Back in 2011, we wrote about Kickstarter going to court to ask for a declaratory judgment that a patent held by ArtistShare (7,885,887) was invalid, and thus, that Kickstarter was not infringing. As we explained at the time, ArtistShare and its CEO Brian Camelio had been going around to various crowdfunding platforms asking them to pay up over the patent. Camelio, never one to hold back his opinions, explained that he was going after Kickstarter because he really just didn't like the company:
"As an artist myself, I feel that KickStarter may be hurting artists by focusing on 'donating money' rather than celebrating the artist for what they do. Their model does not build fan relationships but just continually asks for hand outs."
Even if you agree with that statement, that's completely unrelated to the question of whether the patent is valid or if Kickstarter infringed. And, indeed, the court has now ruled that the patent is, indeed, invalid. Thankfully, between the time of Kickstarter filing for declaratory judgment and this ruling, the Supreme Court's useful Alice ruling came out, making it clear that you cannot patent "generic" computer functions. The ruling in this case relies heavily on that ruling and rejects the patent as nothing more than an "abstract idea" around "patronage" which is not patentable:
The ‘887 Patent’s claims are directed to the concept of crowd-funding or fan-funding, i.e., raising funds for a project from interested individuals in exchange for incentives. Whether the abstract idea in play here is defined as “crowd-funding,” “crowd-based funding,” “fan-funding,” “incentive-based patronage,” “incentivized crowd-funding,” or some other combination of these words is of no moment: the abstract concept at play in the Patent remains the same. Claim 1 broadly recites a “system for marketing and funding one or more projects of an artist” ... and the specification describes the invention as “methods and systems for obtaining financing from interested individuals to produce a creative work in exchange for an entitlement from the author of the work” .... These claims are squarely about patronage — a concept that is “beyond question of ancient lineage.” ...
Moreover, this concept of incentive-based funding is incontestably similar to other “fundamental economic concepts,” and to other types of “organizing human activity,” both of which have been found to be abstract ideas by the Supreme Court and the Federal Circuit.
Later in the ruling, the judge notes that everything in the patent is "well-understood, routine conventional activities." That is, the very opposite of what is patentable.
Nothing about the ‘887 Patent transforms the concept of crowd-funding into patent-eligible subject matter. Beyond the abstract idea of patronage, the claims merely recite “well-understood, routine conventional activities,” by requiring either conventional computer activities or routine data-gathering steps.
It's good to see a nice clean ruling, though it's too bad this had to sit in court for more than three years, wasting tons of resources that could have been focused on more innovations for creators and innovators. And, of course, it might not be over yet, as Camelio has suggested that he may appeal the ruling.
Almost exactly three years ago, Mike wrote up a post that discussed Planet Money pulling together five economists with differing political views to see what they could all agree on. The result was several policy ideas that appeared to transcend politics if economics was the driving motivator instead of any kind of partisanship. The whole post is awesome, and has influenced my thoughts on economic policy and taxes to a large degree, but I came away from it with one general concept firmly in mind: tax what you want to discourage, don't tax what you want to encourage, and never tax innovation or the future.
A ruling by Chicago’s Department of Finance allows the city to add an extra nine percent tax onto “electronically delivered amusements” and “nonpossessory computer leases.” In an odd combination, buying a subscription to streaming media, such as Netflix or Spotify, would qualify, as would using a cloud computing platform, such as Amazon Web Services. Each would be subject to 9% tax; Chicago is the first major American city to levy a tax on either streaming services or cloud computing services.
Amusement taxes in and of themselves generally violate the concept I highlighted in the opening. After all, if you're a municipality, taxing fun is essentially saying you want less fun. But what makes this re-write of the amusement tax already on the books silly is that it is purely a money-grab. Here's what happened: the amusement tax in Chicago worked primarily to collect revenue from book stores, music stores and movie rental stores, which are obviously becoming increasingly in short supply as consumers move to online stores and streaming services like Netflix and Spotify and Amazon for all of the above. This is actually a good thing from a public interest standpoint for a variety of reasons: less pollution from physical products, more efficiency in the marketplace, the opening of more creative outlets for members of the city, and more access to more content from more places and devices, meaning a more robust economic marketplace. The future, in other words, although increasingly the present as well. And Chicago wants to tax all this, effectively discouraging its use, in order to collect an additional $12 million a year.
