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by Tim Cushing
Tue, Jul 28th 2015 9:59am
The White House has finally responded -- more than two years later -- to a petition asking for a pardon of Edward Snowden. The petition surfaced soon after Snowden went public with his identity. Less than three weeks later -- June 25, 2013 -- it had passed the 100,000-signature threshold.
Understandably, the administration was in no hurry to respond to this petition. In the immediate aftermath of the first leaks, no entity was more unpopular than the NSA. Snowden, on the other hand, probably could have won a number of local elections as a write-in candidate at that point. So, the administration sat on it, as it has sat on a great many petitions not particularly aligned with its desires.
Unfortunately, the public's opinion hasn't shifted much. As other agencies have become more plaintive in their requests to undermine privacy and safety to keep criminals from "going dark," the public has become less and less enthusiastic about being forced to make more sacrifices in the interest of security. The NSA also hasn't become more popular in the interim. So buying time by cherry-picking We The People petitions to respond to hasn't made answering this petition any easier for the administration.
More than two years later -- 763 days past the point it became a viable petition -- the administration has answered. And the answer could have been written two years ago, as it refuses to acknowledge Snowden's contribution to recent surveillance reforms. The response was written by Lisa Monaco, the president's advisor on Homeland Security and Counterterrorism. Considering the source, the response is unsurprising. But it starts off with a lie:
Since taking office, President Obama has worked with Congress to secure appropriate reforms that balance the protection of civil liberties with the ability of national security professionals to secure information vital to keep Americans safe.Wrong. The "appropriate reforms" have been forced into existence by leaked documents Snowden provided. This "conversation" the President keeps claiming he always wanted to have only took place because he could no longer ignore it. This opening sentence is worse than merely disingenuous. It's a complete rewrite of Obama's civil liberties legacy. Before the Snowden leaks, Obama's stance on surveillance was "whatever Bush did, only more."
Instead of constructively addressing these issues, Mr. Snowden's dangerous decision to steal and disclose classified information had severe consequences for the security of our country and the people who work day in and day out to protect it.Except that this administration is no friend to whistleblowers. Snowden knew this. Snowden also knew the "proper channels" were mostly there to ensure whistleblowers were silenced and punished. So he ran. This administration has prosecuted more whistleblowers than all other administrations combined. When Snowden took off, it was five years into Obama's presidency, plenty of time to gauge what sort of odds the "proper channels" offered.
If he felt his actions were consistent with civil disobedience, then he should do what those who have taken issue with their own government do: Challenge it, speak out, engage in a constructive act of protest, and -- importantly -- accept the consequences of his actions. He should come home to the United States, and be judged by a jury of his peers -- not hide behind the cover of an authoritarian regime. Right now, he's running away from the consequences of his actions.First off, this is wrong. As has been explained countless times, under the Espionage Act, which is what Snowden would be charged under, he is not allowed to present the evidence in his defense that he was blowing the whistle on an illegal program (and yes, it has been ruled illegal). Nor is he allowed to argue that the leak was in the public interest. In other words, the law is stacked such that he cannot present his argument fairly. The deck is stacked and Monaco knows the deck is stacked and ignores that -- which is exceptionally dishonest.
by Tim Cushing
Tue, Jul 28th 2015 8:51am
Just as James Clapper's office was officially announcing the death of the bulk phone metadata program (ending November 29th, with three months of post-wind-down wind-down for data analysts), the DOJ was filing a motion in the Second Circuit Court of Appeals basically arguing that its finding that the program was illegal really doesn't matter anymore.
According to the DOJ, there really is no program -- at least if you don't count the six months the NSA has to make the move to the more targeted USA Freedom version. So this discussion about which program isn't authorized by which PATRIOT Act provision is… well, not completely moot, but like pretty much literally weeks away from moot, so why are we wasting our time here [EXASPERATED SIGH].
