posted 21 days ago on techdirt
One of the most disturbing aspects of Edward Snowden's leaks is that they reveal the total surveillance state, where the authorities monitor everything, and know everything, is no mere abstraction. Where before such a vision was the domain of tinfoil-wearing, conspiracy theorists, today it is only a couple of "hops" from reality. Given that the enabling technology is available, you might have expected there would already be a few nations that have moved close to the total surveillance state; but you might be surprised to learn that one of them is Ethiopia. A new and chilling report published recently by Human Rights Watch, entitled "They Know Everything We Do: Telecom and Internet Surveillance in Ethiopia," explores the evidence in detail (pdf): The Ethiopian government has maintained strict control over Internet and mobile technologies so it can monitor their use and limit the type of information that is being communicated and accessed. Unlike most other African countries, Ethiopia has a complete monopoly over its rapidly growing telecommunications sector through the state-owned operator, Ethio Telecom. This monopoly ensures that Ethiopia can effectively limit access to information and curtail freedoms of expression and association without any oversight since independent legislative or judicial mechanisms that would ensure that surveillance capabilities are not misused do not exist in Ethiopia. Here's what that means in practice: Websites of opposition parties, independent media sites, blogs, and several international media outlets are routinely blocked by government censors. Radio and television stations are routinely jammed. Bloggers and Facebook users face harassment and the threat of arrest should they refuse to tone down their online writings. The message is simple: self-censor to limit criticism of the government or you will be censored and subject to arrest. Self-censorship is a real threat in countries with widespread surveillance -- even in those not as far down the path as Ethiopia. Indeed, self-censorship is probably one of the first negative consequences of any increasingly-pervasive surveillance regime. Information gleaned from telecom and Internet sources is regularly used against Ethiopians arrested for alleged anti-government activities. During interrogations, police show suspects lists of phone calls and are questioned about the identity of callers, particularly foreign callers. That shows concretely how "mere" metadata can be used against people, and why gathering it is so worrying. But the Ethiopian government does not limit itself to gathering information from existing sources: Some high-profile Ethiopians in the diaspora have been targeted with highly advanced surveillance tools designed to covertly monitor online activity and steal passwords and files. It does this thanks to technology acquired from the West -- the report mentions Gamma/FinFisher and Hacking Team, both European companies. Human Rights Watch concludes its summary as follows: Ethiopia should not only ensure that an appropriate legal framework is in place to protect and respect privacy rights entrenched in international law, but also that this legal framework is applied in practice. Companies that provide surveillance technology, software, or services should adopt policies to ensure these products are being used for legitimate law enforcement purposes and not to repress opposition parties, journalists, bloggers, and others. Sadly, neither of those seems very likely to happen, as total surveillance continues to spread around the world, passing from a vague dystopian fear into a mundane fact of life. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story    

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posted 21 days ago on techdirt
Really big, world-changing ideas are not that easy to come by... but they're even harder to implement. Still, it seems like a good first step is to devise ways to collect good ideas and then try to give funding/resources to help develop them into reality. Crowdsourcing this process is a somewhat recent trend (or fad) that gathers wisdom from a community, and there are more than a few projects that have adopted this method for collecting inspiring ideas. Here are just a couple more challenges that you might contribute to. The Buckminster Fuller Institute has an annual challenge that will award $100,000 to support strategies that will "make the world work for 100% of humanity, in the shortest possible time, through spontaneous cooperation, without ecological offense or the disadvantage of anyone." The deadline for submission is April 11th, and the prize will be awarded in November. [url] Contests/challenges seem to be an effective way to kickstart innovation and maximize resources for investment. A study of thousands of software contests concludes that the scope and uncertainty of a problem should be explicitly addressed when designing a challenge in order to optimize the incentives and performance of any innovation tournament. [url] The AI XPRIZE is looking for some kind of artificial intelligence that can get a standing ovation for delivering a TED talk. The rules are not set in stone yet, but it looks like the winner will be the best lying bot ever created -- or else it might present an irrefutable criticism of humanity itself. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story    

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posted 21 days ago on techdirt
Among the worst of the worst patent trolls out there, Macrosolve had quite a reputation -- described as "worse than Lodsys" it took a sue tons of companies first, demand settlements later approach, based on an obviously ridiculous patent (7,822,816) for a "system and method for data management" that the company insisted, hilariously, covered any mobile app that used online forms where users could submit data. Yes, forms. For a patent filed in 2003 and granted in 2010. In a bit of a "cute" move, the company tried to pretend it wasn't a troll by doing a deal with... Donald Trump, which apparently suckered some in the press to claim that it wasn't a troll. But it is a troll, and ended up filing over 75 lawsuits in (of course) the eastern district of Texas, following up the lawsuit filings with demands for licenses. In typical troll behavior, it made the licensing terms much cheaper than actually fighting the lawsuit (even if one were to win), so nearly all of the companies sued sucked it up and settled. However, Macrosolve included electronics retailers Newegg in its bundle of lawsuits, and, as we've noted in the past, Newegg has taken a clear "screw patent trolls" stance, where it absolutely refuses to negotiate with trolls. Newegg has announced today, somewhat gleefully, that when faced with actually having to go to trial, Macrosolve has "folded like a cheap suit" dismissing its lawsuit against Newegg (and Geico, the one other company who fought back). Lee Cheng, Newegg’s Chief Legal Officer stated, “In a sense, we are disappointed because we were robbed of an opportunity to prove in court that Macrosolve was and is nothing more than a serial, shameless abuser of patent rights, with a poor-quality patent that has not even survived its first reexamination. Macrosolve failed to create products and services that real customers found valuable, whose principals decided to turn it into a corporate parasite. It is not a coincidence that faced with its first real opposition in Newegg and Geico, Macrosolve folded like a cheap suit, and dismissed its lawsuits against all defendants.” Cheng continued, “I could never figure out how Macrosolve would not be required to publicly and timely disclose the fact that its primary asset, the ‘816 Patent,’ was the subject of a final rejection in reexamination or that it dismissed almost all pending lawsuits with prejudice. What was most bizarre was how Macrosolve’s stock price traded up the day that the USPTO issued the final rejection of the ‘816 Patent’. Curious. Definitely worth someone’s attention.” Yes, Macrosolve is a "public" company, in that it's an over-the-counter penny stock, so not only was the company looking to abuse the patent system to cash in, it appears that perhaps it was abusing the public equity markets as well. Either way, by demanding much less than it would cost to fight it in court, the company took in at least $4 million in settlements. Newegg is hoping to get back some of its own costs, though it expects Macrosolve to do everything possible to avoid that: Newegg intends to seek all of its fees and costs against Macrosolve for its abusive litigation tactics. However, it is highly likely, in yet another example of how the patent law system is unfairly tilted against defendants, that even if Newegg were to prevail in court in its fee motions, that Macrosolve will simply file for bankruptcy after collecting and distributing over $4M in “licensing” revenue to its principals and its contingency fee lawyers. Congress is, once again, promising to pass new legislation to stop patent trolls, and here's yet another example (in a very long list of them) why help is needed now.Permalink | Comments | Email This Story    

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posted 21 days ago on techdirt
A few weeks ago, we wrote about how the Aereo case, which will be heard by the Supreme Court in a few weeks, is likely to have a huge impact on the future of cloud computing, and went into detail to explain why. The primary issue is that, under copyright law, what Aereo is doing is effectively indistinguishable from what most cloud computing services do. However, a number of folks who really seem to dislike Aereo continually insist that the case will have no impact whatsoever on cloud computing. Variety's Todd Spangler recently wrote a typical version of this argument, basically waving off the issue based on the idea that Aereo more or less feels different from Dropbox. But that fundamentally ignores the actual copyright issues at stake. Matt Schruers has a blog post up at the Project Disco blog pointing out why this "cloud denialism" by the anti-Aereo crowd is both dangerous and misleading. It includes the money line that a bunch of folks have been quoting: The only unifying characteristic I’ve discerned among the deniers is that none of them are actually in the business of providing cloud services. Indeed, a bunch of companies and organizations that actually are involved in cloud computing businesses have weighed in on the case, warning how a ruling against Aereo might create serious problems for their businesses. The issue, again, is very narrowly focused on what is a "public" performance when transmitting a single copy of a file to an individual in their home. The problem with the broadcasters' position is that they want to declare that transmitting multiple copies of a single work magically makes something "public," even if each transmission is a unique copy that is transmitted only to the requesting subscriber. But that's the same way cloud computing works, and it would create a massive headache. And, honestly, while Schruers has that wonderfully quotable line above, what's much more scary about the "cloud denialists" is they fundamentally don't seem to understand copyright law, and are trying to twist it because they just hate what Aereo is doing. I am reminded of law professor Eric Goldman's comment from a few years ago, that there are really two different copyright laws -- normal copyright law and "file sharing copyright law," where what's actually stated in copyright law gets thrown out the window because OMG EVIL PIRATES! As Goldman points out, "it's a mistake to think those two legal doctrines are closely related." As Schruers notes in his piece, it seems pretty clear that everyone recognizes Aereo is architected to create a private performance, not a public one, it's just that folks on the copyright maximalist side of the scale don't like that, and that leads them to want to just pretend the law says something different than it does: Ultimately, when Spangler and others deniers dismiss the cloud-related issues and condemn Aereo’s complex technology as “a Rube Goldberg-like contrivance,” it strikes me as an implicit concession: ‘yes, Aereo’s technology is indeed designed to facilitate private performances, but since Aereo could also be engineered other ways, where the performance would be public, we’re just going to expand the definition of what’s public in order to sweep in Aereo too.’ This is a chillingly activist interpretation of copyright law. The boundary between public performances and private performances determines what copyright does and does not regulate. It’s why you don’t need a license to sing in the shower, but you do to sing on stage. It’s why you don’t need a license to put your music collection in the cloud, but you do if you want to launch a commercial streaming service. Redrawing that boundary in real time to ensure that Aereo doesn’t disrupt the way consumers now receive free over-the-air television is not a prescription for economic success. Of course, this sort of issue has been present throughout the Aereo case. Pretty much everyone concedes that Aereo's technical setup is insane -- but it's insane because that's what the law requires to stay within its bounds. We've seen many, as described above, try to use this against Aereo. Multiple comments on various Aereo posts have people insisting that the convoluted setup of Aereo's technology (individual antenna for each subscriber, distinct copies of the same programming for each user) shows that they're trying to skirt around the law. However, it seems rather obvious that it's the exact opposite. There is no logical reason to have this kind of setup except to be within the law. Aereo's "insane" technological setup is much an indication of why it's legal -- and how screwed up copyright law is that this is the only legal way to build such a system. Furthermore, for those who insist that Aereo is unrelated to cloud computing because it doesn't look like what they think cloud computing looks like, Schruers points out that one of the most important rulings for cloud computing -- the Cablevision remote DVR case -- didn't "look" like a cloud computing case either, but it helped spur massive investment in cloud computing by clarifying some key legal issues -- much of which an anti-Aereo ruling might now destroy. Notably, the “remote DVR” system in Cablevision, a 2008 case upon which much of the reasoning in Aereo has been based, and which provided legal certainty that ushered in a wave of extraordinary investment in cloud computing, didn’t look anything like Dropbox either.  Even though Cablevision’s remote DVR didn’t look like a cloud storage service, however, investors quickly concluded that the decision’s reasoning had legitimized storing users’ files in the cloud, and streaming them back. The broadcasters and their supporters don't want people to associate Aereo with cloud computing mainly because they hate what Aereo stands for. But their failure to understand both cloud computing and basic copyright law might seriously hinder important innovations well into the future.Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
This is what happens when you ignore the public. Are you happy, We the People? WE PETITION THE OBAMA ADMINISTRATION TO: Respond to all Whitehouse.gov petitions that get over 100k signatures within one month. Whitehouse.gov petitions were intended to give the public a voice. The idea is that if more than 100,000 people all feel strongly enough about something to hand over their home address and personal email to the government and complete a nearly impossible CAPTCHA, then the President of the United States should have to respond to them. Because... democracy. Here's the problem: there are dozens of Whitehouse.gov petitions that have received more than 100k signatures, but have gone months and even years without a response (1). That's not improving transparency, it's the same gov't spin we've always had. So what will it, Obama, hypocrisy or democracy? Sign! It's a nice idea. There are petitions that appear to be permanently stuck to the administration's backburner while others that haven't even met the 100k signature threshold have been answered simply because the White House has a canned response on hand. Others require more thoughtful answers or (would) force the administration to take a stance on controversial issues, something it clearly would rather not do. The average wait for a response has slipped to nearly 300 days. Among the petitions still being actively ignored by the White House are ones dealing with pardoning Edward Snowden and firing the attorney who handled Aaron Swartz's prosecution. This new petition, created on April 1st, is clearly tongue-in-cheek. While there are some petitioners who mistake petitions for binding contracts, this probably isn't one of them. However, it does go meta on the issue, potentially putting the administration in the position of agreeing to address petitions in a timely fashion. This could prove uncomfortable for the White House since it appears it would rather ignore certain petitions until the White House changes hands in 2016. Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
We've been writing quite a bit about the supposedly devastating $40 million, 6,300 page Senate report that exposes the CIA torture program for being useless -- and (perhaps more importantly) describing in detail how the CIA lied about it to everyone, including Congress. There's been something of an ongoing fight about declassifying the document, with the general thinking being that the Democrats on the Senate Intelligence Committee would likely support declassification, but the Republicans would not. But, as we'd pointed out, despite Intelligence Committee boss Senator Dianne Feinstein's condemnations of the CIA concerning the report, she still couldn't must up the courage to admit that what the CIA was doing was "torture." Instead, it was always the "detention and interrogation program." But, anyone who's looked at it knows exactly what it was: a torture program, almost certainly in violation of the Geneva conventions. So it's great to see that a Republican Senator (remember, they were supposedly against declassification), Susan Collins, (along with Independent Senator Angus King) not only come out in favor of declassification but to directly call it torture: We remain strongly opposed to the use of torture, believing that it is fundamentally contrary to American values. While we have some concerns about the process for developing the report, its findings lead us to conclude that some detainees were subjected to techniques that constituted torture. This inhumane and brutal treatment never should have occurred. Further, the report raises serious concerns about the CIA’s management of this program. [....] Torture is wrong, and we must make sure that the misconduct and the grave errors made in the CIA’s detention and interrogation program never happen again. The CIA's torture program is a shameful moment in American history, and as a country, we cannot deal with it by pretending that it was anything other than what it was. We need to make it clear that it was torture and that it was wrong. Those responsible for the program should be held accountable. But they won't. Instead, the only person in jail... is the guy who blew the whistle on it. If we can't even admit that the torture program was a torture program, then we're bound to go down this road again.Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal "revenge porn" bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said: "The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations." That makes it clear her intent is to undermine Section 230 and make third parties -- like "Google, any website, Verizon... face liability." Now, her retort to all of this is likely that she's not seeking to undermine Section 230 in any way. Rather, she's attempting to do something of an end-run around it. Section 230 has never protected sites from liability of federal crimes -- just civil infractions and state crimes. So her goal is to make the amorphous concept of "revenge porn" a "federal crime" thereby suddenly making third-party websites liable. She will argue that does nothing to undermine Section 230. A more reasoned and thoughtful look at the issue, however, shows how this effort is fraught with dangerous consequences and potential First Amendment problems. Taking a step back, though, let's be clear: revenge porn -- the practice of posting naked pictures of someone (who likely took those photos for an individual or themselves, rather than the public) along with that person's identifying information -- is odious. Those who are involved in the practice are morally repugnant individuals. And yet, what we've seen is that there do appear to be ways to deal with them. One of the most well-known creators of revenge porn, Hunter Moore, was recently arrested on charges that he conspired with another person to hack into email accounts to get more photos. Often, those engaged in revenge porn are also engaged in extortion over those images or other crimes on which they can be charged. Some revenge porn sites have been hit with lawsuits for copyright infringement -- though that creates a whole different set of problems. Meanwhile, amazing folks like Adam Steinbaugh have been diligently tracking down and exposing the details of people who operate revenge porn sites, which can sometimes be an effective (if slightly ironic) way to get them to go away. But that's an example where more speech is often a better result than censoring speech by increasing liability. Still, you can see why there's a temptation to create a new anti-revenge porn statute. The whole concept of revenge porn is itself repugnant, so it's tempting (especially as a lawmaker) to pull out that old hammer and create some regulations. But the dangers of regulating based on reacting to the odiousness of those sites may obscure the way such laws will inevitably -- as Prof. Franks herself admits -- impact companies that are clearly not