posted about 1 month ago on techdirt
Wonderful. It's another one of those anomalies that happens all the time: copyright as censor. This time, the person abusing copyright protection tools to shut someone up is a disgraced researcher (Kaushik Deb) who received a three-year federal funding ban for "intentionally, knowingly, and recklessly" fabricating data in a research paper created with tax dollars. Retraction Watch was informed by its hosting service that it had received a DMCA notice targeting the post. The tactic used here is one we've seen before: copy-pasting and backdating of posts to make it appear as though the targeted site is the one engaging in copyright infringement. On Wednesday, our host, Bluehost, forwarded us another false copyright claim — aka a Digital Millennium Copyright Act (DMCA) takedown notice — by someone calling himself “Jiya Khan” and claiming to be based in Delhi, India. (Well, specifically, in “Rohini,sector-12,” which would mean that he or she is based at one of two petrol stations.) Khan insisted under penalty of perjury that a December 2014 post of ours — which we have now temporarily removed from public view (more on that in a moment) — violated his or her copyright. What actually happened, in an eerie echo of the 2013 case, is that Khan copied and pasted our December 9 post onto his or her site, then backdated it to December 5 to make it look older than ours, so that he or she could make a false copyright claim. (That, among other things, is a bit of a problem for Khan; the Federal Register notice that the post is about — and to which it manages not to link — wasn’t published until December 9.) The bogus backdated Blogspot blog contains several other copy-pasted posts, suggesting "Jiya Khan" is just a fake name fronting for a sketchy reputation management service. Presumably, bogus DMCA notices have been issued to target the mixture of critical articles and negative reviews splashed across the blog's pages. It's not exactly a surefire way to rid the net of criticism, but it's cheap and easy and works just often enough it's worth trying. We saw this with disgraced real estate lawyer Sean Gjerde, and gripe sites have seen it happen with just about everyone else. For the time being, the Retraction Watch post is down. The Federal Register's recounting of the incident and its sanctioning of Dr. Kaushik Deb is still live, and there are multiple snapshots of Retraction Watch's post on Kaushik Deb's data-faking hosted at the Internet Archive. Retraction Watch is challenging the DMCA takedown notice. Presumably, the post will be live again in the near future. Then again, "Jiya Khan" may continue to insist he created Retraction Watch's post, which means Bluehost won't be able to do much more than keep the post down until all permutations of the DMCA process have been played out. But that's how easy it is to make fully-factual criticism disappear, even if only temporarily. And whoever's mismanaging Kaushik Deb's questionable reputation knows this. Even if there's provable perjury in the takedown request, who's going to actually be able to track down the real person behind the "Jiya Khan" facade, much less manage to hold them accountable for their abuse of the system? Permalink | Comments | Email This Story

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Just about every year, like clockwork, Comcast will breathlessly insist that it has finally turned the corner when it comes to the company's historically abysmal customer service. In 2014, Comcast even went so far as to make a big deal about the fact it had hired a new "customer experience VP" who, the company promised, would finally get to the bottom of why Comcast has been ranked among the worst companies in any industry in America in terms of customer service and support. The end result: Comcast is still among the worst companies in America in terms of customer service and support. And, time and time again, Comcast will engage in some fairly obvious but incredible screw up that only gets fixed once the media gets involved. Case in point: Ars Technica tells the tale this week of a condo association in Sarasota, Florida that was just at the tail end of a 10 year bulk service contract with Comcast to provide cable service to the community. Once the contract ended, the association went ahead and cancelled service. But, Comcast being Comcast, the company kept billing the association $680 a month for several months, resulting in an "outstanding balance" of more than $2000. As always, actually getting a refund from Comcast wound up being a Sisyphean feat. When contacted, Comcast first claimed the association sent the cancellation center to the "wrong location." That's something the association denies, noting they sent the request to a Comcast office in Boca Raton that handles paperwork related to bulk contracts in the region (Comcast just mishandled the request). Subsequent efforts over the next few months included filing complaints with the FCC, filing complaints with the Florida government, and writing to Comcast CEO Brian Roberts. The association also tried to obtain mediation through the Citizen Dispute Settlement Program in Florida; a request Comcast never responded to. Ultimately, like we've seen countless times before, Comcast only jumped to action once the media got involved: Riggs Landing canceled the automatic bank payments, refused to pay for further months, and accused Comcast of illegally charging them twice for the same service, which Comcast denied. Riggs Landing and Comcast were at a stalemate for a few months, until Wiener contacted Ars in early September. “It just amazes me that for $2,000 plus, which has to be petty cash for them, that they would put up such resistance and alienate customers,” Wiener told Ars. Comcast is the United States' largest cable company and broadband provider. Finally, after Ars contacted Comcast, the company agreed in mid-September to honor the April 1 cancellation date and provide a refund. Riggs Landing received the refund check of $2,034.31 on October 21. It's just the same pattern over and over again. Comcast screws up, and instead of just admitting error and nipping the problem in the bud, the company doubles down -- putting the already incredibly annoyed customer through a gauntlet of dysfunction, compounding the public disdain for the company. Only once the threat of broad public exposure of its incompetence surfaces can Comcast be bothered to actually take a closer look at what happened. The problem is there's no end in sight for this kind of market idiocy. Cable giants are consolidating at an incredible rate. And the nation's DSL providers are effectively refusing to upgrade huge swaths of their DSL networks to instead focus on getting into the content and media business. Add in an incoming regulatory regime that doesn't think broadband monopolies are real, and you have a recipe for a stronger cable monopoly, less competition, and less incentive than ever to fix this ongoing parade of dysfunction.Permalink | Comments | Email This Story

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In the struggle to provide open access to academic research, one company name keeps cropping up as a problem: Elsevier. Techdirt has written numerous stories about efforts to rein in the considerable -- and vastly profitable -- power that Elsevier wields in the world of academic publishing. These include boycotts of various kinds, mass resignations of journal editors, as well as access to millions of publicly-funded papers in ways that bypass Elsevier altogether. Alongside these grassroots actions, some universities and research institutes have tried taking a different approach. They are making common cause by banding together in order to strengthen their negotiating hand with the global publishing giant. The aim is to get a better deal from Elsevier, particularly in terms of providing open access to papers. Last year, a group of universities in the Netherlands used this strategy with some success, as Science reports: A standoff between Dutch universities and publishing giant Elsevier is finally over. After more than a year of negotiations -- and a threat to boycott Elsevier's 2500 journals -- a deal has been struck: For no additional charge beyond subscription fees, 30% of research published by Dutch researchers in Elsevier journals will be open access by 2018. The Science article points out that this win had limited impact, because only about 2% of all academic papers are produced by Dutch authors. That makes the following move by the much larger German academic community of considerable importance: The DEAL project, headed by HRK (German Rectors' Conference) President Prof Hippler, is negotiating a nationwide license agreement for the entire electronic Elsevier journal portfolio with Elsevier. Its objective is to significantly improve the status quo regarding the provision of and access to content (Open Access) as well as pricing. It aims at relieving the institutions' acquisition budgets and at improving access to scientific literature in a broad and sustainable way. In order to improve their negotiating power, about 60 major German research institutions including Göttingen University cancelled their contracts with Elsevier as early as October 2016. Others have announced to follow this example. According to the post, Elsevier made its first offer to the group, but it was considered inadequate, and so the German institutions have ditched all their subscriptions with the publisher. As they say: All participants in this process are aware of the imminent effects this has on research and teaching. However, they share the firm conviction that, for the present, the pressure built up by the joint action of many research institutions is the only way to to reach an outcome advantageous for the German scientific community. Let's hope they are able to preserve their united front in order to win open access to the articles their researchers publish. After all, a win for the DEAL project is also a win for the rest of us. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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Just when you think you've seen it all in silly trademark filings, along comes a liquor company to block the trademark application for the logo of an NBA basketball team. Jagermeister, a liquor I haven't thought about since my college days because I'm a grownup that drinks grownup drinks, has decided that the logo for the Milwaukee Bucks is too similar to its own logo and must be stopped. Germany-based Mast-Jägermeister SE has filed its opposition to the Milwaukee Bucks trademark application with the U.S. Patent and Trademark Office. The notice, filed Thursday, argues that there is a likelihood of confusion between the two logos, a false suggestion of connection and a dilution of the Jägermeister logo’s “distinctive quality.” Jägermeister says the services provided by the two organizations “are so related” that it creates the potential for confusion. The potential for confusion “is enhanced by the extraordinary fame” of Jägermeister’s trademarks, the notice says. Here are the logos in question. Similar? Sure, I suppose, although there are fairly distinct differences between the two logos that would probably keep any customer confusion at bay. There are those lines within the circle on Jagermeister's logo, for instance. Also that big cross at the top, there, I suppose, because Jesus was a huge fan of Bavarian digestifs. Also, and this is a minor point only, the basketball franchise's name is right there on their logo. Regardless of all of that, whatever involvement Jagermeister has in markets other than beverages is minimal, it doesn't have anything to do with basketball, nor would it amount to creating any confusion within the public. All of which Jagermeister has essentially acknowledged in a statement saying that that it is really just wasting everyone's time with all of this while trotting out everyone's favorite excuse for paining someone else's ass with trademark law. On Monday, Jägermeister's trademark attorney, Katrin Lewertoff of Connecticut apologized for the delay and issued a statement suggesting there really is no trademark tiff. "Jägermeister and the Milwaukee Bucks have been cooperating on this issue for months," she said. "The filing was a formality to preserve our intellectual property rights. We expect to come to an agreement with the team soon and appreciate the climate of partnership and fair cooperation with the Milwaukee Bucks in the process." Soon after, the Bucks chimed in with, "“The Bucks have been working amicably with Jägermeister throughout this process and we are confident that we will come to a resolution very soon.” So everyone is going to end up playing nice over this, but Jagermeister had to block the application in order to preserve it's trademark rights. It's the same excuse we see time and time again and it's almost always false. In this case, for instance, the law only obligates Jagermeister to police it's trademarks in the face of true infringement or confusion. There is none in this case, so the blocking of the application was not necessary. Whatever the purpose of trademark has become in modern times, I doubt the framers had intended it to simply create busy work for lawyers and USPTO employees. Permalink | Comments | Email This Story

