posted 25 days ago on techdirt
If you want to build a surveillance state with a minimum of backlash, you'll need a very controllable environment. Shane Harris at Foreign Policy has a detailed report on Singapore's relatively peaceful coexistence with Big Brother that includes the United States' involvement in its creation, as well as the many reasons pervasive surveillance and an out-sized government presence have been accepted, rather than rebelled against. The genesis of Singapore's surveillance net dates back to 2002, and traces all the way back to former US National Security Advisor, John Poindexter. Peter Ho, Singapore's Secretary of Defense, met with Poindexter and was introduced to the Dept. of Defense's Total Information Awareness (TIA) aspirations. It would gather up all manner of electronic records -- emails, phone logs, Internet searches, airline reservations, hotel bookings, credit card transactions, medical reports -- and then, based on predetermined scenarios of possible terrorist plots, look for the digital "signatures" or footprints that would-be attackers might have left in the data space. The idea was to spot the bad guys in the planning stages and to alert law enforcement and intelligence officials to intervene. Though initially presented as an anti-terrorism tool (something Singapore was looking for after several recent terrorist attacks), it first found usefulness as a way to track and predict the spread of communicable diseases. Ho returned home inspired that Singapore could put a TIA-like system to good use. Four months later he got his chance, when an outbreak of severe acute respiratory syndrome (SARS) swept through the country, killing 33, dramatically slowing the economy, and shaking the tiny island nation to its core. Using Poindexter's design, the government soon established the Risk Assessment and Horizon Scanning program (RAHS, pronounced "roz") inside a Defense Ministry agency responsible for preventing terrorist attacks and "nonconventional" strikes, such as those using chemical or biological weapons -- an effort to see how Singapore could avoid or better manage "future shocks." Singapore politicians sold "big data" to citizens by playing up the role it would play in public safety. Meanwhile, back in the US, the program began to fall apart as privacy advocates and legislators expressed concerns about the amount of information being gathered. In Singapore, this was just the beginning of its surveillance state. In the US, it became an expansion of post-9/11 intelligence gathering. Rather than end the program, it was simply parted-out to the NSA and other agencies under new names by sympathetic lawmakers. Singapore's TIA program soon swelled to include nearly anything the government felt it could get away with gathering. The government used the data to do far more than track potential terrorists. It used the massive amount of data to examine -- and plan for -- nearly every aspect of Singaporean existence. Across Singapore's national ministries and departments today, armies of civil servants use scenario-based planning and big-data analysis from RAHS for a host of applications beyond fending off bombs and bugs. They use it to plan procurement cycles and budgets, make economic forecasts, inform immigration policy, study housing markets, and develop education plans for Singaporean schoolchildren -- and they are looking to analyze Facebook posts, Twitter messages, and other social media in an attempt to "gauge the nation's mood" about everything from government social programs to the potential for civil unrest. Making this data collection even easier is the Singaporean government's demand that internet service can only be issued to citizens with government-issued IDs. SIM cards for phones can only be purchased with a valid passport. Thousands of cameras are installed and government law enforcement agencies actively prowl social media services to track (and punish) offensive material. But this is accepted by Singapore citizens, for the most part. The mix of Indians, Chinese and Malays makes the government especially sensitive to racially-charged speech. The country's dependence on everyone around it makes everyday life a bit more unpredictable than that enjoyed by its much larger neighbors. In exchange for its tightly-honed national security aims (along with housing and education), Singaporeans have given up their freedom to live an unsurveilled life. And for the doubters, the government has this familiar rationale to offer. "In Singapore, people generally feel that if you're not a criminal or an opponent of the government, you don't have anything to worry about," one senior government official told me. What goes unmentioned is just how easy it is to become an "opponent" of the Singaporean state. It can take nothing more than appearing less than grateful for the many government programs offered in "exchange" for diminished civil liberties. While the government goes above and beyond to take care of its citizens' needs, it acts swiftly to punish or publicly shame those who are seen to spurn its advances, so to speak. Not for nothing did sci-fi writer William Gibson calls this Singapore "Disneyland with the Death Penalty." So, to make the perfect police/security state, you need a small country and a mixture of government largesse and palpable threats. You need a nation so precariously balanced that it "shouldn't [even] exist," according to one top-ranking government official. You also need a nation not built on civil liberties. Despite this, US intelligence agencies still view Singapore as a prime example of what could have been. [M]any current and former U.S. officials have come to see Singapore as a model for how they'd build an intelligence apparatus if privacy laws and a long tradition of civil liberties weren't standing in the way. After Poindexter left DARPA in 2003, he became a consultant to RAHS, and many American spooks have traveled to Singapore to study the program firsthand. They are drawn not just to Singapore's embrace of mass surveillance but also to the country's curious mix of democracy and authoritarianism, in which a paternalistic government ensures people's basic needs -- housing, education, security -- in return for almost reverential deference. It is a law-and-order society, and the definition of "order" is all-encompassing. If this was what the NSA and others were pushing for, there's no hope of achieving it. The Snowden leaks have undermined a lot of these agencies' stealthy nudges in this direction. The US government can never hope to achieve the same level of deference, not even in the best of times. A melting pot that has folded in refugees from authoritarian nations -- along with the country's founding principles -- have made many Americans predisposed against views of the government as an entity worthy of reverence. Widespread abuse of the public's trust has further separated the government from any reverential thought. This isn't to say the desire to convert US citizens into nothing more than steady streams of data doesn't exist. The NSA's previous director often stated his desire to "collect it all." In the hands of the government, useful things could be done with all of this data (like possibly heading off epidemics, etc.), but the more likely outcome would be collecting for collecting's sake -- which violates the civil liberties the country was built on -- and the use of the information in abusive ways. It may work for Singapore, an extremely controlled environment. But that doesn't necessarily make it right. And it certainly shouldn't be viewed as some sort of surveillance state utopia. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Sharing is a universal concept. Or so you would think. But even a three year-old has a better grasp on the concept of sharing than Amtrak does. An Amtrak passenger uploaded a photo taken from an Amtrak car to Instagram and tagged the company. The company's Twitter account responded, asking the passenger if he'd mind "sharing" the photo with Amtrak. @nruibal We love this pic! Mind sharing with us? Click this link. http://t.co/w9uGua3JXE — Amtrak (@Amtrak) July 28, 2014 Shortly after that, the photographer responded with this: @Amtrak btw, I don't mind *giving* you this photo, but you shouldn't use the word "share" when you mean "permanently assign copyright" — Nathan Ruibal (@nruibal) July 30, 2014 If you can't read it, it says: btw, I don't mind *giving* you this photo, but you shouldn't use the word "share" when you mean "permanently assign copyright" You see, when Amtrak says "share," it actually means "take your stuff and never give it back." When this Twitter user "shared" this with Amtrak (via social media management platform Percolate/Fanbranded), he gave up everything. Here's the Terms and Agreement verbiage Amtrak translates as "sharing." This Photograph Copyright Assignment Agreement ("Agreement") is entered into by and between the National Railroad Passenger Corporation ("Amtrak"), a corporation organized under 49 U.S.C. §24101 et seq. and the laws of the District of Columbia, with its principal office located at 60 Massachusetts Avenue, N.E, Washington, DC 20002 and Photographer for the assignment of the copyright in the photograph(s) ("Photographs"), which are attached to this Agreement as Exhibit I. Grant of Rights Photographer does hereby grant, assign and transfer all right, title and interest in the Photographs to Amtrak and any registrations and copyright applications relating thereto, including any renewals and extensions thereof. Photographer agrees to execute all papers and to perform such other proper acts, as Amtrak may deem necessary or desirable to secure for Amtrak the rights herein granted, assigned and/or transferred. Attribution Amtrak may, but is not required to, identify and credit Photographer and Amtrak may use or authorize the use of Photographer’s name, likeness or pertinent biographical material in connection with the advertising and promotion of any work containing all or part of the Photographs. Entire Agreement, Modifications and Governing Law This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes any prior discussion or agreements between them relating thereto. No modification or amendment to this Agreement shall be valid unless in writing and signed by both parties. This Agreement shall be governed by and construed in accordance with the substantive laws, but not the laws of conflicts, of the District of Columbia. The short version: Sharing = giving away your photo for forever for exploitation solely by Amtrak, which may or may not choose to credit you for your creation and either way, you can't really demand attribution because it's no longer your photo, is it? Is it forgivable? In a word, NO. While we can expect most corporate entities to have their way with user-generated content, the most anyone should ask for is non-exclusive rights. Amtrak has no right to demand this and everyone greeted with this offer to "share" should turn it down with a hearty, "go screw yourself." But this isn't Amtrak's only dip into re-purposing the creations of others into rolling PR platforms (literally). A few months ago, it sent out the call to aspiring writers, offering finalists a free ticket to the place of their choosing provided they rode there in an Amtrak rail car and wrote something suitably inspiring. Every aspiring writer who thought viewing up to $900 of the country by rail would beat back writer's block signed up, forcing Amtrak to end its open call for submissions much earlier than it planned to. Enthusiasm outweighed common sense as every submission (over 11,000 of them) became the property of Amtrak, subject to a whole host of stipulations. In submitting an Application, Applicant hereby grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy Applicant’s Application, in whole or in part, for any purpose, including, but not limited to, advertising and marketing, and to sublicense such rights to any third parties. In addition, Applicant hereby represents that he/she has obtained the necessary rights from any persons identified in the Application (if any persons are minors, then the written consent of and grant from the minor’s parent or legal guardian); and, Applicant grants Sponsor the absolute, worldwide, and irrevocable right to use, modify, publish, publicly display, distribute, and copy the name, image, and/or likeness of Applicant and the names of any such persons identified in the Application for any purpose, including, but not limited to, advertising and marketing. If Amtrak was looking for a bunch of free marketing material written by a cast of thousands, it found it. And then, it stripped away any rights the authors had to their creations, even if they weren't one of the 24 finalists. Amtrak isn't looking for talented, original writers. It's looking for some really cheap spokespeople. The Amtrak Residency’s terms and conditions, which prescribe a search for publicists, not the next great American novelist. Applications and writing samples that pass an initial evaluation will then be judged by a panel “based on the degree to which the Applicant would function as an effective spokesperson/endorser of [the] Amtrak brand.” Amtrak really needs a refresher course on sharing. Companies can be partners with creators but far too often, they seek complete control. Notably, everything defining this stripping of the creators' rights happens in the fine print. If you assume the worst about Terms and Conditions, you'll rarely be disappointed. But it takes a certain blend of audacity and forced cheerfulness to use the word "share" to describe what's going on here. Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Oh, Randy Queen. If you don't recall, on Monday morning we wrote about him sending some questionable DMCA takedown requests to Tumblr, concerning the Escher Girls Tumblr account, which had posted some of his comic illustrations. Queen, the author of the Darkchylde comic, apparently did not take too kindly to Escher Girls highlighting his work. That is, perhaps, because the Escher Girls Tumblr is all about highlighting ridiculous portrayals of women in pop culture. As we noted, the original works appeared to be a perfect example of fair use -- a concept Queen apparently is unfamiliar with. Escher Girls wrote about his takedowns in a surprisingly even-handed fashion, just informing readers what was going on, but also noting it had no desire to "feud" with him. In response, Queen sent a ridiculous email threatening a bogus defamation claim based on his bizarre (and, well, very very wrong) belief that copyright gives him the right to "protect the perception" of his work. Believe it or not, that wasn't enough for Queen. Escher Girls creator Ami Angelwings informs us that he's now also sent a DMCA takedown on the original Escher Girls story about his DMCA takedowns. Tumblr hasn't taken the original down, but did (for unknown reasons) remove all of the reblogged versions of the Escher Girls post. The last URL in the image below was that Escher Girls post: At this point, Queen is actually playing with legal fire. While you could make the argument that Queen was just clueless about fair use with his original takedowns, with the takedown on the article about his takedowns he has to know that it contains nothing that is covered by his own copyright. He's blatantly abusing the DMCA to silence a critic. We've covered the mostly useless 512(f) provision of the DMCA before, but Queen might want to pay attention to it, because it lets the victims of truly abusive DMCA notices sue for damages and attorneys fees. And Queen has just made it pretty damn clear that he is abusing the process to try to silence a critic. Meanwhile, Popehat has the details of yet another email that Queen sent to Escher Girls, in which he tries out yet another insane legal theory: that this is all "harassment": So, at this point it becomes harassment. Instead of simply removing the content you do not have the right to electronically distribute, you wish to persist in character assassination, and alleged abuse of copyright claims via armchair lawyers. Let’s say I take someone’s old copyrighted photography and ‘corrected’ it for them, as well as posted disparaging comments to circulate along with what may be someone’s first exposure to the work. Guess what? I don’t have the right to do that, it’s not my content. And based on the comments in this thread, it’s an easy argument to make that it is damaging. There are people and animals suffering and dying in the world, and real human rights issues in certain countries, and this is what you take issue with? Art nearly two decades old? I think there are greater causes to champion with the limited time and energy we are given on this Earth. For anyone this may apply to – instead of taking shots at art someone did many years ago while they were still learning – which are no longer representative of their current art style or direction for their character – I encourage you to spend your time, energy, and courage on creating your own comics, and then make the necessary personal sacrifices to bring them to the world. If you think you can do better work, or have more success with it – I encourage you to do so. I promise I will never attack anything you create, and would only wish you only love and happiness. Since you enjoy posting private emails, and needlessly escalating matters, I'm sure this will be next, and would again ask you to please stop. I am sure there are more positive uses of both of our time. Sincerely, ~ R Right. So the filing of false DMCA takedown notices and bogus legal threats is not the harassment? Telling the world (in pretty damn even-handed tones) what Queen did is harassment? Queen really ought to speak to a lawyer (and maybe someone with more than two minute's experience on the internet). Also, once again, Queen seems to have no idea what fair use means. Randy Queen's version of copyright is as imaginary and as improbable as the female characters he draws. And to then jump to, as Popehat calls it, "there-are-children-starving-in-Fuckistan arguments" just adds to the layers of ridiculousness. Just a few days ago, I mentioned that one of the most ridiculous and trollish arguments is to say because you're not doing something about "totally unrelated problem" you have no right to do something about the thing you're actually addressing. At this point, Randy Queen appears to be approaching Charles Carreon-levels of absurdity, and we can only offer the same advice we suggested to him (and which an appeals court recently offered to Team Prenda): stop digging.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Just over a year ago, Techdirt reported on big pharma's application to run a new .pharmacy domain, and later on an attempt by Canadian pharmacies to prevent that happening. They failed, apparently (found via Intellectual Property Watch): As the registry operator of the new .pharmacy domain, the National Association of Boards of Pharmacy (NABP), under a contract with the Internet Corporation for Assigned Names and Numbers (ICANN), will soon provide a means for identifying safe online pharmacies and resources. Under the Association’s Registry Agreement, executed with ICANN on June 19, 2014, the new .pharmacy generic Top-Level Domain (gTLD) will be available only to legitimate online pharmacies and related entities located in the United States or other countries. The Registry Agreement also includes a number of safeguards intended to protect consumers around the world. The question is: what will "only available to legitimate online pharmacies" and "intended to protect consumers" mean in practice? The concern is that these are euphemisms for big pharma shutting out those competitors offering lower-cost products, particular foreign pharmacies, and manufacturers of generics. That fear is not assuaged by the following comment from the NABP in its response to such concerns (pdf) the .PHARMACY TLD will provide a powerful tool to educate consumers, distinguish legitimate Internet pharmacies from the thousands of rogue Internet drug outlets, and reinforce the value of purchasing medications only from trusted online sources. Big pharma is clearly as keen as the copyright industries to "educate" consumers about what they ought to be doing. The danger here is that such "education" will include not trusting perfectly safe pharmacies outside the US (in Canada, for example), and not using much cheaper generics. Since NABP now controls this entire domain it will have a free hand to block any outfit that does not subscribe to those views, and thus to attempt to delegitimize them in the eyes of the consumer. This is something new. Hitherto, there has been no danger of this kind of discrimination against particular classes of Internet users, since registry operators were focused on maximizing profits by getting as many domains issued as possible. That won't be the case for .pharmacy, where the aim is to police the online pharmacy world, and to protect the generous profits of big pharma -- not make a few dollars selling a domain or two. Assuming that happens, we can probably expect other industries to follow suit in creating and controlling new domains, and for the Internet to become less free and neutral. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Almost exactly a year ago, we wrote about Team Prenda being ordered to pay another $64k in attorneys' fees in one of its many cases. This one involved Prenda, along with Paul Hansmeier's "Alpha Law Firm" and local Minnesota lawyer Michael Dugas supposedly representing a company named Guava, suing a bunch of folks in Minnesota state court. The case had taken quite a twist when defendant Spencer Merkel revealed how he'd made a deal to take a dive in the case. That is, he'd been hit with a standard Prenda threat letter concerning "Hard Drive Productions" content, and when he told them he couldn't pay, someone from Prenda made a "deal" with him in which he'd get sued, and would agree to give up hit Bittorrent logs during discovery and then have the case dismissed. Team Prenda needed the logs to find more people to shake down, and most likely wanted to use the case as an "example" that it was okay for them to get logs through these very, very questionable lawsuits. Except, somewhere along the way the court noticed that it was a bogus lawsuit, and that resulted in the order to pay $64k. Team Prenda appealed, and... have lost again as the Minnesota state court of appeals has, like nearly every other court, seen right through the Prenda scam. We have carefully reviewed the record, and we conclude that the district court did not abuse its discretion in imposing attorney-fee sanctions against appellants. The district court found that appellants initiated and pursued this litigation in bad faith, that the only purpose of the litigation was “to harass and burden Non-Parties through obtaining IP addresses to pursue possible settlement rather than proceed with potentially embarrassing litigation regarding downloading pornographic movies.” This is an improper use of the judicial system. As per usual, Team Prenda throws a lot of crap at the wall, hoping something will stick. None of it does. First, they claimed -- as they always do -- a failure of due process. The court brushes that aside and shows that there was plenty of due process, even if some of it could have been slightly clearer. Next, Team Prenda claims there's not enough evidence for "bad faith." The court has no problem rejecting that one quickly: Although the record in this case was not fully developed because appellants voluntarily dismissed the underlying action before it could be considered on the merits, it includes sufficient evidence to support the district court’s finding. The evidence includes Merkel’s affidavit testimony that he received a letter from Prenda Law threatening suit on behalf of its client, Hard Drives; he made arrangements with someone named “Michael” or “Mike” at Prenda Law for an alternative settlement arrangement, including his consent to be sued in Minnesota; Prenda Law referred him to pro bono counsel; Hard Drives would dismiss the suit after Merkel provided his BitTorrent log; and he was surprised to be sued by Guava, rather than Hard Drives. The evidence also includes Morrison’s testimony that Merkel was referred to her by Hansmeier and Dugas; that she expected a lawsuit to be filed by Hard Drives, rather than Guava; and “[t]here’s been some bait and switch you might call it in this case.” And the evidence includes the facts that (a) despite repeated questioning by the district court regarding Guava’s corporate status, appellants failed to file a certificate of authority or provide any evidence regarding Guava’s incorporation, its officers, or its business operations, and (b) despite Merkel’s alleged involvement in a hacking conspiracy, appellants sought no discovery from Merkel during the pendency of the litigation. This evidence, taken together, amply supports the finding that appellants had no good-faith basis for this litigation.... Appellants assert that the district court erred by relying on the communications between Merkel and Prenda Law relating to claims by Hard Drives, arguing that there is no evidence of a connection to this action. But the district court found a connection, and there is evidence in the record to support that finding. “Michael” at Prenda Law offered to refer Merkel to Minnesota attorney, Morrison. Morrison testified that she received the referral from Hansmeier and Dugas; Hansmeier filed a notice of appearance identifying himself as “of counsel” to Prenda Law, and Dugas submitted a declaration in this matter identifying himself as the only “‘Mike or Michael’” at either Alpha Law Firm LLC or Prenda Law, Inc.” Dugas denied representing Hard Drives or being involved in the settlement agreement between Merkel and Hard Drives. But the district court rejected this assertion as incredible, and we will not disturb that credibility