by Mike Masnick
Wed, Mar 20th 2013 8:02pm
by Joyce Hung
Wed, Mar 20th 2013 5:00pm
from the urls-we-dig-up dept
- Yes, spiders eat bats too. Apparently, bat-eating spiders live on every continent (except Antarctica). Most of them catch bats in their webs, but huntsman spiders and tarantulas have been observed eating bats on forest floors. [url]
- Spiders can adapt to zero-gravity. A "Johnson Jumper" spider named Nefertiti survived 100 days on the International Space Station, during which it demonstrated a new technique for catching fruit flies in zero-gravity. Instead of jumping on its prey, it would sidle up to it. [url]
- Contrary to popular belief, spiders can be sociable. Of the more than 43,678 species of spiders out there, about 24 social spider species have been identified. In a most recent discovery, researchers found that females from a social species of spider called Chikunia nigra were surprisingly tolerant of other spiders from the same colony and were willing to look after another's eggs/hatchlings as if they were her own. [url]
by Mike Masnick
Wed, Mar 20th 2013 4:09pm
from the digging-into-the-corners-of-the-law dept
Now, as we've noted many times in the past, the whole class action process is, in fact, regularly abused by the class action lawyers themselves -- such that settlements often fail to benefit the class, but instead just make the lawyers rich. We've also noted that nearly everyone involved in a class action lawsuit has incentives to push aside any objections to the settlement to get the case done. It appears that, in response to this knowledge, a group of "professional objectors" have been showing up in court cases, hoping to get some money to go away and remove their objection. Now, we wholeheartedly support the ability to protest a class action settlement, especially when that process is being abused. But it's not surprising to see abuse on the other side too -- and FCT highlights some interesting facts about Gibbs and various Hansmeiers not just showing up in a bunch of cases, but being called out for questionable behavior.
FCT points to three such cases, all of which, at the very least, raise questions about whether or not Brett Gibbs and Paul Hansmeier are playing "professional objector" games. As some have noted, it appears that Hansmeier has even set up an operation called the Class Action Justice Institute, with the same address as his law firm (the Alpha Law Firm), supposedly related around class actions.
The three cases don't seem to go well for Gibbs and Hansmeier. In two cases, Hansmeier's wife, Padraigin Browne, is named as the official objector, and in the third it's Hansmeier's father. The objections are all filed by Brett Gibbs. Some of the documents are pretty damning. In the case involving Hansmeier's father, Gordon Hansmeier, they're objecting to a class action settlement involving Hertz Corporation. Paul Hansmeier sent a letter to the lawyer representing the class, in which he flat out offers to go away for $30,000.
This letter is to advise you that an objection will be filed to your proposed settlement. I am enclosing a draft of the objection to be filed, which you have previously had an opportunity to review. This (or a similar version) will be filed if you do not attempt to resolve this matter. We find that settlements like this are likely to be rejected following our participation, as was the result today in In re Groupon, No. 11-md- 02238 (S.D. Cal.) (Dkt. No. 97).The lawyer for the class, quite reasonably responded harshly that this sort of letter made clear Hansmeier's true purpose in objecting. He also points back to Hansmeier objecting similarly in a different class action case (involving Groupon) pointing out how this is evidence of a "pattern of conduct" that might be seen as done for an "improper purpose."
I will extend to you an offer to settle this matter with my client for $30,000.00 if the settlement terms are reached by 5:00 PM CST on Monday, Oct. 1, 2012. If you reject this settlement and the objection is filed, the offer to o settle is revoked and will not be extended at the pre-filing settlement amount.
Govern yourself accordingly.
In our view, if you present this objection, it is clear that it will have been presented for an “improper purpose” under Fed R. Civ. P. Rule 11(b)(1). Our view is further informed by the fact that the practice of contacting class counsel with draft objections and inviting them to “discuss them” (i.e. resolve them by making an unjustified payment to the objectors’ lawyers) in advance of filing in the hope of gaining an unjustified payment beyond any legitimate class member’s claim appears from the Record in Groupon to be a pattern of conduct.In response, Gibbs claimed that the lawyer for the class was acting improperly and sought to have him removed from the case (and to substitute themselves).
Please be advised that we consider this conduct to be improper and sanctionable under 28 U.S.C.A. § 1927 and Rule 11.
Eventually this leads to quite a ruling, in which the court rejects Gibbs/Hansmeier's attempt to get that lawyer kicked off of the case. The full ruling is well worth reading. It mostly knocks Gibbs for the timing of filings. The objection was filed at the latest date possible. The attempt to remove the lawyer was filed late. He sat on the claims of "inappropriate behavior" for much longer than was reasonable, etc. But, more importantly, the court sees a pretty obvious suggestion of attempted gamemanship, rather than any legitimate reason for participating in this case. In fact, he notes that if anyone was acting improperly, it was Gibbs and Hansmeier, not the lawyers for the class.
