posted 18 days ago on techdirt
Things had been a bit quiet on the Garcia v. Google front for the past few months. As you may recall, this was the ridiculous legal fight, in which an actress, who was in the infamous "Innocence of Muslims" film, sued Google for not taking down the video after she made a copyright claim on it. The district court rightly laughed that argument out of court, noting that as an actress in the film, she had no copyright interest in the film. However, in a move that left nearly everyone in the copyright world scratching their head, on appeal, famed judge Alex Kozinski basically made up an entirely new section of copyright law to say that she did, in fact, have a copyright interest in her role in the film, and that because of that, Google was ordered to remove every copy of the entire film from its sites and that Google couldn't talk about it for a period of time. Once all this came out there was an immediate uproar and a variety of challenges. Kozinski shot down an emergency motion to stay the ruling, but did amend the original order to admit that copies of the video without the scene including Cindy Lee Garcia could remain up on the site. Still, another judge on the court actually asked the entire court to reconsider, and Google asked the entire court to reconsider the entire case, leading a whole bunch of folks to weigh in -- all on the side of Google. Even we weighed in in a filing written by lawyer Cathy Gellis, highlighting how Congress clearly intended to protect intermediaries from liabilities in situations like this. Things had been entirely silent on the case for a really long time, but this morning, the court issued "an amended opinion," which appears to be Kozinski both doubling down on his original, ridiculous ruling while at the very same time offering a bunch of outs for the lower court to fix what Kozinski himself totally screwed up. It's the most bizarre type of tap dancing you'll see in a judicial ruling in a long time. Basically, for all of the arguments that show why Kozinski is wrong, he just puts his arms up and says "hey, no one raised that issue, so we ignored it." Nothing we say today precludes the district court from concluding that Garcia doesn’t have a copyrightable interest, or that Google prevails on any of its defenses. We note, for example, that after we first issued our opinion, the United States Copyright Office sent Garcia a letter denying her request to register a copyright in her performance. Because this is not an appeal of the denial of registration, the Copyright Office’s refusal to register doesn’t “preclude[] a determination” that Garcia’s performance “is indeed copyrightable.” .... But the district court may still defer to the Copyright Office’s reasoning, to the extent it is persuasive.... After we first published our opinion, amici raised other issues, such as the applicability of the fair use doctrine..., and section 230 of the Communications Decency Act.... Because these defenses were not raised by the parties, we do not address them. The district court is free to consider them if Google properly raises them That latter issue, of how Section 230 is relevant here, is the one that we raised in our brief, so it's nice that he "acknowledges" that it exists here, but this is still a pretty weak response. Later, he does this again with the First Amendment argument. In the original, he totally dismissed any First Amendment questions with a breezy (and misleading) "the First Amendment doesn't protect copyright infringement." Here he tries to "clarify" that by admitting that "oh yeah, there's fair use," but it doesn't matter since Google didn't raise fair use: “First Amendment protections are ‘embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,’ and in the ‘latitude for scholarship and comment’ safeguarded by the fair use defense.” ... Google hasn’t raised fair use as a defense in this appeal, see page 11 supra, so we do not consider it in determining its likelihood of success. This does not, of course, preclude Google from raising the point in the district court, provided it properly preserved the defense in its pleadings. Of course all of this ignores the basic fact that none of those arguments made sense at all because it was absolutely ridiculous to argue that an actress had a copyright interest in a film in the first place. It's long been established that that's simply not true. Furthermore, as the new dissent snarkily points out in a footnote, Kozinski's desire to avoid addressing these rather obvious flaws in his own argument are pretty damning: The majority’s amended opinion also attempts to hedge its conclusion that Garcia has a copyright interest in her acting performance by avoiding counter arguments it failed to address, because they were not raised by the parties. Maj. op. at 11, 19. Yet, the majority could consider these arguments sua sponte “under exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties.” ... The majority’s failure to even engage this inquiry, instead quickly dismissing arguments against its view, confirms its error This amended ruling is a bizarre look into the mind of Judge Kozinski. He seems to recognize that he messed up royally in the original decision... but he's too proud to let it go. So, instead, he's basically doubling down on his original, questionable reasoning, while adding in all these ways that the impact of his own terrible decision might effectively be minimized, if only people raised a variety of defenses that shouldn't have mattered in the first place, if Kozinski hadn't read the law so incredibly wrong. Even if it does go back to the district court, and the court rules correctly under Kozinski's "new" rules, the original precedent would still stand. Of course, this process isn't even close to over. The ruling notes that the court is still considering an en banc rehearing with a larger panel of judges from the 9th Circuit, who would hopefully overrule Kozinski entirely, and drop this horrible precedent. But, for now, we have to wait, and live with Kozinski's unwillingness to admit to his mistakes.Permalink | Comments | Email This Story

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Last year, in a move simultaneously symbolic, thuggish and completely futile, GCHQ officials forced The Guardian to destroy computers "containing" Snowden documents. The fact that the documents were also housed elsewhere (including at two American newspapers) mattered little. The point was simple: we can get to you. In the service of "national security," the GCHQ came down on the journalistic entity with something straight out of the Running A Dictatorship For Fun And Profit handbook. Exact words deployed: "You've had your debate. There's no need to write more." NSA officials notably refused to comment on the GCHQ's actions, perhaps hoping critics would view the silence as disapproval or, at the very least, pointedly not condoning the hardware destruction. The White House publicly condemned the destruction, stating that it was "hard to imagine" this sort of thing happening domestically. That was just the PR front, apparently. Documents obtained by the AP show that NSA officials and administration staff were not only notified in advance of the GCHQ's plans, but also offered their support of this action. General Keith Alexander, the then director of the NSA, was briefed that the Guardian was prepared to make a largely symbolic act of destroying documents from Edward Snowden last July, new documents reveal. The revelation that Alexander and Obama's director of national intelligence, James Clapper, were advised on the Guardian's destruction of several hard disks and laptops contrasts markedly with public White House statements that distanced the US from the decision. GCHQ's attempted prior restraint found support from the upper levels of the NSA. Presumably, officials knew how empty the effort was (what with documents having been spread to the New York Times, ProPublica and others), but that still didn't stop at least one official from greeting the GCHQ's plans with enthusiasm. An email to Alexander from Rick Ledgett, now deputy director of the NSA, has the subject line "Guardian data being destroyed", and is dated 19 July, a day before the destruction of the files. Most is heavily redacted, but Ledgett remarks: "Good news, at least on this front." Ledgett has a bizarre definition of "good news." All this move did was confirm that the GCHQ cared more about pretending it could somehow regain control of the situation than it did about freedom of the press. These obtained documents show the NSA's top men think the same way. Given these two countries' close surveillance relationship, this news comes as a bit of a surprise (considering earlier administration statements) but certainly not as a shock. When one "free world" country applauds another's low-rent thug tactics (even in secrecy), the message is clear: the public needs to be taught not to question things above its pay grade. Permalink | Comments | Email This Story

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We recently wrote about Microsoft going to court and convincing a judge to (with no adversarial hearing) allow it to seize a bunch of domain names from No-IP, redirecting all traffic to them through Microsoft's own servers. Those servers quickly encountered problems, meaning that many people who relied on No-IP's dynamic DNS system, found that they couldn't access their sites. Microsoft later blamed this on a "technical error" but it still appeared that the seizure effort was a gross abuse of the legal process. Remember, in the lawsuit that allowed Microsoft to seize the domains, it had claimed that No-IP parent Vitalwerks had been breaking the law. Either way, it appears that Microsoft has now returned all the domains to No-IP and settled the lawsuit. According to a joint statement by the companies: Microsoft has reviewed the evidence provided by Vitalwerks and enters into the settlement confident that Vitalwerks was not knowingly involved with the subdomains used to support malware. Those spreading the malware abused Vitalwerks’ services. Microsoft identified malware that had escaped Vitalwerks’ detection. Upon notification and review of the evidence, Vitalwerks took immediate corrective action allowing Microsoft to identify victims of this malware. The parties have agreed to permanently disable Vitalwerks subdomains used to control the malware. In the process of redirecting traffic to its servers for malware detection, Microsoft acknowledges that a number of Vitalwerks customers were impacted by service outages as a result of a technical error. Microsoft regrets any inconvenience these customers may have experienced. No-IP for its part has also put out a more detailed explanation for how all of this happened. It's worth reading. It also takes apart a number of Microsoft's claims, including the company's claim that, prior to returning the domains, it had "fixed" the problems people were having accessing their sites. No-IP reiterates that if Microsoft had just contacted the company first, it would have taken down the abusive customers. Clearly, even though the situation was settled, No-IP is reasonably upset that it happened in the first place: While we are extremely pleased with the settlement terms, we are outraged by Microsoft’s tactics and that we were not able to completely and immediately restore services to the majority of our valuable customers that had been affected. At No-IP, we are firm believers that the Internet should be free and open. We will continue to fight for the rights of our users and our business. Moving forward, we have provisioned a solution that will reduce the risk of domain seizures. Later it notes: We hope that Microsoft learned a lesson from this debacle and that in the future they will not seize other companies domains and will use appropriate channels to report abuse. Wouldn't that be nice.Permalink | Comments | Email This Story

