Posted on Techdirt - 9 December 2013 @ 2:03pm
There have been a few stories over the past year or so of Kickstarter projects simply taking products found elsewhere (often China) slapping a new label on them and claiming they're new. This pretty clearly violates Kickstarter rules, which includes the following:
Projects cannot resell items or offer rewards not produced by the project or its creator.
There have been a few cases in the past where this has popped up. Last year there was the Ambiolight
and earlier this year there was the machined gamers dice
-- both of which were called out by people in the comments as being mere reselling of products made by others already on the market.
It appears that others keep trying to do these kinds of reseller setups, tricking users along the way. A few weeks ago, I saw the projects for "Full of Fuel"
external batteries. I have a bit of an obsession
with external battery packs, and have been personally using a fantastic Anker Astro Pro 20,000mAh
battery -- which looked nearly identical to one of the Fuel of Fire batteries. The other two Fuel of Fire batteries also looked like other external batteries already on the market. Thankfully, plenty of people started pointing out similar things
in the comments. The guy behind the project initially defended it, claiming that they had "changed the design" but many didn't believe it. The guy behind the project apparently promised to send a sample to one of the most vocal critics to prove that it was different... but then stopped responding altogether, and the project was cancelled (apparently by Kickstarter
It appears that something similar is happening with the so-called Rock Smartwatch
, which launched with a bit of hype, including some odd claims such as that the watch had 1080p resolution (huh? on a watch
?!?) and 4GB of RAM. Some folks quickly pointed out that the watch appeared to be nothing more than a rebranded Z3 watch from China
. There was a fair bit of evidence
to support this. The creator of the project, "Vak Sambath" first started claiming that he was devastated
and suggesting that their manufacturing partner had somehow leaked or made different versions of their work.
Then he started posting a bizarre "defense"
in which he claims to have been "in conversations with our engineers, manufacturers and designers" to then explain why it's different than the Z3.
This comment got posted a whole bunch of times... and it also seems to claim that all their work has really been focused on software, suggesting that perhaps they were just using standard Chinese watches and rewriting the software. Of course, if that were true then they should have said so upfront, and his previous claim that seeing the same design elsewhere devastated him and was because of someone in China leaking the designs makes no sense at all. Keep that in mind, because as this story moves forward, there are more and more things that "make no sense at all."
Because, he then posted a different, but equally unintelligible comment
claiming those first comments in which he defended the watch weren't really from him, but were because his computer got hacked:
Hey Guys... first and foremost... I'd like to apologize for whatever happened to do. It wasn't me. I wasn't in front of my computer all day. Someone got into my account. When it rains it pours guys. This is the real Vak. My account got hacked from some freaking hot mess reason. This hasn't been easy.
Later he came back and again defended
the watch, while admitting that it does not have 1080p, but not explaining why he'd made that claim originally (or apologizing for the blatantly false advertising, which seems like an FTC violation).
Then he tried again by claiming that most people are just too dumb to understand
what they're doing, and saying that people "who don't like change" are too critical:
We appreciate kickstarter for allowing small companies to enter new markets with new ideas, that may not be popular with a small sector that does not like change.
The rock is taking a more innovative approach that some may find hard to understand since it is a new direction.
He also keeps talking up patents that the company has, which supposedly distinguishes the watch from its competitors. Except when people in the comments asked him which patents
Vak responded by claiming the patents were proprietary so he couldn't share them
and telling critics to contact the company's lawyers. Uh, that's not how patents work. If you have a patent it's public. That's one of the key points of a patent in the first place, to disclose to the public. It's possible
that they have patent applications that haven't been published yet, but having an application is very different than claiming you have a patented technology.
Then there's his attempt to explain why he won't give a straight answer, claiming that if you email his legal team they'll give answers but that "the comment section is not an appropriate platform to voice speculation, since there are many experts as pyntail,engineers and large companies involved."
I've read this comment over and over again and it's totally nonsensical. First of all, the comments are exactly the right platform for backers
to ask these kinds of questions to make sure they're not getting scammed, and no one's asking him to "speculate," but rather to answer some basic questions
concerning the product he claims to be selling. How could anyone think it's appropriate when being quizzed about questions on your own product that only you should be able to answer, to instead claim that it's inappropriate to engage in speculation. And, um, if there are many "experts" then that seems like all the more reason to have a full and open discussion.
On Saturday morning, things took an even weirder twist, as Vak suddenly decided to just start posting over
again in the comments pretending that they were getting lots of "great encouragement" from their backers, and those backers were asking questions. So he started answering them, but each time he posted, plenty of critics just kept commenting about Vak's own ridiculous claims and calling out that the whole thing was a scam. And rather than respond, Vak just kept posting the same exact "email answers" over
again, perhaps in the faulty belief that this would somehow drown out all those calling him out.
The other odd thing was that some folks noticed that even as a ton of people bailed from the project earlier in the week, there was suddenly an influx of new buyers
, according to Kicktraq's data:
But, since Kickstarter shows who backs the projects, some people pointed out that nearly all of the new backers had just joined in December
and this was the only project they were backing. For example, here's "Dianne Barrymore"
who joined in December, only backed the Rock, and also just happened to post two overly excited comments about it, even after everyone had pointed out the whole thing was likely a scam. Others pointed out that despite all the new backers, the total money raised seemed to be staying about steady, suggesting that many of the new backers may have only contributed the bare minimum of a dollar...
Finally, around noon on Saturday, Kickstarter stepped in and cancelled the deal, at about the same time Vak was insisting the fact that Kickstarter had approved the campaign was proof that it was legit. In an email to backers
, Kickstarter's Trust & Safety team admitted that the project clearly violated numbers rules:
A review of the project uncovered evidence of one or more violations of Kickstarter's rules, which include:
Accordingly, all funding has been stopped and backers will not be charged for their pledges. No further action is required on your part.
- A related party posing as an independent, supportive party in project comments or elsewhere
- Misrepresenting support by pledging to your own project
- Misrepresenting or failing to disclose relevant facts about the project or its creator
- Providing inaccurate or incomplete user information to Kickstarter or one of our partners
Vak then went quiet on Kickstarter, but it didn't stop him from continue fighting the bizarre fight
on Twitter. First, he pretended that people were just upset because they were "using parts from China."