Plaintiffs’ claims will be moot when the bulk collection of telephony metadata under Section 215 ends on November 29, 2015, though they are not moot right now. On that date, the statutory authority for the Section 215 bulk telephony-metadata program will expire, and the data previously collected and held under that program will not be used in the future for intelligence-gathering or law-enforcement purposes. In the meantime, however, the Court should respect Congress’s decision to create an orderly transition away from the Section 215 bulk telephony-metadata program. Especially in light of Congress’s considered judgment that this program should continue for this limited period, plaintiffs are not entitled to any of the relief they request.In support of its argument that the court should ignore its own findings and just listen to what the FISA Court said (and what legislators didn't say, but obviously intended), the government points to its own Tumblr post (certainly a historical moment in its own right) detailing the specifics of the end of Section 215.
On July 27, 2015, the Office of the Director of National Intelligence (ODNI) issued a public statement that the NSA has determined that “analytic access to that historical metadata collected under Section 215 . . . will cease on November 29, 2015,” at the end of the transition period. See Statement by ODNI on Retention of Data Collected Under Section 215 of the USA PATRIOT Act, available at http:// icontherecord.tumblr.com/post/125179645313/ statement-by-the-odni-on-retention-of-data (ODNI July 27 Statement). Thus, after that date, no further bulk collection of telephony metadata will take place under the Section 215 program, and the historical telephony metadata will not be used for intelligence or law-enforcement purposes and will not be disseminated.To sum up: these past abuses should no longer be of concern as the data is going to be flushed (for the most part) within the next nine months. To better enable said data flush, the Second Circuit Court might want to wrap up the ACLU's suit (and hasten the end of the EFF's) so that no data is still being "preserved" past the November 2015 dump point.
The FISC was right that Congress authorized the Section 215 bulk telephony-metadata program to continue during the six-month transition period. [p. 6]This filing, like its Tumblr statement announcing the official end of the collection, emphasizes the single aspect of the Section 215 bulk collections that has been the focus of this litigation and most legislative efforts: phone metadata. The authorization, even in its altered, post-USA Freedom Act form -- provides for much more than just this one type of collection. The DOJ goes so far as to call the USA Freedom Act a "ban" on bulk, untargeted collections, when it actually doesn't go quite that far.
As the FISC correctly noted, Congress’s decision to delay that ban for six months is a powerful indication that it intended to permit bulk collection in the interim period. [p. 9]
The FISC was thus correct when it observed that “after lengthy public debate, and with crystal clear knowledge of the fact of ongoing bulk collection of call detail records” Congress “chose to allow a 180-day transitional period . . . .” June 29 FISC Op. at 11. This Court need not and should not determine whether Congress “ ‘ratif[ied] the FISA Court’s interpretation of ’ ” Section 215. [p. 11]
I believe both ACLU and EFF’s phone dragnet client Counsel on American Islamic Relations, had not only standing as clients of dragnetted companies, but probably got swept up in the two-degree dragnet. But CAIR probably has an even stronger case, because it is public that FISC approved a traditional FISA order against CAIR founder Nihad Awad. Any traditional FISA target has always been approved as a RAS seed to check the dragnet, and NSA almost certainly used that more back when Awad was tapped, which continued until 2008. In other words, CAIR has very good reason to suspect the entire organization has been swept up in the dragnet and subjected to all of NSA’s other analytical toys.This announcement by Clapper's office, followed shortly thereafter on the same day by the filing of its response in the Second Circuit case, certainly gives the appearance that the NSA has lifted the corner of the rug and is just waiting for the signal to start sweeping any undiscovered abuses -- along with those previously exposed -- under it. That the expiration of the authority and the passage of the USA Freedom Act may have provided it with a better broom is unexpectedly fortuitous.
