posted 20 days ago on techdirt
Back when AT&T stopped offering unlimited wireless data, it grandfathered many of the unlimited users it had at the time. Unfortunately for those users, AT&T immediately started waging a quiet war on these customers as part of a concerted effort to drive them like cattle to more expensive plans. That included at one point blocking Facetime from working at all unless users switched to metered plans (but net neutrality is a "solution in search of a problem," am I right?) and throttling these "unlimited" LTE users after they'd consumed as little as three gigabytes of data. Then, just about a year ago, the FCC (like it has on a number of consumer telecom issues like telco accounting fraud or municipal broadband) miraculously awoke from a deep, fifteen-year slumber and decided to do something about this kind of behavior. FCC boss Tom Wheeler started warning telcos that they can't use congestion as a bogeyman to justify cash grabs, and that network management should be used to actually manage network congestion -- not as a weapon to herd users to more expensive options. The FTC also filed suit against AT&T for false advertising over its "unlimited" claims. While AT&T tried to unsuccessfully tap dance around the lawsuit (ironically claiming it was protected by Title II classification), this regulatory pressure appears to have worked. AT&T this week updated the company's policy for grandfathered unlimited data customers suggesting the company has modified its network management practices. Back in March, the company's policy looked like this:"As a result of the AT&T network management process, customers on a 3G or 4G smartphone with an unlimited data plan who have exceeded 3 gigabytes of data in a billing period may experience reduced speeds when using data services at times and in areas that are experiencing network congestion. Customers on a 4G LTE smartphone will experience reduced speeds once their usage in a billing cycle exceeds 5 gigabytes of data. All such customers can still use unlimited data without incurring overage charges, and their speeds will be restored with the start of the next billing cycle."As of this week, the policy now looks like this:"As a result of AT&T’s network management process, customers on a 3G or 4G smartphone or on a 4G LTE smartphone with an unlimited data plan who have exceeded 3 gigabytes (3G/4G) or 5 gigabytes (4G LTE) of data in a billing period may experience reduced speeds when using data services at times and in areas that are experiencing network congestion. All such customers can still use unlimited data without incurring overage charges, and their speeds will be restored with the start of the next billing cycle."In other words, gone are the references to throttling unlimited LTE users just because they hit a totally arbitrary threshold, and the company is now using network management to manage the damn network, not to make an extra buck. AT&T will of course find other, clever ways to annoy these users until they switch to more expensive plans, but it's at least good to see that the network congestion bogeyman (fear the exaflood!) isn't quite as effective as it used to be when it comes to justifying high rates, misleading consumers or conning regulators.Permalink | Comments | Email This Story

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

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

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

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

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

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

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

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

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

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

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Cyborgs are already walking among us -- if you count people who have advanced pacemakers and other implanted devices (eg. insulin pumps, cochlear implants, etc). There are also a handful of folks who are actively trying to become cyborgs, like Kevin Warwick. However, brain implants still need to be a lot less invasive and traumatic if anyone is going to really get a direct, permanent brain interface. Here are just a few links on neuro-interfaces that are making some progress. Cyborg rodents with spinal cord injuries can walk again thanks to implanted neural interfaces and flexible silicone wiring. This kind of research is still quite far away from being used in human patients, but it's promising work that could someday lead to amazing computer-brain interfaces. [url] The Utah Array is a chip that can be implanted in a person's brain and receive signals to do things such as control prosthetic limbs. There are also other kinds of neuroprosthetics that are similar (eg. Michigan array and NeuroProbes arrays), but these devices aren't exactly ready to replace smartphones just yet. [url] One woman has a brain implant that controls her epilepsy by scanning her brain for signs of a seizure and then stimulating her brain to interrupt it. Sixteen other patients have also been fitted with commercial neurostimulators, and doctors are learning more and more about how brain activity works with these implants. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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Last year, we wrote about a somewhat crazy lawsuit involving ASCAP, Pandora, and various record labels that was officially about trying to force Pandora into paying higher rates. There were a lot of moving parts in the case, but a key point was that various publishers (owned by the major record labels) pulled a neat little trick in which ASCAP allowed the publishers to "partially remove" their catalog, such that ASCAP could still license the catalog to traditional organizations, but not to "new media" companies (i.e., Pandora). Then, the publishers tried to "negotiate" independently with Pandora, and by "negotiate" I mean "refuse to tell Pandora what songs were no longer covered by ASCAP and then threaten a massive lawsuit if Pandora accidentally streamed any of those songs." Under such pressure, Pandora caved and agreed to pay much higher rates to those publishers, and ASCAP then spun around and tried to argue that those new rates were much more representative of "market rates" leaving out how the whole thing was planned together as a group as a form of collusion. Thankfully, the district court recognized what was going on, and mostly sided with Pandora, raising the rates slightly, but nowhere near as much as ASCAP and the publishers sought. ASCAP and the publishers appealed, but the appeals court has now easily sided with Pandora, seeing no problems with the lower court's rulings. The ruling [pdf] doesn't get into the whole collusion bit, but does note that allowing publishers to do this "partial removal" trick quite clearly violated the letter and spirit of the ongoing "consent decree" that ASCAP has with the Justice Department, to guarantee that it's not violating antitrust law. The consent decree says that if someone wants to license music that ASCAP has the right to license, ASCAP has to provide that license. Since it makes no distinction among different kinds of services, ASCAP can't just make up that part: Appellants contend that publishers may withdraw from ASCAP its right to license their works to certain new media music users (including Pandora) while continuing to license the same works to ASCAP for licensing to other users. We agree with the district court’s determination that the plain language of the consent decree unambiguously precludes ASCAP from accepting such partial withdrawals. The decree’s definition of “ASCAP repertory” and other provisions of the decree establish that ASCAP has essentially equivalent rights across all of the works licensed to it. The licensing of works through ASCAP is offered to publishers on a take‐it‐or‐leave‐it basis. As ASCAP is required to license its entire repertory to all eligible users, publishers may not license works to ASCAP for licensing to some eligible users but not others. Basically, the consent decree is quite clear: if you have the right to license the music, you have to license it to all-comers, and you can't make up artificial classifications that you won't license it to. As the ruling notes, it seems what ASCAP and the publishers are really trying to do is to rewrite the consent decree on the fly and have the court system sign off on it. The court will not do that: Appellants would have us rewrite the decree so that it speaks in terms of the right to license the particular subset of public performance rights being sought by a specific music user. This reading is foreclosed by the plain language of the decree, rendering Appellants’ interpretation unreasonable as a matter of law Of course, ASCAP, the publishers and the labels have been lobbying quite hard to get the DOJ and/or Congress to throw out the consent decree altogether, so that they can go back to colluding in this matter to try to jack up rates. Expect those efforts to expand even more given this ruling. Finally, the court also says that the new rates set by the lower court are perfectly fine and it sees no reason to change those rates, no matter how much whining ASCAP might do about the new rates. Having reviewed 1 the record and the district court’s detailed examination thereof, we conclude that the district court did not commit clear error in its evaluation of the evidence or in its ultimate determination that a 1.85% rate was reasonable for the duration of the Pandora‐ASCAP license. We likewise conclude that the district court’s legal determinations underlying that ultimate conclusion— including its rejection of various alternative benchmarks proffered by ASCAP—were sound. Basically: just because you say the rates are unfair doesn't make them unfair. Either way, given the way ASCAP and the publishers have whined and complained about this entire process, expect that to reach a new level of ridiculousness in the near future, with a bunch of bogus talk about how absolutely unfair life is for them, even as they rake in tons of money.Permalink | Comments | Email This Story

