Group. About the only thing the appointees have going for them is that they fit the description: all four are state-level secretaries of state. Beyond that, there's very little to indicate they're qualified to take on cybersecurity issues. The working group's president, Denise Merrill, is Connecticut's Secretary of State. At least her bio contains some initiatives loosely-related to the task at hand. As Connecticut's chief elections official and business registrar, Merrill has focused on modernizing Connecticut's elections, business services and improving access to public records. [...] Secretary Merrill has worked to expand voter participation through Election Day and online voter registration. She has also improved Connecticut's democratic accountability and integrity with a series of rapid response processes to Election Day problems. Indiana's Connie Lawson also appears focused on voter security, albeit in equally vague terms. Connie Lawson is Indiana’s 61st Secretary of State. As Indiana’s Chief Elections Official, she is focused on ensuring the integrity and security for our state’s elections. Since taking office, Secretary Lawson has championed sweeping election reforms, and has led the effort to clean Indiana’s voter rolls. [...] Secretary Lawson is not just an advocate for election security. She is also working to modernize elections through vote centers. As a state Senator, Secretary Lawson authored legislation allowing any county in the state to move to the vote center model. As Secretary of State, she has worked to educate voters and elected officials on the cost saving benefits and convenience of the vote center model. There's not much to be said about the other appointees -- Georgia's Brian Kemp and California's Alex Padilla -- in terms of cybersecurity. However, there's plenty to be said about safeguarding elections. Padilla has been sued twice over alleged election fraud. And Kemp's office mistakenly released the personal information of six million registered voters. But there's one thing they can all agree on: there's nothing to worry about. From Connie Lawson's home state: Indiana's voter system is safe from hackers according to the Indiana Election Division. “We are confident that the security features of our statewide voter registration system protect against hacks described in the FBI alert sent last week,” says Angie Nussmeyer, co-director of the Indiana Election Division. Working group president Denise Merrill on the possibility of election-related hacking in her state: She explained that Connecticut has perhaps the most decentralized voting and registration system in the country with 169 cities and towns that act as their own districts. Built into that system is an entirely paper based trove of voter cards, ballots, and backups. “When you go into vote and you go to register on the list, it’s all still on paper so there is no simple database that’s containing all of the information," Merrill said. From Alex Padilla's office: A spokesman for California secretary of state said the agency, which oversees elections statewide, was aware of the cyber attack reports. "We have no evidence of any breaches or hacks of our system,” agency spokesman Sam Mahood said. The best statement of self-assurance comes from appointee Brian Kemp, who just a few days earlier was claiming vote-hacking fears were an Obama-led attempt to federalize state voting. The federal government wants to help states keep hackers from manipulating the November election, amid growing fears that the U.S. political system is vulnerable. But Georgia’s top election official is balking at the offers of assistance — and accusing the Obama administration of using exaggerated warnings of cyberthreats to intrude on states’ authority. [...] “It seems like now it’s just the D.C. media and the bureaucrats, because of the DNC getting hacked — they now think our whole system is on the verge of disaster because some Russian’s going to tap into the voting system,” Kemp, a Republican, told POLITICO in an interview. “And that’s just not — I mean, anything is possible, but it is not probable at all, the way our systems are set up.” It appears Kemp is worried more about preserving the integrity of his opposition status than he is about protecting the integrity of the presidential election. One day prior to the NASS press release, Kemp was claiming to have turned the position down. Kemp recently declined an offer by the Department of Homeland Security for cyber security assistance, raising concerns about the federal government’s intrusion. Fortunately, this lack of technical prowess won't prevent the working group from achieving the DHS's goal, which appears to have little to do with actual cybersecurity. "Secretaries of State are committed to working with our federal partners to increase awareness of federal government cybersecurity resources and services that are available to election officials," said NASS President Denise W. Merrill, Connecticut Secretary of the State. "We look forward to sharing state best practices and technical advice that will strengthen understanding and collaboration between state and federal agencies." "Increasing awareness" is one of those goals that sounds lofty, but generally materializes as mass emails and the occasional mandatory Powerpoint presentation most attendees will doze through. Every person listed here is a figurehead appointee to a figurehead working group -- one likely formed in response to a similar, higher-level "increase awareness" mandate handed down by administration officials. The lack of tech experts isn't going to cause much harm because the point of this committee is to be a committee. No one expects any sort of cybersecurity breakthroughs to be generated by something that will do little more one more line to these politicians' bios. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Two decades ago, there were a series of lawsuits against copy shops over whether or not it was fair use for them to be photocopying educational materials for college coursepacks. Unfortunately (and, some of us still think, incorrectly) the courts ruled that this was not fair use. The end result was that the price of coursepacks shot up to astronomical levels (this happened while I was in college, and I saw coursepacks increase in price from $20 - $30 to well over $100, and they've gone up more since then). Earlier this year, it appears that a new version of this kind of lawsuit was filed by Great Minds, an educational non-profit, against FedEx, the shipping giant who also took over what used to be known as Kinkos copy shops, now rebranded as FedEx or FedEx Office. At issue: these copy shops owned by FedEx were photocopying some of Great Minds' works for educational entities. Great Minds says that FedEx is infringing on the copyright. If that was all there was to it, based on the cases back in the 90s, Great Minds would have a slam dunk of a case (unfortunately). Here's the twist: the works in question, Great Minds released under the CC BY-NC-SA 4.0 license, or the Attribution-NonCommercial-ShareAlike license. So at the heart of this issue is what is meant by "noncommercial" in this license. Great Minds argues that because FedEx is profiting off the copying, it's commercial, and thus the license is violated and the copies are infringing: This explicit limitation of the License to noncommercial use requires that commercial print shops, like FedEx, negotiate a license and pay a royalty to Great Minds if they wish to reproduce the Materials for commercial purposes – i.e., their own profit – at the request of their customers. Thus, this limitation benefits Great Minds and the public, too, by providing Great Minds with additional financial resources to develop new curricula, which in turn can be made available nationwide for free, noncommercial use, and otherwise to further its educational mission. Now, this is both an interesting question and a not particularly surprising one. For many, many, many years, I've pointed out some concerns I've had with the "noncommercial" license that Creative Commons offers, because "commercial use" is kind of a vague idea at times, and seems to open up the opportunity for nutty cases (like this one!). In fact, we've also noted that the offering of a "noncommercial" license has resulted in some problematic branding confusion for Creative Commons, sometimes leading people to think that it's only for people who don't want to make money. And people have made the suggestion that CC may want to drop or otherwise spin off those NC licenses to avoid the confusion. To its credit, Creative Commons has actually tried to address this issue proactively over the last few years, and has been careful to take a lot of the feedback into account. And part of that has resulted in increasingly defined guidelines that clarify what is and what is not commercial use in the context of Creative Commons. And that makes the latest news quite interesting as well. Creative Commons is asking to file an amicus brief in the case, arguing that Great Minds has seriously misunderstood what NC means in a CC license. CC doesn't beat around the bush either: We seek to file an amicus brief explaining why Great Minds’ interpretation of the CC BY-NC-SA 4.0 license is wrong.... [....] The point of Creative Commons licenses is to be useful tools that facilitate creative, socially constructive activity. Particularly (though not exclusively) where the licensee is an entity rather than an individual, the entity must be able to act as entities do, through employees and contractors alike. The artificial distinction drawn by Great Minds—between whether a school district employee pushes “copy” and pays FedEx Office for use of its copier, or a FedEx Office employee pushes “copy” on the same machine—would, if applied more broadly, preclude the use of most or all standard channels of dissemination and render the licenses all but useless. It would force users to choose between owning the entire chain of production or distribution, and leaving a trail of actionable copyright infringements in their wake. That is emphatically not how Creative Commons NonCommercial licenses were designed to work. Creative Commons further points out that agreeing with Great Minds could create a real issue as tons of NonCommercial CC licenses may not do what people expected them to do: Finally, we note that Great Minds has argued that “granting FedEx’s motion would create bad public policy.” See Pl.’s Opp. to Mot. to Dismiss at 15. That is backwards. Creative Commons takes no view on whether, as a general matter, it is good or bad policy for creators to license works to the world-at-large under precisely the terms Great Minds seeks to enforce in this litigation—by using their own licenses, not ones from Creative Commons. But to twist the meaning of the CC BY-NC-SA 4.0 to engineer that result would be profoundly damaging. It would disrupt the settled expectations of innumerable users and creators of works governed by CC BY-NC-SA 4.0 licenses around the globe. And it would substantially diminish the utility of a license that enables the sharing of knowledge and creativity to build a more equitable, accessible, and innovative world. Hopefully, CC is allowed to weigh in... and the court realizes how this lawsuit is a misinterpretation of the NonCommercial license.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Okay, we have some really serious concerns about the absolute mess of a draft copyright reform proposal that was leaked via EU regulators. The whole thing is basically a giant handout to legacy entertainment companies, pushing for things like taxing Google and other aggregators, and generally ignoring what's best for the public. But apparently there's one single part of the plan that the entertainment guys don't like: the fact that a big part of the proposal is to knock out geoblocking, to create this "digital single market." To hear Hollywood whine about this, you'd think it was the equivalent of forcibly making all their content available via BitTorrent. In a letter to the presidents of the European Commission, European Council and European Parliament, they warn that the EU's plans to help make more films and TV shows available online across borders will have "severe negative impacts on our industry and incentives to invest, which would stunt economic growth and innovation for years to come." To which the only proper response should be: "Oh, for fuck's sake, get over