EFF, remember, is the one NGO that has a preservation order, which got extended from its earlier NSA lawsuits (like Jewel) to the current dragnet suit. So when I Con the Record says it can’t destroy all the data yet, it’s talking EFF, and by extension, CAIR. So this announcement — in addition to preparing whatever they’ll file to get the Second Circuit off its back — is likely an effort to moot that lawsuit, which in my opinion poses by far the biggest threat of real fireworks about the dragnet (not least because it would easily be shown to violate a prior SCOTUS decision prohibiting the mapping of organizations).
by Tim Cushing
Tue, Jul 28th 2015 7:35am
The Office of the Director of National Intelligence has issued a statement addressing the inevitable shutdown of the Section 215 bulk phone metadata program.
NSA has determined that analytic access to that historical metadata collected under Section 215 (any data collected before November 29, 2015) will cease on November 29, 2015. However, solely for data integrity purposes to verify the records produced under the new targeted production authorized by the USA FREEDOM Act, NSA will allow technical personnel to continue to have access to the historical metadata for an additional three months.Caveats apply. Data will still be held as required by a handful of ongoing lawsuits. With the "bulk" part of the bulk records program shut down (but not completely), the government is obviously hoping for a speedy end to the litigation resulting from the Snowden leaks. That's the other motivating factor behind this public statement that not only states an end date, but the additional restrictions past that point.
The telephony metadata preserved solely because of preservation obligations in pending civil litigation will not be used or accessed for any other purpose, and, as soon as possible, NSA will destroy the Section 215 bulk telephony metadata upon expiration of its litigation preservation obligations.We don't know what else is being collected in bulk under the PATRIOT Act provision -- the same authority that expired this year and was replaced with the stipulations of the USA Freedom Act -- but we know it's more than just "telephony metadata." "Tangible things" encompasses far more than phone metadata ("books, records, papers, documents, and other items"), but this statement -- as well as arguments it's made in court in support of the six-month wind-down period -- only address phone records.
by Mike Masnick
Tue, Jul 28th 2015 5:27am
On July 13, 2015, Defendants gave Plaintiffs access to a database of approximately 500 pages of documents, including approximately 200 pages of documents they claim were “mistakenly” not produced during discovery, which ended on July 11, 2014, more than one year earlier.So over a year later, and just weeks before the court was likely to rule on the matter, suddenly Warner finds stuff that was missing before? Okay. But it gets even stranger. Because one of the things in this very late data dump is a 1927 publication of the song Happy Birthday in "The Everyday Song Book." And, as the plaintiffs in the case note, there's a line right under the title song that "is blurred almost beyond legibility -- curiously it is the only line in the entire PDF that is blurred in that manner." Hmmm. Here's the image:
Special permission through courtesy of The Clayton F Summy Co.As the plaintiff notes, this is evidence that there is no copyright on the song. They also went back and found that this particular edition was not the first one in which the song appeared. Instead, it first appeared in the 4th edition, published in 1922, well before 1935. The key issue: the lack of a copyright notice. Today that wouldn't matter. But under the 1909 Copyright Act it matters quite a bit.
Under Section 9 of the 1909 Copyright Act, “any person entitled thereto by this Act may secure copyright for his work by publication thereof with the notice of copyright required by this Act” affixed to all copies of the work.... At a minimum, Section 18 of the 1909 Copyright Act required the notice to include the word “Copyright,” the abbreviation “Copr., ” or the “©” symbol as well as the year of first publication and the name of the author of the copyrighted work.... If the strict notice requirements of the 1909 Copyright Act were not met, the “published work was interjected irrevocably into the public domain.” Twin Books Corp. v. Walt Disney Co., 83 F.3d 1162, 1165 (9th Cir. 1996) (emphasis added). None of these notice requirements was met for the Good Morning and Birthday Song included in the fourth edition of The Everyday Song Book published in 1922.In other words, it appears that the song was put into the public domain by 1922 at the latest. The plaintiffs argue that the lack of a copyright notice on the work shows that Patty Hill (who wrote the song) likely put the work into the public domain years earlier:
Publication of the Good Morning and Birthday Song in The Everyday Song Book in 1922 and thereafter, with Summy’s authorization but without a copyright notice, is fully consistent with Plaintiffs’ position that the Happy Birthday lyrics had been dedicated to the public many years before then. Because the lyrics were in the public domain, there was no reason for a copyright notice to be set forth in the song book. Moreover, the authorized publication of the Good Morning and Birthday Song in 1922 without a copyright notice also is fully consistent with Plaintiffs’ position that the 1935 copyrights (E51988 and E51990) covered only the specific piano arrangements written by Summy’s employees Orem and Forman (as well as the second verse written by Forman). Since the lyrics were already in the public domain long before 1935, there was nothing else to be copyrighted other than the new work that Summy’s employees contributed when those copyrights were registered.The filing also notes that while the copyright on the compilation for the 1922 and 1927 publications could only cover the overall compilation, rather than the individual works, even so both copyrights have long since expired, so Warner/Chappell can't even claim that the copyrights for either compilation now lead to the copyright today.