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Last week, as you may or may not have heard, a guy named Jack Ely passed away at the age of 71. The name may not be that familiar, but the voice almost certainly. Jack Ely was -- fairly briefly -- the lead singer of the Kingsmen, and happened to do a cover song in a single take under poor conditions, that created one of the most memorable songs in rock and roll history, also known as Louie Louie: You know the song. You also know the lyrics are completely indecipherable. However, with Ely's death, there's been renewed attention to the fact that the FBI spent nearly two years investigating the damn song. It is just as ridiculous as it sounds, but the FBI has released the file on its investigation and it's a rather hilarious read. It turns out it wasn't just the FBI, but involved the FCC and the Post Office: Apparently, the government was being inundated with claims from people (some of which you can see in the file) insisting that they had heard the indecipherable lyrics were actually "obscene." If you want to see the supposedly "obscene" interpretation of the lyrics, there's one set on page 14 [pdf] of the document, though I warn you, even the falsely heard "obscene" lyrics are not particularly obscene by today's standards (and I'm at a loss as to how they're that obscene by the standards of 1963, frankly). On page 22, there's another, mostly different set of falsely heard "obscene" lyrics that at least includes the word "fuck." On page 35, yet another version with both "fuck" and "bitch." There are lots of documents about the FBI playing the record, repeatedly, at different speeds, and all coming to the conclusion that you and I and everyone else already knows: the lyrics are basically indecipherable. And again: There are a few more times this determination was made, in part because after the FBI had already gone through the whole investigation, J. Edgar Hoover reopened it after a concerned parent wrote him a letter -- complaining that whether or not the real lyrics are obscene, it doesn't matter because teens can hear the obscene lyrics and "every teenager in the country 'heard' the obscene not the copywritten lyric." There are also letters to Attorney General Robert Kennedy that include lines like "these morons have gone too far," and "This land of ours is headed for an extreme state of moral degradation what with this record, the biggest hit movies and the sex and violence exploited on T.V. How can we stamp out this menace? ? ? ?" Really. But, in the end, as everyone knows, the song is simply indecipherable, rather than obscene. And that's because the band was in a tiny studio with just three mics, played a single take of the song and Ely had to scream at a microphone on the ceiling trying to have his voice heard above the instruments (a task he basically failed at doing). But, the idea that there was a mystery to the lyrics is kind of ridiculous for a few reasons, the first one being that the song is a cover song, and the FBI could have easily listened to a few of the earlier versions of the song, such as the original by Richard Berry, or another popular one by Rockin Robin Roberts and The Fabulous Wailers (the one that inspired the Kingsmen to do the cover). You can hear both those and another one right here. Their lyrics are a lot more intelligible in all of those versions, and you can pretty quickly tell that the lyrics to the Kingsmen version is supposed to be the Rockin Robin Roberts version. Also, as Marc Randazza notes, it took nearly two years for someone in the FBI to think, hey, isn't the song registered at the Copyright Office down the street? Maybe we should send someone over there to find out what it says? This was after the FBI had reached out to the record label (who gave them the accurate lyrics) along with the original author of the song, Richard Berry, who told them the lyrics. Oddly, apparently, the FBI never bothered to ask Ely himself what he sang, though I'm sure he would have said the same damn lyrics, which are below: Still, what a bizarre story of moral panics, FBI and governmental overreach, the First Amendment... and a bit of copyright thrown in just for fun. Oh, and as a general postscript, for all the hand wringing about possible obscenities in the song... there actually is one. Just not in the lyrics. At 54 seconds into the song, the drummer Lynn Easton actually fumbled his drumsticks banging them together and yells out "fuck." The FBI never caught on to that, but you can actually hear it if you listen...Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Karl touched on this with his recent post on Facebook's Mark Zuckerberg defending his Internet.org and its walled garden of "zero rated" services, but it deserves a separate post. You see, part of Zuckerberg's announcement was that Internet.org was expanding to let in other sites, but there are serious restrictions, and there's a big "sorry, you're not welcome" for sites that use HTTPS to protect the privacy of their users: To qualify, they must meet three criteria: they cannot be data-intensive. Videos, high-resolution photos and internet-based voice and video chats are among the banned content they must be able to run on cheaper feature phones as well as more powerful smartphones. To ensure this is the case, the use of JavaScript, Flash, the secure HTTPS communications protocol and certain other web-based products are not allowed they should encourage the exploration of the broader internet if possible, to encourage users to ultimately pay for access You could raise serious questions about all of these conditions, and the kind of walled garden that Zuckerberg is building, but keeping out HTTPS services at a time when the protection it provides is vitally important seems ridiculous. To be fair, when confronted on this, Zuckerberg claims this is only a temporary situation, mostly driven by the fact that older handsets/browsers can't handle HTTPS, but frankly that's a weak excuse, given the risks associated with unecncrypted traffic. You'd hope that the answer to this situation isn't "give them insecure internet" but "let's figure out how to secure things before we expose them to dangers online." Zuckerberg keeps going with the "better than nothing" argument here. To him, the limited, walled gardens are "better than nothing." And an security-disabled internet is "better than nothing." But given the risks, shouldn't he be striving for something better? Real access to the real internet in a way that protects the privacy of these users?Permalink | Comments | Email This Story

