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It would be easy to assume that the European Patent Office (EPO) stands in the same relationship to the European Union as the USPTO does to the United States, but that's actually wide of the mark. The EPO is a very strange beast indeed, as its Wikipedia entry makes clear: The premises of the European Patent Office enjoy a form of extraterritoriality. In accordance with the Protocol on Privileges and Immunities, which forms an integral part of the European Patent Convention under Article 164(1) EPC, the premises of the European Patent Organisation, and therefore those of the European Patent Office, are inviolable. The authorities of the States in which the Organisation has its premises are not authorized to enter those premises, except with the consent of the President of the European Patent Office. Far from being some boring government office like any other, the EPO is like a mini nation-state. This curious fact has been taken as the starting point for a witty post on the IPKat blog about a little-known country, Eponia: a small landlocked state mainly based in Munich, though it has established colonies in The Hague, Berlin, Vienna and Brussels. Few people are born in Eponia (though it is rumoured that quite a few have been conceived there); most are settlers -- though they prefer to call themselves by a less provocative term, Examiners. Here are some details about its financial operation: One of the most buoyant economies in Europe, Eponia enjoys a unique and apparently inexhaustible source of income: patent tourism. Pilgrims come from far and wide to place their supplications before the local sages, or Boards of Appeal. Well-wishers also ply Eponia with money in order to obtain patents, cancel patents, amend patents or sometimes just to accelerate or retard the rate at which these much-desired services are delivered. Those whose petitions for a patent are successful often find that they are blessed with plenty, and that their influence extends from one end of Europe to the other. Some say that this good fortune can persist for getting on for 20 years, so long as occasional sacred donations, quaintly termed "renewal fees", are paid. What other country in Europe can offer such attractions? The horseshoe, the four-leaf clover, the leprechaun pale into insignificance in comparison. And let's not forget about more elevated matters: The national religion of Eponia is contained in a document known as the European Patent Convention, whose Articles (far more numerous than the Church of England's mere 39) are held to have been dictated directly into the ear of Blessed Bob van Benthem by a divine voice in the form of a holy hummingbird. While of less mystical origin, the Rules are also greatly revered. Like any sacred text, its superficial meaning is open to misinterpretation, and only specially trained priests are initiated into the deeper meaning of its rites and rituals (enigmatically referred to as "Guidelines"). When sufficiently inspired, those who are closest to achieving spiritual ecstasy can be seen and heard to be "talking in tongues", which embrace English, German and French -- but never Spanish or Italian. It's a great piece, but its gentle humor exposes a serious point about the EPO: it is literally above the law. That could be a problem because of a major change to the European patent landscape: the introduction of the unitary patent: A unitary patent will be a European patent granted by the EPO under the provisions of the European Patent Convention to which unitary effect for the territory of the 25 participating states is given after grant, at the patentee's request. Unitary patents will be granted and administered by the EPO, and will have effect across most of the European Union. However, they will not be directly subject to the European Union. A perceptive paper by Dimitris Xenos, entitled, "The European Unified Patent Court: Assessment and Implications of the Federalisation of the Patent System in Europe", explores some of the problems this could cause once the associated Unified Patent Court (UPC), the sole arbiter of unitary patent disputes, comes into operation : The UPC will operate in relation to an upgraded framework of patents that are granted by the European Patent Office (EPO), with such patents being able to have unitary effect in all participating states (i.e. those which have approved the relevant EU Regulation). By replacing the jurisdiction of the national courts in enforcement and invalidity proceedings of such patents, the UPC will take exclusive competence to determine all disputes relating to patents with unitary effect. The new system has all the main characteristics of a federal court, apart from the name. However, although a federal structure is adopted, important elements are strikingly different. First, the EU states do not form a federation under which benefits are pursued for the common good of one state and second, there is no legislative authority to influence the economic policy which underlies the determination of the legal principles and standards that define patents as objects of property in the UPC system. That emphasizes once more that the unitary patent system has been decoupled from the normal legislative and democratic processes of the European Union, and thus will be under no obligation to take heed of the economic interests of the European citizens. Here's why that is likely to be a problem: There is no precedent in the political history of modern democracies where important property issues affecting the economic sustainability and development of a country, and the proprietary rights and business prospects of its people, were conclusively and exclusively taken by a judicial body at supranational level. A democratic policy-making process for the determination of patents as objects of property exists, of course, in all countries of the world, including the US, whose system the UPC tries to imitate. The difference is that the US unified patent system does not escape democratic control, and the economic policies that it serves are widely debated by legislators, judges, economists, lawyers and industry players, all of whom are residents of the same country. It's still early days for the unitary patent and the Unified Patent Court, so it's not yet clear how the new system will work, and how serious the problems will be. The danger is that Eponia might turn out to be not so much a quaint oddity in the European political landscape as a dangerous rogue state with serious negative consequences for the region's businesses and citizens. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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While it had trouble keeping its site up during times of intense commenting, the FCC's IT team is now working to make all the submitted comments on its "open internet" net neutrality proposals available to download in a bunch of XML files: Because of the sheer number of comments and the great public interest in what they say, Chairman Wheeler has asked the FCC IT team to make the comments available to the public today in a series of six XML files, totaling over 1.4 GB of data – approximately two and half times the amount of plain-text data embodied in the Encyclopedia Britannica. The release of the comments as Open Data in this machine-readable format will allow researchers, journalists and others to analyze and create visualizations of the data so that the public and the FCC can discuss and learn from the comments we’ve received. Our hope is that these analyses will contribute to an even more informed and useful reply comment period, which ends on September 10. We will make available additional XML files covering reply comments after that date. While the more cynical among you may see this as more of a statement on the rather weak capabilities of the current FCC's system for handling searching through the submitted comments, it's still nice to see at least a move towards openness and transparency in sharing this data for others to search through. As we've noted, we've been digging into some of the data on the comments, and hopefully this will make the process much easier.Permalink | Comments | Email This Story

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Space travel is filled with all kinds of complex challenges -- microgravity, radiation exposure, fuel constraints, etc. Thankfully, engineers and physicists are coming up with creative solutions to some of these problems, and new propulsion systems are being put through a battery of tests to verify their safety and reliability. Here are just a few cool propulsion designs (that may or may not work at all). NASA can't explain how it works, but there's a propulsion system that seemingly violates conservation of momentum -- and it actually produces a small amount of thrust. There are a few different versions of this propellant-free thruster, called a "Cannae Drive" or EmDrive.. and there's even a Kickstarter project to try to build a similar system. Is it April Fool's day every day? [url] NASA is looking into every possible means to improve space travel, including the very speculative faster-than-light "warp drive" that proposes to bend space-time to get to distant destinations in a matter of weeks instead of decades. Alcubierre drives are purely theoretical, and NASA explicitly states any kind of FTL warp drive is firmly in the speculation realm. [url] Vortex rockets provide a practical solution for reducing the weight of a traditional liquid-fuel rocket. Conventional rockets require some (heavy) complex cooling systems to prevent parts of the rocket itself from melting and/or vaporizing away, but a vortex rocket eliminates the need for cooling by creating a mini-tornado of burning fuel where the hottest temperatures are kept away from rocket structures. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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Following the revelation that USAID built a special "Twitter for Cuba" in an effort to foment dissent in that country, it's now come out, via some AP reporting, that USAID also sent a bunch of Latin American youths from other countries to Cuba on a bogus "HIV prevention" campaign, which was really a cover for recruiting young Cubans to be anti-government activists. Of course, remember that a bogus Polio vaccination campaign in Pakistan has resulted in people there no longer trusting such vaccinations and a rapid return of polio. While it's not likely that this campaign will directly lead to people totally ignoring HIV prevention advice, just the fact that the US government seems to be trying to make use of important health campaigns as part of a strategy to undermine others will have significant consequences, making people who need such information a lot less willing to actually pay attention to it. This doesn't seem like a good thing.Permalink | Comments | Email This Story

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The EFF has filed an amicus brief in a case involving a business suing anonymous reviewers for defamation. In 2013, Hadeed Carpet Cleaning took seven anonymous Yelp reviewers to court over allegedly defamatory reviews. It asked the court to unmask the people behind the reviews, claiming that they weren't customers and therefore, their reviews were false and defamatory per se. Yelp, the host of the contested reviews, refused to comply with the subpoena, arguing that it didn't meet the constitutional requirements needed to override First Amendment protections. Unfortunately, the state of Virginia has a much lower bar for plaintiffs to hurdle in unmasking anonymous commenters and reviewers. The Dendrite rules, which have been applied in a number of states, weren't used in this case. Instead of having to prove that these reviewers had definitely broken the law, all Hadeed had to do was show the court that it had a "good faith basis" for believing the reviews were defamatory. Hadeed never contested the content of the reviews, but rather relied on the assumption that these reviews weren't posted by actual customers and, almost solely because of this, were actionable. The EFF notes in that the lower court decisions took this low bar and went even lower, threatening to make Virginia a very dangerous place for anonymous speech, especially if it continues to place its state laws above the First Amendment. Hadeed alleged that the reviewers aren't actually customers, but the lower courts didn't require it to provide proof. Nor did Hadeed show how the reviews were defamatory. Whether or not what Hadeed claimed was enough under Virginia law, the First Amendment requires significantly more evidence of defamation. The brief itself points out that stripping away the protection of anonymity will just encourage further bad behavior from a variety of bad actors, who will be able to use subpoenas to expose their critics and subject them to further harassment. Amicus EFF has witnessed these tactics at work firsthand. By bringing an ultimately frivolous lawsuit, litigants often seek to unmask anonymous speakers in order to humiliate them or discourage their speech. Thankfully, most courts have been aware of the harm that would flow from allowing such baseless subpoenas to issue without first considering the justification for unmasking these individuals… The use of harassing subpoenas is also a favorite tactic in online copyright infringement litigation. In a typical case, the owners of adult movies file mass lawsuits based on single counts of copyright infringement stemming from the downloading of a pornographic film, and improperly lump hundreds of defendants together regardless of where their Internet Protocol addresses indicate they live. The motivation behind these cases appears to be to leverage the risk of embarrassment associated with pornography, as well as the