posted 25 days ago on techdirt
We've written a few times in the past about the movie and TV industries irrationally freaking out over fans in other countries providing subtitles for works that aren't being released locally in that language. These are always labor-of-love efforts by fans who want to share the work more widely by providing the subtitles that the studios themselves refuse to offer. And yet, because of standard copyright maximalism, these efforts almost always end up leading to legal action. The latest such example involves Fox, Warner Bros and four other Hollywood studios pressing criminal charges against 15 internet users in South Korea for daring to do the most horrible thing in the world: making their soap operas watchable in Korea by adding subtitles. And, of course, thanks to US pressure creating a ridiculous "free trade" agreement with Korea that includes ridiculously draconian copyright requirements, the punishment here can be extreme: People who make subtitles without permission from the original authors or producers can be given a five-year jail term or fined up to 50 million won [about $50,000 US] The police involved in this case, go on and on about the "harm" these fan subtitles are creating. They claim, without any evidence or numbers, that there was a massive decline in some cable broadcast revenue based on this and, also, that those poor professional Korean translators are being put out of work. The [anonymous police] officer went on to say that a cable broadcast, which has aired U.S. dramas, held an emergency meeting recently after experiencing income loss following dwindling viewer ratings because of the massive spread of subtitled dramas on the Internet. “Professional translators were also hit hard by the subtitle makers. I understand that the U.S. television drama producers took legal action against them to issue a warning to end such an illegal practice rather than making money through an out-of-court settlement fee,” he said. This is positively insane. This is not what copyright is supposed to be about, and the fact that it's being considered a criminal action to add subtitles to US soap operas is simply ridiculous. While the potential fine is a lot lower than statutory rates in the US, just the fact that this is considered a "criminal" matter at all, rather than a failure by these Hollywood studios to adequately serve their market, really says an awful lot (and none of it good) about how distorted the debate over copyright has become.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
The ODNI's first transparency report put a lot of not very reassuring numbers on display, misusing the word "target" to give the impression that Section 702's ~90,000 targets were actually limited to 90,000 people, rather than, say, several thousand collection points gathering data and communications from several additional unspecified targets. The ODNI also claimed it couldn't offer specifics on the number of people targeted by the 19,000+ NSLs issued last year, even while pointing to letters sent to Intelligence Committees and members of the administration that attempted to do exactly that. A caveat was appended to the 2013 letters, noting that the FBI's NSL target estimates were probably inflated due to the NSL's limitations and targeting specifications. But there are further statistical "anomalies" hidden within the transparency report. The section detailing the business records program (aka, Section 501 [formerly Section 215]) listed a small number of targets as well, something entirely at odds with the NSA/FBI's demands for every phone record from certain providers. While there are only a certain number of RAS (reasonable articulable suspicion) approved selectors that can be used by the NSA to search the bulk records, there's apparently a workaround that allows analysts to access many more records within the database. Marcy Wheeler of emptywheel spotted some wording in the two most recent FISA court orders (released late Friday afternoon) that confirms the agency is using numbers one hop out from the RAS-approved numbers as additional selectors, triggering even more contact chaining. In that same motion it implemented the change in standard dragnet language that has been retained in these more recent dragnet orders: the NSA is chaining on “connections” as well as actual calls. 14 The first “hop” from a seed returns results including all identifiers (and their associated metadata) with a contact and/or connection with the seed. The second “hop” returns results that include all identifiers (and their associated metadata) with a contact and/or connection with an identifier revealed by the first “hop. If it's any consolation, this new chains-upon-chains method apparently can't be performed automatically, most likely due to these automated searches not complying with FISA court limitations (rather than a lack of computing ability). The most recent bulk records orders note that these searches will now always be performed manually. Queries of the BR metadata using RAS-approved selection terms for purposes of obtaining foreign intelligence information may occur by manual analyst query only. As Wheeler notes, this wording may also indicate the agency's anticipation of bulk records being maintained and held by service providers, thus further limiting its splashing around in the collected metadata. But it does indicate that the recently-imposed "hop" limitation is nearly useless. Rather than simply searching one hop out from the RAS selector, the agency is having its analysts build contract chains starting from that hop and moving outward. This puts the agency right back where it was prior to the minimal restrictions placed on it by the administration's reform measures. It's not a strictly legal move, no matter if it's automated or not. Feinstein's fake reform measures would have codified this quasi-legal procedure, as Wheeler points out. Denials offered by NSA officials may have had a slight ring of truth, especially if the automated system wasn't capable of meeting FISC stipulations, but it appears to be all systems go at this point. Whether Administration witnesses were being deliberately deceitful when testifying about call-based chaining (“not wittingly!”) or the NSA only recently resumed doing connection based chaining manually, having given up on doing it automatically, one thing is clear. The NSA has been doing connection based chaining since at least February, and very few people in Congress know what that means. Nevertheless, they’re about to authorize that formally. What the NSA buries in half-truths, carefully-worded denials and artful retractions always has the chance to become legally sanctioned by efforts like Feinstein's, which seek to codify the NSA's programs and instantly whitewash any past brushes with illegality. The NSA plays to edges of the letter of the law and disregards the spirit. Even its past excesses and deliberate misuse of its powers have failed to keep it down for long. At worst, it's back to its 2008 form, dealing with the same sort of limitations FISC Judge Walton imposed on it after uncovering years of abuse. But it has more contacts to chain than it did previously, thanks to its manual search method, even with reform efforts taking away one of its hops.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Back in February, we reported that PhRMA, the Pharmaceutical Research and Manufacturers of America, was pushing to have the EU put on the US's 'Priority Watch List' for its plans to disclose basic safety information about drugs. Now a letter from PhRMA obtained by the German newsapaper Der Tagesspiegel shows that US pharmaceutical companies are trying to use TAFTA/TTIP to undermine the new EU rules on making clinical trial data available (original in German): A letter from the U.S. pharmaceutical association (PhRMA) to the TTIP chief negotiator for the United States, Douglas Bell, states: "The disclosure of confidential data from clinical and pre-clinical study files and patient data puts at risk the health system and the well-being of patients." Why more transparency should harm the health systems, the lobby group doesn't explain, but it makes clear to the negotiator how he should conduct the negotiations with the EU: the publication of commercially-sensitive data from a market authorization, the PhRMA letter said threateningly, is not only contrary to the rules of the American FDA, but also to the internationally-accepted intellectual property rights of the World Trade Organization, the so-called TRIPS Agreement. "PhRMA and its members call on the U.S. government to influence the EU at all levels in order to eliminate this problem." It's hard to see how the problem can be "eliminated." Back in April, the European Parliament adopted the Clinical Trials Regulation by a huge majority. Effective from 2016, it states that information from clinical study files "should not generally be considered commercially confidential" and must be made publicly available -- exactly what PhRMA is lobbying against. What's worrying is that there's already been one attempt to water down these requirements. Der Tagesspiegel suggests this may have been as a result of pressure from the European Commission, concerned about US reaction to them. It will be interesting to see how the Commission reconciles any US demands during the TAFTA/TTIP negotiations to remove the requirement to publish drug safety information with the new EU regulation that requires it. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
You can't tell the players without a program and, apparently, you can't get your public documents without a lawsuit. Freedom of Information laws -- both at federal and state level -- were supposed to make the government more accountable to its citizens. In practice, this has often taken the form of withholding requested information until ordered otherwise by a judge. Not exactly transparent and not exactly a brand new level of accountability. It bears more resemblance to a three-year-old being forced to relinquish whatever's currently being clenched in a tightly-closed fist. The three-year-old in this case is the Missouri Dept. of Corrections. And not only did it have a tight grip on some documents, it also wanted to make up the rules as it went along. While plaintiff Allaedin Qandah was being held at one of its facilities, his copy of the Quran was damaged during a cell search, something he alleges was done intentionally. The ACLU, representing Qandah, requested documents pertaining to "copies of any and all records relating to [Qandah's] IRR # NECC 11321 - property damage." The Missouri DOC found 14 responsive documents but refused to surrender any of them. On May 17, 2012, Heather McCreery, Legal COunsel for DOC, replied in writing to Hill denying the request for the records. In her letter she cited Federal Regulation 28 CPR. 40.10 as grounds for denial pursuant to Section 610.021(14). So, the ACLU sued for the release of the documents. The DOC filed response to the lawsuit suddenly added even more exemptions, none of which had been contained in its original denials. DOC modified its position in its First Amended Answer to claim three additional reasons for closing the records besides the one claimed in McCreery's letters. DOC now claims "[t]he requested records are exempt from disclosure under 610.021(14) and 217.075.1(3) RSMo" and as "internal administrative report[s] or document[s] relating to institutional security." DOC also asserts that "[t]he Requested Records are Exempt from Disclosure under 610.021(13)" as "[i]ndividually identifiable personnel records, performance ratings, or records pertaining to employees or applicants for employment." Finally, DOC states that "[t]he requested records are exempt from disclosure under 610.021(10)" because they "relate [l]egal actions, cause of action or litigation involving a public governmental body and any confidential or privileged communication between a public governmental body or its representatives and its attorneys." The Court wasn't too impressed with the DOC's last-minute goalpost shifting and called it out for its actions, pointing out that allowing this sort of behavior would subvert the intentions of "sunlight" laws and further discourage citizens from requesting public records. The legislature has mandated that if a custodian denies access to public records, the custodian must, upon request, specify the legal basis for the denial. Permitting Defendant to assert additional reasons for denial after litigation commences, as it attempts here, renders superfluous the statutory requirement of notice of the reasons for denial... It would also discourage citizens from retaining attorneys (or litigating pro se) to challenge the exemptions claimed by a government entity that withholds documents, if, after a lawsuit is filed, the government could cite additional exemptions. This is also contrary to public policy. The DOC also tried to claim that regulations might permit it an exemption under federal Sunshine Law statutes (rather than Missouri's statutes) but the judge quickly dismantled this argument as well, pointing out that the quoted federal statute had been repealed and is no longer "a valid authority on which the DOC can rely to close the requested records." All in all, a pretty satisfying takedown of disingenuous acts by a government entity. According to Courthouse News, the DOC is also paying all of the ACLU's legal fees. The average citizen does not have the resources to challenge Sunshine Law denials, and it was unfair to allow the government to pile on exemptions after a lawsuit is filed," Tony Rothert, Legal Director of the ACLU of Missouri, said in a statement. "The judge's ruling helps level the playing field for the vast majority of citizens who do not have the resources to hit a moving target. The government spends a lot of time and money keeping records out of the public's hands, doing as little as it can to stay within the letter of the law and avoiding the spirit of the law entirely whenever possible. Unfortunately, successful Freedom of Information requests are more and more frequently being routed through various courthouses before responsive documents are obtained. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Big data is a term that's been getting some buzz as the next thing that's going to change everyone's lives (for better or worse, depending on how you look at it). Having a lot of data doesn't necessarily mean you also have a lot of useful knowledge. Garbage in, garbage out, so they say. And making correlations is easy compared to finding a direct causal relationship. However, that hasn't stopped (so-called) journalists from writing misleading headlines. If you hate correlations being mistaken for causation, submit examples you've seen in the comments below. Here are just a few to start off. Likes for curly fries on Facebook might correlate with high IQ scores, but don't click that like button just yet. Maybe there are more social experiments being performed on Facebook users than can be accurately counted. [url] Former high school athletes seem to get higher paying jobs (at least for the self-reporting men in this study). A lot of skills correlate with various forms of success. Perhaps enjoying the things you do (learned skill or not) is a reward unto itself. [url] Measuring the size of brain features can correlate with all kinds of activities, and people have been trying to measure brain sizes for a long time... because there are instruments that can measure the size of various brain parts. The interpretation of these measurements can lead to a lot of faulty conclusions. However, you won't often see the headline: "Watching moderate amounts of porn won’t hurt your brain." [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
It's amazing what fun we can have when we really get a culture of permission going. Trademark law, ostensibly built around the idea of consumer protection when it comes to branding, has since devolved into a platform where certain entities think they can essentially own certain common words and phrases, such as "emergency essentials", or "footlong", or "monster." However, once you've opened the door to that kind of relatively minor insanity, it lets the really crazy monsters through. Let's take, for instance, the word "how." You can't own "how", right? Well, according to the lawsuit of Dov Seidman, who portends to be something called a "corporate virtue advisor", you damn well can. In papers filed in Manhattan federal court, Dov Seidman, author of "HOW: Why HOW We Do Anything Means Everything," says how Chobani is using "how" in its current marketing campaign is a blatant rip-off. Seidman and his company, LRN, "whose business is based on promoting ethical corporate behavior, own federal trademark registrations for word and mark HOW," the suit says. Let's just drive this point home, shall we? A purveyor of business ethics is suing Chobani, a company that makes Greek yogurt, because they used the word "how" in a marketing campaign. Just let that sink in for a moment. The fight is over a single word, not some multi-word phrase. Hell, it's over a single syllable. And customer confusion is difficult to imagine, given that one side of the fight is a guy that talks to companies about who-knows-what and the other, you know, makes yogurt. So, how is this suit even possible? Well, it apparently falls upon a time when Chobani tweeted at Seidman to flatter and admire him. The company has since claimed the campaign is purely coincidental, but Seidman noted that he got a Twitter message from Chobani on January 29 saying, "Thanks for inspiring the world to care about 'how.' Can you help inspire the food industry, too?" The "very next day," the suit says, the company "launched Chobani's new branding platform - which employs 'HOW' in precisely the same manner as plaintiffs employ their HOW marks: as a noun connoting responsible and ethical corporate behaviors." Here's the tweet: @DovSeidman Thanks for inspiring the world to care about "how." Can you help inspire the food industry, too? http://t.co/erVULG89Hp — Chobani (@Chobani) January 29, 2014 And? So the hell what? Inspiration in the form of a single word does not a trademark violation make, because that would essentially lock up the courts for years as everyone fought roughly everyone. There's a reason trademarks, especially those on short phrases or common words, aren't all-encompassing throughout all of commercial use. That would break language completely. Chobani is on record stating that this whole thing is exceptionally silly. One would hope a court will throw this out the moment it hits a bench. And how! Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Another day, another lawsuit filed by the EFF against the NSA. As you may recall, back in April there was some discussion about how the NSA deals with zero day exploits it discovers, and (specifically) whether or not it reveals them to relevant parties or keeps them for its own ability to exploit them. The NY Times revealed that President Obama had put in place an official rule that said the NSA should have a "bias" towards revealing the flaws, but left open a gaping loophole in saying the NSA could exploit those zero days for "a clear national security or law enforcement need." That's a pretty big loophole -- especially when you consider how law enforcement has been abusing every opportunity of late. EFF filed a FOIA request to find out about the NSA's process for determining whether to exploit or reveal a zero day... and hasn't received a response, despite a promise by the government to "expedite" the request. Hence: the new lawsuit. "This FOIA suit seeks transparency on one of the least understood elements of the U.S. intelligence community's toolset: security vulnerabilities," EFF Legal Fellow Andrew Crocker said. "These documents are important to the kind of informed debate that the public and the administration agree needs to happen in our country." Over the last year, U.S. intelligence-gathering techniques have come under great public scrutiny. One controversial element has been how agencies such as the NSA have undermined encryption protocols and used zero days. While an intelligence agency may use a zero day it has discovered or purchased to infiltrate targeted computers or devices, disclosing its existence may result in a patch that will help defend the public against other online adversaries, including identity thieves and foreign governments that may also be aware of the zero day. "Since these vulnerabilities potentially affect the security of users all over the world, the public has a strong interest in knowing how these agencies are weighing the risks and benefits of using zero days instead of disclosing them to vendors," Global Policy Analyst Eva Galperin said. These days, it really does seem that the only way to get the government to cough up these kinds of documents is to file a lawsuit, which really defeats the purpose of the whole FOIA process. Perhaps the government should just admit it's a charade and let people go straight to the lawsuit filing process instead.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
A group of seven smaller international ISPs, many of which tend to be used by activists, are now suing GCHQ via the Investigatory Powers Tribunal, for hacking into their networks. The focus of the lawsuit is on the GCHQ's now infamous hacking of Belgian telco Belgacom, via a quantum insert, to get access to a variety of communications. While those revelations don't name any of the service providers filing suit, they note that "the type of surveillance being carried out allows them to challenge the practices in the IPT because they and their users are at threat of being targeted." The seven service providers are: Riseup (US), GreenNet (UK), Greenhost (Netherlands), Mango (Zimbabwe), Jinbonet (Korea), May First/People Link (US), and the Chaos Computer Club (Germany), along with Privacy International There may be a big question as to whether or not any of those organizations really have standing if there's no evidence they were actually targeted by GCHQ, but I don't know enough about how the Investigatory Powers Tribunal works when it comes to the question of who has standing to judge at the outset. Either way, the service providers note that GCHQ's activities violate the European convention on human rights: First, in the course of such an attack, network assets and computers belonging to the internet and communications service provider are altered without the provider’s consent. That is in itself unlawful under the Computer Misuse Act 1990 in the absence of some supervening authorisation. Depending on the nature and extent of the alterations, the attacks may also cause damage amounting to an unlawful interference with the internet and communications service provider’s property contrary to Article 1 of the First Protocol (“A1P1”) to the European Convention on Human Rights (“ECHR”). Second, the surveillance of the internet and communications service provider’s employees is an obvious interference with the rights of those employees under Articles 8 and 10 ECHR, and by extension the provider’s own Article 10 rights. As Der Spiegel reported in relation to a separate attack on Mach, a data clearing company, a computer expert working for the company was heavily targeted: “A complex graph of his digital life depicts the man’s name in red crosshairs and lists his work computers and those he uses privately (‘suspected tablet PC’). His Skype username is listed, as are his Gmail account and his profile on a social networking site. […] In short, GCHQ knew everything about the man’s digital life.” It is not simply a question of GCHQ confining its interest to employees’ professional lives. They are interested in knowing everything about the staff and administrators of computer networks, so as to be better able to exploit the networks they are charged to protect. Third, the exploitation of network infrastructure enables GCHQ to conduct mass and intrusive surveillance on the customers and users of the internet and communications service providers’ services in contravention of Articles 8 and 10 ECHR. Network exploitation of internet infrastructure enables GCHQ to undertake a range of highly invasive mass surveillance activities, including the application of packet capture (mass scanning of internet communications); the weakening of encryption capabilities; the observation and redirection of internet browsing activities; the censoring or modification of communications en route; and the creation of avenues for targeted infection of users’ devices. Not only does each of these actions involve serious interferences with Article 8 ECHR rights, by creating vulnerabilities and mistrust in internet infrastructure they also chill free expression in contravention of Article 10 ECHR. Fourth, the use by GCHQ of internet and communications service providers’ infrastructure to spy on the providers’ users on such an enormous scale strikes at the heart of the relationship between those users and the provider itself. The fact that the internet and communications service providers are essentially deputised by GCHQ to engage in heavily intrusive surveillance of their own customers threatens to damage or destroy the goodwill in that relationship, itself an interference with the provider’s rights under A1P1. Certainly a case worth watching if it can get past the standing issue.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