Chicago, mind you, is in the hole for roughly one hundred times that amount.
Cities with amusement taxes have lost revenue as more people forgo book stores, record shops and video rental stores in place of online outlets. But $12 million isn’t going to be much more than a drop of water in the bucket of the city’s $1 billion operating shortfall.
Fighting the future doesn't even yield much of a reward, so why do it at all? Don't tax what you want to encourage and tax what you want to discourage. This makes it look like the city of Chicago really wants a tax policy to make the city operate like it was 1995.
The FBI has been really screaming its head off about the evils of encryption over the last year or so. Director James Comey keeps fearmongering about encryption, though when asked to give examples of cases where encryption had created problems, all of his "examples" turn up empty. Yet, the FBI keeps insisting that something needs to be done and, if not, there's a real risk of "going dark." One of Comey's top deputies has insisted that tech companies need to "prevent encryption above all else." And the fearmongering is working. Some politicians are already freaking out about this so-called "going dark" scenario.
In fact, next Wednesday, both the Senate Intelligence Commitee and the Senate Judiciary Committee are hosting "hearings" for Comey, about the issue of "going dark" due to encryption. The Intelligence Committee's is called "Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy," while the Judiciary's is "Counterterrorism, Counterintelligence, and the Challenges of 'Going Dark.'"
So it's rather interesting that before all that, the US Courts had released their own data on all wiretaps from 2014, in which it appears that encryption was almost never an issue at all, and in the vast majority of cases when law enforcement encountered encryption, it was able to get around it. Oh, and the number of wiretaps where encryption was even encountered has been going down rather than up:
The number of state wiretaps in which encryption was encountered decreased from 41 in 2013 to 22 in 2014. In two of these wiretaps, officials were unable to decipher the plain text of the messages. Three federal wiretaps were reported as being encrypted in 2014, of which two could not be decrypted. Encryption was also reported for five federal wiretaps that were conducted during previous years, but reported to the AO for the first time in 2014. Officials were able to decipher the plain text of the communications in four of the five intercepts.
Obviously, if more communications are encrypted by default, it's true that the numbers here would likely rise. But the idea that there's some massive problem that requires destroying the safety of much of the internet, seems more than a bit far-fetched.
As computer security expert Matt Blaze noted in response to all of this, aren't there a lot of other tools out there that hide criminals from law enforcement as well? Why is there this moral panic about encryption?
In case you can't read that, it says:
I'll bet burglars wore gloves to avoid leaving fingerprint evidence a lot more than four times last year. Time for a war on gloves?
I have to admit, I didn't see this one coming. We recently discussed how Bob Costas reacted to a video of him being more than a bit hard on Cubs MLB pitcher Pedro Strop by going full-tirade on the internet and social media. Within that post was the embedded video of the broadcast segment that featured Costas wondering aloud whether Strop pointed up to the heavens while walking off the field (something very common in sports) was him imploring a dead relative for forgiveness for his awful performance. That video, I should mention, was up and working at the time the post was being written. By the time it was published, however, it had been taken down with a notice that someone had filed a copyright claim on it.
What's strange about this is that it was an MLB Network broadcast, meaning the likely party requesting its removal would be Major League Baseball itself. I say it's strange because MLB is really good when it comes to advanced media and the internet. No other sport does as well in getting videos and content out there for people to enjoy. A party so good at the internet, however, should know better than to try to hide an embarrassing moment for a broadcaster through obscurity via intellectual property.
Because, thank you Streisand Effect, now we're talking about it again. Oh, and the video is still available from a ton of places, including on YouTube from a variety of uploaders.
The result? Well the conversation continues when this whole thing could already have been put to bed. Costas reportedly apologized to Strop. Strop reportedly accepted the apology, saying he didn't want to be the kind of person to judge anyone. And it would have been over.