Tue, Jul 28th 2015 3:27am
Alright, people, strap in and keep the laughter to a minimum because we're going to talk dildos here. Specifically, remotely operated dildos, and other sex apparatuses, including those operated by Bluetooth connections or over the internet. It seems that in 1998, a Texan by the name of Warren Sandvick applied for a patent that casts an awfully wide net over remotely controlled sexual stimulation, specifically any of the sort that involves a user interface in a location different from the person being stimulated. You can find the patent at the link, but here's the abstract:
An interactive virtual sexual stimulation system has one or more user interfaces. Each user interface generally comprises a computer having an input device, video camera, and transmitter. The transmitter is used to interface the computer with one or more sexual stimulation devices, which are also located at the user interface. In accordance with the preferred embodiment, a person at a first user interface controls the stimulation device(s) located at a second user interface. The first and second user interfaces may be connected, for instance, through a web site on the Internet. In another embodiment, a person at a user interface may interact with a prerecorded video feed. The invention is implemented by software that is stored at the computer of the user interface, or at a web site accessed through the Internet.Great, except that nothing in the above is an actual invention; it's essentially an acknowledgement that a dildo could be controlled remotely and an attempt to lay claim to that function exclusively. The description of the art outlaid in the patent rests solely on the claim that sexual stimulation devices have always been either self-stimulation devices or that any remotely operated stimulation devices still required close proximity. But it all rests on what you consider a stimulation device. Take this language from the patent, for instance.
These stimulation aids, however, require that the operator directly engage the stimulation aid. Only several stimulation aids are known that allow the stimulation aid to be operated by a remote controller-type device, such as shown in U.S. Pat. No. 4,834,115 to Stewart entitled “Penile Constrictor Ring,” U.S. Pat. No. 4,412,535 to Teren entitled “Remotely Controlled Massaging Apparatus,” U.S. Pat. Nos. 3,978,851 and 3,874,373, each to Sobel and entitled “Massaging Apparatus,” and U.S. Pat. No. 5,454,840 to Krakovsky et al. entitled “Potency Package.” Nonetheless, these prior art devices all have the disadvantage that the operator must be in close proximity to the recipient.Great, except the smart phone, and even cell phones prior, could be considered prior art to this patent as well. After all, a person might suggest to another person that they put their phone on vibrate and shove it down their shorts while at work while the first person text-messages them all day, setting the phone off and creating stimulation. It's the same thing. The fact that a phone's primary function isn't sexual arousal doesn't really matter. And I'm not the only one who thinks so.
seriously, how is this claim for a sex toy (priority 1998) not just claiming a telephone being used "creatively"? pic.twitter.com/RwLC8pPpSr— Vera Ranieri (@vranieri) July 23, 2015
And yet, in 2002 the USPTO granted the patent to Sandvick, who in turn sold it to a company called TZU, who is now filing lawsuits against six companies that have or will soon be offering remotely-operated sexual stimulation products. Those companies have such varied products as bluetooth controlled vibrators, programmable and remotely controlled dildos, and even, from one company, software apparently for remote hand-holding (complaints included in the link above). All this over a delightfully broad patent granted to someone for his non-invention and now employed by a third party simply to extract money out of businesses actually making products. And not just any businesses, either. The types of businesses seem to suggest that TZU knows exactly what kind of shaky ground it's on.
