posted 26 days ago on techdirt
In 2013, Time Warner Cable (since acquired by Charter Communications) struck an $8.35 billion deal with the LA Dodgers to create LA SportsNet, the exclusive home of LA Dodgers games. To recoup its investment, Time Warner Cable demanded exorbitant prices from competing cable providers if they wanted access to the channel. Unsurprisingly, all of Time Warner Cable's competitors in the region balked at the $5 per subscriber asking price. Several years later, a massive portion of Los Angeles still can't watch their favorite baseball team, since Time Warner Cable's asking price not only kept competing cable operators from delivering the channel, but prohibited over-the-air broadcasts of the games. Last November, a new wrinkle emerged in the standoff after the Department of Justice sued AT&T (now owner of DirecTV) for being a "ringleader" in a collusion effort involving the channel. The DOJ effectively claimed that DirecTV, Cox, and other regional cable providers violated antitrust law by sharing private company data during their coordinated effort against Time Warner Cable's exclusive arrangement and higher rates. The original complaint stated that this "unlawful information exchange" violated consumers' rights to fair channel price negotiations: "As the complaint explains, Dodgers fans were denied a fair competitive process when DIRECTV orchestrated a series of information exchanges with direct competitors that ultimately made consumers less likely to be able to watch their hometown team,” said Deputy Assistant Attorney General Jonathan Sallet of the Justice Department’s Antitrust Division. “Competition, not collusion, best serves consumers and that is especially true when, as with pay-television providers, consumers have only a handful of choices in the marketplace." Fast forward a few months and a new administration, however, and the Department of Justice has announced that it has settled its lawsuit against AT&T. According to the DOJ, AT&T has agreed to monitor its employees so they do not illegally share information about sensitive contract negotiations with competitors. This, the DOJ states, should wind up being a boon for consumers: "When competitors email, text, or otherwise share confidential and strategically sensitive information with each other to avoid competing, consumers lose,” said Acting Assistant Attorney General Brent Snyder of the Justice Department’s Antitrust Division. “Today’s settlement promotes competition among pay-television providers and prevents AT&T and DIRECTV from engaging in illegal conduct that thwarts the competitive process." And yes, it makes sense to enforce existing antitrust law prohibiting covert collusion between companies. The problem, of course, is that nothing in the settlement fixes the original issue of Los Angeles residents being unable to actually watch these games due to Charter's exclusive deal with the Dodgers. Nor does it address the fact that cable providers increasingly pad consumer bills with "regional sports fees" that pay for these networks (which they often already own), but are designed to help providers falsely advertise a lower rate at the point of sale (something regulators truly couldn't care less about). So while the settlement slaps the wrists of companies that technically broke the law to do battle with Charter's exclusive arrangement, nothing about it really makes things arguably better for the consumer. And with the DOJ's new incoming antitrust boss having formerly lobbied for both AT&T and Dish Network (he's previously supported AT&T's $85 billion plan to acquire Time Warner) the all-too-familiar anti-consumer dysfunction bone-grafted to the cable and broadcast sector isn't likely to evaporate anytime soon, even with the added benefit of streaming competition. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Last week, the Senate voted 50-48 along party lines to kill consumer broadband privacy protections. That vote then continued today in the House, where GOP lawmakers finished the job, apparently happy to advertise how ISP campaign contributions consistently, directly manifest in anti-consumer policy with a 215 to 205 vote (you can find a full vote breakdown here). The rules, which were supposed to take effect this month, were killed using the Congressional Review Act -- which not only eliminates the protections, but limits the agency's ability to issue similar rules down the road. The broadband industry's effort to kill the rules is one of the uglier examples of pay-to-play government in recent memory. The protections, originally passed last October by the FCC, have been endlessly demonized by the broadband industry, despite the fact that they're relatively straight forward. The rules would have simply required that ISPs are transparent about what they collect (and who they sell it to), and provide working opt out tools. ISPs were also required to have consumers opt in for more sensitive data collection (financial, browser history data). Large ISPs, however, consistently whined about the rules, insisting the rules would "confuse" consumers, and hamper "innovation" in the advertising and telecom space. They also tried to claim that ISPs don't really collect much data on consumers, and what collection that does happen can be easily dodged by using a VPN (neither of which is true). ISPs also tried to claim it was unfair to saddle them with additional privacy regulations not seen by Google and Facebook, intentionally ignoring that the often stark lack of broadband competition makes this an apples to oranges comparison. In an last-ditch attempt to try and convince the House that ISP revenues shouldn't take priority over consumer privacy, a group of around twenty smaller ISPs sent a letter to the House (clearly promptly ignored) trying to explain to them how the lack of competition in broadband made the rules necessary: "Perhaps if there were a healthy, free, transparent, and competitive market for Internet services in this country, consumers could choose not to use those companies’ products. But small ISPs like ours face many structural obstacles, and many Americans have very limited choices: a monopoly or duopoly on the wireline side, and a highly consolidated cellular market dominated by the same wireline firms. Under those circumstances, the FCC’s Broadband Privacy Rules are the only way that most Americans will retain the free market choice to browse the Web without being surveilled by the company they pay for an Internet connection." And now those rules are dead, courtesy of lawmakers that put fattening AT&T and Comcast quarterly earnings above consumer privacy and the health of the entire internet. ISPs have consistently tried to argue that killing the FCC's rules is no big deal because the FTC will somehow magically pick up the slack. But as former FCC boss Tom Wheeler recently noted, the FTC lacks rule-making authority, and ISPs know that privacy issues are going to quickly fall through the cracks at the over-extended agency. There's also rumblings that the GOP wants to push additional bills that hamstring both the FCC and the FTC consumer protection authority. If that doesn't work, they can dodge FTC oversight via common carrier exemptions patiently carved out by AT&T lawyers looking to dodge accountability for fraud. During an early afternoon floor debate, Massachusetts Representative Michael Capuano had perhaps the most amusing and heated opposition to the effort (video here), citing his online underwear purchases while mocking the lack of public support for the rules' repeal: ...When I was growing up, one of the tents of the Republican party that I admired the most was (dedication to) privacy. Please give me one, not two, one good reason why all these people here, why all these people watching, would want Comcast or Verizon to have information -- unless they give it to them. We're talking medical information, we're talking passwords, we're talking financial information, we're talking college applications -- there is nothing in today's society that every one of us doesn't do every day on the internet -- and yet Comcast is gonna get it. Not because I said it's ok. ...Go out in the street! Please, leave Capitol Hill for five minutes -- go anywhere you want -- find three people in the street who think it's ok. And you can explain to them "ROIs, and the company has to make progress, and we have to make money." You'll lose that argument every single time, as you should. And I guarantee it you won't find anybody in your district who wants this bill passed. It's consistently disappointing that ideas like net neutrality and privacy get mired in partisan politics, despite the broad, bipartisan consumer support both concepts enjoy. What happens next won't be pretty, regardless of your political ideology. Congress has intentionally and repeatedly ignored the lack of broadband competition that makes net neutrality, privacy, and other bad behavior possible. Now, as cable's monopoly over broadband grows faster than ever, ISP-loyal lawmakers are rushing to strip away any and all government oversight of one of the least-liked, and most anti-competitive business sectors in American history. ISPs recently busted for covertly modifying packets to track users, charging an additional fee for privacy, or giving worse customer support based on credit score now have carte blanche to misbehave. Thanks to a cash-soaked Congress there will be neither broadband competition, nor functional regulatory oversight of an industry with a documented history of aggressive, anti-consumer and anti-competitive behavior. What could possibly go wrong? Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
In the news and publishing world, there tends to be pretty strong support for protecting free speech and, in particular, strong anti-SLAPP laws. After all, news publishers, are (unfortunately!) frequently targeted in SLAPP suits that are designed solely to shut up a news organization from reporting on something that someone doesn't like. That's why I'm always surprised when publications themselves seem to go after others for speech. But here we are, with a weird legal battle involving two publishers in nearby Santa Clara, California. The lawsuit was filed by Santa Clara Eagle Publishing and its boss Miles Barber against a guy named Robert Haugh, who just recently started an online-only publication called "Santa Clara News Online." Eagle Publisher/Barber, on the other hand, publish the more established "Santa Clara Weekly." Haugh's Santa Clara News Online appears to be your typical local blog, with Haugh -- a local reporter for over 15 years -- posting news and opinion blog posts about local happenings in Santa Clara. Some of those blog posts criticized Barber and Santa Clara Weekly. And, thus, the lawsuit. Lawyer Ken White -- better known around these parts as Popehat -- is representing Haugh and has filed a lovely anti-SLAPP motion against Barber and Eagle Publishing, noting that it seems quite clear that the intent of the lawsuit was to try to silence Haugh from criticizing Barber and the SCW: This case presents a classic story – a minor local luminary, incensed at bad press, abuses the legal system to lash out at critics, hoping that the ruinous expense of litigation will crush them even if the claim has no merit. Fortunately, California has a robust remedy: California Code of Civil Procedure § 425.16, the Anti-SLAPP Statute (“Section 425.16”). The Court should employ it to strike the complaint in this case, which is utterly meritless. Rather tellingly, the complaint by Barber doesn't cite a single blog post by Haugh, nor even quote a single statement. It doesn't attach any of the actual posts, which you would kind of expect. Instead, it appears to paraphrase a bunch of things that Haugh's site posted -- mostly as clearly marked opinion -- and takes it out of context in the lawsuit filing: Now Plaintiffs sue Mr. Haugh, claiming that he’s used the Site to interfere with the SCW’s relationship with Santa Clara, misappropriated the trade name “Santa Clara News online, defamed it and Mr. Barber, and put them in a false light. Plaintiffs’ Complaint is notably and strategically vague. It complaints of false statements, but does not cite or attach even a single