posted 23 days ago on techdirt
A bunch of personal mobility devices have sprung up -- and sometimes they're compared to a Segway (and sometimes not). Motorized small bikes, scooters, skateboards, skates... It seems like anything that has wheels is getting a 2.0 remake with electric-powered drivetrains and smartphone controllers (or some other intuitive user interface). A lot of these things seem like toys right now, but it's possible there's a lurking innovation that could improve how we get around significantly. Check out a few of these attempts to reinvent the wheel. Yet another way to put electrically-powered wheels on your existing shoes... allows you to walk nearly effortlessly at 7 mph. These things could be a nice way to get around quickly -- or they could turn a bunch of people into Darwin award winners. [url] There are all kinds of "rideables" to try: Zboard, Motoboard, Leif, Solowheel, Hovertrax, Orbitwheel, Lunicycle, etc. It doesn't look like any of these rideable gadgets are going to change personal transportation, but some of them look cool at least. [url] The self-balancing Segway started a strange trend of devices that had one less wheel than you'd probably like, and OneWheel is a skateboard that continues the fad. Apparently, though, enough people have pre-ordered one on Kickstarter for the company to really start producing them and upgrading its features. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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For years, I've begged and pleaded with the powers that be for major American sports to be untethered from cable television and released into the world of real internet streaming options. Then the dominoes finally, albeit extremely slowly, began to drop. Even as some leagues wasted opportunities to expand streaming, like the NHL, other leagues are slowly beginning to let the door creak open. The most recent example was the NBA negotiating their broadcast contracts such that internet streaming was expanded considerably. While the expansion was real, the overall penetration in terms of the gross number of games that would be streamed is still limited. The other notable aspect of the NBA deal was that the streaming expansion was clearly being forced upon broadcasters by the NBA as part of the negotiations, rather than broadcasters themselves embracing streaming. It looks like the times are a-changing a bit faster than even I would have thought. For what I believe is the first time, major cable sports is coming to internet-only subscribers in a partnership between ESPN and Dish. Lots of people say they want to ditch cable TV for the Web, but can’t because they want to watch sports — specifically the stuff on ESPN, which has a hammerlock on much of the sports world. Now they will finally get a chance: Dish’s new Web-TV service, which the company is formally announcing today, lets you stream ESPN, over the Web, for $20 a month. Dish’s “Sling TV”* offering, which the company says will launch “soon,” also comes with 10 other non-ESPN channels, including the Food Network, CNN and the Travel Channel, and the ability to add more networks for additional fees. A couple of things that you'll hear from the detractors are obvious. First, twenty bucks a month for 11 cable channels added to your ISP bill doesn't sound like the greatest deal money-wise. Add to that that this deal has been done with Dish and not a company like Comcast, AT&T, or the like and it's easy to see this move as ESPN dipping its toe in the streaming waters to see if there be sharks down there. Let me respond to both of those points: neither matters even a little bit. This is all about trending and the trends are clearly in favor of expanded streaming by all parties that desire to stay in business. If the price point is too high for the number of channels received, it will come down to meet demand, because the demand is the driving force. If this is a Dish-only deal today, it won't be the moment ESPN recognizes the value in offering it in the future. The company will either insist other carriers offer something similar or they'll simply open up their web product directly, which I think would be the better choice for them anyway, because this is ESPN we're talking about and having them stream matters. Getting ESPN in the streaming game means the modern concept of cable television subscriptions has had its coffin built and is awaiting the final nails. When it comes to reasons for not cutting the cord, professional sports ranks number one, and ESPN is number one in cable pro sports. Re/code is exactly on point as to how far ahead of the game this puts things. That wasn’t supposed to happen for years, but here we are. It’s not the end of pay TV — the networks that are doing this believe they can sell this stuff on the Web without compromising their existing businesses — but it certainly could be the beginning of the end. At the very least, it’s going to be hard to roll this back. It's the opening of a floodgate and the waters are saturated with soon-to-be cord cutters. One wonders if Netflix's Reed Hastings had some idea that this was coming when he predicted the death of broadcast TV in 2030, because this sets that outcome in motion as well. Permalink | Comments | Email This Story

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The CBP's drone squadron has been a tightly-held secret. Documents have been pried loose by FOIA lawsuits, but it's pretty clear the DHS and the CBP would rather not discuss its flying surveillance technology. Not that the CBP drones are strictly for patrolling our nation's borders. They've been spotted far inland, being used by law enforcement agencies taking advantage of the CBP's drone lending library. Finally, more details on the CBP's drones have made their way into the public domain, thanks to an Office of the Inspector General report. [pdf link] The information contained in this document points to two seeming contradictions, albeit the sort of contradictions often found in government agencies that run long on Congressional support but short on effective oversight. They're expensive: We estimate that, in fiscal year 2013, it cost at least $62.5 million to operate the program, or about $12,255 per hour. And they're worthless: Given the cost of the Unmanned Aircraft System program and its unproven effectiveness, CBP should reconsider its plan to expand the program. The $443 million that CBP plans to spend on program expansion could be put to better use by investing in alternatives, such as manned aircraft and ground surveillance assets. This table makes it completely clear how little this technology has contributed to safer borders. The drone program began with the assumption that long-range eyes in the sky would be cheaper than running agents all over the place. Supposedly, the drones would be able to cover areas that wouldn't be feasible using humans and ground vehicles. The CBP has 7,000 miles of land borders and 2,000 miles of coastal waters to cover, but its long-range drones, for the most part, kept an eye on only two very small areas. [A]ccording to CBP, in FY 2013 UAS operations along the 1,993-mile southwest border focused on about 100 miles of Arizona border and operations in Texas concentrated on about 70 miles of that state’s border. The OIG found that the CBP's enthusiasm for drones far exceeded the agency's grasp. It envisioned nearly round-the-clock surveillance over large areas. It delivered minimal coverage for nearly $13,000/hour. [T]he unmanned aircraft logged a combined total of 5,102 flight hours, or about 80 percent less than what OAM anticipated. The OAM (CBP's Office of Air and Marine) blames budget constraints. It wants $443 million to acquire more drones and keep the ones it has airborne more often. But the OAM seemingly has no idea what its actual costs are, much less what it might need to reach its 16-hour-a-day goal. It underreported drone operating costs to the OIG by nearly $10,000/hour. And yet, it wants to be trusted with more money and more toys. The Office of Air and Marine’s calculation of $2,468 per flight hour does not include operating costs, such as the costs of pilots, equipment, and overhead. By not including all operating costs, CBP also cannot accurately assess the program’s cost effectiveness or make informed decisions about program expansion. Even with 5,100 hours of flight time being logged, the eyes in the sky contributed to only 2,300 apprehensions. The CBP's ground forces made over 10 times as many apprehensions. An apprehension for every half-hour of flight time is a pretty good ratio (said here without any meaningful stats to compare it to), but that works out to about $6,000 per detainment -- hardly an indicator of efficiency. The CBP argues that apprehensions aren't a good measure of the drones' value. It prefers to use "detections." All well and good, but even though that number is higher (18,239), the agency was unable to demonstrate to the OIG that there was a meaningful connection between what the drones "saw" and effective border enforcement. The OIG notes the CBP's objection, but still sticks with the lower apprehension measurement. The CBP also claims drug seizures to be a better measuring stick of effectiveness than apprehensions, but even this self-selected metric is underwhelming. The report also calls out the CBP for vastly misrepresenting the amount of area covered by its drones. According to CBP, our statements that unmanned aircraft are not operating along the entire southwest border are inaccurate. CBP said OAM has authorization to fly, and has flown, the unmanned aircraft along every stretch of the southwest border, from California to the Texas gulf coast. OAM provided additional flight hour information that showed 44.6 hours flown over California and 3.8 hours flown over New Mexico. The California hours involved an unmanned aircraft flying over that state to conduct missions over water off the state’s southern coast. We do not know what the 3.8 hours over New Mexico flight hours involved. OAM did not provide information that showed surveillance missions in either of these states. We believe it is misleading for CBP to report that its unmanned aircraft operate over every stretch of the southwest border when these flights appear to be simply on the way to another mission. It's not that drones are completely useless. It's that these particular ones are. Ars Technica quotes drone law expert Brendan Schulman: "Smaller drones, used in closer proximity to border areas, may turn out to be far more efficient and effective at this type of mission," he wrote in an e-mail. "The Predator is a very large airframe that is over a decade old. One of the recommendations of the report is to conduct a study on whether investments in alternatives, such as manned aircraft and ground technologies, might work better. Newer, low-cost drones that have been developed over the past year or two might be another alternative worth investigating." The best thing the CBP can do at this point is drop its defensiveness about its underutilized (but overhyped) drone program. There is no doubt the agency will continue to use drones, but it needs cheaper and more agile technology. And while it's updating its fleet, it should also update its Privacy Impact Assessment. We know the FBI has yet to make its public, and the CBP's current PIA makes no mention of its drone lending program -- nor does it require similar assessments from those it lends its fleet (and operators) to. Drones will continue to be a part of border surveillance, but just because they're inescapable doesn't mean the CBP is justified in its insistence on throwing more money at a program that clearly needs a major overhaul.Permalink | Comments | Email This Story

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When the government seizes computers and storage devices linked to criminal activity, it has the obligation to return these once the investigation is over. A verdict in either direction or a guilty plea effectively eliminates the government's claim on the seized items. Now, the government may argue that it can't separate the criminally-related files from the "innocent" ones, but it bears the burden of proof for this claim. A man convicted of child porn possession has been fighting to reclaim his personal emails and photos from the government, but so far has been rebuffed by its claims that separating the good and bad files would be too difficult to pursue. A lower court agreed with the government's assessment of the situation, but this has now been overturned by the Ninth Circuit Court of Appeals. As the ruling notes [pdf link], the lower court failed in its duty to shift the burden of proof from the convicted man to the government. The panel held that the district court’s decision not to put the burden of proof on the government was legal error, where the defendant filed the Rule 41(g) motion after he pleaded guilty and the government no longer needed his property as evidence. The panel held that the government could not have carried its burden of proof had the district court correctly placed it on the government, where the government failed to submit any evidence of the difficulty and costs of segregating the defendant’s data, which it claimed was a legitimate reason for retention of the noncontraband files. While keeping in mind that the government can raise legitimate concerns about the cost and difficulty of segregating data, the lower court allowed the government to make unsupported claims about the task at hand. While the government did file some paperwork along with its opposition to the release of the files, nothing it submitted bore relevance to the case at hand. The government attached three exhibits to its opposition brief: (1) a document listing some of Gladding’s property the government found to be noncontraband; (2) email correspondence between counsel; and (3) the transcript of a hearing on a similar dispute in a different case. None of the exhibits established the burden or cost to the government of segregating contraband from noncontraband computer files. Gladding hired a digital forensics expert who was able to retrieve a great deal of the non-criminal files, despite arguments from the government that doing so was technically unfeasible. But there were still some files left that Gladding wanted returned and, again, he was stonewalled by the government, with an assist by the district court, which muffed the "burden of proof" determination. The district court did not expressly state whether Gladding or the government had the burden of proof on the motion. However, the parties impliedly concede the court put the burden on Gladding. And the district court’s brief analysis denying Gladding’s motion sheds light as to whom the district court thought should bear the burden of proof. The district court denied Gladding’s motion because it was “satisfied” by the government’s “representations” that it is “almost impossible to separate [the noncontraband files] out.” But representations are not evidence, unless adopted by the opponent. The government failed to submit any evidence of the difficulty and cost of segregating Gladding’s data, which it claimed was a “legitimate reason” for retention of the noncontraband files. For that reason, the government could not have carried its burden of proof had the district court correctly placed it on the government. The district court’s decision not to put the burden of proof on the government was legal error. This looks an awful lot like a deferral to the government -- contrary to the one of the main prongs of the judicial system: to act as a check against government overreach or misconduct. This failure may have only been an "error," but it's the sort of error that undermines the system's integrity. There were multiple options available to the government to help mitigate the costs and difficulty of separating the data -- including passing those costs on to the requester -- but it was allowed to simply declare the effort to be too much trouble. By failing to shift the burden of proof, the court screwed Gladding and basically gave the government a pass to hold onto unrelated, non-criminal data for as long as it wanted to. Fortunately, the appeals court reversed the previous decision and forced the government to make an active effort to return the unneeded files. As it points out, child porn possession may be an odious offense, but a criminal's computer is rarely used solely for criminal activities. Many people store every aspect of their lives on electronic devices. Those devices are brimming with correspondence, schedules, photographs, and music. As a result, a crashing computer or a lost smartphone can lead to catastrophic results for a person who failed to back up that data; the only record for years of a person’s life can be lost in an instant. Criminals who possess child pornography are no different. Those criminals may likewise store important aspects of their lives on their electronic devices. But along with the normal risks of losing their personal data, such criminals also risk losing that personal data when the government seizes their devices for evidence of child pornography. Even if the good and bad are intermingled, the non-offending files still belong to the convicted person. The potential loss of personal data isn't presumed to be part of the "consequences" of criminal behavior. The government's unchallenged assertions about the inseparable nature of Gladding's files effectively argue that convicted persons have no right to their own files, much less the expectation that non-criminal, non-investigative data will be returned to them when no longer needed.Permalink | Comments | Email This Story