But, of course, that wasn't what anyone was claiming. Then he claimed that what he "learned" from the project is that "what we have isn't for Kickstarter."
Yeah, that's not quite what happened there...
Either way, I expect we'll see more of this sort of thing happening over time, but it's kind of neat to see the community itself work all of the details out and help out these questionable projects (even as it's funny to see the project creators try to tap dance around their claims).
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Posted on Techdirt - 9 December 2013 @ 12:56pm
With the latest round of TPP negotiations ongoing, the folks over at Huffington Post got a hold of two leaked documents including a very useful spreadsheet highlighting all of the positions and areas of disagreement concerning every chapter of the TPP. What's quite revealing (and very good to see, though we'll see how it holds up) is that on many of the worst proposals, it appears that the US is very isolated, with either no one agreeing or maybe just one or two other countries agreeing. Of course, the US is obviously the most powerful force in these negotiations, so never underestimate the ability of the USTR to pressure countries to agree to these harmful policies -- but so far, it appears that other governments have been willing to push back on the US's extreme view of corporate sovereignty ("investor dispute resolution settlements") which would allow companies to ignore the laws of countries and sue those countries for "lost profits" when they disagree with the legal regime (say, for example, if a patent they wanted isn't granted). These programs have been a disaster in current agreements, and hopefully it appears that other countries now recognize this.
It also appears that the US is somewhat isolated in its intellectual property proposals. Only Australia and Peru agree with the US's "patentability criteria." And no one at all agrees with the US's plans for extra protection for patents or to extend protections to new uses (such as plants, animals and surgical procedures. The US is also the only one supporting programs favorable to pharmaceutical companies around data protection. On the copyright side, it appears that everyone disagrees with the US's view of parallel importation (which, if still the same as it was from the last leaked version, disagrees with the US Supreme Court's own ruling on parallel importation. Only the US wants "establishment of criminal offenses for unintentional infringements of copyright, related rights and trademarks."
This is good to see -- but, again, the US is the most powerful voice in the room, and you won't believe the tricks that the USTR will pull to try to bend other countries to agree to these proposals. Hopefully, though, the other countries stand firm. Hell, the fact that so many other countries agree on so many other proposals suggests that perhaps they should just kick the US out and make their own agreement.
Oh, and the US isn't only isolated in pushing for bad proposals. It's also isolated in rejecting some proposals as well. For example, there's a proposal in the e-commerce chapter on "privacy obligations" which everyone has agreed to... except the US. Gee, the US not interested in privacy protections? I wonder why...
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Posted on Techdirt - 9 December 2013 @ 11:58am
Since the Snowden leaks began we've highlighted that the US internet companies should be furious about the NSA's actions, because it was almost certainly going to harm their ability to get any business outside of the US. Some of the companies seemed to be lying low, and we argued they should be speaking out and fighting back. While many of them did decide to sue for greater transparency, we argued that transparency was just one issue, and not even the most important one. About a month ago, with the revelations of the NSA infiltrating data centers, it appeared to finally dawn on the major internet companies that this was a serious issue.
Basically all of the largest internet companies -- with the exception of Amazon (and Apple, if you consider them an internet company) have now launched a website demanding major reforms for government surveillance. Facebook, Yahoo, Twitter, Microsoft, Google, LinkedIn and AOL have all joined in this effort, with a bunch of specific requests:
- Limiting Governments' Authority to Collect Users' Information
- Increase Oversight and Accountability (such as by making FISA an adversarial process)
- Transparency About Government Demands
- Respecting the Free Flow of Information
- Avoiding Conflicts Among Governments
With the website, they've also sent a specific open letter to the government highlighting why this is important, focusing on the rights of individuals and the ability to keep their information private.
We understand that governments have a duty to protect their citizens. But this summer’s revelations highlighted the urgent need to reform government surveillance practices worldwide. The balance in many countries has tipped too far in favor of the state and away from the rights of the individual — rights that are enshrined in our Constitution. This undermines the freedoms we all cherish. It’s time for a change.
For our part, we are focused on keeping users’ data secure — deploying the latest encryption technology to prevent unauthorized surveillance on our networks and by pushing back on government requests to ensure that they are legal and reasonable in scope.
We urge the US to take the lead and make reforms that ensure that government surveillance efforts are clearly restricted by law, proportionate to the risks, transparent and subject to independent oversight.
Some will, undoubtedly, argue that this is all just noise for the sake of public perception, but compare what these companies are doing to the major telco companies, which not only have refused to comment on all of this, but have actively fought
efforts by their own shareholders to make them just slightly more transparent (up to the level many internet companies were even before the Snowden leaks).
The question, now, is how much effort these companies will really put into getting Congress to change the laws. There are a number of different bills in Congress. Having the tech companies assist the efforts for real reform would certainly be helpful.
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Posted on Techdirt - 9 December 2013 @ 8:45am
Verizon and AT&T have remained remarkably silent concerning all of the reports of NSA surveillance, which is fairly incredible, given that it appears that they have been the major players in basically handing over full access to their backbone networks to the NSA -- even to the point of volunteering to do so, rather than having to wait for a court order. It's no surprise that, unlike various internet companies, the telcos have not been at all supportive of attempts to allow for greater transparency over how companies work with the NSA.
However, as we noted last month, a bunch of shareholders have filed shareholder proposals with both companies, demanding that they start to file transparency reports concerning how they cooperate with government surveillance. AT&T
has flat out rejected this request, saying it won't even include the proposed resolution on the ballot at the annual AT&T shareholder's meeting.
The basic argument? It's none of your business. The letter, embedded below, argues that decisions about transparency are "ordinary business matters" not subject to shareholder approval. Furthermore, it argues that "protecting customer privacy is a management function" rather than a shareholder one. Of course, the issue here is that they're not protecting customer privacy, and the shareholders are pointing out that the concern is that in doing so, it could do serious damage to the company by losing the trust of their customers. AT&T, of course, doesn't care about any of that because, really, who else are customers going to go to?
