posted 16 days ago on techdirt
Let me let you in on a little fantasy of mine: every once in a while, I like to imagine finding myself meeting the person who came up with the term "global warming." Why? So I can punish that person. Severely. See, what a term like "global warming" does is allow the guy in the cubicle next to me to point out of the window in Chicago and say, "If global warming is true, why is it snowing out again?" And that, friends, is something nobody should have to deal with. Climate change is the better term, of course, and the majority of the scientific community firmly believes that there is such a thing as man-made climate change. From there, we could have a discussion about how profound the effects of climate change are, whether they're actually better or worse, what other contributing factors might be in play in impacting climate, and all the rest, and those would be worthy conversations to have. What we shouldn't do is try to use the law to silence dissenting opinions, particularly if those opinions come in the form of scientific research. Yet, that is exactly what one scientific journal has allowed to happen after publishing an article on the link between those who deny climate change and those who believe in a more wide-ranging array of conspiracy theories. Frontiers originally published the piece last year, but took it down once the legal threats started rolling in. After an internal investigation found the peer-reviewed study to be sound, you'd have thought they'd re-publish it. You'd be wrong. Here's the statement about the retraction from the journal itself. In the light of a small number of complaints received following publication of the original research article cited above, Frontiers carried out a detailed investigation of the academic, ethical and legal aspects of the work. This investigation did not identify any issues with the academic and ethical aspects of the study. It did, however, determine that the legal context is insufficiently clear and therefore Frontiers wishes to retract the published article. The authors understand this decision, while they stand by their article and regret the limitations on academic freedom which can be caused by legal factors. In other words, a study that was judged by peers to be scientifically sound, has been disappeared over the murky threats of possible legal action. Let that sink in for a moment: science is undone because some people didn't like it. The author of the study resided at the time in the UK, where libel laws used to be of a construction specifically designed to fill the courthouses with all manner of craziness. Just recently, the UK has improved its libel laws to lessen the chilling effect of lawsuits from harming the progression of science. On top of that, the internal review at the journal found no issues with the study after making some minor alterations to appease the angry. Frontiers didn't see fit to re-publish, however. It is hard to imagine a set of outcomes that would have better remedied each issue flagged by Frontiers as a matter of concern. So it came as quite a shock to hear that the journal had decided to retract the paper ostensibly because “the legal context is insufficiently clear”. Look, if you're a climate change denier, that's cool. I don't agree with you, but feel free to write up your own research, publish any compelling information you can come up with, and all the rest. Consensus is never something I've been much interested in; I'd rather have multiple ideas to choose from and study. And, hey, if you think we never landed on the moon, Hitler was actually fighting the lizard-people now running world government, and 9/11 was all a holographic light-show designed to allow George Bush to fulfill his childhood dream of landing on an aircraft carrier in a flightsuit, have at it. I want you to let me know you believe in that stuff, because that's how I'll know to keep my future children away from you. But the other side of the coin is that we shouldn't be allowing your side to silence science, either. Fair is fair, after all. Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
Last fall, one of the big stories concerning NSA surveillance efforts was around the fact that it had spied on German Chancellor Angela Merkel's phone calls. While this didn't sound particularly surprising (spying on foreign leaders is kind of what you expect intelligence agencies to do), from a diplomacy standpoint, it certainly was awkward. In response to this, the White House agreed to stop spying on her, but it appears to have simply shifted to spying on everyone she talks to. Just a few days ago, new leaks showed how NSA partner-in-spying, GCHQ out of the UK directly targeted Merkel with its spying tools. Given all of this, Germany has now launched hearings into the spying done by the US, and apparently some lawmakers would like to bring Ed Snowden to testify in person: The hearings also have the potential to provoke further antipathy. Indeed, a number of lawmakers here are now demanding safe passage to Berlin for Snowden — who is living in self-imposed exile in Moscow — to testify before the eight-person committee. Any such move would likely outrage the United States, which is seeking to take Snowden into custody. Given the potential for angering Washington, analysts believe Merkel’s government will find a way to sidestep such a move. Nevertheless, the push to give Snowden his day here serves as another reminder that, even as the scandal appears to be dissipating in other parts of Europe, it remains at the top of the agenda in Germany. As noted above, this seems unlikely to happen and is almost certainly just for show. I would imagine that Snowden himself might not feel all that safe in Berlin either, given its close ties to the US, though potentially he could use a trip to Berlin as a launching point to go somewhere else (one issue he's had in seeking asylum is that many countries say you have to be present in that country before requesting asylum). Also, there's a separate issue that suggests much of this is just for show, which is that Germany's own intelligence agencies are likely involved in similar activities themselves. So while it makes sense from a political standpoint to stomp and scream about all of this, it's doubtful that Germany will do too much, for fear that its own intelligence practices will become public as well.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
More than three years ago, I wrote a post predicting that "the revolution will be distributed." In talking about a variety of attacks (mainly on Wikileaks), I pointed out that these were only going to inspire more and more interest in building an internet that is not nearly as centralized, but actually much more decentralized and distributed -- and that those defending the status quo still don't realize what an astoundingly big impact this will have. Soon after, we noted that the real battle lines for the future will be about distributed and open systems against centralized and closed systems. Movement in this arena has certainly been slow, but it's continued to move forward. The Snowden leaks of the past year have really only accelerated the process -- and interest in these kinds of projects. Over at the New Yorker, they have a pretty good status update on "the mission to decentralize the internet," though, unlike a big centralized project, that "mission" is done in a decentralized and open manner as well. The short summary might lead some to dismiss this whole trajectory -- as many of the initial attempts have failed to gain much traction. But that would be a huge mistake. One of the things that you will see, if you study the history of innovation, is that this is exactly how it always happens. The early projects may have some minor successes here and there, but are littered with failures. But the amazing thing about a rapidly changing world where people are doing things in a decentralized and open way is that each of those failures only contributes to the knowledge for future projects, in which more and more people are testing more and more things, getting closer to hitting that point in the "innovator's dilemma" curve, where the new systems actually serve people's needs much better than the old way. It often feels like these new systems suck at first, and it's easy to dismiss them as not being real competition for the established ways of doing things -- but the rapid rate of improvement, and the almost underground nature of many of these advancements means that when they suddenly catch on, they'll catch on quickly, and the folks who previously dismissed them as not being viable won't know what hit them. In fact, I've seen a few much more ambitious projects than what Joshua Kopstein discusses in his article, which suggests we're already well on our way to creating much more distributed systems that will make many of the debates we have today about the internet, internet governance, surveillance, copyright and much, much more totally obsolete. It's an issue I'm planning to explore in much more detail in 2014, so stay tuned...Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
Late yesterday, a superseding indictment was filed in Barrett Brown's case, knocking the charges down to just two, with the main one being that he somehow offered assistance to Jeremy Hammond, who had taken an earlier plea deal for the Stratfor hack. As many people suggested, this new indictment was almost certainly because of a plea deal, which has now been confirmed, as the court also granted a motion to seal the plea deal. The case against Brown has been something of a travesty from the beginning, as Brown was clearly never involved in the hack, but was involved in reporting on the hack and then involved in some rather misguided public ranting in which he threatened the feds if they came after him. As it became clear that the key part of the government's case hinged on the idea that copying and pasting a link found elsewhere was tantamount to hackking, the DOJ was forced to back down and dismiss most of the charges. Brown has been in jail for many months already, and it's likely that the plea deal will keep him in for a short while longer. Accepting a plea deal is pretty standard in these situations. If you're not familiar with how these things go down, when the DOJ is embarrassed -- as they clearly were in this case -- they almost always pressure defendants into agreeing to some minor plea deal, to save face for themselves. It takes the "risk" away from the defendant, and generally speeds up the process. It's the same sort of thing that happened to Thomas Drake. As we've said before, if you think plea deals like this are an actual admission of guilt, we suggest you watch the documentary Better This World, which shows you how the DOJ deals with cases like this, where they will do basically anything to get people to plead guilty.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