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Law enforcement databases, while useful in investigations, are also severely problematic. Not only does the desire to "collect it all" result in databases full of information about innocent people, but very few agencies are serious about deterring database misuse. In most cases -- despite the constant threat of criminal prosecution -- most abusers are hit with nothing more than short suspensions for improper access. Then there's the problem with the humans running the systems. When mistakes are made (or information is entered for more malicious reasons) by government agencies, the consequences for those mistakenly targeted can be severe. During a bitter, year-long legal battle that ended last month, Mr Hanson was shocked to discover his name was embedded in the police database as a "person of interest" involved in "suspected criminal activity" and "possibly associating" with Comanchero Outlaw Motorcycle Gang members. The intelligence entry carried the highest "A1" police reliability rating. But Fairfax Media can reveal the only basis for the report was that Mr Hanson's family car had been observed in the same street, at the same time, as "two motorcycle riders" wearing Comanchero shirts. The appearance of Mark Hanson (not his real name) in the police database occurred after a traffic stop in a casino parking lot. The officer performing the stop jumped to several conclusions, stating that Hanson's car was spotted "in the vicinity of several sports cars and motorbikes" on another street. In addition, the officer referred to the vehicle Hanson was driving his family in as "hotted up." These inferences -- all of which were based on coincidental observations not backed up by any info collected by the officer -- became the official police narrative, thanks to his report's entry into the law enforcement database. From that point on, former police officer Hanson was considered to be involved in gang-related activity. Because Hanson is a former police officer, he was able to get this corrected. Most citizens don't have the power to make that happen. He approached police supervisors about his database entry and was given some vague assurances that the bullshit he had been subjected to because of the officer's report might not happen again. When Mr Hanson canvassed senior police about the revelation, the force's Professional Standards chief inspector Gregory Jewiss confirmed that the constable had generated an "entity link" containing unconfirmed information but said there was no evidence to suggest "any malicious intent" had been involved in its creation. He added the officer would be spoken with to ensure his "knowledge" was "improved" and such linkages were "not made again". But the assurance that his database record had been purged did nothing to mitigate the damage already done. Hanson's entirely fake criminal status had already made its way into the hands of other agencies with access to the database, like State Crime Command's gangs squad and the Australian Crime Commission. Hanson was forced to go to court to get this information excised. The removal the chief inspector assured him about wasn't performed proactively. Having both the money and knowledge to press his case effectively was key for Hanson's courtroom success. For most people, these two resources are beyond their reach, as was confirmed by a recent COPS (the criminal database in question) forum held by the New South Wales Council for Civil Liberties. The forum found that while entries in the database can result in extra police attention, it is "highly unlikely" that people would ever obtain intelligence reports and there is no entitlement to amendment of the database. Citizens have no right to correct law enforcement's wrongs and no right to see what information has been gathered on them. They are almost completely at the mercy of the government. And the government is no less prone to errors or vindictiveness than those outside of it. The difference is that the government can do far more damage than any individual can, as it has the ability to mobilize entire agencies based on bad information. Permalink | Comments | Email This Story

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One or two instances can be outliers, but any more than that and it's a trend. And there is now indeed a trend among video game companies for removing Denuvo, the DRM once thought to be the industry's final solution to piracy. As the DRM software has indeed been proven crackable, some game makers have begun releasing patches to remove it from their games entirely. Somewhat strangely, Denuvo's removal tends to be absent from the patch notes. Such is the case in the latest example, in which id Software has stripped AAA title Doom of Denuvo. Theories abound as to what is going on here. There are some who believe these game makers are finally coming around to understanding that DRM is annoying their legitimate customers and no longer stopping piracy. The problem with that theory is that you would think companies like id Software would include the removal of Denuvo in the patch notes if that were the case. It would be a PR boon to be seen as consumer friendly if there were no plans to keep up this annoying DRM arms race any longer. At the NeoGAF link above, some are suggesting that the new strategy for publishers will be to utilize DRM in the first few months of a game's release and then strip it out once it's been on the market for a while. That way, the companies can combat piracy as best as they can during the critical initial release window and then, I guess, choose to stop annoying their customers months down the road. If this is indeed the strategy, it's a dumb one, as quite a lot of ill will in the public can be generated if/when the DRM breaks the gaming experience for real customers, especially if that happens in that same critical release window. Not to mention that Denuvo in particular cripples the modding community, which often serves as a boon to interest in any particular game. Still others think that this all has something to do with a money-back guarantee offered by the makers of Denuvo. There are theories floating around, though. The biggest is a rumor that Denuvo offers developers a money back guarantee if a game is cracked within three months. The (alleged) main stipulation? Developers have to remove the anti-piracy tech first. Given that Inside and Doom have both been cracked, majorly blemishing Denuvo’s vaunted un-crackable reputation, that would certainly explain the removal. And, if true, it should hopefully dissuade that kind of hubris from developing with other DRM makers in the future. Which is ultimately the entire point: this is an awful lot of hand-wringing over a technology that has never been proven to work, has been shown time and time again to pain the backsides of legitimate customers, and acts purely as a cost to game developers with no real ROI. Maybe it's time the industry decides it's simply done wasting its own time and money on DRM? Permalink | Comments | Email This Story

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While holding a position as a government employee can somewhat narrow your protected speech options, it doesn't mean your Constitutional rights are far closer to null and void than the average citizen's. The Fourth Circuit Court of Appeals, affirming a lower court's ruling, has found that a police department's social media policies have been treading too heavily on officers' First Amendment rights. In early 2013, Chief John Dixon of the City of Petersburg (VA) Police Department revised the department's social media policy, adding two provisions. The preamble to the new rules set the tone. From the decision [PDF]: The preface to the revised policy prohibits in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.” The first addition, supposedly supported by "established case law," notes that a very specific type of speech will not be tolerated. Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause… The second addition to the social media policy graciously "allows" officers to discuss general things about their job, so long as no one else in the force decides the comments are "disruptive." Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis. These additions to the policy were applied to comments made by two officers, who made negative comments on their own Facebook pages about the PD's tendency to promote rookie cops to supervisory positions. Chief Dixon was notified of these comments and decided they violated the new policy. He placed both officers on probation for six months. Several weeks later, Chief Dixon made more alterations to personnel policies, changing the promotion procedures to immediately disqualify anyone currently on probation. The two officers informed the city they intended to challenge their punishment. Shortly thereafter, the two officers became the subject of several complaints and internal investigations. One was fired. The other resigned. The lawsuit followed, alleging retaliation for exercising their First Amendment rights. The Appeals Court finds the policy not only infringes on the First Amendment rights of the officers, but discourages discussion of issues of public concern. Those two factors outweigh any perceived "disruption" that may have resulted from the officers' publicly-posted comments. While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance. Further, the court finds that -- unlike the lower court -- that Chief Dixon can't avail himself of qualified immunity. Because the policy was facially unconstitutional, any disciplinary actions taken were similarly improper. We hold that the Department’s social networking policy was unconstitutional and that the disciplinary measures taken against plaintiffs pursuant to that policy were likewise impermissible. The patent overbreadth of the policy negates Chief Dixon’s qualified immunity defense. As the Appeals Court points out, to allow such a policy to remain intact would harm both the law enforcement agency and the public it serves. Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere. The court finds nothing to back up the officers' retaliation claims, but does send it back to the lower court to determine a remedy for the violation of the officers' First Amendment rights. Courts have long noted that public sector employees don't immediately give up their First Amendment rights just because they've opted to work for the government. Chief Dixon's "case law-supported" policies were put in place to discourage criticism of his department, which is never a good reason for instituting restrictive social media policies. And so much for the "support" of "established case law." Two courts in a row seem to have found plenty of case law to the contrary. Permalink | Comments | Email This Story