blog post or statement, nor does it quote even one statement on the Site. Instead, Plaintiffs claim that Mr. Haugh made the following vaguely defined categories of statements, which Plaintiffs claim are false: “[T]hat the 49’ers had bought out the weekly and that the weekly serves as nothing more than a proxy for the 49’ers business interest,” “[T]hat Miles Barber is a misogynist and the Weekly’s criticism of the women of the city council were [sic] based on a desire to remove all women from the council,” “[T]hat the Weekly was not authorized to publish legal notices,” “[T]hat the Weekly’s advertisers do not see a return on investment,” “[T]hat Plaintiff has been skipping publication dates,” and “[T]hat numerous facts published by the weekly were not true.” It turns out there are some problems with these allegations. Mostly in that they are misleading or inaccurate: These vague assertions mischaracterize the actual content of the Site: On the Site, in columns explicitly labeled as opinion, Mr. Haugh identified facts underlying his questions about whether the SCW was “serving the needs of the San Francisco 49ers”: that the SCW had run a large 49ers ad nearly every week since 2010, that an associate editor of SCW promoted the 49ers’ sponsorship of her non-profit arts event, and that a Political Action Committee called BluPac associated with the 49ers reprinted stories printed in the SCW. The Site has never called Mr. Barber a “misogynist.” It has criticized him for a column in the SCW (Exh. R) in which he derided female City Council members, saying they could “barely spell their name.” Mr. Haugh has not asserted that Plaintiffs are unauthorized to print legal notices. Rather, in a guest letter written by Burt Field, Mr. Field explained that he had written to the City Clerk and City Auditor asking questions about whether the SCW met the requirements for legal notices. The Site’s sole reference to advertiser “return on investment” in the SCW came from a column – expressly labeled an opinion – in which Mr. Haugh referred to the fact that most of the candidates who advertised in the SCW in the 2016 local election were not elected. Contrary to Plaintiffs’ claim, the Site is not aware of any post asserting that the SCW has skipped publication dates. Though the Site has questioned factual claims in the SCW, each time it has done s so in opinion pieces that have expressly stated the basis for the question. So, uh, yeah. That certainly makes it pretty clear that this is a SLAPP suit. There's also this fairly sketchy behavior: [Haugh's] Site was initially located at stantaclaranews.wordpress.com until Mr. Haugh registered santaclaranews.org on October 27, 2016.... On November 21, 2017, more than a month after Mr. Haugh began publishing the Site under the name “Santa Clara News Online,” Plaintiffs filed a Fictitious Business Name application purporting to lay claim to that name, and in January 2017 published the claim. Got that? In October, Haugh started publishing Santa Clara Online News. Less than a month later, Barber filed a fictitious business name application purporting that his company was using that name. Then, in the lawsuit, Barber argued that Haugh was "misappropriating" the name. That's... bad. Really bad. Also, some of the complained about statements come from letters to the editor, which means that Haugh is easily protected under Section 230. This case has all the hallmarks of a standard SLAPP suit, and hopefully the court makes quick work of it thanks to California's anti-SLAPP law. But, really, the most ridiculous part of all of this is why would a news pulisher file such a lawsuit itself, in an age where a free press is under attack? It's incredibly short sighted to try to undermine press freedoms yourself, just because someone made fun of you a little bit online. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
The basic impetus behind DRM is obvious: a frantic, misguided desire to make digital products behave like physical ones. But the truth is DRM goes far, far beyond that, restricting all sorts of activities that are intrinsic to the idea of "owning" something. Two people who have thought a lot about this are law professors Aaron Perzanowski and Jason Schultz, authors of the new book The End Of Ownership. This week, Aaron and Jason join the podcast to discuss the book and the worrying status of DRM today. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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For pretty much all of the history of Techdirt, we've been hearing from the legacy entertainment industries about how the internet has been destroying art and destroying culture. They were making things worse, and we'd have more starving artists and less content -- and whatever content we did have would definitely be terrible. That's the story we were told over and over and over again -- and there are still a few in the industry who pitch this story. The problem is it's simply not true. The New York Times has an article by Farhad Manjoo called, How The Internet Is Saving Culture, Not Killing It, in which Manjoo claims that a cultural shift has been happening, one that could have radical implications for creators: In the last few years, and with greater intensity in the last 12 months, people started paying for online content. They are doing so at an accelerating pace, and on a dependable, recurring schedule, often through subscriptions. And they’re paying for everything. Manjoo presents compelling stats to back up his argument: Apple users spent $2.7 billion on subscriptions in the App Store in 2016, an increase of 74 percent over 2015. Last week, the music service Spotify announced that its subscriber base increased by two-thirds in the last year, to 50 million from 30 million. Apple Music has signed on 20 million subscribers in about a year and a half. In the final quarter of 2016, Netflix added seven million new subscribers -- a number that exceeded its expectations and broke a company record. It now has nearly 94 million subscribers. So it seems low-priced subscription-based services are finally coming into their own. Netflix’s lowest subscription plan of $8/month offers access to thousands of hours of content. Compared to DirectTV’s $50/month plan, that’s a bargain. If you happen to also be an Amazon Prime subscriber, between merely those two plans, you can access a huge amount of content whenever and wherever you want... it’s no surprise cheap subscription models across the whole spectrum are finally thriving. If you’re an creator, this is fantastic news. Patreon now leads the pack with plans for artists to offer their fans a recurring payment option and/or a pay-for-new-content model (and, of course, you can see Techdirt's Patreon page here). Patreon Founder Jack Conte agrees the wind has shifted recently in favor of fan-funded artists: “I do think something has changed culturally,” Mr. Conte said. “This new generation is more concerned with social impact. There’s a desire to vote with your dollars and your time and attention.” Despite all the disruption the web has wrought on incumbent cable companies and brick-and-mortar game stores, the web has also made it impossibly easy for niche artists to both deepen connections with their fans as well as give them reasons to buy: Thanks to Facebook, Instagram and Twitter, artists can now establish close relationships with their fans. They can sell merchandise and offer special fan-only promotions and content. And after finding an audience, they can use sites like Patreon to get a dependable paycheck from their most loyal followers. The elephant in the room, of course, is whether artists can deliver on the promises the internet has laid before them; record labels traditionally took care of much of the publicity required to build the buzz that pushes new artists into the public stream but now that artists can take those reins, not all of them are capable or willing. Nevertheless, some artists are willing; Manjoo notes that Chance the Rapper, despite winning best new artist at last year’s Grammys, “proudly rejected every offer to sign with a record label and even to sell any of his music.” That marks a stark turning point for how all artists could soon come to view recording labels, i.e., as gatekeepers instead of enablers. For those lucky few rising to the top, i.e., artists who have mastered the “dark arts” of social media marketing, they can take significant control of their lives and livelihood. “I can have a normal life now,” said Peter Hollens, an a cappella singer who creates cover videos on YouTube. Mr. Hollens, who lives in Eugene, Ore., now makes about $20,000 a month from his Patreon page. The money has allowed him to hire production help and to increase his productivity, but it has also brought him something else: a feeling of security in being an artist. “I don’t have to go out on the road and play in bars,” he said. “I can be a father and I can be a husband. This normalizes my career. It normalizes the career of being an artist, which has never been normalized." If the trends continue as Manjoo predicts, that worn cliché of the starving artist will no longer ring true, and the blame rests solely at the feet of the global copying machine that we call the web. Permalink | Comments | Email This Story

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For many years now, we've been talking about the copyright questions surrounding pre-1972 sound recordings. There are a ton of ongoing cases about this and it may be a bit confusing to keep up with it all. In short, under old copyright law, copyright only applied to the composition itself, but not the recordings. Many states then tried to step in and created state copyright laws (or common law doctrine via the courts) that gave sound recordings some form of copyright protection -- some of it much crazier than ordinary copyright law. Eventually Congress federalized copyright for sound recordings, but it didn't apply to any sound recordings from before 1972 (and a few at the very, very, very beginning of 1972, but it's easier just to say "pre-1972 sound recordings.") And then, even though the 1976 Copyright Act took away state copyright laws having any power, they still applied to certain aspects of pre-1972 sound recordings. This has... made a mess of things. The easiest solution would be to just admit this is dumb and say that pre-1972 works should be covered by federal copyright law, but lots of folks have been against this, starting with the RIAA (more on that in a bit). And with things being confusing, some copyright holders have been using the weird status on pre-1972 sound recordings to effectively try to shakedown online streaming music sites into giving them better deals. The various cases have been all over the place, with the first few cases coming out saying that because pre-1972 sound recordings aren't covered under federal copyright law, things are different and copyright holders can sue over them. This upended decades of what was considered settled law. Last summer, in a related case on a slightly different issue, the Second Circuit completely ripped to shreds the argument from the record labels that the DMCA's safe harbors don't apply to pre-1972 sound recordings. The labels were going on a quixotic attack against the video hosting site Vimeo, and because the DMCA's safe harbors protected that site, it argued that pre-1972 sound recordings didn't qualify. The lower court had ruled the other way, opening up a world of problems for any website that hosted audio. Thankfully, the 2nd Circuit reversed it. Of course, the labels asked the Supreme Court to hear the appeal, specifically arguing that the 2nd Circuit's ruling had to be in error because it was "contrary to the considered view of the United States Copyright Office." The Supreme Court, thankfully, declined to hear the case on Monday. This is a big win for the DMCA's safe harbors. While the 2nd Circuit's ruling only has precedence in that one region, the 2nd Circuit is fairly well respected and influential on the other circuits -- and having the Supreme Court refuse to take up the issue, at the very least, suggests that the Supreme Court doesn't see that reading as particularly egregious. Meanwhile, there are other things afoot regarding the legal status of pre-1972 sound recordings. Late last year, we noted that the big win for the copyright holders in NY was overturned, and it was decided that, contrary to what some copyright holders have been arguing, there was no "performance" right under NY's state copyright, and thus they can't magically argue that such a right applies to pre-1972 works. Then, earlier this month, out here in California, the 9th Circuit told the California Supreme Court to explore the issue concerning whether or not California's state copyright law provided some proto-performance right to pre-1972 works. And, just a few days after that, the state of Georgia's Supreme Court ruled that pre-1972 sound recordings can be played by streaming sites, and some copyright holders can't bring "RICO" claims (IT'S NEVER RICO!!!!!!) just because iHeartRadio plays those songs. As more and more courts seem to be cutting off this attempted path used by record labels to shake down online services, it appears that maybe even the RIAA is having a change of heart. As you may recall, back at the top of the post, I noted that the RIAA was one of the leading voices insisting that it would be horrible to bring pre-1972 sound recordings under federal copyright law a few years ago. If they hadn't blocked proposals along those lines, none of this mess would have happened. That's why I find it somewhat surprisng, that one of the RIAA's favored front groups, musicFIRST, has been banging the drum this year, suddenly insisting that pre-1972 sound recordings should be treated the same as post-1972 works. Maybe, just maybe, the RIAA should have taken that position originally, rather than hoping to keep the copyrights separate so that it could force internet companies to pay more. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Even with the rising popularity of Google Drive and other online productivity apps, Microsoft Office is still king in the corporate world (probably due to inertia more than any other reason). You can brush up on your skills with the $39 Microsoft Office Mastery Bundle. They're offering courses in Excel, Word, PowerPoint, Outlook and SharePoint Access (note that you need to have these programs in order to complete the instruction). You will gain access to hundreds of hours of material for 12 months so you can learn at your own speed. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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Last time we checked in with (former) Brooklyn prosecutor Tara Lenich, she was facing state charges for abusing wiretap warrants to listen in on conversations between a police detective and one of her colleagues. This stemmed from what was termed a "personal entanglement" between her and the detective. The wiretap warrants couldn't be obtained without a judge's signature. Since there was no probable cause for the warrant, no judge would sign them. Lenich had a solution. She just forged the judge's signature on the warrant. And then she kept forging judges' signatures, stretching out her illicit surveillance for more than a year, with a faked signature on every 30-day renewal. Lenich is now facing federal charges. An indictment handed down by DOJ pretty much repeats the allegation of the state charges, detailing Lenich's long-running, extremely-personal wiretap operation. As alleged in the indictment, for nearly 16 months between approximately June 2015 and November 2016, Lenich created fraudulent judicial orders as part of her illegal wiretapping scheme. Specifically, she forged the signatures of multiple New York State judges onto the illicitly created judicial orders -- orders that purportedly authorized the KCDA to intercept communications occurring over two cellular telephones. Lenich then misappropriated KCDA equipment to intercept, monitor, and record the communications to and from the two cellular telephones. In furtherance of her scheme, Lenich also created fraudulent search warrants, which she then used to unlawfully obtain text messages relating to the two cellular telephones. Prosecutors have plenty of power and plenty of tools at their disposal. At some point, they'll be abused. Sometimes the damage is minimal and goes unnoticed. Other times, the abuse is discovered inadvertently. Inevitably, when the discovery is made, it's always something that's been happening for months or years, rather than a recent one-off where someone just made a very poor decision. This time it's federal prosecutors who may be facing charges for illegal eavesdropping. It's not just a few prosecutors and a few isolated cases of misconduct. As Justin Glawe reports for The Daily Beast, it's an entire prosecutors' office and a whole lot of illegal activity. A court-appointed investigator has found that the United States Attorney’s Office for Kansas is in possession of hundreds of phone and video recordings of communications between attorneys and their clients, inmates at a privately run prison facility in Leavenworth. At least 700 attorneys are believed to have been recorded without their knowledge, the investigator’s report submitted to a federal court said. Last week Special Master David Cohen asked to expand his probe to determine whether prosecutors regularly listened to and compiled attorney-client conversations. Already, 227 phone call recordings and at least 30 videos of attorney-client meetings have been discovered in the U.S. Attorney’s Office in Kansas City. These recordings, captured by Securus equipment and obtained by prosecutors from private prison company CoreCivic, contained privileged conversations between inmates and their legal representatives. The US Attorney's dirty little eavesdropping secret was exposed when it hauled in a defense lawyer to accuse her of wrongdoing. Jackie Rokusek told The Daily Beast she was called to the U.S. Attorney’s office in Kansas City last August, where she said she was told by prosecutors that they had video evidence of her providing her client with confidential information about a drug ring case. Rokusek was given a computer and she watched the video, then she says she accidentally clicked on another file. A window opened, and a video showing another attorney meeting with their client at Leavenworth played. Stunned, Rokusek immediately went to the Federal Public Defender’s office in Kansas City and told them what she’d found. Prosecutors were hoping to push Rokusek towards recusing herself from a case with this supposedly-damning recording. Instead, it showed federal prosecutors had been listening in on discussions between defense attorneys and their clients and possibly using these to stack the prosecution deck. It's common knowledge prison phone calls and personal visits are recorded. Signs are posted prominently in prisons informing inmates and visitors of this fact. But just because recordings exist doesn't mean prosecutors can avail themselves of privileged conversations between lawyers and clients. Everything else is fair game. But the recordings do exist. Securus and CoreCivic aren't going to shut off cameras and mics simply because there's a lawyer involved. And if the recordings exist, sooner or later someone's going to abuse this access. The only side that has this access is the prosecution. The side with the most power can eavesdrop with the willing assistance of those in the incarceration business. If they're careful, this abuse could go on indefinitely. If not, they'll enjoy a good run of slanted prosecutions before the hammer falls. Permalink | Comments | Email This Story

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Just last week, we wrote about a fairly insane bill up for consideration in the California Assembly. AB-1104 would effectively make it illegal to post or share any "false or deceptive statement designed to influence" an election. As we noted at the time, this is about as unconstitutional as you could possibly imagine. Again, here's the text, as put forth by Assemblymember Ed Chau: It is unlawful for a person to knowingly and willingly make, publish or circulate on an Internet Web site, or cause to be made, published, or circulated in any writing posted on an Internet Web site, a false or deceptive statement designed to influence the vote on either of the following: (a) Any issue submitted to voters at an election. (b) Any candidate for election to public office. Yes, merely posting or sharing something that turns out to be wrong or "deceptive" related to anyone or any issue related to an election could violate the law. That's... not how the First Amendment works. And this would be an absolute free speech nightmare. Chau, somewhat astoundingly, actually is a lawyer who ran his own law practice. I'm now curious if the Southwestern University School of Law doesn't teach its students about the basics of the First Amendment. Rather than everyone laughing and this bill dying as soon as it was introduced, the California Assembly's Committee on Privacy and Consumer Affairs (which Chau chairs) is set to consider this bill today. In case you don't understand just how bad this is, here's EFF's description: American political speech dating back as far as the John Adams-Thomas Jefferson rivalry has involved unfair smears, half and stretched truths, and even outright lies. During the 2016 campaign alone, PolitiFact ranked 202 statements made by President Donald Trump as mostly false or false statements and 63 “Pants on Fire” statements. Hillary Cllinton made 69 statements ranked mostly false or false and seven as “Pants on Fire.” This bill will fuel a chaotic free-for-all of mudslinging with candidates and others being accused of crimes at the slightest hint of hyberbole, exaggeration, poetic license, or common error. While those accusations may not ultimately hold up, politically motivated prosecutions—or the threat of such—may harm democracy more than if the issue had just been left alone. Furthermore, A.B. 1104 makes no exception for satire and parody, leaving The Onion and Saturday Night Live open to accusations of illegal content. Nor does it exempt news organizations who quote deceptive statements made by politicians in their online reporting—even if their reporting is meant to debunk those claims. And what of everyday citizens who are duped by misleading materials: if 1,000 Californians retweet an incorrect statement by a presidential candidate, have they all broken the law?  At a time when political leaders are promoting “alternative facts” and branding unflattering reporting as “fake news,” we don’t think it’s a good idea to give the government more power to punish speech. Because the California Assembly is considering this bill today, EFF has also set up an action center making it easy to tweet at California Assemblymembers, to let them know just how bad this censorship law would be. Please check it out, especially if you live in California. Permalink | Comments | Email This Story

