posted 25 days ago on techdirt
Astrobiology is a field that doesn't have a whole lot of experimental evidence, but it's interesting to entertain the possibilities of life that might exist elsewhere in the universe. So far, we've been looking for ET biology that's similar to our own, but there's nothing that says biology must be based on DNA/RNA/proteins/etc. Here are just a few more links on possibly finding life on other worlds. Stars in our galaxy generally travel only a few hundred miles per second relative to their peers, but some hypervelocity stars traveling at hundreds of thousands of miles per second might escape our galaxy -- and spread life across the universe. It could happen theoretically, but no one has yet observed this phenomenon directly. [url] Data from the Kepler mission suggests possibly-habitable planets exist near a significant fraction of all stars -- providing better estimates for values in the Drake equation. However, we're still probably very far away from our nearest neighbors (if they even exist). [url] How tough is DNA? Tough enough to survive on the outside of a rocket going to space and also re-entry from orbit. Presumably, this also means that it's not impossible for ET DNA to arrive on the tons of meteorites that hit our planet every day.[url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted 25 days ago on techdirt
We've written plenty about Stingrays and other "IMSI Catcher" devices that allow law enforcement to set up what are effectively fake cell phone towers, designed to intercept calls and locate certain individuals. These devices are deployed in near total secrecy, often by law enforcement who got them from the federal government. There is little to no oversight over how these are used (and abused). The attempts to keep the details a total secret represent really egregious behavior from all involved. As we've covered, police have claimed that non-disclosure agreements with the manufacturers (such as Harris Corp.) prevent them from getting a warrant to use the devices. The DOJ, somewhat famously, had a whole plan for how to mislead judges about the use of these devices, with official documentation telling DOJ officials to be "less than explicit" and "less than forthright" to judges about how the tech was being used. In some cases, the US Marshals have stepped in and seized documents from local police forces to block them from being released in response to FOIA requests. In short, law enforcement really doesn't want how it uses these devices revealed. And yet, reporters and activists keep digging up more information, including the WSJ finding out that the US Marshals (them again!) have been putting airborne versions of these devices, called DRT boxes, on airplanes and flying them over cities, likely scooping up information on tons of innocent people with no warrant. At least some in our government are concerned about this. Senators Patrick Leahy and Chuck Grassley have been pressing government officials on this, and before the holidays sent a letter to Attorney General Eric Holder and Homeland Security Boss Jeh Johnson demanding answers. One very interesting tidbit is that in response to some of this public disclosure, the FBI now, at least, gets warrants before using the technology -- but the Senators would like more details: We wrote to FBI Director Comey in June seeking information about law enforcement use of cell-site simulators. Since then, our staff members have participated in two briefings with FBI officials, and at the most recent session they learned that the FBI recently changed its policy with respect to the type of legal process that it typically seeks before employing this type of technology. According to this new policy, the FBI now obtains a search warrant before deploying a cell-site simulator, although the policy contains a number of potentially broad exceptions and we continue to have questions about how it is being implemented in practice. Furthermore, it remains unclear how other agencies within the Department of Justice and Department of Homeland Security make use of cell-site simulators and what policies are in place to govern their use of that technology. But, still, the Senators would like a few more details: The Judiciary Committee needs a broader understanding of the full range of law enforcement agencies that use this technology, the policies in place to protect the privacy interests of those whose information might be collected using these devices, and the legal process that DOJ and DHS entities seek prior to using them. For example, we understand that the FBI’s new policy requires FBI agents to obtain a search warrant whenever a cell-site simulator is used as part of a FBI investigation or operation, unless one of several exceptions apply, including (among others): (1) cases that pose an imminent danger to public safety, (2) cases that involve a fugitive, or (3) cases in which the technology is used in public places or other locations at which the FBI deems there is no reasonable expectation of privacy. We have concerns about the scope of the exceptions. Specifically, we are concerned about whether the FBI and other law enforcement agencies have adequately considered the privacy interests of other individuals who are not the targets of the interception, but whose information is nevertheless being collected when these devices are being used. We understand that the FBI believes that it can address these interests by maintaining that information for a short period of time and purging the information after it has been collected. But there is a question as to whether this sufficiently safeguards privacy interests. The specific questions being asked: 1. Since the effective date of the FBI’s new policy: a. How many times has the FBI used a cell-site simulator? b. In how many of these instances was the use of the cell-site simulator authorized by a search warrant? c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used. d. In how many of these instances was the cell-site simulator used without any legal process? e. How many times has each of the exceptions to the search warrant policy, including those listed above, been used by the FBI? 2. From January 1, 2010, to the effective date of the FBI’s new policy: a. How many times did the FBI use a cell-site simulator? b. In how many of these instances was the use of a cell-site simulator authorized by a search warrant? c. In how many of these instances was the use of the cell-site simulator authorized by some other form of legal process? Please identify the legal process used. d. In how many of these instances was the cell-site simulator used without any legal process? e. In how many of the instances referenced in Question 2(d) did the FBI use a cell-site simulator in a public place or other location in which the FBI deemed there is no reasonable expectation of privacy? 3. What is the FBI’s current policy on the retention and destruction of the information collected by cell-site simulators in all cases? How is that policy enforced? 4. What other DOJ and DHS agencies use cell-site simulators? 5. What is the policy of these agencies regarding the legal process needed for use of cell-site simulators? a. Are these agencies seeking search warrants specific to the use of cell-site simulators? b. If not, what legal authorities are they using? c. Do these agencies make use of public place or other exceptions? If so, in what proportion of all instances in which the technology is used are exceptions relied upon? d. What are these agencies’ policies on the retention and destruction of the information that is collected by cell-site simulators? How are those policies enforced? 6. What is the Department of Justice’s guidance to United States Attorneys’ Offices regarding the legal process required for the use of cell-site simulators? 7. Across all DOJ and DHS entities, what protections exist to safeguard the privacy interests of individuals who are not the targets of interception, but whose information is nevertheless being collected by cell-site simulators? Anyone taking bets on how few of these questions will actually be answered?Permalink | Comments | Email This Story

Read More...
posted 25 days ago on techdirt
Every year for the past few years, the good folks at Duke's Center for the Study of the Public Domain have put up a list of works that should have gone into the public domain on January 1st had Congress not massively expanded the law. Each year, it's a depressing look at what works should be in the public domain. As a reminder, when these works were created, the creators knew the terms under which they were created and knew that they would have gone into the public domain by now -- and they found that to be more than enough incentive to create those works. Given that, it makes absolutely no sense that these works are not in the public domain. The latest list has many, many examples of classic works that should be in the public domain. Here's a list of famous books from 1958 that should have gone into the public domain: Chinua Achebe, Things Fall Apart Hannah Arendt, The Human Condition Isaac Asimov (writing as Paul French), Lucky Starr and the Rings of Saturn Simone de Beauvoir, Mémoires d’une jeune fille rangée (Memoirs of a Dutiful Daughter) Michael Bond, A Bear Called Paddington, with illustrations by Peggy Fortnum Eugene Burdick and William Lederer, The Ugly American Truman Capote, Breakfast at Tiffany’s Agatha Christie, Ordeal by Innocence John Kenneth Galbraith, The Affluent Society Graham Greene, Our Man in Havana Dr. Martin Luther King, Jr., Stride Toward Freedom: The Montgomery Story Claude Lévi-Strauss, Anthropologie Structurale (Structural Anthropology) Mary Renault, The King Must Die Dr. Seuss, Yertle the Turtle and Other Stories T.H. White, The Once and Future King As noted, it's somewhat ridiculous that, say, The Once and Future King is based on public domain King Arthur legends, but is being kept out of the public domain itself. And, seeing how we've just discussed how copyright is being used to hide Martin Luther King's words, it's sad to see that one of his books is also being held back from the public domain. Onto a list of famous movies: Attack of the 50 Foot Woman, a low-budget horror/sci-fi cult hit. Auntie Mame, starring Rosalind Russell, Coral Browne, Roger Smith, and Peggy Cass. The Blob, sci-fi/horror classic starring Steve McQueen in his first leading role. Cat on a Hot Tin Roof, starring Elizabeth Taylor, Paul Newman, and Burl Ives. The Defiant Ones, starring Sidney Poitier, Tony Curtis, and Theodore Bikel. From the Earth to the Moon, starring Joseph Cotten, George Sanders, and Debra Paget. Gigi, directed by Vincente Minnelli and starring Leslie Caron, Maurice Chevalier, and Louis Jourdan. The film garnered 9 Academy Awards. Mon Oncle, writer/director Jacques Tati reprises his comic alter-ego, Monsieur Hulot, and wins the Academy Award for Best Foreign Language Film. Some Came Running, directed by Vincente Minnelli and starring Frank Sinatra, Dean Martin, and Shirley MacLaine. South Pacific, Rodgers and Hammerstein's musical, directed by Joshua Logan, starring Rossano Brazzi and Mitzi Gaynor. Touch of Evil, written and directed by Orson Welles, starring Welles, Charlton Heston, and Janet Leigh. The Young Lions, starring Marlon Brando, Montgomery Clift, and Dean Martin. Vertigo, directed by Alfred Hitchcock, starring James Stewart, Kim Novak, and Barbara Bel Geddes. And some of the top music hits from 1958: "Johnny B. Goode" (Chuck Berry) "Volare (Nel Blu Dipinto Di Blu)" (Domenico Modugno, F. Migliacci, Mitchell Parish (English translation)) "Yakety Yak" (Jerry Leiber & Mike Stoller) "Chantilly Lace" (Big Bopper) "Purple People Eater" (Sheb Wooley) And, of course, it's not just about entertainment, but important scientific developments as well: 1958 was another noteworthy year for science: the US launched the Explorer 1, its first successful satellite, which confirmed the existence of the Van Allen radiation belt. The first integrated circuit was demonstrated. There were groundbreaking publications in the fields of laser technology and cloning. If you follow the link from “cloning” above (and you do not have a subscription or institutional access), you will see that this 1958 article is behind a paywall. You can purchase it for $32. A distressing number of scientific articles from 1958 remain behind paywalls, including those in major journals such as Science and JAMA. You can’t read these articles unless you pay or subscribe. And the institutional access that many top scientists enjoy is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions. It’s remarkable to find scientific research from 1958 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts. As the article notes, all of those works would have been in the public domain if not for the Copyright Act of 1976. Even though the creators of all those works knew -- without a doubt -- that those works would be in the public domain today, they are not. I have yet to see anyone come up with a credible explanation for why that is. Meanwhile, over at Vox, Tim Lee came up with a related, but different, depressing list of works that should be in the public domain. This one looks at works that also got the gift of the 1976 Act, but then still should be in the public domain today... except for the 1998 Copyright Term Extension Act (CTEA) -- sometimes called the Sonny Bono Act. These are works that (even after the 1976 Act) would have been released 75 years ago, which was the limit for "corporate" authored works, but which got extended to 95 years. In other words, these are works that have dodged the public domain "bullet" twice thanks to Congress. There are some impressive works here -- including The Wizard of Oz and Gone With the Wind. Also, the very first Batman comic, meaning that the basic character of Batman would have gone into the public domain. Instead, they're all locked up for many more years, and many people alive in the US today have never had an old work moved into the public domain in their lifetimes.Permalink | Comments | Email This Story

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

Read More...