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Earlier this year, we wrote about a crazy decision in the EU Court of Justice, that determined mere links could be direct infringement on commercial websites (with "commercial" being not well defined). Now as various courts in the EU try to put this ruling into practice, they're already making a mess of it. In particular, a German case has set an impossible standard for a site, finding a site to have infringed on the copyrights of a photographer for merely linking to a photograph. And the backstory here is even crazier. The image in question was originally uploaded to Wikimedia Commons by the photographer and put under a Creative Commons license (unfortunately, no one seems to name which CC license). And then this happened: This picture was then modified by an unknown third person, who added UFOs to the picture that appear to be flying above the building. This new picture was uploaded by the third person on his website. The defendant operates a website where he publishes and sells educational material that he creates. In the imprint of this website, the defendant posted a sentence that included the word “UFO”, which linked to the modified “UFO-Version” of the claimant’s picture. Clicking on the word “UFO” a new browser window in which the “UFO-Version” of the picture was shown would be opened. The photographer deemed that this constituted an infringing use of his work and brought the defendant to court. Now, let's just review this because we're already stretching all sorts of concepts to the point of breaking. The photographer uploaded an image under a CC license to Wikimedia Commons. Someone else modified it. Someone else -- operating a site that sells educational materials -- merely linked to the modified image from the word "UFO" -- and that's who gets sued. This seems like a classic "Steve Dallas Lawsuit" in which the target is a corporate entity because "that's where the money is" even if it makes no sense at all for the liability to be applied there. And here's the really nutty part: the German court agreed because of that insane CJEU ruling that says a "commercial site" should be assumed to know the copyright status of everything they link to. So merely linking to this silly modified photograph, the site itself becomes liable for direct infringement. That's insane. Yes, (depending on the CC license in question), it's entirely possible that the modified version was infringing, but that's no reason to make a site that merely links to that image liable for direct infringement over it. At this point, if you run a "commercial" website in Europe that links off site to anything, you have a tremendous liability hanging over your head due to the insanities of copyright law.Permalink | Comments | Email This Story

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Data security is a hot topic these days. You can learn how to secure your data on various cloud platforms with the Complete IT Cloud Security and Hacking Training course. Over 30 hours of training, you will learn about different types of cloud security threats and how to stop them. Through labs, lectures, games and other activities, you will Gain the technical skills & knowledge to engineer and design secure solutions for advanced enterprise environments, and you will learn essential skills required to pass the CompTIA Security+ and CEH version 9 certification exams. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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We've covered a lot of ridiculous defamation lawsuits here at Techdirt, but this one may have them beat. It's not even that the lawsuit is bullying in any form. It's that the lawsuit is at odds with itself, with the complaint more resembling someone thinking out loud than actually seeking to have a wrong righted. (h/t Ars Technica) Manhattan attorney Donald J. Tobias wants the court to force Google to hand over all kinds of identifying information on a commenter ("Mia Arce") who posted a three-word "review": "It was horrible." Tobias simultaneously claims in his lawsuit that the review is both "plainly defamatory" and possibly a mistake. Tobias (the attorney) thinks the review may not actually be a review, but rather a reaction to the tragic suicide of Cornell professor Donald J. Tobias, who jumped in front of a subway train in 2013. Tobias (the attorney) theorizes that "Mia Arce" may have witnessed the suicide and the "review" is simply a reaction to the suicide. Nevertheless, he sent a letter [PDF] to Google asking that this "review" be taken down or that it would pass on identifying information on the reviewer to him. Google, unsurprisingly, refused to do so. This didn't please Tobias, who had earlier presented Google with the same conflicting claims (libel per se/possible mistake) only to run head-on into Section 230 of the CDA. From the lawsuit [PDF]: This effort was, unfortunately, unavailing. On June 17, 2016, the Petitioner received a "form" e-mail, from the "Google Team," wherein the said Respondent, apparently relying upon its purported right, assertedly by virtue of the provisions of the Communications Decency Act of 1996 47 U.S.C. to ignore the problem with which the Petitioner was now confronted, stated, among other things, that "Google has decided not to take action on your request." In doing so, the "Google Team" noted that while it had acted as the "host" for the placement of third party content, it was not "the creator or mediator of that content" and that it would therefore do nothing more than "encourag[e] [Petitioner] to resolve any disputes directly with the individual who posted the content" (steps that would include, of course, if need be, commencing a lawsuit against the said individual and obtaining against the said individual appropriate injunctive and/or monetary relief). Google did nothing, however, to provide the Petitioner with any information, such as the address, telephone number or e-mail address of the person that made the subject posting, or even confirm that the person who did the posting was in fact an individual named Mia Arce. To the contrary, the Petitioner was told in this "form" reply that such information would be provided only in response to what it called "valid legal process." This lawsuit is the first step in the "valid legal process" Google is demanding, although it's unlikely a judge is going to find this approach "valid." Tobias admits the posting is probably erroneous but still wants to treat it as libel in order to obtain identifying information on the reviewer. I don't think many judges are going to entertain a half-baked libel lawsuit in which the petitioner openly theorizes the libel isn't actually libel but a response to a tragic incident wholly unrelated to him (other than by name similarity). An unspecified something being deemed horrible doesn't fit the definition of libel per se and this attorney likely knows this. But whatever Tobias knows about libel law isn't going to stop him from trying to force Google to remove the "review" and/or hand over identifying information. If Google is forced to do the latter, would Tobias actually pursue a defamation lawsuit against "Mia Arce" for a three-word comment that very likely doesn't refer to him in any way? The answer, unfortunately, is probably "yes." Mr. Tobias, who said he’s practiced law for 40 years, vowed to press on with his grievance. “I’m going to get to the bottom of this,” he told Law Blog by phone on Monday. “There should be some recourse…You can’t go around defaming people.” Well… of course not. But that's not what's happening here, according to Tobias' own theory. In any event, Tobias has hired a fool for a lawyer -- one with as many pro bono "billable" hours as Tobias is willing to throw at it. Permalink | Comments | Email This Story

