posted 20 days ago on techdirt
Given the stories we've covered in the past in which schools and their administrators massively overreact in the name of children's safety, I suppose these stories really shouldn't surprise me as much as they do. I mean, given that we've seen administrators lose their minds over pop tarts, fingers, and even drawings, should I really be shocked that a fourth grader was suspended from his Georgia elementary school for bringing in a nerf gun? No, probably not, but a lack of surprise doesn't mean I can't get angry that a kid that properly completed his damned assignment was suspended for it. So why did young Ramsey McDonald bring the nerf gun, which shoots terrifying soft little foam balls out of it, to class? Because he was told to, that's why. After a couple of days into the school year, fourth grader Ramsey McDonald of Warner Robins was given what he thought was a fun assignment. Bring in some of your favorite toys to talk about. "They were trying to get the kids to know each other," his father, Scott McDonald said. Well, bang up job, Warner Robbins Elementary, because Ramsey dutifully completed that assignment, but it's going to be pretty hard for his classmates to get to know him now that he's serving a 3 day in-school suspension. For bringing in a toy, mind you, that is rated for six-year-olds and up, since it is about as harmful as a really tiny pillow covered in a newborn puppy's love. It's a toy. He was told to bring in a toy. Hell, it could have even served as a simple teaching moment for Ramsey about thinking of the larger context of things before making a decision. Instead, all he's learned is that bureaucracy breeds this kind of overprotective nonsense. Well, that plus he learned that he has more common sense than the adults at his school. "He told me he didn't know they would think it was a weapon or he wouldn't have brought it to school," McDonald said. Well, of course not, because it's not a freaking weapon, it's a toy, which is exactly what he was asked to bring in. Sitting this kid outside of his class on suspension for three days for properly completing his assignment is crazy-pants. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
For many years we've vocally criticized a very questionable line of arguments made by various lobbyists and (tragically) the US Commerce Department, that if you look at so-called "IP intensive industries" and see that those industries employ lots of people and are often profitable, it therefore means that stronger copyright, patent and trademark laws are good for the economy. There are all sorts of problems with this argument, highlighted simply by the fact that the single largest employment listed in one of these studies for an "IP intensive" industry is grocery stores. It's somewhat comical to believe that grocery stores employ 2.5 million people because of trademark law. When challenged on this, the US Commerce Department's incredibly weak defense of this kind of argument (i.e., "Steve Jobs had patents, Steve Jobs made cool things, ergo, patents are important to innovation") was certainly troubling. Thankfully, a new report by Eli Dourado and Ian Robinson at the Mercatus Center at George Mason University does a nice job dismantling most of the claims in these series of reports that suggest that lots of jobs in "IP intensive industries" automatically means "strong intellectual property laws are good." The report starts out by simply highlighting the problem of generally using "jobs" as a proxy for "good for society." That's a fallacy, and often a problematic one for innovation (where disruption may initially destroy a bunch of jobs, but, in the long-term, create many new opportunities). Perhaps most fundamentally, jobs are not ends in themselves, and counting the number of jobs created is therefore not the best way to evaluate a policy. As Bryan Caplan notes, “Economists have been at war with make-work bias for centuries. [19th-century French economist Frederic] Bastiat ridicules the equation of prosperity with jobs as ‘Sisyphism,’ after the mythological fully employed Greek who was eternally condemned to roll a boulder up a hill.” Economic progress, Bastiat says, is defined by an increasing ratio of output to effort—indeed, economic nirvana is achieved when there is high output and zero labor effort. Lawmakers could create jobs by requiring that construction projects be performed with spoons instead of shovels or tractors. Such a policy, however, would reduce worker productivity and decrease total economic output. Consequently, this spoon mandate would not promote economic progress. Likewise, some of the jobs created by IP may harm the economy instead of helping it. Suppose IP laws necessitated that every firm hire 10 additional IP lawyers, but otherwise left output unchanged. IP could be said to create millions of additional jobs, but these would be jobs that reduced real output per worker, jobs that moved society further away from economic nirvana. They should be reckoned as economic costs of IP, not economic benefits. If (counterfactually) this were the only effect of IP, then abolition of IP would mean that the effort of the heretofore unproductively employed IP lawyers could be redirected to more productive uses. But of course, the bigger issue, as we've outlined, is the silly argument that these jobs exist because of strict intellectual property laws. Not a single one of these studies has looked at how the jobs change with changes in the law. It simply is ridiculous to naturally assume that most of these jobs (like the grocery store point above) exist because of the current laws. As a reductio ad absurdum, consider the blogging “industry.” As a matter of law, all authors are automatically, without registration or any other formal notice, bestowed with a copyright in their blog posts. Since the entire output of the blogosphere is copyrighted, under IPUSE’s methodology it would qualify as an IP-intensive industry (if it were considered an industry). Nevertheless, it seems clear that copyright protection accounts for at best a tiny sliver of bloggers’ output—the vast majority of blogs are accessible without a paid subscription, and many bloggers do not attempt to monetize their posts (with ads, say) at all. If some industries resemble blogging—for example, if copyrights are automatically awarded but not relied on, or if patenting is done for primarily defensive purposes, or if trademarks exist but are rarely relied on by consumers—then IPUSE and the other reports that rely on simplistic counts of IP grossly overstate the number of jobs due to intellectual property. For these industries, IP intensity is not a reliable indicator of IP dependence. On a similar note, for years we've pointed to CCIA's reports that did such a great job highlighting this fallacy by using the identical methodology to define "fair use intensive industries" to show that based on the copyright industry's own bogus methodology, clearly fair use is "more important" than copyright since it employs more people -- and thus, if we were to believe the original reports, then we should clearly expand fair use (massively, since it's so limited today). The whole point of the report was to mock the silly claims about "copyright intensive industries" -- and, amazingly, those who supported one report were horrified by the fair use report, attacking the methodology, without the self-awareness to recognize they were mocking their own preferred methodology. As the report also notes, many of these other reports on how "important" IP is assume that intellectual property is the sole incentive for these jobs and related innovations and progress. That's just silly. As the new report notes, there are lots of possible impacts that these studies don't even remotely account for: As a general matter, intellectual property law can overprotect as well as underprotect. When it overprotects, it creates jobs without a corresponding increase in real output, it creates jobs by destroying other jobs that are not accounted for, and at the margin it accounts for very little of the actual output created by supposedly IP-intensive industries. The report then goes on to explore each of the three key areas -- copyrights, patents and trademarks -- to show why the assumptions underlying many of the reports simply don't hold up under scrutiny. It's a useful addition to counteract the bogus studies that make the bogus correlation argument based on the broadly defined "IP-intensive industries." If I have one complaint about it, it's that the report doesn't go as far as I expected, based on the title: "How Many Jobs Does Intellectual Property Create?" When I started reading the paper, I expected an attempt to actually look for some sort of causal methodology to determine such a figure, rather than just a dismantling of the arguments of those other reports. It's still a useful bit of research and analysis, but the title overpromises a bit.Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
One thing that will never cease to make me smirk out of frustration is how often the purveyors of the moral panic du jour seem to cast aside the morality of telling the damned truth when making their panicked arguments. Today it's all video games and ghost stories, with names like Jack Thompson cemented in our minds as bullshit artists fairly easily cast aside as the crackpots that they are. That said, these people are simply the latest iteration in a long and glorious history of people trying to make a buck or a reputation off of the fears of parents and it's useful to remind people we've all been here before and history hasn't judged these fear-peddlers all too kindly. Over at io9, they have a fascinating writeup discussing the history of Fredric Wertham, a psychiatrist who waged his own personal war against the comic book industry in the fifties. His weapons of choice were lies, half-truths, omission of facts, and a level of bullshit not typically seen outside of farm country. There's a ton of detail in the post to dig through, but the skinny is that Wertham wrote a bestelling book in 1954 called The Seduction of the Innocent, which, despite it's porno-sounding name, was essentially a screed against comic books. Wertham's assertion that comics drove children to violence, drug use, and homosexuality was one of the inspirations for the editorial code used by the comics industry assocation CMAA. Basically the movement that still ripples against kids reading comics today all started because of The Seduction of the Innocent. The problem is that the book was mostly bullshit, as discovered and covered by the University of Illinois' Carol Tilley. Tilley's work is based on unprecedented access to 200 cartons of Wertham's private papers at the Library of Congress, which were under seal until 2010. Over a period of roughly two weeks, Tilley pored over everything from Wertham's correspondence with colleagues to the extremely detailed notes he kept on interviews and sessions with the teens he worked with throughout most of his life. It was when she started reading