But now it's not, because for some reason MLB (most likely) thought it could hide what had happened when it couldn't. I suppose MLB could start an ineffectual game of whac-a-mole with all the other sources of the video out there if it really wants to, but it shouldn't. It never should have taken the first video down in the first place. Going any further would really get the tongues wagging, which was the exact thing the league was hoping to prevent.
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Earlier this year, there were some questions raised when it appeared that UK Prime Minister David Cameron was suggesting that he wanted to undermine all encryption on the internet. Later, some suggested he was looking more at undermining end point security. However, after being re-elected, and apparently believing that this gave him the mandate to go full Orwell, Cameron is making it clear that no one should ever have any privacy from government snoops ever.
Responding to a somewhat nonsensical question about if he believed the recent attacks in Tunisia meant that the big internet companies need to "understand that their current privacy policies are completely unsustainable?" Cameron insisted that the UK always needed to be able to read communications. It is, of course, not at all clear what the privacy policies of Google, Facebook and Twitter (the three named by the questioner) have to do with the price of tea in China, let alone the attacks in Tunisia, but... alas:
"We just want to ensure that terrorists do not have a safe space in which to communicate. That is the challenge, and it is a challenge that will come in front of the House.
"We have always been able, on the authority of the home secretary, to sign a warrant and intercept a phone call, a mobile phone call or other media communications, but the question we must ask ourselves is whether, as technology develops, we are content to leave a safe space—a new means of communication—for terrorists to communicate with each other.
"My answer is no, we should not be, which means that we must look at all the new media being produced and ensure that, in every case, we are able, in extremis and on the signature of a warrant, to get to the bottom of what is going on."
Of course, he also insisted that you regular people shouldn't worry:
"Britain is not a state that is trying to search through everybody’s emails and invade their privacy..."
Except, well, it is. This whole thing seems to be based on the idea that it's blatantly obvious who is a "terrorist" and who is a good citizen of the UK. Cameron can't really be so naive as to think that "terrorists" are somehow easily differentiated from everyday people, can he? Then again, this is the same guy who once pushed for this Snooper's Charter by talking about how fictional TV crime dramas proved it would be a useful tool.
This is extremely troubling. Cameron's desire to undermine encryption is dangerous for the privacy and security of everyone, especially those in the UK that Cameron is supposed to be helping to protect, because lots of people really do need "safe spaces in which to communicate." The only way to take those away for "terrorists" is to take them away for everyone, and that means not just for the purpose of government snooping, but for others as well. Introducing backdoors breaks security and makes everyone much, much, much more vulnerable to all sorts of attacks.
And, again, this is the same guy who said:
For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone.... This government will conclusively turn the page on this failed approach.
Does that really sound like someone who will only use such snooping powers to track down terrorists? He's blatantly admitting that he will use it against law abiding citizens, admitting that merely "obeying the law" should not leave you free from being hassled by the government.
These kinds of statements are cartoonishly evil. They're the kind of ridiculous statements one would have hoped you'd only see in late night TV fictional TV dramas, not coming from an actually elected leader of a major western power.
Amnesty International has been heavily engaged in fights against mass surveillance, recognizing that many of the people it communicates with need an expectation of privacy in their communications with the group. Last year, Ed Snowden revealed that the NSA specifically spied on Amnesty International and other human rights organizations. And, while Amnesty International was unable to gain standing by the US Supreme Court, since it couldn't prove that the NSA had spied on its communications, the story appears to be somewhat different over in the UK.
In a shocking revelation, the UK’s Investigatory Powers Tribunal (IPT) today notified Amnesty International that UK government agencies had spied on the organization by intercepting, accessing and storing its communications.
In an email sent today, the Tribunal informed Amnesty International its 22 June ruling had mistakenly identified one of two NGOs which it found had been subjected to unlawful surveillance by the UK government. Today’s communication makes clear that it was actually Amnesty International Ltd, and not the Egyptian Initiative for Personal Rights (EIPR) that was spied on in addition to the Legal Resources Centre in South Africa.
