For this week's awesome stuff, we're trying out a slightly different format. Instead of gathering three new crowdfunded products, we're going to focus on just one and take a slightly closer look at its progress and prospects. Please let us know in the comments if you like this approach, or if you prefer the old format.
The Loxet is a device that installs in any car with a central locking system and, along with an accompanying iOS or Android app, allows you to lock and unlock the doors and control ignition access with your proximity to the car. It also bills itself as an advanced sharing system, allowing you to grant time-limited access to the car to other people.
For one thing, it's new. There are already plenty of proximity locks on the market, but they generally require a specialized fob on your keychain; there are already smartphone-controlled locks too, but they operate by button-press. Loxet appears to be the first smartphone-controlled proximity lock, or at least the first one that works with both iOS and Android (they make this latter claim on the Kickstarter page). The price also looks good — though all the super-cheap early bird deals are sold out, the standard Kickstarter price of $69 is still below the price of existing non-smartphone proximity lock systems, which tend to sit in the $80-200 range.
The way Loxet operates seems like it might come with some inherent issues. The device uses Bluetooth Low Energy, and in order to achieve full proximity operation on both iOS and Android, they have to use apps that repeatedly scan for connected Bluetooth devices at a time interval you set. To realize the full hands-off, out-of-mind potential of the system, that time interval will have to be pretty short — and I suspect it will have a noticeable impact on your phone's battery life and performance, though just how noticeable remains to be seen. For the time being, there aren't any obvious alternatives to this approach, at least not without sacrificing some capabilities.
With any wireless locking system, there's always one big question: is it secure? The last thing we need is someone whipping up an app to hack into people's cars via Bluetooth. Loxet would surely claim, in good faith I don't doubt, that the system is secure — but I'd like to see them call in some independent security audits and put the software in the hands of some white hat hackers before telling people it's ready to keep their cars safe. In fact, there's actually a disturbing lack of security information and discussion on the Kickstarter page, especially for an app that claims it will allow car-sharing via e-mail, SMS and QR code. With just under a month left in the campaign, this is the biggest thing the Loxet team needs to address.
For many years now, we've been writing about the need for ECPA reform. ECPA is the Electronic Communications Privacy Act, written in the mid-1980s, which has some frankly bizarre definitions and rules concerning the privacy of electronic information. There are a lot of weird ones but the one we talk about most is that ECPA defines electronic communications that have been on a server for 180 days or more as "abandoned," allowing them to be examined without a warrant and without probable cause as required under the 4th Amendment. That may have made sense in the 1980s when electronic communications tended to be downloaded to local machines (and deleted), but make little sense in an era of cloud computing when the majority of people store their email forever on servers. For the past few years, Congress has proposed reforming ECPA to require an actual warrant for such emails, and there's tremendous Congressional support for this.
And yet... it never seems to pass. The story that we keep hearing is that two government agencies in particular really like ECPA's outdated system: the IRS and the SEC. Since both only have administrative subpoena power, and not the ability to issue warrants like law enforcement, the lower standards of ECPA make it much easier for them to snoop through your emails without having to show probable cause. Last year, in a Congressional hearing, the SEC's boss, Mary Jo White, was questioned about this by Congressman Kevin Yoder, who has been leading the charge on ECPA reform. As we reported at the time, in the conversation, White clearly said that the SEC needed this ability or it would lose "critical" information in its investigations. You can see the conversation from 2014 below, where White (starting around 2:30) explains how vital this process is to the SEC:
Here's the key line:
"What concerns me, as the head of a... law enforcement agency, is that we not put out of reach of lawful process... what is often, sometimes the only, but critical evidence of a serious securities fraud.... And we use that authority quite judiciously, but it's extremely important to law enforcement."
What struck us as interesting last year was White admitting that the SEC appeared to regularly use this process, since she noted that it was "extremely important" and provided "critical evidence."
Fast forward to this week, and the same two players were involved in yet another Congressional hearing. You can
see that conversation here as well, with the critical point being made after about four and a half minutes, where White says some of the same stuff, about the privacy protections, and how even if the SEC used this process it still notifies the subscribers to give them a due process right to protest the subpoena... but also, oddly, seems to claim that the SEC never actually makes use of this process:
Here's the key line this time (the full response is a jumble of half sentences and unfinished thoughts, so it's a bit of a mess):
"While these discussions have been going on, to try to sufficiently balance the privacy and the law enforcement interests, we've not to date to my knowledge proceeded to subpoena the ISPs. But that, I think, is critical authority to be able to maintain -- done in the right way and with sufficient solicitousness and it's very important to the privacy interests which I do think can be balanced.