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Well well, this whole anti-Periscope app stuff is certainly becoming a thing. At first it was Hollywood that declared war on the livestreaming app and I said nothing, because I'm pretty sure Hollywood once argued that kittens were piracy-beasts because they might possibly accidentally type "torrent" onto their owners' keyboards whilst trying to get some attention. Then the NHL banned the media's use of Periscope during warmups, but I said nothing because the NHL never misses an opportunity to miss an opportunity when it comes to generating interest in the league. Then the boxing world went after Periscope streams of the Mayweather v. Pacquiao fight, but I said nothing because I honestly wasn't aware that boxing was still a thing nowadays. And now that the PGA has come after my potential Periscoping-golf-enjoyment by threatening to yank journalist credentials, who is left to stand up for me? Golf reporter Stephanie Wei lost her PGA Tour credentials after she used mobile live-streaming app Periscope to show golfers teeing off in practice at TPC Harding Park last Monday. The tour revoked her access “for the remainder of the season” on Wednesday. Wei wrote about the incident on her site. She admitted that she had received a warning for Instagramming a video of Tiger Woods’s round at the Phoenix Open earlier this year, but considered this to be a different circumstance since she was filming a practice round that wouldn’t have been televised anyway. As was the case with the NHL ban of the app, the fact that the streams consisted of footage that was never going to be broadcast apparently didn't matter a lick to the PGA. They simply saw someone using the app and decided to go all Hulk Smash on it. Wei noted that she specifically streamed footage she knew wouldn't make the air because she fully acknowledges that the PGA has broadcasting partners generating a great deal of revenue for golf and that the league would be within its rights to protect all that income. But she then argues that streaming practice sessions that wouldn't make television could only help golf in generating more interest. The PGA responded with a double-bogey's worth of dumb. PGA Tour chief marketing officer Ty Votaw didn’t see a difference, telling Golf.com that when Wei posts “unauthorized videos, she’s stealing.” Putting aside the misuse of the term...stealing what, exactly? There's no consequence here, other than the lost potential to promote the sport and the PGA through streaming that doesn't touch the broadcast footage. What did the PGA have that Wei "stole" from them? To yank the credentials of a reporter over this not only removes potential interest, but it also builds animosity with the press. I would have thought that someone involved in marketing the PGA would know better than this. Permalink | Comments | Email This Story

