posted 18 days ago on techdirt
Politics can be tricky territory for companies and brands to wade through. While some corporations have made notorious claims on political matters, and occasionally even get behind candidates, the vast majority of companies know that they're better off endorsing nobody and nothing. As Michael Jordan once famously put it when he'd been urged by a Democratic campaign to be more politically active: "Republicans buy sneakers, too." That's what makes the reaction of America's Best, the eyeglass and contact-lens company, to Scott Walker using a logo for his campaign that is nearly identical to the company's so special. They didn't lose their minds. They didn't go trademark ballistic. They just had some fun with it. Both Walker's campaign and America's Best Contacts and Eyeglasses feature a cartoonish, four-part American flag logo as the "E" in their names. The same flag icon is also their stand-alone logos when the text is removed. In a brief phone call on Monday, America's Best CEO Reade Fahs told Business Insider that his company wasn't taking sides in the presidential race. But he said he appreciates the Walker campaign approving of the design. "We don't endorse presidential candidates, but we sure love it when they endorse us," he quipped. Here are the logos, Walker's first and America's Best second. So, yeah, they're the same. And it could have been very easy for the company at that point to completely flip out in anger, or to rush to assure everyone that it hadn't endorsed any political candidate for any political office. Instead, the CEO's calm and measured response was endearing. Not to mention the company's response on social media. .@CNNPolitics We think @ScottWalker's logo is HILLARYous. #logogate https://t.co/1KJwxcmh0t — America's Best (@Americas_Best) July 13, 2015 .@ScottWalker sure TRUMPed us by "borrowing" our logo. #logogate — America's Best (@Americas_Best) July 13, 2015 We aren't the types to hide our logo under a BUSH. #logogate — America's Best (@Americas_Best) July 13, 2015 And they go on and on like that on Twitter, making sure everyone knows the company isn't endorsing anyone, but likewise insisting the company isn't going to go legal on Walker's logo. In the meantime, rather than coming off like some kind of petty and frightened corporation by flipping out, America's Best engenders a fun, laid back, hip sensibility. You know, good public relations, which has us talking about how cool a move it is rather than having some legal filing buried in the news that nobody cares about. Well done all around. Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
School is out for most American kids right now, but that doesn't mean parents and teachers aren't still thinking about how schools could improve and how to get kids to learn better. There are plenty of problems that seem insurmountable in the US education system, but there could be some solutions that try to tackle them in limited trials. If these trials succeed, they might be expanded to more schools -- and hopefully, over time, all schools can get better and learn from each other. The standard disciplinary methods in most schools don't seem to be particularly good at improving problem behaviors, so maybe it's time to try other strategies that try to teach kids how to control themselves -- instead of having teachers handing out orders and punishments. A Collaborative and Proactive Solutions (CPS) program is trying to teach educators how to handle unruly students by helping kids to recognize and control their own frustrations and work towards managing their own emotions and actions. If it works as advertised, this could help reduce all kinds of problems before they grow out of control. [url] Letting students collaborate and set their own educational goals isn't easy, but it might be the better way to prepare kids for the kind of independent learning they'll need to do on their own when they're done with school. Psychologists have learned a lot about how the brain learns, but teachers are only starting to incorporate brain-based strategies into lesson plans. [url] More and more kids seem to be diagnosed with attention issues and ADHD, and at the same time, kids are being forced to sit still for longer and longer periods of class time. Perhaps if kids had more exercise and were allowed to move around a lot more, they'd be better able to sit still during classes? A randomized controlled trial seems to be in order.... [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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Following last year's pretty good Supreme Court ruling in the Alice v. CLS Bank case, which effectively wiped out the basis of many software and business method patents by saying you couldn't get a patent on "generic" functions, there was a pretty immediate impact on patent trolling. Courts were invalidating patents based on the ruling, the US Patent and Trademark seemed more willing to reject patents based on the Alice ruling, and even trolls seemed to be admitting defeat. Uber troll Intellectual Ventures laid off a bunch of people and OG patent troll Ray Niro indicated he was moving on to more lucrative trolling opportunities, such as in trade secrets. But, never fear, the Patent Troll Strikes back sequel is fast becoming reality. The good folks over at Unified Patent have a report out on the latest numbers, which suggest the decline in patent troll activities last year was merely a brief disturbance and that patent trolling has bounced back significantly. While 2014 definitely showed a dip, 2015 has showed that patent lawsuits have gone right back up again: And, it's notable that a growing number appear to be patent trolls (or "non practicing entities" as some prefer to call them). The gold color are troll suits: And this is all particularly pronounced in the high tech field, where nearly 90% of all lawsuits were filed by trolls: And thus, despite the Alice ruling there seems to be tremendous evidence that we need patent reform as part of the solution. While another recent analysis shows that courts are still tossing out patent claims as invalid in a post-Alice world, it doesn't seem to be stopping the lawsuits. And that's likely because many trolls are realizing that even if their patents are invalid, it's still much easier for many to just settle and pay up than go through with the whole trial process.Permalink | Comments | Email This Story

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posted 18 days ago on techdirt
These days, Laura Poitras is known as the Oscar-winning director of the Ed Snowden documentary CITIZENFOUR, and with it, one of the reporters who helped break Snowden's story in the first place. Pre-Snowden, she was a not-as-widely-known-but-still-celebrated documentary filmmaker, who also got some attention after her future colleague Glenn Greenwald wrote an article about how she was detained at the border every time she flew into the country (which was frequently, as she had made a documentary, My Country, My Country, concerning the Iraq War, along with The Oath, which reported on two Yemenis who had worked with Osama bin Laden). As Greenwald wrote back in 2012: But Poitras’ work has been hampered, and continues to be hampered, by the constant harassment, invasive searches, and intimidation tactics to which she is routinely subjected whenever she re-enters her own country. Since the 2006 release of “My Country, My Country,” Poitras has left and re-entered the U.S. roughly 40 times. Virtually every time during that six-year-period that she has returned to the U.S., her plane has been met by DHS agents who stand at the airplane door or tarmac and inspect the passports of every de-planing passenger until they find her (on the handful of occasions where they did not meet her at the plane, agents were called when she arrived at immigration). Each time, they detain her, and then interrogate her at length about where she went and with whom she met or spoke. They have exhibited a particular interest in finding out for whom she works. She has had her laptop, camera and cellphone seized, and not returned for weeks, with the contents presumably copied. On several occasions, her reporter’s notebooks were seized and their contents copied, even as she objected that doing so would invade her journalist-source relationship. Her credit cards and receipts have been copied on numerous occasions. In many instances, DHS agents also detain and interrogate her in the foreign airport before her return, on one trip telling her that she would be barred from boarding her flight back home, only to let her board at the last minute. When she arrived at JFK Airport on Thanksgiving weekend of 2010, she was told by one DHS agent — after she asserted her privileges as a journalist to refuse to answer questions about the individuals with whom she met on her trip — that he “finds it very suspicious that you’re not willing to help your country by answering our questions.” They sometimes keep her detained for three to four hours (all while telling her that she will be released more quickly if she answers all their questions and consents to full searches). It wasn't only at the border that she was subject to such searches. Often, even when flying domestically within the US, she was called out for further scrutiny and searches. After Greenwald's article, a bunch of documentary filmmakers signed a petition protesting the treatment of Poitras, and between the press coverage and the petition, the harassment of Poitras suddenly stopped. After this, she filed some FOIA requests to find out why she had been supposedly given a high threat rating in the DHS database, causing such detentions. Not surprisingly, the government refused to reveal any such information. And that brings us to the latest, where Poitras, with help from the EFF, has now sued the US government (specifically the Departments of Homeland Security and Justice) to get them to reveal why she was considered a threat. As the filing itself explains, Poitras filed FOIA requests with basically every part of the government that might have information on her detentions, and basically got nothing in response from any of them, either by mostly ignoring the requests or rejecting them. As the lawsuit also notes, Poitras took detailed records of her detentions (when she could -- in at least one instance she was denied the use of a pen to take notes after being told she might use it as a weapon). And the lawsuit includes some detailed descriptions. Here's just a snippet from a much longer list. On or around August 22, 2006, while traveling from Sarajevo, the capital of Bosnia and Herzegovina, to John F. Kennedy International Airport (“JFK”) in New York City after attending the Sarajevo Film Festival, Plaintiff was paged to security while transiting through the Vienna International Airport in Vienna, Austria. Plaintiff was thereafter taken into a van and driven to a security inspection area. All of Plaintiff’s bags were searched and xrayed. The head of airport security at the Vienna International Airport told Plaintiff that her “Threat Score” was 400 out of 400 points. Plaintiff was eventually allowed to board a plane to the United States. Upon her arrival at JFK, CBP agents again met her at the gate. Plaintiff was thereafter escorted to a holding room, where she was detained and questioned for roughly two (2) hours, and where her bags were searched for a second time, before being allowed to enter the United States. On or around November 26, 2006, while traveling from Paris, France to Newark on her way home from a vacation, Plaintiff was met by boarder agents upon her arrival at Newark. She was detained and questioned for 30 minutes. On or around December 17, 2006, while traveling from Dubai, United Arab Emirates to JFK after attending the Dubai Film Festival, Plaintiff was met by border agents upon her arrival at JFK. She was again detained and questioned before being allowed entry into the United States. The CBP agents asked Plaintiff when she had last been to Atlanta, Georgia and told her that she had a criminal record, despite that she had never been arrested. Unfortunately, the courts have been pretty deferential to the government concerning things like the "no fly" list and the terrorist database, which means this lawsuit might be a long shot. However, one hopes that a judge will see both the clear ridiculousness of the treatment and the rather obvious fact that it was designed to intimidate Poitras and chill her First Amendment rights, and consider forcing the government into releasing these documents.