The space race created a lot of ambitious plans and designs for spaceships that never actually made it into space. While we're entering a new era of a space race, which includes commercial ventures and fragile alliances with certain countries, it's fascinating to look back at some government-funded projects that could have been taken to the next step. Would anyone even consider nuclear-bomb propulsion systems today? Here are just a few plans to ship people to the moon or Mars (or farther!) that are just gathering dust. Pictures of a secret Soviet lunar lander from the Moscow Aviation Institute shows an unsuccessful program to put a man on the moon. An orbit module and a landing module were constructed that look superficially similar to Apollo spacecraft, but only one cosmonaut would travel in this vehicle. [url] In the early 1970s, NASA had plans for a Reusable Nuclear Shuttle (RNS) that could travel back and forth to the moon. This nuclear-powered shuttle would never land on Earth, and if you approached it from the wrong side, you might get a fatal dose of radiation. [url] Project Orion was an ambitious plan to build a spaceship the size of an ocean liner and send it to Mars (and beyond)... using atomic bombs as propulsion. The Partial Test Ban Treaty of 1963 made it difficult for any practical work to continue on this kind of spacecraft design. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
Over the years, we've covered story after story after story of horrible practices by music collection societies. These organizations, often (though not always) granted a monopoly in countries to collect and distribute money to musicians, all too often seem to be riddled with corrupt practices, sometimes to extreme levels, such as in Spain, where the management of the collection society was accused of diverting nearly half a billion dollars away from actual artists to "friends" of the directors of the organization. While you would hope that these kinds of stories are rare, it appears that when you give one organization the power to collect and distribute money, temptation to cheat is quite strong. Even in organizations, like those in the US, where the practices are more strictly monitored, and generally considered above board, there are widespread stories of collusion and diverting money from small independent artists to big famous artists. A couple years ago, Jonathan Band put together a whitepaper that went through a very long list of examples, showing the parade of horror stories associated with collection societies around the globe. It appears that we have one more such story to add to the list, but there's at least some chance that some good will come out of this particular horror story. This one takes place down in Peru. Last time we had checked in on Peru, there were efforts under way to put in place very bad copyright legislation, copying the approach in SOPA to place copyright liability on service providers. It looks like that didn't take -- but what has happened is a scandal with that country's collection society, the Peruvian Association of Authors and Composers (APDAYC). In recent years, the Copyright Office had accumulated several investigations and even sanctions against the APDAYC, but little has this done to make matters change. In early March, there was confirmation that the APDAYC was applying questionable rules for measuring popularity and distribution of royalties among its associates, which persuaded the Indecopi Copyright Commission to order the temporary suspension of the current directors of the company. In response, the APDAYC called the decision “unfair and illegal” and announced that they were willing to exhaust all possible means of defense and had already filed an appeal which has put the decision on hold. Apparently this has created something of a scandal in Peru, and may have kickstarted some good copyright reforms focused on increasing user rights (too frequently mislabeled as "limitations and exceptions"). In fact, some of the proposals will put things like fair use on par with the ability to exclude granted by copyright law. Some of the proposals are also about reforming how APDAYC works, but it has also opened up the possibility of these other important public-focused reforms: As a result, there are currently thirteen bills pending that seek to change different parts of Legislative Decree 822, copyright law of Peru. Some of these bills propose changing specific rules on how collecting societies operate, stemming from the allegations in recent months against the APDAYC. Therefore, there is an intent to change the method of electing its governing board, banning re-elections, avoiding direct and indirect conflicts of interest, and the obligation of having to convincingly demonstrate their legitimate representation of works that they charge for. However, there are also proposals for even deeper reforms. Some proposals include new exceptions and limitations for domestic purposes, non-profit activities, libraries, small businesses and religious activities. Our copyright law, published in 1996, has been changed very few times and has almost always worked in favor of a more rigid and maximalist system. For the first time in eighteen years, there are many bills that seek to put the rights of users at the same level as those of the authors. Regardless of the outcome , the mere discussion of these issues is very necessary and welcome in a country that is moving forward in many cultural aspects and is eager to have better access to culture and knowledge. So perhaps yet another story of corruption in a collection society will actually help spur beneficial copyright reform, not just cleaning up questionable practices within such an organization, but also increasing the rights of the public that have been yanked away by over-aggressive copyright law.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
Anyone can make a mistake. The best solution is to acknowledge it, make amends if needed, and move forward, striving to learn from the experience. Far too many entities opt instead for bluster, obfuscation and intimidation, rather than deal with the consequences of their screwup. This is especially true for law enforcement agencies, who often use everything in their power to avoid having to admit anything went wrong, much less take responsibility for it. Here's what went wrong recently, to the detriment of a person who happened to be at the wrong place at the wrong time: his own house. A Benedict Avenue resident contends Huron County deputies forced their way into his home Tuesday without a search warrant. John Collins, who lives in one unit of a triplex home at 114 Benedict Ave., contends deputies got the wrong address when they executed the search warrant. The warrant was for the unit next to his, he said. The deputies handcuffed him and left him lying on the floor in his unit for 20 minutes after they realized the mistake, Collins said. Bad enough, but it gets worse. They tore through his home, he said, after cuffing him and forcing him to the floor facedown. “They searched my whole house, pulled stuff out my closet, broke a couple knick knacks” he said. One deputy also stepped on his tablet, shattering its screen. Another broke a ceramic decoration that once belonged to his now-deceased son, Collins said... Two deputies must have realized the mistake, Collins said, because they recognized him from their school days and had to have known he was not the man identified in the search warrant. The deputies went next door, he said. They made contact with the residents there — who were later arrested for drug trafficking. But six or so other deputies continued searching Collins’ home. How did the offending deputies rectify the situation after they realized they had both the wrong home and the wrong person? They uncuffed him and left, as if all of the above had never happened. Collins filed a complaint against the Huron County Sheriff's Department and asked for a copy of the search warrant. This is when the department went on full lockdown with some help from the local judiciary. Huron County Common Pleas Court Judge Timothy Cardwell issued a secret gag order March 21 to seal the search warrant. The gag order is also secret, Cardwell’s court clerk said after the Register asked for a copy of the order. Even Collins' complaint itself is now under seal, and the Sheriff's Department is circling the wagons, digging a moat around the circle and filling that moat with blustery statements and unanswered phones. First, the department flatout denied it had done anything wrong, calling Collins' story a "rumor" that was "highly inaccurate." And, who knows, maybe that would still be up for debate (citizen v. cop and all that), but then the department went and had the complaint sealed. And the warrant. And the gag order itself. It also issued a contradictory statement a few days later. "We finished a search warrant at 114-1/2 Benedict Ave," he said Thursday. "Our next move then was to check on an individual who may have a warrant in close proximity." Patrick said deputies "became aware of warrants for an individual in close proximity, which was next door." Now, the story has changed. According to this narrative, the department supposedly had a warrant for Collins' address but then decided to pursue a different warrant after tossing the first house for twenty minutes while its resident lay face down on the floor, handcuffed. Warrant news must travel really slowly in Huron County, though. The warrant that deputies "became aware of" during their search of the wrong address was issued in 2012. From that point on, the department (wisely, or at least as close to "wise" as any of this gets) decided to cut the lines of communication, as Matt Westerhold of the Sandusky Register notes in his description of the department's "Plan B." As Sheriff's Howard's spokesman, make yourself as unavailable and be unfriendly as possible to any reporter who has questions about the inconsistent story you're trying to make sure the public hears. Still, the department (via Capt. Ted Patrick) continues to insist that it did nothing wrong. But it's completely unwilling to provide any evidence to back that assertion up. Instead, it expects to just push its way through the mess it's created without ever having to explain exactly what went on that night, all with the implicit blessing of a local judge. Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