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Oh boy. Ever since people started ridiculously blaming fake news on Facebook for the election outcome, we've pointed out that these calls will be used to justify censorship of opposing views -- and that's a very bad thing. We've already seen authoritarian countries with long histories of punishing and silencing dissent jump on the "fake news is a problem!" bandwagon to justify heavy handed censorship. Both China and Iran have pointed to "fake news" as a reason for new internet censorship plans. But, of course, now the disease is spreading, and spreading quickly. Over in Germany, Chancellor Angela Merkel has now endorsed a proposal to criminalize publishing fake news. Let's repeat that: she's endorsing a plan to make it a criminal offense to publish "fake news." Angela Merkel is as good as her word: the German chancellor is backing a new law that would ban fake news stories distributed via social media, according to German newspapers. The move comes amid growing concern that fake news on social media influenced the outcome of the U.S. presidential election, and could play a similar role in Germany’s own upcoming elections. Politicians from Merkel’s conservative Christian Democratic Union are proposing a law that would require social media sites to immediately remove fake news stories and make the publishing of such articles a criminal offense. The CDU currently governs in coalition with the leftwing Social Democratic Party as well as its own sister party, the Bavarian Christian Social Union, giving the government an easy majority and making it very likely that the law will pass, perhaps with some revisions after parliamentary debate. This is an out and out pro-censorship law which will be abused. And the really scary thing is that with all this hype about "fake news," it appears the general public in traditionally open democracies may cheer on this plan for government-mandated censorship. A new Pew Center study suggests the hype around fake news has tons of Americans believing it's a much bigger problem than it really is. But the really scary part is that, according to the survey, many believe that the government should be responsible for stopping fake news. In fact, more people would put a large part of the burden on the government than on internet companies or... (wait for it...) the public themselves: If you can't see that, 45% of respondents say that "a great deal of responsibility" for "preventing completely made up news from gaining attention" should fall on "government, politicians and elected officials." 42% say the same thing for platforms and 43% apply that standard to the public themselves. Obviously, these numbers are pretty close, suggesting they could be seen as about equal -- but that's still ridiculous. The government should not be in the business of deciding what is "fake news." It would fundamentally upset one of the basic concepts of freedom of expression. Again, none of this is to say that timelines flooded with blatantly hoax stories (again, the definition of "fake news" seems to morph with what one's beliefs are...) is a good thing. And it seems that approaches like the one that Facebook is now taking seem perfectly reasonable (providing more information, rather than blocking, and combining user feedback with expert fact checking to vet stories that deserve additional informational flags). But the idea that the government should take responsibility leads to ridiculous ideas like criminalizing "fake" news stories, which will only justify crackdowns like the ones in China and Iran even more. As the Washington Post's always astute Margaret Sullivan notes, politicians are the last people who should be judging what is, and what is not, fake news -- since it allows them to tilt the scales on issues directly impacting their own jobs: Government involvement is a seriously bad idea. It could put the question of what constitutes real news and what constitutes fake news in the hands of those who may be most affected by it. Indeed, this seems to directly be the case with the plan to criminalize fake news in Germany. As the quote above noted, the reason it's even up for debate there is because of "concern" that fake news could impact the upcoming election. Totally false news that people fall for can certainly be annoying -- but (again) we're mostly talking about confirmation bias. People believing stories because it fits their existing worldview. It's not like they'd change their position magically if they didn't see the fake news stories. And, even if they did, that's no excuse for criminalizing fake news -- which is only going to create a massive headache, and put freedom of the press and freedom of expression at serious risk. Though, it will be amusing when German officials try to charge The Onion with criminal offenses...Permalink | Comments | Email This Story

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So we've noted several times how the FCC's decision to avoid banning zero rating when crafting net neutrality rules was a bad idea, as it opened the door wide to all manner of net neutrality violations -- provided incumbent ISPs were just creative about it. And like clockwork, companies like AT&T, Verizon and Comcast quickly got to work exempting their own content from usage caps, while penalizing competitors (and non-profits or educational services). Meanwhile companies like Sprint and T-Mobile began charging users a steep premium unless they wanted games, video and music throttled by default. Unlike many other countries (Japan, The Netherlands, Norway, India), the FCC decided to avoid banning these kinds of practices as part of neutrality rules, instead saying they'd step in and act on a "cases by case" basis should ISP behaviors prove anti-competitive. But as ISPs increasingly made it very clear they were using arbitrary usage caps as anti-competitive weapons against competing streaming video services, the FCC did nothing. That is, until the agency reached out to AT&T and Verizon last month, formally accusing both companies of violating net neutrality. It's a strange, belated decision by an FCC that, by most analyst accounts, is about to be defunded and defanged. Both the GOP and incoming Trump administration have

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Earlier this year, Twitter pulled the plug on some of Dataminr's customers, specifically the intelligence agencies it was selling its firehose access to. Twitter made it clear Dataminr's access to every public tweet wasn't to be repurposed into a government surveillance tool. That being said, everything swept up by Dataminr was public. There was no access to direct messages or tweets sent from private accounts. And Twitter seemingly is doing nothing to prevent Dataminr from selling this same access to the FBI, an agency that's far more an intelligence agency than a law enforcement agency these days -- one that thinks it should be allowed to do everything the CIA does, if not more. Presumably, the FBI pinned its law enforcement badge to its chest when hooking up with Dataminr because Twitter has had nothing to say about the partnership. And it's not as though Twitter is fine with just anyone selling analytic tools to law enforcement. It, along with Facebook, yanked Geofeedia's access to APIs simply because it didn't like how Geofeedia pitched its tweet-grabbing front end. In sales materials, the company strongly hinted that law enforcement agencies could use its software to stay "one step ahead" of citizens engaged in First Amendment-protected activity. Twitter's standards are malleable, to say the least. But it does seems to be serious about refusing to let its service become just another government surveillance tool. The ACLU is reporting that Twitter has just cut off Dataminr access to the dozens of DHS "fusion centers" scattered across the country. As of this week, Twitter has made sure that federally funded fusion centers can no longer use a powerful social media monitoring tool to spy on users. After the ACLU of California discovered the domestic spy centers had access to these tools, provided by Dataminr (a company partly owned by Twitter), Dataminr was forced to comply with Twitter’s clear rule prohibiting use of data for surveillance. Twitter sent a letter to the ACLU of California this week confirming that Dataminr has terminated access for all fusion center accounts. The letter also makes clear that Dataminr will no longer provide social media surveillance tools to any local, state, or federal government customer. Once again, the DHS and its local partners are still free to eyeball as many public tweets as they like, but without the robust front-end that hauls in hundreds of millions of tweets every day and sorts them into easily-surveillable categories. This is probably just as well, considering the DHS's "fusion centers" are underperforming boondoggles tasked mainly with fielding ridiculous complaints from Americans who actually believe "see something, say something™" helps the nation fight terrorism, rather than simply put more government boots on the Bill of Rights' neck. Twitter's statement says it will continue to "work with" Dataminr to further limit its pool of government customers. Dataminr, on the other hand, says there's really nothing to worry about. It may be directly attached to the Twitter firehose, but its customers aren't. Datatminr’s product does not provide any government customers with their own direct firehose access or features to export data; the ability to search raw historical Tweet archives or to target or profile users; conduct geospatial analysis; or any form of surveillance. Well, sure. Not now. From the third-hand discussions of conversations between Twitter and Dataminr, it appears the company will only be able to offer a highly-filtered version of its firehose to government end users. If this results in less lucrative contracts, so be it. After all, Dataminr did itself no favors by marketing its software to law enforcement with the same sort of pitches that ended Geofeedia's relationship with the social media company. Through a public records request, the ACLU of California discovered that the Los Angeles area fusion center, JRIC, was using Dataminr and had access to the company’s powerful Geospatial Analysis Application that enables keyword searches and location-based tracking. Settings in the Geospatial App even allowed the government to focus on monitoring journalists and organizations. Using Dataminr, fusion centers like JRIC could search billions of real-time and historical public tweets and then potentially share information with the federal government. In an email to the Los Angeles Police Department, Dataminr also highlighted how its products could be customized to track protests by drawing from the complete Twitter “firehose” of public tweets. In a separate brochure, Dataminr touted the Geospatial App’s use to surveil a student protest. None of this shows much in the way of consistency or integrity on Twitter's end. If Geofeedia's marketing materials bothered Twitter enough to completely yank its access, the sales pitches by Dataminr should have been equally concerning. But Dataminr is still hooked up to Twitter's hose and Geofeedia has been left to wander off somewhere into the software wilderness and die. Both marketed access to law enforcement using surveillance of First Amendment-protected activity, but only one is still allowed to do so. Permalink | Comments | Email This Story

