posted 21 days ago on techdirt
After hitting the snooze button for a half-decade, the United States' largest law firm is back to its trademark-bullying form. Again, it's seeking to shut down content it doesn't like, and it's wielding its trademarks as a weapon (along with its colossal size) to get its way. Back in 2008, Jones Day pressured a website called BlockShopper into pulling information it had posted to its website -- information it had gathered from public records. All BlockShopper did was post information on property purchases. When two members of Jones Day purchased property in the Chicago area, BlockShopper did what it always did: posted information on the purchasers and provided informational links about the purchasing party. These links led back to Jones Day and at that point, the legal firm sent out a cease-and-desist about its trademark somehow being "violated" by BlockShopper's "deep-linking." As if this bullying wasn't enough, the judge presiding over the eventual lawsuit talked BlockShopper out of defending its posting of publicly-available information, apparently far more impressed by the size of Jones Day than the defendant was. "Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?" BlockShopper caved and pulled the info and links, and Jones Day went back to being just an incredibly large law firm. Now, it's doing the same thing to a site posting critical (and parodic) content about one of Jones Day's former partners (Kevyn Orr), the current emergency financial manager of disintegrating metropolis, Detroit. Jones Day, the United States' largest law firm, is threatening a parody website with litigation because of its use of the corporate logo deriding the firm. "I write on behalf of Jones Day, a law firm with over 2500 lawyers in offices on five continents, regarding your unauthorized use of Jones Day's service mark on the website www.kevynorr.com ..." begins the letter from firm partner Robert Ducatman to the anonymous blogger. The letter singles out the phrase that offends Jones Day the most: the tagline "This economic coup d'etat brought to you by Jones Day." The letter tries to drag in Lanham Act violations to excuse its targeting of First Amendment-protected speech and its deliberate obtuseness about fair use. One would think a law firm with "2,500 lawyers" might be able to come up with a better legal strategy (like, not doing anything at all), but it's apparent the law firm prefers to use its bulk, rather than its mental prowess. The letter even includes this bit of threatening language: "Your conduct will be closely monitored." No firm points out that it has "2,500 lawyers" at its disposal unless it's in a threatening mood, and this particular sentence clinches it. Jones Day may have been hoping for another nearly-uncontested "win," but its bullying has drawn the attention of the EFF, which has fired back a response (by Daniel K. Nazer) just as tersely worded. Contrary to your suggestion, our client does not need "authorization" to use Jones Day's marks. It is well-settled that the First Amendment fully protects the use of trademarked terms and logos in non-commercial websites that criticize and comment upon corporations and products. Our client's site is a clear example such protected expression. You may disagree with our client's speech. But you have no right to silence it. You state that Jones Day and its over 2500 attorneys will "closely monitor" our client's conduct. We trust that this was not an attempt to bully and intimidate, but a promise that you will "monitor" the situation with close attention and fidelity to the law, including fair use and First Amendment protections… We sincerely hope Jones Day Will have the good sense not to trouble a court of law with this matter. However, if you do intend to file suit, please be assured that our client is prepared to defend himself against these spurious claims. Jones Day has had previous experience with the EFF. In its lawsuit against BlockShopper, it asked the judge to disallow amici briefs from Public Knowledge and the EFF, claiming the two entities were "biased." Once again, it's rather amazing that the United State's largest law firm is either unable (or unwilling) to recognize the fact that amicus briefs are inherently "biased." If they weren't, they'd be completely extraneous. It's the judges who need to remain unbiased, not the parties involved or the parties offering briefs on their respective behalfs. In addition to the blatant bullying, Jones Day is further injuring its own reputation -- both by showing that being the "biggest" somehow still makes you the easiest to bruise and by drawing even more attention to the speech it's trying to bury. [Lengthy sidenote: It is quite possible -- in fact, even probable -- that many of the 2,500 lawyers under Jones Day's roof would have seen this cease-and-desist as both stupid and not legally sound. Unfortunately, the company's reputation is far more subject to the whims of those who apparently lack this sort of clarity and vision. Maybe this kind of legal duncery becomes increasingly infectious as you rise through the ranks. Here's a quote from a Jones Day partner defending trademark bullying as nothing more than what one does to protect registered marks. Susan Kayser, partner at law firm Jones Day, goes further. She says rights owners feel there is merely a perceived, not a real, problem of bullying. “Under US law, trademark owners are obliged to enforce their rights or they lose them. They must bear the burden of policing any third-party use, and if they believe any use is close to theirs, they are obliged to take action or risk losing their trademark rights,” she says. “We start with that,” Kayser explains. “The vast majority of trademark owners are doing what they’re required to do under the law. There are a few bullies, but they are in the minority. I don’t think it really happens that much.” Kayser, like many other spokespeople for trademark bullies, blames the public for perceiving the weight of 2,500 lawyers on one blogger's shoulders as "bullying." She also adheres to the all-too-common misperception that scorched earth policies are demanded if one is to keep its trademarks from being diluted, misused, etc. Nothing could be farther from the truth, as one judge memorably stated in a trademark bullying case: The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer. Which is exactly what Jones Day appears to be doing. And in doing so, it's harming its own reputation... and that of the 2,500 lawyers in its employ, many of whom would have avoided a debacle like this if it were up to them. The question is, when do your company's stupid actions begin damaging your ability to make a living? Is it at the point when people gaze in awe at the statement "2,500 lawyers" and begin wondering a) if they're ever all in one room at the same time, and b) if that room could be quickly filled with water?Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Last year, as the IRS scandal blossomed over the IRS supposedly targeting "conservative" groups for extra attention concerning their non-profit status, we noted that the IRS had also been told to examine "open source software" projects more closely as well. We found that to be a bit disturbing -- and it appears that for all that focus on the scandal, the IRS hasn't quite given up on unfairly targeting open source projects. The Yorba Foundation, which makes a number of Linux apps for GNOME, has been trying to get declared a 501(c)(3) non-profit for over four years now... and just had that request rejected by the IRS for reasons that don't make any sense at all. Basically, the IRS appears to argue that because there might be some "non-charitable" uses of the software, the Foundation doesn't deserve non-profit status, which would make it exempt from certain taxes (and make donations tax deductible). Here was the key reason given: You have a substantial nonexempt purpose because you develop software published under open source compatible licenses that authorize use by any person for any purpose, including nonexempt purposes such as commercial, recreational, or personal purposes, including campaign intervention and lobbying. But... that's true of lots of other open source software that is (deservedly) classified as non-profit organizations -- including the Apache Foundation, the Mozilla Foundation and more. Furthermore, the IRS seems to argue that unless Yorba is actually teaching "the poor and underprivileged" how to use its software, it can't qualify: Mere publishing under open source licenses for all to use does not show that the poor and underprivileged actually use the Tools. … You do not limit your distribution and do not know who uses the Tools much less if they use them for artistic purposes. … you do not know who uses the Tools much less what kind of content they create with the Tools. Who knew that to be a non-profit you had to have an ironclad grasp over every possible use of everything you did? And, as Yorba's Jim Nelson points out, this requirement actually would appear to be impossible to match while also agreeing to the basic four software freedoms that are part of the copyleft world. Even more disturbing, the IRS seems to think that the benefits of open source are "incidental." The purpose of source code is so that people can modify the code and compile it into object code that controls a computer to perform tasks. Anything learned by people studying the source code is incidental. Oddly, the IRS seems to feel that because Yorba doesn't spy on how people use its software, it can't legitimately claim non-profit status as well: You describe your charitable purpose as providing free software, complete with documentation, user-guides and responsive s upport and that your main activity is the promotion and development of free and open source software that benefits the general public. Your "production of free and open source software aims to provide a no-cost alternative to software that can sell for as much as $1,000 a license." You "aim to construct services and tools provided free to all, that will allow the poor access to what would otherwise likely be inaccessible tools" thereby providing relief to the poor or underprivileged. However, the Tools have been downloaded many times, but you do not know who the users are or whether they use them for exempt or private purposes. You also do not know how many users, if any, are poor or underprivileged. There's a lot more that's troubling in this decision -- not limited to the fact that it took over four years for the IRS to issue it -- and in that time, nothing in the IRS's followups indicated any serious issue with the application: The Yorba Foundation applied for 501(c)(3) in December 2009.  