determination. There's a funny bit where Team Prenda tries to claim that originally the court thought the case was brought in good faith, so the later bad faith determination shouldn't count. The appeals court is, again, not impressed: We reject this argument as circular and unpersuasive. The district court’s initial determination that Guava demonstrated that the information it sought was relevant and material did not preclude it from later—on being made more fully informed of the facts—finding that appellants were acting in bad faith. Team Prenda also protested the $64k amount. But, again, their arguments fall (mostly) flat. The court basically says the amount is enough, as is the requirement that the lawyers file a $10k bond before filing any more lawsuits, but there was one procedural issue, concerning filing a Minnesota "certificate of authority" that was improperly presented in the lower court ruling, so the appeals court fixes that. It's a meaningless issue, though. Finally, Team Prenda argues that sanctions can't be applied because they had voluntarily dismissed the lawsuit already. No go: Lastly, appellants assert that the district court was precluded from awarding sanctions after the action had been voluntarily dismissed, citing such a limitation in the district court’s authority [citing laws and caselaw that say] “motions for sanctions brought after the conclusion of the trial must be rejected precisely because the offending party is unable to withdraw the improper papers or otherwise rectify the situation”). But the district court’s inherent authority to impose sanctions is not so circumscribed. See, e.g., Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 389 n.2 (4th Cir. 2004) explaining that “failure to comply with the safe-harbor provisions would have no effect on the court’s authority to . . . impose sanctions within its inherent power”). So, once again, an appeal by Team Prenda falls totally and completely flat. And they need to pay up.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Techdirt has been writing about the dangers faced by nations that sign up to treaties containing corporate sovereignty clauses for some time now. These chapters are typically included in so-called trade agreements like TAFTA/TTIP and TPP -- although they actually go far beyond regulating trade -- but are also found elsewhere. For example the Energy Charter Treaty (ECT) includes one, as Germany found to its cost when the Swedish company Vattenfall used the investor-state dispute settlement (ISDS) mechanism to claim €3.7 billion after the Germany state decided to phase out nuclear power stations -- thus reducing Vattenfall's future profits. Now the ECT's corporate sovereignty chapter has struck again on an even more staggering scale: In an historic arbitral award rendered on July 18, 2014, an Arbitral Tribunal sitting in The Hague under the auspices of the Permanent Court of Arbitration (PCA) held unanimously that the Russian Federation breached its international obligations under the Energy Charter Treaty (ECT) by destroying Yukos Oil Company and appropriating its assets. The Tribunal ordered the Russian Federation to pay damages in excess of USD 50 billion to our clients who were the majority shareholders of Yukos Oil Company. That comes from a press release issued by the lawyers acting for the Yukos shareholders, who are also doing quite nicely: The Tribunal also ordered the Russian Federation to reimburse to our clients USD 60 million in legal fees, which represents 75% of the fees incurred in these proceedings, and EUR 4.2 million in arbitration costs. Even for an oil- and gas-rich country like Russia, this is obviously a massive amount of money. A detailed and insightful post by Kavaljit Singh puts it in context: In relative terms, the compensation award is equivalent to around 11 per cent of Russia's foreign exchange reserves, 10 per cent of annual national budget and 2.5 per cent of country’s GDP. Given the magnitude of compensation, the Award could be more damaging to the Russian economy than all the economic sanctions imposed by the West against Russia for its actions in Ukraine. He goes on to point out one of the most worrying aspects of these awards by tribunals: What is most astonishing is that the arbitral tribunal has not provided any standard or credible rationale behind awarding $50 bn in compensation to claimants. The calculations of total damages put forward by claimants are based on assumptions and hard evidence is lacking. The tribunal found that the claimants contributed to 25 per cent "to the pejudice they suffered at the hands of the Russian Federation." Hence, the amount of damages to be paid by Russia is reduced by 25 per cent to $50 bn from $67 bn. In its lengthy 615-page verdict, no explanation has been given by the tribunal on how did it arrive at 25 per cent of claimants' contributory fault? Why not 30 or 40 or 50 per cent? The arbitrary nature of these awards, and the fact there seems to be literally no limit to the amount that might be awarded, are just some of the many problems afflicting investor-state dispute settlements. Singh notes another disturbing aspect of the current verdict: It needs to be emphasized here that Russia only accepted the provisional application of the ECT (pending ratification) in 1994 meaning that the country will only apply the Treaty "to the extent that such provisional application is not inconsistent with its constitution, law or regulations." Same was the approach adopted by Belarus, Iceland, Norway and Australia. Russia never ratified the ECT and announced its decision to not become a Contracting Party to it on August 20, 2009. As per the procedures laid down in the Treaty, Russia officially withdrew from the ECT with effect from October 19, 2009. Nevertheless, Russia is bound by its commitments under the ECT till October 19, 2029 because of Article 45 (3) (b) states that "In the event that a signatory terminates provisional application…any Investments made in its Area during such provisional application by Investors of other signatories shall nevertheless remain in effect with respect to those Investments for twenty years following the effective date of termination." That is, although Russia signed the treaty, it never ratified it. And yet under its terms, it can still be sued, as here -- another good reason never to sign up to these kind of agreements. Whether it will pay up is quite a different matter, of course. As Singh points out: Shareholders will soon find it extremely difficult to enforce the Award as Russia has already decided to challenge it. The shareholders could seek to seize commercial assets of Russia (owned by country's state-owned corporations and sovereign wealth funds) in 149 countries which are signatory to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Award (popularly known the New York Convention). In any case, it is going to be a time-consuming and uphill process to enforce the tribunal Award in 149 contracting parties of New York Convention. As he writes, the enormous award against the Russian government should stand as the starkest warning yet about the dangers of entering into these kinds of agreements: Even though this Award is related to ECT, it provides important policy lessons to other countries which have already signed or currently negotiating bilateral investment treaties (that allow investor-to-state arbitration -- ISA) without any consideration of consequences and potential costs. Here's why: The existing investment protection agreements have failed to address the balance of rights and responsibilities of foreign investors as it offers numerous legal rights for investors without requiring corresponding responsibilities for them. That's a hugely important point that all those countries taking part in the negotiations for TAFTA/TTIP, TPP and CETA would do well to consider carefully -- or they may find themselves on the wrong end of $50 billion award, as Russia now does. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+Permalink | Comments | Email This Story

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

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posted 26 days ago on techdirt
Queuing theory is a subset of applied math that looks into the behavior of waiting in line and algorithms that optimize various aspects of this particular kind of resource allocation. Retailers of all kinds are interested in this kind of math because it can improve customer satisfaction and get more products out the door. Apple reduces long cashier lines with employees who can accept payments anywhere in its stores. Fry's Electronics has the giant single line that feeds into a massive array of cashiers (aka the serpentine line). There are self-checkout lanes at the grocery store, but there's no silver bullet to eliminate waiting in lines. Here are just a few more links on this problem of civilization. Ever pick a checkout line at the grocery store and think "I always pick the slowest lane" once you've committed to a particular cashier? The math says that the odds of picking the fastest lane are against you, so you're most likely right that you never pick the fastest line. [url] Waiting in line at Disney can be cut short with its Fastpass system, but what does Fastpass really optimize? FYI, Disney doesn't let you hire disabled kids to cut in line anymore. [url] The best system for boarding planes is not the one that most airlines use, but Southwest's boarding method does pretty well. A few studies have looked at how to board planes more efficiently, but the Jason Steffen method isn't used by any airline (and there's little incentive for most airlines to change what they're currently doing). [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
The Union Street Guest House in Hudson, New York, joins the small group of businesses who have attempted to levy fees against customers who leave negative reviews. It's an exclusive group that no business should want to be a part of, one that includes the infamous and possibly French geek gadget re-shipper KlearGear. Page Six was the first to report on this customer-unfriendly clause residing in the rental terms and conditions: If you stay here to attend a wedding and leave us a negative review on any internet site you agree to a $500. fine for each negative review. If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event (this is due to the fact that your guests may not understand what we offer and we expect you to explain that to them). Not only is the clause incredibly stupid and openly antagonistic, but it holds renters responsible for the actions of anyone in their party, including guests whose experience may have been drastically different than the renting party's. It even tells renters to spread the news that no negative reviews should be posted, which should be enough to tell potential customers to rent elsewhere. Now, the Union Street Guest House has all the negative reviews it will ever need. As soon as this started spreading around the internet, it's Yelp page quickly filled up with negative reviews, forcing the business to offer this "explanation" on its Facebook page. The policy regarding wedding fines was put on our site as a tongue-in-cheek response to a wedding many years ago. It was meant to be taken down long ago and certainly was never enforced. Oh. Well, LOL… I guess. I'm not sure the "it was all a joke" defense is going to undo the damage done by its decision to insert this language into its rental terms, no matter what the original impetus. This also doesn't explain why a lousy joke was allowed to be part of the official policies for nearly two years (it appeared sometime between August and October 2012). It's gone now, but there's still an edge to USGH's voice in the amended terms, which indicates the Guest House is in no hurry to hand out refunds, return deposits or deal with chargebacks. CANCEL AT YOUR OWN RISK, WE DO NOT ACCEPT ALL CANCELLATION REQUESTS... If you file for a charge-back (request a refund directly from your amex or bank card) or file a complaint to any 3rd party organization during that time you are responsible for any fees associated with it and doing so will only hold up the refund process... The deposit will not be refunded until we feel that everything is 100% resolved (we reserve the right to refund at any time). If you hold the entire Inn you are responsible for every room. There are no "releasing" rooms prior. If there are any unused rooms you forfeit your entire deposit. All chargebacks and any other fees related to any charges from anyone in your party (that they have not paid) will be deducted from your deposit. According to Page Six, there's also a bit of an edge to its voice in its handling of earlier negative reviews: For any bad reviews that do make it online, the innkeepers aggressively post “mean spirited nonsense,” and “she made all of this up.” In response to a review complaining of rude treatment over a bucket of ice, the proprietors shot back: “I know you guys wanted to hang out and get drunk for 2 days and that is fine. I was really really sorry that you showed up in the summer when it was 105 degrees . . . I was so so so sorry that our ice maker and fridge were not working and not accessible.” It would seem obvious that there are better places to spend your money, especially since the chance of you receiving your deposit seem incredibly slim. The most objectionable part of the terms has been removed, but only because it went completely public. At no time during the last two years did the Guest House take down this clause, which seems to indicate that it wasn't the inside joke it's now pretending it was. I don't know why this lesson even needs to be learned at this point. If businesses haven't figured out that attempting to suppress bad reviews almost invariably only results in more bad reviews, this sort of stupidity and inevitable backlash should be viewed as nothing more than culling the herd. If you'd rather try to silence unhappy customers than address the problems in your own business, you deserve to have your reputation torched to the ground. But don't blame the internet. This fire was started by the Union Street Guest House itself. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
