posted 19 days ago on techdirt
The iKlips DUO iOS Flash Drive is an easy data storage and transfer solution for iOS devices. This flash drive will securely store your files and travels easily wherever you go, allowing you to access your music, photos, documents, and more at a moment’s notice. It features a newly designed Lightning connector body that fits even more iPhone and iPad cases, a silicone body sleeve for total protection, a handy key ring, and more. It is available in 32GB ($71), 64GB ($87) or 128GB ($151). Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
The battle against encryption being fought valiantly stupidly by the FBI, a few law enforcement figureheads, and a handful of legislators is an unwinnable war. Just ask Brazil, where the government has blocked WhatsApp repeatedly in an effort to force it to comply with demands for information. The problem is that WhatsApp now utilizes end-to-end encryption for all messages, meaning WhatsApp cannot provide any information about message content no matter how badly the Brazilian government wants it. So Brazil blocks WhatsApp periodically and everyone wanting a secure messaging platform simply routes around it. Several rival apps that offer encrypted messaging services reported a surge in Brazilian sign-ups, which highlights how the growing ubiquity of private messaging apps makes it hard to stop people from using them. Both Telegram and Viber reported surges in new signups, with Telegram saying it had gained more than one million new Brazilian users. And this is happening every time the government decides it's going to kick WhatsApp off the internet. The same thing will happen with any of the proposed encryption bans currently making their way through various legislative entities. Bans have been proposed in both California and New York. If imposed, the only thing they'll guarantee is that locals will be purchasing phones in another state. And those who don't feel comfortable with the end result of other efforts like Dianne Feinstein's will opt to use communication platforms/cell phone service providers who haven't caved to government demands that companies hold the encryption keys. FBI director James Comey seems to believe he can make the world unite in the banning of encryption. This is apparently based on his abject failure to convince even a majority of US legislators that bans and backdoors are a good idea. As long as there are options, people will seek them out. That's the only guaranteed outcome. And the more a government tries to clamp down, the further it separates itself from any usable information, like communications metadata and access to subscriber information. Once you've pushed citizens to using platforms located in other jurisdictions, your powers become severely diluted. It would be better to just accept the growing shift to encryption and explore other options that don't involve slamming your head repeatedly into an immovable force. And, it must be pointed out that people have communicated securely for years without the government claiming it should have access to every private conversation and the contents of every mailed letter. Just because texting has replaced phone calls and letters doesn't mean the government is somehow entitled to this new wealth of communications. Just because it's easier to obtain in bulk doesn't mean it's the end of the investigative line when encryption takes that opportunity away. James Comey should stop worrying about the "smart people" in tech companies and spend more time with the "smart people" in law enforcement and find out why they're not doing more to alleviate the situation. Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
We've written many posts on the area of so-called "publicity rights" laws. These are state laws that try to create a newish form of intellectual property around someone's "likeness" or other identifying features. A few years ago, Eriq Gardner wrote the definitive piece detailing the rise of publicity rights as a new way to try to lock down "protections" for things that don't really need to be protected. The initial intent behind many of these laws was to avoid a situation where there was a false endorsement -- basically to stop someone from putting an image or likeness of a famous person in an ad to imply support. But the law has (not surprisingly) expanded over time, and there have been many, many crazy battles over publicity rights -- including ones concerning Marilyn Monroe, Manuel Noriega, Katherine Heigl, Lindsay Lohan, Lindsay Lohan and Lindsay Lohan. Since there's no federal law over this, it's all based on a bunch of state laws, which vary quite a bit from state to state. For example, a big part of the publicity rights case concerning Marilyn Monroe was over whether NY or California publicity rights laws applied to her estate. In California, the publicity rights continue after death. In NY, they do not. For tax reasons, after Monroe died, her estate convinced California tax authorities that Monroe was a NY resident at the time of her death. That saved them on some taxes, but it created a problem for them when they realized it meant that they couldn't use publicity rights laws in NY. So they suddenly started claiming publicity rights in California anyway, until a court rejected that plan. That brings us to Prince. The artist who both embraced and struggled with the internet throughout his lifetime, was always focused on one thing in particular: control. While some of his actions seemed contradictory (embracing the internet at one moment and slamming it the next), when viewed through the lens of "he wanted ultimate control," the actions fit a pretty clear reasoning. But, it turns out that Minnesota, where Prince famously lived, there is no post-mortem publicity rights. No worries, thought some Minnesota legislators, apparently, let's just rush through as quickly as possible a brand new law to create massive and widespread publicity rights for the deceased. Hell, they thought, why not call it the PRINCE Act (Personal Rights in Names Can Endure Act -- because, nothing matters any more). Of course, like basically any law that is rushed through in response to an event, like someone's death, it appears that the people rushing it through haven't spent any time thinking about the actual impact of what they're proposing. Instead, it appears that Rep. Joe Hoppe wanted to get his name in the headlines as "helping" the Prince estate to stop the "exploitation" of Prince. Except this law is insanely broad and will be abused to stifle expression. The bill first declares: An individual has a property right in the use of that individual's name, voice, signature, photograph, and likeness in any medium in any manner. That's pretty damn broad. To be fair, there are a few limitations included in the bill. It does allow for fair use, but that's limited to use that's "news, public affairs or sports broadcast." No idea why a sports broadcast is exempted here, but okay. The law also can be read to only apply to commercial use, since it applies to use "on or in products, merchandise or goods" or "for purposes of advertising or selling..." or for fund raising. And there is a limitation that just using the "name, voice, signature or photograph" "in a commercial medium does not constitute a use for purposes of advertising or soliciting solely because the material containing the use is commercially sponsored or contains paid advertising." So you could argue that you won't get hit for just posting a photo on social media or something, even if there are ads on the page. But seeing how widely we've seen publicity rights claims abused, you could easily see this being abused. Any Prince cover artist would basically be required to get a license. Someone writing a book about Prince or that discusses Prince might violate the law -- and, at the very least, might face a lawsuit to determine if it's fair use. And, somewhat ironically, as our own Tim Cushing points out, one could read the bill itself as violating itself. After all, it's using Prince's name, and it's clearly being used to "advertise." You could also make a strong argument that it's being used for fund raising of the politicians pushing it. In fact, Hoppe even admits that he's deliberately exploiting Prince's name: “I’ve had people say, `Is it just prompted by the death of Prince?’ Yeah, essentially it is. Really, what it’s doing is it’s attempting to recognize the right of publicity postmortem,” Hoppe said. So it's okay for Hoppe to exploit Prince's name and death... for the purpose of making sure no one else exploit's Prince's name and death? How does that work. I know that Prince really liked to have control over everything, but it really feels a lot like this move is about figuring out how Prince's relatives will be allowed to cash in on his estate. It's not clear why politicians should be aiding such a maneuver.Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
For many years, we've pointed out that so much policymaking around copyright law is what we'd argue to be purely "faith-based." The fact that there is little to no actual evidence that stronger copyright protections lead to better outcomes for the public, the economy or for society is ignored by people who just know it must be true. And the constant assertions about extending and expanding copyright always seem to come from this same faith-based positioning. An exploration into the empirical basis for copyright law finds that there basically is none and the reason we have copyright is because a couple of centuries ago some people thought it was a good idea, and no one's really bothered to check since then. One of the most ridiculous examples of this "faith-based" reasoning is the belief, among many, that the way to stop widespread copyright infringement is just to increase the punishment for those who are caught. Sure, you can understand the armchair economists' reasoning here: if you increase the punishment, you're increasing the "cost," which should decrease the activity. But, that's just wrong on many, many levels. First, let's take a step out of the copyright realm and into the criminal justice realm. After vastly expanding punishment (via things like "three strikes" laws), many, many people (even those who supported such programs) are now admitting that long sentences don't actually do much to deter crime. While there were some studies in the 80s and 90s suggesting long sentences reduce crime, more recent (and much more thorough) studies have basically rejected that view. A recent survey of many studies in the area found little support for the idea that longer sentences deter criminal activity. A bunch of other, even more recent, studies agree. A massive report from the University of Toronto goes through the history of the support for harsher sentencing, and a ton of historical and modern research, and concludes: At this point, we think it is fair to say that we know of no reputable criminologist who has looked carefully at the overall body of research literature on “deterrence through sentencing” who believes that crime rates will be reduced, through deterrence, by raising the severity of sentences handed down in criminal courts. The evidence supporting this conclusion has been accumulating for decades. In the 1970s, thoughtful reviewers were cautious in their conclusions, suggesting only that the deterrent impact of harsh sentences had not been adequately demonstrated. More recently, we, and others, have been more definitive in our conclusions: crime is not deterred, generally, by harsher sentences. Another major study, from two years ago, by the National Research Council more or less says the same thing: "the evidence base demonstrates that lengthy prison sentences are ineffective as a crime control measure." Another recent research report, which also delves deeply into the arguments from the 70s and 80s now concludes: "The empirical work of the past thirty-five years has presented evidence that some of the deterrence we thought that we were likely to get was not, in fact, forthcoming.... " Hell, even the National Institute of Justice, the "evaluation" agency that's a part of the US Justice Department (which regularly pushes for harsher punishment) says directly on its website: Increasing the severity of punishment does little to deter crime. Laws and policies designed to deter crime are ineffective partly because criminals know little about the sanctions for specific crimes. Seeing a police officer with handcuffs and a radio is more likely to influence a criminal’s behavior than passing a new law increasing penalties. That same page further notes that "sending an offender to prison isn't a very effective way to deter crime." At this point, you have to be willfully ignoring the evidence to argue that throwing people in jail for a long time is a way to deter crime. The reasons why the simple theory at the top of this post is wrong are that (1) most people committing crimes don't expect to get caught and (2) many people who are committing crimes don't even know what punishment might be, or vastly misunderstand the likely punishment. Okay, so let's jump back into the copyright world. For reasons that are beyond comprehension, the UK government has announced plans to try to put copyright infringers in jail for 10 years. The UK's Intellectual Property Office recently released a report, following a consultation on this issue, in which it clearly supports a 10-year sentence for infringement, arguing: The UK is frequently cited as the world leader in IP enforcement, and as Minister for IP I want to do everything I can to preserve this standing. The provision of a maximum ten year sentence is designed to send a clear message to criminals that exploiting the intellectual property of others online without their permission not acceptable. The report also states, unequivocally: The Government believes that online offences should be treated no less seriously than their physical counterparts. Harmonising these will provide a deterrent effect to criminals and, where criminality continues, provide for tangible punitive action. Notice, of course, that there is no citation for this view. And, also, the fact that it clearly contradicts a ton of empirical research, as discussed above. Perhaps noticing the same thing, Kieren McCarthy at the Register sent a FOIA request to the Intellectual Property Office asking them where the 10 year maximum sentence idea came from. The answer? The IPO just made it up based on... nothing. Such information was derived from our analysis of the evidence and opinion provided to us by a wide spectrum of interested parties, over the consultation period. No empirical understanding of the issues of punishment and deterrence. No actual understanding of the issues. Just a bunch of people gave us their opinions, and we just plucked 10 years out of thin air. And, of course, as McCarthy notes, even that line above is clearly untruthful, since the vast, vast majority of the submissions provided to the IPO opposed the 10-year sentence proposal, which the IPO then stuck with anyway. In the IPO's response to McCarthy, it also cited a couple of studies concerning copyright, but both of those studies advise against such an increase in sentencing. So it appears that the Intellectual Property Office is focused on increasing criminal penalties for copyright infringement to 10 years in jail based on proactively and willfully ignoring the empirical evidence both in the criminal justice world and in the copyright world. And then they wonder why the public doesn't respect copyright law?Permalink | Comments | Email This Story