accompanying costs of litigation, to wield as a sword to coerce settlement payments of several thousand dollars from each of these individuals… The brief also argues that while anonymity is not guaranteed and can be removed under certain circumstances, the plaintiff's arguments haven't met these requirements. All parties to this dispute agree that the constitutional privilege to remain anonymous is not absolute. Plaintiffs may properly seek information necessary to pursue reasonable and meritorious litigation. As the Court of Appeals put it, “if the reviews are unlawful in that they are defamatory, then the John Does’ veil of anonymity may be pierced, provided certain procedural safeguards are met.” (“Certain classes of speech, including defamatory and libelous speech, are entitled to no constitutional protection.”). Rather, the dispute is as to the proper standard to apply in deciding whether to uphold the reviewers’ anonymity. The Court of Appeals rejected the guidance of numerous other state courts, including the leading case of Dendrite, and instead held that Virginia Code § 8.01-407.1 provides the sole standard for Virginia courts faced with unmasking anonymous speakers. This conclusion should be reversed because this interpretation of § 8.01-407.1 fails to meet the minimum standards of the First Amendment. And if all of that fails to resonate, the EFF says there's also some jurisdictional questions with further First Amendment implications. Yelp's headquarters are in California and Hadeed should be filing its subpoenas there. Of course, the higher standard in California most likely means they would be rejected. But if the lower court's decision holds, people and companies looking to unmask anonymous commenters and reviewers will be making libel tourism stops in Virginia. The lower court’s departure from standard practice means that Yelp is now subject to Virginia’s subpoena standards, rather than California’s. Under the rule that the lower court has adopted, Virginia’s subpoena jurisprudence can apply across the country. An enterprising plaintiff could file subpoenas in Virginia, knowing that Virginia has adopted a more lenient standard than its fellow courts. Non-parties would have to fight their requests in Virginia courts rather than the courts where the documents were stored, at additional and considerable expense. This is particularly problematic where, as here, the subpoena requests implicate First Amendment interests, which states are obligated to uphold on behalf of their citizens… While there are many people who argue that online anonymity is just a way for people to say whatever they like without consequence, there's much more to it than insults, trolling and 4chan. The protections of anonymous speech date back to the founding principles of this country, predating the internet's rise as the simultaneous best/worst thing to happen to the world. Online anonymity needs more protection than the state of Virginia is willing to afford it. The lower court set the bar for unmasking at toe-stubbing level and, if the state Supreme Court upholds it, will make Virginia the new home for the "tyranny of the majority." Hopefully, the state's top court will realize that it's also protecting the rights of American citizens, not just local businesses whose approach to criticism is to start filing lawsuits. Permalink | Comments | Email This Story

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FIFA, the soccer/futbol/whatever organization that theoretically runs a sporting operation sure seems to actually be some kind of steroid-taking IP lawyer in practice instead. Much like the method by which the Olympics does their business, FIFA has always gone overboard in enforcing its trademarks. It insists on getting airline ads that don't even mention it pulled down, it goes after breweries, and it generally behaves like a psychopathic rich kid who thinks all the toys in the world are his and his alone. Reader John Katos writes in with the latest head-scratching example of this. Nico Rosberg is big in the world of F1 racing and he wanted to celebrate the German's winning the World Cup with a helmet in an upcoming race. German pride, in other words, because when has that ever gone wrong? Earlier this week, delighted with the national team's world cup victory in Brazil, Mercedes driver Rosberg announced he will wear a "special edition helmet" this weekend in Hockenheim. The 29-year-old German revealed on social media that the livery includes an image of "the FIFA trophy". See that thing on top of the helmet? You know, the one that looks like Cthulu's claw reaching up to grip some kind of golden testicle? Well, that's the World Cup trophy, which, really you guys, come up with something a little better than that for the World freaking Cup. Regardless, the uber-lawyers over at FIFA saw this display of national pride and free FIFA advertising and took a dump on it. We reported earlier that reproducing the image of the trophy falls foul of the world football federation FIFA's strict rules protecting its 'official marks'. The Mercedes driver's public relations manager Georg Nolte confirmed: "There will be an update on Nico's Germany helmet design today. "(It) will be without (the) world cup trophy, but (now) with four stars on it." Yes, rather than working out some kind of way to license the helmet for free so as not to risk the dreaded not-protecting-the-mark penalty that seems to drive so much of this heavy-handed nonsense, FIFA just killed off the free advertising. Quite sporting of them, if you ask absolutely no one. Permalink | Comments | Email This Story

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Another leak has surfaced at The Intercept, notably a non-Snowden leak ("obtained from a source in the intelligence community") that shows the utter ridiculousness of the government's terrorist watchlist. Nothing states it better than the universal shrug judiciously applied to the 280,000 people that make up the largest portion of the chart. The culmination of post-9/11 policies and the steady erosion of civil liberties in the service of "fighting terrorism" has opened up nearly 300,000 people to additional scrutiny because ¯\_(ツ)_/¯ . The list has increased 10-fold during Obama's stay in office, growing from 47,000 at the end of Bush's term to 680,000, 40% of whom the government is sure represent some sort of a threat, even if it can't quantify that in any specific way. When U.S. officials refer to "the watchlist," they typically mean the TSDB, an unclassified pool of information shared across the intelligence community and the military, as well as local law enforcement, foreign governments, and private contractors. According to the government's watchlisting guidelines, published by The Intercept last month, officials don't need"concrete facts" or "irrefutable evidence" to secretly place someone on the list—only a vague and elastic standard of "reasonable suspicion." It's long been noted that articulable facts are unwanted guests in the War on Terrorism (and War on Drugs) discussion. Instead, hunches and gut feelings are elevated to places formerly occupied by Fourth Amendment protections. This group of people, shrugged into "nomination" by a variety of government agencies, is then shared with law enforcement, private contractors and foreign governments. That's at least 280,000 people being vetted with impunity by a variety of TSDB end users -- people who are deemed too dangerous to go unsurveilled but not dangerous enough to arrest or investigate further. If there's any good news here, it's that at least some form of filtering is used to keep the database from swelling exponentially. Most people placed on the government's watchlist begin in a larger, classified system known as the Terrorist Identities Datamart Environment (TIDE). The TIDE database actually allows for targeting people based on far less evidence than the already lax standards used for placing people on the watchlist. A more expansive—and invasive—database, TIDE's information is shared across the U.S. intelligence community, as well as with commando units from the Special Operations Command and with domestic agencies such as the New York City Police Department. Those running TIDE have actually celebrated the fact that they recently added the millionth name to the database, failing to see that the constantly-increasing database is actually an admission of failure. If the system was working, the number of names should remain nearly constant, as those who aren't threats are removed from the list (something which apparently never happens) and those that are threats are rounded up (or otherwise disposed of). And there seems to be a hint of racial profiling contained within the TSDB numbers. The top five U.S. cities represented on the main watchlist for "known or suspected terrorists" are New York; Dearborn, Mich.; Houston; San Diego; and Chicago. At 96,000 residents, Dearborn is much smaller than the other cities in the top five, suggesting that its significant Muslim population—40 percent of its population is of Arab descent, according to the U.S. Census Bureau—has been disproportionately targeted for watchlisting. Beyond this nearly-suspicionless watchlisting, there's further privacy concerns, prompted by the addition of millions of pieces of biometric data from American citizens, something that ramped up immediately following the Boston Bombing. In the aftermath of last year's Boston Marathon bombing, the Directorate of Terrorist Identities began an aggressive program to collect biometric data and other information on all Americans on the TIDE list. "This project includes record by record research of each person in relevant Department of State and [intelligence community] databases, as well as bulk data requests for information," the documents note. The DTI also worked on the subsequent Chicago Marathon, performing "deep dives" for biometric and other data on people in the Midwest whose names were on the TIDE list. In the process, the directorate pulled the TIDE records of every person with an Illinois, Indiana, or Wisconsin driver license. That the many agencies tasked with counterterrorism are operating on instinct rather than articulable suspicion is nothing surprising. The large number of people with "no known terrorist affiliation" being added to a terrorist watchlist is the natural progression of bad policies with 12 years of momentum behind them. As an additional note, it appears the US government attempted to "scoop" The Intercept by leaking a much more friendly recap of the leaked watchlist details to the AP, at least according to the this tweet by Jeremy Scahill, one of the post's authors. US government, pissed we were publishing our story, tried to undermine us by leaking it to other news organization right before we published — jeremy scahill (@jeremyscahill) August 5, 2014 If you can't read the tweet, it says: US government, pissed we were publishing our story, tried to undermine us by leaking it to other news organization right before we published A look at the AP piece seems to confirm this, as it presents something more akin to press release than a serious dive into the numbers. (More confirmation at the Huffington Post. The government claims its scoop "theft" was a "mistake.") It also makes no mention of the information appearing at The Intercept first. The AP's "story" presents this as mostly a triumph by the government, with only the briefest aside about privacy or civil liberties concerns. This excerpt is indicative of the (very short) article's credulousness: The database's growth is a result of the government's response to a failed attempt to blow up a commercial airliner over Detroit on Christmas Day in 2009. The terror operative's name was included in the database before the attack, but it was not on a list that would have prevented him from getting on a U.S.-bound airplane. Since then, the government has lowered the standards for placing someone on the no-fly list and intelligence agencies have become more diligent about submitting names to the TIDE database. The database was created after the 9/11 terror attacks when it became clear that the government's terror watch list was ineffective. The watch list was once maintained in a rolodex and in paper notebooks, according to redacted photographs provided by the National Counterterrorism Center. And here's the entirety of the "discussion" about the possible negative of an inflated, nearly-suspicionless watchlist of terrorist suspects. The government does not need evidence that links someone to terrorism in order for the person to be included in the database. This is among the reasons the database and subsequent terror watch lists have been criticized by privacy advocates. The AP says it has "learned," but it looks more like it was handed some talking points and an ultra-tight deadline. With thousands of news outlets pulling in the AP feed, this will allow the government to get out ahead of the leak, or at the very least, present a cohesive media presence that presents a "fair" portrayal of its out-of-control counterterrorism databases. Permalink | Comments | Email This Story

