This week, we've got another first place winner for insightful from That One Guy, who also notably took seven out of the top ten insightful spots overall. The top comment was an excellent response to the many ludicrous claims about the public's broadband needs:
Saying that no one needs a 25 Mbps connection because a single user/service won't use it completely is rather like saying that there's no point in building multi-lane roads or highways because a single car will never be able to take up more than one lane.
In second place, we've got an anonymous comment on a related topic: the States that are beginning to realize how self-serving AT&T's protectionist broadband legislation has been. As this commenter noted, that really should tell you something:
Government, local or otherwise, isn't exactly noted for efficiency or economy, so if they can provide broadband cheaper and more efficiently than a huge ISP with all the economies of scale... Well, you've got to wonder just how many hundreds of percent profit AT&T is making on their crap, don't you?
For editor's choice on the insightful side, since That One Guy dominated the leaderboard, it seems only fair to include one more of his comments. This time, it's an attempt to cut through the crap of the repair monopoly created by anti-circumvention provisions:
Companies should be limited to two options:
They aren't selling their product, they are only licensing it's use, in which case they are legally barred from referring to the transaction as a sale, maintain limited rights over the product such that they can prohibit people from fixing or modifying it themselves, but are also required to do so themselves within the scope of the license(product breaks, they have to fix it, customer loses their copy they have to replace it).
Product has been sold, and the company no longer has any rights or control over it, other than limited rights with regards to things like prohibiting reproductions and sales(not to be confused with re-selling the product, which is allowed). Customer is allowed to modify, change, give away or sell the product as desired, and the company has no ability to stop them. At the same time, the company has no obligations beyond the point of sale, such that if the product breaks unless it's under warranty they don't need to fix it, if the customer loses it they have no obligation to replace it.
Next, we head all the way back to last week's comments post, where David had an observation about the sorry state of copyright:
Isn't it fun that Hitler's "Mein Kampf" is now in the Public Domain and everybody can send around copies while Martin Luther King's "I have a dream" speech will likely never be legally copyable?
That's the way we build our future.
Over on the funny side, first place goes to an anonymous commenter on our post about the latest wacky legal threat to hit Techdirt, and our response to it. One commenter had an excellent suggestion:
You guys should sell popcorn in the Techdirt store.
In second place, we've got rw with a response to our call for ideas about the TSA's potential response to the laptop bomb in Somalia:
All laptops must have their batteries removed and shipped separately to the destination ... or wherever the airline decides to send it.
TSA will check your laptop for downloaded music and send a compiled list to the RIAA for billing.
TSA will check your laptop for downloaded TV shows and movies and send a compiled list to the MPAA for billing.
TSA will check your laptop for downloaded books and send a compiled list to the Big 5 publishers for billing.
TSA will check your laptop for TOR and will send your information to the DEA for inspection. Also, your laptop will be confiscated and sold on Ebay as seized property.
TSA will check your laptop for VPN and encryption software and will send your information to NSA, FBI and CIA. If you are using full disk encryption, you will be detained until you decrypt the drive and they can copy the contents.
TSA will ban taking all electronic devices bigger than their hand onto the airplane. Such items must be checked, for which the airlines will charge a fee to ensure their safe return. Use of the electronics on the airplane at any time will make you subject to arrest, fine and general ridicule.
And finally, it's Anonymous Anonymous Coward with a "multivariate solution":
I predict that the TSA will enhance efforts to cross breed octopuses with emus and bloodhounds. The resultant being will be an eight armed search engine that can sniff out whatever the handlers desire to take home while keeping its head buried in the sand.
That's all for this week, folks! Techdirt is off tomorrow for President's Day, and back to our regular posts on Tuesday.
Five Years Ago
This week in 2011, we saw some great stuff. David Guetta suggested "beating" piracy by embracing free music; Neil Gaiman explained how he went from fearing piracy to believing it's incredibly good; the Khan Academy was moving to leverage the power of BitTorrent; and a study from the Japanese government showed that anime piracy might be boosting sales.
But, on the flipside, we saw even more awful stuff. One rapper sued multiple companies for giving him lots of free promotion; the MPAA was lobbing all sorts of threats at Google over file sharing and suing Hotfile; a report from the IP Czar sounded like it was largely written by pro-copyright lobbyists; and Sony was going nuts over the PS3 jailbreak video, demanding the identity of anyone who watched it even while being tricked into tweeting the critical jailbreak code itself.
