posted 23 days ago on techdirt
If you are looking for a new phone or just tired of the insane contracts, you should check out today's deal of 65% off of a Nexus 5 and 1 Year Unlimited Talk-and-Text from FreedomPop . For $200, you get a certified pre-owned, white (black is already sold out), 16 GB Nexus 5. The highly-rated phone comes activated with FreedomPop service, though it is an unlocked phone so you could switch to another carrier with their SIM card. The 1 year of FreedomPop service comes with unlimited talk and text, 500MB 4G/3G LTE data per month, visual voicemail, usage alerts and tethering. After the year is up, you will be charged $19.40 per month unless you change your plan or cancel. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
It has been almost exactly two years since Judge Otis Wright released his blistering opinion of Prenda Law and the guys behind it, John Steele, Paul Hansmeier and Paul Duffy ("Team Prenda"). There have been various fights here and there since then, but the specific appeal in that case was finally heard yesterday and you can (and should) watch the whole damn thing (which runs almost exactly an hour and a half -- though if you're short on time, you can skip the Morgan Pietz part, and just focus on the first and last parts involving Team Prenda's lawyer, Daniel Voelker). If you follow a lot of appellate case or Supreme Court cases, you should know that it's generally not a good idea to read too much into any particular line of questioning, or even to assume which way judges are leaning. In this case, however, it would be nothing short of shocking if Team Prenda comes out of this story "winning" -- though, in an astounding bit of what appears to be cluelessness, Voelker said that Team Prenda would be perfectly happy having part of the case sent back to the lower court for criminal contempt sanctions. The three-judge panel seemed so shocked by this, that they asked him if he was sure, and one judge, Judge Tallman, pointed out: "Do you understand that the maximum penalty for contempt is life imprisonment?" In short, Team Prenda's own lawyer not only seemed completely unprepared and out of his depth in the hearing, he ended up arguing that rather than just pay $250,000, his clients would prefer to face criminal charges with the chance of life in prison (though, admittedly, such a sentence would be highly unlikely). From all indications, all three judges seem prepared to give Team Prenda what their lawyer appeared to be claiming they wanted. There were many guffaw-worthy moments throughout the arguments, including Judge Tallman asking about the infamous Alan Cooper forgery, and Voelker playing really dumb, leading Tallman to ask if the "tooth fairy" made the document appear. Judge Tallman also repeatedly pointed out, in disbelief, that Voelker could assert that his clients had no idea how the document got forged when Cooper was Steele's "gardener" (actually housekeeper, but close enough). All three of the judges seemed well aware of what Team Prenda was up to and how nefarious copyright trolling is. Judge Pregerson, who is 91 years old, talked about how his clerks explained to him how BitTorrent works, and then pretty clearly detailed how Team Prenda (and other copyright trolls) abuse the court system to "extort" settlements from end users. He concludes his description by saying, "Now that is just an ingenious... crooked, extortionate operation." Later he said, "They used our court system for illegal purposes -- to extort money." At least one of the other judges, Judge Nguyen referred to copyright trolling as "extortion" as well. The judges didn't refer to Prenda as a company or a law firm, but rather an "operation." It was a complete bloodbath. The judges also seemed well aware of other Prenda proceedings elsewhere in the country as well. Basically, the judges seemed not just aware of, but very convinced by the evidence against Prenda's copyright trolling practices. Much of the opening part of the arguments consisted of the judges asking Voelker about those facts -- and Voelker dodging every one of those questions or responding that he didn't know, and then going back to procedural questions. The three-judge panel all found this completely unconvincing, and even where they were willing to grant potential procedural problems (mainly with the punitive sanctions on top of attorneys' fees), noted that if they rejected those, at the very least they were likely to (as mentioned above) just send the case back for criminal proceedings, which almost certainly would leave Team Prenda even worse off. Voelker's standard response: "They want their day in court." It sounds like they might get it. There were two other really amazing tidbits, both from Judge Pregerson. First, right after describing the whole copyright trolling mess and (as noted above) calling it a "crooked, extortionate operation," he noted how historic this case was and how badly it was going to reflect on Voelker, even suggesting that Voelker may be implicated directly as well: Pregerson: This is going to be written about for years and years, and you're probably going to be part of the story. They all will be. I don't know where this is going to end up. If they really want to have a trial on this... are you sure they want that? Voelker: Absolutely your honor! They want a trial... Pregerson: Is that what you want? Voelker: Your honor, what I want is irrelevant. I'm just an appellate attorney. I'm not... Pregerson: Well, you may be involved in this. Voelker: I'm sorry your honor? Pregerson: You may be involved! Voelker: I don't believe so, your honor, with all due respect. I'm just the attorney. And then that leads into this astounding bit of courtroom drama: Pregerson: And you're a great lawyer. Voelker: I really appreciate that. Pregerson: That's what your ad says when you go on the internet, right? I wonder how many "super lawyers" there are in this country? Voelker: There are a lot of them. Pregerson: There are a lot of them. And a lot of them is BS too. Ouch. It appears that Pregerson wasn't joking around either. From Voelker's website: Either way, I can't see how the hearing could have gone much worse for Prenda. If you want another recap from someone who knows a hell of a lot more about how epically bad this went for Prenda, check out Popehat's take, which includes this: I have never seen an oral argument go so badly for an advocate. The judges were immersed in the details of the record and plainly convinced that Prenda was a criminal operation that merited some sort of sanction. They clearly viewed the case not in isolation, but as part of a series of cases involving Prenda across the country — most of which are turning out very badly for Prenda. It seemed clear that they believed that Judge Wright had the power to impose some sort of sanctions, and that the record supported his doing so. I know that many of the Prenda watchers among our readers here keep wondering how it is that Team Prenda is not yet in jail. There are a lot of reasons for that, frankly, but their appeal in the 9th Circuit may actually lead them much closer to being in jail, in part because their own lawyer effectively said that's what they wanted.Permalink | Comments | Email This Story

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posted 23 days ago on techdirt
Last summer, when President Obama finally got around to nominating a new IP Czar (technically the "Intellectual Property Enforcement Coordinator" or IPEC), Danny Marti, we were at least moderately hopeful that he didn't come out of the usual copyright maximalist/Hollywood/legacy industry camp. Instead, much of his work had been on the trademark front, and thus we'd hoped that maybe his focus would be more limited to issues around counterfeiting (which are also overblown in terms of actual concern -- but which have less of a free speech concern). After months of Congressional stalling, Marti was finally officially given the job a few weeks ago. And one of the first things he did was go give a speech at a "Creativity Conference" put on by the MPAA and Microsoft (yes, really), in which he appeared to repeat a bunch of horribly misleading, to downright wrong, talking points. In short, as a first impression, Marti is a disaster. Take a look: After kicking off with a weak joke about his job title, he starts right in with the misleading talking points. Summarizing my job, in the spirit of this conference, I think it's fair to say that the IPEC Office is the Executive branch's "creative conscience." First of all... what? The role is enforcement, which has nothing whatsoever to do with actual creativity. In the past, with Marti's predecessor, Victoria Espinel, we often wondered why there was an "enforcement coordinator" at all, since the job title itself was so one-sided. If anything, if we were to go by the Constitutional rationale for copyright and patents, the role should be one in which it looks to see how best to "promote the progress of science and the useful arts." And enforcement is often not the best way to do that. In fact, as we've spent years demonstrating, enforcement can often harm the progress of the science and the useful arts. So it's interesting to see Marti suggest that his role is about being a "creative conscience." For a second, I thought that maybe this meant he'd actually consider what was best for creativity -- meaning all creators, not just the few who were lucky enough to be selected by the large legacy gatekeepers. But, no, as you'll quickly learn, by "creative conscience" he actually means "protector of a few legacy gatekeepers who often screw over actual creators." Part of my job is to make sure that the administration keeps the impact on creativity top of mind when it adopts policies, makes decisions, and takes action. Again, that's good if we're talking about actual creativity and all creators. But... he's not. I'm also responsible for helping marshal the federal government's resources to help combat violations of intellectual property. Put simply, my office is dedicated to the protection of the American intellectual property system that helps drive our national economy. And there we go, right off the tracks. He is focused on protecting the existing system -- even when it is shown to harm creativity, free expression and innovation. That's a problem. Maybe he didn't really mean that? Nope, he means it: Let there be no mistake and no misunderstanding. Intellectual property is an integral part of the US economy. We're speaking of the spark of genius and the ideas behind transformative inventions, the artistry that goes into books, music and film. The trade secrets that preserve a company's market edge. Or the brands that distinguish our companies and their goods and services. Already, he's making the cardinal sin of talking about intellectual property that we were just discussing: conflating the "property" piece with the underlying aspect of it. The spark of genius is not intellectual property. The ideas are not intellectual property. The artistry is not intellectual property. The brands are not intellectual property. The specific copyright, patents and trademarks may be property-like entities, but those are not the same thing as the underlying content, inventions or brands. As we noted in our piece about confusing those things, when you do that, your policy suggestions are going to be really, really bad. And you're going to make really silly statements like Marti does next: Intellectual property helps create marketplaces that help drive economies, domestically and internationally. For example, the "core copyright industries" -- those whose primary purpose is to create, produce, distribute, or exhibit copyrighted materials -- added more than $1 trillion to gross domestic product and created and supported millions of jobs. That's not true. We've gone through these numbers in the past, and shown how they're simply misleading and no one should be using them to make a serious point. They very broadly define the "core copyright industries" such that any industry that gets copyrights is determined to exist only because of copyright law. And that includes software firms that thrive on giving away services for free and that don't actually rely on their copyrights for anything. Besides, if you want to compare apples to apples, the IIPA who does the study that Marti is relying on, has shown that the "core copyright industry" isn't contributing nearly as much to the economy or economic growth as the internet economy is, and the internet economy is frequently held back by bad copyright laws. Intellectual property-based industries are among the U.S.'s strongest exporters. Well, sure, that's true if you argue that any company with a brand is an "intellectual property-based business," but that kind of thinking takes you down the path of arguing that grocery stores are an intellectual property miracle that only exist thanks to trademark law. And that's plainly ridiculous. Overall, IP industries accounted for over 60% -- Six Zero -- of US exports. Yes, but no one actually believes any of that is because of intellectual property laws, unless you conflate those laws with the underlying things, like brands. The recorded music, motion picture, television and video, and software publishing businesses, for example, contributed to sales in foreign markets exceeding $156 billion dollars. And how much of that is because of copyright law -- and how much of it is because it's content that people find valuable enough to purchase? Marti