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There are never enough hours in a day it seems. The Productivity Hacks Bundle could help you get more out of your time. For $20 (97% off of the original price), you can learn how to outsource various tasks from your personal and business lives, and gain simple strategies to reduce the amount of unproductive time in your day. You can even learn how to boost ecommerce sales for your business. All you need is an internet connection and you'll get lifetime access to this program. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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If you aren't aware, the prison communications business is a massive boondoggle for the companies providing those services. Talk about a "captive market." And the companies take advantage of that with absolutely insane rates for things like phone service, some of which became news not too long ago when an expert in this area estimated that the Serial podcast probably had a $2,500 phone bill for its 40 hours of calls with Adnan Syed. But, of course there are other ways to gouge someone beyond just money. And, as the EFF's Dave Maass has discovered, one major service provider in the space, JPay, forces any user to sign over all rights to any content sent via its system. The company is pretty explicit about this. In the "email" portion of its lengthy terms of service (you have to (1) have javascript enabled and (2) click on the email link to get these to show up), it notes the following: If you can't read that, it says: INTELLECTUAL PROPERTY RIGHTS. You acknowledge that JPay owns all right, title and interest in and to the Service, including without limitation all intellectual property rights (the “JPay Rights“), and such JPay Rights are protected by U.S. and international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. The JPay Rights include rights to (i) the Service developed and provided by JPay; and (ii) all software associated with the Service. You also acknowledge that JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service. There is a similar clause under the "video visitation" terms of service as well, noting that JPay owns those videos as well. Now, you can understand JPay claiming IP rights on the service itself. But it's that second paragraph that's insane. Just to use the service, you are saying that JPay owns anything you send via the service. Anything. Maass points out this means that if a child sends a drawing to an incarcerated parent, JPay claims it owns the copyright on that drawing. Or, going back to Serial, all of those recorded calls with Adnan Syed? Well, if it had been done via JPay's system, under those terms, JPay could (theoretically) claim a copyright interest in the recordings, and thus argue that Serial was infringing. That might be (or might not be) a far-fetched scenario. But there are some very real world scenarios that are coming out as a result of this mess. You may recall a post we did back in February (also based off of excellent work by Maass), highlighting how the South Carolina Department of Corrections was adding new level 1 felony charges to anyone using social media while in prison. This resulted in some prisoners being given multiple years of solitary confinement for merely posting to Facebook. Maass highlights a case where prison officials similarly punished a convict who recorded a video message via JPay, urging supporters to come to a hearing in his appeal effort. When asked why the guy had lost a bunch of his rights and was put in solitary confinement, the prison said it was merely enforcing JPay's intellectual property rights, even if the company didn't appear to complain about this at all (and, in fact, encouraged people to share the videos created under its system): Valeria Buford has been running an Internet campaign to get her brother Leon Benson’s murder conviction overturned.  In August 2014, Benson used JPay to record a 30-second videogram thanking his supporters and asking them to attend an upcoming hearing in his appeal. Buford posted this to Facebook, but when prison staff discovered it, Buford’s JPay access was suspended and, according to the Indianapolis Star, Benson was disciplined, sent to solitary confinement, and stripped of good-time days. To justify the discipline, they claimed that they were simply enforcing JPay’s intellectual property rights and terms of service. [....] According to court records, JPay told Buford directly that she was free to do what she liked with the videogram, including posting it to social media Oh, and the reason there are court records on this is because Buford is suing, arguing that this whole thing violated her own First Amendment rights: Buford is currently suing the Indiana Department of Corrections with the help of the American Civil Liberties Union of Indiana. Although Buford’s JPay access has since been restored, she argues that her First Amendment rights are chilled because she “continues to face loss of her ability to communicate with her brother through [JPay] if she so much as posts an internet message from him.”   But, as Maass notes, JPay could help out by doing something rather basic here: changing its own terms of service to not claim ownership over all content sent via the system, so that the prison can no longer use that as a bogus excuse to strip prisoners of service just for speaking out.Permalink | Comments | Email This Story

