Nintendo Exchanges Goodwill For Control; Issues Mass Monetization Claims On Let's Play Videos

from the not-completely-about-the-Benjamins dept

Nintendo's history of aggressive IP enforcement is long and colorful and, occasionally, completely ridiculous. No one protects the brand quite as fiercely as Nintendo does, an unfortunate byproduct of its obsession with maintaining a clean, family-friendly image.

Its latest misadventure into "controlling all things Nintendo" was brought to our attention via a post to Reddit's r/games by a prolific creator of Let's Play videos, Zack Scott. For whatever reason, Nintendo is performing a "mass claiming" of Let's Play videos featuring its titles. Scott notes in his post that Machinima has seen these claims increasing exponentially recently, pointing towards this being an active move on Nintendo's part.

The speculation is now over. Nintendo has released a statement to Gamefront, which reads as follows.

As part of our on-going push to ensure Nintendo content is shared across social media channels in an appropriate and safe way, we became a YouTube partner and as such in February 2013 we registered our copyright content in the YouTube database. For most fan videos this will not result in any changes, however, for those videos featuring Nintendo-owned content, such as images or audio of a certain length, adverts will now appear at the beginning, next to or at the end of the clips. We continually want our fans to enjoy sharing Nintendo content on YouTube, and that is why, unlike other entertainment companies, we have chosen not to block people using our intellectual property.

For more information please visit http://www.youtube.com/yt/copyright/faq.html

A few observations on this statement:

1. In terms of the internet, the present will always be relegated to some distant point in the future for Nintendo. The fact that it took until three months ago for Nintendo to join forces with the world's largest video site is astounding. This is probably has something to do with Nintendo's recent shuttering of several Wii channels, many of which were underwhelming and ignored by a majority of its customers. (The "flagship" of the lineup -- the Nintendo channel -- was one of the worst, featuring haphazardly posted content that seemed to mistake throwing darts at a lineup for curation.)

2. Nintendo's self-consciously squeaky clean image? This IP grab is about that, too. Why else would a company that only recently decided YouTube might be a viable outlet use the phrase "shared... in appropriate and safe ways" to justify slapping ads on tons of pre-existing content uploaded by its customers and fans?

3. "...unlike other entertainment companies, we have chosen not to block people using our intellectual property." Good Guy Nintendo says No Blocking! While other "entertainment companies" have blocked thousands of videos, most video game companies don't. With the exception of Sega's promotional push for its new Shining Force title that took the form of widespread takedowns, most gaming companies take a more hands-off approach, realizing that Let's Play videos are a form of advertising that costs them nothing.

4. Nintendo passes the buck on its particular copyright "strategies" by directing readers to YouTube boilerplate. Weak.

Nintendo is well within their rights to monetize these videos and images. But, as anyone who's had experience with situations like this can tell you, being "within your rights" isn't the same thing as "right," either in the moral sense or in the "opposite of wrong" sense.

Nintendo can (and does) monetize gameplay videos using its IP. There are some valid arguments for fair use that can be applied here (Techdirt contributor E. Zachary Knight runs down a few over at Gamasutra), but when it comes to uploaders v. content companies, the algorithm tends to side with the YouTube partner and the registered content. Once Nintendo makes this monetization claim, there's very little the uploaders can do to fight it.

On the plus side, Nintendo isn't actually taking down videos. This means uploaders may lose the income (many uploaders have never attempted to monetize their uploads), but their accounts will remain strike-free. (Unfortunately, having several videos from the same account claimed by ContentID tends not to reflect well on the account holder and will probably be taken into consideration should other infringement issues arise.)

The money gained from applying pre-roll/post-roll ads to Let's Play videos is likely insignificant in terms of Nintendo's annual income. (It's certainly not going to make up for the WiiU's rather inauspicious debut.) Nintendo's past IP battles make this more about control than income. This also builds Nintendo a useful database of "offending" titles that it can easily block or take down by doing nothing more than changing its ContentID options.

Is the additional control worth it? If nothing else, it will be easier for Nintendo to control its online "representation" as its actions have decreased its customer base. Zack Scott, whose account contains dozens of Nintendo Let's Play videos, has already announced he will no longer be supporting the company.

I think filing claims against LPers is backwards. Video games aren’t like movies or TV. Each play-through is a unique audiovisual experience. When I see a film that someone else is also watching, I don’t need to see it again. When I see a game that someone else is playing, I want to play that game for myself! Sure, there may be some people who watch games rather than play them, but are those people even gamers?

My viewers watch my gameplay videos for three main reasons:

1. To hear my commentary/review.
2. To learn about the game and how to play certain parts.
3. To see how I handle and react to certain parts of the game.

Since I started my gaming channel, I’ve played a lot of games. I love Nintendo, so I’ve included their games in my line-up. But until their claims are straightened out, I won’t be playing their games. I won’t because it jeopardizes my channel’s copyright standing and the livelihood of all LPers.

There are many better ways Nintendo could have handled this (a monetization split with uploaders, an invitation to upload to Nintendo's official channel, DOING NOTHING...), but the company's antagonistic attitude towards anything it doesn't directly profit from made this situation one of the better outcomes, unfortunately.

32 Comments | Leave a Comment..

Footage Of Lethal Beating Deleted From Seized Phone; Sheriff Asks FBI To Take Over Investigation

from the a-step-in-the-right-direction dept

Well, this is rather unexpected. After sheriff's deputies seized cell phones containing footage of David Silva's death at the hands of nine law enforcement officers, the assumption was that Kern County Sheriff Donny Youngblood's promise of a full investigation would result in little more than some officious noises being made and declarations that the recordings were "inconclusive" or "unrecoverable."

That this is the most common assumption shows how far the trustworthiness of law enforcement has fallen. This precipitous drop in trust is almost inversely proportionate to the increase in recordings captured by members of the public. Law enforcement has long been in control of the cameras and this power shift has resulted in some very ugly behavior. The expected mode is cover up and obfuscate, abusing the power that comes with the position.

The unsurprising part of the David Silva beating is this: when one of the phones confiscated by law enforcement (one without a warrant, the other after an illegal nine-hour detention) was inspected at the Sheriff's office, Sheriff Youngblood discovered the footage had been deleted.

The surprising part is that Youngblood decided to call in the FBI to head up a parallel investigation into the death of David Silva. Even better, he had the phones flown out to the FBI's Sacramento office for analysis. This is a rather unprecedented move. The general response from local law enforcement to situations like these is to close ranks and make vague promises and statements about "justice" and "truth." Instead, Youngblood opted to turn the investigation over to a more neutral party (and one with better tech tools).

The fact that this story has attracted national interest probably pushed Youngblood to consider other options. There's little chance the Sheriff's department would be able to control the narrative (or contain the fallout) at this point and with potentially damning footage being deleted by a law enforcement officer, there's no chance for redemption without making the investigation more neutral.

This isn't to say the FBI isn't capable of covering up misbehavior, but in this instance, it really doesn't have much of a stake in the outcome. If the footage shows what eyewitnesses have described, there shouldn't be too much of a question as to where the guilt lies.

The deputies named by the department have been put on paid administrative leave pending the outcome of the investigation, and Sheriff Youngblood has stated that these officers have been receiving death threats and negative email. This, too, is an expected outcome. The court of public opinion creates a lot of judge/jury hybrids. Naming the officers involved is a small but significant step towards a transparent investigation. Hopefully, the FBI's involvement will continue in this fashion, rather than take a turn towards the opaque.

79 Comments | Leave a Comment..

How GEMA Is (Still) The Worst 'Collective Rights' Organization In The World

from the €75-für-summte-99-Luftballons-versehentlich dept

We've discussed GEMA's antagonistic attitude towards, well, pretty much everyone other than itself. In addition to turning the German YouTube experience into a farcical collection of "Sorry" faces and demanding fees for music it doesn't even control, GEMA has also been in the news due to its rollout of a "streamlined" fee structure that threatens the existence Germany's underground club scene with unsustainable licensing rates.

Luis Manuel Garcia at Resident Advisor has put together a very thorough and excellently written rundown of the recent events, covering GEMA's attempts to "streamline" its licensing fee structure (and its adverse effects) and explaining some of the organization's idiosyncrasies. (This is a very nice word for GEMA's thuggish tactics that go beyond villainy to cartoonish supervillainy.) There are a few differences between GEMA and other performance rights organizations (BMI, ASCAP, PRS, etc.). Much of this has been covered here before at Techdirt, so I'll give you some of the high/low points of GEMA's services, with some added details from Garcia.

Rather than being limited to "public performance rights," GEMA handles "collective rights management" for its 64,000 German members and 2,000,000 worldwide members. GEMA still collects licensing fees from businesses but its power goes much, much further than ASCAP's or BMI's.

GEMA decides how to distribute your work... and at what price.

This means that music-makers don't sign over ownership of their music upon joining GEMA, they sign over their usage rights—the right to legally manage and collect licensing fees for playback, reproduction and broadcast of their music. This is a convenient arrangement when you're a small-time musician who doesn't have the time or money to manage your catalogue; but these management decisions are taken out of your hands. If you want to grant a free license to a charity event or offer a reduced fee for a career-advancing event, you'll find that decision isn't yours to make.

All music is assumed to be under GEMA's control unless the artist can prove otherwise.

Unlike ASCAP, BMI, PRS, etc., GEMA isn't opt-in. And it's pretty tough to opt out. GEMA tends to "play it safe" by claiming music it doesn't own.

Like other PROs, GEMA distributes licensing fees to top-selling artists.

This distribution scheme is unlikely to change in the hands of GEMA. Its so-called "full members" (members who have achieved over €30,000 in GEMA revenue over a five-year period) are the only members allowed to vote on issues or hold controlling positions. Any artist not within this elite group has to watch his or her fees being redistributed to already wealthy artists while being prevented from attempting to effect any change in the prevailing structure.

GEMA assumes (like other PROs) that every venue plays only music from top-selling artists.

For underground music venues that mainly feature non-mainstream and independent artists—like many dance music clubs—this means that a portion of the fees collected for these events will likely find their way into the bank accounts of mainstream artists and advertising jingle writers, whose music was never played during the event, while some artists will never see a single cent for their music, however popular it may be.

GEMA splits music into three categories which affect rates collected and royalties paid and arbitrarily decides for the artists what category their music falls under.

It classifies music into three categories: entertainment [Unterhaltungsmusik], serious music [Ernste Musik] and functional music [Funktionsmusik]. It then subjects these categories to different fee rates, membership requirements and weighting in the points system they use to calculate royalties. Unsurprisingly, U-Musik gets the worst of this arrangement, having the highest membership requirements, the highest fee rates and the lowest values for royalty calculations

Unlike other PROS, GEMA is a "for-profit" organization that enjoys a government-granted monopoly and legal powers.

Making all of this worse is the fact that GEMA is a private interest "for-profit" organization, unlike most PROs which operate under a "non-profit" status. GEMA also operates as a monopoly, a problem made worse by the German government's decision to grant it legal power to "protect" the rights of its members.

