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DailyDirt: No More Urban Legends Of Waking Up In A Bathtub Without Your Kidneys... (Bleeding Edge)

by Michael Ho

from the urls-we-dig-up dept on Monday, April 20th, 2015 @ 5:00PM
There are plenty of ethical issues with organ transplants and how to handle the undersupply of donors. Hopefully, medical science is getting advanced enough to grow organs and eliminate the shortage of organs for patients who need them. Here are just a few stories about organs in modern medicine. After you've finished checking out those links, take a look at our Daily Deals for cool gadgets and other awesome stuff.
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Virginia's Top Court Refuses To Unmask Anonymous Yelp Reviewers, But Not For First Amendment Reasons (Legal Issues)

by Tim Cushing

from the technically-a-'win' dept on Monday, April 20th, 2015 @ 3:36PM

The long-running defamation suit against anonymous Yelp reviewers -- brought by Hadeed Carpet Cleaning -- finally has produced some good news… sort of. Hadeed's lawsuit defines "problematic," seeing as it both threatens anonymous speech and is predicated not on actual defamatory statements, but on the allegations that the reviewers were never actual customers of the business. Hadeed has argued that a review from a non-customer is defamation in and of itself, which obviously contains some very negative implications for free speech -- anonymous or not -- if he succeeds in his legal efforts.

Two lower courts chose to apply Virginia state law rather than the Dendrite Rules, and ordered Yelp to turn over identifying information. That decision was appealed by Yelp, and the state's Supreme Court has responded by rejecting Hadeed's unmasking request… but not for First Amendment reasons. Instead, its decision is based on a technicality -- one that does little to ensure the future protection of anonymous speech.

[T]he Virginia Supreme Court issued its ruling (PDF) in favor of Yelp, finding that the company doesn't have to disclose any user information, because the lawsuit shouldn't have been filed in Virginia in the first place.

The court's decision to focus solely on the issue of jurisdiction means that the more important public policy argument—whether the Yelp reviewers have a right to anonymous speech in this case—goes unaddressed.
While it is helpful that the court has made it clear that Virginia entities don't possess subpoena power over non-residents, that's pretty much the extent of the good news for Virginia residents. The other silver lining is that if Hadeed continues to pursue these reviewers, he'll have to do it in California, where he'll need to meet a higher standard if he hopes to obtain any identifying information.
"Although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win,” said Paul Levy in a statement. "If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence."
Now, the question remains as to whether Hadeed will continue his unmasking efforts in a less-friendly venue. Considering he doesn't dispute the content of the reviews -- just the legitimacy of the reviewers -- this would seem to be an obstacle not worth surmounting.

Paul Levy, however, says Hadeed may have little choice but to pursue this in an unfavorable venue because previous statements leave his company little choice but to continue on its quest to be proven "right."
[I]n light of Hadeed’s previous public statements, it is hard to understand how it could not go forward in California. It took advantage of the pendency of this litigation to mount a public relations offensive portraying itself as an innocent victim of Yelp reviews, making a variety of strong claims about how seriously its business was harmed by negative reviews and speculating about whether Yelp was an “instrument for defamation.” It managed to manipulate a number of reporters at respectable publications into repeating its accusations as truths. And although some of its legal papers were circumspect in admitting that, based on its reviews of its customer database it could do no more than “wonder” whether the Does whom it sued in this case were really customers, in other places it made the affirmative assertion that there was a sufficient basis in its customer database to assert that the reviewers were, in fact, not customers.