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This week, the recording industry called on Donald Trump to protect and enhance their beloved copyright, and in response came both of our winning comments on the insightful side. In first place, we've got Jeremy Lyman responding to their talk about "rights guaranteed in the Constitution to those who, with the genius of their mind, form the cultural identity of our great nation": Careful, that's dangerously close to spilling the beans about copyright's actual goal of populating the Public Domain! When you guys want to have a serious conversation about rolling back the length of copyrights and how to actually get some works to enter the Public Domain, I'll agree to start talking about how to ensure your farce of a "culture producing" monopoly is actually respected. Hint: they're related. In second place, we've got PaulT expanding on Mike's comment in the post that whining about not getting fair compensation is just complaining about the price set by the market: It's worth being even clearer before the usual gaggle of fools comes in and whines about piracy not being part of the fair market. There are numerous strands of pricing that the actual free market has set. These range from a fairly high level for limited edition physical goods, to an extremely low per-play level for streaming access. These are the things that are being talked about, they just happen to compete with piracy, as has every format since recorded media could be made by the general public. What the record companies are whining about is that the free market means that they cannot charge a price that's too high. You can't charge the same for a bog standard CD or album download as you can for a special edition vinyl. You can't charge the same for a digital single as you would for a CD single. You can't charge the same for a single stream as you would for a purchase. The other factor is that the market trends toward the lower priced items, as with anything that's become a commodity (and yes, pop music is essentially a commodity). So, as the market naturally trends away from people buying numerous albums over and over in different formats and toward people paying to rent single tracks from any device at any time, so the profit margins have disappeared. They want to charge $20 for an album of songs, but the average consumer is only willing to pay $10/month for a Spotify subscription, if that. "Fair compensation" means to them that you pay what some would have paid in the 90s when they controlled virtually all of the production, distribution and marketing channels, and they want that to return. Piracy's just a good excuse. For editor's choice on the insightful side, we'll go ahead and look at two other great comments on that post. First, it's Mitch Stoltz dutifully underlining the flaw in the constitutional claims: Every time the entertainment cartel says that copyright is "guaranteed in the Constitution" or somesuch, let's remind them that the Constitution gives Congress the authority to pass copyright laws, which is not the same thing. The Constitution also gives Congress the authority to grant letters of marque, but that doesn't guarantee me the right to be a privateer. Next, we've got an anonymous commenter honing in on yet another piece of the industry's language — its demands for a free market via... the market restriction of copyright: Free market? On music? One of the few things where there is a strictly enforced monopoly? 'Free Market Government Enforced Monopoly': oxymoron of the decade. Over on the funny side, we've got a double winner, with Roger Strong taking both first and second place! We start out on the story of PwC responding to some researchers who found a security vulnerability with a legal threat and a tone-deaf statement about how "unlikely" the "hypothetical" exploit was, where he took first place by expertly parodying their statement by changing a few key words: The "Rebel Alliance" did not receive authorized access or a license to use the Death Star plans. The plans are not publicly available and are only properly accessed by those with licenses, such as Empire military staff working with trained Empire engineers," said the spokesperson. "The bulletin describes a hypothetical and unlikely scenario regarding a two-meter thermal exhaust port -- we are not aware of any situation in which it has materialized," the spokespersons said. Then, we head to the story of Verizon's short-lived assertion that it would not push out a new update designed to brick faulty Galaxy Note 7 phones, because they didn't want "to make it impossible to contact family, first responders or medical professionals in an emergency situation" in the holiday travel season. Roger was in fine form here as well: Or any other vital assistance. (Note 7 bursts into flames) "The beacons are lit! Gondor calls for aid!" For editor's choice on the funny side, we start out on our story about the UK's new and ridiculous anti-porn laws that can be used to kill social media accounts, where one anonymous commenter served up a sublimely childish and amusing jab: Block internet access to the parliament; it's full of dicks and boobs. And finally, we've got Donnicton taking a moment to celebrate Team Prenda finally getting their comeuppance just in time for the holidays: I'm going to be telling my family to return all of the Christmas presents they've bought for me, because this is already the best Christmas I've ever had. That's all for this week, folks! Permalink | Comments | Email This Story

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Five Years Ago This week in 2011, everyone from Rupert Murdoch and Chris Dodd to sixteen former Judiciary Committee staff who had become entertainment industry lobbyists (hello revolving door!) was pushing to get SOPA passed. At the same time, Wikipedia was explaining in great detail why SOPA hurts the internet, and we heard the first rumblings of the now-famous Wikipedia blackout in protest. Meanwhile, some creators were smartly focused on being creative and finding new business models: this was the week that Louis CK launched direct-to-fan sales of his latest special via his website, and set the comedy world on fire with its staggering success. Oh, and Mike published his 40,000th post on Techdirt! Ten Years Ago This week in 2006, people were beginning to slowly understand the fact that the iTunes store was just a loss-leader to help boost iPod sales, though several analysts were not quite getting the point. Other stores like eMusic were showing the power of DRM-free music but the record labels weren't listening, and even though folks like Bill Gates seemed to understand the dangers of DRM, they weren't doing anything about it. Meanwhile, the sex.com debacle continued, the Netherlands blazed a trail in switching from analog to digital TV broadcasts, and laptops were beginning their ascent as desktops began their decline. Fifteen Years Ago Five years earlier in 2001, some were already calling for the death of the PC industry and its replacement by the next big thing (though that may have been somewhat overstated). NY Times Magazine took a great look at the year's most interesting ideas, though perhaps the most problematic post-9/11 trend was the obsession with finding silver-bullet technological solutions to big problems. Tech was getting smarter, with some of the first forays into music recognition technology and the military suddenly becoming interested in the role of robots in war. (And today we have ContentID and drone strikes...) In slightly more pleasant forms of progress, Apple was realizing that Macs need more games (a problem that is a lot closer to solved today). One-Hundred And Fifteen Years Ago Just a brief historical nod this week: it was on December 12th, 1901 that the first transatlantic wireless transmission was received by Guglielmo Marconi at Signal Hill in St. John's, Newfoundland. Permalink | Comments | Email This Story

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Lately it's been John Oliver whose short segments have been related to Techdirt-focus areas, but now it's another Daily Show alum, Samantha Bee, whose show, Full Frontal, just had an excellent segment by Ashley Nicole Black that's a Mr. Robot parody explaining why everyone should learn about protecting their digital info, including putting a passcode on their phone, using different passwords and more. The ~7-minute clip includes brief cameos by Senators Ron Wyden and Pat Leahy talking about overly aggressive US surveillance -- and an extended bit with technologist Chris Soghoian, who just left the ACLU to go help Congress better understand technology (this is good!). And then, at the end, they get Talib Kweli to do an... updated version of his hit song "Get By" to make it relevant to protecting your personal data from government surveillance, and concluding that the surveillance "goes against the 4th Amendment." And, did we mention the whole thing is pretty funny? Permalink | Comments | Email This Story

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I've made no secret of the fact that I think smartwatches are really wonderful, even as lots of people scoff at the concept (and sales have been disappointing across the board). The first device that clued me in to the possible power of the smartwatch was the original Pebble smartwatch, which I (and many, many others) backed on Kickstarter. I ended up backing their second Kickstarter campaign as well -- but was disappointed in the end product and ended up moving on to another smartwatch instead (the Moto 360, though now it looks like Motorola is dumping that business as well). I didn't end up backing Pebble's latest Kickstarter campaign, which turned out to be a good thing, because as you may have heard, the company announced last week that it had sold its assets to Fitbit, and no more work would be done on Pebble watches (and people who backed the latest project would eventually get refunds, but no watches). But, things are even worse for those who already do have (and still use) Pebble watches. In the announcement, the company admits that since Pebble watches rely on Pebble servers for certain features, the functionality of the watches may be reduced in the future: Active Pebble watches will work normally for now. Functionality or service quality may be reduced down the road. We don’t expect to release regular software updates or new Pebble features. Our new mission will focus on bringing Pebble’s unique wearables expertise to future Fitbit products. We’re also working to reduce Pebble's reliance on cloud services, letting all Pebble models stay active long into the future. Of course, as Cory Doctorow rightly notes, the real problem here is that thanks to stupid laws like the DMCA Section 1201 (barring circumvention of technological protection measures) and the CFAA (barring certain forms of "hacking"), users will have trouble fixing or saving their own watches. It's yet another case of not really owning what you thought you bought... thanks to DRM and bad laws. The watches are among the many cloud-based Internet-of-Things products that are reliant on the ongoing maintenance of server infrastructure for normal functionality. This problem is exacerbated by the widespread IoT deployment of DRM to lock devices into manufacturer-controlled infrastructure -- thanks to laws like section 1201 of the Digital Millennium Copyright Act, developers who create software to replace cloud functions with alternative/self-hosted servers, or with local computing, face potential jail sentences and millions in fines. Add to that the Computer Fraud and Abuse Act, which has been used to threaten and even jail researchers who improved services but violated their terms of service to do so, and the IoT space is the land of the contingent, soon-to-be-bricked devices As Cory notes, Pebble should allow their own users to hack their stuff, by releasing source code, schematics and more. Unfortunately, this is unlikely to happen. But it's yet another case of the law getting in the way of something you thought you owned.Permalink | Comments | Email This Story