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Last week, buried under the fracas surrounding the failed update to the Affordable Care Act, the Trump administration conducted an adorable little stage play few actually noticed. The Administration invited Charter CEO Tom Rutledge to the Oval Office, where the CEO -- alongside Texas Governor Greg Abbott and Energy Secretary Rick Perry, repeatedly implied that Trump's policies were somehow to thank for the creation of 20,000 jobs and $25 billion in investment at the cable giant. Press Secretary Sean Spicer was quick to applaud the "new" jobs on Twitter. At the same time Charter issued a statement expressing "confidence in the deregulatory policies of the Administration," the President's office rushed to release a video patting itself on the back for the "landmark deal": Today, I was thrilled to announce a commitment of $25 BILLION & 20K AMERICAN JOBS over the next 4 years. THANK YOU Charter Communications! pic.twitter.com/PLxUmXVl0h — Donald J. Trump (@realDonaldTrump) March 24, 2017 The FCC also quickly issued a statement by new FCC boss Ajit Pai in which he claimed FCC policies were to thank for the jobs: I’m pleased to see that our investment-friendly policies, along with the Administration’s overall regulatory approach, are already producing results. And Pai Chief of Staff Matthew Berry also lent a hand to help the FCC pat itself on the back for a job well done: Charter announces $25 billion broadband investment over next 4 yrs. New reg approach from FCC and Administration already producing results. — Matthew Berry (@matthewberryfcc) March 24, 2017 The problem: neither the job creation nor the investment promises are new. And neither Donald Trump nor the FCC had absolutely anything to do with them. The 20,000 jobs in question were actually announced more than a year ago by Charter. The jobs, purportedly to be created by eliminating off-shored labor, were part of the sales pitch for its massive, $79 billion acquisition of Time Warner Cable and Bright House Networks. Like most megamerger promises, there was no real timeline affixed to the jobs, which may or may not ever actually get created. Job losses are far more common in such M&As due to the elimination of redundant positions, but holding companies accountable for false merger promises simply isn't fashionable for either major political party. The $25 billion investment (to be made over four years) isn't new either. In fact, if you look at Charter SEC filings (page 221) from August 18, 2015, you'll note that the $25 billion is in line with what Charter pretty consistently spends over any four-year span. Some journalists on Twitter were also quick to point out that the $25 billion is actually down a bit from what Charter would have normally spent during the same period (ironic for a company that whined about net neutrality's impact on investment): @TonyRomm Charter spent $7.5bn (pro forma) on capex in 2016. $7.5bn x 4 = $30bn. So $25bn is actually lower than historic rate — Jan Dawson (@jandawson) March 24, 2017 Granted, taking credit for jobs and investment he had nothing to do with has sort of become Trump's MO in his first few months in office. Sprint owner Softbank has also been letting the President take credit for job creation and investment he had nothing to do with in order to curry regulatory approval of a pending T-Moble, Sprint merger. Charter, which is rumored to be considering a possible megamerger with Verizon or T-Mobile, clearly hopes that buttering Trump up will pave the way for its own M&As. It's a win for the companies and the administration alike: companies get to get their names in bright lights as job creators (whether it's true or not doesn't matter), and Trump gets more credit with a base that derides any contradictory evidence as fake news. The real losers remain American consumers. The deal, approved under the Obama administration, has already resulted in higher rates and even worse customer support than ever -- no small feat for an industry already ranked last in terms of customer satisfaction and support. Synergies, indeed. Just so we're clear: the previous administration approved a deal that has already proven horrible for consumers; and the current administration is falsely taking credit for the stale and bogus job creation claims used to prop that bad deal up. There's additional irony in that Trump ran his election based on killing megamergers of this type, promising to not only block AT&T's proposed acquisition of Time Warner, but to break up Comcast's already completed 2011 acquisition of NBC Universal. Most analysts expect neither to happen. In fact, the most likely outcome is that Trump and AT&T (the king of bogus telecom merger claims) will use the Time Warner deal to create a supernova of bogus job and investment promises the likes we've never seen before. And while that's bad news for consumers, if you're the type that likes it when governments and companies use flimsy promises and half-cooked data to prop up bad tech policy and hollow partisan rhetoric -- you may soon find yourself in hog heaven. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
It's been well-established at this point that red light cameras, those devices that issue tickets and blinding lights to drivers not stopping on red, have always been less about safety and more about the revenue produced by the tickets. That really should be enough a story of corruption for anyone to cast a wary eye at cities implementing these cameras, but you really have to admire the brazen committment to corruption the city of Chicago displayed when initially contracting with the company Redflex for its camera system. The CEO for Redflex was brought up on federal charges for bribing city officials, including offering some condos and cars, because why mess around? Yet, even once we move past the corrupt manner the cameras were put in place, Chicago saw tons of its tickets tossed by a judge who noted that the city wasn't even following its own rules for due process on those tickets. Furthermore, the cameras were set to have a "grace period," the buffer time for which a driver could run a red light and still not be ticketed, of .1 seconds, even as other major cities' grace periods were three times that, and it was laughably clear how this system was designed entirely to bring in city revenue. Well, rejoice Chicagoans, because the city has been dragged into extending that grace period to the .3 seconds shared by other major cities, making the whole thing barely less nauseating. Under the new policy, which was announced Monday, the grace period for Chicago’s red lights will move from 0.1 seconds to 0.3 seconds. This will bring the Windy City in line with other Americans metropolises, including New York City and Philadelphia. In a statement, the city agency said that this increase would “maintain the safety benefits of the program while ensuring the program’s fairness.” Except it really doesn't. This is the same system, no longer operated by Redflex due to the company's corrupt practices, but still born of that same corruption and forever tainted by it. Unaddressed thus far are the city's failings in due process, nevermind any valid analysis showing a safety benefit to any of this. Instead, the city has basically agreed to collect slightly less revenue in its traffic camera revenue program. This, by the way, is the city with the largest red light camera program in the nation. So... yay? Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Available For One Week Only: Necessary Hashtags Gear From TechdirtUK/EU Shipping | US Shipping Ever since UK Home Secretary Amber Rudd offered up her confused ideas about internet censorship, the somewhat meta hashtag #necessaryhashtags has been busily buzzing away with quips at her expense. For those of you who are in on the joke, and especially our UK readers for whom I'm sure it hits closest to home, we've launched a new limited edition line of t-shirts, hoodies, mugs and stickers available only until Monday, April 3rd. Also, consider this UK-focused offering a celebration of the fact that all our gear now has European shipping options available that should make things much less expensive for overseas buyers. When you check out any of our products with an IP address from outside the US, you should be given the option to choose your fulfillment center — but sometimes with new shirts there is a delay before this automated setup is in place, so you can also look for the link in the product description on Teespring. For now, here are the separate links for UK/EU shipping and US shipping for this latest design. Check out the Techdirt Gear store for Necessary Hashtags and more » Permalink | Comments | Email This Story

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When you write enough about trademark disputes, a recurring thing that happens is you keep thinking you've seen it all, but then something insane happens. And truly, after years of writing here at Techdirt, I've come across some mind-bending trademark disputes. But I can't think of a single one that matches the Broadway version of A Bronx Tale changing its set design to appease a cafe owner who insists he is a monarch of Italian pastries. Little Italy pastry shop owner John "Baby John" Delutro of Caffé Palermo asked Broadway's "A Bronx Tale" to remove a sign on its set that dubs another pastry joint "The Cannoli King," infringing on his trademark. The show — a coming-of-age story about an Italian kid growing up in the Bronx during the socially segregated 1960s — is currently crediting Arthur Ave. pastry shop Gino's with the coveted cream-filled title on one of its storefront signs in the set. The lawyer for "A Bronx Tale" refused to comment, but producers for the show said they plan to re-paint the sign. Can you smell that? It's the scent of crazy wafting into your nostrils, because nothing about this makes any sense. First, the real-world trademark ownership of a phrase like "The Cannoli King" has zero purchase on the fictional realm of the play. A play which, by the way, is set in the 1960s, and merely included a streetside set design with a restaurant with the trademarked phrase painted on it. There's no use in commerce to talk about, nor is there any customer confusion at hand. In fact, the only reason the play points to Gino's in the Bronx at all is because the owner of that pastry shop does indeed use that moniker and it's in the Bronx, whereas Delutro's business is in Manhattan. Delutro is also going after Gino's for use of the phrase, which, you know, fine, but there is no reason to have ever pushed the Broadway play to change its set design. Again, it's a fictional world, rendering any customer confusion null and void, thus invalidating any trademark dispute reared by the trademark owner. Just to put a bow on this, Delutro opened his business in the 70s, the decade after the setting for the play. I understand that the producers of the play likely just wanted this all to go away, but they could just as easily have laughed the threat off entirely, because it's without merit. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Qualified immunity -- a legal doctrine that originates from court decisions rather than statute -- received another boost from the federal court system last week. Qualified immunity is the concept that allows overreaching and abusive government employees and officials to stay one step ahead of accountability. If their actions don't "clearly violate" established law and/or precedent, police officers, etc. can walk away unscathed from deprivations of other people's life and liberty. The Eleventh Circuit Appeals Court has declined [PDF] a chance to rehear a case in which the Second Amendment is implicated nearly as much as the Fourth Amendment. In doing so, no further precedent will be set, which just adds to the list of actions law enforcement officers can perform and still expect to be granted qualified immunity. If there's no precedent set, it's pretty hard to "clearly violate" it. Handy. The short story: Andrew Scott was home playing video games with his girlfriend when someone began banging loudly on his door. Since it was 1:30 am, Scott was cautious and answered to door with a gun in his hand, pointed at the floor. He opened the door to see only a "shadowy figure" and began stepping backwards. The shadowy figure was Deputy Richard Sylvester, who immediately shot Scott six times, killing him. Deputy Sylvester admits he never identified himself as a law enforcement officer. He also claims Scott's movement back into his apartment was perceived by him as a Scott attempting to find cover before opening fire. Perception is all that matters, and only one person's perception really matters: Deputy Sylvester's. The district court concluded that Deputy Sylvester’s splitsecond decision to use deadly force was objectively reasonable under the total circumstances—a reasonably perceived imminent threat of serious physical harm—and was not a constitutional violation. [...] At a minimum, no clearly established federal law as of July 15, 2012 gave fair and clear notice to Deputy Sylvester that his conduct in these unique circumstances was objectively unreasonable and unlawful, and thus “no reversible error” was shown. And so it goes. Cops can bang on your door in the middle of the night without announcing themselves and it's up to you not to scare them into killing you. The Second Amendment gives you the right to bear arms, but apparently not if you're going to be startled by unannounced law enforcement at 1:30 in the morning. The dissent isn't thrilled with the decision to pass on the