engaged in revenge porn. In the article about the legislation, EFF's Matt Zimmerman (who, actually, just left EFF) points out that using criminal law here is "dangerous" because it would likely lead lots of companies to reflexively delete all sorts of content, including plenty of perfectly legal and legitimate content, to avoid the sort of liability Franks describes. And that's the huge problem here. By spreading liability, you guarantee over-censorship. It's easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what "revenge porn" is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA's Section 230. People who don't think through the details seem to assume that it must be easy to define what is "revenge porn," but the deeper you go, the more difficult it becomes to define -- and the more risks there are of both over-criminalizing and creating serious First Amendment issues. For example, you could say that sites should be forced to take down photos of individuals where those individuals insist that the photos are problematic. But then you'd have to deal with situations, like with Ranaan Katz, where he went after a blogger and Google (using civil copyright law) for posting an "unflattering" photo. Do we really want to bring criminal law into that arena? And the First Amendment issue is not easy to get around. At all. As lawyer Mark Bennett discussed in trying to create a First Amendment-compliant anti-revenge-porn statute, it's not an easy challenge: The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test. At best, Bennett tries, as an exercise, to see if it would be possible to extend obscenity laws to cover "revenge porn," but that would massively expand obscenity laws, again in potentially dangerous ways. The problem here is that pretty much everyone agrees that revenge porn is a really horrible thing -- but any attempt to criminalize it will have serious implications way beyond the targeted issue. Instead of following Franks down that dangerous road, it would be wise to focus on ways to use existing laws to go after those who are clearly engaged in related questionable behaviors. Changing the laws to put the burden on third parties is only going to create significant new problems. I'm disappointed that my own Representative in Congress, Jackie Speier, appears to not realize this, and I will be contacting her office to express my concerns about the bill.Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
It really looks like Hollywood has finally gotten its own private police force in the form of the tiny City of London Police (not to be confused with the London Metropolitan Police -- as everyone always wants to remind people). The City of London Police, technically, are in charge of protecting a tiny spec of London, right in the middle -- covering about a square mile, with a population of about 7,400 people. Yet, because of the "London" name, people often think they're bigger and more important than they really are, and the legacy entertainment industry appears to have seized on this in a big, big way, gleefully supporting their efforts. Of course, the UK government has helped as well, by giving the City of London Police £2.56 million ($4.3 million) to take orders from the entertainment industry. And we've seen just how hamfisted these efforts have become. Last fall, the City of London Police started ordering registrars to shut down a bunch of websites based on no legal authority whatsoever, and no court order (no court proceedings at all). It was just the City of London Police saying so. And the ridiculous part is that many clueless registrars complied, despite it being against ICANN rules to do so. Over the past few months, the City of London Police have also been targeting advertising on sites that the entertainment industry tells them are illegal -- again with no actual review by a court to determine if those claims are accurate. Their latest move is to create a "pirate site blacklist" that they will give to advertisers, telling them they should not allow advertising to go on those sites. The list was put together "in collaboration with entertainment industry groups." The City of London Police refuse to reveal what's on the list, despite the fact that the list was put together with taxpayer funds in the UK. This is problematic for any number of reasons, but the biggest may be what happened the last time such a list was put together. As you may recall, a bunch of the same music labels came up with a very similar list for advertising giant GroupM, a part of WPP three years ago. And that list, which eventually was revealed, was such a mess that it included tons of legitimate sites including hip hop blogs, Vimeo, SoundCloud and more. The most ridiculous of all? The list, which was mostly put together by people at Universal Music, included Universal Music artist 50 Cent's own personal website. One would hope that the labels and the City of London Police will be more careful this time around, but given that they're keeping the taxpayer-funded list a secret, who can tell?Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
Disney is the country's foremost copyright enthusiast, going so far as to have a law unofficially named for its most famous character, one whose very existence ensures the march towards copyright protection in perpetuity. But Disney is no slouch in the trademark department, especially if anything happens to slightly resemble its prized mouse. Enter Deadmau5, DJ, producer and wearer of some of the most magnificent head accoutrements this side of pimps and/or Lady Gaga. Deadmau5, aka Joel Zimmerman, has finally caught the attention of Disney's IP lawyers with his latest trademark registration, a head-on view of his logo. This logo, which Deadmau5 has used for years (trademark registrations for another view of the logo/headgear dates back to 2009), has been greeted with this. On Friday, Disney let it be known at the U.S. Trademark Office that it is investigating a trademark registration filed by Deadmau5 (pronounced "dead mouse"). Compare the above with Disney's infamous, undead mouse. Sure, there's some comparison but it would take serious myopia to confuse the two. For one, Disney's exploitation of this iconic image has imprinted it on the minds (and wallets) of millions of people worldwide. Plus, every piece of merchandise marketed by the Disney Corporation also contains its equally ubiquitous Disney scrawl, letting the purchaser know that they're paying too much for this otherwise unremarkable product. But to hold a trademark means defending it, even when "defending" more often resembles "attacking" and when a moron in a hurry not only wouldn't be confused, but would bypass both products in his haste to spread ignorance at the nearest water cooler/house party/comment thread. It's totally within Disney's rights to contest this, and to protect its most cherished piece of IP, there's no way it won't. As far as Disney is concerned, there's only one mouse logo in the world and it already owns it. [Besides, I've seen worse go unpunished. Of course, it helps that the album using this artwork was never released…] Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
At the bottom of a Mother Jones article covering a "behind-closed-doors talk" by former Vice President Dick Cheney -- in which he talked up (to applause) the idea of bombing Iran and whined that President Obama was too weak in the Middle East -- the authors mention that actually much of his speech was devoted to defending the NSA. Apparently, he did this by flat out lying. There is the belief, he said, "that we have created in the National Security Agency this monster bureaucracy that's reading everybody's mail, listening to everybody's phone calls, infringing upon our civil liberties and civil rights. Hogwash." He claimed that there has not been a single case of NSA abusing its authority. Well, except an internal NSA audit that was reported on months ago actually found that the NSA abused its authority thousands of times per year. And, really, a big part of the complaints aren't necessarily that the NSA abused its authority, but that even if they didn't "abuse their authority" that the ability to collect all this information was legal in the first place. Meanwhile, we also know that there are also a bunch of cases where the NSA has admitted analysts willfully abused their powers. And, while the NSA claims that it's caught all of those involved, a large percentage of them involved "self-reporting," which suggests many cases of abuse slipped under the radar. And, of course, there were many other known abuses as well, including many years in which the NSA flat-out ignored the FISA court's rules on handling metadata, allowing it to be shared widely, despite rules and promises not to do so. This also ignores the fact that both a federal judge and the federal government's privacy and civil liberties oversight board (PCLOB) found the program unconstitutional and illegal. Yes, others have found that the program is legitimate, but to ignore the still open-ended question as to the legitimacy of the program to argue that there's been "no abuse" of authority is ridiculous. Hell, even the famed rubber stamping FISA court came close to shutting down the program and elsewhere discussed how the so-called privacy protections within the program was "so frequently and systematically violated" as to mean that they have "never functioned effectively." I don't know about how Dick Cheney defines "abuse their authority," but it seems like there's fairly strong evidence of pretty widespread abuse -- much of it taking place while Cheney was in power. Of course, since his definition of "abuse" seems to be "doing something that Dick Cheney personally doesn't like," then, I guess he'd be correct. But, given the rather clear -- and flat-out admitted -- cases of abuse, combined with significant claims that the entire program is abusive -- it would appear that Cheney is simply lying.Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
Pervasive and extensive copyright law is damage. Route around it. This team of newcasters did (even though it really didn't need to), resulting in something much more entertaining than the content being withheld. WCJB TV20 in Gainesville, Fla., couldn't legally show highlights of the University of Florida Gators' win over the University of Dayton on March 29. Instead of waiting for footage rights to recap the game, sports anchor Zach Aldridge recruited his coworkers to recreate the game's biggest moments in an office conference room. Here are the highlights, as recreated using only classically-trained newscasters, a small hoop and a ball. Even the game-ending tears of a Florida Gators player are reenacted for posterity. In his introduction, Aldridge claims the station would be unable to play the highlights until the following day unless it "broke a whole bunch of laws." Clearly, the use of highlight clips would be covered under fair use (hello, criticism, commentary and NEWS REPORTING). But you know what? Screw the restrictive IP climate that surrounds every major sporting event. Why play by those rules? Route around it while highlighting the restrictive stupidity that prevents you from showing viewers what they came to watch. Have that clip go viral (388,000 views and counting), rather than the NCAA-approved clips handed out to local broadcasters like gifts from a begrudging God. I guess this is what maximalists mean when they say strict IP enforcement encourages creativity and innovation. (Oh, and don't even think about drinking your beverages in anything but an NCAA-approved sponsor's cups.) Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