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Yesterday morning I came across an article on a site called "ThoughtCatalog" (which I'll admit I'd never heard of) after I saw some people I know discussing it on Twitter. The title is Here Is Why It's Time To Get Tough On Hate Speech In America by someone named "Tanya Cohen." It was ridiculous from the very start -- a poorly thought out attack on free speech, and inside our internal "writer's room" chat, I asked around to see if anyone wanted to write about it, including a few key quotes. But the more I read, the more I realized that it's satire. It has to be satire. Not only that, but it's damn good satire, because it's just stupid enough at the beginning to drag you in and make you believe it, and then slowly, but surely, over the course of a very long writeup, it starts tossing out ever more ridiculous ideas -- drip... drip... drip -- that just, gently, turns up the outrage-o-meter, such that many people don't even realize that it's satire. In fact, we ended up having a long internal debate on it (and others are doing the same on Twitter), with Tim Cushing writing up a Techdirt post ripping it apart as if it were serious. However, I've spiked that version and am inserting my own (because I'm the boss and can do that sort of thing) -- because this absolutely is satire, and it does a brilliant job absolutely mocking those who are attacking free speech at every turn. Again, it starts out subtly, with garden-variety stupidity around free speech: The recent controversy at the University of Iowa – in which an “artist” (supposedly an “anti-racist” one) put up an “art exhibit” which resembles a KKK member covered in newspaper clippings about racial violence – is a perfect example of why we need to implement real legislation against hate speech in the United States. The year is 2015 and all other countries have laws against hate speech along with laws against other forms of speech which violate basic human rights. As a matter of fact, international human rights law MANDATES laws against hate speech. Protecting vulnerable minorities from hate speech is one of the most basic and fundamental of human rights obligations, and all human rights organizations worldwide have emphasized this. But the United States refuses to protect even the most basic of human rights, firmly establishing itself as a pariah state that falls far behind the rest of the world in terms of protecting fundamental human rights and democratic freedoms. Hate speech laws are almost always a slippery slope to censorship, but I can see why some people find them emotionally appealing. But the idea that the US is a pariah state that falls behind the world on this issue seems a bit nutty and ill-informed. There's the usual quoting and misunderstanding of the Universal Declaration on Human Rights. That's to be expected. Then we get the expected (again, misguided) attack on the First Amendment. All pretty standard stuff for the playbook of those looking to chip away at the First Amendment: Even in countries with weak hate speech laws – countries where people freely spread lies and defamation about minorities – you still cannot legally advocate or justify violence against minority groups, and absolutely nobody believes that you should ever be allowed to. But, in the US, you can. The US allows people to advocate violence, murder, terrorism, and genocide – even against minorities – all in the name of “freedom”. How is genocide “freedom”? Where in the First Amendment does it say that genocide is acceptable? How can a supposedly civilized and democratic society possibly justify allowing people to freely incite violence and murder against vulnerable minorities? As an example, there have been several cases of US preachers saying that LGBT people should receive the death penalty. In a civilized country with democracy and human rights, anyone who said something like this would receive at least ten years in prison for inciting hatred, violence, murder, and genocide against a protected minority group. But, in the US, this is allowed in the name of “freedom”. Well, guess what? Homophobes inciting the genocide of LGBT people is most definitely not “freedom” for the highly vulnerable LGBT people who already live their lives in constant fear of homophobic violence. How can the US possibly justify – from any kind of logical standpoint – allowing this sort of thing in the name of “freedom”? Of course, "true threats" are not, in fact, protected under the First Amendment, so this is already misleading. Notice how the piece shifts easily from people saying absolutely loathsome stuff, to automatically assuming that this is incitement. That's a neat trick, and one that's used frequently. But in this paragraph is the first real hint that this is clearly satire: In a civilized country with democracy and human rights, anyone who said something like this would receive at least ten years in prison for inciting hatred, violence, murder, and genocide against a protected minority group. That brings in the idea of criminally charging and putting people in jail for 10 years for saying bad stuff. That's nutty, but not so entirely crazy that it must be satire. But the piece is, as I mentioned, subtle. Whoever wrote it is playing the long game. You need to keep reading. Next up is another popular trope of folks who like to smash the First Amendment: the "I"m a big supporter of free speech, but..." clause. Here's how "Cohen" does it: Like any sensible person, I am a strong believer in the unalienable right to freedom of speech and I understand that defending freedom of speech is the most important when it’s speech that many people do not want to hear (like, for example, pro-LGBT speech in Russia). Freedom of speech is the core of any democratic society, and it’s important that freedom of speech be strongly respected and upheld. Censorship in all of its forms is something that must always be fiercely opposed. But we must never confuse hate speech with freedom of speech. Speech that offends, insults, demeans, threatens, disrespects, incites hatred or violence, and/or violates basic human rights and freedoms has absolutely no place in even the freest society. In fact, it has no place in any free society, as bigotry is fundamentally anti-freedom by its very nature. The human right to freedom of speech must always be balanced against the human rights to dignity, respect, honor, non-discrimination, and freedom from hatred. Speech that "offends" has no place? Well, yes, there are attempts to create and pass laws that say just that, but people who understand the First Amendment and recognize the true meaning of free speech don't support that. Okay, now we get the next "drip" of "this has to be satire" -- claiming that offensive speech is on par with murder, and just to push it over the top, a claim that, when it comes to such speech, we should suspend due process and switch the burden of proof to guilty unless proven innocent: Civilized countries consider hate speech to be among the most serious crimes around, with many countries even placing it on par with murder. In some countries, people are automatically declared guilty of hate speech and other hate crimes unless they can absolutely prove their innocence beyond any reasonable doubt. The principle of guilty until proven innocent may seem a bit harsh to some, but it makes sense when you consider how severe the crime of hate speech is – it is a crime that simply cannot be tolerated in a democracy. Hate speech is not merely speech, but is, in fact, a form of violence and the international community has established hate speech to be a form of violence many times. Hate speech doesn’t merely CAUSE violence. Hate speech IS violence. No serious person could claim this with a straight face and be in support of free speech. The drips here become too much. The satire has taken over. Oh, then just for fun, the article goes political, by declaring a bunch of things fascist -- and claiming that political parties that she disagrees with are undemocratic. But, in the US, fascist political parties like the Republican Party, the Constitution Party, and the Libertarian Party are allowed to freely exist and to spread their hateful ideology, even though these parties oppose fundamental human rights and thus have absolutely no place in a democratic society. What kind of democracy allows the free existence of un-democratic parties? No society that genuinely values democracy and human rights would allow people to oppose democracy and human rights. That simply isn’t how these things work. At this point, if you haven't been keeping track, the drip-drip-dripping of satire is just so thick that I find it impossible to ignore, but others still aren't convinced. Still, I can't see how anyone could directly claim that a bunch of political parties, including mainstream ones, shouldn't be allowed to exist and that allowing such political parties is somehow an affront to democracy. There's no way a person could think that legitimately. There's a lot more of this, including falsely pretending that the Innocence of Muslims video was responsible for middle east violence, which somehow transitions into support for banning Salman Rushdie's The Satanic Verses, which she calls "Islamophobic." I mean, now it's just into laughable satire territory. Figuring out a way to come out in support of Islamic fundamentalism book banning in a piece that supposedly celebrates free speech and democracy is a real trick. Only some brilliant satire can pull it off as capably as this one does. The article then lists out "a way forward," asking for human rights legislation, with a list of types of speech that should be banned. Again, like the great satire that it is, it mixes in a bunch of ideas that some people might have sympathy for along with some absolutely batshit crazy ideas. Okay, inciting violence against people is one thing, but the proposed law here would outlaw anything that "disrespects" someone's "hair color" or "height." Also, "spreading misinformation, including climate change denial" is a punishable offense. Against immigration? Get thrown in jail. Jokes that "disrespect" the "dignity of people" are out as well. Any speech promoting "unacceptable ideas." I mean, that's straight out of authoritarian censorship handbooks. And my favorite: "anyone saying that hate speech shouldn’t be against the law would be prosecuted, since hate speech is universally recognized as an injustice and a human rights violation." Prosecuted how? With very long jail terms -- and the final kicker -- re-education camps: Anyone guilty of hate speech – which should carry criminal penalties of 25 years to life – should be sent to special prisons designed to re-educate them and to instill values of tolerance, freedom, democracy, and human rights in them. I mean, at this point, if you had any shred of belief that the article was still real, the use of re-education camps and the history they conjure should finally and totally tip the scales. But just in case you weren't convinced, one more "drip" along the way: This new human rights law will set up state surveillance of intolerant citizens, including those who voice anti-feminist views and those who voice overt approval of a totalitarian ideology. I love it. The sentence eats itself. Proposing a totalitarian state surveillance system, claiming to track those who approve of totalitarianism. There are a bunch of other bits and pieces that just add some icing on the satire cake. Here are a few: The truthfulness or factual nature of statements should not matter. These laws would not apply to members of vulnerable minority groups. ... anger against police is something that can certainly be justified, while inciting hatred or violence against LGBT people is something that can never be justified in any way and has absolutely no place in a free and civilized democracy. Every single man, woman, and child outside of the US strongly supports laws against hate speech. America’s Orwellian notion of “freedom of speech".... And, of course, it ends in a full Godwin: Otherwise, we are truly no better than Nazi Germany was. There are many other clues. The "author" of the piece, "Tanya Cohen," didn't exist online until the new year. Her Twitter feed is more of the same. And she also has a single post, from January 1st on Daily Kos, attacking Reddit for being "a home for numerous racists, misogynists, homophobes, transphobes, and other bigots." Thought Catalog, meanwhile, is a site that claims, proudly, that it enjoys publishing offensive content. Which would make it an odd place to go to publish a piece saying that publishing offensive content should net you 25 years in jail and re-education camps. I recognize that some people -- including plenty I know and respect -- still aren't convinced that it's satire. But reading through the whole thing, looking for clues has to leave you convinced that it is, without a doubt, a satirical take, from a free speech supporter trying to mock all of the tropes of the "I'm all for free speech, but..." camp, while slowly dropping more and more hints that it's satire, by making it more and more ridiculous and extreme, and including increasingly insane ideas. In the classic tradition of satire, this one sucks you in. It starts with a stupid premise, but one that is plausible because we've seen it being argued. But then it keeps twisting deeper and deeper into the crazy, such that if you're not paying attention, you might actually believe it. If you don't take a second to step back, you might miss just how brilliant a satire it is. Or, maybe it's all real and someone really is that screwed up. But you'll have to send me to prison and a re-education camp to convince me that anyone could really think such thoughts seriously.Permalink | Comments | Email This Story