We applied as a charitable, scientific, and educational organization.  Remember that we only needed to meet the criteria for one of those to receive 501(c)(3) status. We received two requests for clarification, one on June 23, 2010, and another on September 14, 2010, which we responded to in full.  We received a notice on October 5, 2011 that our application was still being processed. The requests for clarification contained mostly non-surprising questions.  For example, “Describe whether your organization provides any goods or services for a fee.”  (We don’t.)  Some were odd: “Will any of your directors or employees reside at your facility [i.e. our office]?”  (Ah…no.) Other than those three notices and a couple of phone calls with our representatives at the Software Freedom Law Center, that was it. I will admit, at times, to having mixed feelings about the setup of non-profits in this country right now. We've been working on a project in which I am constantly asked if I want to set it up as a non-profit, and I've avoided doing so, in part, because going through such a process just seems like such a hassle (and also, in part, because I think the idea that you need to be officially recognized as a "non-profit" to do "good things" for the world seems a little backwards). Either way, this rejection definitely seems troubling and somewhat ridiculous for a number of open source projects that do amazing work to better the world, and shouldn't have to face such challenges.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Microsoft posted a somewhat self-congratulatory blog post yesterday about how it was taking on a "global cybercrime epidemic" and effectively targeting systems used by malware. Of course, part of the details were that Microsoft totally misrepresented the nature of No-IP and how dynamic DNS solutions work. No-IP's parent company, Vitalwerks Solutions, was painted by Microsoft as being something of an accomplice to the malware epidemic, allowing Microsoft to convince a judge to seize a bunch of very popular No-IP domains without any notice or immediate recourse. Microsoft claims that it's just stopping malware, but the collateral damage from grabbing those domains is immense. According to No-IP: Unfortunately, Microsoft never contacted us or asked us to block any subdomains, even though we have an open line of communication with Microsoft corporate executives. We have been in contact with Microsoft today. They claim that their intent is to only filter out the known bad hostnames in each seized domain, while continuing to allow the good hostnames to resolve. However, this is not happening. Apparently, the Microsoft infrastructure is not able to handle the billions of queries from our customers. Millions of innocent users are experiencing outages to their services because of Microsoft’s attempt to remediate hostnames associated with a few bad actors. As No-IP further notes, Microsoft could have easily contacted them, and the company would have taken action: Had Microsoft contacted us, we could and would have taken immediate action. Microsoft now claims that it just wants to get us to clean up our act, but its draconian actions have affected millions of innocent Internet users. Vitalwerks and No­-IP have a very strict abuse policy. Our abuse team is constantly working to keep the No-­IP system domains free of spam and malicious activity. We use sophisticated filters and we scan our network daily for signs of malicious activity. Even with such precautions, our free dynamic DNS service does occasionally fall prey to cyber scammers, spammers, and malware distributors. But this heavy-handed action by Microsoft benefits no one. Except, instead, it appears that Microsoft went to court (secretly, without telling Vitalwerks/No-IP) and convinced the judge that the company itself was violating the law. And the court bought it: There is good cause to believe that, unless the Defendant Vitalwerks is restrained and enjoined by Order of this Court, immediate and irreparable harm will result from its ongoing violations the Anti-Cybersquatting Consumer Protection Act (15 U.S.C. § 1125) and the common law of negligence. The evidence set forth in Microsoft’s TRO Motion, and the accompanying declarations and exhibits, demonstrate that Microsoft is likely to prevail on its claim that this Defendant has engaged in violations of the foregoing laws through one or more of the following: a. Leasing to Malware Defendants No-IP sub-domains containing Microsoft’s protected marks; and b. Negligently enabling Malware Defendants to participate in illegal acts, and failing to take sufficiently corrective action to stop and prevent the abuse of its services, all of which harms Microsoft, Microsoft’s customers, and the general public. Given the nature of the ex-parte (without Vitalwerks being able to present its side of the story) proceedings, Microsoft was able to paint the fact that a platform provider (which has a full anti-abuse program), was somehow liable for actions of its users. This flies in the face of a variety of laws and caselaw on secondary liability, which protect the service provider from being held liable for abusive behavior by its users. Yet here, not only did the court ignore all of that, it simply flat out handed over to Microsoft a whole bunch of No-IP's domains (which, clearly, Microsoft was unable to handle), bringing down a big chunk of the web that relied on No-IP's dynamic DNS services. This seems like a tremendously dangerous move for the internet in a variety of ways. Microsoft needs to take some of the blame. Even if its goal was to stop malware proliferation, there are better ways to do that than to falsely blame No-IP, and to misleadingly represent the service to the court, allowing the domains to be seized and rerouted.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Last week, we wrote about how the DOJ finally released (a heavily redacted) copy of its memo authorizing drone use for killing Americans (though, some have pointed out that the memo was written well after the US started trying to kill Americans with drones). More importantly, we noted that the memo actually pointed to another secret memo as part of the justification. It's secret memo on top of secret memo, all the way down. The ACLU went back to court to see about getting its hands on that other memo, and the court has now ordered the DOJ to cough up any such memos related to killing people with drones. Specifically, the judge has ordered the DOJ to provide: Unredacted copies of the "other legal memoranda prepared by OLC and at issue here" that are the subject of the Mandate (hereinafter "The OLC Opinions") Furthermore, the court is curious why the DOJ didn't provide those documents already. Thus, it also has asked the DOJ to provide a memo under seal explaining itself as to why it didn't already release those memos. The government now has three weeks to comply, though, I imagine the DOJ will try to come up with some way to protest all of this, because that's what the DOJ tends to do.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Last year, we wrote about the ridiculousness of Prince sending DMCA takedowns over 6 second videos on Vine. Those seemed like a pretty clear fair use case. The very nature of Vine, in that it limits videos to 6 seconds seems tailor made for fair use, even if there is no magical time period that guarantees fair use. Either way, it should be no surprise that when it comes to a major sporting event, the powers that be don't believe in any fair use at all. Similar to the Olympics, nearly every time we write about the World Cup, it involves an aggressive abuse of claimed intellectual property rights to stifle perfectly legitimate communications and content. The latest, according to the Wall Street Journal, is that ESPN and Univision are rushing around taking down Vine clips of World Cup goals, even to the point that some major media properties have had their Vine accounts killed for being accused of infringement too often: Since the start of the tournament Vox Media-owned sports site SB Nation, one of the chief purveyors of quick World Cup content, has had two accounts suspended on Vine, according to its managing editor Brian Floyd. SB Nation received suspension notices from Twitter, Mr. Floyd said, after a complaint from media-protection company Irdeto, which works on behalf of Univision. “They don’t seem to mind people Vine-ing funny stuff like fans,” explained Clay Wendler, who quickly crafts Vines for SB Nation. But when it comes to goals �” breathtaking moments of glory seemingly tailor-made for the six-second looping video format �” rights-holders are more stringent, Mr. Wendler said. Considering that fair use rules are explicitly designed for news reporting, it seems rather clear that these are fair use. It's unclear from the report if SB Nation has appealed the takedown notices or not, but it's rather unfortunate that Twitter just killed those accounts without bothering to recognize that they're clearly being used for fair use reporting on the World Cup. Similarly, the article points to a recent Slate post which for a little while had a video showing all 136 goals scored in the group stage of the World Cup, spliced together in quick clips, but that video has since been removed after ESPN contacted Slate to claim it was infringement. Once again, this seems like a fairly clear cut case of fair use, using news reporting in a transformative manner which isn't going to impact the market for the original. But, of course, ESPN is owned by Disney, and Disney doesn't exactly have the best of reputations when it comes to understanding fair use in others (even if it's been getting better on that front lately). It's really too bad that it appears that Slate and Vox/SB Nation appear to have more or less given in to these takedown requests rather than standing up for fair use.Permalink | Comments | Email This Story

Read More...
