The folks at Attrition.org have been tracking a guy named Gregory Evans who runs LIGATT Security for a while now. Evans apparently hypes himself up as a fantastic hacker, though Attrition suggests he's not all that skilled in reality. Still he's been able to get himself a fair amount of press over the years, though Attrition obviously thinks he doesn't deserve it. One thing that Attrition has spent a lot of time on is showing that Evans has a history of plagiarizing content in his "books." However, the folks at Attrition contacted us, a few months ago, to let us know that Evans was using a Techdirt article in one of his books. The "book" is what Evans calls a "scrapbook," supposedly of a bunch of articles about computer security, including at least one of ours. Evans claimed that he got permission to reprint every article in his book, and Attrition decided to see if that was true.

As we told them at the time, we were unaware of any request for permission from Evans, but in our case, that didn't matter. As we've stated repeatedly, our content is free for people to use, and we consider it to be in the public domain. With that, I figured we were done with it, but Attrition has now put out their article on the results of their research (including our response), and they couldn't find anyone who said they had, in fact, given Evans explicit permission to use their work (it's not clear if anyone even received a request).

In our case, we stand by the fact that we (perhaps alone of all the sources he copied from) don't mind the fact that he decided to reprint our stuff. That's cool. Anyone can do that. But what struck me as interesting, was this bit:

It is also worth noting that Evans tries to establish a copyright on the book, despite the fact that every article he used is already copyrighted:

"No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form, or by any means; -- electronic, mechanical, photocopying, recording or otherwise, without permission from the original author."

This disclaimer is laughable, as Evans himself did not obtain permission to use all of the articles contained in the book. Worse, in using the articles without permission while charging $39.95 for the book, he is profiting off these copyright infringements.

While we're fine with him re-using our works, one thing that we're not at all okay with is him then claiming copyright over it or otherwise trying to then limit the reuse of our works by others. That's copyfraud. As for the others in the book, I would imagine they're even less pleased, since it appears that most, if not all, of the others whose works were used do consider their works their own copyrighted material, and did not sell that copyright to Evans.

The success (or, at least, the tremendous usage) of Groupon has driven a ton of competition into the market. Though, as we've noted in the past, many of the upstart competitors seem to be cargo cult copyists -- copying the superficial idea, without really understanding what makes Groupon so dominant in the space. The latest competitor who thought it was easy to copy and discovered otherwise appears to be Facebook, who is shutting down its daily deals business after just four short months.

Of course, back when it launched, many people wondered if Facebook would be a "Groupon killer," given its larger user base. This is yet another reminder that, contrary to what some people will claim, it's often not that easy for big players to just come in and copy an idea and take over the market. It happens sometimes, certainly, but it's a lot rarer than you think. It's why I'm always amused at people who worry that some big company is just going to "copy" their idea and wipe them out. If a company really understands an idea and a market deeply, it will quickly discover that a superficial copycat won't have much momentum... which appears to be exactly what happened with Facebook's deals offering. Big companies don't always win. In fact, it's a lot less common than some people will insist.

Biology has created some really strange animals -- not just the duck-billed platypus, but all sorts of extremophiles along with senses that sound like they belong in comic books and not in nature. Here are just a few examples.

• The jellyfish species, Turritopsis nutricula, can exhibit immortality under the right conditions. And it's spreading across the globe by hitchhiking in ship ballast water. [url]
• People who say they can sense magnetic fields might not be totally crazy. There's a light-sensitive protein in the human eye (a protein that is found in almost every animal, too) that can respond to magnetic fields. [url]
• A nematode worm that lives about 2 miles below the Earth's surface in a South African gold mine can exist happily with very little oxygen as long as it can eat thousands of bacteria every day. Halicephalobus mephisto is the first complex life form found at such an extreme depth. [url]
• To discover other interesting biological curiosities, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Consumerist points us to the news that a guy named Samuel D. Jackson (not L.) has initiated a class action lawsuit against Infotrack, a background check company, because it claimed that he was a sex offender. The only problem? Infotrack got confused over its Samuel Jacksons, and didn't bother to do much to disambiguate them. That the guy they called a "sex offender" was only four years old at the time of the supposed "crime" apparently didn't set off any alarm bells at Infotrack. In fact, Jackson claims that the company told him this kind of thing happens often enough in cases where people have "common names." In this case, Infotrack didn't even check middle names, as the actual offender is named Samuel L. Jackson... though is not the famous Samuel L. Jackson. Thankfully, however, it appears that movie studios didn't rely on the same background checks in determining whether or not to employ the actor, or the class action lawsuit might have become even more entertaining.