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The astoundingly wonderful radio program/podcast Radiolab just recently had an episode called "Worth" -- which included a few different stories trying to establish how much something is truly "worth." The first story in the collection talked about how much extra time in life is worth, as part of a discussion on whether or not it's reasonable for certain drugs to be priced insanely high. It was an interesting discussion, mostly revolving around the question of whether it's "worth" paying tends of thousands of dollars for a drug treatment that might only extend your life a few weeks. There is just a brief discussion about whether or not it's appropriate for pharmaceutical companies to charge the rates that they do -- with the Radiolab team unfortunately accepting the tired (and incredibly misleading) claim from a drug company that because drug research includes so many failures, it needs to charge these ridiculous high rates to make up for all the failures. This is misleading in all sorts of ways, though that will need to be the subject of another post at another time. My biggest complaint, after the story was over, was that it failed in economics 101. It stuck with the premise that there was a quantifiable single amount that something was "worth" -- and that price is a reflection of that. This is something that many people tend to feel, instinctively, but it's not accurate. The value of something is different to different people and depends on many factors. The price of something may be quite different than the value -- again, something we've been highlighting for years. Here's the key bit: the price of something is driven by supply and demand. When you -- as the program did -- look at price solely based on "value" you're only looking at the demand side of the equation, and not the supply. And that's where things get extra tricky in pharmaceutical pricing -- because the supply side is massively distorted through patents, which enable drug companies to artificially limit the supply, driving up prices to insane levels. In a normal, functioning society, we might recognize that this is a problem. Deriving pricing for healthcare solely based on demand is ludicrous, and shows a society with very short-term thinking. It prioritizes short-term narrow profits of drug companies over long-term contributions from a more healthy populace. But this is the way of our pharmaceutical industry today. And these distortions have become something of, well, a drug to the pharma industry. They've become so fat and happy based on the monopoly rents of patents artificially limiting supply, that they can't fathom how to survive without such rents. That crutch has resulted in big pharma running into some serious problems lately -- because they haven't been discovering many really valuable new drugs lately. At the same time, many of their old drugs have seen their patents start to expire. In response, pharmaceutical companies have been pulling out all sorts of tricks to try to extend the monopoly rents (rather than actually improving people's health or their own business model). For a while, we were discussing "pay for delay" schemes, in which big pharmaceutical companies would sue small generic drug makers... and then "settle" by paying those generic companies a bunch of cash not to compete with generic drugs for some time. That practice recently became harder after the Supreme Court said that the FTC can go after such practices as a form of antitrust enforcement. But that's not the only game that big pharmaceutical firms have been playing. A recent lawsuit filed by New York against Forest Labs and its parent company Actavis revealed that the company was trying to force Alzheimer's patients onto a new drug, and away from one that they had been using. The only real difference in the two drugs: the length of the patent protection. Basically, the company was trying to force patients onto a drug that wasn't close to becoming available in generic forms, which would make it much, much cheaper. From the lawsuit: This case is brought to prevent Defendants from illegally maintaining their monopoly position and inflating their profits at the expense of patients suffering from Alzheimer's disease. The manipulative tactic that the Defendants seek to employ here is what some in the industry, including Defendants' own CEO, have called a "forced Switch." In a forced switch, a pharmaceutical company that sells a drug facing imminent generic competition withdraws its drug from the market, forcing patients to switch to a different form of the drug with patents that expire later. The switch has the effect of impeding the entry of lower-cost generic drugs. A physician recently complained to Defendants, aptly describing their contemplated action as "immoral and unethical." It is also illegal. Defendants sell a blockbuster drug to treat Alzheimer's disease, called Namenda. Namenda is Forest's top selling drug, and is protected by patent and regulatory exclusivities that prevent generic versions from entering the market until July 2015. But rather than allowing patients with Alzheimer's to continue to take Namenda and switch to the less expensive generic version when it becomes available, as contemplated by federal and state drug laws, Forest instead hatched a scheme that interferes with patients' ability to make this switch. Defendants' strategy is to discontinue or severely restrict patient access to its original, immediate-release version of Namenda, known as Namenda IR, prior to generic entry in order to force patients to switch to Forest's newer, virtually identical, extended-release version of Namenda, called Namenda XR. Because Namenda XR is protected by patents for many years longer than the original Namenda IR, Defendants' goal is to use the "forced switch" to reap several more years of monopoly profits than they would have earned otherwise. Under generic substitution laws, a pharmacist will not be able to substitute lower-priced generic Namenda IR (known as memantine) for Namenda XR. As a result, once patients have switched to Namenda XR, it will destroy the market for the generic form of Namenda IR because of the dramatically increased burden, cost, and time needed to arrange for patients who have been switched to Namenda XR to switch back to the original version. Thankfully, a few weeks ago, an initial ruling in the case found that Actavis could not move forward with these "forced switch" plans and needed to continue making the original drug, Namenda IR, available. The full court ruling [pdf] is fairly detailed in how Actavis has a monopoly on the market for memantine and is abusing it in anti-competitive ways. The court notes that merely having a patent isn't necessarily proof of a monopoly -- but in this case, Actavis absolutely does have a monopoly. Further, it notes that just because you have a monopoly, it doesn't mean you're abusing it. But... Actavis does appear to be abusing its monopoly position. It didn't help that Forest Labs CEO, Brent Saunders (recently moved up to Actavis CEO as well), was pretty open about this: Saunders stated, contemporaneously with the adoption of the hard switch by Forest, that the purpose of the switch was anticompetitive: to put barriers obstacles in the path of producers of generic memantine and thereby protect Namenda’s revenues from a precipitous decline following generic entry.... He further stated: “if we do the hard switch and we’ve converted patients and caregivers to once-a-day therapy versus twice a day, it’s very difficult for the generics then to reverse-commute back, at least with the existing [prescriptions]. They don’t have the sales force, they don’t have the capabilities to go do that. It doesn’t mean that it can’t happen, it just becomes very difficult. It is an obstacle that will allow us to, I think, again go into to a slow decline versus a complete cliff.”). Of course, this particular practice, of trying to force people to avoid generic competition is increasingly widespread. As I was finishing up this post, I came across a similar, if equally disturbing, story about Pfizer directly threatening doctors should they decide to prescribe generic versions of pregabalin, an anti-epilepsy drug, that will also go off patent in 2015. But here's the tricky part: Pfizer holds a different patent on the same drug if it's used to treat pain (rather than epilepsy). Pfizer is claiming that prescribing the generic version for pain use would lead to serious problems -- even though it's the same damn drug. You will see that, whilst the basic patent for pregabalin has expired and regulatory data protection for Lyrica expired in July 2014, Pfizer has a second medical use patent protecting pregabalin's use in pain which extends to July 2017. Pfizer conducted further research and development on pregabalin leading to the invention of its use in pain and hence was granted a second medical use patent for this indication. This patent does not extend to pregabalin's other indications for generalized anxiety disorder (GAD) or epilepsy. As a result of the pain patent, we expect that generic manufacturers will only seek authorisation of their pregabalin products for use in epilepsy and generalised anxiety disorder and not for pain, whilst Pfizer's pain patent is in place. Generic pregabalin products therefore are expected not to have the relevant information regarding the use of the product in pain in the PIL (Patient Information Leaflet) and SmPC (Summary of Product Characteristics). In other words, the generic pregabalin products are expected to carry so-called "skinny labels" and will not be licensed for use in pain. In the circumstances described above, Pfizer believes the supply of generic pregabalin for use in the treatment of pain whilst the pain patent remains in force in the UK would infringe Pfizer's patent rights. This would not be the case with supply or dispensing of generic pregabalin for the non-pain indications, but we believe it is incumbent on those involved to ensure that skinny labeled generic products are not dispensed and used for pain. In this regard, we believe the patent may be infringed, even potentially unwittingly, by pharmacists and others in the supply chain, if they supply generic pregabalin for the pain indication. Without information, guidance and practical solutions from the authorities, Pfizer believes that multiple stakeholders, possibly without realizing, may contribute to patent infringement which would be an unlawful act. This runs contrary to the government's established policy of rewarding additional research by the granting of a second medical use patent. As Cory Doctorow notes in the article above, Pfizer here seems to be trying to take its own "stupid problem" and make it everyone else's stupid problem: Weirder still is that Pfizer wants to make their stupid problem into everyone else's stupid problem. The fact that it's hard to enforce this kind of secondary patent is Pfizer's business, not doctors'. Doctors' duty is to science and health, not Pfizer's profit-margins. Scientifically, there's no difference between the two compounds. Doctors who prescribe generics leave their patients (or possibly the NHS) with more money to pursue their other health goals. If your dumb government monopoly is hard to enforce, maybe you shouldn't be banking on it. But in the world of corporatist sociopathy, where externalising your costs on others isn't just a good idea, it's your fiduciary duty to your shareholders, Pfizer's actions are practically inevitable. And this brings us back to the problem discussed at the very top of this article. The entire pharmaceutical industry has built its business around the idea of artificially reducing supply -- rather than about providing more benefit (health). That's really screwed up. A good business focuses on expanding the benefit to users, not limiting it to charge more. Our patent policy has created incentives for exactly the opposite -- and that is having a massive impact on the health and well-being of people around the globe.Permalink | Comments | Email This Story

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Canipre, one of Canada's foremost anti-piracy enforcers, has a bit of a problem on its hands. Like others that zealously guard against piracy, the company expects everyone else to fully respect the IP rights of the entities it acts for. And like others in the same field, it seemingly can't be bothered to make sure it properly respects other entities' IP rights. (See also: BREIN, the BSA, the City of New York, the list goes on and on…) Michael Geist points to Canipre's latest press release, touting the use of its evidence in a Voltage Pictures lawsuit, as well as its intent to fully take advantage of Canada's new infringement notification system. Then he points to this: Yet what Canipre does not say is that a blog associated with the company may have been engaged in copyright infringement for many months. The blog – copyrightenforcement.ca – is run by Barry Logan, the company’s Managing Director, Operations (I received an email from Mr. Logan last year that listed the site as his blog address). In addition to posting releases from Canipre and information about the TekSavvy case, the site has posted dozens of full-text articles from media organizations around the world. For example, last week it posted the full text of a 1200 word article on TV piracy from the Wire Report, an Ottawa-based telecom publication. The article resides behind a paywall limited to subscribers and is listed as “exclusive content.” In fact, reposting full-text articles from other sources is a regular occurrence on the site. Posts in December feature articles from the Huffington Post Canada, Business Insider, and CNET. Earlier posts include full-text articles from the Hollywood Reporter, StreamDaily, Reuters, the Canadian Press, Global News, Vancouver Sun, and the National Post. Some of the posts include articles that strip out reference to the author (Chronicle Herald, CBC) and others include no attribution whatsoever. The site also uses photos from the articles, often without attribution. Hey, fair dealing and all that, some might say. Sure, but let's not get carried away. Posting up plain text versions of paywalled articles -- in full, without additional commentary or criticism -- isn't exactly fair dealing. And it's not as if Canipre has any respect for the fair dealing of others. It's an anti-piracy firm and its vision of the world's use of IP is solidly black and white. Either you've paid for it, or you're an infringer. And, as Geist notes, there's plenty of stuff in there that goes further than what could even be the outer reaches of fair dealing. The blog has stripped attribution/authorial references -- maybe out of cluelessness, maybe in a desire to obscure its origins -- which is no one's idea of fair dealing. This isn't Canipre's first hypocritical dance with the IP devil. Back in 2013, it was caught tarting up its dark and dramatic website with photos belonging to other people, all without even making the slightest attempt to credit the actual creators. Barry Logan was the man behind that debacle as well, who contributed nothing to the discussion of the company's hypocrisy other than some buck-passing to the third party site designer. Even if some of this could be considered fair dealing, the company using the creations of others without permission frowns deeply and legally on those who would do the same to its protected content. Michael Geist's headline puts it beautifully: Canipre certainly has a beautiful glass house. Shame it can't seem to kick its rock-throwing habit. Permalink | Comments | Email This Story