just ignores the distinction and lumps it all in because of copyright. Also, note, for someone who claims he's focused entirely on being the "creative conscience," his actual focus appears to be almost entirely on the commercial side of the creative ledger. That is why it's so important to understand and protect IP, to foster legitimate trade, and to open foreign markets to US creative content. That last one is a "I work for the President and need to give my shout out to the TPP and TTIP agreements" talking point. But, really, what did he say before that shows why it's "so important to understand and protect IP"? Frankly, I don't see anything. He talked a lot about big numbers, but nowhere did he show why strong intellectual property laws made those things possible. And nowhere did he consider that, maybe (just maybe) weaker IP laws may have actually enabled larger markets, or more creativity. That kind of thinking doesn't even enter the equation, which is kind of odd if you're positioning yourself as the "creative conscience." Does he consider how strong copyright is being used to ban books, steal money from artists, shut down innovative services for creators and expose critics? Does he consider how strong patent laws are being used to stifle innovation and make the technology that creators use much more expensive? What kind of "creative conscience" is he? Does he mention the importance of fair use in enabling creativity? Is he at all concerned about the lack of fair use in these trade agreements that supposedly will "open foreign markets" while stifling free expression? Without understanding these things, for him to just automatically leap to the claim that we have to "protect" the existing system, it's difficult to take Marti seriously. He appears to be repeating talking points with no understanding at all of the underlying nuances. The timing of today's event is fitting. Sunday is World Intellectual Property Day -- a global celebration of the role of intellectual property, of innovation, of creativity, in our daily lives. Is it? Really? No, "World Intellectual Property Day" is a celebration of the legacy gatekeepers that take the copyrights of actual creative people, and push for expanding those laws with no thoughts towards the actual impact on creativity. And the creativity "in our daily lives" is frequently done without the use of intellectual property laws -- and, all too frequently, conflicts with those laws. This year's theme is "Get Up, Stand Up. For Music" invoking Bob Marley and Peter Tosh's tune, to illustrate how song can serve as a call to action.... Bob Marley's song serves as an endearing, international anthem for human rights. Let us tap into this spirit, this call to action, to speak up for artistic communities, the world over. Right. Like, remember that time that Bob Marley's family tried to reclaim the copyrights to two of his albums, including "Burnin'" where "Get Up, Stand Up" first was released? And remember how Universal Music fought that and won, so that Universal Music got to keep the copyright, as opposed to the Marley family? Thank goodness Universal still holds the copyright, or perhaps they would have had to pay Marley's family for the right to use that theme for this year's "World Intellectual Property Day," right? Yes, ladies and gentlemen, Danny Marti is the US's "creative conscience"... for the giant multinational corporations against the actual creative folks out there. And, really, whose brilliant idea was it to use Jamaican music as a call for stronger IP laws -- when anyone even remotely familiar with the history of popular Jamaican music, knows that it involved rampant copying and remixing of others' songs, no concern about copyright at all (until foreign record labels jumped in and started divvying up the pie) and near endless creativity from that ability to remix and try new things. That's not exactly a ringing endorsement for stronger copyright laws. And, again, if we're speaking up for "artistic communities, the world over," how about those who are being blocked from creating new works due to overbearing copyright laws? How about those who are being sued for having a song that has a similar feel to another song? Do they count? Let us stand up for art. Let us stand up for the artist. Let us stand up to respect the artist's right to make a living off of his or her artistic labor. Yes, unless you're Bob Marley's family. Then let us stand up for Universal Music's right to go to court to block the Marley family from that right! Or, unless you're a remix artist creating wonderful new songs by building on the works of the past. Also, where in the constitution does it say that anyone has a "right to make a living off of his or her artistic labor?" I have many friends who "labor" quite hard in making music, but don't make livings from it. Should I send them to Marti to solve that? Will he "marshal the federal government" to make sure they make a living? Because this is another nefarious myth. You have no "right" to make a living from your labor. People might just not value it enough to pay for it. Or you might not be offering it in a format that people will pay. What about my friends who were journalists over at GigaOm, which recently went out of business? They were creating many written words, and laboring very hard at it. But the company went out of business. But if we believe they have "a right to make a living" from their creative labor, shouldn't they be guaranteed a living? Everyone knows that's crazy. So why do we repeat the myth when it comes to music? Most musicians -- in fact, nearly every musician -- has never "made a living" off of their music. Only a very few have. And it's not because they had a "right" to make a living. And let us stand up to forcefully reject those who believe that the theft of one's creative output is somehow acceptable. It is not. Of course, we're back to the misleading use of "theft." Do we consider what UMG did to Bob Marley's estate "theft"? Someone should ask Marti. Does he consider Pharrell and Robin Thicke writing a song with a similar "feel" to a Marvin Gaye song as "theft"? Does he consider a woman posting a 30-second video of her child dancing to a Prince song "theft"? Does he consider artists like Kutiman as theft? Does he consider artists like Led Zeppelin and Bob Dylan -- many of whose greatest works where near note-for-note replicas of others' songs -- engaged in theft? Because any honest discussion of creativity and intellectual property laws has to be able to take into account all of these situations, and the word "theft" doesn't really cut it -- which is also why that's not what the law says. You'd think that the guy whose role is to help enforce the law would understand that copying a song isn't "theft." It's worrisome that he does not. When we speak of the role of creativity in our lives, we're also speaking about human expression, building communities. The sharing of stories -- whether through print, music or film -- brings people together, fosters discussion, builds bridges and helps create common identity. Of course, if that "discussion" or "common identity" strays too far, such as in creating a derivative work, that may be seen as infringement (or in Marti's world "theft") and thus he will "marshal the forces of the federal government" to bring you down. All in an effort to protect the glorious markets of the creative conscience. Our digital lives have only helped to accelerate these discussions, bringing people together and bringing their stories closer. And, because of that, the US government has been actively shutting down websites where those discussions happen and pushing for laws to throw the operators of the websites in jail. And in order to further that, we must strive to build not only an open internet, but a safe, secure and stable one. In other words, not really an open internet. But one that is limited and controlled by multinational gatekeepers. Either way... I feel that we're rapidly approaching the administration's favorite buzzword. I know it's coming, I just know it... and... One way the administration is seeking to do just that is by fostering multistakeholder processes in which all participants in the ecosystem -- government, the private sector, and civil society -- can play a role in encouraging positive internet behavior and marginalizing anti-social and, indeed, criminal behavior. Multistakeholder! Bingo! What do I win? Oh, someone now arguing that rather than encouraging freedom of expression and an open internet, we should try to look for ways to stamp out "anti-social behavior" online. Hmm. Anti-social behavior? Wouldn't that bar songs like "Get Up, Stand Up" that could be seen as "anti-social" in encouraging the public to stand up for their own rights when they are being taken away from them by their government? Rights like freedom of expression? Protecting and advancing a community starts with action by its members. We need to stand up for what is good and reject what is unfair. I think freedom of expression is good. I think shutting down websites that were blogging about music is unfair. I think that supporting programs for site blocking, that take down free speech, is unfair. I think a system that prioritizes the ability of large multinationals to block innovation is "unfair." Yet, these all seem to be things that IPEC supports. Stakeholder responsibility will create an environment conducive to creativity. Let me translate this for you: "Search engines should start censoring sites that the MPAA dubs "unfair" because they challenge the MPAA's business model." It will benefit those who make a living producing creative works. Unless, like Dan Bull (who makes his living producing creative works), you relied on sites like Megaupload to distribute those works and the US government shut it down. It will benefit those who enjoy those works. Unless you no longer have access to them, thanks to US courts censoring them. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. This bears repeating. Respecting IP not only encourages creativity, it also promotes the technologies for communicating that creativity. How? This is a serious question, but I'd like someone to answer it, because history doesn't come even remotely close to supporting that claim as can be seen by Marti's next ridiculous statement: The desire to tell stories to even wider audiences in even more vivid ways, has a long chain of technological innovation, creating new industries along the way. From printing, to radio, to film and television, and now, of course, the internet economy. And each and every single one of those was decried initially by the legacy forces -- the gatekeepers who controlled the previous industries. The printing press was in a time before copyright, but obviously shook the very foundations of society by helping to break it out from Church control. The radio resulted in a massive legal fight as the record labels tried to kill it in its early days. The film industry moved to Hollywood to avoid enforcement of the patents of Thomas Edison, and often relied on copyrighting the innovations of others in the industry. When television came along, the film industry also freaked out and tried to hamper it -- especially innovations like the VCR. And, of course, the internet. We've had lawsuits against search engines, video platforms, MP3 players, book indexes and more. If we "respected" IP in the terms of the legacy gatekeepers, we'd have none of those innovations. Look, I get it: Marti's very job description basically says that he needs to take on the role of propping up the interests of the legacy gatekeepers. But, at the very least, his predecessor, Victoria Espinel, seemed willing to recognize that there was a lot more to what was going on than the one-sided version of history presented by those gatekeepers. Espinel was at least open to the idea that too much IP could create more problems than good things. Marti shows no sign of this recognition, and seems so thoroughly bought into a single world view of intellectual property that he didn't even realize just how ridiculous it was for anyone in the "intellectual property" world to cite Bob Marley as a good example of supporting creators. So go on, Marti, "Get Up, Stand Up!" but recognize that what you're standing up for, is not for the "creative conscience" or for creators themselves, but those who seek to be gatekeepers on that creativity.Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Techdirt has covered its fair share of idiotic legal threats over trademarks, but the following example is spectacular even for a field that has many superb examples of corporate bullying. It concerns the village of Copthorne (population 5,000), in the English county of West Sussex. It's rather well established: it's been around for a thousand years, and is mentioned in the Domesday Book, which was compiled in 1086. Recently, though, its village association was threatened with legal action for using the name 'Copthorne' on its Web site, as the Plymouth Herald newspaper reports: A residents' association in the village of Copthorne was threatened with legal action by a multinational hotel chain founded there -- for using the name Copthorne. Brand protection officers acting on behalf of Copthorne Hotels, which has a large hotel in Plymouth, wrote to the small local group -- saying it was infringing its trademark. As that notes, the hotel chain took its name from the village where it was founded. But there's no sign of gratitude for that in the threatening letter the residents' association received from Millennium & Copthorne International Limited (MCIL), which owns 33 hotels around the world: It has come to our attention that you have registered, without MCIL's permission or authorization, the domain name [copthornevillage.org], which includes a protected trademark of MCIL. This unauthorized use of MCIL's intellectual property falsely suggests MCIL's association with or endorsement of your website and is likely to cause confusion in the minds of the public that the website is associated with or connected to MCIL and the products and services offered by Millennium Hotels & Resorts. As a result, substantial damage is likely to occur to the goodwill and reputation of these trademarks. We require that you immediately disable all content hosted at copthornevillage.org and allow the domain name to expire. Please confirm by return that you have done so within five (5) working days of the date of this letter. After the village group sent off a "strongly-worded letter" mentioning its millennial history, that threat was rescinded. Millennium and Copthorne communications advisor Peter Krijgsman is quoted by the Plymouth Herald as saying: "I can now confirm the 'cease and desist' letter sent to the Copthorne Village Association was sent in error in the course of an exercise carried out by Mark Monitor, a brand monitoring/protection agency. "Mark Monitor will be contacting the administrator of the Copthorne Village Association website to explain this and to apologise for any inconvenience." The "sent in error in the course of an exercise" excuse sounds rather unlikely; this is surely yet another example of legal threats being fired off without even looking at the facts of the case, something that happens all-too-often in the world of trademarks. At least the company concerned admitted the error and apologized -- something that by contrast happens all-too-rarely. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