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Here's what exercising your First Amendment rights gets you in certain parts of the US. Photographer Jeff Gray has been filming cops and photographing public structures, as well as documenting the reactions of law enforcement to his activities. The Department of Homeland Security apparently felt Gray was enough of a "threat" that it opened an investigation on him. After scrutinizing publicly-available information (like Gray's own YouTube account), it came to the conclusion that his activities were completely protected… it just didn't like the way he acted. This subject is exercising his first amendment rights, however the manner in which he lures the officers in is concerning. Well, you can't be "lured" if you just respect citizens' rights -- rights that were recently upheld by a Supreme Court decision. Despite the DHS declaring Gray's actions perfectly fine, local law enforcement officers still took it upon themselves to send social services to his home (after being "tipped" that Gray owned guns) and interviewing his kids at school without his knowledge. Now, Gray has obtained more information that shows law enforcement officers are still trying to find some way to shut down his protected activities. After several years of auditing police departments across Florida to determine whether their officers uphold the First Amendment and the law of the land, Photography Is Not A Crime’s Jeff Gray has had his driver’s license and vehicle tag information searched by police well over 200 times. Gray’s request for the record of who accessed his information on the state-operated Driver and Vehicle Information Database (DAVID) turned up police officer after police officer running Gray’s vehicle plate and driver’s license. The number of agencies that have peeked at Gray's records is amazing. District attorneys' offices from two different districts have run his records and 100 officers spread across 28 agencies (including the state's Fish and Wildlife Dept.) have accessed his data, often multiple times. The documents also include a few redacted names, withheld using exemption 119.071(4)(c): Any information revealing undercover personnel of any criminal justice agency is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. Apparently, the Jacksonville Sheriff's Office has manpower to burn, and can use undercover personnel to "investigate" First Amendment-protected activities. Gray will probably be able to add the DEA to that list as well, after his most recent interaction, which occurred while filming the agency's offices in Jacksonville, FL. Four unnamed, unidentified DEA agents emerged from the building in hopes of getting Gray to stop, with one of them attempting to grab cameras from both Gray and his filming partner. One of the DEA agents (along with a responding sheriff's officer) emerged with his phone up and in shooting position, the sort of childish reaction that's becoming more common. Officers should film interactions with citizens, but cameras shouldn't be deployed in hopes of cowing someone into shutting off their recording device. (Not to mention the fact that the sheriff's squad car should have had a dashcam rolling from the moment the officer pulled up.) Gray has seen this tactic often enough to good-naturedly suggest the officers move their phones to a horizontal position to get a better recording. The number of times Gray's records were accessed shows that law enforcement officers are looking for anything they can to shut his activism down. While a number of the records requests were probably linked to officers running his info while interacting with him, there are way more hits to the database than can be explained away as adhering to data-access policies. Plus, there's little doubt that most law enforcement officers in the area are familiar with Gray and his activities at this point, making any running of his info completely extraneous. And, as the sheriff in the latter video states, Gray's conduct is perfectly legal, so there's really no reason for officers to be interacting with him at all at this point. Photographing public buildings and figures may make those on the other side of the camera uncomfortable, but they're just going to have to learn to get over it. Running records requests over and over again is simply abusing a tool because you have access to it.Permalink | Comments | Email This Story

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If you want to build a surveillance state with a minimum of backlash, you'll need a very controllable environment. Shane Harris at Foreign Policy has a detailed report on Singapore's relatively peaceful coexistence with Big Brother that includes the United States' involvement in its creation, as well as the many reasons pervasive surveillance and an out-sized government presence have been accepted, rather than rebelled against. The genesis of Singapore's surveillance net dates back to 2002, and traces all the way back to former US National Security Advisor, John Poindexter. Peter Ho, Singapore's Secretary of Defense, met with Poindexter and was introduced to the Dept. of Defense's Total Information Awareness (TIA) aspirations. It would gather up all manner of electronic records -- emails, phone logs, Internet searches, airline reservations, hotel bookings, credit card transactions, medical reports -- and then, based on predetermined scenarios of possible terrorist plots, look for the digital "signatures" or footprints that would-be attackers might have left in the data space. The idea was to spot the bad guys in the planning stages and to alert law enforcement and intelligence officials to intervene. Though initially presented as an anti-terrorism tool (something Singapore was looking for after several recent terrorist attacks), it first found usefulness as a way to track and predict the spread of communicable diseases. Ho returned home inspired that Singapore could put a TIA-like system to good use. Four months later he got his chance, when an outbreak of severe acute respiratory syndrome (SARS) swept through the country, killing 33, dramatically slowing the economy, and shaking the tiny island nation to its core. Using Poindexter's design, the government soon established the Risk Assessment and Horizon Scanning program (RAHS, pronounced "roz") inside a Defense Ministry agency responsible for preventing terrorist attacks and "nonconventional" strikes, such as those using chemical or biological weapons -- an effort to see how Singapore could avoid or better manage "future shocks." Singapore politicians sold "big data" to citizens by playing up the role it would play in public safety. Meanwhile, back in the US, the program began to fall apart as privacy advocates and legislators expressed concerns about the amount of information being gathered. In Singapore, this was just the beginning of its surveillance state. In the US, it became an expansion of post-9/11 intelligence gathering. Rather than end the program, it was simply parted-out to the NSA and other agencies under new names by sympathetic lawmakers. Singapore's TIA program soon swelled to include nearly anything the government felt it could get away with gathering. The government used the data to do far more than track potential terrorists. It used the massive amount of data to examine -- and plan for -- nearly every aspect of Singaporean existence. Across Singapore's national ministries and departments today, armies of civil servants use scenario-based planning and big-data analysis from RAHS for a host of applications beyond fending off bombs and bugs. They use it to plan procurement cycles and budgets, make economic forecasts, inform immigration policy, study housing markets, and develop education plans for Singaporean schoolchildren -- and they are looking to analyze Facebook posts, Twitter messages, and other social media in an attempt to "gauge the nation's mood" about everything from government social programs to the potential for civil unrest. Making this data collection even easier is the Singaporean government's demand that internet service can only be issued to citizens with government-issued IDs. SIM cards for phones can only be purchased with a valid passport. Thousands of cameras are installed and government law enforcement agencies actively prowl social media services to track (and punish) offensive material. But this is accepted by Singapore citizens, for the most part. The mix of Indians, Chinese and Malays makes the government especially sensitive to racially-charged speech. The country's dependence on everyone around it makes everyday life a bit more unpredictable than that enjoyed by its much larger neighbors. In exchange for its tightly-honed national security aims (along with housing and education), Singaporeans have given up their freedom to live an unsurveilled life. And for the doubters, the government has this familiar rationale to offer. "In Singapore, people generally feel that if you're not a criminal or an opponent of the government, you don't have anything to worry about," one senior government official told me. What goes unmentioned is just how easy it is to become an "opponent" of the Singaporean state. It can take nothing more than appearing less than grateful for the many government programs offered in "exchange" for diminished civil liberties. While the government goes above and beyond to take care of its citizens' needs, it acts swiftly to punish or publicly shame those who are seen to spurn its advances, so to speak. Not for nothing did sci-fi writer William Gibson calls this Singapore "Disneyland with the Death Penalty." So, to make the perfect police/security state, you need a small country and a mixture of government largesse and palpable threats. You need a nation so precariously balanced that it "shouldn't [even] exist," according to one top-ranking government official. You also need a nation not built on civil liberties. Despite this, US intelligence agencies still view Singapore as a prime example of what could have been. [M]any current and former U.S. officials have come to see Singapore as a model for how they'd build an intelligence apparatus if privacy laws and a long tradition of civil liberties weren't standing in the way. After Poindexter left DARPA in 2003, he became a consultant to RAHS, and many American spooks have traveled to Singapore to study the program firsthand. They are drawn not just to Singapore's embrace of mass surveillance but also to the country's curious mix of democracy and authoritarianism, in which a paternalistic government ensures people's basic needs -- housing, education, security -- in return for almost reverential deference. It is a law-and-order society, and the definition of "order" is all-encompassing. If this was what the NSA and others were pushing for, there's no hope of achieving it. The Snowden leaks have undermined a lot of these agencies' stealthy nudges in this direction. The US government can never hope to achieve the same level of deference, not even in the best of times. A melting pot that has folded in refugees from authoritarian nations -- along with the country's founding principles -- have made many Americans predisposed against views of the government as an entity worthy of reverence. Widespread abuse of the public's trust has further separated the government from any reverential thought. This isn't to say the desire to convert US citizens into nothing more than steady streams of data doesn't exist. The NSA's previous director often stated his desire to "collect it all." In the hands of the government, useful things could be done with all of this data (like possibly heading off epidemics, etc.), but the more likely outcome would be collecting for collecting's sake -- which violates the civil liberties the country was built on -- and the use of the information in abusive ways. It may work for Singapore, an extremely controlled environment. But that doesn't necessarily make it right. And it certainly shouldn't be viewed as some sort of surveillance state utopia. Permalink | Comments | Email This Story

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Sharing is a universal concept. Or so you would think. But even a three year-old has a better grasp on the concept of sharing than Amtrak does. An Amtrak passenger uploaded a photo taken from an Amtrak car to Instagram and tagged the company. The company's Twitter account responded, asking the passenger if he'd mind "sharing" the photo with Amtrak. @nruibal We love this pic! Mind sharing with us? Click this link. http://t.co/w9uGua3JXE — Amtrak (@Amtrak) July 28, 2014 Shortly after that, the photographer responded with this: @Amtrak btw, I don't mind *giving* you this photo, but you shouldn't use the word "share" when you mean "permanently assign copyright" — Nathan Ruibal (@nruibal) July 30, 2014 If you can't read it, it says: btw, I don't mind *giving* you this photo, but you shouldn't use the word "share" when you mean "permanently assign copyright" You see, when Amtrak says "share," it actually means "take your stuff and never give it back." When this Twitter user "shared" this with Amtrak (via social media management platform Percolate/Fanbranded), he gave up everything. Here's the Terms and Agreement verbiage Amtrak translates as "sharing." This Photograph Copyright Assignment Agreement ("Agreement") is entered into by and between the National Railroad Passenger Corporation ("Amtrak"), a corporation organized under 49 U.S.C. §24101 et seq. and the laws of the District of Columbia, with its principal office located at 60 Massachusetts Avenue, N.E, Washington, DC 20002 and Photographer for the assignment of the copyright in the photograph(s) ("Photographs"), which are attached to this Agreement as Exhibit I. Grant of Rights Photographer does hereby grant, assign and transfer all right, title and interest in the Photographs to Amtrak and any registrations and copyright applications relating thereto, including any renewals and extensions thereof. Photographer agrees to execute all papers and to perform such other proper acts, as Amtrak may deem necessary or desirable to secure for Amtrak the rights herein granted, assigned and/or transferred. Attribution Amtrak may, but is not required to, identify and credit Photographer and Amtrak may use or authorize the use of Photographer’s name, likeness or pertinent biographical material in connection with the advertising and promotion of any work containing all or part of the Photographs. Entire Agreement, Modifications and Governing Law