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As you may recall, a few months back, a big story broke involving the CIA spying on Senate Intelligence Committee staffers who were investigating the CIA's torture program. The details revealed that in the course of their investigation, the CIA had given the staffers an internal document they didn't think they'd given them, which revealed that an internal CIA analysis more or less agreed with the Senate analysis (which has been described as "scathing"). This was a very different position than what the CIA had said publicly. After some in the Senate had asked for the "full report" rather than the draft that the staffers had been given, the CIA believed (incorrectly it appears) that the staffers had gotten access to unauthorized classified materials, and searched the special private network that had been set up just for those staffers. This happened after previous problems with the CIA doing questionable things concerning the Senate staffers network. In the end, both sides asked the DOJ to investigate the other side. The DOJ has now said that it won't pursue either claim: "The department carefully reviewed the matters referred to us and did not find sufficient evidence to warrant a criminal investigation," said Justice Department spokesman Peter Carr. Perhaps this isn't too surprising. The fact that the CIA itself handed the document to the staffers made that claim a pretty clear dead end. However, the CIA searching through the staffers' computer network always seemed a lot more questionable, but perhaps not criminal. It seems likely that the DOJ realized that to pursue either side in this would create a huge political mess, and it was just easier to let the case go, and let the two sides continue to glare angrily at each other.Permalink | Comments | Email This Story

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Another clear case of fair use is greeted by a major studio with, "Hey, that's our stuff!" A new campaign from Greenpeace targeting Lego's partnership with Shell has been nuked from orbit by Warner Bros. Entertainment. The short video depicted a stylized, Lego-built Arctic (complete with Eskimos, arctic wolves and Halo's Master Chief) being slowly swallowed by oil to a downtempo cover of The Lego Movie's impossibly catchy theme song "Everything is Awesome." You used to be able to watch it on YouTube, where it had racked up nearly three million views before this happened. Apparently, Warner Bros. Entertainment took issue with the use of the theme song and the inclusion of the two Lego Movie characters (seen briefly near the end of the 90-second video) and issued a takedown. Whether or not you agree with Greenpeace's complaint, there's no denying the fact that its use of the theme song and very brief use of these characters is clearly parodic fair use. Greenpeace has now moved the video to Vimeo, where it will possibly receive a stronger fair use defense from the hosting company, although still in the form of "oblige takedown request first, investigate later." It may work a little harder to defend this one up front, considering all the viewers that were heading to YouTube to catch Greenpeace's new viral video are now landing on its doorstep. Warner Bros.' action here isn't exactly censorship (as it probably was agnostic about the video's message) but it's not exactly forgivable either. Seeing as this video probably didn't trigger an automated takedown by YouTube's content-matching system, it was most likely the result of an active search for infringement, which means whoever's policing content for WB ignored everything but the song and the brief appearance of its Lego Movie characters. Once again, digital shouts of "MINE!" trump fair use.Permalink | Comments | Email This Story

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It's no secret that Google has a much larger market share than Microsoft's Bing search engine -- especially in Europe where Google has been much more successful than its competitors. However, Bing and other search engines are still subject to the terrible EU Court of Justice ruling on the right to be forgotten, which has resulted in Google removing a bunch of links. As we noted, Google was flooded with requests, and had to set up a process and staff to handle them all -- something it hasn't done a very good job with so far. So, what's Microsoft doing? Well, it's taking it's time, but is promising to get a request form similar to Google's up. It doesn't sound like it's going to have to hire a very big staff to do so, because it appears that Microsoft's biggest concern in Europe may be more that it's been forgotten by Europeans. Almost no one is asking Bing to forget them: When Google released its web form on May 30, for instance, it received about 12,000 requests within the first 24 hours. Microsoft is thought to have received fewer than 20 requests that day. Ouch. That's almost insulting. Hell, even we received a request under that ruling (though a bogus one).Permalink | Comments | Email This Story

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As was expected since last week, the FTC has officially announced that it has filed a lawsuit against Amazon for the way it handled in-app purchases, specifically arguing that the company made it way too easy for children to rack up huge bills without realizing it. This comes about seven months after the FTC went after Apple over the same issue, but Apple agreed to settle with the FTC, while still pointing out angrily that it had changed its in-app purchasing process years earlier. Unlike Apple, Amazon has decided that it will fight, rather than settle. This might not be that crazy. While there may be something to the fact that these companies should be more careful about keeping kids from buying lots of digital crap on their parents' bills, when you take a step back, it does look like the FTC is deciding it can regulate the user interface decisions of internet companies, and that has some potentially troubling implications -- especially with Amazon where its "one click" purchasing has become a part of its brand. That's not to say the company shouldn't reconsider how the shopping works on its mobile apps, but it's not clear that the FTC really should be stepping in here. Of course, in the meantime, Apple has decided that while it's not happy about the FTC forcing it to settle, if it's going to go through that treatment, Google ought to as well. A Politico FOIA request turned up an email from Apple's general counsel, Bruce Sewell, to two FTC commissioners, basically saying "hey, Google is doing the same thing we're doing..." by pointing to a Consumer Reports article that highlighted that Google's in-app purchases allow your "kid to spend like a drunken sailor" for a period of 30 minutes (longer than the 15 minutes that got Apple in trouble). It was a rather obvious effort to create FTC problems for competitors, though it's understandable that a company on the firing line is tempted to point out others doing the same thing. This does seem like an area where the companies should be improving, based on consumer complaints alone (and there are many...), but it does raise questions about whether or not the FTC's mandate really should go so far as to basic UI choices for certain companies.Permalink | Comments | Email This Story

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Politicians are supposed to represent the will of the public. It rarely works that way in practice, but the strongest demonstration of that may be what's happening in the UK with this new data retention bill. We wrote about it earlier, but MP Tom Watson has more details on how this is an "erosion of political trust," in which leaders of multiple parties in Parliament worked together to do a deal that clearly goes against the will of the public, and then sought to shove it through with no debate at all. As Watson notes, there's no reason to nitpick about what's in the draft bill, because it's basically guaranteed to become law at this point: The bill was published in draft form a few hours ago. It's pointless attempting to scrutinise it because, thanks to the secret deal, we know it will be law by the end of next week. However, he notes that the bill clearly expands surveillance of the public, in direct contrast to what the EU Court of Justice ruling, which "prompted" this new law, said: The judgment said the previous legislation was not "necessary and proportionate". The draft bill does use these words, but it's barely a nod to the court's requirements. The judgment said clearly that the mass retention of the data of every citizen was not proportionate. This legislation ignores this, allowing its retention for 12 months. The bill says that new regulations may be passed to restrict the use of retention notices, but these are not set out. And these new restrictions won't be passed by all parliamentarians but as statutory instruments through small committees of a select few MPs. The really damning point is that this is just a bunch of political elites agreeing to spy on the public... because they can: While the Lib Dems can spin as much as they like that this isn't the draft communications data bill, this is clearly a light version of it which ignores the ruling of a court on fundamental rights and extends surveillance powers overseas. The party spent the day crowing about the concessions granted to civil liberties groups such as Don't Spy on Us, but the concessions aren't even in the bill. We have to trust this government to deliver these concessions. Is this a game we should be willing to play? Yet the details are irrelevant. A secret deal between elites has removed the possibility of parliamentary scrutiny and engagement with civic society. The bill, warts and all, will be law next week. Theresa May has in the past stood strongly for the idea of policing by consent. What a shame she doesn't think the same principles apply to our security services. The party leaders will get their way next week, but the price will be further erosion of the authority of our political institutions. Today parliament feels a little further away from our citizens. Larry Lessig has long pointed out that when governments act this way, the public trusts them less and less, and their actual mandate to govern is made much less powerful. Of course, when they can snoop on all of your communications, what do they care?Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