Last summer, we wrote about the case of Adel Daoud, an American teenager who was caught in one of the FBI's home grown plots. Even before the whole Snowden situation broke, late in 2012 when the Senate was "debating" (and I use that term loosely) the renewal of the FISA Amendments Act (which created Section 702, the key piece of the PRISM program), Senator Dianne Feinstein strongly fought for the renewal... using Daoud's case as an example of where Section 702 was a key component in stopping terrorism -- saying that it was necessary in "a plot to bomb a downtown Chicago bar." That describes the Daoud case, if by "plot" you mean Daoud and a bunch of undercover FBI agents creating a plan that was never actually going to happen. Feinstein's admission that the FISA Amendments Act was used in the Daoud case took his lawyers by surprise, since none of the evidence they'd been shown involved that. His lawyers then asked for access to the evidence that was obtained via the FAA. After the Snowden revelations (including how information obtained via FISA is often "laundered" to various law enforcement agencies to keep it out of court), his lawyers got even more aggressive. While their initial shot failed, in January, Judge Sharon Coleman decided that, assuming (as claimed) Daoud's lawyer had security clearance, he should be able to see the FISA related materials. As she noted: While this Court is mindful of the fact that no court has ever allowed disclosure of FISA materials to the defense, in this case, the Court finds that the disclosure may be necessary. This finding is not made lightly, and follows a thorough and careful review of the FISA application and related materials. The Court finds however that an accurate determination of the legality of the surveillance is best made in this case as part of an adversarial proceeding. The adversarial process is the bedrock of effective assistance of counsel protected by the Sixth Amendment.... Indeed, though this Court is capable of making such a determination, the adversarial process is integral to safeguarding the rights of all citizens, including those charged with a crime. “The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” It won't take a psychic to guess what happened next. A few days ago, the DOJ appealed this order explaining a theoretical parade of horrors that might happen if a lawyer with security clearance were given access to the evidence against his client. But a court’s preference for the adversarial process—a circumstance that exists in all litigation—cannot serve as a basis for declaring that disclosure of FISA materials is “necessary to make an accurate determination of the legality of the surveillance” under the statute. Congress envisioned that FISA litigation be handled ex parte, in camera, with disclosure the rare exception.... Yet the district court’s reasoning would turn that regime on its head. A court could always say that an adversarial proceeding would be the “best” way to determine the legality of the FISA collection. To compel disclosure on that basis would trivialize FISA’s necessity standard and work a sea change in FISA litigation. Right. How dare anyone think that it might be reasonable or sensible for courts to make sure that lawyers representing clients who were involved in plots created by the FBI actually get to see the secret evidence that the FBI got via a FISA court order? Why, due process might break out! And we're the US government. Can't have that! Furthermore, the DOJ is positive that the courts simply don't understand the security issues, and the judge shouldn't worry about such things, because the smart people in the executive branch can decide for themselves which classified surveillance efforts are appropriate to reveal: The district court also misjudged the damage to national security that could result from disclosing the FISA applications and orders, even to cleared defense counsel under a protective order, as substantiated by declarations from the Attorney General of the United States and the Acting Assistant Director of the FBI for Counterterrorism. A “need-to-know” must exist before classified information may be disclosed, even to those who possess a security clearance, and that essential prerequisite is present only where disclosure to defense counsel is “necessary” for a court to adjudicate the legality of the FISA collection. When viewed under the correct “necessity” standard, nothing about the challenged FISA collection justifies the district court’s outlier decision. As the classified record makes clear, the ex parte process that the statute provides readily permits an accurate determination that the FISA collection was lawful, and the defendant’s allegations to the contrary are unfounded. A court reviewing the applications would have no difficulty determining that they established probable cause to believe the target was an agent of a foreign power and that a significant purpose of the collection was to obtain foreign intelligence information. This all seems... completely bogus. But what makes it especially bogus is that after it came out that the Solicitor General, Donald Verrilli made false statements to the Supreme Court about whether or not defendants in such cases would be told about evidence collected via the FISA process, the DOJ promised that it would start letting defendants know when the FISA process was used in the investigation. Yet, what the DOJ's response here shows, is that even when that's the case, the DOJ will do everything possible to keep the details of what was done via FISA (and whether or not it was legal or appropriate) out of the case.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
While not entirely unexpected, it's good to see that the Senate Intelligence Committee has finally voted to declassify the key parts of the massive 6,300 page report on the CIA's torture program. As we've been discussing for months, this report, which cost $40 million and has been progressing for years, has been the subject of a pretty big fight from the CIA. It was expected that the Intelligence Committee would approve declassifying the executive summary -- which itself runs 480 pages -- along with "20 findings and conclusions" from the report. It seemed clear that the Democrats on the committee would support declassification (and President Obama has supported it as well), though it was unclear if Republicans would. Yesterday, we noted that Republican Senator Susan Collins announced her support for declassification, while also directly calling the CIA's program "torture," -- something that others on the committee have been afraid to do. What's a bit surprising is that the vote wasn't even close: 11 to 3 in favor of declassifying the report, and even the highest ranking Republican, Saxby Chambliss voted in favor of declassification, though he did so under what appears to be a bit of a protest. His statement about the vote certainly sounds like sour grapes, rather than strong support: "Today, I voted in favor of sending a portion of this majority report to the executive branch for declassification. Despite the report’s significant errors, omissions, and assumptions—as well as a lot of cherry-picking of the facts—I want the American people to be able to see it and judge for themselves. In addition, this study has been an expensive, partisan distraction that has hindered the committee’s ability to provide oversight of current national security issues, including NSA reforms, cybersecurity, Russia, Syria, and Afghanistan. I hope we can put this behind us and focus on the national security challenges at hand. While I agree with some of the conclusions in this report, I take strong exception to the notion that the CIA’s detention and interrogation program did not provide intelligence that was helpful in disrupting terrorist attacks or tracking down Usama bin Ladin. This claim contradicts the factual record and is just flat wrong. Intelligence was gained from detainees in the program, both before and after the application of enhanced interrogation techniques, which played an important role in disrupting terrorist plots and aided our overall counterterrorism operations over the past decade." Another Republican on the committee, Tom Coburn also called it torture, though he insisted that the CIA did it in "good faith" and voted "present" rather than in favor of declassification. “I agree that some of the more extreme Enhanced Interrogation Techniques (EITs) could be considered torture, and that in the future this country should not rely on such techniques. Yet, at the time, they had legal sanction. Readers of the report will make their own judgments about how they were implemented. I believe that the CIA acted imperfectly, but in good faith and under great urgency to prevent an attack from a little understood enemy that had brought devastation to our shores." Feinstein was willing to call it "a stain on our history that must never again be allowed to happen" but refused to call it torture. Of course, the "fight" is not over yet. There will certainly be a fight over how the declassification is handled and the public won't see the report for many, many months. Senator Mark Udall, who has been a big critic of the intelligence community for a while, has asked that the CIA not handle the declassification itself, knowing that it will over-classify: "Following today’s historic vote, the president faces what I believe should be a straightforward question. He can defer declassification decisions to the CIA — which has demonstrated an inability to face the truth about this program — or pass this authority to the Director of National Intelligence or hold on to the redaction pen himself. The president needs to understand that the CIA’s clear conflict of interest here requires that the White House step in and manage this process." Of course, throughout the past few weeks, more and more details of what's in the report have been leaked to the press (including some more leaks today, which we'll try to write about shortly)...Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