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Back in 2011, we wrote about the fascinating culture of "shanzhai" production -- Chinese companies manufacturing counterfeit goods that ignore intellectual monopolies like patents. The post drew on insights from the open hardware hacker Andrew "bunnie" Huang, who has been following this world closely, drawing on his first-hand experiences of visiting and using shanzhai companies. In 2013, Huang gave the shanzhai approach to sharing -- like open source, but not quite -- a name: "gongkai". In a long and fascinating new post, he explains the background to the term: ["Gongkai"] is deliberately not the Chinese word for "Open Source", because that word (kaiyuan) refers to openness in a Western-style IP framework, which this not. Gongkai is more a reference to the fact that copyrighted documents, sometimes labeled "confidential" and "proprietary", are made known to the public and shared overtly, but not necessarily according to the letter of the law. However, this copying isn't a one-way flow of value, as it would be in the case of copied movies or music. Rather, these documents are the knowledge base needed to build a phone using the copyright owner's chips, and as such, this sharing of documents helps to promote the sales of their chips. There is ultimately, if you will, a quid-pro-quo between the copyright holders and the copiers. This contrasts with the Western approach, where explicit permission to use every patented invention or extract of copyright material must be obtained in advance before progressing further. The resulting "patent thickets" and copyright analogs are a growing problem for complex digital products that depend on multiple technologies built out of small incremental advances, most of which are patented, and which therefore require separate licenses and negotiations. The more flexible gongkai approach offers an interesting alternative. Huang goes on to explore the important differences between what he calls "this fuzzy, gray relationship between companies and entrepreneurs" and the way things work with the Western system: The West has a "broadcast" view of IP and ownership: good ideas and innovation are credited to a clearly specified set of authors or inventors, and society pays them a royalty for their initiative and good works. China has a "network" view of IP and ownership: the far-sight necessary to create good ideas and innovations is attained by standing on the shoulders of others, and as such there is a network of people who trade these ideas as favors among each other. In a system with such a loose attitude toward IP, sharing with the network is necessary as tomorrow it could be your friend standing on your shoulders, and you’ll be looking to them for favors. This is unlike the West, where rule of law enables IP to be amassed over a long period of time, creating impenetrable monopoly positions. It's good for the guys on top, but tough for the upstarts. This "network IP" results in an elevated rate of product innovation: Chinese entrepreneurs ... churn out new phones at an almost alarming pace. Phone models change on a seasonal basis. Entrepreneurs experiment all the time, integrating whacky features into phones, such as cigarette lighters, extra-large battery packs (that can be used to charge another phone), huge buttons (for the visually impaired), reduced buttons (to give to children as emergency-call phones), watch form factors, and so forth. This is enabled because very small teams of engineers can obtain complete design packages for working phones -- case, board, and firmware -- allowing them to fork the design and focus only on the pieces they really care about. The fact that many of those products fail, or are "whacky", misses the key point here: that the gongkai system, with its low barriers to entry, allows experimentation and improvement to be iterated so rapidly that bad ideas fall quickly by the wayside, to be replaced by better ones, until a winning combination is achieved. As patent thickets and copyright maximalism tie up Western companies in fruitless and debilitating legal battles, the shanzhai companies and their nimble gongkai culture may soon emerge as the true heirs of the innovative startups that created Silicon Valley and the Internet before intellectual monopolies started to throttle both. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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We're well into the new year now, and we're optimistic about the future with cheap fuel prices and a somewhat rosy outlook on various economic indicators. Just a few years ago, some folks were seriously concerned about The End Of The World As We Know It (TEOTWAWKI) with the world teetering on the edge of economic ruin. If you're still one of these pessimists, here are a few links on the end of the world. For the rest of you, it may be amusing to check out some Malthusian scenarios. Decades ago, CNN apparently made a video to broadcast in the event of an apocalyptic event. Maybe there should be an updated version in high definition? And it's only a bit less ominous than the Terminus broadcast. [url] If a global disaster devastated our ability to grow crops, there are a few scenarios for how people would feed themselves. Eating bugs, mushrooms or bacterial slime might not sound too appetizing, but it could be the only stuff to survive on. [url] There could be thousands (or more!) "preppers" already trained and prepared for the collapse of civilization as we know it -- but they're keeping their skills and stockpiles a secret, so they won't attract undesirables when the end comes. Survivalists might be on to something, but maybe we shouldn't need to stock up on a variety of different kinds of ammunition to barter with. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Prior restraint much? (via Jim Romenesko) Anthony J. Sineni III, 52, of Standish sought to restrict media coverage of the case against him in the Cumberland County Courthouse in Portland and persuaded a judge to order the media not to report what he or any witnesses said in court. Judge Jeffrey Moskowitz, the deputy chief of the state’s district court, told members of the media as the hearing began what they could and could not report. A reporter for the Portland Press Herald protested the order and asked for time to contact legal counsel. Moskowitz denied the request and said the hearing would proceed without delay, declaring that anyone who did not agree to comply with his order to report only what the prosecutor and Sineni’s attorney said would be ejected from the courtroom. How a judge arrived at the conclusion that he could violate the First Amendment rights of these reporters is unexplained. (Perhaps he'll explain it during the special hearing he's called for Wednesday, involving the paper and its lawyers.) It simply is. Sineni -- facing charges related to a domestic violence case -- asked and received. Except that his granted request was ultimately futile. The Portland Press Herald seems to have a better grasp on the First Amendment than Judge Moskowitz does. An attorney for the Portland Press Herald, Sigmund Schutz, said Monday evening that the judge’s order to the media was a clear violation of the public’s First Amendment constitutional right of free speech. “There is a 100 percent chance that the order is unlawful,” Schutz said. “I think there is no question that the U.S. Supreme Court and other courts have been very clear, what occurs or is said in the court is a matter of public record.” Sineni, however, appears to believe little things like the First Amendment don't apply to him or his case. He also seems to feel laws of all types are for other people, according to testimony delivered by his ex-girlfriend (Winona Hichborn) -- the same testimony the Press Herald was ordered not to report on. “Tony (Sineni) told me before that he is above the law and that if he gets away with this they won’t be able to touch him,” Hichborn testified, flanked by her attorney and a victim-witness advocate. So, it appears Sineni is every bit as wrong as Judge Moskowitz is. Sineni pled no contest but conceded there was enough evidence find him guilty on two of the charges. The law appears to be pulling level with Sineni's cruising altitude. And the ruling issued by Moskowitz has been treated as though he had never bothered wasting his breath uttering the unlawful order in the first place. Good for the Press Herald, which had the insight and fortitude to call BS and do what it was supposed to be doing in the first place: reporting on events that occurred in a public forum. And as for Sineni, he has hopefully learned that trying to shut people up only makes them speak more loudly -- and that raised voice tends to create plenty of echoes. What would have just been a local interest story is now spreading nationally, and that won't be doing any favors for Sineni's reputation -- or Judge Moskowitz's. Permalink | Comments | Email This Story

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Over the years Iran's ham-fisted approach to Internet censorship has offered no shortage of comic relief, whether it's their war on e-mail, their declarations that 3G cellular technology is an "immoral" damnation, or the fact their Internet filters have censored the government's own tirades against getting around filters. With the election of marginally more moderate President Hassan Rouhani there's been some improvement made in Iran's absurd Sisyphean assault on the Internet and free speech, but progress has unsurprisingly been slow. When running for election Rouhani made numerous public proclamations that Internet filtering doesn't work, given the ability to use VPNs to bypass most filters. Rouhani also took things one step further, admitting such censorship only cultivates a broad distrust between the public and the government (who knew?). Now that Rouhani's in office, Iran is apparently taking baby steps toward sensibility by moving away from wholesale blocking of websites, to what they're calling more selective "smart filtering" of content:"Presently, the smart filtering plan is implemented only on one social network in its pilot study phase and this process will continue gradually until the plan is implemented on all networks," Communications Minister Mahmoud Vaezi said, according to official news agency IRNA..."Implementing the smart filtering plan, we are trying to block the criminal and unethical contents of the Internet sites, while the public will be able to use the general contents of those sites," Vaezi told a news conference."What kind of "criminal and unethical" content are we talking about? While the program is only being trialed for Instragram at the moment, such "smart" filtering includes blocking Instragram accounts like @RichkidsofTehran, which featured photos of young rich Iranians flouting their wealth. Meanwhile, while Reuters suggests the program could involve lifting outright bans on Twitter, Facebook and YouTube, several regional reports state that those bans are going nowhere, suggesting this isn't as dramatic a step forward as some had hoped. Obviously concern persists that Iran will continue to make cognitively-incoherent decisions when it comes to filtering out entirely harmful content or political commentary, and that the country will continue its war on VPNs and other circumnavigation techniques. On the bright side, plans by former president Mahmoud Ahmadinejad for Iran to build their own Internet appear to have been put on the hold for the moment while the country works out the kinks of their still not-particularly-smart Internet filtering efforts. The complete smart filtering program (whatever it actually winds up looking like) is expected to be implemented fully by June 2015.Permalink | Comments | Email This Story

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All Frederick County (MD) Councilman Kirby Delauter knows is that he doesn't like unfavorable press. Literally, that appears to be all he knows -- at least as far as press relations go. He apparently believes that he holds the power to decide whether his name appears in print, rather than the other way around. Delauter blew off a phone call from Frederick News-Post writer Bethany Rodgers seeking comment on a story and then turned around and called her out on Facebook for using his name without permission. The post has since been deleted by Delauter, but the image will live on forever... as will Delauter's inability to comprehend how journalism actually works. Here's Delauter's rant in case you can't see/read the screencap: Shame on Bethany Rogers for an unauthorized use of my name and my reference in her article today. She contacted me by phone yesterday, I did not return her call and did not authorize any use of my name or reference in her article. I had let her know after her hit piece during the election where she embellished, twisted and downright lied about what we discussed for that article, that she was never contact me again since she has absolutely no morals or journalistic ability. Bethany, please understand, when you do a hit piece, you need to know who you're dealing with. I have worked very hard to earn an honest reputation in this county. You could have earned my respect, instead you've shown that you will sell your soul for the liberal agenda at the FNP. You're better than that, but you have already sold your credibility and this is something you won't easily get back. So let me be clear…….. do not contact me and do not use my name or reference me in an unauthorized form in the future. Having firmly established who's wearing the pants in this councilman/unruly press relationship, Delauter was undoubtedly surprised to find himself swiftly de-pantsed by Rodgers herself. Wow. Well, just to answer a few of these accusations: First of all, there is no requirement to get a person's authorization in order to mention them in the paper, particularly if that person is an elected official. It is not just our right but our responsibility to report on people like you, who occupy positions of trust in our government, and I make no apologies for doing that. I am aware that you asked me not to call you anymore. However, it is a journalistic principle to reach out to individuals who are part of the article. Again, it would be irresponsible for me NOT to do so, and I plan to continue giving you the opportunity to comment on articles that concern you. Whether or not you return my calls is up to you. Delauter's response? SWING BLUDGEON OF LAWTHREAT +2. Use my name again unauthorized and you'll be paying for an Attorney. Your rights end where mine start And those rights? Nonexistent. Newspapers have been writing about all sorts of people for years, using all sorts of names without permission. That's how that works. Eugene Volokh puts it this way. Uh, Council Member: In our country, newspapers are actually allowed to write about elected officials (and others) without their permission. It’s an avantgarde experiment, to be sure, but we’ve had some success with it. Now, Delauter's name is everywhere (including this Kirby Delauter-deluge of an editorial by the newpaper hit with Delauter's legal threats). His first mistake was assuming he could control it. His second was to broadcast his ignorance via a public forum. And, unless he's willing to go the full Rakofsky, the internet is going to keep "using his name unauthorized" without having to worry about "paying for an Attorney." Ignoring reporters doesn't keep your name out of the papers. All it does is allow them to push the narrative they want to push. At best, you'll get a "did not immediately return phone calls seeking comment." Your decision to not participate in Rogers' news gathering only hurts you, Delauter. It doesn't make you immune from criticism or grant you some special right you can use to deprive others of theirs. If he didn't want a public life, then Dealuter shouldn't have gotten into the public service field. Delauter's lousy grasp of pretty much every facet of this situation makes it pretty clear he shouldn't be allowed to operate a desk, much less be an integral part of local governance. Politicians who think they have special rights are the worst. Delauter has a small chance to salvage this situation, as Scott Greenfield points out. Anyone want to place odds as to whether he will? There really isn’t much to add to such a facially laughable assertion as this, but I felt I would be remiss not to join in the Streisand-ing of Kirby Delauter (whose name is used here without permission) because this is a guy who is allowed to have a say in matters that impact on other people’s lives. And he’s a monumental dumbass. The only question now is whether he’s got the guts to admit the abject stupidity of his threat, apologize and own his stupid. Tough guys like Kirby usually can’t. We'll see. Delauter has scrubbed his post from Facebook, so it appears there will be no immediate "ownership." Of course, he may believe his rights extend on and on forever, unlike those of pesky journalists. Adam Steinbaugh captured this bit of unauthorized name appropriation by Delauter. Like Bethany Rogers' phone calls to the councilman, this has yet to receive a response. Did Derek Jeter authorize this use of his name #KirbyDelauter pic.twitter.com/ZLixYkiEBC — Adam Steinbaugh (@adamsteinbaugh) January 6, 2015 Permalink | Comments | Email This Story

