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We're nowhere closer to reaching a Unified Theory of Police Body Cameras, but at least we're still compiling data. So far, there's no definitive proof body cameras reduce police misconduct, but there's at least some evidence they're better than nothing at all. Early adopters showed a surprising amount of reduction in use of force by officers. A 2012 study in Rialto, California showed a 67% drop in force usage by officers wearing cameras. Since then, results have been all over the map. The largest study conducted to date -- covering the Washington DC PD's rollout of its body camera pilot program -- suggested cameras weren't reducing force usage or lowering the number of citizen complaints. A second study of the same group seemed to indicate the problem wasn't that cameras had no deterrent effect, but that officers were still very selective about camera activation -- hence the lack of improvement. Another study has been released -- this one compiled by UNLV and the Center for Naval Analyses. It shows mainly positive results from the Las Vegas PD's body camera program. (via Grits for Breakfast) Among those wearing cameras, the study showed a 37 percent reduction in the number of officers involved in at least one use-of-force incident and a 30 percent reduction in the number of officers with at least one complaint filed against them. The study estimated the cameras could save Metro $4 million a year as the result of fewer complaints and the quicker resolution of complaints. Not only were complaints reduced, but officers with cameras did more policework. Officers wearing the cameras issued 6.8 percent more citations and made 5.2 percent more arrests than officers without cameras, the study found. Contrary to officers' fears cameras would be used by supervisors to play misconduct "gotcha," the cameras were instrumental in clearing officers of misconduct allegations far more frequently. From the report [PDF]: Officers reported few problems regarding civilian reactions to BWCs, little change in their own behavior while wearing BWCs, and few issues regarding how non-camera-wearing officers reacted to BWCs. On balance, officers mentioned more positives than negatives regarding BWCs, noting their satisfaction with how BWCs protected them when civilians filed complaints and allowed them to introduce their own narratives as they approached a call for service or a potentially serious incident. According to the study, camera footage has been used to close more than 500 internal investigations, with 462 of those exonerating the officer. The remaining cases resulted in disciplinary actions, including the termination of one officer. While it still seems odd such a high percentage of officers would be cleared, the fact remains officers' fears of managerial gotcha tactics are unfounded. The addition of body cameras has another positive effect, one that goes straight to the bottom line. With footage available for use in internal investigations, the cameras' initial cost is far outweighed by net savings for taxpayers. From the study summary [PDF]: When considering the investigator’s modified hourly wage and hours spent investigating a complaint of misconduct, considerable cost savings are realized when BWC video is available. Rather than a combined 91 hours of investigative time costing $6,776 without BWCs, the estimate is slightly over 7 hours of investigative time costing $554, for a difference of over $6,200 per complaint of misconduct. This initial study should be followed by others if we're going to able to glean any info about the long-term effects of body camera deployment. As officers become used to carrying around a semi-neutral witness to every interaction with the public, there's a chance the tools of accountability will become tools of officer exoneration only. Cameras are in use in dozens of law enforcement agencies, but footage often remains exempt from public disclosure, shielding officers from outside accountability. On top of that, footage seems most likely to go "missing" when officers appear to have engaged in misconduct. Without strict disciplinary measures, the problem with "missing" recordings will only get worse. Permalink | Comments | Email This Story

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A two-year legal battle of German intelligence agency metadata collections has ended. And the German Federal Intelligence (BND) agency has lost. Germany’s foreign intelligence agency (BND) must not store the metadata - such as phone numbers - of international phone calls for the purpose of intelligence analysis, a court rules on Thursday. [...] Media freedom organization Reporters Without Borders filed a lawsuit in June 2015 against the BND, saying it had breached the organization’s secrecy and harmed the partners and reporters it worked with. This is a big decision -- somewhat on par with the revamp of the Section 215 metadata program here in the US that took place following the Snowden leaks. But it might be bigger than that. BND collects over 11 billion records every year. And it shares this haul with the NSA and GCHQ. This was revealed via documents leaked to German news agency Die Zeit. The BND was grabbing metadata at a rate of 220 million records per day. This is only a small part of the BND's haul, much of which appears to be harvested from internet cables and satellite transmissions. These revelations caused some problems for the German government, which has generally been careful to keep Stasi comparisons to a minimum. The BND claimed these collections were lawful, but top government officials weren't so sure. This lawsuit appears to have settled the "metadata" question at least. The end of this legal battle bears some resemblance to Section 215 v. 2.0 here in the US. The Reuters report says the BND will no longer be able to "store" metadata records for intelligence analysis. There appears to be no restraint on collecting records, which likely means the BND will need to approach companies directly to obtain metadata. This means some semblance of targeting will be shoehorned into the BND's collection system and that metadata interception (in bulk) from internet cables is no longer an option. It's a small win but it's a good one. And I'm sure it surprised the hell out of the intelligence agency. But thanks to Ed Snowden and other leakers, bulk surveillance -- especially the kind that sweeps up domestic data -- is no longer acceptable. Permalink | Comments | Email This Story

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Even those of us who believe that the internet is overall a tremendous positive force when it comes to discourse and culture can admit that, in many parts of the online world (and really the world in general), having constructive and substantive conversations is... difficult. And that issue has most certainly come to the fore in the last couple of years. So this week, we're joined by author Barry Eisler (one of our first and most frequent podcast guests) to tackle the challenge of framing important debates in productive ways, and actually getting somewhere with them. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, 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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For years now we've pointed out how one of the telecom industry's sleazier lobbying tricks involves paying minority groups to parrot awful tech policy positions. That's why you'll often see groups like the "Hispanic Technology & Telecommunications Partnership" support competition-killing mergers or oppose consumer-centric policies like more cable box competition or increased wireless competition. This quid pro quo is never put into writing, so when these groups are asked why they're supporting policies that undermine their constituents, they can deny it with a wave of breathless indignation. But this tactic remains very real, and very harmful all the same. It played a huge role in ginning up bogus support for the attack on net neutrality. AT&T and Comcast have co-opted countless minority groups in this fashion, with a lot of it coordinated through a telecom-funded organization dubbed the Multicultural Media, Telecom & Internet Council (MMTC). In short: if you want to keep the funding flowing, it's expected that you'll parrot telecom industry policies, even if they harm your constituents. This has been a problem for years that nobody much likes to talk about. The NAACP has consistently been part of this problem, opposing real net neutrality protections after receiving funding from AT&T, Comcast and Verizon. The group signed off on letters opposing tough FCC rules both (pdf) times (pdf) they were proposed, often mirroring the incumbent ISP claim that tougher net neutrality rules would hamstring ISP efforts to expand broadband availability into poor communities (utterly false). In other FCC filings (pdf), both the MMTC and NAACP claimed that real neutrality would damage the "fragile state of minority engagement in the digital ecosystem." But now that the FCC's attack on net neutrality is getting media attention due to a massive public backlash, the NAACP has issued a statement proclaiming that the group is "deeply disappointed" with the FCC's decision to repeal rules. Now that the battle is making headlines, the NAACP is claiming that the removal of rules it fought against strips away "critical safeguards for ensuring an accessible internet": “The internet fuels economic opportunity, civic engagement, and social action. It allows us to communicate instantly and effectively, and, in recent years, it has facilitated innovative, impactful social justice action,” said Derrick Johnson, NAACP president and CEO. "Throughout our 108-year history, the NAACP has continually opposed discrimination and fought for justice and equal opportunity for all. We see the fight for net neutrality as an extension of that mission. The NAACP is staunchly opposed to any attempt to censor or manipulate information on the internet, especially if it creates a barrier to entry for people of color." That's...not what you've been saying in FCC filings for the last several years. The NAACP apparently hoped that nobody would notice it had been fighting against real net neutrality -- right up until the subject began making headlines in the wake of the repeal. Those familiar with the NAACP's...inconsistency on this subject noticed anyway: NAACP opposed net neutrality under Obama, supported repeal of net neutrality Title II rules as recently as January of this year, but now reverses its position and backs net neutrality. https://t.co/CbqBoocHdh — Lee Fang (@lhfang) December 15, 2017 Again, this is all incredibly harmful to the individuals these organizations are supposed to be protecting. "Broadband redlining" has become a bigger problem than ever as the one-two punch of lax regulatory oversight and limited competition results in large ISPs ignoring low income and minority areas for next-gen broadband upgrades. It should go without saying by now that the net neutrality rules the NAACP didn't want protected everyone from uncompetitive market abuses and the stifling of independent and diversity-oriented media outlets by deep-pocketed incumbents. It seems like at some point, NAACP constituent and donors not named AT&T, Verizon and Comcast would notice that the group has been selling them out for years on the subject of net neutrality. Permalink | Comments | Email This Story