posted 21 days ago on techdirt
Earlier this year, we wrote about the Senate's latest attempt at a cybersecurity bill, the Cybersecurity Information Sharing Act (CISA), which tries to distinguish itself from the toxic attempts to pass CISPA over the past few years. We and many others have already detailed how CISA, like the CISPAs before it, has a tremendous problem in creating perverse incentives for companies to help the government spy on people, but as a bunch of public interest groups are noting, the definitions are so broad, that the bill could actually be a backdoor way to undermine net neutrality. That's because it has an incredibly broad definition of a "cyberthreat" such that an ISP could declare, say, Netflix to be a cyberthreat, allowing it to throttle Netflix's bandwidth. Here are two key paragraphs from a letter sent by CDT, EFF and a bunch of other groups: Arbitrarily Harms Average Internet Users: The definition of “cybersecurity threat” is overbroad, and includes “any action” that may result in an unauthorized effort to adversely impact the security, confidentiality and availability of an information system or of information stored on such system. Countermeasures can be employed against such threats absent risk of liability. This could lead to use of countermeasures in response to mere terms of service violations. For example, logging into another individual’s social networking account �“ even with their permission �“ typically violates the website’s terms of service, and therefore qualifies as unauthorized access under the CFAA, and could be treated as a “cybersecurity threat.” A provision preventing this harm appeared in the July 2012 Cybersecurity Act and should be included in CISA. Infringing on Net Neutrality Policy: Likewise, the July 2012 bill also contained provisions clarifying that nothing in the Act, including overbroad application of the terms “cybersecurity threat” and “countermeasure,” could be construed to modify or alter any Open Internet rules adopted by the Federal Communications Commission. Net neutrality is a complex topic and policy on this matter should not be set by cybersecurity legislation. In other words, under the current broad definition of "cybersecurity threat," an ISP (e.g., Comcast) could argue that another service provider (e.g., Netflix) was "adversely impacting the availability" of information on its network, and thus it was going to take "any action" (e.g., throttling it down to nothing) to deal with the "threat." And, under the proposed legislation, there would be nothing anyone could do about it, as Comcast would be absolved from liability, as long as it could claim that all of that Netflix traffic was the equivalent to a cybersecurity threat according to its own definition. The fact that there was language in previous bills that presented this kind of thing, but is absent from this latest bill seems quite troubling. One hopes it was just an oversight in getting the bill out -- and that seems most likely. But, given how often we've seen nefarious language sneak into certain bills, it's not out of the question that others are recognizing the opportunities to backdoor in a way to get around any possible net neutrality proposal.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
The latest reporting on previously unrevealed Snowden documents comes from the Washington Post, by Ellen Nakashima and Barton Gellman, reviewing how the FISA Court granted the NSA incredibly broad powers to spy on just about any country, and also allows them to collect a pretty broad array of information with little oversight. Basically, the FISC gave blanket approval to the NSA to spy on any country not a member of the "Five Eyes" coalition, with whom the US has non-spying agreements: the UK, Canada, Australia and New Zealand. Perhaps more troubling isn't just the big list of just about every country, but how the FISC allows spying on a broad range of communications: An affidavit in support of the 2010 foreign government certification stated that the NSA believes foreigners who will be targeted for collection “possess, are expected to receive and/or are likely to communicate foreign intelligence information concerning these foreign powers.” That language could allow for surveillance of academics, journalists and human-rights researchers. A Swiss academic who has information on the German government’s position in the run-up to an international trade negotiation, for instance, could be targeted if the government has determined there is a foreign intelligence need for that information. If a U.S. college professor e-mails the Swiss professor’s e-mail address or phone number to a colleague, the American’s e-mail could be collected as well, under the program’s court-approved rules. As we've noted (and as this report reminds us), one of the more recent revelations is that this set of broad powers, which come under Section 702 of the FISA Amendments Act, includes the ability to collect information any time anyone communicates about a target, not just to or from a target. And "a target" can be more than just a person -- it can be an organization or a computer or a network. That means the FISA Court more or less gave the NSA broad powers to spy on just about anyone if they did anything even remotely related to a broad set of "targets." It's hard to see how this is narrowly tailored surveillance, as NSA defenders keep wishing to imply.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
As Techdirt discussed back in March, oversight of the UK's intelligence services is essentially one person, working part-time, one of whose techniques for establishing whether everything is being conducted according to the rules and the law is to take the word of the heads of the services that it is. The Right Honorable Sir Mark Waller -- for it is him -- has now issued his annual report on the UK's Intelligence Services (pdf). Despite Snowden's revelations of massively-intrusive spying on the entire UK population, and much of the world besides, Waller apparently doesn't feel that he needs to change the way he does things: When I first took up my role I was concerned that twice yearly inspections and a sample of warrants might not be sufficient. However, taking into account the method of my review as set out in Chapter 2, the robust and rigorous internal compliance tests and assurances, and the culture and ethos of the intelligence services, I am satisfied that it is sufficient. Here's a sample of his general attitude to the services he is supposed to be watching over: The same ethos of honesty and integrity run through the service whether at Head Office or overseas. Having interviewed officers posted to these stations I was satisfied that they had no desire to act otherwise than in accordance with UK law and standards. Perhaps because of that touching faith in the "honesty and integrity" of the UK's spies, Waller sees no problem with statements such as the following: I required the Home Office to provide me with a list of every new warrant issued since the last list was produced, and all extant or cancelled warrants, as well as any warrants which may have been refused by the Home Secretary. The list set out the type of operation with notes on each case. The list of warrants issued by the Home Office and the list I received from MI5 corresponded. I was satisfied that both had provided a full and complete list. He may well have been "satisfied", but how could he know the list was "full and complete"? And how can he exclude the possibility that there were operations carried out illicitly, without warrants? Since they wouldn't be on any list, he would naturally be unable to spot their absence. Despite this pervasive complacency, there are one or two signs that Edward's Snowden's string of revelations have at least raised questions in Waller's mind. For example, there is an entire chapter entitled "Media Allegations", where we read: I have discussed with all three intelligence services [MI5, MI6 and GCHQ] the impact of the revelations made by Edward Snowden. The heads of each agency clearly set out during the public evidence session before the Intelligence and Security Committee (ISC) on 7 November 2013 how alerting targets and adversaries to UK capabilities means that it becomes more difficult to acquire the intelligence that this country needs. The agencies provided me with clear evidence to substantiate this. In the interests of national security, I am not in a position to give further detail in my open report. What's interesting here is that Waller doesn't even try to address the central issues raised by Snowden's leaks concerning massive and disproportionate surveillance by the UK; all he says is that the heads of the services offered evidence that revealing details would make it harder to carry out spying -- possibly true, but irrelevant. Another tiny sign that even the UK's intelligence watchdog is slightly concerned by what Snowden has told us is the following note in the report: I have recommended to all the agencies that separate consideration be given to the individual privacy being invaded as part of the test for proportionality. In all cases I want to see this set out separately in the application for these intrusive techniques and to see this wording reflected in the warrants. Of course, that recommendation is completely toothless: the UK's spy agencies can simply claim that they have "considered" privacy issues before merrily spying on everyone as before. All-in-all, the Intelligence Services Commissioner's report gives the impression of someone doing their best to provide scrutiny of the UK's spying activities, but hopelessly out of their depth in the digital world. The report is focused on traditional warrants, and on whether they contain errors -- usually minor clerical ones. It ignores the larger question of whether the warrant system is adequate to address things like GCHQ's Tempora program, which is capable of downloading, storing and analyzing huge quantities of the world's Internet traffic, or the recently-revealed interception of all the UK's Google, Facebook, Twitter and YouTube traffic using the legal fiction that these are "external communications". Moreover, even in the unlikely event that the Right Honorable Sir Mark Waller woke up one day with a burning desire to scrutinize these kinds of activities, it seems unlikely he would be able to do so on the basis of a twice-yearly inspection. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Now that everyone is a bit more concerned about software backdoors that the NSA might have installed everywhere, a nationalistic push towards "home-grown" hardware could pick up a little among various countries around the world. Designing custom processors and software from scratch isn't easy or cheap, but it avoids some of the angles of attack for a security break-in (though it doesn't prevent any of the social engineering tactics). Here are just a few links on processor designs that aren't coming from Intel or AMD. The Russian government is reportedly going to rely on computer processors made by Russian companies, instead of Intel or AMD. Three Russian companies are creating "Baikal" processors, based on ARM designs, but it's not exactly clear how much more secure the resulting computers will actually be. (ahem, software? ARM licensing?) [url] The Chinese supercomputer, Tianhe-2, holds the top spot as the most powerful computer, but it runs on Intel chips, not Loongson processors. China's Loongson processors might not replace Intel or AMD chips in the top supercomputers in the near future, but it could happen sooner than expected. [url] OpenSPARC is an open source processor design available for anyone to develop, but it's getting a little stale since the last T2 release in 2008. If you're really paranoid about security, using obscure hardware and software might be make things a bit harder for potential attackers... (did you seriously believe that?) [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Late last year, as the White House still hadn't found a successor to David Kappos to run the US Patent and Trademark Office (USPTO), the head of the Silicon Valley USPTO office, Michelle Lee (a former Google patent lawyer) was appointed the interim director -- freaking out a bunch of patent maximalists, who like to argue (sometimes in our comments) that it's all a plot to undermine the patent system from the inside. Lee actually gave a great speech at Stanford last week, in which she laid out many of her views that are hardly anti-patent, but which at least recognize that there are other keys to innovation beyond patents. Basically, she presents herself as a moderate, recognizing that there are important nuances here: As many of you know, I’m a longtime user of the patent system. I’ve been a scientist in a laboratory. I’ve represented inventors and innovative businesses, patent plaintiffs, and patent licensors. I am now the head of the agency charged with examining and issuing patents. That said, I’ve also been on the other side of countless demand letters and lawsuits from patent holders, and have spent a good part of my career representing patent defendants and licensees�”including against so-called “patent trolls.” In fact, I’ve even argued on behalf of clients that some patents should be invalidated. Now, I wouldn’t call myself “anti-patent,” nor would I call myself “pro-patent,” whatever those labels mean. But let me be clear: I am, without reservation, “pro-patent system.” What do I mean by "pro-patent system"? It means that I believe that a strong patent system is essential to fostering the innovation that drives our economy. I recognize that our patent system is not something that exists in the state of nature, but is the result of policy decisions made by Congress and the Courts that weigh the costs of patent exclusivity against its benefits. We are constantly reexamining those policy decisions, to make sure the benefits continue to outweigh the costs. I believe that, for the most part, the benefits do outweigh the costs, but we need to be clear about what those benefits and costs are, and about the realities underlying innovation today. Patents are not the only drivers of innovation. The first entity to bring a product to market has a first-mover advantage that provides an incentive to innovate on its own, even if no patents are ever sought or granted. Some firms opt for an open source model, where they benefit from the network effects of the widespread adoption of a technology they developed. We also know that reputation and branding�”with or without trademark protections�”play a large role in facilitating innovation. And, of course, there are a large number of innovations protected by trade secrets or by copyrights, not by patents. And yet, patents still play a critical role in promoting innovation. Patent exclusivity�”that is, the right of a patent owner to exclude others from using the patented invention�”provides a unique route for inventions to find their way to the marketplace. Even with a patent, an inventor requires access to capital, developing a prototype, finding channels of distribution, and more before he�”or increasingly, she�”can get it to the market. Exclusivity protects the competitive position of a new entrant to the marketplace, which in turn attracts investment. And that plays an essential role in giving inventors and investors the confidence to take the necessary risks to launch products and start businesses. There's a lot more in there that's worth reading. I can't recall ever seeing a head of the patent office open to even recognizing that patents are not the be-all and end-all of innovation. I can't recall ever seeing a head of the patent office even willing to admit that there could be costs to the patent system that need to be weighed against the benefits. For the most part, they've tended to just want to expand the patent system on the assumptions that "patent = good; more patents = better." So this kind of speech was actually both surprising and refreshing. And, of course, just days later, it appears that President Obama is poised to appoint a long-time pharma industry patent-maximalist who has spent years fighting against patent reform, to take over as the director of the USPTO. One can hope that, just as Lee didn't turn out to be a total patent hater, but rather a moderate who was trying to find a middle ground, that the same will be true with Phil Johnson, the former executive from pharma giant Johnson and Johnson -- but I have my doubts. In December, Johnson testified before the Senate on behalf of the 21st Century Patent Coalition, a group of companies who opposed a bill that would have made it easier for defendants to challenge low-quality patents, and to recover legal costs in the face of frivolous patent lawsuits. (Johnson’s group ultimately prevailed last month when Senate Democrats killed the bill altogether.) Johnson has also opposed previous patent reform initiatives, describing them as “almost everything an infringer could ever want.” Last year, President Obama came out surprisingly strongly against patent trolls and in favor of comprehensive patent reform. Of course, after lots of negotiations on reform proposals, a combination of trial lawyers and big pharma -- from where Johnson came -- stepped in to kill the whole process dead. That certainly does not bode well for patent reform under the likely next director of the USPTO.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
We've already discussed how the Aereo ruling is a disaster because of its lack of guidance, and a perfect example of that is that reading the decision you would have no idea whether or not it outlaws Cablevision's remote DVR service. None. It all depends on who you talk to. During the oral arguments, it appeared that the Justices recognized that they wanted to keep the important 2nd Circuit ruling that found Cablevision's remote DVR legal, with Justices even asking lawyers to take that ruling as precedent (even though it's not, since the Supreme Court refused to review that ruling). That's why it's been somewhat shocking to many that the final ruling from the Supreme Court doesn't even address Cablevision, other than an aside in a footnote. And that means it's basically an open question as to whether or not Cablevision's remote DVR is still legal or not. Cablevision, not surprisingly, insists that the ruling vindicates its position. You may recall that even though Aereo was relying on the Cablevision precedent, Cablevision sided with the broadcasters, stupidly believing that the Supreme Court would reject Aereo while preserving the Cablevision ruling. So, when the ruling came out, the company announced victory: "We are gratified that the Court's decision adopted a sensible middle ground, holding that unlicensed retransmission services like Aereo violate the copyright law, while protecting consumer-friendly, cloud-based technologies, such as RS-DVR. The real winner today is the consumer who will continue to benefit from future innovation." The problem is that's not true. The Court doesn't really say a damn thing about Cablevision, and leaves it out to hang based on the amorphous "looks like a" test. Law professor James Grimmelman is pretty sure that the Cablevision ruling is now dead, because the Aereo ruling totally overshadows it and creates this new standard that would clearly wipe out the Cablevision standard. Similarly, law professor Eric Goldman wonders what's left of that ruling: ... because the court said Aereo took the legally significant actions, it's possible this ruling overturned the 2008 Second Circuit ruling, exposing DVR service operators to new liability. The opinion further reinforces the riskiness of DVR-as-a-service when it says the simultaneous delivery of content to multiple viewers is an infringement, even if the system stores and delivers a personal copy for each viewer (the court later implies that even simultaneous delivery isn't required to violate the law). Another commentator, Deborah Goldman, notes that the SCOTUS ruling "eviscerates" that ruling. However, not everyone is convinced. Matt Schruers suggests that the Supreme Court effectively side-stepped the question by avoiding even looking at the DVR features of Aereo's system: Importantly, yesterday's decision doesn't reach the question of Aereo's DVR-like features, and it seems clear that the Court's opinion does not aim to upset Cablevision. But, of course, there's a difference between aiming to upset Cablevision and actually upsetting Cablevision, and there's nothing in the ruling that suggests a second shot at a remote DVR system won't turn out quite differently, given that plaintiffs can now use the "looks like a duck" test, rather than ever looking into the black box to see if the company hosting the DVR is really doing any infringement. And it gets especially worrisome with non-tech-savvy judges. While Schruers isn't sure if this ruling upsets the Cablevision standard, he is worried about the resulting uncertainty: On the other hand, the Court's approach offers technology lawyers counseling clients little guidance. Who can predict whether a non-tech savvy federal judge will think that the next innovative service "looks like cable"? Yesterday's decision creates considerable uncertainty, suggesting that lawyers should counsel their clients based on what analogy will most appeal to a federal judge in the distant future. The Court �” like others in the lead-up to the decision �” promises its opinion won't threaten new technology, but as the dissent points out, it cannot deliver on that promise. And this is not a small issue. As we've noted, a study by Harvard professor Josh Lerner found that the certainty created by the Cablevision ruling, resulted in somewhere around a billion dollars in new investment. Take that certainty away... and a lot of investment is about to go elsewhere.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
The other shoe just dropped when it comes to how the federal government illegally spies on Americans. Last summer, the details of the NSA's "backdoor searches" were revealed. This involved big collections of content and metadata (so, no, not "just metadata" as meaningless as that phrase is) that were collected under Section 702 of the FISA Amendments Act (FAA). This is part of the program that the infamous PRISM effort operates under, and which allows the NSA to collect all sorts of content, including communications to, from or about a "target" -- where a "target" can be incredibly loosely defined (i.e., it can include groups or machines or just about anything). The "backdoor searches" were a special loophole added in 2011 allowing the NSA to make use of "US person names and identifiers as query terms." In the past, it had been limited (as per the NSA's mandate) to only non-US persons. This morning, James Clapper finally responded to a request from Senator Ron Wyden concerning the number of such backdoor searches using US identifiers that were done by various government agencies. And, surprisingly, it's redaction free. The big reveal is... that it's not just the NSA doing these searches, but the CIA and FBI as well. This is especially concerning with regards to the FBI. This means that the FBI, who does surveillance on Americans, is spying on Americans communications that were collected by the NSA and that they're doing so without anything resembling a warrant. Oh, and let's make this even worse: the FBI isn't even tracking how often it does this. It's just doing it willy nilly: The FBI does not track how many queries it conducts using U.S. person identifiers. The FBI is responsible for identifying and countering threats to the homeland, such as terrorism pilots and espionage, inside the U.S. Unlike other IC agencies, because of its domestic mission, the FBI routinely deals with information about US persons and is expected to look for domestic connections to threats emanating from abroad, including threats involving Section 702 non-US. person targets. To fulfill its mission and