yourself." You have to be one seriously fucked up industry to believe that a plan to bring down barriers and that makes it easier for the public to access your work completely legally will somehow have "severe negative impacts." At the very least, it certainly gives you an idea of what the MPAA thinks of the current suckers who are happily paying them to watch movies. A Digital Single Market makes a ton of sense. Geoblocking is the bane of many people's existence, especially in Europe where so much content is blocked. You'd think that Hollywood would be happy to decrease barriers and open up greater opportunities to expand markets. But it often feels like "logical" and the "MPAA" are consistently at odds with one another. Opening up more markets creates better experiences and more consumers. But the MPAA is so focused on control that it doesn't realize that it's working against its own interests here. And, really, given everything else that's in the bill, it seems like the least Hollywood studios could do is not attack the one good thing about this whole plan, the lowering of market barriers.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Some terrestrial TV stations and cable stations are better at internet-ing than others. While Netflix has built an empire upon streaming ad-free shows, for instance, other services like Hulu have gone the route of a tiered structure, with a price point for streaming with ads and one for streaming without ads. One of the interesting things is seeing other traditional broadcast networks watch how these models play out and then go about offering their own. Take CBS, for instance. It's very clear that CBS is enamored with the idea of streaming its content advertising free, but likes Hulu's tiered structure better than that of Netflix. At CBS' site, you can see that it is now offering two tiers of its "All Access" platform. The existing service is offered with "Limited Commercials", while a service that costs $4 more is labeled "Commercial Free." I'd like to focus on the commercial free offering for a moment, because it's a bold step that includes giving viewers a way to stream CBS shows "commercial free", except where there are both commercials and where CBS is choosing to call "commercials" by the term "promotional interruptions" instead. There are some caveats to CBS’ “commercial-free” option. CBS isn’t spending much time highlighting these asterisks, but they tell you interesting things about the TV ecosystem in 2016: -If you stream a CBS show live, when it first airs, you’ll still see ads — the same ones you’d see on conventional TV, depending on the local TV market you’re in. -CBS says “select on-demand shows will include promotional interruptions.” I talked to a CBS rep for a translation: The “promotional interruptions” will be brief, but un-skippable, promos — 15 seconds at most, and no more than two promos per half-hour — for other CBS shows. They’ll show up in about 10 percent of CBS’ episodes, and about 20 percent of its titles — generally its newer shows. That’s because CBS has sold on-demand rights to some of those shows to subscription services like Amazon or Netflix, and in some cases those services have exclusive rights to an ad-free “window” for those shows. It appears CBS has been taking its cues from the mobile network industry, which absolutely loves calling its plans "unlimited", even though they are very much limited. In this case, the streaming service is "advertising free", except for all the ads on live shows and all of the promotional interruptions on streaming the older library. I had once thought that coming up with new business models to appeal to the public was hard. Turns out it's not! You just have to call one thing by another name and insist the entire world play make believe! The folks over at Recode appear to think that CBS doesn't even really want people to use this option. The big picture is that CBS is still very much in the advertising business, and will be for a very long time. So it is presumably betting that the ad-free option will only be interesting to a subset of its All Access subscribers, who are a small subset of its total audience. It's breathtaking in its cynicism. CBS decides to claim a service is something it isn't while hoping most customers don't use it or want it and instead use the other level of service. It's an insight into how the company sees its viewers, as little more than money-levers waiting to be pulled in the right order to extract the maximum amount of revenue, regardless of whether it has to engage in double-speak and obfuscation in order to do so. We at Techdirt want to play along with CBS on this sort of thing, which is why we're proud to say that this post is offered to you vulgarity free! On an unrelated note, CBS' advertising free offering is bullshit. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
The NYPD may not have time to update its Muslim surveillance policies or inform its officers of changes to its stop-and-frisk program, but it certainly has time to dig around for policies it can use to keep even more information out of the public's hands. The New York Daily News reports the NYPD has been paging through old laws and has found something that will be useful in further reducing the department's accountability. (h/t Reason) Citing a clause in a 40-year-old law, the NYPD has suddenly decided to keep records regarding the discipline of officers under lock and key — and will no longer release the information to the public, the Daily News has learned. For decades, journalists have had access to "Personnel Orders." The NYPD used to hang these on a clipboard in its public information office. The orders contained information about closed internal investigations of police misconduct -- namely, by detailing promotions withheld, etc. Then, suddenly, the NYPD just stopped posting the orders. When asked, the NYPD first claimed to be very interested in conserving renewable resources. The clipboard has not been updated since April, when an order dated March 31 was posted. At the time, the NYPD told The News it was saving paper. Then, when presumably asked if digital copies were going to be made available, the NYPD changed it story. The real reason is an NYPD lawyer