these notes that Tilley realized that there were some pretty big discrepancies between what Wertham recorded in them, and what he wrote in Seduction of the Innocent. What she uncovered was an almost pathological practice by Wertham of altering the stories of his patients, splintering his patient's stories and attributing them to multiple people to build a case of mass effect, repurposing second-hand accounts as his own and attributing them to made-up patients, or else taking true patient information and leaving out anything that would point the finger anywhere besides a comic book. Seriously, some of the examples cited are downright insane. Take the case of Dorothy, a teen described in Wertham's book as being obsessed with the comic book heroine Sheena. In the case notes, Wertham commented that the images of strong women reinforced "violent revenge fantasies against men and possibly creates these violent anti-men (therefore homosexual) fantasies. . . . Sheena and the other comic book women such as Wonder Woman are very bad ideals for them." Yet Wertham omits from Seduction—and seemingly from his analysis—a revealing story about Dorothy's everyday reality. In the case notes, she related an incident in which her aunt was accosted by gang members, taken to a rooftop, and robbed of less than one dollar. Wertham also declined to mention in Seduction that Dorothy—in addition to being habitually truant—was a runaway and a gang member, was sexually active, and had both a reading disability and low normal intelligence. On the final page of Dorothy's case notes, Wertham instead wrote: "She would be good and non-aggressive if society would let her—Comic Books are part of society." Got that? Strong women in comics make women man-hating violent offenders, but, hey, don't look at all this patient history of trauma and disability over here. The last sentence of those notes is such a leap -- "Comic Books are part of society", therefore they're to blame for her violence -- it sort of takes your breath away. I mean, crappy lying psychiatrists fudging their data are also a part of society, so...you know. The fudging gets worse when Wertham looks to blame homosexuality on Batman & Robin, taking the jokes we all made as ignorant children and building an entire psychiatric claim around them. Too bad he built his own strawman composite to do so. As part of his evidence for this identification, Wertham shared the insights of a young homosexual man who stated, "I think I put myself in the position of Robin. I did want to have relations with Batman." The young man from the anecdote was actually two men, ages sixteen and seventeen, who had been in a sexual relationship with one another for several years and had realized they were homosexual by the age of ten. Wertham combined their statements, failing to indicate that the seventeen-year-old is the one who noted, "The only suggestion of homosexuality may be that they seemed to be so close to each other," and omitting the phrase that followed, "like my friend and I." Further, Wertham did not make any mention that the two teens had found the Submariner and Tarzan to be better subjects than Batman and Robin for their early erotic fantasies. When he wasn't putting the words of one patient into the mouths of several fictional patients, Wertham would just, you know, pretend he'd experienced things he never had actually experienced. Tilley also found evidence in the Library of Congress papers that Wertham's observation that he'd seen children "vomit over comic books" was actually taken from a report from the psychiatrist's friend, the folklorist Gershon Legman. Wertham also claims in Seduction that he'd seen comics for sale to children in stores where prostitutes peddled their wares. This was actually from a report given to him by his colleague Hilde Mosse; Wertham never witnessed any prostitutes at comic book stores. To be fair, bullshitting is, like, at least three times easier than science. The point of all this isn't to suggest that parents shouldn't pay attention to the gaming their children do, or the comics they read, for that matter. No, the point is that anytime you hear something that has the ring of moral panic to it, chances are overwhelmingly good that it's nonsense being peddled so that somebody somewhere can make a name or a buck. The sooner we can become more skeptical of that kind of thing, the sooner the flavor of bullshit peddled by Wertham, Thompson, and all the rest will fail to find purchase in our culture. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
More evidence of the US government's fabled whistleblower protections at work. While laws may prohibit direct retaliation for speaking up about misconduct, there's nothing in place to prevent an agency from taking a useful employee and Milton-ing them into irrelevance. [Paula] Pedene, 56, is the former chief spokeswoman for this VA hospital. Now, she is living in a bureaucrat's urban legend. After complaining to higher-ups about mismanagement at this hospital, she has been reassigned — indefinitely — to a desk in the basement. Now, the good news is that investigators are still trying to determine whether this reassignment to the depths of the hospital was retaliatory. The bad news is that even if they can prove this, there's likely nothing that can be done about it. In the past, whistleblowers have had their desks moved to break rooms, broom closets and basements. It's a clever punishment, good-government activists say, that exploits a gray area in the law. The whole thing can look minor on paper. They moved your office. So what? But the change is designed to afflict the striving soul of a federal worker, with a mix of isolation, idle time and lost prestige. And, of course, this isn't an isolated incident. Another contractor interviewed spent 16 months in a basement office after alerting regulators about improper radioactive material processing. An Air Force chemist found himself sweeping the floor of his basement office after uncovering mismanagement. As for Pedene, her whistleblowing helped uncover an $11 million budget shortfall, one that led to the voluntary resignation of hospital's director. Instead of adding another accolade to her active 20 years of service, Pedene's office was moved as far away as possible from the rest of the hospital and her responsibilities almost completely eliminated. Those in charge used this minor breach as the supposed justification for moving her downstairs. The chief accusation was that Pedene had let her husband upload photos of a VA-sponsored Veterans Day parade onto her work computer. He was helping her finish a PowerPoint presentation she was working on. He was a non-VA employee, working on a VA computer. The hospital refuses to address any questions about Pedene's situation, claiming it was a decision made by her previous boss -- one that was forced out during the recent investigation that uncovered the use of bogus wait lists to cover up how long patients were waiting for treatment. The scant legal protections Pedene can avail herself of look much better on paper than in practice. In theory, it is illegal to make the basement into a bureaucratic purgatory. In 1994, for instance, Congress prohibited agencies from making significant changes in a whistleblower's "working conditions" as punishment for speaking out. But in practice, the situation is murkier. Some courts have said moving an employee to a basement or closet usually amounts to punishment. But others have said this is a decision that should be made case by case. How nice is the basement office? How big is the closet? What makes this tougher for the people being relegated to basements or closets is there are no easily-definable damages to be pursued -- which makes it unlikely that many lawyers would be interested in pursuing the case. And so, the government gets away with it. It can still pretend it's looking out for whistleblowers while ignoring those who have simply been removed from their visible positions and offices and stripped of their responsibilities. All this does is guarantee that more and more malfeasance will be the result of very public leaks rather than issues that could be handled internally with a minimal of PR damage. The government likes to actively punish leakers but it doesn't treat those who go through proper channels much better. It would apparently rather have abuse and misconduct remain out of sight and out of mind and remain secure in its delusion that its agencies are staffed with good people doing good work. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
What's that saying about a lawyer who represents himself? Yes, well, consider the case of lawyer Jeffrey Wilens, representing himself pro se, in a "trademark" lawsuit filed against Automattic, the company better known for WordPress, the content management system/hosting service that a large percentage of the internet now uses. Wilens appears to have someone who doesn't like him very much, who set up a bunch of websites using Wilens' name and the name of his legal practice, Lakeshore Law Center. Wilens is claiming that this is trademark infringement, based on a trademark on his name and the name of his law practice. Even if he were just going after whoever made the page, this would be a massive long shot. As we've covered for years, so-called "gripe sites" are not considered trademark infringement. There's no likelihood of confusion, they're almost never commercials, and shutting them down would often violate the First Amendment. But Wilens is pointing his legal guns not just at whoever made the site, but also at Automattic for allowing the site to be created and hosting it (he also sued Google, but recently dismissed the company from the case). Automattic has sought to dismiss the case, which is scheduled to go to trial shortly, pointing out that there simply is no legitimate trademark claim against Automattic at all. The filing is worth reading as it lays out, quite clearly, why this case is a joke. There is no trademark infringement in the first place, and even if there was, it wouldn't be on Automattic. It cites numerous cases that have shown that gripes sites are not trademark infringement and that registrars are not liable if someone registers a trademarked name. It also highlights how there's clearly no direct trademark infringement, and Wilens doesn't allege secondary (contributory) trademark infringement, and even if he did, it still wouldn't be applicable. Wilens hit back with a somewhat amusing reply, insisting that all of the caselaw that goes against him is "different" because he's pretty damn sure that whoever is making these sites is a competitor, and thus, it must be trademark infringement: Defendants insist the offending websites are just criticism or “gripe” websites which are not covered by trademark law. But we don’t know that. It is quite possible that Doe No. 1 is a competitor of Plaintiff or acting on behalf of a competitor and not a former client. The FAC alleges Doe No. 1 created the websites to divert search engine traffic by clients and potential