The folks at the NSA and their defenders used to use the argument that we were on the verge of a "cyber pearl harbor" in their constant attempts to change laws to give the NSA and others in law enforcement and intelligence more powers to spy on everyone (the argument being that they would do this in order to "protect" us). But... it's beginning to look like the "cyber pearl harbor" wasn't an attack from foreign hackers... but from the NSA itself. Eric Schmidt recently noted that the NSA's actions were a hostile "attack" and it appears that many Americans agree. A new poll found that nearly half of American adults who responded have changed some form of online behavior because of the NSA stories, and they think a lot more carefully about where they go, what they say and what they do online. We've pointed out (since the Snowden revelations began) that this was going to have a negative impact on the tech industry, but much of the concerns was from overseas users. However, it's clear that it's impacting how Americans view their online habits as well: When it comes to specific Internet activities, such as email or online banking, this change in behavior translates into a worrying trend for the online economy: over one quarter of respondents (26%) said that, based on what they have learned about secret government surveillance, they are now doing less banking online and less online shopping. This shift in behavior is not good news for companies that rely on sustained or increased use of the Internet for their business model. Importantly, the study also found that, contrary to the claims of many, the Snowden revelations aren't just being followed by security-obsessed techies. While the general public may not be keeping tabs on all the details, they are getting the basics. And in case anyone is tempted to think that this is a narrow issue of concern only to news junkies and security geeks, let me be clear: according to this latest survey, 85% of adult Americans are now at least somewhat familiar with the news about secret government surveillance of private citizens’ phone calls, emails, online activity, and so on. Once again, it appears that the federal government, and the NSA in particular, have created a huge cost for innovation and economic growth, while having almost no real benefit to show for it.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
We've written about Bridgeport many times in the past, as the quintessential example of a "sample troll." The company would acquire the copyrights to certain classic songs (sometimes by very questionable means) and then sue various musicians that sampled those classic songs in some manner. While the whole process has been sickening, the most troubling aspect of Bridgeport has to be the horrible ruling in Bridgeport Music, Inc. v. Dimension Films -- a ruling so ridiculous and problematic that it makes copyright nerds angry to even think about it. The district court said that the sampling in that case was not infringement, but the appeals court ruled that sampling was against the law, and made a bunch of claims that have no basis in copyright law. The most troubling line being: "Get a license or do not sample. We do not see this as stifling creativity in any significant way." The specific ruling was about whether or not the infringement should be rejected as being de minimis -- an integral part of copyright law that has made it clear that a tiny bit of copying is fine (note that this is unrelated to fair use). The court's argument against de minimis use was basically nonsensical: "Even when a small part of a sound recording is sampled, the part taken is something of value." But whether or not it's "something of value" is not really the issue. Either way, the ruling was a key one in sending chills through the music world when it came to sampling. The court only addressed de minimis use, leaving aside the question of fair use in sampling, but almost no one has been willing to test fair use when it comes to sampling in court. One general theory is that almost everyone generally has "too much to lose" if the ruling comes out in a particular way. The recording industry, of course, tends to fight fair use at every turn, so even though the RIAA labels are the main beneficiaries of widespread sampling, they've had little interest in expanding fair use jurisprudence (and, in fact, constantly attack fair use as a concept). So it's interesting to see a new sampling case hit the courts -- and one where both de minimis and fair use is being raised (this time, thankfully, not involving Bridgeport). The case involves the estate of Notorious B.I.G. filing for declaratory judgment that a particular sampling effort does not infringe. The estate is happy to admit that the song, "The What," released in 1994, included a "sample" from the song "Can't Say Enough About Mom" by Lee Hutson. But notes that it was clearly both de minimis and fair use: On information and belief, the Recording merely samples two non-sequential tones from Can't Say Enough, and it has been adapted, modified, and supplemented substantially from its original form. The use has not violated any valid copyright interest held by Defendant, and it is both de minimis and fair use. The estate is also arguing that the attempts by Hutson to demand licensing fees is barred both by the statute of limitations and laches (i.e., waiting too long to file the claim). The statute of limitations issue comes up a bunch in music copyright cases, and it's a bit of a mess. Technically the statute of limitations is three years, but there's disagreement as to what that three years really means. Is it three years from the date the song was released? Or three years from when someone found out about the alleged infringement? Or, is it just from today going back three years to cover the "most recent three years" of infringement? It's entirely possible that the court might find that the statute of limitations or laches claims are enough to grant declaratory judgment, so there might not be a ruling about the de minimis or fair use issues. But it sure would be nice to have something other than the crazy Bridgeport ruling to point to when it comes to the question of sampling and copyright.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
A few weeks ago, I wrote about the troubling reports that Homeland Security's ICE division had teamed up with domain registrar/hosting company GoDaddy to help censor a Mexican political protest site. GoDaddy had suspended the domain, and when the site's administrators asked why, they were sent information saying that it was from a "Special Agent Homeland Security Investigations." Homeland Security Investigations is part of the new branding for ICE, but it's still the same old ICE. The contact email they were told to reach out to was an @ice.dhs.gov email address. Given all of this, I filed a Freedom of Information Act request via MuckRock, a service I've used many times in the past to file FOIA requests, without issue. A standard part of doing so, is to ask for a fee waiver. Under FOIA, government agencies can charge for the requested work, but they're supposed to waive the fees if the request is for the public interest or reporting. Basically, the only times they're not supposed to waive the fees is when it's for some sort of (non-reporting) commercial purpose (e.g., a company looking to sell a database that it collects via FOIA requests). So I was a bit surprised to get back a notice saying that ICE had rejected my fee waiver request. There are very limited reasons for why a government agency can reject such a request, and my request should absolutely have received the waiver. So, I read the waiver rejection letter to find out why, and was... well... a bit surprised to see this: Specifically, after listing out the six factors, none of which should exclude me from getting the waiver, it says: Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because . "Because ." Well, that is kind of useless, no? Either way, the rejection is totally bogus, but to claim that the reason is... " ." is sort of the icing on the cake. They also claim that my "fee waiver request has failed to satisfy each of the required factors." Except that's not true. I actually satisfy all of the factors. Let's take a look. Whether the subject of the requested records concerns "the operations or activities of the government." Why, yes it does. I'm trying to find out why the US government requested GoDaddy censor a political protest site. Whether the disclosure is "likely to contribute" to an understanding of government operations or activities. Again, yes, of course it will, because I'll be reporting on the results, contributing to the understanding of why ICE felt the need to try to censor political speech in Mexico. Whether disclosure of the requested information will contribute to the understanding of the public at large, as opposed to the individual understand of the requestor or a narrow segment of interested persons Again, since the request is for reporting purposes, and I'll be reporting on the results, this should once again be in favor of the waiver. Whether the contribution to public understanding of government operations or activities will be "significant." I would think it would be. After all, we're talking about a government agency censoring a foreign website for no clear reason. That seems rather significant. Whether the requestor has a commercial interest that would be furthered by the requested disclosure Nope. And, honestly, this is the main one that they normally use to reject fee waivers. It clearly does not apply here. Whether the magnitude of any identified commercial interest to the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requestor. Again, I have no commercial interest here, but a journalistic one. And, for those who claim that there's a "commercial interest" as a news site, that is specifically exempted from the FOIA definitions of commercial interest. The DHS's own rules note that, when it comes to journalists: "a request for records supporting the news-dissemination function of the requestor shall not be considered to be used for commercial use." And, again, I've done a bunch of FOIA requests and never had a single fee waiver rejected before. In other words, none of the conditions set forth as reasons why ICE can reject my fee waiver request have been met, and yet ICE still rejected the request -- and rather than explain why (perhaps because they can't), they said "because ." Yay, government. I'll be appealing this decision shortly, but it hardly inspires much confidence in the FOIA department at ICE to actually be of any help at all in this matter.Permalink | Comments | Email This Story    

Read More...