This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any prior discussion or agreements between them relating thereto. No modification or amendment to this Agreement shall be valid unless in writing and signed by both parties. This Agreement shall be governed by and construed in accordance with the substantive laws, but not the laws of conflicts, of the District of Columbia. The short version: Sharing = giving away your photo for forever for exploitation solely by Amtrak, which may or may not choose to credit you for your creation and either way, you can't really demand attribution because it's no longer your photo, is it? Is it forgivable? In a word, NO. While we can expect most corporate entities to have their way with user-generated content, the most anyone should ask for is non-exclusive rights. Amtrak has no right to demand this and everyone greeted with this offer to "share" should turn it down with a hearty, "go screw yourself." But this isn't Amtrak's only dip into re-purposing the creations of others into rolling PR platforms (literally). A few months ago, it sent out the call to aspiring writers, offering finalists a free ticket to the place of their choosing provided they rode there in an Amtrak rail car and wrote something suitably inspiring. Every aspiring writer who thought viewing up to $900 of the country by rail would beat back writer's block signed up, forcing Amtrak to end its open call for submissions much earlier than it planned to. Enthusiasm outweighed common sense as every submission (over 11,000 of them) became the property of Amtrak, subject to a whole host of stipulations. In submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties. In addition, Applicant hereby represents that he/she has obtained the necessary rights from any persons identified in the Application (if any persons are minors, then the written consent of and grant from the minor’s parent or legal guardian); and, Applicant grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy the name, image, and/or likeness of Applicant and the names of any such persons identified in the Application for any purpose, including, but not limited to, advertising and marketing. If Amtrak was looking for a bunch of free marketing material written by a cast of thousands, it found it. And then, it stripped away any rights the authors had to their creations, even if they weren't one of the 24 finalists. Amtrak isn't looking for talented, original writers. It's looking for some really cheap spokespeople. The Amtrak Residency’s terms and conditions, which prescribe a search for publicists, not the next great American novelist. Applications and writing samples that pass an initial evaluation will then be judged by a panel “based on the degree to which the Applicant would function as an effective spokesperson/endorser of [the] Amtrak brand.” Amtrak really needs a refresher course on sharing. Companies can be partners with creators but far too often, they seek complete control. Notably, everything defining this stripping of the creators' rights happens in the fine print. If you assume the worst about Terms and Conditions, you'll rarely be disappointed. But it takes a certain blend of audacity and forced cheerfulness to use the word "share" to describe what's going on here. Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Oh, Randy Queen. If you don't recall, on Monday morning we wrote about him sending some questionable DMCA takedown requests to Tumblr, concerning the Escher Girls Tumblr account, which had posted some of his comic illustrations. Queen, the author of the Darkchylde comic, apparently did not take too kindly to Escher Girls highlighting his work. That is, perhaps, because the Escher Girls Tumblr is all about highlighting ridiculous portrayals of women in pop culture. As we noted, the original works appeared to be a perfect example of fair use -- a concept Queen apparently is unfamiliar with. Escher Girls wrote about his takedowns in a surprisingly even-handed fashion, just informing readers what was going on, but also noting it had no desire to "feud" with him. In response, Queen sent a ridiculous email threatening a bogus defamation claim based on his bizarre (and, well, very very wrong) belief that copyright gives him the right to "protect the perception" of his work. Believe it or not, that wasn't enough for Queen. Escher Girls creator Ami Angelwings informs us that he's now also sent a DMCA takedown on the original Escher Girls story about his DMCA takedowns. Tumblr hasn't taken the original down, but did (for unknown reasons) remove all of the reblogged versions of the Escher Girls post. The last URL in the image below was that Escher Girls post: At this point, Queen is actually playing with legal fire. While you could make the argument that Queen was just clueless about fair use with his original takedowns, with the takedown on the article about his takedowns he has to know that it contains nothing that is covered by his own copyright. He's blatantly abusing the DMCA to silence a critic. We've covered the mostly useless 512(f) provision of the DMCA before, but Queen might want to pay attention to it, because it lets the victims of truly abusive DMCA notices sue for damages and attorneys fees. And Queen has just made it pretty damn clear that he is abusing the process to try to silence a critic. Meanwhile, Popehat has the details of yet another email that Queen sent to Escher Girls, in which he tries out yet another insane legal theory: that this is all "harassment": So, at this point it becomes harassment. Instead of simply removing the content you do not have the right to electronically distribute, you wish to persist in character assassination, and alleged abuse of copyright claims via armchair lawyers. Let’s say I take someone’s old copyrighted photography and ‘corrected’ it for them, as well as posted disparaging comments to circulate along with what may be someone’s first exposure to the work. Guess what? I don’t have the right to do that, it’s not my content. And based on the comments in this thread, it’s an easy argument to make that it is damaging. There are people and animals suffering and dying in the world, and real human rights issues in certain countries, and this is what you take issue with? Art nearly two decades old? I think there are greater causes to champion with the limited time and energy we are given on this Earth. For anyone this may apply to – instead of taking shots at art someone did many years ago while they were still learning – which are no longer representative of their current art style or direction for their character – I encourage you to spend your time, energy, and courage on creating your own comics, and then make the necessary personal sacrifices to bring them to the world. If you think you can do better work, or have more success with it – I encourage you to do so. I promise I will never attack anything you create, and would only wish you only love and happiness. Since you enjoy posting private emails, and needlessly escalating matters, I'm sure this will be next, and would again ask you to please stop. I am sure there are more positive uses of both of our time. Sincerely, ~ R Right. So the filing of false DMCA takedown notices and bogus legal threats is not the harassment? Telling the world (in pretty damn even-handed tones) what Queen did is harassment? Queen really ought to speak to a lawyer (and maybe someone with more than two minute's experience on the internet). Also, once again, Queen seems to have no idea what fair use means. Randy Queen's version of copyright is as imaginary and as improbable as the female characters he draws. And to then jump to, as Popehat calls it, "there-are-children-starving-in-Fuckistan arguments" just adds to the layers of ridiculousness. Just a few days ago, I mentioned that one of the most ridiculous and trollish arguments is to say because you're not doing something about "totally unrelated problem" you have no right to do something about the thing you're actually addressing. At this point, Randy Queen appears to be approaching Charles Carreon-levels of absurdity, and we can only offer the same advice we suggested to him (and which an appeals court recently offered to Team Prenda): stop digging.Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Just over a year ago, Techdirt reported on big pharma's application to run a new .pharmacy domain, and later on an attempt by Canadian pharmacies to prevent that happening. They failed, apparently (found via Intellectual Property Watch): As the registry operator of the new .pharmacy domain, the National Association of Boards of Pharmacy (NABP), under a contract with the Internet Corporation for Assigned Names and Numbers (ICANN), will soon provide a means for identifying safe online pharmacies and resources. Under the Association’s Registry Agreement, executed with ICANN on June 19, 2014, the new .pharmacy generic Top-Level Domain (gTLD) will be available only to legitimate online pharmacies and related entities located in the United States or other countries. The Registry Agreement also includes a number of safeguards intended to protect consumers around the world. The question is: what will "only available to legitimate online pharmacies" and "intended to protect consumers" mean in practice? The concern is that these are euphemisms for big pharma shutting out those competitors offering lower-cost products, particular foreign pharmacies, and manufacturers of generics. That fear is not assuaged by the following comment from the NABP in its response to such concerns (pdf) the .PHARMACY TLD will provide a powerful tool to educate consumers, distinguish legitimate Internet pharmacies from the thousands of rogue Internet drug outlets, and reinforce the value of purchasing medications only from trusted online sources. Big pharma is clearly as keen as the copyright industries to "educate" consumers about what they ought to be doing. The danger here is that such "education" will include not trusting perfectly safe pharmacies outside the US (in Canada, for example), and not using much cheaper generics. Since NABP now controls this entire domain it will have a free hand to block any outfit that does not subscribe to those views, and thus to attempt to delegitimize them in the eyes of the consumer. This is something new. Hitherto, there has been no danger of this kind of discrimination against particular classes of Internet users, since registry operators were focused on maximizing profits by getting as many domains issued as possible. That won't be the case for .pharmacy, where the aim is to police the online pharmacy world, and to protect the generous profits of big pharma -- not make a few dollars selling a domain or two. Assuming that happens, we can probably expect other industries to follow suit in creating and controlling new domains, and for the Internet to become less free and neutral. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Almost exactly a year ago, we wrote about Team Prenda being ordered to pay another $64k in attorneys' fees in one of its many cases. This one involved Prenda, along with Paul Hansmeier's "Alpha Law Firm" and local Minnesota lawyer Michael Dugas supposedly representing a company named Guava, suing a bunch of folks in Minnesota state court. The case had taken quite a twist when defendant Spencer Merkel revealed how he'd made a deal to take a dive in the case. That is, he'd been hit with a standard Prenda threat letter concerning "Hard Drive Productions" content, and when he told them he couldn't pay, someone from Prenda made a "deal" with him in which he'd get sued, and would agree to give up hit Bittorrent logs during discovery and then have the case dismissed. Team Prenda needed the logs to find more people to shake down, and most likely wanted to use the case as an "example" that it was okay for them to get logs through these very, very questionable lawsuits. Except, somewhere along the way the court noticed that it was a bogus lawsuit, and that resulted in the order to pay $64k. Team Prenda appealed, and... have lost again as the Minnesota state court of appeals has, like nearly every other court, seen right through the Prenda scam. We have carefully reviewed the record, and we conclude that the district court did not abuse its discretion in imposing attorney-fee sanctions against appellants. The district court found that appellants initiated and pursued this litigation in bad faith, that the only purpose of the litigation was “to harass and burden Non-Parties through obtaining IP addresses to pursue possible settlement rather than proceed with potentially embarrassing litigation regarding downloading pornographic movies.” This is an improper use of the judicial system. As per usual, Team Prenda throws a lot of crap at the wall, hoping something will stick. None of it does. First, they claimed -- as they always do -- a failure of due process. The court brushes that aside and shows that there was plenty of due process, even if some of it could have been slightly clearer. Next, Team Prenda claims there's not enough evidence for "bad faith." The court has no problem rejecting that one quickly: Although the record in this case was not fully developed because appellants voluntarily dismissed the underlying action before it could be considered on the merits, it includes sufficient evidence to support the district court’s finding. The evidence includes Merkel’s affidavit testimony that he received a letter from Prenda Law threatening suit on behalf of its client, Hard Drives; he made arrangements with someone named “Michael” or “Mike” at Prenda Law for an alternative settlement arrangement, including his consent to be sued in Minnesota; Prenda Law referred him to pro bono counsel; Hard Drives would dismiss the suit after Merkel provided his BitTorrent log; and he was surprised to