clients of Plaintiff from Plaintiff’s websites to the websites controlled by Doe No. 1.... Until Doe No. 1’s identity can be uncovered, and he is shown not to be a competitor, this allegations stands. Of course, as we've discussed elsewhere, in many courts, the burden is quite the opposite. First you have to prove that a violation of the law occurred before you get to uncover the anonymous person. Even so, Wilens seems to be basing his claims on a whole bunch of hypotheticals and "maybe possiblys": Defendants may argue the websites do not seem to contain any links to Doe’s own website, but it is possible that Doe reaches out to visitors by email or through the blogs’ message boards. There is a comments features to these websites. While public comments seem to be disabled that does not mean there have been no private communications. Before Plaintiff is allowed to conduct discovery, there is no way to know what communications have gone on between visitors and Doe No. 1, although Defendants may be in possession of that information. However, as Automattic then notes in its reply, Wilens still seems to be totally misreading the case law -- and completely changing his story. While he now insists that it could be trademark infringement because it was done by a competitor, earlier in the lawsuit, he insisted that it was a former client: Mr. Wilens has previously represented to this Court, under penalty of perjury, that he believes the websites to have been posted by the defendant in a lawsuit in which he was counsel for the plaintiff: “There are a few former defendants I suspect might be the anonymous poster on the website, course, but I am not going to name Doe without some supporting evidence. I have approached counsel for some of the suspects but none of their clients would come forward and admit they are the anonymous poster.” .... It is curious, to say the least, for Mr. Wilens to make a legal argument in a signed pleading based on the premise that Doe No. 1 might be a competitor, where he has sworn that he does not believe that to be the case. Curious indeed. Even worse, he seems to be switching the basis of his trademark infringement claim mid-stream. As noted above, in the original filing, Wilens only alleges direct trademark infringement. But in his response, he more or less admits that's not true here and now alleges secondary trademark infringement (even though Automattic's original response had already explained how that wasn't possible here): Plaintiff appears to concede that the Amended Complaint does not adequately plead a claim for direct trademark infringement against Automattic. Opp. at 5-6. He argues now that the Amended Complaint contains facts that would support a claim for contributory trademark infringement. Id. The Amended Complaint does not mention any claim for contributory trademark infringement, but assuming that one is identified in the complaint, there can be no contributory trademark infringement claim against Automattic based on a user’s choice of a website name. This really does seem like yet another case of "someone is doing something on the internet that I don't like, therefore it must be illegal!" Hopefully the court decides to explain that's not quite how the law works to Mr. Wilens by dismissing the case before it even needs to go to trial.Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
It's kind of crazy how often it seems biographies, theoretically personal tales made of facts, breed copyright disputes. In most cases, the aggressors in these cases somehow think that a factual representation of what the subject of a book said in the past can somehow be owned and/or controlled. Facts, of course, cannot be copyrighted, nor can history itself, which is essentially all a quotation is. That very simple distinction seems to be lost on a great many people, unfortunately. Joining their unfortunate ranks is Craig Shirely, an author who has produced books in the past on Ronald Reagan and is presently threatening to sue Rick Perlstein for copyright infringement in his new Reagan book, The Invisible Bridge. Shirley's demands are, um, heavy. Shirley's attorney is demanding that the publisher pulp Perlstein's book, pay $25 million in damages, and take out ads apologizing to Shirley in The New York Times, The Washington Post, Newsweek, The Nation, The New Republic, Slate, and Salon. A book burning, twenty-five mil-do, and paid apologetic ads in seven different publications? Well, okay then. You're probably thinking that Shirley has some kind of open and shut case with those kinds of demands. He doesn't. What he does have is the ability to point out where Perlstein relayed the same facts Shirley had previously recounted and a few minor sections which use Shirley's previous work as source material and paraphrase it. There are a couple of rather specific words retained in the paraphrasing, but that's about it, and most of those sections are recounting a setting or happening in history. In the first item on the latter list, the two books do sound alike: Describing the red-light district in Kansas City, Perlstein echoes not just the info in Shirley's text but Shirley's words "festooned" and "smut peddlers." After that, though, we essentially get a list of places where the two writers cited the same facts. Facts are not copyrightable, and one pair of similar sentences does not an infringement make. I don't see a dollar's worth of damages here, let alone 25 million. And it's not as though Perlstein is attempting to hide his use of Shirley's books as source material. The book-in-print directs those interested in the source material to Perlstein's website where he lists them out, including several of Shirley's books. He further credits Shirley's work in his source notes, talking about how useful it was. He further had reached out to Shirley to discuss some of his sources earlier. Shirley and his lawyers try to twist nearly all of this. They also show a fairly weak understanding of copyright law, often confusing plagiarism and copyright infringement. The two may be related, but are not the same thing. Again, copyright covers the specific expression, but not the idea or the facts. And yet, Shirley's lawyers argue that Perlstein's use of the same facts where he expresses them differently is merely evidence of Perlstein trying to "hide" his actions. Yes, that's right. The act of rewriting the same factual information is being used as evidence of infringement because it's different. But that's not how copyright law works. Perlstein's publisher, Simon and Schuster hit back strongly, explaining the basics of copyright to Shirley's lawyers: Your claim ignores the most basic principal of copyright law: copyright only protects an author's original expression. It is therefore important in any copyright analysis to distinguish between original expression and the unprotected elements of a work. Certain well-settled principles govern that analysis and nothing you have drawn to our attention supports a I conclusion that Mr. Perlstein has appropriated Mr. Shirley's protected expression. First, copyright does not protect facts, ideas or theories.... This is true even if the author is the first to have discovered the facts or formulated the ideas. Contrary to your assertion in your letter, copyright does not protect "facts and ideas Mr. Shirley first discovered an developed.".... [....] All of the examples you cite consist of historical facts from the life of Ronald Reagan, which are unprotected by copyright. Thus, for example, you cite to page 770 of Invisible Bridge, but the historical fact that the manager threatened to cancel the delegation's reservation derives from Time magazine, where Mr. Shirley obtained this information. Mr. Perlstein read the same Time article, but nonetheless chose to credit your client's secondary use of the work. Similarly, Mr. Shirley cannot possibly own a copyright in the fact that the major presidential candidates released their medical records and the information those records contained or that CBS News reported on the number of delegates Ford had accrued. These historical facts were widely reported in contemporaneous news reports. To the extent there can be said to be any similarity of phrasing in the way the two books convey these facts, the similarities consist of commonly-used expressions that cannot be the basis for a claim. There's a lot more in those letters which you can read below. This includes an attempt by Shirley to twist an email from Perlstein into saying something it did not. Apparently in angrily discussing the citations (which Perlstein put online, rather than directly in the book), Perlstein trotted out the (overly abused) line "information wants to be free." Shirley's lawyers attempt to portray that as evidence of copyright infringement by Perlstein. However, as Perlstein's lawyers point out, this is not even remotely accurate. The point Perlstein was making was about "open sourcing" his sources by putting them online, making them much easier to use for research purposes, rather than having them locked up in a book. These are the very same sources in which Perlstein regularly cites Shirley. Mr. Perlstein's use of electronic source notes, with links to the actual source materials, is an innovative and dramatic means of full disclosure. As the "Note on Sources" explains, Mr. Perlstein made the sources available electronically, rather than in hard copy form, to make it easier for readers to access the sources directly and engage with them. In the Internet age, readers are far more likely to actually view the source material when it is presented this way then they ever would be to seek it out in paper form at a library. Indeed, Mr. Perlstein's comments about "open sourcing" in his correspondence with your client cannot be twisted as your letter suggests; but instead serve to underscore his ultimate purpose to provide ready access to and openness concerning his sources. To that end, when your client contacted him with a question about how his book was sourced, Mr. Perlstein provided him with a link to his source notes and his Note on Sources, all before publication. It should also be noted that Mr. Perlstein's electronic notes serve another purpose that ultimately may well help your client's presumed goal to sell books. As can be seen on Mr. Perlstein's site, a reader who clicks on one of the citations to Reagan's Revolution is automatically linked to a Google Books page where he or she can not only read the cited page from Mr, Shirley's book but is also given the opportunity to purchase the book, This is hardly the design of an author's intent to "steal" another's work. Completely destroying the entire book, handing over $25 million and issuing a public apology for no actual infringement? That's not going to happen. And, perhaps Shirley's lawyers are recognizing this. While the letters promise a pre-publication lawsuit would be filed on July 30th, the book was published on August 5th and as far as we can tell, no actual lawsuit has yet been filed. Permalink | Comments | Email This Story

Read More...