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The FBI -- and by extension, every law enforcement agency it partners with -- wants holes carved in cellphone encryption. The problem is that it doesn't even know what specifically it wants. When asked directly if the FBI wants a backdoor, [Amy] Hess [Asst. Director of FBI's Science & Technology branch] dodged the question and did not describe in detail what actual solution the FBI is seeking. “We are simply asking for information that we seek in response to a lawful order in a readable format,” Hess responded, while also repeating that the Bureau supports strong encryption. “But how that actually happens should be the decision of the provider.” When pressed again, Hess said that it would be okay for the FBI not to have a key to decrypt data, if the provider “can get us that information by maintaining the key themselves.” That's asking the impossible -- for a great many reasons. First and foremost, compromised encryption is compromised encryption. It can be exploited by criminals and other unwanted entities just as certainly as it can assist law enforcement agencies in obtaining the information they're seeking. There's no way around this fact. You cannot have "good guys only" encryption. But beyond that, even if the FBI manages to get what it wants, it will do so at the expense of general computing. Requiring built-in backdoors or key escrow will dismantle the very systems it's meant to access. Computer scientist Jonathan Mayer delivers a long, detailed hypothetical involving the Android platform and how the FBI's desired access would fail -- and do severe collateral damage -- every step of the way. (via Boing Boing) First off, if Google gives the FBI the backdoors it wants, that only nails down Google. But Google also distributes thousands of third-party apps through its Play store. And these apps may not contain the subverted encryption the FBI is looking for. Now, Google has to be in the business of regulating third-party apps to ensure they meet the government's standard for compromised encryption. The obvious answer is that Google can’t stop with just backdooring disk encryption. It has to backdoor the entire Android cryptography library. Whenever a third-party app generates an encrypted blob of data, for any purpose, that blob has to include a backdoor. This move may work, but it only affects apps using Google's encryption. Other offerings may rely on other encryption methods. Then what? It has a few options, all of them carrying horrendous implications. One option: require Google to police its app store for strong cryptography. Another option: mandate a notice-and-takedown system, where the government is responsible for spotting secure apps, and Google has a grace period to remove them. Either alternative would, of course, be entirely unacceptable to the technology sector—the DMCA’s notice-and-takedown system is widely reviled, and present federal law (CDA 230) disfavors intermediary liability. At this point, Mayer suggests the "solution" is already outside the realm of political feasibility. Would the FBI really push this far to obtain encryption backdoors? The FBI itself seems unsure of how far it's willing to go, and many officials quoted (like the one above) seem to think all the FBI really needs to do is be very insistent on this point, and techies will come up with some magical computing solution that maintains the protective qualities of encryption while simultaneously allowing the government to open the door and have a look around any time it wants to. So, if the FBI is willing to travel this very dark road littered with an untold amount of collateral damage, it still hasn't managed to ensure the phones it encounters will open at its command. Considering phone users could still acquire apps from other sources, the government's reach would only extend as far as the heavily-policed official app store (and other large competitors' app stores). Now what? More government power and less operational stability. The only solution is an app kill switch. (Google’s euphemism is “Remote Application Removal.”) Whenever the government discovers a strong encryption app, it would compel Google to nuke the app from Android phones worldwide. That level of government intrusion—reaching into personal devices to remove security software—certainly would not be well received. It raises serious Fourth Amendment issues, since it could be construed as a search of the device or a seizure of device functionality and app data. What’s more, the collateral damage would be extensive; innocent users of the app would lose their data. Even if the government were willing to take it this far, it still doesn't eradicate apps that it can't crack. (But it may be sufficient to only backdoor the most used apps, which may be all it's looking to achieve...) App creators could decide to avoid Google's government-walled garden and mandated kill switch by assigning random identifiers and handling a majority of the app's services (like a messaging service, etc.) via a website, out of reach of app removal tools and government intervention. To stop this, the US government would need to do the previously unimaginable: In order to prevent secure data storage and end-to-end secure messaging, the government would have to block these web apps. The United States would have to engage in Internet censorship. Robert Graham at Errata Security makes similar points in his post on the subject, but raises a couple of other interesting (in the horrific train wreck meaning of the word) points. While the government may try to regulate the internet, it can't (theoretically) touch services hosted in foreign countries. (Although it may soon be able to hack away at them with zero legal repercussions…) Such services could be located in another country, because there are no real national borders in cyberspace. In any event, such services aren't "phone" services, but instead just "contact" services. They let people find each other, but they don't control the phone call. It's possible to bypass such services anyway, by either using a peer-to-peer contact system, or overloading something completely different, like DNS. Like crypto, the entire Internet is based on the concept of end-to-end, where there is nothing special inside the network that provides a service you can regulate. The FBI likely has no desire to take its fight against encryption this far. The problem is that it thinks its "solution" to encryption is "reasonable." But it isn't. The point is this. Forcing Apple to insert a "Golden Key" into the iPhone looks reasonable, but the truth is the problem explodes to something far outside of any sort of reasonableness. It would mean outlawing certain kinds of code -- which is probably not possible in our legal system. The biggest problem here is that no one arguing for "golden keys," key escrow, "good guy" backdoors, etc. seems to have any idea what implementing this could actually result in. They think it's just tech companies sticking it to The Man, possibly because a former NSA sysadmin went halfway around the world with a pile of documents and a suitcase of whistles with "BLOW ME" printed on the side. But it isn't. And their continual shrugged assertion that the "smart guys" at tech companies will figure this all out for them is not only lazy, it's colossally ignorant. There isn't a solution. The government can't demand that companies not provide encryption. It's not willing to ban encryption, nor is it in any position to make that ban stick. It doesn't know what it needs. It only knows what it wants. And it can't have what it wants -- not because no one wants to give it to them -- but because no one can give it to them. Yes, many tech companies are far more wary of collaborating with the government in this post-Snowden era, but in this case, the tech world cannot give the FBI what it wants without destroying nearly everything surrounding the "back door." And continually trotting out kidnappers, child porn enthusiasts and upskirt photographers as reasons for breaking cell phone platforms doesn't change the fact that it cannot be done without potentially harming every non-criminal phone owner and the services they use. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