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Reddit is a prime example of the explosive growth of online communities — and recently it's become a prime test case for the huge challenges such growth brings, especially for those who are trying to use it as the foundation for a successful company. This week we discuss some of those challenges that sit at the intersection of community and business, both in terms of popular examples like Reddit and personal experiences as both members and builders of online communities. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Reddit is a prime example of the explosive growth of online communities — and recently it's become a prime test case for the huge challenges such growth brings, especially for those who are trying to use it as the foundation for a successful company. This week we discuss some of those challenges that sit at the intersection of community and business, both in terms of popular examples like Reddit and personal experiences as both members and builders of online communities. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Let's say you were in the market for some luxury item. Hell, let's say you wanted a nice watch. Being a watch kind-of-guy, you've done enough research to know you would like an MTM Special Ops branded watch, so you walk into a jewelry store and tell them what you want. When you ask the store clerk for an MTM watch, he or she instead points you towards lots of other watches for sale. As you look around the store, you notice none of the display cases actually contain any MTM brand watches. Have you suddenly become confused as to whether the alternative watches are in fact MTM watches? The 9th Circuit Court thinks you might have, given its ruling in a trademark case between MTM and Amazon. The case is essentially over the scenario described above, except on Amazon's online marketplace. Users that put "MTM Special Ops" into Amazon's search field were provided with a list of competing watches in the results, because Amazon doesn't carry MTM watches. Those search results were clearly labeled with the competitor brand's names. One district court had already ruled in favor of Amazon, as MTM argued that those search results constituted trademark infringement. The 9th Circuit Court of Appeals reversed that ruling and sent the case to a jury. And this whole thing is prefaced on what's called initial interest confusion, as detailed in the link above by Eric Goldman. The majority opinion focuses on a much-criticized trademark doctrine called initial interest confusion. The Ninth Circuit has had a dozen or so cases addressing initial interest confusion, and its handling of the doctrine has vacillated wildly. In 1999, the Ninth Circuit adopted an exceptionally (and, in my opinion, unreasonably) overbroad definition of the concept. This led to a series of tortured and inconsistent rulings until 2011, when the Ninth Circuit adopted a more constrained definition that virtually killed the doctrine. In this case, the Ninth Circuit bypasses its 2011 definition and instead defines initial interest confusion from a 2004 ruling: "Initial interest confusion occurs not where a customer is confused about the source of a product at the time of purchase, but earlier in the shopping process, if “customer confusion . . . creates initial interest in a competitor’s product.”" As Goldman notes, there was a very good reason the court essentially killed off this whole doctrine in 2011. Based on that definition used above, all kinds of accepted retail practices would suddenly be found to be infringing, including the way product placement of house and alternative brands occurs in brick and mortar stores. The theory behind initial interest confusion is essentially that if a consumer was looking for brand x and only found brand y through retailing practices like product placement and/or search results, there can still be trademark infringement even if brand y is clearly labeled and the customer is clear on what they're buying prior to making the purchase. In the area of search results for online retailers, it's a really dumb doctrine, because it essentially penalizes search results for being too useful to everyone who isn't seeking one brand/product only to the exclusion of every other product on the planet. The dissenting judge in the case outlines nicely how silly the majority's ruling is. Because Amazon’s search results page clearly labels the name and manufacturer of each product offered for sale and even includes photographs of the items, no reasonably prudent consumer accustomed to shopping online would likely be confused as to the source of the products….The search results page makes clear to anyone who can read English that Amazon only carries the brands of watches that are clearly and explicitly listed on the web page. The search results page is unambiguous. The difference between other online retailers and Amazon is that other retailers denote at the top of search results that they do not carry the MTM brand, where Amazon simply lists all the other brand watches it carries. In other words, Amazon assumes that the public is intelligent enough to read the brands on the search results and conclude that Amazon doesn't carry MTM watches. So, while the case is now headed to a jury, the fix for Amazon is technically easy, but silly to have to implement. More troubling, as Goldman notes, is both the fact that the court appears to view online retailers as having more culpability under the initial interest doctrine and the larger danger of initial interest being brought back to life by this ruling. Initial interest confusion revitalized. I don’t believe any trademark owner has won on initial interest confusion grounds since 2011, and many trademark experts considered the doctrine dead. This opinion potentially resurrects the doctrine like a zombie. That’s an unfortunate development. The initial interest confusion doctrine is solely based on judicial intuition; no empirical research validates its existence. It’s also an overly plastic doctrine; its boundaries and definition often change from case to case. This makes it’s impossible for a defendant to rebut and hard for litigants to predict outcomes. Having a revitalized doctrine will increase defendants’ litigation costs with no commensurate social benefit. In other words, this ruling would seem to force online retailers to treat the consuming public as though they were far more stupid than they actually are, which is a strange outcome for a court case. Punishing useful retailer search engines for being too useful and not treating the public like morons is hopefully a practice that won't make it through the jury process. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
We've discussed the "cybersecurity" bill, CISA, that's been making its way through Congress a few times, noting that it is nothing more than a surveillance expansion bill hidden in "cybersecurity" clothing. As recent revelations concerning NSA's surveillance authorities have made quite clear, CISA would really serve to massively expand the ability of the NSA (and other intelligence agencies) to do "backdoor searches" on its "upstream" collection. In short, rather than protecting any sort of security threat, this bill would actually serve to give the NSA more details on the kind of "cyber signatures" it wants to sniff through pretty much all internet traffic (that it taps into at the backbone) to collect anything it deems suspicious. It then keeps the results of this, considering it "incidental" collections of information. In an incredibly cynical move, supporters of the surveillance state have seen OPM hacks as a ridiculous excuse to push to pass this bill. Senator Mitch McConnell tried to include it in the defense appropriations bill by pointing to the OPM hack. That gambit, thankfully, failed. But that's not stopping the supporters of the surveillance state. During recent Congressional hearings, surveillance state supporter Senator John Cornyn claimed that CISA would be back for a vote before the end of the month, despite having failed multiple times in previous attempts. And, earlier this week, McConnell similarly announced plans to bring it up for a vote soon -- and, again in the context of the OPM hack. Here's McConnell being interviewed on Fox News by Bret Baier: BAIER: Senator, you mentioned cybersecurity. Hackers broke into the U.S. Office of Personnel Management, stealing background investigation forms, fingerprint records, Social Security numbers for more than 22 million people.... [....] MCCONNELL: This is a total mess. It's no wonder they had a hard time with the Web site which they launched Obamacare. These cybersecurity issues are enormously significant. What we're going to do is before August, take a step in the direction of dealing with the problem with information sharing bill that I think will be broadly supported. This is an administrative disaster that the president needs to get a hold of and get straightened out soon. What no one asks McConnell (of course) is how CISA would have had any impact on the OPM hack. Or, hell, how it would help stop a single online attack anywhere. Because that's a question no one seems willing to answer. Because the answer was already made abundantly clear by Senator Ron Wyden in opposing this bill. It's not about cybersecurity at all. It's about surveillance.Permalink | Comments | Email This Story

