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This Week In Techdirt History: February 22nd - 28th (Techdirt)

by Leigh Beadon

from the 88-years-of-communication-regulation dept on Saturday, February 28th, 2015 @ 12:00PM

Five Years Ago

This week in 2010, we continued following the story of the school caught spying on students through webcams in their laptops, and the details were not looking good. Especially when we discovered the student in question was only guilty of eating candy.

This was also the time of ACTA negotiations, and when the internet chapter leaked, we got a look at how sneaky the negotiators were being. We learned which countries were fighting hardest against ACTA transparency, and European officials were getting concerned about the agreement. Meanwhile, the UK was supposedly backing down on the three strikes provisions of its Digital Economy Bill, but it turned out this was really just an exercise in rebranding and the bill still allowed for disconnection (that would last as long Peter Mandelson felt it should.)

You know that famous "I'm on a horse" ad for Old Spice, which the company continues riffing on to this day? Well, this was the year it originally aired during the Olympics (which, sidenote, was busy trying to get paid for tweets) leading us to hold it up as an example of how advertising is content. In a weirder attempt to enact that principle, EMI got State Farm to sponsor the embedding of OK GO videos (which were otherwise blocked), while the band's singer stepped up to point out that a lack of embedding hurts everyone.

Other upsets to the internet this week in 2010 included: the (secret) settling of the lawsuit between Perfect 10 and Amazon, the conviction of four Google executives on criminal charges over a YouTube video, the overblown freak-out over PleaseRobMe, the consideration of internet addiction for inclusion in the DSM and, perhaps most significant of all, the temporary takedown of the original Rickroll video.

Ten Years Ago

Looking back to 2005, you can clearly see the debates and practices that would lead to today's net neutrality battle. The vicious attacks on muni broadband by lobbyists were blatantly self-serving, and some companies went even further to outright prevent it. One group, fresh off of taking a Techdirt quote completely out of context to trash muni WiFi, went on to attack the idea of broadband-over-power-lines as well.

Lexmark got smacked down in its attempt to abuse the DMCA to block third-party ink cartridges, while HP was accused of building an expiry date into its cartridges. Apple, having recently launched its retail stores, was sued by Apple resellers and accused of unfair practices. And Google was accused of threatening French culture with its book scanning project by focusing on English books.

People were really beginning to realize how attached they were to their phones — and that losing them could mean losing friends. The rise of SMS was even threatening the greeting card industry. But, despite assumptions, constant texting seemed to be improving kids' language skills.

Fifteen Years Ago

If you do any work with web analytics today, you know that conversion rates are a key metric — but back in 2000 they were the new kid on the block. Then again, so were colour screens on PDAs and plenty of other high tech toys for grownups (though apparently not as many for kids).

British Airways announced that it would charge more for paper tickets, and we wondered if it would back down the way Delta did on a similar initiative. Palo Alto was experimenting with fiber to the home. Various magazines were looking at the state of things like digital currencies and weblogs like Techdirt (yes, still "weblogs"). And Techdirt itself briefly disappeared thanks to a DNS issue.

Eighty-Eight Years Ago

On February 23rd, 1927, Calvin Coolidge signed the new Radio Act into law, establishing the Federal Radio Commission that would, less than a decade later, become the FCC we all know so well.

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Not So Awesome Stuff: Your Worst Crowdfunding Project? (Failures)

by Mike Masnick

from the looking-at-the-other-side dept on Saturday, February 28th, 2015 @ 9:00AM
Let me start this post off by noting that I'm a huge fan of crowdfunding and think that it's an amazing force for all sorts of good things in art, culture and innovation. That's part of the reason why we do a weekly awesome stuff post highlighting interesting (and sometimes awesome) crowdfunding projects. But, it should be noted that crowdfunding projects don't always turn out great. There are plenty of horror stories to go around -- some involving what appear to be outright fraud, certainly -- mostly just because project creators are way overly optimistic on their ability to achieve their goals. I've backed a few dozen projects, and I can only think of a handful that were delivered on time. To be honest, this doesn't bother me so much. What's much worse is that as projects go bad, the project creators tend to disappear, not updating people with the bad news, leading people to get angrier and angrier.

Kickstarter, for one, has long tried to make it clear that it is "not a store," but rather that you're backing a project, and there's risk associated with that -- including the risk that a project may fail. However, it's still disappointing to back a project and have it be totally disappointing. So, this week, I thought I'd ask people about the most disappointing crowdfunded projects they've seen or backed. And I'll reveal mine. Back in the summer of 2013, on one of our awesome stuffs I wrote about the HOT Watch, a new smart watch that had some interesting features, including the ability to hold your hand up to your ear and use your hand like a phone. The video for the project was super cheesy/infomercially, which scared me off, but I'd become somewhat fascinated with the possibilities for smartwatches, and at the last minute bought into it. The backers of the project swore up and down, left, right and center, that the project would ship in time for Christmas in 2013. Right up until basically the end of the year the company insisted it would be shipping. It's now February of 2015 and I still don't have mine. Because I just don't care any more, I've asked them for a refund and they haven't replied, which is pretty much what I expected. Some people appear to have received theirs -- but I haven't and it's now 15 months late, and the market for smartwatches has moved way past the HOT Watch.