Further, having reviewed the “Underlying Motion,” it is apparent that it is without merit and would not succeed even it were allowed to proceed. It appears a significant disconnect exists between Objector’s perception of the events that transpired in the days leading to the objection deadline, the nature of his counsel’s involvement and conduct, and the nature and purpose of class counsel’s response. In reviewing the letters between Objector’s counsel and class counsel, the only “bold and improper” conduct the Court can identify is Objector’s counsel’s attempt to extract $30,000, from class counsel in exchange for Objector not filing objections that Objector’s counsel suggested could derail approval of the class settlement and award of attorneys’ fees. Objector now wishes to use his own counsel’s questionable conduct and class counsel’s measured response–which Objector recharacterizes in a strained attempt to ascribe misconduct and ill will to class counsel–as a springboard to attack the class counsel’s motivation and mightily strains to manufacture violations of rights related to “certain actions by co-Lead Counsel for the class and their implications regarding notice and due process of law.” Even if the Court were to allow the eventual filing of the “Underlying Motion” and consider Objector’s request to remove Mr. Stewart as class counsel, the Court would find no basis to do so. Nor would the Court find it necessary or justified to appoint “ad litem counsel to protect absent class members from the sort of behavior [i.e., Mr. Stewart’s behavior] described herein.” Further still, even if such a need existed, the Court certainly would not appoint Objector’s counsel as co-lead class counsel based on the sort of behavior the letters exhibit.That's a benchslap.
In another case, involving a Netflix class action, again involving Hansmeier's wife, we see accusations that seem quite familiar from various Prenda-related cases. As in the Hertz case, Gibbs is accused of filing a motion just as the time is about to expire. What's interesting here is that one of the lawyers for the case, in pushing back against the objection notes that he received a phone call from people claiming to work for "Brett Gibbs Law Offices," but they seem to get skittish when the lawyer asks for Gibbs email or for any info on Gibbs at all. In looking online, he found out something... interesting:
I asked them for Mr. Gibb's e-mail address. Strangely, the individuals seemed startled by this request and immediately (in a somewhat panicked way) replied that they didn't need the objection sent after all.The lawyer who filed this declaration, Jay Edelson, then notes that he sent Gibbs an email detailing these concerns, and Gibbs, in true Gibbs-fashion (as we've seen before) refuses to respond to the claims, but rather lashes out at Edelson accusing him of unprofessional behavior. This seems to be a recurring theme. Every time anyone points out unprofessional behavior by Gibbs, he returns the favor, claiming that their very action in calling him out is somehow unprofessional. This strategy doesn't seem to ever work. You'd think he'd learn to stop it.
This reaction raised suspicions and led me to inquire if the "Brett Gibbs Law Offices" even existed, and whether these individuals worked with Mr. Gibbs at all. The individuals then abruptly--and without explanation--hung up the phone.
After the phone call ended, my firm researched Mr. Gibbs, his practice, and the facts relating to the phone call. We determined that "Brett Gibbs Law Offices" does not appear to exist as a legal entity, that the associates who contacted me regarding Brown's objection did not work at "Brett Gibbs Law Offices," and that the phone number the individuals called from is a number used by Prenda Law--a firm at which Mr. Gibbs is "Of Counsel"--to contact defendants that are the target of Prenda Law's mass copyright infringement lawsuits brought on behalf of pornography studios. Based on the information available, we believed that the men who called were actually associates of Mr. Gibb's at Prenda Law and had been instructed to misrepresent their affiliation.
While these are different types of cases, we once again see Hansmeier and Gibbs engaged in what appears to be a strong pattern of behavior.
by Mike Masnick
Wed, Mar 20th 2013 3:05pm
Copyright Office Boss Admits Copyright Law Is Broken And Needs A Rethink... But Still Focused On Bad Ideas
from the a-lot-to-worry-about dept
"I've never thought that copyright inhibits innovation."Throughout the hearing, she repeatedly emphasizes her old line about how copyright is "first for the author" and then later for the public. This is a rewriting of history. Copyright is for the public, period. The means to do that is to create a benefit for authors. She's absolutely correct that these two things can and should be aligned, but those things are only aligned when you put the public interest first and then look to see how to create the best incentives following that. It's a different approach, and I'm troubled by her repetition of it being about "the artist first." It's not.
Also, troubling, was that she more or less endorsed large parts of SOPA as a proper solution for going forward. Specifically, she calls out the "follow the money" approach, which was a key part of SOPA, as a solution she believes would be effective for enforcement. This ignores the massive unintended consequences associated with that approach -- including the ability to shut down and kill off all sorts of innovations early on. A "follow the money" approach would have killed off radio, cable TV, the photocopier, the VCR, the MP3 player, the DVR and more in their early days. Do we really want that?
She also goes back, repeatedly, to saying that we need to make the public performance right a felony, rather than a misdemeanor -- another piece of SOPA. This is the "streaming" question. She wants to let law enforcement throw people in jail for streaming works, even if they do no host or even touch the content itself. That's pretty scary. She talks about the horrors of people "streaming the Super Bowl," ignoring that the Super Bowl isn't suffering from this at all. They're raking in tons of cash from advertisers. And yet, she claims that making streaming a felony is one of her "top 3" priorities on fixing copyright.