As I said, if you watch her entire response, it's a complete mess of half-finished thoughts, which seems rather typical of someone trying to sound like they're answering a question but not actually doing so. Later in the same answer, she insists that taking away this authority might take away an important tool.
So, we know that the SEC really wants to keep this tool. But last year it said it was "extremely important" and provided "critical evidence." This year, she's saying that the SEC isn't even using the tool. So, uh, which is it? Is this tool absolutely necessary for critical evidence, or is it not even being used by the SEC?
And, through all of this, the SEC still has not answered the most basic question: why can't it treat email the same way it has to treat paper documents under the 4th Amendment? That is, if it wants the document it can subpoena the end user for those documents. It does not get to route around the end user and subpoena a third party for those documents. So why can't it treat email in the same way?
It's no secret that the DMCA's section 1201 is extremely problematic. It's the "anti-circumvention" part of the law, that makes it illegal to circumvent "technological protection measures" even if it's for non-infringing purposes. This is a mess -- especially in an age of DRM trying to lock up everything. Try to get around it, and it's a violation of the law -- even if you're not trying to infringe on the underlying material. This is why Cory Doctorow is running a new effort to eradicate DRM with a target placed firmly on Section 1201.
So it's great to see Senator Ron Wyden and Rep. Jared Polis team up to introduce a bill to try to reform Section 1201. The full text of the bill (called the "Breaking Down Barriers to Innovation Act of 2015") has a lot of good things in it. It says that circumventing DRM or other technology protection measures for non-infringing reasons should no longer be considered against the law. It also expands other exemptions for things like security research and testing and reverse engineering. It also would automatically renew the exemptions the Librarian of Congress issues every few years so we don't have a repeat of the mess from a few years ago where the Librarian of Congress used the "triennial review" process to first grant an exemption to 1201 for unlocking mobile phones... and then to take that exemption away six years later.
Overall it's a good bill -- and I'm curious to understand how anyone could possibly push back on it, though Hollywood absolutely refuses to consider any changes to Section 1201. Unfortunately, it also seems unlikely that the bill has enough support to actually go anywhere. It seems a bit telling that Wyden released this bill the same day as the fast track bill, suggesting that it's a signal of some sort to people that he's not giving up on fixing copyright law. It's unlikely, however, that this gesture will mollify the folks who are upset that Wyden allowed the fast track bill to move forward in its current form.
California hasn't seen much rain over the past few years, and this drought is really serious now. Culprits of high water usage are popping up in various news stories: almond growers, farmers in general, swimming pools, golf courses, fracking, green lawns, car washes, wineries, etc, etc... Multiple billion-dollar infrastructure plans are underway to try to distribute water more efficiently or make more water available to major cities and key locations. However, the environmental impact studies for some of these huge water projects aren't complete -- and the requirements for them are being relaxed. Will Californians regret spending billions on some giant water tunnels?
We've mentioned many times the importance of anti-SLAPP laws in protecting people who are being sued solely to try to shut them up. It's still a travesty that we don't have a federal anti-SLAPP law but are reliant on various state anti-SLAPP laws. In case you're not familiar with them, SLAPP stands for "Strategic Lawsuit Against Public Participation." Anti-SLAPP laws basically allow people who are sued to quickly get lawsuits dismissed when it's obvious that the entire point of the lawsuit is to silence whoever is being sued, rather than for any legitimate legal purpose. For years, California was seen as having one of the best anti-SLAPP laws, but in recent years both Texas and Nevada upped the ante in anti-SLAPP laws, making them even stronger. Nevada's had a particularly useful feature: it would award "reasonable costs, attorney's fees and monetary relief" for defendants who were wrongfully hit with SLAPP suits. Basically, it provided a real deterrent against SLAPP suits.
However, just two years after unanimously passing that bill, the Nevada Senate has just unanimously repealed that important provision, in the form of SB 444. If you take a look at the bill, you'll see it explicitly repeals the fee shifting section. Apparently, some people didn't like the fact that they might have to pay up for filing bogus lawsuits trying to stifle speech. If that were all it did it, it would be tragic enough, but as Popehat clearly describes, the bill also undermines the rest of the anti-SLAPP law in pretty nefarious ways, making the existing rules toothless.