posted 25 days ago on techdirt
Back in April of last year, we were among the first to report on a very dangerous new law in Russia targeting bloggers, requiring any blogger or social media user with more than 3,000 "visitors" a day to register their real name with the government. The idea, obviously, is to put a massive chill on free speech among popular bloggers and social media users -- making it clear that the government is tracking everything they do. Just recently we noted how various social media platforms were responding to Russian demands that they censor or take down accounts related to opposition politician Alexei Navalny, or other critics of the government. But the blogger/social media law has now gone into effect, and it's having an impact in all sorts of places. For example, chip giant Intel has now announced that it is basically turning off all ways to contribute to its Russian Intel Developer Zone in order to comply with the law. In order to be compiant with the Russian Internet Bloggers Law the following changes will be implemented to Russian Intel® Developer Zone community as of January 1st 2015: Blog post contributions will be disabled Forum contributions will be disabled All commenting will be turned off for russian content While it's unlikely that those in power in Russia today think this is a very big deal, recognize that taking Russians out of forums and discussions concerning key technological developments could certainly come back to haunt Russian technology development. This also comes about a month after Google closed down its Russian engineering office, in response to a different regulatory shift: a "data handling law" that would require all information from Russian users be kept in Russia (making it more easily accessible by Russian officials and the intelligence community). All of these moves may be designed to shore up the existing leadership's political power, but it seems like a fairly short-term strategy, given that the end result is likely to hold back technological expertise and talent at a time when staying on top of technology is so important.Permalink | Comments | Email This Story

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

Read More...
posted 26 days ago on techdirt
When SOPA died its inglorious death, the MPAA's best shot at ISP-level site blocking died with it. But the MPAA is nothing if not stubborn and is still willing to wreak havoc on the internet in exchange for a slight dip in infringement. According to a leaked document from the MPAA's law firm [pdf link] and two public filings in support of the International Trade Commission (sent over by Charles Duan of Public Knowledge), the movie industry is hoping to use the agency's new willingness to regulate digital transmissions like physical goods as a foundation for site blocking. As we've discussed for years, the ITC has been an active player in helping US patent holders go after those they believe are infringing. Generally, this has taken the form of blocking imports of infringing physical goods -- that the ITC deems as infringing (using different rules than the US court system). This has often allowed patent holders two separate bites at the apple -- one in the courts, and one at the ITC. But a recent case saw the ITC shift its focus -- and its purview -- in response to some circuitous patent infringement. Russell Brandon at the Verge details the case that has led to the MPAA's next attempt at site blocking. The heart of the case is a company called ClearCorrect, which 3D prints clear plastic braces custom-designed for each patient's teeth. Much of the technology involved in the process is already under patent, but ClearCorrect has gotten around those patents by farming out its intricate computer modeling to an office in Pakistan. That modeling violates a number of US patents — and if ClearCorrect were shipping back the resulting braces in a box, it would be a simple case: the goods would be contraband, to be stopped at the border. But instead, ClearCorrect is only transmitting digital models from Pakistan and printing out the braces in local offices in Texas. The only thing coming in from Pakistan is raw modeling data. So what's a trade commission to do? In October of 2014, the trade commission -- blowing past legal precedent and established statutory limits -- granted itself the power to treat the incoming digital models as physical goods… and stop them at the border. In the sweeping and unprecedented decision below, the International Trade Commission found that its authority to regulate trade extends to pure "electronic transmission of digital data" untied to any physical medium. Generally, by statute, the Commission's jurisdiction is limited to oversight of "importation . . . of articles." However, the Commission expansively construed the term "articles" to potentially include anything "bought and sold in commerce," thereby leading to its conclusion that digital data was an article of importation. The MPAA, which has entered comments in favor of the ITC's self-granted power expansion, wants to use the agency's power over digital imports to block websites at the ISP level. The leaked Jenner & Block memo confirms this. The MPAA's lawyers don't consider it a slam dunk but they are cautiously hopeful that the ITC's land grab will pay off. As discussed in the 2012 ITC Memo, seeking a site-blocking order in the ITC would appear to offer a number of advantages over federal court litigation, at least at first blush. This now seems even more so given the ITC’s recent decision (albeit now on appeal) holding that electronic transmissions are “articles” within the meaning of Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337. As also discussed in the 2012 ITC Memo, however, such an action would still involve several difficult questions of first impression, making the prospect of success in that forum uncertain. While the ITC's new aim -- stopping infringing digital files at the "border" -- would seem to be the ideal starting point, the memo points out that many technical limitations make this approach less than feasible. The "transit" ISPs -- those that "ship in" data from other countries -- can be handled more easily by other court orders than by ITC regulation. The ITC's purview only covers inbound traffic, and technical limitations make this a weaker approach. For one, the lack of information on incoming packets means the blocks would only affect IP addresses. If a "pirate site" shares an IP address with another site, the block won't work. And IP addresses could easily be shared to circumvent blocking at transit ISP level. The memo also notes that the internet is designed to flow around obstructions. Applying blocks at the transit level would simply shift infringing loads to other pathways, nullifying the blocks altogether. The law firm then addresses blocking outbound traffic to infringing sites at the ISP level. This would ignore the inbound traffic of "transit" ISPs and demand action be taken by US ISPs. Even though site blocking by transit ISPs may be impractical in most (and likely all) cases, it may still be possible for the ITC to issue orders to the consumer-facing network access ISPs requiring them to cease and desist from providing their subscribers with access to the pirate site. To do so, however, the ITC would first have to find that the network access ISPs, by providing their subscribers with access to the pirate site, have themselves violated Section 337. That's the sales pitch for ISP-level site blocking. It somewhat ignores the new powers of the ITC and instead relies on convincing the agency that access to "pirate sites" -- even as a "dumb pipe" -- is a violation of Section 337. Definitions will need to be stretched and ISPs that allow their customers to roam the web freely will need to be painted as contributors to infringing activity. Because it is the transit ISPs and not the network access ISPs that actually carry the infringing data across the border, we would need to persuade the ITC that the network access ISPs’ conduct is also tantamount to “importation into the United States” of copyright-infringing articles... For this reason, we may be able to develop a case that the network access ISPs, by virtue of the integral role that they play in the process of accessing and delivering infringing content from the foreign site to the end user, should be treated as an importer for purposes of Section 337. If that doesn't work, the next argument is to portray the ISPs as involved in the sale of counterfeit goods. Even if we cannot persuade the ITC that network access ISPs are “importers” of the infringing articles, it can plausibly be argued that the network access ISPs are engaged in a post-importation “sale” of the infringing articles to their end-user subscribers, in violation of Section 337. See 19 U.S.C. §1337(a)(1)(B) (providing that “sale after importation into the United States” is an unlawful act). The difficult question presented here is whether an ISP, by providing network access in exchange for its subscribers’ payment, can be found to have engaged in the “sale” of the infringing articles as that term is used in Section 337. The arguments don't get any less ridiculous. There's a pitch for ISPs to have participated in "unfair acts" by "forcing" (read: allowed customers to access sites the MPAA doesn't like) the motion picture industry to "compete" against infringing copies of its own works. There's even a small paragraph that pushes the notion of contributory infringement, although the law firm notes that this would be the longest shot of all. The likeliest approach appears to be the use of the ITC's power to obtain cease-and-desist orders against ISPs, forbidding them from allowing access to "pirate" sites. Public Knowledge's brief [pdf link] in opposition to the ITC's pending power shift points out that even though the statute itself is old (Tariff Act of 1930), its authors directly contemplated the difference between physical and more ethereal goods -- and made it clear that the two shouldn't be treated identically. Evidence from the early 1900s indicates that Congress and others would have cleanly distinguished importation and telecommunication, vesting authority over each in distinct agencies. Treating the Commission as having authority over telecommunications data, then, conflicts with this distinction. To the extent that the Commission’s interpretation of “digital data” as an imported article encompasses such telecommunications data, this Court should reject that erroneous interpretation of the Commission’s purview. [...] There is substantial evidence that, around 1930, data transmissions were generally understood to be distinct from articles of commerce and international trade. This understanding influenced Congress, as reflected in its creation of separate and distinct agencies to oversee trade and telecommunications. The distinction was highlighted by the Supreme Court as early as 1887, in considering one specific type of telecommunications data, namely telegrams: Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders, and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other. The brief also points out that, while the ITC is correct in noting that internet transmissions couldn't possibly have been envisioned during the crafting of the 1930 Tariff Act, similar "articles" like telecommunications and radio signals had already been discussed by Congress, and each time, these were not allowed to fall under the same regulatory agency. Putting the ITC in charge of digital transmissions will turn ISPs into ad hoc customs agents who need to inspect incoming packets and outgoing requests. Cloud services would also be negatively affected, as load balancing would need to be rebuilt from the ground up in order to accommodate the legal concerns now inherent in every transmission. The DMCA safe harbor would no longer exist, forcing ISPs to stay one step ahead of IP holders, building in anticipatory takedown response systems and choke points. The MPAA still wants site blocks and is still willing to break the internet to get them. Even the cautiousness displayed in the legal memo still glosses over the severe disruptions this use of the ITC's new powers will cause. The good news? The ITC's "digital = physical" shift isn't in effect yet. The case prompting this shift is still under appeal and no decision is expected until late 2015. Chances are, this decision will be appealed as well, likely landing it in front of the Supreme Court sometime in the next few years. The MPAA can't move on its arguments until this is all decided. But it's ready to move as soon as it can, and this isn't its only plan of attack.Permalink | Comments | Email This Story

Read More...