There are as many different kinds of parenting as there are parents (or more...) -- every kid is different, and no two parents treat their kids the same way. Definitely, some questionable parenting techniques exist, but who's really to say what's correct? (Okay, child services and/or a judge....) Some folks believe in a free-range kid policy, but others think that's crazy or dangerous. If you're not already flooded with parenting advice, check out some of the following links. Intrinsic motivation should be what drives kids to study hard and be diligent with chores. However, there are plenty of parents that try to bribe (or just pay) their kids when they've gotten good grades or mowed the lawn. Do kids learn how to be more responsible when they get paid -- or do they learn to expect a payment for every little task? Perhaps it depends on the type of task. [url] Parental cultures vary quite significantly around the world. It's not uncommon for Vietnamese mothers to potty train kids by 9 months. Norwegian kids take naps in strollers outside in freezing weather. In the Polynesian Islands, toddlers take care of babies. [url] Parenting advice is everywhere -- telling parents not to praise their kids too much.. or to let them play with matches occasionally. Kids certainly do need to learn how to fend for themselves at some point, but between the extremes of helicopter parenting and "Lord of the Flies" parenting, there should probably be a nice middle ground. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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A couple of years ago in the Svensson case, the European Court of Justice (CJEU) made it clear (finally) that merely linking to content is not infringement. That was a case involving a news aggregator linking to official sources. However, in a new case that has been referred to the CJEU, the court will examine if links to unauthorized versions of content is infringing as well. The excellent IPKat has the details of the case which involves a blog that linked to some pre-publication Playboy photos in the Netherlands. A lower court had said that it wasn't copyright infringement, but still broke the law, by facilitating access. On appeal, the court found that the free speech concerns outweighed the copyright concerns. From the description by the lawyer representing the blogger ("Geen Stijl news"): We lodged an appeal on behalf of Geen Stijl on a few grounds which was successful: the Court of Appeal had misapplied the 'quotation' exception in copyright law and did not sufficiently balance the freedom of speech versus copyright protection, as it indicated that 'only in exceptional circumstances' would the freedom of speech outweigh copyright protection, as freedom of speech concerns are taken into account in the law, in particular in the exceptions. The Supreme Court followed our reasoning that copyright is a fundamental right, but that the same goes for the freedom of speech, and that they thus should be considered on equal footing. The Court of Appeal should therefore have considered all relevant circumstances (among which is whether this is commercial speech or a news item) and not only exceptional circumstances. Never before has the freedom of speech been given so much weight in The Netherlands. That's the good news. On the flip side, Sanoma, the Dutch publisher of Playboy, has appealed on its own, and that's the question that is going to the CJEU. It basically asks how to apply that earlier ruling saying linking is not infringing to a case in which the content being linked to is not authorized -- and whether it matters if the linker knew or should have known the content was infringing. Given the scenario, this could become a rather important copyright case in Europe, considering how frequently people may end up linking to content that may be infringing.Permalink | Comments | Email This Story

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Considering the number of documents confirming the FBI's stranglehold on Stingray device information that have been made public in recent months (including the FBI's nearly-blank 5,000-page FOIA response), this move by the DOJ is a surprising development. The Justice Department will start revealing more about the government’s use of secret cellphone tracking devices and has launched a wide-ranging review into how law-enforcement agencies deploy the technology, according to Justice officials. Senior officials have also decided they must be more forthcoming about how and why the devices are used—although there isn’t yet agreement within the Justice Department about how much to reveal or how quickly. So… caveats, obviously. There's more on the way, but we don't know when we'll get it, or how much it will actually be, but at least the DOJ will finally be taking a look at a technology that's being deployed by law enforcement agencies -- often without warrants. And when they do use warrants, they're often obtained with misleading affidavits so as to comply with the non-disclosure agreements the FBI forces them to sign before deploying the devices. This is also surprising, considering the FBI wrote itself a large enough loophole to ensure it never needed to bother with this sort of paperwork. In recent months, the Federal Bureau of Investigation has begun getting search warrants from judges to use the devices, which hunt criminal suspects by locating their cellphones, the officials said. For years, FBI agents didn’t get warrants to use the tracking devices. One wonders how the Wall Street Journal knows this, considering the FBI is the last agency that would publicly confirm or deny anything about its Stingray usage. Perhaps some more documents are on the way whether the FBI likes it or not… But it appears outside scrutiny has finally forced the DOJ to confront the all-encompassing secrecy surrounding Stingrays -- something that routinely excludes defendants and judges and sometimes stretches far enough to lock out other "good guys," like prosecutors and states' attorneys. For the first time ever, legislators are beginning to ask uncomfortable questions about the technology. While the FBI can apparently blow off a majority of the US population -- including the judicial system -- it's not going to have nearly as much luck fending off determined lawmakers. The technology it loves could become the technology it can no longer have -- or at least see it subjected it to a number of requirements that would make it much less enjoyable to deploy. Congressional scrutiny is never comfortable. But another contributing factor is the entities directly and indirectly involved with tracking cell phones: service providers. They're unhappy and they've got a pretty good idea how often requests for data are heading their way and how specious or redundant the requests are. Federal law-enforcement and phone-company officials also have expressed concerns that some local police authorities were abusing a legal shortcut by submitting an inordinate number of requests for cellphone information, according to people familiar with the matter. Some of this is parallel construction. Some of this is abuse of an avenue previously used to acquire specifically-targeted information: pen register/trap and trace orders. It's already public knowledge that law enforcement agencies -- backed by the FBI's own legal rationalizations -- are using these to cover Stingray usage and/or bypass warrant requirements. On top of this, law enforcement agencies are busy ensuring that the words "exigent circumstances" become as meaningless as "relevant" or "probable cause." About a year ago, Baltimore police officials began deluging some phone companies with requests for customer cellphone information, claiming it couldn’t wait for a judge’s order, according to people familiar with the matter. Normally, police need a court order to get that kind of information about a phone customer. But there is an exception for emergency requests. Phone companies’ rules vary, but they generally allow emergency requests to be fulfilled in missing-persons cases or when there is a risk of death or serious injury. Typically, the phone company employee doesn’t ask questions to verify the nature of the emergency. No doubt the Baltimore PD used the hell out of this loophole, what with its 4,300 Stingray deployments over a seven-year period. Whether this examination by the DOJ will result in any meaningful changes is debatable. It could easily decide that everyone's following all the rules, at least as far as the FBI's interpretation of statutes governing pen register orders. That it's actually securing warrants is a positive sign, but it would be nice to see if the affidavits actually specify the devices used to perform the "search." It's one thing to gather data on phone calls. It's quite another to lock down where that phone is located by sifting through everyone's data while pretending to be a cell tower -- especially considering the devices also have the capability to intercept certain communications. Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Remember a few years ago when Apple got in trouble for conspiring with book publishers to raise ebook prices to hurt Amazon and the public? Apparently the company hasn't learned very much. Today comes a report from the Verge, claiming that the DOJ is now investigating Apple for conspiring with the major record labels to get them to kill off Spotify's free tier, in an effort to better promote its own Beats Music service, which has no free tier. Apple has been using its considerable power in the music industry to stop the music labels from renewing Spotify’s license to stream music through its free tier. Spotify currently has 60 million listeners, but only 15 million of them are paid users. Getting the music labels to kill the freemium tiers from Spotify and others could put Apple in prime position to grab a large swath of new users when it launches its own streaming service, which is widely expected to feature a considerable amount of exclusive content. "All the way up to Tim Cook, these guys are cutthroat," one music industry source said. And it's not just Spotify. Apparently, Apple was trying to get labels to pull music from YouTube too: Sources also indicated that Apple offered to pay YouTube’s music licensing fee to Universal Music Group if the label stopped allowing its songs on YouTube. Apple is seemingly trying to clear a path before its streaming service launches, which is expected to debut at WWDC in June. If Apple convinces the labels to stop licensing freemium services from Spotify and YouTube, it could take out a significant portion of business from its two largest music competitors. This is fascinating for a few reasons, even beyond Apple's antitrust troubles over ebooks. In fact, there's some history here as well. A few years ago, there was an investigation, after Apple tried to pressure the labels into killing off daily deals that they were offering to Amazon, as it harmed Apple's iTunes business. And, of course, there's the long history of the labels' relationship with Apple for much of the first decade of the millennium. Almost exactly a decade ago, we wrote about how the music labels all resented Apple because it had become such a dominant force in music with iTunes and the iPod (this was pre-iPhone) and had (for a while, at least) blocked the labels from trying to raise the price of single tracks beyond the original $0.99 price point. Of course, it's quite a sign of how the online music industry has shifted from downloads to streaming that those labels are apparently now working with Apple to focus on trying to stop competitors like Spotify and YouTube. Just a month or so ago, we noted that there had been a series of articles claiming that the labels themselves were conspiring to put an end to free tiers on Spotify and other services, and we pointed out how stupid this was (mainly in the context of Jay-Z's new "Tidal" service). Bringing Apple into the game as well just makes the whole thing that much more ridiculous. Rather than trying to build a better experience for users and give them more value, it appears that the labels and Apples are looking to decrease the value of competitors through coordinated action. It really says something -- and not something good -- when a company thinks the only way to compete in the market place is to kneecap competitors rather than build a better service itself. Competition has shown that great services can be built when they actually do focus on what consumers want. And there's still a long way to go. Spotify still has significant problems, but it's pretty good right now. It's astounding that Apple and the labels think that the right solution is not to build an even better product, but rather to make everyone else's products worse. Once again, it makes you wonder if they actually want to drive consumers back to completely unauthorized services. And here's the thing that's really bizarre: why should Apple care about this at all? Apple is a hardware business. Even when iTunes was dominant, people at Apple would quietly admit that it was considered a "loss leader" or maybe a "breakeven leader" with the focus on selling more hardware. The same should be true of a streaming music service. Beats can make iPhones even more valuable -- and one way to do that is by offering a free streaming tier. Why Apple wants to take away its own value seems like a strategic error all around -- not just for consumers and competitors, but for itself as well.Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
