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This Week In Techdirt History: October 15th - 21st (Techdirt)

by Leigh Beadon

from the more-copyright dept on Saturday, October 21st, 2017 @ 12:00PM

Five Years Ago

This week in 2012, we saw more copyright nonsense as South Park was sued over a character design and textbook publisher Pearson managed to take down 15-million student and teacher blogs with a single DMCA notice — but of course, being punished for a bad DMCA notice was and is almost impossible. As we approached the 30-year anniversary of the CD, we lamented the lack of music industry innovation, while the numbers continued to show that file sharers are also big media buyers. And Harvey Weinstein made an appearance on Techdirt — over an unhinged rant about piracy.

Ten Years Ago

This week in 2007 things weren't much different, though perhaps even sillier, with one law firm trying to use copyright to claim you can't look at its website's source code, a bunch of media companies claiming it's infringement to skip commercials, Congress pushing for anti-P2P laws with claims that P2P promotes identity theft, and the RIAA launching its lawsuit against Usenet.com. Amidst all this, YouTube made a major announcement and ContentID was born.

Fifteen Years Ago

And guess what? More of the same this week in 2002 — but it was a week when more people were noticing the problems. Some were (rightly) worrying about the future of expanding DRM, and talking about copyright law as the new prohibition and a tool that lets corporations destroy America's cultural heritage, and asking if we really want to put the dinosaurs in charge of evolution. Copyright defenders were hitting back weakly, with arguments amounting to "trust me" and "shut up, Gary Shapiro, we don't like you".

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NYPD Tells Judge Its $25 Million Forfeiture Database Has No Backup ((Mis)Uses of Technology)

by Tim Cushing

from the overpriced-by-at-least-$25-million dept on Friday, October 20th, 2017 @ 7:39PM

The NYPD is actively opposed to transparency. It does all it can to thwart outsiders from accessing any info about the department's inner workings. This has led to numerous lawsuits from public records requesters. It has also led to a long-running lawsuit featuring the Bronx Defenders, which has been trying to gain access to civil forfeiture documents for years.

The NYPD has repeatedly claimed it simply cannot provide the records the Bronx Defenders (as well as other records requesters) have requested. Not because it doesn't want to, even though it surely doesn't. But because it can't.

The department has spent $25 million on a forfeiture tracking system that can't even do the one thing it's supposed to do: track forfeitures. The Property and Evidence Tracking System (PETS) is apparently so complex and so badly constructed, the NYPD can't compile the records being sought.

Oddly enough, the Bronx Defenders has pieced together enough data from the NYPD's broken PETS (along with other public records) to at least point out the glaring discrepancy between what the department publicly claims it has in its forfeiture accounts and what the database says it does.

At the hearing, the NYPD claimed that it only legally forfeited $11,653 in currency last year — that is, gone to court and actually made a case as to why the NYPD should be taking this money.

[...]

In the accounting summaries which the Bronx Defenders submitted as part of its testimony, the NYPD reports that as of December 2013, its property clerk had almost $69 million in seized cash on hand. This amount had been carried over from previous years, showing an annual accumulation of seized cash that has reached an enormous amount. The documents also show that each month, the five property clerk’s offices across the city took in tens of thousands of dollars in cash, ultimately generating over $6 million in revenue for the department.

When pressed in court, NYPD experts claim the NYPD lacks the expertise to extract the sought data from its forfeiture database. These assertions are at odds with the NYPD's self-perception: that it is fastest and smartest law enforcement agency in the US (better than the FBI, in fact) and foreign governments should be grateful its officers and analysts are showing up uninvited at scenes of overseas terrorist attacks.

Somehow, these highly-trained officers are unable to extract data from a $25 million database. Maybe it's not the lack of talent. Maybe it's the lack of desire. Maybe the NYPD has zero interest in tracking this data because it doesn't want the public to see how much it has hoovered up or make it any easier for citizens to challenge forfeitures.

The lawsuit continues, with the NYPD continuing to top itself with each round of expert testimony. As Adam Klasfield reports for Courthouse News, the NYPD's $25 million database is worth even less than previously assumed.

New York City is one power surge away from losing all of the data police have on millions of dollars in unclaimed forfeitures, a city attorney admitted to a flabbergasted judge on Tuesday.

“That’s insane,” Manhattan Supreme Court Judge Arlene Bluth said repeatedly from the bench.

It is insane. There's no way around it. The assumption would be that a $25 million database has built-in redundancy. But of course it wouldn't. Not with the NYPD running it and not with its active disinterest in providing records to records requesters or having any accountability present in its forfeiture system.