posted 26 days ago on techdirt
It's tempting to open with a caveat -- "performance rights organizations (PROs) can serve a valuable purpose" -- before heading off towards the blithering insanity they've devolved into in recent years. It's tempting, but I won't do it. What I will say is that the notion of collecting public performance royalties isn't necessarily wrong, but the way it's been handled by everyone from GEMA to ASCAP has been a farce -- proof that the narrow line between stupid and evil can easily be erased with a small hit of officiousness. When PROs collect fees from bars, restaurants and nightclubs, it does make a certain amount of sense. Even if I don't necessarily agree that these "rights" are baked into people's musical creations, there's something to be said for music being an integral part of some of these public venues. But the notion that a public performance right exists at all runs at odds with common sense, as do the actions of the PROs themselves. Any band playing a concert venue will be subject to PRO fees (usually hidden somewhere in the venue's deducted costs) even though they're playing their own music. Somehow, this money will make its way back to… well, generally not the band itself. The money is pooled and divvied up into smaller piles of payouts that rest comfortably on the larger earnings of the top few bands on the PROs' rosters. Because the PROs will cease to exist without steadily increasing collections, they have branched out. It's no longer limited to BMI shaking down local pubs for high-dollar licensing fees, even if said pub only hosts local, indie artists. No, now it's actions like charging the Girl Scouts for singalongs, charging small auto shops for the personal CDs played in the garage by their mechanics, charging companies for allowing employees to listen to radios in their cubicles and charging hotel rooms for the "public performances" performed by seldom-if-ever-used in-room clock radios. Now, there's this, via TorrentFreak -- a Swedish PRO going after car rental companies because rented cars contain publicly-performing radios. Each car rented out by Fleetmanager contains a stereo radio and CD player so that the customer can enjoy broadcasts of all kinds, including music. STIM (collecting society Svenska Tonsättares Internationella Musikbyrå) says that to do so legally Fleetmanager needs to obtain a license but to date has failed to do so. According to SVD, STIM is arguing that the inside of Fleetmanager’s cars contain members of the public and therefore amount to public places. On this basis the company needs to obtain a public performance license. Fleetmanager disagrees, noting that any music played inside a car is only heard by a limited circle of people. In its defense, STIM cites previous madhattery by other PROs. The collection society says that previous cases involving hoteliers have ended with licenses being obtained which enable hotel guests to listen to music while on the premises. It also trots out the weak game theory routinely deployed by other non-trustworthy entities -- like cops seeking to coerce a confession or your peer group's insistence that a vodka-soaked tampon is a great way to get hammered. Furthermore, other car rental companies in Sweden have already agreed to pay a per-stereo levy so Fleetmanager should also pay, STIM argues. The proper response would be to ask if STIM finds mugging weak and stupid people enjoyable. Fleetmanager's response isn't noted in TorrentFreak's article, other than the obvious hints that it's not interested in paying flat-rate fees for one of the worst public performance arguments ever deployed. An in-car stereo is not a public performance, even if it is a rented vehicle. If you take a bunch of friends on a road trip in your own vehicle, you have not created a public performance no matter how many times the radio is turned on. Renting it from a third party doesn't change anything but the name on the vehicle's title. Without a doubt, PROs are proving to be endlessly creative -- albeit in ways that do nothing for them or a large majority of their artists. Instead, it makes the agencies look like low-rent thugs whose best shakedown ideas are hammered out over amyl poppers, jello shots and Powerpoint decks.Permalink | Comments | Email This Story

Read More...
posted 26 days ago on techdirt
A few months ago we wrote about some faily ridiculous statements from rockstar astrophysicist Neil deGrasse Tyson, which showed that he was rather ignorant about how innovation worked. As we said at the time, it's great that we even have what's considered a "rockstar astrophysicist" today, and I really appreciate the work that he's done to get people interested in science, when it comes to fields like innovation, it appears that Tyson does not use the same rigor in making sure he actually understands what he's talking about (and, apparently the same is true in other areas as well). For a guy who famously went crazy until James Cameron put the correct star patterns in the background sky in Titanic, you'd think he'd be a little more careful about making nutty statements. But then he launched this one on Saturday morning: If you can't read it, the tweet says: Obama authorized North Korea sanctions over cyber hacking. Solution there, it seems to me, is to create unhackable systems. We've already discussed the pointless sanctions, but the real whopper is the second sentence in that tweet. This is the kind of thing that people totally ignorant of the subject would say. It's not hard to demonstrate why by applying the same logic to other fields -- like, say, astrophysics: Getting to other galaxies is hard. Solution there, it seems to me, is to build faster-than-light spaceships. Or, how about death: Dying sucks. Solution there, it seems to me, is to create immortality. Violence? There is too much violence in the world. Solution there, it seems to me, is to create people who are only nice. Education? Too many people are uneducated. Solution there, it seems to me, is to create people who learn better. Go ahead and create your own...Permalink | Comments | Email This Story

Read More...
posted 26 days ago on techdirt
Never doubt the power of motion picture studios. The US government is moving ahead with plans to smack around North Korea for the Sony Pictures hack. That this is seemingly based on nothing more than a strong hunch by the FBI doesn't seem to matter. The wheels are rolling and the scapegoat will be properly chastised. Symbolic actions and symbolic words are being handed down by the administration, under the unlikely moniker of "a proportionate response." Sanctions are being levied against ten North Korean officials, even as other unnamed administration officials admit there's no evidence those named were behind the attacks in any form. Let's all enjoy this quote, which shows the US government is willing to defend the honor of Sony Pictures even at the expense of its own reputation. “It’s a first step,” one of the officials said. “The administration felt that it had to do something to stay on point. This is certainly not the end for them.” There you have it. There will be more symbolic stupidity in the future, if only for consistency's state. The next question is: if the goal is to deliver a knockout blow, how effective are continued head punches when the target has already lost consciousness? The actions may well turn out to be more symbolic than substantive: North Korea already faces some of the heaviest sanctions of any country. The North Korean government doesn't really care if more sanctions are handed down. It hasn't made many attempts to ingratiate itself with the US. It is resolutely its own evil empire and appears to be happy being one of the world's villains. Once you get beyond the futile administrative shouting, there's the reality of the situation: there's really not much evidence pointing to North Korea's involvement in the Sony hack. So, even if the sanctions are effective, they're likely misguided. The link between the hacking and the North Korean government's public damnation of "The Interview" is extremely tenuous. The hackers behind the attack never linked their actions to the film until after the press did. Additional information points in various directions, but nothing directly at the North Korean government. The evidence the FBI was willing to part with only indicates that the malware used resembles malware used in previous NK hackings -- which is really just saying malware that works well tends to resemble other malware that works well. It's not a smoking gun. It's not even a gun in a safe with the clip removed. It's a finger in a coat pocket -- something that only looks slightly dangerous/damning when hidden, but completely ridiculous when out in the open. But the US government has decided North Korea is to blame and the North Korean government is only too happy to alternate between evil empire and unfairly besmirched world citizen. The question is: who is the administration scoring points for by pursuing sanctions against an entity that hacked a private corporation? Even if the administration is privy to information that definitively indicates North Korea's involvement, why is it throwing its weight behind an incident that was more embarrassing than damaging? Countless American businesses have been hacked over the past several years, leaving millions of Americans' personal information exposed… and little to no response from the US government. But spring loose a few thousand internal emails dealing with celebrity squabbling, MPAA/state AG collusion and other internal issues, and suddenly, it's time for America to go to (cyber)war. Permalink | Comments | Email This Story

Read More...