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posted 19 days ago on techdirt
When will schools tire of involving law enforcement in routine disciplinary matters? Not soon enough, apparently. Hunter Osborn, a senior at Red Mountain High School in Mesa, AZ, did a "teen" thing. Prompted by other teens who enjoy a good bit of teen lowbrow comedy, Osborn slipped the tip of his penis over his waistband during the football team's photo shoot. Osborn and his crotch-level co-star went unnoticed as yearbooks and game programs containing his exposed penis were published and handed out. The school, of course, was furious. Instead of handling its own problems, it decided to turn it over to law enforcement -- for reasons only completely understood by school administrators who believe "school discipline" is pronounced "police matter." Perhaps this overreaction was fueled by the school's own editorial lapse, as it only noticed the exposed penis in the photograph after Osborn bragged about it on "social media." Insanity ensued. [Osborn] faces 69 counts of indecent exposure, based on the students and staff who were present when the photograph was taken, and one count of furnishing harmful items to minors, according to Mesa Police Department spokesman Steve Berry. He said the investigation is ongoing. One penis. (And not even a whole one.) 70 criminal charges. And that includes a felony that rubs elbows with producing and distributing child pornography. Never mind the fact that his "victims" (the 69 misdemeanor counts cover the teammates and staff involved in the photo shoot) included the same teammates who dared him to expose himself. And who also "exposed" themselves to him on repeated occasions with no complaints, as one particularly astute AZ Central reader pointed out. As reader Jim McManus wrote, “This young man is being charged for exposing himself to his teammates during the picture taking, which no one noticed at the time. Approximately 15 minutes later he and all the people he ‘abused’ went back to the locker room and all took off their (clothes) exposing themselves to each other.” Yes, there's a difference between expected penis exposure and surprise penis exposure, but the bottom line here is that many of Osborn's "victims" had seen his penis repeatedly. No one expects a penis in a group photo, but hey, peer pressure and stupidity can all be found in large quantities on the average high school campus. That the photo was published unaltered is unfortunate, but there's absolutely no reason law enforcement should have been brought in. And if law enforcement was summoned, officers should have told administrators to handle their own problems, rather than amuse themselves by tallying up 69 + 1 criminal charges. Fortunately, after allowing insanity to have the run of the yard for a few days, rational thought was allowed to cautiously make its way back onto the propety. First, prosecutors dropped the ridiculous "furnishing harmful items to minors" felony charge. In announcing that his office would not prosecute the felony charge against Hunter Osborn, Montgomery issued a statement reading: “An assessment of the available evidence for the felony charge of Furnishing Harmful Items to Minors, ARS 13-3506.A., leads us to conclude that the evidence does not establish a violation of the statute. MCAO has furthered review of remaining misdemeanor charges submitted by the Mesa Police Department for possible submittal to the Mesa City Prosecutor's Office.” Shortly thereafter, prosecutors decided the 69 misdemeanor counts weren't worth pursuing either. A Mesa police spokesman said Wednesday that the case against Hunter Osborn, 19, was returned to police for further investigation but that the case would be closed. A good thing, too. A strict reading of the state's statute behind the single felony charge suggests Osborn could not have possibly violated it. Indecent exposure, maybe. But not furnishing harmful material to minors. It is unlawful for any person, with knowledge of the character of the item involved, to recklessly furnish, present, provide, make available, give, lend, show, advertise or distribute to minors any item that is harmful to minors. The only entities who performed any of the actions were the school and its photographer -- and neither of those did so knowingly. Even though this ended relatively well, the sad fact is that if it had been handled with any sort of common sense, we never would have heard about it at all. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
So many of the trademark disputes we talk about here involve stories centered around the questions of customer confusion and like-market competition. These are two tests central to the question of whether trademark infringement has actually occurred: are the two entities competing with one another for the same customers and are those customers, or could those customers be, confused by the alleged trademark violation. Quite often, the markets and products in question aren't of the basic-needs variety, perhaps creating some wiggle room in the minds of some as to whether there is a like-market issue to consider. But to create a truly absurd trademark accusation, the accusing side should really be a producer of one of the basic necessities of life, while the accused does not. Take, say, water. In Saratoga, for example, a large bottled water company is going after a chain of juice bars because both include the word "Saratoga" in their respective trademarks. Saratoga Spring Water Company, which makes the famous blue bottled water, has legally challenged another company’s use of the word “Saratoga.” That business, which received a cease and desist letter followed by a petition to cancel its trademarked name, is the downtown-based Saratoga Juice Bar, a cold pressed juice and wellness brand owned and founded by local entrepreneurial couple Christel and Colin MacLean in 2013. The cease and desist letter, sent to the MacLeans in March by Laura Smalley of Harris Beach Attorneys at Law, was the first form of communication from Saratoga Spring Water Company on the subject. It stated, “Your use of the SARATOGA trademark in this manner, on goods substantially similar to those sold by Saratoga Spring Water, is likely to induce customers to believe that there is an association between your products and those of Saratoga Spring Water. Your use of the SARATOGA trademark is therefore an infringement of our client’s trademark rights.” In my head, I'm picturing a nondescript courtroom table, upon which are a bottle of water and a glass of juice, with legal counsel from Saratoga Spring Water throwing his hands in the air and shouting, "Who can tell which is which!" Or, put another way, how badly do you have to be at bottling spring water before your customers can't tell the difference between it and juice? There is no customer confusion here to worry about. The branding of each company's products aren't remotely similar. And, unless you simply lump every drinkable liquid everywhere into the same "marketplace", there isn't anything remotely like competition to consider, either. Nobody goes out to get a bottle of water and comes home wondering how they got an acai berry juice instead. Adding to what will be a legal mountain for Saratoga Spring Water to climb, if it chooses to do so, is the fact that the MacLeans were proactive when it came to trademark issues and their brand. Aware that the word “Saratoga” has been used to market many brands, the MacLeans engaged the services of trademark attorneys, Arlen Olsen, of Schmeiser, Olsen & Watts to ensure that they secured the trademark rights to market their unique brand when creating it. Their approach was successful and the U.S. Patent and Trademark Office granted the registration of their trademark on November 11, 2014. This allowed the company to confidently proceed and develop their wholesale line of cold pressed juices for distribution, the release said. This noting that "Saratoga" appears on branding for all manner of products and services is important, as it renders Saratoga Spring Water's claim to one that rests almost entirely on the notion that water and juice are similar enough in the marketplace so as to cause real customer confusion. Again, I'm picturing the two products side by side on a table and wondering who in the hell would buy that? I would expect there will be no court case in this instance, however, for all the reasons mentioned above. What is nice to note is that the smaller Saratoga Juice Bar is promising not to back down. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Robot locomotion is a fascinating field of study, and it's mesmerizing to watch robots walk around like zombies, even if these robots aren't entirely practical or useful just yet. Presumably, these robots will someday cross the uncanny valley and move more reliably and smoothly. Until then, however, biomimicry for robots seems wide open to a variety of human-like or insect-like or worm-like combinations. (Watch out for centaur-like robot patents!) A humanoid diving robot called OceanOne that can swim pretty deep underwater with impressive dexterity. It's not autonomous (yet), but as a remote-controlled robot, it will be able to explore fragile deep sea ecosystems or underwater shipwrecks much better than more traditional remote operated vehicles. [url] NASA is considering a robotic eel to explore Jupiter's moon Europa -- but also soccer ball-like robots (not like BB-8) and other crawling/hopping bots. One unmanned aerial vehicle among the proposals described two gliders tethered to each other that could fly for "years" and perform the duties of an atmospheric satellite. [url] An eel-like robot has been developed to be permanently attached to the seabed to inspect and maintain underwater mechanical devices. Its snake-like body can be used in confined areas, and it also shouldn't give anyone nightmares at all. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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James Comey continues to cut himself adrift from the encryption debate, taking a hardline stance not reflected by others in the intelligence community. While he has a few voices in his echo chamber (mainly Manhattan DA Cy Vance and… well, that's really about it), for the most part, Comey has become a street corner doomsayer, alternately crying out against the going-darkness and mumbling about "smart people" at "tech companies" and their unwillingness to carve government-sized doors in their encryption. His testimony before Congress-- during the heated battle with Apple over the unlocking of a dead terrorist's iPhone -- was mostly composed of things he couldn't talk about and things he didn't know. At times, it was difficult to distinguish between the two. Maybe it's time for the FBI to put someone more credible in charge. That's what Fight for the Future believes. It's crafted an online petition asking for Comey to step down as the FBI's director. In support of its suggestion, it points to Comey's lies to Congress about the San Bernardino iPhone, the mishandling of that case, the statements of former national security officials about the "stupidity" of punching holes in encryption, as well as his long history with the Bush Administration, in which Comey (as Deputy Attorney General) helped approve warrantless wiretapping programs and the CIA's "enhanced interrogation technique." Fight for the Future sums up: We're afraid that after all these years unchecked, you've lost sight of what's good for American Democracy. Director Comey, you're off the rails and your extreme behavior is putting lives in danger. The petition has gathered more than 8,000 signatures at the time of writing. Fight for the Future has no target number for signatures and openly admits its effort has zero chance of forcing Comey to resign. Evan Greer, the campaign director at Fight for the Future, said in an email that the letter was designed to send a message and acknowledged that it would not prompt the resignation of Comey, whose 10-year term ends in 2023. "I think this is more one of those 'someone had to say it' situations," she said. "The goal of the letter is to show that Comey is isolated and extreme. Do I think he's just going to read this and suddenly decide to resign? Probably not. But he's increasingly losing credibility in D.C. and beyond, and we think this effort will help continue to highlight that." More people are saying it, not that it ultimately matters to the FBI. Those on the inside may not agree with Comey's assertions, but they're going to let him run his mouth because it has a very small chance of giving it something it wants: encryption backdoors. Even if the FBI has numerous options to break into devices, it can't argue with the convenience of government-mandated backdoors. But despite Comey's repeated complaints, there's nothing even remotely resembling legislative critical mass on the horizon. Months of saying the same thing over and over again has drummed up the support of a few state legislators in California and New York and surveillance aficionados Dianne Feinstein and Richard Burr on Capitol Hill. That's basically it. For the most part, even the government (at all levels) believes the government shouldn't be undermining encryption. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