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Protect your information while surfing on a public Wi-Fi spot with 83% off of a Wifi Protector VPN: Lifetime Subscription. With 20+ countries to choose from, you can easily find the best connection for whatever your needs are. Wifi Protector works with Windows XP and up, and Android 4.0 and up. All updates are included in the lifetime subscription. 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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Third-party copyright troll Rightscorp is fighting a couple of lawsuits related to its alleged telephonic harassment of alleged infringers. One wonders what the ROI is on funding robocalling in pursuit of $10-20 "settlements" from suspected infringers. Whatever it is, the ROI is definitely edging further into the red, what with the company now paying lawyers to safeguard its "right" to harass and threaten people who won't pay up (or haven't even performed any infringing activity). I don't make this assertion lightly. Multiple complaints made to the FCC back up the assertions being made in two class-action lawsuits. Rightscorp has responded to the allegations made in the lawsuit filed earlier this year, claiming the company willfully violated the Telephone Consumer Protection Act (TCPA) in its "collection" efforts. (Note that most collection efforts revolve around unpaid bills -- something consumers previously agreed to pay in one form or another. Rightscorp's "collections" involve no agreement from consumers -- only accusations based on little more than snippets of torrent activity and an IP address. And yet, the company treats accused infringers as though this is unpaid debt, rather than the speculative wallet-rummaging it actually is.) Rightscorp's response is hilarious -- although certainly not intentionally. First off, it denies pretty much every allegation except for the issuing of subpoenas and emails -- things nearly impossible to deny thanks to the paper trail they create. Once it gets past that point, it starts issuing its affirmative defenses. According to Rightscorp, several Constitutional amendments enshrine its right to harass alleged infringers over the phone. While the majority of its eleven defenses are questionable enough, the defenses 3-6 attack the law itself, claiming that TCPA is unconstitutional, namely it violates the First, Fifth, Fourteenth, and Eighth Amendments. Why is it so, Rightscorp doesn’t say. From the filing: The Telephone Consumer Protection Act (“the TCPA”), codified at 47 U.S.C. § 227, upon which Plaintiffs’ claims rely, violate the First Amendment of the United States Constitution. [...] The TCPA violates the Due Process Clauses of the Fifth and Fourteenth Amendments of the United States Constitution. [...] The TCPA violates the Excessive Fines Clause of the Eighth Amendment of the United States Constitution. It appears Rightscorp would rather have the court examine a law twice held to be constitutional than look into its "collection" activities. The First Amendment argument isn't exactly novel. Rightscorp and Warner Bros. have previously argued that copyright trolling is free speech. But, in that case, at least it actually made an argument. The affirmative defense offered here is nothing more than literally "the law violates the First Amendment," something no court has held to this point. Beyond that, the other affirmative Constitutional defenses offered by Rightscorp are probably going to be viewed as "novel" by the court -- something that's rarely a compliment when it's written in a judicial opinion. As of right now, they're not even arguments. They're just assertions. The real fun will begin when Rightscorp starts explaining how violating a consumer protection law is not just protected speech, but is safeguarded by the application of Fifth, Eighth and Fourteenth Amendments. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Let me start out by saying that I think online harassment and bullying is a significant problem -- though also one that is often misrepresented and distorted. I worry about the very real consequences of those who are bullied, harassed and threatened online, in that it can often lead to silencing voices that need to be heard, or even causing some to not even bother to participate for fear of the resulting bullying. That said, way too frequently, it seems that those who are speaking out about online bullying assume that the best way to deal with this is to move to push for censorship as the solution. This rarely works. Too frequently we see "cyberbullying" being used as a catchall for attacking speech people simply do not like. Even here at Techdirt, people who dislike our viewpoint will frequently claim that we "bullied" someone, merely for pointing out and discussing statements or arguments that we find questionable. There are no easy answers to the question of how do we create spaces where people feel safer to speak their minds -- though I think it's an important goal to strive for. But I fear the seemingly simple idea of "silence those accused of bullying" will have incredibly negative consequences (with almost none of the expected benefits). We already see many attempts to censor speech that people dislike online, with frequent cases of abusive copyright takedown notices or bogus claims of defamation. Giving people an additional tool to silence such speech will be abused widely, creating tremendous damage. We already see this in the form of ContentID from YouTube. A tool that was created with good intent, to deal with copyright infringement on the site, is all too often used to silence speech on the site, either to silence a critic or just through over-aggressive robots. So, imagine what a total mess it would be if we had a ContentID for online bullying. And yet, it appears that the good folks at SRI are trying to build exactly that. Now, SRI certainly has led the way with many computing advancements, but it's not clear to me how this solution could possibly do anything other than create new headaches: But what if you didn’t need humans to identify when online abuse was happening? If a computer was smart enough to spot cyberbullying as it happened, maybe it could be halted faster, without the emotional and financial costs that come with humans doing the job. At SRI International, the Silicon Valley incubator where Apple’s Siri digital assistant was born, researchers believe they’ve developed algorithms that come close to doing just that. “Social networks are overwhelmed with these kinds of problems, and human curators can’t manage the load,” says Normal Winarsky, president of SRI Ventures. But SRI is developing an artificial intelligence with a deep understanding of how people communicate online that he says can help. This is certainly going to sound quite appealing to those who push for anti-cyberbullying campaigns. But, at what cost? Again, there are legitimate concerns about people who are being harassed. But one person's cyberbullying could just be another person's aggressive debate tactics. Hell, I'd argue that abusing tools like contentID or false defamation claims are a form of "cyberbullying" as well. Thus, it's quite possible that the same would be true of this new tool, which can be used to "bully" those the algorithm decides is bullying as well. Determining copyright infringement is already much more difficult than people imagine -- which is why ContentID makes so many errors. You have to take into account context, fair use, de minimis use, parody, etc. That's not easy for a machine. But at least there are some direct rules about what truly is "copyright infringement." With "bullying" or "harassment," there is no clear legal definition to match up to and it's often very much in the eye of the beholder. As such, any tool that is used to "deal" with cyberbullying is going to create tremendous problems, often just from misunderstandings between multiple people. And that could create a real chilling effect on speech. Perhaps instead of focusing so much technical know-how on "detecting" and trying to "block" cyberbullying, we should be spending more time looking for ways to positively reinforce good behavior online. We've built up this belief that the only way to encourage good behavior online is to punish bad behavior. But we've got enough evidence at this point showing how rarely this actually works, that it seems like perhaps it's time for a different approach. And a "ContentID for harassment" seems unlikely to help.Permalink | Comments | Email This Story

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A bad ruling has been handed down that will make it much more difficult for the Maryland citizens to find out the extent of misconduct performed by public employees. The court there is nodding to an expectation of privacy that really shouldn't exist in the public sphere and, in doing so, has provided that much more obscuring darkness for badly-behaving cops. The Maryland appeals court has ruled that police departments' internal investigation documents are "personnel files" and thus exempt from public records requests. The decision came in response to a lawsuit filed by the ACLU on behalf of Taleta Dashiell, who was seeking a copy of documents related to her own sustained complaint against Sgt. John Maiello of the Maryland State Police. Contributing to this bad decision is a handful of "extra rights" that have been granted to the state's law enforcement officers. After the Court of Special Appeals determined that the Circuit Court erred by not requiring the State Police to create an index of the withheld documents and by not conducting an in camera review of the documents, the State filed a writ of certiorari asking us to consider the following question: Did the Department of State Police properly invoke the Maryland Public Information Act’s (MPIA) exemptions for personnel records and records that are confidential under other law — here the Law Enforcement Officers’ Bill of Rights — to deny a request for the internal affairs records of an investigation into the conduct of a specifically identified state trooper? Maryland, unfortunately, is somewhat of a pioneer in giving certain public servants more rights than other public servants, and more rights than the public itself, the latter of which has the dubious privilege of paying the salaries of these "more equal" police officers. Maryland was the first state to pass a LEOBR, in 1972, and by now many states have followed, invariably after lobbying from police unions and associations. Often the bills are sponsored by Republicans, who seem to forget their normal skepticism of public employees as an interest group when uniformed services are involved. Among other things, the LEOBR grants police officers the "right" to have up to 10 days to respond to misconduct allegations and to be able to appoint a lawyer of their choosing to represent them in what is normally just an employer-employee interaction anywhere else in the working world. Dashiell was attempting to obtain documents related to her complaint against Officer Maiello, who was captured on her voicemail referring to her (twice) as a "nigger." From that point forward, the Maryland State Police did everything it could to keep her from seeing anything related to Maiello or her complaint. Supposedly, the state provides an exception to the personnel records exception in the case of the "person of interest" -- which should have covered Dashiell's request. Despite existence of such records being confirmed by a letter from the MSP to Dashiell, the department refused to turn over the requested files. The MSP was creative in its stonewalling of Dashiell's request, treating the retirement of the officer charged with fulfilling requests as the end of the line for this inquiry. The MSP returned the March 2, 2010 MPIA request to the ACLU stamped “addressee unknown.” Apparently, unbeknownst to Ms. Dashiell and the ACLU at the time the MPIA request was sent, Lieutenant Colonel Fischer had retired from the MSP. The MSP returned the MPIA request, failing to even identify the new custodian, rather than deliver it to the current custodian of records. Dashiell sent a new request to the new custodian of records, which was denied in its entirety -- including her request for, if nothing else, an index of the records held. The lower court granted the MSP summary judgment, claiming the files requested were exempt from disclosure, even considering Dashiell's "person of interest" status. She appealed, but the appeals court has now arrived at the same conclusion. The court's opinion says that the law is law, no matter how stupid under these specific circumstances. The sustained complaint is treated no differently than an unsustained complaint and no matter how much information has been made public already, the officer's privacy trumps the public's interest. The court strains credulity by suggesting the release of such information would negatively affect future misconduct investigations. The plain language of the Public Information Act, also, does not differentiate between “sustained” and “unsustained” complaints. A determination that a sustained finding requires disclosure of personnel information, though, would affect all public employees, not only the police force. Further, mandatory disclosure of personnel information related to sustained findings could chill the disciplinary process, rendering those in control less willing to sustain a finding of misconduct. It is insane that the court would actually believe that the public has the power to actually "chill" any government action. The state's laws -- combined