Lesson learned: crowdfunder beware.

Another, similar project, which (thankfully) I did not back is the Lima, which was a little device that was supposed to enable you to very easily set up your own personal cloud with USB devices at home. That presentation was super slick, and I was tempted to back it, but the pricing seemed a little steep, and I'm glad I didn't because while it also promised delivery by December 2013, at last check, it also has not delivered at all, and there are tons of people demanding refunds. I had mentioned the Lima in another awesome stuff post, and the company reached out to me saying the team wanted to send me a postcard (?!?!) as a thank you. I told the person not to bother, but the company still found our office address and sent it anyway. It seems like, rather than sending out post cards to people who don't want them, they could have put time into working on the product.

Anyway, this isn't to knock crowdfunding, or even these two projects in particular. It's just to note that there are risks associated with crowdfunding, and certain projects turn out to be flops, so you need to be aware. In the meantime, would love to hear about crowdfunding flops that you have backed (or luckily avoided...).

US Court Rules That Kim Dotcom Is A 'Fugitive' And Thus DOJ Can Take His Money (Legal Issues)

by Mike Masnick

from the um. dept on Friday, February 27th, 2015 @ 7:39PM
In the long, convoluted and complex legal battles facing Megaupload founder Kim Dotcom, there was some bizarre stuff that happened late last year. As you may recall, early on, the US government seized basically all of his stuff and money. Dotcom has made efforts to get some of it returned, as it's tough to fight the most powerful government in the world when it's holding onto all of your money. Keep in mind from our previous discussions on asset seizure and forfeiture, the government can basically seize whatever it wants, just by claiming it was somehow related to a crime, but the seizure is only a temporary process. If the government wants to keep it, it then needs to go through a separate process known as civil asset forfeiture, which is effectively the government suing the assets. Back in July, the US government moved to forfeit everything it had seized from Dotcom in a new lawsuit with the catchy name USA v. All Assets Listed In Attachment A, And All Interest, Benefits, And Assets Traceable Thereto. As you may have guessed, Attachment A [pdf] is basically all of Kim Dotcom's money and posessions.

Back in November, the DOJ argued that it should get to keep all of Kim Dotcom's money and stuff because he's a "fugitive", which is a bizarre and ridiculous way to portray Kim Dotcom, who has been going through a long and protracted legal process over his potential extradition from New Zealand (though he's offered to come to the US willingly if the government lets him mount a real defense by releasing his money). Dotcom's lawyers told the court that it's ridiculous to call him a fugitive, but it appears that Judge Liam O'Grady didn't buy it.

In a ruling [pdf] that was just posted a little while ago, O'Grady sided with the government, and gave the DOJ all of Dotcom's things. You can read the full reasoning here and it seems to take on some troubling logic. Dotcom's lawyers pointed out, as many of us have, that there is no secondary copyright infringement under criminal law, but the judge insists that there's enough to show "conspiracy to commit copyright infringement." But the reasoning here is bizarre. Part of it is the fact that Megaupload did remove links to infringing content from its top 100 downloads list. To me, that seems like evidence of the company being a good actor in the space, and not trying to serve up more infringing downloads. To Judge O'Grady and the DOJ, it's somehow evidence of a conspiracy. No joke.
The government has alleged that the conspirators knew that these files were infringing copyrights, as evidenced by their exclusion of infringing files from the "Top 100" list. The "Top 100" list purported to list the most frequently downloaded files on Megaupload.... According to the government, an accurate list would have consisted almost entirely of infringing content, so the claimants "carefully curated" the list to make the site look more legitimate.... Additionally, the claimants regularly told copyright holders, including many U.S.-based organizations, that they would remove infringing content, when in actuality they only removed particular links to the files.... The actual infringing files remained on the Mega-controlled servers and could be accessed from other links.
As for that latter part, there are tons of perfectly legitimate reasons to only remove the links and not the underlying files. If Megaupload was doing deduping, then some version of the same file could be perfectly legitimate. Let's take an example: say that you and I have an MP3 of a Katy Perry song. I upload it to Megaupload to keep as a backup. You upload it to distribute to the world. Megaupload dedupes it, and just has the file stored one time. Your link could be potentially infringing if you distribute unauthorized copies, whereas my copy may be a legitimate personal backup. Given that, Megaupload should only delete the links that are called out as infringing, rather than the underlying files, which -- depending on their use -- may or may not be infringing. But the court just takes the DOJ's version and says "good enough for me."