rehearing, noting the implications this has on two amendments: the Fourth and the Second. But especially the Second. If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect. The dissenting judges also delivered one biting sentence about the law enforcement tactics that led to Scott being killed by Deputy Sylvester. We have never before held that police can, without justification, provoke a panic, and then hide behind it by claiming that “everything happened fast.” It doesn't matter is the court has "held" this or not. It happens all the time. Police create the exigency, then use it to excuse every rights violation that occurs thereafter. Andrew Fleischman of Fault Lines describes the pitiable "standard" officers are being held to by our nation's courts. For those not in the know, officers are allowed to knock on a citizen’s door as long as they don’t exceed the boundaries of what any door to door salesman or Girl Scout might normally do. Here, the Court figured that it wasn’t clear the officers exceeded the boundaries of a knock and talk, because it’s typical for four Girl Scouts to take up tactical positions around your door at 1:30 in the morning, pound your door, and then shoot you when you answer it. As one appellate judge noted in upholding the grant, it’s not like the officers had helicopters. Literally, that’s the standard. No helicopters hovering overhead. Still, as far as qualified immunity analysis goes, that might be right. By refusing to rehear the case, the Eleventh Circuit has refused to discuss raising the bar for qualified immunity, much less move forward towards something that might further protect so-called "enshrined" rights like the multiple amendments violated in this case. Every time a court declines to reexamine a case, the QI bar remains static. Add up enough non-decisions and the bar begins to drop. Even though Deputy Sylvester was leaping from one hunch to another. Even though it was one in the morning. Even though he failed to consider that a reasonable person might come to his door armed in response to aggressive late-night knocking. Even though a “knock and talk” is supposed to be a friendly, consensual encounter, and there is nothing consensual about answering your door to find a gun in your face. Deputy Sylvester had qualified immunity because there was no case exactly on point saying that he couldn’t make those choices. In fact, there still isn’t. He could do the exact same thing tomorrow, and the day after, and there would be no legal consequences. That’s qualified immunity for you. If nothing else, the courts' continued deference to officers' statements of "fear" and "split-second decisions" makes "Blue Lives Matter" laws excessively redundant. Here's Scott Greenfield's take on the consequences of (yet another) non-decision. That an innocent person killed because of a scared cop can’t recover for the deprivation of his life is bad enough. That he was deprived of his life is even worse. That the law endorses both things, independently, under yet another judge-made exception to both the Constitution and statute reduced the law to a farce that will employ any sophistry necessary to rationalize why cop’s lives matter more than anything else. Holding an officer accountable for rights violations is almost impossible. Those who've obtained settlements might receive something to help with medical/funeral bills and the feeling they might have made a small, positive difference. But the reality is every settlement comes with no admission of wrongdoing and -- better/worse yet (cop/citizen) -- no precedential ruling that would make it easier to hold officers accountable for their actions in the future. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
The very idea of major movie studios simultaneously complaining about movie piracy during the initial release of a film and instituting long release windows so that films are only in the theater for legitimate viewing has never made a bit of sense. As study after study has shown, one great way to reduce piracy for a film is to make it available for home viewing as early as possible. The reason for this should be obvious: in this case, piracy of a film is a sort of market study, one which informs the studios that a part of the public really wants to watch the movie at home as opposed to in the theater. Trying to force that part of the market into the theater by delaying home rentals or purchases no longer works, because piracy is an option. Stamping out piracy has never worked, but making the film product available the way the customer wants would, at least to decent percentages. And it seems this decades long lesson may finally be finding purchase by its students in the film studios, as several major studios are reportedly considering slashing release windows by a third. According to a Variety report, six of the seven biggest Hollywood studios are considering plans to allow new movies to be delivered via VOD into the living room between 30 and 45 days after launch for around $30. Fox and Warner are said to favor this structure but other plans are also floating around. Universal are reported to be pushing for a VOD release less than three weeks after launch, with Warner Bros. suggesting a shorter 17-day delay but with a larger $50 rental price. Of course, any move to bring content to the home more quickly could have a profound effect on the many theater chains around the United States and present a serious stumbling block in negotiations. However, a proposal from Warner would see exhibitors receiving a cut of VOD revenues, if they agree to a narrowing of the theatrical release window. Getting the theaters on board will indeed face headwinds and it's important to note that these plans are reportedly very early on in the negotiating process. Still, this only makes sense. The job of moviemakers is to give the public movies the way they want them. The job of theaters is to create an experience that makes people want to go to the theater. It can't only be the movie itself. The movie is the studio's job. It has to be the theater attracting viewers. If it isn't, that's on the theater companies, not the studios. Still, it's frustrating that even these baby steps are facing so much pushback, because what the studios should actually do is much more severe than a 33% cut in the windows. There's a joke in atheist circles that goes like this: first there was polytheism, then there was monotheism, and they're getting closer to the right number all the time. This joke ports nicely to the case of release windows, where the best number available is zero windows at all. With that kind of innovation being too much to hope for from entrenched industries, let's at least hope that some of the more forward-thinking studios can convince the one studio that you already know is against this whole idea. While the rest of the major studios are keen to move forward, Disney is reported to be against the proposal. For a company that came up with the artificial restrictions embodied in the Disney Vault, for example, that probably won’t come as too much of a surprise. In which case I would kindly ask Disney to stop bitching about piracy. The other studios are at least trying something new instead of pushing the same doomsday talking points. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
We've written a number of times about Carl Malamud and his organization Public.Resource.org, a nonprofit that focuses on making the world's laws more readily accessible to the people governed by those laws. You'd think that people would be excited about this, but instead, Carl just keeps getting sued. All the way back in 2013, the state of Georgia first threatened Carl for daring to publish online the "Official Code of Georgia Annotated." Two years later the state did, in fact, sue Carl for copyright infringement. The case is, at least somewhat tricky and nuanced -- even if it shouldn't be. The key issue is the annotations and other additions to the official laws created by the legislature (the state of Georgia claims that "names of titles, chapter, articles, parts and subparts, history lines, editor notes, Code Commission notes, annotations, research references, cross-references, indexes and other such materials" are all covered by copyright). Obviously, it's crazy to think the underlying law itself is covered by copyright and unpublishable, but this has to focus on the annotations -- which are the various notes and links to relevant case law that add important context to the code itself. As people studying the law quickly learn, "the law" is not just the regulations written down by legislators, but also the relevant caselaw that interprets the laws and sets key standards and makes decisions that influence what the written code actually means. I don't think anyone disagrees that a private party who develops useful and creative works as annotations could potentially hold a copyright on the creative elements of that work (merely listing relevant cases, probably not, but a deeper explanation, sure...). And here, these annotations are developed by a private company: LexisNexis. The issue is the "official" part. Under contract with the state, LexisNexis creates the annotations, gets the copyright, and then assigns the copyright to the state of Georgia on those annotations, with Georgia releasing it as "the Official Code of Georgia Annotated." It's also worth noting that every new bill in the Georgia legislature says that it's "an Act to amend the Official Code of Georgia Annotated" -- not to just amend the code. I just grabbed the first bill I could find, and this is what you see: Also, as noted above, it's not just the "annotations" here -- but as the state claims, the "Code Commission" notes. That seems like fairly relevant information created by the government. Either way, the state of Georgia views the entire "Official Code of Georgia Annotated" as its one true source of law, and it's not available to the public. While the state has responded that (via LexisNexis) it does offer a website with the unannotated code, that website requires that you agree to LexisNexis' overly broad terms and conditions, which include all sorts of crazy demands, including insisting that if they ask you not to link to them, you have to stop linking. Also, even though this is Georgia's state laws, you agree that any dispute over the website will be in a New York jurisdiction. Oh, and the actual website with the law is basically unusable. Malamud and his legal team argued that (1) due to the nature of this odd relationship, the work cannot be covered by copyright and (2) that, if it was covered by copyright, republishing this annotated code was fair use. Unfortunately Judge Richard Story, in the federal district court in Atlanta, has rejected both these arguments and found that the posting of the work was infringing. On the question of whether or not this work could be covered by copyright, the court shows how legal annotations have long been considered copyright-eligible. In response to the argument that this is different, since it's the government itself now claiming these annotations as "official," the judge... just doesn't buy it: Here, Defendant argues that these annotations to the O.C.G.A. are not copyrightable, but the Court disagrees. The Court acknowledges that this is an unusual case because most official codes are not annotated and most annotated codes are not official. The annotations here are nonetheless entitled to copyright protection. The Court finds that Callaghan v. Mvers. 