The concept of "checks and balances" kind of takes a beating when one branch of the government says it's ok to lie to another branch. We've already seen the FBI tell law enforcement agencies -- through extensive NDAs it makes them sign before they can deploy cell site simulators -- that it's better to let suspected criminals walk away from charges than risk allowing details on Stingray devices to make their way into the public domain via submitted evidence. Many law enforcement agencies appear to be doing exactly that. More than one agency has misled judges with applications for pen register orders and requests for cell site location data -- neither of which provide details on the technology actually being used. Another memo from the FBI shows the federal agency directly instructing a local law enforcement agency to engage in parallel construction. The memo, obtained by Oklahoma Watch, explicitly spells out what is supposed to happen if cell site simulator use is part of the evidence chain. (h/t Nate Wessler) Information obtained through use of the equipment is FOR LEAD PURPOSES ONLY, and may not be used as primary evidence in any affidavits, hearings or trials. This equipment provides general location information about a cellular device, and your agency understands it is required to use additional and independent investigative means and methods, such as historical cellular analysis, that would be admissible at trial to corroborate information concerning the location of the target obtained through use of this equipment. The problem is that this sort of "lead" often leads directly to search warrants of residences where people are located. The Oklahoma City PD is being told to obtain other non-Stingray-related data that could plausibly explain how it managed to located Subject X at Location Y. Officers won't be telling magistrate judges when seeking pen register orders or subpoenas for cell location info. And officers won't be telling defendants or their representation how they managed to be in the right place at the right time with a search warrant. The memo also notes that the FBI "will use all appropriate legal means" to prevent Stingray use from being uncovered in discovery requests. Apparently, "all appropriate legal means" covers parallel construction. What sets this apart from the FBI NDAs we've covered here previously is that this memo is limited to the local law enforcement's borrowing of FBI equipment to locate suspects. With the FBI still in control of the device, it's obviously going to be that much more concerned with controlling the narrative. Clifton Adcock of Oklahoma Watch notes that local law enforcement appears to be using Stingray devices but covering it up through pen register orders. In one case, this has led to a very suspect request from the Oklahoma City PD, suggesting it had borrowed an FBI cell site simulator to locate the defendant. In one of those cases, a defense attorney, Douglas Parr of Oklahoma City, said he believes a cell site simulator was used to collect his client’s phone data. The client is charged with drug trafficking. During a hearing in Oklahoma County District Court in September 2015, Parr asked an Oklahoma City police detective whether a simulator had been used. The detective, who had requested the order, testified that to his knowledge such a cell site simulator had not been used. Testimony in the case shows the officer did not file for a trap and trace order with the court until the day he testified in September – more than a year after he conducted the surveillance. According to the FBI's new rules for Stingray use, warrants must be sought and provide explicit details about the technology being used -- including the facts that Stingrays search every phone in the area while trying to locate devices and that local service may be disrupted during deployments. The DOJ's ruleset arrived a few months after this particular Memorandum of Understanding was signed with the Oklahoma City PD. One would hope a revised version is on the way, if not already in the hands of Oklahoma law enforcement -- one that does a better job of reflecting the DOJ's current stance on warrants and information dissemination. Permalink | Comments | Email This Story

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posted 20 days ago on techdirt
Let's start with the basics: Kevin Bollaert is a creep who did some really horrible and shady stuff. He was something of a latecomer to the revenge porn space, basically copying a few of the more popular revenge porn sites that came before him in creating "YouGotPosted." He also copied at least some of the "business model" of Craig Brittain's "IsAnybodyDown" website, which purported to work with a third party (the fictitious "lawyer" "David Blade III") who you could pay to take down those naked pictures someone leaked to the site. In the case of YouGotPosted, Bollaert set up a companion website, called ChangeMyReputation, where you could pay and that site would magically get images taken down off YouGotPosted (there is some dispute over how clear it was that the two sites were connected). There's a decent argument that this is a form of extortion, posting naked photos of someone and then demanding cash to get them taken down -- but there are also cases in slightly different realms (such as online review sites) that suggest such activity is actually protected by Section 230. Bollaert, about as unsympathetic a defendant as you can possibly imagine was convicted of a variety of things, including not just extortion, but also identity theft, which raises some serious questions, given that Bollaert was only posting info given to him by others. So when Bollaert got an 18-year sentence over all of this, many felt the sentence to be fairly extreme -- even among those who felt that Bollaert is a creep who deserves jail time for what he did. As we expected, Bollaert has appealed and is raising some key defenses, mostly based around Section 230 of the CDA. In short, what he did may have been awful, but you still can't blame the site operator for content uploaded by users. That's the whole crux of CDA 230. If the uploader broke the law in posting content, go after them, not the platform on which the content was uploaded. In this case, the People seek to chip away at the clear protections provided by the Communications Decency Act. The People claim the statute’s protection did not apply to Yougotposted because Yougotposted administered the website and possessed the authority to pick and choose which information was posted. Here the People’s reliance on speculation and conjecture fails to strip appellant of the statute’s immunity. If the People’s arguments are accepted, the approach would provide an avenue for other litigants to end-run the bright-line protections provided by the statute, jeopardizing service providers and undermining speech in the process. This amounts to bad policy. Bollaert's lawyers argue, fairly reasonably, that YouGotPosted qualifies for the CDA 230's safe harbors as a service provider. The state argues that he's the content provider, who can be liable, rather than just a platform. Bollaert's lawyer cites all the standard Section 230 cases that establish the fairly broad immunity provided to internet platforms. Bollaert also argues that what was on YouGotPosted wasn't identity theft at all because any "unlawful purpose" associated with collection of identifying information was done by third parties, rather than Bollaert, and thus, once again, he's protected by Section 230. In its reply brief, the State of California hits back at all of this with what seems like an incredibly weak argument. Basically it argues that because Bollaert required submitters to post personal information, that makes him a content provider, rather than a platform: By requiring users to post personal identifying information, appellant became an “information content provider” because he was responsible as a developer and provider of the content he required; thus, he was no longer a mere “interactive service provider” or “access software provider”. In any event, because he intended to defraud victims by concealing his true identity as the operator of both websites, the exception appellant relies on would not apply. Not surprisingly, California relies heavily on the infamous Rommates.com ruling, a rare case where a service provider lost its safe harbors by having a drop down menu that was seen as asking a discriminatory question about roommate preferences, violating fair housing laws. California is arguing that, by requiring uploaders to post user information, YouGotPosted is similar to Roommates. Here, similar to the situation in Roommate, appellant willfully obtained individuals’ personal identifying information by soliciting it from submitters, who were required to include the victims’ full name, location (“city, state, country”), age, and a link to the victims’ Facebook profile page in order to submit photographs. As in Roommate, appellant became responsible for the illegal content of the postings because the illegal content (i.e., the non-consensual use of someone’s personal identifying information, including their private photos) was a condition of use. Appellant then used that information to harass and annoy victims because he knew—with absolute certainty—that by posting the information, the victims would be contacted by numerous strangers whom the victims would find threatening. Appellant also used the information for the unlawful purpose of unlawfully obtaining money from them by demanding payment in exchange for removing his posts. This conduct does not magically become lawful because appellant did it online, or because he recruited third parties to help him inflict harm on a mass scale. Except California is playing a little loose with the facts here and mixing and matching things to make its argument look stronger. The key difference was that the roommate preference question was, by itself, discriminatory and against the law. YouGotPosted asking people for identifying information is not. Again, this is not in any way to defend Bollaert or his site. But Section 230 matters quite a lot, and government attempts to limit those protections will have a serious impact on internet platforms and their willingness to allow freedom of expression. California's lawyers spend a lot of words trying to argue that requesting identifying information with photos magically makes the whole thing illegal -- including claiming that because Bollaert knew that his users would then likely harass the people shown in those photos -- that it makes him liable as the content creator. But that still seems to be a fairly blatant misreading of the law as written and the case law itself. California also insists that it is identity theft, because of the "fraud" of pushing people to another site to pay to have the photos removed: Here, the evidence amply demonstrated appellant’s intent to defraud. When victims asked to have the offending photos removed, they were either referred to the website “ChangeMyReputation.com,” or they followed the link to that site.... This extra step was wholly unnecessary. Appellant could have removed the photos by demanding the money directly from the victims as part of the UGotPosted website. But appellant presumably realized that the victims would be less inclined to pay money to the very person responsible for posting their pictures. By creating a separate website, appellant hoped to deceive the victims into believing that they were receiving the legitimate services of a neutral third party who would restore their reputation, and that they were not simply paying blackmail to an extortionist who was the source of their misery. Responding to California's attempt to get around Section 230, Bollaert's lawyers basically just repeat "it's a platform and the government hasn't shown any reason it's not." Here, the People claimed the statute’s protection did not apply to appellant because he administered the “Yougotposted” website and retained the authority to pick and choose which information was posted. This does not make him a content provider. Those actions of appellant are no different than those found by the courts to be protected under the statute.... The People’s argument must fail because accepting their arguments would eviscerate protections provided by the statute, jeopardizing service providers and undermining free speech in the process. Bollaert also says the whole claim that having two sites suddenly makes it fraud makes no sense at all: Here, the People produced no evidence in support of their belated claim that appellant possessed personal identification information with the intent to commit fraud. CALCRIM 2401 describes fraud as having deceived another person in order to cause a loss of money or something of