posted 20 days ago on techdirt
You would think that a Hollywood astroturfing group, funded by all of the major Hollywood studios, would know better than to issue a blatant attack on another company for "failing to condemn" how some people viewed their products. After all, Hollywood is the industry that glorifies murder, con men and (yes) piracy. And Hollywood gets quite up in arms any time anyone suggests that its movies might influence folks in that way. That's the correct response because it is silly and ridiculous to attack an industry that makes one thing for then not condemning how that thing may be viewed or used improperly. But, apparently, some folks in Hollywood have no problem casting similar aspersions on industries they hate. Earlier this year, we wrote about the "launch" of a new Hollywood-funded organization called "CreativeFuture." As we noted, this "launch" was a bit misleading, because CreativeFuture was just the rebranding of Creative America, an organization that Hollywood slapped together as an astroturfing group in support of SOPA and PIPA. It pretends to represent the interests of creators, but actually is almost entirely funded by the major Hollywood studios. After Creative America was a complete disaster, widely derided (even inside Hollywood) as a joke, Hollywood did a rebrand to CreativeFuture, and brought in new leadership in the form of Ruth Vitale, whom the NY Times described as "sassy." Except, as we noted, the playbook remained the same: basically misrepresent issues related to copyright, pretend to represent "artists" when actually representing the big studios who regularly screw over artists, and always, always, always blame the innovators and technology companies who have provided new tools and services that have helped reinvent the industry for decades. Vitale is bringing her "sassy" take to this playbook with a bizarre attack on BitTorrent, entitled: We're All Waiting, BitTorrent. The basic argument is that since BitTorrent is often used for exchanging unauthorized copies of content BitTorrent Inc. has a responsibility to (1) "condemn" how its own technology is used and (2) figure out a way to stop it from being used that way. If BitTorrent wished to prevent their client applications from being used to facilitate massive piracy, it could do something about it. The company says it’s all about technology, so how about using technology to reduce piracy? Funny how some technology companies like BitTorrent are always extolling the unlimited power of technology – except when it can be used to help creators by preventing the unauthorized distribution of their creative content. I believe that BitTorrent’s failure to publicly condemn the misuse of its protocol – and to actually do something about it – is going to hurt the company’s efforts to build legitimate business models... just like it hurts everyone else’s. Despite the fact that, for many years, Hollywood has been blamed for all sorts of stuff concerning its movies -- and Hollywood has, rightly, pointed out that it's ridiculous to blame its movies for idiots imitating what's in the movies, or for believing they're anything more than fictional stories. And yet, now, when it comes to technology, Hollywood wants to take the same bogus moral panics used against it and turn it on technology? Just how cynical can Hollywood get? Oh, actually much more cynical. Vitale also pulls out a sarcastic "manifesto" that BitTorrent creator Bram Cohen wrote many years before working on BitTorrent, in which he jokingly talked about building tools to "commit digital piracy" as if she's found the smoking gun. The whole point of this "sassy" rant appears to be to drive creators away from embracing new technologies. She directly says that creators should "pause" before working with BitTorrent Inc., because even though it's created a massive tool for free distribution, combined with a very committed and loyal audience, which many creators have found help drive sales, she doesn't like that they haven't "done enough" to "stop piracy." This is the same misguided playbook that Jack Valenti played for years, attacking the very technology his industry needed to embrace, delaying the inevitable and harming the very industry he "represented." Because, really, what does Vitale think will happen if either of her demands are met? If BitTorrent could magically make its protocol less useful, people will immediately switch to something else. If BitTorrent were to vocally "condemn" uses of its technology for infringement, does she honestly think that people who use BitTorrent to infringe on copyrights will magically change their ways? Who is she fooling, other than herself? Instead of recognizing that there are many big entertainment fans that the industry could embrace and drive towards additional offerings, Vitale wants to make this a silly moral stand that will do no good -- not unlike the silly "morality" attacks on Hollywood for "promoting" sex and violence. Why Vitale would take such a page from the very people who tend to attack her industry is beyond me. It's hardly a strategy for embracing the future, and seems like one that only cements legacy Hollywood's image of being clueless and out of touch with today's entertainment fans, as well as new and innovative technologies.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
The EFF has revealed a very disturbing attempt by the US government to flat out secretly delete portions of a public court transcript over the belief that its lawyers may have slipped up and revealed classified information. This came from the recent hearing in the longstanding EFF case Jewel v. NSA, regarding a challenge to NSA surveillance (which began long before the Snowden revelations). After the hearing ended, apparently things took a turn for the bizarre, in which the government quietly notified the judge that it believed one of its attorneys had accidentally revealed classified information during the (very open) hearing, and hoped to remove that information from the transcript, and pretend that it never happened. The EFF fought it, and eventually the government backed down (perhaps realizing it hadn't really revealed anything): On June 6, the court held a long hearing in Jewel in a crowded, open courtroom, widely covered by the press. We were even on the local TV news on two stations. At the end, the Judge ordered both sides to request a transcript since he ordered us to do additional briefing. But when it was over, the government secretly, and surprisingly sought permission to “remove” classified information from the transcript, and even indicated that it wanted to do so secretly, so the public could never even know that they had done so. We rightly considered this an outrageous request and vigorously opposed it. The public has a First Amendment right not only to attend the hearing but to have an accurate transcript of it. Moreover, the federal law governing court reporting requires that “each session of the court” be “recorded verbatim” and that the transcript be certified by the court reporter as “a correct statement of the testimony taken and the proceedings had.” 28 U.S.C. § 753(b). The Court allowed the government a first look at the transcript and indicated that it was going to hold the government to a very high standard and would not allow the government to manufacture a misleading transcript by hiding the fact of any redactions. Ultimately, the government said that it had *not* revealed classified information at the hearing and removed its request.But the incident speaks volumes about the dangers of allowing the government free rein to claim secrecy in court proceedings and otherwise. It's great that this ended well, but it seems immensely troubling that the government even sought to do this in the first place. Of course, I would imagine this might lead some to scour the full transcript (embedded below) to see if there's any tidbit of information that the government didn't really mean to claim.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
We've questioned in the past why Senators like Dianne Feinstein won't come out and admit that what the CIA did was torture. Even President Obama has used the word to explain the CIA's actions. Yet, beyond Senator Feinstein, there was one other major hold out: the NY Times refused to use that word. Until now. In a note from the executive editor of the Times, Dean Baquet, he says that the NY Times will finally be accurate and will describe the CIA's actions as torture: [F]rom now on, The Times will use the word “torture” to describe incidents in which we know for sure that interrogators inflicted pain on a prisoner in an effort to get information. In explaining the change, Baquet insists that early on, not as much was known about the techniques used by the CIA, and that many with knowledge of the situation insisted that it didn't rise to the level of torture. Of course, that those with knowledge were often protecting themselves perhaps should have risen red flags for the Times. Baquet also notes that reporters at the paper urged editors to change their policy -- so kudos to those reporters. That said, there is something troubling in this part of the rationale: Meanwhile, the Justice Department, under both the Bush and Obama administrations, has made clear that it will not prosecute in connection with the interrogation program. The result is that today, the debate is focused less on whether the methods violated a statute or treaty provision and more on whether they worked – that is, whether they generated useful information that the government could not otherwise have obtained from prisoners. In that context, the disputed legal meaning of the word “torture” is secondary to the common meaning: the intentional infliction of pain to make someone talk. In other words, in the past, whether or not it was torture actually mattered, because legally it might have resulted in prosecutions of people committing war crimes. Under US law, the US has to prosecute those engaged in torture. But now that the "powers that be" have made it clear it simply won't prosecute anyone, and thus it doesn't really matter legally if it's referred to as torture or not, the NY Times will finally call it what it is. That seems immensely troubling. It basically suggests the NY Times could have impacted an important debate, but chose to sit it out until it was much too late to matter. So, yes, it's good that the NY Times is finally calling torture, torture, but it's a black mark on the paper that it didn't do so years ago.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