We recently had a post by Tim Geigner, questioning whether it was appropriate for a local blog, Blog for Arizona, to out one of its crazier comment trolls as local politician John Huppenthal. There was a good debate in the comments as to the appropriateness of such actions. Bob Lord, of BFA, asked if we would be interested in posting his response. Here it is. Was Blog for Arizona out of line for outing John Huppenthal as an anonymous commenter, as Mr. Geigner suggests in his recent post? In this specific case, absolutely not. Among other things, Huppenthal invited us to publish his comments; he was so careless that his identity could be ascertained from the comments themselves, with no reference to the IP addresses we had, and he was posting from a government agency, which would be required to divulge the sites he visited if asked. Let's put all that aside and approach the more fundamental question: How secure should a John Huppenthal be in his anonymity? He cited the Founding Fathers, several of who wrote anonymously when penning the Federalist Papers. But the issue here is not the right to anonymous speech. Nobody disputes that right. The issue is whether there is a right to anonymous speech with zero risk of being exposed, even if the speaker is a public figure. In our judicial system, very few rights are absolute. Why? Because there are competing interests. For example, public figures do not receive the same level of protection from defamatory statements as ordinary citizens do. If I publish an unfavorable statement against Joe Sixpack, Joe only need show the statement was false in a suit for defamation. But if I make the same statement about an elected official, he has to show not only that the statement was false, but that I made it with reckless disregard for the truth. Why the difference? Because of the competing interest. As a society we don't want people with information about public figures to be overly fearful of coming forward. If we were to attempt absolute protection of the anonymity of public figures in their online comments, we necessarily would have to encroach upon the freedom of the press and the associated protection of confidentiality of sources. Suppose Blog for Arizona did not expose Huppenthal directly, but instead had one of our writers speak off the record to a reporter, who then called Huppenthal out based on a confidential source and asked Huppenthal to request that Blog for Arizona publicize all its information. Huppenthal would have no practical choice but to comply, or just fess up. So, unless we're willing to encroach upon the freedom of the press, the protection of anonymous commenters could not be complete to the degree Mr. Geigner desires. Now, consider the issue from the perspective of the blogger. I have knowledge that an elected official who is up for re-election, John Huppenthal, is a racist who believes the Holocaust was more the work of Darwin than of Hitler. Should I have no ability to let the public know what Huppenthal is all about? Perhaps, but only if Blog for Arizona and I had guaranteed Mr. Huppenthal that his anonymity would be protected. Otherwise, imposing some sort of legal gag order on bloggers does not seem the way to go. The bottom line: We don't need to make it any easier for creeps like John Huppenthal to go undetected. A risk of detection is inherent in anonymous speech. Whatever chilling effect arises from the outing of a Huppenthal, a chilling effect that I submit is minor or non-existent, is outweighed by the value to the public of the outing.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Public transportation is a tough problem -- collecting taxes to build out expensive infrastructure is always going to be a touchy political battle. Inevitably, there will be some people who won't see the benefits and others who will, disproportionately. Creating some hybrid of public and private transportation seems like the future (as well as the lesser-known past). Here are just a few links on getting around without your own personal vehicle. New York City has an unofficial system of private buses/vans/shuttles that fill the gaps in the Big Apple's bus and subway system. The New York City Taxi and Limousine Commission supposedly regulates this type of commerce, but the number of illegal shuttles operating in the city far outnumbers the officially-issued licenses. [url] Florida East Coast Industries (FECI) is developing a private railroad for passengers. The All Aboard Florida project is starting construction now, proudly stating that it is doing so with zero dollars of taxpayer funding. [url] Elon Musk wasn't a fan of the high speed rail project in California, so he proposed his own Hyperloop concept. If you haven't heard about this whitepaper, you must have been in a coma.... [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 19 days ago on techdirt
While Uber gets much of the attention in the ridesharing space, many people I know in San Francisco swear by Lyft instead. Lyft has the reputation of being the more laid back, friendlier version of Uber. Rather than Uber's infamous "surge pricing," Lyft has happy hour discounts. Rather than the sleek corporate feel of Uber, Lyft is famous for drivers putting giant pink mustaches on their cars, encouraging passengers to sit up front... and to give drivers a good old fashioned fist bump. While Uber has been available in New York City for sometime, Lyft took its time, finally announcing plans to opening up in NYC on Friday (well, Brooklyn and Queens, initially, staying away from taxi central Manhattan). Not surprisingly, the NYC Taxi and Limousine Commission was not pleased with this. While Lyft says it's tried to work with the TLC, the TLC disagrees, noting that Lyft agreed to a single meeting that just happened this week. So, of course, it's not surprising that within a day, the TLC officially declared Lyft an "unauthorized service," in NYC, meaning that it may start cracking down -- something NYC did last year to the other top competitor in the space, Sidecar. Lyft says it's still planning to launch, insisting that it doesn't believe the rules the TLC are citing apply to it. Basically "come at us, TLC!" The TLC insists that it wants Lyft to be able to operate in New York City, even saying that it's willing to change some of its rules, but bureaucracies -- especially those with close ties to highly regulated industries that have a history of keeping out competition -- don't tend to move very fast. As we've noted before, cities that quickly ban these kinds of services are basically advertising themselves as places not friendly to innovation and/or run by corrupt officials. For all the arguments about how these services don't meet the "stringent" requirements for existing taxi regulations, almost everyone I know prefers using services like Lyft and Uber over traditional cab services. They're much more convenient and personally I've found the service to be significantly better overall. Part of the problem is that the regulations were built for a different time, when there was significant information asymmetry between a rider and a driver, allowing drivers to take advantage of riders. But, these kinds of services actually flip that equation: they provide much greater information to the rider, and even give them a big say in passing on similar information to others, in the form of ratings. Thus, there are natural incentives to provide a better overall service, making many of the purposes of existing regulations stale and obsolete. But, of course, as often happens in highly regulated industries, those who already made it through the hurdles like those regulations because they limit competition, and allow prices to be higher due to scarcity. It also gives them less incentive to provide better services. Thus, you get into a world of regulatory capture, where things are worse off for everyone. While, yes, the "intentions" of these regulations may be good, the reality is that the information exchange enabled by technology makes many of those regulations obsolete. A slow moving bureaucracy (especially one dealing with regulatory capture) isn't going to move very fast, but that's harmful for overall innovation in the space and setting up the best conditions for citizens of NYC, who probably prefer a better overall experience in getting around.Permalink | Comments | Email This Story