In a rather bizarre exchange with Rep. Chu, Pallante agrees with Chu that DRM is a form of innovation and that this shows that copyright inspires innovation. Furthermore, she insists that DRM is a required part of a functioning copyright system. Why? That is not explained.
Elsewhere, she mostly just focused on how things were "broken" and needed to be explored -- but held off on making specific proposals. That's a perfectly reasonable position to take, but it's worrying that there's little to no discussion about why the copyright system is broken. That is, we're talking about fixes to certain parts and a rethinking of those parts, but not looking at the very crux of the issue: whether or not copyright actually is creating an incentive, and if that incentive is useful or necessary. There's no discussion of why or how people create -- nor is there any discussion about how the vast majority of creation today is not for direct monetary benefit anyway, and yet is still locked up by copyright law. Without examining the core issues, the overall reform process is just going to produce another, outdated and broken law.
by Mike Masnick
Wed, Mar 20th 2013 1:59pm
from the good-to-see dept
by Mike Masnick
Wed, Mar 20th 2013 1:04pm
from the that's-an-interesting-one dept
Of course, that ignores that Levy was going after Carreon because of Carreon's vexatious legal threats against the blogger -- to the point that Carreon directly stated that he would wait until interest in the case had gone cold before suing and causing trouble for the blogger. And, even after all of this began, after Register.com stupidly gave up the name of the blogger (on no legal basis), Carreon (while avoiding being served himself) contacted the blogger's employer, Walgreens, and threatened to drag it into the lawsuit as well. Frankly, we could use a few more good lawyers trolling the web to seek to stop people like Carreon from making baseless legal threats.
Carreon has now filed his response to the attempt to get legal fees out of him, and in true Carreon fashion, it's quite a filing. First of all, it highlights that in responding to a discussion over legal fees, Carreon hit back at both Paul Levy and Ken "Popehat" White with significant discovery efforts. White told Carreon to pound sand (more or less). Levy, it appears, delivered the requested documents. Of course, the documents don't show much of anything that impact the discussion at hand, but Carreon uses them to continue his attack on the satirical blogger. Among the "findings"
- The blogger (Carreon uses the ridiculous term "Gripesite Operator") is "not a journalist." So what? What does that have to do with anything, let alone legal fees?
- The blogger is "not a web developer." Same question as above. I can't even see how that's relevant to anything
- The blogger "had not received permission to use" Carreon's "name or photograph." Uh, again, so what? What does that have to do with legal fees, especially given that Carreon has already conceded the basic case. He seems to be introducing a (ridiculous) copyright claim here, one that would backfire on him if he could actually take it anywhere.
- The blogger created the blog to "show support for the Oatmeal." Again, so what? If you don't recall, this whole mess began with Carreon's baseless legal threat towards Matthew Inman and The Oatmeal webcomic over Inman calling out another site for posting his comics without credit. Why would it possibly matter that the blog was created to show support over that threat (and subsequent lawsuit on behalf of Carreon himself, and not the site Carreon was originally representing).
- The blog linked to TheOatmeal.com, which sells stuff. Um. Again. So? The site was created to support The Oatmeal in response to the bogus legal threat Carreon filed against Inman. Why wouldn't it link to the site? And, really, if he's trying to argue some sort of "commercial" claim here, Carreon's seriously reaching.
- The blog linked to Inman's famous IndieGoGo Bear Love campaign which was started initially to mock Carreon's bogus legal threat. Again, what does this have to do with legal fees?
- The blogger has made no money from this lawsuit. Again. Same question. The lawsuit itself was filed in response to a threat from Carreon, and was not filed for monetary gain, but to have a court declare that the blog was legal to avoid the clear threat that Carreon had made against the site.
- The blogger doesn't hold the trademark for Charles Carreon. Same question.
- In the agreement Levy signed with the blogger, it noted that if legal fees were due, Levy's organization, the public interest group Public Citizen, would get those legal fees. I would imagine that's fairly standard boilerplate language.
- The blogger flew to DC from California to be deposed for this fight over legal fees, and Public Citizen paid for his flight. Again, so what?
But, because this is Carreon, and he just can't resist, it immediately veers off into wacky territory. He argues that granting legal fees in this case would allow any gripesite to go after those they're griping over for legal fees, violating the First Amendment rights of those being mocked:
If motions for attorney’s fees like the pending one were authorized, then gripesite operators posting scandalous statements like “Thank God For Dead Soldiers” and “Thank God for IEDs” on websites like “AmericasLegion.com” and “ForeignWarVets.com,” would have standing to move for attorney’s fees in declaratory relief actions against the American Legion or the Veterans of Foreign Wars. In search of fee awards, plaintiff’s counsel and his public interest colleagues would be incentivized to sue those organizations on the slightest pretext. In this way, a “First Amendment Shield” would be improperly converted into a “Lanham Act Sword,” placing trademark holders in a worse position than their antagonists, thanks to the very law intended to provide them with protection. Adding to the injury, the threat of fee recoveries for gripe-site operators would chill the First Amendment rights of markholders who respond to scandalous attacks on their marks with litigation threats, since litigation threats, that are as much entitled to First Amendment protection as derisive epithets, would provoke unique, negative pecuniary consequences.Emphasis is in the original. Yeah. You read that right. In the first half, Carreon is ignoring that the effort for attorneys fees would only come about after a vexatious threat, such as, for example, Carreon's emailed list of threats, which included claims that he would wait until pro bono public interest lawyers might no longer be actively interested in the case to sue, and that he might sue in inconvenient locations if the blogger didn't just give up. It is those actions that are why Carreon is facing legal fees. Not just because there was a gripesite. So, no, his argument in the first half makes no sense.