FOIA enthusiast Jason Leopold isn't going to sit back and let former NSA head Keith Alexander recede noisily into the background. Alexander's transition from spy-in-chief to $1 million-a-month rockstar security consultant to our nation's most easily-impressed banks is currently on everyone's minds. First off, how many state secrets is he selling? And just how many hacker-beating patents will he be filing for? But while slipping loudly out the front door with a quick wave of the hand and an accidental admission that his long tenure at the NSA's helm has done nothing to beat back the terrorist horde, Alexander may have felt his move to the private sector would keep his financial records out of the public eye. Leopold, however, has just filed a lawsuit against the agency for its continued refusal to release these public records. [S]ome aren't simply laughing off the retired four-star general's new endeavor. Some, like Leopold, are concerned that Alexander might actually plan on selling high-level state security secrets for his hefty price tag. In the Baltimore division of the federal district of Maryland, the law offices of Jeffrey Light have served the NSA with a complaint, listing Leopold’s multiple attempts to retrieve Alexander's records, and the utter refusal by the agency to fulfill the journalist’s requests. Citing the Ethics in Government Act, Florida Congressman Alan Grayson wrote on behalf of Leopold, in a letter addressed to NSA Deputy Counsel Ariana Cerelenko, pressing that the public release of Alexander’s financial records are required—“unless the President finds that the release of the form would ‘reveal sensitive information,’ or ‘compromise the national interest.’" As Daniel Stuckey at Vice points out, the NSA is the lone holdout when it comes to financial records. Even the CIA and the ODNI (Office of the Director of National Intelligence) have made these documents available. But the NSA wants to hold onto Alexander's records even though there's no established legal reason for doing so. Notably, this is not a FOIA request. This is a document that can be requested by any member of the public simply by filling out a form. These financial disclosures are to be made public under the stipulations of the Ethics in Government Act (EGA) of 1978. But the NSA has held the (now former) agency head above the requirements of this law, even though there's nothing in the law that indicates the agency is outside of its jurisdiction. Obviously, Alexander's departure for the private sector raises questions about his prior connections to companies that may have benefited from expanding surveillance programs or may be potential purchasers of his $1 million/month protection plan. These are questions that need answers, and the NSA is arbitrarily withholding mandatory financial disclosures. If the White House has given the agency super-secret permission to ignore the stipulations of the EGA, hopefully Leopold's lawsuit will force that out into the open. If not, the NSA will need to start explaining why it's not being responsive, and it won't have the handy b(5) exemption [for FOIA requests only] to lean on.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Technology has made some impressive advances over the last few decades. We don't have strong AI just yet -- nor flying cars -- but there are some pretty cool gadgets all around us. Kids are walking around with supercomputers (by 1960s standards). Some forms of cancer actually have reliable treatments. (Unfortunately, there are over 100 types of cancer, and many of them are still incurable.) Let's appreciate some of the awesome stuff that didn't exist just a few years ago. Here are a few more nifty things that kids will take for granted soon. Flying cars might not be driving around anywhere anytime soon, but a hoverbike could be zooming around remote locations (if you're brave enough to try to pilot it). A rider sits on this hoverbike as a passenger on this quadcopter-like mode of transportation... and it looks like a very noisy way to get from point A to B. [url] A superconducting power cable is going to be laid underground in Chicago, and it will be able to carry an order of magnitude more power than conventional copper cables. This new cable is designed to prevent power outages by re-routing electricity in the event a power substation fails, reducing the likelihood of a cascade failure of substations that could knock out power to a significant portion of the city. [url] Forget smartwatches. Don't you want to wear an atomic clock on your wrist? A wristwatch using cesium-133 is accurate on the order of one second in a thousand years, and each watch will cost about $12,000 in a limited edition run. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
There's been some attention paid to a recent Forbes article that confirms what pretty much everyone has always said: Congress won't move forward with reforming the CFAA. There's nothing particularly new in the article. It's just rehashing things that were hashed out over the past few years: the Computer Fraud and Abuse Act, a very out-of-date law concerning hacking, has been abused mightily for decades, well beyond its intended purpose. It got lots of attention as the law being used against Aaron Swartz, but the abuses started long before that. However, many tech companies, led by Oracle, have fought against reform (in part because they use the threat of the law to keep employees from running off with trade secrets, even though there are other laws for that). At the same time, the DOJ would actually like to make the law even worse. And, in the simplistic minds of many in Congress, if the big industry associated with the issue and the government don't want the necessary reforms -- even if the public is interested in such reforms -- it's just not worth doing. This doesn't necessarily mean that CFAA reform won't eventually happen, but like ECPA reform, patent reform and other related issues, very little can actually get through Congress these days. So in many cases, in the minds of certain folks in Congress, it's just not worth trying, even if it's the right thing to do.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Back in April, we wrote about claims that Google was considering giving a boost in its search rankings to sites that are encrypted. Today, it officially announced the policy, noting that the company has been testing it for a little while and thinks that it works well. The weighting is very tiny, but the company makes it clear that it will likely increase that over time, and the current low ranking is more of a "grace period" to encourage more sites to encrypt. Google also makes clear that its reason for doing this is to encourage greater encryption to make the entire web more safe and secure: For these reasons, over the past few months we’ve been running tests taking into account whether sites use secure, encrypted connections as a signal in our search ranking algorithms. We’ve seen positive results, so we’re starting to use HTTPS as a ranking signal. For now it's only a very lightweight signal—affecting fewer than 1% of global queries, and carrying less weight than other signals such as high-quality content—while we give webmasters time to switch to HTTPS. But over time, we may decide to strengthen it, because we’d like to encourage all website owners to switch from HTTP to HTTPS to keep everyone safe on the web. When we wrote about it back in April, I found it a bit surprising that Google would do this, given that, historically, it has always said its search rankings were entirely focused on quality. You could, perhaps, make an argument that a site that uses SSL is more likely to be a high quality site, but Google doesn't even appear to be making that argument. As a site that has already strongly moved to SSL, this might (marginally) help our Google rankings (not that we actually get much traffic from Google in the first place), and getting much more of the web encrypted is a good thing in general. It still seems, though, that for all the good this does, others will now make use of this as an argument for other kinds of "nudging" behavior by Google. For years, the legacy entertainment industry has pushed Google to better rank "good" sites and to downrank "pirate" sites -- which the industry still seems to think is a simple black and white calculation (it's not). Google can point out that SSL v. non-SSL is obvious, but I fully expect those who seem to think Google should be designed in their own interests, as opposed to those of Google's users, to jump on this as proof that Google can solve other problems. This still is a good move, though. Encouraging more encryption on the web is always the right move. I'm just still a bit surprised that Google would take this step, and wonder how others will react to it.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Earlier this week, Tim Cushing wrote about The Intercept's latest scoop, concerning the makeup of the US government's federal terrorist watchlist, and the fact that a large chunk of it isn't affiliated with any terrorist groups. While most of the article focused on that point, he made two other notes in passing -- the first was that it was obvious that this release was from a second leaker, not Snowden, and the second was about how the government "leaked" the story in a "friendlier" manner to the AP in order to beat The Intercept. We thought both of these asides were interesting, but they've both turned into big stories on their own. CNN later confirmed that US government officials are now searching for the second leaker (though "second" may not be accurate either...), more or less confirming what many people had been suspecting. Meanwhile, the "scoop spoiling" by the federal government actually resulted in a semi-apology from the National Counterterrorism Center (NCTC) who gave the scoop to the AP. The NCTC claimed it had been working with the AP on a story for a while, and after seeing what The Intercept was doing, felt it needed to give them the heads up, though it also says it could have handled the situation better. Of course, this also makes it more likely that The Intercept won't bother giving the government much time (if any) to respond on future stories. Why risk the chance of having the government spoil the scoop again? However, with all this concern about the "second leaker," Chris Soghoian asks a very good question. If the Justice Department is going to go hunting for whoever leaked the information to The Intercept, will it similarly go after whoever at NCTC was apparently providing the same basic information to the Associated Press? Or how about the person who told CNN that the US government believes there's a "second leaker"? Because that information is also a leak, and potentially a big one, given that it will alert the leaker that the government is searching for him or her. Somehow, we don't think the DOJ will be too concerned about those leaks. "Official" leaks happen all the time and no one cares. It's just the leaks that make the government look bad that somehow are seen as criminal.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