A long time ago in a galaxy far, far away... I still get excited seeing those words scroll up a screen. In honor of Star Wars Day, we have 74% off of the Star Wars Gamer Bundle. Become an apprentice to Darth Vader, wage a war between the Light and the Dark side 4,000 years before the rise of the Empire, train under Luke Skywalker and return as a prodigal son to save the galaxy once more. The games are offered through a Steam bundle and promise to keep you entertained for hours. Check out this deal, you will. May the Fourth be with you. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Okay, let's get this out there upfront: many people who read this site hate the term "intellectual property" and get very upset when anyone uses it. And we agree with many of the reasons behind this thought process. In the past, we've explored some of the alternatives, but none are really that great or useful. We admit that "intellectual property" is not a great term -- in large part because it implies something that just isn't there: mainly, economic concepts that apply to rivalrous goods but simply don't apply to non-rivalrous ones. Even so, for the most part, our response to this has been to try to use the specific name of the specific form -- i.e., copyright, patents, trademark, trade secrets, publicity rights, etc. -- rather than the generic term "intellectual property." But oftentimes that doesn't feel appropriate either. And, let's face it, most of the rest of the world still uses the term "intellectual property", and denying that is kind of silly. I've been thinking about this a lot lately, and I think the real issue is that there are two different ways to use the term, and only one is really valid. "Intellectual property" is a useful term, but only when it refers to the copyright, patent or trademark itself and not the underlying content, invention or mark. For one thing, the only reasonable arguments for how "intellectual property" has some characteristics of actual property are the ones based on this idea — e.g. a copyright is rivalrous as it is held by a specific person or group, and it functions in many ways like a piece of property (it can be bought and sold), but the underlying song (or movie, book, etc.) is not rivalrous. Describing a company that owns a variety of copyrights, patents and trademarks as having "a portfolio full of intellectual property" makes sense; saying a music pirate has "a hard drive full of stolen intellectual property" does not. Of course, both things are still artificial — the piece of intellectual property that is a copyright only exists because the law creates it — but at least it does exist as a rivalrous thing, whereas no amount of law or enforcement will ever succeed in making content itself rivalrous. Unfortunately, many intellectual property system supporters and maximalists frequently confuse the two, and interchangeably switch around the underlying content/invention for the copyright/patent. It's why we see ridiculous things like car manufacturers arguing they still own some of your car, or DVD makers arguing they still own part of your DVD. It's the same thinking that leads to ridiculous reports that attribute all of the economic contribution of content, inventions and trademarks (even in grocery stores!) to "intellectual property" -- allowing them to falsely imply that the "intellectual property laws" are responsible, rather than the underlying content, inventions and marks. So it's high time to call this out and make the clear distinction. If people are going to go on using the term "intellectual property" -- and they will -- then at least point out that the content or the invention or the logo or whatever are not the "property". The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark. Then, we can look more honestly at the actual contribution of those laws and at the true nature of ownership. If GM holds the copyright on the software in your car, it has no actual ownership stake in any part of your car. We should all agree on that. But it can still own the copyright on that software -- and it can do as it wants with that copyright. But the actual copy of the software (inasmuch as that's even a discrete thing that actually exists) remains yours. I recognize that some will fight this and continue to insist that any use of the term "intellectual property" is a bad idea, but that's a losing battle. Let's admit that there are certain property-like aspects in the legal instruments by themselves, but reject the false notion -- often pushed by those abusing intellectual property laws -- that the underlying content, invention, trademark, etc. has any property-like rights itself.Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Last fall, we wrote about a very troubling law that was passed in Pennyslvania that flat out stripped First Amendment rights from any convict. The law was clearly passed directly in response to Goddard College deciding to have Mumia Abu-Jamal give a commencement speech for the college. Abu-Jamal is certainly a controversial figure, but apparently this was so troubling to some in the Pennsylvania legislature that they passed a "Revictimization Relief Act" that said if a convict's actions somehow "causes a temporary or permanent state of mental anguish," the victims of the original crime can seek an injunction against that conduct "or other appropriate relief." As we noted at the time, interpreted broadly, this would even forbid a convict from appealing their own conviction, if the victim in the case claimed that it would cause mental anguish to go through another legal process -- and thus they could be barred. Thankfully, many stepped up to challenge the law, and a federal court has made fairly quick work of it by striking down the law as unconstitutional. The court clearly recognized that the bill was entirely about stopping Abu-Jamal from speaking: The Act's sponsor, State Representative Mike Vereb, announced the bill on October 2, 2014, just three days after Goddard College—a small liberal arts college in Vermont and plaintiff Mumia Abu-Jamal's alma mater—announced its selection of Abu-Jamal as its commencement speaker.... His cosponsor memorandum admonished an unidentified “convicted killer” for “traumatizing the victim's family.”... During an October 21 bill-signing event near the intersection where Abu-Jamal's crime of conviction occurred, then-Governor Tom Corbett lauded the Act for its ability to enjoin offenders whose speech distresses victims. The Governor noted that the Act “is not about any one single criminal” but was “inspired by the excesses and hypocrisy of one particular killer,” ..., transparently referencing Abu-Jamal. The court, rightly, found that this was overhwelmingly unconstitutional ("manifestly unconstitutional," as the court says) for a fairly long list of reasons: The court concludes that the challenged statute betrays several constitutional requirements; the enactment is unlawfully purposed, vaguely executed, and patently overbroad in scope. However well-intentioned its legislative efforts, the General Assembly fell woefully short of the mark. The result is a law that is manifestly unconstitutional, both facially and as applied to plaintiffs. In fact, Judge Christopher Conner seemed perplexed that Pennsylvania politicians seemed to think that just because someone had been convicted of previous crimes, that had anything to do with the First Amendment questions at play: Significantly, however, the fact that certain plaintiffs have been convicted of infamous or violent crimes is largely irrelevant to our First Amendment analysis. A past criminal offense does not extinguish the offender's constitutional right to free expression. The First Amendment does not evanesce at the prison gate, and its enduring guarantee of freedom of speech subsumes the right to expressive conduct that some may find offensive. Furthermore, the judge recognized what an incredible chilling effect such a law is already having, pointing to some of the plaintiffs who are former prisoners who are now activists and advocates for crime- and prison-related issues. Since its passage, the Revictimization Act has had an undeniable chilling effect on the speech of prisoners and on the behavior of those individuals and entities who rely on that speech. Although several plaintiffs have continued their respective endeavors without restraint or repercussion, ... some have limited their commentaries or been denied publication for fear of the Act's enforcement. For example, nonparty Free Speech Radio News ceased widely publishing Abu-Jamal's weekly commentaries on the radio..... Kerry Shakaboona Marshall (“Marshall”) shelved publication of his book, a memoir of his experiences as a juvenile serving life in prison without parole.... Anthony Chance (“Chance”) will publish under a pseudonym, in an effort to avoid the Act's scope.... Prison Radio, HRC, and EMAJ have continued their work without incident, but at least one member of EMAJ was delayed in presenting Abu-Jamal to his class pending review of the Act by seminary counsel.... PLN withheld publication of an article authored by Abu-Jamal, ... and PPS published a warning in its “Graterfriends” newsletter admonishing potential authors of the new risk attendant to prisoner publications. In other words, the risk to the First Amendment was not just theoretical here. The impact and the stifling of free speech was real and immediate. But, of course, it's not over yet. Those who supported the law are apparently planning to appeal the ruling, though one hopes that any such appeals will be slapped down just as thoroughly. Meanwhile, Mike Vereb, the state legislator who apparently has nothing but contempt for the First Amendment, has said that if the appeal doesn't work he'll amend the law and try again, and notes that he considers this "a fight" that he's going to continue. He also doesn't understand how this suppresses speech even after the judge laid it out in such great detail: "It wasn't suppressing speech, it was suppressing harassment and revictimization of our victims," Vereb said. "This is the first ring of the bell in this fight. The victims need fighters, we're fighters." Dude. Seriously. The judge himself put together a long list of how it was absolutely suppressing speech. It's not about "harassment" or "revictimization" just because it hurts your feelings that someone speaks publicly. How is Vereb even in office after such a blatantly unconstitutional move?Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