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Posted on Techdirt - 9 December 2013 @ 7:33am
On Friday the case against the US government, brought by Rahinah Ibrahim over her being placed on the "no fly list," officially concluded with closing arguments, but that may have been the least interesting part of everything. Apparently, the day got off to a rocky start, after Ibrahim's lawyers informed the DOJ that they intended to file bar complaints against some of the DOJ legal team for their actions in court, specifically concerning "misrepresentations" made to the court. It seems clear that this was mainly about the DOJ denying that the US government (mainly DHS) had done anything to prevent Ibrahim's daughter, Raihan Mustafa Kamal, an American citizen, from coming to the US to be a witness in the trial. As you may recall, on Monday it had come out that she had been denied in her attempt to board her flight in Malaysia, and the DOJ claimed, flat out, that Kamal had merely missed her flight and rebooked on another flight.
It appears that none of that was true.
Instead, while Kamal had been rebooked by her travel agent earlier in the week to a different flight (because Expedia informed her that her original flight was full and she wouldn't be able to travel on it), she arrived at the airport with nearly 3 hours to spare for her own flight, and was then denied the ability to board. There was a lot of back and forth, but eventually she obtained the email that had first been sent to Philippines Airlines (she was flying from Malaysia to the Philippines and then on to San Francisco), warning that Kamal was "a possible no board request."
While that's not a full on "denial" it was enough to have the airline deny her passage, and clearly shows that, contrary to the DOJ's claims, DHS specifically had targeted Kamal and was hinting very strongly to airlines not to let her fly. It seems unlikely that they ever expected that email to get out. Either way, Kamal had spent nearly $2,000 of her own money on the original flight, and noted in her own deposition that she was unable to afford another immediate flight to the US (especially given that it's holiday travel season).
Judge Alsup held a closed hearing about all of this, so it's not entirely clear what he's going to do, though from the public statements he has made to date, he did not appear to be happy about all of this. During the closing arguments -- some of which involved kicking the public out -- he even noted how ridiculous it was that they had to have a closed session since he didn't think any of the "sensitive security information" was really that sensitive. He also challenged the government's argument that they can properly review people who "appeal" their status without ever letting anyone know if or why they're on the list. From Edward Hasbrouck's transcript of the exchange:
JUDGE ALSUP: That's just going back to the same sources that were wrong in the first place, and of course they are going to say, “We were right the first time.”
That troubles me.
Do you know what happened to Robert Oppenheimer?
He was denied his clearance. It was totally unjust. The information was bogus. They suspected him of being a Communist, but that was wrong.
It was a low point for America, to do that wrongly to an American hero.
You’re not seeing the other side of what can happen.
DEFENDANTS’ COUNSEL: TRIP is a continually improving process…
JUDGE ALSUP: We know that there’s going to be mistakes in your system, in any system, and people are going to get hurt.
What do we need? Should there be some sort of follow-up FBI interview to find out if there is contrary evidence?
DEFENDANTS’ COUNSEL: When a TRIP letter is sent, the recipient is offered the possibility of review by a Court of Appeals. Review by a Court of Appeals would reveal any improper basis for the decision.
JUDGE ALSUP: How could the Court of Appeals tell that from the file it is handed up by the agency?
Even if it includes the derogatory information, how is the Court of Appeals going to know from looking at the face of the document whether it’s true?
Couldn’t there be some process where you tell the person the nature of the allegations (”You contributed money to Al Qaeda”) without revealing the specific sources or methods for the information containing those allegations?
DEFENDANTS’ COUNSEL: We can say more in closed session, but we can’t do that.
The government also appeared to admit in its closing that the original no fly determination on Dr. Ibrahim was a mistake, but then seems to bend over backwards not to take responsibility for all the additional fallout from that incorrect designation -- including the repeated denial of a visa to go back to the US (even for this very trial).
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Posted on Innovation - 7 December 2013 @ 12:00pm
The person who was going to do this week's Techdirt "favorites of the week" post was unable to complete it in time, so instead, with the latest TPP negotiations starting up, I figured I'd post some thoughts on the USTR's view of the world.
Over the last few weeks, since the draft of the TPP IP chapter leaked, I've been puzzling over just why the USTR appears to be actively working against the interests of the American people, jobs, innovation and the economy with the proposal. Frankly, the USTR's extreme position makes no sense at all. Yes, the USTR is heavily influenced by patent and copyright maximalists that it placed on the Industry Trade Advisory Committees (ITACs) it relies on for input on its negotiating position. Yes, there's a tremendous revolving door between maximalist lobbyists and the USTR. Yes, the main guy negotiating this part of the agreement is a long term maximalist extremist who can't even comprehend the idea that locking up information and knowledge might be a bad thing.
But it's felt like there's something more. The USTR has been so incredibly obnoxiously dismissive of the idea that these are bad ideas. I'm beginning to think that, while all of the above are a part of it, a much bigger issue is that they simply come at the issue from a historical, debunked and no longer relevant understanding of how economics and economic growth works. That is, the USTR seems to think in the most narrowest of ways that "what's good for big US companies is good for the US economy" -- a view that was popular in the 1950s but has never made much sense. It's the crony capitalism view of the economy that nearly anyone with any experience in economics knows is bunk. They're taking a zero sum view of the world when the world is anything but zero sum, especially when it comes to information and knowledge. It also completely ignores the nature of disruptive innovation and the importance of allowing new innovations to flourish, and companies who can't keep up to die out. Instead, the USTR seems to think that protecting the companies who aren't innovating is its job. That's dangerous and harmful.
The USTR simply doesn't care at all about what the various public interest groups are telling the USTR about the insanity of these proposals because it thinks that those groups are anti-corporation and anti-growth. But that's outdated and, frankly, wrong thinking. While it may be true of some of the groups, many who actually understand these issues recognize that in the world we live in today, the path to economic growth and innovation is to increase knowledge and information sharing and to work together with consumers to benefit both. But the USTR views the world as "corporations vs. the public." And it's firmly on the side of "the corporations." But that's not the way the world works. It's a very last-century view of the world (and wasn't even accurate then).