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For many, many, many years, we've been saga of Prenda Law -- a legal operation set up to file tons of shakedown copyright infringement lawsuits in an effort to get as many people as possible to just pay up and settle. The scam got deeper and deeper the more you looked, including forged signatures, clear evidence that the main actors behind Prenda -- John Steele and Paul Hansmeier -- were uploading their own works as a honeypot, while pretending to represent clients that they themselves owned through various shell companies -- which they denied owning. It went on and on and on. And on and on and on. Things really went sideways almost four years ago when Judge Otis Wright in California was the first judge to put much of this together, and called all of them to court, where everyone pleaded the fifth (yes, lawyers were pleading the fifth in a case they themselves brought). In response, Judge Wright referrred the case to law enforcement, leading many people to ask over the past four years how it was these guys weren't in jail (and, in fact, they continued to file lawsuits, reprising the same scheme but with ADA shakedowns. Court after court after court has slammed Prenda, and ordered Hansmeier and Steele (partner 3, Paul Duffy, died in the middle of all of this) to pay up lots of money. Of course, in response to that, there were further accusations of illegally hiding money, bogus trusts, a questionable bankruptcy claim and more. And, yet, they still were not in jail. Oh, and we didn't even mention the various ethics investigations that recently suspended Hansmeier's license. Ken "Popehat" White -- who as a former Assistant US Attorney and current criminal lawyer -- has kept saying that the wheels of justice turn slowly, but they do turn. Back in May, White noted that it appeared that ofifcials were getting mighty close to filing charges against Hansmeier and Steele, based on some evidence he had seen, suggesting the investigation was wrapping up. And the wheels continued to turn... until earlier today when it was revealed that Steele and Hansmeier have both been indicted and arrested in connection with the Prenda scam. You can read the indictment or Ken White's excellent analysis of it. As White notes, the indictment is incredibly thorough. We've written about a number of indictments in the past in which law enforcement is fairly lax on details. This is not one of those cases. The overview gives a really good summary of everything: Between 2011 and 2014, defendants Paul R. HANSMEIER and John L. STEELE orchestrated an elaborate scheme to fraudulently obtain millions of dollars in copyright lawsuit settlements by deceiving state and federal courts throughout the country. In order to carry out the scheme, the defendants used sham entities to obtain copyrights to pornographic movies--some of which they filmed themselves--and then uploaded those movies to file-sharing websites in order to lure people to download the movies. To learn the identities of the people caught in the trap they constructed, HANSMEIER and STEELE filed specious copyright infringement lawsuits and fraudulently procured permission from courts to send subpoenas to internet service providers for subscriber information associated with the IP addresses used to download their pornographic movies. After receiving this information, the defendants--through extortionate letters and phone calls--threatened the subscribers with enormous financial penalties and public embarrassment unless the subscribers agreed to pay a settlement, all the while concealing their collusion in the alleged copyright infringement. When courts restricted their ability to sue multiple individuals in the same lawsuit, the defendants shifted tactics. They filed lawsuits falsely alleging that computer systems purportedly belonging to their sham clients had been infiltrated by hackers, and then recruited ruse defendants against whom they brought these illusory "hacking" lawsuits. Finally, when courts became suspicious of the defendants' tactics and motives, the defendants began a long process of lies and deceit designed to conceal the truth and deflect responsibility from themselves. In total, the defendants obtained approximately. $6,000,000 made possible by the fraudulent copyright lawsuits they peddled to courts throughout the country I believe the $6 million number is new. But everything else in there we've covered in the past. The lawsuit names some people by initials only -- but who are easily identifiable if you've been following the saga. M.L. is likely Mark Lutz the "paralegal" who was involved in many of these cases, and was a figurehead owner of some of the sham corporations. You may remember him from one of the earliest Prenda stories we had, where Lutz "appeared" in court as a "corporate representative" of one of Prenda's "clients" and yet knew nothing at all about the company he was supposed "representing." That story also involved an appearance by John Steele who claimed he was there just observing, but which the judge immediately became suspicious about. P.H. is likely to be Peter Hansmeier, Paul's brother, whose name has appeared at times in connection with the Prenda scam and had been described as the technology person tracking down who was downloading the files in question. The indictment also mentions P.D. who is obviously Paul Duffy, the official owner of Prenda Law, but who was always sort of the third wheel of the operation before dying just as all the mess was unfolding. A.C. is clearly Alan Cooper, named here as "an acquaintance of Steele," but who was a caretaker for some Steele properties, and whose signature Steele forged on documents pretending to own AF Holdings, one of the bogus shell companies he set up. B.G. is almost certain Brett Gibbs, a California lawyer who filed a bunch of Prenda lawsuits early on, but was one of the first to reveal details once judges started to catch on. Perhaps the most interesting part of the indictment is it details multiple lies that Team Prenda told under penalty of perjury or under oath to various courts. It's a pretty long and detailed list. It includes filings by Mark Lutz and Brett Gibbs, which the indictment claims were all done, under penalty of perjury, at the direction of Steele and Hansmeier -- so they don't even get off for trying to keep their names off these documents. Based on all this, they're facing a bunch of charges, for mail fraud, wire fraud, conspiracy to commit money laundering (involving the transactions to hide money from courts) and conspiracy to commit and suborn perjury. As White rightly reminds us, an indictment is just a bunch of allegations, not yet proven, but having followed Team Prenda and all these actions for many years, the feds seem to have clearly figured out what was going on, and appear to have the evidence to back up many of those claims. Things don't look good for Steele and Hansmeier. According to the Minneapolis Star Tribune, US Attorney Anderw Luger called a press conference to announce all of this and call out the actions of Steele and Hansmeier. "The defendants in this case are charged with devising a scheme that casts doubt on the integrity of our profession," Luger said in prepared remarks. "The conduct of these defendants was outrageous — they used deceptive lawsuits and unsuspecting judges to extort millions from vulnerable defendants. Our courts are halls of justice where fairness and the rule of law triumph, and my office will use every available resource to stop corrupt lawyers from abusing our system of justice." Turns out that when you abuse the judicial system to shake people down... people aren't going to be too happy about that. Of course, now we have to wonder if the other giant copyright troll, Malibu Media, may be facing similar issues going forward...Permalink | Comments | Email This Story

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We've had our run-ins with Jonathan Taplin before. The quintessential OMYAC of the legacy entertainment industry, who is so obsessed with the nefarious things he insists Google and Facebook are doing (even though he's often flat out wrong), is back in the pages of the NY Times, arguing that regulators shouldn't be so concerned about AT&T, when they should be attacking Google and Facebook instead. Taplin kicks it off by jumping on Mark Cuban's ridiculous comments from last week saying that AT&T should be able to buy Time Warner so that it can "compete" against Google and Facebook, and then takes it to an even more ridiculous level. The crux of Taplin's argument: Google and Facebook are big, and thus bad, and need antitrust treatment. Look at the numbers. Alphabet (the parent company of Google) and Facebook are among the 10 largest companies in the world. Alphabet alone has a market capitalization of around $550 billion. AT&T and Time Warner combined would be about $300 billion. Yup. They're big companies -- and certainly, like with all big companies, we should be wary about how they might abuse their powers. But big, by itself, isn't automatically bad. And the nature of antitrust is not that big is bad, but that abusing monopoly power is bad. And Taplin has no way to show either (1) monopoly power or (2) abusive behavior, so he just starts throwing numbers. Alphabet has an 83 percent share of the mobile search market in the United States and just under 63 percent of the US mobile phone operating systems market. AT&T has a 32 percent market share in mobile phones and 26 percent in pay TV. The combined AT&T-Time Warner will have $8 billion in cash but $171 billion of net debt, according to the research company MoffettNathanson. Compare that to Alphabet’s balance sheet, with total cash of $76 billion and total debt of about $3.94 billion. Nice cherry picking, Jonathan! The real scam in fake antitrust complaints is trying to define the markets in a way that looks much worse than it really is. Notice that Taplin focuses on "mobile search" (random?) as the market for Google and "mobile phones" for the market for AT&T. But he leaves out the simple facts: if you need an internet connection, in many cases AT&T is either your only option or one of two options. And if you do that, AT&T gets to see everything you do. And switching broadband providers or mobile phone providers is a complicated and often expensive process. Switching a search engine... is not. Then, to get to the question of "bad behavior," Taplin falls back on the silly line that because Google and Facebook have made a lot of money, and his buddies in legacy entertainment companies have been making a lot less money, that somehow Google and Facebook have unfairly taken money from his industry. That's just silly. In the past decade, an enormous reallocation of revenue of perhaps $50 billion a year has taken place, with economic value moving from creators of content to owners of monopoly platforms. I reached this conclusion from the following statistics: Since 2000, recorded music revenues in the United States have fallen to $7.2 billion per year from $19.8 billion. Home entertainment video revenue fell to $18 billion in 2014 from $24.2 billion in 2006. United States newspaper ad revenue fell to $23.6 billion in 2013 from $65.8 billion in 2000. And yet, by every available metric, people are consuming more music, video, news and books. During that same period, Google’s revenue grew to $74.5 billion from $400 million. Sing it with me, folks: correlation is not causation. After all, the number of works of visual art copyrighted in the US similarly has an inverse correlation to the number of females in NY who slipped or tripped to their death (really!). It doesn't mean it's a causal relationship where more of one means less of the other. The reason that Google and Facebook are making lots of money is because they're offering a product that people want and they're doing it for free and have come up with business models that work. The reason legacy entertainment companies are flailing (and, realistically, only some of them are), is because they tried to stick with their old business model that focused on basically ignoring or mocking and attacking competition from new sources. The problem, in short: Taplin's whole world revolved around elitism and gatekeepers. The business models he celebrates are gatekeeper business models -- the ones that keep out the riff raff and the people that Taplin likes to insult because he thinks their "art" isn't good enough to be seen by the world. The world of the internet is the opposite. It's about enabling anyone to be a creator, and to open up new avenues to create, to share, to promote, to distribute, to build a fan base and to monetize. Those were all functions that Taplin and his friends used to control, with a strict lock on the gate, allowing them to artificially inflate the prices. When the new platforms came on the market and democratized every bit of the process of creating/distributing content, suddenly the "deal" offered by the gatekeepers didn't look so good. And that's why those busineses have struggled. And it's why, comparatively speaking, most of the public likes companies like Google and Facebook, while they hate AT&T. Find me a list of consumer satisfaction or most admired companies where AT&T outranks either of the other ones. Antitrust should be about protecting consumers -- and the public is pretty happy with the services it gets from Google and Facebook... but not so much with AT&T. But, of course, to Taplin, it all comes back to piracy, because he's absolutely sure that's why everyone uses Google and Facebook, even though he's wrong. Every pirated music video or song posted on YouTube or Facebook robs the creators of income, and YouTube in particular is dominated by unlicensed content. Google’s YouTube has an over 55 percent market share in the streaming audio business and yet provides less than 11 percent of the streaming audio revenues to the content owners and creators. But Facebook, which refuses to enter into any licensing agreement on music or video, is challenging YouTube in the free online video and music world. As we discussed a few months ago, when you look at the actual data, only 2% of music video views on YouTube are unauthorized. 2%. So, no, YouTube is not "dominated by unlicensed content." That's simply and utterly false. And, no, even those unauthorized videos are not "robbing creators of income." Many smart creators these days are using YouTube as a platform to get more fans and build a bigger support base, which they can take to platforms like Patreon or Kickstarter, rather than having to give up everything to sign with a major label run by one of Taplin's friends. I recognize that Taplin's friends have struggled to understand and adapt to this new world. And I understand that they want to lash out at the big companies like Google and Facebook that have helped make this world a reality. But why does the NY Times keep letting him publish blatantly factually false information? Oh, and the kicker? After a long rant that is full of misleading buillshit... he asks for "an honest national conversation." Perhaps in January we can have an honest national conversation on monopoly and our future. If we were to have an honest conversation, it would have to leave out Taplin's lies.Permalink | Comments | Email This Story