The bill still needs to go through the state assembly and be signed by the governor, but it's really disappointing to see Nevada move backward on anti-SLAPP laws just as much of the rest of the country is moving forward. Nevada provided a useful anti-SLAPP model, but apparently someone wasn't happy about that.
For those of us that think certain intellectual property laws have become overbearing and overly burdensome, one of the fun little exercises is to try and figure out where the best battlegrounds are for the fight against them. For instance, if you think cable television has become expensive, unfriendly, and overtly insane, you want to pay special attention to how professional sports are broadcasted now and in the future. If you want to find ground to battle expanded trademark protections and the crazy ways some companies interpret their rights, perhaps the alcohol and beer industry is a good place to draw a line in the proverbial sand. And for copyright? Well, there has always been a ton of focus on music and movies, but we may be seeing the world of video games emerge as the best ground from which to push back against the restrictions of antiquated copyright in the digital age.
Recently, we covered the spiderweb of nonsense one company had to go through just to try to publish a decade-old game, an attempt that was ultimately given up because the web proved to be too convoluted to navigate. Now, a Consumerist post explains how the DMCA and game publishers have (perhaps) unwittingly conspired to keep video games from claiming their rightful place within our cultural lexicon. The focus in the post is on section 1201 of the DMCA.
Section 1201 of the DMCA prohibits consumers from circumventing copyright protection measures put in place on games or any other digital media. So even if you can figure out a fix that will make a game work offline — much like the Sim City player who discovered a work-around against the disastrous always-online requirement — it’s against the law to do so, even if you’re not otherwise violating the copyright and even if this is the only way to make an abandoned game viable again. Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.
The piece then draws up two conflicting sides on section 1201 with regards to video games: the Entertainment Software Association on one side and the EFF on the other. The EFF has filed a request to have exemptions put in to section 1201 for gaming enthusiasts and, more importantly, for museums who would need to alter the game in order to make it in any way useful for exhibit. Take, for instance, any of the games that Electronic Arts, member of the ESA, decides to torpedo in whole or in part by shutting down game servers that support or check-in with the software. Or, perhaps more apropos, take any of the myriad of recent games that have been released as "always online," with copyright protections essentially amounting to a check in with servers not in the consumer's control. What happens when those servers are no longer worth supporting and are shut down? Well, some or all of the game becomes un-playable.
Now, let's leave aside the question of whether or not a consumer truly owns the game they buy under these scenarios. Let's also leave aside whether this kind of DRM or copyright protection is worthwhile at all. Instead, let's focus on how curators of games can handle this kind of thing in a world where DMCA section 1201 forbids the kind of tampering that would get around these restrictions. Should the ESA get its way and keep 1201 exemption-free, so-called abandoned games or abandonware becomes abandoned culture. And not, by the way, abandoned by the consumer or the public, which might include museums or academics with a strong interest in curating older games. No, the abandonment is committed by the game company itself, leaving a giant cultural hole that cannot be filled in because of a copyright law section those same companies are defending.
I've long argued that video games should be considered every bit the equivalent of movies and music. Try to find an equivalent to this problem with either music or movies, however, and you'll be at it quite a long time before you find anything meaningful. Netflix doesn't count, because you aren't buying a movie in Netflix. Same with music streaming services. The closest thing to it is probably how some e-readers can disappear books the consumer has purchased. The difference there is that the entire cultural deposit with a literary work likely isn't lost when that sort of thing happens, as it can be found and curated in other forms. That's not the case with old and classic games.
You want to find a place to take a stance against expanded copyright in favor of greater culture? That place is with games. The ESA knows this, which is why it is staunchly defending section 1201.
The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”
In fact, as the EFF points out, “hacking” in and of itself is completely legal.
“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”
And no cultural boon from games as a result. Section 1201, within the framework of gaming, can be said to be firmly anti-culture. No two ways about it.
With fifteen years under my belt writing about astroturf, think tanks, fauxcademics, and other dirty lobbying and policy tricks, I've always had a hobbyist's fascination with propaganda, especially online. When done "correctly," disinformation or guerrilla marketing is utterly invisible. When done poorly -- you get more comedic, ham-fisted attempts at information control, like Scientology's personal website's attacks on the new HBO documentary "Going Clear" or, well, ISP-paid sockpuppets who insist they fight net neutrality because they just love internet freedom so very much.