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A little over a year ago, we wrote about an unfortunate case in which Dr. Seuss Enterprises decided to sue for copyright and trademark infringement over an attempt to create a (pretty funny) parody that mashed up Dr. Seuss with Star Trek, called "Oh, The Places You'll Boldly Go." As we noted at the time, this seemed to be a clear parody (which is protected by fair use). It was clearly transformative, and was commenting on the differences between Trek and Seuss. We also noted some extraordinary (and extraordinarily silly) claims in the lawsuit. The defendants in the case, Comicmix, won a round earlier this year, when the judge tossed out the trademark claims. However, he let the copyright claims stand for the time being. After, Dr. Seuss Enterprises filed an amended complaint on all the claims, leading to a new motion to dismiss. Unfortunately, in a new ruling, the court has again denied the fair use claims on copyright, and also denied a new motion to dismiss on trademark grounds, meaning the case will move forward. And it's in large part due to the Muppets and a font. I only wish I were joking. You can read the ruling here. Since the court had previously done a copyright fair use four factors analysis, it mostly just points back to its previous ruling on the matter, but only adjusts its analysis of factor four -- the "effect of the use upon the potential market." The other factors split evenly (factor one in favor of Comicmix, factor two in favor of Seuss, factor three favoring neither). So this ruling turns on what many courts (perhaps incorrectly...) believe is the most important factor: does this use harm the market for the copyright-covered work. Here, the discussion turns on whether or not this would undermine the Seuss Estate from licensing out its copyrights to someone to do a Star Trek mashup. Comicmix's argument is basically "come on, no one's doing that." Seuss's argument is "hey, look, we've done other mashups before" Plaintiff states it has published “books that are derivative of [Go!]” such as Oh! The Places I’ll Go; Oh, Baby! Go, Baby!, and more.... Plaintiff states it also publishes a series of “books written and illustrated by other authors and artists that are based upon and incorporate the Dr. Seuss Intellectual Property” such as Oh, The Things You Can Do That Are Good for You!, There’s No Place Like Space!, Oh, The Pets You Can Get!, and more.... Plaintiff states “[n]otably, ‘Dr. Seuss’ does not appear on any of the [book] covers, and all of the covers include names of other authors, despite the fact that these works are authorized by DSE and are recognized by the public as Dr. Seuss works.”... Defendants argue Boldly cannot cause any relevant market harm because Plaintiff’s licensed collaborations listed in the FAC are not works of Boldly’s type.... Defendants argue Plaintiff has not licensed and would not license “any derivate work that creates a hybrid of Dr. Seuss’s books with existing characters and imagery from a third party’s entertainment franchise. The first amended complaint does not give rise to a plausible claim that Boldly would cause any harm in any transformative market.” ... Defendants distinguish their mash-up from Plaintiff’s licensed derivatives and argue none of the books published as part of Plaintiff’s co-branding licensing program “are crossover works that integrate pre-existing characters or imagery from another entertainment franchise, such as Star Trek, with those of Dr. Seuss.” The Seuss folks responded to this by pointing out that... they'd done a Muppets mashup with Seuss. Muppets! Plaintiff argues it has in fact collaborated with others and created crossover works, such as through the creation of The Wubbulous World of Dr. Seuss, “a live action/puppet show produced by the Jim Henson Company featuring Dr. Seuss’s well-known and beloved characters alongside new, Muppet-like characters created by The Jim Henson Company.” That apparently is enough to convince the court that Seuss might possibly, some day, find a market to produce mashup Seuss / Star Trek works: Although these books may not be mash-ups like Boldly, there is a potential market for a literary mash-up involving Plaintiff’s books; such a market would not be unlikely based on Plaintiff’s past licensing programs. Defendant’s production of Boldly may result in an adverse impact on Plaintiff’s derivative market and the Court therefore finds there is potential harm to the market for Plaintiff’s derivative works. Therefore, this factor weighs in favor of Plaintiff. With the amended complaint, the court also revisits the trademark claim... and allows it to move forward as well, reversing its earlier ruling. It finds that Seuss's trademark is valid here, and then says that Comicmix's use does not meet the standards for nominative fair use (in trademark law, that basically means did you just use the trademark to identify the thing that you're talking about). The real failing by Comicmix? Going a bit overboard in using the identical font in their title. Really: Defendants not only use the words “Oh! The Places You’ll Go!” in the title of Boldly but also use the exact font used by Plaintiff. The look of the lettering is unquestionably identical on both books, down to the shape of the exclamation point. This situation is similar to that in Toho. The Court finds it was unnecessary for Defendants to use the distinctive font as used on Go! to communicate their message (i.e., that Boldly is a mash-up of the Go! and Star Trek universes). The Court concludes Defendants have not satisfied this nominative fair use factor. I find this... puzzling. Again, the use of the font is the same issue as the use of the other Seussian design: to evoke the world of Seuss in which to land their parody. So, Comicmix is 0-for-2 at this point -- and have the Muppets and a font to blame. Ouch. This by no means that the case is over. It can still go through discovery and summary judgment and, then possibly a trial. And it's still possible that Comicmix could win -- but it's also going to be expensive to keep going. In the meantime, I'm still left wondering why this is a good move by Dr. Seuss Enterprises. It's a beloved brand acting like a bully, pissing off tons of fans. Why not just let the Star Trek / Dr. Seuss fans have their fun for a bit and use the goodwill to sell more of its own books. I mean, I imagine the temptation among many people who would buy the mashup book would be to also get a copy of the Seussian original if they don't already own it. But, alas, in this day and age, so many organizations feel they have to go legal against everyone. Permalink | Comments | Email This Story

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The MCSA Windows Server 2016 Bundle is a series of courses designed to help you achieve the MCSA certification in Windows Server 2016. In the first course, you'll cover installation of Windows Server through standard manual means and image-based installations discussing various requirements and different versions. The next course covers all the major aspects of a network running Windows from planning and implementing IPv4 and IPv6 addressing schemes, troubleshooting client and server connectivity to name resolution with the Domain Name System and assignment of IP addresses using Dynamic Host Configuration Protocol. The final course teaches IT pros how to deploy and configure Active Directory Domain Services (AD DS) in a distributed environment, how to implement Group Policy, how to perform backup and restore, and how to monitor and troubleshoot Active Directory-related issues with Windows Server 2016. This bundle is on sale for $49. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Wisconsin businessman Paul Nehlen is running for the other Paul's (Ryan) House seat in next year's midterm elections, and we can only hope this man is never allowed to operate law-making apparati at a federal level. He has big ideas for the nation -- most of them sounding exactly like President Trump's big ideas: A wall! Paid for by Mexico! Killing off Obamacare! Making abortions illegal! Bulk, untargeted deregulation! Nehlen also has big ideas about the First Amendment. Big ideas and a toddler-like grasp on tricky terms like "censorship." Nehlen hates (HATES!) government regulation but feels the government should step in and, under the color of law, prevent internet companies from monitoring their platforms as they see fit. The highly-problematic Nehlen wants Twitter, Facebook, YouTube, etc. to stop kicking like-minded people off their platforms. It's undeniable Twitter has been deleting accounts held by far-right persons more often than those veering widely to the left. Some feel Facebook and Google have been doing the same thing, but the complaints of unfair moderation are loudest on Twitter. Nehlen is one of those complaining. But if he gets elected to Congress, he'll be able to do actual damage. This is Nehlen's grand idea for turning Twitter etc. into alt-right-friendly platforms: heavy-handed regulation. He introduces it by borrowing words from none other than net neutrality-killer Ajit Pai. Why? Because Ajit Pai's anti-regulatory efforts are somehow aligned with Nehlen's plan for regulation of internet services. The following is from his press release [delivered via tweeted images rather than a PDF, because wtf. {makeshift PDF version}]: "We need a federal law prohibiting censorship of lawful speech on major social media platforms," Nehlen asserts. "It is well-known that Twitter, Facebook, and YouTube discriminate against the right-wing, as evidenced by FCC Chairman Ajit Pai's recent comments. While widely heralded for those comments, they rang hollow with no suggested solution. This law is that solution. It will extend Americans' First Amendment free speech protections onto social media platforms." The Nehlen goes on to create his own definition of censorship, just so he can try to get the government into the business of running social media companies. "This law will not interfere with the features or functionality, so market forces will remain in play. The problem is their censorship of lawful speech. Hypocritically, the same companies that support net neutrality also want to censor your speech." Moderation isn't censorship, but whatever. Also: it's a bit rich to call companies hypocritical when you're the one running on a platform that includes heavy deregulation. Much like those "free speech, but" people on the left who think the US should criminalize "hate speech," some people on the alt-right think the government should take a hands-off approach to private corporations but somehow still feel the government should get involved when platform moderation efforts target them and their colleagues. It takes a new definition of censorship to get the government involved in the, um, "extending" of free speech rights. Nehlen's law would fine companies $500,000 "per instance of wrongful censorship" -- putting the government in the position of "equalizing" free speech by making moderation decisions for private companies. The new definition of censorship would include suspensions, bans, shadowbans, throttling, memory-holing, trending topic manipulation, demonetization… basically any effort platforms undertake to moderate users and their postings. Notably, only four platforms would be affected by this legislation: Facebook, Twitter, YouTube, and Reddit. Every other platform is free to do all of these things without fear of repercussion. Nothing makes a bad law "better" than inconsistency of both the internal and external varieties. This legislation doesn't even attempt to align itself with the Constitution, much less any logical reading of the term "censorship." And guess which agency would be handling this internet regulation? That's right: the FCC -- the same entity whose boss just said he's profoundly opposed to regulating internet service providers. The whole shitty idea closes with Paul Nehlen, possible white nationalist and Roy Moore supporter, bashing his party for failing to introduce suicidal legislation that would do terrible things to both social media platforms and free speech. "The GOP's voters are being systematically censored off the primary channels of public communication by left-wing tech giants, and [Paul] Ryan -- indeed, the entire GOP Congress -- has sat utterly mute for years and allowed it to happen." This is the point where I would generally say something flippant like "this guy's actually suggested a border wall with remote-control machine guns to stop immigration so there's no chance in hell he's getting elected" but I said a lot of flippant things about our current president while he was still on the campaign trail and… well, there's an electoral college map out there that shows exactly how these things that will never happen sometimes happen. There's an audience out there eating up this rhetoric -- one that finds zero inconsistency in arguing for wholesale deregulation while demanding the government step in and smack around companies for doing things they don't like. Let's make something perfectly clear: terrible, inconsistent moderation efforts are not censorship. They feel like censorship to those hit by them, but it's a wholly subjective view that's not backed by any statutory definition or the Constitution itself. You add the government to the mix -- like Nehlen proposes -- and you have actual censorship, in a form that prevents companies that provide platforms for speech from handling their own moderation efforts without government interference. This will do harm to First Amendment-protected speech, not "extend" free speech protections to the internet, as Nehlen claims it will. You tell any platform the government is going to hit it with half-million-per-violation fines for "censorship," and you can bet they'll find any reason at all to prevent new accounts from signing up, and rewrite their policies so end users bear all costs of this government intervention. Telling people speech will be "freer" when it's controlled by men with guns is not just stupid, it's dangerous. Permalink | Comments | Email This Story