We've been talking a lot about the power and importance of open access for academic (and especially government funded) research. More and more universities have agreed, with some even having general open access policies for their academics, requiring them to release research under open access policies. This makes sense, because one of the key aspects of education and knowledge is the ability to share it freely and to build on the work of others. Without open access, this is made much more difficult. So it's immensely troubling to discover that one of the biggest science publishers out there, Nature Publishing Group, has started telling academics that they need to get a "waiver" from their university's open access policies. The issue was raised by Duke's Scholarly Communications Officer, Kevin Smith, though it's likely happening at other universities as well: A new thing started happening here at Duke this week; we began getting inquiries from some faculty authors about how to obtain a formal waiver of our faculty open access policy. We have had that policy in place for over three years, but for the first time a single publisher — the Nature Publishing Group — is telling all authors at Duke that they must obtain a waiver of the policy before their accepted articles can be published. It is not clear why NPG suddenly requires these waivers after publishing many articles in the past three years by Duke authors, while the policy was in force and without waivers. Indeed, the waivers are essentially meaningless because of the way Duke has implemented its open access policy. When the policy was adopted unanimously by our Academic Council in March 2010, the statement in favor of openness was pretty clear, but so was the instruction that implementing the policy not become a burden to our faculty authors. So throughout the ensuing years we have tried to ensure that all archiving of published work in our repository be done in compliance with any publisher policies to which our authors have agreed. NPG allows authors to archive final submitted manuscripts after a six month delay, so that is what we would do, whether or not the author sought a policy waiver. But suddenly that is not good enough; Nature wants a formal waiver even though it will have no practical effect. The demand seems to be an effort to punish authors at institutions that adopt open access policies. As noted above, there seems to be no need for such a waiver in the first place, given current policies, but it's still quite troubling that Nature would push for such a thing. Smith notes that the effort in many ways backfires, since it's really only served to remind Duke's faculty that Duke has this open access policy -- perhaps leading more of them to remember to "self-archive" papers they've gotten published in Nature. But, still, the request from Nature is quite troubling, as Smith again details: This effort to punish faculty who have voted for an internal and perfectly legal open access policy is nothing less than an attack on one of the core principles of academic freedom, faculty governance. NPG thinks it has the right to tell faculties what policies are good for them and which are not, and to punish those who disagree. As my sense of outrage grew, I began to explore the NPG website.  Initially I was looking to see if authors were told about the waiver requirement upfront.  As far as I can tell, they are not, in spite of rhetoric about transparency in the “information for authors” page.  The need for a waiver is not even mentioned on the checklist that is supposed to guide authors through the publication process.  It seems that this requirement is communicated to authors only after their papers have been accepted.  I suspect that NPG is ashamed of their stratagem, and in my opinion they should be. Smith also notes that as he explored Nature's terms more carefully, he realized that they also play some other questionable games, including getting anyone having a paper published in Nature to waive their moral rights. As he notes, moral rights (except in a few specific instances) are not recognized in the US, but they are common elsewhere. And he wonders why Nature could possibly want authors to waive the attribution right that is embedded within moral rights: But my point here is to wonder why NPG requires all of its authors to waive their right of attribution. This is not an incidental matter; the clause is carefully structured to attempt to get authors even from the countries that do not allow the waiver of moral rights — they are considered that important – still to promise not to assert those rights (whether or not that would be enforceable in those countries). Nature actively does not want its authors to be able to insist that their names always be associated with their work. Why? Does NPG imagine reusing articles it is given to publish in other ways, without providing proper attribution? If this seems like a remote possibility, it remains the only conceivable reason that NPG would insert this bizarre clause. All of this leads Smith to point out that Nature seems to be attacking two separate, but fundamental values in academic publishing: both attribution and open access to knowledge. It should make many academics think twice about whether or not they wish to have their articles published in such an enterprise.Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
The NSA's new home in Utah is increasingly looking like a bad idea. While local politicians were likely delighted to have a federal money funnel set up shop in state, that initial euphoria has faded in the wake of the Snowden leaks. Multiple legislative attempts have been mounted by various states to basically nullify the NSA's programs, either directly or indirectly. In Utah, the leverage point has been the public utilities. There is no doubt that the NSA's new data center consumes massive amounts of electricity. But it also goes through water like… water. Not much is known about how much the data center uses (estimates place it at about 1.2 million gallons a day), but one fact that has emerged so far is that the NSA is paying far less ($2.05 vs. $3.35) per thousand gallons than other high-volume businesses. The Tenth Amendment Center has been pushing for the adoption of legislation aimed at cutting off public support (meaning "public utilities") for the NSA's domestic surveillance programs. While this legislative battle has been moving forward, attempts to gain more insight into the NSA's utility usage have been stonewalled by both the City of Bluffdale and the NSA itself. Fortunately, the state has stepped up and ordered Bluffdale to release the NSA's water usage records. This month, the Utah State Records Committee ruled that the City of Bluffdale must release water records pertaining to the massive NSA data center located there. Salt Lake City Tribune reporter Nate Carlisle pursued the information, and his success shows how a series of small, seemingly insignificant actions can lead to a major victory. The committee voted unanimously to require the city to make details of the NSA’s water use public last week. The City of Bluffdale was a major combatant, insisting on collecting a $45/hour fee for compiling responsive documents. All told, the total stood at $767.45 when the reporter brought this to the attention of the State Records Committee. The agency itself was no better. It refused to release info on its water usage by relying on the same excuse it uses for everything: terrorism. By computing the water usage rate, one could ultimately determine the computing power and capabilities of the Utah Data Center. Armed with this information, one could then deduce how much intelligence NSA is collecting and maintaining, and this clearly relates to one of NSA's core missions, which is the collection of foreign intelligence. Robert McMillan at Wired calls bullshit on this argument. The reality is that Sherman's argument requires a pretty big leap of logic. Data center engineers can get rough ideas of compute power based on how much power a building consumes, but figuring this out on water is another matter. Some data centers, like Facebook's facility in Prineville, Oregon, use custom-made swamp coolers to mist the air and cool down servers. Others push hot air into evaporative cooling towers, which are kept cold by running water. "There are many different ways to cool a data center," says Jonathan Koomey, a research fellow at the Steyer-Taylor Center for Energy Policy and Finance at Stanford University."Without knowing more about the actual facility then I don't think anyone's going to give you solid [computing capability] numbers." Without access to all of this water, the NSA's shiny new home can't function. That it consumes over a million gallons a day (at least) should be of concern to Utah's residents, especially considering the ongoing water management issues the state is facing. Early in 2013, water experts met to discuss the problems inherent in the nation's second-driest state -- one which also sports the nation's highest birth rate. Among the many suggestions were removing the tax subsidies from water that kept prices artificially low and starting to meter secondary usage. Nowhere in the discussion was a suggestion to funnel 400+ million gallons a year into a surveillance agency's data center. This cut rate on top of an already artificially low water price would explain the attractiveness of the locale to the NSA, but in the end, it's the rest of Utah's citizens who will be screwed. When its water usage details are finally revealed, one can safely expect there to be more public support for the Tenth Amendment Center's attempt to literally drain the agency of resources. Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