value or damage to a legal, financial or property right. The People belatedly raised the claim that payments made through “changemyreputation.com” were obtained by fraud because the victims were not aware that appellant managed both websites. Problems arise with the argument. First, the link to “changemyreputation.com” was visible on “Yougotposted.com.” There was no evidence suggesting appellant was trying to hide the fact that the sites were connected. A number of the victims stated it was “obvious” that the same person was behind both sites. (4RT pp. 305-306.) Additionally, the People’s argument must fail because the victims clearly believe the payment was to have the photos removed, not because they were “deceived”. Separate from all of this, both sides also are arguing about the extortion question, noting that a business model that offers to remove content is just a "standard business practice," and not extortion. Part of this argument is, again, buttressed by CDA 230, because the uploaded content was not uploaded by Bollaert himself, so (his lawyers argue) you can't claim that he both uploaded the content and then pushed people to pay him to take it down. It's that "other people uploaded it and thus, 230" claim that Bollaert argues makes this not extortion: The People argued that appellant used the posting of the photographs on the website to illegally obtain money from those whose photos were posted and to have the photos removed from the “Yougotposted” website. The People argued that appellant threatened to injure the victims or “expose their secrets” by publishing the images on the website. As the CDA provides, interactive computer service providers and access software providers are under no legal obligation to remove postings submitted to their website by third parties, even those postings that are negative in nature. Appellant was simply under no obligation to remove the negative content from his website. He merely offered a service to remove the photos and, by offering such a service, he is engaging in standard business practice and not extortion. They also argue -- and I will admit that this is a morally horrifying argument, if potentially legally sound -- that by simply posting the images first, without contacting individuals and asking for money to stop the posting, it's completely different than posting first and then offering a way to pay to take the content down. In this case the People proceeded on the theory that the third-party postings constituted exposure of a secret affecting the persons portrayed in the photos. The initial reaction is that appellant’s operation of the website and posting information provided solely by third parties simply does not constitute a threat to expose any secret as to the other persons because the alleged secret (photos) was already in the public domain and had been provided by third parties unaccompanied by any demand for payment. In this case there is absolutely no evidence any request was made through either “Yougotposted” or “changemyreputation.com” before the photos had been submitted by the third parties. In this case appellant merely provided a means whereby, for a fee, information already legally posted could be removed. Bollaert's lawyers also point to the recent lawsuit against Yelp, where some businesses claimed that Yelp would ask them to pay for advertising with a promise of more favorable reviews (and with some arguing that a failure to pay resulted in negative reviews). In that case (Levitt v. Yelp), the court found that even if that was what Yelp was doing (which Yelp denies), it's not extortion: The court found the plaintiffs had no pre-existing right to a positive review and that Yelp! was in no way obligated to refrain from manipulating reviews or creating negative ones. Yelp! was simply offering a service when it offered to remove negative reviews from its web page and that the offering of that service in exchange for money amounted to a legitimate business practice. And, of course, Bollaert argues that his situation was similar to Yelp's: In the present case, appellant, as an interactive computer service provider was under no legal obligation to remove the postings submitted to the website by third parties, even when those postings are negative in nature. As in the above cited cases, Yelp!, Yahoo!, AOL and the dating website in the Carofano case, as well as “TheDirty.com” case, appellant could legally decline to remove any offending content from his website. Offering a fast, efficient removal service through the site “changemyreputation.com” amounted to a legal practice, akin to the practices approved in Yelp!. No crime of extortion occurred. Yelp! offered to remove negative content for money. They were under no obligation to remove those negative reviews and they offered the additional service in exchange for a fee. This is a business practice, not extortion. The lawyers for the state of California, as you might imagine, don't like this argument very much. This case, however, is not about incidental harms caused by a free market economy run amok. Appellant is a criminal who intentionally harmed thousands of people, not a legitimate businessman. While many people knew the victims’ secrets (only because appellant had exposed them on his website), many others had not yet seen the photos and it was that threat of continued exposure that appellant used to extort money from the victims. Further, because the website contained the victims’ PII, and because appellant’s website required posters to provide that PII, appellant was obligated to remove the content and he was not simply providing a service that he otherwise had a legal right to perform. Basically they try to distinguish Bollaert's site from Yelp in a variety of ways. They also note that somewhat different laws apply (federal vs. state) and that posting personal naked photos along with identifying information is very, very, very different from posting negative reviews of a business. Frankly, this argument was the one that I expected to be most convincing, but which California's lawyers breeze through without much detail. Obviously, it will be interesting to see where the California state appeals court comes down on all of this. I do think that the identity theft claims are incredibly weak, and that the extortion claims look a lot weaker than I first expected. I really expected stronger arguments from California. And, it's pretty clear that Bollaert's site was something pretty horrible all around. But does that automatically make it illegal? As with many cases targeting the safe harbors of Section 230, there are important issues being raised about what constitutes an internet platform vs. who is responsible for actual content or behavior. Remember, with the nearly identical site that Bollaert basically copied, the operator there, Craig Brittain, merely got a slap on the wrist from the FTC for misleading people. It also dragged his name through the mud. Bollaert, at the very least, deserves that level of treatment. But does running a creepy website that enabled harassment create criminal liability that deserves 18 years in jail? That feels like a dangerous stretch of the law to punish a creep for being a creep. And when we start doing that, we create dangerous precedents for other platforms in situations that maybe aren't so creepy.Permalink | Comments | Email This Story

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Over the last year there has been a growing number of websites that have decided to "deal" with the rise of ad blockers by blocking ad blocking users entirely. Blocking the blockers was the recently recommended course of action by the Internet Advertising Bureau (IAB), which suggested the best way to have a "conversation" about ad blockers was to try and prevent them from being used. And while sites like the New York Times, GQ, Forbes and Wired have all happily pursued this course of action, their actual implementation has ranged from frustrating to downright comical. Mike has noted he doesn't use an ad blocker, yet is somehow blocked by all of these sites completely. I do use an AdBlocker and whitelist websites I care about, but even after whitelisting the entire Wired domain, this is what I see whenever I've tried to view a Wired story in 2016:This has been a problem since the website first announced it was going to be blocking adblock users earlier this year. At the time, Wired stated that ad block blocking was necessary because on an average day, 20% of Wired readers block Wired ads:"On an average day, more than 20 percent of the traffic to WIRED.com comes from a reader who is blocking our ads. We know that you come to our site primarily to read our content, but it’s important to be clear that advertising is how we keep WIRED going: paying the writers, editors, designers, engineers, and all the other staff that works so hard to create the stories you read and watch here."Wired's ingenious solution to this problem was to impose a system that's so shitty, it can't detect whether you use an ad blocker or not? A solution that's so ham-fisted it's actually pissing off and blocking users that have never even considered using an ad blocker? Like paywalls, Wired's also alienating editors and writers that might otherwise link to its content, but decide not to for risk of annoying their own readers. Wired's "solution" causes far more problems that it fixes, and so far the company's been mute to user complaints, likely in the hopes that annoyed users will just pony up $1 a month for its "ad free" option. Since users being sent to these websites are increasingly annoyed, moderators over at the technology subreddit have announced they're considering banning ad block blocking websites from the subreddit completely. They don't even mention that these blockers don't work, but they do point out that websites like Forbes have been pushing malware at users should they lower their defenses:"It has come to our attention that many websites such as Forbes and Wired are now requiring users to disable ad blockers to view content. Because Forbes requires users to do this and has then served malware to them we see this as a security risk to you our community. There are also sites such as Wall Street Journal that have implemented pay-walls which we were are also considering banning. We would like all of your thoughts on whether or not we should allow domains such as Forbes here on /r/technology while they continue to resort to such practices."It's entirely possible that the mods face pressure from higher up to avoid this route, but it remains an obvious indication of a growing annoyance among consumers, many of whom see ad blocking technologies as just another privacy and security tool. And like any such tool, the rise of ad block blocking has simply given birth to another game of cat and mouse -- the development of tools to help ad block users block detection more easily. Yeah, we're now busy blocking the blockers of blockers. This is the glorious "solution" to a problem that started with websites pushing too many poorly designed ads and intrusive technologies? So what has trying to block ad block users actually accomplished outside of annoying potential readers, reducing traffic and making your website look tone deaf and foolish? Here at Techdirt we let users disable ads, but simply ask they try to support us in other ways (the Insider Shop, Deals Store, or one of our crowdfunding campaigns). That seems like an easier route than forcibly trying to dictate what tools consumers can and cannot use. Meanwhile, if websites really want to have a "conversation" about ad blockers, the first step would be to really listen to customers when they explain why they're using them.Permalink | Comments | Email This Story

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Last week, the Intercept published Ed Snowden's powerful foreword to Jeremy Scahill's new book The Assassination Complex. The foreword is entitled: Whistleblowing Is Not Just Leaking — It’s an Act of Political Resistance. It's really worth reading. In it, among other things, he does note that there are very different kinds of leaking information. There are situations where you are alerting the public to important information. And then there are... other situations. Like what happened to former CIA Director, General David Petraeus: Not all leaks are alike, nor are their makers. Gen. David Petraeus, for instance, provided his illicit lover and favorable biographer information so secret it defied classification, including the names of covert operatives and the president’s private thoughts on matters of strategic concern. Petraeus was not charged with a felony, as the Justice Department had initially recommended, but was instead permitted to plead guilty to a misdemeanor. Had an enlisted soldier of modest rank pulled out a stack of highly classified notebooks and handed them to his girlfriend to secure so much as a smile, he’d be looking at many decades in prison, not a pile of character references from a Who’s Who of the Deep State. That's a pretty good summary of the "high court" situation that lets powerful people like Petraeus get away with passing on such information that could have legitimately put people at risk. So, it was interesting, just days later, to see a long interview in the Financial Times with David Petraeus, in which he's asked about Snowden (warning: the link may be paywalled). The interview covers many subjects, and the comment on Snowden is quite brief: Should Edward Snowden be prosecuted, I ask? “Unquestionably,” he replies. “If Snowden had wanted to help that debate he could have very easily been a whistleblower who could have gone to the appropriate organisation and offered his views. He didn’t.” This is bullshit on so many levels. First, it's bullshit because Petreaus himself got off with barely a wrist slap for his own activity, which had nothing to do with whistleblowing and appeared to be much more dangerous than what Snowden did. Second, as Petreaus absolutely knows, the intelligence community does not treat whistleblowers well. Previous whistleblowers, including Thomas Drake, basically had their lives destroyed as punishment for using the "appropriate" channels for whistleblowing. Hell, just last week, we wrote about yet another case of an intelligence community whistleblower, who used the "appropriate" channels, suddenly having her home raided and her career in shambles. Third, it's bullshit because even in using the "appropriate" channels, as an NSA contractor, Snowden was not protected from direct retaliation for whistleblowing. Fourth, it's bullshit because the "proper channels" would just be to run it up the line of people who thought it was hunky dory to lie to the American public to reinterpret the PATRIOT Act to enable them to spy on everyone's communications data. That wouldn't have done anything. Fifth, it's bullshit because once the information actually did get out through the press -- which never would have happened through "appropriate channels," it has set in motion a number of changes, among companies, individuals, Congress and the intelligence community. That's the point of whistleblowing, to actually change the behavior through alerting more people to what's going on. But, really, it seems especially idiotic that someone in Petreaus' position would weigh in so hypocritically on Snowden's situation.Permalink | Comments | Email This Story