128 U.S. 617 (1888), in which the Court found annotations in a legal reporter were copyrightable by the publisher, is instructive. Defendant itself has admitted that annotations in an unofficial reporter would be copyrightable, and the Court finds that the Agreement does not transform copyrightable material into non-copyrightable material. The court further notes that the State of Georgia, while still publishing this as the "official" code, has bent over backwards over the years to remind everyone that the annotations themselves do not carry the force of law. This is probably the right legal conclusion as copyright law currently stands, even if it's an unfortunate legal conclusion. What it means is that, in Georgia, professional practitioners, with access to the expensive official annotated code, are the only ones able to truly understand the law -- and the average everyday Georgian cannot. From a public policy perspective, that just seems like a bad idea. The fair use argument is a bit more interesting, and seems more viable to me, but the judge doesn't seem to think so. As always, the court runs through the four factors test for fair use, and weighs them... saying that they tip towards the state, rather than Malamud (and the public). For test one, on the nature of the work and whether or not the use is transformative, the court says there's no transformative use here at all, since it's just reposting the work as is. Defendant does not transform the annotations. It does not add, edit, modify, comment on, criticize, or create any analysis or notes of its own. Defendant's justification in support of its verbatim copying and free distribution without authorization is that it purports to provide wider distribution of the annotations. Courts have routinely rejected arguments that this is transformative use The fact that Public.Resource.org is a nonprofit and doing this for the benefit of the public still doesn't tilt the scales. In fact, in a rather troubling part of the ruling, Judge Story actually claims that because Carl "profits" from attention, he shouldn't even be considered a nonprofit. In this case. Defendant's business involves copying and providing what it deems to be "primary legal materials" on the Internet. Defendant is paid in the form of grants and contributions to further its practice of copying and distributing copyrighted materials. Defendant has also published documents that teach others how to take similar actions with respect to government documents. Therefore, the Court finds that Defendant "profits" by the attention, recognition, and contributions it receives in association with its copying and distributing the copyrighted O.C.G.A. annotations, and its use was neither nonprofit nor educational. That's... insane. I mean, just about any nonprofit doing anything gets "recognition" for the work they do, and most nonprofits survive on grants and contributions. It seems quite troubling to argue that just because a nonprofit gets attention for doing the work it set up to do, that you can ignore that the use of a work was for nonprofit purposes. The second factor is the nature of the work. Without much analysis, the judge calls this one even, saying that it's "at best, neutral, as between these parties." This was a surprise to me. At the very least, I figured this factor would fall towards Malamud, as it's pretty easy to point out that "the nature" of the work is the official laws of the state of Georgia and the officially "blessed-by-the-state" annotation for what those laws mean. It seems like that should definitely push the ledger to the "fair use" side. But, for unclear and unexplained reasons, the judge says this one is even. The third factor was almost certainly going to go against Carl: it's for the "amount and substantiality" of the work. While we've covered multiple important fair use cases where it was determined that even using the entire work can be fair use, in this case, that was going to be a hard argument, and the judge gives this one easily to the state of Georgia: "In this case. Defendant has misappropriated every single word of every annotation using a bulk industrial electronic scanner." I'm not sure why the "bulk industrial electronic scanner" needs to be called out here, as that's really kind of unrelated to the fair use question, but the judge went with it. Finally, there's the fourth factor, about the impact on "the market." And, again, this one goes to Georgia: Plaintiffs have established the markets for the O.C.G.A. works: printed publications, CD-ROM, and subscription services. When considering Defendant's actions being performed by everyone, it is inevitable that Plaintiffs' markets would be substantially adversely impacted. A judicial decree that Defendant's wholesale copying of the copyrighted annotations constitutes a fair use would hinder the economic viability of creating and maintaining the O.C.G.A. because people would be less likely to pay for annotations when they are available for free online. The judge goes on to note that poor, poor LexisNexis won't have any economic incentives at all if this sorta thing keeps up. Of course, LexisNexis is part of the RELX Group conglomerate that "only" brought it somewhere around $8.5 billion dollars in revenue last year. How will they ever survive if the one-man shop of Carl Malamud puts the official annotated code of Georgia online? And, of course, this also ignores the fact that the State of Georgia doesn't need to set up a relationship with LexisNexis whereby LexisNexis gets paid based on sales of the code. It could, just as easily, pay LexisNexis for the annotations and then make them freely available to help its own citizens. But, nope, the judge is quite worried about the profits of this mega-conglomerate, which might be hurt by this one man nonprofit who dares to profit from "attention." Even if you agree that this is an accurate fair use determination, the whole situation seems unfortunate. Georgia suing someone for helping to make its own laws more accessible just feels pretty damn sleazy and against what a government should be doing for its citizens. Either way, in this round, Malamud, Public.Resource.org and the citizens of Georgia have lost big time, while the state of Georgia (and LexisNexis) have won. Over the weekend, Malamud told me that he will be filing a notice of appeal shortly. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
So, last week a clearly troubled individual by the name of Khalid Masood killed four people in Westminster and, as happens all too often after something bad happens, politicians went insane. But no one more so than UK Home Secretary Amber Rudd, who really maybe should have taken a moment or two to find out what the hell she was talking about before going on TV spouting off complete and utter nonsense about technology, social media and encryption. Instead, Rudd, who again, I remind you, is in a very powerful position within the British Cabinet (sort of loosely equivalent to the head of Homeland Security in the US) said this while talking about getting various social media companies to be more proactive in censoring content: “What I’m saying is the best people who understand the technology, who understand the necessary hashtags to stop this stuff even being put up, not just taking it down, are going to be them. That’s why I would like to have an industry-wide board set up where they do it themselves.” The best people... who understand the necessary hashtags. The. Necessary. Hashtags. Or should that be #NecessaryHashtags. I mean, that's so insane that it distracts from the fact that the UK Home Secretary is literally saying that she wants internet companies to come together in a mass collusion to censor content the UK Home Secretary doesn't like. Believe it or not, that wasn't even the craziest thing that this person-in-power had to say. Prior to the #NecessaryHashtags, we were given a full throated UK-version of James Comey and his silly, debunked "going dark" nonsense, just with a British accent: “It is completely unacceptable. There should be no place for terrorists to hide. “We need to make sure that organisations like WhatsApp, and there are plenty of others like that, don’t provide a secret place for terrorists to communicate with each other. “It used to be that people would steam open envelopes, or just listen in on phones, when they wanted to find out what people were doing, legally, through warrantry, but in this situation we need to make sure that our intelligences services have the ability to get into situations like encrypted WhatsApp.” We don't necessarily (hashtag or not!) need to rehash just how wrong this is -- we've covered that plenty of times in the past. The fact is there are always going to be tons of places where "terrorists" can communicate with each other that no one can see. Sometimes it will be in person. Sometimes it will be in public, but using a pre-designated code. And, of course, even more importantly, this crazy decision to blame encrypted communications apps in a case where even Rudd admits the guy was a lone actor, completely ignores just how important encrypted, private communications are to the rest of us. It takes quite a misguided thought process to think "here we have a disturbed lone actor who did an attack, and therefore we need to make absolutely everyone else significantly less safe." It takes an even more misguided process to take that thought and go on TV and announce it as an official plan of the UK government. Oh, and remember, this is the same UK government that just months ago got massive new powers to spy on the public. If it's not yet obvious from what was said above that Rudd is just playing tech buzzword bingo and has simply no idea what she's talking about, she also said this: “We’re not saying open up, we don’t want to go into the cloud, we don’t want to do all sorts of things like that, but we do want them to recognise they have a responsibility to engage with government, to engage with law enforcement agencies when there is a terrorist situation”. You're not saying open up and you don't want to go into the cloud? But you are saying that encryption shouldn't be allowed to work? What is she even saying? This is all nonsense. The companies do engage with governments all the time. When given a valid and legal warrant, they do what they can. Sometimes that's nothing. Of course, all of this is coming on the heels of another misguided outrage at other tech companies for sometimes allowing bad people to use their tools. Paul Bernal has an oasis of sanity responding to some of this cesspool of craziness. Terrorists use the internet to communicate and to plan because we all use the internet to communicate and plan. Terrorists use the internet to access information because we all use the internet to access information. The internet is a communicative tool, so of course they’ll use it – and as it develops and becomes better at all these things, we’ll all be able to use it in this way. And this applies to all the tools on the net. Yes, terrorists will use Google. Yes, they’ll use Facebook too. And Twitter. And WhatsApp. Why? Because they’re useful tools, systems, platforms, whatever you want to call them – and because they’re what we all use. Just as we use hire cars and kitchen knives. [....] The same is true of privacy itself. We all need it. Undermining it – for example by building in backdoors to services like WhatsApp – undermines us all. Further, calls for mass surveillance damage us all – and attacks like that at Westminster absolutely do not help build the case for more of it. Precisely the opposite. To the surprise of no-one who works in privacy, it turns out that the attacker was already known to the authorities – so did not need to be found by mass surveillance. The same has been true of the perpetrators of all the major terrorist attacks in the West in recent years. The murderers of Lee Rigby. The Boston Bombers. The Charlie Hebdo shooters. The Sydney siege perpetrators. The Bataclan killers. None of these attacks needed identifying through mass surveillance. At a time when resources are short, to spend time, money, effort and expertise on mass surveillance rather than improving targeted intelligence, putting more human intelligence into place – more police, more investigators rather than more millions into the hands of IT contractors – is hard to defend. Why is it that all the sane thoughts on this seem to be coming from outside the government, and the craziest ideas coming from those in the highest positions of power? Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
The iFixit Essential Electronics Toolkit is packed with everything you need to for the most important electronics repairs, like screen breaks and battery swaps. The kit includes a magnetized driver handle, angled precision tweezers, spudger, jimmy, iFixit opening tool, 6 iFixit opening picks, suction handle, SIM eject bit, and a lid with built-in sorting tray. It also contains various phillips, pentalobe, Torx and Torx security screwdriver bits. The magnetized case keeps everything organized and easy to find. It's on sale for $19.95 in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