Mosquitoes are a serious pest. They spread terrible diseases like malaria and dengue fever, and they're just generally annoying to people. So it's no surprise that quite a few methods have been developed to kill them off in significant numbers, if not entirely. There are actually thousands of different kinds of mosquitoes, and some of them are completely harmless to humans. But if we could target just the ones that spread diseases, we could prevent an enormous amount of death and suffering. Is it really safe to drive mosquitoes to extinction? Here are just a few ways we're trying to do it (regardless of whether we should). Mosquito-borne diseases kill about a million people each year and have killed more people than war, cancer or heart disease. Releasing a genetically modified mosquito could push these insects to near extinction, and this appears to be a very effective way to kill off mosquitoes. [url] DDT was once the weapon of choice for killing mosquitoes, but these bugs have developed a resistance to DDT and other chemical pesticides. Researchers are learning more about how DDT resistance develops in mosquito populations, but spraying different chemicals might not be the best solution for controlling mosquitoes. [url] For a few years, Nathan Myhrvold has been promoting a laser system to shoot mosquitoes. So far, this Death Star for mosquitoes doesn't seem to be very practical, but zapping insects with lasers is an entertaining idea at least. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
One of the defining characteristics of online journalism is the possibility for readers to respond immediately, and to debate with each other in the comments -- something that was much harder and slower in pre-digital days. Generally, that has been regarded as welcome, since it means that authors can engage more easily with their readers, and the latter become active participants rather than simply passive recipients. However, some research in the field of science journalism suggests that there might be a serious downside to this ability of the readers to express their views freely: about 2,000 people were asked to read a balanced news report about nanotechnology followed by a group of invented comments. All saw the same report but some read a group of comments that were uncivil, including name-calling. Others saw more civil comments. "Disturbingly, readers' interpretations of potential risks associated with the technology described in the news article differed significantly depending only on the tone of the manipulated reader comments posted with the story," wrote authors Dominique Brossard and Dietram A. Scheufele. "In other words, just the tone of the comments . . . can significantly alter how audiences think about the technology itself." Although the research was about science articles, it would be reasonable to assume a similar effect occurs for most kinds of online journalism, with "uncivil" comments leading to skewed perceptions of the matter being discussed. Good thing Techdirt readers never resort to name calling... Follow me @glynmoody on Twitter or identi.ca, and on Google+ Permalink | Comments | Email This Story    

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posted 22 days ago on techdirt
Three more documents have been pried from the cold, decidedly-not-dead hands of the Office of the Director of National Intelligence. Rather than tell us how INTERESTED the intelligence "community" is in this dialogue it's been forced into by leaked documents, the ODNI unceremoniously dumped these on the national desktop before skipping town for the weekend. At least this time, it had the decency to namecheck the EFF's FOIA lawsuit, albeit over at Twitter rather than at the official ODNI blog. There are three documents this time around, one of which is an update of Judge Walton's corrective measures put in place after discovering the agency's phone metadata program had not been run correctly since its institution. It's a good read but most of it's been covered here before. The most notable aspect is a discussion of the "alert list," the numbers the NSA used to search incoming phone records. As of 2006, the NSA had 3,980 phone numbers on the list, all of which were deemed to meet the "RAS (reasonable articulable suspicion) standard." This was what was represented to the court. But it was discovered that many more than that had been used for queries without RAS or court approval. Unfortunately, the universe of compliance matters that have arisen under the Court's Orders for this business records collection extends beyond the events described above. On October 17, 2008, the govemment reported to the FISC that, after the FISC authorized the NSA to increase the number of authorized to access the BR metadata to 85, the NSA trained those newly authorized on Court-ordered procedures. Despite this training, however, the NSA subsequently determined that 31 NSA analysts had queried the BR metadata during a five day period in April 2008 "without being aware they were doing so." (emphasis added [by Judge Walton]). As a result, the NSA used 2,373 foreign telephone identifiers to query the BR metadata without first determining that the reasonable articulable suspicion standard had been satisfied. That's five days worth of searching records with 2,373 numbers that didn't meet the FISC court's standards or the NSA's own stated minimization procedures, with a possible three "hops" worth of data added. As the court has pointed out before, bypassing these standards makes the harvesting of this data illegal. Regardless of what factors contributed to making these misrepresentations, the Court finds that the government's failure to ensure that responsible officials adequately understood the NSA's alert list process, and to accurately report its implementation to the Court, has prevented, for more than two years, both the government and the FISC from taking steps to remedy daily violations of the minimization procedures set forth in FISC orders and designed to protect [redacted] call detail records pertaining to telephone communications of U.S. persons located within the United States who are not the subject of any FBI investigation and whose call detail information could not otherwise have been legally captured in bulk. Illegal capture of data that went unhindered for two years, despite daily violations. Who's looking out for Americans? Well, supposedly it's the good people at the NSA, along with its various levels of oversight. But if the oversight only gets its "facts" from the NSA, it's hardly in any place to provide oversight. Also included in this document dump is another FISA court order limiting the NSA to court-approved searches (with emergency exceptions). Again, this is a direct result of the NSA's continued failure to abide by the limitations of the law and its own internal policies. The most interesting document is a supplemental order from the FISA court, which serves to remind everyone that Section 215 covers a whole lot more than just telephone metadata. The RFPA generally provides that "no Government authority" may obtain "financial records" from a "financial institution" unless one of several exceptions applies. fig 12 U.S.C. 3402; see also id, 3403. Under one of those exceptions, the FBI may, without prior judicial review, compel a financial institution to produce financial records, provided that a designated FBI official has certified that the records are relevant to an authorized foreign intelligence investigation. 50 U.S.C. 34l4(a)(5)(A). Pursuant to Section 1861, the government may request, and this Court may grant, "an order requiring the production of Q1 tangible things (including books, records, papers, documents, and other items)" 50 U.S.C. 1861(a)(1) (emphasis added). Section 1861 requires the government to provide the Court with a "statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant" to a foreign intelligence investigation, id, 1861(b)(2)(A), and the Court to determine that the application satisfies this requirement, 5; id 1861(c)(l), before records are ordered to be produced. Although the RFPA contains no provision explicitly allowing the production of financial records pursuant to a Section 1861 order, the Court agrees with the government that it would have been anomalous for Congress to have deemed the FBI's application of a "relevance" standard, without prior judicial review, sufficient to obtain records subject to the RFPA, but to have deemed this Court's application of a closely similar "relevance" standard insufficient for the same purpose. So, under the same authority, the FBI (and consequently, the NSA) is allowed to collect almost any "business record," provided it is deemed "relevant" to a foreign intelligence investigation. Marcy Wheeler suggests that this collection of financial records may explain the spike in FISC orders that began in 2010. In addition, the number Section 215 orders started going up drastically in 2010, along with the number of orders the FISC modified to require minimization procedures. Nevertheless, the reports show us two new things. I’ve suggested that 176 modified applications may suggest the government has as many as 44 bulk collection programs, which would be renewed every three months (or, alternately, a whole lot more specific bulk collection orders). That is, this rise in what are almost certainly bulk collection orders came around the same time as FISC “Bates-stamped” the collection of financial records with Section 215. Phone metadata has been the issue on everyone's minds these past few weeks, but the reality is that the NSA is collecting several other bulk records under the same authority. And these are all obtained under the pretense that they're somehow "relevant" to a terrorist-related investigation, even though they're gathered in bulk and any minimization procedures can only be speculated on at this point in time. Even "just metadata" from phone records can paint a pretty accurate picture about someone "incidentally" caught up in the NSA's dragnet. Add another few dozen forms of "metadata" and it's pretty much indistinguishable from giving the agency unfettered access to the everyday lives of millions of people. Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