As you may recall, a little over a week ago, the IPT had ruled that the GCHQ had erred in holding onto emails too long -- but had named that Egyptian organization as the one whose emails were held. However, that's now been corrected to Amnesty International.
The actual email sent by the IPT basically says that GCHQ told them that the IPT made a mistake. What you won't see anywhere is an apology from GCHQ.
Amnesty is rightfully incensed about the whole thing:
“How can we be expected to carry out our crucial work around the world if human rights defenders and victims of abuses can now credibly believe their confidential correspondence with us is likely to end up in the hands of governments?
“The revelation that the UK government has been spying on Amnesty International highlights the gross inadequacies in the UK’s surveillance legislation. If they hadn’t stored our communications for longer than they were allowed to by internal guidelines, we would never even have known. What’s worse, this would have been considered perfectly lawful.”
Both issues raised here are significant. The only reason Amnesty now knows about this is because GCHQ held onto the emails too long. If it had done its usual purge, then the IPT likely would never have revealed that, and Amnesty's communications would have continued to go on being compromised without anyone knowing.
Earlier this year, the Federal Communications Commission voted to ease the way for cities to become Internet service providers. So-called municipal broadband is already a reality in a few towns, often providing Internet access and faster service to rural communities that cable companies don't serve.
The cable and telecommunications industry have long lobbied against city-run broadband, arguing that taxpayer money should not fund potential competitors to private companies.
The telecom companies have what may seem like an unlikely ally: states. Roughly 20 states have restrictions against municipal broadband.
And the attorneys general in North Carolina and Tennessee have recently filed lawsuits in an attempt to overrule the FCC and block towns in these states from expanding publicly funded Internet service.
North Carolina's attorney general argued in a suit filed in May that the "FCC unlawfully inserted itself between the State and the State's political subdivisions." Tennessee's attorney general filed a similar suit in March.
Tennessee has hired one of the country's largest telecom lobbying and law firms, Wiley Rein, to represent the state in its suit. The firm, founded by a former FCC chairman, has represented AT&T, Verizon and Qwest, among others.
James Tierney, director of the National State Attorneys General Program at Columbia Law School, said it is not unusual for attorneys general to seek outside counsel for specialized cases that they view as a priority.
Asked about the suit, the Tennessee attorney general's office told ProPublica, "This is a question of the state's sovereign ability to define the role of its local governmental units." North Carolina Attorney General's office said in a statement that the "legal defense of state laws by the Attorney General's office is a statutory requirement."
North Carolina is no exception. The state's Attorney General Roy Cooper received roughly $35,000 from the telecommunications industry in his 2012 run for office. Only the state's retail industry gave more.
If the court upholds the FCC's authority to preempt restrictions in North Carolina and Tennessee, it may embolden other cities to file petitions with the agency, according to lawyer Jim Baller, who represents Wilson and the Chattanooga Electric Power Board. "A victory by the FCC would be a very welcome result for many communities across America," said Baller.
For some residents in and outside of Chattanooga, clearing the way to city-run broadband would mean the sort of faster Internet access that others might take for granted.
For 12 years, Eva VanHook, 39, of Georgetown, Tennessee, lived with a satellite broadband connection so slow that she'd read a book while waiting for a web page to load. In order for her son to access online materials for his school assignments, she'd drive him 12 miles to their church parking lot, where he could access faster WiFi.
Charter, the local Internet service provider, declined several requests by her husband to build lines out to her home. Only last month did Charter connect her home to the Internet. "Even the possibility to jump on [the local utility's] gigabit network would blow our minds right now," VanHook said. "There is nothing faster than Chattanooga. Just through meeting them and hearing them speak and having them understand what's going on, that's the kind of place I want to do business."
For years, broadcasters and cable operators have tried to push the boundaries of good taste and advertising revenue generation. Whether that's trying to prevent consumers from skipping ads to patenting technology that will use cameras embedded in set tops to watch you watching TV, there's a relentless thirst for new realms of ad revenue. As a sense of futility extends into the quest for more meaningful privacy protections in the new age of smart hardware and deep packet inspection, cable operators continue to nudge the boundaries of revenue collection ever further.