avoid missing connections within the information lawfully in its possession, the FBI does not distinguish between U.S. and non- U.S. persons for purposes of querying Section 702 collection. It should be noted that the FBI does not receive all of Section 702 collection; rather, the FBI only requests and receives a small percentage of total Section 702 collection and only for those selectors in which the FBI has an investigative interest. Moreover, because the FBI stores Section 702 collection in the same database as its "traditional" FISA collection, a query of "traditional" FISA collection will also query Section 702 collection. In addition, the FBI routinely conducts queries across its databases in an effort to locate relevant information that is already in its possession when it opens new national security investigations and assessments. Therefore, the FBI believes the number of queries is substantial. However, only FBI personnel trained in the Section 702 minimization procedures are able to View any Section 702 collection that is responsive to any query. Got that? Basically, the FBI often asks the NSA for a big chunk of data that the NSA probably shouldn't have in the first place -- including tons of Americans' communications, and the FBI gets to dump it into the same database that it is free to query. And the FBI tracks none of this, other than to say that it believes that there are a "substantial" number of such queries. This would seem to be a pretty blatant attempt to end run around the 4th Amendment, giving the FBI broad access to searching through the communications of Americans with what appears to be almost no oversight. Yikes! Oh, and it's not just the NSA, but the CIA as well. Remember, the CIA is not supposed to be doing any surveillance on US persons (like the NSA), but that's not what's happening at all. At least the CIA tracks some (but not all) of its abuse of backdoor searches: In calendar year 2013, CIA conducted fewer than 1900 queries of Section 702-acquired communications using specific U.S. person identifiers as query terms or other more general query terms if they are intended to return information about a particular U.S. person. Of that total number approximately 40% were conducted as a result of requests for counterterrorism-related information from other U.S. intelligence agencies. Approximately 27% of the total number are duplicative or recurring queries conducted at different times using the same identifiers but that CIA nonetheless counts as separate queries. CIA also uses U.S. person identifiers to conduct metadata-only queries against metadata derived from the FISA Section 702 collection. However, the CIA does not track the number of metadata-only queries using U.S. person identifiers. So, the CIA is doing these kinds of warrantless fishing expeditions into the communications of Americans as well, but at least the CIA tracks how often it's doing so. Of course, when it comes to metadata searches, the CIA doesn't bother. It's also a bit bizarre that the CIA is apparently carrying out a bunch of those searches for "other U.S. intelligence agencies," when the CIA should be especially limited in its ability to do these searches in the first place. Senator Wyden has responded to these revelations by pointing out how "flawed" the oversight system is that these have been allowed: When the FBI says it conducts a substantial number of searches and it has no idea of what the number is, it shows how flawed this system is and the consequences of inadequate oversight. This huge gap in oversight is a problem now, and will only grow as global communications systems become more interconnected. The findings transmitted to me raise questions about whether the FBI is exercising any internal controls over the use of backdoor searches including who and how many government employees can access the personal data of individual Americans. I intend to follow this up until it is fixed. Hopefully, now you are starting to recognize what a big deal it was last week when the House of Representatives recently voted to defund the ability to do these kinds of backdoor searches. Still, much more needs to be done. Oh, and in case you're wondering why Clapper finally 'fessed up to the FBI and CIA making use of these data to warrantlessly spy on Americans, it's worth noting that the Privacy and Civil Liberties Oversight Board (PCLOB) is expected to come out with its report on the Section 702 surveillance program on July 2nd (7/02, get it?). It seems likely that the report will discuss these backdoor searches on Americans and how other agencies besides the NSA has been involved in the practice.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Last week, after finally having a gag order lifted by a court, Facebook revealed how it had spent the last year fighting back against an incredibly broad search warrant from the Manhattan District Attorney's office, for basically all information -- including private messages -- from 381 user accounts. The warrant came complete with a gag order forbidding the company from telling anyone -- including the 381 people -- about the search. The searches were related to an investigation that resulted in charges being filed against over 100 former NYC police and firefighters for a giant disability fraud scheme. Basically, those retired officers faked disabilities, while their Facebook accounts supposedly revealed that their disability claims were bogus. While we're all for rooting out former government employees clearly abusing the system, we're even more worried about overly broad government intrusions like this. Part of the issue, though, is over who has standing. As you may recall, Twitter was involved in a somewhat similar situation a few years back, when it went to court to protect the private messages of Malcolm Harris, who was involved in some Occupy Wall St. protests. In that case, Twitter told Harris, and Harris objected, but the court said it was only an issue between the government and Twitter, so Harris had no standing. Twitter then fought the issue, but eventually lost. The details in this case are a bit different (including the type of request -- a search warrant, rather than a 2703(d) order in Twitter's -- case, but the basic principles are fairly similar. Unfortunately, the law is a bit of a mess on this issue, again getting to the difficulty of applying old laws to new technologies: Orin S. Kerr, a law professor at George Washington University who is an expert on digital searches and seizures, said Facebook was trying to do something unusual in establishing a right for service providers to challenge a warrant. “The real question is, ‘Can they challenge warrants for their customers?’ And I think the answer is probably not, under current law,” Mr. Kerr said. While some have made comparisons to last week's Supreme Court ruling on mobile phone searches, which recognized that the digital data you store on your phone and "in the cloud" are more like the personal effects you have in your house, it's unlikely that ruling will have much of an impact here. After all, the point of that case was to tell law enforcement to "get a warrant." And, in this case, that's exactly what the DA's office did. The bigger question may be one of due process and standing in terms of challenging these warrants. As Facebook's deputy general counsel, Chris Sonderby, explains: Of the 381 people whose accounts were the subject of these warrants, 62 were later charged in a disability fraud case. This means that no charges will be brought against more than 300 people whose data was sought by the government without prior notice to the people affected. The government also obtained gag orders that prohibited us from discussing this case and notifying any of the affected people until now. We’ve gone to court and repeatedly asserted that these overly broad warrants�“which contain no date restrictions and allow the government to keep the seized data indefinitely�“violate the privacy rights of the people on Facebook and ignore Fourth Amendment safeguards against unreasonable searches and seizures. We fought forcefully against these 381 requests and were told by a lower court that as an online service provider we didn’t even have the legal standing to contest the warrants. We complied only after the appeals court denied our application to stay this ruling, and after the prosecutor filed a motion to find us in criminal contempt. In talking to the NY Times, Sonderby elaborated that when the DA's office said that the individuals themselves would have standing to challenge the use of the collected evidence later, that left out all of the people whose information was taken, but who weren't charged. To them, they just had their private effects searched with no recourse. “It appeared to us from the outset that there would be a large number of people who were never charged in this case,” he said. “The district attorney’s response was that those people would have their day in court. There are more than 300 people that will never have that chance.” In some ways, this case is a bit trickier than others. When there's probably cause, allowing law enforcement to get a warrant and do a search, makes sense. The real problem here is the incredibly broad nature of the warrants in this case, and the fact that there's really no way to challenge that factor. Facebook has basically been told it can't challenge it. The 300 people who aren't charged have no way of challenging it. And those that were charged really can only challenge the situation involving their personal circumstances, rather than the overly broad nature of the original warrant. It seems worth pointing out, by the way, that the warrant happened last July, about a month after the first Snowden revelations. While Facebook notes that it was the massive size of the warrant (more than 10x larger than any previous one) that made the company challenge it, it seems quite likely that the sudden attention on internet companies and their willingness to share personal information with the government played a big role in the decision as well. Chalk another one up to the Snowden Effect.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Parker Higgins has a great opinion piece over at Wired, which is ostensibly about the recent release of OnionShare, a tool for sharing large documents directly and securely between two individuals, but which looks deeper into the question of why we're in 2014 and sharing such large files directly without intermediaries is such a challenge. And, as Higgins notes, a big part of that goes right back to... the copyright wars. Groups like the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), and others that make up the copyright lobby have actively campaigned against the kinds of tools that address these aims. OnionShare creates direct connections between users, making it an example of peer-to-peer network architecture. The copyright lobby’s got a long history with peer-to-peer: at least since Napster emerged a decade and a half ago, corporate copyright holders have endeavored to destroy examples of the tech. We live today with the disastrous results. After 15 years of being attacked, villainized, and litigated over, peer-to-peer programs and protocols have become a hard sell for investment and development. And as centralized products have gotten a lion’s share of the attention, their usability and market share have increased as well. The simple fact is that the fight to protect one business model (out of many possible business models) for the entertainment industry, has clearly had a pretty big negative impact on the development of new tools and services that would lead to greater privacy and security (and a more functioning free press): The qualities that the copyright lobby dislike about peer-to-peer are precisely the ones that make it a powerful choice for defenders of press freedom and personal privacy. Namely, peer-to-peer offers no convenient mechanism for centralized surveillance or censorship. By design, there’s usually