Ten Years Ago
Five extra years doesn't seem to change much. This week in 2006, even while some artists were realizing you could make money giving away free music and the evidence was showing that movie piracy doesn't reduce sales, plenty of people were still trying to fight this imagined enemy with restrictive licensing terms that kill the value of the product and set-top movie boxes that cost a fortune despite not offering much.
Newsweek, for some reason, was praising Rupert Murdoch as a digital visionary based largely on News Corp's acquisition of MySpace (which went wonderfully, right?) One look at MTV's efforts to compete was enough of a reminder that old media really struggles to "get" new media.
Fifteen Years Ago
This week in 2001, Napster was in limbo. It was unclear when its paid, licensed offerings would be arriving, while some were still arguing that it should remain free. Then the word came down that the final ruling on Napster from the 9th Circuit would be arriving the following Monday (so we'll check in on that next week, naturally).
Wi-Fi was on the rise, but still had some security-related kinks to work out, and mobile innovation was orbiting the still-unborn iPhone with ersatz mashups of PDAs and phones. E-books were starting to make their mark, online shopping seemed due for its true rise, and home networks remained less common than anticipated.
Also, in one of the first instances of a point we'd go on to make many times, we pointed out that content isn't necessarily king, and connectivity matters a lot.
One-Hundred And Eighteen Years Ago
The justice system, the government, the national security apparatus, the media, the public, espionage, free speech, libel — they are all intersecting topics of interest here at Techdirt, and perhaps no incident in history brings them all together in as sharp a focus as France's Dreyfus Affair. The details of this infamous miscarriage of justice are far too numerous and intricate to recount here, but one of the most important aspects of the whole thing was J'Accuse, an essay published by Émile Zola as a direct attack on the government, which landed him on trial for defamation starting on February 7th, 1898.
Awesome Stuff: Beyond Chiptunes (Innovation)
My criteria for the projects in these posts is simple: I look for things that make me say "hey, that's pretty awesome," whether or not I'm entirely sure if they need to exist. But once in a while something makes me say "hey, that's really awesome" even though it definitely doesn't "need" to exist, and the Ming Micro 8-bit video synthesizer is one of those cases.
Chiptunes are fuelled by a kind of sonic nostalgia: the desire to take the infectious bleeps and bloops of old 8-bit game consoles and use them to create new compositions. Off in another part of the music world there's the video DJs, using high-end live editing equipment and advanced visualization algorithms to mix and modify images alongside the music. The Ming Micro brings the two together: it's a real-time chip graphics engine built on a compact Arduino board. What does a "chip graphics engine" do? Well, in short, it's a visual synthesizer:
Awesome, right? The Ming Micro is entirely controlled by MIDI, the standard language used for music devices and synthesizers. It hijacks the channels normally used for bending notes and altering synth parameters and applies them to live-generated visuals which it outputs in NTSC video at 240p — the completely authentic look of retro consoles. MIDI is widespread and highly customizable, meaning the Ming can be controlled with knobs and sliders, "played" on a piano, and even integrated into a larger MIDI music workflow to interact with instruments. It even includes some basic chiptunes synthesis of its own, with a pair of square-wave generators and a noise generator.
It's not just for producing abstract dances of garbled pixels (though it's entirely capable of that) — it can incorporate loadable graphics packs from an SD card. The graphics can be built from scratch, even in something as simple as Notepad, since they are stored in a special ASCII-art format, and then they can even be modified and re-written live via MIDI. The possibilities are pretty much endless.
Now, in fact, the Ming Micro isn't the first device to do this — it's actually a successor to the Ming Mecca, which is even more powerful. But there's a critical difference: while the Mecca clocks in at close to a thousand bucks, the Micro is a mere $200. Essentially, it's the engine from the heart of the Mecca — rather than coming with a massive pre-designed control panel, it's just the synthesis unit, ready to be plugged in to just about any MIDI device and/or a PC. (The "or" is worth noting: the Micro can do lots of stuff all by itself without ever touching a USB port, but the associated control app unlocks a whole lot of more advanced functions and settings). The low price point makes it available to a whole world of creators who probably weren't in the market for a $900 Mecca, and I'm excited to see what they do with it.
Ruling says GCHQ hacking warrants need not name specific individuals - means OK to hack entire orgs/govts/companies: pic.twitter.com/HByqNOVq1l— Ryan Gallagher (@rj_gallagher) February 12, 2016
“The IPT has decided that GCHQ can use ‘thematic warrants’, which means GCHQ can hack an entire class of property or persons, such as ‘all phones in Birmingham’.This is an unfortunate decision, if not that surprising. But yet another reminder that perhaps the UK is a dangerous place for technology firms to do business these days.