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Ross "Dread Pirate Roberts" Ulbricht's attorneys had recently seized on some debate within the US government over whether or not Bitcoin was actually money to try to sneak through a loophole to get out of the money laundering charges against him. As you may recall, the IRS recently declared that virtual currency was more akin to equity/property than money. And Ulbricht's lawyers hoped that distinction might help. It did not. The judge clearly wasn't buying it: [T]he defendant alleges that he cannot have engaged in money laundering because all transactions occurred through the use of Bitcoin and thus there was therefore no legally cognizable "financial transaction." The Court disagrees. Bitcoins carry value - that is their purpose and function - and act as a medium of exchange. Bitcoins may be exchanged for legal tender, be it U.S. dollars, Euros, or some other currency. Accordingly, this argument fails. Later in the ruling, the judge goes even further: In fact, neither the IRS nor FinCEN purport to amend the money laundering statute (nor could they). In any event, neither the IRS nor FinCEN has addressed the question of whether a "financial transaction" can occur with Bitcoins. This Court refers back to the money laundering statute itself and case law interpreting the statute. It is clear from a plain reading of the statute that "financial transaction" is broadly defined.... It captures all movements of "funds" by any means, or monetary instruments. "Funds" is not defined in the statute and is therefore given its ordinary meaning. While this was the headline argument, many of the other arguments that Ulbricht's lawyers made were more important -- focusing on the nature of Ulbricht merely setting up the marketplace, and not being liable for how it's used. Judge Katherine Forrest is, once again, not impressed. It's worth pointing out here, that Section 230 liability protections do not apply to criminal behavior, so that particular out wasn't ever really on the table. But the general concept of intermediary liability is clearly tied up in this case. In particular, here, Ulbricht argued that there was no "conspiracy" since he wasn't "conspiring" with users of Silk Road, just setting up the marketplace. The court notes that Ulbricht appeared to be much more involved than just merely running an open market: Ulbricht argues that his conduct was merely as a facilitator - just like eBay, Amazon, or similar websites.6 Even were the Court to accept this characterization of the Indictment, there is no legal prohibition against such criminal conspiracy charges provided that the defendant possesses (as the Indictment alleges here) the requisite intent to join with others in unlawful activity. Moreover, in this case, the charges in the Indictment go further than Ulbricht acknowledges. The Indictment alleges that Ulbricht engaged in conduct that makes Silk Road different from other websites that provide a platform for individual buyers and sellers to connect and engage in transactions: Silk Road was specifically and intentionally designed for the purpose of facilitating unlawful transactions. The Indictment does not allege that Ulbricht is criminally liable simply because he is alleged to have launched a website that was - unknown to and unplanned by him - used for illicit transactions. If that were ultimately the case, he would lack the mens rea for criminal liability. Rather, Ulbricht is alleged to have knowingly and intentionally constructed and operated an expansive black market for selling and purchasing narcotics and malicious software and for laundering money. This separates Ulbricht's alleged conduct from the mass of others whose websites may - without their planning or expectation - be used for unlawful purposes. In other words, it's one thing to set up a marketplace. It's another thing to set up a marketplace with the specific intent of using that marketplace to enable criminal behavior. I'm still a little troubled by the possible implications of this -- and even how it might be read back towards cases like the ridiculous lawsuit against Tor we were just discussing. Overall, though, it seems clear that the court isn't going to let Ulbricht off easy. There appears to be some level of guilt-by-association in this latest ruling, some of which may lead to interesting legal challenges down the road, but it's pretty clear that Ulbricht has a long legal road in front of him -- meaning that it's actually likely he'll work out some sort of plea deal rather than continue to fight.Permalink | Comments | Email This Story

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Techdirt has been following the complicated German reaction to Edward Snowden's revelations about US and UK surveillance of people in that country, whether or not in high places, for some while now. Although the German public has been deeply shocked by the leaks, the German government has been keen to preserve good relations with the US. But the revelation that there was not just one but probably two double agents working for the US within the German secret services has taken the country's unhappiness with its ally up a notch, and German Chancellor Angela Merkel has finally reacted with a classic diplomatic punishment, reported here by the Guardian: The German government has asked the top representative of America's secret services in Germany to leave the country. Members of the government's supervisory panel announced the measure at a press conference in Berlin this afternoon. Clemens Binninger, a member of Angela Merkel's Christian Democrats, who chairs the committee that oversees the intelligence services, explained that the move came in response to America's "failure to cooperate on resolving various allegations, starting with the NSA and up to the latest incidents". This comes just after the Independent newspaper carried the following story about another significant German response to US (and UK) spying: Chancellor Angela Merkel's government is planning to scrap a no-spy agreement Germany has held with Britain and the United States since 1945 in response to an embarrassing US-German intelligence service scandal which has deeply soured relations between Berlin and Washington. The unprecedented change to Berlin's counter-espionage policy was announced by Ms Merkel’s Interior Minister, Thomas de Maizière. He said that Berlin wanted "360-degree surveillance" of all intelligence-gathering operations in Germany. ... Mr de Maizière told Bild that he was now not ruling out permanent German counter-espionage surveillance of US, British and French intelligence operations. His remarks were echoed by Stephan Mayer, a domestic security spokesman for Ms Merkel’s ruling Christian Democrats. “We must focus more strongly on our so-called allies,” he said. It may well be that some "unofficial" German spying on the US had been going on until now, but the fact that Angela Merkel's interior minister has made an official statement of his country's intent to spy on the US, UK and France is a clear signal of her displeasure with the surveillance activities of those "so-called" allies. Given Germany's rapidly-escalating response here, an interesting question is: What will it do if/when the next big spying scandal breaks? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Remember how the tapes of the CIA's torture campaign were "destroyed" under suspicious circumstances, despite orders not to destroy them? It appears something similar has happened in the UK, where files on the UK's role in CIA rendition efforts have been "accidentally destroyed." I'm wondering if anyone can read that claim without rolling their eyes. When Tyrie asked the Foreign Office (FCO) to explain which government department keeps a list of flights which passed through Diego Garcia from January 2002 to January 2009, FCO minister Mark Simmonds replied: "Records on flight departures and arrivals on Diego Garcia are held by the British Indian Ocean Territory immigration authorities. Daily occurrence logs, which record the flights landing and taking off, cover the period since 2003. Though there are some limited records from 2002, I understand they are incomplete due to water damage." The Foreign Office would not say whether the damaged files were UK or US records, or say where they were located. An FO spokesperson maintained that because the damage "was only recently discovered" it did not know how or when it occurred. Convenient story. As the report notes, this follows earlier vehement denials from the UK government that Diego Garcia was used for rendition... only to later have to admit that they were lying. Ministers of successive governments have repeatedly given misleading or incomplete information about the CIA's use of Diego Garcia. In February 2008, the then foreign secretary, David Miliband, was forced to apologise to MPs and explain that Tony Blair's "earlier explicit assurances that Diego Garcia had not been used for rendition flights" had not been correct. Miliband said at this point that two rendition flights had landed, but that the detainees on board had not disembarked. Once again, it appears that the intelligence community is more focused on covering its tracks than on making sure it's not violating everyone's rights.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
So, yesterday we wrote about the already bizarre lawsuit filed by Jason Lee Van Dyke, a Texas lawyer, on behalf of Shelby Conklin, against a revenge porn site, Pinkmeth, and (even more ridiculous), the Tor Project. There were many, many problems with the lawsuit, starting with the cluelessness of Van Dyke in going after the Tor Project, when he clearly had no idea what it was or did, or any idea about how Section 230 of the CDA works (in fact, it appears he misrepresented a similar case, in which GoDaddy was protected by Section 230). There were also some problems with the First Amendment aspects of this, and Van Dyke's argument that aiding someone in being anonymous was some sort of aiding and abetting of law-breaking. Thankfully, this morning Van Dyke admitted that he was dropping the Tor Project from the lawsuit -- though he doesn't appear to have apologized or admitted to his own errors. Instead, it appears he's been doubling down -- which we'll get to later in this post. But first, the story has taken a different twist, as Jay Wolman in our comments pointed to something even more bizarre: Van Dyke claimed that Pinkmeth's "address" (also where he had the lawsuit served) was the same address as Kyle Bristow, Esq. Pinkmeth had previously facetiously indicated that Bristow was its attorney (and uses a picture of Bristow on its Twitter account). But it's clear that whoever is behind Pinkmeth is joking. Bristow and Van Dyke have worked together to try to shut down revenge porn sites like Pinkmeth in the past, and Pinkmeth is clearly mocking Van Dyke by claiming that Bristow is its lawyer. But Van Dyke still "served" Pinkmeth at Bristow's offices, knowing that it's bogus. As Wolman notes, since Van Dyke knows this is not actually Pinkmeth's offices, what he's done clearly borders on "fraud on the court." Meanwhile, our friends at Above the Law have even more on this situation, including the fact that Bristow was declared the leader of a hate group