It's 2014 and do we really need to be reminded that, when you seek to censor something by demanding that it be removed from view, it's really only going to generate that much more attention to the original? I believe there's even a term for that sort of thing. As you may have heard, thanks to a ridiculous ruling in the EU Court of Justice, Google is being forced to start removing links to content, based on submissions by people who wish their past embarrassments would just disappear down the memory hole. The company received tens of thousands of requests for removals based on the new ruling, and last week began removing such links from its index, following a review by the new team the company had to put together to review these requests. It appears that, as part of its transparency efforts, Google is also telling the websites who are being delinked that they are being delinked over this, because both the BBC and the Guardian have stories up today about how they've had stories removed from Google thanks to the "right to be forgotten" efforts. And, guess what? Both articles dig into what original articles have been removed, making it fairly easy to determine just who was so embarrassed and is now seeking to have that embarrassing past deleted. And, of course, by asking for the content to be removed, these brilliant individuals with embarrassing histories have made both the removal attempt and the original story newsworthy all over again. First up, is the BBC, which received a notice about one of its articles being removed from search. That article is all about Merrill Lynch chairman Stan O'Neal losing his job. In fact, the only person named in the article is... Stan O'Neal. Take a wild guess what thin-skinned former top executive to a major US financial firm must have issued a "please forget me" request to Google? The BBC's Robert Preston -- author of both articles -- questions why this should be forgotten: My column describes how O'Neal was forced out of Merrill after the investment bank suffered colossal losses on reckless investments it had made. Is the data in it "inadequate, irrelevant or no longer relevant"? Hmmm. Most people would argue that it is highly relevant for the track record, good or bad, of a business leader to remain on the public record - especially someone widely seen as having played an important role in the worst financial crisis in living memory (Merrill went to the brink of collapse the following year, and was rescued by Bank of America). In other words, welcome to the new world in Europe, where all sorts of important, truthful and relevant information gets deleted. Over at the Guardian, they've found out that six articles from their website have been memory-holed by Google. And again, it quickly becomes clear who's involved: Three of the articles, dating from 2010, relate to a now-retired Scottish Premier League referee, Dougie McDonald, who was found to have lied about his reasons for granting a penalty in a Celtic v Dundee United match, the backlash to which prompted his resignation. The Guardian does searches for McDonald on both the US and UK versions of Google and finds that McDonald's lie is wiped from history over in the UK, while we Americans can still find it, no problem. The other disappeared articles �“ the Guardian isn't given any reason for the deletions �“ are a 2011 piece on French office workers making post-it art, a 2002 piece about a solicitor facing a fraud trial standing for a seat on the Law Society's ruling body and an index of an entire week of pieces by Guardian media commentator Roy Greenslade. It's pretty likely that Paul Baxendale-Walker is the person complaining about that second article, since he's the main subject of that article. The other two... are not clear at all. The Post-It wars story names three individuals: Julien Berissi, Stephane Heude and Emilie Cozette. But none of them are portrayed in any way that would seem negative. It just shows them having some fun by making giant post-it artwork. And the other one is just weird because it's not an actual story, but an index page showing a week of story headlines and opening blurbs -- but apparently whichever article in the list caused the request wasn't directly included itself -- suggesting whoever sent in the request did a pretty bad job of figuring out what to censor. Either way, both the Guardian and the BBC point out how ridiculous this is. Preston, at the BBC, says this is "confirming the fears of many in the industry" that this will be used "to curb freedom of expression and to suppress legitimate journalism that is in the public interest." Meanwhile, James Ball at the Guardian, notes how troubling this is, and starts to think of ways to deal with it, including highlighting every "deleted" article: But this isn't enough. The Guardian, like the rest of the media, regularly writes about things people have done which might not be illegal but raise serious political, moral or ethical questions �“ tax avoidance, for example. These should not be allowed to disappear: to do so is a huge, if indirect, challenge to press freedom. The ruling has created a stopwatch on free expression �“ our journalism can be found only until someone asks for it to be hidden. Publishers can and should do more to fight back. One route may be legal action. Others may be looking for search tools and engines outside the EU. Quicker than that is a direct innovation: how about any time a news outlet gets a notification, it tweets a link to the article that's just been disappeared. Would you follow @GdnVanished? Preston has asked Google how the BBC can appeal, while Ball says the Guardian doesn't believe there's any official appeals process. Either way, it's safe to say that (1) this process is a mess and leading to the censorship of legitimate content and (2) people like Stan O'Neal and Dougie McDonald who thought that they could hide their embarrassing pasts under this ruling may not end up being very happy in the long term.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
As Mike recently covered, SoundCloud's infringement takedown system has more than a few issues. The EFF's Parker Higgins had uploaded a recording of the Apollo 13 astronauts, something clearly in the public domain, but SoundCloud took it down and the "remedies" available to Higgins all assumed the removed content was covered by someone's copyright. And, like many takedown notices, there was no indication who had requested the removal, or if it was simply SoundCloud's automated infringement bot making bad assumptions. Now, there's more bad news for users of SoundCloud's service. Apparently, Universal Music Group has the power to directly pull tracks without issuing a takedown request to SoundCloud. This has resulted in a paying customer of SoundCloud having his account deleted for copyright violations with the only recourse available being to contact Universal directly to dispute the takedown. The user, Mr Brainz, pointed out to SoundCloud that he sees some inconsistencies in its copyright enforcement. His account is being targeted but other mixes from other users are being left alone, despite their inclusion of copyrighted tracks. [click through for a larger versions of these screenshots] SoundCloud's response to his complaints was basically, "It's out of our hands." Your uploads were removed directly by Universal. This means that SoundCloud had no control over it, and they don't tell us which part of your upload was infringing. If you look at your tracklist it may help you find the Universal content they wanted blocked. The control of removing content is completely with Universal. This means I can't tell you why they removed your uploads and not others, and you would really need to ask them that question. I don't know what method they use to find infringing material unfortunately. Their anti-piracy team are based in the US. SoundCloud now has a YouTube problem. In an agreement reached in 2011, YouTube gave UMG the same sort of direct access, which has resulted in abusive, bogus takedowns by the label. This looks like more of the same. While SoundCloud is certainly under a lot of pressure to police uploads for infringing content, handing direct control over to an entity that once declared SoundCloud to be a "pirate site" was never going to work out well. Now that Mr Brainz's problems have gone public, SoundCloud has issued a statement in response… and it doesn't add anything to the discussion. As a responsible hosting platform, we work hard to ensure that everyone's rights are respected. In the case of rights holders, that means having processes in place to ensure that any content posted without authorisation is removed quickly and efficiently. In the case of users, that means having separate processes in place to ensure that any content removed in error can be reinstated equally quickly. If any user believes that content has been removed in error - for example, because they had the necessary permissions from Universal Music and/or any other rights holder - then they are free to dispute the takedown. Translated from PR speak, the statement basically says that the end user is out of luck, especially in the case of Universal's direct takedowns. Does anyone seriously believe Universal will look into challenged takedowns? There's nothing in this unfortunate partnership that indicates Universal can be held accountable for bogus takedowns. Beyond that, there's nothing in the long history of the DMCA that indicates any rights holder will be held responsible for bogus takedowns, much less be willing to engage in a useful discussion about fair use or other edge cases. If Universal orders a takedown, the content is gone and the user's account is one step closer to being shut down. End of story. In Universal's case, there's no consideration given ever for fair use. Other takedowns, some of them the result of a misfiring algorithm, can still be disputed, but the process SoundCloud has provided doesn't factor in fair use, public domain or other instances that aren't clearly cases of infringement. And if you get enough bogus takedowns, your account -- even your paid Pro account -- is dead and SoundCloud won't be handing out refunds. When a service becomes popular enough that infringement detection needs to be automated, problems are necessarily going to arise. Bots aren't perfect, but that's the reality of the situation if you're going to retain your safe harbors. But giving rights holders the ability to directly pull the plug on content is a bad idea and providing no real avenue for dispute only makes it worse. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
The disturbing trend of the federal government seizing domain names without regard to the First Amendment continues. The FBI, along with the IRS, apparently seized a number of websites associated with MyRedbook.com, and arrested the operator of the site. The FBI notes that the site, which was a social network and resource for sex workers, included advertising that "facilitated prostitution." It also accused the site of money laundering. However, as the EFF is noting beyond the question of whether or not the FBI should even be in the business of targeting sex workers, there are serious First Amendment questions around such a seizure of a website: MyRedBook and its companion sites served a large and diverse community of sex workers. The sites functioned as social media platforms, with discussion boards for users in topics from politics to financial tips. It also served as a resource guide with information ranging from explanations of the law as it pertains to sex work to health information. For archived versions of the forums sex workers no longer have access to, click here. These sites were essential tools for First Amendment protected speech and association�”especially important for a community that values its privacy for a variety of legitimate reasons. This platform has been pulled out from under the feet of this community. As we've discussed many times in the past with regards to the government's seizure of websites, these appear to be classic cases of prior restraint -- the effective equivalent of the government rushing in and smashing the printing presses for a publication. In Ft. Wayne Books. v. Indiana, the Supreme Court is quite clear that the government can't just go in and seize protected speech based on related illegal activity, especially without first holding an adversarial hearing to explore the First Amendment implications. The court noted: ...our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation. The court is quite clear that the only purpose for which seizure is appropriate in such circumstances is to procure a single copy for the sake of evidence, but not to remove protected speech entirely from circulation. While that case was about RICO claims of racketeering, and this case is about money laundering and prostitution, the same principles should and do apply: At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, ... that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.... Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed. I can't see any legitimate way that the DOJ/FBI can defend this seizure under such a standard. It clearly took down significant aspects of protected speech based merely on the assertion of related criminal activity, without any sort of adversarial hearing. The First Amendment, and the specific statements of the Supreme Court in this case, clearly forbid such actions.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Three years ago we wrote about how Austrian police had seized computers from someone running a Tor exit node. This kind of thing happens from time to time, but it appears that folks in Austria have taken it up a notch by... effectively now making it illegal to run a Tor exit node. According to the report, which was confirmed by the accused, the court found that running the node violated §12 of the Austrian penal code, which effectively says: Not only the immediate perpetrator commits a criminal action, but also anyone who appoints someone to carry it out, or anyone who otherwise contributes to the completion of said criminal action. In other words, it's a form of accomplice liability for criminality. It's pretty standard to name criminal accomplices liable for "aiding and abetting" the activities of others, but it's a massive and incredibly dangerous stretch to argue that merely running a Tor exit node makes you an accomplice that "contributes to the completion" of a crime. Under this sort of thinking, Volkswagen would be liable if someone drove a VW as the getaway car in a bank robbery. It's a very, very broad interpretation of accomplice liability, in a situation where it clearly does not make sense. Tragically, this comes out the same day that the EFF is promoting why everyone should use Tor. While it accurately notes that no one in the US has been prosecuted for running Tor, it may want to make a note about Austria. Hopefully there is some way to fight back on this ruling and take it to a higher court -- and hopefully whoever reviews it will be better informed about how Tor works and what it means to run an exit node.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
As expected, the Privacy and Civil Liberties Oversight Board (PCLOB) has now issued its analysis of the Section 702 surveillance done by the NSA (and, as revealed earlier this week, passed on to the FBI and CIA). You may recall that, back in January, the PCLOB issued a scathing report about the NSA's Section 215 bulk data collection efforts, calling the program both illegal and unconstitutional. In contrast, the report on the 702 program is much more muted -- claiming that the program is constitutional, legal and effective as a counterterrorism tool. Like the previous report, this new one is highly readable -- and I recommend reading it in its entirety. However, the legal analysis is disappointing compared to the earlier report. The report details how the program works, in a manner that doesn't really reveal too much new for folks who have been following all of the details over the past year, but does confirm the basics of how the Section 702 collections work -- something that many, many people seem to be confused about. In short, the Section 702 program is made up of two different collections of information. The first is the infamous PRISM program, which is not as broad as many people have believed in the past. This is when, under FISA Court approval, various internet companies are given certain "selectors" related to non-US persons, and those companies are compelled to hand over the communications to or from that person: In PRISM collection, the government sends a selector, such as an email address, to a United States-based electronic communications service provider, such as an Internet service provider (“ISP”), and the provider is compelled to give the communications sent to or from that selector to the government. PRISM collection does not include the acquisition of telephone calls. The National Security Agency (“NSA”) receives all data collected through PRISM. In addition, the Central Intelligence Agency (“CIA”) and the Federal Bureau of Investigation (“FBI”) each receive a select portion of PRISM collection. This is different from the much more troubling "upstream" collection, which comes from directly tapping the internet backbone and basically sifting through everything possible to see if any triggers are hit. This is where the infamous "about" triggers are included. As we've been discussing, the NSA doesn't just collect communications to and from targets, but also "about" them -- and that all happens at the upstream level, rather than PRISM. Upstream is also where the NSA is able to collect audio communications as well. Upstream collection differs from PRISM collection in several respects. First, the acquisition occurs with the compelled assistance of providers that control the telecommunications “backbone” over which telephone and Internet communications transit, rather than with the compelled assistance of ISPs or similar companies. Upstream collection also includes telephone calls in addition to Internet communications. Data from upstream collection is received only by the NSA: neither the CIA nor the FBI has access to unminimized upstream data. Finally, the upstream collection of Internet communications includes two features that are not present in PRISM collection: the acquisition of so-called “about” communications and the acquisition of so-called “multiple communications transactions” (“MCTs”). An “about” communication is one in which the selector of a targeted person (such as that person’s email address) is contained within the communication but the targeted person is not necessarily a participant in the communication. Rather than being “to” or “from” the selector that has been tasked, the communication may contain the selector in the body of the communication, and thus be “about” the selector. An MCT is an Internet “transaction” that contains more than one discrete communication within it. If one of the communications within an MCT is to, from, or “about” a tasked selector, and if one end of the transaction is foreign, the NSA will acquire the entire MCT through upstream collection, including other discrete communications within the MCT that do not contain the selector. While PRISM has been the sexy target for complaints due to its name and connection to easy target tech companies, the upstream sifting through the backbone has always been the much more troubling program, and this report confirms that. Unfortunately, unlike the PCLOB's report on the Section 215 program, here the PCLOB more or less throws up its hands over the possible legal and constitutional issues, insisting that it's probably fine or that violations are "incidental." The EFF has issued a scathing condemnation of the report, noting its most glaring weakness: a failure to recognize that the Constitution requires a warrant to collect any such data in the first place. The PCLOB seems to totally ignore this requirement, as the EFF points out: The board skips over the essential privacy problem with the 702 “upstream” program: that the government has access to or is acquiring nearly all communications that travel over the Internet. The board focuses only on the government’s methods for searching and filtering out unwanted information. This ignores the fact that the government is collecting and searching through the content of millions of emails, social networking posts, and other Internet communications, steps that occur before the PCLOB analysis starts. This content collection is the centerpiece of EFF’s Jewel v. NSA case, a lawsuit battling government spying filed back in 2008. The board’s constitutional analysis is also flawed. The Fourth Amendment requires a warrant for searching the content of communication. Under Section 702, the government searches through content without a warrant. Nevertheless, PLCOB’s analysis incorrectly assumes that no warrant is required. The report simply says that it “takes no position” on an exception to the warrant requirement when the government seeks foreign intelligence. The Supreme Court has never found this exception. PCLOB findings rely heavily on the existence of government procedures. But, as Chief Justice Roberts recently noted: "the Founders did not fight a revolution to gain the right to government agency protocols." Justice Roberts’ thoughts are on point when it comes to NSA spying�”mass collection is a general warrant that cannot be cured by government’s procedures. Frankly, it does seem bizarre that the PCLOB fails to even consider the original collection and whether or not that violates the 4th Amendment. The Constitutional analysis in the report seems to leap over that question almost entirely, focusing just on the question of what the NSA hangs onto later. The brief discussion about the actual collection basically just says "well, this is tricky, because we're not looking at a single instance, but rather an entire program -- some of which may be Constitutional and some of which may be not, so we'll just lump it all together and see if it meets the "reasonable" test." That seems... questionable. If any part of the program is unconstitutional then that's a problem. You don't get to lump it all together and say that, on the whole, it's probably Constitutional because most of the searches and collection would likely be allowed. Even as such, the PCLOB says that the program -- especially the backdoor searches on Americans -- pushes the program "close to the line of constitutional reasonableness" but probably not over it. These features of the Section 702 program, and their cumulative potential effects on the privacy of U.S. persons, push the entire program close to the line of constitutional reasonableness. At the very least, too much expansion in the collection of U.S. persons’ communications or the uses to which those communications are put may push the program over the line. The response if any feature tips the program over the line is not to discard the entire program; instead, it is to address that specific feature. And, indeed, nearly all of the "recommendations" are to "address" minor aspects that the PCLOB finds to be potentially troubling, but without making any significant changes to the way either part of the program functions. For example, concerning those "about" searches, the PCLOB basically says that it would be nice if they were limited, but that the NSA doesn't really have a way to do that, so, oh well, what can you do? With regard to the NSA’s acquisition of “about” communications, the Board concludes that the practice is largely an inevitable byproduct of the government’s efforts to comprehensively acquire communications that are sent to or from its targets. Because of the manner in which the NSA conducts upstream collection, and the limits of its current technology, the NSA cannot completely eliminate “about” communications from its collection without also eliminating a significant portion of the “to/from” communications that it seeks. The Board includes a recommendation to better assess “about” collection and a recommendation to ensure that upstream collection as a whole does not unnecessarily collect domestic communications. Similarly, the PCLOB notes that, despite all of the information the intelligence community was willing to share with it, that did not include details of how many US persons were impacted by the program: The government is presently unable to assess the scope of the incidental collection of U.S. person information under the program. For this reason, the Board recommends several measures that together may provide insight about the extent to which communications involving U.S. persons or people located in the United States are being acquired and utilized. So, in short, on some of the biggest questions in front of the PCLOB, it basically says "well, not much we can do, but would sure be nice if we had more info next time." Blech. Shouldn't those be the point at which the PCLOB says "hey, wait, that's unacceptable and illegal and need to be fixed!" While at first, it did seem that the report was ignoring the privacy rights of non-US persons, it does actually include a fairly thorough section on such privacy rights, and how those rights actually do have some built in protections under the program. While it's a low bar, it's at least moderately reassuring that the program is not, as some assumed, designed to say "non-US persons have no privacy rights whatsoever." The report also notes international law, and President Obama's newly issued rules for protecting the privacy rights of non-US persons, but notes that those rules have not yet fully been implemented and could change the analysis. In the end, the report does provide some valuable clarifications and explanation of what's going on -- but is disappointingly weak in the legal and Constitutional analysis. If you're interested in the specific recommendations of the PCLOB, we've included them below, above the embedded report.Permalink | Comments | Email This Story