with the Bill of Rights extended to police officers only -- create their own chilling effect. Police officers know that it's highly unlikely any record of their misconduct will ever reach the eyes of the public, which creates an incentive for future abuse. This has a chilling effect on citizens, who know that it's highly unlikely any officer will receive significant discipline for wrongdoing, as the entire process is allowed -- by law -- to be conducted in total darkness. The court also points out that it agrees with lower courts' findings: despite Dashiell being the one to file the complaint, she is not the "person of interest." Officer Maiello is. So if anyone is ever going to make records of police misconduct complaints public, it can only be the officer against whom the complaint was filed. Which means this will NEVER HAPPEN. Two judges offered their dissenting opinion, pointing out that the majority expressly dodged a question crucial to the determination of whether these files should be eligible for "personnel information" protection. There's a difference between "unsustained" and "sustained," and the court has chosen bypass this delineation and defer to the law's wording instead. This result is far different from the circumstance of permitting unsubstantiated allegations of a complaint to be made public. In sustaining a complaint against one of its officers, a law enforcement agency acknowledges the truth of the very facts that “directly pertain to employment and [the officer]’s ability to perform [his or her] job.” In contrast to such facts, the discipline that the law enforcement agency decides to administer to the officer does not directly pertain to employment or the officer’s ability to perform his or her job. Plainly put, the officer did what the officer did, regardless of how the law enforcement agency decided to respond. The administration of the discipline is an action of—and thus reflects the judgment of—the law enforcement agency, not the officer. Thus, a record of discipline based on a sustained complaint against a law enforcement officer is not a personnel record; instead, it is among the very types of document that the Public Information Act is designed to make available to the public: a document that reflects how a public agency responds to an employee’s proven misconduct. This is how it should be. But it isn't. The state law allows misconduct to go unexamined and grants public employees a privacy expectation in their publicly-funded employment that simply shouldn't exist. Even records related to unsustained complaints are of value in terms of accountability, but at the very least, records of sustained complaints should be excluded from the law's personnel records exemption. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
Zorro, the masked vigilante who wields justice in the form of a sword, was first brought to the world in 1919 by Johnston McCulley. As such, some portion of the Zorro existence is now in the public domain in many jurisdictions. That hasn't stopped Zorro Productions Inc. from claiming all kinds of intellectual property rights on all things Zorro, of course. A few years back, there was a lawsuit between Zorro Production and Mars over a depiction of the hero in a commercial for M&Ms. That was a trademark claim, the rights for which Zorro Productions claims for itself, and one of the interesting questions in the case was whether such a trademark claim could be made upon a character that had entered into the public domain. Put another way: can the expiration of copyright law on a fictional character be circumvented through a trademark claim. One of the keys to answering that question, as is discussed in the above post, is whether a specific use of the character would confuse the public as to the source of the original creation, or if it might be misconstrued as any kind of endorsement. Mickey Mouse, for instance, equals Disney. Does Zorro equal Zorro Productions? Of course not. And now the European Union has recognized that fact, actually going so far as to invalidating the Zorro trademark entirely for that very reason. Late last month, the cancellation division of the office that manages community trademarks within the European Union issued a ruling declaring that a "Zorro" trademark was invalid in the categories of printed matter and entertainment. According to a just-released English version of the ruling, when the average consumer sees "Zorro," he or she will assume the story of the character is being told, but not recognize "Zorro" as an indicator of origin. As such, it's deemed to be merely descriptive and not sufficiently distinctive. This was sparked after Zorro Productions had waged a legal war with Robert Cabell, who created a theatrical production entitled Z - The Musical of Zorro. Cabell had responded to the attack by trying to get the EU to acknowledge that the character was in the public domain from a copyright perspective and that the trademarks held by Zorro Productions had been registered fraudulently. The EU concurred. "If a title in question is famous enough to be truly well known to the relevant public where the mark can be perceived in the context of the goods/services as primarily signifying a famous story or book title, a mark may be perceived as non-distinctive," states the decision. "A finding of non-distinctiveness in this regard will be more likely where it can be shown that a large number of published version of the story have appeared and/or where there have been numerous television, theatre and film adaptations reaching a wide audience." Zorro, which has resulted in 38 films, fits this description, says the Office for Harmonization, which adds that "although it is possible for titles of books or names of fictional characters to function as indicators of trade origin, it is dependent on the particular goods and services which they are applied for." And so Zorro has been freed from the EU prison of intellectual property, at least in these respects. And, more importantly, this is a good thing. I have no idea of the quality of Cabell's musical about the masked vigilante, but I damn well know that a character created a century ago, whose author is long-dead, ought not be denied in the use of the public in the aims of creating more art simply because a corporate interest wants to sell non-existent rights to Hollywood. Permalink | Comments | Email This Story

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If artificial intelligence doesn't seem to be making as much progress as we'd like, there are some other ways to try to create more intelligent beings on demand. If we can't breed smarter animals, perhaps we can make some animal cyborgs to do our bidding. We'll need some better brain interfaces, and it looks like plenty of folks are already working on them. Neurobiologists have figured out how to connect multiple brains together by implanting microwire electrode arrays in animals -- and proving two heads are actually better than one. Researchers accomplished this feat with rat and monkey brains (not mixing the species, mind you, that would be crazy...), and they found multiple brains could perform tasks that single brains could not. These 'brainets' could someday be used on human brains... so imagine a Beowulf cluster of human brains? [url] A low-cost headset called the Brainwriter can control digital interfaces with thought-detection and eye tracking sensors. It's not exactly a finished product yet, but... similar gadgets could become much more useful in the near future. [url] Brain implants might be far less invasive with injectable electrode meshes that can unfurl onto various kinds of nerve or brain cells. Injecting flexible electronics into mice brains via a syringe has been a demonstrated way to monitor brain activity, and researchers might be able to create a brain interface -- so we could create a super-intelligent rat brain network to take over the world. [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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DHS boss Jeh Johnson is still out trading fear for civil liberties. There's a cyberwar that needs fighting and his agency is looking for a position at the "information sharing" front lines. As the major systems went down left and right a couple of days ago, Johnson remained mostly unperturbed while delivering an address to CSIS. In the context he delivered them, his remarks -- while remarkably similar to those he delivered at the RSA Conference in April -- seem to be a bit more conciliatory, rather than being just repetitive talking points from an agency seeking additional power at any cost. Johnson acknowledged that in the war against hackers, the need to protect privacy and connectivity makes the web security a difficult operating environment. “I can build you a perfectly safe city, but it will look like a prison,” he warned. “Cybersecurity involves striking a balance,” he said. “I can build you a perfectly secure email system but your contact will be limited to about ten people and you would be disconnected entirely from the Internet and the outside world.” While I still remain skeptical as to his true intentions, it is a bit refreshing to see someone in the business of securing the homeland at least cognizant of the tradeoffs inherent to these aims. He said something to the same effect three months ago, but it was in the context of pleading the government's case for encryption backdoors. I tell audiences that I can build you a perfectly safe city on a hill, but it will constitute a prison. I think most Americans are well aware you can't have perfect security and perfect liberty, and outside of the most extreme factions on either end, no one's clamoring for that. The important thing is that Johson recognizes this, considering he holds the tools to build the public a hilltop prison in the name of security. But I still think Johnson wants most of the tradeoffs to come at the expense of the public. He may be totally sincere in his wishes to build a balanced cybersecurity program, with actual equitable information sharing, but his best intentions are naturally hampered by the excesses of the agency he helms. There are far too many agencies operating under the minimal control of the DHS, many of which aren't nearly as willing to cede civil liberties ground as needed. On top of that, the government continues to be terrible at protecting its own assets. And yet, it wants the private sector to be its partner in the Great Cyberwar. Once these companies are forced to carry the cybersecurity load for the underperforming public sector, those with greater governmental control on their minds will start building these "prison" walls, and all tradeoffs will be forgotten. The only way to keep the government honest is to force it to play by the private sector's rules. This means no willful subversion of encryption and ridiculous demands for additional intrusive access in the name of "information sharing." Once these companies are granted a little respect from their potential partners, I would imagine the us v. them posturing will relax a bit. Johnson may recognize the tradeoff and may even be willing to make concessions. But so far, most of what's being offered by agencies like his are demands, rather than compromises. Permalink | Comments | Email This Story