Today, companies succeed by treating the public right, aligning interests and building products and services that make people better off, not to fuck them over. That is: if you want innovation to flow and the economy to grow, the USTR should be focusing on an agreement that serves the best needs of the public, by lowering the barriers to innovation and information sharing. Instead, it's doing the exact opposite -- raising trade barriers to help a few industries that don't want to adapt and embrace the way the world works in this information era.
The next great innovative companies come out of a world where giving the public exactly what it wants is key, and part of that is an openness and transparency that brings those consumers into the process. But the USTR is supporting the 1950s vision of giant monolithic companies deciding what the public wants, and fighting any attempt to actually work with the public.
The end result is that the USTR is basically setting a trade agreement with a 1950s manufacturing agenda in a twenty-first century information age world. The end result is going to be a complete and utter disaster for the US economy, innovation, jobs and the American public -- not to mention free expression and access to medicines. We've seen the government do braindead things in the past, but the way the USTR has handled the TPP negotiations appears to be one of the most clueless efforts by US government officials ever. Their entire approach is wrong and dangerous -- and they don't even seem to have the slightest clue of what they're about to do to the economy and innovation. What's good for a few giant companies isn't what's best for the American public, jobs or the American economy. And it's downright frightening that the people negotiating an agreement that is going to have a huge impact on all of those things don't seem to understand the basics beyond an outdated view from 70 years ago...
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Posted on Innovation - 7 December 2013 @ 9:00am
For this week's awesome stuff post, highlighting various crowdfunding projects, we're going to look at three different smartplug projects, all of which connect to smartphones. I recognize that this concept isn't new, and you can find a few existing such products on the market already, but it's interesting to see three different smartplug offerings all hit Kickstarter at around the same time. Apparently something's in the air.
- We'll kick it off with the Zuli Smartplug which is mainly focused on how it can be used for lighting. If you plug a light into a Zuli, you get your basic energy monitoring on your phone, as well as on/off controls and dimming from your phone. It also does some location-based things, like turning on as you enter a room.
The devices run $40 to $45, depending on whether the earlybird pricing is still available -- though some of the location-based info requires you to have 3 Zulis so it can triangulate where you are. So far the project has raised about $50,000 of the $150,000 it's shooting for in just a few days, with four weeks to go. It seems likely that it will hit the goal and probably jump past it by a decent amount.
- Next up is the Plugaway, which has a lot of similarities to the Zuli. It's also a smartplug that has a smartphone app to control electronics. It also monitors energy usage, lets you turn on and off lights and dim them as well. It includes some scheduling software as well, but doesn't seem to have the same location based stuff. One somewhat different feature with the Plugaway is that they're pushing the fact that their software and hardware is completely open, so others can take it and brand it as their own (they suggest interior designers, building developers or restaurant owners can customize the setup so it's "personalized"). I'm not sure how big that market is, but it's different. Perhaps more interesting is just the fact that they're hoping that developers build on it and share what they've done. So others can write apps and share them, and it can connect to outside services like the ever-popular IFTTT.
These guys already hit their $50,000 Australian goal and have shot past it, and they also have about four weeks to go. The pricing on the Plugaway also seems a bit cheaper than the Zuli (especially when you take into account the slight difference between the US dollar and the Australian dollar). Also, while both have multipacks that cost a little over $100, the Plugaway comes with 5 plugs, while the Zuli only comes with 3.
- Finally, we've got the Smart Power Strip, which is pretty similar (again) to the other two, but (as you already guessed) comes in the form of a powerstrip, rather than a single plug. Feature-wise, you'll see the same basic things. See your electronics from your smartphone and be able to turn them on or off (including from remote locations, via WiFi in the power strip). Monitor your electricity usage. These guys are also looking to add other smart devices, but those don't appear to be ready yet. The design is definitely a bit more clunky and less modern and sleek than the other two, but that may be personal preference.
These guys have about 70% of the $100,000 target, with a bit over a week to go. It may be close to see if they actually get across the finish line. The power strips run between $99 and $119 depending on if you get into the early bird. Considering the number of outlets, this seems on par with the two above, but without the flexibility of being able to install in multiple rooms.
That's about it for this week. Go unplug something.
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Posted on Techdirt - 6 December 2013 @ 7:39pm
In the latest in a long list of travesties carried out by the US government in the Megaupload case, apparently it went to the US court handling the case, and without letting Megaupload know, got an ex parte order allowing the government to share evidence from the case with various copyright holders and then to issue press releases about the case. As Megaupload's lawyers point out, the whole thing is a clear due process violation.
The defendants have been indicted, their assets have been frozen, their business has been destroyed, and their liberty has been restrained. Given these constraints, it is unclear what evils the Government fears defendants will inflict if provided notice of the Government’s submission, beyond having Defendants’ counsel come into court to make opposing arguments.
Basically, Megaupload's lawyers are asking to be a part of this process, since it appears that the government wanted (and the court allowed) to cut them out. As Megaupload's lawyers note, allowing the government to sort through and cherry-pick evidence to share, without any context or potential additional exonerating information, is a clear due process violation.
“The Government’s request also substantially prejudices the defendants in the case. Permitting the Government to widely disseminate a one-sided, cherry-picked set of facts threatens to improperly infect the jury pool before defendants are afforded any opportunity to present their side of the story.”
Apparently part of the issue for the original filing to reveal this information was that some copyright holders are getting antsy that as the case drags on, they won't also be able to file civil cases against Megaupload before the three-year statute of limitations expires. However, as Megaupload's lawyers point out, there is no urgency here since the government itself made no move to share this information over the past two years. If it really wanted to share the information it had ample time to make the request and allow Megaupload's lawyers to review and take part in the process, rather than trying to route around them entirely.
I'm guessing the recent successes against IsoHunt and Hotfile may have contributed to the timing as well. The MPAA pretty clearly thinks it can use those two cases to go after Megaupload as well, outside of the criminal case which will continue.