As regular readers here on Techdirt will know, I've been talking about the importance of understanding what happens to economic equations when the marginal cost of something is zero for over 15 years already. It's a very common theme around here. One of my complaints has been that those who came out of an economic world viewpoint in which economics is entirely about dealing with the efficient allocation of scarce resources, tend to fall into a weird intellectual black hole when they try to put a zero in the equation. But I've long argued that this is the wrong way to look at things. The basic equations still work fine, it's just that you have to recognize the flip side of zero is infinity. When you have a zero marginal cost item, you are creating an infinite good -- a resource that can never run out. When you begin to realize that you have a new form of resources -- inputs in economic terms -- suddenly you realize that you're massively expanding the pie, allowing incredible new things to be created from that limitless pool of resources. That's powerful stuff. So, as you can imagine, I was excited when the publisher of Jeremy Rifkin's new book, The Zero Marginal Cost Society: The Internet of Things, the Collaborative Commons, and the Eclipse of Capitalism, reached out to send me a promo copy a few weeks ago. I am only halfway through it, so I'll probably write more about it when it's done, and there's an awful lot of really interesting examples and profound thinking going on. So I'm really enjoying the basic part of it. However, there's one aspect of the book that I have trouble with, and it's exemplified in Rifkin's op-ed in the NY Times a few weeks ago, called The Rise of Anti-Capitalism. You can probably already suspect the problem I'm seeing, based on the title. The explanation of zero marginal cost and how more and more of our economy is heading there is spot on. And, as we've been noting for over a decade as well, this goes way, way beyond just "content" like music and movies. It's going to impact nearly every important industry in our lives: The first inkling of the paradox came in 1999 when Napster, the music service, developed a network enabling millions of people to share music without paying the producers and artists, wreaking havoc on the music industry. Similar phenomena went on to severely disrupt the newspaper and book publishing industries. Consumers began sharing their own information and entertainment, via videos, audio and text, nearly free, bypassing the traditional markets altogether. The huge reduction in marginal cost shook those industries and is now beginning to reshape energy, manufacturing and education. Although the fixed costs of solar and wind technology are somewhat pricey, the cost of capturing each unit of energy beyond that is low. This phenomenon has even penetrated the manufacturing sector. Thousands of hobbyists are already making their own products using 3-D printers, open-source software and recycled plastic as feedstock, at near zero marginal cost. Meanwhile, more than six million students are enrolled in free massive open online courses, the content of which is distributed at near zero marginal cost. Frankly, I think the power of zero marginal cost goods -- or, as I prefer to call them, infinite goods -- is almost entirely ignored in energy, manufacturing and education (and, importantly, also in healthcare and finance). So it's certainly encouraging to see Rifkin highlight where this is all heading. Where I run into trouble, however, is his belief that this then leads to "the end of capitalism" or "anti-capitalism." To be clear, he explains how what comes out of this, a more collaborative society, will be a great thing. And, again, there's some agreement there. I just think that it's still very much capitalism. Capitalism does not mean that collaboration does not happen. In fact, collaboration is a key part of a well-functioning capitalist society. Ronald Coase famously laid out his theory of the firm in 1937, which explains how transaction costs are a key element in leading people to create long term collaboration. A zero marginal cost world will change the nature of those transaction costs, and will certainly change the nature of collaboration and companies, but it's not anti-capitalist. It's actually more exactly capitalist, where collaboration takes place with more transparency and more information. Those who believe that collaboration is anti-capitalist tend to misunderstand capitalism -- either as extremist Randian Objectivists, or those so opposed to capitalism, often based on believing capitalism is what Randian Objectivists say it is. Take, for example, this aspect of Rifkin's argument in the NY Times piece: THE unresolved question is, how will this economy of the future function when millions of people can make and share goods and services nearly free? The answer lies in the civil society, which consists of nonprofit organizations that attend to the things in life we make and share as a community. In dollar terms, the world of nonprofits is a powerful force. Nonprofit revenues grew at a robust rate of 41 percent — after adjusting for inflation — from 2000 to 2010, more than doubling the growth of gross domestic product, which increased by 16.4 percent during the same period. In 2012, the nonprofit sector in the United States accounted for 5.5 percent of G.D.P. [....] This collaborative rather than capitalistic approach is about shared access rather than private ownership. For example, 1.7 million people globally are members of car-sharing services. A recent survey found that the number of vehicles owned by car-sharing participants decreased by half after joining the service, with members preferring access over ownership. Millions of people are using social media sites, redistribution networks, rentals and cooperatives to share not only cars but also homes, clothes, tools, toys and other items at low or near zero marginal cost. The sharing economy had projected revenues of $3.5 billion in 2013. Except, when you look, the most successful and disruptive examples of this "collaborative" approach are not non-profits or civil society, but rather perfectly capitalist companies, that have actually unlocked tremendous potential for revenue not just for themselves, but their users. Things like AirBnB, Uber, Lyrt, Sidecar, FlightCar, RelayRides, Zaarly, LendingClub, AirTasker, Kickstarter, LiquidSpace and many, many more are disrupting all sorts of industries, but doing so in ways that are actually about the more efficient use of resources, unlocking potential that had previously been locked up (often because the transaction costs were too high). But they're not anti-capitalistic at all. They're making capitalism much better. They're helping to move away from power being held by just a few large companies, towards ones where individuals have more power directly. These aren't non-profits or civil society creating these disruptions, and it seems odd for Rifkin to imply that's what's happening. That's not to knock non-profit organizations or civil society groups -- both of which do great things in many cases. But it conflates a variety of different issues to argue that the response to a zero marginal cost society and infinite goods is that non-profits and civil society "take up the slack." Instead, what we are seeing is that new forms of (very capitalist) companies are forming. They're disruptive -- but disruptive in a good way. They're often about providing more economic freedom and power out to users, such that the transactions are actually beneficial to all players, rather than having a few large companies hoarding the power in the middle. But having companies hoard power has never been true capitalism in the first place. It's always been the problem that occurs when you have transaction costs that are too high, sometimes driven through political and regulatory capture, allowing certain firms to gain monopoly or oligopolistic control over certain markets, allowing them to create economic friction, increase transaction costs, and keep most of the value created, rather than distributing it to the end points. However, the new disruptive players in the market are often reversing that trend. They're increasing trust, decreasing transaction costs, spreading much of the value to the end points, and simply taking a small cut of the transaction along the way. That's not anti-capitalist, or the "end of capitalism" -- it's about a better recognition of what true capitalism is supposed to be about: more efficient transactions, with minimal friction, where all parties benefit from the transaction. So there's plenty that I find compelling in Rifkin's book and theories, but I think that he makes a leap too far in arguing that it somehow goes against capitalism, or that civil society and non-profits are somehow "the solution" to a problem that's not clearly a problem.Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
Here's the sort of thing that results when bad behavior is greeted with worse behavior. The bad behavior is production companies seeking tax breaks. Politicians love to grant these tax breaks because a) they like having celebrities around and b) they've bought into the perception that somehow shooting a movie or TV series in town is a net fiscal gain for the community. Generally speaking, the first is almost always true and the latter is seldom ever true. A 2010 Tax Foundation study found that most cities granting tax breaks make back less than $0.20 per dollar "invested." Media Rights Capital, the company behind Netflix hit "House of Cards," has already collected $26.6 million from the state of Maryland. But it isn't enough. It began late last month when Charlie Goldstein, the senior vice president of Media Rights Capital, sent a letter to Maryland Gov. Martin O'Malley, threatening to leave the state if the show was not provided with millions of dollars more in tax credits for which it believes it should qualify. In the letter, Goldstein wrote that the company would "break down [their] stage, sets and offices and set up in another state." This is standard operating procedure for studios -- playing cities and states off each other in hopes of obtaining perpetually escalating tax breaks in exchange for a steadily diminishing ROI on taxpayer funds. Totally the sort of thing the state should have expected when it started handing out free money. The response, however, was even worse. Rather than calling the studio's bluff and helping it pack its bags, a legislator chose to do this: Delegate Bill Frick introduced an amendment to a budget bill that would allow Maryland to seize the production company's property under eminent domain in the event it leaves the state. Of all the wrong things legislators have ever done, eminent domain is one of the very worst. Bill Frick has an excuse, however. Frick said the move was inspired by the style of politics depicted on "House of Cards" and by the show's ruthless protagonist, Frank Underwood, who is played by Kevin Spacey. He told Business Insider, he thought, "How would Frank Underwood respond?" Frick said his eminent domain plan was the "most dramatic" thing he could think of to counter MRC's threat. In what will surely be recorded in the legislative history books as a "Frick move," a legislator has managed to outdo the studio in terms of sheer, manipulative nastiness. Yes, Frick would do Frank Underwood proud, but is that what we really want from our legislators? Frick's amendment doesn't specifically name the studio but its cutoff line of $10 million or more in tax breaks leaves "House of Cards" stranded on an island made of taxpayer funds. It also puts the legislator in the rare position of openly espousing Marx's calls for the State to seize the means of production from the Elite, something that plays better in hazy dorm rooms than in a system where corporations have been determined to be "people." While Frick's amendment passed a voice vote in the House of Delegates, the state Senate approved its own legislation -- which increases the tax credits available to companies -- with a 45-1 vote. Either way this pans out, the taxpayers will lose -- whether they're footing the bill for more tax breaks that won't create long-term wealth, or watching their representatives carve a legislative toehold for the future seizure of certain businesses. Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