The argument in the second half just goes into crazy town. He is, effectively, arguing that lawyers have a First Amendment right to make vexatious legal threats with no consequences.
But, because this is Carreon (who has been given the motto "just keep digging" by parts of the internet), he digs in even further, arguing that vexatious legal threats aren't just protected by the First Amendment, but that they're also protected by "litigation privilege." In fact, he even argues (ridiculously) that the lawsuit against him could have been dismissed via an anti-SLAPP effort.
California law is clear on this point.... The Lawyer’s email to Levy was eminently defensible in this litigation as speech protected by the litigation privilege, and no liability could have arisen from it. Indeed, the entire action might19 have been subject to dismissal by way of an Anti-SLAPP motion.That is an... interesting reading of the law. As Steinbaugh summarizes:
I interpret Carreon’s arguments to be that (1) the site is protected by the First Amendment, but the case is not exceptional because the speech isn’t all that valuable; (2) sending legal threats is protected speech which is worth protecting; and (3) even if it were not protected speech, threatening letters are part of litigation and therefore are protected by the litigation privilege. Taken to their logical conclusion, Carreon essentially asserts that he has a First Amendment right to threaten and bring vexatious litigation.We await the results of this case.
by Mike Masnick
Wed, Mar 20th 2013 12:07pm
from the who's-hiding-what? dept
The decision to lift the protective order rests with the judge who put it in place. Documents provided by MIT in the Swartz case included individual names and information regarding MIT employees. It is MIT policy and practice to protect employee privacy. MIT provided the documents under the express understanding that they would be protected from disclosure, which is the purpose of the protective order. Given this, we are concerned about any public release of information about individual MIT employees: we will seek to protect their privacy. At the same time, MIT is eager to share important facts about its actions in the Aaron Swartz matter with the public: Professor Hal Abelson has been charged by President Rafael Reif with conducting an analysis that will be made public in the coming weeks.Peters, quite reasonably, found this statement to be absurd. Especially the part about MIT claiming that it provided the documents in the belief that they would be kept secret. As Peters noted in response, this was obviously untrue.
"This statement is an insult to my intelligence. The documents were provided to the government before any protective order was entered, and directly contrary to this statement, with the express understanding that they would be used in a criminal prosecution', which would lead to a PUBLIC TRIAL, at which time the documents would be offered into evidence and the witnesses would testify, in public. MIT never could have expected these materials not to become public, and I find this statement to be shockingly misleading and insincere."Around this same time, the Congressional investigation into Swartz's prosecution requested the same information. Given that, Swartz's legal team met with the DOJ to discuss releasing the documents currently under protective order. They agreed to redact certain personal information (phone numbers, emails, home addresses, social security numbers, birthdays), as well as the names of four people who were questioned during the investigation, but who "were not actively involved in either the Government's or any institution's investigation" into Swartz. However, where the conversations broke down was over redacting the names and info of just about everyone else: law enforcement, MIT employees and JSTOR employees.
Swartz's lawyer argues that this information should be public and if the case had gone forward would have been public:
Criminal proceedings in our nation's courts are presumptively public....They further note that hiding the names of those actually responsible will make the Congressional investigation into what happened much more difficult. Second, the information was provided initially without any expectation that this info would be kept private, so to ask for it to be kept private now makes little sense. In fact, they note that most of the people named, who the government and MIT wish to redact, were likely potential witnesses had the trial been able to move forward. "Consequently, MIT and JSTOR cannot now claim any reliance interest on behalf of their employees in the continued privacy of their emails at the time they produced the emails at issue to the government." They further point out that most of the names in question are already public and highlight press accounts and previous releases of documents in the case that specifically name: "MIT employees Dave Newman, Paul Acosta, Ellen Duranceau, Ann Wolpert, Mike Halsall, and Mark Sillis and JSTOR employee Brian Larsen, identifies their positions, and quotes their email communications." Given that this is already public, it seems odd to further seek to redact their participation.