be sued by Guava, rather than Hard Drives. The evidence also includes Morrison’s testimony that Merkel was referred to her by Hansmeier and Dugas; that she expected a lawsuit to be filed by Hard Drives, rather than Guava; and “[t]here’s been some bait and switch you might call it in this case.” And the evidence includes the facts that (a) despite repeated questioning by the district court regarding Guava’s corporate status, appellants failed to file a certificate of authority or provide any evidence regarding Guava’s incorporation, its officers, or its business operations, and (b) despite Merkel’s alleged involvement in a hacking conspiracy, appellants sought no discovery from Merkel during the pendency of the litigation. This evidence, taken together, amply supports the finding that appellants had no good-faith basis for this litigation.... Appellants assert that the district court erred by relying on the communications between Merkel and Prenda Law relating to claims by Hard Drives, arguing that there is no evidence of a connection to this action. But the district court found a connection, and there is evidence in the record to support that finding. “Michael” at Prenda Law offered to refer Merkel to Minnesota attorney, Morrison. Morrison testified that she received the referral from Hansmeier and Dugas; Hansmeier filed a notice of appearance identifying himself as “of counsel” to Prenda Law, and Dugas submitted a declaration in this matter identifying himself as the only “‘Mike or Michael’” at either Alpha Law Firm LLC or Prenda Law, Inc.” Dugas denied representing Hard Drives or being involved in the settlement agreement between Merkel and Hard Drives. But the district court rejected this assertion as incredible, and we will not disturb that credibility determination. There's a funny bit where Team Prenda tries to claim that originally the court thought the case was brought in good faith, so the later bad faith determination shouldn't count. The appeals court is, again, not impressed: We reject this argument as circular and unpersuasive. The district court’s initial determination that Guava demonstrated that the information it sought was relevant and material did not preclude it from later—on being made more fully informed of the facts—finding that appellants were acting in bad faith. Team Prenda also protested the $64k amount. But, again, their arguments fall (mostly) flat. The court basically says the amount is enough, as is the requirement that the lawyers file a $10k bond before filing any more lawsuits, but there was one procedural issue, concerning filing a Minnesota "certificate of authority" that was improperly presented in the lower court ruling, so the appeals court fixes that. It's a meaningless issue, though. Finally, Team Prenda argues that sanctions can't be applied because they had voluntarily dismissed the lawsuit already. No go: Lastly, appellants assert that the district court was precluded from awarding sanctions after the action had been voluntarily dismissed, citing such a limitation in the district court’s authority [citing laws and caselaw that say] “motions for sanctions brought after the conclusion of the trial must be rejected precisely because the offending party is unable to withdraw the improper papers or otherwise rectify the situation”). But the district court’s inherent authority to impose sanctions is not so circumscribed. See, e.g., Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 389 n.2 (4th Cir. 2004) explaining that “failure to comply with the safe-harbor provisions would have no effect on the court’s authority to . . . impose sanctions within its inherent power”). So, once again, an appeal by Team Prenda falls totally and completely flat. And they need to pay up.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Techdirt has been writing about the dangers faced by nations that sign up to treaties containing corporate sovereignty clauses for some time now. These chapters are typically included in so-called trade agreements like TAFTA/TTIP and TPP -- although they actually go far beyond regulating trade -- but are also found elsewhere. For example the Energy Charter Treaty (ECT) includes one, as Germany found to its cost when the Swedish company Vattenfall used the investor-state dispute settlement (ISDS) mechanism to claim €3.7 billion after the Germany state decided to phase out nuclear power stations -- thus reducing Vattenfall's future profits. Now the ECT's corporate sovereignty chapter has struck again on an even more staggering scale: In an historic arbitral award rendered on July 18, 2014, an Arbitral Tribunal sitting in The Hague under the auspices of the Permanent Court of Arbitration (PCA) held unanimously that the Russian Federation breached its international obligations under the Energy Charter Treaty (ECT) by destroying Yukos Oil Company and appropriating its assets. The Tribunal ordered the Russian Federation to pay damages in excess of USD 50 billion to our clients who were the majority shareholders of Yukos Oil Company. That comes from a press release issued by the lawyers acting for the Yukos shareholders, who are also doing quite nicely: The Tribunal also ordered the Russian Federation to reimburse to our clients USD 60 million in legal fees, which represents 75% of the fees incurred in these proceedings, and EUR 4.2 million in arbitration costs. Even for an oil- and gas-rich country like Russia, this is obviously a massive amount of money. A detailed and insightful post by Kavaljit Singh puts it in context: In relative terms, the compensation award is equivalent to around 11 per cent of Russia's foreign exchange reserves, 10 per cent of annual national budget and 2.5 per cent of country’s GDP. Given the magnitude of compensation, the Award could be more damaging to the Russian economy than all the economic sanctions imposed by the West against Russia for its actions in Ukraine. He goes on to point out one of the most worrying aspects of these awards by tribunals: What is most astonishing is that the arbitral tribunal has not provided any standard or credible rationale behind awarding $50 bn in compensation to claimants. The calculations of total damages put forward by claimants are based on assumptions and hard evidence is lacking. The tribunal found that the claimants contributed to 25 per cent "to the pejudice they suffered at the hands of the Russian Federation." Hence, the amount of damages to be paid by Russia is reduced by 25 per cent to $50 bn from $67 bn. In its lengthy 615-page verdict, no explanation has been given by the tribunal on how did it arrive at 25 per cent of claimants' contributory fault? Why not 30 or 40 or 50 per cent? The arbitrary nature of these awards, and the fact there seems to be literally no limit to the amount that might be awarded, are just some of the many problems afflicting investor-state dispute settlements. Singh notes another disturbing aspect of the current verdict: It needs to be emphasized here that Russia only accepted the provisional application of the ECT (pending ratification) in 1994 meaning that the country will only apply the Treaty "to the extent that such provisional application is not inconsistent with its constitution, law or regulations." Same was the approach adopted by Belarus, Iceland, Norway and Australia. Russia never ratified the ECT and announced its decision to not become a Contracting Party to it on August 20, 2009. As per the procedures laid down in the Treaty, Russia officially withdrew from the ECT with effect from October 19, 2009. Nevertheless, Russia is bound by its commitments under the ECT till October 19, 2029 because of Article 45 (3) (b) states that "In the event that a signatory terminates provisional application…any Investments made in its Area during such provisional application by Investors of other signatories shall nevertheless remain in effect with respect to those Investments for twenty years following the effective date of termination." That is, although Russia signed the treaty, it never ratified it. And yet under its terms, it can still be sued, as here -- another good reason never to sign up to these kind of agreements. Whether it will pay up is quite a different matter, of course. As Singh points out: Shareholders will soon find it extremely difficult to enforce the Award as Russia has already decided to challenge it. The shareholders could seek to seize commercial assets of Russia (owned by country's state-owned corporations and sovereign wealth funds) in 149 countries which are signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Award (popularly known the New York Convention). In any case, it is going to be a time-consuming and uphill process to enforce the tribunal Award in 149 contracting parties of New York Convention. As he writes, the enormous award against the Russian government should stand as the starkest warning yet about the dangers of entering into these kinds of agreements: Even though this Award is related to ECT, it provides important policy lessons to other countries which have already signed or currently negotiating bilateral investment treaties (that allow investor-to-state arbitration -- ISA) without any consideration of consequences and potential costs. Here's why: The existing investment protection agreements have failed to address the balance of rights and responsibilities of foreign investors as it offers numerous legal rights for investors without requiring corresponding responsibilities for them. That's a hugely important point that all those countries taking part in the negotiations for TAFTA/TTIP, TPP and CETA would do well to consider carefully -- or they may find themselves on the wrong end of $50 billion award, as Russia now does. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
A certain percentage of police officers are "bad cops," just like a certain percentage of the human race is composed of thuggish sociopaths. That's an unfortunate fact of life. Whether the percentage of bad cops is greater than the percentage in non-law enforcement positions is still open for discussion, although there's a lot about a cop's job that would attract thuggish sociopaths: power, better weapons, nearly nonexistent accountability, etc. We often ask why bad cops aren't rooted out more quickly. And the answers are depressing and numerous. Bad cops are protected by their own. Bad cops are also, unfortunately, protected by otherwise "good" cops because "bad cops" are often the most dependable of cops. In the rare cases when bad cops are cut loose from the force, the local police union usually works tirelessly to get them reinstated. But even within police departments themselves, there's little interest in rooting out the bad apples. Inside every cop shop is an Internal Affairs department. In some rare cases, these departments are effective in rooting out the worst of the force. In return for this service, they are universally reviled by the rest of the department -- even by "good" cops. And they often see their uphill battles undone by police unions or upper management. In other cases, though, Internal Affairs is just another integral part of the defensive "blue line" that shields bad cops from accountability. Among the many instances of abusive behavior uncovered by the DOJ's review of the Newark (NJ) police department (including racist behavior, stop-and-frisk abuse, intimidation and excessive force being routinely deployed) is this incredibly ugly statistic. The previous year, the American Civil Liberties Union had filed a complaint with the Justice Department accusing police of misconduct. The group provided statistics showing that only on rare occasions did the department act on complaints against officers accused of using excessive force or conducting improper searches and false arrests. In 2008 and 2009, only one complaint of 261 filed was sustained by department investigators, the ACLU found. The Justice Department review appeared to confirm that the trend continued in the ensuing years; from 2007 to 2012, just one complaint of excessive force made by civilians was sustained. One complaint sustained in five years. New Jersey US Attorney Paul Fishman blamed this on a "dysfunctional Internal Affairs department." Paul: you spelled "corrupt" wrong. The only way this happens is if Internal Affairs is in the business of clearing officers of wrongdoing, rather than investigating allegations. That's not accountability. That's aiding and abetting. The DOJ uncovered all sorts of misconduct that should have been discovered by IA and corrected by PD management. Blacks, on average, are 2½ times more likely than whites to be stopped on the street, the report found. While Newark police conducted 111 stops for every 1,000 residents among whites, it made 283 stops for every 1,000 residents for blacks — even though the likelihood of finding evidence of crime was about the same for whites as it is for blacks, the report noted… The reports also said there were "credible" complaints that police sometimes detained people in their cruisers without filing charges, calling it "a humiliating and often frightening experience." It also documented so-called "contempt of cop" arrests, a phrase used to describe people charged with a crime because they lawfully objected to police actions or were disrespectful. Finally, in a sentence that is inadvertently hilarious, the DOJ notes that the Newark PD likes to punch people until they calm down. And, the report noted, officers were quick to defuse volatile situations by using open and closed fists to the head, even though "in many cases these actions were not necessary … and seemed to be simply retaliatory." The Newark Police Department is ugly all over and Internal Affairs is as much to blame as every officer who participated in this abusive behavior. But it's not just complicit Internal Affairs departments