posted 16 days ago on techdirt
The Associated Press has quite an astounding story this morning that reads like a Hollywood script (in fact, I'll be amazed if it hasn't been optioned by a movie studio within days) concerning how the US government's humanitarian organization, USAID, secretly built a "Cuban Twitter" called ZunZuneo, via a secret budget that was earmarked for work in Pakistan, and how this effort sought to effectively undermine the Cuban government. This is the kind of thing you'd expect the CIA to work on, not USAID, which has a different reputation. In fact, now that this story is out, it seems likely to undermine USAID actions around the globe, as governments will insist (accurately) that it's difficult to distinguish if its mission is truly humanitarian... or more aligned with intelligence operations. The story laid out by the Associated Press is long and complicated, full of bumbling moves by various US government officials, who appeared to accidentally build a super-successful social media project in Cuba in near total secrecy... and then freak out about what they were going to do about it. The crazier parts involve how those involved basically sought to set up a shell corporation to run the thing, after it was already built, while also raising money (and making revenue) to separate it from US government funds... all without letting the new management of this shell company know about the origins of the service. As you might imagine, that was a rather delicate operation. How do you have the US government build a successful social network in secret, and then extricate itself without the new management knowing what's going on. "The ZZ management team will have no knowledge of the true origin of the operation; as far as they know, the platform was established by Mobile Accord," the memo said. "There should be zero doubt in management's mind and no insecurities or concerns about United States Government involvement." The memo went on to say that the CEO's clean conscience would be "particularly critical when dealing with Cubacel." Sensitive to the high cost of text messages for average Cubans, ZunZuneo negotiated a bulk rate for texts at 4 cents a pop through a Spanish intermediary. Documents show there was hope that an earnest, clueless CEO might be able to persuade Cubacel to back the project. Mobile Accord considered a dozen candidates from five countries to head the Spanish front company. One of them was Francoise de Valera, a CEO who was vacationing in Dubai when she was approached for an interview. She flew to Barcelona. At the luxury Mandarin Oriental Hotel, she met with Nim Patel, who at the time was Mobile Accord's president. Eberhard had also flown in for the interviews. But she said she couldn't get a straight answer about what they were looking for. "They talked to me about instant messaging but nothing about Cuba, or the United States," she told the AP in an interview from London. The story is full of somewhat astounding twists, turns and subplots (seriously, go read the whole thing). Eventually, it appears that once people realized there was no way to separate out the US government, the service just sort of suddenly disappeared, though it was made to look like Cuba was blocking it (the story is a bit unclear if Cuba actually blocked it, but it's clear that the US more or less just decided to walk away and drop the project). Either way, it's unlikely this story is over. Beyond the implications for USAID workers around the globe right now, officials in the US government are concerned about why USAID appeared to be involved in what looks a lot more like an intelligence operation (the program didn't just let Cubans talk to each other, but also sent them various questions that touched on their views on democracy and the government, and then collected the various answers). "On the face of it there are several aspects about this that are troubling," said Sen. Patrick Leahy, D-Vt. and chairman of the Appropriations Committee's State Department and foreign operations subcommittee. "There is the risk to young, unsuspecting Cuban cellphone users who had no idea this was a U.S. government-funded activity. There is the clandestine nature of the program that was not disclosed to the appropriations subcommittee with oversight responsibility. And there is the disturbing fact that it apparently activated shortly after Alan Gross, a USAID subcontractor who was sent to Cuba to help provide citizens access to the Internet, was arrested." Similarly, the report details how someone on the Senate Foreign Relations Committee was completely kept in the dark about this, and confronted USAID, who "refused to provide operational details." The report also notes concerns that this effort violated the US-European data protection agreement (though, to be fair, EU countries have been insisting that this is violated regularly, in part because it is). Either way, this is quite a story that's well worth finding some time to read. It would be an entertaining story were it fiction. As a real story, however, it seems like yet another story where US meddling in foreign countries eventually leads to a lot more problems than benefits. Helping to spur greater communication and information sharing among the public is a good thing -- the US State Department has worked on a number of projects to enable more widespread internet access among citizens in various authoritarian countries -- but going so far as to build a service in secret, which is also then used to spy on the individuals in that country, seems to only create additional headaches.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
We recently wrote about the emergence of NSA-like spying platforms for mobile devices. Ostensibly designed and marketed for worried mothers and/or employers to monitor their children and/or employees, reports instead indicate a more nefarious use employed by jealous men and women looking to spy on their would-be significant others. In other words, technology somewhat similar to what the NSA employs generally is being used quite specifically by the unhinged, who appear to have taken our spy agencies' example to heart. If some recent reports are to be believed, most of us have probably underestimated the problem instead of blowing it out of proportion. MobiStealth, the product that received such rave reviews online, was used by convicted murderer Simon Gittany to read his girlfriend Lisa Harnum's text messages, one of several forms of control and surveillance he subjected her to. The product's website encourages potential buyers to ''get the answers you deserve''. When Gittany learned of Ms Harnum's plan to escape the abusive relationship in July 2011, he threw her off the balcony of their 15th-floor Sydney apartment. Down Under, at least, it would appear this wasn't an isolated incident. In a Victorian study last year, 97 per cent of domestic violence workers reported that perpetrators were using mobile technologies to monitor and harass women in domestic situations. Two-thirds of the 46 victims interviewed said they were made to feel like they were being watched or tracked, yet less than half told somebody about it. While that first number is certainly shocking, I'm actually far more intrigued by the second set of statistics. Less than half of domestic violence victims who felt like they were being tracked on their mobile devices didn't say anything to anyone? This reeks of resignation when what might be needed most is a good dose of recalcitrance. While it may be difficult to directly point the blame for these domestic violence perps at intrusively spying government agencies, I wonder if the same could be said for the victims' reluctance to do anything about being spied on. If we have to accept a world in which our own governments, or foreign governments, are going to spy on us, perhaps it makes us less likely to push back against spying that is of a domestic nature? I'm not sure, but the way this technology is progressing and the price at which it is offered likely means that stories for this kind of thing are in their infancy stages. Mobile phone spyware costs as little as $6 a month and needs to be installed physically on a phone once for it to operate without the owner's knowledge. Shane Johnson, a spokesman for Sydney company Spousebusters, said it sold ''hundreds'' of GPS trackers, hidden cameras, listening bugs and spyware programs a year. The company asks no questions of purchasers and takes no responsibility for people using legal products to commit illegal acts. And the perps can claim all along they're only following the NSA's example? Oh, this should work out well... Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
Over a decade ago, we first wrote about how manga and anime in Japan was thriving in part due to the rise of fan fiction (even for-profit fan fiction) and the fact that the lawyers for official publications didn't try to shut it down. Instead, they realized that such fan fiction was often quite good for the original, official versions of the products. Over the years since then, we've had a bunch of similar stories. Rather than trying to hit fans with copyright infringement claims, publishers were willing to embrace those fans and it helped everyone in the industry. However, many in the fan fiction -- dojinshi -- market in Japan are now worried that the Trans Pacific Partnership (TPP) agreement may now kill off that happy, mutually beneficial (even if technically infringing) setup. At issue is that the TPP may require more stringent enforcement of copyrights, even when the copyright holder has no problem with what's happening. Usami and other creators of fan fiction, however, could face the possibility of legal prosecution as copyright violators in the future, depending on the outcome of TPP negotiations. Some countries are apparently demanding that Japan clamp down on knock-off and pirated works in the intellectual property arena, even if the copyright holder does not object to it. The more cynical among you might point to the fact that the dojinshi market's proof that copyright maximalism can be counterproductive, and allowing free flowing "infringement" among fans creating derivative works, so bothers some people that they feel the need to kill off such an important counter-example to the maximalist narrative. However, those involved in the space in Japan recognize that not enforcing copyright law has been better for everyone: Many experts say the Japanese anime and manga subculture has thrived due in part to a tacit understanding in society that fan fiction should be accepted to a certain extent to allow room for amateurs to shine. The recent Comic Market is one indication of the level of demand for dojinshi and other works of fan fiction. A total of 520,000 visitors attended--many of them teenagers or in their 20s--while about 35,000 groups sold dojinshi and other related goods. Some are even worried that it might extend to cracking down on cosplay: “The creation of derivative works has helped the expansion of the market (for anime and manga), a rich gray zone built based on a gentleman’s agreement between original artists and amateur creators,” [lawyer Kansaku Fukui] said. If the copyright law was enforced without a formal complaint, not only dojinshi, but also parodied creations of movies and literature, could be subject to a crackdown, Fukui said. He added that even cosplayers could be a target, especially if their costumes were elaborately made and if a video of the costume play was uploaded on the Internet. “If people think about the possibility of coming under questioning, they might cower,” he said. I would imagine that the various negotiators of the TPP probably aren't all that familiar with anime, manga or cosplay -- but pissing off fans of all three probably isn't particularly wise.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