So, this morning we wrote about comic artist Randy Queen sending copyright notices to Tumblr to make a bunch of posts disappear, which were critical of his work. The take downs were for the Tumblr Escher Girls, which tracks and highlights the ways in which women are portrayed in popular media (frequently comics) -- basically highlighting the ridiculous manner in which women are often drawn. Queen apparently wasn't too happy about it and issued copyright takedowns to Tumblr, despite the strong fair use defense. The Escher Girls blog posted what was, frankly, an incredibly even-handed post about the situation, just letting people know what was going on. The author specifically noted no desire to fight back or attack Queen, but just to let people know. It appeared that Escher Girls had no plan to even file a counter notice. Still, apparently just that post was too much for Queen. Ami Angelwings, the owner of Escher Girls tweeted out this morning that Queen is now threatening to sue her for defamation over the post. Here's his email: If you can't read it, it says: Dear Eschergirls and Kim, I would encourage you to put a stop to all of this. I have no problem getting legal involved for defamation, and for your various allegations on your takedown notice thread, and am happy to send a formal cease and desist letter from my lawyer. Instead of simply removing the content you do not have the right to electronically distribute, you wish to push further, and publicly challenges my right to protect the perception of my IP as it exists today. At this point, I will ask you to please move along, as no good will come of this. Additionally, instead of taking shots at art someone did 18 years ago while they were still learning - which are no longer representative of their current art style or direction for their character - I encourage you to spend your time and energy on creating your own characters and comics which you can mkae your own personal sacrifices to bring to the world. Sincerely, ~R Where to start? So, we go from bogus attempts to stifle criticism via copyright law, to then trying to stifle discussion of that stifling by bogus defamation threats. Someone really doesn't like being criticized apparently. Anyway, it's difficult to see how there's anything close to defamation here. Queen is a public figure and this was pure criticism of his artwork and then a factual explanation of a takedown he or his people sent. To show defamation he'd first need to show what was false (and notice that his email provides no example of any false statement -- only that he doesn't like the opinions being expressed) and that it was done with "actual malice" which seems desperately unlikely here. Perhaps, rather than "threatening" to "get legal involved," Queen would have been better served speaking to a lawyer who might disabuse him of his apparent notion that "stuff I don't like about me" is "defamation." Second, concerning the copyright arguments. Queen ought to familiarize himself with fair use. Again, this was a pretty clear case of fair use. They were using very small snippets of his comic work, clearly for the non-commercial purpose of criticism. It's almost exactly what fair use was designed for. Third, Escher Girls was not "publicly challeng[ing]" Queen's right to "protect the perception of my IP." You have no right to protect the perception of your IP. Perception is an individual thing. At most, he might be able to make a claim that he had a legitimate right to do a takedown, but even so none of that would ever stop Escher Girls (or anyone else) from then discussing the takedown notice and what happened. Queen already appear to believe copyright provides him more rights than it does (since he doesn't seem to understand fair use), but to take that even further and pretend it also allows you to police the perception of his work is really far out there. Again, he might want to "get legal involved" earlier in the process, before he makes even more ridiculous statements. And, indeed, "no good will come of this" sounds about right, but it was Queen who probably should have "moved along" rather than trying to (1) abuse copyright law to pull down criticism and now (2) abuse bogus defamation claims to try to silence a blog post about his abuse of copyright law.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
The FBI's production of privacy impact assessments (PIAs) lags far behind its deployment of privacy-impacting technology. From facial recognition software to Stingray devices to its drone usage, the FBI has always violated privacy first and assessed the damage later. In some cases, it hasn't bothered to assess the impact at all, despite repeated assurances to questioning lawmakers that the required report (and it is required) is (forever) nearing completion. Its biometric database, which pulls in photos from all over the place for its facial recognition software to peruse, rolled out without the required PIA in 2012. Two years later, the FBI is still promising Eric Holder that the PIA will be completed literally any month now, even as it hopes to have the system fully operational by the end of the 2014 fiscal year. It has supposedly cranked out a PIA for its drone use -- again lagging far behind its first reported deployments in "late 2006." But the public apparently isn't allowed to know how the agency's drone use impacts its privacy. Instead of placing the assessment on its website for public viewing (the default method), the FBI has stashed it behind every shady government entity's favorite FOIA exception: b(5). Here's the entirety of the "responsive documents" returned to MuckRock. As Shawn Musgrave reports, the FBI withheld EVERYTHING. Federal law requires the FBI to assess surveillance technologies for potential privacy and/or civil liberties issues. These technology assessments are typically prepared for public posting and review. When it comes to drones, however, the FBI has redacted these privacy reviews in full… Even the cover sheets have been withheld. The reviews are recognizable only from their titles as provided on the disc of responsive documents sent in May: “1218644-0 - Drone PIA - Drone PIA.PDF” and “1218644-0 - Drone PIA - Drone PIA-Drone PIA Section 2.PDF.” While the DOJ does allow for redactions and the withholding of documents for certain reasons ("classified, sensitive otherwise protected information"), it also requires responding agencies to file a document stating their reasons for withholding PIAs. The FBI also withheld this document -- assuming it even exists. If I was a betting man, I'd say it's going to take a lawsuit to get this assessment released. The government's track record on transparency is horrific, even without the specter of "terrorism" or "drugs" being cited in the FOIA refusal. Since the FBI deals with both, it's a given that it will fight to withhold information that concerns its surveillance programs' impact on the public from the same public whose privacy it's invading. A Privacy Impact Assessment should never be private. While some information will probably need to be redacted, the complete refusal to release this document should be taken as an insult by the public, and as a further indicator of the government's inherent untrustworthiness. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Back in January, I had a brief exchange on Twitter prompted by this news story. The gist is that A. O. Scott, film critic for The New York Times, posted a tweet about the film Inside Llewyn Davis. The film's promoters took out a full page ad in the Times displaying the tweet (or more accurately, the last two sentences of the tweet). The linked article's discussion assumes that Scott "own[s] the copyright to his tweets," but notes that by tweeting, Scott could be presumed to be granting an implied license for reuse of the tweet elsewhere. But can you even copyright a tweet? I did some research and was unable to come up with a clear answer. There was some academic discussion of the issue, and occasional instances in which Twitter users claimed others were infringing their tweets, but I could not find a clear instance in which someone had actually registered a copyright in a tweet. So, 7 months and $35 later, I have my answer: no, you cannot copyright a tweet. That, at least, is what the registration specialist at the Copyright Office decided to send me in response to my attempt to register this tweet as a literary work entitled "Tweet #452″: Monkey bar fallacy: a bad person using something makes it bad. E.g., users of monkey bars include: children, TERRORISTS #tor Of course, the rejection of this particular tweet does not imply that no tweet can be copyrighted. Perhaps the registration specialist did not feel my tweet was valuable or creative enough, and thus did not pass the (very low) threshold of originality. This makes me wonder whether short poems like haikus are eligible for copyright protection. Browsing the Copyright Office's registration database, I can find a number of registered literary works labeled "haikus" that are no longer than one page. Perhaps I would have had more luck if I had instead tweeted a haiku: Monkey bar fallacy: A bad person using something Makes it bad. (For sticklers, yes, I know it's not 5-7-5, but it is 17 syllables.) Ultimately, I wonder if the Copyright Office applies more scrutiny to short literary works than it does to photographs. In the U.S., we work under the assumption that every photograph taken by a human being is copyrighted. But I take a lot of photos, and many of them take far less time, effort, and creativity to compose than a tweet. Here's an example: Other countries have found that some photographs simply aren't creative enough to warrant copyright protection. Wikipedia has a brief summary and link to the German text of a Swiss case in which a reporter's photograph of a man holding record books was ruled ineligible for copyright. It would be a fun, albeit expensive, experiment to try and register a variety of liminal works: handfuls of sentences, short quines, run of the mill photographs, "sculptures" made of a few Lego pieces, etc. I would contest the office's decision about my tweet, but I don't want to pay $250 out of pocket to do so, and I also don't really want to write a funding proposal to try and convince someone else to give me the money. To wrap up this little experiment, the Copyright Office's online registration process allows registrants to submit comments with their registrations. I submitted the following text, although I have no way of knowing whether it was ever read: In Ashleigh Brilliant v. W.B. Productions, Inc. (Civ. No. 79-1893-MBM, S.D. Cal Oct. 22, 1979), a U.S. District Court found that Brilliant's copyrights on three epigrams were valid and enforceable. The epigrams were 12, 15, and 10 words respectively. Each was a single sentence, lacking rhyme or meter; rather, their originality consists of their pithiness. Tweet #452's originality is similar: using 20 words and two sentences, it exposes the logical fallacy inherent in blaming tools, using humor and topical examples to communicate the point. Circular 34 states that "copyright law does not protect names, titles, or short phrases or expressions." Tweet #452 is clearly not a name or title, leaving only the question of whether it is a short phrase or short expression. The Oxford English Dictionary defines a phrase as "a small group or collocation of words expressing a single notion, or entering with some degree of unity into the structure of a sentence; a common or idiomatic expression." Expression is similarly defined as "A word, phrase, or form of speech." Tweet #452 cannot be classified as either a "phrase" or "expression," since it contain two complete sentences (i.e., two subject-verb pairs). Thus, Tweet #452 does not fall within the scope of Circular 34. Even if Tweet #452 were considered a phrase or expression, phrases or expressions as such are not necessarily ineligible for copyright, since Circular 34 specifies that only "short phrases or expressions" are ineligible for copyright, thereby suggesting that longer phrases or expressions are eligible. This post and the included image are licensed CC BY-SA 4.0, and may be shared and reposted with attribution. When reposting, please include a link back to the original story, which will contain the most up-to-date version.