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The European Union has its own revolving door, one that allows lobbyists to enter government agencies in order to directly regulate the same industries they so recently stumped for. Maria Martin-Prat went from directing "global legal policy" for IFPI (the international RIAA) to being the EU Commission's point person for copyright issues. In the past, Martin-Prat has gone on record as being against any sort of private copying exception to copyright law, stating that: "private copying has no reason to exist and should be limited further than it is." The private copying exception varies from country to country, but in Martin-Prat's mind, the best case scenario is likely "not at all… anywhere." So, why is Martin-Prat, an admitted hardliner on copyright issues, suddenly discussing the unfairness of certain copyright contracts? Speaking at a Westminster Forum seminar, Maria Martin-Prat, EC Head of the Copyright Unit for the Internal Market Directorate General (DG MARKT), said the Commission should look at whether contracts were fair. She told us that the infinite assignment of rights that authors must agree to in most EU countries to get their work published was what she had in mind. In the digital era, freelance authors and photographers in many members states have been asked to assign their rights to an intermediary in “infinite” deals. Forever contracts are, indeed, the sort of unfair deal that the EU Commission should take a longer look at. Here in the US, the reversion of copyright back to the creators (for pre-1976 recordings) has prompted record labels to argue that everything created was a "work for hire," and thus belongs to the label in perpetuity. (This argument also took the form of a midnight run to Congress to get copyright law amended in the recording industry's favor.) An infinite contract obviously closes that potential loophole for artists to reclaim their work after a reasonable amount of time. Seems like a good start, but Martin-Prat continues, dispelling any notion that serious copyright reform will occur under her guidance. The distribution of “the share of the value in the internet” was worth examining said Martin-Prat - particularly “who gets the profits?” Ah, the old "the Internet owes everyone a living" argument, wherein (probably) Google is blamed for every low number on the copyright industries' balance sheets and asked to kick in to make up for the shortfall. Note that Martin-Prat asks "who gets the profits," rather than asking how to divide the profits, which indicates she already has an answer in mind. Why address problems in any logical fashion when you can just use the weight of the EU Commission to make internet services bend to the will of misguided court decisions and nearly two decades' of useless complaining from the recording industry? Then Martin-Prat steps even further away from copyright moderation and takes a swing at the few remaining rights purchasers of creative works have, citing specifically the UsedSoft decision, which agreed that sold software was a "license" rather than a sale, but despite this distinction, could still be resold. “In both cases the Court was pushing the boundaries of the copyright rules to help the function of the internal market,” she said. “UsedSoft was desperately trying to turn software licensed by a user into a good - so they could enjoy free movement of goods,” she observed. “The Court cut a few corners” in its interpretation, she thought. However, “if we don’t do something at some point the CJEU will keep pushing.” So, it looks as though Martin-Prat will be pushing back on this decision in order to remove something that actually helps sell new software -- the possibility of resale. Whether the copyright industries like it or not, people consider this factor when purchasing new items and if the possibility exists to make something back, it actually encourages a few more sales. There's nothing inherently "unfair" about not being able to profit from every sale, but the industries still think it's just another way they're being screwed -- hence the push to call everything a "license," even if it's a physical good. Martin-Prat offers to take on an inherently unfair contract (the infinite copyright contract) but only because she has a desire to protect other unfair contracts (you can't resell what your purchase). The first will likely end up riddled with loopholes (for all intents and purposes, most recording contracts may as well be "infinite," considering how hard it is for artists to reclaim their copyrights) and the latter will just help the industries further pare down the few copyright law exceptions that currently exist. Permalink | Comments | Email This Story

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Techdirt has commented many times on the unduly secretive nature of the Trans-Pacific Partnership (TPP) talks. Despite earlier claims that everything would definitely be wrapped up last year, things are still dragging on, with the next round of negotiations taking place in Canada. Although it seems hardly possible, the government there apparently wants to make the meeting even less transparent than its predecessors, as this post on the Council of Canadians reports: The only information that has been publicly released is a one-sentence notice posted June 24 on the Department of Foreign Affairs, Trade and Development website stating that "Negotiators, subject matter experts and other officials will meet in Ottawa, Canada, from July 3-12. No ministerial meeting is being scheduled on the margin of the officials meeting in Ottawa." New Zealand law professor Jane Kelsey has attended many of the rounds as a registered stakeholder, and, when that process ended without any explanation, as an observer. She describes Canada's secrecy as "unprecedented.” "There can only be one reason for withholding the details: to shut down the remaining minimal access we have to negotiators, a number of whom are happy to meet with us," Kelsey says. "When governments are so afraid of informed public debate, they clearly do not believe they can sell the merits of what they are negotiating." We can only assume Canada is worried that the public might learn either that the talks are in trouble, or that really bad deals are being cut in a desperate attempt to sew things up. A fascinating article in the Canadian title Maclean's offers some insight into why the Canadian politicians are so keen to keep everything under wraps: "Everyone is indulging in a charade where [the TPP] negotiations are going forward. It’s the biggest game in town, but I’m not convinced TPP will see the light of day," says Lawrence Herman, a Toronto-based trade lawyer formerly with Cassels Brock. The situation is not much more clear with Canada’s agreement-in-principle reached with Europe last October. Officials say CETA is taking longer than anticipated to render into legal text, but observers believe the deal has run into substantive roadblocks. Also perplexing is why Canada has not ratified the foreign investment protection agreement with China, called FIPA, when the two sides signed the treaty almost two years ago. Putting those facts together, and you have an embarrassing inability of the Canadian government to close any of its high-profile trade agreements, which it has set such great store by. Clearly, the last thing it wants is any leak that might make achieving that even harder for TPP. Of course, if such a total lock-down on the talks is necessary to have even a slim hope of concluding them, that suggests support for the agreement among the TPP nations is extremely precarious. If it weren't, TPP could stand a little public scrutiny of the kind that the Canadians are doing their utmost to avoid. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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So you know all that stuff about how T-Mobile has been trying to position itself as the "uncarrier" that actually treats customers right instead of bilking them at every opportunity? Yeah, that would be a lot more convincing if the FCC didn't just come down on the company for bilking millions in bogus charges from people. It appears that T-Mobile was engaged in a form of cramming that signed subscribers up to $9.99/month "subscriptions" to content they'd never asked for: In a complaint filed today, the Federal Trade Commission is charging mobile phone service provider T-Mobile USA, Inc., with making hundreds of millions of dollars by placing charges on mobile phone bills for purported “premium” SMS subscriptions that, in many cases, were bogus charges that were never authorized by its customers. The FTC alleges that T-Mobile received anywhere from 35 to 40 percent of the total amount charged to consumers for subscriptions for content such as flirting tips, horoscope information or celebrity gossip that typically cost $9.99 per month. According to the FTC’s complaint, T-Mobile in some cases continued to bill its customers for these services offered by scammers years after becoming aware of signs that the charges were fraudulent. Not only were the frequent complaints and cancellations of the service a clear sign that T-Mobile should have known these charges were fraudulent, but T-Mobile seemed to go out of its way to disguise the nature of these charges to try to minimize the complaints: The complaint against T-Mobile alleges that the company’s billing practices made it difficult for consumers to detect that they were being charged, much less by whom. When consumers viewed a summary of their T-Mobile bill online, according to the complaint, it did not show consumers that they were being charged by a third party, or that the charge was part of a recurring subscription. The heading under which the charges would be listed, “Premium Services,” could only be seen after clicking on a separate heading called “Use Charges.” Even after clicking, though, consumers still could not see the individual charges. The complaint also alleges that T-Mobile’s full phone bills, which can be longer than 50 pages, made it nearly impossible for consumers to find and understand third-party subscription charges. After looking past a “Summary” section as well as an “Account Service Detail” section, both of which described “Usage Charges” but did not itemize those charges, a consumer might then reach the section labeled “Premium Services,” where the crammed items would be listed. According to the complaint, the information would be listed there in an abbreviated form, such as “8888906150BrnStorm23918,” that did not explain that the charge was for a recurring third-party subscription supposedly authorized by the consumer. In addition, the complaint notes that consumers who use pre-paid calling plans do not receive monthly bills, and as a result the subscription fee was debited from their pre-paid account without their knowledge. Here's the example the FTC provided showing how T-Mobile hid these bogus charges: By the way, nice touch by the FTC to use T-Mobile's trademarked magenta color in making that graphic! And, of course, the story gets worse. Even if people figured out what the hell was going on, and finally got someone on the phone at T-Mobile customer service to sort it out, the company often failed to provide them with full refunds. When consumers were able to determine they were being charged for services they hadn’t ordered, the complaint alleges that T-Mobile in many cases failed to provide consumers with full refunds. Indeed, the FTC charged that T-Mobile refused refunds to some customers, offering only partial refunds of two months’ worth of the charges to others, and in other cases instructed consumers to seek refunds directly from the scammers �“ without providing accurate contact information to do so. The complaint also notes that in some cases, T-Mobile claimed that consumers had authorized the charges despite having no proof of consumers doing so. T-Mobile has done a bunch of consumer friendly things in the recent past, but these sort of practices suggest that the traditional soul of phone companies, always looking to squeeze extra fees out of users is alive and well within the company.