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There's a line between a legitimate copyright infringement lawsuit and a bunch of mostly-ineffective claims masquerading as a legal filing. Photographer Dennis Flaherty has crossed that line. A photographer is suing a beverage company which allegedly used without permission one of his photographs on social media. The case is interesting, as the photographer chose to sue not only the company and its employees and contractors, but also the social media users who republished the photograph on social media, by a retweet, or a pin. North American Bottling -- namely its Big Red Soda product -- allegedly used Flaherty's photograph of the Alamo in some social media marketing. The original can be seen here. (Well, probably not the original, what with this one's prominent watermark/compression artifacts.) And here's one of Big Red's post: Suing Big Red makes sense. Suing the people who retweeted or reposted Big Red's tweet/post does not. For one thing, it's just bad form. Suing for contributory infringement is the sort of thing best left to companies like record labels and other bottom feeders of the legal system. Individuals shouldn't willingly associate with the worst purveyors of infringement lawsuits. Beyond that, it rarely works, so you're just expending extra billable hours chasing down people who performed no direct infringement. I would say roughly nobody ever would have looked at Big Red's post and thought, "I bet the company didn't license that photo." People expect companies to have their IP shit together, and those clicking retweet/share aren't really going to be examining the accompanying photograph's chain of custody before doing so. Only the person whose IP is being infringed will do that. Just because that person has a deep personal/monetary connection to the work in question doesn't mean the rest of the internet owes the creator due diligence. Or damages. But somehow Flaherty believes (or hopes) these members of the public do owe creators that courtesy every time a brand tweets out a photo. His lawsuit first targets employees of Big Red… Defendants are contributorily liable because they knew of or should have known of their possession of infringing material and failed to purge such material from their possession. Defendants infringed contributorily by knowingly taking steps that were substantially certain to result in the infringement of the Photograph. Defendants intentionally uploaded, pinned, shared, reproduced, copied, distributed etc. the Work to various third parties (“Shared Work”), or their computer servers, including the server(s) of Twitter Inc. (“Twitter”) and Facebook, Inc. (“Facebook”), or their end users. …but it goes on to drag end users into this mess. On information and belief, the Shared Work has been “re-tweeted”, “shared”, etc. by at least one third party resulting in direct infringement by that third party. As a direct and proximate result of the Defendants contributory infringement, Plaintiff has suffered injuries and damages and is entitled to its actual damages and Defendants’ gross revenue or profits, direct or indirect, derived by Defendants that are attributable to Defendants’ direct infringement of the Photograph, pursuant to 17 U.S.C. § 504(b). If there's any doubt that Flaherty is dragging a Twitter user into his lawsuit, it's spelled out precisely in the opening breakdown of the listed defendants: On information and belief, one or more Defendants are the registrants, owners, operators, and/or end users of the websites, blogs, domains, and/or social media accounts related thereto So, the "Does 1-5" named in the lawsuit not only include the Big Red employee(s) involved in posting the photo, but also those who retweeted it. The latter most certainly is not "direct" infringement. It's not even "contributory." The naming of Big Red employees is nothing more than an attempt to levy increased damages above and beyond what Flaherty could hold a single entity (Big Red itself) responsible for. This is clearly bogus, but it does point towards something that might become more common if a much-discussed idea ever becomes a reality. Marie-Andress Weiss of the 1709 blog speculates on the possibility of more end users being held liable for unknowingly retweeting/sharing infringing material. But this case got me thinking about copyright small claims courts. If such courts are ever established in the United States, would copyright owners sue social media users who had republished infringing material? Let’s say that social media users would ‘only’ face, for instance, a $50 fee awarded in a small claim court for having retweeted or pinned infringing material. Granted, only people posting under their real name could effectively be sued. But Facebook has a “use only your own name” policy, which is enforced, and many Pinterest or Twitter users post under their real name as a way to promote themselves and to build relationships and contacts. Fearing that retweeting a particular tweet may or may not lead to a fee would certainly have a chilling effect on speech, especially if the fees start to add up. If a small claims court for IP issues ever does become a reality, it will also become a venue for speculative invoicing. As Weiss points out, bringing small claims suits against hundreds of Does will be futile. You can't collect from what you can't serve. But the millions of people who can be positively identified could be held "responsible" for unknowingly spreading infringing material. Mass lawsuits seek huge payoffs, but are seldom successful. The few "hits" scored pay for the hundreds of misses. But lowering the bar to entry will make this an attractive option for entities like Rightscorp, which only asks for $20/per infringement, but will certainly use this system to seek more from users whose information it has already obtained from ISPs. With less to prove and even less at stake, shakedowns will increase as default judgments become the most likely outcome. Permalink | Comments | Email This Story

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So far, legacy cable operators have crafted an ingenious, two-pronged response to the rising threat of internet video competition. One, mindlessly raise programming and equipment rental rates (since we all know that traditional cable TV is a cash cow that will live forever). Two, pretend to be innovative. This latter part doesn't have to consist of much; you have to do just enough to make it look like you give a shit about television's evolution, like offer a sloppy Hulu clone under your own brand, or launch a "me too" streaming service with so many caveats to make it largely useless. That's apparently Comcast's MO with the launch of its new creatively named "Stream" internet video streaming service. According to the company's announcement, Comcast's Stream service will offer users a handful of channels (including HBO) with ads, for $15 a month. The biggest caveats: you can only use the service if you're a Comcast "Xfinity" broadband customer, and you can only use the service while at home on your Comcast Wi-Fi connection. It's yet another cable industry attempt to keep cord-cutters in house by offering them something that looks like innovation, but falls well short of the mark. Comcast and other cable operators are obsessed with the false belief that you can create such wonderful, amazing walled gardens that traditional cable users will somehow be impervious to obscene pricing and will never want to leave. That's the mindset behind the industry's TV Everywhere initiative, and it's a mindset on proud display here. But when you actually look at the pricing and value proposition on display, it's pretty clear where Comcast still thinks it can steer users: "Here’s some quick math: Comcast sells Internet at different prices in different markets, but right now a basic broadband-only subscription in its home market of Philadelphia is $67 a month. Add in the cost of Stream and you’re up to $82 a month. But Comcast sells a basic TV + Broadband package, including HBO, for $45 a month. You will want to read the fine print when you compare the two offers.** But you might reasonably conclude that Comcast would still rather sell you cable TV than Web TV." Gosh, yes, you might just reasonably conclude that. Comcast (like all cable operators) is stuck between a rock and a hard place. If it offers a truly disruptive, well-priced internet streaming service, it will start heavily cannibalizing all of the customers currently paying an arm and a leg for traditional television. The answer? Cable will have to do the unthinkable and begin competing on price, offering traditional cable TV and streaming capabilities and a better bundle price. Yes, the reduction in quarterly revenues is going to make investors and executives cry over their lattes, but it's a smarter play over the long haul than responding to fleeing, cost-conscious customers with the inept one-two punch of yet more rate hikes and the pretense of innovation. Besides, said executives and investors can then turn around and recoup those losses by socking broadband customers with broadband usage caps and overage fees, right?Permalink | Comments | Email This Story

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Netzpolitik.org is arguably the most influential German blog in the realm of digital rights. It played a key role in marshalling protests against ACTA three years ago. You'd think the German government would be proud of it as an example of local digital innovation, but instead, it seems to regard it as some kind of traitor: The president of the German domestic secret service has filed criminal charges with the public prosecutor because of two of our articles. The accusation: leaking state secrets. Those two articles concerned a leak about extending bulk surveillance of online users (original in German), and plans to create a new department of the German secret service to extend its Internet surveillance capabilities (in English.) As Netzpolitik's founder and Editor-in-chief, Markus Beckedahl, explains, he decided to publish this information because it showed that despite Edward Snowden's revelations about NSA surveillance, the German government still thinks the best way of spending taxpayers' money is by spying on them. He adds: Naturally, we uploaded the original documents relating to our article because there was still enough disk space and because it is part of our philosophy to enable our readers to inform themselves using the original source. Thus, they can scrutinise us and our reporting. Apparently, this suffices for a twice charge for treason because it seems to be confidential when the Federal Office for the Protection of the Constitution expands the Internet’s surveillance and keeps social networks under surveillance using the dragnet principle. This affects everybody, e.g. we could be under surveillance because we have sign up for the same Facebook event as a potential terrorist. But a public debate thereon is undesired. This is not the first time that the German government has given Netzpolitik.org a hard time: Already in the autumn of 2014, the German Federal Chancellery (German: Bundeskanzleramt, translator’s note) has threatened us with a charge which was also announced but later on abandoned. Like the present case, that seems a clear attempt to intimidate reporting. As Beckedahl points out, even though the new hunt for whistleblowers is not aimed directly at the blog and its journalists, they are likely to be caught up in any investigation, probably just to act as a warning: It is very rare that the German Federal Public Prosecutor investigates against journalistic sources. We could not find any case since 2005. Now we shall experience the full rigour of the constitutional state. The charge is not directed straight to our reporting but we are nevertheless affected. We are mentioned and have to expect to be under surveillance and possibly to be subject to a house search. What makes this kind of bullying doubly outrageous is that there is a rather bigger story regarding the press in Germany: the fact that both the NSA and CIA spied on the news magazine Der Spiegel. And yet rather than investigate that fact, or that other newspapers seem to have been victims too, the German government is more concerned about intimidating journalists that dare to report on its own plans to spy on millions of its citizens. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Free yourself from tangled wires and leave your music player in your pocket or purse with these REMXD On-Ear Bluetooth Headphones. Save 28% off of retail and get up to 15 hours of playtime on one charge. The headphones work up to 33 feet away with any Bluetooth device. Buttons on the headphones allow you to skip/rewind, adjust the volume and answer calls for hands-free talking. 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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One of the most hilarious claims that we hear from internet trolls and the like concerning copyright and infringement is something along the lines of "but, without strong copyright, there would be no music!" It's a silly argument that has been debunked so frequently that we'd thought that it had been relegated to living on only among uninformed internet commenters, rather than actual industry execs. Enter Neil Turkewitz, one of the RIAA's top execs, who has been with the organization since 1987, and apparently still has the "Home Taping is Killing Music" phrase permanently imprinted on his brain, no matter how laughably false it is. Turkewitz submitted a paper to the UN last year when it was investigating cultural rights, and that piece has now been republished by IP-Watch. It's a fairly astounding piece of ridiculousness that argues that there's no more cultural output in Africa or the Middle East... because they just don't have strong enough copyright laws. It starts off with one of those classic lines about how, without copyright, no one makes music any more: This has been the unfortunate reality in many developing countries where the lack of effective protection has eroded the willingness of private capital to fund production of original cultural works, contributing to economic stagnation and a dearth of cultural diversity. Simply put, when a society fails to reward its own creators, such creators will cease to exist, and “access” will be limited to foreign cultural materials. Hmm. Except that's not what we've actually seen around the globe. In fact, with the rise of the internet and computers and the easy creation of works, people are finding that it's much easier (and cheaper) to create works and to get distribution. Pull up YouTube or log into Spotify and go searching for music from basically any country and see what you find. And compare that to what those of us who grew up in the era of the "record store" had to do to find world music (which was always all lumped together in a single tiny section in the back). And, from there, he argues that the Middle East and Africa in particular are now silent. Because they just don't have strong enough copyright laws. In many developing countries, the marketplace has been so dominated by piracy that there is no viable mechanism for private capital to be employed in facilitating the creation and distribution of creative works. In such instances-i.e. where copyright protection is not effectively introduced and maintained in law and in practice, the creative community is silenced. Communities throughout the globe-particularly in parts of the Middle East and Africa, bear silent witness to the devastating impact that lack of effective copyright protection has on the ability to create. Where there is no financial incentive for the creation and distribution of cultural materials, the distribution of local cultural materials ceases, much to the detriment of society, as well as to the putative creators who are foreclosed from adding their voices to the cultural mix. Apparently, it does not occur to Turkewitz that there might be other factors that are impacting the markets for music in parts of those areas -- such as civil war, civil unrest, religious beliefs, turmoil, astounding levels of poverty and much, much more. But the idea that people in those regions are just sitting around not making music because of too weak copyright laws is simply laughable. Besides, it's also not true. It wasn't that long ago that the NY Times was writing about the so-called "African Invasion" of African music coming to the US. Hell, it was just a few days ago that Ebony magazine noted that African music is the "new pop gold rush" which includes this paragraph: But now that’s all transforming. Africa is now! The Internet has democratized music and threatened the major label’s cash cows. Radio and TV are no longer the only barriers to entry, and the borders are wide open. Our blinders are off, and we are exposed to music from all parts of the globe via the interwebs. One thinks that, perhaps, Turkewitz's concern may be a lot more about the "threatened the major label's cash cows" line, than the supposed and mythical lack of music in Africa. As for the Middle East, well, there's plenty of new music showing up there as well. Just a couple of months ago, the BBC covered the hip hop revolution in the Middle East, much of it inspired by the various revolutions in different countries. Turns out that, maybe, life events have a bigger impact on music than copyright law. Shocking, I know. The same BBC has also covered Iran's underground pop revolution and how youth across the arab world are "reveling" in a "pop revolution" in the region. Oh, if you're interested in some Middle Eastern Pop or African pop music, click on those links. Or do a basic Google search, which will turn up a lot more. Apparently, Turkewitz couldn't be bothered (perhaps it's that whole "entertainment industry hates Google" thing). So, uh, Turkewitz's argument is already just wrong. Even more bizarre, he argues that this lack of copyright means that since no one in these countries is making music any more (totally false), it means that those markets are, instead, flooded with American music. You see, it's the lack of copyright protection that's leading to American cultural hegemony in those regions, and the good hearted Neil Turkewitz -- whose job is literally to advance the interests of the copyright holders behind American cultural hegemony -- now insists that he wants stronger copyright laws around the world not to advance the interests of the big labels (oh no!), but rather because he wants to protect local African and Middle Eastern music. Because he thinks whoever's reading this is an idiot. Make no mistake — cultural hegemony flows not from the protection of intellectual property, but from its absence. We owe the world’s creators and societies a better deal, and effective copyright protection has well served the societies which have maintained such systems. We therefore urge policy makers around the globe to reject simplistic formulations of the public interest that are grounded only in considerations of access to creative works without considering the incentives for the production of creative works. We must ensure that policy makers ask themselves “access to what?” before adopting policies that endanger their own ability to foster creativity and innovation. Now, we absolutely agree with the central claim that Turkewitz tries to pin his article on: that those who create culture need incentives to do so. But, as we've seen, there are all sorts of ways of doing that that don't require crazy extreme copyright that hinders freedom of expression and innovation at the same time. We see it all the time where new tools like crowdfunding and micropayments are making things possible. We see how the cost of production and distribution has made it so it's just easier for people to create and distribute music no matter what. And, Turkewitz's claim that developing countries need stronger copyright for their local music just has no support in any historical context. Take, for example, the story we had a few years ago about the rise of a new genre of music in Brazil called "technobrega," which embraced sharing the music either on the internet or via passing around CDs -- often instigated by the artists themselves. That helped technobrega become a cultural phenomenon -- and the artists make money doing live shows. And there are tremendous parallels to the rise of Jamaican music, where an entire industry was created and built off of weak copyright laws and widespread sharing of music and reusing of riddims. The argument that without copyright, regional and cultural music doesn't get created is simply laughable. The idea that we're somehow now in an era where American music is a "cultural hegemony" as opposed to a decade or two ago is similarly laughable. Turkewitz's basic premise doesn't even pass the most basic laugh test. From there, we get the other silly old debunked RIAA talking point that "without strong copyright, there is no way to make money." I'd really thought that the RIAA had retired this one, but apparently not: An effective and functional copyright environment is not a panacea; it does not on its own create global parity in the marketplace of ideas. But it does give individual creators a fighting chance, and an opportunity to compete. The ability to generate revenue from one’s creativity — to earn a living as a creator — is central to a society’s ability to foster cultural production. In its absence, dreams and creative lives perish. The moral and economic aspects of this equation are inseparable. We simply must ensure that all creators, regardless of their location, are able to enjoy the fundamental human right to choose the manner in which their creations are used as reflected in international law. First of all, this is bullshit. Most creators do not earn a living as a creator. This has always been the case. Unless the RIAA is suddenly promising a basic income guarantee to anyone who can sing a few notes, it's never going to be true either. But, some artists do earn a living -- and it's rarely because of copyright. Sure, sometimes it is, and it may frequently be one important component, but arguing that it is the only lever to pull and that without strong copyright laws creativity goes away is laughable. Lots of artists make more from other ways: live performances, merchandise, crowdfunding and more. And then Turkewitz gets even more ridiculous: It does not serve the aspirations of developing societies to return to a system in which the voices of the people serve the whims of the private elite, or worse, to allow governments to be the sole determining body in the matter of cultural works. A "private elite"? Really? Such as letting a tiny group of top execs at the three major labels choose what songs will be the hit records of the year, and then pay(ola) their way through millions to make sure that those are the songs that everyone listens to? Those kinds of "whims of the private elite"? Because, you know, that's kinda been a big part of the problem with music for a while. Yet, in the last few years, we've gotten way past that thanks to the internet -- and, for many -- thanks to file sharing. By permitting creative genius to be fueled by market forces, we unleash the cultural power and potential of the diversity of individuals, freeing creative impulses from the tyranny of centralized controls and making creative works accessible to the public at large. While copyright may be inadequate on its own in creating fair market conditions, it remains by far the most powerful tool for fostering creativity and democratizing culture itself. Based on what? First of all, copyright is the opposite of "market forces." It's a government granted monopoly to stop market forces from working. Copyright is what has allowed "centralized control" over the recording industry from the likes of the RIAA itself. It's hilarious that a guy who has worked at the RIAA for almost three decades is actually trying to argue that there needs to be stronger global copyright to stop "the tyranny of centralized control." Yes, it appears the king would like to raise taxes to better help the peasants avoid the tyranny of government coercion. Besides, we're actually seeing exactly what happens without