Yet another case where technology and the law collide. A man in California is facing criminal stalking charges for tweeting a bunch of nasty and offensive (often violent) tweets at a Buddhist leader in Maryland with whom he'd had a falling out. Apparently he sent thousands of such messages, sometimes talking about ways the woman would die. But the case is raising significant First Amendment questions. There are anti-stalking laws designed to deal with someone sending threatening messages directly to someone via phone or postal mail, but what happens when it's on a public forum like Twitter. Suddenly, the First Amendment questions loom large. A person can stand on a soapbox and say offensive things about another person -- that's their First Amendment right. So the issue is where on the spectrum tweets directed at someone fall. Of course, the other issue here is what happens when you have vague "anti-stalker" laws, which seem to have contributed to the concerns here. The rather reasonable fear is that a ruling here opens up anyone who says anything "offensive" about someone else to possible criminal charges, which clearly would be a big free speech issue. So how do you distinguish between someone making credible threats, and someone just venting in an obnoxious manner? Can you distinguish between the two?

When BART first announced that it had shut off mobile phone service in a station to stop protesters, it was seen as a brief aside by the transit operation. The news reports covering the story buried that part of the story as not very important. Then people began to realize it was a huge deal and perhaps a violation of telecom law and the First Amendment, and quite an uproar ensued. Not surprisingly, the folks at BART are now realizing that perhaps they were a bit hasty. BART held an emergency board meeting solely on this issue and announced that BART will only use such measures "in an extreme case where the public is imminently at risk." Of course, what constitutes such an "extreme case" is not entirely clear. But, at the very least, I would imagine that BART bosses will think about the consequences a bit more next time.

Two years ago we wrote about a troubling case coming out of Wisconsin, in which the Wisconsin Interscholastic Athletic Association (WIAA) claimed that it could allow a single exclusive broadcaster for high school sporting events in the state. The Gannett newspapers challenged this by streaming four different events online, eventually leading to this lawsuit. There were other highly questionable limitations on news media, including a claim that they could not even report play-by-play data. That part is the most ridiculous, as that seems like a clear violation on free speech rights, and also goes against previous caselaw that has allowed the reporting of factual game information. But, stunningly, last year, a district court judge ruled that commerce trumps the First Amendment, and since the WIAA needs to make money, such deals are just fine. This didn't make much sense to us, and we hoped that it would be overturned on appeal.

No such luck.

Ima Fish alerts us to the appeals court ruling which upheld the lower court and seems to endorse the creation of a wholly made up new form of intellectual property right that has no basis in the law. The court clearly says that this is not a copyright case, so copyright law doesn't apply. So what right exactly is WIAA granting to its broadcasting partner? That's not clear at all from the ruling. If it's not copyright, it appears to be something entirely made up by the appeals court, which might be loosely defined as "the right to make up restrictions if it makes money." I'm not joking. The court repeatedly focuses in on the idea that the WIAA needs to make money, and that somehow makes it okay to grant a single company an exclusive license.

I don't see how this makes much sense. I could see that they should be allowed to grant a license to an "official" broadcaster, and even give them additional access, but I don't see how they can stop someone else from recording the material and broadcasting it as well -- especially when they admit that it's not a copyright issue.

And since this new exclusive made up imaginary right has no basis in law, we don't know what any exceptions are. Is there a fair use exception like in copyright? The contract says other agencies can show two minutes of streaming video from events, but it doesn't need to say that, and fair use shouldn't be determined by a contract anyway. The whole thing seems bizarre and troubling, in that it seems to suggest that public entities can create a special kind of exclusive broadcast intellectual property right if they use it to make money.