And why should the NYPD fix it? From its perspective, this is fine. Data goes in and never comes out. If it all disappears because someone trips over the power cord, the NYPD suffers no negative consequences. Everything it has taken over the years defaults to the NYPD until proven otherwise by claimants. And that's going to be a lot tougher to do when the NYPD has no records related to the forfeiture.

The court is in no position to do anything about this. It can't order the NYPD to fix its system. All it can do is demand it comply with records requests and pay the legal fees of prevailing parties. But the NYPD can continue to run a useless system for the rest of whatever. The burden of proof in forfeiture cases is already shifted to claimants. A broken system places even more of a burden on those seeking return of their property, thanks to PETS being unable to confirm or deny existence of responsive records. It's GlomarDb and it makes a mockery of public records laws and due process simultaneously.

65 Comments

Multiple Titles Using Denuvo Cracked On Release Day As Other Titles Planning To Use It Bail On It Completely ((Mis)Uses of Technology)

by Timothy Geigner

from the don't-denuvo dept on Friday, October 20th, 2017 @ 3:42PM

If you've followed our series of posts about Denuvo, the DRM once claimed to be the end of video game piracy, you may have thought we had reached the end of its saga a couple of weeks ago when Denuvo-"protected" title Total War: Warhammer 2 was cracked and defeated within a day of its release. After all, once a game has been cracked in a time increment that can be measured in hours, you likely thought that was the finish line of Denuvo's lifespan.

You were wrong. In the past week or so, multiple games that used Denuvo have been cracked on the same day as their release, with most of them being AAA titles from big publishers.

This week's release of South Park: The Fractured but Whole is the latest to see its protections broken less than 24 hours after its release, but it's not alone. Middle Earth: Shadow of War was broken within a day last week, and last month saw cracks for Total War: Warhammer 2 and FIFA 18the very same day as their public release.

Those nearly instant Denuvo cracks follow summer releases like Sonic Mania, Tekken 7, and Prey, all of which saw DRM protection cracked within four to nine days of release. But even that small difference in the "uncracked" protection window can be important for game publishers, who usually see a large proportion of their legitimate sales in those first few days of availability.

With that window shrunk down to roughly zero days of protection for what is now multiple games coming out in a similar time period, it sure seems like the cracking groups have been able to replicate their successes in cracking this DRM with enough speed to make it wholly irrelevant. One imagines the folks behind Denuvo are at this point quite worried. And they should be, because even games that used Denuvo in their early-release versions are beginning to just drop it from their games as useless.

Then there's The Evil Within 2, which reportedly used Denuvo in prerelease review copies but then launched without that protection last week, effectively ceding the game to immediate potential piracy.

Now, the Ars post goes on to state that there have been rumors of a 5th release of Denuvo, with an update that the company hopes will once again render the DRM software something other than completely obsolete. But with publishers now dropping the software from their releases, even when they had fully planned on using Denuvo from the pre-release stage, you have to wonder just how much confidence any game publisher is going to have in release number 5.

Given the precipitous fall Denuvo has had over its first four releases, any confidence on display by the publishers or Denuvo itself would certainly raise my eyebrows.

17 Comments

Court Not Impressed With Sneaky Plan To Sell Patents To Native Americans To Avoid Review... But New Lawsuits Filed (Patents)

by Mike Masnick

from the and-on-and-on-and-on dept on Friday, October 20th, 2017 @ 1:35PM

A few weeks ago, we wrote about a hellishly sketchy plan by a drug company, Allergan, to avoid the process as known as "Inter Partes Review" of its weak patents. In the weeks since that post a bunch has happened, but before we catch you up, a refresher is important. One of the biggest problems of the patent system for years has been the US Patent Office's willingness to grant terrible patents. This is only partially the Patent Office's own fault -- as some of it is just the nature of how our patent system is designed. As it is, patent examiners have limited time to review patents, and all of the incentives are to approve them, rather than reject them (a rejection can be endlessly appealed, granting gets it off the examiner's plate and improves the "productivity" of the office). On top of that, there's no adversarial process -- an examiner only gets info on why the patent should be granted, and not reasons it shouldn't. In an age where unscrupulous patent attorneys push to patent absolutely everything and many view patents as a lottery ticket, you have a situation where an overwhelmed Patent Office is approving a ton of bad patents, and letting the courts deal with it down the road.