How GEMA went from bad to worse

For years, the German government seemed to have no problem with GEMA's tactics and monopolistic operation. In fact, its only complaint was directed at GEMA's complex fee structure. GEMA responded to this by streamlining its rates with a clear eye on maximizing income. It was required to negotiate these changes with club owners and other affected parties, but its monopoly position basically turned the discussion into GEMA stating, "Here are your new fees," and walking away from the table.

Negotiations broke down sometime in late 2011, however, and an attempt to initiate legal arbitration failed as well. GEMA therefore decided to go ahead without the negotiations or arbitration and published a new tariff structure in the Bundesanzeiger (Federal Gazette) in April 2012, which effectively made the new tariffs legally-binding.

Now, the venues being hit hardest were nightclubs, especially underground clubs that catered to non-mainstream crowds and played non-mainstream music. GEMA's "streamlined" fee structure was built from the sort of opportunistic math that could only come from a self-interested monopoly. Any concessions to reality were thrown out the window in search of higher fees.

GEMA's opportunistic math

First, GEMA killed off yearly flat rates and replaced them with "per-event" charges. Supposedly, this was to "balance" fees between large and small venue owners. GEMA even claimed this would reduce fees for 60% of its "customers." But once it applied its GEMA-friendly calculations, everyone was guaranteed to see an increase in licensing costs.

GEMA calibrated the new rate for dance clubs (Tarif M-V) with the goal of charging approximately 10% of the gross income for a music event. Of course, they don't trust organizers to self-report their revenues accurately, so they estimate the gross income based on venue size and price of entry, and then charge 10% of that.

This estimation is based on three assumptions: 1) the capacity of a venue is one person per square-meter, measured wall-to-wall (i.e. beyond the dance floor and ignoring solid objects like furniture); 2) the event is full to capacity; 3) everyone is paying full price for entry.

This sort of mathematical assumption would ruin any normal business. Fortunately for GEMA, it's a government-ordained monopoly which exists solely to extract fees. The more it extracts, the healthier it is. Under the old flat-rate structure, a 500 square meter club would have paid around €7,800 annually. Under GEMA's new plan, this leapt to over €78,000.

When club owners complained about this exorbitant rate hike, GEMA responded (belatedly) with a nominal attempt at "fairness."

In answer to complaints about these distorted results, GEMA later introduced the Angemessenheitsregel (appropriateness rule), which allows promoters to apply for a partial refund if GEMA fees are well over 10% of actual gross income or if the venue's capacity is well under GEMA's one person / m2 ratio.

In other words, club owner would still need to pay up front and hope GEMA would cut them a (partial) refund check sometime in the next several months. Seeing as GEMA doesn't trust club owners to honestly self-report revenues (hence the lousy fee structure), it wouldn't be surprising if it decided these refund requests were dishonest as well, and rejected a majority of them.

This rate hike hit underground clubs hardest, but GEMA wasn't done punishing them yet. GEMA also levied a rate hike based on the length of the event, jacking the rate up by 50% once the event passed 5 hours and adding another 50% hike every two hours after that. This led to astronomical charges for clubs that routinely ran 10-hour-plus events or operated around the clock. As more outrage poured in, GEMA dialed this back to a 25% increase every two hours after the 8-hour mark -- not as bad, but still unaffordable.

GEMA tacks fees on hardware and data

Obviously, GEMA felt it still wasn't making enough money from these events, so it decided to start double-dipping by cramming its hands into the DJs' pockets.

[I]n late November GEMA announced another tariff, VR-Ö, which became known as the "laptop surcharge." It applied to all music performances that use blank media such as CDs, tapes, USB sticks and hard-drives. This already existed in the past as an automatic 30% surcharge on the entirety of GEMA music licensing fees if any of the DJs used mp3s or burned CDs. Now, the surcharge would no longer be a percentage of the fees, but would instead be calculated at 0.13€ for every mp3 file on the DJ's computer. Every song over five minutes costs an extra 20% per minute. Performers and promoters all over Germany were not pleased, especially since the rate appears to charge all files on a DJ's performing device, regardless of how many songs they actually play.

The backlash

All of this led to protests against GEMA and its club-killing license fees. A petition managed to gather enough signatures to get the government's attention. The German government looked into GEMA's fee structure and its opportunistic club revenue calculations. GEMA reentered negotiations with artists' representation and rolled back its fee structure to its pre-"streamlined" levels. It also adjusted its "laptop surcharge" to a flat rate of 50 euros per 500 songs, making this more affordable for DJs, if not actually any less presumptuous and stupid. (RA says some Germans feel this is nothing more than an opportunity for GEMA to jack the rates later on its newly collected list of registered DJs.) There's also been a call for German legislators to craft policies to regulate GEMA's actions.

The outcome of this controversy has been a little better than expected, considering GEMA's horrible track record. Still, as is evidenced by GEMA's ongoing battle with Google/YouTube, the rights organization still has a long way to go before it will be considered anything other than predatory and overbearing. German artists should at least be given the chance to opt out without having to jump through GEMA's hoops.

And all rights organizations should start making an honest effort to track actual usage, rather than simply throwing more money at those artists who already have plenty. It's 2013 and the technology exists to make this possible. PROs (and GEMA) are simply being willfully obtuse by pretending they can't do anything better than cut checks while eyeballing the latest Billboard chart.

33 Comments | Leave a Comment..

VP Joe Biden Believes There's 'No Legal Reason' The Government Can't Slap A Sin Tax On 'Violent Media'

from the brain-disengaged,-all-power-rerouted-to-mouth dept

I'm not sure where vice president Joe Biden is getting his information, but he seems rather confident that a tax can be levied against "violent media." He may want to check with the Supreme Court, which has ruled against regulating violent video games and found taxing certain varieties of speech differently to be a violation of the First Amendment.

Possibly Biden just got carried away with the jovial spirit of censorship pervading the post-Sandy Hook political climate. Or maybe he was just in an overly-agreeable mood and started making affirmative statements without considering what he was saying.

Or maybe he was just "playing to the crowd," which was entirely comprised of reps for various religious/community groups.

Those present for the Monday evening meeting included Franklin Graham, son of the evangelist Billy Graham and CEO of the Billy Graham Evangelistic Association, and Barrett Duke, the vice president of the Ethics & Religious Liberty Commission, the Southern Baptist Convention’s public policy arm.

The meeting also included Bruce Reed, Biden’s chief of staff, and Melissa Rogers, the director of the White House Office of Faith-Based and Neighborhood Partnerships, according to people who attended.

This is not to say that all members (or even all representatives) of religious communities are censorious or prone to pushing their subjective morality on others. There are several exceptions. Franklin Graham, however, isn't one of the exceptions.

Graham, two people in the meeting said, told Biden the government should consider taxing media companies that broadcast violent images and produce violent video games.

He floated the idea that media and entertainment that portray violence should be subject to a special tax, with the proceeds going to help victims and their families," said Rabbi Julie Schonfeld, the executive vice president of the Rabbinical Assembly.

Let's stop here for a moment and take a look at this proposal, possibly in the way that might befit a nation's Vice President.

First off, the idea is bad and Graham should feel bad. As was mentioned above, applying additional tax to certain forms of speech is a clear violation of free speech rights. The government would be applying this tax to whatever it arbitrarily deemed "violent" enough to qualify for the "sin tax." (This is really what this amounts to -- a tax on certain speech and, indirectly, certain consumer behavior.)

Secondly, the direct flow of tax revenue from "violent media" to "victims and their families" makes an implicit connection between the two principals. This links the two in the government's eyes and in the public's eyes. This also handily allows the government to dodge the fact that there is very little, if any, explicit connection between "violent media" and violence. In essence, this presumes guilt on violent media creators and punishes them for exceeding some arbitrarily acceptable "violence" threshold.

Then there's perhaps the most troubling aspect: who decides what amount of violence is non-taxable and where does that line get crossed? If it's a PG-13 film, does it go untaxed? Does any M-rated game immediately have the tax applied? Will game developers and filmmakers explore other paths, like explicit sexuality, simply because violence gets taxed and sex doesn't? Or will they, more likely, adapt to the new chilling effect and produce stunted, sanitized output?

There are other questions to consider as well. With the consumers footing the bill for violent movies and games, will this price hike affect purchases by attaching some sort of stigma to the products themselves? Would the government label these items with something like: "2% of this purchase goes to victims of violence," thus making consumers feel complicit in violent criminal activity simply by purchasing the media?

[Bonus: will the MPAA be involved? It is one of Biden's buddies and its rating system is built on one of the most bizarrely abitrary set of 'standards' in the entertainment industry.]

These are just a few aspects that should be considered before anyone even brings the subject up, much less offers Vice Presidential-backing for the idea. But Biden seems almost charmingly naive in his response:

Biden told Graham that there was “no restriction on the ability to do that, there’s no legal reason why they couldn’t” tax violent images, Clark added.

I'm guessing at this point someone has gotten word to Biden that there's actually at least one legal reason the government can't tax "violent images," because there has been no further word from either proponent of this terrible idea.

Graham’s representatives did not respond to requests for comment. Biden’s office also did not respond to requests to comment about the meeting.

Maybe Biden felt this conversation would never leave the room and therefore felt comfortable making ridiculous claims. He certainly appears to have tried to chill a little free speech himself.

Five people who attended the 2½-hour meeting told POLITICO that Biden made a specific plea to those present to keep his words off the record from reporters.

“He basically just said in general that these stakeholder meetings that if you put words into the vice president’s mouth it sometimes comes out wrong and gets misquoted,” said Shantha Alonso, the director of the poverty program at the National Council of Churches.

Well, that's a nice out to have. I guess we'll see if the "I was misquoted/comment was off the record" excuse gets run up the flagpole sometime soon. If it doesn't, we might be safe in assuming that, no matter what conclusions the CDC reaches in its study of violence and violent media, Biden and like-minded supporters will be moving forward with their reinterpretations of the First Amendment.

(h/t to Techdirt reader Colin for sending this our way. Not sure which Colin it is as multiple Colins come up in the search, but he knows who he is and can certainly take credit for the tip in the comment section.)

45 Comments | Leave a Comment..

Canadian Anti-Infringement Enforcement Company Caught Using Infringing Photos On Its Website

from the casual-infringement-for-all! dept

IP "enforcement" is a Herculean task (according to the enforcers), one that requires so much time and energy that those pursuing infringers barely have time to make sure their own backyard is clean. Many in the copyright industry (or closely affiliated) have been caught infringing on others' copyrights: hosted infringing material. SOPA pusher Lamar Smith. NBC Universal. Righthaven. The US Copyright Group. The list literally goes on and on.

Here we are again, discussing an entity so concerned with outside infringement, it can hardly be bothered to notice the infringement within its own walls. Canipre, the Canadian "forensics software" company that has hunted down IP addresses for a "million pirates" on behalf of lawsuit-happy studios like Voltage Pictures ('Hurt Locker,' anyone), has decked out its (rather overdramatic) website with the unlicensed photos belonging to others.