Separately, one small part of the case struck me as interesting in relation to a different case we talked about recently. In the Zediva case, we thought it was ridiculous that the court declared a paid video broadcast to your home as a public performance because the Zediva service was offered to "the public." Yet, in this case, the court insists that sporting events at public schools (which are open to the public) are, in fact, "nonpublic forums." I don't think either description makes sense. A private home is a private place. A public sporting event is a public event.

Finally, the court seems to totally overstate the situation in the ruling here and suggests a clear misunderstanding of the public domain:

The logical implications of Gannett’s argument are breathtaking. Suppose a high-school orchestra were to perform one of Bach’s Brandenburg Concertos or the drama club put together a rendition of Othello (both of which are in the public domain). Gannett’s argument would require the conclusion that the students have no right to engage in the common practice of packaging their performance and selling it to raise money for school trips.

While some of Gannett's arguments may have risen to that level (it did suggest that public institutions shouldn't be able to make money this way), the court also seems to suggest that just because you can't have exclusivity, you can't make money. That's silly, and wrong.

Gannett is still considering its options, but it can ask for an en banc (full court) review or it can appeal to the Supreme Court. I'm hoping it will fight this, because the ruling seems totally nonsensical.

There was quite an uproar after Missouri passed a law to ban teachers from communicating with current or former students on social networking platforms like Facebook. It didn't take long before teachers sued, and it was even faster for the court to issue an injunction blocking the implementation of the law, noting that it violated the First Amendment (thanks to Eric Goldman for the pointer). The judge made quick work of it. Here's the relevant portion (and the full ruling is embedded below):

Section §163.069.4 RSMo implicates the rights of Plaintiffs protected by the First Amendment of the United States Constitution and the Missouri Constitution in that it prohibits all teachers from using any non-work-related social networking sites which allow exclusive access with current and former students. Even if a complete ban on certain forms of communication between certain individuals could be construed as content neutral and only a reasonable restriction on "time, place and manner," the breadth of the prohibition is staggering. The Court finds at based upon the evidence adduced at the preliminary injunction hearing, social networking is extensively used by educators. It is often the primary, if not sole manner, of communications between the Plaintiffs and their students. Examination of the statute indicates that it would prohibit all teachers from using any non-work-related social networking sites which allow exclusive access with current and former students. It clearly prohibits communication between family members and their teacher parents using these types of sites. The Court finds that the statute would have a chilling effect on speech.

Given the fundamental nature of the right implicated, a "chilling effect" constitutes an immediate and irreperable harm sufficient to support a preliminary injunction.

Nice to see some courts willing to recognize that a First Amendment violation is irreparable harm. Too bad not all courts agree.

This isn't the end for the law. It's just an injunction barring it from being implemented until a full trial can be heard on the merits, but it sure sounds as if the court is pretty skeptical about the legality of the law as a whole.

You've probably heard the phrase "don't mess with texas." It's pretty widely known in general, but what you might not know is that the phrase is actually trademarked by the Texas Department of Transportation as a part of an anti-litter campaign. I had no idea. Anyway, the state is quite upset that anyone might think of the phrase in any context other than combating litter. Stephen S. Power alerts us to the news that the state has sued over a romance novel with the phrase as its title. And they're going all in. They've sued the publisher of the book, Hachette Book Group, and the author, Christie Craig, and they're even going after Barnes & Noble for daring to stock the book. Amazingly, the state doesn't even seem to want to hide the fact that it's flat out abusing trademark law. Remember, trademark law is only supposed to prevent confusion and no "moron in a hurry" is going to think that the Texas Department of Transportation has put out a bodice ripper novel. And rather than allege that, the state seems to just be saying that it doesn't like sex:

"The book," TxDOT's suit says, "contains numerous graphic references to sexual acts, states of sexual arousal, etc."