The court also has no problem with the fact that most of the assets aren't in the US, noting that since some of the "conspiracy" took place in the US, that's good enough. It more or less brushes off the concerns raised by Dotcom and the other defendants that this appears to violate existing treaties between New Zealand and the US -- basically saying that because Dotcom refuses to come to the US, it's not "punitive." Huh? On top of that, the judge says that taking all of Dotcom's assets shouldn't interfere with the legal process in New Zealand, because the New Zealand courts could (yeah right) reject the DOJ's request after this ruling to hand over Dotcom's assets.

Then we get to the whole "fugitive" bit. Judge O'Grady notes that the statute does allow him to call anyone who "declines to enter" the United States a fugitive, and argues that Dotcom fits that description. Furthermore, he actually argues that Dotcom's offer to the DOJ to come willingly to the US if the money is freed for his defense actually works against Dotcom, and gives weight to the fugitive claim:
As demonstrated, Dotcom need not have previously visited the United States in order to meet the prerequisites of § 2466. The statute is satisfied where the government shows that the claimant is on notice of the criminal charges against him and refuses to "enter or reenter" the country with the intent to avoid criminal prosecution. Because the court assesses intent under the totality of the circumstances, it is certainly relevant that Dotcom has never been to the United States and that he has lived in New Zealand since 2011, where he resides with his family. This tends to show that he has other reasons for remaining in New Zealand besides avoiding criminal prosecution. However, the existence of other motivations does not preclude a finding that he also has a specific intent to avoid criminal prosecution. Dotcom's statements, made publicly and conveyed by his attorneys to the government, indicate that he is only willing to face prosecution in this country on his own terms. See Technodyne, 753 F.3d at 386 (2d Cir. 2014) ("The district court was easily entitled to view those [requests for bail], evincing the [claimants'] desire to face prosecution only on their own terms, as a hallmark indicator that at least one reason the [claimants] declined to return in the absence of an opportunity for bail was to avoid prosecution"). Dotcom has indicated through his statements that he wishes to defend against the government's criminal charges and litigate his rights in the forfeiture action. If it is truly his intent to do so, then he may submit to the jurisdiction of the United States.
In short, damned if you do, damned if you don't. This is the justice system, ladies and gentlemen. The DOJ gets to seize and keep all your money, and merely asking for access to it to fight to show your innocence is used as a reason to allow the DOJ to keep it. So he comes to the US and has to fight criminal charges without his own money, or he stays in New Zealand and the government uses it as an excuse to keep all the money. How is any of this even remotely fair? Where is the "due process" in totally handicapping Dotcom from presenting a defense?

Again, it is entirely possible that Dotcom and the others broke the law -- though the case certainly does look pretty weak to me. But what's really astounding is how far the DOJ appears to want to go to make it absolutely impossible for Dotcom to present a full defense of his case.

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White House Releases Draft 'Privacy' Bill That's Not Very Good (Privacy)

by Mike Masnick

from the let's-try-again,-shall-we dept on Friday, February 27th, 2015 @ 6:23PM
It's been talked about for a while, but on Friday, the White House released a draft of what it's calling a "Consumer Privacy Bill of Rights." Conceptually, that sounds like a decent idea, but in practice? Not so much. Yes, it's just a draft, but it's got a lot of vague hand-waving, and basically no one seems all that thrilled about it, either from the privacy advocate side or the tech company side. Also, it doesn't even address the biggest privacy concern of all: government surveillance and snooping.

Privacy is, of course, one of those things that can be rather tricky to regulate, for a variety of reasons. Many attempts turn out badly, and don't really do much to actually protect privacy -- while sometimes blocking legitimate and useful innovations. While we're big supporters of protecting one's privacy we're at least somewhat concerned about legislation that appears to be pretty sloppy, and not all that well defined or thought out. This feels like a "we needed to do something, so here's something" kind of draft bill, rather than a "here's a legitimate problem, and here's how to fix it." It feels like a lost opportunity.

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DailyDirt: Big Bones Are A Myth, But Obesity Has Legit Causes (Studies)

by Michael Ho

from the urls-we-dig-up dept on Friday, February 27th, 2015 @ 5:00PM
Some people are naturally skinny and able to eat almost anything they want without gaining weight. Obviously, there are also plenty of folks who need to watch their diets very carefully and exercise regularly to prevent unhealthy weight gain. The causes for obesity are not well understood, and while many observers like to say it's obvious that people need to expend more calories than they consume, the challenge of doing so isn't as simple as it sounds for many. There aren't any miracle diets or drugs, but as we study obesity and understand it more, there could be more palatable treatments someday. If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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