posted 25 days ago on techdirt
In late 2013, Microsoft launched Xbox Fitness for the then-new Xbox One. The fitness program leaned heavily on the Kinect motion sensor you'll recall Microsoft initially and ingeniously forced everybody to buy -- even though many users had no interest in the accessory. Xbox Fitness included 30 free training sessions, but also allowed users to pay significantly more for additional workouts, including shelling out $60 for P90X routines, to individual Jillian Michaels videos that cost users $12 each. These users likely assumed that once they bought these workouts, they'd be able to use them indefinitely. Those users apparently didn't get the memo that we no longer own the things we buy. Microsoft this week announced a "sunset plan" for Xbox Fitness users, informing them that in time, none of the content they bought will be usable. The 30 free core workouts included with the program? They'll no longer work after December 15. All of that content sold to consumers just a few years ago? It too will no longer work as of July 1, 2017:"As a service, Xbox Fitness has continually evolved since it launched on Xbox One, with new content and ongoing updates. Given the service relies on providing you with new and exciting content regularly, Microsoft has given much consideration to the reality updating the service regularly in order to sustain it. Therefore, the decision has been made to scale back our support for Xbox Fitness over the next year."Read: we made our money off of you, and now are refusing to put any more of it back into the platform we sold you. And by "scale back," we mean make the service and the content you thought you owned completely unusable. Microsoft informs annoyed customers it too is "saddened" by the news, as if this is some unavoidable natural tragedy like a death of the family goldfish we all have to weather in solidarity (sniff):"While our team is saddened by this news, we couldn’t be more proud of what we’ve accomplished in the past two and a half years. We released Xbox Fitness as a service with Xbox One on Day One and have since added custom content from well-respected trainers and have added new features such as Leaderboards, the option to download purchased workouts, and the option for users to play with or without Kinect." Needless to say, customers who shelled out potentially hundreds of dollars for a workout system they thought they could use indefinitely aren't consoled by Microsoft's "pride" and "sadness." Petitions have sprung up over at the Xbox feedback website urging Microsoft to rethink the announcement, or at least convert all of the content into a standalone app before shutdown. Except if previous issues of this type are any indication, Microsoft won't be willing to eat the costs required to make that happen. Instead, users will get a few platitudes and a pat on the butt before Microsoft marketing redirects their attention to something new.Permalink | Comments | Email This Story

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The Mighty Mug Stainless Steel Travel Mug keeps your beverages warm for 6 hours or cool for 12 hours and keeps you worry-free from spills. The Smartgrip technology fastens against flat surfaces to resist spilling even when you knock the mug, and it fits any car cup holder. Toss this 18 oz. stainless steel mug in the dishwasher at the end of the day and you're ready to go the next morning. The Mighty Mug is available in copper or silver and is selling for $19.99 in the Techdirt Deals Store. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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All aboard the schadenfreude express! It appears that when you base your business model on dubious litigation, you also to attract dubious litigators. (See also: Righthaven, Prenda Law.) So, this latest development in the Malibu Media saga -- brought to our attention by Sophisticated Jane Doe of Fight Copyright Trolls -- is perhaps less surprising than inevitable. Today Malibu Media (a litigation shell of a hardcore “barely legal” pornography producer X-Art), represented by its new counsel, Pillar Law Group, filed a lawsuit in Central District of California against its former counsel, Michael Keith Lipscomb and his firm, Lipscomb, Eisenberg and Baker (CACD 16-cv-04715). The problem -- or at least one of them -- appears to be that Lipscomb, like his former client, isn't a fan of sharing. I’m still reading the complaint, but it seems that Lipscomb at some point (last fall) stopped paying Malibu/XArt percentage of ransom settlement proceeds and kept weaseling when he was asked a direct question “where is the money?” Malibu Media employs a bit of kettle name-calling in the opening paragraphs of the complaint [PDF]: Plaintiffs are informed and believe and thereon allege that Lipscomb used LEB as a mere shell, instrumentality, and/or conduit of each other, and commingled assets by and between himself and LEB to such an extent that any individuality or separateness of LEB ceased. Yes, perhaps a little hypocritical of Malibu, considering it does the same thing on behalf of its porn production arm X-Art. Much of what's alleged appears to be the result of Malibu setting itself up to be burned. This complaint is its attempt to ice down the affected areas. What responsible company engages in this sort of behavior when suing people by the hundreds? Upon information and belief, at the inception of their representation, LEB never provided MM with a written and signed retainer agreement setting forth the standards upon which LEB would provide legal services to MM and bill for those services, including whether LEB’s fee would be on a contingency, flat fee, or hourly basis, and which contained provisions for charges and apportionment of settlement amounts and costs. Notwithstanding the lack of a written and signed retainer agreement, upon information and belief, MM would receive a fixed percentage of the total settlement amounts flowing from settlements. Upon information and belief, at some point the fixed percentage number changed and LEB also began to charge MM for the filing costs for new cases. "Information and belief" isn't nearly the same thing as a signed contract that contains both parties' signature and a clearly-denoted agreement as to how all of these aspects of litigation are to be handled. Malibu Media's pre-trolling preparations appear to be every bit as slapdash as the litigation that ensued under Lipscomb's control. What's also interesting is that Lipscomb -- and perhaps Malibu Media itself -- appears to believe the trolling business model was no longer viable. After a few months of supposedly stashing away funds for future litigation, Lipscomb reversed course, declaring this particular form of litigation to be a dead end. As Malibu demanded detailed documentation of the supposed war chest (engaging the services of Pillar Law, which is also representing it in this suit), Lipscomb informed the legal reps that Malibu's trolling days were over. In one email dated April 5, 2016, Lipscomb indicated that “Malibu is winding its copyright campaign down because it is no longer profitable.” On April 12, 2016, Lipscomb indicated in order for LEB to “wind down” the campaign, an “engagement agreement” would need to be signed. [...] In another email dated April 12, 2016, Lipscomb indicated that the type of litigation involved in the campaign was “incredibly sophisticated and nuanced” and also warned that “if the cases (or the steps in a wind down process) are mismanaged… Malibu will lose cases or be sanctioned by courts or both.” He warned in another email dated April 12, 2016 that “[t]here is enormous potential liability to [MM] if this is not managed correctly.” Lipscomb is only half right. Trolling is neither "sophisticated" nor "nuanced." It's half-junk mail, half-Ponzi scheme. However, much sophistication and nuance is needed to extricate trolls from lawsuits that go sideways. Without these, judges are angered and a quick, dirty moneymaker becomes nothing more than a surefire way to rack up sanctions and orders to pay defendants' legal fees. These emails weren't just Lipscomb being pragmatic about the situation. They were apparently also useful in buying him time as he dodged requests for detailed info on where Malibu's money was. He also sent over an agreement that would allow him to exit the trolling enterprise mostly intact, with his only liability being "malpractice going forward" from the date of agreement. In a final indignity (at least according to Malibu Media), he withdrew from an ongoing case, forcing it to scramble to find replacement representation "within 21 days." Three weeks might seem like plenty of time, but Malibu's increasingly-poisonous reputation likely preceded it. It failed to obtain a new lawyer in time and the judge awarded a default judgment to the plaintiff -- including nearly $160,000 in legal fees. Malibu Media claims Lipscomb violated Florida bar rules by not providing it with a contingency agreement or itemization of costs claimed. That may be true, but Malibu is equally to blame (although not under rules governing the state bar) for moving forward with Lipscomb/LEB without demanding something resembling an actual contract first. Lipscomb may be hit with fees and sanctions for violating this code of conduct, but Malibu should really have to live with the consequences of its own actions. It can't even sue for breach of contract because there was apparently no contract in place during this whole debacle -- something that allowed Lipscomb to "rewrite" the terms at whim. It remains to be seen if Malibu is actually winding down its trolling side business. No new lawsuits have been filed since April 20, which appears to indicate Lipscomb's assertions about the end of the trolling era are true. Of course, Malibu Media has been running without a legal rep in these cases since that point, so it still may be interested in pursuing more copyright infringement litigation once it has "retained" (and that's in quotes because Malibu Media doesn't appear to know how to correctly retain a lawyer) new representation. However, it could be the $160,000 default judgment is a hurdle it can't overcome, especially since it's likely still months or years away from extricating any funds from its former representation -- and that's assuming there's anything left to take once this whole thing plays out. Permalink | Comments | Email This Story