More than anything, the TZU phenomenon seems to be one more data point suggesting that as it becomes harder to win high-stakes patent suits, the best business model for trolls may be to seek small payouts from companies that are ill-equipped to afford a legal defense. Basic Google-level research suggests that five of these six defendants can't possibly have significant sales at this point.Anyone actually want to argue that the founding fathers' intention in patent law would be to make sure that companies couldn't create devices for your significant other to buzz your naughty bits?
Portland, the city, is back in the news again regarding Portland, the sign, and the city's insistence that it has a trademark over the landmark. We last checked in on this when Pabst, the brewery, had used an adaptation of the famous Portland sign to promote a concert in the city. The city then worked out an arrangement with Pabst so that it could keep using its sign imagery and keep the case out of the court. This was fully in the city's interests, because it's unclear on why a municipality should be granted a trademark on a local landmark's image when it isn't actually using that image in commerce.
It seems Jeff Kunkle, owner of the Vintage Roadside shop, which sells merchandise on Etsy, thinks similarly. When Portland found that Kunkle was selling merchandise with images of the sign, the city contacted him to arrange a licensing deal. Kunkle told them to go dangle, instead suing the city to have its trademark over the sign declared invalid.
Vintage Roadside, a Portland company that sells photos of the old "Made in Oregon" sign on Etsy, is suing the city of Portland, which recently sought a licensing payment from the company for use of the image. The suit, filed in Multnomah County Circuit Court on Thursday, asks the court to declare the city's trademark of the sign, which changed to "Portland Oregon" in 2010, invalid and unenforceable.Oops. So, if you're Portland and you've been extracting money from individuals and businesses by way of a trademark that would likely be declared invalid should a judge look it over, what do you do? Well, you utilize the rules of the court to weasel your way out of the whole thing while not admitting that your sign trademark is bullshit, of course!
City of Portland officials are employing a creative legal maneuver to get rid of a lawsuit concerning its trademark of the "Portland Oregon" sign. Last week, the city told Kunkle's attorney, Robert Swider, that it was filing a covenant not to sue, which basically means that the city still believes the city owns the rights to the sign but won't try to enforce them against Kunkle—now or ever... By eliminating that point of contention, the city takes away Kunkle's standing to bring the lawsuit.Which keeps the question over whether or not the city's trademark is even valid to begin with. The good news is that this specific story will hopefully get enough play in the Portland area to serve as a beacon to anyone the city might later approach for one of its "licensing deals." It should be clear at this point that the proper response to the city is to sue them outright.
by Michael Ho
Mon, Jul 27th 2015 5:00pm
by Mike Masnick
Mon, Jul 27th 2015 3:21pm
Hammond police Cmdr. Pat Vicari said the promoters were warned the concert would be shut down if Chief Keef performed.Why? Because apparently politicians don't like his lyrics:
"We spoke to the promoter several times, and they assured us (Chief Keef) would not be performing," Vicari said. "Later, an officer working the show realized it was being streamed on one of the hip-hop sites, and promoters were warned again they would be shut down.”
Thomas M. McDermott Jr., the mayor of Hammond, said in an interview that his office became aware of the surprise performance, which was also streamed live online, through social media. All of the Craze Fest acts — which included Riff Raff, Lil Bibby and Tink — had been previously vetted because the event was held at a public park, he said.The reference to Mayor Emanuel was to Chicago mayor Rahm Emanuel blocking a similar concert in Chicago a week earlier, when Emanuel's office declared Keef "an unacceptable role model." Because, apparently, in Chicago, you're only allowed to be a role model if the mayor's office gives its stamp of approval:
“I know nothing about Chief Keef,” Mayor McDermott, 46, said. “All I’d heard was he has a lot of songs about gangs and shooting people — a history that’s anti-cop, pro-gang and pro-drug use. He’s been basically outlawed in Chicago, and we’re not going to let you circumvent Mayor Emanuel by going next door.”