with far too much time on their hands found a clause in a 1976 law that could serve as yet another departmental middle finger in the direction of transparency. Asked what prompted the shift, Deputy Chief Edward Mullen, a police spokesman, said “somebody” in the department’s Legal Bureau realized that, for years, it had been giving out information it should not have. Sure enough, the law appears to say what the NYPD says it says. All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state… shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, … correction officer or peace officer within the department of corrections and community supervision except as may be mandated by lawful court order. But why is it doing this now? If it's been handing out this info for "decades," then it's been posting the records publicly since shortly after the law was enacted that says it doesn't have to without being presented with a court order. It appears the NYPD's office is permanently tasked with finding ways to keep any details about officer misconduct away from the public. And the answer's been staring the NYPD in the face since pretty much the moment it started posting personnel records. The NYPD's unofficial policy on transparency and accountability is to only address either if forced to. And yet, it claims it's so open and transparent it can hardly stand it. Police officials have argued the NYPD puts out more information than it ever has. More crime stats and reports are posted online, precincts routinely use Twitter to provide updates and use-of-force reports will soon be provided to the City Council. When you're releasing only the sort of data that mainly details wrongdoing by others (crime stats, Twitter updates, arrest reports), then it's really easy to be "open" and "transparent." The stuff the NYPD is more reluctant to turn over (use-of-force reports) is still running through additional filters (the city council) before it ends up in the hands of the public. What's really of public interest now are details on police misconduct and how departments are handling internal investigations. And right at the height of this interest, the NYPD is using a 40-year-old law to cut the public out of the loop. Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
While the University of Texas is no stranger to being a trademark bully, and colleges in general have become overtly maximalist in intellectual property protectionism, it can still be stunning to see the lengths to which a school will go. The latest trademark dispute concerning UT involves donuts shaped in the 'hook 'em horns' gesture, because apparently the school is now in the pastry business. Recently, the owner of Donut Taco Palace 1, Angel Seng, received a threat letter from the university insisting that she stop making donuts that look like horned-hands. The letter, dated July 19 and sent from law firm Pirkey Barber, which represents the University of Texas in trademark and unfair competition matters, included a photo of Seng’s Longhorn Donut and an explanation that it violates UT’s trademarked “LONGHORN Marks,”which include the words “longhorn” and “longhorns” and the Hook ‘Em hand symbol. “While the University appreciates Donut Taco Palace’s enthusiasm, UT is understandably concerned about your use of the LONGHORN Marks in this manner,” the letter said. “We suspect that you were not aware of the University’s trademark rights when you started selling ‘Longhorn Donuts.’ We trust that, now that these rights have been brought to your attention, you will take the appropriate steps to discontinue sales of the ‘Longhorn Donuts’ and refrain from any other uses of the University’s marks.” And here is a picture of the donuts in question. Now, while the UT website page that specifically discusses licensing arrangements in the most non-specific manner possible doesn't detail which areas of commerce it has trademarks on for the hook 'em hand gesture, nor does the letter that Seng received, UT representatives have managed to trot out the tired old excuse for why the school must behave this way. Craig Westemeier, senior associate athletics director for trademark licensing at the University of Texas, said in an email that the university receives tips on trademark violations from a variety of sources including alums, fans, staff, faculty, students and anonymous emails. He said the UT brand must be monitored and protected in order to maintain its integrity and value. “It is an integral part of the trademark law that we protect to regulate the use of and educate the public regarding our rights in these marks. That is our responsibility as a trademark owner,” he said. “We cannot permit the use of our trademarks without providing approval, review and quality control of the item being produced. An inferior product or one that is not properly vetted could hurt the University’s reputation.” As we've pointed out over and over again, the threat-hammer is not the only way someone can go about protecting its trademark from dilution. With that even being said, there are real questions as to the validity of UT's claim. Questions such as: does the school have a trademark on the hand gesture in the area of baked foodstuffs, can it demonstrate any real or potential customer confusion as to whether or not the school was involved in the creation of these donuts, and exactly how often has the school gotten into trademark disputes with heavy metal rock fans and satanists that famously use the same hand gesture? Sadly, these questions will go unanswered, because trademark bullying works. Inside Donut Taco Palace, where pale pink walls are covered with photos of menu items that include a doughnut sandwich (a cinnamon roll, cut in half, toasted and stacked with cheese, egg and sausage) and yes, a doughnut taco, there’s a blank space where the Longhorn Donut used to be. Seng said fighting the university would probably become a doughnut vs. Goliath proposition that she can’t afford, so for now she’s re-naming it and purposely selling fewer. “We’ll change the name and let it go,” she said. “It wastes time to fight back. It’s not worth it.” Way to hook 'em, Longhorns... Permalink | Comments | Email This Story

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