If you've been reading Techdirt for any time you'll know that copyright collecting societies have a pretty poor record when it comes to supporting the artists they are supposed to serve. Sometimes, that is just a question of incompetence, but often it veers over into something worse, as happened in Spain, Peru and India. TorrentFreak has some interesting news about an audit of the Greek collection society (AEPI). Initially, AEPI was reluctant to hand over the relevant documents to allow the audit to take place, but here's what has just emerged: The final report, obtained by Greek publication TVXS, reveals a capital deficit of around 20 million euros, which according to the publication means AEPI cannot meet its obligations. Despite that notable shortfall, key members of AEPI's management team have been getting paid rather handsomely: AEPI's CEO alone received an annual salary of 625,565 euros in 2011, more than 52,000 euros per month. This figure has prompted outrage in local media. Strangely, though, the actual artists that AEPI is meant to represent aren't doing quite so well: According to the audit, AEPI’s IT system tasked with handling royalty payments was incapable of producing a report to compare royalties collected with royalties being paid out. But artists were certainly being short-changed on a grand scale. "By Dec. 31st 2014, the undistributed royalties to members and rightsholders amounted to 42.5 million euros, and have still not been awarded to members," the Greek newspaper EfSyn notes. A further post on the TorrentFreak site, this time concerning the former head of anti-piracy at the British Phonographic Industry (BPI), shows that there are problems with money in other parts of the copyright industry: "BPI can confirm that a former employee, David Wood, was dismissed for gross misconduct in December 2015," a BPI spokesperson told TF. "BPI has referred the matter to the Metropolitan Police who are investigating. As investigations are ongoing, it would not be appropriate to comment in any more detail at this stage.” TorrentFreak sources indicate that very large sums of money are involved in the dispute, running well into six figures. Precise details have proven impossible to verify (the BPI declined to comment) but we understand the numbers involved are "significant". Given that this kind of thing has been happening all around the world for years, you really have to wonder why these organizations are still allowed to put themselves forward as the legitimate representatives of the artists they serve so poorly. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
If you recall, the cable industry has spent the better part of the last decade arguing that a la carte television (offering users the ability to buy channels individually instead of in bloated bundles) would do two things: raise rates for all consumers, and kill off niche channels, which the industry argued simply couldn't survive outside of the bundle. The industry repeatedly used this logic to justify its decision to avoid delivering not only a la carte, but cheaper and more flexible channel bundles in general. Some ten years later, and you'll be shocked to learn that higher cable TV rates and the death of niche channels... are happening anyway. The Wall Street Journal this week penned an interesting look at how cable companies are increasingly culling lesser-viewed channels from the cable lineup, largely to make way for more expensive programming (read: mostly sports). The report notes that while consumers have endlessly decried the high costs and limited flexibility in the channel bundle, the number of channels in the cable bundle has ballooned all the same: "Since 2008, the average number of channels in U.S. cable bundles has grown from 129 to 199. But people typically watch only about 15 a week, according to Nielsen. Many networks get small audiences. Nearly 70 channels that collect an average of $13 of Americans’ monthly cable bills each accounted for about 0.5% or less of total TV viewing in January, according to a WSJ analysis of Nielsen and Kagan data." As broadcasters demand more and more money for the same content, cable providers have started either eliminating lesser watched channels from their cable lineup entirely, or shoveling these channels off into higher-priced bundles in a desperate attempt to stave off inevitable evolution. But the die is already cast. Customers are tired of paying $130 per month for 200 (largey unwatched) channels, and are increasingly fleeing to streaming competitors -- resulting in 2016 seeing the highest cord cutting rates on record. Despite this, broadcasters continue to demand higher and higher rates, resulting in more and more annoying content blackouts and carriage fee disputes. Said disputes, which involve users losing access to content because cable and broadcasters can't agree on new rates, only act to further drive these annoyed customers to streaming alternatives. And while cable companies have started ejecting lesser-watched niche channels from the lineup (not really as big of a deal as claimed as the PewDiePie era should make clear), consumers are expected to happily continue paying the same amount of money: "Don’t expect cable-TV prices to fall as channels die: Cable executives say they can’t pass on savings since their programming costs are still rising faster than cable bill increases." That's of course why many smaller phone and cable companies are getting out of the cable TV game entirely, since their lack of size for leverage in content negotiations means their profit margins are untenable. It's also why giant companies like Comcast and AT&T are increasingly merging, consolidating, and buying content factories like NBC Universal or Time Warner, in the hopes that owning the cow helps them weather the evolutionary shitstorm to come. The problem of course is that the cable and broadcast industry will eventually have to make less money in the face of streaming competition. It's not really a choice, but it's been marginally entertaining watching the sector try and avoid this reality. Right now, some companies are offering so-called "skinny bundles" to appease frustrated customers, hoping these customers won't notice caveats, fees and hidden charges make these options as expensive as the traditional bundles they're supposed to supplant. But ultimately the cable and broadcast industry will have to lower traditional cable prices and begin offering more flexibility if they hope to truly compete with the original programming coming from the likes of Amazon, Netflix, YouTube, and eventually, Apple. You'll know the entire sector has actually learned some sort of lesson when the cost of traditional cable drops. Until then, most of this shuffling around of channels is little more than a superficial, aesthetic attempt to avoid the stark reality that overlarge and overpriced cable TV bundles are doomed by the rise of streaming video competition. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Twitter's latest Transparency Report contains a new section that shows some governments may be trying to use Twitter's own rules to achieve censorious goals. Legislators and misguided lawsuit plaintiffs have been complaining for years social media services don't do enough to curtail terrorists and terrorism-related content. This has been the subject of multiple lawsuits and multiple Congressional hearings. However, governments can only do so much to pressure social media services into regulating content. If the government steps in to set the rules, then it crosses the line. The US government has, so far, been unwilling to act as a direct censor of content. Other governments have no qualms about censorship, but have found their efforts somewhat blunted by Facebook, Twitter, etc. being US-based companies, where compliance with foreign directives is a nicety, not a legal requirement. Of course, both companies have voluntarily acted as local censors in response to foreign laws and legal threats. Fortunately for these governments, Twitter has a way to let them achieve their censorship goals without having to resort to legal threats or new legislation. The new way to control content lies in the site's terms of service, as the Twitter blog post points out. For the latest reporting period (July - December 2016), this new section is limited to data about government reports to remove content in violation of Twitter’s terms of service (TOS) against the promotion of terrorism. This does not include any legal requests, regardless of whether they result in a TOS violation, which will continue to be published in our Removals Requests report. For the last six months of 2016, Twitter received reports on nearly 6,000 accounts from a total of 716 reports by government agencies. The numbers aren't broken down any further than that, so there's no telling which governments are utilizing this reporting system most. All Twitter is reporting is that less than 2% of account suspensions are the result of government reports and that it's refused to act on 15% of government-reported accounts. Each account is counted only once, even if there are multiple reports or multiple tweets reported by government agencies. So, does this government reporting qualify as censorship? It only would with Twitter's help. If Twitter is only removing legitimate requests for terrorism-related content, then government agencies are being treated no differently than any private citizen reporting similar content. If it's suspending accounts or removing tweets simply because the reporting government doesn't like what's being said (or who's saying it), then it's acting as a censorious extension of the reporting government. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
This week, some extremely interesting questions were raised by the arrest of a man for tweeting a GIF designed to induce an epileptic seizure (and bragging about it). Though there are a lot of nuances to the legal situation Thad won most insightful comment of the week by rejecting the idea that a GIF can't be a deadly weapon simply because one has never been used to kill before: They'd be hard-pressed to find a moon rock that's actually killed someone too, but if somebody were to beat Eichenwald over the head with a moon rock after stating that he intended to kill him, I don't think the "nobody's ever been killed with a moon rock" defense would hold up. In second place, we've got an anonymous response expanding on the explanation of why older, well-off readers are among the biggest ebook pirates: There is no mystery here. I mean specifically in this instance of older and wealthier people pirating digital books. Its simply a reflection of the publishing industry's failure to grasp the times. People are not stupid, if they can very obviously see that a giant chunk of your production costs just evaporated, they will decide your product should be less expensive. And that's what happened here. People in this age range lived through the digital revolution and understand what books used to cost, that book prices have only gone up, and that Amazon and Apple both have colluded with publishers to keep digital costs artificially high strictly to prevent an impact on physical sales. Cause, ya know, people who read a lot of books tend to also read a lot of news and are often better informed than the general populace. For editor's choice on the insightful side, we start out with one more comment on that post, including yet another reason: I've got an older eBook reader, and finding legitimate books that work on it is quite a PITA - not only because of unsupported formats, but also because online bookstores refuse to sell to me because I'm in the "wrong" country. When it's easier for me to google " epub" and get a working link within 2-3 clicks, why should I bother jumping through hoops? I'd like to point out Baen here - they're the only one I found where buying a book (that works everywhere) is simpler than downloading off random sites. Next, we've got a response to the recent SCOTUS decision that lets patent trolls bide their time before suing, which CanadianByChoice notes is only going to incentivize the exact opposite of what patents are supposed to achieve: So, really, this tells innovators to not bother .. because someone ELSE is just going to come along with a patent (probably old, unheard-of and vague) and take it all away from you. Over on the funny side, our first place winner is an anonymous commenter who offered up my new favorite response to silly "what does this have to do with tech" complaints on our posts: Why doesn't Fox news concentrate on news about foxes? For second place, we head to the latest development in the Paul Hansmeier story, where $180,000 cash found hidden under his bed lead to bankruptcy fraud investigations, and to an eyeroll from an anonymous commenter: At least that has a plausible explanation. I mean, I'm finding loose change under my couch cushions all the time. For editor's choice on the funny side, we start out on our post about the legal battle over a mattress review site, some of which hinges on the safety of "food-grade" materials. TechDescartes had a thought on one commenter's story about their can of "food-grade" Rubix Cube lubricant that also warns it is "HARMFUL OR FATAL IF SWALLOWED": Especially when applied to a Rubik's cube. Finally, we head to our story about the laptop travel ban, where sorrykb mused about the growing number of bans that might follow and then hit on a possible nefarious explanation: What if this is all a trick by Big In-Flight Movie to force us to pay for their crap? That's all for this week, folks! Permalink | Comments | Email This Story