They're afraid that this will harm their ability to keep the streets clean of litter. I'm not quite sure how. Of course, if you look, it appears that TxDOT does, in fact, have a number of federal registered trademarks on the phrase. I went through them all and not a single one appears to be for books, however. There are things like clothing, signs, luggage tags, beverage holders, garbage bags, "plastic squeeze flashlights," etc. But nothing about books.

Here's hoping the defendants do decide to "mess with Texas" and teach them a little something about trademark law.

We've had a lot of stories this year about police arresting people for filming them. It's become quite a trend. Even worse, a couple weeks ago, we wrote about a police officer in Massachusetts, Michael Sedergren, who is trying to get criminal wiretapping charges brought against a woman who filmed some police officers beating a guy. This officer claims that the woman violated Massachusetts anti-wiretapping law, a common claim from police in such situations.

Segederin may have been better off if he'd waited a couple weeks for an appeals court ruling that came out Friday, because that ruling found that arresting someone for filming the police is a clear violation of both the First Amendment and the Fourth Amendment of the Constitution. How the case got to this point is a bit complex, but basically, a guy named Simon Glik saw some police arresting someone in Boston, and thought they were using excessive force. He took out his camera phone and began recording. The police saw that and told him to stop taking pictures. He told them he was recording them, and that he'd seen them punch the guy they were arresting. One officer asked him if the phone recorded audio as well and Glik told him it did. At that point, they arrested him, saying that recording audio was a violation of Massachusetts wiretap laws.

Even more ridiculous, they then had him charged not just with that, but also with disturbing the peace and "aiding in the escape of a prisoner." After realizing that last one didn't even pass the guffaw test, Massachusetts officials dropped that charge. A Boston court then dumped the other charges and Glik was free. However, he wanted to take things further, as he thought his treatment was against the law. He first filed a complaint with Boston Police Internal Affairs who promptly set about totally ignoring it. After they refused to investigate, Glik sued the officers who arrested him and the City of Boston in federal court for violating both his First and Fourth Amendment rights. The police officers filed for qualified immunity, which is designed to protect them from frivolous charges from people they arrest.

The district court rejected the officers' rights to qualified immunity, saying that their actions violated the First & Fourth Amendments. Before the rest of the case could go on, the officers appealed, and that brings us to Friday's ruling, which, once again, unequivocally states that recording police in public is protected under the First Amendment, and that the use of Massachusetts wiretapping laws to arrest Glik was a violation of his Fourth Amendment rights as well. The ruling (pdf) is a fantastic and quick read and makes the point pretty clearly. Best of all, it not only says that it was a clear violation, but that the officers were basically full of it in suggesting that this was even in question. The court more or less slams the officers for pretending they had a valid excuse to harass a guy who filmed them arresting someone.

The 4th Amendment bit may not be as widely applicable, since it mainly focuses on the Massachusetts wiretapping law. Here, the court notes that the law only covers audio recording in secret. But there is no indication that Glik did any of his filming in secret. It found the officers' arguments that he could have been doing lots of things on his mobile phone completely uncompelling, stating that the "argument suffers from factual as well as legal flaws."

The full ruling is embedded below, but a few choice quotes:

Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting "the free discussion of governmental affairs." Mills v. Alabama, 384 U.S. 214, 218 (1966). Moreover, as the Court has noted, "[f]reedom of expression has particular significance with respect to government because '[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'" First Nat'l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)). This is particularly true of law enforcement officials, who are granted substantial discretion that may be misused to deprive individuals of their liberties....

[....]

In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights. See City of Houston v. Hill, 482 U.S. 451, 461 (1987) ("[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."). Indeed, "[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." Id. at 462-63. The same restraint demanded of law enforcement officers in the face of "provocative and challenging" speech, id. at 461 (quoting Terminiello v. Chicago, 337 U.S. 1, 4 (1949)), must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

[....]

The presence of probable cause was not even arguable here. The allegations of the complaint establish that Glik was openly recording the police officers and that they were aware of his surveillance. For the reasons we have discussed, we see no basis in the law for a reasonable officer to conclude that such a conspicuous act of recording was "secret" merely because the officer did not have actual knowledge of whether audio was being recorded.