keeping bad cops on the force. It's also people outside the department who are equally unwilling to hold officers accountable for their abusive behavior. (via Ben Swann) The Hartford state's attorney has rejected an arrest warrant submitted by Enfield police to charge one of their own officers with third-degree assault and fabricating evidence. The seven-page arrest warrant application submitted by Lt. Lawrence Curtis concluded that Officer Matthew Worden hit suspect Mark Maher with punches that "were neither necessary nor needed" during an arrest on April 1. Hartford State's Attorney Gail Hardy rejected the arrest warrant application late last week, concluding that although Worden's actions might violate police department rules they did not rise to the level of criminal prosecution. "Although striking Maher may have violated Enfield Police Department's use of force policies, Worden's conduct seemed to be aimed at an attempt to restrain Maher who was resisting officers' attempts to handcuff him, rather than an intention to inflict physical harm," Hardy concluded. When police departments make proactive moves to not only oust but press criminal charges against one of their own, it should be taken seriously. No one knows better just how abhorrent Officer Worden's behavior was than the Enfield Police Department. But when it tried to do the right thing and hold him accountable for his misconduct, the State's Attorney's office shut it down. And not only did it shut the arrest warrant down, it made excuses for the officer's actions. Officer Worden said Maher was "clenching his fists" and "tensing his arms" as he moved in to effect the arrest. This supposed resistant behavior led to the following: Worden told Curtis that he delivered two closed fist punches aimed at Maher's upper right arm "to disrupt the nerves and incapacitate the muscles so the arms could be controlled." Worden said Maher was thrashing on the ground after officers took him down and that "this thrashing caused one of the punches to hit Maher in the right side of his forehead above the eye," the application states. Except the booking photo shows the punches landed somewhere else, contrary to Worden's assertions. This looks like the result of a direct hit, not the "right side of the forehead above the eye." Then there's this: The application states Curtis concluded that the video did not show Maher resisting arrest and that at one point it shows Worden, while Maher is on the ground with one arm pinned behind him, stopping to adjust the glove on his right hand before delivering two of the four punches he threw. I would think someone has effectively stopped "resisting" if the apparently threatened officer has time to make sure his punching fist is gloved properly. Adding to the ridiculousness of the State's Attorney's decision is the fact that the entire incident was caught on video. The attorney's excuse for seeing/not seeing the same actions that led to the PD drawing up a warrant for Officer Worden's arrest? The arrest scene was complex, therefore: nothing to see here. In her letter rejecting the arrest warrant Hardy said the video "depicts many moving parts where it is extremely difficult to keep up with everything that is going on with all parties." "ALL parties?" Does Hardy mean all both of them? She only had two people to keep an eye on: Maher and Worden. But she makes it sound as though the altercation took place on the Coca-Cola bottling factory floor during a visit by a touring Cirque de Soleil troupe. This willingness to see the forest rather than the trees does nothing to deter future bad behavior by Worden or any other officer on the force. And it's apparent that Worden was one of Enfield PD's worst. Enfield, a department with nearly 100 sworn officers, has had 26 civilian complaints in the past four years. One-third of those were against Worden, records show. In 2013, Worden had half of the six citizen's complaints against the department. In his seven years on the force, Worden has been involved in a domestic dispute, fought with another officer, and faced multiple complaints about racist behavior or racial profiling. Notably, not a single complaint filed since 2010 has been sustained. Internal Affairs has played a part in Officer Worden's lengthy, troublesome career. But this is yet another part of the "bad cop" problem. Worden had been previously suspended and ordered to attend additional training, but those deterrents haven't worked. He's apparently still a problem for the department. So, the department made what appears to be a long overdue move and brought assault and fabricating evidence charges against one of its own -- an incredibly rare move in the world of law enforcement. And when it did, the state's attorney tossed it out because the recording was hard to follow and her office apparently doesn't feel it can win the case. But we can be 100% sure that if the situation was reversed, and the arrestee had dealt out a few punches of his own, Hardy's office would have suddenly found the recording easy to follow and clearly indicative of the citizen's guilt. The system has been rigged for so long that when a law enforcement agency tries to buck the trend by holding an officer accountable, its efforts are completely undermined by the next step in the legal process. Bad cops are here to stay. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Queuing theory is a subset of applied math that looks into the behavior of waiting in line and algorithms that optimize various aspects of this particular kind of resource allocation. Retailers of all kinds are interested in this kind of math because it can improve customer satisfaction and get more products out the door. Apple reduces long cashier lines with employees who can accept payments anywhere in its stores. Fry's Electronics has the giant single line that feeds into a massive array of cashiers (aka the serpentine line). There are self-checkout lanes at the grocery store, but there's no silver bullet to eliminate waiting in lines. Here are just a few more links on this problem of civilization. Ever pick a checkout line at the grocery store and think "I always pick the slowest lane" once you've committed to a particular cashier? The math says that the odds of picking the fastest lane are against you, so you're most likely right that you never pick the fastest line. [url] Waiting in line at Disney can be cut short with its Fastpass system, but what does Fastpass really optimize? FYI, Disney doesn't let you hire disabled kids to cut in line anymore. [url] The best system for boarding planes is not the one that most airlines use, but Southwest's boarding method does pretty well. A few studies have looked at how to board planes more efficiently, but the Jason Steffen method isn't used by any airline (and there's little incentive for most airlines to change what they're currently doing). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
The Union Street Guest House in Hudson, New York, joins the small group of businesses who have attempted to levy fees against customers who leave negative reviews. It's an exclusive group that no business should want to be a part of, one that includes the infamous and possibly French geek gadget re-shipper KlearGear. Page Six was the first to report on this customer-unfriendly clause residing in the rental terms and conditions: If you stay here to attend a wedding and leave us a negative review on any internet site you agree to a $500. fine for each negative review. If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event (this is due to the fact that your guests may not understand what we offer and we expect you to explain that to them). Not only is the clause incredibly stupid and openly antagonistic, but it holds renters responsible for the actions of anyone in their party, including guests whose experience may have been drastically different than the renting party's. It even tells renters to spread the news that no negative reviews should be posted, which should be enough to tell potential customers to rent elsewhere. Now, the Union Street Guest House has all the negative reviews it will ever need. As soon as this started spreading around the internet, it's Yelp page quickly filled up with negative reviews, forcing the business to offer this "explanation" on its Facebook page. The policy regarding wedding fines was put on our site as a tongue-in-cheek response to a wedding many years ago. It was meant to be taken down long ago and certainly was never enforced. Oh. Well, LOL… I guess. I'm not sure the "it was all a joke" defense is going to undo the damage done by its decision to insert this language into its rental terms, no matter what the original impetus. This also doesn't explain why a lousy joke was allowed to be part of the official policies for nearly two years (it appeared sometime between August and October 2012). It's gone now, but there's still an edge to USGH's voice in the amended terms, which indicates the Guest House is in no hurry to hand out refunds, return deposits or deal with chargebacks. CANCEL AT YOUR OWN RISK, WE DO NOT ACCEPT ALL CANCELLATION REQUESTS... If you file for a charge-back (request a refund directly from your amex or bank card) or file a complaint to any 3rd party organization during that time you are responsible for any fees associated with it and doing so will only hold up the refund process... The deposit will not be refunded until we feel that everything is 100% resolved (we reserve the right to refund at any time). If you hold the entire Inn you are responsible for every room. There are no "releasing" rooms prior. If there are any unused rooms you forfeit your entire deposit. All chargebacks and any other fees related to any charges from anyone in your party (that they have not paid) will be deducted from your deposit. According to Page Six, there's also a bit of an edge to its voice in its handling of earlier negative reviews: For any bad reviews that do make it online, the innkeepers aggressively post “mean spirited nonsense,” and “she made all of this up.” In response to a review complaining of rude treatment over a bucket of ice, the proprietors shot back: “I know you guys wanted to hang out and get drunk for 2 days and that is fine. I was really really sorry that you showed up in the summer when it was 105 degrees . . . I was so so so sorry that our ice maker and fridge were not working and not accessible.” It would seem obvious that there are better places to spend your money, especially since the chance of you receiving your deposit seem incredibly slim. The most objectionable part of the terms has been removed, but only because it went completely public. At no time during the last two years did the Guest House take down this clause, which seems to indicate that it wasn't the inside joke it's now pretending it was. I don't know why this lesson even needs to be learned at this point. If businesses haven't figured out that attempting to suppress bad reviews almost invariably only results in more bad reviews, this sort of stupidity and inevitable backlash should be viewed as nothing more than culling the herd. If you'd rather try to silence unhappy customers than address the problems in your own business, you deserve to have your reputation torched to the ground. But don't blame the internet. This fire was started by the Union Street Guest House itself. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
So, this morning we wrote about comic artist Randy Queen sending copyright notices to Tumblr to make a bunch of posts disappear, which were critical of his work. The take downs were for the Tumblr Escher Girls, which tracks and highlights the ways in which women are portrayed in popular media (frequently comics) -- basically highlighting the ridiculous manner in which women are often drawn. Queen apparently wasn't too happy about it and issued copyright takedowns to Tumblr, despite the strong fair use defense. The Escher Girls blog posted what was, frankly, an incredibly even-handed post about the situation, just letting people know what was going on. The author specifically noted no desire to fight back or attack Queen, but just to let people know. It appeared that Escher Girls had no plan to even file a counter notice. Still, apparently just that post was too much for Queen. Ami Angelwings, the owner of Escher Girls tweeted out this morning that Queen is now threatening to sue her for defamation over the post. Here's his email: If you can't read it, it says: Dear Eschergirls and Kim, I would encourage you to put a stop to all of this. I have no problem getting legal involved for defamation, and for your various allegations on your takedown notice thread, and am happy to send a formal cease and desist letter from my lawyer. Instead of simply removing the content you do not have the right to electronically distribute, you wish to push further, and publicly challenges my right to protect the perception of my IP as it exists today. At this point, I will ask you to please move along, as no good will come of this. Additionally, instead of taking shots at art someone did 18 years ago while they were still learning - which are no longer representative of their current art style or direction for their character - I encourage you to spend your time and energy on creating your own characters and comics which you can mkae your own personal sacrifices to bring to the world. Sincerely, ~R Where to start? So, we go from bogus attempts to stifle criticism via copyright law, to then trying to stifle discussion of that stifling by bogus defamation threats. Someone really doesn't like being criticized apparently. Anyway, it's difficult to see how there's anything close to defamation here. Queen is a public figure and this was pure criticism of his artwork and then a factual explanation of a takedown he or his people sent. To show defamation he'd first need to show what was false (and notice that his email provides no example of any false statement -- only that he doesn't like the opinions being expressed) and that it was done with "actual malice" which seems desperately unlikely here. Perhaps, rather than "threatening" to "get legal involved," Queen would have been better served speaking to a lawyer who might disabuse him of his apparent notion that "stuff I don't like about me" is "defamation." Second, concerning the copyright arguments. Queen ought to familiarize himself with fair use. Again, this was a pretty clear case of fair use. They were using very small snippets of his comic work, clearly for the non-commercial purpose of criticism. It's almost exactly what fair use was designed for. Third, Escher Girls was not "publicly challeng[ing]" Queen's right to "protect the perception of my IP." You have no right to protect the perception of your IP. Perception is an individual thing. At most, he might be able to make a claim that he had a legitimate right to do a takedown, but even so none of that would ever stop Escher Girls (or anyone else) from then discussing the takedown notice and what happened. Queen already appear to believe copyright provides him more rights than it does (since he doesn't seem to understand fair use), but to take that even further and pretend it also allows you to police the perception of his work is really far out there. Again, he might want to "get legal involved" earlier in the process, before he makes even more ridiculous statements. And, indeed, "no good will come of this" sounds about right, but it was Queen who probably should have "moved along" rather than trying to (1) abuse copyright law to pull down criticism and now (2) abuse bogus defamation claims to try to silence a blog post about his abuse of copyright law.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