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Posted on Techdirt - 6 December 2013 @ 5:40pm
Over the last year, the Freedom of the Press Foundation raised nearly half a million dollars to support important threatened journalism efforts. Over the past few months the Foundation has continued to build on its efforts, such as by taking over the SecureDrop project to make it easier for journalism operations to setup a system to get information securely and anonymously from whistleblowers. The Foundation has now kicked off its latest crowdfunding campaign, focused on supporting a series of encryption tools, including Tor, Tails, Open WhisperSystems and the LEAP Encryption Access Projects. Oh yeah, and its own continued work on SecureDrop. It's a good cause. While they focus on how these encryption tools are for journalists, that's underplaying things. These are tools for everyone.
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Posted on Techdirt - 6 December 2013 @ 3:43pm
Earlier today, the Supreme Court agreed to hear the appeal on the Alice vs. CLS Bank case which is yet another case that looks at the patentability of software. The ruling in the Federal Circuit appeals court (CAFC) was one of the biggest judicial messes you'll ever see. The ruling was 135 pages of different judges all disagreeing with each other. In all of that there is only one single paragraph that the court agreed on -- one which rejected the patent as not being patentable subject matter. But as for why they did that? No one could agree. Chief judge Randall Rader has called that decision "the greater failure of my judicial career."
Now the Supreme Court can fix it, and hopefully can establish clear rules -- potentially ones that wipe out software patents entirely, though I'm not convinced they'll go that far. To some extent, the Supreme Court has itself to blame. Back in 2010, in the Bilski case, the Supreme Court had the chance to set clear rules of the road concerning software patents, but instead chose to punt, ruling incredibly narrowly (basically saying "the test the courts use isn't the only test, but we won't tell you what other tests to use"). Because of that, no one knows what tests should be applied to see if software (and business methods) are patentable, and that leads to complete messes like the CAFC ruling in the Alice v. CLS case.
At the very least, one hopes that the Supreme Court will clear things up, rather than punting again by ruling very narrowly. Part of the role of the Supreme Court is to set the standards for the lower courts to follow, based on the Constitution (and the law). Instead, lately, it seems to look to rule very narrowly and to let these issues keep bouncing around without any clarity at all. Hopefully, the Supreme Court will recognize that its own earlier precedents should have effectively made software unpatentable, but even if it won't go that far, a clear rule would be a step forward.
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Posted on Techdirt - 6 December 2013 @ 2:44pm
Yesterday, lawyer Nick Ranallo, one of the many lawyers who's been instrumental in taking down Prenda Law, filed a notice in the Navasca case, saying that they (he and his client, Joe Navasca) were satisfied that Prenda had paid up the attorneys fees owed, which Judge Chen had ordered back in July. The amount was $22,531.93, which is significantly less than other courts have told Prenda to fork over in other cases (totaling up to about $500,000 last I'd checked), and it appears that Team Prenda decided to fork over the cash, perhaps out of the nearly $2 million the company took in last year.
But the really incredible part in this is that when reporter Joe Mullin, from Ars Technica, reached out to Prenda's Paul Duffy to comment on whether or not Prenda had paid up the fees, Duffy responded in the most bizarre way possible:
I hope you are doing well. I am devastated by the loss of Nelson Mandela and I hope you join with President Obama in remembering his legacy. He ranks with Mohandes Ghandi, Dr. King and President Kennedy in the struggle for human rights over the past 50 years. There are larger issues than the ability to steal porn... You seem like a nice guy. Thanks.
Yes, the copyright porn trolling lawyer, whose firm has been implicated in setting up bogus honeypots
to shake people down, in forging signatures
and in efforts to publicly embarrass people
(oh, and whose wife more or less admitted that her husband was engaged in interstate extortion
) is now claiming that he's "devastated" by the loss of Mandela, and talking about "the struggle for human rights." That's a laugh. I'd guess he's a bit more devastated about the hundreds of thousands of dollars he's on the hook for and the criminal and tax evasion charges he may be facing before very long.
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Posted on Techdirt - 6 December 2013 @ 12:43pm
In the academic publishing world, I'm not sure if there's any company quite as hated as Elsevier. You may recall the big campaign by academics to boycott Elsevier over its opposition to rules that would make federally funded research publicly available at some time period (six months to a year) after the original publication. Or the time they removed free access to journals in Bangladesh (until academics made enough noise and Elsevier brought them back). Or, how about the fact that Elsevier had an entire division devoted to publishing fake medical journals that were used by big pharmaceutical companies to write ad copy which they could then pretend was from a prestigious medical journal that was really just junk science made to look nice. Oh, and then there was the time Elsevier was caught publishing ghostwritten articles by the pharmaceutical industry that were supposed to be "reviews" of all the research about certain treatments, but which instead played down the negative research and played up the positive kinds.
And then there's just the general concept of the way Elsevier and a number of academic journals work in general. They don't pay their writers, the academics who submit articles (for some journals in some fields, academics actually have to pay significant sums to submit articles), they don't have to pay the peer reviewers who do such reviews for free. So they get content and a certain type of editing entirely for free. Then, they charge obscene sums of money to universities for subscriptions and try to block off all kinds of other access to research if people don't pay up -- which is especially troubling when the research is federally funded. Oh yeah, they also claim the copyright on any research submitted. A professor I know, who was trying to do followup research on some initially published research, actually had to recreate the original results, because the journal that published the original work wouldn't let him reuse the results of his original study, claiming that it was covered by copyright. In other words, they use copyright to make it that much harder to share knowledge and build on the works of others.
The one "crack" in this kind of academic publishing is that many academic journals would "look the other way" if an academic decided to post a pdf of their own research. At least some journals were even willing to put into their contracts that the authors can post a pdf to their own website, or to public collections of journal articles like SSRN.
However, it appears that Elsevier has started cracking down on this practice as well. Bijan Sabet alerts us to the news that Elsevier has suddenly started demanding that copies of research posted to Academia.edu get taken down. Here's one example from bioinformatician Guy Leonard, who posted a copy of his letter from Academia.edu, who clearly isn't happy about this turn of events either:
Here's the full text of the letter:
Unfortunately, we had to remove your paper, Resolving the question of trypanosome monophyly: a comparative genomics approach using whole genome data sets with low taxon sampling, due to a take-down notice from Elsevier.