no middleman that can easily record metadata about transfers�”who uploaded and downloaded what, when, and from where�”or block those transfers. So, if you're concerned about how much metadata the NSA is scooping up from online services, you have the MPAA and RIAA and its legal fights partially to blame for that. In demonizing distributed, private peer-to-peer applications and protocols, we've been driven increasingly to more centralized offerings. As Higgins further highlights, the third party doctrine, giving less privacy to information held by third parties, makes this situation even worse. The distinction is further reflected in the U.S. legal system, which often offers data that goes through a third party reduced protection. That premise, the “third party doctrine,” is badly out-of-date, and produces counter-intuitive results in an era where the location of data storage is otherwise abstracted away. Already one Supreme Court Justice, Sonia Sotomayor, has called for reconsidering it. But as long as the third party doctrine exists, architectures like peer-to-peer that allow for direct communication, broadly speaking, provide more privacy protection against invasive government requests. In short, you have the government wanting to get more access to information, and it can do that on centralized systems -- and combine that with the RIAA/MPAAs of the world fighting to either outlaw or diminish investment in more decentralized systems, and you have a recipe for easy mass surveillance. A decentralized world is important for the internet to work correctly, but we've been increasingly pushed away from that. The good news is that with all the discussions of surveillance lately, a renewed push is being made for more decentralized systems. The success of decentralized cryptocurrencies like Bitcoin is also helping things along the way. And there are a large number of other projects that are each trying to tackle different aspects of more centralized systems. Hopefully, they won't be deterred by litigation spats focused on just preserving a particular business model as well.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
While former NSA boss General Keith Alexander continues to run around insisting that the damage from the Snowden revelations has been catastrophic and has put us all in great danger, his successor in office, Admiral Mike Rogers (again, no relation to chief NSA defender and head of the House Intelligence Committee Rep. Mike Rogers), has actually been a hell of a lot more reserved in his own claims. In his latest interview, with the NY Times, he specifically notes that the sky is not falling from the Snowden revelations. He repeated past warnings that the agency had overheard terrorist groups “specifically referencing data detailed” by Mr. Snowden’s revelations. “I have seen groups not only talk about making changes, I have seen them make changes,” he said. But he then added: “You have not heard me as the director say, ‘Oh, my God, the sky is falling.’ I am trying to be very specific and very measured in my characterizations.” Rogers also didn't spew the usual FUD about how we'd all be at risk if the bulk phone record collection was shut down, though, of course he said he still wanted access to the data in a reasonable amount of time, if necessary. Admiral Rogers indicated that system, so long resisted by the security agency, was workable. “I am not going to jump up and down and say, ‘I have to have access to that data in minutes and hours,’ ” he said. “The flip side is that I don’t want to take weeks and months to get to the data.” While it's doubtful that there will be any significant change in the NSA under Rogers, at the very least it's nice to see it have a leader who doesn't immediately jump to the usual FUD about how it absolutely needs every possible ability to spy on everyone or we'll all be put at risk.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
Les Moonves, CEO of CBS, was one of the more vocal network execs leading the charge against Aereo. He was the one insisting that CBS would move its content off of the public airwaves if Aereo won -- to which many people said that sounded like a good idea, so that others could use that valuable spectrum. Of course, when talking to his investors, Moonves also admitted that an Aereo win would have no real impact on the company, revealing the truth of the matter. Either way, it's no surprise that he'd be delighted by the victory over Aereo. What gets ridiculous is when he claims that it's a "pro-consumer thing." How, exactly, is that the case? If you look at the comments from just about any Aereo user following Aereo's decision to "pause" the service this weekend in the wake of the ruling, it certainly doesn't look particularly "pro-consumer." Aereo user and GigaOm writer Jeff Roberts has what might be the best explanation of how horrible this is for consumers: But while CBS and ABC investors may be throwing around high fives at the sop from the Supremes, the average consumer just took a bath. Not only did the court just stick it to them by protecting the TV industry’s bundle rip-offs, consumers also lose access to a marvelous technology. Aereo, you see, was different. It gave urban dwellers like me a cheap way to see over-the-air shows (which the broadcasters send out for free in the first place, don’t forget) on their computers and phones. The service, to be sure, was from perfect. The show streams could be choppy, and in the case of sports, the short time delay could be frustrating �” I would sometimes learn about a goal on social media right before seeing it on Aereo. And it lacked the lazy, channel-clicking pleasure of TV. But Aereo did point out what could be: a commonsense way to watch TV over the internet at a reasonable price. Now, we’re stuck instead with the TV industry’s over-priced bundles and, in the case of mobile, a confusing and convoluted “TV everywhere” system that seeks to replicate an out-of-date form of linear TV watching that no one wants in the first place. You can claim that the networks' win in the Supreme Court was "good" for the broadcast industry (though I'd challenge that assertion too), but to claim in any way that it was "pro-consumer" is just clearly out and out ridiculousness by Moonves.Permalink | Comments | Email This Story

Read More...
posted 22 days ago on techdirt
As you may have heard (since it appears to have become the hyped up internet story of the weekend), the Proceedings of the National Academy of Sciences (PNAS) recently published a study done by Facebook, with an assist from researchers at UCSF and Cornell, in which they directly tried (and apparently succeeded) to manipulate the emotions of 689,003 users of Facebook for a week. The participants -- without realizing they were a part of the study -- had their news feeds "manipulated" so that they showed all good news or all bad news. The idea was to see if this made the users themselves feel good or bad. Contradicting some other research which found that looking at photos of your happy friends made you sad, this research apparently found that happy stuff in your feed makes you happy. But, what's got a lot of people up in arms is the other side of that coin: seeing a lot of negative stories in your feed, appears to make people mad. There are, of course, many different ways to view this: and the immediate response from many is "damn, that's creepy." Even the editor of the study, admits to the Atlantic, that she found it to be questionable: "I was concerned," she told me in a phone interview, "until I queried the authors and they said their local institutional review board had approved it�”and apparently on the grounds that Facebook apparently manipulates people's News Feeds all the time... I understand why people have concerns. I think their beef is with Facebook, really, not the research." Law professor James Grimmelmann digs deeper into both the ethics and legality of the study and finds that there's a pretty good chance the study broke the law, beyond breaking standard research ethics practices. Many people have pointed out, as the editor above did, that because Facebook manipulates its news feed all the time, this was considered acceptable and didn't require any new consent (and Facebook's terms of service say that they may use your data for research). However, Grimmelmann isn't buying it. He points to the official government policy on research on human subjects, which has specific requirements, many of which were not met. While those rules apply to universities and federally funded research, many people assumed that they don't apply to Facebook as a private company. Except... this research involved two universities... and it was federally funded (in part). The rest of Grimmelmann's rant is worth reading as well, as he lays out in great detail why he thinks this is wrong. While I do find the whole thing creepy, and think that Facebook probably could have and should have gotten more informed consent about this, there is a big part of this that is still blurry. The lines aren't as clear as some people are making them out to be. People are correct in noting that Facebook changes their newsfeed all the time, and of course Facebook is constantly tracking how that impacts things. So there's always some "manipulation" going on -- though, usually it's to try to drive greater adoption, usage and (of course) profits. Is it really that different when it's done just to track emotional well-being? As Chris Dixon notes, doing basic a/b testing is common for lots of sites, and he's unclear how this is all that different. Of course, many people pointed out that manipulating someone's emotions to make them feel bad is (or at least feels) different, leading him to point out that plenty of entertainment offerings (movies, video games, music) also manipulate our emotions as well -- though Dixon's colleague Benedict Evans points out that there's a sort of informed consent when you "choose" to go to see a sad movie. Though, of course, a possible counter is that there are plenty of situations in which emotions are manipulated without such consent (think: advertising). In the end, this may just come down to being about what people expect. If anything, what I think this does is really to highlight how much Facebook manipulates the newsfeed. This is something very few people seem to think about or consider. Facebook's newsfeed system has always been something of a black box (which is a reason that I prefer Twitter's setup where you get the self-chosen firehose, rather than some algorithm (or researchers' decisions) picking what I get to see). And, thus, in the end, while Facebook may have failed to get the level of "informed consent" necessary for such a study, it may have, in turn, done a much better job accidentally "informing" a lot more people how its newsfeeds get manipulated. Whether or not that leads more people to rely on Facebook less, well, perhaps that will be the subject of a future study...Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
A few weeks ago, we wrote about how Malibu Media was up to its old tricks again, demanding six strikes data from Comcast as part of its evidence gathering for its copyright trolling. Apparently, no one fought the request, so a magistrate judge has granted Malibu Media's request and told Comcast to comply with the forthcoming subpoena. When the six strikes plan was first put into place, many people worried that the information from it would be used in lawsuits, but people hadn't realized that it might also get abused by copyright trolls. All the more reason to question whether or not such a program is a good idea. When you have a system that allows "strikes" to be issued with no due process at all, which can then be used by a company currently responsible for 40% of all copyright lawsuits -- nearly all of which they're really using to shake down settlement fees -- it should make you wonder if the six strikes program is really such a good idea.Permalink | Comments | Email This Story

Read More...