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Sudhir Yadav appears to be a bundle of contradictions. He claims to be a "right to information" activist, yet he's now trying to stomp out encryption. He argues that he's addicted to WhatsApp, but he wants the Indian Supreme Court to ban it. He's filed a "public interest" lawsuit with the Supreme Court arguing that (1) he's addicted to WhatsApp because of its recently implemented end-to-end encryption and (2) that it should be banned because bad people might use it to, you know, plans raves and stuff: Yadav claimed that he has only filed the petition because recently introduced WhatsApp encryption makes it impossible for the government to intercept and read messages exchanged between “suspicious people”. “I know WhatsApp is a great app and I spend hours on it but this is about you and me,” he said. “If we know that information on drugs and rave parties is going through WhatsApp and the government can’t decrypt these messages, then it’s harmful to the country.” And, yes, he also tossed in the "fear! terrorists!" argument as well, because of course. And it's not just WhatsApp. He also wants a variety of other messaging platforms, such as Telegram, Hike and Viber, banned for using encryption (even though the implementations on many of those platforms is questionable). Of course, we don't need to go through all the reasons why this is dumb. Strong encryption is much more likely to help protect the private information of the general populace from people looking to do bad things with it than it is to help terrorists in their planning. Could terrorists use it? Yes, just as terrorists can use other neutral, but important technologies for bad purposes. But we don't go and ban them entirely just because they can be misused. Meanwhile, Yadav is making this out like he's being selfless in being willing to give up his WhatsApp: “I love WhatsApp but I will have to find an alternative if it’s banned," he said. "I don’t know if there is an app that good but I will keep looking.” And what happens if SC decides that his petition doesn’t have enough merit? Yadav said that he will simply go back to using WhatsApp. “I can’t do much if the SC thinks it’s not harmful for the nation’s interest. It’s not a personal issue, it’s a national issue so my usage won’t be affected.” It's a national issue for you to try to undermine the safety and data protection of hundreds of millions of people? Really?Permalink | Comments | Email This Story

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Yesterday, Karl covered Hillary Clinton's newly released platform on technology & innovation as it related to broadband policy and encryption. Today I wanted to look through what it said on another set of key issues to folks around Techdirt: copyright and patent policy. And, as with Karl's post yesterday, there appear to be some things that sound good, but are so vague and devoid of actual nuance as to be laughable. I get it: this is the political platform of someone running for President, and thus it's going to be worded in a vague and noncommital way on these issues, because these aren't issues that lead people to decide whether or not to vote for someone as President. On the good-sounding side, there are promises about dealing with the orphan works problem and the patent troll problem. But they're weighted down with language that is quite vague and could mean almost anything, including lots of bad policy proposals. Effective Copyright Policy: The federal government should modernize the copyright system through reforms that facilitate access to out-of-print and orphan works, while protecting the innovation incentives in the system. It should also promote open-licensing arrangements for copyrighted material supported by federal grant funding. Now, just the fact that a Presidential campaign mentions that there's a problem with copyright law blocking access to content is somewhat revolutionary, so kudos to whoever got that into the plan. But the weird "while protecting the innovation incentives in the system" trailing line could mean anything and is designed to be just vague enough for anyone to read anything into it. What are the "innovation incentives in the system" right now? Well, on that, people totally disagree. Some people think that fair use, user rights and DMCA safe harbors are the innovation incentives in the system. Others, of course, argue it's long copyright terms and insane statutory damages. These two groups disagree and the Clinton platform offers no further enlightenment. The fact that the orphan works problem gets called out is exciting, but even then the solution isn't clear. The only real solution to the orphan works problem is to go back to a system of formalities, requiring registration to get a copyright. Then place stuff that isn't registered and where there's no way to contact the copyright holder in the public domain. Boom. Problem solved. But it seems unlikely that that's where Clinton is going with this. In the more detailed fact sheet, the expansion of these ideas is basically just the same thing as the condensed version but with way more words: Effective Copyright Policy: Copyrights encourage creativity and incentivize innovators to invest knowledge, time, and money into the generation of myriad forms of content. However, the copyright system has languished for many decades, and is in need of administrative reform to maximize its benefits in the digital age. Hillary believes the federal government should modernize the copyright system by unlocking—and facilitating access to—orphan works that languished unutilized, benefiting neither their creators nor the public. She will also promote open-licensing arrangements for copyrighted material and data supported by federal grant funding, including in education, science, and other fields. She will seek to develop technological infrastructure to support digitization, search, and repositories of such content, to facilitate its discoverability and use. And she will encourage stakeholders to work together on creative solutions that remove barriers to the seamless and efficient licensing of content in the U.S. and abroad. Open licensing is good. Removing barriers to effective licensing is also good. But there's no plan here. People have talked about these things for ages and never gotten anywhere because entrenched interests don't want this kind of thing to happen at all. Also, there's a weird call out to SOPA -- but not in the copyright section. Rather, she mentions it in the net neutrality section because whatever, no one cares: She also maintains her opposition to policies that unnecessarily restrict the free flow of data online –such as the high profile fight over the Stop Online Piracy Act (SOPA). The language choices here appear to have been workshopped by a committee of hundreds. What the hell does this mean? Does it mean that she would oppose the fight over SOPA? Or SOPA itself? Because it's pretty clear that she's implying that she would oppose things like SOPA (which, again, had nothing to do with net neutrality). But she also was a SOPA supporter -- at least until it was politically inconvenient. During the height of the SOPA battle, she sent a letter insisting (contrary to the statement in her new platform) that there was "no contradiction" between supporting the free flow of information and enforcing strict copyright laws: "There is no contradiction between intellectual property rights protection and enforcement and ensuring freedom of expression on the internet." So if she believes that, then SOPA wouldn't have restricted the free flow of data. Of course, once the public tide turned against SOPA -- guess what -- so did Hillary, suddenly making it out to have been an important fight for internet freedom, even though she denied that very point just months earlier: “The United States wants the Internet to remain a space where economic, political, and social exchanges flourish. To do that, we need to protect people who exercise their rights online, and we also need to protect the Internet itself from plans that would undermine its fundamental characteristics.” In other words, like a standard politician, we've got vague promises and flip flops -- along with ignoring previous positions when convenient. As for patents, for the short version, we've got: Improve the Patent System to Reward Innovators: Hillary will enact targeted reforms to the patent system to reduce excessive patent litigation and strengthen the capacity of the Patent and Trademark Office, so that we continue to reward innovators. Again, vague language that can be taken in many different ways (again, obviously on purpose). The good: highlighting the problem of "excessive patent litigation" is definitely a good sign and is basically an acknowledgement of the problems with the patent system -- mainly patent trolling, but that should include excessive litigation by operating companies as well. But again, that's immediately weighed down by what follows, which could mean basically anything. Strengthening the capacity of the PTO... for what? To reject bad patents? That would be good. To grant more patents? That might be bad. And the whole "so that we continue to reward innovators." What does that mean? If you believe that the patent system itself rewards innovators, then that would mean encouraging more patenting. If you believe that the patent system is stifling innovators, then that should mean ending bad patents that are used to hinder innovation. Which is it? Who the hell knows. And I doubt Clinton herself has any real understanding of the issues here either. The longer version makes it clear she's supporting some of the current anti-patent troll legislation, which is a good thing: The Obama Administration made critical updates to our patent system through the America Invents Act, which created the Patent Trial and Appeals Board, and through other efforts to rein in frivolous suits by patent trolls. But costly and abusive litigation remains, which is why Hillary supports additional targeted rule changes. She supports laws to curb forum shopping and ensure that patent litigants have a nexus to the venue in which they are suing; require that specific allegations be made in demand letters and pleadings; and increase transparency in ownership by making patent litigants disclose the real party in interest. Those are good things. But then we've got the expanded explanation of strengthening the PTO and again it's a giant "huh?" Hillary believes it is essential that the PTO have the tools and resources it needs to act expeditiously on patent applications and ensure that only valid patents are issued. That is why she supports legislation to allow the PTO to retain the fees it collects from patent applicants in a separate fund—ending the practice of fee diversion by Congress, and enabling the PTO to invest funds left over from its annual operations in new technologies, personnel, and training. Hillary also believes we should set a standard of faster review of patent applications and clear out the backlog of patent applications. Of course, this is somewhat contradictory with the stuff raised earlier. Fee retention is one of those ideas that perhaps makes sense, but skews the incentives in dangerous ways, possibly pushing the PTO to encourage more patent applications and patents in order to get more fees. Similarly, "faster review" historically has meant lots more crappy patents getting approved -- leading to more patent trolling over bogus patents. So, basically, she's promising points to the two key sides of the patent debate, without noting how the two plans are in conflict with each other if she's looking to solve real problems. Again, none of this is a surprise. This kind of wishy washy political language where none of it really means anything is par for the course for just about any major politician, and Clinton has historically made this kind of noncommittal hand-wavy bullshit an artform all her own. She's not looking to solve real problems. She's looking to convince you that she's actually heard of the pet problem you're focused on and she has a vague plan to "solve it." Never mind the details or the fact that the plan conflicts with other parts of her plan.Permalink | Comments | Email This Story