A few weeks ago, a friend sent over a link to a website called CreativeFutures -- a Hollywood-created organization to (of course) push for anti-piracy efforts. What was really weird about it was that it seemed almost identical to a different such organization, called Creative America, which the same studios had used as a center piece in pushing SOPA, but which had gone quiet. The NY Times, however, has cleared up the mystery. Apparently, CreativeFutures is Creative America, with a new name and a new leader... who seems to be pulling out the same bad playbook on how to deal with innovative technologies that have changed the market for video. Here's a tip: any time you see someone insisting that "the answer" to dealing with widespread infringement is "more education," you know that you're dealing with someone who is either ignorant, or not particularly serious concerning the issue. And yet, here is CreativeFutures new boss, who the NY Times describes as "sassy," Ruth Vitale: One idea — though now it is no more than that — is to build alliances with educational nonprofit groups that might enforce the notion that stealing an artist’s work online is just like lifting from a classmate’s desk. “It’s as simple as this: One kid does a painting, and another kid comes up and puts his name on it,” Ms. Vitale said. For decades, the industry has kept insisting that all people really needed was a bit of "education" and they would magically start shoveling money back down the same payment channels they used to. But, of course, that's never worked. Because it's never been an education issue. It's always been a service problem, in that the industry fails to make works available in a convenient way that consumers want. Yes, the industry has gotten better at this over the years, but they still make it way, way too difficult, and that's why there's infringement. Second, of course, is if the education is focused on having someone else put a name on your work, well, that's plagiarism, not copyright infringement -- and there's a pretty big distinction there. And, here's the thing: people understand that difference inherently. Pretending that they don't -- as Ms. Vitale seems to do here -- is acting as if the general public is stupid. Pedantically talking down to the very public you want to support you, telling them they need to be educated, and then "educating" them with bullshit misleading analogies that have nothing to do with the actual situation and totally misdiagnose the issue... is not exactly a well thought-out strategy. Perhaps, instead of throwing money away on bogus groups like the re-christened CreativeFutures, the movie industry would be better off, you know, letting innovators build better services instead of ones that are totally hamstrung and locked up in ways that are annoying and inconvenient to the public. But, if there's one thing we've learned in decades of watching the MPAA and RIAA do the wrong thing it's that, when given the choice between treating consumers as idiots and actually listening to them, they'll always choose the path where they treat customers as idiots.Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
Disney has always found overbearing copyright protection to be an integral part of its business model, so much so that it has lobbied hard for copyright extensions while plundering the depths of the public domain for source material, shortsightedly failing to realize that one action undermines the other. Disney doesn't get named in too many infringement lawsuits, but like any studio with a big hit on its hands (in this case, Frozen, which just became the most successful animated film of all time), there's always the chance someone will come looking for a piece of the action. Unlike the multiple lawsuits filed against the creators of Avatar, this one, filed by animator Kelly Wilson, appears to have some merit. Wilson's animated short film, The Snowman, has been all over the internet since its release in 2010. It was even entered in several animated film festivals where Pixar employees "were present and competing" in the same category. Wilson doesn't say she personally showed this to Disney employees but she infers that there were many, many ways anyone could have viewed her creation prior to Frozen's development. She does note, however, that Disney's personnel had been supplied with copies of the animated work in the past. Plaintiff created The Snowman and submitted The Snowman—in part and in full—to Defendants as part of job applications on four different occasions from 2009 through 2012. The Snowman was also submitted via DVD to Defendants in 2010 as part of a job application from The Snowman’s co-creator Neil Wrischnik. Disney has surreptitiously appropriated Plaintiff’s valuable work The Snowman to create the FROZEN teaser trailer and the character of Olaf the snowman in FROZEN without any attempt to obtain authorization from Plaintiff or to accord her credit. What's interesting about Wilson's case are two things: One, she isn't going after Frozen itself, but rather its first trailer, which featured a storyline remarkably similar to hers. However, Wilson is looking to grab a part of any and all profits made by the movie because the allegedly infringing trailer was used to promote the film. Two, there are some very distinct similarities to her animated film, as she details in a series of screencaps contained in the filing. Here's the two in motion for comparison: Beyond that, her filing links to other websites and writers who noticed the similarity between the Frozen trailer and Wilson's work, including a Slate writer whose daughter was disappointed the actual movie wasn't just about a wacky snowman. The case, as it's laid out by Wilson and her legal rep, is pretty solid. While there are a few areas that are rather gray (the similarities of any narrative -- antagonist/protagonist, ice is slippery, forest animals are exchangable, etc.), many of the smaller details seem to indicate there's been some copying going on. The Snowman and the FROZEN teaser trailer present the exact same plot in exactly the same sequence… There is no difference in the plot between the two works, except that The Snowman is longer in running time and therefore has additional plot elements. Both works are about: (1) a snowman competing with animals for a carrot nose on slippery ice; and (2) the formerly adversarial animals acting out of friendship to return the carrot nose to the snowman... [T]he artistic rendering of the snowmen in both The Snowman and the FROZEN teaser trailer is likewise substantially similar. Both snowmen are portrayed as awkward, insecure and clumsy, and both are portrayed as having lanky bodies with heads larger than their bodies... [Wilson notes that most snowmen are portrayed as having heads smaller than their bodies elsewhere in the filing.] First, in The Snowman, the snowman competes with the rabbits on the slippery ice to retrieve the carrot. Similarly, in the FROZEN teaser trailer, Olaf the snowman competes with the moose on the slippery ice to retrieve the carrot. Second, in The Snowman, the snowman is able to take hold of the carrot before the rabbit does. Similarly, in the FROZEN teaser trailer, Olaf the snowman is able to take hold of the carrot before the moose does. Third, in The Snowman, the snowman loses his carrot nose to the rabbit when both he and the rabbit have a grip on the carrot but the rabbit ends up wresting control of the carrot from the snowman. Similarly, in the FROZEN teaser trailer, Olaf the snowman loses his carrot nose to the moose when both he and the moose have a grip on the carrot but the moose ends up wresting control of the carrot from Olaf the snowman.. Wilson goes into much more detail in the filing, but her inclusion of independent parties who have noticed the similarities helps set this apart from other lawsuits in which the infringement noted was largely subjective. We'll have to wait for Disney's response to see where this is going, but this lawsuit does look a bit more valid than others that have been filed in the wake of runaway successes. As much as I'd personally like to see Disney get smacked for infringement damages, I'm personally a bit hesitant to back Wilson's claims that an infringed short film is due a cut of the profits made by Frozen, especially considering the allegations only cover a trailer whose events are not part of the larger film. In addition, the demands made might play right into Disney's hands. Wilson asks for Disney to account for "any and all profits" derived from the "exploitation" of The Snowman. Hollywood accounting has shown over the years that some of the most successful movies have yet to show a profit. Deploying enough creativity in the ledger could have Disney offering Wilson a cut of its "empty" pockets. Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
Well, that didn't take long at all. Following Cindy Lee Garcia's bizarre motion for contempt last week, claiming that Google was thumbing its nose at the 9th Circuit's bizarre order to take down all copies of the Innocence of Muslims "trailer" in which she appears for 5-seconds, Google hit back with an exasperated explanation for why nearly everything written in her motion for contempt was simply false. Apparently it was fairly convincing, because the court has wasted little time in denying the motion for contempt, providing no explanation whatsoever. The entire order reads: Appellant's emergency contempt motion... is denied. So much for that little wasteful diversion. Now we wait to see if the en banc 9th Circuit will revisit whether or not it's appropriate to issue a stay on the injunction against Google.Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