Academia.edu is committed to enabling the transition to a world where there is open access to academic literature. Elsevier takes a different view, and is currently upping the ante in its opposition to academics sharing their own papers online.
Over the last year, more than 13,000 professors have signed a petition voicing displeasure at Elsevier’s business practices at www.thecostofknowledge.com. If you have any comments or thoughts, we would be glad to hear them.
The Academia.edu Team
Mike Taylor's writeup of this situation (linked above) notes that many academics are pissed off about this and are complaining about it on Twitter. He also notes that there are some good folks at Elsevier who seem to recognize the importance of access to information and who, themselves, are probably pissed off about this. But, really, it seems that it's in Elsevier's general DNA to try to privatize knowledge, research and understanding. What a shameful company.
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Posted on Techdirt - 6 December 2013 @ 11:44am
One of the key issues raised by the head of the US Copyright Office, Maria Pallante, was that it was time to perhaps rethink our current copyright term of life plus 70 and lower it. There had even been some indications that even the maximalists at the MPAA and RIAA were actually (for the first time) open to the idea in her proposal to officially roll back the term to life plus 50 with the ability to "renew" for that last 20 years. When even the maximalists are making noises about reducing copyright terms, and Congress seems open to exploring the issue, you'd think that the folks over at the USTR wouldn't be out there trying to lock us into international agreements that require life plus 70 as a minimum. But you'd be wrong.
The folks over at KEI are putting together a letter to TPP delegates as they go through the latest negotiation, asking them to reject the life plus 70 requirement, noting that many countries that have it today (including the US) have shown indications that they regret such a long copyright term:
There is no benefit to society of extending copyright beyond the 50 years mandated by the WTO. While some TPP countries, like the USA, Mexico, Peru, Chile, Singapore or Australia, already have life + 70 (or longer) copyright terms, there is growing recognition that such terms were a mistake, and should be shortened, or modified by requiring formalities for the extended periods.
The primary harm from the life + 70 copyright term is the loss of access to countless books, newspapers, pamphlets, photographs, films, sound recordings and other works that are “owned” but largely not commercialized, forgotten, and lost. The extended terms are also costly to consumers and performers, while benefiting persons and corporate owners that had nothing to do with the creation of the work.
Life+70 is a mistake, and it will be an embarrassment to enshrine this mistake into the largest regional trade agreement ever negotiated.
Unfortunately, it looks like the only one who had been really fighting back against this proposal was Canada, and the indications are that Canadian negotiators are about to fold
and agree to the life plus 70 requirement. There's a very important question here, which apparently no one in the USTR is willing to answer: why are they doing this
? It makes no sense. All of the evidence suggests that having copyright this long has been bad for just about everyone, except perhaps Disney. The USTR has never even bothered to look at the issue
, rather just accepting the idea that if the US currently has life + 70, it must lock that in permanently around the globe. Because.
It's pure insanity in which the USTR continues to push for proposals that hurt American jobs, innovation and the public alike.
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Posted on Techdirt - 6 December 2013 @ 10:44am
In the latest update in the ongoing trial concerning the legality of the US's "no fly list" brought by Stanford grad school student Rahinah Ibrahim after what appears to be a series of monumentally stupid actions by the US government, the feds continue to try to play games that Judge William Alsup isn't interested in playing. Edward Hasbrouck at the Identity Project continues his fine reporting with detailed coverage of Thursday's events. Apparently, the DOJ lawyers tried to insist that the mere fact of whether or not Ibrahim is on the "no fly list" has to be kept secret, including from Ibrahim herself. Judge Alsup pointed out that the mere status of someone -- on the list or off -- wasn't listed anywhere in the list the government provided him of "sensitive security information" (SSI):
Why can’t we tell the party [to the lawsuit] what her status is?
This depends on our saying that national security depends on us having this information, but not her having it. I question whether that is true….
Something’s going on in this case that’s strange, and I mean on the part of the government.
I don’t understand why you’re fighting so hard to avoid having this poor plaintiff know what her status [on the no-fly list] is.
It’s easy for anyone to buy a ticket and try to get on an airplane. If they’re allowed to fly, they know they’re not on the no-fly list. If they’re stopped and handcuffed and sent to jail in the back of a police car, they know they’re on the list.
It’s so easy to find out what your status is by trying to get on an airplane — at least for the no-fly list. That’s a lot easier than months of litigation.
Later, as the government presented its case, it included a discussion of how the State Department later pulled Ibrahim's visa after she was back in Malaysia (it's not entirely clear how this helps their case, since the no fly issue is separate from the visa). But, even there, the statements from the government didn't make much sense to Judge Alsup who called out a witness for saying something that didn't appear to be true -- arguing that Ibrahim could have asked for a special waiver on the visa issue, but didn't. Just one problem: as Judge Alsup noticed, there's a box on the form saying if you're eligible to apply for a waiver -- and the form sent to Ibrahim did not have that box checked
It’s possible for someone deemed ineligible for a visa to apply for a waiver of that ineligibility. Had Dr. Ibrahim failed to exhaust her administrative remedies by failing to apply for such a waiver?
It was Judge Alsup who pointed out that the box on the notice given to Dr. Ibrahim marked “You are eligible to apply for a waiver of in eligibility” had not been checked. “If there’s a box for that, and the box isn’t checked, wouldn’t that imply to you that she couldn’t apply for a waiver?” the judge asked Mr. Cooper.
“You could infer that,” Cooper replied from the witness box, with an inflection that suggested, “….but you would be wrong.”
“It would certainly imply that to me,” Judge Alsup shot back.
The trial should be wrapping up today, and it's not looking good for the US government at this point.
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Posted on Techdirt - 6 December 2013 @ 7:35am
In an interview on Thursday, President Obama said that he's going to propose some "self-restraint on the NSA" and to "initiate some reforms that can give people more confidence." Of course, he's the boss of the NSA. He doesn't need to "propose" anything -- he can order them to stop. Furthermore, it appears that nearly everything else he talked about was supporting the actions of the NSA, so it's a bit difficult to take seriously this idea that there will be any significant decrease in NSA activity.