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Carbon is an incredible element. It comes in the form of diamond, but it also forms other allotropes such as nanofoam, carbyne chains, buckyballs and chaoite. Carbon also make graphene, and that's a material that could have a lot of potential, if we can figure out how to make large quantities of it economically. Here are just a few properties of graphene. Graphene is one of the strongest known materials. Its strength doesn't actually scale very well as a bulk material, but on a very small scale, graphene is super strong. [url] Saltwater flowing over a sheet of graphene can generate electricity. Researchers have only generated very small voltages (eg. 30mV), but if this property can scale, it could create another kind of hydroelectric generator without complex moving parts. [url] Graphene could be useful in super-capacitors (or ultra-capacitors), as sheets of graphene can be made into flexible, durable and highly conductive electrochemical capacitors. It's just not that easy to manipulate single layers of graphene and create stable devices (yet). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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We've written a few times about SCOTUSblog and the trouble it's been having getting a press pass for the Supreme Court due mainly to institutional jealousy from reporters at more mainstream publications -- who rarely do nearly as good a job covering the Supreme Court. However, for years, SCOTUSblog has faced a different issue: the fact that many people on Twitter quickly assume that the @SCOTUSblog account on Twitter is actually the Supreme Court itself, rather than a private news organization that covers the Supreme Court. That can create some ridiculous situations, especially when lots of people have a rather passionate opinion about a particular Supreme Court ruling and (of course) rush to Twitter to vent their frustrations (or joy). Assuming you haven't been living under a rock, you may have heard about the Supreme Court's ruling in Burwell v. Hobby Lobby. That ruling hits on a whole variety of hot button issues likely to bring out very strong opinions: religion, health care, health insurance, women's rights, free speech, regulations on how companies can act, etc. And, not surprisingly, this lead a bunch of people to lash out at the SCOTUSblog Twitter account, without recognizing that it wasn't actually the Supreme Court itself. And, then, SCOTUSblog decided to play along, retweeting some of the crazy attacks and responding to them in a hilarious, trolling fashion. Here are just a few of the best ones: Um…… -Amy. RT @VictoriaaC0418: Hey @SCOTUSblog … Thanks for treating women like second class citizens. — SCOTUSblog (@SCOTUSblog) June 30, 2014 Noted. -Scalia MT @ypiddle: @SCOTUSblog You sided with the crazies. Good job!! Tell your boys to keep their thingies in their pants. — SCOTUSblog (@SCOTUSblog) June 30, 2014 When you start reading our description. MT @ProgressivesWin: @SCOTUSblog When will you start honoring the constitution. #5OldBigots — SCOTUSblog (@SCOTUSblog) June 30, 2014 File a petition MT @yenisargueta: Thanks for not giving me the choice to my own body @SCOTUSblog Can I get carrots banned cause I want to? — SCOTUSblog (@SCOTUSblog) June 30, 2014 Whoa, “uninformed”? MT @Nicole_Cameron: Wow. @SCOTUSblog what a way to wake up in 1950s. Giving healthcare to the uninformed, the prejudiced — SCOTUSblog (@SCOTUSblog) June 30, 2014 Or eating the cheap Kung Pao Chicken MT @NYCPainter1: Of all the bad decisions @SCOTUSblog made the last few years, #HobbyLobby is the worst — SCOTUSblog (@SCOTUSblog) June 30, 2014 Lost our copy, apologies. MT @opinali: @SCOTUSblog today you have f@cked up real hard. Go read the f@cking First Amendment again, OK? — SCOTUSblog (@SCOTUSblog) June 30, 2014 Seriously people, read MT @Devilsmirk: Does anyone actually read how @SCOTUSblog comes to their decisions? Read the actual ruling. — SCOTUSblog (@SCOTUSblog) June 30, 2014 Come at us, bro MT @mazurslovedogs: @SCOTUSblog manages to screw up or endanger everyone’s life. Maybe someone needs to discuss impeachment! — SCOTUSblog (@SCOTUSblog) June 30, 2014 Needed a place to put it MT @TheResPublicaBK: Today is the day @SCOTUSblog allowed religion to be above the law. Congratulations — SCOTUSblog (@SCOTUSblog) June 30, 2014 We prefer them as our editor & manager. RT @Allout1 I guess @SCOTUSblog wants women barefoot, pregnant and cooking dinner. — SCOTUSblog (@SCOTUSblog) June 30, 2014 Or when bloggers decide the law? MT @alyssaanton: @SCOTUSblog proves democracy cannot work when leaders are appointed instead of elected. — SCOTUSblog (@SCOTUSblog) July 1, 2014 Thurs. No, wait�”Fri MT @Closetrighty: @SCOTUSblog can you at least tell me when your agents will confiscating my gf’s birth control. — SCOTUSblog (@SCOTUSblog) July 1, 2014 Really? Let’s let twitter decide. Ok? MT @The_Itch: @SCOTUSblog How do I become a justice? Pretty sure I’m smarter than 5 of you. — SCOTUSblog (@SCOTUSblog) July 1, 2014 #2: read a twitter bio RT @bradleytroth: @SCOTUSblog things a real person can do a corporation can’t: adopt a child. — SCOTUSblog (@SCOTUSblog) July 1, 2014 Affirmed: holy cows now protected MT @crashandcarry @SCOTUSblog, holy cow did you men mess up. Shame on u! — SCOTUSblog (@SCOTUSblog) July 1, 2014 And then, of course, some of those same (and different) angry people started to notice the mocking tweets from the blog. And rather than recognizing their own mistakes... they doubled down, screaming about how crazy it is that the Supreme Court would tweet that way to people, leading to yet another layer of hilarity: The passive aggressive way @SCOTUSblog is answering right now is horrible considering the position they just put women in. Not okay. — Dumb of the Day (@WollyWollenberg) June 30, 2014 Drops mic. RT @sayyeslena: Have y’all seen what @SCOTUSblog is tweeting? #MyGovernmentIsBeingPassiveAggressive #Awkward — SCOTUSblog (@SCOTUSblog) June 30, 2014 You have no idea MT @ZwielichtFunkel: I’d have thought that @SCOTUSblog is a parody account. Is douchebaggery by government accounts normal? — SCOTUSblog (@SCOTUSblog) June 30, 2014 Beat heads on desks RT @USUfacts: @MattAHorton @SCOTUSblog pretty sure it’s their blog as run by their clerks. check your facts. — SCOTUSblog (@SCOTUSblog) June 30, 2014 Sry MT @calph7: Hilarious that @SCOTUSblog is mocking lay persons’ opinions. They don’t care, they’re their own branch of gov’t! — SCOTUSblog (@SCOTUSblog) June 30, 2014 FTW RT @tory_dube @SCOTUSblog decisions upset so many people & all they are doing on twitter is mocking those people. That’s just disturbing — SCOTUSblog (@SCOTUSblog) July 1, 2014 Now let’s watch you try MT @noahtron watching @SCOTUSblog spin trying to cover their asses after today’s ruling is unrepentant visible smarm — SCOTUSblog (@SCOTUSblog) July 1, 2014 And… scene. Goodnight MT @seanmcdh: was the @SCOTUSblog account hijacked by an angry 14 year old male? wow! So much for ”…by the people.“ — SCOTUSblog (@SCOTUSblog) July 1, 2014 No -Ginsburg RT @notsalome shouldn’t @SCOTUSblog sign its tweets with the justice’s name who wrote the tweet?? #tcot — SCOTUSblog (@SCOTUSblog) July 1, 2014 Life in the Twitterverse can get a little wacky sometimes, it seems. Frankly, it seems that the Supreme Court should figure out a way to give SCOTUSblog a press pass just as an apology for having to deal with all of those angry tweets...Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
For years, the EFF has pushed back against the FCC's attempts to preserve net neutrality, reasonably worrying that it might open the door to the FCC further meddling in the internet where it had no real mandate. We here at Techdirt have been similarly concerned. As we've noted, net neutrality itself is important, but we were wary of FCC attempts to regulate it creating serious unintended consequences. However, over the past few years, the growth in power of the key broadband internet access providers, and their ability to degrade the internet for profit, has made it quite clear that other options aren't working. Thus, the EFF has -- quite significantly -- announced that it has changed its position on the FCC's role in net neutrality, starting with Title II reclassification, combined with a strong forbearance, which effectively blocks the FCC from claiming too much power to regulate other aspects of the internet: We want to be very, very clear: the FCC’s regulatory role should be narrow and firmly bounded. Network neutrality rules should be limited to specific prohibitions�”such as blocking, discrimination among applications and prohibiting special access fees�”potentially combined with a renewed “open access” requirement that would foster local competition, and no more. Luckily, the FCC has a way to bind itself and thereby limit its own regulatory reach. It’s called “forbearance.” While forbearance doesn’t set the limits on the regulatory agency in stone as Congress could, it does require the FCC to make a public commitment that is difficult to reverse.  If it ever wants to change course, it has to engage in a contentious and tedious public process of notice and comment. We’ll have more to say about these very basic regulations in our comments on the FCC’s proposed rules, which we will also unpack in upcoming posts. To get to a place where it can actually enforce neutrality rules and do nothing further, however, the FCC first needs to do one important thing: reverse its 2002 decision to treat broadband as an “information service” rather than a “telecommunications service.” This is what’s known as Title II reclassification.  Part of the problem with the net neutrality fight is that there's a lot of nuance and technicalities involved. Many -- especially in the telco world -- point to the fact that Title II reclassification would grant the FCC much greater ability to regulate all parts of the internet, but they ignore the fact that basically everyone pushing for reclassification is doing so with the forbearance process in mind. And, yes, the whole forbearance process opens up a whole new avenue for potential game playing and abuse, but as the EFF is recognizing, this seems like the only real near-term solution to the current situation in which the big broadband companies are looking to hold the rest of the internet hostage. It's worth noting that this is, in no way, an "ideal" solution. There's a tremendous amount of details and nuances involved in all of these decisions -- almost none of which you'll read about in the press (and, of course, good luck finding anything about net neutrality on TV news). The reality is that this is what we're left with after a decade or more of failed broadband policy, which has brought us to the situation today where the broadband access providers have basically set themselves up as being able to set up toll booths to doublecharge, not because of any innovation or improved service on their part, but solely by nature of themselves getting so big that they can make life difficult for internet services. There's one other key point in the EFF's "change of heart," which is the response to anyone who claims Title II grants too much power to the FCC (leaving aside the question of forbearance). And that's that under the appeals court ruling back in February, it was made clear that the FCC already has tremendously broad powers to regulate other aspects of the internet under Section 706. As some noted after that ruling came out, while many people were talking about how the court rejected net neutrality, they may have missed how much the court broadened the FCC's powers under Section 706. The end result is that we should be equally worried about the FCC abusing 706, where its powers are dangerous and also ineffective at protecting net neutrality, while focusing on putting in place a better regime under Title II with a strong forbearance plan: Some have said that reclassification would give the FCC too much power to regulate the Internet. That very concern is why forbearance is so important. Nor is it the case that the FCC has very limited power now�”the D.C. Circuit affirmed that the FCC has broad powers to “promote competition” which could be just as vulnerable to misuse by a future FCC as any regulatory authority granted via a “common carrier” reclassification. More important than the potential breadth of power, however, is the fact that the powers that the FCC has now don’t match the real goal: protecting the neutral Internet we expect and need to flourish. Reclassification, combined as it must be with a commitment to forbear from imposing aspects of Title II that were originally drafted for 20th century telephone services and that don't make sense for the Internet, can give the FCC the right tool for the job without giving it regulatory tools it doesn’t need and may dangerously misapply. In other words, while there are dangers of giving the FCC too much power under Title II, those can be dealt with via forbearance, while at the same time actually allowing it to protect net neutrality. Under the current system, we have the worst of both worlds. Section 706 has now been interpreted such that the FCC has powers that are too broad in regulating a variety of aspects of the internet... but without the power to actually protect net neutrality! Given that reality, it does seem that the best path forward has to be reclassification under Title II, with clear forbearance that limits the FCC's powers under Title II to just the situations where it can prevent net neutrality abuses.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