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Another in our series on copyright being used for censorship. Pointed out by Kevin Carson, comic artist Randy Queen, the author of Darkchylde has apparently filed a bunch of DMCA takedown notices against posts on the Escher Girls Tumblr page -- which "archives and showcases the prevalence of certain ways women are depicted" in various pop media, including comics. It appears that Queen did not like being criticized in this manner. And, yes, it does appear that the Tumblr made use of his artwork -- after all that's what it does -- but it seems like a fairly clear case of fair use, given the purpose and nature of the account. Furthermore, the creators of the site note that other critical posts on other Tumblrs have apparently been removed, but they haven't found any positive versions of his work removed: So yesterday I found out that Randy Queen (artist of DarkChylde) filed a bunch of DMCA takedown notices to Tumblr to remove posts of his covers on this blog (the entire posts, not just the images). I’ve also gotten messages from other users that he’s had their stuff removed too (redraws, etc that have been featured here). Non-critical Tumblr posts of his art/covers and those praising his work appear to be unaffected. The folks behind Escher Girls apparently aren't inclined to fight it (and even say they don't wish to pick a fight with Queen), but are just informing people of what's going on. Still it is troubling. It's worrisome that Queen appears to be abusing the DMCA in this manner. It's unfortunate that Tumblr just gave in. It's disappointing that Escher Girls apparently isn't even going to file a counternotice. The end result is the same again: copyright is being used for censorship of criticism, rather than as an incentive for creativity.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
On Friday, we wrote briefly about President Obama's "admission" that "we tortured some folks." At the time I was going off of the press reports of the conference, but now that I've read the full transcript of his statement, it's much worse than just that brief comment. Here's the relevant portion: With respect to the larger point of the RDI report itself, even before I came into office I was very clear that in the immediate aftermath of 9/11 we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it's important when we look back to recall how afraid people were after the Twin Towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen, and people did not know whether more attacks were imminent, and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. And a lot of those folks were working hard under enormous pressure and are real patriots. It was the "we tortured some folks" that reasonably made headlines, but the following paragraph, in which he tries to brush it off, is what's really troubling. Imagine any other crime, and think about whether or not you'd have someone say it was okay because there was "enormous pressure" on the people committing the crime. Imagine any other crime, and being told "not to feel too sanctimonious" because of what a "tough job" any other criminal had. I'm sorry, but I don't care how much pressure anyone was under, plenty of people who are actually "real patriots" know that you don't torture people. Not only does it not work, it's morally reprehensible. "You don't torture" is a pretty straightforward concept -- and one that was pretty clearly known and articulated prior to all of this. Nothing that happened on 9/11 or in the aftermath magically made war crimes like torture okay. Those aren't "patriots," and defending them because of the "pressure" they were under is an incredibly cowardly and disgusting move.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
On Friday, we wrote about Senator Dianne Feinstein's concern about how much of the executive summary of the Senate Intelligence Committee's report on the CIA torture program had been redacted during the declassification process. In response, Director of National Intelligence James Clapper has angrily shot back that there were only "minimal" redactions: More than 85% of the Committee Report has been declassified, and half of the redactions are in footnotes. The redactions were the result of an extensive and unprecedented interagency process, headed up by my office, to protect sensitive classified information. We are confident that the declassified document delivered to the Committee will provide the public with a full view of the Committee’s report on the detention and interrogation program, and we look forward to a constructive dialogue with the Committee. Compare that to Feinstein's statement, which noted: A preliminary review of the report indicates there have been significant redactions. We need additional time to understand the basis for these redactions and determine their justification. Reporter Jason Leopold spoke to some people knowledgeable about the redactions, who said that they were about methods of torture that hadn't been revealed... and about countries that helped the CIA. Basically, more stuff that would embarrass the CIA and certain allies, but which wouldn't actually impact national security today. Two officials with access to the declassified executive summary told VICE News that some of the redactions allegedly pertain to the manner in which the detainees were held captive, and to certain torture techniques that were not among the 10 “approved” methods contained in a Justice Department legal memo commonly referred to as the “torture memo.” The officials said the never before–revealed methods, which in certain instances were “improvised,” are central to the report because they underscore the “cruelty” of the program. Some other redactions allegedly pertain to the origins of the program and the intelligence the CIA collected through the use of torture, which the Senate report claims was of little or no value — a claim with which the CIA disagrees. Another US official told VICE News that the CIA “vehemently opposed” the inclusion of some of the footnotes because they allegedly revealed too many “specific” details about the CIA’s operational files, which evidently contain information about foreign intelligence sources and operations, and provide clues about the foreign governments that allowed the CIA to operate its torture program in their countries. (The National Clandestine's Service's operational files are protected from public disclosure and open records laws.) The report, according to the US official, identifies the countries where the suspected terrorists were held as “Country A, Country B, Country C.” Of course, if we're going to "come clean" on this black spot in our history, it would help to really come clean about it. Hiding that the torture the CIA did was much worse than originally thought means that officials still aren't willing to come to terms with what the CIA did.Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Gideon, the pseudonymous public defender who blogs at A Public Defender, has a thorough rundown of a very disturbing ruling recently issued by the Connecticut Supreme Court. It involves every Connecticut citizens' civil liberties, which have now been thrown under a bus bearing the name "officer safety." The court's decision basically makes everyone a suspect, even if they're suspected of nothing else than being in the relative proximity of someone a police officer suspects of committing a crime, or someone simply "matching the description." How does this work in practice? Gideon posits a single scenario, as interpreted by the person being (wrongly) detained and those doing the actual detaining. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom? The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”. As always, this situation becomes your word against theirs. But the court has now placed even more confidence in "theirs." Your version is that you just happened to be in the vicinity of someone the police are expressing interest in. Their version is that anyone within eyesight is probably either a) an accomplice or b) a threat. And it gets even worse. The police can be completely in the wrong and still be covered by this ruling. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you. This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. So, police can be targeting the wrong person and sweep up anyone who happens to be in the vicinity and still be immune from the consequences. In essence, the court gives police the ability, if not the actual right, to detain anyone at anytime for no reason at all. How did the court manage to arrive at this bizarre rights-trampling ruling? Well, it had to do a whole lot of re-imagining of the actual events using the most paranoiac of police officers' mindsets. As Gideon points out, he's never seen the court engage in such a thorough retroactive fact-finding mission -- one that involved massaging the facts until they conformed with the court's preferred outcome. From the majority opinion: The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found. Explained in plain English by Gideon, who has been following this case as it has progressed through the system: In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it. The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court. The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation. It doesn't add up, but the court fudged the math. Officer safety trumps rights because credible threats are credible even when they're not threats (a probation violation rather than an "armed and dangerous" suspect) and even when they're not credible (no witnesses stating anything to the effect of "armed and dangerous"). The dissenting opinion shows just how dangerous this ruling is. I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. This is a law enforcement blank check. This allows police to use spurious reasons to detain people they just don't want around -- like eyewitnesses and photographers. This allows police to perform en masse detentions and gives them the opportunity to root around from something more than weak obstruction/interference charges. This eliminates the public's right to live their lives unmolested by law enforcement officers. This makes simply existing "guilt by association." If a criminal is arrested in your yard, you and everyone in your house and every rubbernecker on the street can be detained by officers in order to ensure their safety. Just as troubling is the amount of creative thinking the court had to engage in to reach this horrific decision. Facts are no longer facts. Facts are just something to be considered or discarded at the court's whim. It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal… Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority? The Connecticut Supreme Court has delivered its public into the hands of a police state. Anyone, anywhere can be detained for absolutely no reason at all, and when they complain or file lawsuits, this ruling will allow officer safety to override all other concerns. If any facts are actually considered, they'll be filtered through law enforcement sensibilities. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