That, of course, has been a disaster for actual innovators who don't have time and money to waste in court fighting bogus patent lawsuits. In the last round of patent reform, the America Invents Act, in 2010, a small, but smart, change was added to the system: the IPR setup. The idea was that it was a way to get a tribunal at the patent office to take another look -- by creating the adversarial process that is lacking from the original patent review process. This enables third parties to raise issues about the patent to the tribunal -- called the Patent Trial and Appeal Board (PTAB) -- and lets the PTAB review whether the patent should have been granted in the first place. Many patent system supporters hate the whole IPR thing, because they don't like the fact that their bad patents can be more easily invalidated. It certainly cuts off one part of the patent troll shakedown game. The Supreme Court is currently considering a case right now to throw out the PTAB as unconstitutional, while Congress has been kicking around ideas to kill it as well.

In the meantime, though, some lawyers have come up with a truly sneaky, and truly awful "work around" that they've basically now productized. After a decision by the PTAB earlier this year to refuse to even hear an IPR request involving a patent held by the University of Florida after the University (a part of the state of Florida) argued "sovereign immunity", lawyers realized that anyone could get out of the IPR process if they just "sold" their patent to a government entity who could claim sovereign immunity. From there is was only a few logical leaps to realize that Native American nations could claim such sovereign immunity. Hence, the deal to "sell" Allergan's patents to the St. Regis Mohawk Tribe.

Basically everyone recognizes this is a sham sale. The St. Regis Mohawk Tribe has no interest in this patent. Or the other patents its now "buying." It just gets some cash, which the original patent holder finds worth paying because it helps them avoid the IPR process. Everything gets "licensed" back to the original patent holder anyway, so the actual transaction is quite clear: patent holders paying Native American tribes solely to avoid a review by the patent office of their sketchy patents.

When the Allergan deal became public, lots of people grew concerned. It seemed like such a naked attempt to game the system. The House Oversight Committee began investigating the issue, noting its serious concerns with what was happening.

On top of that, the issue flowed into the case involving the patents in question. Remember: the IPR process is handled at a special tribunal at the patent office. But there can still be lawsuits going on in parallel, and that's what was happening with Allergan in its patent fight against Teva Phramaceuticals (who is challenging the validity of Allergan's patents). The case still goes on no matter what happens with the IPR process, but Teva raised the issue of whether or not the Mohawk tribe now needed to become a plaintiff in the case too. After a pretty quick back and forth of papers flying in the court, the judge has, in fact, added the tribe as a plaintiff to the case, while issuing an order that raises serious concerns about this practice of laundering the patents through a Native American tribe to avoid IPR. While the court doesn't directly claim that the transfer is invalid, it certainly suggests the court does not look kindly on the practice:

The Court has serious concerns about the legitimacy of the tactic that Allergan and the Tribe have employed. The essence of the matter is this: Allergan purports to have sold the patents to the Tribe, but in reality it has paid the Tribe to allow Allergan to purchase—or perhaps more precisely, to rent—the Tribe’s sovereign immunity in order to defeat the pending IPR proceedings in the PTO. This is not a situation in which the patentee was entitled to sovereign immunity in the first instance. Rather, Allergan, which does not enjoy sovereign immunity, has invoked the benefits of the patent system and has obtained valuable patent protection for its product, Restasis. But when faced with the possibility that the PTO would determine that those patents should not have been issued, Allergan has sought to prevent the PTO from reconsidering its original issuance decision. What Allergan seeks is the right to continue to enjoy the considerable benefits of the U.S. patent system without accepting the limits that Congress has placed on those benefits through the administrative mechanism for canceling invalid patents.

If that ploy succeeds, any patentee facing IPR proceedings would presumably be able to defeat those proceedings by employing the same artifice. In short, Allergan’s tactic, if successful, could spell the end of the PTO’s IPR program, which was a central component of the America Invents Act of 2011. In its brief, Allergan is conspicuously silent about the broader consequences of the course it has chosen, but it does not suggest that there is anything unusual about its situation that would make Allergan’s tactic “a restricted railroad ticket, good for this day and train only.”...

Although sovereign immunity has been tempered over the years by statute and court decisions, it survives because there are sound reasons that sovereigns should be protected from at least some kinds of lawsuits. But sovereign immunity should not be treated as a monetizable commodity that can be purchased by private entities as part of a scheme to evade their legal responsibilities. It is not an inexhaustible asset that can be sold to any party that might find it convenient to purchase immunity from suit. Because that is in essence is what the agreement between Allergan and the Tribe does, the Court has serious reservations about whether the contract between Allergan and the Tribe should be recognized as valid, rather than being held void as being contrary to public policy.