“In doing so, it has upended a longstanding English common law principle that such general warrants are unlawful. Allowing governments to hack places the security and stability of the internet and the information we exchange on it at stake.”
The government has made one last attempt to screw over a victim of an IRS bank account seizure. The screwing began in December of 2014, when the IRS -- despite stating it would not perform forfeitures if there was no clear evidence of wrongdoing -- lifted $107,000 from convenience store owner Lyndon McLellan. This was yet another one of the IRS's "structuring" cases, predicated solely on the fact that multiple deposits under $10,000 were made. ($10,000 triggers automatic reporting to the federal government.)
After the IRS announced it would not be pursuing questionable structuring seizures -- thanks mainly to several rounds of negative press -- it still continued to pursue McLellan's case, despite IRS Commissioner John Koskinen telling a Congressional subcommittee that this was exactly the sort of case the IRS would no longer be pursuing.
The prosecutor in charge of McLellan's case was less than enthused about the public discussion of the McLellan "investigation." He claimed the public discussion only made IRS investigators angrier and more likely to act vindictively (I'm paraphrasing) and claimed the "final offer" would only be 50% of the seized funds.
The "final offer" turned out not to be all that "final." The IRS eventually dropped the case and returned all $107,000 to McLellan. However, it did not feel McLellan was entitled to compensation for legal fees because he did not "substantially prevail" in his case against the IRS seizure.
The government's argument against the awarding of fees was basically nothing more than it illustrating how easy it is for it to rig the game. All it takes is a more sympathetic -- or less attentive -- judge.
The government tried to dismiss the case without prejudice, knowing that caselaw would side with it on the denial of fees.
Under CAFRA (Civil Asset Forfeiture Reform Act), a claimant can recover his reasonable attorney fees and litigation costs only if he has "substantially prevailed" in a civil forfeiture proceeding. 28 U.S.C. § 2465(b)(1 ). A number of courts have held that a claimant has not substantially prevailed where the forfeiture proceeding was voluntarily dismissed without prejudice.The government argued in its brief that the case should only be dismissed without prejudice, raising several of its own claims as apparent legal strawmen, but refusing to address the solitary argument raised by McLellan -- that dismissal without prejudice would preclude him from seeking legal fees.
Indeed, this court can find no examples of any court reaching the opposite conclusion. Those courts that have considered the issue primarily rely on the Supreme Court's rationale regarding fee-shifting provisions found in Buckhannon Bd & Care Home,. Inc. v. W Va. Dept of Health & Human Res., 532 U.S. 598 (2001). In Buckhannon, the Court held that prevailing party status requires an "alteration in the legal relationship of the parties." Id at 605. Thus, an enforceable judgment on the merits and a court-ordered consent decree carry the necessary "judicial imprimatur" to convey prevailing party status, while a voluntary change in a party's conduct -- despite being inspired by a lawsuit -- does not.
Certainly, the damage inflicted upon an innocent person or business is immense when, although it has done nothing wrong, its money and property are seized. Congress, acknowledging the harsh realities of civil forfeiture practice, sought to lessen the blow to innocent citizens who have had their property stripped from them by the Government. Through CAFRA, Congress provided for relief in such cases. This court will not discard lightly the right of a citizen to seek the relief Congress has afforded...Last-minute screwing averted. McLellan has a chance to recover $22,000 in legal fees along with any interest accrued on the $107,000 while in the government's possession. The Institute of Justice, which took on McLellan's case, is hoping this decision will aid them in its battle to recover fees from another questionable IRS seizure.
Therefore, a voluntary dismissal without prejudice would likely preclude prevailing party status under CAFRA, depriving Claimants of their right to bring a claim under that statute. Further, the court considers this likelihood of deprivation great enough to constitute a substantial legal prejudice. Accordingly, this action is DISMISSED with prejudice.
The Institute Justice is seeking CAFRA compensation in a similar structuring case involving Carole Hinders, an Iowa restaurant owner who got her money back after I.J. took up her cause. The U.S. Court of Appeals for the 8th Circuit will hear oral argument in that case next Tuesday. "The government cannot turn a citizen's life upside down and then walk away as if nothing happened," says Wesley Hottot, an I.J. attorney who is representing Hinders. "Now that Lyndon has been vindicated, we look forward to holding the government to account in Carole's case as well."Hinders' interest recovery should certainly be larger, if not the legal fees themselves. All told, the IRS seized $315,000 from the owner of a small, cash-only restaurant -- again, based on nothing more than sub-$10,000 deposits that traced back to a wholly legal enterprise.