The FBI's production of privacy impact assessments (PIAs) lags far behind its deployment of privacy-impacting technology. From facial recognition software to Stingray devices to its drone usage, the FBI has always violated privacy first and assessed the damage later. In some cases, it hasn't bothered to assess the impact at all, despite repeated assurances to questioning lawmakers that the required report (and it is required) is (forever) nearing completion. Its biometric database, which pulls in photos from all over the place for its facial recognition software to peruse, rolled out without the required PIA in 2012. Two years later, the FBI is still promising Eric Holder that the PIA will be completed literally any month now, even as it hopes to have the system fully operational by the end of the 2014 fiscal year. It has supposedly cranked out a PIA for its drone use -- again lagging far behind its first reported deployments in "late 2006." But the public apparently isn't allowed to know how the agency's drone use impacts its privacy. Instead of placing the assessment on its website for public viewing (the default method), the FBI has stashed it behind every shady government entity's favorite FOIA exception: b(5). Here's the entirety of the "responsive documents" returned to MuckRock. As Shawn Musgrave reports, the FBI withheld EVERYTHING. Federal law requires the FBI to assess surveillance technologies for potential privacy and/or civil liberties issues. These technology assessments are typically prepared for public posting and review. When it comes to drones, however, the FBI has redacted these privacy reviews in full… Even the cover sheets have been withheld. The reviews are recognizable only from their titles as provided on the disc of responsive documents sent in May: “1218644-0 - Drone PIA - Drone PIA.PDF” and “1218644-0 - Drone PIA - Drone PIA-Drone PIA Section 2.PDF.” While the DOJ does allow for redactions and the withholding of documents for certain reasons ("classified, sensitive otherwise protected information"), it also requires responding agencies to file a document stating their reasons for withholding PIAs. The FBI also withheld this document -- assuming it even exists. If I was a betting man, I'd say it's going to take a lawsuit to get this assessment released. The government's track record on transparency is horrific, even without the specter of "terrorism" or "drugs" being cited in the FOIA refusal. Since the FBI deals with both, it's a given that it will fight to withhold information that concerns its surveillance programs' impact on the public from the same public whose privacy it's invading. A Privacy Impact Assessment should never be private. While some information will probably need to be redacted, the complete refusal to release this document should be taken as an insult by the public, and as a further indicator of the government's inherent untrustworthiness. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Back in January, I had a brief exchange on Twitter prompted by this news story. The gist is that A. O. Scott, film critic for The New York Times, posted a tweet about the film Inside Llewyn Davis. The film's promoters took out a full page ad in the Times displaying the tweet (or more accurately, the last two sentences of the tweet). The linked article's discussion assumes that Scott "own[s] the copyright to his tweets," but notes that by tweeting, Scott could be presumed to be granting an implied license for reuse of the tweet elsewhere. But can you even copyright a tweet? I did some research and was unable to come up with a clear answer. There was some academic discussion of the issue, and occasional instances in which Twitter users claimed others were infringing their tweets, but I could not find a clear instance in which someone had actually registered a copyright in a tweet. So, 7 months and $35 later, I have my answer: no, you cannot copyright a tweet. That, at least, is what the registration specialist at the Copyright Office decided to send me in response to my attempt to register this tweet as a literary work entitled "Tweet #452″: Monkey bar fallacy: a bad person using something makes it bad. E.g., users of monkey bars include: children, TERRORISTS #tor Of course, the rejection of this particular tweet does not imply that no tweet can be copyrighted. Perhaps the registration specialist did not feel my tweet was valuable or creative enough, and thus did not pass the (very low) threshold of originality. This makes me wonder whether short poems like haikus are eligible for copyright protection. Browsing the Copyright Office's registration database, I can find a number of registered literary works labeled "haikus" that are no longer than one page. Perhaps I would have had more luck if I had instead tweeted a haiku: Monkey bar fallacy: A bad person using something Makes it bad. (For sticklers, yes, I know it's not 5-7-5, but it is 17 syllables.) Ultimately, I wonder if the Copyright Office applies more scrutiny to short literary works than it does to photographs. In the U.S., we work under the assumption that every photograph taken by a human being is copyrighted. But I take a lot of photos, and many of them take far less time, effort, and creativity to compose than a tweet. Here's an example: Other countries have found that some photographs simply aren't creative enough to warrant copyright protection. Wikipedia has a brief summary and link to the German text of a Swiss case in which a reporter's photograph of a man holding record books was ruled ineligible for copyright. It would be a fun, albeit expensive, experiment to try and register a variety of liminal works: handfuls of sentences, short quines, run of the mill photographs, "sculptures" made of a few Lego pieces, etc. I would contest the office's decision about my tweet, but I don't want to pay $250 out of pocket to do so, and I also don't really want to write a funding proposal to try and convince someone else to give me the money. To wrap up this little experiment, the Copyright Office's online registration process allows registrants to submit comments with their registrations. I submitted the following text, although I have no way of knowing whether it was ever read: In Ashleigh Brilliant v. W.B. Productions, Inc. (Civ. No. 79-1893-MBM, S.D. Cal Oct. 22, 1979), a U.S. District Court found that Brilliant's copyrights on three epigrams were valid and enforceable. The epigrams were 12, 15, and 10 words respectively. Each was a single sentence, lacking rhyme or meter; rather, their originality consists of their pithiness. Tweet #452's originality is similar: using 20 words and two sentences, it exposes the logical fallacy inherent in blaming tools, using humor and topical examples to communicate the point. Circular 34 states that "copyright law does not protect names, titles, or short phrases or expressions." Tweet #452 is clearly not a name or title, leaving only the question of whether it is a short phrase or short expression. The Oxford English Dictionary defines a phrase as "a small group or collocation of words expressing a single notion, or entering with some degree of unity into the structure of a sentence; a common or idiomatic expression." Expression is similarly defined as "A word, phrase, or form of speech." Tweet #452 cannot be classified as either a "phrase" or "expression," since it contain two complete sentences (i.e., two subject-verb pairs). Thus, Tweet #452 does not fall within the scope of Circular 34. Even if Tweet #452 were considered a phrase or expression, phrases or expressions as such are not necessarily ineligible for copyright, since Circular 34 specifies that only "short phrases or expressions" are ineligible for copyright, thereby suggesting that longer phrases or expressions are eligible. This post and the included image are licensed CC BY-SA 4.0, and may be shared and reposted with attribution. When reposting, please include a link back to the original story, which will contain the most up-to-date version.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Another in our series on copyright being used for censorship. Pointed out by Kevin Carson, comic artist Randy Queen, the author of Darkchylde has apparently filed a bunch of DMCA takedown notices against posts on the Escher Girls Tumblr page -- which "archives and showcases the prevalence of certain ways women are depicted" in various pop media, including comics. It appears that Queen did not like being criticized in this manner. And, yes, it does appear that the Tumblr made use of his artwork -- after all that's what it does -- but it seems like a fairly clear case of fair use, given the purpose and nature of the account. Furthermore, the creators of the site note that other critical posts on other Tumblrs have apparently been removed, but they haven't found any positive versions of his work removed: So yesterday I found out that Randy Queen (artist of DarkChylde) filed a bunch of DMCA takedown notices to Tumblr to remove posts of his covers on this blog (the entire posts, not just the images). I’ve also gotten messages from other users that he’s had their stuff removed too (redraws, etc that have been featured here). Non-critical Tumblr posts of his art/covers and those praising his work appear to be unaffected. The folks behind Escher Girls apparently aren't inclined to fight it (and even say they don't wish to pick a fight with Queen), but are just informing people of what's going on. Still it is troubling. It's worrisome that Queen appears to be abusing the DMCA in this manner. It's unfortunate that Tumblr just gave in. It's disappointing that Escher Girls apparently isn't even going to file a counternotice. The end result is the same again: copyright is being used for censorship of criticism, rather than as an incentive for creativity.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
On Friday, we wrote briefly about President Obama's "admission" that "we tortured some folks." At the time I was going off of the press reports of the conference, but now that I've read the full transcript of his statement, it's much worse than just that brief comment. Here's the relevant portion: With respect to the larger point of the RDI report itself, even before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it's important when we look back to recall how afraid people were after the Twin Towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen, and people did not know whether more attacks were imminent, and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots. It was the "we tortured some folks" that reasonably made headlines, but the following paragraph, in which he tries to brush it off, is what's really troubling. Imagine any other crime, and think about whether or not you'd have someone say it was okay because there was "enormous pressure" on the people committing the crime. Imagine any other crime, and being told "not to feel too sanctimonious" because of what a "tough job" any other criminal had. I'm sorry, but I don't care how much pressure anyone was under, plenty of people who are actually "real patriots" know that you don't torture people. Not only does it not work, it's morally reprehensible. "You don't torture" is a pretty straightforward concept -- and one that was pretty clearly known and articulated prior to all of this. Nothing that happened on 9/11 or in the aftermath magically made war crimes like torture okay. Those aren't "patriots," and defending them because of the "pressure" they were under is an incredibly cowardly and disgusting move.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