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By now you've probably noticed that FCC boss Ajit Pai isn't particularly popular online after he voted last week to kill popular net neutrality protections. A big reason for that unpopularity is Pai's tendency to simply make things up as he rushes to coddle broadband duopolists, whether we're talking about his bogus claims that net neutrality killed broadband investment, his claims that net neutrality only emboldens tyrants in Iran and North Korea, or his claims that the broadband market is amazingly competitive. So in the wake of the repeal (which of course still needs to survive legal challenge) it's not too surprising to see Pai engaging in more blatantly false nonsense as he tries to frame net neutrality supporters as hysterical hyperbolists. For example, Pai tried to argue last week on Fox and Friends that net neutrality supporters were clearly wrong to worry about the repeal because Twitter and Facebook still worked the day after the repeal: To try and gather support for his extremely unpopular plan, Pai's been throwing some red meat to the base by framing net neutrality concerns as the domain of out of touch Hollywood elites, despite the fact the rules have broad, bipartisan support. As such, Pai took particular aim at comments made by comedian Jimmy Kimmel, claiming he was foolish to worry about the repeal since social media websites still worked the day after the FCC voted 3-2 to kill the rules: "He's getting everything wrong about it," Pai said of Kimmel. "The free and open internet we had prior to 2015 is the one we're going to have going forward. And that kind of name-calling and hysteria is disappointing, but it's not surprising." Pai went on to say that Kimmel and others were "proven wrong" by the fact that internet service providers (ISP) had not rolled out immediate changes Friday morning. "Those who have said the internet as we know it is about to end have been proven wrong starting this morning," Pai said, "as people send emails, check on their Twitter accounts, post on Facebook, and the like." But this is either an outright lie, or Pai honestly doesn't know how his own agency even works. While the FCC voted to repeal the rules last week, the repeal itself doesn't take effect until sixty days after the repeal hits the federal register, which doesn't even happen until January. Even then, we've made it abundantly clear that ISPs will likely remain on their best behavior for a year or so. Why? They'll want to portray net neutrality advocates as hysterical chicken littles. They also won't want to provide any ammunition for the looming lawsuits against the FCC's repeal. It's only once ISPs secure a court victory that you'll see their true colors emerge. And even then, if they're too heavy handed they risk future FCCs simply passing new rules down the road. That's why you're going to see a concerted ISP push for a new net neutrality law starting in the new year. One that professes to "fix" the problem, but is so loophole-filled as to be effectively useless. Its one real purpose? To prevent any future FCCs from re-passing tough net neutrality protections. It will be an attempt to codify regulatory apathy into law. Even then ISPs aren't likely to block websites outright. In large part because there's a universe of more subtle ways that they can abuse the lack of adult regulatory oversight and limited competition to minimize press and public backlash, whether that's fiddling with interconnection points to drive up costs for transit and content companies, or expanding arbitrary and unnecessary usage caps and overage fees to drive up the cost of cutting the cord. And there's a universe of "creative" bad behavior these ISPs haven't even thought of yet. Again, it's important to understand that the Trump administration's plan here isn't just gutting net neutrality. The plan is to gut FCC, FTC and state oversight of some of the least-competitive companies in America almost entirely. With neither competition nor adult regulatory federal or state supervision in place to protect users, the resulting damage won't be subtle. If you've watched Comcast and AT&T do business for the last fifteen years, we're pretty sure you won't miss the bad behavior once it actually starts. Permalink | Comments | Email This Story

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Last year, the Russian authorities ordered LinkedIn to be blocked in the country, supposedly for failing to store personal data locally. Since other US companies like Google and Facebook had also ignored this data localization requirement, it was curious that only LinkedIn was affected. Now the German news site Deutsche Welle is reporting that Twitter and YouTube risk being locked out of Russia, but for quite different reasons. These involve Mikhail Khodorkovsky, once the wealthiest person in Russia, and a long-time vocal opponent of President Putin. Khodorkovsky spent a number of years in prison, allegedly for fraud and embezzlement. He now lives outside Russia, and has set up the NGO Open Russia, which promotes democracy and human rights in Russia. Open Russia was put on the official list of "undesirable organizations" in April of this year. The Russian government has shut down Open Russia's web site, and now it is demanding that the NGO's presence on social media be deleted as well. Roskomnadzor, the country's media regulatory agency, gave YouTube and Twitter a deadline to delete Open Russia's accounts on their services, or be blocked entirely. The deadline has now passed, but the accounts are still accessible within Russia. The question is: what happens now? If Twitter and Google continue to refuse to delete the accounts, the Russian authorities could try to block them individually. That wouldn't be easy, so the government might simply order the whole of Twitter and YouTube to be blocked. After all, that is what it did with LinkedIn. However, the local experts interviewed by Deutsche Welle point out that LinkedIn was never very popular in Russia, so its loss passed largely unnoticed. Shutting down Twitter and YouTube would be a different matter, and would probably cause widespread online protests -- something the authorities would be keen to avoid. In any case, users could use proxies, VPNs, and Tor to circumvent such blocks. It's true that Russia has brought in a law that gives the authorities the power to order those kinds of services to block access to particular sites, or be shut down. But the Deutsche Welle post contains the following information about what is actually happening on the ground: The Russian government has already limited the use of such [circumvention] tools. But [Russian reporter and blogger Alexandr] Plushev pointed out that is just a formality. "They have declared about seven VPNs illegal but there are tens of thousand of them to be found online," he said. "Both the Tor and Opera browsers allow you to get around such blocks." That's an indication that the latest threats to block Twitter and YouTube may not amount to much in practice, and are designed more as a warning of what the Russian authorities could do at some point, rather than what they will do immediately. The fact that Russia will be holding a presidential election next March, in which Vladimir Putin is standing, and presumably expects to win, may be a factor here. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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When it comes to frivolous trademark lawsuits, you think you've seen it all, but then one comes along that makes you throw up your hands. Here at Techdirt, we understand that the average individual might not know some of the broader nuances of trademark law, such as the focus on customer confusion, or the requirement, in most cases, that the parties reside within the same industry or market. But that understanding goes out the window when we're talking about a lawsuit brought by a large corporation that, like, totally has lawyers and stuff. I use that tone and vernacular specifically as preparation for stating that Five Below, the large retailer with trendy products for less than five bucks, has sued 10 Below, a small chain of ice cream shops. And before you ask, yes, pretty much all of the media covering this is actually pointing out how divergent the markets and industries of these two companies is, often in spectacularly funny fashion. One store sells remote-controlled poop, mini-plasma balls, and Mongolian Faux Fur Blankets, all for $5 or less. The other store sells that trendy rolled ice cream. But Five Below (currently 600 locations) says that 10 Below (five locations, only one in Philly) is violating the discount store's trademarks, and the company has told the rolled ice cream shop to find a new name. For anyone who has watched trademark proceedings in the past, this is something of a laugher. Claiming that anybody might be confused between the type of things that Five Below sells and an ice cream shop is going to be something of a tough sell in any courtroom. And, once you understand the reason for each company's name, you will quickly realize that this is not the case of 10 Below trying to trade on Five Below's good name. Five Below sells things for five dollars or less, where 10 Below refers to the way the ice cream shops make their product, including dropping the temperature to minus-ten degrees. There's just not synergy between the names here at all. In the filing (below), Five Below makes much of its sales of candy and ice cream at its stores, except that I can't find ice cream listed in this section on its website and the candy referenced is merely other brands being sold there. And IP attorneys looking through all of this seem to agree. "It seems to me that you have a very large company pounding its chest and trying to intimidate a smaller company," says Flaster Greenberg intellectual property attorney Jordan LaVine, whose clients include Martha Stewart and The New York Times. "This is a classic example of trademark bullying. It's an unfortunate situation for a smaller company that might not have the money to defend itself." Plus, 10 Below first opened in New York City in 2015, when Five Below already had a presence there, but Five Below didn't take them to court until more than two years later. "They should have taken action a lot sooner than the end of 2017," says LaVine. In other words, this is pretty much ticking off every checkbox for how to lose a trademark bullying lawsuit. It's enough to wonder whether all of this came down to 10 Below opening a location near Five Below's company HQ in Philadelphia and this is all coming from executives that noticed and went on an ego trip. Regardless, this will hopefully be quickly laughed out of court. Permalink | Comments | Email This Story

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As we've been noting for a while, the FCC's 3-2 vote to kill net neutrality is really only the beginning of a new chapter in the fight for a healthy, competitive internet. The rules won't truly be repealed until 60 days after they hit the federal register in January. And even then, the repeal will have to survive a multi-pronged legal assault against the FCC, accusing it of ignoring the public interest, ignoring feedback from countless experts, and turning a blind eye to all of the procedural oddities that occurred during its proceeding (like, oh, the fact that only dead and artificial people appear to support what the FCC is up to). ISPs know that this legal fight faces a steep uphill battle with all of the procedural missteps at the FCC. That's why we've been warning for a while that ISPs (and their army of think tankers, sock puppets, consultants, and other allies) will soon begin pushing hard for a new net neutrality law. One that professes to "put this whole debate to bed," but contains so many loopholes as to be useless. The real purpose of such a law? To codify federal net neutrality apathy into law, and to prevent the FCC from simply passing tougher rules down the road. Just like clockwork, Comcast responded to last week's net neutrality killing vote with a blog post by top Comcast lobbyist David Cohen (the company, for the record, hates it when you call Cohen a lobbyist), who proudly declared that it was "time for Congress to act and permanently preserve the internet." In his post, Cohen repeatedly and comically tries to downplay Comcast's own role in the chaos we're currently witnessing: "Unfortunately, there are others who want to continue engaging in a never ending game of back and forth, creating unnecessary anxiety and contributing to an unneeded level of hysteria. Some will undoubtedly continue threatening litigation that does nothing to protect consumers or freedom of the Internet." Funny, since the one doing the litigating is Comcast, which sued to overturn both the FCC's 2010 and 2015 net neutrality protections. Regardless, Cohen would have you believe that the only path forward at this point is the creation of a new net neutrality law. One, Cohen would have you ignore, that would likely be literally written by Comcast given the fact that telecom campaign contributions course through Congress' bloodstream. Such a law would, Comcast argues, end the "regulatory ping pong" that Comcast caused: "It’s now time for all of us to take advantage of this moment in time and end the cycle of regulatory ping pong we’ve been trapped in for over a decade and put this issue to rest once and for all. And there’s a simple way to do this -- we really must have bipartisan congressional legislation to permanently preserve and solidify net neutrality protections for consumers and to provide ongoing certainty to ISPs and edge providers alike." So what would a Comcast-approved net neutrality law look like? Comcast has repeatedly made it clear that it supports a ban on the blatant throttling or blocking of websites and services by ISPs, since that's not something ISPs were interested in doing anyway. ISPs long ago realized there's an ocean of more subtle ways to abuse a lack of competition in the broadband market. For example. why block Netflix outright (and risk a massive PR backlash) when you can impose arbitrary and unnecessary usage caps and overage fees that only apply to Netflix, not Comcast's own content? So, expect any Comcast-approved law to outlaw all of the things large ISPs never intended to do, while ignoring all of the more subtle areas that the net neutrality fight has evolved to cover. For example, a Comcast-approved law won't even mention caps or zero rating. Nor will it address the shenanigans we've seen on the interconnection front. But any Comcast-approved law will include ample loopholes allowing Comcast to do pretty much whatever it likes provided it ambiguously suggests it's for the health of the network (a major problem in the FCC's flimsy 2010 rules). Since he played a starring role the last time ISPs tried this, expect Senator John Thune to play a starring role in this effort. You should also expect an ocean of editorials from ISP-funded policy folk (where financial conflicts of interest aren't disclosed) to start popping up on websites and newspapers nationwide insisting a net neutrality law is the only path forward and that anybody that opposes this push simply isn't being reasonable. And while many lawmakers and media folk will be tempted to support this push arguing it's better than no rules at all that's not really true. If flimsy and poorly-written, this new Comcast-approved legislation could simply codify federal net neutrality apathy into law, while banning any future FCCs' or Congress' (say, a theoretical one not quite so beholden to ISP cash) from passing real protections down the line. The best bet at stopping this net neutrality repeal currently rests with the courts. Should that fail we can revisit this conversation, but only if voters are able to drive ISP-loyal marionettes out of office. Permalink | Comments | Email This Story