while he was in college, who has openly advocated racist and homophobic positions. As for why Bristow, who appears to have rather stone-aged views of the world, is now focused on fighting revenge porn? Well, his argument kind of speaks for itself: “Revenge pornography is nothing more than a manifestation of liberalism,” Bristow said. “Most victims on revenge pornography websites are young, white, blonde, middle class, American women. Women who the pornographers can link to conservatism or Christianity are especially targeted for harassment.” Yes, as Above the Law notes, Bristow is against revenge porn because it's "defiling white blondes in an effort to undermine Christianity." As bad as we think revenge porn sites and their operators are, somehow I doubt that's the goal. Either way, Van Dyke pretending to believe that his buddy Bristow actually represents Pinkmeth is just the latest in a long line of problems with the lawsuit... Meanwhile, as another commenter on our original story pointed out, Van Dyke appears to be freaking out on Facebook, threatening to sue people who are posting negative reviews of his firm: Sometimes, combined with the threats of lawsuits, he directly threatens physical harm on people: And, much of the rest of the time, he's displaying just the sort of "professionalism" we're sure that the Texas bar approves of: Separately, when someone sent him a copy of my original article, he laid out his own "legal strategy," in which he explains that he's filing this on the expectation that Pinkmeth will default and then he'll get his injunction (some of the companies that he's seeking the injunction to apply to may have a word or two to say about that). Oh, and at the end, he flat out admits that "it's my job to violate the civil rights of people like you." Lovely. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
In the wake of the Aereo ruling, I'd been meaning to do a post questioning whether or not the ruling had effectively overturned the ruling in the ivi case from a few years earlier. We had seen some people in our comments point out that, following the Aereo ruling, Aereo had an easy solution: just start paying retransmission fees. Except... that's exactly what ivi had tried to do, and the court had shut them down, using almost the opposite reasoning as the Supreme Court. Specifically, the Second Circuit appeals court (the same that had decided in Aereo's favor) ruled that internet services were not cable companies under the law, and couldn't just pay retrans fees: Congress did not, however, intend for Section 111's compulsory license to extend to Internet transmissions. Indeed, the legislative history indicates that if Congress had intended to extend Section 111's compulsory license to Internet retransmissions, it would have done so expressly -- either through the language of Section 111 as it did for microwave retransmissions or by codifying a separate statutory provision as it did for satellite carriers. See 17 U.S.C. §§ 111, 119. Extending Section 111's compulsory license to Internet retransmissions, moreover, would not fulfill or further Congress's statutory purpose. Internet retransmission services are not seeking to address issues of reception and remote access to over-the-air television signals. They provide not a local but a nationwide (arguably international) service. Accordingly, we conclude that Congress did not intend for Section 111's compulsory license to extend to Internet retransmissions. So, uh, which is it? Aereo has now decided that if the Supreme Court is going to call it a duck for looking like a duck, it's damn well going to quack like a duck too. It has told the lower court that it intends to pay retransmission fees under Section 111, more or less claiming directly that the Supreme Court overruled the ivi ruling. For what it's worth, Aereo's "wacky" (but seriously questionable) "competitor" FilmOn, already made a similar declaration of being a cable company, though as we've learned with FilmOn, you should take almost every claim it makes with a huge grain of salt. Of course, this is a big problem with the Supreme Court's ruling. By coming up with this wacky "looks like a duck" test, it's encouraging companies like Aereo to use that test in a variety of ways, even though copyright law has never worked that way. Lots of things that "look like" each other face different rules: think of terrestrial radio and internet radio stations. Under the "looks like a duck" test, internet radio stations should be able to declare themselves the same as terrestrial radio stations and stop having to pay performance fees to musicians. And, of course, the networks themselves don't like Aereo embracing the duck, even though the company is only doing so because of the network's own lawsuit. On July 1, however, its counsel suggested that Aereo has rethought its entire legal strategy and will raise before this Court a brand new defense based on Section 111 of the Copyright Act. Aereo never before pled (much less litigated) Section 111 as an affirmative defense. Whatever Aereo may say about its rationale for raising it now, it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a “cable system” under Section 111 given its prior statements to this Court and the Supreme Court. But it's not Aereo that made that decision. It's pretty clearly the Supreme Court and its stupid "looks like a duck" test. The entertainment industry might want to be careful what it wishes for. It applauded the dreadful looks like a duck test, and now it's freaking out when Aereo actually tries to apply it.Permalink | Comments | Email This Story

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Remember last year when the UK loudly rejected an attempt by the government to create a "Snooper's Charter" that would give the government much more power to sniff through everyone's private data? This was the law David Cameron insisted was needed based on crime dramas he watches on TV (how do these people get elected?). You may also recall that, earlier this year, the European Court of Justice found that the EU's Data Retention Directive was invalid as a breach of "the fundamental rights to respect for private life and to the protection of personal data." Just a few weeks ago, we noted that the UK government had told telcos to ignore that ruling and to carry on retaining people's data. It appears that telcos told the UK government to pound sand, and David Cameron and his friends are now using that as an opportunity to rush through a version of the Snooper's Charter, requiring internet companies to retain data. Member of Parliament Tom Watson raised the alarm about this yesterday, detailing how the government was trying to rush through a broad bill in near secrecy: If you look on Parliament’s web site tonight, you will not see the name, nor the text of the Bill to be considered. None of your elected backbench MPs have been told what Bill is to be debated on Monday. It’s Wednesday evening. Tomorrow, MPs are on a ‘one line whip’ ie they can return to their constituencies this evening. Imagine how outrageous it would be, if tomorrow, the government were to announce emergency legislation to an empty chamber. Imagine if that emergency legislation was to be introduced on Monday or Tuesday, with the intention of it slipping through the Commons and the Lords in a single day. Imagine if that Bill was the deeply controversial Data Retention Bill. It’s a Bill that will override the views of judges who have seen how the mass collection of your data breaches the human rights of you and your family. And that's what's happened so far. Early this morning, the draft of the bill was released, entitled the "Data Retention and Investigatory Powers Bill," or DRIP. Think of it as drip, drip, dripping away your privacy and civil liberties. As people reading through the bill have noted, it's quite clear that it goes much further than just dealing with the "fallout" from the European Court of Justice ruling. In particular it has this rather open ended clause that appears to give the government the power to effectively change the rules at will: The Secretary of State may by regulations make further provision about the retention of relevant communications data. The government is trying to calm people down about this by first setting up a "Privacy and Civil Liberties Oversight Board" (PCLOB) modeled after the PCLOB in the US, and will also include a "transparency" report. But the bigger claim they have is that this is just a "temporary" thing with a sunset provision: The laws will expire in 2016, requiring fresh legislation after the election. The Regulation of Investigatory Powers Act will be reviewed between now and 2016 to make recommendations for how it could be reformed and updated. Lib Dems insist the new legislation does not represent an extension of existing surveillance powers or the introduction of the snooper's charter. Except, if you've paid any attention at all, you know damn well that these sunset clauses almost never work. It's much, much more difficult to get rid of a bad law once it's in place. And when it comes to things like surveillance, every time the renewal period comes up, politicians go on a FUD rampage about how many people will die if the government can't keep searching through all your data.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