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Most Cyberattacks Are Phishing Related, Not Sophisticated Technical Attacks (Privacy)

by Mike Masnick

from the so-why-do-we-need-information-sharing? dept on Monday, April 20th, 2015 @ 2:33PM
To hear politicians and the media talk about things, "cybersecurity" threats are some sort of existential threat that can only be stopped by giving the government more information and more control over our data. There is, of course, little to actually support that notion. And, two new studies show that (as has been the case for decades), the real threats are not because of super sophisticated technology and tools for hacking, but rather because end users are fallible and IT folks don't do a very good job locking doors (hat tip: WarOnPrivacy):
But two deeply researched reports being released this week underscore the less-heralded truth: the vast majority of hacking attacks are successful because employees click on links in tainted emails, companies fail to apply available patches to known software flaws, or technicians do not configure systems properly.
In fact, the real problem tends to be that people are still easily fooled by phishing emails:
In the best-known annual study of data breaches, a report from Verizon Communications Inc to be released on Wednesday found that more than two-thirds of the 290 electronic espionage cases it learned about in 2014 involved phishing, the security industry's term for trick emails.

Because so many people click on tainted links or attachments, sending phishing emails to just 10 employees will get hackers inside corporate gates 90 percent of the time, Verizon found.
And, then, of course, if the IT staff hasn't done much to secure things inside the gates, the hackers get the run of the place.

Stopping phishing is definitely a difficult problem, but it's difficult to see how that's one that's solved by giving the NSA more of our data. Of course, none of this should be new or surprising if you spend any time at all in online security realms. "Social engineering" has always been the most effective way to get into systems. But hyping up the fact that people are gullible and can be tricked into giving up their passwords isn't very sexy and doesn't get big companies and governments to shovel hundreds of millions of dollars at solutions. Freaking people out about sophisticated technology (that isn't nearly as effective) being used to launch hack attacks seems much sexier (and profitable).
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Designer Issues Takedown, Cease And Desist Over Periodic Table Of HTML5 Elements (Copyright)

by Tim Cushing

from the not-really-yours-to-take-down,-is-it? dept on Monday, April 20th, 2015 @ 1:36PM

Anyone can have an idea. Multiple people can independently have the same idea. It's the expression that counts, but Alara Mills, the creator of one version of a periodic table of HTML5 elements, seems to think she should be able to curb other expressions of this idea.

Today I received a DMCA takedown request against my personal website over a trivial GitHub project that involves a periodic table layout and information about HTML5 elements.
The takedown request was preceded by an "impersonal email" from Alara Mills -- a cease and desist letter loaded with all sorts of scary claims about thousands of dollars being potentially at stake.
“You neither asked for nor received permission to use the Work… nor to make or distribute copies of it. Therefore, you have infringed my rights under 17 U.S.C. Section 101 et seq. and could be liable for statutory damages as high as $150,000 as set forth in Section 504(c)(2) therein.”
As Mike Riethmuller points out, he had never seen Alara Mills' version of this HTML5 table. His was inspired by another person's (Josh Duck) and was mainly just an exercise in CSS, rather than some sort of cottage industry designed to undercut the only thing Alara Mills offers at her website.

Here's a thumbnail version Alara Mills' HTML5 periodic table of elements, which we're posting to provide commentary on her copyright claims (since she appears to be very litigious about anyone doing anything -- we'd like to suggest she do some studying of fair use before complaining about this usage):

Because Mills is so protective of this product, there's no way to get a closer look at the arrangement of the elements to verify whether or not Riethmuller "copied" her layout.

Riethmuller's version, however, looks nothing like hers.

And, as he states in his post, it's clearly inspired by Josh Duck's:

Duck's version is no longer live because Alara Mills sued it out of existence. Mill's lawsuit claims that somehow Duck got ahold of an earlier version of her chart, which looks like this:


Duck's bears more resemblance to this than her finished product, but it's still not an exact copy. Besides, it's unclear what "copyrightable elements" Duck's could have possibly copied. The periodic table itself is not (and it's certainly not the creation of Alara Mills). The HTML 5 elements are not. The color arrangement, maybe? But those are different. The HTML5 logo is not. What little that might be protectable in Mills' effort is clearly not in Duck's. It is merely the same idea -- and ideas are not copyrightable.