If you were holding onto the faint hope that federal election campaigns were ever going to be anything but "buy your way into office" spending sprees, you may as well kiss it goodbye. The Federal Election Committee's head has just admitted her agency is completely powerless to do the one thing it's supposed to be doing. The leader of the Federal Election Commission, the agency charged with regulating the way political money is raised and spent, says she has largely given up hope of reining in abuses in the 2016 presidential campaign, which could generate a record $10 billion in spending. “The likelihood of the laws being enforced is slim,” Ann M. Ravel, the chairwoman, said in an interview. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.” It's not often you hear a public official openly state that the agency under her control can't do its job. Usually, excuses are made, bucks are passed and talking points spun to give the illusion that agencies are not only capable of performing their duties, but could be oh so much better if they weren't hobbled by everything but themselves. This is refreshing -- if ultimately depressing -- honesty. Much of the problem is the system itself. Like the elections it's unsuccessfully regulating, it's subject to the whims of two diametrically-opposed political parties. There are six commissioners: three Democrats and three Republicans. What was intended to be fair has instead devolved into gridlock, with the two parties rarely reaching an agreement on anything. This is the behavior of the supposed adults in the room: Some commissioners are barely on speaking terms, cross-aisle negotiations are infrequent, and with no consensus on which rules to enforce, the caseload against violators has plummeted. With the Supreme Court's Citizens United decision loosening restrictions on campaign spending, it has been left up to the Commission to police campaign funding abuse. Sadly, it's not that the Commission lacks the power to do so. It's that it lacks commissioners willing to rise above the base level of partisan politics to do it. Again, these are the people -- all supposedly mature adults -- who are supposed to be safeguarding the electoral process. [T]he six commissioners hardly ever rule unanimously on major cases, or even on some of the most minor matters. Last month at an event commemorating the commission’s 40th anniversary, even the ceremony proved controversial. Democrats and Republicans skirmished over where to hold it, whom to include and even whether to serve bagels or doughnuts. In a rare compromise, they ended up serving both. There's $10 billion headed into the pockets of presidential candidates and commissioners aren't going to do much more than taxpayer-funded paychecks while muttering insults at opposing party members. And while the Oval Office goes on the auction block, the Commission will be arguing over baked goods. Permalink | Comments | Email This Story

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posted 24 days ago on techdirt
Remember, just last week, when HBO and Showtime were flipping out about a couple of streaming sites promising to broadcast live streams of the big Flord Mayweather/Manny Pacquiao fight? Apparently, they had the wrong target. Just a few weeks earlier we had noted that Hollywood seemed to be losing its mind over the latest round of livestreaming apps. Never mind that livestreaming apps have been around for ages, because there were two new shiny ones (Periscope, which is owned by Twitter, and Meerkat), suddenly it was a "big deal" again. Especially when it came to sporting events. We'd already discussed the NHL's silly ban on reporters, saying they couldn't use Periscope. All of that came together this weekend in a collective mess. First, many of the big pay TV providers experienced outages, meaning that people who paid $100 to see just this one fight found themselves completely locked out. Looking for a solution, they turned to Periscope. And they apparently found what they were looking for. And, it probably didn't help that Twitter (again, owner of Periscope) CEO Dick Costolo tweeted the following, claiming "the winner is... Periscope." Of course as some pointed out, he may have really been talking about the fact that HBO itself used Periscope to show inside Pacquaio's dressing room before the fight -- which seems like a pretty good way to use the technology. However, if this ever leads to a lawsuit, expect that tweet to be an exhibit of an out-of-context claim by HBO/Showtime that Twitter was somehow "inducing" infringement on its platform. Either way, given how popular the bogus storyline is that there's some sort of existential struggle between Silicon Valley and Hollywood, the resulting news story practically writes itself. Once again, we hear of big bad technology completely tearing down pure hearted big copyright holders, and how "something must be done!" It will be absurd for Twitter to mount the defense that it complies with any takedown notices filed over copyright-infringing content. Because by the time the compliance occurs the livestream is already over, the company is going to need to figure out a better way to combat piracy on the fly. Periscope may require something like Google’s Content ID system, technology capable of identifying forbidden streams in an instant, and maybe even converting them to transactional opportunities for legal alternatives to the content in question. Wait, it would be absurd for Twitter to say "look, we comply with the law, what else do you want us to do?" Why? Why is it Twitter's responsibility here? Why not the promoters of the show to make sure that their partners supplying the paid streams actually have technology infrastructure in place that works? Or why not Showtime and HBO for creating additional reasons for people to sign up for its service, rather than signing on to one of the Periscope streams? Why, again, does Hollywood always seem to (1) blame the tech industry for its own failures and (2) then demand that the tech industry magically stop what is unstoppable? Why not, instead, recognize that the technology is really useful, that people like it, and look for ways to take advantage of that? Why not offer an official Periscope stream or partner with others who are Periscoping on their own to offer different/better commentary? There are many things that they could do to embrace things rather than complain about it (or threaten to sue). Technology keeps advancing. Pretending that you can stop that technology is not a productive path towards the future. Hollywood keeps having to relearn this lesson with every new major technological advancement. It tried to stop the radio, the television, cable TV, the photocopier, the VCR, the MP3 player, the DVR, YouTube and more. One day, you'd think they'd learn that this is a bad strategy.Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
As we noted a few weeks ago, data retention laws continue to fall in Europe. Then it was Bulgaria, following in the wake of Netherlands. Now we learn that the Constitutional Court of the Slovak Republic has similarly struck down the country's data retention provisions, as reported by the European Information Society Institute: An act, which ordered large-scale mass surveillance of citizens (so called data retention) is now history. Today the Constitutional Court of the Slovak Republic proclaimed the mass surveillance of citizens as unconstitutional. The decision was rendered within proceedings initiated by 30 members of the Parliament on behalf of the European Information Society Institute (EISi), a Slovakia based think-tank. Those judgments are all in line with the ruling by the Court of Justice of the European Union (CJEU) that the over-arching EU Data Retention Directive was "invalid." Even the European Commission seems resigned to the fact that there will be no new data retention laws at the EU level. However, that still leaves the possibility of national laws, provided they do not fall foul of the CJEU judgment, which implicitly offered guidelines how that might be achieved. Germany still seems determined to try, while legal action in the UK will determine whether the recent Data Retention and Investigatory Powers Act (DRIPA) has managed the trick. Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+ Permalink | Comments | Email This Story

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posted 25 days ago on techdirt
Much of the political debate around encryption, such as that on display in a congressional hearing this week, has been characterized by a fundamentally flawed understanding of the most basic principles. Mason Wheeler won most insightful comment this week by underlining one such example: Someone needs to sit this guy down and explain Kerckhoff's Principle to him. It's one of the most fundamental rules of information security: The Adversary Knows The System. It means that any valid discussion of security must begin from the assumption that the bad guys who are trying to break in already know everything about how your system works, but does not necessarily already know the key, and if you can't show that the system is still secure against such an adversary, you have to assume it's not secure. Kerckhoff's Principle rejects the very concept of a "front door" that the good guys can use but hackers can't gain access to. If there's another way in besides the private key, you must assume that the bad guys know all about it. Meanwhile, HBO and Showtime tried to change some basic principles of copyright by pre-suing a site that planned to stream an upcoming boxing match. This raises a bunch of interesting questions, and second place for insightful went to an anonymous commenter who proposed a reversal of the idea: Wait, if they can sue for anticipated copyright, then can we sue for anticipated public domain? I mean, technically all copyrighted works do eventually fall into the public domain, right? If their whole argument is hinging on eventualities, then why can't we do so for the public domain which is a definite eventuality? For editor's choice, we start with another anonymous commenter who made a point on that post which is oversimplified but serves as a starting point for a lot of important discussion: Sporting events should not be copyrightable. Period. To say otherwise is utter insanity. (The catch, of course, is that the copyright is on the coverage of the event, which is a work of authorship. But this still raises the question of just how much protection such coverage actually qualifies for, based on which aspects of it genuinely involve creative choices and how much is just neutral documentation of facts.) For our next editor's choice, we pivot as we so rarely do to a Daily Dirt post, which discussed the Singaporean test question that lit the internet on fire. One person in the comments objected to it being called a math problem when it was really a logic problem, prompting Different Anonymous Coward to offer this well-conceived rejoinder: If you think any given logic puzzle has nothing to do with math you either need to go deeper into logic until you hit math, or deeper into math until you hit logic. Over on the funny side, we start out on our post about the latest moral panic: Minecraft and kids. Some parents shared their own stories about the game, and NoahVail's became the funniest comment of the week: My kid roped me into launching a MC server One of my kids wanted to setup a Minecraft server. Two years later I'm managing & hosting 2 Minecraft servers w/ most of 100k usernames and my kid has wandered off onto the next project. I did my bit. I got involved with my kid playing MC and now I'm saddled with running his online community. At least pets die eventually. I don't know how long game servers live for. *sigh* In second place we've got Michael, who observed that the recent takedown of Dan Bull's Death To ACTA video was spurring a well-known Effect: So a 5 year old YouTube video that pretty much everyone has forgotten about is back in the news because someone is trying to silence it. Apparently Dan's marketing strategy is working! For editor's choice, we start out with one more parental Minecraft story, this time from James Blackburn: My kids (10 and 12) are RUINED by this game. The last parent - teacher interviews I had I was told how my kids are sickeningly respectful to authority, work well with others, and to top it all off, will include other classmates in projects or activities when those kids are being left out by others. (Full disclosure: I said "You sure you have my kids in mind??") Oh, and to top it off, not only do they amaze me with what they make on that game (although really how anyone can sit for more than 5 mins on that game amazes me), they have come up with some pretty creative crafts using ordinary items around the house because of that game. So, yeah. Terrible game. Finally, we've got another comment regarding the bizarre attempt to pre-sue for copyright infringement. Chris-Mouse asked a critical question: Copyright only exists once the work is created in a fixed format. Are they saying the fight is fixed? That's all for this week, folks! Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Five Years Ago This week in 2010, the world was abuzz over the prototype iPhone that was left in a bar, and we discussed the legal fallout and its implications for bloggers-as-journalists. At the same time, another case found that a blog commenters was not a journalist. In the old-school journalism world, Rupert Murdoch was moving towards paywalls while his competitors were proudly promising to remain free, and the New York Times was struggling to find reasons to like its paywall. Lots happened on the copyright front this week. A historical association claimed copyright over scans of 100-year-old photos while we asked why UNESCO was launching pro-copyright efforts; Twitter was removing a lot of tweets over bogus DMCA takedowns while a horrible new bill in congress sought to extend DMCA takedowns to cover "personal information"; the U.S. Chamber of Commerce released a bogus study pushing for more IP enforcement while the IFPI's latest report actually showed music sales growth in some markets; the USTR released its "revised" Special 301 report (and continued to lie about ACTA) while the Justice Department boosted the number of FBI agents and attorneys focused on copyright infringement; and the RIAA utterly missed the point about Record Store Day but also got AFL-CIO to sign on in support of a proposed performance tax. Internationally, Shanghai was cracking down on (read: pushing underground) bootleg discs, Chile got a mixed bag of new copyright laws, and an Irish collection society was trying to get music bloggers to pay up. Ten Years Ago Back in 2005, many newspapers weren't nearly as well-established online as they would be in 2010 amidst all the debates about paywalls. It was only just becoming clear (well, it was only just becoming undeniable anyway) that the future of news was online (and that future wasn't in walled gardens). An interesting upshot was that local newspapers were faring better online, and teaching the rest a thing or two about targeted advertising. Meanwhile, Techdirt got some newspaper love of its own. The entertainment industry was still desperately trying to make the case for mobile TV, this time suggesting babies might be a great audience, which was insane but at least a little more detailed than "just because". Some wanted to leapfrog TV and go straight to selling extremely expensive feature-length movies on phones. Meanwhile, Disney was rolling back its failed video-on-demand test programs just as Steven Soderbergh was trying to get more films available in theatre and on DVD at the same time. RealNetworks was offering a music streaming service with an incredibly sad 25 free streams per month, though it's hard to say whether that's sadder than Wal-Mart's custom-burned CDs. Oh, and Nathan Myhrvold was going around hyping up his plans to create an "invention factory". I wonder whatever happened with that... Fifteen Years Ago This week in 2000, Silicon Valley was in the midst of the dot-com bubble collapse, with the peak now a month in the past. Still, some CEOs were rightly saying that focusing on running a business was more important than the market, and Valley innovation wasn't going to disappear. People were noting that there was still a lot of investment money out there in the pockets of VCs, while a new book (slightly hypocritically) discussed this question of short- and long-term thinking. Certainly none of this was scaring entrepreneurs away from the web, or stopping dot-coms from throwing big parties and media outlets from listing internet business superstars. It didn't stop ridiculously expensive dot-com Superbowl ads or, on the other end of the scale, the coming wave of dot-com infomercials. After all, there was plenty of evidence to suggest that online retail wasn't dead and that ecommerce would keep on growing. Hell, even music sales were up. Twenty-Two Years Ago April 30th, 1993 is an important day in the history of the information era: it's the day CERN announced that the newfangled "World Wide Web" and the protocols and technologies that it consists of would be free to anyone, with no fees due. This decision, arguably moreso than the technology innovations or the proliferation of home computers or any other factor, shaped the future of the global communication network we all rely on today, and shaped it for the better. Sadly, now much of what is now happening online stems from the exact opposite attitude, with even many well-meaning innovators proving too nervous to relinquish control of their creations and let them truly flourish. Hopefully more people will take a moment to think about what the internet might look like if all its higher functions relied on a fragmented mess of proprietary protocols and walled gardens, instead of a unifying web on which everyone can build. Permalink | Comments | Email This Story

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posted 26 days ago on techdirt
Not too long ago, people got pretty excited about the idea of a "modular smartphone", and recently Google announced that it would be launching its attempt at such a device in Puerto Rico this year. The idea has also sparked a lot of debate, with some saying the sacrifice of size and/or power needed to create something modular would be too great. But there's one idea I don't recall anyone bringing up at the time: moving the whole modular concept off of the phone and onto a phone case. This week, we're looking at the nexpaq, which does just that: The Good There's something very appealing about the modular components, as they seem to strike most people as something that just makes sense. Obviously with them living as extras on the case rather than being part of the phone, some of the original idea's efficiency and space-saving appeal is lost — but that was already debatable (though we'll see what Google comes up with) and I think most people were far more drawn to the modular function itself as a matter of convenience and coolness. It also makes the whole power situation a little easier to deal with: the case has a built-in battery pack (which helps run both the modules and your phone) and you can fill one of the modular slots with an additional battery pack component. This also means that the case can function independently: you can disconnect it from your phone, and still access the modules via Bluetooth. The other modules currently available in the Kickstarter include an amplified speaker, an SD card reader, a pair of physical programmable hotkeys, a laser pointer, a breathalyzer, a USB drive and several more diverse options which paint a good picture of the flexibility offered by the system. $109 gets you a case and four modules (which seems like a good price) and the current model is designed to be compatible with three very popular phones: the iPhone 6, Galaxy S6 Edge and the Galaxy S5. The creators are also actively encouraging development of new modules and new software: there are several backer rewards specifically for developers. Though I can actually see the case still being popular with just a core lineup of useful modules, it will be really interesting if they succeed in building a community of developers who create new stuff all the time. The Bad There are a few things that remain unclear about the nexpaq, and a few details in the description that hint at potential limitations. For one thing, it sounds like most of the modules will only be accessible through the dedicated nexpaq app for now, and that compatibility will have to be built into other apps using the SDK. This may not be true of every module — it's possible that that the flash drive will be broadly accessible by the OS, for example — but it sounds like it might be if all of the modules are mediated through the case as a single peripheral rather than being separately accessible, hub-style. I doubt the blame for this falls on the creators: it's probably a limitation of the smartphones, perhaps to a slightly lesser extent in Android but certainly in iOS, but it still could be the flaw that sinks the nexpaq. Relatedly, the Bluetooth connectivity, while a nice feature, raises the question of whether Bluetooth will be required for some or all communication even when the case is connected, which would eliminate some of the elegance of the concept. All this points to the key reason nexpaq might have trouble competing with Google's modular phone should it ever come to fruition: Google can build support for the modules directly into the operating system and make sure they are all accessible at a low-level as standard peripherals, so an SD reader module mounts cards normally and your existing Android apps automatically recognize a speaker module and so on; nexpaq will almost certainly have to limit at least some of its capabilities to its own app and those specifically designed to be compatible. The Inevitable Either way, it looks like we're going to find out: the nexpaq has already shot past its goal with nearly a full month still to go in the Kickstarter compaign. Despite my reservations, I'm happy to see it move forward, and eager to find out the answers to some of my questions. Their goal is to ship by January of next year, though as with all Kickstarter projects, delays are a likelihood. Permalink | Comments | Email This Story

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posted 27 days ago on techdirt
As was widely expected, earlier this week, a bunch of high-profile Senators introduced a big patent reform bill, known as the Protecting American Talent and Entrepreneurship (PATENT) Act. It's backed by Senators Chuck Grassley, Patrick Leahy, Chuck Schumer and John Cornyn, and has a decent chance of becoming law. From a quick look at the bill itself, it looks an awful lot like what we expected to show up last year, right before Senator Harry Reid stepped in and killed the bill. With the Republicans taking over in Congress, however, Reid no longer has the power to do that. Meanwhile, Schumer, who has long been supportive of patent reform and is basically taking over Reid's leadership position as Reid prepares to retire, has declared that this time the bill is getting done. That's all good. The bill is a good start. But, unfortunately, it's not nearly enough. It does target some of the symptoms of the problems of the patent system, but does little to fix the underlying causes. The bill targets the worst of the worst: the patent trolls who thrive on shaking down companies. Specifically, the bill aims to do a few key things: Fee shifting on ridiculous lawsuits: It would allow for attorneys' fees to be awarded if the patent holder was not "objectively reasonable" in filing the lawsuit. The Supreme Court has already made it easier for courts to award attorneys' fees, but this would slide the scale over a bit in a helpful way. This certainly increases the risk for patent trolls who have no real case. Limiting discovery: Defending a patent lawsuit is crazy expensive. We often hear stories of it costing like a million dollars just to get to trial. And one big expense is "discovery," in which the patent holder gets to ask for all sorts of information from the company its suing -- emails, plans, source code, etc. This process is super expensive and there's not much you can do about it. It often starts pretty quickly after a lawsuit is filed as well. This new bill would put limits on early discovery, allowing those sued to seek motions to dismiss the case altogether or to transfer venues. That could decrease the early cost, taking away some of the pressure on defendants to just settle, and giving them more ability to fight back against bogus claims. Limits vague demand letters: The patent troll's weapon of choice is often to send totally vague demand letters, insisting companies infringe without telling them how. It also makes it easier for the FTC to go after those who send such bogus threat letters. Protecting some end users: We've highlighted plenty of cases where patent holders sue those who make devices or software, and then sue a variety of end-users as well. This bill, in a fairly limited way, would put those kinds of lawsuits on hold until the manufacturer can fight the infringement in court. But this only counts if the troll also has sued the manufacturer. So it's a bit limited. Transparency: The bill would make it harder for trolls to hide behind shell companies. This is a fairly big deal, as many patent trolls have a series of shell companies, and often you have no idea who really owns the patent. The bill will also require actual lawsuits to be a lot more clear in terms of what they're actually suing over and why the defendant infringes (and what it infringes). These are all good things, but it's unlikely to truly be enough. Missing, unfortunately, is the expansion of a program that would allow the patent office to do a faster review of crappy patents, known as the covered business method (CBM) process. This is too bad -- as this was an idea that Schumer had been a strong champion for, but which Microsoft and IBM pushed back very hard on, as they HATE the idea that the USPTO might start invalidating their crappy patents with a quick review. Yet, as Schumer knows well, this CBM tool has proven tremendously effective in dumping a bunch of crappy financial services patents. Hell, just this week, DataTreasury, a massive trolling operation that has received over $350 million in settlements had its key patents invalidated via a CBM review. It's too bad that program couldn't have been expanded. Blame Microsoft and IBM. But there are a lot of other problems that the new bill doesn't touch at all. Yes, it may shut down the worst of the worst in trolling, but will still allow plenty of bad situations to flourish. Bad patents will still get through and be used to hinder innovation. The new bill does absolutely nothing to address the situation with independent invention either, and that's a major problem in the patent space. Either way, even with this incremental fix, it's likely we'll see a bunch of ridiculous claims that the above changes in patent law will somehow harm inventors, though, I can't see how that's true. As long as you're transparent and upfront with how the infringement happens, and don't file "objectively unreasonable" lawsuits, it seems like patents are still a powerful tool to demand money from companies.Permalink | Comments | Email This Story