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Another court has decided compelled password production isn't a violation of the Fifth Amendment. The Massachusetts case [PDF], titled "In the Matter of a Grand Jury Investigation," concerns allegations of child abuse. The grand jury requested access to the contents of the suspect's phone. The government obtained a warrant but sought a court order compelling the suspect to produce a password to unlock it. The court granted it and the suspect challenged the order after being hit with contempt charges for failing to turn over the password. (via FourthAmendment.com) The court finds no problem with the government's reasoning. According to the court, the ownership of the phone is the only "foregone conclusion" the government needs to reach. Here, the Commonwealth demonstrated sufficient knowledge to show that the factual statements that the petitioner's act of entering his PIN code would convey are foregone conclusions. As summarized in the grand jury materials submitted to the judge under seal, the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner. In addition, the Commonwealth knew that a PIN code was necessary to access the iPhone, that the petitioner possessed and controlled the iPhone, and that the petitioner knows the PIN code and is able to enter it. Accordingly, the Commonwealth established independently and with specificity the authenticity, existence, and possession of the compelled information. Because of this low bar, the government can seek compelled access, even if the production of the password might result in evidence the government can use against the suspect. Thus, the order does not require the petitioner to communicate information that would fall within constitutional self-incrimination protection. The affidavit in support of the search warrant application established that the Commonwealth had probable cause to believe that the iPhone contained evidence of the crimes that are the subject of the grand jury investigation. The order simply allows execution of that warrant. This result is unsurprising, considering the only thing the government must prove is the locked device is owned or controlled by the person refusing to provide a password. There's a little variance between courts on the subject of "foregone conclusion," but the bar remains low enough most prosecutors and law enforcement agencies should be able to hit it. Of course, there's always a chance a person would rather spend an indefinite amount of time in jail on contempt charges rather than grant access to evidence to be used against them in a criminal trial. This gives the government a considerable amount of leverage in cases like these. Considering courts are routinely sympathetic to "foregone conclusion" arguments, it's odd the courts haven't been hit with a massive influx of cases like these since the 2015 switch to default device encryption. We hear from the FBI and prosecutors like Cy Vance that thousands of locked phones are sitting around law enforcement offices with no options for accessing their contents. It would seem compelled production is a pretty safe bet. Even if it doesn't result in device access, it would at least result in contempt charges, which would probably motivate more people into allowing access. But we just haven't seen that happen, which suggests the entities make the loudest noises about encryption aren't making a good faith effort to use every option available to them. Permalink | Comments | Email This Story

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Tesla remains a fascinating company. Elon Musk famously likes to do things his own way, and doesn't much care for convention. And that's often a great recipe for innovation. At times, it leads to really awesome things like giving away all the company's patents for anyone to use without licensing. But, sometimes it does some weird things that should make people think twice about buying into the Telsa vision -- even when at first pass it may make sense. For example, a few months ago, we were concerned about the "surprise" remote range extension that Tesla gave to drivers in Florida to help them evacuate before Hurricane Irma hit. On its face, this obviously seems like a good thing. Helping people evacuate a hurricane by extending their mileage is unquestionably good. But it did raise some concerns -- about a company remotely, and without notification, updating the car you purchased from afar. Because if it can be used for "good" reasons (like giving you extra range to escape a hurricane) it might also be used at other times for bad reasons. What if, for example, Elon Musk decides he doesn't like you. Last year, Musk famously banned famed venture capitalist Stewart Alsop from buying one of Tesla's cars after Alsop publicly complained about a poorly staged event by Tesla. Could Musk "brick" someone's car for displeasing him? The backlash to that would be massive, which probably keeps such a move out of the realm of likelihood, but there are still problems with the company changing your car after purchase. Similarly, last year there were reports that Tesla was banning people from using its self-driving car technology as part of any ride-sharing project. This seemed like an anti-competitive move, as Tesla has talked about setting up its own sort of Uber using self-driving cars that people would buy (basically, you'd "rent out" your car while you weren't using it). We thought that was a neat idea, but were troubled by the idea of contractually blocking Tesla owners from working with other vendors on such a project. And now there's another troubling move: Tesla is telling "commercial" drivers of its vehicles (mainly ride-sharing drivers) that they can't use the company's Supercharger network to charge their cars. There are perfectly legitimate, non-nefarious reasons for this. Mainly: there are apparently problems with Superchargers being overcrowded these days, and you could see why the company doesn't want them clogged up with ride sharing drivers, effectively subsidizing their driving jobs. At the very least, the company has made it clear the policy only applies to new Tesla buyers, so it's not a bait-and-switch situation. But, still, there's something troubling about the idea that the company can ban you from using its Superchargers based solely on the type of driving you're doing. Again, that leads to questions about what other situations may arise where Tesla bans people from using its chargers in one form or another. I'm sure that many won't think this is a big deal -- and will point out that the company needed to do something to avoid congestion. But we should be concerned about how this is subtly changing our relationship to the products we (thought we) own, and the control that companies have over our usage, post-purchase. I don't think Tesla is doing anything nefarious here, and there are plenty of seemingly good reasons for why the company chose this path. But we should be quite careful and thoughtful about how we move into a world where the company that sells you something retains an astounding amount of control over how and even if you are allowed use it, based on how much it likes or dislikes you or your profession. Because sooner or later, these issues are going to get bigger and more problematic -- and it might help if we really thought about them now, before things get messy. Permalink | Comments | Email This Story

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If the end of the year is closing in, it means it's time for Manhattan DA Cy Vance's Annual Anti-Encryption Spectacular! Gather the kids around because the 2017 edition of Vance's annual plea for an encryption ban has just been published [PDF]. Don't worry, Vanceheads, the core essence of the DA's anti-encryption publication remains unchanged: encryption is for letting bad guys get away with crimes. Vance's state-of-encryption report leads off with the same assertion the FBI and DOJ have been making lately: every locked device contains a wealth of criminal evidence. Traditional investigative techniques – searches of targets’ homes, physical surveillance, wiretaps on telephones – often fall short when it comes to gathering enough evidence to solve and prosecute today’s criminal activity. Unfortunately, much of today’s evidence exists in a space that, prior to 2014, was largely unheard-of: warrant-proof smartphones that have been designed to keep law enforcement out. Two false assertions and we're barely getting started: 1. At best, the "much of today's evidence" is an assumption. Locked devices can't prove or disprove this theory, but the biggest courtroom battle over encryption ended with a third party cracking the San Bernardino shooter's phone and the device yielding up a whole lot of nothing. 2. Smartphone encryption is not "designed to keep law enforcement out." It's designed to keep everyone who isn't the phone's owner out. Law enforcement just happens to be in the "everyone who isn't the phone's owner" group. Maybe if people like Cy Vance stopped taking this so personally he might have more fruitful discussions with tech companies. From there, Vance goes on to lament encryption workarounds as being expensive and impossible to scale. These lamentations are buttressed with assertions of lawful access: the theory that the presence of a warrant should immediately result in the production of all evidence law enforcement believes exists. Vance also claims there's been an "explosion" in the number of uncrackable devices seized by law enforcement. But in reality, the uptick has been slight since the advent of default encryption in 2015. This is to be expected. The numbers cited by Vance are ultimately meaningless without greater context. A pile of uncracked cell phones can be evidence of thousands of unsolved crimes, or simply a bunch of ultimately useless devices containing nothing of interest. The truth lies somewhere in the middle, but everyone (like Vance himself) who engages in the press conference drama of piling up locked phones and dropping insinuations that criminals are walking free is being at least a little bit disingenuous. (That New York City's crime rate continues to drop despite more device encryption [and the shutdown of stop-and-frisk] belies the implication that locked phones mean more criminals getting away with more criminal activity.) Vance discusses recent court decisions, noting how most courts have found passwords to have some Fifth Amendment concerns whereas fingerprints do not. In this context, the shift to fingerprint security options should work out better for law enforcement. But Vance still claims encryption can't be litigated around. According to the DA, courts aren't coming to a consensus on compelled production of passwords quickly enough and a couple of Constitutional amendments (Fourth/Fifth) are keeping law enforcement from operating as efficiently as it would like. [M]any devices are now accessible not only via their passcodes but also with the user’s fingerprint. And Apple’s newest technology eliminates the fingerprint identification in favor of facial recognition technology. As documented in the 2016 Report, biometric data like a fingerprint (and, presumably, a user’s face) is generally not considered to be protected by the Fifth Amendment. At least one court has held that a user can be ordered to unlock his device via the fingerprint sensor, and in some instances, law enforcement, including this office, has sought and obtained search warrants that include provisions ordering occupants of the target premises to use their fingerprints to unlock any Touch ID-enabled devices. However, even if this became standard practice for law enforcement, its utility would be limited, as iPhones require the entry of the passcode after 48 hours of inactivity, or when the phone restarts. Apple’s newest technology also undermines law enforcement’s ability to use fingerprints to unlock a Touch ID-enabled device. More importantly, there is reason to believe courts may view these blanket orders with skepticism. A federal magistrate judge in Illinois recently denied a search warrant provision ordering occupants of a premises to unlock devices with their fingerprints, finding the government had not established probable cause to detain every person on the scene for the purpose of obtaining their fingerprints. While there was no “protectable Fourth Amendment interest” in the fingerprints themselves, the detention of all occupants for the purpose of getting their fingerprints was deemed a violation. This brings us to Vance's ultimate goal: anti-encryption legislation. Default device encryption remains a significant public safety concern – it hamstrings law enforcement agencies in their efforts to investigate, solve, and prosecute crime. Recent developments in encryption workarounds have provided some measure of relief, but pitting law enforcement and the technology sector in an endless cat-and-mouse game is ill-advised, costly, and untenable. It also offers no remedy to the huge majority of law enforcement agencies that cannot afford to pursue “lawful hacking” solutions. It is true that, as some commentators point out, if smartphone providers were required by law to comply with decryption orders issued by state and federal courts, some more sophisticated criminals might migrate to foreign providers, or employ additional encryption technology not subject to such regulations. But the fact is that criminals, like all users, prefer software and devices that are reliable and user-friendly, and most of them will continue to use iPhones and Androids for that reason. Indeed, for this same reason, search warrants executed on United States-based email accounts often yield critical evidence, even though criminals could choose to use foreign email providers who are not subject to U.S. legal process. What's being willfully ignored in this summary? The fact that backdoored encryption would also be a boon for "sophisticated criminals." Leaving this necessary factor out is deliberate and misrepresents what's at stake. It also portrays those that would take their business to foreign firms as "serious criminals," deliberately ignoring the fact that many law-abiding citizens would do the same if the federal government backdoored/banned encryption. To support this call for anti-encryption legislation, Vance cites -- of all things -- problematic concessions Apple has made to the Chinese government. [A]pple’s refusal in recent years to accede to court orders and legitimate requests from law enforcement stands in stark contrast to its conduct in China. There – to the dismay of privacy advocates and others – Apple has recently complied with the government’s directives that businesses locate their servers within mainland China, and has taken other steps that pose threats to customer privacy… Notably, the Chinese government imposed these new requirements through legislation, not by seeking court orders, and Apple’s CEO Tim Cook, in defending Apple’s decisions in China, stated simply, “we follow the law wherever we do business.” In other words, the only way to resolve the encryption dilemma in the United States will be through legislation too. The argument Vance is making -- although he's probably unaware he's making it -- is that the US should be more like China and control phone manufacturers with heavy-handed legislation and onerous demands. I suppose it's unsurprising someone working so close to the police would find a shift towards to a more authoritarian government model a good idea, but it's rarely expressed publicly. I, for one, look forward to next year's Cy Vance Pre-Christmas Anti-Encryption Extravaganza. Because every time the annual issue rolls out, it means one thing: no anti-encryption legislation has been passed. Permalink | Comments | Email This Story