posted 26 days ago on techdirt
This week, we're taking a break from the regular roundup to look at the top comments from all of 2014. Since it's a little tough to choose editor's choice comments from an entire year, instead we've got the top three winners from both the insightful and funny sides, plus one outlier comment that made the top three for total votes combined without placing in either category. (For those who are still curious about this week's winners, here's first and second place for insightful, and first and second place for funny.) Most Insightful Comments Of 2014 We don't have to head back too far for the first and second place comments on the insightful side. In late September, several law enforcement officials and supposed experts — including two people from the Justice Department and two former FBI officials — started spreading the bad word about default encryption for smartphones, saying it would prevent them from solving and/or prosecuting crimes. Two responses to this post rose to the top, with the first (and our insightful winner for 2014) coming from BentFranklin, who steadfastly refused to play their game: Police who say they can't do their jobs without violating the constitution are saying they can't do their jobs. Hot on his heels was our second most insightful comment of 2014 from our most prolific and most frequently insightful commenter: John Fenderson. John played things with a little more sarcasm, racking up lots of funny votes as well — not quite enough to crack the top three on that side, but enough to make this the number one comment for 2014 in terms of total votes in both categories: Have we all forgotten those dark ages? Remember those dark days before smartphones existed? How could we forget those terrible times when no crimes could be solved because there were no smartphones to be searched? For third place on the insightful side, we head back to April, when James Clapper was making the rounds in an attempt to convince students to stop viewing Ed Snowden as a hero. Nom noted that one of Clapper's many problems appears to be a critical misunderstanding of what Snowden represents and why people applaud him, and offered some clarification: "I understand that a lot of young people see Snowden as a courageous whistleblower standing up to authority" That's not quite right. People don't see him as a courageous whistleblower standing up to authority. They seem him as a courageous whistleblower standing up to corruption. Well, that's 2014 in the world of insight. Now on to the funny... Funniest Comments Of 2014 For 2014's funniest comment of them all, we head right back to January, when Derek Khanna began crowdsourcing a list of public domain works that Disney has relied on over the years. This time, the winner is a short and sweet anonymous comment, and in addition to winning first place for funny, it racked up so many insightful votes that it's also the third place comment for total votes combined: Disney doesn't believe in seeding, only leaching. For the second place comment on the funny side, we jump forward to July and the wake of the now-infamous "looks like a duck" Aereo ruling. In anticipation of the tortured logic that would surely be used to prevent Aereo from gaining the advantage of either being or not being a duck, the quantum physics jokes began to fly, and Gwiz's entry triumphed over them all, winning second funniest comment for all of 2014, with only two words: Schrödinger's CATV. Finally, we jump back a few months to March, when Keurig was struggling to handle the blowback against its "coffee DRM" with hamfisted assurances that it was beneficial to the consumer. Of course, many people see DRM as just one more affront from the already broadly terrible idea of coffee pods, so criticism of the technology in general reigned supreme in the comments. I think it's fitting for a community that believes strongly in the power and importance of shared and repurposed culture that at least one of our top comments would be a quotation from another great writer, and sorrykb (number ten on our list of commenters by quantity of funny comments) won 2014's third place spot for funny with a devastatingly appropriate (but for one detail) excerpt from a definitive work of satire: The "interactive" features, as explained by Douglas Adams "When the 'Drink' button is pressed it makes an instant but highly detailed examination of the subject's taste buds, a spectroscopic analysis of the subject's metabolism, and then sends tiny experimental signals down the neural pathways to the taste centres of the subject's brain to see what is likely to be well received. However, no-one knows quite why it does this because it then invariably delivers a cupful of liquid that is almost, but not quite, entirely unlike tea." The Outlier: Second Place For Overall Votes Whether you're looking at a single week or a whole year, most of the top-scoring Techdirt comments get the bulk of their votes in either the insightful or funny category. The top three spots for combined votes usually go to comments that won on one side and received a handful of votes on the other. But every now and then, comments soar up the charts with combined votes while failing to hit the top on either side, and such is the case with 2014's second place comment for overall combined votes. Back in March, James Clapper wasn't the only one trying to put people off Ed Snowden. Rep. Mike Pompeo was also on the job, raging against SXSW for inviting Snowden to speak, including a snide comment about free speech and the fact that Snowden ended up in Russia. That Anonymous Coward (who also cracked all three top-ten lists in our annual numbers) latched onto the painful irony and scored an almost-even number of funny and insightful votes: "flee to that beacon of First Amendment freedoms" And I am demanding you not let him speak. And that, folks, is our list of the top comments from all of 2014. Now for a couple of stray observations... Did You Notice? None of the winning comments came from posts on the top-ten lists for pageviews or quantity of comments, though the Keurig post is a follow-up to #2 on both lists. Of these seven winning comments, five came from people with Techdirt accounts, one from an anonymous user with a handle, and one from someone fully anonymous (which was one of the biggest winners of all). Of the winners with accounts, four out of the five also showed up on at least one of our top-ten lists for comment volume, number of insightful comments, and number of funny comments. The fifth is first-place insightful winner BentFranklin. Share any other observations you make in the comments — you never know, maybe you'll end up on our 2015 list. That's all for this week (and last year), folks! Permalink | Comments | Email This Story

Read More...
posted 28 days ago on techdirt
Five Years Ago: Movie studios started planning how to stop Netflix from showing their films (which is why Netflix still has a limited selection of streaming movies). This was also the week that Viacom realized that of all the videos it had sued YouTube over, it had actually uploaded over 100 of them itself -- meaning both that they were fully licensed and proving the point that if Viacom can't even tell which videos are licensed and which are not, it's ridiculous to think that YouTube should just magically know which ones are which. Record label Interscope was trying to get people to buy CDs by offering you a copy of Tweetdeck software "for free!" if you bought a CD. Except, of course, Tweetdeck has always been free. The MPAA ratings people gave "It's Complicated" an R rating for showing movie watchers that pot can make you giggle. Nina Paley made a key point in noting that the problem has never been middlemen, but monopolies. One court totally overreacted and ordered an entire website taken down because of some defamatory comments on them, while another court correctly rejected a lawsuit against a consumer complaint site (ConsumerAffairs) properly noting that Section 230 protected the site from liability over actions of its users. Meanwhile, the Canadian government sought to take down a parody site by the Yes Men, and it resulted in the ISP actually taking down 4,500 sites. Censorship at its finest. We wrote about how automakers were abusing copyright law to force you to pay more for repairs. FCC boss Julius Genachowski's Facebook account spammed all his friends with a "make money now!" offer. And a court tossed out a silly class action lawsuit against Apple from people who said the iPod resulted in hearing loss. Finally, we're only looking back five years here, but five years ago we wrote about how the blog MusicAlly was looking back at the major labels' "online strategies" from 2001. They weren't pretty, though the strategies were fairly amusing -- mostly focusing on proprietary formats and DRM. As we noted at the time, all of the strategies were focused on trying to recreate the old retail world where scarcity ruled. That's a really dumb strategy in an age of digital abundance. Ten Years Ago: It was (not surprisingly) a bit of a slow week. Minnesota kept trying to tax VoIP companies despite FCC rules saying that VoIP shouldn't be taxed like regular phone lines. Verizon's anti-spam system went haywire and just started blocking all foreign emails (that's one strategy...). Some music labels were apparently experimenting with sneaking spyware into media files (a bit of foreshadowing for the Sony rootkit scandal, which went public the following year). We were also talking about early ride sharing programs, whether or not the internet was good or bad for social relationships, and musicians who realized it was good to give fans what they want. Oh yeah, we also discussed how you couldn't name your kid with a .com in his name in China. Fifteen Years Ago: Our final post of 1999 pointed out that the Y2K bug scare didn't actually result in that much business. Some had been predicting that "fixing" the Y2K bug would be a boost to some tech companies' bottom lines. Wired Magazine, which had bizarrely sold off its entire digital arm, including the wired.com domain name was trying to buy it back -- a deal that wouldn't actually be completed until 2006. ABC was getting (rightfully so) nervous about dot com bubble startups buying Superbowl Ads, asking those companies to pay cash up front. And just to show you how different things were in 1999, people were excited about the fact that DVDs were catching on, after some had expressed skepticism that they'd find a real market. Things have changed.... Thirty One Years Ago AT&T was broken up as a monopoly by the US government. And, today, it's almost all the way back to a monopoly. Watch that pendulum swing...Permalink | Comments | Email This Story

Read More...