While this case isn't over yet, it's still a huge victory for those arrested by police for filming them in action. It suggests such people can bring charges against the police for civil rights violations in taking away their First Amendment rights. A tremendous ruling all around.

Last week was an interesting week for Gamestop. As a ton of you sent in, the company decided to require all stores to open up all PC copies of Deus Ex: Human Revolution and discard an included coupon for a free version of the game via the OnLive streaming platform. OnLive and Square Enix had announced the promotion to help both companies, but apparently Gamestop was jealous to be cut out of the mix. Below is an image of the order that GameSpy, who broke that story, received: From there the story got more bizarre. Gamestop didn't even seem to realize how bad this looked at first, insisting that it just didn't want to help advertise "a competitor." Soon after all of this came out, Gamestop ordered its stores to remove the game from its shelves entirely as part of a "recall" in agreement with Square Enix. The likely implication: Gamestop and Square Enix worked out a deal to offer versions of the game without the coupon, meaning Gamestop employees won't have to destroy the coupons.

However, the real story in all of this should be just how much free publicity Gamestop just gave OnLive in its hamfisted attempt to pretend the company didn't exist. And, of course, now it means that anyone wishing to buy the PC version of the game is probably (assuming that no coupons will be available) better off buying it from someone other than Gamestop. I've defended Gamestop's used game sales practices for years, but I'm amazed the company thought any of this was a good idea.

Most of US Copyright Group's lawsuits haven't been going too well -- including the decision to completely drop the case for Nu Image, the producers of The Expendables. USCG's other "high profile" case, however, involves the movie The Hurt Locker, and it continues to move forward. While judges in other cases have been rejecting these mass "fishing trip" lawsuits, knowing full well that they're being used to shake down people to "settle" despite being outside the court's jurisdiction, it appears that USCG got "lucky" with the Hurt Locker case, in that the case was handed to Beryl Howell. Howell, of course, was an RIAA lobbyist not long before becoming a judge, which certainly calls into question her impartiality in such a case -- especially when her rulings seem to contradict just about every other judge who has received one of these mass lawsuits.

In this case, brought on behalf of producers Voltage Pictures, by US Copyright Group (really DC law firm Dunlap, Grubb and Weaver), 24,583 people were sued based on IP addresses. And while most courts have cut out those outside of their jurisdiction, Judge Howell seems to have no problem with USCG getting subpoenas sent all over the country. And, with so many people sued on such flimsy evidence, it's no surprise that many receiving notice from their ISPs of the subpoena are shocked and insist they have nothing to do with it.

In some cases, their claims are pretty compelling -- such as the case in which the notice was returned... because the recipient was dead. Meanwhile, Nate Anderson has been collecting a bunch of the responses from people who insist they have no clue why they're being sued. Of course, as TorrentFreak points out, in such cases, it's probably a really bad idea to write to the court directly protesting your innocence, because that publicly reveals who you are -- something that USCG might not have known previously. Even worse, in this case, rather than recognize the ridiculousness of suing 24,583 people based solely on flimsy IP addresses, Howell is saying that these responses are meaningless until a trial actually begins -- by which point many of these same people will realize that it's probably cheaper to settle up than pay to have to defend themselves.

The sampling of letters, however, certainly suggests a fair amount of collateral damage from filing lawsuits on such weak evidence. While some may insist that (1) some of these people are lying or (2) they can just prove their innocence in court, I would suggest that you're not recognizing just how traumatic it can be to get sued, especially if you're not that familiar with the law and, indeed, have no clue why you're getting sued. It's exactly this situation that USCG and Voltage Pictures were counting on with this process, so kudos to Judge Beryl Howell for making the lives of a bunch of innocent people a living hell.

Here are just a few of the letters. More can be found at the link above:

The Pinestead Reef Resort in Traverse City, Michigan:

We object to the suit given the fact that we operate a Timeshare resort named Pinstead Brief Resort that is 46 units all of which have a Wi-Fi connection using our IP address. We have numerous users at various times and are unable to monitor or control what they are doing on the computer in their room... I can assure you that the movie was not downloaded from any of the 5 computers that we use in our office on a daily basis.