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You would think that to become a state Supreme Court Justice you need to be familiar with the basics of the law -- including famous legal rulings. For example, New York Times Company v. United States from 1971 is a pretty important and well known First Amendment case, in which the court specifically said that preventing newspapers from publishing information was unconstitutional prior restraint. That case relies on a number of other super famous First Amendment cases such as Near v. Minnesota and Bantam Books v. Sullivan. I mean, I'm not a lawyer and I know these cases. You would think that an Iowa Supreme Court Justice would as well. No such luck, apparently. As the Associated Press is reporting, Justice David Wiggins of the Iowa Supreme Court has blocked the Des Moines Register from publishing material that it had obtained via court records that were inadvertently made public. Wiggins granted a temporary stay Monday that blocked the newspaper from publishing information obtained from records relating to Des Moines attorney Jaysen McCleary. McCleary argued the records contained private information about his disabilities and finances and were never intended to be public. The records were inadvertently filed publicly by one of McCleary's lawyers in a lawsuit he filed against the city of Des Moines that alleged he suffered injuries when he was hit in the head by a garbage container launched from a city truck. They consisted of reports from experts who had evaluated McCleary, and were available for months in the state's electronic court records. The parties told the court they reached a settlement in November. Now, it's entirely reasonable to sympathize with Mr. McCleary. Through no fault of his own, material that he doesn't want public got released. He should be pretty pissed off at his lawyers. But that is no excuse for prior restraint. There is no First Amendment exception for "but that might embarrass the guy" or "oops, he didn't mean that to become public." The Des Moines Register has made it clear it intends to fight this order: The Register has objected, calling the order an unlawful form of prior restraint that violates the First Amendment and “stands as an undesirable and unsustainable outlier in the law and policy of this state and this nation.” [....] The Register’s attorney, Michael Giudicessi, has asked the Iowa Supreme Court to vacate the order, arguing in court filings that “the United States Supreme Court has never approved imposition of a prior restraint against the news media and the court has suggested it would consider doing so only in dire situations, such as matters of national security when the country is at war.” Giudicessi wrote that the order is “an impermissible prior restraint of the press barred by the Iowa and federal constitutions. … The order unmistakably functions as an injunction directed to the Des Moines Register newspaper and its news reporter, Clark Kauffman, enjoining them from publishing the contents of court records.” Apparently, the documents in question were not just filed publicly by McCleary's lawyers, but they remained available for anyone to download for an astounding three months, without objections. It was only after McClearly realized that the Des Moines Register was going to publish something that his lawyers suddenly freaked out. Even more incredible, according to the Des Moines Register's Clark Kauffman, writing a story in which he refers to himself in the third person, he first alerted McCleary to the documents being public, and received a thank you from McCleary... followed up by a lawsuit. On Nov. 15, after reviewing hundreds of court documents, Kauffman emailed McCleary to let him know the records were publicly available on Iowa Courts Online. "I just wanted to make you aware of that in case that was something you or your attorneys had asked the court (to) address,” Kauffman wrote. McCleary wrote back, thanking Kauffman for alerting him to the situation. The next day, a Polk County judge had the documents sealed and made subject to a protective order. McCleary later sued Kauffman and the Register, claiming they were conspiring with the city of Des Moines to defame him and damage his reputation through a planned news article that would make use of the sealed records and other information. What a way to "thank" Kauffman for alerting him to the fact that the information was public. Suing Kauffman seems like a pure anti-SLAPP lawsuit. Too bad Iowa doesn't have an anti-SLAPP statute. It's difficult to see how this injunction against publishing will hold, and it's difficult to see how McCleary can win his cases against Kauffman, but without an anti-SLAPP law to get the case tossed quickly, it can still be quite a painful process. In the meantime, if McCleary didn't want to "damage his reputation," perhaps he shouldn't have sued a local newspaper and its reporter for doing their job. Because no matter what's in the now blocked report, I can't imagine it doing as much harm to one's reputation as trying to use the legal system to silence the press from reporting on public information. Permalink | Comments | Email This Story

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This is one of those frustrating stories where's basically everyone's wrong about everything. Here's how it started: Just prior to Ajit Pai's FCC officially dumping net neutrality rules last week, the Daily Caller released a video with Pai. Pai seems to have a way of not realizing just how incredibly unfunny, tone-deaf and cringeworthy his "jokes" are -- but it doesn't stop him from trying again. If you somehow missed it, you can see the video here: The video is bad and dumb and misleading and, yes, very, very cringeworthy. The pure awfulness of the video is what got people worked up initially, with Pai's supporters gleefully laughing at Pai's opponents for getting upset about it. If you can't see it for some reason, it involves Pai claiming that nothing is going to change on the internet following his bad decision to kill the FCC's net neutrality rules, and then attempts to show some examples: posting images of food and dogs to the internet, doing some online shopping, being a dorky Star Wars fan and, finally, "ruining a meme." That meme? The Harlem Shake. If you were online in 2013, you almost certainly remember it. Because it was everywhere. For a couple months or so, everyone on the internet seemed to feel it was their obligation to create a video showing people crazy dancing to a snippet of the song "Harlem Shake" by "Baauer" the stage name of a music producer named Harry Rodrigues. The song, the Harlem Shake uses a sample from another song, Miller Time, by Philadelphia's Plastic Little. Also, the "con los terroristas" line was sampled from a singer named Hector Delgado. Back in 2013, we actually had a few stories about copyright issues around the whole Harlem Shake phenomenon. First, we noted that Baauer and his label, Mad Decent, seemed to have engaged in selective enforcement of whatever copyright they might have held on the song. They left most videos live on, but did take down some from people they disagreed with. We also noted that the whole meme went viral not for anything that Baauer actually did, but because of the first few videomakers whose crazy videos turned it into a thing. Finally, we noted that Delgado and Plastic Little were demanding their cut as well. And, of course, we should note that the whole Harlem Shake meme came and went pretty fast. I mean days after it went big, it was already declared dead. And, yes, this was part of the lame Pai joke. Onto outrage two: soon after everyone was complaining about how awful (and inappropriate) this video was, some people noticed that one of the women dancing in the Ajit Pai Harlem Shake video... was a conspiracy theorist Pizzagater. Which, you know, is not really a good look for the freaking Chairman of the FCC (especially while making fun of people who are concerned about the future of the internet). Outrage three: we're back to copyright. Baauer tweeted angrily that he supported net neutrality and was "taking action" saying "whatever I can do to stop this loser." I'm Taking action. Whatever I can do to stop this loser https://t.co/Ajo6wBATdF — Aa (@baauer) December 14, 2017 He also gave a statement to Billboard: "The use of my song in this video obviously comes as a surprise to me as it was just brought to my attention. I want to be clear that it was used completely without my consent or council. My team and I are currently exploring every single avenue available to get it taken down. I support Net Neutrality like the vast majority of this country and am appalled to be associated with its repeal in anyway." So, let's be clear why this is also bad. The use here is obviously fair use. In the past we argued that all of the Harlem Shake videos were likely fair use, but the case with the Pai video is even stronger. It's clearly a parody in making fun of the song's use in the old dead meme, and parody is non-infringing as fair use. If there was a lawsuit, Pai/FCC/Daily Caller would win. Furthermore, it appears that Baauer is basically trying to assert a sort of "moral" right into copyright that doesn't exist under US law. Moral rights, which are available in other countries (and only on limited works in the US -- but not music) allow an artist to block an otherwise legal usage by saying they don't want to be associated with it. But not in the US. Indeed, Baauer seems to be admitting his intent to misuse copyright to silence speech he doesn't like. That's bad. Even if I agree that Pai's video is awful and his effort to destroy net neutrality is terrible, that still doesn't make it right to abuse copyright law to silence speech. But... that didn't stop Baauer's label, Mad Decent, from going ahead and issuing a takedown and promising to sue if the video was not removed: Official statement re the use of "Harlem Shake" in Daily Caller's video of FCC Chairman Ajit Pai: neither Mad Decent nor Baauer approved this use nor do we approve of the message contained therein. We have issued a takedown will pursue further legal action if it is not removed. — MAD DECENT (@maddecent) December 15, 2017 And, indeed, as with basically any YouTube takedown, the company took the video down: There were many people who are quite rightly upset at Pai's killing of net neutrality who then quite wrongly cheered on this takedown. It may be fun to see someone you dislike have their speech silenced through abusive copyright takedowns, but that doesn't make it any less wrong. No matter how much you disagree with Pai (and we disagree with him around here quite a lot), pulling down his video over a copyright claim is clearly bad. And that takes us to outrage four: The Daily Caller then totally flips its lid with laughable conspiracy theories about how YouTube only took the video down because Google supports net neutrality and wanted to silence Ajit Pai. YouTube’s targeting of Daily Caller content and its willingness to remove our video for political purposes while millions of other uses are allowed to remain on the platform should stand as a terrifying prospect for every American. Except that's ridiculous. YouTube takes down tons of videos when it receives a DMCA notice. Indeed, the web is filled with examples of YouTube taking down videos that should be protected by fair use. That's why users can counterclaim and say that it's fair use. And YouTube is pretty good about responding to such fair use counterclaims and getting the video back up. Which is what happened here. But, the Daily Caller insists the video only was put back up because it's big and has lots of influence (feel free to debate both of those points if you'd like). There's still a possible future outrage: if Mad Decent and/or Baauer actually sue over it, which hopefully any reasonable lawyer will talk them out of doing. So, again, everyone and everything in this story is awful. Pai's video is dumb, misleading, cringeworthy and awful. Pai's actions around net neutrality are awful. Pai cavorting with a conspiracy theorist is awful. Baauer and Mad Decent freaking out over obvious fair use of their song is awful. Mad Decent issuing a bullshit takedown is awful. YouTube complying with the takedown is awful. And the Daily Caller stupidly assuming the compliance with the takedown is for political reasons, rather than standard operating procedure for DMCA takedowns is awful. In short: it's all awful. Horribly awful. The FCC shouldn't be killing net neutrality. The chairman of the FCC shouldn't be making awful, misleading videos with nutty conspiracy theorists mocking the vast majority of the American public who disagree with his stupid plan. And he shouldn't include four year old memes, even if it's to parody old memes, because, really, let the fucking memes die. The people who got rich off the memes shouldn't then abuse copyright law to try to censor speech they don't like. And the people who made the stupid, awful video in the first place, shouldn't leap to laughable conclusions about why their video got taken down. And I feel like I should end this post with "... and get off my lawn," though I'd much prefer that we live in a world where we weren't having competing narratives over censorship, where the internet remained open and free and non-discriminatory, and bogus copyright takedowns didn't take down expressive content, no matter how dumb it might be. Tragically, we're not there yet. Permalink | Comments | Email This Story