As described above, the circumstances in this case have changed dramatically. Perhaps most obviously, with Mr. Swartz's death, there is no longer a case to prosecute and thus no danger that disclosure will impede a fair trial. Mr. Swartz's tragic death has also led to an increase in public interest in both the details of the investigation and prosecution and the reasonableness of prosecutions under the CFAA generally. In its discussions with Mr. Swartz's counsel about modifying the Protective Order, the Government has not, to date, asserted any reliance interest based on the Protective Order. Even if it were to assert such an interest, any Government reliance on the Protective Order's terms is tempered by the fact that it is a blanket order and therefore inherently overinclusive. As this District explained in Bulger, modification of such a blanket order is not unusual. Id. at 54. As a result, the only interest left to be balanced against the significant public interest in access to unredacted documents is the alleged privacy interest of the government employees and third party individuals named in the discovery materials. For the reasons discussed below, those interests are minimal and are overcome by the public interest in the disclosure of these documents.
The argument in the other direction is that the attention this case has received means that names of such folks might lead to threats, but Swartz's lawyer says there has been no evidence presented of any threats to MIT or JSTOR employees -- and even if there was, that wouldn't necessitate blocking out info on all such employees.
Separately, his lawyers point out that redacting law enforcement officials names makes even less sense, given that they are public employees.
Days after this motion was filed, MIT "responded" by agreeing to release the documents itself... but with those same redactions requested by the DOJ. MIT President Reif has tried to spin this as being "in the spirit of openness, balanced with responsibility." Of course, that doesn't make much sense. The DOJ has already agreed that this same level of information should be released, so MIT isn't doing anything here other than making it appear -- falsely -- as if it is making some concession towards openness. On top of that, MIT has said it will not release this info until its overall investigation is over.
Not surprisingly, Swartz's family is not particularly impressed by all of this. In a statement provided to us, Swartz's girlfriend, Taren Stinebrickner-Kauffman, notes that this is misleading not just because MIT isn't doing anything new here, but also in that this isn't MIT's decision at all.
“I welcome President Reif's commitment to transparency. However, this announcement is misleading. MIT does not get to decide in what form the evidence is released publicly. The judge does. MIT has already given this evidence to the courts, at which point it gave up proprietary control over the evidence. President Reif's decision simply foreshadows the inevitability that the judge will release at least this much of the evidence. It sets a low bar, but it does not decide the matter. The redacted documents MIT is releasing only tell one part of the story. Huge amounts of information would still be hidden beneath the protective order -- information that MIT's investigators themselves will not have access to unless the protective order is lifted. If MIT is really committed to transparency and having a full, complete investigation, they need to join the call with Aaron’s lawyers to lift the protective order."Similarly, Aaron's father, Robert Swartz, noted that this is not a concession by MIT, and that MIT already gave up its rights to these documents, so trying to control how they are disseminated makes little sense.
"This is not a change in MIT's position. MIT could have no expectation of privacy or security since this evidence was given to the government with the understanding that it was evidence in a public trial,” said Robert Swartz, Aaron’s father. “They understood when they gave these documents to the government that they had no rights to privacy or security. MIT should release all internal communications related to this case whether or not they were provided to the government including all internal communications they had related to how they handled it and decided not to ask the government to drop the case."Stinebrickner-Kauffman also pointed out that "if MIT wished to protect these people's privacy, MIT should not have become involved in the criminal trial to begin with. They made a calculated decision not to nip this case in the bud. They don't get to avoid the consequences now, after Aaron’s death."
by Mike Masnick
Wed, Mar 20th 2013 11:06am
from the having-quite-a-week dept
I thought perhaps Rep. Gohmert was just having a bad day. Maybe he's having a bad month. In a different hearing, held yesterday concerning ECPA reform, Gohmert opened his mouth again, and it was even worse. Much, much worse. Cringe-inducingly clueless. Yell at your screen clueless. Watch for yourself, but be prepared to want to yell.
Rep. Gohmert: I was curious. Doesn't Google sell information acquired from emails to different vendors so that they can target certain individuals with their promotions?Okay, already we're off to a great start in monumental ignorance. The initial question was based on a complete falsehood -- that Google sells such information -- and after the lawyer told him that this is not true, Gohmert completely ignores that and still asks how they get the emails. It never seems to occur to him that they don't get the emails.
Google lawyer whose name I didn't catch: Uh, no, we don't sell email content. We do have a system -- similar to the system we have for scanning for spam and malware -- that can identify what type of ads are most relevant to serve on email messages. It's an automated process. There's no human interaction. Certainly, the email is not sold to anybody or disclosed.
Gohmert: So how do these other vendors get our emails and think that we may be interested in the products they're selling.
Google lawyer: They don't actually get your email. What they're able to do is through our advertising business be able to identify keywords that they would like to trigger the display of one of their ads, but they don't get information about who the user is or any...NO. Not correct. In fact, that's the exact opposite of what the lawyer just said. Gohmert can't seem to comprehend that Google placing targeted ads next to emails has NOTHING to do with sending any information back to the advertiser. I wonder, when Rep. Gohmert turns on his television to watch the evening news, does he think that the TV station is sending his name, address, channel watching info, etc. back to advertisers? That's not how it works. At all. The advertisers state where they want their ads to appear, and Google's system figures out where to place the ads. At no point does any information from email accounts go back to anyone. And yet Gohmert keeps asking.
Gohmert: Well that brings me back. So they get information about keywords in our emails that they use to decide who to send promotions to, albeit automatically done. Correct?