This week, we were very happy to have a guest post from Jennifer Hoelzer explaining the impact that Techdirt can have in Washington. Not only was it a popular post, Jennifer took both first and second place for insightful this week with her followup comments. Firstly, there was a very thorough response to someone who claimed her story demonstrated the need for lobbyists to "educate" congressional staffers: With all due respect, sir, I worked on Capitol Hill for 10 years, the White House for 2 and I have a masters degree in public policy from Harvard. I've been subjected to so much spin in my life that I can spot it at 100 paces blindfolded. I wouldn't be a very good communications strategist if I only read/considered issues from one perspective. Unlike some who's strategy for winning debates is to silence their opposition, I actually work to understand the opposition's side, so I can understand their thinking, address their concerns and counter their arguments (and maybe change their minds.) Maybe it's not the textbook definition, but I define "public advocate" as someone who advocates for interests beyond their own. I'm not saying those people won't benefit from their advocacy (most public interest advocates got involved because of a personal experience) but that they're thinking of others, the future, etc. not just how to protect/grow themselves financially at the expense of the interests of others.. Techdirt continued its SOPA/PIPA advocacy even when it hurt them financially. And -- as I said -- that's the problem with public advocacy. While a special interest lobbyists could be making high six figures to devote themselves to making sure members of Congress understand their client's interests, most people who advocate for the public interest do it on their own time, for free. I don't know about you, but I think if we want to fix society/congress, etc. we need to find a way to make doing good just as profitable as screwing people. (Or at least a little profitable.) Also - for the record - as I tried to explain in my post, Members of Congress and their staff are more likely to take a stand on an issue when they are confident in their knowledge of an issue. I might know that a lobbyist is spinning me, but I'm probably not going to pick a fight with them publicly unless I know enough about the issue to debate them. And - as I tried to explain -- there is so much going on that, you, as a staffer, might say to yourself. "When I get some time, I'm going to research that issue," but then you get so busy that 6 months later, you're like "shoot, I really wanted to learn about that, but now the debates over." I loved Techdirt because it gave me the user perspective on tech issues, that wasn't being represented in Washington, in an easily digestible and understood way. Understanding the issue made it possible for me to jump on communication opportunities in real time vs. backburnering them until I could learn more. Again, that's why I'm giving to Techdirt and I hope others will too. Next, Jennifer had a short and poignant take on why defeatism gets you nowhere: Two days before the Jan. 2012 Internet protest, I had a reporter ask me why our office was fighting SOPA/PIPA so hard because "Won't it be embarrassing when you guys lose." As Ron Wyden once told me, "the right thing to do may not have much of a chance, but it has zero chance if no one fights for it." For editor's choice on the insightful side, we start with a response to Amazon's analysis of price elasticity for ebooks. While Amazon's data reinforced an important point, That One Guy pulled some additional numbers to show how Amazon may not have gone far enough: Some extra numbers regarding lower price points While Amazon notes that the increase in sales between 14.99 and 9.99 is significant, and actually earns the author more when priced lower, a year or so ago Smashwords, another ebook seller, did their own study, and found that the real sweet spot is in the 3-3.99 range, which, according to their data, sells at a rate of 4.3 times more than a book priced at $10(funnily enough the 2-2.99 range only sells at 4.1x comparatively). Assuming that figure holds up in both indie, and 'professional' ebook markets, if the authors really wanted to rake in the cash, and increase their audience size, they'd be pushing the publishers to slash their (currently insane) prices even lower. Source: http://blog.smashwords.com/2013/05/new-smashwords-survey-helps-authors.html Next, we've got Mason Wheeler with an attempt to hammer home the message that content isn't everything: The industry's idea is "content is king." They've thought that forever, and they've been wrong about it forever. Content is fungible to the point of irrelevancy; get rid of one piece of content and another will show up to take its place. The true king is connectivity. Create a platform that allows people to interact with each other, and content will arrive to fill it. This has been true since the days of the Pony Express. Create content, and nothing interesting to do with it, and nobody will care. Connectivity is king. Content is just riding its coattails. Always has been, always will be. Over on the funny side, we start out with Verizon's attempt to spin its bandwidth throttling as a wonderful new feature. Bt Garner took first place for funny with a simple but illustrative response: I am still waiting for the comments to load. Sent from my Verizon iPhone For second place, we head to the seemingly-too-ludicrous-to-be-true story of the language school that fired a blogger for discussing "homophones". Lots of people unsurprisingly had jokes to make, but Chronno S. Trigger racked up enough votes to land in second place for funny (plus a lot of insightful votes, too): It's a language school. Aren't they suppose to teach the difference between "Homophones" and "Homophobes"? For editor's choice on the funny side, we've got two responses to two different bits of news from across the Atlantic. First, in a discussion about the European Commission's revelatory consultation about copyright and reform, MadAsASnake suggested a means of determining whether the length of current copyright terms are justifiable: A better test would be to demand that someone who died 70 years ago explains how it benefits him. I'm prepared to accept it if he/she can come up with a really good reason. And finally, after a UK government report suggested doing away with anonymity online, silverscarcat took a guess at just why it makes them so nervous: Well, it's the UK... The last time they let anonymous speech run rampant, they lost 13 colonies. That's all for this week, folks! Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Five Years Ago: This was the week of the original Joel Tenenbaum trial, one of the only two (out of tens of thousands of people sued) that the RIAA actually took to court for file sharing. As we've explained, both Tenenbaum and the other defendant in the other case, Jammie Thomas Rasset, were horrible defendants who should have settled. The Tenenbaum case was a total disaster as it turns out that he flat out lied (don't do that). Even worse, his legal team was a complete trainwreck that seemed to have little real strategy. They appeared to bet the farm on a fair use defense that was always a ridiculous long shot (and I'm a big believer in fair use). When the court rejected the fair use argument right upfront, Team Tenenbaum appeared to have no real Plan B, leading to a total disaster of a trial, in which they failed to do the most basic things, like have an economic expert on hand to testify about the (lack of) damages. Given all that, it was no surprise that Tenenbaum lost and lost badly, being tagged for $22,500 per song, or a total of $675,000. The case went through various appeals, all of which failed. It was a bad case from the start and it never should have gone forward. Meanwhile, we had a fun guest post from Amanda Palmer about how fans want to support artists. The family of a (deceased) artist in Denmark went after a town in Michigan that put up a statue very loosely based on the artist's own statue... which itself was based on a Hans Christian Anderson story. Oh, and Barnes & Noble claimed that it had to put DRM on public domain books to "protect" the copyright on them. Got it? We had some misguided lawsuits. A company in France sued Google because Google Maps is free, and that was unfair competition. Taser, makers of the famed stungun technology, sued Second Life because someone had created a virtual Taser. Speaking of misguided: AT&T apparently blocked parts of 4chan. That's generally not a good idea. On the patent front, this was our first mention of someone trying to claim a patent on podcasting. And we discussed how the failure of Segway to take over the world was a good demonstration of how people overvalue ideas and undervalue the execution (or, overvalue the invention and undervalue the innovation). Meanwhile, Barry Diller declared that "free content is a myth" and so we declared that he was a myth, noting that both claims were equally accurate. And, on that note, professional troll/reporter Dan Lyons argued that Facebook, Twitter and YouTube should all start charging. Because obviously that would have helped their business models. Ten Years Ago: People were expecting the iPhone... but they'd have to wait three more years. Instead, they got... a really crappy Motorola phone with a slimmed down version of iTunes. You may not remember it now, but it was a big deal the day it was announced, when they thought it was a fabled "iPhone." And then everyone realized it sucked. And the carriers killed it. And then everyone waited three more years. Speaking of mobile operator idiocy, we were telling them to stop locking down their phones. Seems relevant this week, seeing as President Obama officially signed into law (just yesterday) a bill to legalize (for now) phone unlocking. Meanwhile, people were just getting used to this whole texting business, leading some to fret about how it was ruing family trips because kids spent the whole time texting. Of course, these days, texting on vacation can be kinda handy to keep tabs on folks. We were curious about the foolish people who respond to spam. An off duty cop decided to mace a couple in a movie theater for answering their phone. And the website JibJab was threatened for doing a parody of "This Land is Your Land," despite the fact that Woody Guthrie famously explained his view of copyright as follows: "This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do." Fifteen Years Ago: Universal Pictures was threatening a site called movie-list.com for linking to their site. No joke. The site still has the rather incredible communications exchange between the two. Here's my favorite line from a lawyer at Universal: As other Universal representatives previously explained to you, you are not permitted to link to other sites that contain our copyrighted material without our authorization. Not only is this activity another violation of our intellectual property rights, it also violates your internet service provider's terms of service. Movie-list, for what it's worth, helped promote movies, posting their trailers and linking to the movies' own websites. Universal first demanded all the trailers be removed (which the site complied with) and then sued over the links. Perhaps even more ridiculous was the guy's ISP, who apparently freaked out when Universal contacted them. Check out this email his ISP sent to the guy who ran movie-list: You are not a registered search engine, therefore you cannot consider yourself under the same guidelines. Universal HAS contacted us at this time. The situation is now that you must abide WHATEVER Universal insists upon. If not, we will have no choice but to suspend your site. We are bound to do so legally. Please comply with them IMMEDIATELY Yes, back 15 years ago, it was the age when many people still thought that "deep linking" was illegal. It took until the following spring for a lawsuit to finally make it clear that linking is not infringement. Meanwhile, this was the middle of the dot com bubble era -- and one startup was trying to IPO before it even launched because its entire business model was based on giving away its stock to users (uh, yeah). Even those crazy days, people who jumped head first into the startup game were discovering it isn't as easy as it looks. Meanwhile, Microsoft was kicking off an effort to become more well-liked in Silicon Valley (this was back in the bad old days when I didn't write very complete articles, so I never named the guy whose job it was to make Microsoft likeable, and the original article appears to be gone). Oh well. Oh, and because some things never, ever change, we also wrote about the US government offering tax incentives to companies to provide backdoors in the encryption schemes they used. Twenty-Five Years Ago: We weren't publishing yet, but Robert Morris was ridiculously indicted for the Morris Worm this week. While it did take down the internet, it was never meant to be a malicious attack. Yet Morris was indicted under the (then relatively new) CFAA, becoming the first person indicted under that law. He was eventually sentenced to 400 hours of community service, 3 years of probation and a $10,050 fine -- all because his attempt to measure the size of the internet went haywire. He was the first victim of idiotic prosecutions under the CFAA, a law that still hasn't been fixed despite many others facing bogus charges. Morris went on, of course, to help found YCombinator, though he's remained mostly out of the public eye. Either way, this should be yet another reminder that it's time to reform the CFAA.Permalink | Comments | Email This Story

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posted 28 days ago on techdirt