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NSA oversight and whistleblowing through proper channels: both pretty much worthless. Members of the intelligence community and members of its supposed oversight have said the same thing repeatedly over the past few years: oh, we'd love to cut Edward Snowden a break, but he should have taken his complaints up the ladder, rather than outside the country. As if that would have resulted in anything other than Snowden being cut loose from his job and his security clearance stripped. The NSA's Inspector General -- supposedly part of the agency's oversight -- was even more harsh in his assessment of Snowden's actions. During a day-long conference at the Georgetown University Law Center, Dr. George Ellard, the inspector general for the National Security Agency, spoke for the first time about the disclosures made by former NSA contractor Edward Snowden. In addressing the alleged damage caused by Snowden’s disclosures he compared Snowden to Robert Hanssen, a former FBI agent and convicted spy who sold secrets to the Russians. [...] “Snowden, in contrast, was manic in his thievery, which was exponentially larger than Hanssen’s. Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose. Snowden had no background in intelligence and is likely unaware of the significance of the documents he stole,” Ellard suggested. These are the words of the "proper channel." Ellard went on to state that had Snowden approached him with his concerns he would have pointed to the series of judicial rubber stamps that backed up the government's post-9/11 national security assertions as they approved more and more bulk surveillance. That Inspector General -- the official channels, the oversight -- is now (mostly) on his way out of the agency for actions undertaken in direct conflict with his position, as reported by the Project for Government Oversight. [L]ast May, after eight months of inquiry and deliberation, a high-level Intelligence Community panel found that Ellard himself had previously retaliated against an NSA whistleblower, sources tell the Project On Government Oversight. Informed of that finding, NSA’s Director, Admiral Michael Rogers, promptly issued Ellard a notice of proposed termination, although Ellard apparently remains an agency employee while on administrative leave, pending a possible response to his appeal from Secretary of Defense Ash Carter. "Bring your complaints through the proper channels," said the proper channel, all the while making sure whistleblowers regret blowing the whistle. Ellard still has an appeal left to reclaim his position as a dead end for whistleblowers, but it seems unlikely the agency will be interested in welcoming a liability back into the fold. Ellard didn't just violate standard government policies on workplace retaliation but a fairly-recent presidential directive as well. [The decision] was reached by following new whistleblower protections set forth by President Obama in an executive order, Presidential Policy Directive 19. President Obama issued this in 2012, and it was put into force the next year, a few months before Snowden began dumping documents. The new directive created better protections but would have done nothing to aid Snowden in taking his complaints to the proper channels because he was only a government contractor, not an actual government employee. It's somewhat of a surprise that Ellard managed to get caught in this loosely-protective framework, suggesting whatever he did was fairly egregious. Officials of his stature rarely see retaliation claims against them substantiated. But that's exactly what happened here. Following PPD-19 procedures, a first-ever External Review Panel (ERP) composed of three of the most experienced watchdogs in the US government was convened to examine the issue. The trio -- IG’s of the Justice Department, Treasury, and CIA – overturned an earlier finding of the Department of Defense IG, which investigated Ellard but was unable to substantiate his alleged retaliation. Also receiving a bit more substantiation are Snowden's claims that utilizing the proper channels within the NSA would have been fruitless -- something that has been pointed out by earlier whistleblowers, nearly all of whom have seen their careers ended and their lives turned upside down by government prosecutions for their actions. Permalink | Comments | Email This Story

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The Intercept, a site that regularly publishes classified documents, reports that the Director of National Intelligence, James Clapper, also publishes a classified internal blog -- called (serendipitously enough) the "Intercept." It even offers a secret RSS feed so analysts will never miss a post. Clapper’s Intercept blog has no relationship to The Intercept, except that he hates pretty much everything we stand for. In a blog post [PDF] obtained by The Intercept, Clapper responds to a redacted "constituent" in Nevada who -- two months prior to the first Snowden leak -- wants to reassure the Intelligence Community that Americans have far too many rights. “If the american [sic] people are not willing to release some freedoms, they cannot blame the IC when they can’t stop” domestic terror attacks because of the intelligence agencies “having their hands tied by Law [sic] & policy,” the “constituent” wrote. He adds that Americans “cannot have your cake and eat it too,” and then offers what has become a dangerous cliche in the post-Snowden mentality of the intelligence community: “So if one has nothing to hide why would a little government watching for mass protection be such a big question.” The letter ends: “WE SUPPORT YOU.” In his response to this outpouring of love for government overreach, James Clapper -- perhaps feeling he was writing for the "home team" -- dispenses with niceties about honest government employees doing their damndest to protect American civil liberties while still keeping the government safe from international terrorism. Instead, he becomes an echo chamber. I can't tell you how much I appreciate your letter… I say this on behalf of all the women and men in the Intelligence Community. In my view you have very accurately described the issue that the Boston Bombings represent! Just how small do the Americans want the holes in the security fish net to be? Clapper has greatly overestimated his affinity with the rank-and-file of the IC, as the comments on his blog post attest. The first two intelligence people to comment on his post took Clapper, and his “constituent,” to the woodshed. “I think it was inappropriate for DNI Clapper to respond in a way that indicates he agrees with the premise of the writer’s letter, namely, that government must expand its domestic “watching” and the people must give up “some ‘rights’ in the interest of the greater good,” one IC commenter posted. “The head of the US Intelligence Community — the business of which is foreign intelligence —should not be taking sides on matters of domestic intelligence policy.” Another commenter wrote that, like Clapper, he agreed with the letter’s author about “the fact that it is impossible to defend 100% against these kinds of attacks given the restrictions placed on America’s security forces and the freedom and range of targets enjoyed by the attackers.” However, this commenter, who went by the name Wormy, warned against being “too quick to release your freedoms and “rights” in the name of security.” The head of the intelligence community is at odds with his own underlings. Clapper and Gen. Keith Alexander have long been fans of unrestricted mass surveillance that helps the agency pursue its "collect it all" goals. Clapper has lied about the existence of surveillance programs and followed those lies up with spirited arguments against any narrowing of their scope. Clapper apparently believes Americans can get by with fewer rights in exchange for security he can't possibly guarantee. And all to save the nation from something less likely to kill Americans than lightning strikes. On the other hand, if these two commenters are more indicative of the attitudes of the bulk of the NSA's workforce, then Clapper's assertions about analysts' concern for protecting American civil liberties have been accurate. Of course, they would be accurate despite Clapper, not because of him. If the general NSA attitude was more aligned with his views on the rights v. security debate, Clapper's statements would have been identical. They just would have been less factual. Permalink | Comments | Email This Story