Of course, the one-two punch of violence and propaganda has for some time put Putin's Russia on another level of intellectual aggression. The Guardian recently penned a pretty fascinating interview with several members of Putin's internet troll army, paid to spam forums, websites, and social networks around the globe with pro-Putin propaganda. Working in twelve-hour shifts in a nondescript building marked "business center," hundreds of writers work in "humourless and draconian" teams dedicated toward supporting Putin's worldview for 45,000 rubles ($790) a month. And it often works:
"The scariest thing is when you talk to your friends and they are repeating the same things you saw in the technical tasks, and you realize that all this is having an effect,” the former worker said.
Marat, 40, worked in a different department, where employees went methodically through chat forums in various cities, leaving posts. "First thing in the morning, we’d come in, turn on a proxy server to hide our real location, and then read the technical tasks we had been sent,” he said. The trolls worked in teams of three. The first one would leave a complaint about some problem or other, or simply post a link, then the other two would wade in, using links to articles on Kremlin-friendly websites and “comedy” photographs lampooning western or Ukrainian leaders with abusive captions.
The staffers work around the clock creating and maintaining proxied, viable fake personas, sure to discuss their favorite music and recipes, peppered authentically with rants about the Kiev government being fascist. Hand in hand with tens of thousands of Twitter bots, they create a massive sound wall that makes Apple's reality distortion field look like a nineteenth century circus performance. The Guardian points to websites like this one set up with Internet memes to make mocking Putin opponents that much easier:
"Many of them have obvious racist or homophobic overtones. Barack Obama eating a banana or depicted as a monkey, or the Ukrainian president, Petro Poroshenko, in drag, declaring: “We are preparing for European integration.” The trolls have to post the photographs together with information they can pull from a website marketed as a “patriotic Russian Wikipedia”, featuring ideologically acceptable versions of world events."
Of course, as Glyn noted earlier this week, the Russian government has moved to "clarify" existing law and is now declaring all internet memes illegal -- unless of course you're paid by the government to twist and distort the very fabric of online reality. It probably goes without saying that the United States certainly is no saint on this front (industry astroturfing or the media coverage of the Iraq war quickly leap to mind), but Putin's frontal-assault on the internet is starting to make Orwell's darkest predictions seem like playful childhood fiction.
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As you probably heard, last week there was a big story involving North South Carolina police officer Michael Slager being charged with murder for the shooting death of Walter Scott. Slager had told a story about how Scott had taken his taser. But, a few days later, a bystander's video of the incident was released and told a very different story. If you didn't see it, here is the video, which is rather graphic, seeing as someone is shot to death in the video.
We didn't cover this story, which surprised some -- since we frequently cover police brutality stories, with a special focus on stories involving cellphone videos being used to dispute the "official line" from police. However, this was one case where the issue had received so much press coverage that we felt we had little to add to the story.
The publicist who is apparently going around trying to charge for this (one assumes after being retained by Santana) has some interesting views on how this all works:
“It’s been allowed to be used for free for over a week now,” Max Markson, CEO of the Sydney-based Markson Sparks group, told the Daily News.
“Now it’s going to be licensed and now you have to pay for it.”
But there's a big problem with this plan, and that is known as "fair use." News reporting is one of the fundamental parts of fair use. Unfortunately, the reporter from the NY Times, Frances Robles, seems to have very little knowledge about fair use and relied on a ridiculously biased expert to argue otherwise. She spoke with Frederic Haber of the Copyright Clearance Center, an organization that goes around trying to license everything and is fundamentally against fair use. And yet, Robles insisted that "copyright experts agree" that fair use somehow no longer applies:
Copyright experts agreed that although news agencies are allowed to use even copyrighted material under what is called “fair use” clauses in the law that time period has passed.
Many actual copyright experts challenged Robles about this issue on Twitter, and she insists she spoke to two others besides Haber and they all agreed, though when questioned, she refused to name who those copyright experts were. And that's a problem, because all three of those copyright experts -- assuming Robles actually found three -- are wrong. There is no "time limit" element to fair use. At best someone might try to argue that after a certain period of time the piece was no longer newsworthy and thus fair use no longer applied, but that seems like a huge stretch.
“Fair usage for video exists and networks can still use it for a certain amount of time,” Markson further explained, “like with footage from the Olympics, but the fair usage fee is for people who want to use it again. And in the lead-up to the trial we expect there will be more requests for licensing.”
This makes no sense. There is no such thing as a "fair usage fee." Markson doesn't seem to have any idea how fair use works, and it's unfortunate that the NY Times report that many people are basing their own reporting on isn't any better.