As the evolution of video games as a major entertainment medium marches on, you would expect to see more and more studies done as to their effects. And, since the chief topic among those having this conversation seems to center around the effect of violence in games, that's where much of the focus of these studies is going to go. Now, we've already discussed one study that linked violent video games and the so-called Macbeth Effect, in which the gamer feels the need to cleanse themselves of the wrong-doing with a conversely benevolent action. That study was important because it demonstrated that the effect of violent games might have the opposite effect of the all-to-prevalent theory that virtual violence begets real-life violence. A recent study appears to boil this down even further, indicating that instead of feeling any kind of desensitizing effect, immoral actions taken in video games produce a more sensitive, compassionate person. A study led by Matthew Grizzard, assistant professor in the department of communication at the University at Buffalo, reaffirmed previous research saying that committing immoral acts in games can cause players to feel guilt. Moreover, the study found that players would become more sensitive to the specific moral codes that they violated while playing — and according to Grizzard and his co-authors, that may eventually lead players to practice prosocial behavior (that is, voluntary behavior for the benefit of other people). The study was done at an unnamed Midwestern university, sampling nearly 200 individuals for testing purposes. The game used was Operation Flashpoint: Cold War Crisis, an older game that was previously used in a study that first tried to measure guilt in the gaming population. The methodology used by several researchers from major universities is interesting, to say the least. First, the researchers randomly assigned the participants to play a game or perform a memory recall task. They randomly assigned the gaming segment to play Cold War Crisis in two ways: Either they would play as terrorists (the "guilt condition"), or as U.N. peacekeepers in the "control condition." The researchers also split the memory recall participants into two groups: They asked the guilt condition people to write about a time in which they felt particularly guilty, while they requested the control condition folks to write about a normal day. What they found is that feelings of guilt were more profound in those gamers who played as terrorists compared with those that played as peacekeepers. The rationale at work is that terrorists are unjustified in killing the U.N. characters, but not vice versa. What that demonstrates is that players taking what they deem to be immoral actions within a virtual environment are emotionally stimulated in thinking about those actions and develop thoughts and opinions based on those actions, building generally towards empathy through guilt. Coupled with other research, this is important. Research has shown that guilt and increased moral sensitivity in real life often lead to prosocial behavior. Thus, the study's authors concluded, there's some likelihood that the same could be true for guilt resulting from immoral virtual behavior. In other words, playing violent games can make you feel guilty, which may cause you to do nice things for other people. It's important to note that still other research has shown that with increased play at relatively high rates, these feelings of guilt tend to lessen over time. That likely has more to do with the player's comfort level in accepting that their actions are all just part of a game and having already settled their feelings on those actions. In the meantime, for the vast majority of gamers who play games at what we'd consider normal intervals, violence in games may actually lead to pro-social behavior rather than the stereotype result that's blasted around our media. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Tech companies, even those that dislike the patent system (which is many of them), still feel pressured into getting lots of patents, often for defensive purposes, to avoid lawsuits. However, as we've discussed in the past, even patents that are initially obtained for defensive purposes are a nuclear weapon problem in waiting. Companies fail all the time, and their patents suddenly get sold off to the highest bidder -- and quite frequently these days, those are trolls. Some companies have tried to come up with unique and innovative ways to stop this potential trolling problem. For example, a few years ago, Twitter came up with the Innovator's Patent Agreement (IPA) which basically lets the engineers named on a patent issue a free license to whomever they want for the life of the patent. This is sort of an anti-troll talisman, because that engineer can simply go and give a free license to anyone a troll threatens. While other companies haven't jumped on the IPA bandwagon, it appears a bunch of tech companies are trying something different. Google, Newegg, Dropbox, SAP, Asana and Canon have teamed up to launch the "License on Transfer Network," which is a royalty-free patent cross-licensing program, for any patent that is transferred outside of the group. The basic deal is pretty straightforward: if any company in the group transfers a patent outside the group, for any reason, everyone else in the group automatically gets a royalty-free license to that patent. Obviously, this kind of program really only works if lots of companies join, but they've made it incredibly easy to join. And, as Asana notes in its blog post about the program, there are tremendous network effects as more companies join: The LOT Network is a powerful new idea that we hope will grow rapidly. Because of the inherent network effects, every additional company that joins the coalition will be a new nail in the patent troll coffin, diminishing the size of their potential market. As this happens, everyone will be able to direct more of their energy back to creating value. Asana and Dropbox, which also put out a blog post about this both note that this only solves one aspect of the patent trolling problem, but it's still nice to see companies coming up with innovative solutions to try to pre-empt certain types of patent trolling problems.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
The Segway never really lived up to its hype, but it does serve a practical purpose as a means of transportation -- and it's a bit more convenient than a bike in some ways. (I haven't been a fan of larger versions of the Segway (GM's PUMA) because some things just don't scale well. However, I'm not against tinkering with new transportation solutions to try to come up with cool new ways to get around.) If you like transportation gadgets, here are just a few cool-looking projects that offer some extreme maneuverability. The RYNO is a motorized unicycle that behaves like a Segway (with one less wheel). It has a top speed of 10 mph, but it doesn't quite look as dorky as a Segway. [url] If being able to turn on a dime is your goal, then an omnidirectional bike with two spheres for wheels might be the gadget for you. The Spherical Drive System is only a prototype, but it literally puts a new spin on the wheel. (This bike might actually look cooler if it had a third sphere...) [url] Honda has developed its own unicycle called the UNI-CUB personal mobility device. It has a cumbersome name, but it sports an omnidirectional driving wheel system (aka Honda Omni Traction Drive System) and looks fairly compact and maneuverable for indoor use. [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 20 days ago on techdirt
We've seen silly trademark suits over all kinds of things before. Common phrases come to mind, as do petty politicians going after parodies and the government feeling it necessary to trademark groups of American heroes lest the House of Mouse gobble them up. The point is we see a lot of dumb 'round these parts, but we rarely see that dumb mixed with sexy. But now, thanks to The Tilted Kilt franchise going after golf club for having some of their staff wearing completely different looking kilts, we apparently can't say that any longer. The club in question is the Kilted Caddy Club, a golf course that provides female caddies in kilts for some of their golf tournaments, because nothing helps a man concentrate on sinking that twenty-foot sloped birdie putt like a nice pair of legs. The Tilted Kilt franchise, in case you aren't aware, provides bar/restaurants in which scantily-clad women in kilts and low-cut button-down shirts serve you sub-par food while the worst music you can imagine plays around you and your fellow degenerate friends. In other words, we're dealing with two quality organizations here. Well, apparently one side of this equation got their kilts in a bunch to the point of filing a very silly trademark claim. The Tempe, Ariz.-based Tilted Kilt, which has nearly 100 locations nationwide including one at Broadway at the Beach, says in court documents that the caddy club is copying its distinctive and trademarked “uniforms,” thereby, confusing consumers into thinking the two businesses are related. The Tilted Kilt has asked a judge for a permanent injunction against the Kilted Caddy Club’s use of its name and tantalizing tartan uniforms, as well as unspecified monetary damages. Now, let's start off with the obvious problem: the two companies aren't in the same line of business. One is a golf course (that of course has a clubhouse bar and food, but meh), the other is a bar/restaurant. They aren't competing against one another. That should probably be enough to toss this thing out already. Add to that the fact that the two uniforms aren't really all that similar beyond incorporating a bastardization of a traditional Scottish kilt, and it's all the more difficult to see this going anywhere. Judge for yourself. Here are some women in their Tilted Kilt uniforms, making their parents proud: And here are some women from The Kilted Caddy Club. Now, while it is true that the golf course put out some advertisements for events with girls dressed in garb more similar to Tilted Kilt girls, they still aren't competing against one another and no moron in a hurry is going to think that the restaurant company suddenly went into the golf course business and failed to use their brand name. And besides all of that, the idea of preventing a golf course, a game with Scottish origins, from having a Scottish theme, is sort of silly on its face. Still, because this is a trademark dispute, it must devolve into a silly linguistics lesson from the club's lawyer, Dan Polley. Polley said, there should be no confusion over the names because the restaurant chain uses the word “tilted” as an adjective for the noun “kilt” while the caddy club uses “kilted” as an adjective for the noun “caddy.” “The respective marks do not have any closeness in appearance, sound or meaning,” Polley said. “Coupled with the fact that our client’s services are provided solely at its Scottish theme golf course, the chance for confusion is remote.” Or how about, rather than having everyone get their MLA handbooks out, maybe two companies not competing against each other just don't have to find themselves battling in court. That work for everyone? Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