posted 23 days ago on techdirt
This week, we were dismayed when the supreme court ruled against Aereo. It didn't take long for the fallout to start, with Fox trying to use the ruling against Dish, and silverscarcat took first place for insightful with a simple sentence to sum up how many people feel about this: And this is why... Copyright loses more and more respect by innovators, writers and consumers on a daily basis. Meanwhile, when we discussed problems with another fairly recent legal development — Europe's right-to-be-forgotten — one commenter accused us of having a double standard about privacy. Mason Wheeler took second place for insightful by explaining the nuance: Techdirt is for privacy, but only for things that are actually private. Techdirt has always--as far as I've seen, at least--been against the abuse of the term "privacy" to try to hide public affairs that someone finds embarrassing. For editor's choice on the insightful side, we'll start with some more thoughts about the Aereo ruling, this time from Josh in CharlotteNC who realized that in the long run, nobody wins: It's not just a disaster for tech companies, startups, and consumers. It's also a disaster for the media companies that won the suit. As with every other victory they have in the courtroom, it's nothing more than a Pyrrhic one. They've been handed another excuse to not innovate or even to offer services based on now mature technology, and instead to let their lawyers run wild. Until there's an online video offer equivalent or better than cable at a reasonable price, millions will continue to pirate. Netflix isn't there yet, and not just entirely because cable is trying to kill them. Lawsuit won, at cost of millions. Revenue gained, nil. Company that could've helped broadcast video reach more people and make more money, destroyed. Other companies that could've helped video adapt, never going to be born. Widescale piracy extended. Everyone loses. Next, we've got Almost Anonymous pointing out that no matter how you slice it, Keith Alexander shouldn't be doing private security work: There are huge problems with Alexander doing security consulting, but it seems to me that he must be breaking the law whether he discloses classified info or not. 1. If he knows of "backdoors" and other vulnerabilities and does not disclose the info to his clients, he is essentially defrauding those clients by deliberately allowing them to remain insecure. 2. If he gives those clients the classified info that would allow them to remove those vulnerabilities, then he is obviously breaking the law, as Rep Grayson noted. This is not even getting into the unethical nature of a person in Alexander's position doing any sort of security consulting in the first place. Over on the funny side, we start out on the story about a Raspberry Pi microwave-modder whose awesome work can't be commercialized because of the patent thicket. Naturally someone — in this case Michael — had to make the irresistible joke: I put a raspberry pie in my microwave and it didn't turn out very awesome. In second place, we start out on the post about the FAA's strict rules against commercial drone use, which suggested (among other things) that using drones for commercial farming is not okay, but for hobby gardening it is. This prompted one commenter to wonder what kind of hobby gardener has so many crops that they need a monitor drone, to which saulgoode offered a possible answer: Tommy Chong? For editor's choice on the funny side, we'll return one more time to the Aereo ruling, where one commenter wondered (as many have) why the tech industry doesn't just start buying out the entertainment industry entirely. It's not that crazy of an idea, and you can see why it appeals to some, but it's ultimately not really what tech companies want to do, and Dave Xanatos offered a fantastic explanation of why that is: Don't fight the dinosaur. *Buy* the dinosaur. Sounds great until you realize that now you have a dinosaur to care for and feed. Do you know how much Brontosaurus Chow goes for these days? Finally, after all this time spent on a bad ruling, let's head over to a good one: KlearGear being forced to pay up for its attempts to shake down customers who wrote bad reviews. The company's vague, nebulous and often ridiculous nature prompted one anonymous commenter to draw a distinct parallel: If this were a movie and Techdirt articles were the inspiration for the script, KlearGear would be revealed in the end to be owned by Prenda Law. What a twist! That's all for this week, folks. Permalink | Comments | Email This Story

Read More...
posted 24 days ago on techdirt
Another week, another fifteen years to look back over. Five Years Ago: In the wake of the Jammie Thomas ruling, which we discussed in last week's look back, Moby said the RIAA should be disbanded and Richard Marx (whose music was included in the lawsuit) apologized to Thomas. Meanwhile, the RIAA insisted that the ruling showed that the public is against file sharing. I think it really showed just how delusional the RIAA can be at times. Meanwhile, newspapers were accusing Google of being a "digital vampire" while judge Richard Posner was bizarrely suggesting that copyright law get a special extension just to protect newspapers from the likes of Google. Comcast and Time Warner were working hard to limit your ability to watch TV online while ASCAP was insisting that when your phone rang in public, it was a public performance for which it should get compensated (that argument didn't fly in court). A town in Connecticut, however, told ASCAP and BMI to take a hike when they tried to demand royalties from local establishments. Amanda Palmer was in her early days of successfully experimenting with forms of crowdfunding, while Mythbusters Adam Savage was learning the horrors of insane international roaming fees for mobile phones. Tivo cynically bought a bull in Marshall, Texas in a weak (failed) attempt to influence a jury there in a patent trial. In a preview of today's cab driver fights against Uber, cab drivers were screaming mad about free competition in Tampa. Oh, and someone realized that if copyright law had been around in the time of Shakespeare, we'd probably not have a bunch of his classic plays today. Ten Years Ago: The MPAA's Jack Valenti was trying to rewrite history to edit out his claim to Congress that the VCR would kill the movie industry. And, on cue, his buddy, Senator Orrin Hatch was pushing a pair of absolutely terrible copyright bills in Congress: the INDUCE Act to make inducement copyright infringement and the PIRATE Act to let the FBI work on civil copyright cases as the private police force of Hollywood. Thankfully both failed to become law, though the Supreme Court effectively made the INDUCE Act law with its Grokster decision not too long after that. Ten years ago, SBC (which became AT&T) was promising to install fiber to the home. Amusingly, we just mentioned that again this week in highlighting how AT&T has a long history of lying about these things, as it did ten years ago. Thankfully, ten years ago we were pretty skeptical, noting that the company has a history of promising things and not delivering. Turns out we were right. Tiffany sued eBay for not policing counterfeit goods, kicking off a years-long process that (eventually) ended in courts making it clear that eBay is not liable. Those rulings have been quite important, so I guess we should thank Tiffany for losing those cases. Finally, ten years ago this week, SpaceShipOne became the first private space ship to break the space barrier, kicking off the private space race that is still underway today. This is one of those stories that still feels like it just happened recently to me... How time flies. Fifteen Years Ago: We were marveling over the idea of coupons sent to mobile phones and the brave new world of online banking. Some foolish people were still using analog mobile phones that were easily hacked, leading some enterprising hackers to rebroadcast calls they were intercepting via Shoutcast. If someone did that today, the DOJ would try to lock them up for decades. And, a study found that people were more truthful over email. I wonder if that would still be true today... 146 Years Ago: Christopher Latham Sholes patented the typewriter, though he soon "disowned the machine and refused to use, or even to recommend it." The patent (US 79,265) was sold off for $12,000.Permalink | Comments | Email This Story

Read More...
posted 24 days ago on techdirt
Given that we wrote this week about the FAA saying that basically any use of a drone for money is illegal, we figured that for this week's awesome stuff we'd focus on some projects around drones -- some of which may actually be illegal under the FAA's ridiculous interpretation. HEXO: Autonomous Aerial Camera First up, we've got the HEXO, an autonomous aerial camera. It's a drone that you can attach a GoPro to (some packages include the GoPro) with some software that you can use to let the drone know who/what to follow, and the drone will do exactly that. It's designed very much with aerial imagery of sporting events in mind. The examples in the video above are... amazing. Makes me want to do more sporting activities that I'd want to film just to use this kind of thing. Airdog: Auto-follow Drone for GoPro Okay, this one is very similar to the HEXO above -- a drone system for automatically filming action sports from above with a GoPro. In fact, in some areas the similarities are striking. They're both built by companies based in Palo Alto, California. They both launched on Kickstarter on the same day, and they're both built by companies made up of action sports folks who wanted to have better systems to film themselves. It looks like the AirDog is a little different in that, rather than autonomously following you via the software, the AirDog requires a "leash" that you strap to your wrist, so it knows where to film. The AirDog also looks a little bit more expensive, and, frankly the sample shots in the video aren't nearly as impressive as those in the HEXO video, though that may have more to do with filmmaking technique than the devices in question. Either way, two options for very similar offerings -- and using either of them for commercial uses will piss off the FAA. View from Nova Scotia -- an aerial drone film A filmmaker wants to make a film about Nova Scotia, filmed entirely by drones. The project is just about over and has almost no backing, so it's not going to get funded. Also, it's in Canada, so the FAA rules don't directly apply to it, but if this were in the US, the project itself would almost certainly go against the FAA rules, for being a "commercial" offering using drones. That seems fairly ridiculous for a variety of reasons. Personal Drone Detection System Okay, finally a project that the FAA might like. Consider this as the anti-drone project if you, like the FAA, look at the above stories and freak out. Some folks who don't like drones have built some "drone detection systems" to let you spot drones flying around you. Honestly, given the quality of the video and the prototypes shown, this seems like a fairly amateurish project. The system also doesn't really do anything other than alert you if a drone is entering the "grid" that you set up. Seems like a perfect solution for people overly sensitive to drones. Perhaps the FAA will order a few dozen. That's it for this week. Have fun and try not to piss off the FAA this weekend.Permalink | Comments | Email This Story

Read More...