There is plenty of case law that I'm sure any real "copyright expert" would have passed along to Robles had she asked them. Hell, just last year there was a good fair use ruling saying that Bloomberg was allowed to distribute a recording of Swatch's investor calls. The idea that time does away with fair use doesn't make much sense. There's a 1968 case in which Time Life sued Random House and others claiming that using stills from the famed Zapruder film of President Kennedy's assassination was infringing, but the court found it to be fair use, despite it happening years after the film was made (rather than weeks in the case of the Walter Scott video). Then there's the case involving video footage of the beating of Reginald Denny, in which the videographers sued CBS over their use and distribution of the footage (including that it was briefly broadcast on Court TV). Here again, courts found the use to be fair use noting:
We conclude that each factor, particularly the nature of the copyrighted work, weighs in favor of fair use except the substantiality of the use, which we treat as neutral. Accordingly, we agree with the district court that Court TV's use was protected, and we affirm the grant of summary judgment in its favor.
So it seems rather difficult to see how fair use magically disappeared, no matter what Frederic Haber or the mysterious other two "copyright experts" told Robles.
“At some point it’s not newsworthy anymore and you are using it for commercial benefit,” said Frederic Haber, a vice president and general counsel of the Copyright Clearance Center, a collective licensing organization that works on behalf of copyright holders such as The New York Times. The issue could change once the video is played in court during a trial, he said.
Robles later also seems more confused about how copyright works in suggesting that because Walter Scott's family gave the NY Times the video, it wouldn't be subject to these demands for payment:
The Times has used the video with the family’s permission and not received a cease and desist letter.
That sounds good but is meaningless. The Scott family doesn't have the copyright on the video. Santana does. They have no right to license it and the NY Times is clearly relying on fair use in its presentation as well.
Unfortunately, because most reporters don't really want to bother to understand the issue, many took the NY Times report and ran with it, insisting that, yes, media outlets now have to pay to continue using the video. Even the Poynter Institute, which should know better, ran with a headline saying that the "media must pay" to continue using the video. The article itself at least discusses the fair use issue, but the headline seems to ignore that.
I'm guessing that many big news organizations will just pay up, because it's cheaper than fighting, but they have every right to fight this attempt to undermine fair use. The video is newsworthy and its use in reporting is the kind of quintessential example of fair use that is often used to show how fair use works.
As you may recall, at the height of the SOPA fight fallout, MPAA boss Chris Dodd went on television and threatened to stop funding the politicians who didn't support the MPAA's copyright agenda:
"Those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake. Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake."
Given that statement, this little tidbit from the Sony email archives is interesting. It's Chris Dodd more or less demanding that all of the member studios donate $40,000 to Rep. Bob Goodlatte's re-election campaign. As you may know, Goodlatte is the head of the Judiciary Committee in the House of Representatives, and copyright falls under that committee. Even more to the point, despite the fact that there's an "Intellectual Property Subcommittee" (headed by Rep. Darrell Issa), Goodlatte has made it clear that copyright reform remains under his own personal mandate. In this email, Dodd notes that Goodlatte is coming to LA and there's a fundraiser -- and he asks each of the member studios to see if they can put together $40,000 for Goodlatte's campaign:
Subject: Goodlatte Victory Committee
As you know, for a number of months we have been discussing the political event that Chairman Goodlatte has asked our industry to host in Los Angeles. The event has now been scheduled for November 22. A copy of the invitation is attached. The Goodlatte staff is currently securing a location and I will send that information as soon as it is confirmed.
The event will be in support of the Joint Committee established by the Congressman called the “Goodlatte Victory Committee.” This event is important and in the best interests of our industry.
A number of you have had an opportunity to speak directly with the Chairman in the past few months, and I know you share my view that he is a good man and we are fortunate to have him at the helm of the House Judiciary Committee for the foreseeable future.
TIME IS OF THE ESSENCE and it is now incumbent upon us to work together to make this event a success. I need each of you to commit to attending the event and I would request that each studio raise $40,000 for the Victory Committee at this event.
So, please confirm that you plan to attend on the 22nd in Los Angeles, and that you will meet the per studio target of $40,000. It is incredibly important, in my view, that this event be a success and that we have a broad representation of studio executives in attendance. I will reach out to you later this week, but look forward to hearing from you in the meantime.
Now, to be clear, this sort of thing happens all the time. It's more a function of how money in politics works today. It wouldn't surprise me to find out that plenty of other companies in other industries do the same sort of thing -- though, generally speaking, it would be done by the companies themselves, not at the direction of a trade organization. Still, it's a bit of insight into how the process works that I figured some of you might find rather revealing.