Canipre, as a company, offers to track down people who are illegally downloading copyrighted material from record companies and film studios. According to their website, they have issued more than 3,500,000 takedown notices, and their work has led to multimillion dollar damages awards, injunctions, seizure of assets, and even incarceration.

In a recent interview, Canipre's managing director Barry Logan explained that it's about much more than just money—he's hoping to teach the Canadian public a moral lesson:

"[We want to] change social attitudes toward downloading. Many people know it is illegal but they continue to do it... Our collective goal is not to sue everybody… but to change the sense of entitlement that people have, regarding Internet-based theft of property.”

Well, it seems the "sense of entitlement" goes all the way up. Here's a screencap of Canipre's website that features a self-portrait by Steve Houk.


We'll quote Vice here:

So, just to be clear: Canipre has written "they all know it's wrong and they're still doing it." Referring to copyright theft. On top of an image that they are using without the permission of the copyright holder. On their official website.

Houk says no permission was given to use his photo. He contacted Canipre directly to discuss its infringement and to point out that is was "disheartening" to see a company claiming to "champion intellectual property rights" obviously disregarding the rights of others. This led to Canipre's marketing director firing off a volley of emails and phone calls before finally deciding to pass the buck.

Logan claimed that the company used a 3rd party vendor to develop their website and that the vendor had purchased the image from an image bank.

I pointed out to Logan that if that was true, he had basically paid his vendor to rip off other people's creative work. Logan told me that he would contact his web provider and have the image removed. He also told me that he would provide me with the name of the website developer and the name of the image bank where they obtained my photo.

So, it's important that Canipre maintains a presence on the web that properly (and noirishly) delivers its message on the importance of intellectual property rights, but not important enough to dot i's, cross t's and make sure its "third party vendor" isn't simply grabbing images from "the internet" (or image banks with their own infringement problem).

Logan has yet to provide the name of the developer or the image bank, so it still remains somewhat of a mystery which 3rd party vendor slapped Houk's photo onto an IP enforcer's website. And this photo, taken by Sascha Pohlflepp. And this one, taken by Brian Moore. At this point, all of the infringing photos have been taken down, but only after Vice called attention to Canipre's actons.

The ironic thing about the last two photos is that they're both Creative Commons-licensed, meaning all Canipre (or its vendor) had to do was properly attribute the photos. But neither could be bothered.

Now, some might say that in the scheme of things, Canipre's infringement is nothing compared to the infringement it's fighting. But here's the difference. Canipre is a company that helps studios like Voltage sue alleged infringers based on not much more than an IP address. File sharers aren't turning a profit or presenting themselves as righters of the world's wrongs. If you're going to put yourself in the position of "educating" people (via mass lawsuits) about the importance of the intellectual property rights you're being paid to protect, you had better make sure you're not stepping on the IP toes of others.

50 Comments | Leave a Comment..

Why ESPN's Offer To Pay To Have Its Content Bypass Data Cap Meters Plays Right Into The Hands Of Wireless Providers

from the stop-it,-ESPN.-you'll-just-encourage-them. dept

ESPN has been making a little bit of noise recently about being willing to throw a few bucks towards wireless providers in exchange for letting its content roll through to users without affecting their data caps. While this may sound like a good deal for sports fans stuck with low data caps, there's a whole lot wrong with this "offer," above and beyond the obvious "pay-to-skirt-net-neutrality" issue. Chris Morran has a good rundown of the negative side effects ESPN's data subsidy would unleash. First and foremost, ESPN offering to help out users with data caps plays right into the industry's talking points.

Subsidizing wireless usage in this way would only give rise to this myth that smartphone data plans are capped because of congestion and a supposed high cost of moving data. However, studies show that the cost of delivering content to wireless customers has dropped while the user base has increased.

Morran's right. The last thing the wireless providers need is someone granting credence (albeit in a very roundabout way) to their ongoing myth of congestion and costs. This allows these providers to continue dining out on this story while simultaneously casting themselves as "good guys" in the new narrative. "See, we're allowing you to access popular content without using up a chunk of your data plan!" ESPN gets preferential treatment, the providers make more money and everyone wins. Well, almost.

Well-heeled content providers like ESPN would not be hurt financially by subsidies, but if they became standard, that extra could effectively put up a huge roadblock — or at least a very nasty speed bump — to smaller startups seeking to compete.

Basically, if one content provider is shown preference in exchange for a fee, it makes it tougher for the competition to reach consumers. If FOX Sports is just going to eat away at your data plan, it only makes sense to switch to the "free" data ESPN is providing. Wireless companies will be able to leverage content providers against each other, gradually levelling the playing field with fat stacks of subsidy dollars.

If ESPN is able to follow through on its plan, this will become the norm. Wireless providers will have a new source of income and exactly zero reasons to increase or remove data caps, seeing as the caps themselves are providing the incentive for content providers to ante up for unmetered data to keep consumers hooked.

As unmetered data usage increases, the wireless providers will simply adjust the argument, stating that this new level of network strain requires data caps to stay in place and that the infrastructure improvements needed to support this will require higher overage fees and lower caps.

Morran argues it shouldn't be that way, and again, he's right, but given the track record of most providers when it comes to data caps, nothing will change but the amount of cash flowing towards wireless companies.

If content providers do begin subsidizing wireless plans, then consumers should demand lower monthly rates — or the elimination of data caps entirely, as that extra cost will be borne by ESPN and others. Of course, we all know that will never happen.

Consumers can make all the demands they want, but the simple fact is most of them lack the options to make a stand on principle. Even in areas covered by more than one provider, the differences between the "competing" companies is almost imperceptible.

From a business standpoint, this works out extremely well for ESPN. Even if most customers are in no danger of hitting their data cap, the pull of unmetered data is very strong. Unfortunately, it works out all too well for wireless providers, most of whom have shown little interest in upgrading their infrastructure even as they shed crocodile tears over congestion.

27 Comments | Leave a Comment..

US's 'Cyberwar' Strategy: Making The Public Less Secure In The Name Of 'Security'

from the adding-up-wrongs-to-make-a-right dept

The US government seems to be responding to "cyber Pearl Harbor" by heading out on bombing runs of its own. All the concern for the safety of the American public displayed in Congress during the CISPA push seems to have been nothing more than the empty words we expect from our representatives. Americans and American companies are now being caught in the crossfire -- some of it "friendly."

The US government is waging electronic warfare on a vast scale — so large that it's causing a seismic shift in the unregulated grey markets where hackers and criminals buy and sell security exploits, Reuters reports.

Former White House cybersecurity advisors Howard Schmidt and Richard Clarke say this move to "offensive" cybersecurity has left US companies and average citizens vulnerable, because it relies on the government collecting and exploiting critical vulnerabilities that have not been revealed to software vendors or the public.

"If the US government knows of a vulnerability that can be exploited, under normal circumstances, its first obligation is to tell US users," Clarke told Reuters. "There is supposed to be some mechanism for deciding how they use the information, for offense or defense. But there isn't."

I'm not sure how increasing user vulnerability helps win a cyberwar, but no doubt any home team casualties will be written off as sacrifices for the greater good. Even more troubling than the government's willingness to sacrifice security for security (??) is the fact that it's unwilling to share this information. What good are those provisions in CISPA and President Obama's recent cybersecurity executive order about the government sharing cybersecurity info with companies, if the government hoards the information for their own hacking purposes? More details from the Reuters report.

Top U.S. officials told Congress this year that poor Internet security has surpassed terrorism to become the single greatest threat to the country and that better information-sharing on risks is crucial. Yet neither of the two major U.S. initiatives under way - sweeping cybersecurity legislation being weighed by Congress and President Barack Obama's February executive order on the subject - asks defense and intelligence agencies to spread what they know about vulnerabilities to help the private sector defend itself.

When a U.S. agency knows about a vulnerability and does not warn the public, there can be unintended consequences. If malign forces purchase information about or independently discover the same hole, they can use it to cause damage or to launch spying or fraud campaigns before a company like Microsoft has time to develop a patch. Moreover, when the U.S. launches a program containing an exploit, it can be detected and quickly duplicated for use against U.S. interests before any public warning or patch.

Is it any surprise the public distrusts the government? It claims to be fighting a cyberwar in order to make us more secure and yet, when it goes on the attack, it values its own secretive efforts over the security of the public.

As the government purchases more of these exploits to help fight its cyberwar, the lines on the battlefield are continuously redrawn and obscured. Buying exploits from independent hackers leaves them free to sell to other high bidding countries when not using the exploits themselves. This arms race also creates a perverse set of incentives. As the demand for new exploits increases, security companies and contractors that used to release information to those affected are now keeping their discoveries to themselves to preserve "market value."

The Reuters report also notes that this new breed of security contractor is offering up, among other things, keys to criminal botnets. Endgame, a heavily funded tech startup with close ties to the intelligence community, is more than willing to hand over control of thousands of zombie computers for the right price.

Some of Endgame's activities came to light in purloined emails published by hackers acting under the banner Anonymous. In what appear to be marketing slides, the company touted zero-day subscriptions as well as lists of exactly which computers overseas belonged to specific criminal "botnets" - networks of compromised machines that can be mobilized for various purposes, including stealing financial passwords and knocking websites offline with traffic attacks.

The point was not to disinfect the botnet's computers or warn the owners. Instead, Endgame's customers in the intelligence agencies wanted to harvest data from those machines directly or maintain the ability to issue new commands to large segments of the networks, three people close to the company told Reuters.

So, we're engaged in a cyberwar that's going to help us by hurting us, is that it? I understand that no one wants to be outgunned when facing the enemy, but what's being detailed here looks like a whole lot of collateral damage in the pursuit of unattainable goals. The same exploits will be used on both sides of the battle, and with end users and the companies they rely on being cut out of the loop, it will be the civilians who fare the poorest. We'll just be asked to pretend the government's saving us from something even worse.

25 Comments | Leave a Comment..

Police Follow Up Beating A 'Possibly Intoxicated' Man To Death By Seizing Witnesses' Cell Phones

from the keeping-the-peace-at-a-ratio-of-nine-to-one dept

How many law enforcement officers does it take to subdue one intoxicated man? In Bakersfield, CA, it takes nine: seven sheriff's deputies, two CHP officers and a police dog. It also appears that being publicly intoxicated and resisting arrest in Bakersfield is punishable by immediate death in the same county.

At this point, consider everything regarding the beating to be "alleged." After all, we don't have any conclusive evidence of what happened, despite two people filming it (and a handful of eyewitnesses) because law enforcement made sure every recording of the event (except one -- more on that in a bit) was seized as "evidence."

Also, keep in mind that David Silva, the thirty-three year old father of four who was allegedly beaten to death by nine law enforcement officers, was only allegedly intoxicated and violent. Evidence of his crime(s) disappeared along with the footage of multiple cops swinging batons. (I suppose this will be verified when the autopsy results are made public, presumably featuring a full toxicology report.)