"The challenge is...we do have people who are trying to hurt us. And they communicate through these same systems," Obama said. "And if we're going to do a good job preventing a terrorist attack in this country, a weapon of mass destruction getting on the New York subway system, etc., we do want to keep eyes on some bad actors."
"I want to everybody to be clear: the people at the NSA, generally, are looking out for the safety of the American people. They are not interested in reading your emails. They're not interested in reading your text messages. And that's not something that's done. And we've got a big system of checks and balances, including the courts and Congress, who have the capacity to prevent that from happening," the president added.
That's misleading to inaccurate, depending on your perspective. The checks and balances
are not all they're cracked up to be, with everyone pretty much reliant on the NSA telling the truth, combined with the fact that many of those responsible for "oversight" are so close with the NSA that they're more co-conspirators than actual overseers.
Separately, can we drop this whole "they're not interested in reading your emails" bullshit? All people are saying there is "look you're a peon so shut up and deal with the fact that you have no privacy." That's ridiculous. Clearly the NSA is reading lots of people's emails (and getting data about them and what they do). While they might not make use of it today
to spy on you
in particular, that doesn't mean that it won't change in the future when suddenly you become "a person of interest" for whatever reason. It's easy for some people to think that the government won't ever care what they're doing -- but that can always change in a hurry and by the time it does, it's too late to start "worrying" about your privacy.
On top of that, recent revelations have made it clear that the NSA has no qualms at all about using information it gathers on non-terrorists
that it doesn't like to try to destroy their lives
. Sure, the NSA might not want to read your email today. But, piss off the wrong person tomorrow...
Separately, if they don't want to spy on me, let's make a simple deal then: stop doing it. It's hard to square this claim from NSA defenders that it's okay to spy on all of us because they don't want to spy on all of us. The right response is to stop spying on all of us
. You want to go after the so-called "bad people," okay, then target those people but not everyone in hopes you might find some bad people mixed in there.
Oh, and once again, it's incredibly insulting how completely unconcerned the President and other NSA defenders seem to be about the rest of the world. Once again the message is basically: if you're not American, fuck you.
"The N.S.A. actually does a very good job about not engaging in domestic surveillance, not reading people's emails, not listening to the contents of their phone calls. Outside of our borders, the NSA's more aggressive. It's not constrained by laws," Obama said.
But it can be constrained by their boss, who happens to be the President. Will he actually do anything?
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Posted on Techdirt - 6 December 2013 @ 5:34am
Over the past few months, I've certainly wondered quite a bit about just how bad the NSA seems to be at recognizing how the public feels concerning what it's doing. This week's revelations about tracking mobile phone locations was incredible because folks at the NSA must have known that information about this program was in Snowden's collection, and yet when they were asked about collecting location info a few months ago, they made statements that would clearly look bad, when put next to the truth:
“We don’t get any cell site or location information as to where any of these phones were located.” -- Keith Alexander
phones. Under this program. But under this other program we collect pretty much everything. Beyond that, the various "code names" the NSA uses are somewhat revealing as well. Lots of people commented on the insanity of calling the giant database FASCIA. But, at the very least, you could argue that the NSA never expected those code names to be made public. And with the misleading statements, they were still holding out hope that maybe, just maybe, a meteor would magically flatten Glenn Greenwald, Barton Gellman and Laura Poitras before the info got out.
But... how about when the US intelligence community actually does something publicly. Like live tweeting the launch of a new spy satellite
. Apparently, they slap the most unsubtle logo on it that you can imagine.
You may not be able to see the logo used on the rocket, but here's a closeup.
Yes, it's an octopus, with tentacles reaching all over the globe. And the tagline is "Nothing is Beyond Our Reach."
Sure. They're spies. This is what they do. But, somehow, you'd think that maybe, just maybe, someone with a tiny bit of sense back there at the office of the director of national intelligence would think that, "gee, a lot of people around the globe are pretty fucking angry at us for all the spying we're doing right now. maybe we shouldn't be spitting in their faces, mocking their concerns, and reminding them that we're blatantly evil people who really don't give two shits about their privacy."
Of course, that would take some actual recognition of what anyone thinks of them, and that doesn't seem to be part of the way that the US intelligence community operates.
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Posted on Techdirt - 6 December 2013 @ 12:05am
Politicians for the opposition Labor Party in Australia have called on the government there to release the text of the TPP agreement before it's signed. Yes, it's crazy that this even needs to be discussed, but the latest round of negotiations are going on, and there have been some rumors that the plans are to let countries "sign" on at the end of the negotiations, before any text is officially released. Countries would still have to ratify, so the signature is largely symbolic, but it still seems fairly ridiculous that any government would agree to sign a massive trade agreement with huge implications for pretty much all of their citizens without the document ever being made public. Frankly, the idea that any country would consider moving forward with such an agreement before they've allowed any public discussion of the text is about as anti-democratic as you can imagine.
While it's good that the Labor party is making this request, the very fact that it needs to do so shows just how screwed up the entire TPP process is. It's a backroom deal put together to help a few big industries at the expense of nearly everyone else -- and the whole thing is secret. This isn't how countries which claim to be open, free and democratic are supposed to act. But, of course, as former USTR Ron Kirk admitted during a moment of candor, if the public actually got to see what's in the TPP, the agreement would never get approved. And that's exactly why it shouldn't be approved.
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Posted on Techdirt - 5 December 2013 @ 4:06pm
Earlier today, after some debate on various amendments, the House overwhelmingly approved the Innovation Act by a vote of 325-91. There had been some attempts to completely wipe out the key clauses of the bill. Reps. John Conyers and Mel Watt (two of the biggest SOPA supporters) supported an amendment that basically made the entire bill useless, claiming they were afraid that the current bill would somehow harm good, hardworking patent trolls. The reality is that they wanted to kill the fee-shifting provision that makes the loser pay the legal fees of the other side. Trial lawyers tend to hate fee-shifting. Thankfully that proposal was rejected, though I find it amusing that Watt and Conyers claimed to be so worried about "rushing" into patent law changes, when they'd been so eager to support massive copyright changes in SOPA.