And the link between Duck and Mills is extremely tenuous. Here's what Mills' lawsuit presents as "evidence" that Duck infringed on her table.
Mills emailed a copy of her prospectus to Kirk Kazanjian on July 12, 2010, which contained a derivative work of the HTML Table of Elements in order to receive initial feedback from him before pursuing book publishers. Kirk Kazanjian is a literary agent/former co-worker of Mills. Mills sells quick reference guides, wall-reference posters, and table posters displaying the HTML5 Elements Table™ graphic. A true and correct copy of the graphic submitted to Kirk Kazanjian in Mills’ email is attached hereto as Exhibit D.

[...]

On information and belief, Duck has been aware of Mills’ HTML5 Elements Table™ since July 2010, when Mills emailed a copy of the graphic to Kirk Kazajian.

On information and belief, Duck had access to Mills’ HTML5 Elements Table™
No further explanation is provided. The cease-and-desist that preceded the lawsuit is similarly vague. It simply makes an accusation but never explains how her legal representation (or Mills herself) arrived at this conclusion.
Ms. Mills submitted an earlier version of her chart within a book prospectus to a publisher in July 29, 2010, a copy of which is enclosed. This is the version that was possibly leaked to you in creation of your Periodic Table.
In other words, Mills found something on the internet that resembled something she thought was an entirely original idea, and the only conclusion she could come to was that somehow Duck must have gotten ahold of her submission. There are multiple more likely explanations for this -- chief among them being that things based on the periodic table will often resemble the periodic table as well as the hierarchy of coding terms being fairly rigid. These two elements mean that any independent creation utilizing both of these will bear heavy resemblance to another.

This was settled out of court. Duck agreed to remove the non-infringing chart in return for a dismissal with prejudice. The alternative would have been an expensive trip through the judicial system. Mills seems to feel that this acquiesence gives her the right to pursue creators of similar charts -- not similar to the version she sells -- but similar to the version she still maintains Duck "stole" from her.

Alara Mills, however, would rather not talk about it. After engaging with her for a bit on Twitter, she suddenly deleted most of her tweets to me.


Fortunately, the deleted tweets have been preserved


Now, Riethmuller has never seen this "leaked" version. He's only (possibly) seen Duck's. But he's building on a lot more than Duck. He's building on the same foundation Mills did. Only he's not claiming his chart is somehow sacrosanct.
The information about each element was shamelessly stolen from the Mozilla Developer Network (MDN) and the layout is thanks to Dmitri Mendeleev. But luckily MDN and Dmitri are all about the learning and they support the community; as such I have much love for them both.
These two entities clearly inspired Mills as well, but no one went after her for utilizing the work of others. Riethmuller clearly didn't use hers as a starting point, but she thinks she can lock down an unoriginal idea and keep anyone else from expressing a combination of periodic tables and HTML5 elements that hews a bit too closely to hers. She's wrong, of course, and Riethmuller has filed a counternotice against her DMCA takedown. As of now, his table is still live at Github.

Riethmuller recognizes his work is not "original," but also that it's no "copy" of Mills' work. Unlike Mills, he wants people to build on his efforts, not consider it an endpoint that must not be remade, altered or otherwise moved forward.
I’d love to remake this using flexbox and update it with newer HTML elements and more detailed content. I’d love people to be able to fork it and learn more about creating challenging layouts with css. Or develop something new from this concept.
Riethmuller also points out how truly pointless creation would be if all creators acted like Alara Mills.
Imagine if we all received copyright challenges over something as tenuous a particular layout and subject matter. This would mean there could only be one single column web development blog (and not only that it would be a book).
That's how over-protecting creative works kills creativity. No one has a monopoly on ideas. Expressions can be protected but something as ordinary as a re-imagining of the periodic table isn't exclusive to one person. There are hundreds of periodic table "remixes" already out there, but apparently an HTML5 elements version won't be one of them. Here's another table inspired by Josh Duck that has been killed off -- perhaps by another threat from Alara Mills.

Mills doesn't "own" this idea, nor does she have any right to push these creations off the internet. But that's what she's been doing. She still has yet to answer my question as to the unsubstantiated claim that Duck had access to an unreleased version and has apparently rescinded her offer to tell me her side of the story. It doesn't take much to get the ball rolling on copyright trolling. All it takes is for someone to believe that only they could have arrived at this creative destination and that all others are simply infringers.