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Microsoft's decision to offer Windows 10 as a free upgrade to Windows 7 and Windows 8.1 made sense on its surface. It was a nice freebie for users happy to upgrade, and an effective way to herd customers on older Windows iterations onto the latest platform to help consolidate support expense. But Microsoft's upgrade in practice has seen no shortage of criticism from users annoyed by a total lack of control over the update, and Microsoft's violent tone deafness in response to the complaints. For example a Reddit post from an anti-poaching organization made the rounds earlier this year after the 17 GB automatic Windows 10 update resulted in huge per megabyte charges from their satellite broadband ISP. Microsoft's response to these complaints? Ignore them. As complaints grew, Microsoft finally provided a way to fully disable the forced upgrade, but made sure it involved forcing users to modify the registry, something Microsoft knew full well less technical users wouldn't be comfortable attempting to hurdle. But Microsoft made the problem worse in other ways, too. The Redmond giant also came under fire for upgrade popups that misleadingly shoved users toward the upgrade. For example, closing an update notification dialogue box by clicking "X" automatically began the update process, much like malware:"Last week, Microsoft silently changed Get Windows 10 yet again. And this time, it has gone beyond the social engineering scheme that has been fooling people into inadvertently upgrading to Windows 10 for months. This time, it actually changed the behavior of the window that appears so that if you click the “Close” window box, you are actually agreeing to the upgrade. Without you knowing what just happened."Things have been escalating ever since, often to comedic effect. But this week things changed somewhat with the news that Microsoft has struck a $10,000 settlement with a California woman who sued the company after an ill-timed Windows 10 upgrade brought her office computers to a crawl. The woman took Microsoft to court after support failed to help resolve the issue, a spokesman saying Microsoft halted its appeal of the ruling "to avoid the expense of further litigation." And while Microsoft was sure to avoid admitting error of any kind, the company this week announced it will finally give users actual control over the Windows 10 upgrade experience. A new notification window will let users update now, schedule the upgrade for a later date, or (gasp) decline the free offer entirely:"Since we introduced a new upgrade experience for Windows 10, we've received feedback that some of our valued customers found it confusing," admits Windows chief Terry Myerson, in a statement to The Verge. "We've been working hard to incorporate their feedback and this week, we'll roll out a new upgrade experience with clear options to upgrade now, schedule a time, or decline the free offer."Aren't you a bunch of sweethearts, actually listening to "valued customers" screaming for months about how you're acting like a malware vendor! As of now, this is what the Windows 10 upgrade notification will look like:And to think: it only took months of public kicking and screaming, a repeated, vicious beating in the media (even from historical supporters of the company) and this latest settlement for Microsoft to do the right thing. It's particularly absurd given that (assuming you like operating systems that send uncontrollable chatter over the network) Windows 10 is generally well reviewed and liked by people. All Microsoft really had to do was offer the free upgrade, let the OS sell itself, then give consumers some control over the process and this entire absurd saga would have been avoided.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
There's a bit of a battle going on in an obscure part of the World Trade Organization (WTO) called the Appellate Body, which has extremely wide-ranging powers within the WTO: It is a standing body of seven persons that hears appeals from reports issued by panels in disputes brought by WTO Members. The Appellate Body can uphold, modify or reverse the legal findings and conclusions of a panel, and Appellate Body Reports, once adopted by the Dispute Settlement Body (DSB), must be accepted by the parties to the dispute. Here's what's been happening, as reported by Bloomberg: The U.S. won't support the reappointment of Seung Wha Chang of South Korea to the World Trade Organization (WTO) appellate body, a U.S. official said at a meeting in Geneva. "We do not consider that his service reflects the role assigned to the appellate body by WTO members in the WTO agreements," Deputy U.S. Permanent Representative Chris Wilson told members of the WTO dispute settlement body (DSB) May 23. "Any failure to follow scrupulously the role we members have assigned through these agreements undermines the integrity of, and support for, the WTO dispute settlement system." As the article explains, that's not going down too well with other WTO members, including Brazil, the European Union, Japan, and South Korea, who are traditionally allies of the US in trade matters. So what exactly has Chang done to incur the wrath of the US? The U.S. said it was troubled by four recent panel decisions that Chang was involved in because they "raised systemic concerns about the disregard for the proper role of the appellate body and the WTO dispute settlement system." Which seems to be a polite way of saying that Chang hasn't been toeing the US line. That's confirmed by the following section from a WTO news item about the DSB meeting where this argument took place: Canada, the European Union, India and Viet Nam added that the United States' statement of opposition [to Chang] based on previous Appellate Body decisions could create a dangerous precedent for other reappointment proceedings and affect an Appellate Body member's decision-making during their first term. Here's one of those panel decisions that the US doesn't like: In the fourth ruling -- which upheld China's allegations about U.S. duties on non-market economies -- the appellate panel "took a very problematic and erroneous approach" that risks turning the DSB into "one that would substitute the judgment of WTO adjudicators for that of a member's domestic legal system as to what is lawful under that member's domestic law," Wilson said. The interesting part is the bit at the end there, where the US complains that the WTO's dispute settlement system is effectively overruling national law. Techdirt readers will recognize that as a common complaint about the tribunals that adjudicate on disputes between investors and governments -- the so-called "investor-state dispute settlement" (ISDS) system, aka corporate sovereignty. Until now, the US has been a solid supporter of these tribunals, so it's rather significant to see it moaning about the problem of uppity adjudicators here. It raises the question why the US is unhappy with the DSB tribunal, but doesn't seem to have a problem with those used in ISDS. It might have something to do with the fact that the US has never lost a corporate sovereignty case -- something it uses to justify the inclusion of ISDS in TPP and TAFTA/TTIP -- but is increasingly on the wrong end of decisions at the WTO. As to why the US never loses ISDS cases, Ante Wessels, writing on the FFII.org blog, has a provocative theory: he says the "Investor-to-state dispute settlement is a rigged system" that is tilted in favor of the US. Whether or not you agree with his analysis, it's certainly interesting to see how the US seems to be changing its mind on the value of supranational tribunals that can ride roughshod over domestic legal systems now that it finds itself on the losing side. 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
After the Cold War ended, the space race enthusiasm evaporated as the funding for ambitious projects to explore space dried up. Launching dozens of satellites into space to form communications networks was (and still is) a risky business -- with a lot of upfront costs and a lot of equipment that's nearly obsolete by the time it reaches orbit. But it's becoming a bit cheaper to get stuff into space, and maybe we're seeing a bit more of a commercial space race. Check out a few of these space-bound projects. NASA recently tested its Space Launch System (SLS) engine that will send an uncrewed Orion capsule beyond the orbit of the moon in 2018 (assuming no delays). Someday, NASA's SLS could take people to Mars, but there are still some engineering challenges to solve before that actually happens. Tom Markusic, the founder of the small satellite venture, Firefly Space Systems, wants to clean up the artificial space junk in geo-stationary orbit and recycle it for future moon and mars missions. Markusic proposes using solar electric propulsion-powered space tugs to push old satellites to potential staging bases for human colonies on mars. Vector Space Systems is a space vehicle startup just getting off the ground, aiming to put small satellites into low earth orbit -- at a price of 45 kilograms for a $2-3 million. The company plans to have commercial launches ready in 2018, targeting very small satellites that normally go up as secondary payloads on larger launch systems. Smaller payloads with their own dedicated launches won't be subject to the delays or requirements of other payloads, and Vector's launch vehicle claims that its missions could be ready to go within a relatively short 3-month window. Russia's new space port at Vostochny has had some delays, but it seems to be up and running. However, the mis-management of this cosmodrome has caught the attention of president Putin who warned that some of the senior managers involved in an embezzlement scheme could go to jail for a few years. The description of the first launch with a visit from Putin sounds a bit like a scene from Return of the Jedi. After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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Fight Copyright Trolls has tracked down two more court decisions that reach an obvious conclusion: an IP address is not a person. In both cases, the normal trolling tactics were used: legal threats against alleged infringers, based on nothing more than IP addresses. In the first case, New Jersey Judge Kevin McNulty disagreed with Malibu Media's request for default judgment, pointing out that the limited info it was working with could not rule out a successful defense being raised by the accused infringer. As Raul of FCT puts it, it is simply not enough for Malibu Media to obtain an IP address and then bring a claim against any household member with a penis. The judge writes [PDF]: […] the Defendant’s connection to the alleged infringement is based solely on an IP address. The IP address here, as the Plaintiff concedes, is actually held by the Defendant’s spouse. (Compl. ¶ 25) In the Amended Complaint, Malibu Media is not certain that the infringer is Defendant, but rather pleads “discovery will likely show that Defendant is the infringer.” (Id. ¶ 27) In fact, the infringer could be another person altogether, such as a family member or, as Malibu Media itself concedes, “sometimes, the infringer is another person who the subscriber has authorized to use the subscriber’s Internet.” (Id. ¶ 28) Or, it could be that the infringer is someone using the subscriber’s Internet via a wireless router that is not password protected. While it is possible that the infringer is Defendant, Malibu Media has not proved that Fodge actually caused or is responsible for the alleged infringement. Beyond that, the court has issues with the copyright claims in general. While Malibu Media claimed 23 titles were infringed by Fodge, the court points out that only 16 of them were registered before the alleged infringement. An unregistered copyright is not fatal to infringement claims, but it does limit the plaintiff's claims to actual damages. It also undercuts Malibu's infringement assertions, as it is much more difficult to prove ownership without a registration. The second order [PDF], issued by Oregon Magistrate Judge Stacie Beckerman contains something a bit more