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It's no secret that the two regions most affected by China's strict controls are Tibet and Xinjiang, the vast and troubled Western region where the turkic-speaking Uyghurs form the largest ethnic group. Earlier this year, we wrote about one fairly extreme surveillance technique in Xinjiang: a requirement for every vehicle there to be fitted with a tracking device. Now Human Rights Watch reports that an even more intrusive surveillance measure is being implemented for the region's 24 million inhabitants: Chinese authorities in Xinjiang are collecting DNA samples, fingerprints, iris scans, and blood types of all residents in the region between the age of 12 and 65, Human Rights Watch said today. This campaign significantly expands authorities' collection of biodata beyond previous government efforts in the region, which only required all passport applicants in Xinjiang to supply biometrics. For so-called "focus personnel" -- those individuals that the authorities consider a threat to political stability -- the biometrics will be taken from everyone in their family, regardless of age. Here's what all that highly-personal information from the "Population Registration Program" will be used for, according to the Chinese government: Authorities state that the Population Registration Program is meant for "scientific decision-making" that promotes poverty alleviation, better management, and "social stability." Authorities have offered the annual Physicals for All program since 2016, characterizing it as a benefit for the relatively economically poor region. The program's stated goals are to improve the service delivery of health authorities, to screen and detect for major diseases, and to establish digital health records for all residents. Press reports about Physicals for All include testimonies from participants describing how they received treatments for previously undiagnosed illnesses, and in some cases saving their lives. Who could possibly object to such a well-intentioned health initiative? But as Human Rights Watch emphasizes: Coercing people to give blood samples, or taking blood samples without informed consent or justification can violate an individual's privacy, dignity, and right to bodily integrity; it can also in some circumstances constitute degrading treatment. Compelled DNA sampling of an entire region or population for purposes of security maintenance is a serious human rights violation in that it cannot be justified as necessary or proportionate. It would be naïve to think that the authorities won't use this massive DNA database in order to increase their surveillance of the Uyghur population. DNA is the ultimate identity number. It is present in nearly every cell in the body; it is difficult to change in a non-random way unless you have lots of money and top-flight CRISPR scientists at your disposal -- unlikely in the case of Xinjiang residents; and we leave it everywhere we go, and on everything we touch. DNA also has the virtue -- for the authorities -- that it provides information about related individuals, since they all have some of their genetic code in common. That means it would be possible to determine everyone in the close family of a someone under investigation, by finding related DNA sequences. It's the kind of information that could be abused by the police in multiple ways. As well as concerns about the human rights of Uyghurs being harmed, another issue is that Xinjiang's Population Registration Program may be used as a trial before rolling out DNA collection to the entire Chinese adult population, just as is happening with a national facial recognition database. Although such a large-scale genetic database would have been infeasible a few years ago, advances in sequencing and dramatic falls in data storage and processing costs mean that it could probably be built now. And if China goes down this route, the fear has to be other countries will follow, just as they are doing in the realm of online surveillance. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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This week, both our top comments on the insightful side came in response to the DOJ's attack on Trump protestors, accusing them of "hiding behind the First Amendment". Robert L won first place for responding to that absurd notion: You don't hide behind the first amendment... You jump on top of that bitch and shout loudly "This is my fucking constitutionally protected right!" Another extremely concerning part of the DOJ's arguments was the idea that knowing something about police tactics during protests implied guilt. An anonymous commenter won second place with a very appropriate reaction: What bothers me more about this, is that the DOJ prosecutor seems to be saying that you need to be ignorant in order to be innocent. That's truly unsettling. This anti-intellectualism movement is deeply troubling. For editor's choice on the insightful side, we've got a pair of responses to the creator of PlayerUnknown's Battlegrounds making some quite ridiculous statements about copycats and intellectual property. TheResidentSkeptic elegantly summed up the general attitude: Interesting point of view... *I* was "inspired" by those that came before me; all those who came after me are just ripping me off... Shortly after, Ben offered a reply that could just as easily go on the funny side but, hey, it's only funny because it's true: I think that is called "The Disney Perspective" Over on the funny side, we start out on our post about the many architects of the internet speaking out against the FCC's net neutrality repeal, where one commenter presented an extremely bizarre and confusing list of reasons that they are all apparently compromised and not to be trusted. Roger Strong won first place by holding a mirror up to the crazy: The wheel. Used later by the MILITARY! Cutlery. Used by staff at the CIA! Pants. Used for spying, because RFID tags can be sewn into them! Don't trust anyone who uses them! /s For second place, we loop back to the DOJ's fearmongering over people knowing something as simple as the term "kettling", where Oblate pointed out something of a catch-22 in this news: I have obtained illegal knowledge Great, now I know that term too. Should I wait here for the riot police and federal charges, or is there an official tazing/surrender location? For editor's choice on the funny side, we've got a pair of comments regarding the recent unfortunate events around net neutrality. First, it's Toom1275 giving the FCC a pat on the back as the death of net neutrality loomed: As the deadline draws near, at least NN opponents can take comfort knowing that their perfect streak of never once providing a truthful argument to support their position is in no danger whatsoever of being broken. And finally, we've got an anonymous reaction to the evidence that not just some but most of the anti-net-neutrality comments submitted to the FCC were fake: In totally unrelated news, Verizon announced today that its next round of infrastructure investment would extend service to over two million new subscribers, all over the United States, in alphabetical order. Many, perhaps most, of these subscribers, the spokesperson emphasized, are still alive. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2012, more and more people were coming out against the efforts of the ITU's WCIT, including both Tim Berners-Lee joining the already-active Vint Cerf and Mozilla expressing its concerns. Though the White House denied that it was prepared to dump the ITU, it was firm in refusing to support a bad treaty. The ITU itself was doing a really bad job of pretending to respond to people's complaints, and even though a whole bunch of countries ended up refusing to sign the treaty, the boss decided to go ahead and declare victory anyway. Ten Years Ago This week in 2007, people were digging in to the recently introduced PRO-IP bill, with the DOJ coming out against the legislation, even as Hollywood's favorite lawmaker complained it wasn't strong enough, and the inimitable William Patry explaining the many problems with the bill. North of the border, Canada was stalling out in its efforts to introduce its own version of the DMCA as public opposition continued to grow rapidly. And, in a piece of news that is especially amusing given recent events, people were just realizing that you could pretty much submit anything to the FCC's public comment system, including fake comedy entries claiming to be from Leon Trotsky, George W. Bush and... Donald Trump. Fifteen Years Ago This week in 2002, there was a lot of uncertainty in the world of internet distribution and media distribution in general. We believed predictions that the DVD would be the last physical format, perhaps underestimating Hollywood's aggression on that front — like the fact that device makers appeared poised to give in to demands to put copy protection in everything. The Balkanization of the web into many walled gardens was becoming really concerning (though of course it was still silly for folks like the New York Times to be predicting "the end of free content"), but some folks like Tim O'Reilly were at least able to see the bigger picture on issues like piracy. And while it's easy to forget today that it wasn't always that easy or cheap to get yourself a web host for your small business (let alone personal) needs, in 2002 it was a big deal that a major player like Yahoo announced it would be getting into the small business hosting game. Permalink | Comments | Email This Story