And not understanding the rather basic answers. Unfortunately, the lawyer tries to actually explain reality to Gohmert in a professional and detailed manner, when it seems clear that the proper way to answer his questions is in shorter, simpler sentences such as: "No, that's 100% incorrect."
Lawyer: The email context is used to identify what ads are most relevant to the user...Okay, try not to hit your head on your desk after that exchange. First, he (perhaps accidentally) gets a statement more or less correct, that advertisers pay to have their ads show up, but immediately follows that up with something completely unrelated to that. First, he tosses in "Scroogled" -- a term that Microsoft uses in its advertising against Gmail and in favor of Outlook.com -- suggesting exactly where this "line" of questioning may have originated. Tip to Microsoft lobbyists, by the way: if you want to put Google on the hot seat, it might help to try a line of questioning that actually makes sense.
Gohmert: And do they pay for the right or the contractual ability to target those individuals who use those keywords?
Lawyer: I might phrase that slightly differently, but the gist is correct, that advertisers are able to bid for the placement of advertisements to users, where our system has detected might be interested in the advertisement.
Gohmert: Okay, so what would prevent the federal government from making a deal with Google, so they could also "Scroogle" people, and say "I want to know everyone who has ever used the term 'Benghazi'" or "I want everyone who's ever used... a certain term." Would you discriminate against the government, or would you allow the government to know about all emails that included those words?
Then, the second part, you just have to say huh? The lawyer already explained, repeatedly, that Google doesn't send any information back to the advertiser, and yet he's trying to suggest that the government snooping through your email is the same thing... and Google somehow not giving the government that info is Google "discriminating" against the government? What? Really?
Lawyer [confounded look] Uh... sir, I think those are apples and oranges. I think the disclosure of the identity...Seriously? I recognize that there are no requirements on intelligence to get elected to Congress, but is there anyone who honestly could not comprehend what he meant by saying it's "apples and oranges"? But, clearly he does not understand that because not only does he mock the analogy, he then repeats the same question in which he insists -- despite the multiple explanations that state the exact opposite -- that advertisers get access to emails and information about email users, and that the government should be able to do the same thing.
Gohmert: I'm not asking for a fruit comparison. I'm just asking would you be willing to make that deal with the government? The same one you do with private advertisers, so that the government would know which emails are using which words.
Lawyer: Thank you, sir. I meant by that, that it isn't the same deal that's being suggested there.Holy crap. Gohmert, for the fourth time already, nobody gets email addresses. No private business gets the email addresses. No private business gets to see inside of anyone's email. Seeing inside someone's email has nothing to do with buying ads in email. If the government wants to "do the same deal as private advertisers" then yes it can advertise on Gmail... and it still won't get the email addresses or any other information about emailers, because at no point does Google advertising work that way.
Gohmert: But I'm asking specifically if the same type of deal could be made by the federal government? [some pointless rant about US government videos aired overseas that is completely irrelevant and which it wasn't worth transcribing] But if that same government will spend tens of thousands to do a commercial, they might, under some hare-brained idea like to do a deal to get all the email addresses that use certain words. Couldn't they make that same kind of deal that private advertisers do?
Lawyer: We would not honor a request from the government for such a...No. No. No. No. No. The lawyer already told you half a dozen times, no. The government can do exactly what private advertisers do, which is buy ads. And, just like private advertisers, they would get back no email addresses or any such information.
Gohmert: So you would discriminate against the government if they tried to do what your private advertisers do?
Lawyer: I don't think that describes what private advertisers...What are we doing, here? Because it certainly seems like you're making one of the most ignorant arguments ever to come out of an elected officials' mouth, and that's saying quite a bit. You keep saying "private advertisers get A" when the reality is that private advertisers get nothing of the sort -- and then you ignore that (over and over and over and over again) and then say "well if private advertisers get A, why can't the government get A." The answer is because neither of them get A and never have.
Gohmert: Okay, does anybody here have any -- obviously, you're doing a good job protecting your employer -- but does anybody have any proposed legislation that would assist us in what we're doing?
Gohmert: I would be very interested in any phrase, any clauses, any items that we might add to legislation, or take from existing legislation, to help us deal with this problem. Because I am very interested and very concerned about our privacy and our email.If you were either interested or concerned then you would know that no such information goes back to advertisers before you stepped into the room (hell, before you got elected, really). But, even if you were ignorant of that fact before the hearing, the fact that the lawyer tried half a dozen times, in a half a dozen different ways to tell you that the information is not shared should have educated you on that fact. So I'm "very interested" in what sort of "language" Gohmert is going to try to add to legislation that deals with a non-existent problem that he insists is real.
Gohmert: And just so the simpletons that sometimes write for the Huffington Post understand, I don't want the government to have all that information.Har, har, har... wait, what? So much insanity to unpack. First of all, Gohmert seems to think that people will be making fun of him for suggesting that the government should "buy" access to your email on Google. And, yes, we will make fun of that, but not for the reasons that he thinks they will. No one thinks that Gohmert seriously wants the government to buy access to information on Google. What everyone's laughing (or cringing) at is the idea that anyone could buy that info, because you can't. No private advertiser. No government. It's just not possible.