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Learn how to find holes in online security systems and how to fix them with the Ethical Hacker And Pentester Pro Bundle. Pay what you want and get two courses covering the agile Go programming language and the Java offshoot Scala. If you beat the average price ($13.59 at the time of writing), you gain access to 7 other courses and over 125 additional hours of instruction covering Haskell, Django Unchained, Python, Kali Linux and more. Your purchase will also do some good in the world as 10% of the proceeds go to charity. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Last year, we wrote about a somewhat speculative article by Charles Duan from Public Knowledge, connecting the ridiculous result of the Oracle/Google fight on the copyrightability of software APIs, to the idea of trying to claim copyright in a language, with a particular focus on Klingon, the made up language from the Star Trek universe. And, then, of course, back in March, that speculative hypothetical became much more real, when Paramount's lawsuit against a Star Trek fan film did, in fact, argue that Klingon was covered by copyright, and that the fan film violated that copyright. A bunch of things have happened since then, as this mess careens towards trial, and we wanted to catch you up. First, the lawyers for the fan film, put together by Axanar Productions, challenged many of the claims made by Paramount in its amended complaint, noting that many of the things listed as copyright infringing, clearly were not -- including the language of Klingon. The Klingon language... itself is an idea or a system, and is not copyrightable. As the Supreme Court held in the context of a system of bookkeeping, although copyright protects the author’s expression of the system, it does not prevent others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere allegation that Defendants used the Klingon language, without any allegation that Defendants copied Plaintiffs’ particular expression of that language, is therefore insufficient to state a claim for copyright infringement as to any protected element. That filing similarly challenged the idea that costumes (such as "gold shirts") or geometric shapes (like "triangular medals on uniforms") were copyrightable. Oh, and also lots of things that clearly predate the Star Trek universe, like the idea of transporters ("have existed in science fiction since 1877") and warp drive ("have existed in science fiction as early as 1945"). Paramount Pictures, not surprisingly, disagreed on all of this, insisting that all of these things absolutely were legitimately covered by copyright. First, it argues (somewhat convincingly...) that the issue is not these individual items, but rather the entire collection of them, creating a "world" that is covered by copyright, and that the fan film is obviously creating a derivative work, which they claim infringes. But then Paramount Pictures decides to attack the claims that these individual things can't be covered by copyright anyway. On the question of copyright in Klingon, they actually argue that Axanar's argument "is absurd." Language is part of dialogue, which represents one aspect of the Star Trek Copyrighted Works and may be considered (at a later point) in a substantial similarity analysis.... Defendants argue that the Klingon language is not copyrightable because it is a useful system... Again, this issue is not yet before the Court – and certainly is not an issue to be addressed on a motion to dismiss. Moreover, this argument is absurd, since a language is only useful if it can be used to communicate with people, and there are no Klingons with whom to communicate. The Klingon language is wholly fictitious, original, and copyrightable, and Defendants’ incorporation of that language in their works will be part of the Court’s eventual substantial similarity analysis. Defendants’ use of the Klingon language in their works is simply further evidence of their infringement of Plaintiffs’ characters, since speaking this fictitious language is an aspect of their characters. And then things got even more fun. A group called the Language Creation Society, represented by Marc Randazza, sought to file an amicus curiae (friend of the court) brief, which is well worth reading, in part because the section headings, along with a few key words, are in Klingon. For example, there's this: If you're wondering, the footnotes reveal the translation. The ending of the first paragraph would read as "it lacks reasons." The two words in the latter paragraph are translated as "pathetic" and "arrogant." The pronunciations are also included in the footnotes, but I'll let you explore those yourself. The full brief is worth reading as it lays out, in great detail, why Klingon cannot be covered by copyright. It goes through a bunch of legal reasons, with caselaw citations, and then also points out conceptually just how stupid this is: To claim copyright in a language is to claim ownership over all possible thoughts and artistic expression that might employ that language. If not ownership, such a claim at least provides some support for the idea that the copyright owner could, at some point, simply pull the plug on any future development in the language. It is a breathtakingly vast legal assertion that encompasses particular expression that the claimed copyright owner, by definition, cannot even conceive of. The filing also points out how silly the assertion above, by Paramount, that since there are no Klingons to communicate with, it's not a language and therefore is copyrightable: First, this is a non-sequitur; a process or system need not be “useful” in order to preclude copyright protection, and Plaintiffs provide no authority to the contrary. But more importantly, this is an insulting assertion. Many humans speak Klingon. The annual qep'a' involves singing and storytelling in Klingon. (See Exhibit 6.) People get married in Klingon. (See Exhibit 10.) Linguist d'Armond Speers even spent three years teaching his infant son to speak Klingon. (See Tara Bannow, “Local company creates Klingon dictionary,” MINNESOTA DAILY (Nov. 17, 2009), attached as Exhibit 12.) Speaking and writing in Klingon is not simply a matter of transposing words from a different language, either; it has an unusual grammatical structure that provides a different connotation than other languages.... And insult aside, Plaintiff’s contention is absurd. A language is not constrained to a given ethnic or racial group. By their logic, Ancient Greek is not “useful” because the Ancient Greeks are no longer with us, and the language has no native speakers, despite it being the original language of some of the seminal literary and philosophical works of the western world. Plaintiffs’ logic would seem to dictate that French is not “useful” if spoken by a native German. Well, it probably won't surprise you to find out that Paramount Pictures and its pricey lawyers weren't too pleased about Randazza's/Language Creation Society's filing. They've filed an opposition. They argue (perhaps correctly), that the filing comes way too late, but also claim that the issue of the copyright in Klingon is "not before the court." In its application and amicus brief, LCS is asking the Court for an advisory opinion on whether fictional languages are copyrightable. This is not at issue in the motion to dismiss. At the motion to dismiss stage, the Court will determine whether Plaintiffs have sufficiently alleged the existence of their Star Trek Copyrighted Works and whether Plaintiffs have alleged infringement by the Defendants. The Court has not been asked to perform a substantial similarity analysis at this stage of the proceeding, and especially not to determine the independent copyrightability of the Klingon language (or fictitious languages in general) outside of context of Star Trek works. Instead, they argue again that Klingon is just one piece of the puzzle that they're using to show that Axanar is an infringing work. But, of course, that makes no sense. Because they were the ones who started this off by claiming that Klingon was covered by its copyright. And if Klingon is not copyrightable, then they can't make use of it as an example of how Axanar is infringing. Meanwhile, Axanar Productions then hit back at Paramount Pictures in a new filing on Friday, claiming that in its opposition to the Language Creators' brief, it "raised new arguments." First, while Plaintiffs now argue that the Klingon language is “merely one aspect of the Star Trek Copyrighted Works” and that Defendants’ use of Klingon is “further evidence of their infringement of Plaintiffs’ characters” (Dkt. 38 at 3-4), in the First Amended Complaint (“FAC”) Plaintiffs do not limit their allegations in this way. In the FAC, Plaintiffs claim ownership over “Klingons” as a race (FAC at 12) and over the appearance of Klingons (FAC at 13-14), and they claim separately to own the “Klingon language” (FAC at 32). In fact, the Klingon language is listed as a “Star Trek Copyrighted Work” according to the chart in the FAC. Id. Plaintiffs are hard-pressed to link their claim to the Klingon language to an actual character when their FAC does not identify a single specific Klingon character, let alone any character they claim Defendants have infringed through using the Klingon language. They also point out that the question of whether or not Klingon is covered by copyright is pretty important in establishing whether or not Paramount has a legitimate claim: Indeed, like recipes in a cookbook, while the Klingon Dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expression flowing from the Klingon language system are simply not protected. This Court should decline to allow Plaintiffs to stifle expression in Klingon when this matter can be resolved now as matter of law. And, yes, it's amazing that a copyright lawsuit has resulted in someone begging the court not to "allow Plaintiffs to stifle expression in Klingon." What a world we live in. The Axanar filing also accuses Paramount of shifting standards when convenient: Plaintiffs’ Opposition to the Motion claims that substantial similarity analysis is “unnecessary” here. Opp. (Dkt. 31) at 11:7-9. But now, Plaintiffs are reversing course and suddenly claiming that the individual works they alleged in the FAC are just pieces for a broader substantial similarity analysis. Plaintiffs cannot invoke the substantial similarity test only when convenient, and cannot complain about parsing out Plaintiffs’ claim to the Klingon language when their FAC does just that. FAC at 32. Further, the FAC remains unclear about (1) which episodes and films that Plaintiffs claim to own are at issue here (rendering it impossible to even begin to engage in any substantial similarity analysis), and (2) how the Court could engage in a substantial similarity analysis with respect to the Potential Fan Film when it has not yet been made. Needless to say, there's likely much more to come on all of this, and I imagine that it will continue to be quite entertaining. That said, while the larger issue may seem silly, the underlying issues here are of extreme importance. As in the Oracle/Google case, allowing copyright over something as simple as instructions or the concept of a language, represents a massive expansion of copyright law in a manner that clearly stifles both innovation and expression. We should be quite worried when courts are willing to allow such absurdities.Permalink | Comments | Email This Story