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MuckRock has obtained a whole stack of Stingray-related documents from the FBI. As is to be expected, there's not much left unsaid by the agency, which is at least as protective of its own Stingray secrecy as it is with that of law enforcement agencies all over the US. There's nearly 5,000 pages of "material" here, most of which contains only some intriguing words and phrases surrounded by page after page of redactions. Want to know [REDACTED]'s thoughts on the possible legal implications of Triggerfish? Just close your eyes and allow your imagination to run free. Here's a quick reference guide that allows FBI agents to quickly match up their chosen "technique" with the appropriate legal standard and process. That's not to say there's nothing of interest left intact. A few pages explain the FBI's legal rationale for IMSI catcher deployment -- including the fact that the Patriot Act expanded the reach of pen register orders to include not just numbers dialed, but also the location of the phone itself. This allows the FBI and other law enforcement agencies to route around one of CALEA's (Communications Assistance for Law Enforcement Act) few limitations related to pen register orders: that service providers not be required to hand over subscriber location info. In passing CALEA in 1994, Congress required providers to isolate and provide to the government certain information relating to telephone communications. At the same time that it created these obligations, it created an exception: carriers shall not provide law enforcement with "any information that may disclose the physical location of the subscriber" in response to a pen/trap order… By its very terms, this prohibition applies only to information collected by a provider and not to information collected directly by law enforcement authorities. Thus, CALEA does not bar the use of pen/trap orders to authorize the use of cell phone tracking devices used to locate targeted cell phones. But, for the most part, it's 5000 pages of this: And this (from a document titled "Stingray for Dummies"): It's not a complete loss, although it's clear the documents suffer from over-redaction. The FBI clearly doesn't want to discuss methods or technical details, but nothing in the multiple FOIA exemptions deployed justifies covering up its minimization procedures or where the device sits in terms of the Fourth Amendment. "It does not seem credible to me that they can't release more of those kinds of records," [ACLU attorney Nate] Wessler told me. "Information about ongoing investigations, highly technical details of the devices, how they're put together, those kinds of things, redact them, fair enough. Information about whether they have to get a warrant or not, how they purge or do not purge bystanders data. They're clearly talking about those things." "There's no conceivable reason why they shouldn't tell the public what their Fourth Amendment rights are protecting when they use these," he added. "The documents are not without value, but what the FBI has released is not adequate." If nothing else, the documents have given a small, narrow glimpse behind the FBI's veil of secrecy -- as well as some more insight into its Stingray-related legal maneuvering. The FBI has managed to turn a pen register order -- something previously used to collect dialed numbers -- into something that can be deployed to locate an individual, or at least their cellphone. Unsurprisingly, this legal theory traces back to the Patriot Act, one of the largest expansions of intelligence and law enforcement powers ever produced by the US government. Permalink | Comments | Email This Story

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Some folks are really into aged spirits -- as in old alcohol, not ancient ghosts. But if we can't really trust our tastebuds, will anyone really know if an aged wine is really aged? More importantly, though, does it really matter if no one can taste the difference between a day-old beverage and one that's 15 years old? Maybe some wine/scotch snobs will care, but most drinkers probably won't. Chemistry can make a 6-day old rum taste like one that is 20 years old. The method is patented, but knockoffs are springing up -- and presumably, almost "anyone can do it" (well, if anyone really wants to make their own rum, that is). [url] Making pear-in-the bottle brandy is a tradition that dates back to the 1700s. It takes a few months for a tiny pear to grow inside a clear glass bottle, and then the fruit is cut from the tree, washed and covered with year-old brandy. It might be difficult to get this process done more quickly. [url] The scotch industry has previously marketed its products based on prominent years of aging -- even though age is an imprecise measure of quality. To keep up with demand, more and more scotch makers are selling no-age (or age-free) products that try to promote quality over age. [url] After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.Permalink | Comments | Email This Story

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We've written plenty about the ridiculousness of the USTR's Special 301 list that comes out every year at this time, naming what countries are "naughty" on intellectual property issues. The list is based on no objective measurements, but rather on submissions from lobbyists for the big legacy players with an interest in expanding copyright, patent and trademark laws. The USTR then basically takes those submissions, moves around some words, and puts out this "official" list of naughty countries. US diplomats in the various countries then go around threatening those countries if they don't "do something" (which generally means passing more draconian laws that will help these giant US companies, often at the expense of the public). A few countries -- Canada in particular -- has made it publicly known that it does not accept the whole Special 301 list as legitimate, and rejects its findings. Other countries, however, which have less ability to stand up to the US, like Spain, will often scramble to try to pass new laws to "stay on the good side" of the US. Still, pretty much everyone recognizes that the entire process is a joke. As I've pointed out many times, at a conference, I once saw the US Register of Copyrights openly mock the Special 301 list. Unfortunately, this is a joke that is no longer funny. That's because so many countries are legitimately scared about being on the list, and pass laws to get themselves off the list, with little or no concern for the actual impact on the public, free speech or innovation. Anyway, it's that time of the year again, and the USTR has released the latest list. It is more of the same in almost every way. It tries to shame the same "big guys" as always: China, Russia and India. And it celebrates "progress" from countries that have promoted out and out censorship. For example, it praises Italy: On December 12, 2013, the Communications Regulatory Authority (AGCOM) in Italy adopted regulations to combat copyright piracy over the Internet. The regulations, which entered into force on March 31, 2014, provide notice-and-takedown procedures that incorporate due process safeguards and establish a mechanism for addressing large-scale piracy. Italy’s subsequent implementation of the regulations has been positive, resulting in successful enforcement actions against several websites that offered infringing content. These websites have ceased operations in Italy, removed infringing content, or initiated cooperation with copyright holders. The adoption and effective ongoing enforcement of these regulations is a significant achievement, which the United States continues to welcome. This is misleading at best and insulting at worst. We wrote about those Italian "regulations," which actually gave power to regulators to flat out censor websites with no due process at all. It's not clear how the USTR considers those appropriate "due process safeguards" when the same rules in the US would clearly be prior restraint violations of the First Amendment. In fact, in operation, we've seen Italy order tons of websites blocked on the say so of a single individual, and websites blocked entirely, even after they had removed any infringing material, and with no clear due process in place at all. Is the US really trying to argue that copyright enforcement is more important than Freedom of Expression? Because that's the message that's being sent. Meanwhile, as we wrote about a few months ago, consumer groups are challenging the legality of this system. Will the US condemn Italy for actually recognizing how dangerous this rule is? Along those lines, the EFF has jumped in to offer a counter list, the amusingly named Special 404 list of stories that were missing from the Special 301 list of the USTR. As the EFF notes: On the Web, the error code 404 shows browsers that something is missing. EFF believes that in the Internet era, the Special 301 Report is missing real stories from the countries that the Special 301 condemns. Our intention for this report is to show what’s missing from Special 301 and give some balance to the USTR’s biased review of global intellectual property laws by highlighting the arguments for balanced copyright, patent, and trademark law worldwide. EFF’s Special 404 Report includes a selection of case studies from across the globe showing how overly broad intellectual property laws stifle access to cultural artifacts, artistry, and innovation. Our report also showcases examples in which flexible fair use interpretations have benefited the community, culture, and economy of a country. This report is not an exhaustive analysis of each country listed in the Special 301 Report. Rather, our report is designed to provide insightful case studies that will inform a larger conversation about how the USTR’s report is fundamentally defective. While the Special 404 list does not include Italy, it does provide examples from other countries. For example, it highlights a story we covered last year of a Colombian student facing four years in prison for uploading an academic article to Scribd. And the reason he's facing such jail time was a terrible copyright law rushed through to appease an angry US government. Gomez is a Masters student who has been researching biodiversity and working on the conservation of reptiles and amphibians for several years in the South American region. Throughout his career, the biggest obstacle he has faced has been accessing academic resources on global research databases. One day a couple of years ago, he came across a paper that was especially useful to his fieldwork. He later shared the research online on the website Scribd. The author of the paper then pressed charges against Gomez for the “violation of [his] economic and related rights.” Now the Colombian government is criminally prosecuting Gomez, and he could be sentenced to prison for up to eight years and face crippling monetary fines. Gomez is currently awaiting trial. Analysis There are two primary causes of these egregious penalties. The demands of the copyright industries in the Colombia-U.S. free trade agreement led to extreme enforcement language in the deal, which then led Colombia to enact new, harsher criminal sanctions over "unauthorized" sharing and uses of copyrighted works. Additionally, Colombia does not have a flexible fair use system like the United States. It has a closed list of exceptions and limitations to the rights of authors (derecho de autor). This list was issued more than 20 years ago and is narrowly tailored to some specific situations that are not at all applicable to the digital age. While the Special 301 Report pressures Colombia to toughen its copyright regime, the current system is already inflexible and has a detrimental effect on researchers like Gomez. And yet, amazingly, the USTR's Special 301 report says nothing about this abuse of copyright law in a manner that clearly impacts human rights and civil liberties (not to mention the chilling effects on education and research). A couple of years ago, we noted that CCIA had asked the USTR to put Germany on the Special 301 list for attacking fair use. After all, if the point of the list is to highlight those who are abusing US intellectual property laws, shouldn't it work for those who abuse them against free expression and innovation as well? The USTR basically ignored this request, once again cementing the fact that it doesn't seem to care one bit about issues like civil liberties or human rights, focusing solely on intellectual property maximalism. The Special 301 list remains a joke -- but unfortunately, it's a joke that many countries feel they need to take seriously. Hopefully, the EFF's responsive Special 404 list will provide some more perspective, and help some countries push back on the idea that just because some lobbyists put their name on a list, it doesn't really mean they should have to change their laws.Permalink | Comments | Email This Story

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Back in March, we wrote about a really bad bill that had been proposed in California by Assemblymember Matt Dababneh, called AB 1326. As we noted, it would basically destroy the ability of new startups in the Bitcoin space to build their businesses in California. Specifically, it would require any startup in the broadly defined "business of virtual currency" to first need to get licensed by "the Commissioner of Business Oversight" and then comply with a long list of other regulations -- including regular audits by the Department of Business Oversight. Well, unless you're a big bank or financial institution. Then you can carry on and experiment with Bitcoin all you want. In short, the bill would reverse decades of how Silicon Valley has lead the world in innovation -- by switching from a world of rapid innovation and permissionless innovation, to one in which any startup even contemplating doing anything with Bitcoin would have to go plead their case to clueless regulators in Sacramento. It's hard to see how anyone could possibly think this is a good idea for innovation or the California economy. And yet... the assembly's committee on banking and finance has now voted the bill out of committee, sending it on to the appropriations committee and then on to the floor of the legislature. Of course, perhaps it's not so surprising that the committee on "banking and finance" would approve this bill -- considering it gives a free pass to big banks and financial services companies while hindering startups, entrepreneurs and innovators. However, any of the many startups in California that are doing some amazing and interesting things with Bitcoin should speak up now, because California is about to tell them to move out of the state entirely.Permalink | Comments | Email This Story