Unfortunately, the bill that did pass had already been watered down by Rep. Bob Goodlatte (who sponsored the overall bill), when he was convinced by heavy lobbying from Microsoft, IBM and a few other large patent holders to remove the "covered business method" program from the bill. That's the program that lets the USPTO more quickly review and toss out bad patents it never should have granted. The only reason I can think not to have that program in there is... if you happen to have a lot of really crappy patents. Thankfully, it appears there's more support for such a program on the Senate side, though Microsoft is still lobbying hard on this.
And, that brings us to the Senate side. While there's a bill out there, it's unclear when it'll actually come to the floor for a vote -- almost certainly not until next year. Plus there's still lots of lobbying against the whole thing, so this could collapse into nothing. But, in the short run, it's at least a big step towards stopping the worst patent trolls out there.
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Posted on Techdirt - 5 December 2013 @ 3:04pm
One of the more interesting things about the rise of the internet is how it inspires creativity and artwork in unexpected places. For example: the rise of Amazon reviews as a work of art. This "artform" probably really kicked off with the now infamous three wolf moon t-shirt, and a wacky comment left by Brian Govern almost exactly five years ago that inspired thousands of other wacky comments and, voila, virality.
I'm reminded of this as people are talking about another set of wacky reviews on Amazon, this time for a massive and insanely expensive Samsung 85" LED TV which normally runs $44,999.99, but is "discounted" to merely $39,997.99 (a bargain!) and somewhat amusingly notes that only 3 are left in stock. People have been having a field day in the comments, mocking the price, the features (free batteries with the remote!) and just the general idea that people are buying $40,000 TVs off of Amazon.
A few samples: There's Cheryl Gustafson's explanation of what pushes this over the edge:
At first I hesitated to make the purchase, but then I saw the two AA batteries were free with the remote, and I was all in! Having this really fills in that empty space we called a bathroom!
There's Hans Summers' play on The Fresh Prince of Bel Air
or Scott Robertson's Star Trek reference
. But, by far the one that most people are focusing on is the one from James Thach, which starts off innocently enough
My wife and I bought this after selling our daughter Amanda into white slavery. We actually got a refurbished. It's missing the remote, but oh well-- for $10K off, I can afford a universal, right? The picture is amazing. I've never seen the world with such clarity.
Amanda, if you're reading this, hang in there, honey! We'll see you in a year.
The story goes on from there, including multiple updates and responses to "concerned" commenters. Comedy is subjective, but it's pretty damn amusing. That led me to check out Thach's other reviews
, and while there are only a few, it appears that since reviewing that Samsung TV, he's really jumped headfirst into this new comedic art form, though most don't come off quite as clever as the Samsung TV (he focuses more on what might be called... "toilet humor" in quite a few of them).
Still, while the humor may be a mixed bag at times, there's something kind of amazing when you begin to realize that this is even a thing
now. The ability to allow people to be creative in all sorts of new and interesting ways leads to creativity and entertainment in totally unexpected places. This is one of the reasons why we tend to think it's so important to allow for open forums for communications whenever and wherever possible, rather than focusing on top-down broadcast-style models of content production that were dominant last century. No, silly Amazon reviews aren't any form of "high art," and many people will dismiss them entirely, but there's something kind of special in seeing creativity spring up in odd places, and it's the kind of thing that the internet does so well.
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Posted on Techdirt - 5 December 2013 @ 11:11am
A few folks have been passing around variations on this story about how police chief Tony Vaughn of the small town (population: ~330) of Vicco, Kentucky, is likely to get his wish to be paid in Bitcoin very soon, after the city commission approved a measure saying that such a system is acceptable (taxes will be taken out in dollars before its converted to Bitcoin). While the story is interesting, the whole thing appears to be a publicity stunt. Vicco got a lot of attention a few months back when it was featured on the Colbert Report for having a gay mayor and passing a "fairness ordinance" against discrimination (the video is amusing, basically mocking those who falsely assume that "small town America" is anti-gay):
Police Chief Vaughn is among those featured in the video, talking about how Mayor Cummings is his best friend. After that show, the town discovered that a bunch of folks wanted to donate money to the town
All together, the pledges and grant applications amount to more than $200,000, approaching Vicco's annual budget of about $300,000, Cummings said. Still, the town has only a tiny fraction of that money in hand.
However, both Cummings and Vaughn have talked about "capitalizing" on the attention, including appearing on a reality TV show:
The town may even become the setting for a reality-based television show. Cummings said he expects to review a contract proposal soon from a production company, but doesn't know which network might be interested.
He said he wants the show to focus on revitalizing the town.
"I don't see us being that entertaining, but somebody else seems to think we're a little unusual," he said.
A reality TV show where they show off how "unusual" they are? Suddenly the idea of a wacky police chief who gets his salary paid in Bitcoin seems like yet another "hook".
Also, Cummings and Vaughn seem to recognize that staying in the news -- and potentially getting more donations -- is part of the plan:
"I'm excited about it; it's a first for Vicco again," Vaughn said, referring to the city's fairness ordinance passed in January that prohibits discrimination based on sexual orientation. The city was the first in the region to approve such a law, and at the time only the third in Kentucky.
But Cummings added that publicity isn't necessarily the only reason for the city to take such a step. Since the city's passage of its fairness ordinance and a subsequent appearance on Comedy Central's "The Colbert Report," officials have received several donations, including several pieces of playground equipment for a new park near City Hall. And now the city's upcoming website will be set up to accept Bitcoin donations, something Cummings said could help the small town of 300 people better afford projects to improve local infrastructure.
That's not to say that the plan isn't real, but it seems reasonable to ask if this isn't just another way to get a small town extra attention after its recent attention (and donations) started to die out. Vaughn's salary is still being based in dollars and just converted to Bitcoin, so his "salary" isn't in Bitcoin, he's just "paid in Bitcoin." And given the fact that the town itself is doing this at the same time that it's seeking donations and
has set itself up to accept Bitcoin, it appears that this may just be a somewhat silly way to keep this small town in the news... and trying to get donations.
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