We already wrote about Glenn Greenwald's big story concerning how the FBI has been spying on prominent Muslim American politicians, lawyers and civil rights activists. If you follow this stuff closely, you may have heard that Greenwald was originally supposed to publish that story last week, but held off at the last minute due to some "new information" from the government. This resulted in some silly and ill-informed conspiracy theories, but in the article Greenwald explains what actually happened: The Justice Department did not respond to repeated requests for comment on this story, or for clarification about why the five men’s email addresses appear on the list. But in the weeks before the story was published, The Intercept learned that officials from the department were reaching out to Muslim-American leaders across the country to warn them that the piece would contain errors and misrepresentations, even though it had not yet been written. Prior to publication, current and former government officials who knew about the story in advance also told another news outlet that no FISA warrant had been obtained against Awad during the period cited. When The Intercept delayed publication to investigate further, the NSA and the Office of the Director of National Intelligence refused to confirm or deny the claim, or to address why any of the men’s names appear on the FISA spreadsheet. Prior to 2008, however, FISA required only an authorization from the attorney general�”not a court warrant�”for surveillance against Americans located overseas. Awad frequently travelled to the Middle East during the timeframe of his surveillance. The fact that it was out warning people that the story was inaccurate before anything had even been written is... quite telling. Also, the fact that it only seemed to focus on the lack of a FISA warrant (and against one individual) seems like the standard form of the intelligence community choosing their words especially carefully to say one thing, while implying something else entirely. Now that the report has actually come out, the Office of the Director of National Intelligence (ODNI) has issued a statement that is more of the same. You will note, for instance, that it does not deny spying on the five named individuals -- only that it doesn't spy on people because of their political, religious or activist views: It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights. Unlike some other nations, the United States does not monitor anyone’s communications in order to suppress criticism or to put people at a disadvantage based on their ethnicity, race, gender, sexual orientation or religion. Our intelligence agencies help protect America by collecting communications when they have a legitimate foreign intelligence or counterintelligence purpose. Again, note the specific denial they're making. They're not denying they spied on these five individuals. They're claiming that if they spied on them, it wasn't because of their religion -- though the evidence presented in the Intercept article certainly rules out many other explanations. And, remember, it was just a week ago that it was revealed that the NSA, does, in fact, consider people interested in Tor or open source privacy to be extremists. So, while it may be technically true that these individuals weren't targeted because of their religion, it does seem fairly clear that the intelligence community has fairly low standards for what it takes to convince themselves that someone may be a threat. Furthermore, the statement admits that there are cases where it spies on people without approval from the FISA Court, but doesn't say what those examples are beyond "in an emergency." That may imply the only cases are in an emergency, but that's not what the statement actually says: With limited exceptions (for example, in an emergency), our intelligence agencies must have a court order from the Foreign Intelligence Surveillance Court to target any U.S. citizen or lawful permanent resident for electronic surveillance. These court orders are issued by an independent federal judge only if probable cause, based on specific facts, are established that the person is an agent of a foreign power, a terrorist, a spy, or someone who takes orders from a foreign power. And, again, as the Intercept report itself notes, prior to 2008, there were different standards in place for people traveling overseas (even Americans) which could explain how some of these individuals were targeted. The ODNI statement more or less concludes by suggesting that the five people named may have been agents of foreign powers, which is quite a claim: No U.S. person can be the subject of surveillance based solely on First Amendment activities, such as staging public rallies, organizing campaigns, writing critical essays, or expressing personal beliefs. On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation. It's a neat little out. Accused of spying on five Americans who pretty clearly do not appear to be agents of foreign powers, just hint strongly that they really are agents of foreign powers. It's back to the good old days of McCarthyism.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Jason Lee Van Dyke is a lawyer in Texas whose own website describes himself as the "meanest lawyer in Texas" (technically it says "meanest lawyers" but the "attorneys" tab on his website only lists himself.) Either way, his site promises a "a highly practical 'no bullshit' approach to the practice of law." It also notes that the Van Dyke law firm is "unafraid of using novel arguments and tactics if we think that our clients may benefit from them." Novel arguments and tactics can be a good thing... but it kinda goes the other way when you're making a clearly bogus argument, ignoring basic existing safe harbor laws, potentially dragging all sorts of totally unrelated parties into court, while seeking a broad injunction that clearly violates the First Amendment. And that, it seems, is exactly what Jason Lee Van Dyke has done in filing a lawsuit against the Tor Project and Pinkmeth.com. It should be noted, first of all, that Pinkmeth is yet another revenge porn site. We've written a bunch about revenge porn over the last few years, and hopefully most of us can agree that the folks who run these sites are horrible people, encouraging others to upload naked photos of unwitting folks, while often running a related extortion-like scam to get people to pay up to have their photos removed. We've been happy to see some of the folks who run these sites arrested -- when it appears there are legitimate charges against them -- but have been fearful about how others are trying to stretch the law to go after them. Jason Van Dyke didn't just stretch the law, he seems to have decided to jump on a bulldozer and plowed it right through the law with a legal filing so bad it makes you wonder how Van Dyke ever passed the bar. As nice as it would be to get Pinkmeth to shut down, abusing the law is no way to do it. Let's start with the most problematic aspects of the lawsuit, though, and that's lumping Tor into the lawsuit with Pinkmeth. First, it appears that a year and a half ago, Van Dyke was somehow able to get a judge to order the Pinkmeth.com domain put on hold by VeriSign. In response, the folks behind Pinkmeth set up the site as a Tor Hidden Service, like many other such hidden services (like the Silk Road). Van Dyke, who does not seem to understand how Tor functions, or to have ever come across Section 230 of the CDA, is trying to claim that the Tor project is liable as part of a "conspiracy" with Pinkmeth: Pinkmeth and TOR conspired to and had a meeting of the minds regarding the commission certain torts against Plaintiff more adequately described in paragraphs 5.1 - 5.15 above, as well as certain felony offense described in paragraph 4.8 and 4.9 above. The specific object to be accomplished by the conspiracy was the publication pornographic images of Plaintiff (and other women) on the Pinkmeth website in such a manner so as to prevent its operators and users from being held civilly and criminally accountable for this unlawful behavior. Of course, Tor is just a tool, and claiming there was any "meeting of the minds," let alone any possible liability here is ridiculous. In fact, many of the direct claims against Pinkmeth itself are likely protected under Section 230 as well, but we'll get to that. After the internet started trying to explain to Van Dyke how Tor worked, he first shrugged that he could dismiss the Tor Project later if he wants, and then issued a hilarious press release in which he tries to both backup his attack on the Tor Project and prime himself to back down against them at the same time. It has to be read to be believed. Here are some choice quotes: The TOR Project Inc., ("TOR") is a slightly different story. They were named as a conspirator in the lawsuit based upon our belief that they were hosting PinkMeth or providing it with services that have allowed its operators to continue to escape justice. First off, Tor doesn't host anything. I mean, a 5 second Google search should teach you that. I don't care if you're the meanest lawyer in Texas, you should be able to do a basic Google search. Second, "providing it with services that have allowed its operators to continue to escape justice" is a fascinating legal standard. Once again, Van Dyke would be well served to look up Section 230, or hell, just about anything concerning how basic liability works. This was not an unprecedented action by our office. Yes, actually, it was. Claims brought against hosting companies such as GoDaddy have survived dismissal in similar lawsuits. First, Tor isn't a hosting company, so you got that wrong. Second, while he's sorta kinda correct that a similar lawsuit against GoDaddy survived past the dismissal stage, he conveniently leaves out that that decision was decisively overturned once a real court looked at it and pointed out that the lower court somehow totally ignored Section 230, meaning the lawsuit against GoDaddy was dismissed, contrary to what Van Dyke implies. Just today it was reported that a TOR exit node operator in Austria was convicted of abetting the spread of child pornography. First off, that wasn't today, it was last week and we wrote about it here, with the point being that it was a ridiculous ruling that almost everyone finds problematic. Second, a tor exit node is not run by the Tor project, so the comparison is meaningless. Third, it's Austria, not the US, where any such claim would get laughed out of court just as fast as Van Dyke's lawsuit here will be. It is our position that, if TOR provided goods or services of any nature to PinkMeth, that they are liable to Ms. Conklin. A review of the TOR website further confirmed by belief that, although it may have been originally designed for legitimate uses, is now used almost solely to aid and abet criminal