One of the key problems with both the Trans-Pacific Partnership (TPP) agreement, and the Transatlantic Trade and Investment Partnership (TTIP), is the lack of scrutiny. Both deals are being negotiated in almost complete secrecy, with very little information being released officially. The justification for this, such as it is, is that the public will have a chance to see the agreements once they are finished, and that this is the appropriate time for transparency. The emptiness of that promise has been shown by the Polish Ministry of Economy's reply to some questions from the Modern Poland Foundation: all the information the EU member states obtained from the European Commission is classified and it is not possible to pass it on outside the state administration. This also concerns the Foundation's request to access the text of the chapter on IPR and the Polish stance in this matter. In compliance with the EU practices, the text of the treaty will be made available only in the final stage of the negotiations, after the signing of the document by both parties. As that makes clear, the public will only get to see TTIP after it has been signed, when it can no longer be changed. The European Commissioners' idea of transparency turns out to be a cruel joke at the expense of the public that pays their not-inconsiderable salaries. However, TTIP and TPP are not the only trade agreements being negotiated behind closed doors. Another has been concluded between China and Taiwan, with a similar lack of scrutiny. In scenes that recall the demonstrations across Europe when people found that they had no power to change ACTA, hundreds of thousands of demonstrators have taken to the streets of Taiwan's capital city, Taipei: Large crowds of demonstrators took to the streets of Taipei to protest efforts by the government to approve a trade pact with Beijing and show support for the students who have occupied Taiwan's legislature for nearly two weeks. Organizers estimated that at least 350,000 people were gathered, as of 2 p.m., on the streets around the Presidential Office Building to express discontent over a pact that would open up dozens of service fields to cross-strait investment. Police counted 116,000 demonstrators by 4 p.m., according to Taiwan's Central News Agency, while some television news stations put the number as high as 700,000. As the New York Times article quote above explains, a key complaint is the fact that there would be no meaningful scrutiny: While many demonstrators are opposed to the service trade pact, the most widely held complaint was that the measure has not been sufficiently examined. A poll before the occupation of the legislature indicated that more than 70 percent of respondents supported a line-by-line review of the pact. That line-by-line review is precisely what granting "fast track authority" to the White House and USTR would make impossible for TPP and TTIP; instead, Congress would have a single "yes" or "no" vote on whether to accept one or both. The ACTA demonstrations in Europe led to the agreement being rejected by the European Parliament two years ago; now it looks like the Taiwanese authorities have also admitted defeat: On Saturday, [Taiwan's President] Mr. Ma attempted to respond to some of the students' demands, saying he would back an itemized review of the trade pact and a law that would allow the legislature to more closely monitor agreements with Beijing. In the light of the massive protests that swept through Europe in 2012, and those now filling the streets of Taipei, both of which were triggered by the refusal to allow any meaningful scrutiny of trade agreements that would have massive consequences on everyday life, the question has to be: do the USTR and European Commission really want to run the risk of repeating that experience by pushing through TPP and TTIP in exactly the same undemocratic manner? Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
Can you smell it yet? The freshly cut grass, the muffled sound of thousands of fans, the wonderous gasps of young people? Baseball is back. I'm generally an avid fan of professional sports and, as I've written about before, a strong promoter of the idea that the pro sports leagues I love so much could benefit greatly from a wider, more open embrace for streaming their games online. Particularly for leagues on the lower end of the popularity and revenue spectrums, I would think that building a wider audience through internet streaming would be a boon to otherwise mediocre broadcasting partnerships. The NHL in particular is known to have absolutely brutal broadcast contracts that aren't supporting teams as well as they could if the league were to attempt to multiply their viewership through streaming. But with Major League Baseball, it's a whole different animal. Teams in Major League Baseball are insanely profitable, in largest part because of the broadcasting revenue. With that in mind, it might seem silly to suggest that MLB should be looking at ways to free up their streaming product. But that's wrong and here's why. First, let's start with a little background and some compliments. Nobody in pro sports leagues does streaming as well as MLB in terms of quality and quantity. For $130/year, you get almost all the games for the entire season in full HD, with options for the radio or television broadcasts offered by either of the teams playing. The stream is reliable and of good quality, with a pop-out media player that's simple. For the games they stream, it works beautifully. You've probably already guessed the problem, haven't you? It's region locked, with the arbitrary borders of a team's fan-base blacked out from their team's streams, both for home games and away games. The idea, of course, is that MLB doesn't want to offend their local broadcast partners by offering their broadcast over streaming as a charged service. Their thought is essentially that the broadcast is TV's product and local advertising is what pays the television stations, who in turn pay MLB for the rights to the games. Let's turn this on its head, though, and see the insane kind of money MLB could make if they stopped seeing themselves as only being in the baseball business and also offered up their established streaming infrastructure to their broadcasting partners. MLB, today, could go to TV stations, cable or otherwise, and offer up their robust streaming platform. MLB would make its money charging more for broadcast rights under that kind of agreement. TV stations in turn could claim a higher viewership than they have today through TV only, allowing them to generate increased revenue in advertising sales and rates. Keep in mind that MLB.TV is using those station broadcasts anyway (for instance, the MLB.TV Chicago Cubs stream is just the WGN/CSN broadcast streamed over MLB.COM). Between internet streaming and mobile devices, viewership numbers would skyrocket. I say this because of how often we're told about the horrific danger of all the sports streaming sites already out there offering the exact thing MLB.TV could be getting paid for. In other words, anyone with an internet connection can already do all this, while MLB.TV could offer the same thing as part of their package with infrastructure they already have in place. In summary, baseball could today, without having to invest in any infrastructure, work with broadcast partners to free up streaming to local fans who can already get those streams through illegitimate services. It would benefit the league, the broadcast partners, the advertisers, and the fans. There is literally no loser in this equation. All it would take is some forward-thinking folks in the league and TV to get over their protectionist traditions and make it happen. In the meantime, my MLB.TV subscription means I can't watch my team play for no logical reason. Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
If you have young kids, you might have noticed that public playgrounds are a bit different than the ones you played on as a kid. Rubberized surfaces have replaced gravel or asphalt, and simple teeter-totters (or see-saws) have been re-designed using viscoelastic materials to prevent dangerous accelerations. You might have noticed it's hard to find monkey bars on playgrounds. The reasons for these changes are obvious: safety and liability. However, are kids still having as much fun outdoors? Here are just a few links on playground equipment. Can a playground be too safe? Maybe some playgrounds are too boring for kids. A new kind of playground lets kids do a few more dangerous activities, but will parents have to sign a consent form for it? [url] In 2001, a report on playground safety stated estimates such as: there were 7.5 playground-related injuries per 10,000 US population in 1999, treated by hospital emergency rooms. This report may have spurred a generation of playground equipment that is safer for kids, but arguably not as fun or enjoyable as homemade rope swings. [url] The next time you see a kid sitting on a parent's lap going down a playground slide, you might want to stop them and point out that it's actually safer for the kid to slide down alone. Too often, well-meaning parents slide down with their toddlers and accidentally fracture their child's leg if a shoe gets stuck and the weight of the parent continues to push the kid down. [url] If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.Permalink | Comments | Email This Story    

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posted 23 days ago on techdirt
For months now, we've been covering how Prenda had been losing pretty much every one of its legal fights concerning its fraudulent copyright trolling practices. I guess it was bound to happen sooner or later, but Team Prenda has bounced back with an actual victory. You may recall that one of the (many) key Prenda cases was taking place in Minnesota, where magistrate judge Franklin Noel, becoming aware of what was happening with Prenda in other courts had reopened a bunch of Prenda (via AF Holdings) cases in Minnesota to explore if Team Prenda had committed fraud upon the court. Noel dug in, demanding actual answers to various questions that Team Prenda had avoided in other cases, eventually ruling against Team Prenda and (importantly) ordering the law firm to pay back all the settlement money it had taken in via those cases. Well, it appears that's all for nothing now. Judge Joan Ericksen has apparently stepped in to put magistrate judge Noel in his place, pointing out that he went way beyond what a magistrate judge is allowed to do and then actually siding with Prenda lawyer Paul Hansmeier in saying that the fact that team Prenda forged Alan Cooper's signatures on the copyright assignment isn't fraud on the court... and, in fact, saying that it basically doesn't matter at all. First, as to a mere magistrate judge sniffing out these problems, judge Ericksen isn't having any of it: AF Holdings consistently objected to the magistrate judge’s authority to determine whether it had committed a fraud on the Court. The magistrate judge had no such authority. See Reddick v. White, 456 F. App’x 191, 193 (4th Cir. 2011) (per curiam) (“A motion for sanctions under the district court’s ‘inherent’ power is not a pretrial matter under § 636(B)(1)(a). Magistrate judges have no inherent Article III powers—they have only those powers vested in them by Congress. Congress has not created statutory authorization for magistrate judges to exercise inherent Article III powers.” Furthermore, Ericksen points out that, as a magistrate judge, Noel can't really make an order like he did (which is likely accurate), but instead can just make a recommendation for a "real" judge like Ericksen to review. And Ericksen just doesn't seem concerned about the forgery, lying and other shenanigans from Team Prenda. Cooper’s signatures were immaterial to the decision that granted AF Holdings expedited discovery.... AF Holdings’ submission of the agreements with Cooper’s signatures—legitimate or not, authorized or not—to evince the transfer of the copyrights to AF Holdings did not amount to a fraud on the Court. It's somewhat disappointing to see a court not all that concerned that an effort that involved forgery is really no big deal, especially when it was about copyright trolling, a practice of abusing the court system to hound people into paying up to avoid having to fight a lawsuit. That's unfortunate, but given how many other courts have ruled on Prenda's efforts and the multiple referrals to state bars, DOJ and others, I would imagine that this is merely a slight and brief reprieve for Team Prenda.Permalink | Comments | Email This Story    

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