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Hey, remember last week, when lots of folks were super excited about the US House of Representatives unanimously voting in favor of the Email Privacy Act? They voted 419 to 0. That kinda thing doesn't happen all that often. I mean, sure it happens when condemning ISIS, but they couldn't even make it when trying to put sanctions on North Korea. Basically, something needs to be really, really screwed up to get a unanimous vote in the House. And the Email Privacy Act, which goes a long way (though not far enough) towards fixing ECPA (the Electronic Communications Privacy Act of 1986) that makes it way too easy for the government to snoop on your electronic communications, actually got that unanimous vote. So it should be moving forward and well on its path to becoming law, right? Right?!? Well... about that. You see, as we'd mentioned in the past, the SEC has been the main voice of opposition to the Email Privacy Act, since it (along with the IRS), kinda like the fact that they can snoop through emails without a warrant. Never mind that it's probably unconstitutional, it makes their jobs so much easier. And, really, isn't that the important thing? Apparently, Senator Chuck Grassley thinks so. And, hey, bad luck for, well, everyone, because Grassley just happens to be the guy in charge of moving the bill forward on the Senate side. And he's not having any of it right now, claiming that there are "concerns" about the bill: “Members of this committee on both sides of the aisle have expressed concerns about the details of this reform, and whether it’s balanced to reflect issues raised by law enforcement,” said Sen. Charles Grassley, the chairman of the Senate Judiciary Committee, on Thursday. Concerns? It didn't seem like anyone in the House was concerned about it because (I should remind you) it passed unanimously. And that's because it's really only making fairly common sense changes to the law to require a warrant (as required by the 4th Amendment) to snoop on emails. And just what "law enforcement" issues have been raised? Sounds like it's our friends at the SEC yet again: The Securities and Exchange Commission is still fighting a House-passed bill to require law enforcement to get a warrant before obtaining messages from email providers. “[The Email Privacy Act] would create a dangerous digital shelter for fraudsters,” SEC Enforcement Director Andrew Ceresney said in a statement to POLITICO. “The privacy interests the bill addresses can be fully achieved without blocking civil law enforcement agencies like the SEC from obtaining the evidence it needs to protect investors.” No. Actually, it doesn't create a "digital shelter for fraudsters." That's SEC Enforcement Director Andrew Ceresney lying through his teeth. It just means that the 4th Amendment needs to be obeyed when obtaining emails that are hosted on cloud providers. Just like a warrant is needed to obtain someone's personal papers. It's not creating a digital shelter. It's harmonizing the rules for digital content so they match the rules for physical documents and communications. And, in doing so, protecting the privacy and the very concept of the 4th Amendment. Either way, all that momentum in the House may be for nothing if the SEC and Grassley get their way.Permalink | Comments | Email This Story

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Last month, you might recall that Netflix found itself at the center of some "controversy" after it admitted it was throttling AT&T and Verizon customer Netflix streams to 600 kbps. At the time, the company stated it was only doing so to help out customers on metered usage plans. Netflix also stated that it wasn't throttling the streams of Sprint and T-Mobile users, since "historically those two companies have had more consumer-friendly policies" (read: still offer unlimited data plans). The cable industry and net neutrality opponents quickly tried to claim Netflix's admission meant the company was a hypocrite on net neutrality, with some even calling for an "investigation." The telecom industry's PR push was short lived however, given most people realized that Netflix was actually trying to help consumers out, and it's kind of odd to punish a company for technically throttling its own service. At the end of the day, the consensus was that the only real thing Netflix did wrong was not being fully transparent about what it was doing, and why. Fast forward to this month and Netflix says it has now released a tool that will let users control themselves whether their stream is throttled, and how much. According to a company blog post, all users on mobile plans will now be throttled to 600 kbps, though you'll have the option of changing that in the settings of the latest version of the app, including setting it to unlimited streaming. Notes Netflix:"The default setting will enable you to stream about 3 hours of TV shows and movies per gigabyte of data. In terms of bitrates, that currently amounts to about 600 Kilobits per second. Our testing found that, on cellular networks, this setting balances good video quality with lower data usage to help avoid exceeding data caps and incurring overage fees. If you have a mobile data plan with a higher data cap, you can adjust this setting to stream at higher bitrates. Our goal is to give you more control and greater choice in managing your data usage whether you’re on an unlimited mobile plan or one that’s more restrictive." So, the story ends with Netflix giving consumers a tool to manage their own usage, and being totally clear about what they're doing, which should make everybody happy, right? Not so much. Net neutrality opponents at TechFreedom were quick to blast the media with a press release trying to claim that Netflix was being held to a different standard:"Three cheers for Netflix for user empowerment, but there’s no principled reason why broadband operators shouldn’t be able to give users the same option,” said Berin Szóka. “The rhetoric for ‘net neutrality’ has always been about user empowerment. But the FCC wound up writing a hard-line rule that seems to completely ban broadband providers from adjusting video quality even if users want that. That’s crazy. It means consumers won’t get the kind of master interface that can manage quality across all video platforms — which, in turn, would make ordinary users comfortable experimenting with multiple video platforms." That is, unfortunately, a very confused interpretation of what net neutrality actually is. Net neutrality rules are only necessary in telecom due to the lack of competition. Without competition, ISPs can use their monopoly over the last mile to hinder competitors or competing services (of which there are numerous examples), or to give their own services an unfair market advantage (something both Comcast and Verizon are currently doing with zero rating and usage caps). Users can, in stark contrast, stop using Netflix should they find the company engaging in anti-competitive behavior. Ever since Netflix started speaking out about things like usage caps and net neutrality, the company's been targeted by the telecom industry and its loyal allies as the very worst sort of villain. In this case, the difference between Netflix trying to help capped users and ISPs using a lack of competition to unfair advantage -- should be night and day to most people. Unless of course you're desperately clinging to the false narrative that net neutrality isn't a real issue, and think a generation of easily documentable anti-competitive behavior on the part of incumbent ISPs is some kind of mass hallucination.Permalink | Comments | Email This Story

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We've written many times about the insane levels of secrecy around various trade agreements, including the TTIP agreement that is being worked on between the EU and the US. Basically, everything gets negotiated behind closed doors -- though certain lobbyists get full access -- and then it will be presented as a final document when it's too late for the public to actually weigh in. It's the ultimate in corrupt processes. In the past the USTR has admitted that it demands such secrecy because if it had to reveal its positions publicly, the public wouldn't support the agreement. In the US this has led to ridiculous situations like such as when Senator Ron Wyden, who at the time was the chair of the Senate's subcommittee on international trade, was not allowed to bring a staffer of his, who is an expert in international trade, with him to read the latest text of a trade negotiation. Because that went against the rules. And it's been standard practice in the US that if a politician does want to see the documents, they can't bring anything with them (not just no staff, but no electronics, no way to write anything down). They can just "read and retain." The EU has been following the US's lead on this, with special "reading rooms" for elected officials where someone watches over their every move. Again, they're not allowed any electronics. They are allowed a pen and are given paper to write on, which is a modest improvement on the USTR's system, but still ridiculous. A Member of the European Parliament, Luke 'Ming' Flanagan, decided that he was going to go have a look for himself, and had someone film his attempt: It's not exactly great filmmaking, but it does show how he has to give up his electronics and sign a document before entering the room (quickly, so as not to allow anyone to see what's in there). And then he comes back out after being handed a document saying that it's also against the law for him to copy down anything from the draft text verbatim. He expresses his concern about how ridiculous this is and is told to take it up with someone else, who then tells him that he should be happy that MEPs can even view the document at all within the EU Parliament, and that this is a "great achievement." This is, of course, already pretty ridiculous. And then it got more ridiculous because the European Parliament demanded that Flanagan take down the video, something he is refusing to do: Just been contacted by staff from within the Euro Parliament and told I must remove this video. I won't be. #TTIPhttps://t.co/JkVLDyxMdQ — Luke 'Ming' Flanagan (@lukeming) May 4, 2016 According to a news report, the EU Parliament claims it wants the video taken down to protect the name of a staffer, but Flanagan points out that staffer names are already public. “The reason given (for removing the video) is that no permission for filming was received from the parliament,” Flanagan told TheJournal.ie. An assistant of MEP Bernd Lange appears in the video, and Lange wants her name removed, the MEP claimed. “It’s important to note that all assistants are already openly identified on the EP website,” Flanagan added. It seems pretty clear that the EU Parliament isn't pleased with the contents of the video. Of course, in demanding it be taken down, it's only served to drive that much more attention to the video. I doubt I would have heard about it otherwise. Funny how that works. Either way, it continues to raise questions about what kind of democratic process there is when these kinds of regulations are written in secret, with the help of lobbyists, and even the legislators themselves are basically barred from seeing or understanding what's in them. And then when those legislators highlight how ridiculous this is, the powers that be try to silence them.Permalink | Comments | Email This Story

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posted 21 days ago on techdirt
This week, we told the story of the FBI's harassment of a Tor developer, to an understandably outraged response. That One Guy won first place on the insightful side by digging in to just how threatening and foreboding the agency's actions were: Taking notes out of 'Creepy Stalkers 101' I see One of the most disturbing aspects to this is the continued insistence on a physical meetup, as though it simply wasn't possible to have the discussion over the phone or online in some way. Given the repeated insistence on a physical meeting, refusal to state what they wanted her for, and the not so veiled insinuation that they'd really rather not have her lawyer present, yeah, I'd say she had plenty of reason to be worried. We also saw a partly disappointing ruling this week when a judge told Twitter that revealing statistics on NSLs and FISA Court orders was not protected speech. An anonymous commenter won second place for insightful (and hit third place for funny) by suggesting another legal tactic: The third party doctrine should apply here, by giving the company the letters and warrants, the government has no expectations of privacy. For editor's choice on the insightful side, we start out with one more nod to That One Guy for pointing out a delightful detail of an Australian government commission's shockingly excellent report on intellectual property: Using a right to show why it's important Got to love how the section of the report dealing with fair use starts with a snippet from another report to list it's claims so that they can then be addressed, something that would not be legal were it not for fair use. Next, in response to a case in which the DOJ's "good faith" defence for warrantless Stingray usage fell flat, an anonymous commenter wondered just how much strain the notion of good faith could really take: "Good faith exemption" How did that argument go? "We did everything we could to keep the use of this device secret from the courts and the defense attorneys, by using NDA's and having the US Marshals to come in take any record of their use before a court could force us to turn them over.... because we thought it was legal?" Over on the funny side, for first place we return to the story about the FBI's pursuit of a Tor developer, where it was hard to ignore the coincidence that the developer in question bears the surname "Isis". One anonymous commenter figured this would just make for interesting clickbait: I can see the headlines: "TOR software developed by Isis, with financing from the US government!" In second place, we've got a comment from TheResidentSkeptic also in response to Australia's copyright report, and the potential fallout: News from the FAA Every private jet in Hollywood has filed a flight plan to Australia on an "emergency flight" basis. All airlines are requesting extra flights due to sudden demand from law firms and lobbyist organizations. For editor's choice on the funny side, we've got two comments that scored high in both funny and insightful votes. While our second place winner predicted the reaction to Australia's report from the private copyright industries, Vidiot anticipated a rapid assist from the USTR: Coming up... ... a top slot in "Mid-2016 Special 301 Report - Rise of the Aussie Outlaws"! Come on, RIAA... what did you expect from a nation colonized by pirates? Finally, we return to Twitter's first amendment struggles with revealing supposedly classified statistics, where icarusthecow wondered why the government was so concerned in the first place: Hmm, funny they should be so secretive... after all, It's just metadata right? That's all for this week, folks! Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