Rep. Sensenbrenner: For the point of personal privilege, my son writes for the Huffington Post.
Gohmert: Well then maybe he's not one of the simpletons I was referring to.
Sensenbrenner: He does have a Phd.
Gohmert: Well, you can still be a PHUL.
But, I guess we're all just "simpletons."
Seriously, however, we as citizens deserve better politicians. No one expects politicians to necessarily understand every aspect of technology, but there are some simple concepts that you should at least be able to grasp when explained to you repeatedly by experts. When a politician repeatedly demonstrates no ability to comprehend a rather basic concept -- and to then granstand on their own ignorance -- it's time to find better politicians. Quickly.
by Glyn Moody
Wed, Mar 20th 2013 10:00am
California Attorney General Claims Foreign Companies Using 'Pirated' Software Represent Unfair Competition
from the what? dept
Two years ago, Techdirt wrote about the major report "Media Piracy in Emerging Economies", which explored how media and software piracy in emerging countries is largely a question of economics: people and companies there simply cannot afford Western-style pricing, and resort to alternative sourcing. That hasn't stopped media and computer companies from demanding that governments around the world should inflict ever-more harsh punishments on their own people.
Against that background, it's perhaps no wonder that people have been looking for new ways to "encourage" foreign users to buy those high-priced goods. Back in 2011, we wrote about one crazy proposal from Microsoft: to make the purchasers of any product from an overseas company that uses unauthorized software liable in the US. Things went quiet after that, and it seemed that this idea had been dropped. No such luck: judging by this story found via @teirdes, it's back, albeit in a modified form:
California's Attorney General Kamala Harris has filed a lawsuit against two Indian and Chinese apparel companies for allegedly using pirated softwares in the production of their cloths for exports and to be sold in the state.
You might wonder what the software used by textile companies in India or China has to do with California; here's the answer according to the Attorney General:
The complaints allege that the foreign apparel makers who have not paid software licensing fees have a significant cost advantage in the low-margin business of apparel manufacturing, shipment and sales.
That seems a pretty big stretch. After all, any savings gained by using pirated copies will be spread over huge numbers of items, and will probably amount to fractions of a cent for each. That difference will be swamped by other factors -- for example, the fact that most fixed and variable costs in India and China are much lower than in California.
But there's a larger issue here: the attempted extra-territorial enforcement of US laws. As an excellent analysis of this case at Spicy IP points out:
American software companies have the right to file copyright infringement lawsuits against Indian companies in India under the Copyright Act, 1957 and they have been exercising this right for the last 10 years with a high rate of success.
If there's a problem with piracy in India, there are Indian laws and courts there that can and do deal with it. Attempting to enforce US laws in India jeopardizes the existing global legal framework that seems to work reasonably well. Does America really want other governments claiming that actions on US soil have broken foreign laws, and should be tried abroad?
For an Indian manufacturer, fighting a lawsuit in Delhi itself can be expensive but defending a lawsuit in California will be at least 20 to 30 times more expensive. It is very likely that just the pre-trial expenses will outstrip the entire cost of the export consignment. The cheaper option is to buy the software licences and this is exactly what the Americans are counting on. They hope to create enough fear amongst Indian exporters that they flock to the closest American software company and stock up on software.
This is exactly how copyright and patent trolls work: make the process of dealing with them so expensive and inconvenient it's simpler and cheaper just to pay them off regardless of whether they are in the right. However, this is not how government lawyers are supposed to operate.
The more significant fear now is that American software companies operating in India will use such lawsuits to extract not only future licence fees but extortionist damages for prior use of software.
If companies start paying up, a precedent will have been created. The model will spread, and the demands for retrospective payments will probably follow, which would lead to considerable capital outflows.
Of course, there is one obvious way to solve this problem: encourage local companies to move to open source software, which can be freely copied as many times as desired. It would be rather ironic if the Attorney General's attempt to put pressure on Indian and Chinese exporters backfired in this way, and resulted in less income for traditional software companies in Silicon Valley, not more.
by Mike Masnick
Wed, Mar 20th 2013 8:50am
from the book-club dept
by Mike Masnick
Wed, Mar 20th 2013 8:34am
from the manifestly-unjust dept
I have just returned from deployment overseas [in] Afghanistan and was not aware of music being downloaded. It is very difficult to determine who in the household is responsible for downloading music as flatmates are currently deployed around NZ.And yet... the Tribunal still made him pay $255.97, despite not doing anything. The breakdown was $200 to reimburse the RIANZ for the application against him, $50 in fees, and another $5.97 for the "price" of the 3 songs on iTunes. Of course, since he wasn't the one who downloaded the songs in the first place, it seems ridiculous that he should have to pay for those songs, let alone the various other fees.
However I understand entirely that I am the person who is held liable for these actions. I have spoken to the pers [sic] who have access to my internet IP address, and between 8 pers, we cannot determine who is fully responsible.