Here's an eyewitness account of the beating:

At about midnight, Ruben Ceballos, 19,was awakened by screams and loud banging noises outside his home. He said he ran to the left side of his house to find out who was causing the ruckus.

"When I got outside I saw two officers beating a man with batons and they were hitting his head so every time they would swing, I could hear the blows to his head," Ceballos said.

Silva was on the ground screaming for help, but officers continued to beat him, Ceballos said.

After several minutes, Ceballos said, Silva stopped screaming and was no longer responsive.

The phones used to record the incident were seized by law enforcement as "evidence." As it's highly doubtful the sheriff's department is looking into charging a dead man with a crime, the only "investigation" possible would be a look into the actions of the officers at the scene. This also means the only criminal activity captured on film would be the officers'. Turning over the only copy of evidence to the perpetrators is generally considered to be a terrible idea. But when you've just witnessed nine law enforcement officers beat a man into unconsciousness (and eventual death), your normal citizen is probably going to think twice before telling another officer, "No."

But the witnesses held out as long as they could. The incident happened around midnight. The two witnesses who had recorded the event (a male whose name hasn't been released and Maria Melendez) were called back to their apartment by the sheriff's department. This was at 3 AM. At that point, the officers demanded they turn over their cell phones. They refused to do so without being served a warrant. The officers then detained them in the apartment, telling them they couldn't leave without turning over their phones.

Three hours later, the male turned over his phone, stating he needed to be to work in a couple of hours. The officers detained Melendez for nearly nine hours. The search warrant finally arrived around noon and Melendez relinquished her phone. The two witnesses were told they could pick up their phones the next day. When the unnamed male went to recover his, he found the timeframe had now changed to "months, even years" before he could get his phone back.

Two bits of evidence have made their way into the public, unimpeded by sheriff's deputies with endless amounts of time to waste and rights to violate. The first is a 911 call reporting the beating made by Salinas Quair, Melendez's daughter. This call alerted law enforcement to the fact that the (alleged) beating had been recorded, triggering the intimidating roundup (and detainment) of these witnesses.

There's a man laying on the floor and your police officers beat the [explicit] out of him and killed him," said the woman. "I have it all on video camera."

The woman continued:

"I am sitting here on the corner of Flower and Palm right now and you have one, two, three, four, five, six, seven, eight Sheriffs. The guy was laying on the floor and eight Sheriff's ran up and started beating him up with sticks. The man is dead laying right here, right now."

The second piece of evidence, a security camera recording, was turned over by an individual who (unsurprisingly) has refused to go on camera or reveal his or her name. Here's KERO TV's (Bakersfield) description of the recordings' contents.

The grainy black and white video appears to show the alleged victim, David Silva, 33, lying on the ground. Another person is then seen walking up to Silva and attempting to pick him up. Both men appear to scuffle, and after a few minutes, Silva is seen being struck with an object.

Other cars are seen arriving at the scene with lights flashing on top of them. Several other men are then seen in the video, also striking Silva more than a dozen times with objects. Silva is then seen being taken into custody.

If you click through and watch the footage, at about 4:05 an officer can be seen taking a two-handed swing with a baton. Shortly thereafter, more officers arrive. One of the first to arrive also takes a two-handed swing with a baton. In all, nine baton-swinging officers showed up. A spokesman for the Kern County Sheriff's Office reassures everyone that the officers felt no need to deploy any of their other weaponry, as well as undercounting the number of respondents.

KCSO Spokesperson Ray Pruitt told 23 ABC it took 5 deputies, 2 CHP officers and a K-9 to subdue Silva.

Pruitt said officers were forced to use their batons to arrest Silva but no tazers, pepper spray or guns were used during the altercation.

His count is off. Here are the names of the Sheriff's Department personnel involved in the incident, as released by the Sheriff's Office.

The office did identify the officers involved in the arrest as Sgt. Douglas Sword and deputies Ryan Greer, Tanner Miller, Jeffrey Kelly, Luis Almanza, Brian Brock and David Stephens.

That's seven from the sheriff's department. The names of the two CHP officers have not been released. That's nine altogether, plus a police dog.

One has to wonder, though, how the officers were "forced" to use their batons. Perhaps some force was needed to subdue Silva, but with nine officers responding (and swinging), you'd think the tide would have turned in law enforcement's favor long before Silva lost consciousness. And how much "resistance" did Silva actually offer, considering the first officer on the scene was responding to a call from Kern Medical Center security who reported Silva as "passed out?"

End result: a man loses his life for being intoxicated. Nine officers beat Silva senseless take Silva "into custody," which in this case is synonymous with "attempt CPR and call an ambulance." Ironically, Silva was only a block away from Kern Medical Center, not that it did him any good.

Not content to limit its wrongdoing to a beating, deputies then barge into a home without a warrant and detain two citizens against their will, one of them for nearly nine hours, until the warrant they should have needed just to get in the door at 3 AM finally shows up at noon.

Now, all of the inarguable evidence is in the hands of the same people who would prefer it just went away. It will be tough for them to get away with simply deleting the recordings, but stranger things have happened to evidence that implicates law enforcement officers but has ended up in the possession of law enforcement. The recording can be termed "unrecoverable" or have inexplicably large gaps in the footage. Or the phone may be damaged during "processing." Sometimes, the evidence just vanishes conveniently and a lengthy internal investigation will unwind at a glacial pace until everyone loses interest.

There's a law enforcement problem here, and the problem is with the brand of "enforcement" that bypasses the law entirely. David Silva's death at the hands of police officers conjures up images of similar methods being deployed to subdue a schizophrenic homeless man in nearby Fullerton, CA. Kelly Thomas was beaten by several officers, resulting in a death by "mechanical suppression of the thorax." This one was caught on tape (via security camera), as well as captured more intimately by a microphone worn by one of the officers.

The people who witnessed this beating have nowhere to go. They can't trust the police and they've seen those who recorded the event quarantined in their home until they complied with the officers' requests to turn over their phones. If not for the constitutional violations committed by "law enforcement," the footage would already be publicly displayed. The longer the Sheriff's office delays in releasing this footage, the worse it appears. If this went down as described, there's no way law enforcement can hope to salvage some respect by attempting to downplay or justify the actions of these officers.

Even if Silva was putting up the fight of his life, he was intoxicated and was outnumbered 9-to-1. Any reasonable person would expect a suspect to be subdued before it got to the point where it became life-threatening. But any hopes of a reasonable outcome were discarded the moment that first two-handed swing connected.

131 Comments | Leave a Comment..

Former DHS Head On Google Glass: Intrusive Surveillance Is Bad -- If It's A Corporation Doing It

from the you-know,-it's-completely-possible-that-BOTH-are-bad dept

With Google's eyewear seemingly headed to the general public in the not-too-distant future, many people have expressed concern about being recorded against their wishes. As Mike pointed out, there's a bit of a backlash/moral panic on display right now, which has resulted in a petition requesting the White House ban the devices. He also mentioned briefly that former DHS head Michael Chertoff had written an editorial about the privacy implications of Google Glass.

Chertoff analyzes some of the privacy implications raised by Google Glass but, considering his former position in the DHS and his current role as the head of The Chertoff Group, a "global security advisory firm," this editorial comes off as one-sided and tone deaf. Why would someone who seemingly has no concern about government intrusion into people's privacy care about a corporation's move onto the same turf? Bruce Schneier addresses this dissonance briefly in his post linking to Chertoff's editorial.

It's not unusual for government officials -- the very people we disagree with regarding civil liberties issues -- to agree with us on consumer privacy issues.

Deep down, we're all human, I suppose. Or, at the very least, we have common enemies. Chertoff is concerned about the potential of a corporation collecting and controlling this massive amount of data. But is his concern genuine? Schneier addresses that as well.

But don't forget that this person advocated for full-body scanners at airports while on the payroll of a scanner company.

Chertoff gets off on the wrong foot by comparing Google Glass with surveillance drones, referring to government and law enforcement's "acceptable" surveillance while trying to paint a horrific portrait of a sky filled with corporate surveillance.

Imagine a world in which every major company in America flew hundreds of thousands of drones overhead, 24 hours a day, seven days a week, 365 days a year, collecting data on what Americans were doing down below. It's a chilling thought that would engender howls of outrage.

Now imagine that millions of Americans walk around each day wearing the equivalent of a drone on their head: a device capable of capturing video and audio recordings of everything that happens around them. And imagine that these devices upload the data to large-scale commercial enterprises that are able to collect the recordings from each and every American and integrate them together to form a minute-by-minute tracking of the activities of millions.

There's really no need to imagine any part of this scenario. Law enforcement entities all over the US are purchasing drones and our government is using this same equipment to patrol borders and keep tabs on large crowds.

There are legitimate privacy concerns, but Chertoff's background distracts from his message, especially when he himself brings up drone usage that likely concerns Americans more than privacy invasions from Glass wearers.

So, who owns and what happens to the user's data? Can the entire database be mined and analyzed for commercial purposes? What rules will apply when law enforcement seeks access to the data for a criminal or national security investigation? For how long will the data be retained?

These are the questions that should be raised and Google and its competitors should probably seek some answers before turning interactive eyewear into a tool for second-hand government surveillance. More importantly, the government itself should probably answer a few of these questions. What are the rules that apply when law enforcement (or larger security agencies) seek to obtain this handily compiled data? As it stands right now, most of this process is shrouded in secrecy and attempts to pry some answers out of the government's hands have been rebuffed via claims of "national security" or in the form of redacted-to-abstraction FOIA "responses."

The length of data retention should be addressed as well. As Chertoff points out, Google will probably handle these questions with a lengthy Terms of Service agreement, one that most users will never read until something undesirable happens. A convoluted TOS is a company's best friend, but at least the information is freely available. The same can't be said for law enforcement and government entities.

Ubiquitous street video streaming will capture images of many people who haven't volunteered to have their images collected, collated and analyzed. Even those who might be willing to forgo some degree of privacy to enhance national security should be concerned about a corporate America that will have an unrestricted continuous video record of millions.

Yes, this is a definite downside to Google Glass. But Chertoff muffs this by worrying that even good citizens (those willing to "forgo some privacy to enhance [ha!] national security") won't be thrilled that any citizen could be "taping" them at any time. Once again, we're contrasting the actions of a corporation with the actions of government and law enforcement. But Chertoff fails to see how both can be undesirable. Instead, he frames Google's product as an encroachment but paints government surveillance as, at worst, a very necessary evil.

We need to consider what rights consumers have, and what rights nonparticipant third parties should have.

Sure, consumers should have rights, "nonparticipant third parties" especially. Unless they're American citizens being increasingly surveilled by the "good guys." This huge number of "nonparticipant third parties" doesn't even warrant a mention by Chertoff.

Chertoff has a suggestion for a fix, but it's nothing more than a power grab presented as a "solution."