As we wrote yesterday, the infamous monkey selfie has returned to the news, thanks mostly to Wikimedia's new transparency report, which discusses the supposed copyright claim over the following monkey selfie: Unfortunately, as we noted, the original story in The Telegraph claimed that Wikipedia "editors decided that the monkey itself actually owned the copyright." As we explained in great detail three years ago, this was false. The monkey doesn't hold the copyright: no one does. It's in the public domain. In fact, if the reporter had been careful, he would have noted that even Wikipedia properly notes that the image is in the public domain. It did not claim that the monkey owns the copyright. However, since a major newspaper (falsely) wrote that Wikipedia had decided the monkey holds the copyright, the whole thing went viral all over again. All over Twitter I saw people claiming that the monkey held the copyright. Unfortunately, this is somewhat pernicious, starting with the Telegraph reporter, Matthew Sparkes, who made the false claim. As Sherwin Siy notes in a very good post, it's very troubling that people now come to automatically believe that someone has to hold the copyright on a photograph. That's just not true: The claim isn’t that monkeys have IP rights—it’s that no one owns the copyright in the photo. A lot of people seem to take issue with this, insisting that, if the monkey doesn’t own the copyright, the photographer must—that someone has to own a copyright in the photo. But that just isn’t true. This is the definition of the public domain—things that are not protected by copyright. We’re used to thinking of the public domain as consisting of things that were in copyright and then aged out of it after a length of time, but that’s just a part of it. There’s also works created by the federal government, and things that simply can’t be protected—like ideas, methods of operation, or discoveries. I think a big part of the problem here is that we've been trained incorrectly to believe that everything new must be covered by copyright. This is part of the most pernicious aspects of copyright maximalism today -- the idea that everything is covered by copyright. Only a few decades ago, nearly all created works were not covered by copyright and were public domain, free to be shared. It was only with the 1976 Copyright Act that the US switched from an "opt-in" policy to a "nearly everything is covered" policy, leading many people to (wrongly) believe that with any photo someone must hold the copyright. That's a dangerous assumption for culture, highlighted by the fact that so many people default to insisting that someone must hold the copyright over this photo. Meanwhile, for an even more amusing take on all of this, don't miss Sarah Jeong's defense of monkey copyrights satirical post: It’s hard enough to eke out a living as an artist without the Copyright Office butting in and claiming it is literally impossible for you to own copyrights, just because you’re a monkey. What on earth is this “Copyright Office”, anyways? What right do they have to say whether a monkey’s work is worthy of copyright or not? According to Slater’s own account, the Indonesian macaques were “already posing for the camera” when one of them started taking photos. Not all of them were good – as it turns out, some monkeys are much better photographers than other monkeys. The “monkey selfie” in question is a diamond in the mud: a truly remarkable portrait, perfectly focused and strategically positioned to capture a mischievous yet vulnerable smile. If that macaque had an Instagram account she’d have, like, a million followers. But she doesn’t, and the sorry state of our copyright law – as interpreted by the Copyright Office and exploited by Wikipedia – is to blame. Due to the backwards treatment of animal creators everywhere, monkey art (and monkey photography in particular) continues to languish. How is an aspiring monkey photographer supposed to make it if she can’t stop the rampant internet piracy of monkey works? That's only a snippet. The whole thing is well worth a read.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
As you may have heard, there's been a somewhat scary Ebola outbreak in western Africa. You may have also heard about what some are calling a "secret miracle serum" that effectively stops the impact of the virus for those who catch it. It's an experimental drug that hasn't undergone human clinical trials yet, but it was apparently given to a couple of Americans and appears to be working. There's some indication that it would take a couple months to produce a larger number of doses -- though, again, the lack of testing here means that people really aren't sure if it will work (or if there are serious side effects). That said, as one article notes, a big reason that there hasn't been much testing on this is because treating poor people in Africa just isn't very profitable for the drug companies: “These outbreaks affect the poorest communities on the planet. Although they do create incredible upheaval, they are relatively rare events,” said Daniel Bausch, a medical researcher in the US who works on Ebola and other infectious diseases. “So if you look at the interest of pharmaceutical companies, there is not huge enthusiasm to take an Ebola drug through phase one, two, and three of a trial and make an Ebola vaccine that maybe a few tens of thousands or hundreds of thousands of people will use.” While some may question whether or not Bausch's statement is just from frustration from where he is, Big Pharma execs more or less confirm his claims. Remember that it was just a few months ago that we wrote about Bayer's CEO claiming directly that they make drugs for rich people who can afford it: Bayer Chief Executive Officer Marijn Dekkers called the compulsory license "essentially theft." "We did not develop this medicine for Indians," Dekkers said Dec. 3. "We developed it for western patients who can afford it." As we noted at the time, it's worth comparing that statement to what George Merck, the former President of Merck said many decades ago concerning the pharma industry: We try never to forget that medicine is for the people. It is not for the profits. The profits follow, and if we have remembered that, they have never failed to appear. The better we have remembered it, the larger they have been. It seems that we've come a long way from those days.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
As the fight over the redactions on the CIA torture report continue, it's worth reminding folks how you can totally change the story with just a few well placed redactions. Director of National Intelligence has insisted that just 15% was redacted -- though, as Marcy Wheeler points out, the part that's being declassified is just the exec summary, which was written specifically to get around the redactor's ink, since the details are buried in the full report, which will likely remain classified for a while. In other words, the vast, vast majority of the report is still "redacted." Still, even a 15% redaction can do a lot of damage and hide a lot of facts. Senator Mark Udall has made it clear that the existing redactions make parts of the report "incomprehensible" in an effort to hide embarrassing information from the public. Reed Richardson decided to do a fairly simple demonstration to show just how much a 15% redaction can bury key points. He took President Obama's statement about how "we tortured some folks" and redacted "just 15%" of it (though such that if you look closely, you can see what's covered). Notice how the key elements -- the admission of torture -- simply fade away... Richardson told me the whole exercise took less than 10 minutes, demonstrating just how easy it is to distort a report based on a few strategic redactions.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
We've been covering the extreme and misinformed attempts by the City of London Police to become Hollywood's personal police force online (despite only having jurisdiction for the one square mile known as the City of London). As we've noted, the City of London Police don't seem to understand internet technology at all, nor do they have any jurisdiction to pull down websites. Yet, despite the total lack of a court order, many clueless registrars see letterhead from a police department and assume everything must be legit, even though this completely violates ICANN policy for domain registrars. Much of this is done in "partnership" with legacy players from the industry, who the police seem to listen to without any skepticism at all. It would be like the NYPD giving control of banking fraud investigations to Goldman Sachs. As we were just pointing out, while the City of London Police seem to think it's "obvious" what is and what is not a "pirate site", oftentimes it's not at all easy to figure that out. That was made clear last week when the organization helping the City of London Police reposted an entire BBC article about their cooperation (soon after our post went up, that company's post disappeared quietly with no notice). And now, TorrentFreak is reporting the City of London Police have "seized" an open proxy service called Immunicity, that was set up as an anti-censorship tool. Not only that, but they've also arrested the operator. The site itself is engaged in no copyright infringement at all. But its entire website has been replaced thanks to a bogus claim by the City of London Police. The police even seem to brag that they're in the bag for the legacy entertainment companies: According to Chief Inspector Andy Fyfe, the arrest is a prime example of a successful partnership between the copyright industry and local law enforcement. “This week’s operation highlights how PIPCU, working in partnership with the creative and advertising industries is targeting every aspect of how copyrighting material is illegally being made available to internet users,” Fyfe says. So, yes, it's the police "partnering" with a legacy industry that has a long and demonstrated history of bogus attacks on new technologies that challenge its business model. And rather than actually view such claims with skepticism, the police lap it up and take down websites without anything even approaching a court order. And to show just how confused they are, the main "industry" representative helping the police here basically admits to the belief that any proxy service must be illegal, because the industry doesn't like it: Commenting on the arrest, FACT Director Kieron Sharp argues that these proxy sites and services are just as illegal as the blocked sites themselves. “Internet users have sought ways to continue to access the sites by getting round the blocking put in place by the ISPs. One of the ways to do this is to use proxy servers. This operation is a major step in tackling those providing such services,” Sharp notes. Of course, based on that reasoning, the very same VPNs that many of us use to protect our internet surfing from surveillance would be equally considered "illegal." Basically anything that challenges the business model of these legacy companies must be illegal and the City of London Police seem to think they can arrest those associated with them. Talk about going way overboard and creating massive chilling effects...Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