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One of the members of the Ferguson grand jury is suing the prosecutor who presided over the case (Robert P. McCulloch) over the right to speak about the controversial case. The juror seems displeased with McCulloch's handling of the case and is seeking to bypass the state's grand jury gag law in order to discuss his or her objections. There is a good chance this juror will prevail with his/her First Amendment claim. Eugene Volokh points out that there have been previous decisions in favor of grand jury participants (albeit a witness, rather than a juror in the case he cites). The greatest contributing factor to a favorable ruling, however, may be the actions of the man being sued. McCulloch's own statements in support of the release of grand jury documents (Exhibit A in the filing) related to the Michael Brown/Darren Wilson case make the argument for more transparency -- something a de facto grand jury gag order clearly isn't. Much of what would normally be unknown by anyone outside the grand jurors has already been turned over to the public. From the filing [pdf link]: Defendant told the grand jurors, “If your determination is that there are no charges to be filed, then everything will be released immediately or as close to immediately as we can get, and that’s everything. Your deliberations aren’t, as I said, your deliberations are not recorded and never will be recorded, notes won’t be released, but every bit of evidence that you have, the testimony of the witnesses who come in, the statements of the witnesses, the physical evidence, the photographs, everything that you have seen and heard will be released to the public. That is as transparent as we can get short of putting a pool TV camera in here and that’s not going to happen.” The filing itself in ingenious. Written by the ACLU's lawyers, the complaint lays out many of the unnamed juror's issues with McCulloch's handling of the grand jury. It's a "cake and eat it, too" complaint that provides almost enough details that any ruling in the juror's favor will be largely redundant. The issues the juror wishes to discuss are listed at length, leaving little to be uncovered should the court decided in his/her favor. From Plaintiff’s perspective, the presentation of evidence to the grand jury investigating Wilson differed markedly and in significant ways from how evidence was presented in the hundreds of matters presented to the grand jury earlier in its term. From Plaintiff’s perspective, the State’s counsel to the grand jury investigating Wilson differed markedly and in significant ways from the State’s counsel to the grand jury in the hundreds of matters presented to the grand jury earlier in its term. From Plaintiff’s perspective, the investigation of Wilson had a stronger focus on the victim than in other cases presented to the grand jury. From Plaintiff’s perspective, the presentation of the law to which the grand jurors were to apply the facts was made in a muddled and untimely manner compared to the presentation of the law in other cases presented to the grand jury. [...] Immediately after the grand jurors were discharged, Defendant gave a lengthy oral statement about the grand jury’s investigation of Wilson to the public at a press conference… From Plaintiff’s perspective, Defendant’s statement characterizes the views of the grand jurors collectively toward the evidence, witnesses, and the law, in a manner that does not comport with Plaintiff’s own opinions. From Plaintiff’s perspective, although the release of a large number of records provides an appearance of transparency, with heavy redactions and the absence of context, those records do not fully portray the proceedings before the grand jury. [...] In Plaintiff’s view, the current information available about the grand jurors’ views is not entirely accurate—especially the implication that all grand jurors believed that there was no support for any charges. Moreover, the public characterization of the grand jurors’ view of witnesses and evidence does not accord with Plaintiff’s own... Plaintiff’s impression that evidence was presented differently than in other cases, with the insinuation that Brown, not Wilson, was the wrongdoer; and questions about whether the grand jury was clearly counseled on the law. The juror's position on the Ferguson case is spelled out pretty thoroughly in this complaint. He or she parts ways with McCulloch's representations and believes this case was handled much differently than previous cases, with an emphasis on painting Michael Brown as the aggressor and steering the jury towards a no-bill. Even without being given "permission" to discuss the case, the juror is discussing the case. The filing itself might tilt the scales in the juror's favor -- especially when combined with the amount of information fed to the public by the prosecutor and his office. The only hitch in here seems to be the juror's intention of comparing this case to a previous one. If the juror receives some sort of dispensation allowing him/her to discuss the Darren Wilson case, information related to previous cases may still be muted by the state law. This will, of course, hamper discussions about how unusual the Darren Wilson grand jury proceedings were. Either way it goes, there's at least one voice from the jury pool claiming the fix was in. It could prompt similar revelations if the gag is removed, so I would expect McCulloch and the state's legal team to put up a pretty good fight. Permalink | Comments | Email This Story

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A few weeks ago, we wrote about how bizarre it was that the MPAA was so focused on attacking Google and forcing it to take entire sites out of its index when it didn't seem to understand these issues in the slightest. As a part of that, we highlighted how pointless the plan was, because if you looked for a domain after it was removed (which we mocked up by using the "-" modifier), you just ended up getting other people telling you how to get the same kind of content anyway. And yet, the MPAA keeps pushing for Google to further push down or delete entire sites. And, of course, Google continues to give in anyway, giving the industry what it wants. A few months ago it ratcheted up the demotion-for-DMCA-notices aspect of its algorithm, and a bunch of sites have effectively disappeared. But does it really make a difference? As we discussed, one immediate result of this was that people who were searching for free downloads often came across more sketchy sites (which, perhaps, the MPAA doesn't much care about). But, it's also having a secondary effect -- which is that it's showing how perfectly legitimate websites are also being used to tell people how to access content for free (usually in unauthorized ways). Take, for example, a Google search for someone who wanted to watch The Interview for free. While many, many people paid to see the film through official channels, lots of others went for the unauthorized versions. But if you do a search on Google, where most sketchy sites have been downvoted, you start to see some interesting things: If you can't see it, you'll note that many of the links to free (and most likely unauthorized) versions are from well established sites. The top one is to Facebook. The third slot is Linkedin. Towards the bottom is Tumblr. It's very likely that all these links going to infringing/unauthorized copies of the film. Yet they're on popular sites -- the kinds of sites that Google isn't going to suddenly remove from search or seriously downrank due to DMCA notices because -- and, on this, hopefully everyone can agree -- there's an awful lot of perfectly legitimate content on sites like those. This isn't, of course, to point out how to access that movie for free, but to highlight, yet again, just how completely pointless the MPAA's preferred course of action is. It's as if no one at the MPAA has ever played chess and realized that thinking more than one move ahead might help. Each time the MPAA demands something silly and pointless, it doesn't help because what Google is doing is not "leading people to piracy." It's leading people to what they're looking for. And if what the people are looking for happens to be free copies of movies, then that's what they're going to find eventually. The way to solve that is not to stupidly go after Google and demand it downrank certain sites (which just means others will replace them), but to better offer people what they want from authorized sources so that when people go looking, the content creators and/or copyright holders are the ones who get the benefit. In other words, just as we've been saying for over a decade, the proper response is to innovate, rather than to sit around and blame everyone else for not protecting your obsolete business model.Permalink | Comments | Email This Story

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The state of New York -- like several others -- has no anti-SLAPP statute. Hence, people are forced to put up with litigants who have (often intentionally) mistaken criticism for defamation. Shutting people up is the name of the game, using the threat of long, expensive court battles. This particularly egregious attempt to stifle a critic involved a disgraced doctor and Eric Turkewitz, a personal injury lawyer whose sharp-tongued blog has also seen him targeted by similarly misguided litigants whose own words and actions have done them the most damage. (See also: Joseph Rakofsky.) Dr. Michael J. Katz performed medical examinations for insurance companies involved in personal injury claims. While trotting out his expertise as a medical examiner, he was called out by Queens Supreme Court Justice Duane Hart for his inability to provide an honest account of a medical examination. Katz's complaint against Turkewitz [pdf link], detailing the supposed defamation that occurred in a blog post, contained far more damaging quotes from Justice Duane Hart than anything concoted by the blogging lawyer. In short, Katz presented his own bleeding body (and disgraced reputation) as evidence that he had been defamed by Turkewitz, even if Turkewitz's post (and Katz's complaint) were composed mostly of direct (and incredibly damning) quotes from Justice Hart's bench slam. Here are just a few (Turkewitz's post on the lawsuit contains many, many more): … off-the-record, that Dr. Katz’s career doing IME work might be over, calling him a “no good liar,” and told him to retain a lawyer... [Hart] threatened Dr, Katz with criminal prosecution and imprisonment multiple times, off-the-record, throughout the morning[...] The doctor’s career doing IME’s might be over. If he gets caught in a lie on something that’s material at trial his future use to anyone is useless, correct? That will follow the doctor forever[...] Justice Hart announced, in open court, but off- the-record, “Your client is a liar and a thief.” [...] [Hart:] I unsealed the record. Everybody from now on when he testifies as to the tests that he performed, it is always going to be questioned from now on. After about a month or two, nobody is going to go near him anyway. So he is not giving up much. What he is giving up is me referring it to the District Attorney and to the Administrative Judge. I would think that he wants to consider it again. Nobody is going to go near him. This was all included in Katz's complaint. And this was all previously reported by Turkewitz, using actual court transcripts, etc. Katz's argument was -- unbelievably -- that, yeah, the judge said all those mean things, but Turkewitz's post created some negative "impressions" that weren't based in fact. Turkewitz falsely stated and implied, among other things, that Dr. Katz had committed perjury, fraud and was guilty of racketeering. Turkewitz’s blog posts were intended to create the impression that Dr. Katz had been charged with and/or convicted of criminal perjury and other crimes which would make him unfit to act as an expert witness. Katz also claimed (again, without supporting quotes) that Turkewitz posted "provocative and/or scandalous material" to drive readers to his blog. The addition of "impressions" was supposed to make Katz's case. But Katz had nothing resembling a case in his 66-page filing. What he did have closely resembled a finely-tuned character assassination attempt, only with the barrel pointed in the wrong direction. Eric Turkewitz has announced that the lawsuit has been tossed, nearly 8 months after it was filed. Effective today, that suit has been chucked — that’s a legal term of art — by New York County Justice Cynthia Kern. Why was it chucked? Well, it seems that reporting on what happened in a courtroom is fair game. We have those law thingies that protect us for that. Specifically, New York Civil Rights Law 74, which reads: A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding. Oh, that law. Citing to Dr. Katz’s own complaint, which sets forth ad nauseum all of the eviscerating comments Judge Hart made about Dr. Katz being a liar, Justice Kern dismissed the case for failing to state a claim. In other words, we accurately reported what transpired in court, that Justice Hart called him a liar, ergo it’s impossible to make a claim. The judge compared Katz's complaint with the court transcript and Turkewitz's post and came to a reasonable conclusion: the things that happened happened, and Turkewitz's reporting was reporting, rather than a baseless attack on Dr. Katz's reputational remnants. [pdf link] Indeed, a side by side comparison of the posts, specifically the statements identified by the plaintiffs in their complaint, with the proceedings transcripts…clearly reveal that Turkewitz and Freundlichs’s reports of the proceedings accurately reflect Justice Hart’s statements. More ammo for anti-SLAPP laws. Even clearly baseless lawsuits still take time and effort on the part of those wrongly accused by people whose inability to live with their own actions and words prompt them to "go legal" in response to criticism. This probably won't be Turkewitz's last tango with vexatious litigants, thanks to his provocative/scandalous coverage of stupid people being stupid -- usually while under the protective "cover" of actual courtroom proceedings.Permalink | Comments | Email This Story