Maybe the market can take care of this problem. But the likely pervasiveness of this type of technology convinces me that government must play a regulatory role.

A regulatory role does nothing more than give the government (and law enforcement) an opportunity to insert a "back door," either via coding changes or by placing themselves in a middleman position, much in the way they have with telcos and ISPs. There are a lot of unintended consequences and perverse incentives that go hand-in-hand with government regulation and no one should be in a hurry to unpack those.

Finally, Chertoff comes full circle back to his strained starting point: drones.

The new data collection platforms right in front of us are much more likely to affect our lives than is the prospect of drones overhead surveilling American citizens.

If there's a more noticeable effect from Google Glass, it's only because it's a consumer product the public can access (or be subjected to). Drones are an abstraction. The general public is severely limited in its response to state-deployed drones. A response to a consumer product can be felt immediately. If you feel uncomfortable around a Google Glass wearer, you have a few options (ask the wearer to take them off or leave/exit the "filming" area). If you feel uncomfortable being surveilled by eyes in the sky, well, you can set any number of lengthy plans in motion, but it's unlikely your concerns will be addressed, much less result in curtailed surveillance.

While it's nice to see Chertoff recognizes the privacy issues inherent in a consumer product like this, it's rather annoying to see him treat government/law enforcement surveillance as something far less problematic.

26 Comments | Leave a Comment..

Blogger Issues DMCA Notice To Take Down Posts Infringing His 'How To Infringe' Post

from the yo-dawg,-i-herd-you-liked-infringement... dept

Anurag Ghosh is a blogger who would like to have some infringing posts removed from the web. See if you can spot the point when Ghosh's irony detector malfunctions.

Copyright claim #0:

My article, “How to Play Nintendo DS Games on Android”, is infringed by the text excerpted on the site, beginning with the text: “Did you know that your Android device can play NDS games? With the help of an emulator (yes there is a free, open-source DS emulator out there on Google Play), you can play games like Phoenix Wright, Dragon Quest IX and Touch Detective on your phone.”

Original work URL(s):

http://anurag2008.hubpages.com/hub/How-to-Play-Nintendo-DS-Games-on-Android

To paraphrase: "Yeah, it looks like some people have infringed my post about infringing, so if you could do me a solid and take those out, that would be great.

Ghosh's post, titled "How to Play Nintendo Games on your Android," does exactly what it says on the tin, pointing readers toward a free, open-source emulator, providing instructions on installing an NDS BIOS and directing readers towards Google to search for .nds ROMs. Ghosh has thoughtfully included the following "warning" on his post.

Downloading ROMs and BIOS files is illegal. I don’t support piracy and this guide is only for entertainment purpose. Reader discretion is advised.

The discussion about whether emulation = infringement can wait for another day, but I'm very definitely sure Nintendo considers emulation of current gen hardware/software to be infringing. In fact, Nintendo seems to get a bit irate about it when "questioned" about it, according to its extensive FAQ on emulation.

How Does Nintendo Feel About the Emergence of Video Game Emulators?

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.

How Come Nintendo Does Not Take Steps Towards Legitimizing Nintendo Emulators?

Emulators developed to play illegally copied Nintendo software promote piracy. That's like asking why doesn't Nintendo legitimize piracy. It doesn't make any business sense. It's that simple and not open to debate.

Wow. Testy. Ghosh knows it, too. Hence the disclaimer.

Now, Ghosh may have a legitimate claim that his post is being scraped (or reposted) without his consent, but complaining about infringers infringing your post about infringement is more than a little like sending an official notice informing Google that listed kettles are black and infringing on your original pot's blackness. Perhaps the offending scrapers could just put up a little "warning" stating they copied Ghosh's post for "entertainment purposes only." It certainly entertained me.

59 Comments | Leave a Comment..

NYPD Chief Ray Kelly And Mayor Bloomberg Still Think Privacy Is A Good Thing -- Just Not YOUR Privacy

from the reaching-hypocritical-mass dept

When NYPD Chief Ray Kelly said "privacy was off the table" following the Boston bombing, we all knew this was a one-way "exchange." It was always going to be average citizens losing out on their privacy. The NYPD would remain unaffected and continue to operate the way it has for years: behind the thin thick blue line of opacity.

Salon's CJ Ciaramella takes a detailed look at the NYPD's track record on Freedom of Information requests. The results are unsurprising. The public entities that demand the most from their constituents are often the most reluctant to give anything back.

The city’s Public Advocate Bill de Blasio, who is running for mayor, recently released a report asserting that a third of all Freedom of Information records requests to the police department were ignored. The numbers are no surprise to journalists who cover the department, such as Leonard Levitt, a veteran cops reporter who now writes at NYPD Confidential.

“All I can tell you is that the NYPD does whatever it wants to regarding FOI requests,” Levitt said. “Which means they never turn anything over, at least not to me. The only time they did respond was after I got the NY Civil Liberties Union involved.”

Levitt's case isn't unique. Others have run into the same officious stonewalling and found it often takes a lawsuit (or the threat of one) to shake anything loose. All Levitt was looking for was Ray Kelly's daily calendar. The department cited "security reasons" when rejecting his request. By this logic, protecting Ray Kelly is more important than protecting the President of the United States, whose calendar is public.

What isn't rejected outright is simply ignored. Those making the requests are left to decide whether the requested information is worth the time and expense of a lawsuit. The NYCLU has found itself in court time and time again in attempts to pry info loose from the NYPD's grip.

Ciaramella had his own experience with the NYPD's FOI recalcitrance when he sought access to gun discharge reports that might shed some light on the "hail of gunfire" unleashed by the NYPD in the course of bringing down the Empire State Building shooter.

Back in October 2012, this reporter submitted a public records request for the discharge reports filed by NYPD officers over the previous year.

I filed the public records request on Oct. 1. And then waited. On Jan. 11, I received this response:

In regard to your request, for all weapons discharge reports filled [sic] by officers between January 1, 2012 and September 26, 2012, I must deny access to these records on the basis of Public Officers Law section 87 (2)(g) and 87 (2)(e) as such records/information, if disclosed would reveal criminal investigative techniques or procedures, and or are intra-agency materials. Furthermore, these records are also exempt from disclosure as these records on the basis of Public Officers Law section 87 (2)(e) and Public Officers Law 87 (2)(a) in that such records consist of personell records of a Police Officer and are therefore exempt from disclosure under the provisions of Civil Rights Law section 50-a.

Now, stop and consider this for a second. The NYPD said the public interest of how, when and why its officers use deadly force against the citizens it’s sworn to protect is outweighed by the need to protect the privacy of those same officers. Not only that, the public interest was outweighed by the need to protect its investigative techniques.

This is par for the course and not unique to the NYPD. Police forces all over the nation (and the word, for that matter) are notorious for protecting their own. This insular attitude tends to result in the sort of ridiculous arguments detailed above. Protecting officers from public scrutiny always outweighs the public interest because it's the "home team" making the call.

But this reflexive "cops-first" rejection of Ciaramella's request was particularly brash, seeing as it completely contradicted a previous judicial ruling.

A New York judge ruled two years ago — in response to a NYCLU lawsuit, naturally — that discharge reports are subject to disclosure, do not violate officers’ privacy and do not compromise the department’s investigative techniques.

The NYPD at least tried a different tack with Ciaramella's next discharge report request, denying it because it was insufficiently descriptive of the files requested -- even though it was nearly identical to the previous filing.

This is a systemic problem. FOI requests are ignored, rejected or put on the back burner until someone gets a lawyer involved. If any answer arrives, it's usually months or years down the road and, in many cases, redacted to the point of uselessness.

New York's FOI problem goes all the way to the top. Bloomberg's office has spent significant amounts of time and money battling FOI requests as well.

ProPublica's Sergio Hernandez spent nearly two years trying to obtain emails related to the 2010 appointment of Cathie Black as School Chancellor. (Black was a controversial pick who stepped into the position with no relevant experience after her predecessor suddenly resigned his post.)

When the emails were finally released last week, after a two-year legal battle, they revealed a desperate public relations campaign in which city officials tried to rally support from prominent women — including Oprah Winfrey, Gloria Steinem, Caroline Kennedy, and Bette Midler — to champion Black's appointment. (I'll admit: never in a million years did I expect my work to result in stories containing the sentence, "Ms. Winfrey couldn't be reached for comment.") In the end, the emails were amusing, slightly enlightening, but largely innocuous.

Hernandez points out that much has been made about the last-minute attempt to persuade female celebrities to show their support for the new chancellor, but much less ink has been spilled questioning why the city fought this request for so long, racking up a total of 180 staff hours and costs of over $25,000.

In the very limited defense of the NYPD, all FOI requests are funneled through a single office. This inefficient design can partially be blamed for the extensive delays. But it doesn't excuse the general attitude that citizens need to be an open book while those in charge continue to operate in near opacity. And the inequity keeps getting worse, according to Robert Freeman, executive director of the NY State Commission on Open Government.

“I’ve been here since 1974,” Freeman said. “The track record of the police department, particularly in the last decade, indicates in so many instances a failure to give effect to the spirit and letter of the freedom of information law."

“I look back at various mayoral administrations, and my feeling is that there was more of an intent to comply with the law in the era of Mayor [Ed] Koch than there has been since,” Freeman continued. “My sense has been that the downward slope began in Giuliani’s administration.”

There's little hope of any immediate change. Entities like the two discussed are naturally resistant to transparency and sudden movement. The fact that the NYPD and Mayor Bloomberg have formed a mutual admiration society over the years indicates that it will remain "business as usual" until a mayor willing to stand up to the police department (and stand up for his constituents) is elected. The last two office holders have been more than happy to indulge the PD's excesses, all the while further isolating themselves from the demands of transparency laws and the people they're supposed to be serving.

19 Comments | Leave a Comment..

EA Says It's Going To Keep Using Manufacturers' Guns In Its Games -- It's Just Done Asking Permission

from the somehow-I-think-the-NFL-won't-push-over-as-easily... dept

Given the current climate surrounding guns, violent video games and all points where the two intersect, it's not surprising that a large developer like EA would attempt to distance itself from gun manufacturers.

No, EA isn't going to stop making video games with real-life weapons in them. It's going to continue business as usual in that respect. What it is going to do is stop licensing the weapons.

[A]t least one game maker, the second largest by revenue in the United States, is publicly distancing itself from the gun industry, even as it finds ways to keep the branded guns in the games. Electronic Arts says it is severing its licensing ties to gun manufacturers - and simultaneously asserting that it has the right, and the intention, to continue to feature branded guns without a license.

A rep for EA says this decision has nothing to do with the NRA's immediate willingness to lay the blame for the Newtown shooting at the feet of violent video games. But that's a rather tough sell, especially considering the hard line EA is pursuing.

Gun licensing for games has never been particularly lucrative for gun manufacturers, at least not in terms of licensing fees. Most agreements were felt to be mutually beneficial: game developers were able to craft authentic weapons and gun manufacturers received free advertising and the best kind of product placement -- right in the virtual hands of potential customers.