This story, however, has somewhat of a happy ending. Mills reached out to Riethmuller late in the day (a few hours after the half-deleted Twitter conversation took place) and apologized to him and withdrew her legal threats. According to Riethmuller, she appears to finally have realized that her claims of ownership over HTML5 period tables are extremely weak and that ambushing creators who are wholly unaware of her previous iterations (not that those supposed "copies," like Duck's infringed on that design either) with cease-and-desist orders does nothing but turn people against her -- and copyright in general.



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Is Merely Explaining The Streisand Effect To Someone A 'Threat'? (Free Speech)

by Mike Masnick

from the paranoid-much? dept on Monday, April 20th, 2015 @ 12:33PM
Ken White, over at Popehat, has a story on the ridiculous situation concerning how lawyer/psychotherapist Jose Arcaya is going after lawyer Scott Greenfield (whose work we often mention around these parts). The history of how it got this far is a bit convoluted, and you can read the full Popehat post for the details, but here's my shortened version: An apparently unsatisfied former client of Arcaya left a negative review of Arcaya on Yelp. Arcaya sued for defamation, arguing that being called "absolute scum" is not merely an opinion because of the use of the word "total" (which as far as I can tell is not actually used in the review -- though perhaps he means "absolute" or perhaps something was edited. Also, for the record, the review appears to call him "absolute scum" not "absolute scum bag" though I doubt the difference matters):
Regarding the matter of whether "absolute scum bag" should be deemed defamation per se rests with the present court. Mr. Boka tTots out a series of cases indicating the word "scum" and "scum bag" do not fall in that category. However, by adding the word "total" he impugns everything about me, including character and capacity to carry-out legal work. It coincides well with the Dillon standard of defamatjon per se: a maliciously intended attack on my professional capabilities, an all encompassing put-down (i.e., "absolute scum", not just "scum bag" Or "scum")...
Anyway, the former Arcaya client reached out to White, who in turn reached out to Greenfield. Greenfield then reached out to Arcaya, trying to explain to him, nicely, that suing over someone calling you "absolute scum" on Yelp is probably not a productive venture and might -- just possibly -- backfire, thanks to a little thing called the Streisand Effect. About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it. And yet, we keep discovering new lawyers who have no idea about it at all.

Now, some might take this as a friendly bit of advice about how a course of action could potentially backfire once it is revealed to the public. But Arcaya, apparently, took Greenfield's explanation of how the Streisand Effect works... and claimed that it was Greenfield threatening him with the Streisand Effect. In response, Arcaya subpoenaed Greenfield and defended this move by apparently arguing that Greenfield was somehow threatening him in describing how the Streisand Effect tends to work, and claiming that Greenfield was somehow associated with "an illegal gang."
Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise. Rather than calling me Greenfield should have contact [sic] the Attorney General's office or the police to denounce what he had learned. Because of his failure to uphold the principle of propriety as a server of the law, I lodged a complaint the [sic] First Department's Discipline Committee.
Oh, right. Beyond just issuing the subpoena, Arcaya filed a wonderfully handwritten bar complaint against Greenfield -- for daring to explain a basic online phenomenon. Wow.
What's amazing is how frequently we've seen this kind of reaction. From Charles Carreon to Prenda Law, those who find themselves faced with the public reacting negatively to their own lawyerly overreactions assume that "the public" speaking out is some sort of "illegal gang" out to get them. They don't realize that it's not about them (at all), but rather the public exercising its free speech rights to criticize what the public believes is an abuse of power.

Either way, the idea that merely explaining the Streisand Effect to a lawyer who was about to step right into it is some sort of threat concerning a "criminal gang" that somehow violates proper lawyerly activities is so ridiculously laughable, that I'd argue it's even more ridiculous than flipping out and suing over someone calling you "absolute scum."

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