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Techdirt often discusses the problems with intellectual monopolies such as copyrights, patents and trademarks. These grant powers to exclude others from using something -- creative works, inventions, words and phrases. Increasingly, they create dense thickets of obligatory permissions that make it hard or even impossible for others to build on pre-existing work. That may serve the purposes of the monopolist, but is frequently to the detriment of society. Despite the fact that the enforcement options available to holders of such intellectual monopolies have been repeatedly and disproportionately strengthened in recent years, it seems that too much is never enough: there is now a move to boost another kind of monopoly right, that of trade secrets. These already exist of course, but by one of those strange coincidences, new initiatives to enhance greatly the reach and exclusionary power of trade secrets have appeared simultaneously on both sides of the Atlantic. In the US, there are a pair of bills -- the "Defend Trade Secrets Act of 2014″ (pdf) and the "Trade Secrets Protection Act of 2014″ (TSPA - pdf) -- both aiming "to provide Federal jurisdiction for the theft of trade secrets, and for other purposes." The Fair Competition Blog offers the following summary: If enacted, the TSPA would create a private right of action (very similar to that provided by the Uniform Trade Secrets Act ("UTSA")); permit the civil ex parte seizure of relevant evidence and of the trade secrets, to prevent their further use or disclosure; permit such actions to be brought under a five-year statute of limitations; and requiring the Attorney General to issue an annual report on the international threat of trade secrets misappropriation. There is apparently a 57% chance of the TSPA being enacted. The USPTO is also active in this area. Here is a notice of a public meeting on the subject, to be held in January at its offices in Virginia: The protection of U.S. trade secrets from misappropriation is an Administration priority. As noted in the Administration Strategy on Mitigating the Theft of U.S. Trade Secrets (February 2013), "trade secret theft threatens American businesses, undermines national security, and places the security of the U.S. economy in jeopardy." In pursuit of the goals of the Administration Strategy through information sharing and discussion, the United States Patent and Trademark Office will hold a public symposium on issues relevant to the protection of trade secrets. Topics to be discussed include losses due to trade secret theft and challenges to protecting trade secrets, the intersection of patent and trade secret protection, trade secret issues in civil litigation, trade secret protection in foreign jurisdictions, and proposed responses to the threat of trade secret theft in the U.S. Meanwhile, in the EU, there is a proposal for a major "Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure" (pdf). The new rights would be very broad, prompting a group of leading civil organizations to write an open letter expressing their concerns about them: We strongly oppose the hasty push by the European Commission and Council for a new European Union (EU) directive on trade secrets, which contains overly-broad protection and inadequate safeguards. This unbalanced piece of legislation will result in legal uncertainty and endanger freedom of expression and information, corporate accountability, information sharing and, possibly, innovation, rather than create a competitive and sound business environment in the EU, as the Commission claims. If the draft directive, which the Commission published in November 2013, is passed, consumers, workers, researchers, journalists and whistleblowers in the EU will be at risk. The definition of 'trade secrets' in the draft directive is unreasonably broad, enabling almost anything within a company to be deemed as such. Unsurprisingly, the draft directive text is strongly supported by multinational companies because it would enable them to sue anyone who "unlawfully acquires, uses or discloses" their so-called trade secrets. Instead, the right to freely use and disseminate information should be the rule, and trade secret protection the exception. As well as these efforts to introduce new laws in the US and EU directly, international treaties too are being used as a vehicle for promoting the enhanced protection of trade secrets. Back in October, David Levine produced a helpful analysis of what we know about the trade secrets provisions in TPP: The elevation of trade secrecy is baked into the most recent leaked May 2014 IP chapter from the Trans Pacific Partnership Agreement (TPP). TPP, which is concluding yet another negotiating round today, is bringing trade secrecy to the international stage through efforts to harmonize IP law across continents and cultures. The role of secrecy is varied from country to country, but that has not stopped the TPP negotiators from apparently proposing language that would require criminal sanctions for unauthorized access to trade secrets. As far as TAFTA/TTIP is concerned, we know that the lobby group Business Europe has been pushing for the inclusion of "strong trade secrets protections, combined with a commitment to effective enforcement in the TTIP" (pdf), and doubtless many companies and lobbyists have done the same. Moreover, an EU document leaked in March 2014 confirms that trade secrets are a "clear priority for the US" -- one that is unlikely to meet much resistance from the European Commission, given the plans for an EU Directive on the subject. The participation of the USTR in both the TPP and TTIP negotiations ensures close synchronization between them, so we can probably expect the existing bad ideas from TPP appearing in TAFTA/TTIP too. Assuming those provisions are still present in the final texts of TPP and TAFTA/TTIP -- and assuming that those agreements are ratified -- they will boost significantly the current campaign from corporations around the world to turn trade secrets into yet another powerful legal weapon, just as patents, copyrights and trademarks have already become. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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The Supreme Court is notoriously technology averse. It still refuses to allow video recording of oral arguments, leading to things like John Oliver's inspired Supreme Court dog stock video footage. On New Year's Eve, Chief Justice John Roberts released his 2014 Year-End Report, which focuses mainly on the plans to finally offer an electronic filing system for the Supreme Court. Much of the report details the long history of the Supreme Court being way behind the times technologically (it even adopted the pneumatic tube way late) -- and why he thinks this late adopter strategy is the appropriate one to take. He discusses the existing CM/ECF (Case Management / Electronic Case Filing) system, as well as PACER, the tool by which the public can access many of those documents. However, these systems do not cover the Supreme Court. And while they are completely antiquated (and a total pain to use), the Supreme Court apparently recognizes that being even further behind than that is a mistake. So it will very, very, very cautiously dip its toes into the electronic filing / electronic document access world... sometime in 2016 (yes, 2016, not 2015). The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit documents only on paper, and Court personnel will scan and upload those documents to the system for public access. The Court will provide more information about the details of the system, including the process for attorneys to register as authorized filers, in the coming months. First, it's great that the Supreme Court is offering this -- even if it's being very cautious in its approach. Second, it's doubly great that (unlike PACER) it will be free for the public to use. PACER should be that way as well, but the court system has become too fat and happy from the fees. Now, if we can just convince them to let cameras into the damn courtroom so the public can actually see how the Supreme Court works. To that end, at least, it appears that Congress may be gearing up to step in and force the Supreme Court to bring in the cameras, with multiple people in Congress criticizing the Court for still holding out.Permalink | Comments | Email This Story

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Astrobiology is a field that doesn't have a whole lot of experimental evidence, but it's interesting to entertain the possibilities of life that might exist elsewhere in the universe. So far, we've been looking for ET biology that's similar to our own, but there's nothing that says biology must be based on DNA/RNA/proteins/etc. Here are just a few more links on possibly finding life on other worlds. Stars in our galaxy generally travel only a few hundred miles per second relative to their peers, but some hypervelocity stars traveling at hundreds of thousands of miles per second might escape our galaxy -- and spread life across the universe. It could happen theoretically, but no one has yet observed this phenomenon directly. [url] Data from the Kepler mission suggests possibly-habitable planets exist near a significant fraction of all stars -- providing better estimates for values in the Drake equation. However, we're still probably very far away from our nearest neighbors (if they even exist). [url] How tough is DNA? Tough enough to survive on the outside of a rocket going to space and also re-entry from orbit. Presumably, this also means that it's not impossible for ET DNA to arrive on the tons of meteorites that hit our planet every day.[url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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We've written plenty about Stingrays and other "IMSI Catcher" devices that allow law enforcement to set up what are effectively fake cell phone towers, designed to intercept calls and locate certain individuals. These devices are deployed in near total secrecy, often by law enforcement who got them from the federal government. There is little to no oversight over how these are used (and abused). The attempts to keep the details a total secret represent really egregious behavior from all involved. As we've covered, police have claimed that non-disclosure agreements with the manufacturers (such as Harris Corp.) prevent them from getting a warrant to use the devices. The DOJ, somewhat famously, had a whole plan for how to mislead judges about the use of these devices, with official documentation telling DOJ officials to be "less than explicit" and "less than forthright" to judges about how the tech was being used. In some cases, the US Marshals have stepped in and seized documents from local police forces to block them from being released in response to FOIA requests. In short, law enforcement really doesn't want how it uses these devices revealed. And yet, reporters and activists keep digging up more information, including the WSJ finding out that the US Marshals (them again!) have been putting airborne versions of these devices, called DRT boxes, on airplanes and flying them over cities, likely scooping up information on tons of innocent people with no warrant. At least some in our government are concerned about this. Senators Patrick Leahy and Chuck Grassley have been pressing government officials on this, and before the holidays sent a letter to Attorney General Eric Holder and Homeland Security Boss Jeh Johnson demanding answers. One very interesting tidbit is that in response to some of this public disclosure, the FBI now, at least, gets warrants before using the technology -- but the Senators would like more details: We wrote to FBI Director Comey in June seeking information about law enforcement use of cell-site simulators. Since then, our staff members have participated in two briefings with FBI officials, and at the most recent session they learned that the FBI recently changed its policy with respect to the type of legal process that it typically seeks before employing this type of technology. According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology. But, still, the Senators would like a few more details: The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them. For example, we understand that the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy. We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests. The specific questions being asked: 1. Since the effective date of the FBI’s new policy: a. How many times has the FBI used a cell-site simulator? b. In how many of these instances was the use of the cell-site simulator authorized by a search warrant? c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used. d. In how many of these instances was the cell-site simulator used without any legal process? e. How many times has each of the exceptions to the search warrant policy, including those listed above, been used by the FBI? 2. From January 1, 2010, to the effective date of the FBI’s new policy: a. How many times did the FBI use a cell-site simulator? b. In how many of these instances was the use of a cell-site simulator authorized by a search warrant? c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used. d. In how many of these instances was the cell-site simulator used without any legal process? e. In how many of the instances referenced in Question 2(d) did the FBI use a cell-site simulator in a public place or other location in which the FBI deemed there is no reasonable expectation of privacy? 3. What is the FBI’s current policy on the retention and destruction of the information collected by cell-site simulators in all cases? How is that policy enforced? 4. What other DOJ and DHS agencies use cell-site simulators? 5. What is the policy of these agencies regarding the legal process needed for use of cell-site simulators? a. Are these agencies seeking search warrants specific to the use of cell-site simulators? b. If not, what legal authorities are they using? c. Do these agencies make use of public place or other exceptions? If so, in what proportion of all instances in which the technology is used are exceptions relied upon? d. What are these agencies’ policies on the retention and destruction of the information that is collected by cell-site simulators? How are those policies enforced? 6. What is the Department of Justice’s guidance to United States Attorneys’ Offices regarding the legal process required for the use of cell-site simulators? 7. Across all DOJ and DHS entities, what protections exist to safeguard the privacy interests of individuals who are not the targets of interception, but whose information is nevertheless being collected by cell-site simulators? Anyone taking bets on how few of these questions will actually be answered?Permalink | Comments | Email This Story