If you read our recent post on the US's new IP czar, Danny Marti, and his questionable ideas, you already saw much of this, but that was a (super, crazy) long post, and I just can't stop thinking about the ridiculousness of the World Intellectual Property Organization (WIPO) using the title of a popular Bob Marley song to promote World Intellectual Property Day, which was held back on April 26th. Here's the WIPO website about it: As you can see, the theme was "Get Up, Stand Up. For Music." This is a play on the title of Bob Marley and the Wailers' famous song "Get Up, Stand Up." As you may know, this song was written by Bob Marley after touring Haiti, and was first released on the Wailers' 1973 album Burnin'. That's important because a few years ago, Bob Marley's heirs sought to regain control of his copyrights from Universal Music (which got them when it bought Island Records) by going through the copyright termination process (which allows original artists to regain control over their copyrights years after assigning them to others). We've written a bunch about copyright termination in the past, though this case was a bit different -- as it was under the old termination rules, rather than those in the 1976 Act (obviously, a recording from 1973 wasn't recorded under the '76 Act). The end result? The court claimed that Marley wrote the song as a work made for hire and thus Universal could keep the copyright, and not give it back to the Marley Estate. So, if we're "getting up, standing up, for music," what message is WIPO really sending here? That we should support giant multinational gatekeeper corporations that play legal games to keep the copyright and control from the actual artists and their heirs? Really? The decision is even more bizarre and ridiculous if you're even remotely familiar with things like the history of popular Jamaican music. Hell, even the history of reggae itself that led to Bob Marley becoming so famous. You had records that made their way from America that first influenced Jamaican music in the late 50s and early 60s, and without enough of it flowing into Jamaica, local record store owners started setting up their own recording studios, combining Jamaican and other Caribbean rhythms with American R&B to create entirely new kinds of music, but very much built off of American music: Jamaican shuffle, ska, rocksteady and, eventually, reggae. Some of the earliest songs were merely re-imaginings of American songs but with a Jamaican twist. Hell, just look at Bob Marley's own first album, The Wailing Wailers, which was put out by Studio One, the leading and biggest Jamaican studio for popular Jamaican music at the time. It included a cover of the American hit "What's New Pussycat?" and, more importantly, the song "One Love" (in a very different version than the famous one you probably know -- though, frankly, I prefer this original one). However, that version included a pretty clear copy of Curtis Mayfield's amazing tune "People Get Ready," which was released the same year -- but Mayfield wasn't credited at all, to make sure there were no copyright issues. You can find that kind of story repeated throughout the history of popular Jamaican music, and it was this kind of regular copying, building on and remixing of others' works, that helped make Jamaican music -- and Bob Marley, in particular -- so popular. In fact, in an effort to produce more new records more quickly, it was pretty common for producers/sound system operators in Jamaica to get a bunch of studio musicians together to record a bunch of backing tracks, or "riddims" and then let a whole bunch of different singers sing different songs over them. You can find tons of classic old Jamaican songs with identical backing tracks. Here's Sound Dimension's "Real Rock" which you can probably find on dozens of reggae songs, such as Dennis Brown's "Stop that Fussing & Fighting", or Willi Williams' "Armagideon Time" (which was famously covered by the Clash a few years later). Or, you have Jamaican bands taking American hits and writing entirely different lyrics. Ever hear the Gaylads doing "Stop Making Love"? That song sound familiar? Of course it does, it's the Four Tops' "Same Old Song". And, of course, nearly all of this happened almost entirely in the absence of any real copyright laws. An explosion of creativity and music, that you can then take and trace a fairly straight line from Jamaican reggae to Jamaican dancehall to American hip hop and onward. Yet, we have WIPO pointing back to all of this as an example of the need to "get up, stand up" for stronger copyright laws for music? Really? Now, to be clear, the situation in Jamaica for musicians wasn't always great. Producers/sound system operators frequently screwed over artists. The underlying aspects of the story in The Harder They Come is only loosely fictionalized. Some musicians were screwed over, and what little bits of copyright law that were actually used, it was generally used to benefit gatekeepers over the artists -- which is how Bob Marley's heirs were left in a situation in which Universal Music fought and won in court to keep those copyrights from going back to the Marley estate. Given all that, it's a mystery as to why anyone involved in intellectual property could possibly think that referencing Bob Marley, Jamaican music, or the song "Get Up, Stand Up" would even remotely make sense for "World Intellectual Property Day." The entire song and the history behind it is more of a condemnation of intellectual property and how it was often used to harm artists. But, of course, the geniuses at WIPO don't know much about actual culture. They just saw an opportunity to co-opt a popular concept and use it to their own advantage. That's perfectly fine of course, but it does make me wonder if WIPO gave Marley's heirs any compensation for using the title of his song? Or, does WIPO not really believe in "standing up" for that sort of thing?Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
If you read our recent post on the US's new IP czar, Danny Marti, and his questionable ideas, you already saw much of this, but that was a (super, crazy) long post, and I just can't stop thinking about the ridiculousness of the World Intellectual Property Organization (WIPO) using the title of a popular Bob Marley song to promote World Intellectual Property Day, which was held back on April 26th. Here's the WIPO website about it: As you can see, the theme was "Get Up, Stand Up. For Music." This is a play on the title of Bob Marley and the Wailers' famous song "Get Up, Stand Up." As you may know, this song was written by Bob Marley after touring Haiti, and was first released on the Wailers' 1973 album Burnin'. That's important because a few years ago, Bob Marley's heirs sought to regain control of his copyrights from Universal Music (which got them when it bought Island Records) by going through the copyright termination process (which allows original artists to regain control over their copyrights years after assigning them to others). We've written a bunch about copyright termination in the past, though this case was a bit different -- as it was under the old termination rules, rather than those in the 1976 Act (obviously, a recording from 1973 wasn't recorded under the '76 Act). The end result? The court claimed that Marley wrote the song as a work made for hire and thus Universal could keep the copyright, and not give it back to the Marley Estate. So, if we're "getting up, standing up, for music," what message is WIPO really sending here? That we should support giant multinational gatekeeper corporations that play legal games to keep the copyright and control from the actual artists and their heirs? Really? The decision is even more bizarre and ridiculous if you're even remotely familiar with things like the history of popular Jamaican music. Hell, even the history of reggae itself that led to Bob Marley becoming so famous. You had records that made their way from America that first influenced Jamaican music in the late 50s and early 60s, and without enough of it flowing into Jamaica, local record store owners started setting up their own recording studios, combining Jamaican and other Caribbean rhythms with American R&B to create entirely new kinds of music, but very much built off of American music: Jamaican shuffle, ska, rocksteady and, eventually, reggae. Some of the earliest songs were merely re-imaginings of American songs but with a Jamaican twist. Hell, just look at Bob Marley's own first album, The Wailing Wailers, which was put out by Studio One, the leading and biggest Jamaican studio for popular Jamaican music at the time. It included a cover of the American hit "What's New Pussycat?" and, more importantly, the song "One Love" (in a very different version than the famous one you probably know -- though, frankly, I prefer this original one). However, that version included a