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Earlier this year, we covered the horrific story of the death of a 5'4" 110-lb. 18-year-old at the hands of the Mesquite (TX) police department. The teen, suffering from a bad acid trip, was tased multiple times, threatened with death by an officer, and left to die in a jail cell with little more than a cursory nod towards his health and wellbeing. Graham Dyer's parents were unable to obtain any details about their son's death from the Mesquite PD. The department refused to turn over records, pointing to state law allowing it to withhold records on arrested suspects who never faced criminal charges. This exemption may have made sense to lawmakers at the point it was passed. But in-custody deaths are inherently questionable. This exemption does little more than give law enforcement agencies everything they need to cover up misconduct. Fortunately, Dyer's parents didn't stop there. They asked the FBI to open an investigation into their son's death. The FBI closed its investigation without forwarding it to the DOJ for charges but the investigation did serve at least one purpose: it allowed Dyer's parents to finally obtain records related to their son's last night on earth. What they found was horrifying. Video showed their son thrashing around in the back of a police car, incoherent and completely unrestrained. Captured audio captured an officer threatening to kill their son if he didn't calm down. The in-car video also showed the same officer repeatedly tasing their son in the testicles. (The officer claims he was aiming for the "inner thigh" but Dyer kept moving. Considering a taser is effective almost anywhere it's placed, why place it so close to a person's testicles unless you're hoping to "accidentally" tase that part of the arrestee?) They also saw their son dragged from the police car at the jail sally port, laying on the floor with an officer's foot on his head. Without these records from the FBI, the Dyers would never have known what led to their son's death. The Mesquite PD's refusal to turn over records also served its own purpose: it ran the clock on the statute of limitations. The state can no longer bring criminal charges against the officers -- despite the DA saying there's evidence of criminal behavior. But that can't prevent the officers from being sued. The Dyers have taken the Mesquite PD to court and now, at long last, the PD is being forced to hand over the documents it refused to give to the teen's parents. What's in these documents -- and the officers' testimony -- only adds to the portrait of these officers' depraved indifference. To begin with, the officers who arrested Dyer showed almost zero concern for his wellbeing. Not once did they consider bringing the teen to a nearby hospital. Nor was any sort of health check given when Dyer was turned over to the local jail. But the arresting officers had every reason to believe Dyer might be seriously injured. While being loaded into a cruiser, Dyer banged his head several times against the car. During the first mile on the drive to the city jail, he slammed his head 19 times against the side door, back seat or metal cage separating the car’s front and back. Halfway to the jail, in what they have described as an attempt to calm him down, the officers pulled to the side of the road. One used his Taser, shocking Dyer in his testicles. Some police departments call for a medical evaluation after Taser use. Instead of diverting to the emergency room a half-mile away, however, the officers resumed driving. No additional restraints were applied, and during the second half of the trip Dyer hit his head against the car’s interior 27 more times. At the jail, officers unloaded the handcuffed and leg-tied Dyer onto the sally-port floor outside the jail. There, they watched him bang his head again on the concrete pad. According to their own testimony, none of the officers informed jail staff about possible head trauma suffered by Dyer. Nor did anyone ask for medical care until after Dyer had been laying motionless in a jail cell for two hours. On top of that, the officers' stories -- backed by apparently falsified reports -- are falling apart. The Dyers have noted that, at the least, the depositions given by the five police officers who responded to the middle school on Aug. 13, 2013, have challenged the official version of Graham’s arrest that police initially presented to them. In their pleadings, police described Graham and his friends as belligerent and combative. But in individual depositions, the officers conceded the teens were mostly cooperative. Graham, for example, was kept on the ground for more than 10 minutes with modest effort, they said. [...] In their original incident report, the Mesquite officers had written: “Dyer could not calm down and walk to the patrol unit, therefore officers had to carry Dyer to the patrol unit.” Yet the video depicts him walking to the cruiser. At the jail, the police report again described Graham as combative: “It took multiple officers and detention officers to remove Dyer from the back seat of the patrol unit, escort him inside the jail, and placed him in a restraint chair and padded cell for his safety.” The video, however, shows him lying mostly motionless on the ground. It's a compound lie. Dyer was never placed in a restraint chair. He laid on the concrete floor until officers booked him and left him in a cell to finish dying. Even though the statute of limitations prevents the DA from bringing charges against the officers, it doesn't prevent the Mesquite PD from handing out its own discipline. But it has done nothing. All officers involved in Dyer's death remain employed. Fortunately, the FBI's investigation has given the Dyers the documentation they need to pursue legal action against the Mesquite PD. But that may be the only good to have come out of this. A bill brought by a state rep to close the exemption the Mesquite PD used to wait out the statute of limitations died on the House floor. And in the end, it won't be the involved officers paying for the teen's death, it will be the state's taxpayers. Permalink | Comments | Email This Story

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If cops have the ability and opportunity to record a traffic stop, should it be held against them when they don't? Arguments have been made to that effect for a few years now. Dashcams have been in wide use for at least a couple of decades. Law enforcement agencies all over the US are issuing body cameras to officers. But it seems whenever something questionable happens, footage is nowhere to be found, or what there is of it is almost useless. Unfortunately, years of discussion by (mainly) defense lawyers hasn't resulted in policy changes. Worse, it hasn't budged the judicial needle much. In rare cases, the absence of footage is used against officers, but in those cases, it mainly seems to be because efforts were made to destroy footage already captured. In this case [PDF] reviewed by the Sixth Circuit Appeals Court, no effort was made post facto to destroy footage. Instead, an officer proactively prevented footage from being created by disabling the dashcam recording the traffic stop. (via FourthAmendment.com) The defendant made a few different arguments for suppression of evidence obtained via a search of his vehicle. Citing Rodriguez, he claimed the wait for the K9 unit unnecessarily prolonged the traffic stop. The appeals court disagreed, saying its interpretation of the Supreme Court's decision gives officers about 20 minutes to freely violate citizens' rights. Defendant next argues that the search violated the Fourth Amendment because the officers extended the stop beyond the time required to investigate the traffic violation in order to conduct a canine sniff. The district court determined that the delay was not excessive, relying upon United States v. Collazo, 818 F.3d 247, 257-58 (6th Cir. 2016), in which we countenanced a traffic stop that exceeded twenty-one minutes based on the totality of the circumstances. Here, the district court observed that the canine unit appeared within ten minutes of the stop, the car’s paperwork, which was a rental, did not include any of the passengers as authorized drivers, and the GPS information indicated that defendant had been out-of-state, which was prohibited by the terms of his parole. While these factors might individually have an innocent explanation, the court found that “from a law enforcement perspective all that adds up . . . to a reasonable suspicion for an extension, which . . . wasn’t very long anyway.” This completely ignores Supreme Court precedent, which made it clear it wasn't the length of the rights violation, but rather the violation itself. Once the purpose of the traffic stop has been achieved, any fishing expeditions by law enforcement past that point are Constitutional violations, whether it's five minutes, ten minutes, or a half hour. A holding like this makes it that much easier for officers to slow roll traffic stops so they can run a drug dog around a car they stopped for a lane change violation. That's what appears to have happened here and both courts (district, appellate) said this is fine. Trooper Boven returned to his cruiser after collecting everyone’s identification and ran the information through two law enforcement databases to check for outstanding warrants and to confirm that Mercedes Hunt was a valid driver. Defendant contends that Trooper Boven entered the information slowly in order to prolong the traffic stop until the canine unit arrived, which it did shortly after he finished processing the licenses. In this case, there was plenty to be reasonably suspicious about, hence the call for the K9 unit. But once the K9 unit arrived something strange happened. The officer turned off his dashcam, ostensibly to "protect" the confidentiality of an informant. Once Deputy Osbun arrived, Trooper Boven explained the situation to him to “keep him in the loop” and for officer safety. He also turned off the dashboard camera. According to his testimony, he did so to prevent information about the confidential informant from coming to light in case the stop revealed no drugs. After speaking with Deputy Osbun, however, Trooper Boven apparently forgot to restart the dashboard camera and, as a result, there is no footage of the search of the car. In total, twenty minutes elapsed before the camera was restarted. The defendant challenged this, stating the missing footage prevented him from directly challenging the supposed probable cause generated by the dog's nose. And there were sufficient reasons on record to warrant doing so. Defendant contends that the lack of a visual record of the search undermines his ability to challenge the legitimacy of the canine alert to narcotics. First, there are no records maintained of the dog’s prior performance in the field. Second, Deputy Osbun recalled up to six false alerts at the suppression hearing, which defendant contends is a significant number given that dogs are deployed only when the presence of drugs is suspected. Third, the lack of dashboard camera footage makes it nearly impossible for defendant to challenge whether Deputy Osbun’s interaction with the dog may have influenced its subsequent alert. Finally, defendant characterizes the missing video footage as “spoliation” for which the government must be held responsible. The district court, however, didn't view this as spoliation of evidence. For the most part, the legal argument is sound. You can't ruin evidence that doesn't exist. The problem is that if you can prevent such evidence from ever existing, you can probably get your questionable actions excused by the courts. The Appeals Court affirms the lower court's decision. While the totality of the circumstances makes this a less-than-ideal test case, the fact remains too much slack is being cut by the courts. The camera could have been left on. Any concerns the trooper had about his informant's confidentiality could have been addressed by the department. They could have been presented to the court prior to turning over the footage in case redactions were warranted. But shutting off a camera during a stop -- especially a pretextual stop where an officer deliberately slowed down his ticket-writing duties to bring a drug dog to the scene -- should be treated as a failure to preserve evidence by law enforcement. In this case, the Sixth Circuit does double damage: it ignores the issues raised by cops disabling cameras during traffic stops, and gives officers in its jurisdiction 20 minutes in which to violate rights (and the Supreme Court's Rodriguez decision) without fear of reprisal. Permalink | Comments | Email This Story