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Every year for the past few years, the good folks at Duke's Center for the Study of the Public Domain have put up a list of works that should have gone into the public domain on January 1st had Congress not massively expanded the law. Each year, it's a depressing look at what works should be in the public domain. As a reminder, when these works were created, the creators knew the terms under which they were created and knew that they would have gone into the public domain by now -- and they found that to be more than enough incentive to create those works. Given that, it makes absolutely no sense that these works are not in the public domain. The latest list has many, many examples of classic works that should be in the public domain. Here's a list of famous books from 1958 that should have gone into the public domain: Chinua Achebe, Things Fall Apart Hannah Arendt, The Human Condition Isaac Asimov (writing as Paul French), Lucky Starr and the Rings of Saturn Simone de Beauvoir, Mémoires d’une jeune fille rangée (Memoirs of a Dutiful Daughter) Michael Bond, A Bear Called Paddington, with illustrations by Peggy Fortnum Eugene Burdick and William Lederer, The Ugly American Truman Capote, Breakfast at Tiffany’s Agatha Christie, Ordeal by Innocence John Kenneth Galbraith, The Affluent Society Graham Greene, Our Man in Havana Dr. Martin Luther King, Jr., Stride Toward Freedom: The Montgomery Story Claude Lévi-Strauss, Anthropologie Structurale (Structural Anthropology) Mary Renault, The King Must Die Dr. Seuss, Yertle the Turtle and Other Stories T.H. White, The Once and Future King As noted, it's somewhat ridiculous that, say, The Once and Future King is based on public domain King Arthur legends, but is being kept out of the public domain itself. And, seeing how we've just discussed how copyright is being used to hide Martin Luther King's words, it's sad to see that one of his books is also being held back from the public domain. Onto a list of famous movies: Attack of the 50 Foot Woman, a low-budget horror/sci-fi cult hit. Auntie Mame, starring Rosalind Russell, Coral Browne, Roger Smith, and Peggy Cass. The Blob, sci-fi/horror classic starring Steve McQueen in his first leading role. Cat on a Hot Tin Roof, starring Elizabeth Taylor, Paul Newman, and Burl Ives. The Defiant Ones, starring Sidney Poitier, Tony Curtis, and Theodore Bikel. From the Earth to the Moon, starring Joseph Cotten, George Sanders, and Debra Paget. Gigi, directed by Vincente Minnelli and starring Leslie Caron, Maurice Chevalier, and Louis Jourdan. The film garnered 9 Academy Awards. Mon Oncle, writer/director Jacques Tati reprises his comic alter-ego, Monsieur Hulot, and wins the Academy Award for Best Foreign Language Film. Some Came Running, directed by Vincente Minnelli and starring Frank Sinatra, Dean Martin, and Shirley MacLaine. South Pacific, Rodgers and Hammerstein's musical, directed by Joshua Logan, starring Rossano Brazzi and Mitzi Gaynor. Touch of Evil, written and directed by Orson Welles, starring Welles, Charlton Heston, and Janet Leigh. The Young Lions, starring Marlon Brando, Montgomery Clift, and Dean Martin. Vertigo, directed by Alfred Hitchcock, starring James Stewart, Kim Novak, and Barbara Bel Geddes. And some of the top music hits from 1958: "Johnny B. Goode" (Chuck Berry) "Volare (Nel Blu Dipinto Di Blu)" (Domenico Modugno, F. Migliacci, Mitchell Parish (English translation)) "Yakety Yak" (Jerry Leiber & Mike Stoller) "Chantilly Lace" (Big Bopper) "Purple People Eater" (Sheb Wooley) And, of course, it's not just about entertainment, but important scientific developments as well: 1958 was another noteworthy year for science: the US launched the Explorer 1, its first successful satellite, which confirmed the existence of the Van Allen radiation belt. The first integrated circuit was demonstrated. There were groundbreaking publications in the fields of laser technology and cloning. If you follow the link from “cloning” above (and you do not have a subscription or institutional access), you will see that this 1958 article is behind a paywall. You can purchase it for $32. A distressing number of scientific articles from 1958 remain behind paywalls, including those in major journals such as Science and JAMA. You can’t read these articles unless you pay or subscribe. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions. It’s remarkable to find scientific research from 1958 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts. As the article notes, all of those works would have been in the public domain if not for the Copyright Act of 1976. Even though the creators of all those works knew -- without a doubt -- that those works would be in the public domain today, they are not. I have yet to see anyone come up with a credible explanation for why that is. Meanwhile, over at Vox, Tim Lee came up with a related, but different, depressing list of works that should be in the public domain. This one looks at works that also got the gift of the 1976 Act, but then still should be in the public domain today... except for the 1998 Copyright Term Extension Act (CTEA) -- sometimes called the Sonny Bono Act. These are works that (even after the 1976 Act) would have been released 75 years ago, which was the limit for "corporate" authored works, but which got extended to 95 years. In other words, these are works that have dodged the public domain "bullet" twice thanks to Congress. There are some impressive works here -- including The Wizard of Oz and Gone With the Wind. Also, the very first Batman comic, meaning that the basic character of Batman would have gone into the public domain. Instead, they're all locked up for many more years, and many people alive in the US today have never had an old work moved into the public domain in their lifetimes.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
For more than a year now, Paul Hansmeier has attempted to offset the losses generated by the flagging Prenda Law brand with class action lawsuits predicated on supposed ADA (Americans with Disabilities Act) violations. Hansmeier isn't suddenly a do-gooding social warrior seeking equitable treatment for disabled Americans. He's just shifted the focus of his modus operandi. Hansmeier sues and sues and sues, offering out-of-court settlements to the defendants. This is money Hansmeier shouldn't theoretically be able to demand, but he's found a loophole that works for him. In most cases, federal and state laws governing disability access don’t provide punitive relief. They can only be used to get property owners to correct shortcomings and to recover the plaintiff’s reasonable legal expenses. However, Hansmeier has been making claims under a Minnesota law that the property owners are committing a bias offense, which is a misdemeanor. In correspondence seeking a settlement with Peterson, he wrote that the law exposes defendants to a fine of $500 per incident, as well as punitive damages. Using this, Hansmeier has demanded anywhere from $2,500 to $15,000 from the businesses he's sued. The end result has been some companies paying up rather than fighting back, while others have decided to cease doing business entirely. The 84-year-old owner of an antique shop targeted by a Hansmeier suit has closed her business as a result of his litigious actions. At the point it shut down, it was making around "$50 a day." Now, the business is completely inaccessible -- both to the disabled and non-disabled alike. Like copyright trolling, the hit rate may be low but the margin is comfortably high. Only a small percentage of those sued need to pay up to ensure profitability. Hansmeier has managed to extract a few settlements at this point, which will only encourage him to continue exploiting a good law for negative ends. The biggest hurdle he faces now is his own terrible reputation. [T]he chief judge of Hennepin County District Court has ordered that a half dozen of Hansmeier’s disability cases be reassigned to a single judge to ensure that they’re handled uniformly. “ … the serial nature of these cases … raises the specter of litigation abuse, and Mr. Hansmeier’s history reinforces this concern,” Chief Judge Peter Cahill wrote. The Minnesota attorney general’s office recently referred complaints about Hansmeier to the board that disciplines attorneys for ethical violations, even as he continues to press for cash settlements with small business owners. The lure of easy money has now attracted another one of Prenda's principals: John Steele. DarthSkeptic tweeted out two bits of information that point to Steele moving from one shakedown business to another. On December 30, 2014, John Steele incorporated the "Accessibility Law Group, LLC" in the state of Illinois (screenshot below as the Illinois Secretary of State's business search provides no permalink to search results). The address of the "business" traces back to virtual offices offered by DaVinci Virtual Office Solutions, which would suggest Steele plans to pursue businesses for ADA violations without actually having to set up (physical) shop in Illinois. He's also renewed his Illinois law license. Given Steele's past, one should probably expect a flurry of filings in the near future, pursuing low-risk targets with low-to-medium settlement offers, much like Hansmeier's "work" in Minnesota. The paperwork can be filed from anywhere with work farmed out to local lawyers willing to do the groundwork in exchange for a percentage of collected settlements. Steele's new hunting grounds favor his chosen business model. Time Magazine pointed out in a 2008 article about ADA lawsuit abuse that Illinois (along with California, Hawaii and Florida) is one of the easiest states to file (and collect on) frivolous lawsuits. The American Tort Reform Foundation has also called out Illinois' flawed legal system in the past, naming it one of the nation's foremost "judicial hellholes." One of the issues specifically listed is the willingness of the state to entertain lawsuits filed by non-residents -- something that works in Steele's favor if he doesn't actually reside in Illinois. Prenda Law was nominally a Chicago operation, but also included work done from Florida and (see Hansmeier) Minnesota. Once a troll, always a troll, it seems. Prenda Law may no longer be an entity, but the lawyers behind it are back in the settlement business. Sure, ADA violations may be more publicly palatable than chasing porn downloaders, but underneath it all, it's still the same shady business that has the potential to wreak the same sort of financial havoc on its victims.Permalink | Comments | Email This Story