pretty clear copy of Curtis Mayfield's amazing tune "People Get Ready," which was released the same year -- but Mayfield wasn't credited at all, to make sure there were no copyright issues. You can find that kind of story repeated throughout the history of popular Jamaican music, and it was this kind of regular copying, building on and remixing of others' works, that helped make Jamaican music -- and Bob Marley, in particular -- so popular. In fact, in an effort to produce more new records more quickly, it was pretty common for producers/sound system operators in Jamaica to get a bunch of studio musicians together to record a bunch of backing tracks, or "riddims" and then let a whole bunch of different singers sing different songs over them. You can find tons of classic old Jamaican songs with identical backing tracks. Here's Sound Dimension's "Real Rock" which you can probably find on dozens of reggae songs, such as Dennis Brown's "Stop that Fussing & Fighting", or Willi Williams' "Armagideon Time" (which was famously covered by the Clash a few years later). Or, you have Jamaican bands taking American hits and writing entirely different lyrics. Ever hear the Gaylads doing "Stop Making Love"? That song sound familiar? Of course it does, it's the Four Tops' "Same Old Song". And, of course, nearly all of this happened almost entirely in the absence of any real copyright laws. An explosion of creativity and music, that you can then take and trace a fairly straight line from Jamaican reggae to Jamaican dancehall to American hip hop and onward. Yet, we have WIPO pointing back to all of this as an example of the need to "get up, stand up" for stronger copyright laws for music? Really? Now, to be clear, the situation in Jamaica for musicians wasn't always great. Producers/sound system operators frequently screwed over artists. The underlying aspects of the story in The Harder They Come is only loosely fictionalized. Some musicians were screwed over, and what little bits of copyright law that were actually used, it was generally used to benefit gatekeepers over the artists -- which is how Bob Marley's heirs were left in a situation in which Universal Music fought and won in court to keep those copyrights from going back to the Marley estate. Given all that, it's a mystery as to why anyone involved in intellectual property could possibly think that referencing Bob Marley, Jamaican music, or the song "Get Up, Stand Up" would even remotely make sense for "World Intellectual Property Day." The entire song and the history behind it is more of a condemnation of intellectual property and how it was often used to harm artists. But, of course, the geniuses at WIPO don't know much about actual culture. They just saw an opportunity to co-opt a popular concept and use it to their own advantage. That's perfectly fine of course, but it does make me wonder if WIPO gave Marley's heirs any compensation for using the title of his song? Or, does WIPO not really believe in "standing up" for that sort of thing?Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Just as we're (finally) having something of a debate in the US about at least rolling back some of the worst aspects of the PATRIOT Act and the surveillance state (though, not nearly enough), it appears that both France and Canada are moving in the other direction. In France, they're using the Charlie Hebdo attacks as an excuse for a massive surveillance expansion, that not only will lead to the government collecting and sifting through much more information, but with less oversight: At a moment when American lawmakers are reconsidering the broad surveillance powers assumed by the government after Sept. 11, the lower house of the French Parliament took a long stride in the opposite direction Tuesday, overwhelmingly approving a bill that could give authorities their most intrusive domestic spying abilities ever, with almost no judicial oversight. The bill, in the works since last year, now goes to the Senate, where it seems likely to pass, having been given new impetus in reaction to the terrorist attacks in and around Paris in January, including at the offices of the satirical newspaper Charlie Hebdo and at a kosher grocery, that left 17 people dead. And then we see Canada doing the same thing: Widespread protest and souring public opinion has failed to prevent Canada’s ruling Conservative Party from pushing forward with sweeping anti-terror legislation which a battery of legal scholars, civil liberties groups, opposition politicians and pundits of every persuasion say will replace the country’s healthy democracy with a creeping police state. Prime Minister Stephen Harper is looking forward to an easy victory on Tuesday when the House of Commons votes in its final debate on the bill, known as C-51. But lingering public anger over the legislation suggests that his success in dividing his parliamentary opposition may well work against him when Canadians go to the polls for a national election this fall. Despite widespread protests and concerns about both laws, the governments in both countries are just pushing forward , spreading FUD left and right to try to paper over why they need to absolutely destroy the privacy rights of the public. It appears that governments around the globe are seeing world events as a convenient excuse to ratchet up their own power, while taking away frights from citizens. In both countries, leaders supporting these measures talk about ISIS and "jihadi terrorism" and completely dismiss the complaints about a lack of oversight. However, in both cases, what little oversight there is of the new surveillance capabilities is very much of the rubber stamp variety. First, in France: The only judicial oversight is a provision that allows the commission to lodge a complaint with the Council of State, but lawyers are dubious that they could be convened on a routine basis. The Council of State functions as a legal adviser to the executive branch of government and a supreme court for matters of administrative law. And then in Canada: Critics of the legislation say the imminent law gives Canadian spies sweeping new powers to investigate and disrupt broadly defined threats to public safety, with language that makes no distinction between terrorist plots and legitimate political protests and demonstrations. At the same time, it neglects to provide any increased oversight of the country’s vastly empowered chief spy agency, the Canadian Security and Intelligence Service. Whatever happened to countries that respected liberty and freedom?Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Here on Techdirt we've written many times about the problematic nature of drug patents. They are harmful both directly, in terms of the price distortions they cause and seek to spread to new markets, and indirectly, through the lobbying that the pharma industry deploys to strengthen and extend them, notably in trade agreements such as TPP and TAFTA/TTIP. The standard justification for these patents is that they are needed to provide incentives for costly research and development of new drugs, something that Techdirt has been questioning for many years. A fascinating new paper entitled "Patent Monopolies and the Costs of Mismarketing Drugs" (pdf), by Ravi Katari and Dean Baker at the Center for Economic and Policy Research, explores yet another problem with pharma patents: in the case of prescription drugs, there are also major costs associated with the enormous asymmetry between the knowledge available to drug companies and the knowledge available to patients and their doctors. As a result of this asymmetry of knowledge, drug companies will often be in a situation to earn large patent rents by concealing information that show their drugs are less effective than they claimed or possibly even harmful. One way in which drug companies take advantage of this asymmetry is with "off-label" promotion of their drugs. An off-label use of a drug is one which has not been approved by the FDA. While doctors are free to prescribe drugs for off-label uses, drug companies are prohibited from promoting their drugs for off-label uses. If they want to get a drug approved for additional uses then they have to clear a path by seeking FDA approval. However, they routinely avoid this independent assessment by finding ways to promote their drugs for unapproved uses. Promotion of drugs for off-label uses is harmful to the public because it diminishes drug safety regulation, discourages companies from conducting or revealing internal safety studies, and incentivizes them to seek FDA approval for