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The Mirai botnet that swept through poorly-secured devices last year resulted in unprecedented denial-of-service attacks. At one point, the botnet turned its wrath on security researcher Brian Krebs' site, resulting in a sustained attack that saw Krebs' DDoS protection service (Akamai) say it was getting too old for this shit uninterested in providing further protection for this particular user. The people behind the botnet have just pled guilty to federal charges. Three men have pleaded guilty to federal cyber-crime charges for launching a cyberattack last year that knocked large parts of the internet offline. Paras Jha, Josiah White, and Dalton Norman were indicted by an Alaska court in early December, according to documents unsealed Wednesday. The Justice Dept. released a statement later in the day confirming the news. Prosecutors accused the hackers of writing and using the Mirai botnet to hijack vulnerable internet-connected devices to launch powerful distributed denial-of-service (DDoS) attacks. According to Jha's plea agreement, the botnet ensnared more than 300,000 vulnerable devices. But the story behind the botnet suggests it was never meant to become a global threat or used to target researchers like Krebs. The malware was far from benign, but it wasn't written to bring the internet to its knees. It was meant to do something much simpler.. Garrett Graff has put together an amazing story of Mirai's origin over at Wired -- one that begins in a college dorm room and involves crafting tables, zombie pigs, and battles for server superiority. As the 2016 US presidential election drew near, fears began to mount that the so-called Mirai botnet might be the work of a nation-state practicing for an attack that would cripple the country as voters went to the polls. The truth, as made clear in that Alaskan courtroom Friday—and unsealed by the Justice Department on Wednesday—was even stranger: The brains behind Mirai were a 21-year-old Rutgers college student from suburban New Jersey and his two college-age friends from outside Pittsburgh and New Orleans. All three—Paras Jha, Josiah White, and Dalton Norman, respectively—admitted their role in creating and launching Mirai into the world. Originally, prosecutors say, the defendants hadn’t intended to bring down the internet—they had been trying to gain an advantage in the computer game Minecraft. Minecraft may seem to be a cooperative game, but competition for server traffic is anything but. Popular servers charge players rent for online real estate, allowing them to set up semi-persistent worlds for other players to visit. A popular server is big business. The Wired article says some server owners rake in $100,000/month during summer months when traffic is at its peak. That's what these students were attempting to do when they unleashed their malware: DDoS competitors' servers to funnel players to theirs. [A]ccording to court documents, the primary driver behind the original creation of Mirai was creating "a weapon capable of initiating powerful denial-of-service attacks against business competitors and others against whom White and his co-conspirators held grudges.” Once investigators knew what to look for, they found Minecraft links all over Mirai: In an less-noticed attack just after the OVH incident, the botnet had targeted ProxyPipe.com, a company in San Francisco that specializes in protecting Minecraft servers from DDoS attacks. “Mirai was originally developed to help them corner the Minecraft market, but then they realized what a powerful tool they built,” [FBI agent Bill] Walton says. “Then it just became a challenge for them to make it as large as possible.” The end result was a mammoth botnet of 200,000-300,000 enslaved devices capable of generating up to 1.1 terabits per second in junk traffic. Once the three realized what they'd unleashed, they dumped the code online in hopes of obscuring its source. The whole story is a fascinating read, digging deep into the casual use of botnets and DDoS attacks by Minecraft server owners and the mostly-accidental thermonuclear-level havoc it wreaked on the internet. Unfortunately, you'll also learn little has been learned by manufacturers -- and users -- of internet-connected devices in the aftermath of these attacks. Two weeks ago, at the beginning of December, a new IoT botnet appeared online using aspects of Mirai’s code. Known as Satori, the botnet infected a quarter million devices in its first 12 hours. Permalink | Comments | Email This Story

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The last time we checked in with the folks behind the massively popular video game PlayerUnknown's Battlegrounds, the company was complaining about Epic Games "ripping off" its 100 vs. 100 player game mode for its Fortnite title. In that post, we attempted to explain why this sort of thing isn't "ripping off" in an intellectual property sense, because the idea/expression dichotomy exists. Using someone else's idea for creative expression is not infringement, whereas using someone else's specific creative expression is. Simple enough. Except the folks behind PubG, as the game is sometimes known, didn't take to this intellectual property lesson and are now instead suggesting that the entire video game industry needs much more intellectual property protection because of all the "ripoffs" out there. This from the creator of the game, Brendan Greene. He claims elements of his game, Player Unknown's Battlegrounds (PubG), have been ripped off by other titles and he wants better protection from copycats. Newly released on the Xbox One, PubG almost singlehandedly created a new genre, the Battle Royale game. "I want other developers to put their own spin on the genre... not just lift things from our game," Brendan says. It's worth noting that PubG is indeed a unique game in many ways. By tweaking several aspects of a well-worn genre and upping the map size and player count in a battle royale format, the game has become wildly successful. So successful, in fact, that one wonders exactly what danger Greene is seeing out in the hinterlands of clone-games. Speaking to the Radio 1 Gaming Show, Brendan says: "I want this genre of games to grow. "For that to happen you need new and interesting spins on the game mode. "If it's just copycats down the line, then the genre doesn't grow and people get bored." Sure, there are indeed games that look to essentially clone others, including PubG. But those games are rarely more than blips on the radar in terms of success. And if you think about it, it's obvious why that is. If game A comes along and introduces new features and gameplay that people gobble up, and then game B tries to copy that format closely, people aren't going to be buying game B because they already have game A. The only reason to buy the second game is if it offers something the first doesn't, in which case it isn't a clone at all, but a separate creative expression that may have some similar elements to the first. That's exactly how culture, including game genres, are supposed to morph and grow, and it's essentially Exhibit A as to why the idea/expression dichotomy is such a treasure. Greene also has a strange idea that video games are not afforded much in the way of intellectual property protections. Brendan explains: "There's no intellectual property protection in games. "In movies and music there is IP protection and you can really look after your work. In gaming that doesn't exist yet, and it's something that should be looked into. Let's put a fine point on our response to this one: .......wut? The idea that games are not afforded intellectual property protection would come as news to this writer. I must now do some deep introspection, because I'm fairly sure I've written hundreds of articles right in these here pages about intellectual property disputes in the video game industry. In fact, not only do IP protections for games exist, the gaming industry specifically has done more in the realm of the nefarious to protect that IP than any other industry (see all of DRM, forever, everywhere). Claiming otherwise is nearly enough for a wellness check on Greene. Beyond that, some of Greene's reasoning is downright bizarre. "Look at movies, Armageddon came out then 20 other comet disaster films came soon after," Brendan Greene explains. Can any of our readers actually name 20 comet disaster movies that came out after Armageddon? I can't even name two. And the reason for that is obvious: once Armageddon did it, it was played out. No reason to go see another one of those movies. His example is actually a perfect encapsulation of why this isn't a problem. One of the only meteor disaster movies I can recall is Deep Impact, which came out before Armageddon, and indeed was the inspiration for that film, so even this one example only works at a fifth of its supposed impact, and only in reverse. It would be hard to be more wrong with an example than this. It's also helpful to look at the Wikipedia article that describes, in the first paragraph on the game's development, just how much influence and borrowing Greene's game owes to its success. Lead designer Brendan Greene, better known by his online handle PlayerUnknown, had previously created the ARMA 2 mod DayZ: Battle Royale, an offshoot of popular mod DayZ, and inspired by the 2000 film Battle Royale.[8][9] At the time he created DayZ: Battle Royale around 2013, Irish-born Greene had been living in Brazil for a few years as a photographer, graphic designer, and web designer, and played some video games such as Delta Force: Black Hawk Down and America's Army.[10][11] The DayZ mod caught his interest, both as a realistic military simulation and its open-ended gameplay, and started playing around with a custom server, learning programming as he went along.[10] Greene found most multiplayer first-person shooters too repetitive, as maps were small and easy to memorize. He wanted to create something with more random aspects so that players would not know what to expect, creating a high degree of replayability; this was done by creating vastly larger maps that could not be easily memorized, and using random item placement across it.[12] Greene was also inspired by an online competition for DayZ called Survivor GameZ, which featured a number of Twitch.tv and YouTube streamers fighting until only a few were left; as he was not a streamer himself, Greene wanted to create a similar game mode that anyone could play.[12] His initial efforts on this mod were more inspired by The Hunger Games novels, where players would try to vie for stockpiles of weapons at a central location, but moved away from this partially to give players a better chance at survival by spreading weapons around, and also to avoid copyright issues with the novels.[9] In taking inspiration from the Battle Royale film, Greene had wanted to use safe square areas, but his inexperience in coding led him to use circular safe areas instead, which persisted to Battlegrounds.[9] In that one paragraph alone, how many times are borrowing and influences in the game's development and Greene's previous work are mentioned? Way more than the number of comet disaster films that have came out immediately after Armageddon, that's for sure. Meanwhile, hey, BBC, how about injecting a little actual journalism into pieces like this? All of these refutations above weren't exactly hard to tease out of a few well-phrased Google searches, after all. Maybe it'd be better not to simply parrot the claims of someone clearly out of their depths on matters of intellectual property. Permalink | Comments | Email This Story

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Because it's worked oh so well in the past, European news agencies are (again!) calling for service providers like Google and Facebook to start paying them money for sending them business. Nine European press agencies, including AFP, called Wednesday on internet giants to be forced to pay copyright for using news content on which they make vast profits. The call comes as the EU is debating a directive to make Facebook, Google, Twitter and other major players pay for the millions of news articles they use or link to. "Facebook has become the biggest media in the world," the agencies said in a plea published in the French daily Le Monde. "Yet neither Facebook nor Google have a newsroom... They do not have journalists in Syria risking their lives, nor a bureau in Zimbabwe investigating Mugabe's departure, nor editors to check and verify information sent in by reporters on the ground." "Access to free information is supposedly one of the great victories of the internet. But it is a myth," the agencies argued. "At the end of the chain, informing the public costs a lot of money." This is a doomed idea. First off, if the demands are a pain to implement, news agencies can expect to start seeing referral traffic drop as other news sources not tied to payment demands see their search engine stock rise. If they continue to press for a cut of these companies "billions," they can expect to be cut off completely. This isn't hypothetical. Second, any agency that wants to cut off the search engines supposedly bleeding them dry can always block the engines' crawlers. But this obviously isn't about killing off search engine hits and Facebook sharing -- it's about dipping a hand into pockets of service providers for having the audacity to expand the reach of European news agencies. Finally, there's nothing in it for news agencies even if they succeed in getting a snippet tax implemented. They see companies worth billions and think skimming a little off the top will put them back in the black permanently. But anyone who knows anything about ad payouts knows CPM "taxes" aren't the road to riches. In reality, any implemented scheme would involve hundreds of news sites divvying up fractions of cents between themselves for search result impressions. Payouts might be slightly higher for more direct clicks from referrers like Facebook, but at best, new agencies should expect a few bucks a month from a link tax, rather than the thousands (or millions) they envision. The news agencies supporting this move are complaining about declining ad revenue and think charging platforms for sending them traffic is the solution. This has been tried and it hasn't worked, but hope springs eternal when you're all out of innovative ideas. Permalink | Comments | Email This Story

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