posted 25 days ago on techdirt
Where do you go when the assertions that Snowden's leaks will cause grave damage and irreparable harm to national security still fail to unite the world against the former NSA contractor? It appears you head to alternate realities where Snowden leaks documents during the early 1940s, thus dooming Britain to cowering at the feet of Hitler. If Edward Snowden had been around during World War II, Adolf Hitler would have been able to score victories against the United Kingdom, according to the British ambassador to the U.S. In remarks at The Ripon Society commemorating the U.S. and British alliance, Ambassador Peter Westmacott said leaks like Snowden's would have allowed the Nazis to overrun allied forces in the Battle of the Atlantic and gain the upper hand... "[T]here are moments ... when it is absolutely essential that intelligence operations in defense of our national security remain secret," he added. "These things are important. It's not frivolous and it is not hiding things." "It is actually necessary for our national security to ensure that our real secrets remain secret." Westmacott's comments follow a long line of detractors, who have claimed Snowden's leaks have turned the US (and other Five Eyes partners) into terrorists' playgrounds, when not trawling through history in an attempt to compare leaks spread worldwide by journalists to the selling of sensitive documents to unfriendly nations. That's when they're not suggesting Snowden's residence in Russia will inevitably turn him into an alcoholic. This sort of claim is another in a long line of NSA/GCHQ defenders deploying fear in hopes of regaining the supposed higher ground. But there's only so long these tactics can remain effective in a dearth of terrorist activity, and it appears to have passed that shelf date quite some time ago. You can only point to attacks you haven't prevented as evidence that you're needed for so long before the public starts granting you the same level of trustworthiness reserved for those who claim to know the exact date the world will end. Westmacott also mixes his metaphors by using military operations to condemn the leaking of documents detailing lots of untargeted surveillance. His fears mirror those of the Defense Department, which seems to believe Snowden is holding onto thousands of military intelligence documents and has based its damage assessment on the theory that a) he actually has these and b) they will be (or have been) released. The ambassador would do well to remember that not nearly as many citizens are sold on the "War of Terror" as they were on actions taken during World War II. There's something much less tangible about a threat that is constantly referred to but rarely cohesively materializes. It's become so much of an abstraction here in the US that the FBI has had to craft its own "terrorist plots" from scratch just so its Counterterrorism wing (the larger of the two -- the other being "Law Enforcement") has something to do. Cleared of all its Godwin-trappings, Westmacott's ultimate point is hardly any better. His extended anecdote -- involving the cracking of German U-boat codes in 1940-41 -- bears little resemblance to what has actually been revealed by Snowden's leaks. Much of what's been uncovered deals with the domestic surveillance performed by many countries as well as a concerted effort to undermine secured communications of any sort. There has been nothing released to date that details intelligence efforts directed at military foes. That the oft-alluded-to enemy ("terrorists") use the same communication tools as the rest of the public (phones, internet, etc.) has been used as leverage to allow multiple intelligence agencies to gather communications and data from everybody, supposedly in hopes of ferreting out the terrorists among us. But nothing here covers encrypted military communications, not even those of the US or our allies. Westmacott says some secrets must remain secret, and without a doubt, many still do. To try to pitch the leaked documents as somehow being the equivalent of "allowing" Nazi Germany to "win" is more than disingenuous, it's a distortion of what's actually been leaked. Permalink | Comments | Email This Story

Read More...
posted 25 days ago on techdirt
We've already noted how the Supreme Court's ruling in the Aereo case is a disaster for the technology industry, by using a bizarre "looks like a duck test" that provides no guidance for the tech industry and is going to create a litigation nightmare. Of course, the broadcasters and their supporters in the copyright maximalist world insist that this is all hyperbole and exaggeration -- but it appears that even many of their "friends" agree. The LA Times is Hollywood's hometown paper, and it frequently supports the industry. However after the ruling, it's released an editorial worrying about the impact on innovation: There's been plenty of speculation that Aereo could undermine broadcasters by cutting into or even eliminating the substantial fees they collect from cable operators. But then, as Scalia noted, broadcasters said the VCR would be the death of their industry too. By trying to close a legal loophole that technology enabled Aereo to exploit, the court blurred the boundaries around copyrights in a way that will chill investment and innovation. It would have been far better if the court had let Congress respond to a technological change it couldn't have foreseen 38 years ago. Then jump over to the Hollywood Reporter, the leading trade magazine for Hollywood, and you get a similar analysis that notes the chill on innovation: Innovators lose because the Aereo decision makes it harder for them to know where the lines are drawn. The court said Aereo �“ which allowed users to use RS-DVR technology to transmit programs, from a small antenna to a hard drive and thence via packet on the Internet to mobile devices and PCs �“ was "substantially similar" to a cable system that uses a single big antenna to transmit programs via cables buried in the streets to television sets. The fact that Aereo also resembled an RS-DVR was discarded. With that much elasticity, how does a technologist know whether her brilliant idea too closely resembles a phonograph or player piano roll and therefore runs afoul of some vastly pre-Internet analysis? That report also notes the harm done to the public: Consumers lose for the same reason that MVPDs win. High priced cable bills are here to stay, and unbundling remains a distant dream for consumer advocates. The other big trade publication, Daily Variety, was much more congratulatory towards Hollywood's "victory," but its editor-in-chief penned an analysis piece that warns the networks who hid behind this fight that if they don't want another Aereo to pop up, they need to start innovating themselves. In other words, pretty much everyone -- even Hollywood's closest observers -- recognize that this ruling was a disaster towards true innovation, and are hoping against hope that these companies that have spent decades fighting innovation will magically start innovating themselves, now that they wiped out the upstart competitors. I wouldn't hold my breath. The purpose of this fight was to kill innovation, and that's not going to spur the networks to innovate. They think they wiped out this threat.Permalink | Comments | Email This Story

Read More...
posted 25 days ago on techdirt
Earlier this week, EFF's Parker Higgins noted that he was about to head on a secretive "adventure to Utah" -- and now it's come out that he was actually there to fly a blimp over the NSA's infamous datacenter in Bluffdale, Utah. You know the one. It's received plenty of attention over the past few years, as it was designed to store a ton of electronic data that the NSA previously didn't have room for. Either way, EFF and Greenpeace teamed up to launch a new campaign called Stand Against Spying, and took to the skies in the blimp to get it some attention. You can also see a brief video of the blimp taking off. If you look closely, you'll see the big arrow pointing downward from the blimp saying "NSA Illegal Spying Below." The blimp -- technically a thermal airship called the A.E. Bates, apparently flew over the center for about an hour. In an interview with the Guardian, Higgins noted just how enormous the datacenter appears to be from above: "The data center is this massive, sprawling complex. I've seen pictures of it, but it's different from the air. You get a sense, really, for the scope of this, the scale of what they're doing there." Check out the Stand Against Spying website, and, in particular, its new Congressional scorecard rating our elected officials on how good of a job they're doing (or not doing) in protecting our privacy against the NSA. The list, unfortunately, shows how polarized this debate is. There are a lot of "A"s on the list, and a ton of "D"s and "F"s. There are very few "B"s and "C"s in between. The methodology explains how the grades were awarded. Improving grades is pretty straightforward: sponsor or co-sponsor good privacy bills and then vote for them. Simple? Simple. Now, it's time to move more people into the "A" category.Permalink | Comments | Email This Story

Read More...
posted 25 days ago on techdirt
Life is filled with small problems. Some more important than others. Mathematicians have attempted to solve some of these conundrums, and apparently one somewhat popular task is cutting things up. Here are just a few (useful?) examples of math applied to the task of cutting a cake. This video demonstrates how to cut a cake in a way that maximizes the amount of moist cake that can be eaten if the cake isn't eaten in a single sitting, but over the course of days. This is actually a pretty sad way to eat a cake, assuming you have no friends or don't want to share your cake so that you have to eat it all by yourself. [url] If you've ever heard of the Banach-Tarski Paradox, you might think it should be possible to cut up a cake in such a way that you never run out of cake. The proof relies on the Axiom of Choice, but too bad real cake isn't infinitely divisible. [url] Everyone knows the classic "you cut, I choose" method for cutting up a cake fairly between two people. Not everyone knows the method for cutting a cake fairly between n number of people.... [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...