Last weekend, a Chicago theater called off a similar show after representatives for Mayor Rahm Emanuel’s office deemed Chief Keef “an unacceptable role model,” whose music “promotes violence” and whose presence via hologram “posed a significant public safety risk.”Here's the really crazy part, though. The concert itself was to protest violence, and was called a "Stop the Killing" benefit concert, in an effort to raise money for the families of two people that Keef knew who were recently killed in a shooting.
The government may impose reasonable content-neutral restrictions on speech in such venues, such as sound level restrictions, and may charge money for the use of the venues. But the government may not restrict speech because of its viewpoint, or the viewpoint that the speakers had expressed elsewhere, which seems to have happened hereHe further points out that the "public safety" risk claims are not an acceptable reason to shut down the event either, pointing to Terminiello v. Chicago. Even beyond that, there were no reports of any actual threats or public safety issues at the event itself. And yes, Keef may have outstanding warrants, which would make it perfectly reasonable to have him arrested if he did show up, it still doesn't explain why the concert was shut down.
Unless I’m missing something here, then, this is a pretty clear First Amendment violation on the part of the City of Hammond. And it seems to me that, in America, performances by controversial singers can’t be “basically outlawed,” even “in Chicago.It will be interesting to see if Keef does anything about this. The hologram appearance was coordinated by Hologram USA, the company owned by wacky publicity hound billionaire Alki David, whose antics we've discussed in relation to his Aereo-clone streaming TV service FilmOn (not surprisingly, the concert was also being streamed live via... FilmOn). David immediately lashed out at the shutting down of the concert and rightly called out the First Amendment violation:
"Shame on the mayor and police chief of Hammond for shutting down a voice that can create positive change in a community in desperate need. And for taking away money that could have gone to help the victims' families," David said in a statement. "This was a legal event and there was no justification to shut it down besides your glaring disregard for the first amendment right to free speech.Some have argued that Keef intentionally uses conflicts like this to get more publicity to market himself -- and even if it's true that doesn't matter. Even if Keef is truly a horrible person in every way, the First Amendment isn't supposed to only protect the speech of "good people." It's supposed to protect everyone. And yet it's amazing how quickly some in power forget this.
by Mike Masnick
Mon, Jul 27th 2015 1:44pm
The Official Code of Georgia Annotated (OCGA) provides users with the official Georgia statutes, fully annotated and including guidance from the Georgia Code Commission. If you live or work in Georgia, the OCGA is the essential reference you need to guide you quickly and efficiently in understanding the Georgia statutory schemeFurthermore, multiple parts of the Georgia government refer to the OCGA as the law of Georgia, rather than the unannotated version. Just as two quick examples, the Georgia Department of Community Affairs cites the OGCA to explain Georgia's construction codes, rather than the unannotated law. And the Department of Banking and Finance insists that:
Laws governing entities regulated by the Department are primarily found in the Official Code of Georgia Annotated (O.C.G.A.) Title 7.In other words, basically everyone in the Georgia government is saying that if you want to know the laws of Georgia, the OCGA is the only way to do so. And that raises serious questions about whether or not it should be allowed to lock up such text under copyright. The big question is if the OCGA is an "edict of government," as the US Copyright Office has declared such to be not copyrightable "for reasons of public policy."
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments.Given how the state of Georiga touts the OCGA as being "essential" and various government agencies directly cite it as where to find out about the laws that may apply to you, it seems reasonable to argue that the "Official Code of Georgia Annotated" is an "edict of government" and thus "not copyrightable for reasons of public policy."
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