Over at the Verge, Nilay Patel (who just recently returned to take over the place), had a great idea: asking the readers there what makes them share something on the internet, noting that he thinks that site can do better than just trying to game Reddit and Facebook for votes and likes. While I'm sure there's some overlap in readership, and we could just read what those guys say (and we will), Techdirt is obviously a different kind of site, with different types of stories, so I'm not entirely sure what is said there will apply to us. Furthermore, I wanted to slightly adjust the question for folks here. I'm curious what makes you tell others about Techdirt itself, or any of it's stories. I'm less interested in what makes you share "something" on the internet, because the answer to that question may sometimes be "more clickbaity stories," and we've never been about that (nor will we be). The focus here is on what we do that really gets you, our community, so interested in Techdirt (or in a particular story) that you share it with others -- either in person or online. And while I'm at it, I might as well ask what makes you comment on a story? We've pointed out for years that, even though people always assume this, the number of comments does not correlate well with the amount of traffic a story gets (often because long comment threads are just a couple people arguing back and forth). Also, I know that there are many lurkers who never comment, and that's great too. But since we're having a conversation, it seemed worth discussing. We have our data on which stories do well, but even then it's something of a mystery. There are stories I swear will go absolutely viral, which it seems like everyone winds up skipping over. There are stories that I think are probably "space fillers" for slow times, which then go insane and hit the top of Reddit. I've written over 45,000 posts (and others have written many more on Techdirt) and my ability to predict which stories you guys will really like versus which ones will elicit a giant "meh" is still fairly weak -- though it is something I think about. Nilay's post made me realize that, duh, I should just ask you guys -- though it's entirely possible you don't quite "know" either. Still, it seems like it should be an interesting discussion... Just as Nilay says, there are no "wrong answers" here. It would just be helpful to us.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
We've written a bunch about Larry Lessig's MayDay SuperPAC and its crowdfunded attempt to elect politicians who promise to change the way money in politics works. And many users also pointed to Wolf PAC, which is another high profile political action committee committed to dealing with the issue of money in politics. Now another such PAC has been announced, kicked off by some more Silicon Valley folks, called CounterPAC, the focus is on getting candidates to take a pledge not to accept so-called "dark money". It's based on the (mostly successful) pledge that Senate candidates Elizabeth Warren and Scott Brown took in the 2012 Massachusetts Senate race, that if any such group spent money on their campaigns, the campaigns would give a similar amount to charity. As CounterPAC notes, the pledge was a success: It worked. Outside spending was drastically reduced to merely 9% of total spending in contrast to upwards of 60% in other states. CounterPAC’s mission this year is to get as many candidates as possible to agree to a similar pledge rejecting untraceable dark money. CounterPAC was apparently put together by a bunch of Silicon Valley folks, including (currently on leave from Google) Matt Cutts (who I know a little bit, but had no idea he was doing this), Ethan Beard from Greylock, well-known Silicon Valley lawyer Ted Wang and some others. It was officially started by Jim Greer (who ran the site Kongregate) and Zack Booth Simpson. Who knows if any of these approaches will be successful, but it's encouraging to see people trying to do something different, rather than just complaining about things and being cynical and defeatist. Part of the Silicon Valley world is that you need a lot of experiments to see what works, and here's another one to throw at the wall.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Processed foods are everywhere. They're quick and easy, as well as mighty tasty because they're designed to hit the perfect combination of salt, sugar and fat our bodies crave. Unfortunately, few things are actually perfect if you look closely enough. Common food packaging frequently lists ingredients that sound like a nightmare chemistry exam you haven't studied for, and preservatives aren't all that appetizing even if you can't taste them. Here are a few links on food additives that you may or may not think are scary. If you can't pronounce azodicarbonamide, then you probably don't think it should be in your food (or yoga mats, either). But the dose makes the poison, right? So, url] New food additives are increasingly coming from natural sources. Natural sources for blue food coloring aren't easy to come by, but there's an FDA-approved extract from a cyano­bacteria that's blue. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Comcast is a monopoly. The question is, how much of a monopoly is Comcast, and how much of a monopoly will it be after it absorbs Time-Warner Cable (TWC)? To help quantify market influence, economists use the Herfindahl–Hirschman Index (HHI), a metric that is calculated by adding the squares of the market shares of every firm in an industry. HHI produces a number between 0 (for a perfectly competitive industry) and 10,000 (for an industry with just one firm). Using HHI, antitrust law puts markets into three categories: Unconcentrated Markets: HHI below 1500 Moderately Concentrated Markets: HHI between 1500 and 2500 Highly Concentrated Markets: HHI above 2500 For HHI calculations, the question becomes: a percentage of what market? Discussions of the Comcast-TWC merger have often noted companies' shares of both the broadband and cable TV markets are comparable. Although their market shares in Internet and TV are similar, the difference in importance between the two markets cannot be overstated. Residential broadband is how every person reaches the Internet. In time, the Internet will become the way to reach almost all content. By contrast, cable television is close to being an anachronism. Companies like Netflix, Amazon and YouTube (Google) already provide most of what cable television offers. In addition, new technology—Internet technology—allows much greater flexibility in the content consumers choose. Consumers do not need to subscribe to individual channels or watch advertisements—at least not to the extent they used to. Because of how important the Internet is, the Comcast-TWC merger is primarily about broadband, not cable television. So the question is, what share of the high-speed Internet service will Comcast have? According to Free Press, Comcast-TWC would have 47% of truly high-speed broadband service. This figure is extremely conservative. It ignores that the Comcast-Verizon duopoly has many methods at its disposal—most importantly, dividing up geographic markets ("I'll take Philadelphia, you take New York") and dividing up entire industries ("I'll take residential broadband, you take wireless"). Comcast's CEO has admitted that Verizon FiOS is Comcast/Time-Warner's only competitor in high-speed Internet service. And, Comcast has admitted that it has 40% of the high-speed broadband market. Comcast-TWC would have a subscriber base that reached 70 million, and, according to CableTV.com, Comcast-TWC service would be available to 70% of the United States. According to WSJ, More than 61% of consumers would have one cable company serving them. These figures do not take into account regional dominance, which means that they dramatically underestimate the limited consumer choice and market consolidation across industries. Competition (or lack thereof) in geographic markets is extremely significant. Here, by Comcast's own admission, pre-merger Comcast and Time-Warner did not compete in any markets. In addition, Comcast's national market share does not take into account market share in related markets—which present additional anticompetitive harms, but are not factored into the HHI calculation. For Comcast, its market share ignores its interest in Hulu, NBC Universal, and other content industries. In addition, Comcast ties its high-speed broadband connections to cable television and landline phone service—another factor not taken into account in the HHI calculation. Recall that markets with a Herfindahl–Hirschman Index (HHI) between 1500 and 2500 are problematic; above that, the market is consolidated. Therefore, Comcast's admission of 40% market share automatically puts the Internet service market into the middle category of a "moderately concentrated" industry. In other words, without factoring in the market share of Comcast's competitors, and using Comcast's own figure, there is still limited competition in high-speed Internet service. This market share calculation also ignores the effect of dominating local markets, the tying of television and phone service, and the business interest in competing content industries. In short, a raw calculation of market share ignores market power. Comcast has argued that—regardless of the competitive landscape in Internet service and cable television—the merger will not result in "merger-specific" harm. That is, the Internet may already be monopolized, but allowing it to acquire Time-Warner Cable will not make it any worse. When analyzing merger-specific harm, antitrust law puts substantial weight on whether a "significant" competitor will be eliminated and how the merger will affect market concentration: Mergers resulting in highly concentrated markets that involve an increase in the HHI of between 100 points and 200 points potentially raise significant competitive concerns and often warrant scrutiny. Mergers resulting in highly concentrated markets that involve an increase in the HHI of more than 200 points will be presumed to be likely to enhance market power. The presumption may be rebutted by persuasive evidence showing that the merger is unlikely to enhance market power. According to conservative estimates, Time-Warner has about 13% of broadband customers in the U.S. That means that the increase in HHI resulting from the merger is 169 points. According to the Merger Guidelines, Comcast's acquisition of Time-Warner Cable would "raise significant competitive concerns and warrant scrutiny," even if Comcast didn't have dominant market share (which it does). Scrutiny of the deal reveals that Comcast-TWC would have significant leverage in other industries: cable television, content (such as sports), and phone service. Acquisitions involving a firm with a majority stake are almost always anti-competitive, because, by definition, they occur in a concentrated industry and result in the largest firm gaining market share. When a merger between smaller competitors occurs, it is less likely to be anti-competitive. The best examples of this distinction between dominant-firm acquisitions and non-dominant firm mergers are the Comcast-TWC, Sprint-T-Mobile, and AT&T-DirecTV transactions. Comcast and Time-Warner are the two largest firms in both residential internet service and cable television. By contrast, Sprint and T-Mobile are second-tier competitors, with the third and fourth highest market share in the mobile market, respectively. And the proposed consolidation of AT&T-DirecTV, like the Sprint-T-Mobile transaction, does not result in the elimination of a significant competitor; rather, it unites companies that primarily operate in different, though related, industries. The AT&T and Sprint transactions still require scrutiny. With AT&T and DirecTV, there is a concern that AT&T will leverage its position in the wireless and broadband industries to expand DirecTV's U-verse video service. And, Sprint's acquisition of T-Mobile has raised concerns that consumers will see higher cell phone bills because T-Mobile will stop undercutting prices and paying to buy out its customers' contracts. Still, because AT&T and Sprint do not have market power across multiple markets, the acquisitions of those companies pose a lesser threat to consumers. By contrast, a Comcast-TWC transaction unites companies that dominate across multiple markets. A more liberal, and perhaps more accurate, way to calculate Comcast-TWC's market share is to reverse-engineer it by subtracting its competitors' share from 100. Susan Crawford, citing Verizon, calculates that FiOS serves 14% of the country. Tim Wu calculated that Verizon FiOS has 8% market share (Google Fiber has 1%). (Crawford and Wu may both have calculated accurate figures. Crawford was calculating "coverage" or "service" area; Wu was calculating actual subscribers.) Comcast and Time-Warner's combined market share in the extremely important Internet service market could be 75% or more. Comcast's competitors may have less than 10%, depending on how you define "high-speed" broadband. It doesn't take a mathematician or an antitrust scholar to know that consumers are losing. In sum, a straightforward application of antitrust law says the merger is in a highly concentrated market posing an extraordinary danger to consumers. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