Five Years Ago This week in 2011, the copyright nonsense was happening at home and abroad. The White House published its infamously terrible Special 301 Report to complain about countries with more enlightened views on copyright. Meanwhile, leaked cables revealed that New Zealand was also on the growing list of countries where the US tried to directly write new copyright laws. In Brazil, which had always been more progressive on the copyright front, citizens were asking the government not to throw out all that hard work. Things continued to go bad for Righthaven as unsealed documents brought scrutiny to many of its cases, so it hired a "star" copyright lawyer to try to right the ship. A judge slammed John Steele's latest fishing attempt, too. Ten Years Ago The same week in 2006, the big content industries were doing the same thing with international copyright: trying to get more favorable laws by playing geopolitical leapfrog. One lawyer filed a motion asserting that the RIAA's $750-per-song infringement fines were unconstitutional, though really the RIAA just should have noticed that fans will pay for music if given a good reason (and that in the movie world, the war on piracy was not working). There was a push in congress for a new law forcing ISPs to retain data on users, and it was receiving surprisingly little pushback. In response to what opposition existed, the law's backers acted mystified that anyone could possibly have any issues with the plan. Didn't congress have anything better to do, like putting online poker players in jail for some reason? Fifteen Years Ago This week in 2001, we were in the midst of some of the early fears about Chinese cyber-attacks — but these fears were amusingly misdirected at run-of-the-mill website defacements most likely performed by average script-kiddies (or perhaps hackers for hire). Documentarians were clambering over each other to cover Silicon Valley, and random unsubstantiated claims like "the internet as addictive as gambling" were all the rage. But the biggest source of buzz in the tech world was the fast-approaching release of the X-Box. Napster was in some unsuccessful talks with Microsoft, while some were pointing out that file-sharing has history on its side. Aimster was going on the offensive, suing the RIAA in what appeared to be a publicity stunt. Thirty-Eight Years Ago "Spam" existed in various forms (and without that name) prior to the digital era, but May 3rd marks a notable milestone: the first mass unsolicited digital communication, in 1978. It was an advertisement for a new computer, sent in bulk to 393 recipients on ARPANET (who were, for the most part, none too thrilled). Permalink | Comments | Email This Story

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posted 22 days ago on techdirt
This week, we've got two new crowdfunded tools for 3D creation — though only one is for 3D printing. PolySmooth The PolySmooth is a 3D printer with one straightforward goal: to smooth and refine 3D printed objects, closing the quality gap with mass-produced plastic parts. At its core, it's a standard extrusion-based 3D printer, but it includes two key innovations: a new base material specifically designed to be easily and fully polished, and a spray system that coats the objects in alcohol mist to do the polishing. The end result is extremely smooth, high-gloss surfaces that are the opposite of what you picture when you think of 3D printing. The new material is PVB-based, and designed to be basically identical to the more typical PLA polymer in all but this one critical way, so it's compatible with other extrusion printers. The material alone has advantages, but it's the polishing mister that works the real magic. FormBox 3D printing may be the flagship of the maker fleet, but it's not the only technique available. The FormBox offers the ability to create vacuum-formed objects — not as useful for brand new creations, but extremely useful for making molds and copies of existing objects. It works with a wide variety of sheet thermo-plastics, and of course when making molds they then work with all sorts of materials, from resin and silicon to ice and chocolate. But the key to the whole thing is how it manages to put vacuum-forming capabilities in a desktop-sized package to begin with: by using a regular home vacuum cleaner. It hooks up to just about any vacuum using a universal connector in order to work its magic, leaving the unit itself at a reasonable cost well under $500. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
It's a sad commentary on the state of transparency these days that whistleblowers have come to play such an important role in revealing wrongdoing and abuse, as numerous stories on Techdirt attest. At the same time, whistleblowers enjoy very little protection around the world. Indeed, a countervailing trend to strengthen protection for so-called "trade secrets" makes it increasingly risky to be a whistleblower today. A case in point is the European Union's new law on trade secrets, which completed its passage through the EU legislative process last month. Although it contains some protections for whistleblowers, many feel they are insufficient. Here, for example is Julia Reda, the representative of the Pirate Party in the European Parliament: The new law also created major uncertainties about the role of whistleblowers and investigative journalists. All information, including information about malpractice, can be protected as a trade secret. As a result, the burden of proof that the public interest outweighs the business interest will now always lie with the whistleblower. To remedy those flaws, the Greens/EFA group in the European Parliament has put together a draft law. As well as the detailed text, there is a FAQ and a useful two-page summary, which is probably the best place to start. The proposed EU Directive would introduce a uniform law protecting whistleblowers across the European Union. It would apply to both current and former employees and contractors, in all business sectors, both private and public."Protected Disclosures" in this context: concern harms or threats to the public interest that have occurred, are occurring at the time of the disclosure, or are likely to occur. Protection is given also to whistle-blowers who disclose inaccurate information in honest error. The intention behind the disclosure doesn't matter: what counts is whether it is in the public interest. Whistleblowers may use any channels, whether official or unofficial, and can be anonymous. One of the most important aspects of the proposal is the protection that would be offered: exemptions from criminal proceedings related to the protected disclosure, including but not limited to prosecution for the disclosure of classified information, trade secrets or otherwise confidential information, exemptions from civil proceedings and disciplinary measures, and prohibitions of other forms of reprisal, including inter alia dismissal, demotion, withholding of promotion, coercion, intimidation, etc. Action taken against individuals other than the person who made the protected disclosure (for example colleagues or family members) may also constitute prohibited reprisal. The situation regarding classified information and trade secrets is further clarified in the FAQ: The Directive protects whistle-blowers who disclose trade secrets as well as confidential information related to national security, though a specific procedure is envisaged for the latter. In case of an overlap or clash between the whistle-blower protection directive and the trade secrets directive, the provisions to protect whistle-blowers must be complied with. The same is true where the information relates to national security issues. Thus, protection of trade secrets may not be invoked to the detriment of the whistle-blower concerned, even if the information revealed is not actually illegal in itself. That approach is likely to be unpopular with many EU governments and businesses, which will make turning this whistleblower proposal into law a tough battle. Nonetheless, the Greens obviously hope that releasing this draft -- which has no formal legal status -- will help to raise awareness of the need to protect whistleblowers, and ultimately prod the European Commission into proposing its own solution to the problem. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
According to documents released to the ACLU, the Oregon DOJ has problems complying with both state and federal laws. Law enforcement agencies are forbidden from conducting surveillance of First Amendment-protected activities unless they can demonstrate beforehand that there is evidence of criminal activity tied to it. But the DOJ's own presentations suggest agents should perform surveillance first and fix it in post. According to its instructions, agents should be "creative" when looking for justification for surveillance of First Amendment-protected activities. Literally, "any crime will do." Any crime will do - But look for… Trespassing Criminal mischief Disorderly conduct Harassment Tax crimes Explosives Weapons offenses and… RICO Most of these "crimes" are misdemeanors that would hardly justify the manpower needed for surveillance. But when the surveillance is an automatic social media dragnet, the opportunity costs go down. This presentation is the front-end of the problem. The back end is officers looking for "suspects" using search terms that would almost exclusively return hits based on First Amendment-protected activity. In the one case cited by the internal report, #blacklivesmatter was used as a search term, triggering a wrongful investigation with no criminal nexus. Although the bogus hunt was later called off by DOJ officials, evidence exists that similar searches were performed by others. Because the agency was only using a trial version of its social media monitoring software (Digital Stakeout), the other searches were not saved and could not be verified by investigators. The DOJ's report calls the one it does have information on an "isolated incident," but appears to only be doing so because it was unable to recover more information on similar searches admitted to by agents with access to the software. But the disturbing part isn't so much the bogus surveillance as it is the DOJ's encouragement of this activity. Another slide from the same presentation make it clear the standard m.o. is to surveill first and justify later. This slide refers to the statute forbidding the same surveillance the DOJ is telling officers to engage in. Summary of 181.575 If the information you are collecting involves a religious, social or political view, activity or association, you MUST have reasonable suspicion of a crime related to the subject. Use creativity and articulate your reasonable suspicion in some way. Think of a wide variety of crimes to form the basis of collecting the information you need. In other words, make something up using the most tenuous of "criminal" connections to justify the surveillance you want to engage in. In the case cited by the report, an agent used Digital Stakeout to disappear down a First Amendment-violating rabbit hole. On September 30, 2015, Agent [redacted] used Digital Stakeout to conduct a search on the keyword search term “#blacklivesmatter” combined with “#fuckthepolice” (“the search”). He focused his search on Salem, Oregon, which yielded results that included Twitter posts by Erious Johnson, Jr. [Redacted] believed that some of Mr. Johnson’s posts were threatening to the police and he verbally shared his concerns with Special Agent in Charge David Kirby. Mr. Kirby verbally described the concerning posts to Mr. Tweedt, and based on the description, Mr. Tweedt recommended to Deputy Attorney General Fred Boss that prepare a report on his search and the findings. Mr. Boss approved this recommendation and was then directed to write the report. On October 1, 2015, [redacted] prepared and presented to Mr. Kirby a report he referenced as “Possible threats towards law enforcement by DOJ employee.” This report was a single page memo with an attachment that included several pages of posts that printed directly from Mr. Johnson’s Twitter feed rather than from Digital Stakeout. See Ex. F. On October 8, 2015, Mr. Kirby delivered the report to Deputy Chief Counsel Stephanie Tuttle. In an email to Mr. Tweedt, Mr. Kirby reiterated his concerns about the crosshairs image and gave Mr. Tweedt a detailed description of the image and the accompanying language. Upon reading Mr. Kirby's detailed description, Mr. Tweedt emailed Mr. Kirby that the image was actually the logo for the “rap group” Public Enemy. See Ex. G. On October 8, 2015, Ms. Tuttle left report on Mr. Tweedt’s office chair. On October 12, 2015, upon his return from out of town travel, Mr. Tweedt reviewed the report. On October 13, 2015, Mr. Tweedt gave the report to Mr. Boss, who at some point thereafter gave the report to Attorney General Ellen Rosenblum. On October 20, 2015, the Attorney General called Mr. Tweedt into a meeting with herself and Mr. Boss, during which she expressed her extreme displeasure over the report by because she believed he had engaged in racial profiling. She instructed Mr. Tweedt to find anti-racial profiling training for the Special Agents, and ordered that all SMMS use be immediately discontinued. Further details from the report show that there was no reasonable suspicion of criminal activity, but lots