MidAtlanticBroadband Hospitality Services of Baltimore, Maryland:

MidAtlanticBroadband Hospitality Services is filing an objection to provide information as our information is irrelevant, as we are not the end-user nor do we have any information related to the actual usage of this IP address.

A woman named Sarah, no address given:

I am objecting to the disclosure and release of my identifying information by Charter Communications Inc. on the grounds that I’m not the owner nor have I ever owned the computer with the MAC IP address [sic] that they are claiming illegally downloaded the copyrighted work. When this download took place I was living in a college apartment with roommates and we all shared the wireless network. I had opened the account and my roommates each paid me a portion of the monthly bill since we all shared the same wireless network. When I contacted Charter Communications Inc. regarding the subpoena to inform them they had the wrong person named for the download they said it could have been anyone in the apartment complex and that I was named as a potential defendant due to my being the one that set up the account.

Ann from St. Louis, Missouri:

As a soon to be 70-year-old woman, I can assure the court that I have neither downloaded or distributed ANY copyrighted work as alleged in this lawsuit. Thank you for your consideration.

Rick from St. Louis, Missouri:

I did not download this movie. From a telephone conversation with Charter Communications’ technical customer service I learned it is possible someone outside my home may have compromised the IP address and downloaded the movie without my knowledge.

Charter further advised me to place a lock on the wireless router to help prevent people from hacking into the system and using my IP address. This has now been done.

Take pay cuts over the past years, having a disabled wife and struggling to support a family, I do not have the money to hire an attorney to protect myself especially in this case where I did nothing wrong.

Last week, the feds apparently raided the premises of Gibson Guitar, searching for "illegal wood" used in those guitars. Apparently, the government and Gibson have been involved in an ongoing lawsuit for some time, after the feds seized some guitars in 2009 and a case commenced against the wood in the guitar (yes, against the wood, since it was one of those "in rem" cases): "United States of America v. Ebony Wood in Various Forms." Apparently, now the government is taking it up a notch, and while there is a grandfather clause, if you get your paperwork just marginally wrong and happen to own a Gibson guitar with illegal wood, the government could seize it and fine you. Apparently, a bunch of musicians are reasonably afraid, and some suggest not taking any such guitar out of the country if you ever plan on bringing it back:

John Thomas, a law professor at Quinnipiac University and a blues and ragtime guitarist, says "there's a lot of anxiety, and it's well justified." Once upon a time, he would have taken one of his vintage guitars on his travels. Now, "I don't go out of the country with a wooden guitar."

[....]

It's not enough to know that the body of your old guitar is made of spruce and maple: What's the bridge made of? If it's ebony, do you have the paperwork to show when and where that wood was harvested and when and where it was made into a bridge? Is the nut holding the strings at the guitar's headstock bone, or could it be ivory? "Even if you have no knowledge—despite Herculean efforts to obtain it—that some piece of your guitar, no matter how small, was obtained illegally, you lose your guitar forever," Prof. Thomas has written. "Oh, and you'll be fined $250 for that false (or missing) information in your Lacey Act Import Declaration."

And since this is a "strict liability" situation, asking the government for help in making sure you're being legal may actually make things worse. Much worse:

Consider the recent experience of Pascal Vieillard, whose Atlanta-area company, A-440 Pianos, imported several antique Bösendorfers. Mr. Vieillard asked officials at the Convention on International Trade in Endangered Species how to fill out the correct paperwork—which simply encouraged them to alert U.S. Customs to give his shipment added scrutiny.

There was never any question that the instruments were old enough to have grandfathered ivory keys. But Mr. Vieillard didn't have his paperwork straight when two-dozen federal agents came calling.

Facing criminal charges that might have put him in prison for years, Mr. Vieillard pleaded guilty to a misdemeanor count of violating the Lacey Act, and was handed a $17,500 fine and three years probation.

I'm all for not destroying the environment -- and if Gibson is really doing something bad, then that should be dealt with. But some of these other situations just seem flat out ridiculous. Don't the feds have more important things to do?