The court doesn't go quite that far, noting that it doesn't need to determine this issue at this time, and the issue maybe better suited for the PTAB rather than federal court, but it certainly is noteworthy to see such strong language condemning the plan. Of course, that ruling was probably the least of Allergan's worries, as at the same time, the judge also invalidated the patents in question for obviousness. This post is about a different aspect of Allergan's sketchy plans, so we won't even bother digging into the 100+ pages in the judge's decision on this, other than to note that it appears to include even more sketchy behavior on the part of Allergan.

Of course, this is not stopping others from following in Allergan's footsteps. Just days after that court ruling, the very same "Mohawk Tribe" had magically teamed up with a company called SRC Labs, and filed a patent infringement case against Amazon and Microsoft. SRC Labs, if you're wondering, appears to be the estate of Seymour Cray, the founder of Cray Inc. (who was just involved in another important case unrelated to all of this). And, this is not the only such case.

It's hard to see this loophole lasting very long. Hopefully the IPR process survives the various challenges its facing, but on top of that, hopefully the PTAB and/or the courts, shut down this obvious gamesmanship for patent holders to avoid accountability.



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After Report Suggests It Ripped Off Taxpayers, Frontier Communications Shrugs When Asked For Subsidies Back (Broadband)

by Karl Bode

from the graft-ahoy dept on Friday, October 20th, 2017 @ 11:55AM

For years we've noted how if you want to really understand the dysfunction at the heart of the U.S. broadband industry, you should take a closer look at West Virginia. Like most states, West Virginia's state legislature is so awash in ISP campaign contributions it literally lets incumbent ISPs write state law, only amplifying the existing lack of broadband competition in the state. So when the state received $126.3 million in broadband stimulus funds, it's not particularly surprising that a report by the US Commerce Department's Office of Inspector General (pdf) found more than a few examples of fraud and waste.

More specifically, Frontier was accused of buying and storing miles of unused fiber to drive up costs, as well as the use of various "loading" and "invoice processing" fees to milk taxpayers for an additional $5 million. The report's findings come on the heels of previous reports that found Frontier and the state used taxpayer money on unused, overpowered routers and overpaid, redundant, and seemingly purposeless consultants. As is often the case with regulatory capture, efforts to hold anybody accountable for any of this have so far gone nowhere.

But after the Inspector General's report, the federal government decided it might be a good idea to at least ask for some of this misspent money back from Frontier and the State. According to the Charleston Gazette Mail, of particular interest were these additional "loading" surcharges, and the fact Frontier stockpiled 49 miles of unused fiber to drive up build costs:

"The Commerce Department letter cites findings that Frontier misled the public about the amount of unused fiber cable — called “maintenance coil” — the company installed across the state. The extra fiber, which is stored at public buildings and used for repairs, drove up the broadband expansion project’s cost. Frontier placed 49 miles of spooled-up, unused fiber in West Virginia, four times the amount the company had disclosed to state officials.The feds have ordered state officials to disclose whether the extra coil was included in the total miles of fiber the state claimed Frontier built with stimulus funds. The state also must get an “explanation from Frontier for the reason it misrepresented the maintenance coil mileage to the public,” according to the Commerce Department’s Aug. 21 letter.

This sort of stuff happens pretty much constantly in telecom as companies pay empty lip service to "bridging the digital divide." But whereas giants like Comcast, AT&T and Verizon have the lobbying and policy chops to obfuscate such graft, West Virginia is so dysfunctional Frontier doesn't even have to try. Case in point: a Frontier executive has spent years also employed as State Senate leader -- without anybody raising much of an eyebrow. That employee was only recently fired -- but only because he finally failed to oppose a bill Frontier wanted killed.

With that kind of support, it's not too surprising that Frontier executives say they won't be returning the misspent taxpayer money anytime soon:

"In a letter to West Virginia Chief Technology Officer John Dunlap this week, Frontier asserted that any funds the state might return to the federal government “are, of course, not recoverable from Frontier.”...Frontier also disputed the federal government’s determination that the state must return $4.7 million, urging the state to file an appeal. "To avoid the waste of millions of West Virginia taxpayer dollars, the [state] should appeal,” wrote Mark McKenzie, a Frontier engineer who oversaw the company’s role in the project.

Again, if you've tracked the similar reports bubbling out of the state for years, the $4.7 million the feds want returned is likely only the tip of the iceberg. But because state legislatures are often little more than glorified rubber stamps for the interests of giant telecom operators, it's less than likely that these inquiries result in anything vaguely resembling genuine accountability. As a result, West Virginia remains one of the least broadband-connected states in the union, a story of graft and regulatory capture that plays out in countless states across the country on a daily basis. This is, as they say, why we can't have nice things.

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