Comcast's latest foray into this arena is its new voice-controlled remote, which lets users give some basic keywords to control the company's set top box. Like similar services, it's a relatively useful concept, though if it works as well as most such efforts, most people will stick with old-fashioned buttons. Meanwhile, Comcast has apparently started using the technology to strike deals that market certain films to kids:
"Just say the word ‘banana’ into the remote and you’ll get a list of food programs as the minions talk back. Saying ‘kudos’ will take you to the Despicable Me 2 movie, and the minions will say ‘kudos!’ right back. Test out other words in Minionese to see what comes up, and keep checking the Xfinity and Minions social channels for new commands as they’re added. And if you want to get ready for the movie that comes out on July 10, just say ‘Minions’ to see the trailer."
To be clear, I don't think this is all that big of a deal, even though I understand the concerns of those who aren't thrilled about direct marketing to (and data collection of) children (as we recently saw with the new Wi-Fi-connected Barbie). After all, Minions ads are everywhere. Amazon's featuring the yellow pill-shaped little rabblerousers on their boxes during a limited cross-promotion. This is just kind of cute, right?
"After you speak into the remote, the voice commands are sent to Comcast and its contracted service provider for processing. Comcast and its provider use these voice commands to provide the voice control service (including for quality assurance, troubleshooting, and customer support), improve Comcast’s products and services and improve their voice recognition algorithms."
Another issue is that as cable operators face increasing competition from internet video, their response so far has been two-fold: to raise rates like it's going out of style, and to try to cram more and more ads into every minute of television (sometimes by cutting programs shorter). So paying customers are already being bombarded with ads, and now their remotes are pitching product. As cable operators begin losing internet voice and traditional TV customers to over-the-top services, the lust for new revenue streams is only going to accelerate this dissolution of product value further.
Again, I don't think your cable remote "speaking Minion gibberish" to your tot is that big of a deal in and of itself, but we need to be wary of the temperature of the water we're collectively sitting in. As noted previously, there's going to be a pretty fine line between useful and invasive, or cute and terrifying, and contrary to what many think it's not going to be entirely clear when we've crossed the Rubicon.
Last week, Tim Cushing explained that one of the bad outcomes of the recent European Parliament committee vote on Julia Reda's copyright reform report was that it recommended limiting freedom of panorama -- the ability to take pictures and make videos of public objects -- to non-commercial use. As Techdirt readers know, in the digital age, it is very hard to draw a clear distinction between commercial and non-commercial contexts online, which makes any kind of limitation to non-commercial use problematic. The person responsible for introducing the amendment to Reda's report, Jean-Marie Cavada, has written a blog post about the freedom of panorama issue (original in French), and it gives us some interesting insights into his thinking here:
The fight which is being led today by Ms. Reda, in the guise of defending free access to the works that are in the public domain [public objects] on behalf of users, is actually one conducted above all to allow US monopolies such as Facebook, or Wikimedia, to avoid the payment of fees to the creators.
Yes, it's all about those evil American companies again, refusing to pay when somebody dares to post a holiday picture on their Facebook page. Because, as the copyright maximalists keep on reminding us, every single use of every single owned object must be licensed every single time, otherwise civilization -- specifically European civilization -- will come crashing down.
But whatever people might think about Facebook, it's hard to see Wikipedia/Wikimedia as a "US monopoly" avoiding payment, as Cavada calls it. Indeed, Cavada goes on to contradict himself, writing:
this structure is well aware that the use of works on Wikimedia pages is not questioned by the authors, even in countries where there is no [freedom of] panorama exception.
Well, if it's not questioned, why is he using Wikipedia as an example of an evil "US monopoly" that wants to avoid paying licensing fees? Or does he mean that authors don't have a problem with Wikipedia using photos of landscapes with their works visible provided they are paid? Which of course ignores the fact that Wikipedia is not a company, and can't afford to pay licensing fees. Or, there again, is he perhaps advocating that Wikipedia just ignore the law, and use the pictures anyway?
Altogether, this confused post is a perfect demonstration of why people who don't understand a technology should not be allowed to make laws about it.