After hitting the snooze button for a half-decade, the United States' largest law firm is back to its trademark-bullying form. Again, it's seeking to shut down content it doesn't like, and it's wielding its trademarks as a weapon (along with its colossal size) to get its way. Back in 2008, Jones Day pressured a website called BlockShopper into pulling information it had posted to its website -- information it had gathered from public records. All BlockShopper did was post information on property purchases. When two members of Jones Day purchased property in the Chicago area, BlockShopper did what it always did: posted information on the purchasers and provided informational links about the purchasing party. These links led back to Jones Day and at that point, the legal firm sent out a cease-and-desist about its trademark somehow being "violated" by BlockShopper's "deep-linking." As if this bullying wasn't enough, the judge presiding over the eventual lawsuit talked BlockShopper out of defending its posting of publicly-available information, apparently far more impressed by the size of Jones Day than the defendant was. "Do you know, young man, how much money it's going to cost you to defend yourselves against Jones Day?" BlockShopper caved and pulled the info and links, and Jones Day went back to being just an incredibly large law firm. Now, it's doing the same thing to a site posting critical (and parodic) content about one of Jones Day's former partners (Kevyn Orr), the current emergency financial manager of disintegrating metropolis, Detroit. Jones Day, the United States' largest law firm, is threatening a parody website with litigation because of its use of the corporate logo deriding the firm. "I write on behalf of Jones Day, a law firm with over 2500 lawyers in offices on five continents, regarding your unauthorized use of Jones Day's service mark on the website www.kevynorr.com ..." begins the letter from firm partner Robert Ducatman to the anonymous blogger. The letter singles out the phrase that offends Jones Day the most: the tagline "This economic coup d'etat brought to you by Jones Day." The letter tries to drag in Lanham Act violations to excuse its targeting of First Amendment-protected speech and its deliberate obtuseness about fair use. One would think a law firm with "2,500 lawyers" might be able to come up with a better legal strategy (like, not doing anything at all), but it's apparent the law firm prefers to use its bulk, rather than its mental prowess. The letter even includes this bit of threatening language: "Your conduct will be closely monitored." No firm points out that it has "2,500 lawyers" at its disposal unless it's in a threatening mood, and this particular sentence clinches it. Jones Day may have been hoping for another nearly-uncontested "win," but its bullying has drawn the attention of the EFF, which has fired back a response (by Daniel K. Nazer) just as tersely worded. Contrary to your suggestion, our client does not need "authorization" to use Jones Day's marks. It is well-settled that the First Amendment fully protects the use of trademarked terms and logos in non-commercial websites that criticize and comment upon corporations and products. Our client's site is a clear example such protected expression. You may disagree with our client's speech. But you have no right to silence it. You state that Jones Day and its over 2500 attorneys will "closely monitor" our client's conduct. We trust that this was not an attempt to bully and intimidate, but a promise that you will "monitor" the situation with close attention and fidelity to the law, including fair use and First Amendment protections… We sincerely hope Jones Day Will have the good sense not to trouble a court of law with this matter. However, if you do intend to file suit, please be assured that our client is prepared to defend himself against these spurious claims. Jones Day has had previous experience with the EFF. In its lawsuit against BlockShopper, it asked the judge to disallow amici briefs from Public Knowledge and the EFF, claiming the two entities were "biased." Once again, it's rather amazing that the United State's largest law firm is either unable (or unwilling) to recognize the fact that amicus briefs are inherently "biased." If they weren't, they'd be completely extraneous. It's the judges who need to remain unbiased, not the parties involved or the parties offering briefs on their respective behalfs. In addition to the blatant bullying, Jones Day is further injuring its own reputation -- both by showing that being the "biggest" somehow still makes you the easiest to bruise and by drawing even more attention to the speech it's trying to bury. [Lengthy sidenote: It is quite possible -- in fact, even probable -- that many of the 2,500 lawyers under Jones Day's roof would have seen this cease-and-desist as both stupid and not legally sound. Unfortunately, the company's reputation is far more subject to the whims of those who apparently lack this sort of clarity and vision. Maybe this kind of legal duncery becomes increasingly infectious as you rise through the ranks. Here's a quote from a Jones Day partner defending trademark bullying as nothing more than what one does to protect registered marks. Susan Kayser, partner at law firm Jones Day, goes further. She says rights owners feel there is merely a perceived, not a real, problem of bullying. “Under US law, trademark owners are obliged to enforce their rights or they lose them. They must bear the burden of policing any third-party use, and if they believe any use is close to theirs, they are obliged to take action or risk losing their trademark rights,” she says. “We start with that,” Kayser explains. “The vast majority of trademark owners are doing what they’re required to do under the law. There are a few bullies, but they are in the minority. I don’t think it really happens that much.” Kayser, like many other spokespeople for trademark bullies, blames the public for perceiving the weight of 2,500 lawyers on one blogger's shoulders as "bullying." She also adheres to the all-too-common misperception that scorched earth policies are demanded if one is to keep its trademarks from being diluted, misused, etc. Nothing could be farther from the truth, as one judge memorably stated in a trademark bullying case: The owner of a mark is not required to constantly monitor every nook and cranny of the entire nation and to fire both barrels of his shotgun instantly upon spotting a possible infringer. Which is exactly what Jones Day appears to be doing. And in doing so, it's harming its own reputation... and that of the 2,500 lawyers in its employ, many of whom would have avoided a debacle like this if it were up to them. The question is, when do your company's stupid actions begin damaging your ability to make a living? Is it at the point when people gaze in awe at the statement "2,500 lawyers" and begin wondering a) if they're ever all in one room at the same time, and b) if that room could be quickly filled with water?Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Last year, as the IRS scandal blossomed over the IRS supposedly targeting "conservative" groups for extra attention concerning their non-profit status, we noted that the IRS had also been told to examine "open source software" projects more closely as well. We found that to be a bit disturbing -- and it appears that for all that focus on the scandal, the IRS hasn't quite given up on unfairly targeting open source projects. The Yorba Foundation, which makes a number of Linux apps for GNOME, has been trying to get declared a 501(c)(3) non-profit for over four years now... and just had that request rejected by the IRS for reasons that don't make any sense at all. Basically, the IRS appears to argue that because there might be some "non-charitable" uses of the software, the Foundation doesn't deserve non-profit status, which would make it exempt from certain taxes (and make donations tax deductible). Here was the key reason given: You have a substantial nonexempt purpose because you develop software published under open source compatible licenses that authorize use by any person for any purpose, including nonexempt purposes such as commercial, recreational, or personal purposes, including campaign intervention and lobbying. But... that's true of lots of other open source software that is (deservedly) classified as non-profit organizations -- including the Apache Foundation, the Mozilla Foundation and more. Furthermore, the IRS seems to argue that unless Yorba is actually teaching "the poor and underprivileged" how to use its software, it can't qualify: Mere publishing under open source licenses for all to use does not show that the poor and underprivileged actually use the Tools. … You do not limit your distribution and do not know who uses the Tools much less if they use them for artistic purposes. … you do not know who uses the Tools much less what kind of content they create with the Tools. Who knew that to be a non-profit you had to have an ironclad grasp over every possible use of everything you did? And, as Yorba's Jim Nelson points out, this requirement actually would appear to be impossible to match while also agreeing to the basic four software freedoms that are part of the copyleft world. Even more disturbing, the IRS seems to think that the benefits of open source are "incidental." The purpose of source code is so that people can modify the code and compile it into object code that controls a computer to perform tasks. Anything learned by people studying the source code is incidental. Oddly, the IRS seems to feel that because Yorba doesn't spy on how people use its software, it can't legitimately claim non-profit status as well: You describe your charitable purpose as providing free software, complete with documentation, user-guides and responsive s upport and that your main activity is the promotion and development of free and open source software that benefits the general public. Your "production of free and open source software aims to provide a no-cost alternative to software that can sell for as much as $1,000 a license." You "aim to construct services and tools provided free to all, that will allow the poor access to what would otherwise likely be inaccessible tools" thereby providing relief to the poor or underprivileged. However, the Tools have been downloaded many times, but you do not know who the users are or whether they use them for exempt or private purposes. You also do not know how many users, if any, are poor or underprivileged. There's a lot more that's troubling in this decision -- not limited to the fact that it took over four years for the IRS to issue it -- and in that time, nothing in the IRS's followups indicated any serious issue with the application: The Yorba Foundation applied for 501(c)(3) in December 2009.  We applied as a charitable, scientific, and educational organization.  Remember that we only needed to meet the criteria for one of those to receive 501(c)(3) status. We received two requests for clarification, one on June 23, 2010, and another on September 14, 2010, which we responded to in full.  We received a notice on October 5, 2011 that our application was still being processed. The requests for clarification contained mostly non-surprising questions.  For example, “Describe whether your organization provides any goods or services for a fee.”  (We don’t.)  Some were odd: “Will any of your directors or employees reside at your facility [i.e. our office]?”  (Ah…no.) Other than those three notices and a couple of phone calls with our representatives at the Software Freedom Law Center, that was it. I will admit, at times, to having mixed feelings about the setup of non-profits in this country right now. We've been working on a project in which I am constantly asked if I want to set it up as a non-profit, and I've avoided doing so, in part, because going through such a process just seems like such a hassle (and also, in part, because I think the idea that you need to be officially recognized as a "non-profit" to do "good things" for the world seems a little backwards). Either way, this rejection definitely seems troubling and somewhat ridiculous for a number of open source projects that do amazing work to better the world, and shouldn't have to face such challenges.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Microsoft posted a somewhat self-congratulatory blog post yesterday about how it was taking on a "global cybercrime epidemic" and effectively targeting systems used by malware. Of course, part of the details were that Microsoft totally misrepresented the nature of No-IP and how dynamic DNS solutions work. No-IP's parent company, Vitalwerks Solutions, was painted by Microsoft as being something of an accomplice to the malware epidemic, allowing Microsoft to convince a judge to seize a bunch of very popular No-IP domains without any notice or immediate recourse. Microsoft claims that it's just stopping malware, but the collateral damage from grabbing those domains is immense. According to No-IP: Unfortunately, Microsoft never contacted us or asked us to block any subdomains, even though we have an open line of communication with Microsoft corporate executives. We have been in contact with Microsoft today. They claim that their intent is to only filter out the known bad hostnames in each seized domain, while continuing to allow the good hostnames to resolve. However, this is not happening. Apparently, the Microsoft infrastructure is not able to handle the billions of queries from our customers. Millions of innocent users are experiencing outages to their services because of Microsoft’s attempt to remediate hostnames associated with a few bad actors. As No-IP further notes, Microsoft could have easily contacted them, and the company would have taken action: Had Microsoft contacted us, we could and would have taken immediate action. Microsoft now claims that it just wants to get us to clean up our act, but its draconian actions have affected millions of innocent Internet users. Vitalwerks and No­-IP have a very strict abuse policy. Our abuse team is constantly working to keep the No-­IP system domains free of spam and malicious activity. We use sophisticated filters and we scan our network daily for signs of malicious activity. Even with such precautions, our free dynamic DNS service does occasionally fall prey to cyber scammers, spammers, and malware distributors. But this heavy-handed action by Microsoft benefits no one. Except, instead, it appears that Microsoft went to court (secretly, without telling Vitalwerks/No-IP) and convinced the judge that the company itself was violating the law. And the court bought it: There is good cause to believe that, unless the Defendant Vitalwerks is restrained and enjoined by Order of this Court, immediate and irreparable harm will result from its ongoing violations the Anti-Cybersquatting Consumer Protection Act (15 U.S.C. § 1125) and the common law of negligence. The evidence set forth in Microsoft’s TRO Motion, and the accompanying declarations and exhibits, demonstrate that Microsoft is likely to prevail on its claim that this Defendant has engaged in violations of the foregoing laws through one or more of the following: a. Leasing to Malware Defendants No-IP sub-domains containing Microsoft’s protected marks; and b. Negligently enabling Malware Defendants to participate in illegal acts, and failing to take sufficiently corrective action to stop and prevent the abuse of its services, all of which harms Microsoft, Microsoft’s customers, and the general public. Given the nature of the ex-parte (without Vitalwerks being able to present its side of the story) proceedings, Microsoft was able to paint the fact that a platform provider (which has a full anti-abuse program), was somehow liable for actions of its users. This flies in the face of a variety of laws and caselaw on secondary liability, which protect the service provider from being held liable for abusive behavior by its users. Yet here, not only did the court ignore all of that, it simply flat out handed over to Microsoft a whole bunch of No-IP's domains (which, clearly, Microsoft was unable to handle), bringing down a big chunk of the web that relied on No-IP's dynamic DNS services. This seems like a tremendously dangerous move for the internet in a variety of ways. Microsoft needs to take some of the blame. Even if its goal was to stop malware proliferation, there are better ways to do that than to falsely blame No-IP, and to misleadingly represent the service to the court, allowing the domains to be seized and rerouted.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Last week, we wrote about how the DOJ finally released (a heavily redacted) copy of its memo authorizing drone use for killing Americans (though, some have pointed out that the memo was written well after the US started trying to kill Americans with drones). More importantly, we noted that the memo actually pointed to another secret memo as part of the justification. It's secret memo on top of secret memo, all the way down. The ACLU went back to court to see about getting its hands on that other memo, and the court has now ordered the DOJ to cough up any such memos related to killing people with drones. Specifically, the judge has ordered the DOJ to provide: Unredacted copies of the "other legal memoranda prepared by OLC and at issue here" that are the subject of the Mandate (hereinafter "The OLC Opinions") Furthermore, the court is curious why the DOJ didn't provide those documents already. Thus, it also has asked the DOJ to provide a memo under seal explaining itself as to why it didn't already release those memos. The government now has three weeks to comply, though, I imagine the DOJ will try to come up with some way to protest all of this, because that's what the DOJ tends to do.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Last year, we wrote about the ridiculousness of Prince sending DMCA takedowns over 6 second videos on Vine. Those seemed like a pretty clear fair use case. The very nature of Vine, in that it limits videos to 6 seconds seems tailor made for fair use, even if there is no magical time period that guarantees fair use. Either way, it should be no surprise that when it comes to a major sporting event, the powers that be don't believe in any fair use at all. Similar to the Olympics, nearly every time we write about the World Cup, it involves an aggressive abuse of claimed intellectual property rights to stifle perfectly legitimate communications and content. The latest, according to the Wall Street Journal, is that ESPN and Univision are rushing around taking down Vine clips of World Cup goals, even to the point that some major media properties have had their Vine accounts killed for being accused of infringement too often: Since the start of the tournament Vox Media-owned sports site SB Nation, one of the chief purveyors of quick World Cup content, has had two accounts suspended on Vine, according to its managing editor Brian Floyd. SB Nation received suspension notices from Twitter, Mr. Floyd said, after a complaint from media-protection company Irdeto, which works on behalf of Univision. “They don’t seem to mind people Vine-ing funny stuff like fans,” explained Clay Wendler, who quickly crafts Vines for SB Nation. But when it comes to goals �” breathtaking moments of glory seemingly tailor-made for the six-second looping video format �” rights-holders are more stringent, Mr. Wendler said. Considering that fair use rules are explicitly designed for news reporting, it seems rather clear that these are fair use. It's unclear from the report if SB Nation has appealed the takedown notices or not, but it's rather unfortunate that Twitter just killed those accounts without bothering to recognize that they're clearly being used for fair use reporting on the World Cup. Similarly, the article points to a recent Slate post which for a little while had a video showing all 136 goals scored in the group stage of the World Cup, spliced together in quick clips, but that video has since been removed after ESPN contacted Slate to claim it was infringement. Once again, this seems like a fairly clear cut case of fair use, using news reporting in a transformative manner which isn't going to impact the market for the original. But, of course, ESPN is owned by Disney, and Disney doesn't exactly have the best of reputations when it comes to understanding fair use in others (even if it's been getting better on that front lately). It's really too bad that it appears that Slate and Vox/SB Nation appear to have more or less given in to these takedown requests rather than standing up for fair use.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Earlier this year, we wrote about the Senate's latest attempt at a cybersecurity bill, the Cybersecurity Information Sharing Act (CISA), which tries to distinguish itself from the toxic attempts to pass CISPA over the past few years. We and many others have already detailed how CISA, like the CISPAs before it, has a tremendous problem in creating perverse incentives for companies to help the government spy on people, but as a bunch of public interest groups are noting, the definitions are so broad, that the bill could actually be a backdoor way to undermine net neutrality. That's because it has an incredibly broad definition of a "cyberthreat" such that an ISP could declare, say, Netflix to be a cyberthreat, allowing it to throttle Netflix's bandwidth. Here are two key paragraphs from a letter sent by CDT, EFF and a bunch of other groups: Arbitrarily Harms Average Internet Users: The definition of “cybersecurity threat” is overbroad, and includes “any action” that may result in an unauthorized effort to adversely impact the security, confidentiality and availability of an information system or of information stored on such system. Countermeasures can be employed against such threats absent risk of liability. This could lead to use of countermeasures in response to mere terms of service violations. For example, logging into another individual’s social networking account �“ even with their permission �“ typically violates the website’s terms of service, and therefore qualifies as unauthorized access under the CFAA, and could be treated as a “cybersecurity threat.” A provision preventing this harm appeared in the July 2012 Cybersecurity Act and should be included in CISA. Infringing on Net Neutrality Policy: Likewise, the July 2012 bill also contained provisions clarifying that nothing in the Act, including overbroad application of the terms “cybersecurity threat” and “countermeasure,” could be construed to modify or alter any Open Internet rules adopted by the Federal Communications Commission. Net neutrality is a complex topic and policy on this matter should not be set by cybersecurity legislation. In other words, under the current broad definition of "cybersecurity threat," an ISP (e.g., Comcast) could argue that another service provider (e.g., Netflix) was "adversely impacting the availability" of information on its network, and thus it was going to take "any action" (e.g., throttling it down to nothing) to deal with the "threat." And, under the proposed legislation, there would be nothing anyone could do about it, as Comcast would be absolved from liability, as long as it could claim that all of that Netflix traffic was the equivalent to a cybersecurity threat according to its own definition. The fact that there was language in previous bills that presented this kind of thing, but is absent from this latest bill seems quite troubling. One hopes it was just an oversight in getting the bill out -- and that seems most likely. But, given how often we've seen nefarious language sneak into certain bills, it's not out of the question that others are recognizing the opportunities to backdoor in a way to get around any possible net neutrality proposal.Permalink | Comments | Email This Story

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