conduct. Yeah, I'll just leave that one there for people to laugh at. He then goes on to blame Pinkmeth for making him file against Tor, because Pinkmeth mentions that they're a Tor hidden service. Then the backtrack begins: Since the filing of our lawsuit and service of legal process on PinkMeth, evidence has emerged that TOR may not have provided any goods or services to PinkMeth. We are still working to determine what degree of control, if any, TOR has over those who use TOR hidden services and to what extent they may be able to provide us information regarding those responsible for publishing PinkMeth. Naturally, if TOR has played no role in PinkMeth's re-emergence, has not provided PinkMeth with goods or services of any kind, and is unable even to assist in identifying those responsible for publishing PinkMeth, they will be dismissed from our lawsuit. Uh, think you could have done that research before filing a lawsuit, sparky? Anyway, Van Dyke is not done with Tor yet. He's pretty sure that even if they didn't break the law here, it's a bad thing and should be outlawed: This is not so [sic] say that we endorse the types of service that TOR is providing. We believe condemn [sic] them in the strongest possible terms and strongly disagree with their assertion that there is any "right" for the publishers of online content to remain anonymous. For a guy who describes himself as "the most right wing lawyer in Texas" you'd think he'd be at least marginally familiar with the First Amendment, and things like the Supreme Court's decision in McIntyre v. Ohio Elections Commission, which pretty clearly states: Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society. At the very least, you'd think he'd be familiar with things like the Federalist Papers and the importance of anonymous speech in the history of our democracy. But, no. Apparently not. He goes on to suggest that the legislature should ban Tor. Good luck with that. Oh, and while most of the focus is on his lawsuit against the Tor Project, the other parts of his lawsuit against Pinkmeth seem fairly problematic as well. Nearly all of the claims are likely precluded by Section 230, because Van Dyke seems to pin the blame for what a user of Pinkmeth did on Pinkmeth itself. That's not how the law works, no matter how "mean" you might be. I'd be happy if there were a way to legally take Pinkmeth down, but this isn't it. Next, he makes a bizarre mention of how there isn't a fair use defense here, despite never actually making a copyright claim in the lawsuit: Pinkmeth cannot claim "fair use" of any of the images they have misappropriated on its website because the illegal publication of child pornography and adult pornography (in violation of 18 U.S.C. § 2257) can never be lawful. In the specific case of the Plaintiff, she owns all the copyrights to the images stolen by Defendant. She has never given Defendant, or any other person, permission to access or distribute her photographs. Give that, you'd think there would actually be a copyright claim somewhere in the filing. But there isn't. And I won't even bother getting into the question of why he's jumping back and forth between copyright law and child porn and a law about keeping records in porn production. Fair use has nothing to do with any of that. And, while it may be true that the Plaintiff holds the copyright on it, given Van Dyke's other problems understanding the law, it seems like there should be a bit more evidence to support that. Then, the lawsuit goes even further, demanding "an all-encompassing order" which would impact a huge number of non-parties to the lawsuit, demanding a massive amount of prior restraint, all because of photos of one person. In particular, he demands that: (a) All top level domain name providers and companies, including Verisign Inc. and ICAAN, cause "pinkmeth.com" and other websites containing the "pinkmeth" verbage to be obliterated or otherwise rendered permanently inaccessible; (b) All domain name registrars and hosting companies, including TOR, be enjoined and restricted from providing, or continuing to provide, any Internet-related services to the Pinkmeth; (c) All search engines companies (e.g. Google and Yahoo) be enjoined from (i) including any pornographic photographs of Plaintiff in their search engine results; and (ii) including Pinkmeth in their search engine results; (d) All social media websites (e.g. Facebook, Twitter) be enjoined from permitting Defendant to utilize their services. He further requests that, without any hearing, the court issue a temporary restraining order granting all of the above. I recognize that he doesn't understand Tor, doesn't understand the internet, doesn't seem to know about Section 230 and is a bit weak in his understanding of the First Amendment, but really, does he not understand the nature of prior restraint? The idea that this entity should be wiped off the face of the internet entirely, prior to any sort of hearing flies in the face of basically all First Amendment law. You can be the meanest lawyer in Texas, but it might help to have some clue about the law and the technology you're suing. Unfortunately, Jason Lee Van Dyke seems to fail at most of that.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
We've pointed out before how bizarre it is that President Obama seems to gleefully admit that he's almost totally in the dark about what the intelligence community is doing. Last year, he admitted that he keeps finding out what the NSA is doing from the press reports on the Snowden documents and then he goes to ask what the NSA has been up to. It appears this "keep him in the dark" status is reaching new and ridiculous heights. As you probably heard, over the weekend the Germans arrested an employee of the German BND, who had apparently been spying for the Americans (via the CIA), and who had been tasked with keeping tabs on the German investigation into the Snowden leaks. This morning, there are reports about a second spy as well. Reports suggest that the first guy was a bit of a bumbling buffoon who was caught because he sent via email classified documents to the Russians, offering to spy for them as well (leading to an investigation that turned up his existing spying activities for the CIA), but it's still a diplomatic black eye for the US. However, the craziest bit about this is that no one bothered to inform the President that the cover of a CIA plant had been blown in Germany -- even though President Obama was scheduled to talk to Angela Merkel a day after the arrest. While that call went off without a hitch, and the spy wasn't brought up, the fact that President Obama was apparently unaware of the situation, once again, raises serious questions about the rogue nature of the intelligence community. No one expects the President to know specifically about CIA plants, but once one is blown -- especially concerning a big ally where previous revelations already made a bit of a diplomatic mess -- you'd think that someone inside the intelligence community would think to brief the President.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Julian Sanchez alerts us to a crazy story in the Washington Post (which, it should be noted, appears to be sourced from one side of the case, so recognize the potential bias), accusing prosecutors in a "sexting" child porn case of going so far as to get a search warrant to take a photograph of the defendant's "erect penis" in order to compare it to the one in a video he sent his girlfriend. A Manassas City teenager accused of “sexting” a video to his girlfriend is now facing a search warrant in which Manassas City police and Prince William County prosecutors want to take a photo of his erect penis, possibly forcing the teen to become erect by taking him to a hospital and giving him an injection, the teen’s lawyers said Like many other similar cases, this involves two teenagers sexting each other. We can all admit that this is a rather stupid thing to do, but it would be crazy not to recognize that this happens quite frequently with teens these days. It's already a pretty big stretch to try to twist those cases into "child porn" cases, but various prosecutors have been doing exactly that for years now. In this case, the 15-year-old girlfriend sent her 17-year-old boyfriend a photo of herself, and he sent back the video. The mother of the girl complained, and prosecutors went after the boy for "two felony charges, for possession of child pornography and manufacturing child pornography." If that already seems fairly questionable, prosecutors apparently decided to take things to the next level when the boy refused to plead guilty: The male teen was served with petitions from juvenile court in early February, and not arrested, but when the case went to trial in juvenile court in June, Foster said prosecutors forgot to certify that the teen was a juvenile. The case was dismissed, but police immediately obtained new charges and also a search warrant for his home. Police also arrested the teen and took him to juvenile jail, where Foster said they took photos of the teen’s genitals against his will. The case was set for trial on July 1, where Foster said Assistant Commonwealth’s Attorney Claiborne Richardson told her that her client must either plead guilty or police would obtain another search warrant “for pictures of his erect penis,” for comparison to the evidence from the teen’s cell phone. Foster asked how that would be accomplished and was told that “we just take him down to the hospital, give him a shot and then take the pictures that we need.” The teen declined to plead guilty. Foster said the prosecutor then requested a continuance so police could get a search warrant, which was granted by substitute Juvenile Court Judge Jan Roltsch-Anoll. So, if you're keeping score at home, what we have is (1) two teens (stupidly, but not that surprisingly) sending each other revealing photos/videos of each other in a consenting manner that could be seen as "child porn" solely based on their age and (2) law enforcement forcing the boy to create more such "child porn" in an effort to pressure him into pleading guilty to two felony child porn charges. How does that make any sense at all? Can anyone actually claim that the "forced" photo by police and the followup search warrant, with the plan to "inject" him in a hospital to photograph his erect penis, is somehow less problematic than the original sexting video?Permalink | Comments | Email This Story

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