Last May, in President Obama's big speech at the National Defense University -- where he tried to establish his legacy as being the president to "end" the US's role in wars in Afghanistan and Iraq -- he did admit to the fact that the US "compromised our basic values -- by using torture to interrogate our enemies." That admission got somewhat lost in the wider scope of what he was saying, and thus, to this day, many government officials still refuse to call the CIA's torture program "torture." However, at a press conference today, President Obama appeared to more breezily admit to it by noting "we tortured some folks." That seems like a... rather informal way to talk about war crimes, committed by the US government, which Obama himself refused to do anything about. Again, we feel the need to remind people that the only person in jail concerning the CIA's torture program... is the guy who blew the whistle on the program, John Kiriakou. And, of course, the obedient White House press corps that Obama was speaking to didn't seem to probe. As Conor Friedersdorf points out, a good question a reporter might have asked in response would have been: How many people who were involved in torturing "folks" are still employed at the CIA? Meanwhile, the president also said that he completely stands behind CIA director John Brennan, even following the revelations of the spying scandal (and, more importantly, Brennan's lies about the scandal). “I have full confidence in John Brennan,” Obama said in a White House press conference. “I think he has acknowledged — and directly apologized to [Senate Intelligence Committee Chairwoman] Sen. [Dianne] Feinstein — that CIA personnel did not properly handle an investigation into how certain documents that were not authorized to be release to the Senate staff got somehow into the hands of the Senate staff. “It’s clear from the [inspector general] report that some very poor judgment was shown in terms of how that was handled," Obama added. "Keep in mind, though, that John Brennan was the person who called for the IG report, and he’s already stood up a task force to make sure that lessons are learned and mistakes are resolved." Yes, but John Brennan also angrily insisted that no spying was done (multiple times) and claimed that it was the Senate staffers his CIA employees were spying on who had broken the law, and even referred them to the DOJ for possible criminal prosecution -- all without any basis at all. Brennan hasn't shown that he's interested in "learning lessons" or "resolving mistakes." He took a reflexively bogus position, lying to defend the CIA. And this isn't the beginning. Much of this came about because of Brennan's earlier attempts to shred the Senate Intelligence Committee's report on how "we tortured some folks" by insisting it was inaccurate. It was only when the Senate Intelligence Committee was given (apparently by accident) an internal CIA report that confirmed their own findings, that Brennan was questioned about this, leading the CIA to start spying on the staffers. This isn't the kind of thing you just wave away. All of this -- the torture, the coverup, the lying and the spying -- are pretty big deals. And it's immensely troubling that the insider DC response seems to be "eh, a few mistakes were made, but it's okay."Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
As we should all know by now, any potential moral qualm, whether minor or major, is roughly infinitely worse if you add these magical little words to it: "on the internet." Oh yes, people, don't you dare be confused. Prostitution, drug-dealing, and ghost stories are all bad, but if they're on the internet then we must all wage sanctimonious political jihad against them. Left out of the above examples is internet gambling, the process by which people who probably can't afford to lose their money hand it over to other people in games of chance in which the odds are stacked firmly against the former. But, while most (all?) states in our glorious union operate a lottery, and many others are home to horse/dog tracks, OTBs, and some flavor of casinos, online gambling is treated as the stuff of nightmares. This has resulted in misguided applications of legislation to shut down internet sports and poker gambling sites, all dressed up as an effort to create a more moral nation, when it's really all the result of heavy lobbying by terrestrial casinos. Somehow, the DOJ's crusade against gambling sites had reached a lull as of late. A couple of folks in Congress aim to change that with a sternly-worded letter to Eric Holder. “We must act before we find virtual casinos making gambling pervasive in our society, invading living rooms, bedrooms, and dorm rooms across the country; a result we know the DOJ does not want to see,” the letter said. The letter was signed by Sens. Lindsey Graham (R-S.C.), Kelly Ayotte (R-N.H.) and Dianne Feinstein (D-Calif.), who earlier this year introduced a bill that would overturn a 2011 DOJ opinion that opened the door to online gambling. Thank goodness for the nanny state, here to save us from doing...well...stuff we want to do. I love the entire concept behind this now-publicized letter to the DOJ, which essentially says: "The common people are lowly animals and if you let them gamble with their money, instead of doing the sensible thing and gamble invest it in Wall Street, the moral fabric we have woven for these plebes will unravel like it was a Weezer song." Here's my counter-argument: go to hell, Congress. A government this bad at spending the money they take from me probably shouldn't be waxing on about how I spend what they graciously allow me to keep. Lindsay Graham in particular simply doesn't get to make this argument, given his love of shilling for land casinos on a manufactured moral wave. In March, Graham and Rep. Jason Chaffetz (R-Utah) introduced a bill — backed by GOP megadonor and casino magnate Sheldon Adelson — to restore the pre-2011 DOJ interpretation of the Wire Act. In their letter this week, the senators wanted [sic] that the 2011 ruling if “left on its own, … could usher in the most fundamental change in gambling in our lifetimes by turning every smart phone, tablet, and personal computer in our country into a casino available 24 hours a day, 7 days a week.” Right! Those people should instead by driving to Sheldon Adelson's casinos to do all that same gambling that gives these congressmen the heebie-jeebies. That's the thing about trying to use morality as a basis for legislation: you had damned well better be consistent or you end up looking like a freedom-jacking bag of lies. All the more so when you're talking about telling the American people how they're allowed to spend their money. Permalink | Comments | Email This Story

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posted 29 days ago on techdirt
We've been following the case of Adel Daoud for a little while now. He's one of the many people arrested for "terrorism" in one of the FBI's dozens of "home grown plots" in which they create their very own terrorist plot, dupe someone into "joining" and then arrest (and then relish in the headlines about stopping a terrorist "plot" that was never a real plot in the first place). In Daoud's case, the made up "plot" involved blowing up a Chicago bar. But the Daoud case got a lot more attention, because in the big "debate" over the renewal of the FISA Amendments Act (FAA) in late 2012, Senator Dianne Feinstein directly described the Daoud "plot" as an example of why the FAA and Section 702 were necessary. Here's what she said: There is a view by some that this country no longer needs to fear attack. I don't share that view, and I have asked the intelligence committee staff to compile arrests that have been made in the last 4 years in America on terrorist plots that have been stopped. There are 100 arrests that have been made between 2009 and 2012. There have been 16 individuals arrested just this year alone. Let me quickly review some of these plots. Some of these may arrests come about as a result of this program. Again, if Members want to see the specific cases where FISA Amendments Act authorities were used, they can go and look at the classified background of these cases. First, in November, 1 month ago, two arrests for conspiracy to provide material support to terrorists and use a weapon of mass destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They were arrested by the FBI in Fort Lauderdale, FL. The next case is another conspiracy to provide material support. Arrested were Ralph Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. These three men were planning to travel to Afghanistan to attend terrorist training and commit violent jihad; third, was a plot to bomb the New York Federal Reserve Bank; fourth, a plot to bomb a downtown Chicago bar; fifth, a conspiracy to provide material support to the Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack against the U.S. Capitol in February of 2012; seventh, a plot to bomb locations in Tampa, FL; eighth, a plot to bomb New York City targets and troops returning from combat overseas; ninth, a plot to assassinate the Saudi Ambassador to the United States; and it goes on and on and on. So I believe the FISA Amendments Act is important and these cases show the program has worked That caught the attention of a bunch of folks, because nowhere in Daoud's case had the government suggested it had obtained or used evidence via the FAA -- leading to serious questions about whether the government had been withholding evidence or if that evidence had been unconstitutionally obtained. Unfortunately, Daoud's attempt to get access to whatever evidence has been collected on him has been shut down by the courts. Judge Richard Posner issued a "supplemental classified opinion" to go with the original opinion we wrote about, but parts of that opinion have been released as well. Very large portions of it, however, remain totally redacted. What remains more or less says that the government did everything in a proper way and there were no constitutional problems. It also implies there was a ton of evidence pointing to Daoud's activities. However, what caught my attention in the unredacted snippets of the ruling is Judge Posner basically claiming that Feinstein's claims about Daoud's case involving the FAA didn't actually mean the FAA was used: The defendant's challenge relies primarily on a December 27, 2012 Senate floor speech by Senator Feinstein, who said: "There have been 16 individuals arrest[ed] just this year alone. Let me quickly just review what these plots were. And some of them come right from this program [meaning the FAA]. The counter-terrorism come[s] -- and the information came right from this program. And again, if members want to see that, they can go and look in a classified manner.... Fourth, a plot to bomb a downtown Chicago bar...." (emphasis added) (visited July 11, 2014). The referenced "plot" is obviously the defendant's, and because the Senator used the examples to support the reauthorization of the FAA, the defendant not unreasonably interpreted her remarks to mean that the FAA had been used in his case. But an equally reasonable interpretation of the Senator's remarks is that she was merely saying that the defendant was one of the 16 individuals who had been arrested in 2012, same of whom had been arrested on the basis of such information. The Senate's Legal Counsel confirmed in a letter to defense counsel that "Senator Feinstein did not state, and did not mean to state, that FAA surveillance was used in any or all of the nine cases she enumerated, including [the defendant's] case, in which terrorist plots had been stopped.... Rather, her purpose in reviewing several recent terrorism arrests was to refute the "view by some that this country no longer needs to fear attack.'" Reading the original quote, Posner is correct that before Feinstein lists the examples, she adds the caveat that "some" of them "may" have used the FAA. But she also concludes it by insisting that these prove that the FAA worked. If anything, this ruling highlights just what a disingenuous and deceiving speech Feinstein gave during the debate over the FAA. Any reasonable person listening to that speech would hear that and believe that this program (the FAA and its 702 surveillance program) was the key to breaking up all of those "plots." After all, the entire debate was about renewing the FAA. And yet, now it's quite clear that Feinstein was just listing out any and all "plots" (and even that is not really accurate since so many, including Daoud, were plots created by the FBI itself, meaning they never needed the FAA anyway), and falsely implying the FAA was necessary to break them up. Feinstein's scare-mongering over what would happen without a renewal of the FAA was a big part of why it passed, and as this ruling more or less confirms, she completely mislead others in Congress and the American public about it.Permalink | Comments | Email This Story

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