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After a fifteen-year slumber, regulators have apparently decided it might be a good idea to start cracking down on rampant fraud in the telecom market. Not long ago, we noted how AT&T was finally fined for abusing the IP Relay network for the hearing impaired, intentionally turning a blind eye to scammers on the network just to haul in the $1.50 per minute subsidies tied to the network. AT&T strung regulators along for years, implementing "solutions" that it knew wouldn't work but technically met flimsy FCC requirements. As a result, simply stopping AT&T from profiting off of defrauding the deaf (it's estimated that 95% of AT&T's IP Relay traffic at one point was credit card or other scammers) only took regulators the better part of two decades. Last year, regulators finally cracked down on AT&T for helping scammers of a different sort: crammers. Crammers had been gouging AT&T customers for most of the last decade, charging them $10 a month for garbage "premium" text messaging, horoscopes and other un-asked-for detritus. There again, AT&T intentionally turned a blind eye to the criminal behavior, in large part because the company was netting around 35% of the proceeds from the scams. Worse perhaps, regulators found AT&T was actively making its bills harder to understand so the fraud would be more difficult to detect. This month, the FCC has announced that it has struck a settlement with AT&T and former subsidiary SNET, over charges the companies were collecting undeserved subsidies under the agency's "Lifeline" program, a low-income community subsidy effort created by the Reagan administration in 1985 and expanded by Bush in 2005. According to the FCC's findings, AT&T apparently "forgot" to audit its Lifeline subscriber rolls and purge them of non-existent or no-longer-eligible customers, allowing it to continue taking taxpayer money from a fund intended to aid the poor:"AT&T and SNET’s failure to remove ineligible Lifeline customers from their rolls was discovered in 2013 during an FCC audit of two AT&T Lifeline affiliates. The audit found that a number of Lifeline subscribers who no longer qualified for the program had not been de-enrolled following the annual recertification process for 2012 and 2013, a process in which consumers are required to certify their continued eligibility for Lifeline. These subscribers were given one extra month of Lifeline support, and AT&T improperly claimed reimbursement from the government for this extra month. Additionally, the Enforcement Bureau found other de-enrollment and recordkeeping violations."The FCC announcement goes well out of its way to avoid calling this fraud, but unless you believe AT&T honestly forgot to purge its rolls (pretty difficult to do in full context of AT&T's historical behavior), it's hard to call it anything but. The FCC doesn't specify how great the discrepancy was, but given the speed at which AT&T has been backing away from unwanted DSL and phone markets, the revised differences likely aren't modest. This latest fine comes as AT&T is busy trying to convince the government that there's an endless parade of amazing benefits to be had by letting AT&T acquire DirecTV, effectively eliminating a competitor from the pay TV space. Historically, telecom regulators love slam dunk cases against small scammers, but were willfully oblivious or too timid to acknowledge the larger players' culpability. With regulators no longer napping in regards to obvious fraud by bigger telecom players like AT&T, companies have unsurprisingly started grumbling that Travis LeBlanc, Chief of the FCC’s Enforcement Bureau, is being too hard on industry and therefore not actually curbing bad behavior:"Two telecom-industry advocates complained that LeBlanc has been successful at grabbing headlines, but less effective at actually curbing bad behavior. By not being lenient on companies that self-report violations, he is discouraging future companies from coming forward, they said. "The FCC's new approach will discourage cooperation and self-disclosure, and it's going to force regulatees to beef up on litigation instead of compliance with the rules," one industry lobbyist said. "Ultimately, that's a poor use of resources for taxpayers, and it will lead to a worse result for consumers."Yes, doing the bare minimum to prevent AT&T from ripping off taxpayers and consumers is just an atrocious affront to taxpayers and consumers. While overreach is certainly possible, most of the stuff LeBlanc is cracking down on is either outright fraud, or the kind of enforcement that's hard to seriously cry foul about (like fining companies for failing to report 911 outages or airing porn during prime time). By and large, LeBlanc appears to be following the lead of FCC boss Tom Wheeler, breaking FCC tradition and actually standing up to large telecom companies. If there's a place LeBlanc (former aide to California AG Kamala Harris) may overreach, it's as the FCC begins using newfound Title II authority to re-examine broadband privacy rules. For the moment, however, it's just interesting to see the FCC no longer turning a blind eye to scams and fraud when the country's biggest telecom campaign contributors are involved, even if the fines being levied are likely a small fraction of the total money AT&T has made off of a decade of very shady behavior.Permalink | Comments | Email This Story

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A few years ago, we wrote about Tim Ferriss and his successful use of BitTorrent as a tool to promote his book, The 4-Hour Chef. We're trying something new today and offering the audio version of that book for free through our Techdirt Deals store. You do have to do a bit of work (there are no free lunches really) to get The 4-Hour Chef Audiobook. Head to the deal page, sign in if you already have a Deals account, or sign up for one, then follow Techdirt on Facebook, Twitter or Google+, and then share the deal on Facebook or Twitter. After that, the redemption instructions will appear in your account. Note: We earn a portion of all sales from Techdirt Deals. The products featured do not reflect endorsements by our editorial team.Permalink | Comments | Email This Story

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The DEA likes to borrow stuff. It's just not very good about returning borrowed items in the same shape it got them. Like a woman's Facebook account. Or a businessman's semi truck. And his employee's life. Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his "fleet." One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought. In reality, Chapa was working with the DEA, which had paid him to load up Patty's truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That's when everything went completely, horribly wrong. [A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck. In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster. The truck’s driver was killed and four attackers were arrested and charged with capital murder. Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA's operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery. Patty's truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck's use in a law enforcement operation. Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant -- something that makes Patty's life a little bit more dangerous. Nor will it have to. A federal judge has dismissed Patty's lawsuit against the DEA seeking up to $6.4 million in damages. (h/t to attorney Mark Bennett, who previously advised Patty but did not represent him in this lawsuit.) A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant. The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because "clandestine." No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders… In this case, Task Force Officer Villasana submitted a similar declaration. He states that the DEA’s decision “to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.” Whether and how to conduct such an undercover investigation and operation is “necessarily discretionary in nature.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted. Patty responded that Villasana's own testimony ran contrary to this declaration's assertions. Patty argues that DEA policy prohibited Villasana’s actions… He points to Villasana’s deposition testimony that “[i]f we’re going to use somebody else’s vehicle, we have to have permission,” and that “if [Villasana] knew who the owner was and the informant would have said to [him], Hey, listen, so-and-so, [the owner] owns this truck and I’m going to do this, [he] would say, Well, we need to get ahold of [the owner].” The judge points out that Villasana also testified that he was "not aware" of any policy instructing him to notify the vehicle's owner of its potential use in a drug sting operation, nor was he under any obligation to even determine the identity of the owner through DMV records. No permission was needed, at least not as stipulated by DEA policy. What Villasana spoke of in his testimony was something left solely to his discretion. So, it would appear the government -- especially law enforcement agencies -- can take stuff but are under no legal obligation to return it in working order. Nor are they expected to compensate the owner for any damage sustained. This argument, perhaps the most solid of the multiple presented, dead ends thusly. In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did. The record shows that the DEA task force members did not know Patty’s name, were under the impression that his driver was the vehicle’s rightful lessee, and third parties caused the vehicle damage. To borrow a phrase from qualified immunity law, Patty has not shown that the “clearly established law” in place when the undercover operation was planned and implemented made the officers’ conduct unconstitutional. In the end, it's the crime-fighting ends that justify the means -- even if the means include destroying half of a businessman's fleet of vehicles and turning him into a potential drug cartel target. Orchestrating a covert controlled drug delivery using a vehicle and driver unconnected to any law enforcement organization to obtain evidence against a suspected drug cartel smuggling operation to prosecute those responsible fits within and furthers these policy goals. Deciding to carry out the operation without giving the vehicle owner advance notice and obtaining his consent is consistent with maintaining the covert nature of the operation and therefore with the policy goals. Patty argues that Villasana’s testimony shows that he did not make a conscious decision whether to get Patty’s permission to use the truck, and therefore did not consider public-policy interests. But “the proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’” Spotts v. United States, 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert, 499 U.S. at 325). Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception. Furthermore -- quoting previous Eighth and Ninth Circuit Court decisions: "...discretionary, policy-based decisions concerning undercover operations are protected from civil liability by the discretionary function exception, even when those decisions result in harm to innocent third parties." TL; DR, courtesy of Andy Vickers, Patty's attorney: A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes. Query:   is our federal government liable to pay for the damages to you and your property? Answer:   Nope. Law enforcement immunity, combined with deference towards the judgment of those in the business of busting bad guys means it's almost impossible to force the government to reimburse private citizens for property taken without permission and damaged during the course of its "covert" use. Maybe the DEA could just bypass the legal process and cut Patty a check for the repairs? You know, just to be "neighborly" and show that we're all Americans here and no one -- not even the Drug Enforcement Agency -- is "above' making amends when things go horribly wrong. Not a chance. To do so without an accompanying legal piece of paper explaining how this payment is not an admission of wrongdoing would be to admit fault, however implicitly. And the government doesn't want to be facing any more lawsuits than it already does. In this case, it saw a chance for a swift, cheap dismissal (thanks to some poorly-aimed arguments) and took it. And, barring a successful appeal, the decision continues the trend of courts finding law enforcement officers and federal agents culpable for their actions in only the most egregious cases. Permalink | Comments | Email This Story

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