Now, it seems the relationship has become mutually toxic.

"It gives publicity to the particular brand of gun being used in the video game," said Brad J. Bushman, a professor at Ohio State University who has studied video game violence. "On the other hand, it's linking that gun with violent and aggressive behavior."

Bushman's studies on video games and violent media have frequently resulted in dubious conclusions (to put it kindly), but if anyone's going to take him seriously, it's the NRA and gun manufacturers. What once looked like an ideal match now puts gun manufacturers' implicit endorsement of violent video games in a very unfavorable light.

EA may be able to help them out with this. It's not going to give up using real world weapons in its games -- it's just going to stop asking permission.

"We're telling a story and we have a point of view," EA's President of Labels Frank Gibeau, who leads product development of EA's biggest franchises, said in an interview. "A book doesn't pay for saying the word 'Colt,' for example."

Put another way, EA is asserting a constitutional free speech right to use trademarks without permission in its ever-more-realistic games.

EA is going to rely on fair use and it should have a fairly strong case. More promising is the fact that gun makers haven't been very litigious in the past. According to Reuters, a gun manufacturer has yet to sue a game developer over lack of proper licensing. However, the recently introduced friction between these two industries makes EA's new "license-free" stance a bit more combative that it would be otherwise.

This approach almost appears to be EA throwing down the gauntlet and daring embattled gun manufacturers to wander back out into the public eye. There's no way gunmakers will look any better pursuing licensing fees or suing for breach of contract, and EA knows this. Once again, I'm not buying EA's "no harm, no foul" statement in reference to the NRA's recent attempt to toss video games under the bus.

EA may have the upper hand at the moment, but Reuters mentions a pending lawsuit that could spell trouble in the future.

Aircraft maker Bell Helicopter, a unit of Textron Inc, has argued that Electronic Arts' depiction of its helicopters in "Battlefield" was beyond fair use and amounted to a trademark infringement. EA preemptively went to court, suing Bell Helicopter to settle the issue.

Should Bell prevail, EA may find gun makers willing to test the legal waters and attempt to pry EA's unlicensed guns from its cold, injunctioned fingers.

45 Comments | Leave a Comment..

This Is My Pencil. This Is My Pencil Pretending To Be A Gun. One Is For Writing. One Is For Mandatory Suspensions.

from the school-admins-looking-to-shutter-known-arms-dealer-OfficeMax dept

A majority of human beings would look at two 7-year-old boys pretending their pencils are guns and say something about "boys being boys" or "someone's going to poke their eye out" and leave it at that. Those who craft and enforce zero tolerance policies see something more sinister. They see "threatening behavior" that must be dealt with swiftly and with as little thought as possible.

The end result? Two 7-year-old boys with otherwise clean records were handed two-day suspensions for pointing their pencils at each other and making shooting noises. This ridiculous punishment was (of course) defended at length by school administration.

Suffolk Public Schools spokeswoman Bethanne Bradshaw said a pencil is considered a weapon when it’s pointed at someone in a threatening way and gun noises are made.

Really? Administration thinks a pencil becomes a weapon when "gun noises are made." (They don't actually think this, of course. They've just crafted a policy that states this, thus preventing administration members from "erroneously" coming to independent conclusions.) I can see a pencil being considered a weapon if it's being "pointed" (in a stabbing motion) at a sensitive area like an eyeball or a neck. Then a pencil is a weapon.

When two boys point pencils at each other and make shooting noises, a pencil is still a pencil and their imagination is doing all the heavy lifting. All it would take to "disarm" these kids is asking them to stop. Which is what a teacher did.

On the suspension note, the teacher noted that the boy stopped when she told him to do so.

Problem solved. No one is harmed and the perpetrators were left with nothing but non-threatening pencils. Why this was written on a suspension note, rather than on a simple concerned note to the parents or better yet, on NOTHING AT ALL, is beyond me. But Bradshaw has an answer for every question and a terrible excuse for every idiotic zero tolerance policy.

“Some children would consider it threatening, who are scared about shootings in schools or shootings in the community,” Bradshaw said. “Kids don’t think about ‘Cowboys and Indians’ anymore, they think about drive-by shootings and murders and everything they see on television news every day.”

Do they? My kids don't think about that kind of stuff. Then again, they rarely watch the news. Would my boys be "threatened" by a pencil gun? I doubt it. They're probably packing a pencil or two themselves during the school day. I'm going to go out on a limb and say that these hypothetical, hypersensitive children who bruise whenever the wind changes direction do not actually exist, at least not outside of statements like Bradshaw's. They're straw children.

Bradshaw also defended the moronic policy using this gem:

Bradshaw said the policy has been in place for at least two decades.

So... you're saying the administration has been stupidly overreacting since back when MTV still played music videos and no one has once thought that maybe a few policies might need to be updated or relaxed or given a good once over with a dose of context or common sense? Rules can be changed, even big, important ones. (See also: Amendments 1-27 to the Constitution, but pay close attention to nos. 18 and 21.) Nothing's so inflexible that anyone should be reduced to the rhetorical level Bradshaw is, fending off irritated parents with "Yeah, it's a shitty policy but what are you going to do. It has tenure."

Bradshaw doubles down on the importance and inflexibility of "rules" as well.

“It’s an effort to try to get kids not to bring any form of violence, even if it’s violent play, into the classroom,” Bradshaw said. “There has to be a consequence because it’s a rule."

Yeah, I get it. A rule is a rule. And enforcers like Bradshaw are throwing stuff on kids' permanent records that wouldn't pass the laugh test in the real world. Will this file note that the two boys "pointed pencils at each other and made shooting noises?" Or will it state something to the effect that the boys broke the school's policy on violence and threatening behavior? My guess is the latter, which will allow anyone perusing the record to imagine the worst.

We can only hope that having these stories reported widely might push a few administrators to consider loosening or removing these so-called "zero tolerance" policies. Unfortunately, to date most administrators (and their policies) seem impervious to public ridicule, and every school-related tragedy just results in a newer, more rigid set of unbreakable rules. Until the day comes when kids can be kids without being suspended for pretending pencils are guns, parents might want to sit their kids down and have a long talk about safe pencil handling and the requirements and responsibilities that come with the "conceal-and-carry" permit they'll be needing before being allowed to start the next school year.

106 Comments | Leave a Comment..

US Secret Surveillance Court Approves All Domestic Spying Requests For A Second Year In A Row

from the these-may-be-secrets-but-they're-no-surprises dept

For the second year running, all snooping-on-citizens requests have been granted by our nation's most secret court, the United States Foreign Intelligence Surveillance Court.

A secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States “for foreign intelligence purposes,” the Justice Department reported this week.

The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either.

This surveillance was supposed to be limited to American citizens in contact with entities outside of the United States, but requesters found that adding the words "Al Qaeda" into the mix allowed eavesdropping on email and phone calls that never leave the country. This being a secret court, one running without oversight and immune from lawsuits, it seems operatives can request pretty much anything and have it approved. It's the ultimate rubber stamp process and one that can be asked for after the fact. Even a still-theoretical rejection can't slow down the spying.

The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request to the secret court, and the surveillance can continue during the appeals process if, in a rare case, the spy court rejects the surveillance application.

On the bright less oppressively gloomy side, there has been a slight reduction in National Security Letters, those wonderful sheets of paper law enforcement and security agencies use to compel pretty much any business (ISPs, banks, credit agencies, etc.) to hand over as much data on the named citizen as possible.

The same Justice Department report this week said the government issued 15,229 National Security Letters last year, down from 16,511 in 2011.

We'll have to see how much this number tails off in 2013 considering a federal judge ruled these letters unconstitutional in March. There's no reason to stop writing these letters quite yet, though. The ruling has been stayed for 90 days pending the administration's appeal. Given the track record of this administration (and the last), one would expect these letters to live a full, healthy (and unconstitutional) life, perhaps revived by an Executive Order or some sort of "national safety/security" exemption.

On top of the usual concerns about increased surveillance of American citizens is the fact that this 2-page "report" gives us no useful information about whether all of this spying is actually having any impact in the War on Terror.

As an instrument of public oversight, the annual reports on FISA are only minimally informative. They register gross levels of activity, but they provide no measures of quality, performance or significance. Neither counterintelligence successes nor failures can be discerned from the reports. Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined.

The less data there is available, the fewer questions there are to answer. Right now, there's plenty of questions, but until the courts force the issue (a route that doesn't look terribly promising, despite the recent decision on National Security Letters), these questions can be safely ignored.

Read More | 13 Comments | Leave a Comment..

NYPD Sergeant Says 'Guilty Until Proven Innocent' Is Just The Price We Pay For A 'Free Society'

from the nothing's-more-'secure'-than-a-jail-cell dept

We've been dealing with the New York police department lately, thanks to the mayor and the police chief using the recent Boston bombing as an excuse to increase surveillance efforts and enact other policies to further encroach on New Yorkers' civil liberties. Whenever something terrorist-related occurs, it seems as though the NYPD's reps can't keep their opinions to themselves, even as the department itself drifts further and further away from being a sterling example of How Things Should Be Done.

In a recent Christian Science Monitor article dealing with "teenagers, terrorism and social media" (focusing on the recent Cameron D'Ambrosio arrest for making "terrorist threats" via some improvised rap lyrics posted to Facebook), Sgt. Ed Mullins of the NYPD shows up to make some very disturbing statements about your rights and responsibilities as a (mere) citizen. It starts with the worst kind of "policy" and goes downhill fast.

Using a zero tolerance approach to track domestic terrorists online is the only reasonable way to analyze online threats these days, especially after the Boston Marathon bombing and news that the suspects had subsequently planned to target Times Square in Manhattan, Mullins says. The way law enforcement agencies approach online activity that appears sinister is this: “If you’re not a terrorist, if you’re not a threat, prove it,” he says.

"Zero tolerance" is never "reasonable." It never has been and it never will be. In fact, it's the polar opposite. Zero tolerance policies simply absolve the enforcers of any responsibility for the outcome and grant them the privilege of ignoring mitigating factors. It allows them to bypass applying any sort of critical thinking skills (the "reason" part of "reasonable") and view every infractions as nothing more than a binary IF THEN equation.

Mullins goes even further than this, though, asserting that the burden of proof lies with the person charged, not the person bringing the charges. This flips our judicial system on its head (along with the judicial systems in many other countries) and, if applied the way Mullins views it, puts accused citizens in the impossible position of trying to prove a negative. This is just completely wrong, and it's a dangerously stupid thing for someone in his position to believe, much less state out loud. (Mullins also heads the Sergeants Benevolent Association, the second-largest police union in New York City.)

Believe it or not, Mullins is not done talking. What he says next doubles up on the "dangerous" and "stupid."

“This is the price you pay to live in free society right now. It’s just the way it is,” Mullins adds.

No. It isn't.