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posted 30 days ago on techdirt
Five Years Ago This week in 2012, the public got a terrifying glimpse of the extent of the NSA's surveillance capabilities thanks to some excellent journalism, which put the agency on the defensive trying to downplay its powers. While this was going on, Senators Wyden and Udall were pressing the Obama administration to open up about its secret interpretation of the Patriot Act. In the fallout of the Megaupload indictment, a restraining order on Kim Dotcom was rendered void by a procedural error, the MPAA was trying to get the site's data retained so it could sue the users (though it quickly tried to backtrack), and scammers were targeting Megaupload users by masquerading as copyright trolls sending settlement letters. This was also the week of a major ruling in the patent world: the Supreme Court effectively rejected the concept of patenting medical diagnostics in Prometheus v. Mayo. Ten Years Ago This week in 2007, even as the RIAA was trying and failing to escape paying legal fees in a doomed lawsuit against an indebted mother of five, the agency was continuing to defend its practice of suing college kids and trying to get their schools to help — which irritated one university so much that it demanded the RIAA pay up for all the time that was wasted with onerous requests. Meanwhile, NBC Universal and News Corp. were making waves with their YouTube competitor, which you might notice has not become a lasting pillar of the internet, as plenty of people suspected at the time. But this was interesting since Viacom was just revving up in its lawsuit against the real YouTube, which Lawrence Lessig argued was made possible by the Grokster decision, and which was leading to some ironic situations with the company's own star content creators. Fifteen Years Ago This week in 2002, the world was being buried under a rising tide of spam, but at least society was beginning to accept that internet dating is normal. Not from work, of course, as offices were ramping up their efforts to block various internet activities in a misguided panic about productivity. Of course, some were over-ambitiously predicting that fully half of us would be working from home by 2007, in which case that would presumably cease to be a problem. It was a different time, when Stephen King was selling his novel in phone booths and the UK's Times Online was trying to charge web subscriptions to your phone bill (and, of course, trying to patent the technology). Most importantly, though, we saw an early victory for safe harbors when AOL was found not liable in a copyright lawsuit filed by Harlan Ellison over a Usenet posting. Thirty-Eight Years Ago If you care about US politics, you know it: it's the TV station you watch slightly less than you say you do and much less than you probably should, and this week was its birthday. That's right: on March 19th, 1979, C-SPAN was unveiled to the country, offering an unprecedented window into the House of Representatives. It opened with a speech by Al Gore, though at the time only 3.5-million homes were capable of receiving it. The Senate would not follow suit and allow itself to be televised for another seven years. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
It was October 2014 when FBI Director James Comey made his famous claim that things were "going dark" in the world of law enforcement because of the increasing use of encryption. Since then, Techdirt has had dozens of posts on the topic, many of them reporting on further dire warnings that the very fabric of civilization was under threat thanks to what was claimed to be a frightening new ability to keep things secret. Many others pointed out that the resulting calls for backdoors to encryption systems were a stunningly foolish idea that only people unable to understand the underlying technology could make. One Techdirt post on the topic mentioned a great paper with the title "Keys Under Doormats: Mandating insecurity by requiring government access to all data and communications," which ran through all the problems with the backdoor idea. It was written by many of the top experts in this field, including Bruce Schneier. He's just published another paper, co-authored with Orin Kerr, who is a professor at George Washington University Law School, which looks at the other side of things -- how to circumvent encryption: The widespread use of encryption has triggered a new step in many criminal investigations: the encryption workaround. We define an encryption workaround as any lawful government effort to reveal an unencrypted version of a target's data that has been concealed by encryption. This essay provides an overview of encryption workaround. The various possibilities are largely self-explanatory: We classify six kinds of workarounds: find the key, guess the key, compel the key, exploit a flaw in the encryption software, access plaintext while the device is in use, and locate another plaintext copy. For each approach, we consider the practical, technological, and legal hurdles raised by its use. What's interesting is not so much what the workarounds are, as is the fact that there are a number of them, and that they can all work in the right circumstances. This gives the lie to the idea that we are entering a terrible new era where things are "going dark," and it is simply impossible to obtain important information. But as the authors point out: there is no magic way for the government to get around encryption. The nature of the problem is one of probabilities rather than certainty. Different approaches will work more or less often in different kinds of cases. Schneier and Kerr go on to draw an analogy: When the police have a suspect and want a confession, the law gives the police a set of tools they may use in an effort to persuade the suspect to confess. None of the interrogation methods work every time. In some cases, no matter what the government does, suspects will confess. In other cases, no matter what the government does, suspects will assert their rights and refuse to speak. The government must work with the inherently probabilistic nature of obtaining confessions. Similarly, the government must work with the inherently probabilistic nature of encryption workarounds. That analogy reveals something profound: that the supposedly new problem of "going dark" -- of not being able to find out information -- has existed as long as humans have been around. After all, there is no way -- yet, at least -- of accessing information held in a person's mind unless some kind of interrogation technique is used to extract it. And as the analogy shows us, that is exactly like needing to find some encryption workaround when information is held on a digital device. It may be possible, or it may not; but the only difference between the problems faced by those demanding answers thousands of years ago and today is that some of the required information may be held external to the mind in an encrypted digital form. Asking for guaranteed backdoors to that digital data is as unreasonable as demanding a foolproof method to extract information from any person's mind. We accept that it may not be possible to do the latter, so why not accept the former may not be feasible either? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
When it comes to trademark law, it's worth repeating that its primary function is to prevent customer confusion and to act as a benefit for consumer trust. This mission has become skewed in many ways in many countries, but one of the lessons learned via the Washington Redskins fiasco is that even well-meaning attempts to have government play obscenity cop will result in confusing inconsistency at best and language-policing at worst. When government begins attempting to apply morality to trademark law in that way, it skews the purpose of trademark entirely. To see that on display elsewhere, we need only look to Hungary, where the government is considering stripping the trademark protection for some of the branding for Heineken beer because it resembles the ever-scary demon that is communism. The rightist government of Prime Minister Viktor Orbán, which faces an election in April 2018, says it is a “moral obligation” to ban the commercial use of symbols such as the swastika, arrow cross, hammer and sickle, and the red star. Heineken has had a star logo on its beer for most of the years since it was first brewed in the second half of the 19th century, changing to a red one in the 1930s. The star is thought to represent a brewers symbol or the various stages of the brewing process. But the red star was also a major symbol of Soviet communism and used to appear on the crest of communist-era Hungary. Which, frankly, is entirely besides the point. It should be immediately clear how silly this sort of thing is. Stripping trademark rights for symbols tangentially related to causes a government doesn't like is bad enough, but outright banning their use in commerce is obviously a statist act by government. It does nothing to benefit the consuming public, one which will already be quite familiar with Heineken and its branding, and instead is a move designed to play on the strain of nationalism currently weaving its way through much of the West. But it accomplishes nothing concrete. Heineken isn't communism, no matter how many red stars it puts on its labels. But dumb ideas like this necessarily come with even more extreme consequences. Under the new law, businesses using these symbols could be fined up to 2 billion forints (€6.48 million) and jail sentence. The danger in allowing the government to play language police in this way should be clear. Fortunately for us, this particular case in Hungary eschews the slippery slope entirely and instead simply jumps off of the corruption cliff. Last week Deputy Prime Minister Zsolt Semjén, who jointly submitted the bill with Orbán’s chief of staff Janos Lazar, was quoted as saying that the red star in Heineken’s logo was “obvious political content”. At the same time, Semjén did not deny that the ban was linked to Heineken’s legal battle with a small, partly locally-owned beer maker in Romania’s Transylvania — home to hundreds of thousands of ethnic Hungarians — over the use of a popular brand name there. That's where this always will eventually lead, with government taking this sort of power and abusing it to favor one company over another. Hungary simply did us the favor of putting that on immediate display. If you're going to go full corruption, after all, why bother hiding it? Permalink | Comments | Email This Story

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