unexpected. What is surprising (and I believe unprecedented) is that the judge sua sponte dismissed Count 1 of direct copyright infringement. Many defense attorneys have tried in the past to knock out direct infringement claims and they have never, to my knowledge, been successful. This is because the claim has to merely be plausible which a very, very low threshold. I think this is the first time that a federal judge took it upon herself to examine such a claim, find it not plausible and dismiss it without prejudice. The dismissal is prompted by the usual troll reliance on IP addresses being treated as people. Judge Beckerman doesn't see it that way: The only facts Plaintiff pleads in support of its allegation that Gonzales is the infringer, is that he is the subscriber of the IP address used to download or distribute the movie, and that he was sent notices of infringing activity to which he did not respond. That is not enough. Plaintiff has not alleged any specific facts tying Gonzales to the infringing conduct. While it is possible that the subscriber is also the person who downloaded the movie, it is also possible that a family member, a resident of the household, or an unknown person engaged in the infringing conduct. What Cobbler Nevada, LLC was trying to do was raise weak allegations first, then work its way backward to establishing Gonzales as being the actual infringing party. The judge notes that this tactic runs afoul of legal precedent. Twombly and Iqbal do not allow Plaintiff to guess at who is liable, and attempt to confirm liability through discovery. “Plausible” does not mean certain, but it does mean “likely,” and Plaintiff has not pled sufficient facts to support its allegation that Gonzales is the likely infringer here. In fact, as Raul notes in the FCT post, the odds of Gonzales being the infringer are much lower than in other infringement cases -- something Cobbler Nevada knew when pursuing this lawsuit. Footnote 4 of the order makes it clear that the copyright troll knew it had a long list of potential infringers on its hand, but simply chose to go after the name linked to the IP address. Plaintiff’s counsel acknowledged at oral argument that the IP address linked to the infringing conduct serves an adult foster care home operated by Gonzales. Any resident or guest of that home could be the infringer. It's one thing if a troll simply shrugs and hopes the court will let it connect the dots between the IP address it obtained and the person it's registered to. It's quite another when a single IP address is host to multiple possible infringers, but the plaintiff chooses instead to focus on the person paying for the connection -- or, if they lack a penis -- the closest household member in possession of one. The court also dismisses with prejudice Cobbler Nevada's indirect infringement claim, logically pointing out that it takes far more to prove this than simply pointing out that the alleged infringer failed to kick everyone else off the network. Both of these decisions are useful additions to the casework against copyright trolls' awful business model. Hopefully these will result in more swift dismissals of "an IP address is a person" lawsuits while discouraging further adventures in speculative invoicing. Permalink | Comments | Email This Story

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We've mentioned and linked to the wonderful SCOTUSblog many times in the past, and have even mentioned its annual running of the trolls, in which the site's Twitter account responds sarcastically to people who think that it is the Supreme Court's twitter account, rather than a blog of some journalists and lawyers covering the court. Part of the confusion comes from the fact that the Supreme Court doesn't have its own Twitter feed, combined with Twitter's eagerness to suggest alternate accounts when people are assuming SCOTUS must have a Twitter feed. But, really, a big part of the problem is people tweeting inane things at SCOTUSblog without realizing it's not SCOTUS. This year, however, the running of the trolls event went weird... because Twitter briefly deleted the entire SCOTUSblog Twitter account, perhaps thinking that the snarky responses showed the account had been hacked. Yes, it appears that even Twitter the company may have believed that the SCOTUSblog Twitter account was actually supposed to be SCOTUS itself. Today we had our annual running of the trolls — wherein we respond to people who direct mostly hateful and sometimes cute things to our @SCOTUSblog account, thinking it is the official Twitter account of the Supreme Court. We’ve done this for several Terms without incident. But this Term, Twitter — probably through some automated system — decided that our account had been hacked. So it kicked us out of our account — thinking we were the hackers — and then blocked all the tweets, so they have disappeared. Eventually Twitter realized its mistake and reinstated the account -- but once again we see the problems when social media sites try to "police" the content on those sites. They are often not in a position to know what is and what is not an appropriate tweet, or if an account has been hacked. And yet, so many people still seem to think that the platforms themselves have some sort of god-like knowledge powers that allow them to magically kill "bad" accounts while leaving good accounts untouched. Either way, with the account back in good standing, for now, here's just a taste of its trolling. Go to @SCOTUSblog for more. It's too bad the trolling got interrupted though: One guess MT @backpackingsuit Unsure why this @SCOTUSblog decision on the #4thAmendment is not bigger news — SCOTUSblog (@SCOTUSblog) June 27, 2016 What makes you look dumbest, Bets'? MT @BetsyKerr Nothing makes @SCOTUSblog look dumber than a judge dissenting w/irrelevant opinion. — SCOTUSblog (@SCOTUSblog) June 27, 2016 Check ur attitude. We haven't ended capital punishment yet. MT @CaseyMattox_ In a functioning democracy no one would care about @SCOTUSblog — SCOTUSblog (@SCOTUSblog) June 27, 2016 We don't rule "against the Constitution." We twist it however we want. MT @pswise1 @SCOTUSblog Is RACIST &Again Rules Against Constitution — SCOTUSblog (@SCOTUSblog) June 27, 2016 You might S the "eff up." You know we can make Trump president, right? MT @ThePantau Man, @SCOTUSblog is going to eff up this recount, too? — SCOTUSblog (@SCOTUSblog) June 27, 2016 So funny bc we're just flipping coins. Math says we'll eventually get one right MT @somhrd50 @SCOTUSblog always on the wrong side of history — SCOTUSblog (@SCOTUSblog) June 27, 2016 Permalink | Comments | Email This Story

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Net neutrality has a long and complicated history, and despite some recent victories, that story is far from over. This week, Mike is joined by resident broadband expert Karl Bode to discuss what's next for net neutrality, and what we need to do to fight for it. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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Net neutrality has a long and complicated history, and despite some recent victories, that story is far from over. This week, Mike is joined by resident broadband expert Karl Bode to discuss what's next for net neutrality, and what we need to do to fight for it. Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt. Permalink | Comments | Email This Story

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We've noted in the last month or so a series of court rulings in California all seem to be chipping away at Section 230. And now we've got another one. As we noted last month, revenge porn extortion creep Kevin Bollaert had appealed his 18-year sentence and that appeal raised some key issues about Section 230. As we noted, it seemed clear that the State of California was misrepresenting a bunch of things in dangerous ways. Unfortunately, the appeals court has now sided with the state, and that means we've got more chipping away at Section 230. No one disagrees that Bollaert was a creep. He was getting naked pictures of people posted to his site, along with the person's info, and then had set up a separate site (which pretended to be independent) where people could pay to take those pages down. But there are questions about whether or not Bollaert could be held liable for actions of his users in posting content. Section 230 of the Communications Decency Act (CDA 230) is pretty damn clear that he should not be held liable -- but the court has twisted itself in a knot to find otherwise, basically arguing that Bollaert is, in part, responsible for the creation of the content. This is going to set a bad precedent for internet platforms in California and elsewhere. The court, not surprisingly, relies heavily on the infamous Roommates.com ruling that also said that site didn't qualify for Section 230 immunity, because it asked "illegal" questions (about housing preferences), and since the site itself had asked those questions, it was liable for creating that "illegal" content. That's different than what happened with Bollaert's UGotPosted site, but the court works hard to insist the two are close enough: Here, the evidence shows that like the Web site in Roommates, Bollaert created UGotPosted.com so that it forced users to answer a series of questions with the damaging content in order to create an account and post photographs. That content—full names, locations, and Facebook links, as well as the nude photographs themselves—exposed the victims' personal identifying information and violated their privacy rights. As in Roommates, but unlike Carafano or Zeran, Bollaert's Web site was "designed to solicit" (Roommates, supra, 521 F.3d at p. 1170, italics added) content that was unlawful, demonstrating that Bollaert's actions were not neutral, but rather materially contributed to the illegality of the content and the privacy invasions suffered by the victims. In that way, he developed in part the content, taking him outside the scope of CDA immunity. I can predict that this paragraph is likely to show up in a bunch of other cases. People are going to insist that lots of other platforms that include any form of structure will now be liable if any of the content based on that structure violates the law. That, again, goes directly against the clearly stated purpose of CDA 230. And it's likely to create something of a mess for internet platforms that regularly rely on 230. The really crazy thing here is that earlier in the ruling, the court noted that it didn't even need to answer the Section 230 question because they already had enough info to support charges of action "with the intent to defraud." But then it answered the CDA 230 issue anyway, and did so badly. No one's going to feel sorry for Bollaert, who is a complete creep. But the wider precedent of this ruling is going to be dangerous and will likely show up in lots and lots of lawsuits against internet platforms going forward.Permalink | Comments | Email This Story