One of the most disturbing aspects of Edward Snowden's leaks is that they reveal the total surveillance state, where the authorities monitor everything, and know everything, is no mere abstraction. Where before such a vision was the domain of tinfoil-wearing, conspiracy theorists, today it is only a couple of "hops" from reality. Given that the enabling technology is available, you might have expected there would already be a few nations that have moved close to the total surveillance state; but you might be surprised to learn that one of them is Ethiopia. A new and chilling report published recently by Human Rights Watch, entitled "They Know Everything We Do: Telecom and Internet Surveillance in Ethiopia," explores the evidence in detail (pdf): The Ethiopian government has maintained strict control over Internet and mobile technologies so it can monitor their use and limit the type of information that is being communicated and accessed. Unlike most other African countries, Ethiopia has a complete monopoly over its rapidly growing telecommunications sector through the state-owned operator, Ethio Telecom. This monopoly ensures that Ethiopia can effectively limit access to information and curtail freedoms of expression and association without any oversight since independent legislative or judicial mechanisms that would ensure that surveillance capabilities are not misused do not exist in Ethiopia. Here's what that means in practice: Websites of opposition parties, independent media sites, blogs, and several international media outlets are routinely blocked by government censors. Radio and television stations are routinely jammed. Bloggers and Facebook users face harassment and the threat of arrest should they refuse to tone down their online writings. The message is simple: self-censor to limit criticism of the government or you will be censored and subject to arrest. Self-censorship is a real threat in countries with widespread surveillance -- even in those not as far down the path as Ethiopia. Indeed, self-censorship is probably one of the first negative consequences of any increasingly-pervasive surveillance regime. Information gleaned from telecom and Internet sources is regularly used against Ethiopians arrested for alleged anti-government activities. During interrogations, police show suspects lists of phone calls and are questioned about the identity of callers, particularly foreign callers. That shows concretely how "mere" metadata can be used against people, and why gathering it is so worrying. But the Ethiopian government does not limit itself to gathering information from existing sources: Some high-profile Ethiopians in the diaspora have been targeted with highly advanced surveillance tools designed to covertly monitor online activity and steal passwords and files. It does this thanks to technology acquired from the West -- the report mentions Gamma/FinFisher and Hacking Team, both European companies. Human Rights Watch concludes its summary as follows: Ethiopia should not only ensure that an appropriate legal framework is in place to protect and respect privacy rights entrenched in international law, but also that this legal framework is applied in practice. Companies that provide surveillance technology, software, or services should adopt policies to ensure these products are being used for legitimate law enforcement purposes and not to repress opposition parties, journalists, bloggers, and others. Sadly, neither of those seems very likely to happen, as total surveillance continues to spread around the world, passing from a vague dystopian fear into a mundane fact of life. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
Really big, world-changing ideas are not that easy to come by... but they're even harder to implement. Still, it seems like a good first step is to devise ways to collect good ideas and then try to give funding/resources to help develop them into reality. Crowdsourcing this process is a somewhat recent trend (or fad) that gathers wisdom from a community, and there are more than a few projects that have adopted this method for collecting inspiring ideas. Here are just a couple more challenges that you might contribute to. The Buckminster Fuller Institute has an annual challenge that will award $100,000 to support strategies that will "make the world work for 100% of humanity, in the shortest possible time, through spontaneous cooperation, without ecological offense or the disadvantage of anyone." The deadline for submission is April 11th, and the prize will be awarded in November. [url] Contests/challenges seem to be an effective way to kickstart innovation and maximize resources for investment. A study of thousands of software contests concludes that the scope and uncertainty of a problem should be explicitly addressed when designing a challenge in order to optimize the incentives and performance of any innovation tournament. [url] The AI XPRIZE is looking for some kind of artificial intelligence that can get a standing ovation for delivering a TED talk. The rules are not set in stone yet, but it looks like the winner will be the best lying bot ever created -- or else it might present an irrefutable criticism of humanity itself. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
Among the worst of the worst patent trolls out there, Macrosolve had quite a reputation -- described as "worse than Lodsys" it took a sue tons of companies first, demand settlements later approach, based on an obviously ridiculous patent (7,822,816) for a "system and method for data management" that the company insisted, hilariously, covered any mobile app that used online forms where users could submit data. Yes, forms. For a patent filed in 2003 and granted in 2010. In a bit of a "cute" move, the company tried to pretend it wasn't a troll by doing a deal with... Donald Trump, which apparently suckered some in the press to claim that it wasn't a troll. But it is a troll, and ended up filing over 75 lawsuits in (of course) the eastern district of Texas, following up the lawsuit filings with demands for licenses. In typical troll behavior, it made the licensing terms much cheaper than actually fighting the lawsuit (even if one were to win), so nearly all of the companies sued sucked it up and settled. However, Macrosolve included electronics retailers Newegg in its bundle of lawsuits, and, as we've noted in the past, Newegg has taken a clear "screw patent trolls" stance, where it absolutely refuses to negotiate with trolls. Newegg has announced today, somewhat gleefully, that when faced with actually having to go to trial, Macrosolve has "folded like a cheap suit" dismissing its lawsuit against Newegg (and Geico, the one other company who fought back). Lee Cheng, Newegg’s Chief Legal Officer stated, “In a sense, we are disappointed because we were robbed of an opportunity to prove in court that Macrosolve was and is nothing more than a serial, shameless abuser of patent rights, with a poor-quality patent that has not even survived its first reexamination. Macrosolve failed to create products and services that real customers found valuable, whose principals decided to turn it into a corporate parasite. It is not a coincidence that faced with its first real opposition in Newegg and Geico, Macrosolve folded like a cheap suit, and dismissed its lawsuits against all defendants.” Cheng continued, “I could never figure out how Macrosolve would not be required to publicly and timely disclose the fact that its primary asset, the ‘816 Patent,’ was the subject of a final rejection in reexamination or that it dismissed almost all pending lawsuits with prejudice. What was most bizarre was how Macrosolve’s stock price traded up the day that the USPTO issued the final rejection of the ‘816 Patent’. Curious. Definitely worth someone’s attention.” Yes, Macrosolve is a "public" company, in that it's an over-the-counter penny stock, so not only was the company looking to abuse the patent system to cash in, it appears that perhaps it was abusing the public equity markets as well. Either way, by demanding much less than it would cost to fight it in court, the company took in at least $4 million in settlements. Newegg is hoping to get back some of its own costs, though it expects Macrosolve to do everything possible to avoid that: Newegg intends to seek all of its fees and costs against Macrosolve for its abusive litigation tactics. However, it is highly likely, in yet another example of how the patent law system is unfairly tilted against defendants, that even if Newegg were to prevail in court in its fee motions, that Macrosolve will simply file for bankruptcy after collecting and distributing over $4M in “licensing” revenue to its principals and its contingency fee lawyers. Congress is, once again, promising to pass new legislation to stop patent trolls, and here's yet another example (in a very long list of them) why help is needed now.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