posted 29 days ago on techdirt
2014 is over, and as we've done every year for the past few years, we'll try to round up some of "the numbers" about that year (and yes, this is our only post today -- we'll be back on Monday with regular posting). If you'd like to look back, we've got the posts from 2013, 2012, 2011 and 2010. We had visitors from 240 countries this year, with (as per usual) the US holding steady at almost exactly two-thirds of all traffic (actually 66.95%). This was followed by the UK, Canada and Australia. Germany rounds out the top five with India, the Netherlands, France, Sweden and New Zealand making the top 10. The only major change here was India jumping up a few slots and Sweden dropping a few. After India, our top traffic from Asia comes from... the Philippines -- which is a bit of a surprise. Singapore, Turkey (and yes, I know some people debate whether Turkey is part of Asia) and Japan round out the top five Asian countries for traffic. China doesn't even make the top 10 (it's 11th), though we frequently hear that the site is blocked there. The top five countries in Europe all made the top 10 list above, but in case you're wondering, the next five are Spain, Ireland, Finland, Italy and Norway -- all of which sent a healthy amount of traffic. If we combine all of the Americas after the US and Canada, the most traffic comes from Brazil, Mexico and Argentina. In Africa, again the top country is South Africa, but we still get a decent number of visitors from Nigeria, Kenya and Egypt as well. Last year we noted that the only two countries on the map (leaving out tiny islands and such) that we could see where we got no traffic was Chad and Western Sahara. This year, however, we appear to have had 30 visits from Chad. Western Sahara, however, remains a dark zone. For years, we joked about no visits from North Korea, so last year we were amazed that we got two whole visits from that country. This year... it doubled to four, but I'm assuming at least two of those were the supposed Sony Hackers, right? And, in what's become an annual tradition, we have a single visit from Christmas Island. Also, a yearly tradition: visitors from Gibraltar stick around the longest -- something that PaulT takes credit for each year (rightfully so). If we limit it to countries where we have a significant number of visitors, folks from Australia, Switzerland and New Zealand seemed to stick around the longest, so thanks for that! In terms of the number of pages per visit, Gibraltar, Bangladesh and... Congo top the list, but based on fairly small numbers of visits. If we look at countries with significant visits, India, the Philippines and Switzerland top that list. I always enjoy digging down into the city numbers as well. The top spots remain pretty much unchanged: New York City, London, LA and Chicago. Toronto fell out of the fourth slot down to sixth, with San Francisco moving up. Seattle, Sydney, Houston and Melbourne rounded out the top 10 with Washington DC coming in 11th. As always, it's interesting to see this data, but given the differences in population size, perhaps it's not always that meaningful. As always, it's interesting to see how some of you are visiting the site. Remember when Microsoft was going to dominate the world with Internet Explorer? Almost half of all visits these days come from Chrome. Firefox is second and Safari is third. Internet Explorer is fourth, though still with a fair bit of usage (who are you people?). Approximately 36% of our traffic is mobile these days -- jumping up from 29% last year. Most of that is from phones, but plenty of tablet users as well. As per usual, the iPhone and the iPad absolutely dominate the device side, but if we just look at browser OS, Android is almost neck and neck with iOS. Android represented 44% of mobile visits, with iOS at 51%. Windows was a little under 4%, Blackberry about half a percent, and you Nokia loyalists with a combination of Series40, SymbianOS and others make up the remaining tiny percentages. Outside of Apple, mobile visitors came most on Samsung devices and then LG, but coming from a wide variety of devices from those companies. Given how many of you are from the US, and how the US broadband market works here, it's no surprise that the biggest ISPs for traffic are Comcast, followed by Time Warner (if they merge the numbers from the two would be massive). Verizon and AT&T make up the next two. As for how people come here, it seems like we have a pretty balanced split. We've never focused on doing things like "gaming" search with search engine optimization, or going for social with clickbait, and so we don't end up relying too much on anything. In terms of where people came from -- once again Reddit was a major source of traffic. On the "social media" side, this was followed by Facebook and Twitter, with Stumbleupon far behind them. Google+ sent a few (but not very many). From the non-"social" side, we got our most traffic from Instapundit, Boing Boing, Daily Rotation, Popehat and Slashdot. On the search side, the only really noticeable search term that drove significant traffic (outside of people searching for "techdirt" "tech dirt" and variations of that) was... "Walter O'Brien." And yes, our Walter O'Brien stories continue to get a fair number of visits and comments as people discover that his public story is mostly made up. Okay, onto some lists: Top Ten Stories, by unique pageviews, on Techdirt for 2014: No, A 'Supercomputer' Did NOT Pass The Turing Test For The First Time And Everyone Should Know Better Keurig Will Use DRM In New Coffee Maker To Lock Out Refill Market US Patent Office Grants 'Photography Against A White Background' Patent To Amazon UK Porn Filter Architect Arrested On Child Porn Charges The Rebranding Of SOPA: Now Called 'Notice And Staydown' New Snowden Doc Reveals How GCHQ/NSA Use The Internet To 'Manipulate, Deceive And Destroy Reputations' Student Who Found GPS Device On His Car Due To Reddit Comment Sues The FBI < --- Will explain this below Guy Finds FBI Tracking Device On Car, Posts Pics Online... FBI Shows Up Demanding It Back < --- Will explain this below How The Copyright Industry Made Your Computer Less Safe T-Mobile Writes The Best Press Release You'll Ever See From A Phone Company So you'll notice there are two old stories in there. One from 2010 and another from 2011 -- though both about the same thing (a guy discovering an FBI tracking device on his car and then posting it on Reddit). For whatever reason, Reddit suddenly picked up on that story again and drove a tremendous amount of traffic to it (well, mainly to the one about him suing the FBI, and that resulted in people clicking through to the other one as well). In case you think those shouldn't count, the next two biggest stories were... the first Walter O'Brien story and one about Verizon basically admitting that it was its own fault that its network got clogged (while it attempted to blame Netflix). 2014's Top Ten Stories, by comment volume Thanks Anti-Vax Loons: The Return Of The Measles And The Backlash Against Jenny McCarthy 304 Comments Keurig Will Use DRM In New Coffee Maker To Lock Out Refill Market 262 Comments Appeals Court Doesn't Understand The Difference Between Software And An API; Declares APIs Copyrightable 262 Comments Chilling Effects: Climate Change Deniers Have Scientific Paper Disappeared 250 Comments Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination' 230 Comments The James Foley Beheading Video And How Americans Conceptualize Their Enemies 227 Comments Copyright Maximalists And Lobbyists Insist 'Criminal Elements' Are A Part Of The Copyright Reform Effort 219 Comments The Homicide No One Committed: Eric Garner's Death At The Hands Of An NYPD Officer No-Billed By Grand Jury 202 Comments Another Story Of A 'Fake' Brilliant Inventor? Is 'Scorpion Walter O'Brien' A Real Computer Security Genius? 199 Comments Proud Voters Tweeting In The UK Could Receive Jail Time And A Fine 196 Comments Once again -- as we point out every year -- we see very little overlap between these two lists. Only one story (the Keurig DRM one) made both lists (in the second spot on both too). Also something that stood out to me -- while not a single one of the top 10 traffic getting posts were written by Tim Geigner, 4 of the top 10 commented posts were by him. That Dark Helmet sure knows how to get you to speak up (though, to be fair, none of the next ten posts in comments were written by him). Okay, onto the community, and who did well on the commenting front. For the third year in a row, John Fenderson was our top commenter, though he seriously upped his game. In 2014, he posted an astounding 6105 comments -- nearly double of last year's 3604. Here's the top 10 list: 2014 Top Commenters, by comment volume John Fenderson: 6105 comments That One Guy: 3431 comments Ninja: 1864 comments nasch: 1695 comments PaulT: 1031 comments Mason Wheeler 840 comments Whatever 777 comments That Anonymous Coward: 707 comments Mike Masnick 685 comments art guerrilla 675 comments Here's a little oddity: I seem to appear on the above list in even years (2010, 2012 and 2014), and don't make it on odd years (2011 and 2013). Guess I'll be commenting less in the new year... Also interesting to see how the list has changed over the years. Only nasch and PaulT were also on the list in 2010, with only PaulT making the list every single year (nasch missed just one year). Top 10 Most Insightful Commenters, based on how many times they got the lightbulb icon: John Fenderson: 456 comments That One Guy: 316 comments Mason Wheeler 128 comments Karl: 101 comments Ninja: 98 comments PaulT: 89 comments Gwiz: 88 comments jupiterkansas 82 comments That Anonymous Coward: 71 comments Mike Masnick: 63 comments Top 10 Funniest Commenters, based on how many times they got the LOL icon: That One Guy: 32 comments Ninja: 30 comments John Fenderson: 26 comments DannyB: 23 comments ChurchHatesTucker: 22 comments silverscarcat: 19 comments Mason Wheeler 16 comments That Anonymous Coward: 15 comments Roger Strong: 15 comments sorrykb: 15 comments Kudos to John Fenderson and That One Guy for dominating the commenting lists this year! Also interesting to see the "funny" numbers are much lower than the insightfuls (and much lower than in the past). Either you guys just aren't as funny as you used to be, or people are getting pickier about the funny voting... Perhaps that's a challenge for someone in the new year... That's it for last year. If you want to appear on this list next year, time to get cracking...Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Every year since 2008, my final post on New Year's Eve has been on the topic of "optimism" about the future. It started when I had a few separate people note (in person to me) that they were amazed I seemed so happy and optimistic despite constantly writing about negative things that were happening -- people trying to block innovation, politicians passing crazy laws, judges making bad rulings, etc. As I pointed out then, I actually found it rather easy to stay happy because I had seen how far we've come over the years since Techdirt began, way back in 1997. I had seen how much innovation had happened in spite of attempts to stop it. I had seen how people and innovators routed around the problems. While much of what I wrote about did cover negative things -- and to some people I seemed angry about them -- it was mainly frustration that there were further attempts to slow things down, despite knowing that innovation and the public's interest always prevail in the end. I'm optimistic because I can see it coming, while frustrated because of all the efforts that will slow it down and limit how much of that innovation I'll get to experience in my lifetime. For the record, here are each of the posts since 2008: 2008: On Staying Happy 2009: Creativity, Innovation And Happiness 2010: From Pessimism To Optimism... And The Power Of Innovation 2011: From Optimism And Innovation... To The Power To Make A Difference 2012: Innovation, Optimism And Opportunity: All Coming Together To Make Real Change 2013: Optimism On The Cusp Of Big Changes As I was preparing to write the post for this year, I actually thought it might end up on more of a down note. Something about this past year felt... somehow slightly more exhausting than years past (even as I, personally, completely revamped my sleep schedule and probably got more than double the amount of sleep this year than in