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Get the 'Code Black' HD-Camera Drone for $69.99 and take to the skies to capture film or stills of your flights. This palm-sized drone has beginner and expert modes, can do flips and utilizes 6-axis gyro technology for a speedy, stable flight and a smooth landing. With a flight time of about 10 minutes and an ultra-smooth ride, it’s a great introductory drone for anyone looking to dominate the sky. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Things just got a little more weird in the case of the 13 year old British girl who had some art she created taken down from Redbubble's site because the artwork included the phrase "winter is coming." The girl's father responded to the takedown, questioning why HBO, owners of the trademark rights to the phrase in conjunction with the Game of Thrones franchise, would do this to an autistic teenager that wasn't even selling the art, only sharing it. As noted in our original post, the letter Redbubble sent the girl is a mess, lacking any firm reference to trademark or copyright and replacing it only with "IP/Publicity Rights." In addition, the whole letter is written like a forwarded DMCA notice, including offering the ability to counternotice through Redbubble's DMCA counternotice email address... but this would be a trademark issue, to which the DMCA doesn't apply. Lots of people, including the girl's father, assumed this takedown had been carried out at the request of HBO. It looks like that wasn't the case. What the girl's father missed -- along with many of those reporting on the issue, including myself -- is that Redbubble's letter states that they did this because of HBO's history of issuing DMCA notices, not because it had actually done so in this case. "We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy," it said. So this wasn't "notice and takedown", it was "notice and staydown", where Redbubble policed HBO intellectual property on its site based on previous complaints. That's not required by law, of course, but it certainly is what many in Hollywood want to see as the standard. And this is a perfect case for why it's a terrible, terrible idea. Legitimate, non-infringing uses get caught up in the blanket takedowns issued by service providers that don't really have a clue as to what they're doing. And in light of what actually happened, Redbubble's letter, and the way it appears to be disguised as a DMCA notice, is at best horrifically sloppy and at worst an attempt to shift the blame for its voluntary and proactive takedown of a teenage girl's artwork. For it's part, HBO doesn't seem to be happy about this. "We love when fans are creative in their support of our programmes," the network said in a statement (via Entertainment Weekly). "These works live online in many incarnations, and in the past we have celebrated them by drawing attention to them. "Many for-profit websites that sell products, such as Redbubble, take steps to avoid infringements as part of their standard operating procedure. To suggest a particular individual was targeted, or that HBO threatened legal action against her, is simply untrue." Now, HBO's history of how it treats fans of Game of Thrones isn't universally positive, and it's worth noting again that the stated reason Redbubble did all of this is because of the network's heavy-handed history when it comes to matters just like this...but I have to think HBO is also pissed off at the way Redbubble's communication with the girl's father allowed him -- and the media -- to conclude this was all HBO's fault for issuing a DMCA takedown. Regardless, good to know that Redbubble wants to be in the business of proactively policing its site in such a way that it results in the non-infringing artwork of a teenager gets taken down. The site is a notice and staydown site, on the record. Permalink | Comments | Email This Story

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While the Oracle/Google case tends to get most of the attention when people talk about the copyrighting of interfaces, there was another big "interfaces on trial" case that just completed between Cisco and Arista Networks. Cisco insisted that Arista was infringing on its Command Line Interface (CLI) by using some of the same commands that Cisco equipment used. Arista responded by pointing out that a command line interface is hardly unique, and Cisco itself had been pushing the command line interface as an industry standard, and also that this whole lawsuit was just silly (they didn't quite put it in those terms, but...). Like the Oracle/Google case, this one had a patent issue attached at the hip, which got tossed off early on. That matters, because it means that the inevitable appeal will go up through CAFC, the appeals court that specializes in mucking up patent law. CAFC infamously took its "mucking up patent" skills to copyright law a few years back, in the Oracle/Google case when it decided that APIs were copyright-eligible subject matter, upending years of common wisdom, legal precedent and the clear text of the Copyright Act about interfaces. Of course, in the Oracle/Google case, after CAFC's disastrous decision, Google still came out ahead (so far) when a jury decided that its copying of the APIs was "fair use." In the Cisco/Arista case that just concluded, the jury went in a slightly different direction. It rejected the fair use argument, but still said the work wasn't infringing, because of the scènes à faire doctrine, which is one of those few copyright legal doctrines experts will throw in (along with "de minimis" when reminding people that fair use is not the only exception to copyright). The basis of scènes à faire is that it's something within the work where there are only a very small number of ways to do something, and thus, it's quite likely that multiple parties will do the same thing, meaning that any copyright will be greatly limited. Scènes à faire is French for "scenes that must be done." In other words, the jury more or less said that using the command line interface was so basic to the operation of this kind of equipment, that it would be ridiculous to expect each vendor to come up with something different. Unfortunately, the jury didn't see the use as fair use, which Cisco has already jumped on as a sort of moral victory, but one that may come up later, if Cisco can successfully overturn the ruling on scènes à faire. Of course, if this case weren't forced to go through CAFC on appeal, it would have been nice to have been able to challenge the question of whether or not there's any copyright on Cisco's CLI at all, but thanks to CAFC's failure to comprehend that an interface is different than software, this is where we are. I fully expect that CAFC will somehow muck up this case too on appeal, but hope to be pleasantly surprised.Permalink | Comments | Email This Story

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Back when AT&T, Verizon and Comcast were fighting tooth and nail against the FCC's net neutrality rules, you'll recall that most of them made all manner of breathless, hyperbolic claims about how net neutrality would demolish sector investment, rip the planet off its axis, and disrupt the time-space continuum. For example in 2014 Comcast was quick to try and claim that the passage of such consumer protections would hurt jobs, stifle investment, and otherwise forge a calamitous, unlivable hellscape:"The sheer uncertainty surrounding such a regulatory environment would produce ‘a profoundly negative impact on capital investment.’ By itself, reduced investment would inhibit job creation, hinder the deployment of broadband infrastructure, and undermine the ‘virtuous circle’ of innovation that the open Internet rules are designed to advance."Of course, none of that actually happened. And while the industry did try to pay some industry-allied think tankers to fudge the numbers and make it look as if an investment apocalypse occurred, the actual numbers never actually supported that. While not always the case in less competitive areas, overall sector investment has been as healthy as ever, especially as wireless providers fixate on deploying fifth generation (5G) wireless services. Speaking at an investor conference last week, Comcast CFO Mike Cavanaugh basically acknowledged that the company overstated the perils of the country's relatively basic net neutrality protections (and the reclassification of ISPs as common carriers under Title II), admitting the impact of net neutrality on Comcast's actual business one way or the other was negligible:"If you saw Title II go away or the reclassification undone,” the analyst asked, “would that be a meaningful change or meaningful benefit for Comcast?" Cavanaugh’s answer? Basically, it doesn’t matter. “I think in terms of what actually happens,” Cavanaugh said, “it’s the fear of what Title II could have meant, more than what it actually did mean.”Except the "fear of what Title II could have meant" was driven largely by baseless hysteria concocted by Comcast itself. And immediately after effectively admitting that there's nothing to fear but fear itself, Cavanaugh tried to suggest that the faintest specter of a telecom regulator actually doing its job had a "chilling effect" all the same (citation needed). He also tried to claim that Comcast really, truly loves net neutrality despite making up complete bullshit repeatedly in an attempt to scuttle it:"As you know, we very much believe in the principles behind what [the] policy was trying to get at,” he continued, “but the overhang of where it could go in the future was something that I think had a chilling effect. Hopefully that chilling effect is gone; both from how investors look at the space and businesses look at the space."Cavanaugh's enthusiasm about the lifting of this nonexistent "chilling effect" is obvious: the incoming Trump administration is making it abundantly clear it intends to not only gut net neutrality, but defund and defang the FCC itself. Comcast's actually facing less broadband competition than ever before as telcos give up on residential broadband to focus on content and advertising. Combine that with the looming, actual "chilling effect" of a rubber stamp toothless regulator in charge of a broken market, and it's clear that consumers, startups and innovators have plenty to worry about, even if Comcast doesn't.Permalink | Comments | Email This Story

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