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Back in May, we noted that large cities around the country were rushing to put in place anti-Airbnb laws designed to protect large hotel companies. In that post, we noted that many of the bills almost certainly violated Section 230 of the CDA by making the platform provider, Airbnb, liable for users failing to "register" with the city. Section 230, again, says that a platform cannot be held liable for the actions (or inactions) of its users. San Francisco was the first city to get this kind of legislation pushed through. And while the city's legislators insisted that Section 230 didn't apply, they're now going to have to test that theory in court. Airbnb has asked a court for a preliminary injunction blocking the law, based mainly on Section 230, but also mentioning the Stored Communications Act and tossing in a First Amendment argument just in case. As designed and drafted by the Board of Supervisors, the Ordinance directly conflicts with, and is preempted by, Section 230 of the Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). According to its own sponsors, the law holds “hosting platforms accountable for the hundreds of units (rented by) unscrupulous individuals” posting listings on their websites, and holds “Airbnb Accountable for Listing Illegal Short Term Rentals.” Declaration of Jonathan H. Blavin (“Blavin Decl.”)... As such, the Ordinance unquestionably treats online platforms like Airbnb as the publisher or speaker of third-party content and is completely preempted by the CDA. In addition, the law violates the Stored Communications Act, 18 U.S.C. §§ 2701 et seq. (the “SCA”), by requiring disclosure to the City of customer information without any legal process, and the First Amendment as an impermissible content-based regulation. As Airbnb points out, the city even recognized that the bill probably runs afoul of Section 230, but signed it into law anyway: The City was not blind to the fact that the Ordinance might run afoul of the CDA and other laws. Following its passage, the Mayor’s office said that the “mayor remains concerned that this law will not withstand a near-certain legal challenge and will in practice do nothing to aid the city’s registration and enforcement of our short-term rental laws.” ... The City Attorney’s Office acknowledged that the Ordinance could raise “issues under the Communications Decency Act” but claimed that it had been drafted “in a way that minimizes” those issues by regulating “business activities” instead of “content.” ... Despite the City’s best efforts to tiptoe around the CDA through such semantic devices, the problem for the City is that the substance of what the Ordinance seeks to do violates the CDA. No amount of creative drafting can change that reality. The Stored Communications Act argument involves the requirements of Airbnb to turn over information on its users. The SCA is a part of ECPA, the Electronic Communications Privacy Act, that is supposed to protect the privacy of electronic communications (though, it's in deep need of an update). Here, Airbnb points out that the city ordering it to release customer information almost certainly violates the SCA. The verification provisions of the Ordinance separately are barred by the SCA. In a futile effort to sidestep the CDA, the Ordinance requires Hosting Platforms to verify listings by disclosing to the City host names and addresses “prior to posting” a listing—and without a subpoena.... But in this failed endeavor to avoid Section 230, the Ordinance runs smack into the SCA, which bars state laws that compel online services like Airbnb to release customer information to governmental entities without legal process. The First Amendment argument is basically a backstop in case the CDA and SCA arguments fail, and then there's a Constitutional argument to appeal. If the court deals with the case on CDA and SCA grounds, it probably will avoid the First Amendment question altogether. But, the basis is that regulating types of advertisements on Airbnb's platform is a form of a content-based restriction on speech. And there is a strong argument that in restricting the content on the platform, rather than merely punishing the people who post their content to Airbnb, that the law violates the First Amendment. There are exceptions, but generally speaking, the First Amendment doesn't like any law that blocks out speech entirely, even if it's commercial speech. The Ordinance also violates Hosting Platforms’ First Amendment rights. The prohibition on the publication of certain rental advertisements—i.e., those listings without verified registration numbers—is a content-based speech restriction subject to “heightened judicial scrutiny” under the First Amendment.... The City cannot meet its burden of demonstrating that this speech restriction directly advances a substantial state interest and does so in a narrowly tailored way. Even assuming the Ordinance actually advances a substantial state interest (which is questionable), it places a far greater burden on speech than is necessary to achieve that end. The “normal method of deterring unlawful conduct” is to punish the conduct, rather than prohibit speech or advertising regarding it.... The City cannot show that the obvious alternative of enforcing its existing laws against third-party residents who rent properties in violation of the law, rather than against Hosting Platforms, would be ineffective or inadequate. Just the opposite: it is clear the City could enforce its laws directly against hosts who violate them—as it already has begun to do with increasing effectiveness and success—rather than indirectly against Hosting Platforms that publish listings. Further, the law is unconstitutionally overbroad as it punishes platforms for publishing any listing without complying with its “verification” procedures—including those listings that may be lawful. Whatever you think of Airbnb (and people seem to get more emotional about it than seems reasonable...), this lawsuit could become quite important in making sure that Section 230 remains strong in protecting internet services providing useful services to individuals. In the past month or so, we've seen a number of questionable Section 230 rulings (especially in California) that have started to chip away at this law. However, I don't see how any of those rulings directly apply to this case. The most direct comparison, is probably the Model Mayhem case, but in that case, the court was clear that it allowed the California law requiring the platform to "warn" users to stand in part because it did not require the platform "to remove any user content or otherwsie affect how it publishes or monitors such content." That's clearly not the case with this Airbnb law. Either way, this is a case worth following, and hopefully one where the courts don't lop off another chunk of Section 230's protections (or, for that matter, the SCA's privacy protections). Separately, there's a very, very bizarre NY Times article about this falsely claiming that Airbnb is suing over a law it helped pass. That's just wrong. It's really bad reporting. Airbnb is clearly suing over the new language voted in by the SF Board of Supervisors earlier this month, and not about the broader law that passed a few years ago.Permalink | Comments | Email This Story

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Dive into the world of self-driving cars, speech recognition technology and more with the $40 Complete Machine Learning Bundle. Over 10 courses, you will learn about pattern recognition and prediction and how to harness the power of machine learning to take your programming to the next level. Discover quant trading, how to use Hadoop and MapReduce to tackle large data sets, how to create a sentiment analyzer with Twitter and Python and much more. Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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Hillary Clinton's tech policy plan has been released, and it includes some new, potentially hollow broadband promises, a pledge to continue defending the FCC's net neutrality rules from telecom industry attack, some feel good commentary on the sharing and innovation economies, and continued support for the candidate's absurd war on encryption. With the FCC's recent net neutrality court victory, the broadband industry's best path forward is to elect a President who'll stock the commission with revolving door regulators who'll simply fail to enforce the rules. But Trump's proven so divisive to some Conservatives, that even AT&T's top lobbyist Jim Cicconi this week came out in gushing support of Clinton:"Mr. Cicconi, who worked in the White House for Presidents Ronald Reagan and George H.W. Bush, said he has backed every GOP presidential candidate since 1976. “But this year I think it’s vital to put our country’s well being ahead of party,” he said in a statement provided by the campaign. “Hillary Clinton is experienced, qualified, and will make a fine president. The alternative, I fear, would set our nation on a very dark path."Given AT&T's threat to take the neutrality fight to the Supreme Court, Cicconi's support is curious, but may say more about Trump's unpredictability than it does about Clinton. Regardless, the 14-page "technology and innovation agenda" includes upsetting her new BFF by continuing to fight for net neutrality:"Hillary believes that the government has an obligation to protect the open internet. The open internet is not only essential for consumer choice and civic empowerment – it is a cornerstone of start-up innovation and creative disruption in technology markets. Hillary strongly supports the FCC decision under the Obama Administration to adopt strong network neutrality rules that deemed internet service providers to be common carriers under Title II of the Communications Act. These rules now ban broadband discrimination, prohibit pay-for-play favoritism, and establish oversight of “interconnection” relationships between providers. Hillary would defend these rules in court and continue to enforce them."The plan also makes some arguably vague promises on broadband, promising to deliver ubiquitous broadband to all Americans by 2020:"Hillary will finish the job of connecting America’s households to the internet, committing that by 2020, 100 percent of households in America will have the option of affordable broadband that delivers speeds sufficient to meet families’ needs. She will deliver on this goal with continue investments in the Connect America Fund, Rural Utilities Service program, and Broadband Technology Opportunities Program (BTOP), and by directing federal agencies to consider the full range of technologies as potential recipients—i.e., fiber, fixed wireless, and satellite—while focusing on areas that lack any fixed broadband networks currently."While some outlets were quick to call this plan ambitious, historically vague broadband coverage promises haven't meant all that much. A favorite pastime of politicians is to make broadband promises they know will be completed even if government doesn't lift a finger, then gobble up the easy political brownie points (with ample help from an unskeptical tech press) after the fact. Obama, for example, in 2011 promised wireless broadband coverage to 98% of all Americans, ignoring the fact that industry data at the time suggested we'd already met that mark (albeit poorly) with 2G and 3G wireless. Former FCC boss Julius Genachowski similarly received ample praise for issuing a "gigabit city challenge" knowing full well gigabit service was arriving without much help from he or other politicians at the time (mostly via frustrated towns and cities forced into the broadband business on their own). And while the FCC will help us get to 100% broadband coverage by opening up spectrum for 5G, moving from the supposed 98% broadband coverage mark to 100% really won't require much government help. 5G is arriving by 2020 or so regardless of what Clinton does, as it's a cornerstone of AT&T and Verizon's plan to hang up on unwanted DSL customers they refuse to upgrade. That doesn't somehow mean the broadband that's "100% available" to you is going to actually be good or cheap, since that would involve the government acknowledging