past years). But as I started thinking through this year, I realized just how many amazing and wonderfully good things did come to pass. Early in the year the FCC's pretty weak net neutrality rules were struck down by the court (as most everyone expected), and at the end of the year it seems like the FCC is actually (amazingly) poised to put real net neutrality rules in place. Almost no one would have predicted that Title II reclassification would even be in the discussion these days, yet now it seems likely. That's an astounding shift towards the positive. At the beginning of the year, the story on patents was still a huge mess. Patent trolls were still running around like crazy causing problems, and the idea of true patent reform seemed remote. Yet, Congress actually came mighty close to a decent (if not perfect) patent reform bill (only to have it killed by the trial lawyers). However, it appears that much stronger patent reform is likely to happen in the next Congress. More importantly (so far), the Supreme Court continued to make rulings that smacked down an over-expansive patent system (and the dreadful rulings of the Federal Circuit). The Alice v. CLS Bank case in particular has already had a massive impact in getting bad patents and bad patent cases tossed out (and an earlier ruling making it easier to get lawyers' fees for bad patent litigation has helped as well). Surveillance reform turned out to be something of a bust in Congress, but it came very, very close, and there's significant interest in making a real stand in 2015 on both the key surveillance parts of the PATRIOT Act that need to be renewed and on dealing with Executive Order 12333, under which a lot of mass surveillance is really happening. Still, while Congress dithers, innovators are innovating. The number of companies that have upped their encryption game and are taking privacy seriously has been going up rapidly. We may finally be reaching a point where protecting privacy is a real competitive advantage. We're still in a bit of a holding period on copyright reform, but the concerns and worries about what bad copyright laws have done to expression are getting increased attention and awareness. And, at the same time, alternative business models and services are thriving in incredible ways, making more culture available to more people -- and allowing more content creators to create more content, to reach more people and to make more money than ever before. It's an amazing time to be a creator. That's not to say there aren't concerns. Congress is still working on some bad laws while ignoring broken laws that need to be fixed (such as CFAA and ECPA). The reaction of law enforcement to greater encryption is ridiculous but won't be going away any time soon. The backroom dealing by the MPAA with state Attorneys General, and the USTR on bad trade deals, shows how those legacy industries aren't giving up on their plans to hobble innovation to protect the interests of big legacy players (and to do so as secretly as possible). But if you went back just a few years and told your older self what's on the table today, what innovators are working on and what the public is interested in on these issues, your older self likely wouldn't believe it. Real copyright and patent reform wasn't even seen as a possibility. NSA surveillance wasn't talked about in polite company. Net neutrality was a wonk issue for telco nerds. But they're all getting talked about regularly today. And an awful lot of that is due to the power of the public speaking out. The win over SOPA may feel like it was long ago but it set the framework for the net neutrality battle, and really did help make a big difference in that fight. While similar efforts won't win every battle (NSA reform being one that so far has failed), that fight isn't over yet, and the momentum continues to shift in the right direction. The power of the internet itself to connect people and make such expression possible is truly world-changing. Sometimes it's difficult to see all that in the thick of things, but take a step back and think about just how amazing this time we live in really is. Here at Techdirt, we were blown away by the support we received for our BeaconReader crowdfunding campaign for reporting on net neutrality. Your contributions helped raise nearly $70,000 which we've put to good use, producing over 100 stories so far and many more to come. We switched the site to default to HTTPS, to better protect your privacy (and we appreciate NameCheap stepping up to sponsor that move). Many of you have helped out as well, supporting us via the Techdirt Insider Shop (and getting some nifty swag in the process). And 2015 is shaping up to be a very big year for us. We have some major announcements about the future of our company that will come pretty early into the new year, so please stay tuned... As always, however, my final message of the day is a massive thank you to all of you who are a part of the Techdirt community, no matter how you choose to take part. Whether you comment or lurk. Whether we're something you share with all your friends, or are just a guilty pleasure you keep to yourself. Whether you submit stories or engage with us. We appreciate that you're a part of this community, that you're passionate about innovation, the internet, free speech, privacy and a bunch of related issues. While other sites are pushing their communities away, turning off comments or outsourcing the effort, we still believe that it's the community around here that makes this site so special -- and we look forward to sharing an exciting 2015 (and beyond) with all of you. It's now been more than 17 years (yikes -- I'm old) that I've been writing Techdirt, and I still think I have the best job in the world. It is an absolute, unquestionable joy each and every day to share these stories, to express opinions and debate interesting topics with all of you. It's the community here that continues to inspire me every single day to see what more we can do. Thank you, once again, for being a part of this effort. Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
It's no secret that some in the computer security world like the idea of being able to "hack back" against online attacks. The simplest form of this idea is that if you're a company under a denial-of-service attack, should you be able to "hack" a computer that is coordinating those attacks to stop them? More than two years ago, an LA Times article noted that some cybersecurity startups were marketing such services. Related to this, when the terrible CISPA legislation was being debated, one concern was that it would legalize such "hack backs" because, among other things, CISPA would grant immunity to companies "for decisions made based on cyber threat information." Some interpreted that to mean that companies would have immunity if they decided to hack back against an attacker. A new article from Bloomberg suggests that companies are still quite eager to get involved in hacking back, and the FBI (which supported CISPA) is investigating some such cases where it may have happened. However, companies like JP Morgan still love the idea: In February 2013, U.S officials met with bank executives in New York. There, a JPMorgan official proposed that the banks hit back from offshore locations, disabling the servers from which the attacks were being launched, according to a person familiar with the conversation, who asked not to be identified because the discussions were confidential. The article notes, of course, that such attacks likely violate the CFAA (Computer Fraud and Abuse Act) (which is why some want immunity for hack backs). But, it's a bad idea not just because it likely breaks the law, but because it's stupid and dangerous. First, accurately determining who is behind a hack is quite difficult -- as we're seeing lately with all the recent skepticism about the FBI's claim that North Korea was responsible for the Sony Hack. Launching a counterattack against the wrong party can have serious consequences -- even more so when those counterattacks might target actual nation states, rather than just a group of script kiddies. On top of that, the article notes, the hack back attempt could make the situation even worse: Efforts to retaliate can make things worse, [Kevin Mandia] said, because attackers who aren’t purged from the network could escalate the assault or ramp up attacks on other companies targeted by the same group. And, of course, the very real possibility that the wrong party is targeted in the hack back can create all sorts of collateral damage. Remember when Microsoft took down many thousands of sites by mistargeting a court order? Imagine that without any court even being involved. Finally, think through the obvious consequences of this. If you're a malicious hacker, it suddenly becomes a great opportunity. Pick two separate targets you want to harm -- then attack one and make it appear like the attack is coming from the other. Then sit back and watch the two of them duke it out while you laugh away. Hacking back is a vigilante Hollywood movie-style idea that pays no attention to the realities of the technology or the consequences of the actions. Hopefully companies are smart enough not to follow through -- and lawmakers prevent it from being protected by law.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Your fate is not completely written in your DNA. Environmental conditions can certainly change your life significantly, and you can even control some risk factors to your benefit. Sure, some things like poverty aren't quite under anyone's direct control (and it has a measurable detrimental effect on kids' DNA). But if you're looking for some more good reasons to make a new year's resolution, maybe think about how you can change your epigenetics for the better? Exercise apparently changes how genes are expressed. The field of epigenetics isn't well understood yet, but there are a lot of factors that can change how our genes send signals to our bodies. By studying people riding a stationary bicycle using only one leg, researchers could find evidence of genetic differences in the muscles of legs that exercised and that did not. [url] CTRA or "conserved transcriptional response to adversity" looks at how stress affects gene expression in our bodies, and there are some correlations that suggest detectable health effects come from charitable actions. Presumably, activities that lower stress (such as volunteering, etc) have some effect on your well being that are different from actions that are merely self gratifying. [url] Drinking soda every day probably isn't great for your long term health. Correlation is not causation, but people who drink sugary sodas daily have shorter telomeres in their white blood cells. That doesn't mean if you stop drinking soda that these bits of DNA will grow back, though. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Trademarks, ostensibly to do with preventing customer confusion, sometimes get quite strange. Just in recent days, we've seen ESPN use a trademark to magically turn a Saturday into a Thursday, we've seen a serious discussion occur over whether or not people might confuse chicken with kale, and all the breweries everywhere are fighting over trademark quite possibly because they're drunk. Sigh. But if you just can't get your silly-trademark-dispute fill, get ready for dessert: Benihana, a restaurant chain, is challenging Benny Hodges' trademark application for his rapper stage name "Benny Hunna," suggesting that customers looking for Japanese fusion food might accidentally end up at a hip hop concert. Mississippi rapper Benny Hodges is currently up against the Florida-based teppanyaki chain Benihana in a legal battle over the right to trademark his would-be stage name, “Benny Hunna,” because the chain alleges that the similarity would create “confusion in the marketplace,” reports TMZ. Now, protectors of the Benihana legacy have reportedly challenged Hodge’s application to the U.S. Patent & Trademark Office, which would surely get in the way of the rapper’s alleged plans to “build an entertainment empire called Benny Hunna TV.” What moron in what kind of a hurry is going to somehow think that Benny Hunna is in any way an extension of the Benihana restaurant chain? In what way are these two entities operating within the same marketplace? Also, who would actually think that filing this kind of trademark opposition is in any way productive, endearing, or good business? It's like the lawyers were just bored or something, because Benny Hunna isn't even a thing in the rap game yet. At 290 Twitter followers and a scant 490 views on his latest music video, Hodges has a long way to go, but we wish him well on his road to building his Benny Hunna entertainment empire. Bet you he has more followers and views now that Benihana decided to give him, and his disputed name, all this free publicity. Way to go, guys.