of resentment over the general tone of the posts the search turned up. He interpreted what he saw to be a threat toward law enforcement, so he clicked on the image, and then found an assortment of other pictures that he considered threats toward law enforcement. When he looked at the name associated with these images, he thought it was Mr. Johnson, the Director of Civil Rights who worked in the building, and he could not imagine him posting “all this hate stuff and especially anti-law enforcement stuff since he worked with us.” He showed the posts, which included Mr. Johnson’s photograph, to [redacted] who confirmed it was Mr. Johnson. and encouraged to show the results to Mr. Kirby. [Redacted] stated that other images on Mr. Johnson’s Twitter page depicted cartoons showing law enforcement to be “complete jerks”; that a political cartoon showing white police officers shooting at a statue of Martin Luther King “makes it appear that law enforcement hate everything that Martin Luther King stood for”; and that his posts were “making all white people appear to be racist.” [Redacted] thinks that anyone who came across Mr. Johnson’s name in a search would hold the same opinion. He felt that Mr. Johnson’s posts showed a lot of hate. [Redacted] was also disturbed by Mr. Johnson’s August 24 post, which depicts what thinks is an image of rap group N.W.A.’s album cover that he remembers seeing when he was approximately 16 years old. He described the image as showing a beat up and bloodied police officer being held in a headlock while the city burns in the background, with the caption, “Three Cheers for Gentrification.” Because the agent involved was so certain that law enforcement officers were being targeted for violent acts, he allowed his imagination to run wild. The Public Enemy logo seen in one post was somehow interpreted to be a state trooper in crosshairs. [Redacted] (and many others) made this assumption. I recognized the image as the logo for the hip hop group Public Enemy and the silhouette in the image as an individual wearing a hat that was popular urban fashion in the rap music industry. Note that Mr. Tweedt also recognized the logo after Mr. Kirby described it in an email. See October 8, 2015 email string attached as Ex. G. Public Enemy member and creator of the logo Chuck D has explained, “The crosshairs logo symbolized the black man in America …. A lot of people thought it was a state trooper because of the hat, but the hat is one of the ones that Run-DMC wore. The B-Boy stance and the silhouette was more like the black man on the target.” And the supposed "N.W.A. cover" supposedly inciting violence towards police officers was nothing of the sort. From the DOJ investigator: I am unaware of any such N.W.A. album cover. The image is actually a photograph of a painting that hangs in the Know bar on Alberta Street in Portland, Oregon. The neighborhood where the Know is located is widely recognized as a gentrified neighborhood, and the bar is a punk/rock bar. It appears that rather than a post meant to celebrate violence directed at police officers, Mr. Johnson’s caption, “Three Cheers for Gentrification,” may have been intended as an ironic comment about the content of the art work hanging in a punk bar located in a gentrified Portland neighborhood. [Redacted] comments about this post, the crosshairs post and other of Mr. Johnson’s posts demonstrates a possible lack of cultural awareness that may have affected his perception and led him to experience a heightened sense of concern. The DOJ's unofficial policy of "search first, justify later" fed into the circle-the-wagons mindset of the agent performing this search, resulting in him seeing criminal conspiracies where there were none and -- more disturbingly -- treating criminally-focused hate groups and non-criminally-focused activists as equals in terms of law enforcement surveillance. It is concerning that [redacted] sees no distinction in this regard between Volksfront, a group founded on the premise of white supremacy and a reported goal to “repatriate minorites”; OMGs, which are known to engage in drug trafficking, crime rings, theft, gang violence, etc.; and #blacklivesmatter, which is a self-described, “online forum intended to build connections between Black people and our allies to fight anti-Black racism, to spark dialogue among Black people, and to facilitate the types of connections necessary to encourage social action and engagement.” Well, the DOJ seems to see "no distinction" between criminal activity and stuff it just wants to keep tabs on, even if said stuff is protected activity, so it's hardly surprising someone in its employ felt the lines were blurred enough to justify a social media search for a hashtag linked to activism -- and who after the fact used his "creativity" to create an aura of danger around a bunch of controversial, but certainly not threatening, posts. 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posted 23 days ago on techdirt
If you're not a dog or cat person, maybe you prefer fish or some other pet that doesn't require too much attention. If vertebrates -- or even invertebrates -- are too evolved for your liking, some folks have come up with a few jellyfish aquariums that might suit your tastes. You still need to take care of these creatures, and they're not immortal (unless your name is Shin Kubota), unfortunately. Jellyfish Art has a jellyfish aquarium that looks convenient. At about $340 for the supplies and 3 live moon jellies, it's not exactly an impulse buy like a pet store goldfish. [url] The Darwin Tank is another very nice, but expensive jellyfish tank for nearly $2000. And in case you were wondering, the tank's name doesn't mean that you're trying to pit your pet jellies against each other to cultivate the fittest jellyfish specimen that can live in a glass container. [url] The "original" desktop jellyfish tank on Kickstarter was funded in 2012. It's still available from Jellyfish Art for a bit less than the latest aquarium design, but it's temporarily out of stock for a bit. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Because we talk a great deal about trademark law here at Techdirt, it occasionally leads us writers down interesting reading paths. One such path I recently traveled led me to a Gamasutra community post written by attorney Stephen McArthur, a lawyer who has built something of a specialty in video game industry law. The theme of the post is that anyone crowdfunding the production of a video game, via Kickstarter for example, should be registering the trademarks for their game during or before the crowdfunding process, rather than waiting until the production is funded successfully. Putting aside the heavy importance McArthur places on trademark registration, his argument is more of a PSA on the procedural timelines and what he considers to be a misunderstanding about both when common law trademark kicks in and when certain aspects of the trademark-ability of a product or service are initiated. For example: Many of our clients fund and market their games using crowdfunding platforms like Kickstarter or Fig. They almost always have the same misconception: once they successfully fund a game on Kickstarter, then they would have superior rights to someone who comes along later and begins using the game title. This is based on the otherwise correct understanding that trademark law gives protection over a product name (here, a game title) to anyone who either (1) uses the name in commerce, or (2) files an application to register it as a trademark, even on an intent-to-use basis up to three years before any actual use. Unfortunately, putting a game title on Kickstarter and successfully funding the project does not count as using the game title in commerce and thus gives you zero rights to the name. The law for what counts as “use in commerce” was not written with crowdfunding in mind, and this is simply another example of law not being caught up with technology. Under his premise, McArthur's suggestions seem sound. But is the premise correct that crowdfunding campaigns do not count as commerce? This certainly doesn't seem to be settled law in the way one might infer from the post. 15 U.S. Code § 1127 defines "user in commerce" thusly: The term “use in commerce” means the bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a right in a mark. For purposes of this chapter, a mark shall be deemed to be in use in commerce— (1) on goods when— (A) it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, then on documents associated with the goods or their sale, and (B) the goods are sold or transported in commerce, and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in the United States and a foreign country and the person rendering the services is engaged in commerce in connection with the services. The problem with the above statute is, as McArthur rightly notes, it was constructed without such a thing as internet crowdfunding in mind. That said, the intention of the law seems fairly easy to translate. The idea is that someone looking to put forth a product or service should be protected by trademark law once the business of the enterprise has begun and is public. Raising money from individual investors for a video game that hasn't been publicly announced wouldn't qualify, but what if you're raising money directly from the end customers, or a subsection of the end customers, as part of the business model? If the crowdsource campaign contributors are indeed the end customers of a product or service, how is their payment via Kickstarter not a commercial exchange? It certainly seems like it should be, doesn't it? After all, simply reversing the order of production and payment doesn't change the nature of the commerce in which both sides are engaged. And if that's indeed the case, then common law trademark rights ought to apply to Kickstarter projects once the fundraising has begun, rather than being delayed until the product or service, video games in this case, are being sold elsewhere or once they have been shipped/delivered. As I noted, there is little certainty about this either way, as best as my research has turned up, meaning it will likely take court cases and rulings before anyone actually knows if crowdfunding counts as a use in commerce. Additionally, while we've been in the past loathe to see too much codifying of specifics done in trademark law, perhaps this is an exception. After all, if crowdfunding is going to be a normal way of doing business, as it seems increasingly to be, perhaps it's time the law caught up to the technology. Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
We've written a few times now about Sci-Hub -- the website put together by Alexandra Elbakyan, an academic from Kazakhstan. It's a somewhat creative hack on the idea that many academics are more than willing to share PDFs of useful research with each other, basically building a search engine of such research, which is actually stored in a different repository (called LibGen). But the really clever part of Sci-Hub was that it also had some people sharing their login tokens to various research databases, so that if the LibGen doesn't have the document, Sci-Hub uses a login to retrieve the document, deliver it to the user who requested it and then uploads it to LibGen to make it available for anyone else. Publishing giant Elsevier has been particularly upset by all of this -- despite the fact that its argument appears to go 100% against the stated purpose of copyright law. Remember, this isn't about sharing some sort of commercial music or video or anything. This is about academic research, much of which has been paid for with public tax dollars, and which Elsevier paid no money to create. Elsevier not only gets academics to submit papers for publishing, but to also hand over their copyrights to Elsevier. In some subject areas, it even makes the academics pay to submit their papers for publishing. Then Elsevier gets free editing help from other academics who do peer review for free. Some publications even have unpaid editors as well. And then Elsevier goes out and charges hundreds of thousands of dollars for subscriptions to universities for research it had no hand in creating, for which it paid no money, but where it gets the copyright. And, of course, copyright had absolutely no incentive in getting this research done in the first place. It's done by academics who are pursuing the subject because of their own interests and the general requirements pushed by universities to get their faculty to publish. In short, copyright has no role here whatsoever other than to enrich Elsevier. That seems fairly problematic. Either way, back in December, Elsevier was able to score an injunction against Sci-Hub, such that it lost its domain. As we noted at the time, it was only starting the mole whac'ing process, as Sci-Hub immediately moved to a new domain. And, yes, it now appears that a complaint from Elsevier has resulted in that new domain getting shut down too, though Sci-hub remains available on other domains including the .bz and .cc top level domains. Oh, and, of course its direct IP address 31.184.194.81. And the site has a Tor hidden site as well. In other words, lots more moles to whac. In the meantime, this quixotic, and anti-knowledge, anti-education campaign by Elsevier to shut down such a useful tool has only resulted in greater and greater attention for Sci-Hub. Tons of people had never heard of the site before, but the continuing news coverage, which increases each time Elsevier gets petulant and tries to take it down again, has only served as useful advertising for a useful tool. Elsevier management might want to reconsider its strategy here, seeing as whatever money it's wasting on its lawyers seems to actually be serving as marketing dollars for Sci-Hub.Permalink | Comments | Email This Story

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