This is the price Mullins is charging to live in the NYPD's severely stunted version of a "free" society. The NYPD has been harassing young minorities at the rate of 500,000 impromptu stop-and-frisks per year for the better part of the last decade. For the past 10 years, the NYPD has been regularly trampling citizens' civil liberties simply because they attend a mosque. The NYPD and Mayor Bloomberg have worked ceaselessly to make New York the most-surveilled city in the U.S.

That's the price New Yorkers are paying. It has nothing to do with living in a free society. The NYPD takes liberties away and high-ranking cops like Mullins have the gall to suggest there's some sort of equitable exchange occurring. Mullins doesn't seem to understand (or just doesn't care) that if you take away freedom you no longer have a free society.

It has been said that eternal vigilance is the price of liberty, but "eternal vigilance" isn't shorthand for oppressive surveillance and zero tolerance policies that make freedom less "free." "Eternal vigilance" isn't treating the Constitution like a relic too worn and tattered to serve any purpose in these "dangerous" times. And being an officer of the law isn't an excuse to shut your intellect off and allow your brain stem and broad policies to "work" in concert in order to treat loudmouth teens on Facebook like a guy with a trailer home full of explosives.

This "vigilance" is supposed to be put to use by citizens in order to prevent authorities like Mullins from encroaching on our liberties. It's not solely limited to a united military effort against foreign powers. There are plenty of people apparently willing to attack our freedom from the comfort of the home front.

89 Comments | Leave a Comment..

TIME/CNN Poll Shows Increasing Number Of Americans Won't Give Up Civil Liberties To Fight Terrorism

from the the-government-can't-give-you-safety,-but-it-can-take-your-rights dept

When discussing NYPD Police Chief Ray Kelly's assertion that "privacy is off the table" as a result of the Boston bombing, I mentioned I hadn't heard any public outcry demanding the government and law enforcement step in and do something (i.e., curtail civil liberties) in response to the tragedy. The responses we were seeing seemed to be nothing more than legislators and law enforcement officials pushing their own agendas.

This isn't just me not hearing what I don't want to hear. There's actual data available that explains the lack of concerned noises from Americans. A CNN/TIME poll shows that nearly two-thirds of Americans aren't interested in sacrificing rights to combat terrorism.

When given a choice, 61 percent of Americans say they are more concerned about the government enacting new anti-terrorism policies that restrict civil liberties, compared to 31 percent who say they are more concerned about the government failing to enact strong new anti-terrorism policies.

This is a vast improvement over 1996, when a post-Atlanta Olympics bombing poll showed only 23% opposed giving up freedom in exchange for fighting terrorism.

Breaking it down further, the poll also shows a bit of split along party lines. Self-identified Democrats are most likely to put their faith in government/law enforcement to make the U.S. "safer" by curtailing freedoms (51%). Republicans are less likely to favor this exchange (41%). For independents, less than a third (32%) are willing to give up some freedom to combat terrorism.

There is a bit of bad news contained within this generally positive indicator that Americans are less willing to give up something of theirs in exchange for the vagaries of "safety." The percentage of respondents who support additional surveillance in public areas has increased to 81% from 63% the week after the 9/11 attacks. On the other hand, there's a growing reluctance among Americans to allow the government to expand its surveillance efforts to cover more private venues, like email or cell phones. Only 38% approve of these efforts, down from 54% after 9/11.

Now, when legislators and law enforcement reps make strides towards reducing civil liberties, they do have some support. Those over the age of 50 (across all political parties) are most likely to support a loss of freedom (50%, as compared to only 34% for those under 50). Tellingly, this is pretty much the same demographic that feels video games are a bigger "safety threat" than guns (72% of respondents over the age of 45).

Unfortunately for the under-50 crowd, the over-50 demographic is historially the most active at the polls. If this perception of widespread support for invasive policies and legislation is going to change, the under-50 demographic is going to need to do a whole lot more voting. If not, these politicians are going to be able to truthfully say they have support for these policies -- at least, the only support that matters: die-hard voters.

Read More | 57 Comments | Leave a Comment..

MA Teen Arrested And Held Without Bail For Posting Supposed 'Terrorist Threat' On Facebook

from the being-a-lousy-rapper-still-not-a-crime dept

I'm going to take a guess and say the national Terrorism Mood Ring is still set to 'OVERREACT' if this story is any indication. Cameron D'Ambrosio, a Methuen, MA high school student, was arrested May 1st and charged with "communicating terroristic threats" based on a Facebook posting. He is being held without bail pending a hearing on May 9th and could face up to 20 years in jail for making a "bomb threat."

The threat (at least the one that appeared on Facebook), as reported by the Boston Herald, reads as follows. (For best results, fill in the blanks Mad Libs-style and spell "bombing" correctly.)

“I’m not in reality, So when u see me (expletive) go insane and make the news, the paper, and the (expletive) federal house of horror known as the white house, Don’t (expletive) cry or be worried because all YOU people (expletive) caused this (expletive).

(Expletive) a boston bominb wait till u see the (expletive) I do, I’ma be famous rapping, and beat every murder charge that comes across me!"

This was posted to D'Ambrosio's Facebook page, which looks altogether similar to thousands of teens' Facebook pages. (Source: I am the parent of a teenager.) Also, like thousands of Facebook-using teens, D'Ambrosio fancies himself a rapper and his "threat" appears to be nothing more than some "lyrics" in search of a quality jeep beat. (I'm dating myself with that last term.)

So, how does some par-for-the-course teenage Facebook post become a "threat?" Well, it takes a very specific chain of events. The official Methuen PD blog breaks it all down (and throws a lot of exclamation points around in its headlines for some strange reason).

Today, Tuesday, May 1, 2013, at approximately 12:20, Methuen High School students reported to administration that they had received a Facebook phone message sent by a Methuen High School student with disturbing verbiage. The student made terrorist threats...

The administration acted quickly, contacted school service officer Jim Mellor, who then contacted the police department. The student was not in school but has since been located and placed under arrest. Administration working hand in hand with the Methuen Police Department, diffused the situation maintaining the best possible professional attitude.

In other words, some teens at the high school saw a status update posted by D'Ambrosio and told someone... who told someone. The rest is now hysteria history.

The PD arrested the student, charged him with "communicating terrorist threats" and locked him up pending a "dangerousness" hearing. But was it really a threat? Or was it just D'Ambrosio doing what teens do best -- attracting negative attention? That ellipsis in the quotation from the PD's blog takes the place of a sentence which seems to indicate this entire chain of events should never have happened.

These threats were in general and not directed towards another person or the school.

Non-specific threats are a bit problematic. There generally needs to be more going on than a Facebook post that indiscriminately "threatens" everyone who's able to read it. If it was targeted at specific people, perhaps it would be a more credible threat. (D'Ambrosio can target his threats. According to the Boston Herald, he was charged last year with threatening to stab his sister to death, but the case has been dismissed. Read into that what you will...)

Then there's the wording itself that, when taken in context with D'Ambrosio's rap aspirations, tends to indicate this is simply poorly-worded braggadocio aimed at touting his "skills." The second "stanza" (?) even says "I’ma be famous rapping, and beat every murder charge that comes across me!" This makes the preceding line read more like "I'm going to be bigger than the Boston Bombing," not altogether unlike John Lennon's proclamation that the Beatles were bigger than Jesus. Again, rap is full of this sort of self-aggrandizement and D'Ambrosio certainly listened to enough of the music to pick up the basics.

The opening "stanza" starts with "I'm not in reality," another commonality of rap music. Eminem used this as a defense against criticism, stating that Eminem was an alter ego and was far more outrageous than he, Marshall Mathers, was. "It's all an act," in other words. Stating "I'm not in reality" up front should temper any expectations of literality in what follows it. Of course, this rationalizing grants D'Ambrosio additional depth that he may not actually possess. Even so, anyone with a passing knowledge of the art form would know enough to steal a little "depth."

Despite all this, the Methuen police chief seems rather proud of his catch. A rather breathless writeup at The Valley Patriot captures some rather ridiculous quotes from the man of the hour.

“He posted a threat in the form of rap where he mentioned the White House, the Boston Marathon bombing, and said ‘everybody you will see what I am going to do, kill people.”

If it was in the "form of a rap," there's a good chance this is protected speech, rather than a criminal act. Police chief Joe Solomon isn't helping his case by framing D'Ambrosio's words this way.

“I do want to make clear he did not make a specific threat against the school or any particular individuals but he did threaten to kill a bunch of people and specifically mentioned the Boston Marathon and the White House. The threat was disturbing enough for us to act and I think our officers did the right thing."

Strange. When I reread his words, I don't find him threatening to kill anyone. He says he'll "go insane" and make "the news, the paper, the (expletive) federal house of horror the White House." "Go insane" is not the same thing as threatening violence and its takes a lot of willingness to see something that's not actually there to believe it does. Sure, D'Ambrosio mentions both the White House and the Boston bombing, but simply throwing those words into a sentence (and filling the rest out with expletives) doesn't turn this into a credible threat, or at least not one that should result in a 20-year sentence.

By all means, the police should be willing to investigate perceived threats, but putting this into context (your average profane, overdramatic, attention-seeking, rap fan teenager) should have resulted in little more than a discussion about the possibility that word dumps like this could have negative consequences or legal repercussions.

The police also went to his home and seized D'Ambrosio's Xbox and laptop, but were apparently unable to find anything to indicate the teenager was anything more than a mouthy misanthrope. So, they've decided to "dig deeper into his Facebook account."

Tom Duggan, president and publisher of The Valley Patriot, dug a little deeper himself, and reported back (breathlessly) about the "horrors" he found. (All quotes are verbatim, I shit you not.)

D’Ambrosio also had disturbing photos and posts on his Facebook page including “Fuck politics, Fuck Obama and Fuck the government!!”

He also had a “disturbing satanic photo posted as well as a photo of himself on a “Wanted Poster” that reads “Wanted Dead or Alive” a quick perusal of his Facebook page shows D’Ambrosio’s unusual interest in gangs, violence and a criminal lifestyle.

Wow. It's like reading a report from Morality in Media. A teen who wants to stick it to the Man with f-bombs and exclamation points? Do tell! An "unusual" interest in gangs, violence and criminals? Does this make him more or less disturbing than a large majority of the teen population? Looking at his page, I notice D'Ambrosio also has an "unusual" interest in scantily-clad females, video games, Monsters University, puppies, "Fuck Drugs Enjoy Life," the National Guard, tattoos and Mario. And as for the whole "disturbing satanic photo" -- a.) Duggan is about 30 years too late to join the satanic panic, b.) the "photo" isn't actually a photo and c.) it's at least as comical as it is disturbing.

So, unless the police are holding some information back, it looks as if they've managed to turn a harmless bout of stupidity into a terrorist threat. Chief Solomon even credits the "see something, say something" travesty for helping the MPD corral this dangerous rapper. But while we're used to displays of immaturity from the young, there's no excusing the dangerous stupidity of zero tolerance policies, "see something, say something" and the police department's willingness to conjure up a threat out of little more than the use of "Boston" in a badly formed sentence.