that lack of competition means Americans pay more for broadband than most developed nations. Fixing this will take significantly more than empty promises, and for Clinton, it will certainly involve pissing off new allies like Jim Cicconi. The lion's share of Clinton's tech agenda consists of ambiguous promises that, as with all campaign promises, may or may not have any actual basis in fact. Clinton's plan calls for improving government adoption of technology and efficiency, improving our patent system (which the Clinton camp declares "has been an envy of the world"), and other feel good efforts such as "facilitating citizen engagement in government innovation" and using technology to "improve outcomes and drive government accountability" (doesn't that sound lovely?). But Clinton also makes it clear she intends to continue waging war on encryption -- her plan for a "Manhattan Project" to "solve" (read: weaken) encryption still very much on the table:"Hillary rejects the false choice between privacy interests and keeping Americans safe. She was a proponent of the USA Freedom Act, and she supports Senator Mark Warner and Representative Mike McCaul’s idea for a national commission on digital security and encryption. This commission will work with the technology and public safety communities to address the needs of law enforcement, protect the privacy and security of all Americans that use technology, assess how innovation might point to new policy approaches, and advance our larger national security and global competitiveness interests."Yes, it's abundantly clear that Clinton and friends continue to struggle with the idea that encryption is simply a tool, and like any tool it can be used for a myriad of purposes. That doesn't mean you unilaterally declare war on said tool -- or work tirelessly to make that tool less useful or more dangerous via backdoors -- a conversation we'll apparently be having over and over and over again should Clinton's presidency ascend beyond the rhetorical, larval stage.Permalink | Comments | Email This Story

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American folk hero Woody Guthrie famously put the following anti-copyright notices on one of his records once: 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 And yet, his most famous song, "This Land," keeps coming up in copyright disputes. Over a decade ago, we wrote about how the organizations claiming to hold the copyright on that song went after the company JibJab, which had made a clear parody of the song during the 2004 Presidential election. In that case, once the EFF got involved, the case was settled out of court. But as EFF noted back in 2004, part of the reason for the settlement was pretty clear evidence that "This Land" was absolutely in the public domain: Fact #1: Guthrie wrote the song in 1940. At that time, the term of copyright was 28 years, renewable once for an additional 28 years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music (just performing it is not enough to trigger the clock). Fact #2: A search of Copyright Office records shows that the copyright wasn't registered until 1956, and Ludlow filed for a renewal in 1984. Fact #3: Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for "This Land Is Your Land" in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, DC. For those who are not able to visit the Woody Guthrie Manuscript Collection at the American Folklife Archives, we've posted a copy of the document. This means that the copyright in the song expired in 1973, 28 years after Guthrie published the sheet music. Ludlow's attempted renewal in 1984 was 11 years tardy, which means the classic Guthrie song is in the public domain. Not much more had come of this until a few weeks ago when some musicians in the band Satorii decided to take the claimed copyright holders to court, asking for declaratory judgment that the song is in the public domain -- while also asking that license fees paid in the past get returned. The two defendants? The Richmond Organization and Ludlow Music. If those names sound familiar, they're the same two organizations at the receiving end of a very similar case over the song "We Shall Overcome." The filing in this case repeats the arguments that EFF made 12 years ago almost verbatim. Guthrie published the Song in 1945 with a proper copyright notice, which created a federal copyright in the Song. The copyright to the 1945 publication was not renewed. As a result, the copyright expired after 28 years, and the Song fell into the public domain in 1973. Despite Guthrie’s 1945 publication of the Song, Defendant Ludlow purportedly copyrighted the Song in 1956. Based on that 1956 copyright, Defendant Ludlow has wrongfully and unlawfully insisted it owns the copyright to This Land, together with the exclusive right to control the Song’s reproduction, distribution, and public performances pursuant to federal copyright law. For example, on July 23, 2004, Defendant Ludlow’s counsel wrote to counsel for Jib Jab Media, Inc. (“Jib Jab”), regarding Jib Jab’s use of the Song. In that letter, Defendant Ludlow’s counsel asserted that “Ludlow is the exclusive copyright owner of the classic folk song ‘This Land is Your Land’ written by the well-known folk artist Woody Guthrie.” The letter also asserted that Jib Jab’s use of the Song’s melody and “the well-known lyrics ‘This land is your land, this land is my land’ and ‘From California to the New York Island’” infringed Ludlow’s copyright. Irrefutable documentary evidence shows that Defendants own no valid copyright related to This Land. The popular verses of the Song were first published in 1945, and the copyright in those verses ended no later than 1973 (if not earlier). Defendants never owned a valid copyright to the Song’s pre-existing melody. The filing includes a copy of the 1945 publication of a version of the song: The filing notes that the melody pre-existed "This Land" and was used in a variety of earlier songs, and thus he has no copyright in the melody -- even though Ludlow claimed (falsely) in its 1956 copyright registration that Guthrie wrote the music (it also failed to note that the song had been published multiple times earlier). Amusingly, of course, in noting the lyrics to "This Land," it's noted that part of one version of the song mocks the idea of private property: Was a high wall there that tried to stop me A sign was painted said: Private Property, But on the back side it didn’t say nothing – This land was made for you and me. The case makes a pretty strong argument for the song being in the public domain. It seems like there's now this trend of forecefully declaring works in the public domain after years of having someone claim ownership over them. While it's good to finally see some of this stuff officially enter the public domain, it's rather ridiculous that we're all left fighting for a public domain.Permalink | Comments | Email This Story

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If you've been distracted by something like a coma, you may have noticed that the cable industry has developed an atrocious reputation for poor customer service, built over a generation of regulatory capture, prioritizing growth over customer service, and just generally not giving much of a damn. By and large, a Congress slathered in telecom and cable campaign contributions has ensured that nothing much changes on that front, with most politicians taking every opportunity to in fact defend this dysfunctional status quo from innovation, competition, or change. As such, it was marginally adorable to see Congress hold a hearing last week designed to deliver a few light wrist slaps to cable executives for their inability to seriously improve. Senators Rob Portman and Claire McCaskill simultaneously released a study (pdf) exploring how a number of large cable companies routinely overbill consumers, and do little to nothing to actually resolve such errors. In fact, a study released by the Senate found that Charter and its recently acquired subsidiary Time Warner Cable routinely overbill customers to the tune of around $7.2 million per year:Between January and April 2016, Time Warner Cable overbilled customers nationwide an estimated $639,948. The Subcommittee projects that, in 2016, Time Warner Cable will overbill customers nationwide a total of $1,919,844. Charter has not yet completed the underlying work necessary to determine how much it has overbilled customers. But it has informed the Subcommittee that it overbilled customers by at least $442,691 per month.What's more, the study found that these two companies specifically have a habit of doing even less than other upopular cable companies (read: nothing) after customers were overbilled:During the six and a half year time period covered by the Subcommittee’s investigation, Time Warner Cable and Charter did not automatically refund or credit customers for equipment overcharges they discovered. By contrast, Comcast and DirecTV provided full refunds to overcharged customers, and Dish’s sophisticated billing system is designed to prevent these types of issues from occurring in the first instance.And as a reminder: Time Warner Cable and Charter just merged, potentially creating a Voltron of errant overbilling. And thanks to binding arbitration mouseprint now buried in every cable and broadband contract under the sun, overbilled customers can't technically sue. While both Time Warner Cable and Charter have promised to implement systems to avoid overbilling customers moving forward, such inquiries are usually geared toward scoring some cheap political brownie points among cable-loathing constituents, and rarely result in much of a follow-up (and there could be follow-up, since much of this technically constitutes false advertising). Still, to her credit, McCaskill also touched on the practice of misleading below-the-line fees used by cable operators to covertly jack up the advertised rate of services post-sale: "We found that customers are being charged a host of fees that are not included in advertised pricing, some of which are for programming that used to be included in a customer’s video package. We also found that, just as many customers have long believed, some of these fees, like the HD and DVR service fees, aren’t a true reflection of the cost to the company of the service, but rather are based on the revenue goals of the company, and the price a customer is willing to stomach.” Again, that has been a problem for years in both cable and telecom, thanks in part to Senators and regulators that have a nasty habit of pretending it's not happening. From "broadcast TV fees" that bury the cost of programming below the line, to bizarre, nonsensical charges like "internet cost recovery fees" -- most of the "innovation" in telecom and cable these days occurs in the realm of adding misleading charges to your bill, not in improving actual service or support. A second study presented at the hearing goes into more detail, examining how cable providers also make it difficult if not impossible to comparison price shop (another benefit of below the line fees). McCaskill even offered up a recording of her recent call with DirecTV, made after she realized the company for years had been charging her an $8 per month "protection plan" fee she neither wanted nor asked for. "I said, 'well, were you going to tell me this?' They said, 'no you have to call in and ask,'" McCaskill said at the hearing (you can find a full video of the hearing here). "If I hadn't called in and asked, that $10 could still be on my bill today based on the billing practices of the companies represented at this hearing." And while cable's best and brightest spent plenty of time at the hearing claiming they've learned the error of their ways and are doing everything under the sun to change, that's the same promise they've given every year for more than fifteen years. Surely this wrist slap will be the wrist slap that sends them running back to the drawing board with a heartfelt desire to change?Permalink | Comments | Email This Story