A few weeks ago, we wrote about how the Aereo case, which will be heard by the Supreme Court in a few weeks, is likely to have a huge impact on the future of cloud computing, and went into detail to explain why. The primary issue is that, under copyright law, what Aereo is doing is effectively indistinguishable from what most cloud computing services do. However, a number of folks who really seem to dislike Aereo continually insist that the case will have no impact whatsoever on cloud computing. Variety's Todd Spangler recently wrote a typical version of this argument, basically waving off the issue based on the idea that Aereo more or less feels different from Dropbox. But that fundamentally ignores the actual copyright issues at stake. Matt Schruers has a blog post up at the Project Disco blog pointing out why this "cloud denialism" by the anti-Aereo crowd is both dangerous and misleading. It includes the money line that a bunch of folks have been quoting: The only unifying characteristic I’ve discerned among the deniers is that none of them are actually in the business of providing cloud services. Indeed, a bunch of companies and organizations that actually are involved in cloud computing businesses have weighed in on the case, warning how a ruling against Aereo might create serious problems for their businesses. The issue, again, is very narrowly focused on what is a "public" performance when transmitting a single copy of a file to an individual in their home. The problem with the broadcasters' position is that they want to declare that transmitting multiple copies of a single work magically makes something "public," even if each transmission is a unique copy that is transmitted only to the requesting subscriber. But that's the same way cloud computing works, and it would create a massive headache. And, honestly, while Schruers has that wonderfully quotable line above, what's much more scary about the "cloud denialists" is they fundamentally don't seem to understand copyright law, and are trying to twist it because they just hate what Aereo is doing. I am reminded of law professor Eric Goldman's comment from a few years ago, that there are really two different copyright laws -- normal copyright law and "file sharing copyright law," where what's actually stated in copyright law gets thrown out the window because OMG EVIL PIRATES! As Goldman points out, "it's a mistake to think those two legal doctrines are closely related." As Schruers notes in his piece, it seems pretty clear that everyone recognizes Aereo is architected to create a private performance, not a public one, it's just that folks on the copyright maximalist side of the scale don't like that, and that leads them to want to just pretend the law says something different than it does: Ultimately, when Spangler and others deniers dismiss the cloud-related issues and condemn Aereo’s complex technology as “a Rube Goldberg-like contrivance,” it strikes me as an implicit concession: ‘yes, Aereo’s technology is indeed designed to facilitate private performances, but since Aereo could also be engineered other ways, where the performance would be public, we’re just going to expand the definition of what’s public in order to sweep in Aereo too.’ This is a chillingly activist interpretation of copyright law. The boundary between public performances and private performances determines what copyright does and does not regulate. It’s why you don’t need a license to sing in the shower, but you do to sing on stage. It’s why you don’t need a license to put your music collection in the cloud, but you do if you want to launch a commercial streaming service. Redrawing that boundary in real time to ensure that Aereo doesn’t disrupt the way consumers now receive free over-the-air television is not a prescription for economic success. Of course, this sort of issue has been present throughout the Aereo case. Pretty much everyone concedes that Aereo's technical setup is insane -- but it's insane because that's what the law requires to stay within its bounds. We've seen many, as described above, try to use this against Aereo. Multiple comments on various Aereo posts have people insisting that the convoluted setup of Aereo's technology (individual antenna for each subscriber, distinct copies of the same programming for each user) shows that they're trying to skirt around the law. However, it seems rather obvious that it's the exact opposite. There is no logical reason to have this kind of setup except to be within the law. Aereo's "insane" technological setup is much an indication of why it's legal -- and how screwed up copyright law is that this is the only legal way to build such a system. Furthermore, for those who insist that Aereo is unrelated to cloud computing because it doesn't look like what they think cloud computing looks like, Schruers points out that one of the most important rulings for cloud computing -- the Cablevision remote DVR case -- didn't "look" like a cloud computing case either, but it helped spur massive investment in cloud computing by clarifying some key legal issues -- much of which an anti-Aereo ruling might now destroy. Notably, the “remote DVR” system in Cablevision, a 2008 case upon which much of the reasoning in Aereo has been based, and which provided legal certainty that ushered in a wave of extraordinary investment in cloud computing, didn’t look anything like Dropbox either.  Even though Cablevision’s remote DVR didn’t look like a cloud storage service, however, investors quickly concluded that the decision’s reasoning had legitimized storing users’ files in the cloud, and streaming them back. The broadcasters and their supporters don't want people to associate Aereo with cloud computing mainly because they hate what Aereo stands for. But their failure to understand both cloud computing and basic copyright law might seriously hinder important innovations well into the future.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
This is what happens when you ignore the public. Are you happy, We the People? WE PETITION THE OBAMA ADMINISTRATION TO: Respond to all Whitehouse.gov petitions that get over 100k signatures within one month. Whitehouse.gov petitions were intended to give the public a voice. The idea is that if more than 100,000 people all feel strongly enough about something to hand over their home address and personal email to the government and complete a nearly impossible CAPTCHA, then the President of the United States should have to respond to them. Because... democracy. Here's the problem: there are dozens of Whitehouse.gov petitions that have received more than 100k signatures, but have gone months and even years without a response (1). That's not improving transparency, it's the same gov't spin we've always had. So what will it, Obama, hypocrisy or democracy? Sign! It's a nice idea. There are petitions that appear to be permanently stuck to the administration's backburner while others that haven't even met the 100k signature threshold have been answered simply because the White House has a canned response on hand. Others require more thoughtful answers or (would) force the administration to take a stance on controversial issues, something it clearly would rather not do. The average wait for a response has slipped to nearly 300 days. Among the petitions still being actively ignored by the White House are ones dealing with pardoning Edward Snowden and firing the attorney who handled Aaron Swartz's prosecution. This new petition, created on April 1st, is clearly tongue-in-cheek. While there are some petitioners who mistake petitions for binding contracts, this probably isn't one of them. However, it does go meta on the issue, potentially putting the administration in the position of agreeing to address petitions in a timely fashion. This could prove uncomfortable for the White House since it appears it would rather ignore certain petitions until the White House changes hands in 2016. Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
We've been writing quite a bit about the supposedly devastating $40 million, 6,300 page Senate report that exposes the CIA torture program for being useless -- and (perhaps more importantly) describing in detail how the CIA lied about it to everyone, including Congress. There's been something of an ongoing fight about declassifying the document, with the general thinking being that the Democrats on the Senate Intelligence Committee would likely support declassification, but the Republicans would not. But, as we'd pointed out, despite Intelligence Committee boss Senator Dianne Feinstein's condemnations of the CIA concerning the report, she still couldn't must up the courage to admit that what the CIA was doing was "torture." Instead, it was always the "detention and interrogation program." But, anyone who's looked at it knows exactly what it was: a torture program, almost certainly in violation of the Geneva conventions. So it's great to see that a Republican Senator (remember, they were supposedly against declassification), Susan Collins, (along with Independent Senator Angus King) not only come out in favor of declassification but to directly call it torture: We remain strongly opposed to the use of torture, believing that it is fundamentally contrary to American values. While we have some concerns about the process for developing the report, its findings lead us to conclude that some detainees were subjected to techniques that constituted torture. This inhumane and brutal treatment never should have occurred. Further, the report raises serious concerns about the CIA’s management of this program. [....] Torture is wrong, and we must make sure that the misconduct and the grave errors made in the CIA’s detention and interrogation program never happen again. The CIA's torture program is a shameful moment in American history, and as a country, we cannot deal with it by pretending that it was anything other than what it was. We need to make it clear that it was torture and that it was wrong. Those responsible for the program should be held accountable. But they won't. Instead, the only person in jail... is the guy who blew the whistle on it. If we can't even admit that the torture program was a torture program, then we're bound to go down this road again.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal "revenge porn" bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said: "The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations." That makes it clear her intent is to undermine Section 230 and make third parties -- like "Google, any website, Verizon... face liability." Now, her retort to all of this is likely that she's not seeking to undermine Section 230 in any way. Rather, she's attempting to do something of an end-run around it. Section 230 has never protected sites from liability of federal crimes -- just civil infractions and state crimes. So her goal is to make the amorphous concept of "revenge porn" a "federal crime" thereby suddenly making third-party websites liable. She will argue that does nothing to undermine Section 230. A more reasoned and thoughtful look at the issue, however, shows how this effort is fraught with dangerous consequences and potential First Amendment problems. Taking a step back, though, let's be clear: revenge porn -- the practice of posting naked pictures of someone (who likely took those photos for an individual or themselves, rather than the public) along with that person's identifying information -- is odious. Those who are involved in the practice are morally repugnant individuals. And yet, what we've seen is that there do appear to be ways to deal with them. One of the most well-known creators of revenge porn, Hunter Moore, was recently arrested on charges that he conspired with another person to hack into email accounts to get more photos. Often, those engaged in revenge porn are also engaged in extortion over those images or other crimes on which they can be charged. Some revenge