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Friend (and frequent Techdirt contributor) Derek Kerton passed along a screenshot of his own recent experience trying to follow a Techdirt link at the Toronto airport and having it blocked: The block here is clearly not directed at Techdirt, but rather at Google's Feedproxy service -- which was formerly Feedburner, a company Google bought years ago. Many, many, many sites that have RSS feeds use Google's service as it makes it much easier to manage your RSS feed and to do some basic analytics on it. In this case, it appears that Air Canada has (for reasons unknown) wasted good money on a company called "Datavalet" which offers "Guest Access Management" for companies who offer WiFi access to customers. Datavalet proudly highlights Air Canada and famed Canadian donut chain Tim Hortons among its customers. And yet, despite its sole business apparently being building systems to let people access the internet, Datavalet's tech geniuses can't figure out that Google's RSS feed service is not, in fact, an "Anonymizer" but merely a system for hosting RSS feeds. These sorts of stupid false positives are not at all uncommon in the filtering business -- and Datavalet is not alone in stupidly filtering out and blocking access to things it should totally allow. This story just demonstrates, once again, the ultimate stupidity and futility of trying to block internet access. No matter how well-meaning you might be, you're going to do it wrong and you're going to block plenty of legitimate content, including (in this case) tons of well known news publishers who rely on Google's feedproxy service to serve up links to RSS readers, Twitter, Facebook and more.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
After the FBI formally named North Korea as being behind the Sony Hack, a lot of people in the cybersecurity community explained why they didn't find the evidence at all compelling. There was pretty widespread disbelief in the story -- though most admitted that it was possible that the FBI had additional evidence it wasn't sharing. In the past few days, a lot of attention has been paid to a theory coming out of Norse Security, that the attack really came from a group of people (not associated with North Korea) including, in particular, a disgruntled ex-Sony employee. On Monday, the FBI met with Norse to hear what the company had to say, but apparently came away unconvinced. The FBI continues to stand by its assertion that North Korea did it. Asked about the meeting and criticism on Monday, the FBI declined to comment beyond a prepared statement that they are confident the North Koreans are behind the crippling Thanksgiving attack and there is “no credible information” to suggest otherwise. Tuesday, a U.S. official familiar with the matter said after the three-hour meeting, law enforcement concluded that the company’s analysis “did not improve the knowledge of the investigation.” Ouch. Once again, it is entirely possible that the FBI has access to even more information that it has not shared. However, it does seem rather clear at this point that the evidence it has shared publicly is just as unconvincing to cybersecurity experts as the information those security experts have shared is unconvincing to the FBI.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Most reasonable people and businesses are excited about how Google Fiber is shaking up the uncompetitive broadband industry, and bringing new opportunities to a select few cities. That doesn't include Hollywood (with its deep love of Google in tow), which apparently thinks Google Fiber is a bad thing because it might spike piracy rates. Leaked data suggests that Warner Brothers and Sony Pictures Entertainment launched a survey back in 2012 to track piracy rates before and after Google Fiber deployment in Kansas City. About 2,000 individuals between the ages of 13 and 54 were asked about Google Fiber, piracy, and their media consumption habits. Unsurprisingly, more than half of those surveyed said they were interested in signing up for $70, 1 Gbps connections (or Google's 5 Mbps connection, which is free after a $300 installation fee). Of those survey participants who said they pirated content, roughly a third stated that they'd likely pirate more often with a connection of that speed. In traditional entertainment industry logic, each instance of infringement is counted as a sale loss, and therefore the survey magically concludes that Google Fiber would be responsible for $1 billion in additional piracy losses annually:The survey continues and ties piracy rates directly to downstream broadband speeds, proclaiming this is "another indication that piracy becomes more attractive with Google Fiber":If you haven't come to this conclusion yet on your own, all of this logic is utterly stupid, given that faster speeds result in an overall increase in all online behavior, including the use of legitimate content services. Everything becomes more attractive with better broadband connections. The survey even notes this, 39% of the respondents stating they would use paid streaming subscription services more, and 34% stating they would rent and purchase online videos more frequently. Unsurprisingly, the entertainment industry doesn't bother to calculate these potential sales, nor does it calculate the potential sale opportunities created by offering better services that would only work on ultra-fast connections. It's yet another example of the entertainment industry's ridiculously narrow thinking when it comes to, well, everything. A reasonable businessman (or woman) would look at those ultra-fast speeds and see opportunity. The entertainment industry looks at these same connections and can only see menace and bogeymen.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Dear Icondia, I am in receipt of your letter, dated December 22nd, but received earlier this week, in which you assert a number of things and demand that we "cease and desist" from "all infringing activities" concerning the now rather famous "selfie" image taken by a macaque monkey using a camera supplied by photographer David Slater. I am assuming you're familiar with this image -- as is much of the world -- but as a reminder, it is this one: We, as a news publication that frequently discusses intellectual property issues, have been covering this story since those photos first went viral in 2011, focusing specifically on the intellectual property questions raised by the photos, and the fact that under the law, they are unquestionably in the public domain. In fact, yours is not the first request to take down these photos, as a previous representative of Mr. Slater's, Caters News Agency, sent us a shorter demand letter in 2011. At the time we explained why we had no obligation to take down the photos. That is still true today, even as you present your rather unique legal theories. I gather, from your website, that your organization was set up to try to cash in on the Image Rights (Bailiwick of Guernsey) Ordinance, 2012, specifically, in trying to make a big deal out of a new (and tremendously problematic) intellectual property concept known as "personality rights." It also appears that the world has not beaten a path to your door over this law, as one analysis shows that in the years since this new law passed only 51 registrations have occurred, three of which are related to this particular macaque monkey. This law does not apply to us for a variety of reasons, just a few of which we will detail below. If we need to lay out even more reasons as to why your argument is absolutely frivolous -- such as in court -- we are prepared to do so. First, we are a US-based company with all of our servers in the US, and the laws of the US apply to us. The laws of Guernsey do not. In the US, the image is quite clearly in the public domain, as we have discussed for years. While I recognize that some people employed by your firm have some rather unique legal theories for why this photo may not actually be in the public domain, the US Copyright Office disagrees with you. This past August, the US Copyright Office released a draft of its Compendium of Copyright Practices, which notes, rather directly, that a photograph taken by a monkey is not subject to copyright, but rather would be in the public domain. It is on page 54 of the document, though I'll post a screenshot here of the relevant portion (which I can easily do because, as a work of the federal government, this document is also in the public domain): On December 22nd -- the same day you sent your letter -- the Copyright Office further updated the Compendium so that it is no longer in draft -- and is now officially in its 3rd edition. You can see the document here. The Copyright Office actually extended its discussion on this matter, but as you can see on page 68, Section 313.2, it still notes that a "photograph taken by a monkey" is not copyrightable subject matter under US law. While it is unlikely you saw this official edition in time for sending out this letter, the draft edition was available for many months. As the image is unquestionably in the public domain in the US, we are not infringing on the "exclusive image rights" of the image. Thus we will not cease and desist from posting that image. We need neither permission nor a license to continue to do so and we do not believe that either you or Mr. Slater have any legitimate property rights in that image. Even if, for argument's sake, there was a possibility of a US copyright in the image, we would still not be taking the image down, as our use of it is unquestionably fair use. The times where we have posted the image have all involved significant amounts of journalistic commentary about the image (and, mainly, how the image is in the public domain). News reporting, commentary, and criticism are all quintessential examples of fair use, and our use of the image clearly meets those criteria. Now, let's take this a step further, and assume (solely for argument's sake) that the law of Guernsey somehow applied to us -- which it does not. Again, the law would not apply to our use. First, the personality rights law that you rely on allows for someone to register their own personality. The image here is of the macaque monkey, not David Slater or Wildlife Personalities, and thus only the macaque monkey in question could potentially qualify to register the image. But, as with copyright law, the law in question states that it only applies to a "natural person" which means "a human being." Thus, you immediately run into the same issue as to why this image is in the public domain -- it was not authored by a human being and thus is not only not subject to copyright law, but similarly not subject to Guernsey's "personality images." Second, even if we were to ignore that particular issue, which seems rather fatal to your argument, the image in question does not appear to meet the criteria necessary to make the claims you are making. Section 28 of the Guernsey law you are trying to apply here requires that the image must be "distinctive" meaning that it is "recognised as being associated with the registered personality." However, the "personality" in question appears to be "Wildlife Personalities Limited." While that may be David Slater's company, the image in question is not widely associated with that organization, and is certainly not recognized as such. In fact, nearly all of the public discussions in the last few years about the image are about how the image is in the public domain and emphatically not linked to Slater or any company he may have. The image is recognized as being associated with the monkey itself, but again, the law clearly states that such personality rights only applies to "human beings." Third, and more importantly, even assuming (again, for argument's sake) (1) that the image is not in the public domain, (2) that we are somehow subject to the laws of Guernsey and (3) that the image in question is properly registered under Guernsey's laws, the law still would not apply to our use. That's because Section 32 of the law makes it rather clear that it is not infringement to use such an image for "reporting current events or news commentary." Here's the section of the law, in case you haven't read it in a while: Fair dealing with a registered personality's image for the purposes of - (a) reporting current events or news commentary (including criticism or review), or (b) publishing or broadcasting any other bona fide journalistic material which is a subject of general or public interest, does not infringe that registered personality's image rights. In short, under no possible interpretation of any law are we infringing on anyone's usage in posting the image as part of our discussion concerning how it is, unquestionably, in the public domain. Thus, we have to reject your assertion that we are somehow infringing on the image, while similarly refusing to sign your "settlement agreement" as we have nothing to settle and nothing to agree to. I would wish you luck in your quixotic quest to create this new type of "personality right" but, frankly, I find it an offensive and dangerous expansion of theories that seek to lock up public domain information and a clear attempt to infringe on free speech rights here in the US and around the globe. If you have any further questions about any of this, I would be happy to discuss them with you or put you in contact with our legal counsel who I'm sure would be more than happy to review these points in even greater detail with you. Mike Masnick Techdirt / Floor64 Inc.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