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Back in April of last year, we were among the first to report on a very dangerous new law in Russia targeting bloggers, requiring any blogger or social media user with more than 3,000 "visitors" a day to register their real name with the government. The idea, obviously, is to put a massive chill on free speech among popular bloggers and social media users -- making it clear that the government is tracking everything they do. Just recently we noted how various social media platforms were responding to Russian demands that they censor or take down accounts related to opposition politician Alexei Navalny, or other critics of the government. But the blogger/social media law has now gone into effect, and it's having an impact in all sorts of places. For example, chip giant Intel has now announced that it is basically turning off all ways to contribute to its Russian Intel Developer Zone in order to comply with the law. In order to be compiant with the Russian Internet Bloggers Law the following changes will be implemented to Russian Intel® Developer Zone community as of January 1st 2015: Blog post contributions will be disabled Forum contributions will be disabled All commenting will be turned off for russian content While it's unlikely that those in power in Russia today think this is a very big deal, recognize that taking Russians out of forums and discussions concerning key technological developments could certainly come back to haunt Russian technology development. This also comes about a month after Google closed down its Russian engineering office, in response to a different regulatory shift: a "data handling law" that would require all information from Russian users be kept in Russia (making it more easily accessible by Russian officials and the intelligence community). All of these moves may be designed to shore up the existing leadership's political power, but it seems like a fairly short-term strategy, given that the end result is likely to hold back technological expertise and talent at a time when staying on top of technology is so important.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
When you're flying, your internet connection is completely in the hands of a single company. There's no searching around for another signal. So, however the provider decides to handle your connection, that's what you're stuck with. A captive audience usually results in fun things like high prices and connection throttling. And, if you're Gogo Inflight, it means compromising the security of every traveler who chooses to use the service, just because you can. Gogo Inflight Internet seems to believe that they are justified in performing a man-in-the-middle attack on their users. Adrienne Porter Felt, an engineer that is a part of the Google Chrome security team, discovered while on a flight that she was being served SSL certificates from Gogo when she was requesting Google sites. Looking at the issuer of the certificate, rather than being issued by Google, it was being issued by Gogo. The bogus certificate was captured in a screenshot tweeted out by Felt. hey @Gogo, why are you issuing *.google.com certificates on your planes? pic.twitter.com/UmpIQ2pDaU — Adrienne Porter Felt (@__apf__) January 2, 2015 Now, Gogo Inflight likely has several reasons why it would perform a MITM attack on its users, but none of them justify stripping away previously existing security layers. The company loves to datamine and it definitely makes an effort to "shape" traffic by curtailing use of data-heavy sites. It also, as Steven Johns at Neowin points out, is an enthusiastic participant in law enforcement and investigative activities, going above and beyond what's actually required of service providers. In designing its existing network, Gogo worked closely with law enforcement to incorporate functionalities and protections that would serve public safety and national security interests. Gogo’s network is fully compliant with the Communications Assistance for Law Enforcement Act (“CALEA”). The Commission’s ATG rules do not require licensees to implement capabilities to support law enforcement beyond those outlined in CALEA. Nevertheless, Gogo worked with federal agencies to reach agreement regarding a set of additional capabilities to accommodate law enforcement interests. Gogo then implemented those functionalities into its system design. So, whatever its myriad reasons for compromising the security of travelers, it's likely the law enforcement angle that has the most to do with its fake SSL certificates. Every communication utilizing its service is fully exposed. Gogo keeping tabs on its users for itself (data mining) and law enforcement also exposes them to anyone else on the plane who wishes to do the same. Nowhere has it stated upfront that it will remove the security from previously secure websites and services. In fact, it says exactly the opposite in its Privacy Policy. The airlines on whose planes the Services are available do not collect any information through your use of the Services, but we may share certain types of information with such airlines, as described below. Please remember that this policy only covers your activities while on the Gogo Domains; to the extent you visit third party websites, including the websites of our airline partners, the privacy policies of those websites will govern. Except that those policies can't govern, not when their underlying security has been compromised by fake Gogo SSL certificates. The solution for travelers is to skip the service entirely, or run everything through a VPN. Gogo welcomes the use of VPNs for greater security, but even this wording is at odds with what it's actually doing. Gogo does support secure Virtual Private Network (VPN) and Secure Shell (SSH) access. If you have VPN, Gogo recommends that you use secure VPN protocols for greater security. SSL-encrypted websites or pages, typically indicated by “https” in the address field and a “lock” icon, can also generally be accessed through the Gogo Services. You should be aware, however, that data packets from un-encrypted Wi-Fi connections can be captured by technically advanced means when they are transmitted between a user’s Device and the Wi-Fi access point. You should therefore take precautions to lower your security risks. Again, precautions are moot if Gogo deliberately inserts itself into the transmission with bogus certificates. Gogo has yet to respond to this, but I would imagine its answer will involve pointing to the mess of contradictions it calls a Privacy Policy. Gogo can run its service however it wants to, but with its upcoming move into providing text messaging and voicemail access, it should really revamp the way it handles its customers' connections. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
When SOPA died its inglorious death, the MPAA's best shot at ISP-level site blocking died with it. But the MPAA is nothing if not stubborn and is still willing to wreak havoc on the internet in exchange for a slight dip in infringement. According to a leaked document from the MPAA's law firm [pdf link] and two public filings in support of the International Trade Commission (sent over by Charles Duan of Public Knowledge), the movie industry is hoping to use the agency's new willingness to regulate digital transmissions like physical goods as a foundation for site blocking. As we've discussed for years, the ITC has been an active player in helping US patent holders go after those they believe are infringing. Generally, this has taken the form of blocking imports of infringing physical goods -- that the ITC deems as infringing (using different rules than the US court system). This has often allowed patent holders two separate bites at the apple -- one in the courts, and one at the ITC. But a recent case saw the ITC shift its focus -- and its purview -- in response to some circuitous patent infringement. Russell Brandon at the Verge details the case that has led to the MPAA's next attempt at site blocking. The heart of the case is a company called ClearCorrect, which 3D prints clear plastic braces custom-designed for each patient's teeth. Much of the technology involved in the process is already under patent, but ClearCorrect has gotten around those patents by farming out its intricate computer modeling to an office in Pakistan. That modeling violates a number of US patents — and if ClearCorrect were shipping back the resulting braces in a box, it would be a simple case: the goods would be contraband, to be stopped at the border. But instead, ClearCorrect is only transmitting digital models from Pakistan and printing out the braces in local offices in Texas. The only thing coming in from Pakistan is raw modeling data. So what's a trade commission to do? In October of 2014, the trade commission -- blowing past legal precedent and established statutory limits -- granted itself the power to treat the incoming digital models as physical goods… and stop them at the border. In the sweeping and unprecedented decision below, the International Trade Commission found that its authority to regulate trade extends to pure "electronic transmission of digital data" untied to any physical medium. Generally, by statute, the Commission's jurisdiction is limited to oversight of "importation . . . of articles." However, the Commission expansively construed the term "articles" to potentially include anything "bought and sold in commerce," thereby leading to its conclusion that digital data was an article of importation. The MPAA, which has entered comments in favor of the ITC's self-granted power expansion, wants to use the agency's power over digital imports to block websites at the ISP level. The leaked Jenner & Block memo confirms this. The MPAA's lawyers don't consider it a slam dunk but they are cautiously hopeful that the ITC's land grab will pay off. As discussed in the 2012 ITC Memo, seeking a site-blocking order in the ITC would appear to offer a number of advantages over federal court litigation, at least at first blush. This now seems even more so given the ITC’s recent decision (albeit now on appeal) holding that electronic transmissions are “articles” within the meaning of Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. As also discussed in the 2012 ITC Memo, however, such an action would still involve several difficult questions of first impression, making the prospect of success in that forum uncertain. While the ITC's new aim -- stopping infringing digital files at the "border" -- would seem to be the ideal starting point, the memo points out that many technical limitations make this approach less than feasible. The "transit" ISPs -- those that "ship in" data from other countries -- can be handled more easily by other court orders than by ITC regulation. The ITC's purview only covers inbound traffic, and technical limitations make this a weaker approach. For one, the lack of information on incoming packets means the blocks would only affect IP addresses. If a "pirate site" shares an IP address with another site, the block won't work. And IP addresses could easily be shared to circumvent blocking at transit ISP level. The memo also notes that the internet is designed to flow around obstructions. Applying blocks at the transit level would simply shift infringing loads to other pathways, nullifying the blocks altogether. The law firm then addresses blocking outbound traffic to infringing sites at the ISP level. This would ignore the inbound traffic of "transit" ISPs and demand action be taken by US ISPs. Even though site blocking by transit ISPs may be impractical in most (and likely all) cases, it may still be possible for the ITC to issue orders to the consumer-facing network access ISPs requiring them to cease and desist from providing their subscribers with access to the pirate site. To do so, however, the ITC would first have to find that the network access ISPs, by providing their subscribers with access to the pirate site, have themselves violated Section 337. That's the sales pitch for ISP-level site blocking. It somewhat ignores the new powers of the ITC and instead relies on convincing the agency that access to "pirate sites" -- even as a "dumb pipe" -- is a violation of Section 337. Definitions will need to be stretched and ISPs that allow their customers to roam the web freely will need to be painted as contributors to infringing activity. Because it is the transit ISPs and not the network access ISPs that actually carry the infringing data across the border, we would need to persuade the ITC that the network access ISPs’ conduct is also tantamount to “importation into the United States” of copyright-infringing articles... For this reason, we may be able to develop a case that the network access ISPs, by virtue of the integral role that they play in the process of accessing and delivering infringing content from the foreign site to the end user, should be treated as an importer for purposes of Section 337. If that doesn't work, the next argument is to portray the ISPs as involved in the sale of counterfeit goods. Even if we cannot persuade the ITC that network access ISPs are “importers” of the infringing articles, it can plausibly be argued that the network access ISPs are engaged in a post-importation “sale” of the infringing articles to their end-user subscribers, in violation of Section 337. See 19 U.S.C. §1337(a)(1)(B) (providing that “sale after importation into the United States” is an unlawful act). The difficult question presented here is whether an ISP, by providing network access in exchange for its subscribers’ payment, can be found to have engaged in the “sale” of the infringing articles as that term is used in Section 337. The arguments don't get any less ridiculous. There's a pitch for ISPs to have participated in "unfair acts" by "forcing" (read: allowed customers to access sites the MPAA doesn't like) the motion picture industry to "compete" against infringing copies of its own works. There's even a small paragraph that pushes the notion of contributory infringement, although the law firm notes that this would be the longest shot of all. The likeliest approach appears to be the use of the ITC's power to obtain cease-and-desist orders against ISPs, forbidding them from allowing access to "pirate" sites. Public Knowledge's brief [pdf link] in opposition to the ITC's pending power shift points out that even though the statute itself is old (Tariff Act of 1930), its authors directly contemplated the difference between physical and more ethereal goods -- and made it clear that the two shouldn't be treated identically. Evidence from the early 1900s indicates that Congress and others would have cleanly distinguished importation and telecommunication, vesting authority over each in distinct agencies. Treating the Commission as having authority over telecommunications data, then, conflicts with this distinction. To the extent that the Commission’s interpretation of “digital data” as an imported article encompasses such telecommunications data, this Court should reject that erroneous interpretation of the Commission’s purview. [...] There is substantial evidence that, around 1930, data transmissions were generally understood to be distinct from articles of commerce and international trade. This understanding influenced Congress, as reflected in its creation of separate and distinct agencies to oversee trade and telecommunications. The distinction was highlighted by the Supreme Court as early as 1887, in considering one specific type of telecommunications data, namely telegrams: Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other. The brief also points out that, while the ITC is correct in noting that internet transmissions couldn't possibly have been envisioned during the crafting of the 1930 Tariff Act, similar "articles" like telecommunications and radio signals had already been discussed by Congress, and each time, these were not allowed to fall under the same regulatory agency. Putting the ITC in charge of digital transmissions will turn ISPs into ad hoc customs agents who need to inspect incoming packets and outgoing requests. Cloud services would also be negatively affected, as load balancing would need to be rebuilt from the ground up in order to accommodate the legal concerns now inherent in every transmission. The DMCA safe harbor would no longer exist, forcing ISPs to stay one step ahead of IP holders, building in anticipatory takedown response systems and choke points. The MPAA still wants site blocks and is still willing to break the internet to get them. Even the cautiousness displayed in the legal memo still glosses over the severe disruptions this use of the ITC's new powers will cause. The good news? The ITC's "digital = physical" shift isn't in effect yet. The case prompting this shift is still under appeal and no decision is expected until late 2015. Chances are, this decision will be appealed as well, likely landing it in front of the Supreme Court sometime in the next few years. The MPAA can't move on its arguments until this is all decided. But it's ready to move as soon as it can, and this isn't its only plan of attack.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
It's tempting to open with a caveat -- "performance rights organizations (PROs) can serve a valuable purpose" -- before heading off towards the blithering insanity they've devolved into in recent years. It's tempting, but I won't do it. What I will say is that the notion of collecting public performance royalties isn't necessarily wrong, but the way it's been handled by everyone from GEMA to ASCAP has been a farce -- proof that the narrow line between stupid and evil can easily be erased with a small hit of officiousness. When PROs collect fees from bars, restaurants and nightclubs, it does make a certain amount of sense. Even if I don't necessarily agree that these "rights" are baked into people's musical creations, there's something to be said for music being an integral part of some of these public venues. But the notion that a public performance right exists at all runs at odds with common sense, as do the actions of the PROs themselves. Any band playing a concert venue will be subject to PRO fees (usually hidden somewhere in the venue's deducted costs) even though they're playing their own music. Somehow, this money will make its way back to… well, generally not the band itself. The money is pooled and divvied up into smaller piles of payouts that rest comfortably on the larger earnings of the top few bands on the PROs' rosters. Because the PROs will cease to exist without steadily increasing collections, they have branched out. It's no longer limited to BMI shaking down local pubs for high-dollar licensing fees, even if said pub only hosts local, indie artists. No, now it's actions like charging the Girl Scouts for singalongs, charging small auto shops for the personal CDs played in the garage by their mechanics, charging companies for allowing employees to listen to radios in their cubicles and charging hotel rooms for the "public performances" performed by seldom-if-ever-used in-room clock radios. Now, there's this, via TorrentFreak -- a Swedish PRO going after car rental companies because rented cars contain publicly-performing radios. Each car rented out by Fleetmanager contains a stereo radio and CD player so that the customer can enjoy broadcasts of all kinds, including music. STIM (collecting society Svenska Tonsättares Internationella Musikbyrå) says that to do so legally Fleetmanager needs to obtain a license but to date has failed to do so. According to SVD, STIM is arguing that the inside of Fleetmanager’s cars contain members of the public and therefore amount to public places. On this basis the company needs to obtain a public performance license. Fleetmanager disagrees, noting that any music played inside a car is only heard by a limited circle of people. In its defense, STIM cites previous madhattery by other PROs. The collection society says that previous cases involving hoteliers have ended with licenses being obtained which enable hotel guests to listen to music while on the premises. It also trots out the weak game theory routinely deployed by other non-trustworthy entities -- like cops seeking to coerce a confession or your peer group's insistence that a vodka-soaked tampon is a great way to get hammered. Furthermore, other car rental companies in Sweden have already agreed to pay a per-stereo levy so Fleetmanager should also pay, STIM argues. The proper response would be to ask if STIM finds mugging weak and stupid people enjoyable. Fleetmanager's response isn't noted in TorrentFreak's article, other than the obvious hints that it's not interested in paying flat-rate fees for one of the worst public performance arguments ever deployed. An in-car stereo is not a public performance, even if it is a rented vehicle. If you take a bunch of friends on a road trip in your own vehicle, you have not created a public performance no matter how many times the radio is turned on. Renting it from a third party doesn't change anything but the name on the vehicle's title. Without a doubt, PROs are proving to be endlessly creative -- albeit in ways that do nothing for them or a large majority of their artists. Instead, it makes the agencies look like low-rent thugs whose best shakedown ideas are hammered out over amyl poppers, jello shots and Powerpoint decks.Permalink | Comments | Email This Story

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