On Friday, we wrote about Senator Dianne Feinstein's concern about how much of the executive summary of the Senate Intelligence Committee's report on the CIA torture program had been redacted during the declassification process. In response, Director of National Intelligence James Clapper has angrily shot back that there were only "minimal" redactions: More than 85% of the Committee Report has been declassified, and half of the redactions are in footnotes. The redactions were the result of an extensive and unprecedented interagency process, headed up by my office, to protect sensitive classified information. We are confident that the declassified document delivered to the Committee will provide the public with a full view of the Committee’s report on the detention and interrogation program, and we look forward to a constructive dialogue with the Committee. Compare that to Feinstein's statement, which noted: A preliminary review of the report indicates there have been significant redactions. We need additional time to understand the basis for these redactions and determine their justification. Reporter Jason Leopold spoke to some people knowledgeable about the redactions, who said that they were about methods of torture that hadn't been revealed... and about countries that helped the CIA. Basically, more stuff that would embarrass the CIA and certain allies, but which wouldn't actually impact national security today. Two officials with access to the declassified executive summary told VICE News that some of the redactions allegedly pertain to the manner in which the detainees were held captive, and to certain torture techniques that were not among the 10 “approved” methods contained in a Justice Department legal memo commonly referred to as the “torture memo.” The officials said the never before–revealed methods, which in certain instances were “improvised,” are central to the report because they underscore the “cruelty” of the program. Some other redactions allegedly pertain to the origins of the program and the intelligence the CIA collected through the use of torture, which the Senate report claims was of little or no value — a claim with which the CIA disagrees. Another US official told VICE News that the CIA “vehemently opposed” the inclusion of some of the footnotes because they allegedly revealed too many “specific” details about the CIA’s operational files, which evidently contain information about foreign intelligence sources and operations, and provide clues about the foreign governments that allowed the CIA to operate its torture program in their countries. (The National Clandestine's Service's operational files are protected from public disclosure and open records laws.) The report, according to the US official, identifies the countries where the suspected terrorists were held as “Country A, Country B, Country C.” Of course, if we're going to "come clean" on this black spot in our history, it would help to really come clean about it. Hiding that the torture the CIA did was much worse than originally thought means that officials still aren't willing to come to terms with what the CIA did.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Gideon, the pseudonymous public defender who blogs at A Public Defender, has a thorough rundown of a very disturbing ruling recently issued by the Connecticut Supreme Court. It involves every Connecticut citizens' civil liberties, which have now been thrown under a bus bearing the name "officer safety." The court's decision basically makes everyone a suspect, even if they're suspected of nothing else than being in the relative proximity of someone a police officer suspects of committing a crime, or someone simply "matching the description." How does this work in practice? Gideon posits a single scenario, as interpreted by the person being (wrongly) detained and those doing the actual detaining. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom? The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”. As always, this situation becomes your word against theirs. But the court has now placed even more confidence in "theirs." Your version is that you just happened to be in the vicinity of someone the police are expressing interest in. Their version is that anyone within eyesight is probably either a) an accomplice or b) a threat. And it gets even worse. The police can be completely in the wrong and still be covered by this ruling. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you. This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. So, police can be targeting the wrong person and sweep up anyone who happens to be in the vicinity and still be immune from the consequences. In essence, the court gives police the ability, if not the actual right, to detain anyone at anytime for no reason at all. How did the court manage to arrive at this bizarre rights-trampling ruling? Well, it had to do a whole lot of re-imagining of the actual events using the most paranoiac of police officers' mindsets. As Gideon points out, he's never seen the court engage in such a thorough retroactive fact-finding mission -- one that involved massaging the facts until they conformed with the court's preferred outcome. From the majority opinion: The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found. Explained in plain English by Gideon, who has been following this case as it has progressed through the system: In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it. The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court. The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation. It doesn't add up, but the court fudged the math. Officer safety trumps rights because credible threats are credible even when they're not threats (a probation violation rather than an "armed and dangerous" suspect) and even when they're not credible (no witnesses stating anything to the effect of "armed and dangerous"). The dissenting opinion shows just how dangerous this ruling is. I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. This is a law enforcement blank check. This allows police to use spurious reasons to detain people they just don't want around -- like eyewitnesses and photographers. This allows police to perform en masse detentions and gives them the opportunity to root around from something more than weak obstruction/interference charges. This eliminates the public's right to live their lives unmolested by law enforcement officers. This makes simply existing "guilt by association." If a criminal is arrested in your yard, you and everyone in your house and every rubbernecker on the street can be detained by officers in order to ensure their safety. Just as troubling is the amount of creative thinking the court had to engage in to reach this horrific decision. Facts are no longer facts. Facts are just something to be considered or discarded at the court's whim. It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal… Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority? The Connecticut Supreme Court has delivered its public into the hands of a police state. Anyone, anywhere can be detained for absolutely no reason at all, and when they complain or file lawsuits, this ruling will allow officer safety to override all other concerns. If any facts are actually considered, they'll be filtered through law enforcement sensibilities. Permalink | Comments | Email This Story

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posted about 1 month ago on techdirt
This week, we were very happy to have a guest post from Jennifer Hoelzer explaining the impact that Techdirt can have in Washington. Not only was it a popular post, Jennifer took both first and second place for insightful this week with her followup comments. Firstly, there was a very thorough response to someone who claimed her story demonstrated the need for lobbyists to "educate" congressional staffers: With all due respect, sir, I worked on Capitol Hill for 10 years, the White House for 2 and I have a masters degree in public policy from Harvard. I've been subjected to so much spin in my life that I can spot it at 100 paces blindfolded. I wouldn't be a very good communications strategist if I only read/considered issues from one perspective. Unlike some who's strategy for winning debates is to silence their opposition, I actually work to understand the opposition's side, so I can understand their thinking, address their concerns and counter their arguments (and maybe change their minds.) Maybe it's not the textbook definition, but I define "public advocate" as someone who advocates for interests beyond their own. I'm not saying those people won't benefit from their advocacy (most public interest advocates got involved because of a personal experience) but that they're thinking of others, the future, etc. not just how to protect/grow themselves financially at the expense of the interests of others.. Techdirt continued its SOPA/PIPA advocacy even when it hurt them financially. And -- as I said -- that's the problem with public advocacy. While a special interest lobbyists could be making high six figures to devote themselves to making sure members of Congress understand their client's interests, most people who advocate for the public interest do it on their own time, for free. I don't know about you, but I think if we want to fix society/congress, etc. we need to find a way to make doing good just as profitable as screwing people. (Or at least a little profitable.) Also - for the record - as I tried to explain in my post, Members of Congress and their staff are more likely to take a stand on an issue when they are confident in their knowledge of an issue. I might know that a lobbyist is spinning me, but I'm probably not going to pick a fight with them publicly unless I know enough about the issue to debate them. And - as I tried to explain -- there is so much going on that, you, as a staffer, might say to yourself. "When I get some time, I'm going to research that issue," but then you get so busy that 6 months later, you're like "shoot, I really wanted to learn about that, but now the debates over." I loved Techdirt because it gave me the user perspective on tech issues, that wasn't being represented in Washington, in an easily digestible and understood way. Understanding the issue made it possible for me to jump on communication opportunities in real time vs. backburnering them until I could learn more. Again, that's why I'm giving to Techdirt and I hope others will too. Next, Jennifer had a short and poignant take on why defeatism gets you nowhere: Two days before the Jan. 2012 Internet protest, I had a reporter ask me why our office was fighting SOPA/PIPA so hard because "Won't it be embarrassing when you guys lose." As Ron Wyden once told me, "the right thing to do may not have much of a chance, but it has zero chance if no one fights for it." For editor's choice on the insightful side, we start with a response to Amazon's analysis of price elasticity for ebooks. While Amazon's data reinforced an important point, That One Guy pulled some additional numbers to show how Amazon may not have gone far enough: Some extra numbers regarding lower price points While Amazon notes that the increase in sales between 14.99 and 9.99 is significant, and actually earns the author more when priced lower, a year or so ago Smashwords, another ebook seller, did their own study, and found that the real sweet spot is in the 3-3.99 range, which, according to their data, sells at a rate of 4.3 times more than a book priced at $10(funnily enough the 2-2.99 range only sells at 4.1x comparatively). Assuming that figure holds up in both indie, and 'professional' ebook markets, if the authors really wanted to rake in the cash, and increase their audience size, they'd be pushing the publishers to slash their (currently insane) prices even lower. Source: http://blog.smashwords.com/2013/05/new-smashwords-survey-helps-authors.html Next, we've got Mason Wheeler with an attempt to hammer home the message that content isn't everything: The industry's idea is "content is king." They've thought that forever, and they've been wrong about it forever. Content is fungible to the point of irrelevancy; get rid of one piece of content and another will show up to take its place. The true king is connectivity. Create a platform that allows people to interact with each other, and content will arrive to fill it. This has been true since the days of the Pony Express. Create content, and nothing interesting to do with it, and nobody will care. Connectivity is king. Content is just riding its coattails. Always has been, always will be. Over on the funny side, we start out with Verizon's attempt to spin its bandwidth throttling as a wonderful new feature. Bt Garner took first place for funny with a simple but illustrative response: I am still waiting for the comments to load. Sent from my Verizon iPhone For second place, we head to the seemingly-too-ludicrous-to-be-true story of the language school that fired a blogger for discussing "homophones". Lots of people unsurprisingly had jokes to make, but Chronno S. Trigger racked up enough votes to land in second place for funny (plus a lot of insightful votes, too): It's a language school. Aren't they suppose to teach the difference between "Homophones" and "Homophobes"? For editor's choice on the funny side, we've got two responses to two different bits of news from across the Atlantic. First, in a discussion about the European Commission's revelatory consultation about copyright and reform, MadAsASnake suggested a means of determining whether the length of current copyright terms are justifiable: A better test would be to demand that someone who died 70 years ago explains how it benefits him. I'm prepared to accept it if he/she can come up with a really good reason. And finally, after a UK government report suggested doing away with anonymity online, silverscarcat took a guess at just why it makes them so nervous: Well, it's the UK... The last time they let anonymous speech run rampant, they lost 13 colonies. That's all for this week, folks! Permalink | Comments | Email This Story

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