the "tyranny" of control under the old copyright system, and the true "marketplace" thanks to the various innovations that the RIAA has fought hard to kill, from YouTube to MP3 players to streaming music and more. And it's allowing artists without major label connections to outperform the biggest names from the major labels at times. Perhaps we need less focus on the old system, and more of these new innovations that appear to be giving power back to the public to determine what they really like, rather than the power of Universal Music's payola budget. Copyright protection, while it may sometimes serve the interests of multinational corporations, is the mechanism that permits individuals to devote their lives to the creation of original materials; It may be one mechanism, but it is hardly the only such mechanism, and what we're finding more and more is that it is a rather poor mechanism for that -- though it has been a fantastic mechanism for helping the RIAA labels screw over artists. But I digress... If we want to foster cultural diversity (and I assume we all do), and want to ensure that diverse content is available to be accessed (and I assume we all do), then we must be more vigilant in ensuring the effective global protection of copyright. Again, copyright may be a tool that works for some in some cases, but this ridiculous insistence that it is the only such tool and that it is the core thing that must be protected -- at a time when it's so obvious that it also creates tremendous problems elsewhere and when many other solutions to funding artists are coming on the scene -- just makes Turkewitz look incredibly out of touch. Ms. Shaver writes that “copyright protection inflates the price of cultural works.” But again, that is completely wrong. Copyright protection gives economic value to cultural works, and sustains creators. It doesn’t inflate price – it recognizes a property interest so that the creator can determine the conditions of subsequent use. Of course copyright inflates the price of cultural works. That's its sole purpose. That's what monopolies do. To argue against that is ridiculous. An intellectually honest argument Turkewitz could make would admit that, yes, copyright inflates the price, but in doing so creates new incentives for the original creation of the work. Then we can debate whether or not that's true. Instead, he makes the completely ridiculous assertion that copyright doesn't inflate the price at all. Of course it does. And, no, copyright does not "give economic value to cultural works." Turkewitz, like so many others, is confusing price and value. Something may have tremendous economic value, even if it's free. This blog is free. Yet it has economic value in generating other kinds of revenue. Turkewitz's article is free. Yet I'd imagine he thinks it has economic value in (he hopes) convincing policy makers to bow down to the RIAA's distorted view of copyright law. While I'm sure that some will argue that this is just the RIAA spouting nonsense as usual, it's important to note that Turkewitz isn't just sending a random note to the UN with this nonsense. He's also the Vice Chairman of ITAC-15, which is the USTR's "advisory committee" for intellectual property in trade agreements. All that crap we've seen in the TPP and TTIP about intellectual property -- that's partly Turkewitz's doing. And he is either totally ignorant of what's happening in the market (unlikely) or he's willing to make completely outlandishly bogus statements in order to push the RIAA's preferred course of action, at the expense of all of the innovation and cultural development we've seen in recent years.Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
The internet has been tripping up dumb criminals since its inception. Police used to have to raid residences for incriminating Polaroids. Now, the criminals are saving them that step. Hashtagged bragging combined with location-tagged photos of criminal behavior has Darwinned the stupidest criminals right into the hands of local law enforcement. Not resetting stolen devices to "factory settings" after stealing them also snags a few thieves, who can easily be tracked by their victims. But in this case, it wasn't social media or HTC Pocket Narc 4G selling out these alleged child abductors. It was music and movies. After [accused kidnapper Brittany] Nunn no-showed for a custody exchange in the early days of December, investigators went to her Wellington home and found indications she and [accused accomplice Peter] Barr, 33, had apparently left in a hurry. Early indications suggested the family may have been in Minnesota where Nunn had family. But those tips never panned out, leaving [Drew] Weber and other investigators with a search unlike thousands of other custody disputes. The case inched forward as days turned to weeks. Then, a break. Drawing on new investigative tactics, Weber executed a search warrant and pulled records from Nunn's Spotify account. He found it was being used from an IP address in Mexico. He later pulled search records from Netflix and Nunn's other accounts and eventually tracked a package that Nunn had ordered to be shipped to Cabo San Lucas. Neither company at this point offer a Transparency Report detailing requests from governments and law enforcement agencies for user information. And neither would offer any comment on this story. But this would seem to be a good time for both to consider providing this information going forward. At this point, the only references to law enforcement activity on either site pertains to reports of fraudulent activity related to unapproved charges or stolen credentials. But obviously any service that tracks IP addresses, user activity, location data or other internet detritus is susceptible to examination by law enforcement. Services like these that are infrequently served by investigators are likely far less prepared (or willing) to challenge subpoenas. In this case, an actual search warrant appears to have been issued, which would make the return of applicable information almost automatic. In any case, with previous news that intelligence/law enforcement agencies using everything from Instagram to Angry Birds to locate criminals/terrorists, this news shouldn't be all that surprising, even if the sources of the information are somewhat novel. Convenience frequently trumps privacy, and having movies and music on tap instantly is something most people would find difficult to give up. Kudos to law enforcement for finding yet another way to track someone down, but those more privacy-minded are going to need to weigh instant access against the wealth of information collected by these services. Netflix -- thanks to pressure from rights holders -- has been forced to show a public frowny face re: VPN usage, and Spotify -- as another IP-reliant service -- is likely to do the same if the issue arises. If this pressure continues, it will be your privacy or your access, rather than a more balanced exchange. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Decades later, the Nazis, or at least the estate of a long-dead Nazi, gets a win. In a case we had written about months ago, in which the estate of infamous Nazi propagandist Joseph Goebbels sued Random House Germany over the inclusion of quotes from Goebbels' diary, claiming copyright infringement, we raised the story up as an example of why fair use rights are necessary for the sake of scholarly work. The idea that the estate of an historical figure could censor, or even put up a toll booth, between history and those that would learn from it has to be about as good of an example of what the originators of copyright didn't want as any. The whole point was to proliferate knowledge and the arts. I'm not sure why a Nazi's diary should even be afforded such protections in any respects, nevermind the estate of the dead Nazi be allowed to control the dissemination of history in this way. The German courts appear to disagree, however, having found in the favor of the Goebbels estate. The Munich district court ruled in favor of the estate's claims, although it pointed out that the royalty rights to Goebbles' writings would expire at the end of 2015, 70 years after his death. Random House intends to appeal the case at the German Supreme Court. If it is successful, [Random House's attorney Rainer] Dresen says, other media organizations could be examining the royalties they have been paying the Goebbels estate for their publications. "The court's ruling would declare the estate's position null and void, necessitating refunds," he says. As Mike noted in the last post, there are so very many arguments against why this ruling shouldn't have occurred. The first is that Germany ought to have something like Fair Use protections, which would have tossed this whole thing out immediately. Does Germany really want the estate's of historical figures to control historical scholarship in this way? Do we really need to trot out the whole "those who don't learn from history are deemed to repeat it" mantra? And beyond that, it's not even clear that the Goebbel's Estate has the rights it's been selling anyway. When the US seized the original publishing house, it took control of the publishing rights for Mein Kampf, so why not Goebbels' diary as well? On top of that, it turns out Goebbels may have sold his own publishing rights to the Nazi regime, meaning the Bavarian government would now be the ownership party, not his estate. If that's the case, the Bavarian government is playing very, very dumb. Dresen has pointed to evidence from a journal entry from 1936 when Goebbels sold the rights to Nazi state publishers. He believes this should transfer the copyright to the Bavarian government. "Bavaria is not interested," he told Newsweek, "'Show me the author's contract' they said, knowing the archives were destroyed at the war's end." Either way, pending the appeal, count this as a loss for historical scholarly work. And from a court in a country that really, really should know better than this. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Thanks to yet another FOIA lawsuit, more evidence is being produced that suggests certain federal agencies employ labyrinthine systems that seem deliberately designed to keep requesters as far away as possible from responsive documents. Trentadue v. FBI deals with the release (or lack thereof) of videotapes containing footage of the 1995 Oklahoma City bombing. Four days of oral testimony has at least partially exposed the search methods used by the FBI, which the agency uses as convenient information silos, rather than treat their central database as a cohesive whole. Reporters Committee for the Freedom of the Press points out that this "system" often leads to unfulfilled or partially-filled requests. FOIA requesters are often not aware that the FBI will do a half-assed job unless led by the nose through each of its databases and document systems. (via Unredacted) The latest testimony from the Trentadue case shows that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records "systems" that they need to specify in order for a comprehensive search to take place. They might not know that the FBI typically only searches for the location of the main file related to an investigation as reported to headquarters, so reporters should also request cross-references, which are mentions of the subject of their request in investigations outside of the main file. While field offices have FOIA-trained personnel to assist RIDS (Records Information Dissemination System), reporters should also send FOIA requests directly to individual field offices they think are relevant to the investigation, because RIDS may only request documents from the field office associated with the main file. On top of that, the FBI utilizes an obviously misnamed Central Records System (CRS) when responding to FOIA requests. Despite