A few years ago, we wrote about some research by Paul Heald that did an astounding job visually demonstrating how much copyright law today harms the dissemination of content. The key graphic was the following one: What it shows is that while new books are available for sale, they quickly go out of print and are basically not available -- until you get down to 1923, at which point the works are in the public domain. Think of all those works that are no longer available to buy in that major gap in the middle. Heald has since updated that research to show how serious a problem this is -- and demonstrating how the arguments against letting these works into the public domain make no sense. He demolishes the arguments made by some that a public domain will be either "under" or "over" exploited (yes, both arguments are made), as neither makes much sense. It appears that copyright is doing similar damage in Europe. At the latest Chaos Communications Congress in Germany, Julia Reda, the European Parliament member from the Pirate Party gave a talk on the state of copyright law today (you can see the video here and included a similar graphic concerning books available in Europe: What amazes me is that this giant set of missing works isn't seen as a bigger deal by policy makers (outside of Reda). This is a massive loss for society and the public based on copyright today -- and could be easily avoided with a few basic changes to the law, including things like requiring registration of copyrights and, if not shortening the term length of copyright significantly, at the very least, requiring the copyright holder to re-register the work over time. As we've pointed out in the past, prior to the 1976 Act, copyright law required registrations and renewals (at the 26-year mark) and the vast majority of works were simply not renewed at that point, because there was no economic incentive to do so. Yet, despite that, we still automatically grant copyright on all such works for a much longer period today. Not only does it not make sense, it leads to the massive gap in those two graphics above -- which is a huge loss for society and culture.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Comcast's customer service troubles are well documented, with bad customer service experiences going viral every few months, requiring Comcast CEO Brian Roberts to trot out of his corner office to promise to do better. Just a few months ago, Comcast also excitedly hired a new "Senior VP of Customer Experience," named Neil Smit. I hope Smit wasn't taking an extended vacation for the holidays, because just in time for New Year's yet another horrific customer experience situation has gone viral via Reddit. The whole thing is nicely explained in this 11 and a half minute video in which the guy in question not only records the recent call with Comcast, but also plays back clips from his August calls detailing the promises that were made that Comcast will no longer abide by: If you don't feel like watching the video -- the short version is that in August, when the guy threatened to take his broadband business elsewhere, a Comcast representative promised him a no contract deal for 100 Mbps down/25 Mbps up for $53.85 after all taxes and fees. Yet, each month his bills keep getting higher and higher, and further and further away from $53.85. Here's one example: The customer service person from this week tells him that the promotional rate he was given (which, again, wasn't actually followed) was only for three months, even though he has a recording in which the rep in August clearly says it's a 12 month rate after taxes. In fact, the earlier rep "guarantees that your price won't change for 12 months" and that it's "$53.85 which is really good because that's after taxes and everything." ALl of that is on the recording he has. As the guy notes, even though he had the earlier call recorded, a Comcast customer "shouldn't have to record every interaction" with Comcast customer service just to get the company to live up to its own promises. But, of course, it doesn't matter. The customer service rep this week insists that what the original person told him was simply incorrect, and she no longer has access to that kind of promotion. Towards the end of the call, however, she offers him a different promotion for 12 months (this is a little unclear, because at one point she says until October), and he points out that this new rep is making the exact same kind of promise -- of a certain price for 12 months -- which is pretty ridiculous since he knows he can't trust it. As the story started getting more and more attention, someone from "Comcast Executive Customer Relations" called the guy, but refused to consent to being recorded -- so the customer refused to continue with the call. That person eventually emailed him, and appears to offer to extend the original deal for another 9 months, but it's still not entirely clear -- and no matter what it's ridiculous that any customer should need to go through this sort of process. I'm sure that should this story go even more viral, Brian Roberts and Neil Smit will emerge from wherever they're hiding to act contrite and insist that this sort of thing is unacceptable, but that's clearly not true. And, no, it's not -- as Roberts likes to insist -- because the company is so large and has so many customers. These sorts of failings happen so regularly that it is clearly part of the corporate culture to lie and abuse customers. This is just the latest example, which looks especially bad given the fact that both calls were recorded.Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
According to a developing story in the Times of India, users in India are unable to access major international Web sites, including GitHub, Pastebin and DailyMotion: It now appears that the blocks are being carried out on the instructions of [India's] DoT (Department of Telecom). The telecom body reportedly issued a notification regarding the same on December 17. A screenshot of the circular has been posted on Twitter by Pranesh Prakash. The notification mentions that 32 URLs including Pastebin, video sharing sites Vimeo and DailyMotion, Internet archive site archive.org and Github.com( a web-based software code repository), have been blocked under Section 69A of the Information Technology Act, 2000. DoT has also asked ISPs to submit compliance reports. However, we have not been able to verify the authenticity of the circular. Here's the list posted by Pranesh Prakash: It's not clear why these sites have been blocked in this way, but Prakash, who is Policy Director at the Centre for Internet and Society in Bangalore, India, believes it's because of a court order in a copyright case. He also points out that this is not the first time this has happened. However, the key nature of many of the sites affected, and the fact that entire sites, rather than just some of their pages, were blocked, is bound to lead to calls for this blunt instrument to be refined before it is used again. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

Read More...
posted about 1 month ago on techdirt
Although not many outside the world of the biological sciences have heard of it yet, the CRISPR gene editing technique may turn out to be one of the most important discoveries of recent years -- if patent battles don't ruin it. Technology Review describes it as: an invention that may be the most important new genetic engineering technique since the beginning of the biotechnology age in the 1970s. The CRISPR system, dubbed a "search and replace function" for DNA, lets scientists easily disable genes or change their function by replacing DNA letters. During the last few months, scientists have shown that it's possible to use CRISPR to rid mice of muscular dystrophy, cure them of a rare liver disease, make human cells immune to HIV, and genetically modify monkeys. Unfortunately, rivalry between scientists claiming the credit for key parts of CRISPR threatens to spill over into patent litigation: [A researcher at the MIT-Harvard Broad Institute, Feng] Zhang cofounded Editas Medicine, and this week the startup announced that it had licensed his patent from the Broad Institute. But Editas doesn't have CRISPR sewn up. That's because [Jennifer] Doudna, a structural biologist at the University of California, Berkeley, was a cofounder of Editas, too. And since Zhang's patent came out, she's broken off with the company, and her intellectual property -- in the form of her own pending patent -- has been licensed to Intellia, a competing startup unveiled only last month. Making matters still more complicated, [another CRISPR researcher, Emmanuelle] Charpentier sold her own rights in the same patent application to CRISPR Therapeutics. Things are moving quickly on the patent front, not least because the Broad Institute paid extra to speed up its application, conscious of the high stakes at play here: Along with the patent came more than 1,000 pages of documents. According to Zhang, Doudna's predictions in her own earlier patent application that her discovery would work in humans was "mere conjecture" and that, instead, he was the first to show it, in a separate and "surprising" act of invention. The patent documents have caused consternation. The scientific literature shows that several scientists managed to get CRISPR to work in human cells. In fact, its easy reproducibility in different organisms is the technology's most exciting hallmark. That would suggest that, in patent terms, it was "obvious" that CRISPR would work in human cells, and that Zhang's invention might not be worthy of its own patent. Whether obvious or not, it looks like the patent granted may complicate turning the undoubtedly important CRISPR technique into products. That, in its turn, will mean delays for life-changing and even life-saving therapies: for example, CRISPR could potentially allow the defective gene that causes serious problems for those with cystic fibrosis to be edited to produce normal proteins, thus eliminating those problems. Although supporters of patents will argue as usual that they are necessary to encourage the discovery of new treatments, CRISPR is another example where patents simply get in the way. The discoveries were made by scientists in the course of their work in fundamental science at academic institutions, not because they were employed by a company to come up with a new product. According to some, the basic application of CRISPR to human cells that everyone is fighting over may even be obvious. The possibility of legal action will doubtless discourage investment in companies working in this area, and thus slow down the flow of new treatments. As usual, the only ones who win here are the lawyers. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

Read More...