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It's a good thing to think about the technology of the future. Especially if you're politicians and the future may have a big impact. Considering how frequently we see politicians ignore future technological change, it might be encouraging that the EU Parliament is at least considering what happens when our new robot overlords enslave us. Except that the report that the EU Parliament has come out with... is ridiculous. Most of the headlines are focusing on the ideas raised around making robots "electronic persons" for the purposes of paying social security or taxes, but the part that gets me is the plan to give them access to copyright as well. Notes that there are no legal provisions that specifically apply to robotics, but that existing legal regimes and doctrines can be readily applied to robotics while some aspects appear to need specific consideration; calls on the Commission to come forward with a balanced approach to intellectual property rights when applied to hardware and software standards, and codes that protect innovation and at the same time foster innovation; calls on the Commission to elaborate criteria for an ‘own intellectual creation’ for copyrightable works produced by computers or robots; And later: The resolution calls on the Commission to come forward with a balanced approach to intellectual property rights when applied to hardware and software standards and codes that protect innovation and at the same time foster innovation. Moreover, the elaboration of criteria for "own intellectual creation" for copyrightable works produced by computers or robots is demanded. The current insufficient legal framework on data protection and ownership is of great concern due to the (expected massive) flow of data arising from the use of robotics and AI. This is both maddening and pointless. As we've already discussed with regards to the monkey selfie, it's pretty standard under copyright that it only applies to work created by persons, and not animals or machines. That matters quite a bit. In fact, just a few weeks ago I was in a conference session talking about questions about copyright and artificial intelligence, and a point that I made to people there was that the output of an AI is (currently) not subject to copyright and that's a good thing. Yet here we have the EU already proposing adding copyright to the output of AI without bothering to even consider if the concept makes sense or not. It does not. Again, the purpose of copyright is to create incentives for creation that benefits the public. It's not as if a robot or an AI is going to say that it won't create something new unless it gets copyright. You can just program it to create. That's the idea. The fact that politicians are already seriously looking at creating special copyright for patents and AI seems like more of the same old thinking of "everything needs copyright protection."Permalink | Comments | Email This Story

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As we've discussed, some surveillance/law enforcement hawks have tried to rush through a law to expand the power of national security letters (NSLs) to paper over the long standing abuse of NSLs, by saying that they can use those documents (which have basically no oversight and don't require a warrant) to collect a ton of private info, including email info and web browsing histories. The rushed vote on this -- stupidly citing the Orlando attacks, despite the fact it would have done nothing to stop that -- failed but just barely. Basically, if Senator Dianne Feinstein were able to attend the vote, it likely would have passed. The support for it was one vote shy, and then Sen. Mitch McConnell changed his vote for procedural reasons to be able to bring it back for a quick follow up vote. Now, as Congress rushes towards that vote, Senator Ron Wyden stepped up today to use his power as a Senator to put a hold on the entire Intelligence Authorization bill. He gave a short floor speech explaining his reasons. I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact. I strongly supported the passage of that provision, which I first proposed in 2013. By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities. The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans. If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual. Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges. It is worth noting that President George W. Bush’s administration reached the same conclusion. In November 2008, the Justice Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types of records, and this list did not include electronic communication transaction records. The FBI has unfortunately not adhered to this guidance, and has at times continued to issue National Security Letters for electronic communications records. A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper. Broadening the National Security Letter law to include electronic communication transaction records would be a significant expansion of the FBI’s statutory authority. And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of abuse and misuse. These problems have been extensively documented in reports by the Justice Department Inspector General from 2007, 2008, 2010 and 2014. As one of these reports noted, “the FBI [has] used NSLs in violation of applicable statutes, Attorney General guidelines, and internal FBI policies.” No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight. In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly. Of course, to some extent, this is little more than show. It's pretty clear that McConnell has the votes to get this passed, which is why Wyden has now taken the dramatic step of putting a hold on the bill. But the 60 votes here are usually what is necessary to break a hold (which remains a widely used, but informal, Senate rule). So in the end this won't mean much, but we've been here before again and again and again. And by now it should be clear: When Ron Wyden says that the government is abusing laws to spy on Americans, he's not lying. We shouldn't then paper over that abuse and give the FBI or the NSA or anyone else greater powers to spy on Americans. Because they use that power and they don't tend to use it wisely and judiciously. Can anyone explain, seriously, why the emergency powers that allow the FBI to do the search in an emergency and then get the warrant after are somehow too problematic? Or why the FBI can't go and get a warrant at all? It's a petty quick process for them these days. This whole effort seems designed solely to wipe out what little oversight there is of the FBI and its use of national security letters.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
We have computers that can beat us at games like chess and Go (and Jeopardy!), but we haven't seen too many robots that can beat humans at more physical sports like soccer or tennis. We've seen some air hockey robots that are nearly unbeatable, so it's really only a matter of time before robots learn how to play sports with a few more dimensions. Here are some badminton robots that are inching toward playing better than some of us. Badminton robots are getting better slowly. This robot has binocular vision from two cameras and was built by students at the University of Electronic Science and Technology of China. However, it cheats a little bit by using two rackets.... Just last year, Dong Jiong (a retired badminton professional) played against a couple of these badminton robots on a regulation court. The robots didn't play very well, but they actually played -- and presumably, upgrades will give them superhuman badminton skills someday. Badminton robots from the Flanders' Mechatronics Technology Centre (FMTC) in Belgium were relatively primitive 2013. However, the developers were learning about optimizing the efficiency of robots -- not actually trying to create a robot that could beat people at badminton. After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
A month ago, folks in Austin Texas voted against a proposition that Uber and Lyft supported, concerning a number of new rules that would be put on ride hailing operations. Given that, both companies immediately shut down operations in Austin -- a city with over a million residents and only 900 cabs. In response, people are so desperate for rides that they're seriously trying to recreate the Lyft/Uber experience by using a Facebook group where people can post their location, negotiate a fee, and have someone pick them up (something that seems a lot more dangerous than typical Uber/Lyft). DUI (driving under the influence) arrests have gone up by 7.5% compared to the previous year. This does not mean that Uber/Lyft leaving is absolutely the cause, as there may be lots of other factors. But the anecdotal evidence certainly suggests it's having an impact. From the Vocative story linked above: “The first Friday and Saturday after Uber was gone, we were joking that it was like the zombie apocalypse of drunk people,” Cooper said. People were so desperate for rides, she said, that she’d pull up to a corner and pedestrians would offer to hop in her car as soon as they spotted her old Uber and Lyft emblems in the windshield. “They don’t even know who I am,” she chuckled in amazement. Even more troubling than the late-night pedestrian concern is Austin’s rampant drunk driving problem—last year the city had more than 5,800 DWI arrests, according to police data. Back in December the city’s Police Chief Art Acevedo expressed concern for how an Uberless Austin would affect the road safety. “If we take away the (ride-hailing firms) here and in other cities, it definitely will impact DWI,” he said. “There’s no doubt about it.” No matter what you think of Lyft or Uber, it's pretty clear that they're very, very useful services for lots of people -- and that includes drunk people who no one should want behind the wheel themselves. Putting in place regulations to limit those services seems to be backfiring, and hopefully it doesn't lead to loss of life either through drunk driving or less safe drivers making use of the informal Facebook groups.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