the name's suggestion that it a central repository of FBI records, it actually isn't -- not because the database doesn't contain the most of the records the FBI has compiled, but because it can be searched using three different methods, all of which will return different sets of documents. The "Automated Case Support" (ACS) is the tool used to search the CRS, but that search isn't unified. The FBI's Central Records System (CRS) contains the "universe of records" the FBI has acquired in its law enforcement operations. According to trial testimony in the Trentadue case, the Automated Case Support system ("ACS") searches the CRS, and the ACS is split into three components: the Investigative Case Management system ("ICM"), the Electronic Case File ("ECF"), and the Universal Index ("UNI"). The ICM is a case management tool for documents involved in an ongoing investigation. The ECF is broader and contains all FBI law enforcement documents uploaded to the CRS except for some aged documents, or documents not uploaded for unknown reasons. Importantly, the ECF searches the text of the documents themselves. The FBI revealed in court that requesters basically need to know the systems as intimately as responding agents do if they expect to receive the entirety of what they're seeking. In Trentadue v. FBI, the FBI limited its search to UNI, rather than utilize the ECF, which would have found more documents thanks to its search of document text. The FBI told the court that its default method for FOIA responses is the more-limited UNI search and that it won't perform more thorough searches using other methods unless specifically asked to by the requester. Not only that, but the FBI will decide what keywords to use when searching the database, unless required to do otherwise by the text of the request. Testimony revealed that the one search of the CRS was made using the generic UNI keyword "OKBOMB," even though there was a wide range of keywords that could have been used in a text-based ECF search. That's only one part of the FBI's FOIA obfuscation efforts. MuckRock's Shawn Musgrave points out that the FBI will often refuse to perform an extensive search until sued by the requester. Even worse, when knowledgable requesters have specified an ECF search, the FBI will sometimes refuse to follow this instruction. And there's more to it than simply using the least-responsive search method by default. There's also evidence suggesting the FBI is keeping information out of requesters' hand by preventing the documents from being added to the Central Records System in the first place. John Solomon of the Associated Press in 2004 documented the existence of so-called "I-Drives" used by the FBI, which were file-sharing drives used in the course of case management but which defense lawyers said could be used to withhold evidence. Testimony showed that the I-Drives have been replaced by "S-Drives," which serve essentially the same function. Trentadue alleges the FBI failed to search S-Drives for records responsive to his FOIA request. Finally, as if the previous information uncovered during oral testimony wasn't damning enough, this case is on hold as the court examines witness tampering claims against the FBI, which allegedly instructed a former agent not to testify at this trial. Apparently, even the FBI's former personnel can't be "searched" properly for information, not even by the courts. Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
It's been a while since we've had a week with this much crossover between the insightful and funny categories. First, we've got our first place comment for insightful that also came in third on the funny side — an anonymous response to James Comey's ongoing insistence that "American ingenuity is great, so I don't really believe all these computer science experts who say that it's 'too hard' to give the government access. I think they haven't really tried": American ingenuity is great, so I don't really believe all these FBI directors who say that it's "too hard" to catch all the bad guys. I think they haven't really tried. Meanwhile, our second place comment for insightful is also our second place comment for funny. It's another anonymous one, in response to that very same story: Sounds like James Comey would blame the mathematicians for not trying hard enough when they say they cannot make 2+2=5; For editor's choice on the insightful side, we'll continue the trend with two more anonymous comments. First up, it's a response to Spain's new police-state law outlawing protests and dissent: When you have to legislate respect towards authority, that's an admission that you no longer have it. Next, it's a comment about the new Hulu-exclusive South Park deal and Matt Stone's bizarre attitude towards technology, pointing out what moves like this usually mean for the art form as a whole: Well, they are leaving the field free for the next generation of cartoon creators to use the Internet to become even more famous than they were. The next generation several advantages, like free software for creating their cartoons, computers than can deal with the rendering, and a well known distribution channel called youtube. All the next generation of cartoonist have to worry about is telling their stories, and attracting their audience. Over on the funny side, our first place comment comes in response to India's Aadhaar identity number system, which aims for universal coverage of India's 1.2-billion people. Brent Ashley coyly called out our writer in "support" of such a system: Will the real Glyn Moody please stand up "Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+" So many identities. It would be so much easier if you just gave us your Aadhaar We've already had our second place funny comment above, so now on to editor's choice, where we start with Baron von Robber's response to the MPAA's attempt to argue that leaked Sony emails should remain privileged: If there is one thing Hollywood is good at is make-believe. Finally, since we started with a string of anonymous comments, we'll end with one more. This time it's in response to New Zealand's new and highly problematic law against cyberbullying which, if parsed correctly, has a highly appropriate name: "Harmful Digital Communications Act" Well named. Presumably "harmful" modifies "Act" rather than "communications". That's all for this week, folks! Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Five Years Ago This week in 2010, the Joel Tenenbaum continued to echo the Jammie Thomas case as a judge declared the damages to be unconstitutionally excessive. Meanwhile, a heated online debate about file sharing broke out between a teenager and a composer, with at least one music/media professor taking the right side. The never-normal Prince was making bold proclamations about the death of music and the internet, and Kara Swisher was taking his side, while we wondered just how many 'significant blows' against file sharing it would take to make any kind of difference. We were also fresh out of one of the DHS' big domain seizure rounds, and discovering that they wanted to go after The Pirate Bay and Megaupload as well. Snoop Dogg was sued for sampling while the band Men At Work was ordered to pay 5% of all earnings on 'Down Under' to the publisher of an old folk tune — great examples of the sort of creative interference that doesn't happen in the copyright-free world of food. At least 'Hollywood Accounting' was starting to lose in the courts, while the Washington Post was recognizing how crazy Summit Entertainment can be about Twilight IP. A lawsuit was underway that explored the boundaries of Creative Commons, while we explored some nuances of using free as part of a business model — just don't tell that to the financial columnist who lectured a bunch of little kids for running a free lemonade stand. Ten Years Ago The iPhone was still two years out, but the rumors that Apple would be entering the phone business in some big, mysterious way had already been long-circulating, and resurfaced this week in 2005. SOPA was still six years out, but the German recording industry was already onto the idea of poisoning the DNS to block file sharing. The age of MMORPGS was already well underway, and we discovered the strange new industry of real sweatshops farming virtual goods. And people were beginning to realize just how little digital memories fade (even if you want them to). The EU Parliament faced the question of software patents this week in 2005, and threw out the whole idea with a landslide vote. Back home, supporters of the Broadcast Flag were taking a sneakier approach to dealing with legislators and the public, obfuscating the facts like crazy. That kind of constant obfuscation is how you end up with people who completely fail to understand the difference between trademark and copyright. A lot of people were focused on 'mobile music'... to a fault, in fact. Some were just worried about mobile phone etiquette in the office. Others were tracking the predicted blog bubble and debating the legality of open Wi-Fi. Amidst all this, though, one huge and sad story swept through the world: the London subway bombings, which served as a tragic coming-of-age event for the internet as news media. Fifteen Years Ago It was very quiet on Techdirt this week in 2000, but apparently we didn't stop posting entirely for the 4th of July holiday, especially since Techdirt was getting a bunch of new traffic from being voted 'Cool Stop on the Internet'. Meanwhile, this was still a time of great uncertainty in Silicon Valley, but it was starting to sort itself out: the IPO market clearly hadn't died entirely and a bunch of upcoming IPOs were from companies that were actually profitable, even as major dotcom failures were hurting partners like PR firms and law firms. Unfortunately some entrepreneurs were pulling deceptive tricks to catch the eyes of VCs — perhaps lending some credence to UK residents, who trusted old names more than flashy new dotcoms. Tech adoption in the world was rapid and only accelerating. Mobile phone penetration kept blasting through more and more key threshholds, while we heard some of the first rumblings of the now-ubiquitous "camera phone". On the flipside, a lot of companies were struggling to accept and respond to online customer inquiries, while students were proving nervous about online college applications which felt a little too much like dropping your future into the void. Seventy-Eight Years Ago Film buffs, historians and fans of American culture will all feel a pang of sadness at mention of the Fox vault fire, which happened on July 9th, 1937 when canisters of nitrate film spontaneously combusted and destroyed the only copies of virtually every silent film Fox had made up to that date. It was a staggering loss for the history of cinema, and today we have only snippets and low-quality copies of a handful of the lost films — just enough to give us a taste of everything we're missing. Today, of course, there's absolutely no good reason for something like this to ever happen again: new films, music, books, photographs and other forms of content can be stored digitally in thousands or millions of places, such that nothing short of the total breakdown of society could wipe them out. And yet the sad truth is that we haven't taken full advantage of this capability: all over the world, committed archivists are being blocked in their efforts by copyright laws, DRM and a general ownership mentality. Right now there are old films rotting in vaults — or getting ready to explode in their canisters — while historians line up outside only to be denied entry. So in truth there are only two things that can destroy our cultural heritage in the digital era: the total breakdown of society, and copyright law. Permalink | Comments | Email This Story

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