porn sites have been hit with lawsuits for copyright infringement -- though that creates a whole different set of problems. Meanwhile, amazing folks like Adam Steinbaugh have been diligently tracking down and exposing the details of people who operate revenge porn sites, which can sometimes be an effective (if slightly ironic) way to get them to go away. But that's an example where more speech is often a better result than censoring speech by increasing liability. Still, you can see why there's a temptation to create a new anti-revenge porn statute. The whole concept of revenge porn is itself repugnant, so it's tempting (especially as a lawmaker) to pull out that old hammer and create some regulations. But the dangers of regulating based on reacting to the odiousness of those sites may obscure the way such laws will inevitably -- as Prof. Franks herself admits -- impact companies that are clearly not engaged in revenge porn. In the article about the legislation, EFF's Matt Zimmerman (who, actually, just left EFF) points out that using criminal law here is "dangerous" because it would likely lead lots of companies to reflexively delete all sorts of content, including plenty of perfectly legal and legitimate content, to avoid the sort of liability Franks describes. And that's the huge problem here. By spreading liability, you guarantee over-censorship. It's easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what "revenge porn" is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA's Section 230. People who don't think through the details seem to assume that it must be easy to define what is "revenge porn," but the deeper you go, the more difficult it becomes to define -- and the more risks there are of both over-criminalizing and creating serious First Amendment issues. For example, you could say that sites should be forced to take down photos of individuals where those individuals insist that the photos are problematic. But then you'd have to deal with situations, like with Ranaan Katz, where he went after a blogger and Google (using civil copyright law) for posting an "unflattering" photo. Do we really want to bring criminal law into that arena? And the First Amendment issue is not easy to get around. At all. As lawyer Mark Bennett discussed in trying to create a First Amendment-compliant anti-revenge-porn statute, it's not an easy challenge: The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test. At best, Bennett tries, as an exercise, to see if it would be possible to extend obscenity laws to cover "revenge porn," but that would massively expand obscenity laws, again in potentially dangerous ways. The problem here is that pretty much everyone agrees that revenge porn is a really horrible thing -- but any attempt to criminalize it will have serious implications way beyond the targeted issue. Instead of following Franks down that dangerous road, it would be wise to focus on ways to use existing laws to go after those who are clearly engaged in related questionable behaviors. Changing the laws to put the burden on third parties is only going to create significant new problems. I'm disappointed that my own Representative in Congress, Jackie Speier, appears to not realize this, and I will be contacting her office to express my concerns about the bill.Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
It really looks like Hollywood has finally gotten its own private police force in the form of the tiny City of London Police (not to be confused with the London Metropolitan Police -- as everyone always wants to remind people). The City of London Police, technically, are in charge of protecting a tiny spec of London, right in the middle -- covering about a square mile, with a population of about 7,400 people. Yet, because of the "London" name, people often think they're bigger and more important than they really are, and the legacy entertainment industry appears to have seized on this in a big, big way, gleefully supporting their efforts. Of course, the UK government has helped as well, by giving the City of London Police £2.56 million ($4.3 million) to take orders from the entertainment industry. And we've seen just how hamfisted these efforts have become. Last fall, the City of London Police started ordering registrars to shut down a bunch of websites based on no legal authority whatsoever, and no court order (no court proceedings at all). It was just the City of London Police saying so. And the ridiculous part is that many clueless registrars complied, despite it being against ICANN rules to do so. Over the past few months, the City of London Police have also been targeting advertising on sites that the entertainment industry tells them are illegal -- again with no actual review by a court to determine if those claims are accurate. Their latest move is to create a "pirate site blacklist" that they will give to advertisers, telling them they should not allow advertising to go on those sites. The list was put together "in collaboration with entertainment industry groups." The City of London Police refuse to reveal what's on the list, despite the fact that the list was put together with taxpayer funds in the UK. This is problematic for any number of reasons, but the biggest may be what happened the last time such a list was put together. As you may recall, a bunch of the same music labels came up with a very similar list for advertising giant GroupM, a part of WPP three years ago. And that list, which eventually was revealed, was such a mess that it included tons of legitimate sites including hip hop blogs, Vimeo, SoundCloud and more. The most ridiculous of all? The list, which was mostly put together by people at Universal Music, included Universal Music artist 50 Cent's own personal website. One would hope that the labels and the City of London Police will be more careful this time around, but given that they're keeping the taxpayer-funded list a secret, who can tell?Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
Disney is the country's foremost copyright enthusiast, going so far as to have a law unofficially named for its most famous character, one whose very existence ensures the march towards copyright protection in perpetuity. But Disney is no slouch in the trademark department, especially if anything happens to slightly resemble its prized mouse. Enter Deadmau5, DJ, producer and wearer of some of the most magnificent head accoutrements this side of pimps and/or Lady Gaga. Deadmau5, aka Joel Zimmerman, has finally caught the attention of Disney's IP lawyers with his latest trademark registration, a head-on view of his logo. This logo, which Deadmau5 has used for years (trademark registrations for another view of the logo/headgear dates back to 2009), has been greeted with this. On Friday, Disney let it be known at the U.S. Trademark Office that it is investigating a trademark registration filed by Deadmau5 (pronounced "dead mouse"). Compare the above with Disney's infamous, undead mouse. Sure, there's some comparison but it would take serious myopia to confuse the two. For one, Disney's exploitation of this iconic image has imprinted it on the minds (and wallets) of millions of people worldwide. Plus, every piece of merchandise marketed by the Disney Corporation also contains its equally ubiquitous Disney scrawl, letting the purchaser know that they're paying too much for this otherwise unremarkable product. But to hold a trademark means defending it, even when "defending" more often resembles "attacking" and when a moron in a hurry not only wouldn't be confused, but would bypass both products in his haste to spread ignorance at the nearest water cooler/house party/comment thread. It's totally within Disney's rights to contest this, and to protect its most cherished piece of IP, there's no way it won't. As far as Disney is concerned, there's only one mouse logo in the world and it already owns it. [Besides, I've seen worse go unpunished. Of course, it helps that the album using this artwork was never released…] Permalink | Comments | Email This Story    

Read More...
posted 17 days ago on techdirt
At the bottom of a Mother Jones article covering a "behind-closed-doors talk" by former Vice President Dick Cheney -- in which he talked up (to applause) the idea of bombing Iran and whined that President Obama was too weak in the Middle East -- the authors mention that actually much of his speech was devoted to defending the NSA. Apparently, he did this by flat out lying. There is the belief, he said, "that we have created in the National Security Agency this monster bureaucracy that's reading everybody's mail, listening to everybody's phone calls, infringing upon our civil liberties and civil rights. Hogwash." He claimed that there has not been a single case of NSA abusing its authority. Well, except an internal NSA audit that was reported on months ago actually found that the NSA abused its authority thousands of times per year. And, really, a big part of the complaints aren't necessarily that the NSA abused its authority, but that even if they didn't "abuse their authority" that the ability to collect all this information was legal in the first place. Meanwhile, we also know that there are also a bunch of cases where the NSA has admitted analysts willfully abused their powers. And, while the NSA claims that it's caught all of those involved, a large percentage of them involved "self-reporting," which suggests many cases of abuse slipped under the radar. And, of course, there were many other known abuses as well, including many years in which the NSA flat-out ignored the FISA court's rules on handling metadata, allowing it to be shared widely, despite rules and promises not to do so. This also ignores the fact that both a federal judge and the federal government's privacy and civil liberties oversight board (PCLOB) found the program unconstitutional and illegal. Yes, others have found that the program is legitimate, but to ignore the still open-ended question as to the legitimacy of the program to argue that there's been "no abuse" of authority is ridiculous. Hell, even the famed rubber stamping FISA court came close to shutting down the program and elsewhere discussed how the so-called privacy protections within the program was "so frequently and systematically violated" as to mean that they have "never functioned effectively." I don't know about how Dick Cheney defines "abuse their authority," but it seems like there's fairly strong evidence of pretty widespread abuse -- much of it taking place while Cheney was in power. Of course, since his definition of "abuse" seems to be "doing something that Dick Cheney personally doesn't like," then, I guess he'd be correct. But, given the rather clear -- and flat-out admitted -- cases of abuse, combined with significant claims that the entire program is abusive -- it would appear that Cheney is simply lying.Permalink | Comments | Email This Story    

Read More...