IP trolls are about 90% cardboard facade. They puff themselves up with blustery legal threats written on serious-looking legal letterhead, but it's really no different than the defensive mechanisms of many creatures found on the lower end of the food chain. For most, the slightest of pushes back results in the whole charade collapsing. There's a great future in speculative invoicing, said no one ever in any seminal coming-of-age, post-college disillusionment film. Just look at Prenda Law, which resorted to fraudulent behavior when its aggressive, but incompetent, trolling failed to pay the bills. And yet, nothing stops the trolls from trolling. The occasional speed bump surfaces, but trolls dismiss these rather than meet the challenge head on. They're in it for settlements, not wins… and certainly not precedent. Unfortunately, too many will get away with the following tactic, as covered by indispensable thorn-in-trolls'-side, Sophisticated Jane Doe of Fight Copyright Trolls. [T]he “main course” served on Monday was the order denying plaintiff’s motion to dismiss counterclaim in Malibu Media v John Doe (CAND 15-cv-04441, defense attorney: Joseph C. Edmondson). As I will explain shortly, this order essentially destroyed one of the two main foundations of the copyright trolling. While answering Malibu’s complaint on 4/26/2016, the defendant counterclaimed with a single count of declaratory judgment of non-infringement (basically asking the judge to formally rule that the defendant was not an infringer). Malibu moved to dismiss the counterclaim, arguing that such counterclaim mirrors defendant’s denial of liability found in the Answer. The defendant replied, cleverly pointing to Oracle v Google (a lawsuit handled by the same judge), where Google made a similar counterclaim. While Judge Alsup agreed that there is certain duplicity between the denial as an essence of the counterclaim and the denial as a part of the Answer, he nonetheless denied the plaintiff’s motion, leaving the defendant’s counterclaim alive. Why is this denial of Malibu's motion to dismiss important? Because it undercuts its sole interest in litigation: easy money. As I mentioned above, copyright trolling rests on two turtles: astronomically (and maybe unconstitutionally) high statutory fines, and the absence of downside for the troll as it can always cut and run, leaving the defendant with painful legal bills. Judge Alsup just closed the second avenue, at least in his district. The case is now “locked,” and it is not in the plaintiff’s power to dismiss it unilaterally any longer. It's a cheap legal trick -- one that even the US government isn't above using to escape cases where it may be found liable for legal fees. When the pushback arrives, dump the case. Standard m.o. There's very little margin in their normal shakedown work. That's why they try to bundle up as many Does as possible in every filing. And that's why they move to dismiss as soon as they encounter a little friction. Malibu seeks this, knowing full well it has almost zero chance of "recovering" this amount -- hoping that the scarily large numbers (fully supported by ridiculous IP laws) will intimidate the defendant into a settlement. From Judge Alsup's denial [PDF]: Malibu Media seeks statutory damages of at least $17,250 for defendant’s alleged infringement of twenty-three videos ($750 per work), with a potential for much greater liability if infringement is found to be willful or if the jury finds Malibu Media is entitled to damages on the higher end of the range provided by statute. Malibu tried to pretend the counterclaim imposed an unfair burden on its trolling effort. Malibu Media argues that permitting defendant’s counterclaim to proceed would require it to file an answer in which it would deny all the allegations and refer back to the complaint.... Malibu Media also contends the declaratory judgment counterclaim would confuse a jury. And found no sympathy in Judge Alsup. Not really, however, a jury would never need to know that the case involves an affirmative claim of infringement and a declaratory judgment counterclaim of non-infringement. The jury could render one verdict resolving both claims. Malibu Media will suffer no prejudice. Alsup goes on to call Malibu's motion what it is: a transparent attempt to dodge potential liability for legal fees. Malibu Media’s motion seems more like a gimmick designed to allow it an easy exit if discovery reveals its claims are meritless. This, as Alsup notes, tilts the system heavily toward the plaintiff, considering what a defendant might be facing if found to be culpable. The damages exposure in this case, as with Malibu Media’s many other cases, is significant, so a defendant may feel pressure to settle even a meritless case. Coupled with the taboo nature of the subject matter, there remains potential for abuse. [...] Dismissing defendant’s counterclaim would eliminate one avenue for a fee award, and, as stated, maintaining the counterclaim would cause no prejudice to Malibu Media. It will take a steady stream of opinions like these to stem the flow of IP trolls -- and some sort of consistency between multiple jurisdictions -- but every decision that calls trolls like Malibu out for their predatory behavior is a good one. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
As you probably heard in the news, last week, Presidential candidate/reality TV star Donald Trump took a bit of a detour from the campaign trail last week to fly to Scotland to open his new golf course. That the timing of the trip coincided with the Brexit referendum for the UK to exit the EU was just the wacky icing on the bizarre global political cake we're all now eating (bad metaphor apology). As you also probably heard, Trump talked about how wonderful the Brexit stuff was, and how much the people in Scotland must be thrilled, apparently missing the fact that Scotland, somewhat overwhelmingly, voted to stay in the EU. And because this is Scotland, and Scotland is awesome, folks there took to Twitter for a series of increasingly funny insults: @cocteau8 @realDonaldTrump pic.twitter.com/taaM2Pzo9b — Kevin Osborne (@skinoverbone) June 24, 2016 @realDonaldTrump we never got our country back, we wanted to remain, bolt ya hamster heedit bampot, away and boil yer napper — Rosco (@TheCyberwolf85) June 24, 2016 There are a bunch more at the Quartz link, but a pretty good one came from @MetalOllie, also known as Hamfisted Bun Vendor, who is English, rather than Scottish, but got into the spirit quite well: Scotland voted to stay & plan on a second referendum, you tiny fingered, Cheeto-faced, ferret wearing shitgibbon. https://t.co/iKyEIxf8ej — Hamfisted Bun Vendor (@MetalOllie) June 24, 2016 As I write this, it has over 6,000 retweets and over 7,000 likes. Not bad. Based on all of this, Jay Lender, a writer/director for SpongeBob SquarePants, Phineas and Ferb... and also his own movie, They're Watching, created an image in the style of Shepard Fairey's famous (and legally disputed) Obama Hope poster. After some discussion Jay and MetalOllie teamed up to put the image on t-shirts at CafePress. I have no idea if anyone was actually buying it, but earlier today Lender announced that CafePress had shut down the page for trademark infringement. Whose trademark? Frito-Lay's, the makers of Cheetos, of course! It's not at all clear if Frito-Lay made this request or if it's just CafePress worrying about future Frito-Lay concerns. Lender asked CafePress for clarification, and all they sent back was a link to Frito Lay's corporate contact page, telling him to contact Frito Lay to ask for authorization, implying that Cafe Press made this decision on its own. But, really, there appears to be a ton of other merchandise hosted at CafePress that mentions Cheetos in some form or another, so if the company is suddenly concerned about trademark threats from Frito-Lay, it seems to be targeting rather selectively. Lender pushed back on CafePress's decision to take down the store, and received some rather ridiculous "suggestions" for replacement terms: If you can't read that, it says: The use of "Cheeto" infringes on Frito Lays trademark. If would be different if you used "cheese puff" or "cheese-snack"-faced in your design. You may forward your notice of authorization from Frito Lay, giving you permission to use "Cheeto" or "Cheetos" in connection with the sale of commercial merchandise to us via email.... Yes. Really. Nothing like having CafePress ruining your jokes for you with its bizarre interpretation of trademark law. As we've discussed many times in the past, CafePress is frequently targeted by bogus takedowns concerning political speech and the company doesn't exactly have the best record in dealing with such takedowns. But this seems just blatantly ridiculous on so many levels. Either way, to argue that this is trademark infringing is crazy. No one is confusing the t-shirt or the image above as coming from Frito-Lay. I don't care how much of a moron in a hurry you might be, there's no consumer confusion here. For CafePress to declare absolutely that the use of Cheeto as an adjective here (not even as a noun!) is infringing on Frito-Lay's trademark is just... wrong. Second, this is pretty clearly protected political speech -- whether or not you agree with it or even think it's funny. Yes, CafePress has a right as a private company to refuse to host any shirts it dislikes, but at the very least it should come out and say that's why it's shutting down the shirt, rather than hiding behind a bogus "trademark" claim from Frito-Lay.Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
Already on the shitlist of U.S. broadband companies for supporting net neutrality and opposing things like usage caps, Netflix now has a new factually-challenged enemy: Russia. Russia's Culture Ministry took over government film funding through the Cinema Fund in 2012, and more recently unveiled a list of approved subject matter should film makers in Russia wish to get funding. Approved subject matter should include tales that herald "traditional values," "the constructive actions of civil society" or "heroes fighting crime, terrorism and extremism." With Netflix now pushing into 190 different countries and launching in Russia last January, Russia has clearly become nervous about the influence the US streaming company could have on Russian culture and homegrown production efforts. As such, streaming services like Netflix have been saddled with a significant number of restrictions, including requirements that online video services must be run through a Russia-registered subsidiary, produce 30% of its content locally, and potentially apply for a broadcast license. Apparently believing these restrictions won't hamper Netflix fully enough, Russian Minister of Culture Vladimir Medinsky last week upped the rhetoric to 11, proclaiming that Netflix was little more than a US government attempt to control the minds of Russian citizens:"Vladimir Medinsky, Russia's minister of culture and a loyal supporter of President Vladimir Putin, claims the online streaming service is on the US government payroll. Speaking to a Russian news service, he said the White House had realised "how to enter every home, creep into every television, and through that television, into the head of every person on earth, with the help of Netflix." "It turns out that our ideological friends [the US government] understand perfectly well which is the greatest of the arts," he said, alluding Lenin's famous comment about the propaganda of cinema. "And you thought, what? That all these gigantic start-ups appear by themselves? That some boy student thought something up and billions of dollars flutter from above?" Scary! Nobody denies that both countries have used oceans of disinformation and media propaganda to portray the other side in a negative light, but suggesting Netflix has much of a motivation beyond money is an entertaining leap. Medinsky's complaint is particularly amusing given that Russia was just exposed for running disinformation factories twenty-four hours a day whose sole function is to fill the internet with anti-Western bile. But regardless of which side is generating the propaganda; if your social values are so fragile they can be unraveled by a half-hour sitcom or a documentary, you may want to reconsider your ethos. That said, the real villain in this latest chapter in the information wars isn't Netflix, but Netflix-produced shows and other fare that dare to show homosexuals as something vaguely resembling actual human beings.Permalink | Comments | Email This Story

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