63 Comments | Leave a Comment..

Bloomberg Defends Stop-And-Frisk, Decries Critics 'Pointing Fingers From City Hall' By Pointing Fingers From NYPD Headquarters

from the pot-decries-kettles'-blackness;-NYPD-books-same,-citing-'public-blacknes dept

Everything questionable that Bloomberg has overseen in his position as mayor of New York -- all the civil rights violations, all the increased surveillance, all the the dubious actions and policies that sent the message that Bloomberg was very interested in crafting a hybrid nanny/police state -- is coming home to roost.

With the police force under attack from multiple lawsuits and his soda ban overturned by a NY judge for being "arbitrary and capricious" (name a ban that isn't), Bloomberg is on the defensive -- and he sounds it. Rather than addressing concerns with thoughtful answers, the mayor has decided to respond by lashing out at his critics and backing up his dubious claims with even worse rationale.

Bloomberg pointed fingers and threw out the obligatory 9/11 card during his speech/diatribe delivered from the friendly confines of the NYPD headquarters. Bloomberg's comments hold everyone accountable for the current unpleasantness (and future theoretic unpleasantness) -- everyone but Bloomberg and the NYPD. The arguments Bloomberg uses are so abysmal it's almost possible to believe this is a very broadly played satire, rather than an actual event that actually happened. Just take a look at this statement.

“God forbid terrorists succeed in striking our city because of a politically driven law that undermines the N.Y.P.D.’s intelligence gathering efforts,” he said.

"Terrorists." "God forbid." Someone needs to find a new rhetorical device.

Believe it or not, this is Bloomberg's argument against appointing an independent Inspector General to review police policies. The argument has two parts, both equally awful. The first uses the tired "but terrorism" threat/excuse/cliche. The second part actually makes the claim that an Inspector General would result in other agencies being less willing to share info with the NYPD. That may be true, but why is it true and why is this an "acceptable" truth? To put it in words frequently directed towards US citizens: what do they have to hide?

Bloomberg's words play to the home crowd (NYPD) , but holy shit is that an ugly bit of truth to (inadvertently) drop in the middle of a loaded sentence. If NYPD intelligence gathering is "undermined" by the presence of independent oversight, the problem is with the NYPD and every agency that decideds to cut them out of the loop, willfully endangering the public in favor of CYA opacity.

Bloomberg said more, but this statement is just terrible. It indicates there's an acceptable level of corruption within the police force and that the mayor has no interest in addressing that issue. Everything else becomes so much banality aimed at satiating his audience, a collection of NYPD police chiefs. There's terrorism (again):

“Look at what’s happened in Boston,” Mr. Bloomberg said. “Remember what happened here on 9/11. Remember all of those who’ve been killed by gun violence and the families they left behind.”

OK. And what? Honor their memories by giving the police carte blanche to shove any citizen up against the nearest wall and pat them down? Cover every inch of the city with cameras, microphones and facial recognition software in hopes of "preventing" a statistically anomalous event (and proclaiming victory when the more statistically probable nothing continues to happen)?

To top this all off, Bloomberg steps past the empty rhetoric and defense of shady police "business as usual" to hypocritically deride others for "playing politics with people's lives."

“The attacks most often come from those who play no constructive role in keeping our city safe, but rather, view their jobs as pointing fingers from the steps of City Hall,” he said.

Said the man who is City Hall, pointing fingers from NYPD headquarters.

Bloomberg's statements are ugly, but at least they were delivered out in the open, rather than in a closed-door meeting with the "home team." All of Bloomberg's finger pointing and cheap rationale is a matter of public record. This is a small, inadvertent, victory. Bloomberg wants his constituents' lives to be open books, but wants the NYPD to remain an inscrutable, unassailable means of enforcement and "security." That's a load of crap and Bloomberg seems to be having trouble shoveling it correctly. If he keeps feeling this sort of heat, we may see him slipping into full blown opacity or devolving even further into a ranting apologist for systemic failure.

38 Comments | Leave a Comment..

CBS Says It Could Move To Cable In A 'Few Days' If Aereo Wins; Receives Several Offers To Help Pack Its Bags

from the a-forwarding-address-really-won't-be-necessary dept

CBS has officially joined the chorus of angsty executive voices expressing their displeasure with Aereo by threatening to take their ball and go cable. Only this time, Moonves really means it.

CBS CEO Les Moonves has said before that he’s talked with New York cable operators about taking his network cable-only if Aereo is allowed to keep streaming what it broadcasts on the internet, but now he’s saying that he could make the switch in as little as a few days "if we are forced to."

"Forced to?" What a small-minded, self-serving, overly dramatic "threat." I'll join Mike and a majority of our readers in inviting Moonves to go do exactly that ASAP. Stop arsing about in court and just take that shiny ball of yours and cram it into the overcrowded cable market and see exactly who notices your departure or arrival.

By taking free CBS broadcasts off the airwaves, Moonves says, "about 10 percent of America will not get our signal and I don’t think they will like that."

And when people out there in flyover country (or wherever Moonves imagines this 10% lives) find themselves short a free TV signal, do you really think they're going to be pissed off at an antenna manufacturer whose only sin was its cord was "too long?"

In case Moonves might feel such a question purely rhetorical, allow me to point out the obvious: they will blame the station that went "off the air" for reasons even the courts are having trouble understanding. CBS will be the villain, along with FOX and whoever else decides the only way to compete in a market is to exit it.

And, yes, CBS is still claiming the courts will find "stealing" its precious signal "illegal." So far, this doesn't seem to be happening. If CBS really wants to play chicken with Aereo, I can only suggest it's not doing it nearly fast enough. Go ahead and give up the free airwave access and the enviable spot as a big fish in a rather limited pond and become just another number out of hundreds, distinguishable only by the number of executives suddenly grumpy they're running a cable channel rather than a network.

Even if Aereo cuts these channels out of retransmission fees from cable operators, who cares? This was the networks' short-sighted decision, one based on wringing money out of something they give away for free to anyone without cable. If Aereo is the cord-cutter's best friend, what does jumping to cable accomplish? If that's the scenario, CBS is better off losing the retransmission fees and staying on open airwaves where it takes nothing more than an antenna to access its programming, rather than exiling itself to a service people seem more and more willing to abandon.

If CBS thinks threatening to move to cable is going to turn the public against upstarts like Hopper or Aereo, it really has no idea what the public actually wants. It will simply turn itself into a lumbering villain at best and gone-but-barely-remembered also-ran at worst.

87 Comments | Leave a Comment..

TV Syndication Company Attempts To Take Down Public Domain Content By Abusing Trademark Law

from the if-you-can't-play-by-the-rules,-simply-use-a-different-rule-set! dept

Some players in the copyright industry just can't let things go, even when the content in question doesn't belong to them anymore. Once something's in the public domain, it's there to stay unless an act of Congress yanks it back out. Some of this discussion seems almost theoretical considering copyright has been extened to the point where something "lapsing" into the public domain now happens more infrequently than Halley's Comet sightings.

But some things do actually make it into the public domain, and the Internet Archive has done an amazing job over the years of preserving these works. Unfortunately, its archival efforts have drawn some attention from a company wishing to take back content that no longer belongs to it. The fact that the content it's trying to take down is in the public domain hasn't deterred it. It's only made it alter its attack strategy. (MST3K fans will definitely recognize the company name.)

Sandy Frank Film Syndication has hit the Archive with ridiculous legal threats based not on copyrights, but rather trademark rights. The company initially demanded that the Archive takedown not just links to the television show [popular 1950s show "You Asked for It"] (which it admits is in the public domain) but also links to remix videos that use footage from the show, a series of sermons that happen to use the term “you asked for it” in the title, and a reference to a record that also used the term.

The Internet Archive pushed back immediately, but this only resulted in SFFS removing its takedown requests for "colloquial use" (the sermons). Despite the fact that SFFS openly admits the content it wants taken down is in the public domain, it has pressed on with the rest of its demands and even added an additional (and absurd) claim that using the term while searching the internet was a trademark violation.

This isn't the first time we've seen entities attempt to skirt the limitations of copyright law by dragging trademark law into the mix. (The Faulkner Estate dodging fair use arguments for a nine word misquote of Faulkner/photographer Brian Masck making up for a long-delayed copyright registration -- both claiming Lanham Act violations.)

At this point, the EFF stepped in and issued a long, thorough letter to SFFS that destroys all of its arguments point-by-point (posted below). It points out that SFFS has no trademark claim over the content stored and streamed by the Internet Archive. For one, it's non-commercial use, making it statutorily exempt from the Lanham Act. For another, every use of the show's title on the Internet Archive is either protected use or not infringing on SFFS' trademark.

In response to claims of "likelihood of confusion," the EFF writes:

Trademark law does not forbid the use of "You Asked For It" to accurately identify the shows available via the Archive. Indeed, it is unclear how else the Archive might identify the shows...

No one would imagine your client, the holder of the trademark, in connection with licensing television shows, is the source of the programs in question, not least because no such licensing is required for these programs.

As for the remix videos using "You Asked for It" content, SFFS has no viable claim there either.

The videos in question do not raise a trademark issue -- they don't even use the term "You Asked for It." Even if they did use the term, the videos are fully sheltered by the First Amendment.

The EFF also attacks the claim that using its trademarked show title as search terms might be actionable, pointing out that the cases SFFS cites refer to keyword advertising, not the actual searches themselves. Citing cases that contradict or weaken its claims seems to be a problem for SFFS, most likely because the sort of IP end-around it's running has rarely found favor in judicial decisions. The EFF's letter basically states that SFFS is shooting itself in the foot with its own quoted legal precedents.

More broadly, your citation to Dastar v. 20th Century 539 U.S. 23 (2003) is surprising at best, because that is one of many cases that doom your legal theories. In that case, the Supreme Court addressed precisely the kind of bootstrapping your client is attempting here. The plaintiff claimed that reproducing (modified) public domain videos without attribution to the original creator infringed trademark law. The Court rejected the claim, noting that any other holding would place trademark law in direct conflict with copyright:

"The rights of a patentee or copyright holder are part of a “carefully crafted bargain,” . . . under which, once the patent or copyright monopoly has expired, the public may use the invention or work at will and without attribution."

The EFF is hoping this rebuttal will encourage SFFS to drop its claims against the Internet Archive, but it warns that this probably won't be the last time a trademark owner will attempt to abuse its limited protections to reclaim content from the public domain. SFFS may decide to press on despite any real legal leg to stand on. Its website offers a variety of licensable clips from its shows, including the disputed "You Asked for It," and it's likely very interested in being the sole distributor of the 1950s run of the show, especially considering its main "competitor" is offering these episodes for free. But doing so will be an uphill battle against a knowledgeable opponent and a legal system predisposed towards this sort of IP law abuse.

Read More | 21 Comments | Leave a Comment..