narrow "label use" that is easier to push through the approval process. The bulk of the paper is concerned with quantifying those costs by looking at five high-profile cases of mismarketing. Here's the final result: The cumulative costs associated with the increased morbidity and mortality associated with these drugs was $382.4 billion over the 14-year period from 1994–2008. This comes to just over $27 billion a year, an amount that is comparable to what the pharmaceutical industry claims to have been spending on research at the time. As the paper's authors emphasize, this is only a rough figure, and is likely to underestimate the total negative consequences of this kind of rent-seeking behavior, since it is based on only a small subset of drugs, and uses conservative estimates for key quantities. More important than the specific figure are the policy implications. For example, the deliberate mismarketing is only possible because data is kept secret: If, for example, this research was all in the public domain and carried through by researchers who had no direct financial interest in the sales of a drug, it is unlikely that they would go to elaborate lengths to misrepresent or conceal research findings, or that they would be successful if they tried. In other words, the costs documented here are the result of the incentives provided by patent monopolies in the same way that the research itself is motivated by patent monopolies. At the very least, that's an argument for requiring that all research data and clinical trial information should be made freely available for others to analyze. The paper also points out that there are implications for TPP and TAFTA/TTIP: One of the major goals of the United States in these and other trade pacts currently being negotiated is to strengthen patent and related protections for prescription drugs. The justification is that increased patent rents will provide a greater incentive to the pharmaceutical industry, leading to more innovation. But as the present study shows, strengthening those protections is likely to encourage more rent-seeking behavior, increased mismarketing, and thus unnecessary deaths and greater costs to society -- hardly something to promote through trade agreements. Finally, the new research adds further weight to the argument that we need to find better ways of funding research into new drugs: The fact that incentives from patent rents lead firms to promote drugs in ways that impose large costs on patients and society should raise additional questions about the desirability of patent protection as a mechanism for financing research. Other mechanisms for financing research have been proposed, such as a prize system or direct public funding. Of course the U.S. government already spends $30.9 billion annually funding biomedical research through grants administered by the National Institutes of Health, so direct public funding is already an integral part of the drug development process. The proposal is to expand this funding and have NIH’s mission extend to the development and testing of drugs. By having all research in the public domain and taking away the patent rents associated with marketed drugs, direct funding would both remove the incentive and hugely lessen the ability to misrepresent research in order to promote drugs for uses that may not be appropriate. When so many lives and so much money are at stake, it's surely time to look at this idea more closely. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
The Department of Justice is looking to help equip more law enforcement officers with body cameras. The Obama administration is spending $20 million on police body cameras, amid rising tension over police violence. The announcement from the Justice Department on Friday would create a new pilot program to equip police in dozens of cities with the devices, as the first step in a $75 million three-year effort that President Obama requested from Congress in December. “This body-worn camera pilot program is a vital part of the Justice Department’s comprehensive efforts to equip law enforcement agencies throughout the country with the tools, support and training they need to tackle the 21st century challenges we face,” Attorney General Loretta Lynch said in a statement shared with media outlets. “Body-worn cameras hold tremendous promise for enhancing transparency, promoting accountability and advancing public safety for law enforcement officers and the communities they serve.” One-third of the first $20 million will be routed to "small law enforcement agencies" -- the ones least likely to adopt this technology due to the cost of acquiring cameras. While grants towards initial purchases are helpful, unless there's more money on the way, ongoing maintenance and video storage costs will still be stated as reasons to avoid equipping officers with cameras. This is a good move forward, though, even if simply equipping cops with cameras isn't a quick fix for law enforcement misconduct. As it stands now, most camera-equipped officers still exercise a great deal of control over what actually gets captured. And police departments -- often aided by sympathetic legislators -- are working quickly to limit the public's access to body camera recordings. While there have been reports that body cameras have lowered both citizen complaints and use of force incidents, there's still more than enough released body cam footage that indicates it will take more than realizing they're being recorded to deter certain officers' abusive behavior and excessive force. For instance, here's some footage captured by a Utah police officer's body cam that shows he and his fellow officers unleashing a police dog on a person with both hands in the air (while claiming the suspect "might have had a weapon" [that he was going to pull with his feet?]). Knowing a camera was running didn't result in any additional restraint by the officers. Then there's the matter of the "extra rights" many officers have secured through police union pressure and law enforcement-friendly lawmakers. In addition to maintaining control over the release of footage, officers in some cities are given up to three days to review evidence before making a statement -- or even answering questions about the incident itself. The administration's decision to fund body camera efforts is an implicit criticism of the current state of American policing. Police officers are well aware of what message is being sent by the deployment of these cameras. Even though captured footage also holds the power to exonerate wrongly-accused police officers, this fact is seldom mentioned by those critical of these programs. Instead, officers and their representatives suddenly develop concerns about the public's privacy -- something they've never expressed much interest in over the past several -- and mostly unrecorded -- decades. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
Materials made of carbon are amazingly useful. We've pointed out various cool things that graphene can do before, but the list really seems to go on and on (even though there are less than a handful of products on the market that actually incorporate graphene). Still, graphene could improve a lot of things, and material science often takes decades to really establish a market for a specific material. Check out these links... and maybe in 30 years or so, we'll finally get to see some of these things. Graphene, like many other "miracle materials" before it, was predicted to create amazing advances in a wide range of products due to its unique chemical and physical properties. The material was discovered in 2004 from super thin layers of graphite, and now there are thousands of graphene-related patents. However, it may still be a while before widespread commercial applications are a reality. stuck to adhesive tape. [url] If only graphene could be produced in large-scale amounts, we'd have all kinds of crazy strong stuff -- like really lightweight bulletproof vests. Lab experiments show that graphene is better than Kevlar, but the catch is that no one has been able to make cheap graphene in large quantities. /sad trombone [url] Carbon nanotubes have exhibited an interesting ability to generate electricity via a thermopower wave phenonmenon. Igniting a combustible substance at one end of a carbon nanotube thread with a laser can push electrons around, and graphene could be another material that this phenomenon works with that's even more efficient. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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