As a whole bunch of people on my Twitter feed are letting me know, video game streaming company Twitch* (read disclosure below!) has announced that it has turned on Audible Magic to begin silencing "Video on Demand" videos that make use of copyright-covered music -- including in-game music. This only covers the video on demand (stored) videos, rather than the live streams that Twitch is probably most well known for. As Twitch's General Counsel Boo Baker explains: We’ve partnered with Audible Magic, which works closely with the recorded music industry, to scan past and future VODs for music owned or controlled by clients of Audible Magic. This includes in-game and ambient music. When music in the Audible Magic database is detected (“Flagged Content”), the affected portion of the VOD will be muted and volume controls for that VOD will be turned off. Additionally, past broadcasts and highlights with Flagged Content are exportable but will remain muted. The Audible Magic technology will scan for third party music in 30 minute blocks — if Audible Magic does not detect its clients’ music, that portion of the VOD will not be muted. If third party audio is detected anywhere in the 30-minute scanned block, the entire 30 minutes will be muted. This, quite reasonably, has many folks up in arms -- with Felicia Day making the point in the most humorous of ways: "So Twitch has become a silent movie company now?" That's because pretty much every video game has some music, and it's unlikely (at best) that users of Twitch cleared that music. In the past, we've seen some similar issues with YouTube's ContentID system flagging similar "Let's Play" videos on that site. Really, what this seems to demonstrate is the failure of the "one-size filter fits all" world that the legacy content industry lives in. The music and movie industries have long demanded such filters, sometimes arguing (though failing) that the current DMCA requires filters like Audible Magic or Content ID. US copyright law currently does not require such a thing, though you know that the industry is pushing hard to get that into any copyright reform bill. And, for all the problems of ContentID (and there are many), it's the kind of solution that you can see often does make sense in a YouTube world (though it has way too many false positives). However, when it comes to Twitch, this kind of solution seems to make no sense at all. People are not going to Twitch to hear music. They're going to see video games. In fact, this kind of solution on Twitch seems inherently counterproductive for just about everyone. These days musicians want their music in video games because it's fantastic for those musicians, both making them money and giving them a ridiculous amount of exposure. There are even entire discussions for indie musicians about how to get their music into video games because it's such an important promotional avenue. Those musicians aren't hurt by Twitch videos. They're hurt by silent Twitch videos, meaning fewer people hear the music. A fairly strong case can be made that in-game and ambient video game music on Twitch is fair use. It seems to be clearly transformative in the same sense that scanning whole books to create a searchable index is transformative fair use or that a book of magazine covers of movie monsters is transformative fair use, or that a book of concert posters is transformative fair use. In each case, while the entire work is used, and the original may have been licensed, the use here is for an entirely different purpose. And yet, with this move, Twitch seems to be inherently stating that fair use for the audio is an afterthought, rather than a key component to what it's doing. Given the various lawsuits against other video sites, it's quite likely that Twitch was facing serious legal pressure to make this move. As we've noted, the music industry has repeatedly made arguments in other lawsuits that such filtering was necessary. Just recently, video site Vimeo announced it, too, was using Audible Magic. And, for years, legacy content players have insisted that using such a tool was required. But it's not. There's nothing in the law that requires a site to do this. And even if you can make the case that it makes sense for general interest user-generated video sites, that's simply not the case with Twitch, whose whole purpose is to stream video from video games. It's yet another case of taking a broad maxim ("video sites should use automated filtering to silence or take down "copyrighted" material") to extreme and ridiculous ends where it doesn't make sense at all. In other words, it's another example of the pressures and risks of today's copyright laws getting in the way of a useful innovation, leading to a result that is actually worse for everyone. From a pure "avoiding liability" position, you could see why Twitch would make this decision. Assuming that some recording industry lawyers were pressuring the company, arguing that continuing to allow those videos without a fingerprinting solution put it at risk of losing its DMCA safe harbors. Because that's the kind of argument an RIAA or an ASCAP might make. And this is really a big part of the problem with copyright law today (and especially statutory damages). Even if Twitch believes that not having such a tool is okay, it might still get taken to court and could face a massive judgment if a court decides the other way. Thus, all of the ridiculous incentives of copyright law today push Twitch to make use of this solution that, without any question, makes everyone worse off. It harms musicians. It harms Twitch. It harms video game fans. It harms Twitch's users. It harms video games. Who does it benefit besides Audible Magic and maybe some lawyers? Copyright remains totally broken. * Disclosure: As you may know, just a couple of weeks ago, Twitch announced that they were providing matching donations for our net neutrality crowdfunding campaign, something we are quite thankful for. That said, the company's support of that effort doesn't change our views at all on this being a dumb move that harms everyone.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Ross "Dread Pirate Roberts" Ulbricht, the alleged mastermind behind The Silk Road dark marketplace, has been trying (and failing) with some creative legal theories. The latest is that his lawyers are basically arguing that almost all of the evidence was collected in ways that violate the 4th Amendment. We're certainly big proponents of the 4th Amendment around these parts, and frequently lament the way the courts and law enforcement have chipped away at it (sometimes with dynamite). However, the arguments here seem like a massive longshot. The key to the argument is that it's somewhat murky how law enforcement found the Silk Road servers, and so Ulbricht is arguing that there was likely a 4th Amendment violation there, spoiling much of the rest of the evidence against him. However, that event – location of the Silk Road Servers – is shrouded in mystery, as the means and manner in which that discovery was accomplished has not been disclosed – indeed, it was not disclosed in any of the applications for warrants or other orders to search and seize ESI and other material in this case. That presents a threshold issue: whether locating the Silk Road Servers was the result of legitimate investigative technique(s), or the product of some unlawful intrusion, digital or otherwise. It also presents the issue whether the magistrate judges who approved the searches and seizures were remiss in not at least satisfying themselves that the information upon which the warrant was based was lawfully obtained and/or reliable. The more specific claims make some interesting points, but are likely to fall flat: In addition, many of the warrants – in particular, those directed at Mr. Ulbricht’s laptop, and his gmail and Facebook accounts – constitute the general warrants abhorred by the Framers, and which led directly to the Fourth Amendment. The wholesale collection and study of Mr. Ulbricht’s entire digital history without limitation – expressly sought in the warrants and granted – represent the very type of indiscriminate rummaging that caused the American colonists so much consternation. The argument, not surprisingly, is relying on the new Supreme Court ruling in the Riley / Wurie cases, about the need for a warrant to search mobile phones. That is an important ruling bringing back certain 4th Amendment protections, but Ulbricht's lawyers are really trying to stretch it to argue that it applies to the warrants issued against him. There may be some real issues in how the feds got access to the Silk Road servers, but to claim that other searches (and even actual warrants) were unconstitutional in light of Riley would require an almost ridiculously broad reading of the Riley ruling. That case involved searches of mobile phones that were on someone's person -- not a coordinated effort to track down someone they believed to be a criminal. I do think there are some real issues with the case against Ulbricht, mainly focused on his liability for the actions done by users of Silk Road, but these kinds of broad attempts to throw anything at the wall are likely to be rejected, and can actually piss off judges who feel that lawyers are just trying to throw up a smoke screen. There are important cases to be had in challenging various digital searches and how the 4th Amendment applies to them, but it's doubtful that this is a particularly good test case.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Keyboards are one of the fastest and most accurate ways to input text into a digital device. Sure, you could argue that speech recognition has beaten a txting champion (Ben Cook in 2006), but the more common experience with speech recognition is far from perfect dictation results. Early keyboards used some relatively complex mechanical designs to achieve a nice tactile feel and accurate input -- replaced by various iterations of keyboard improvements to become thinner and lighter and more (or less) clicky-sounding. Here are just a few more attempts to make better keyboards. Designing a keyboard isn't as easy as you might think. Okay, maybe it's just as hard as you think it is.... [url] It might be neat to have a camera sensor track your hand movements so that any surface could become a keyboard or multi-touch input device. But if it's really that great, why aren't there more of these kinds of camera-based keyboards? [url] Touchscreens are lacking in the tactile feedback department, but there's an accessory that features shape-shifting buttons that make raised bumps on a glass surface appear and disappear as needed. Presumably, these shape-shifting bumps don't make clicky noises when you touch them, and making a touchscreen even more complex doesn't sound like a better option than just adding a detachable keyboard for a tablet. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Wikimedia's new Transparency Report has been getting some attention, in part because it brought attention back to the whole monkey selfie copyright debacle. However, the rest of the transparency report itself is rather interesting, starting with the fact that it appears that Wikimedia rejected every request to pull down information (unrelated to copyright, which we'll get to in a second). In most transparency reports, this involves government and law enforcement requests to censor content, along with the occasional claims of defamation and whatnot. Either way, Wikimedia felt a grand total of none of them were legit: Admittedly, takedown requests to Wikimedia are a bit different than many other sites since anyone can just go in and edit the page themselves, but such changes will often be reverted, so it's less permanent. On the copyright front, Wikimedia did agree to abide by some DMCA requests, but it does seem notable that it's well less than half of all such requests: These days, with so many sites immediately rolling over when someone complains, it's good to see Wikimedia being willing to stand up against censorship attempts.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Following one Comcast customer-retention rep's brave attempt to set the record for the most annoying cancellation call, The Verge put out a call for past and current Comcast employees to weigh in on just how rare or frowned-upon this sort of thing is. As the initial submissions noted, this sort of thing isn't so much frowned-upon as it is, oh, let's call it super-actively encouraged. So much so, in fact, that the latest confession dump on The Verge includes Comcast's employee handbook for customer retention reps, and it's exactly as infuriating as you think it is. A current employee at Comcast who participated in the Comcast Confessions series provided The Verge with a copy of the 20-page guidelines the company uses for evaluating retention specialists. The guidelines are divided into 13 sections: 1. Greet customer clearly 2. Clarify reason for call 3. Relate and empathize 4. Take control 5. Set the agenda 6. Ask targeted questions 7. Consider unstated needs / active listening 8. Take ownership / make offer 9. Overcome objections 10. Close the save 11. Confirm details 12. End on a positive note 13. Documentation It has all the hallmarks of a playbook designed to piss off and annoy someone who wants to cancel service. Legislated courtesy followed by manufactured empathy that devolves into the assertion of the rep's dominance on the call, all leading to a close of the "save." If you're not in some kind of sales role, this list probably doesn't look familiar to you. I've been in sales all of my life, however, and this is the kind of playbook you get in a sales role at a faceless mega-corporation. Trust me, it's as frustrating for the sales person as it is for the customer. But you know what this isn't? Customer service for someone looking to cancel their damned account. But the handbook does offer indirect advice on how to get past these Comcast retention people in the form of what "objections" cannot be resolved with some contrived buddy-talk and a "special" offer. Save Attempt is Not Applicable in the Following Scenarios -Customer is moving in with an existing Comcast customer (CAE must verify Comcast services active at new address) -Customer is moving to a non-Comcast area (CAE must verify by looking up zip code) -Account holder is deceased / incapacitated -Temporary / seasonal disconnect and Seasonal Suspend Plan is not available in their area -Natural disaster -Customer doesn't know what address they're moving to So, if you're a Comcast customer looking to cancel your service, your playbook is quite clear. Once you are transferred to customer retention, you say the following: "I am cancelling my service because my home was hit by a tornado, flinging me out of the window and into an unknown address that I'll be sharing with someone who already has Comcast service. Also I'm dead." Happy cancelling, folks! Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Another day, another abuse of the DMCA's anti-circumvention provisions to stop things that have nothing whatsoever to do with copyright. As pointed out by Slashdot, the Hackaday site recently had a post about how to clone some Tektronix application modules for its MSO2000 line of oscilloscopes. The post explained a simple hack to enable the application module to do a lot more. And... in response, Tektronix sent a DMCA takedown notice demanding the entire post be taken down. I am the Chief Intellectual Property Counsel at Test & Measurement group of companies including Tektronix, Inc. I have been notified of a posting on the “Hack A Day” website concerning hacking of Tektronix’ copyrighted modules for use in oscilloscopes. Hacking those modules permits unauthorized access to and use of Tektronix’ copyrighted software by means of copying of Tektronix’ copyrighted code in those modules. http://hackaday.com/2014/07/28/cloning-tektronix-application-modules/ A copy of the offending posting is attached for your reference. The posting includes instructions for how to hack our modules and thereby violate Tektronix’ copyrights. Tektronix has a good faith belief that there is no legal basis for this individual to provide such instructions to anyone, much less on a public forum. I hereby submit that the above statements are true and accurate, and under penalty of perjury state that I am authorized to act on Tektronix’ behalf. In view of the above, Tektronix demands that the posting identified above be expeditiously removed from the website. Very Truly Yours, Hackaday didn't remove the entire post, but did basically remove all of the details. While the takedown doesn't say so, it appears that Tektronix is likely relying on a distorted reading of the DMCA's Section 1201, which is the anti-circumvention clause. Of course, court rulings have not been kind to hardware companies looking to use Section 1201 in a similar manner, but it's doubtful that a site like Hackaday feels like getting in a legal fight with Tektronix. And, of course, that's why the DMCA is such a dangerous and overly broad tool. It allows bullies like Tektronix to take down useful information that actually makes its own devices more useful, all because of misguided beliefs about the importance of "protecting" your "intellectual property," rather than making your products more useful and valuable to a wider audience.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Three years ago, we wrote about the bizarre case of a monkey who apparently grabbed a photographer's camera in a national park in Indonesia and snapped a selfie (that was back before "selfie" was so common a term -- and we just called it a "self-portrait"). There were a few different shots, but the one that clearly got the most attention is this one: As we noted when we wrote about it, it seems fairly clear that the work is in the public domain. We were idly curious about how a news licensing agency (Caters New Agency) could claim the rights to the photograph. A few days later Caters itself demanded that we take down the photo, claiming that the copyright was held by the owner of the camera, David Slater. Slater himself insisted the copyright was his. However, as we explained in fairly great detail, looking at the laws of the US, the UK (where Slater is from) and Indonesia (where the picture was taken) the image is almost certainly in the public domain, no matter how you look at it. Under all three laws, the rules say that the work needs to be done by a person, and a monkey doesn't count. Slater, however, claims that because the camera is his, it's still his copyright. While that's what many people think copyright law says, it's not actually what copyright law says at all. The latest is that Slater is apparently still considering legal action against Wikimedia for refusing to take down the image from Wikimedia Commons. The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained To Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button. Mr Slater now faces an estimated £10,000 legal bill to take the matter to court. First, I should note that if someone thinks the monkey holds the copyright, that's incorrect as well. While it's true that, in most cases, the person who takes the pictures gets the copyright, as noted above, the laws say it needs to be a person, so monkeys don't count. The image is public domain. The "monkey holds the copyright" claim appears to be a mistake by the author of the Telegraph piece. The guy who uploaded it has directly stated that he said there was no copyright (i.e., public domain) because there was no human author. From here, Slater tries to flip the burden of proof, and claims that the copyright is his until proven otherwise in court: “If the monkey took it, it owns copyright, not me, that’s their basic argument. What they don’t realise is that it needs a court to decide that,” he said. While it's true that a court would decide the final result, the burden is actually on the copyright holder. To bring a copyright claim, you first have to prove that you hold the copyright. It's not the other way around. As Sherwin Siy of Public Knowledge notes, a system in which you needed a court to assert an affirmative defense would mean that no one could ever claim self-defense. That's just not how it works. Slater also seems to believe in an odd "sweat of the brow" concept of copyright that simply isn't relevant: “That trip cost me about £2,000 for that monkey shot. Not to mention the £5,000 of equipment I carried, the insurance, the computer stuff I used to process the images. Photography is an expensive profession that’s being encroached upon. They’re taking our livelihoods away,” he said. The amount that the trip cost is meaningless on the copyright status of the photo. Photography is an expensive profession, but sometimes, apparently, it's so simple that... well... even a monkey can do it. That said, the whole "jeopardizing his income" and "taking livelihoods away" lines are pretty extreme and ridiculous. This photo got Slater a tremendous amount of fame, and a chance to capitalize on that. If he wasn't so focused on a misguided legal fight against Wikimedia, why not use the photo as a calling card to get hired to do all sorts of other wildlife shots? So why is this even an issue again at all? Well, that's partly Wikimedia's fault. It just released a transparency report, which discusses the whole monkey situation in a case study.Permalink | Comments | Email This Story

Read More...