I ask that this notice be a lesson to those in my household as they now understand how severe the consequences may be for committing such an act. I do not wish this situation to grow any more than it needs to be. I am currently going through transitioning from military life in Afghanistan to life back home in NZ, and I'm not fit to tackle this allegation made against me.
However, I take full responsibility for the acts committed under my IP address and wish for this to be resolved asap. I am willing to co-operate by any means required of me.
As Rick Shera points out in the link above, the Tribunal even acknowledged that it could override the automatic fine by claiming such a ruling would be "manifestly unjust," but bizarrely chose not to. Shera questions under what circumstances the Tribunal would ever use that ability if it didn't use it in this case:
So, it was open to the Tribunal to decide in these circumstances - soldier overseas, no way of knowing who infringed and therefore no ability to recover any award, admitted responsibility - that to make an award was manifestly unjust. Remember that it is unjustness to the account holder (the soldier in this instance) that is relevant not any unjustness to or cost incurred by the copyright owner. Difficult for the Tribunal though without any argument on the point being presented by the Respondent.
I have said before that trying to show manifest unjustness will be extremely hard, especially given the presumption of guilt in section 122N and the fact that an account holder is liable for all actions taken using its account. I think this case underlines that. I find it hard now to imagine any circumstance that will invoke this protection for an account holder.
by Mike Masnick
Wed, Mar 20th 2013 7:34am
from the and-off-we-go dept
“The Supreme Court's ruling in Kirtsaeng v. Wiley raises concerning questions about the future of U.S. copyright law,” Collins said. “Many industries and businesses in Georgia rely on strong copyright protections to create jobs and invest in our local economies, including the established and exclusive right to import in to the United States. When a U.S. business harnesses innovation and creativity to develop a product, they should have certainty their copyrighted work will be protected against unauthorized importation of foreign products.No, actually, it doesn't raise any serious questions. It confirms a basic principle that "you own what you've purchased." It's amazing that a Representative who claims that he wants government to get out of the way and and that "the private sector is best at generating economic growth" would suddenly pipe up in favor of centralized monopolies handed out by the federal government. Furthermore, it's ridiculous, wrong and misleading to argue that Kirtsaeng is somehow antithetical to "strong copyright protections." The first sale doctrine has existed in the US for ages and nothing in it goes against "strong copyright protections." The Supreme Court decision standing up for first sale is hardly an attack on copyright. Even the claim about "being protected against unauthorized importation of foreign products." That's not a copyright issue, but an import issue. Here, again, Collins, who pretends to be for free trade, appears to be arguing that the US should have tariffs. It's funny what copyright will do to politicians -- including highlighting their own hypocrisies.
“As a Member of the House Judiciary Committee, I look forward to discussing the need for strong copyright protections with the Register of Copyrights at a subcommittee hearing tomorrow afternoon.”
by Tim Cushing
Wed, Mar 20th 2013 5:34am
from the EA-is-so-hardcore-it-only-plays-PR-in-'Nightmare-Mode' dept
The wheels have now come completely off EA's DRMobile, thanks to its botched SimCity launch that was marred by server issues, long lines at the refund counter and some amazingly bad coding, all held together by Maxis GM Lucy Bradshaw's irrepressible bullshit-spinning. The backlash has been enormous and EA is likely wishing it was back in the good old days when Spore (remember that backlash?) was nothing more than harmless vaporware.
It's safe to say that EA has almost single-handedly run the
good highly-tarnished name of DRM and internet-only requirements into the ground, finishing the job Diablo 3 began last year. Many gamers have pointed out the futility of these anti-piracy (and anti-cheating/hacking) efforts as well as unleashed their fury at being handed a worthless, broken-on-purpose product in exchange for their money.
And it's not just angry customers making noise. Super Meat Boy developer Tommy Refenes has weighed in with his thoughts on EA's open hostility towards its paying customers. (It's a truly excellent post, and I would encourage you to click through and read the entire article.)
The first problem he sees with EA's actions is its insistence on using intangible losses from piracy to shape its software development.
I think I can safely say that Super Meat Boy has been pirated at least 200,000 times. We are closing in on 2 million sales and assuming a 10% piracy to sales ratio does not seem unreasonable. As a forward thinking developer who exists in the present, I realize and accept that a pirated copy of a digital game does not equate to money being taken out of my pocket. Team Meat shows no loss in our year end totals due to piracy and neither should any other developer.This last sentence goes against the ingrained thinking of many in the content industries. These industries tend to conjure up huge loss numbers year after year to justify DRM, always-online requirements and a general push for more anti-piracy efforts (including legislation.) To them, every illegal download is a lost sale. It has to be, otherwise the entire premise behind their actions falls apart. (Contrast this all-too-common reaction with Edmund McMillen's [Tommy Refenes' partner at Team Meat] disappointment that Super Meat Boy wasn't charting higher on the Pirate Bay's download charts.)
Creative accounting is the norm in these industries and nothing is more creative than showing a loss you can't possibly quantify, as Refenes points out.
Loss due to piracy is an implied loss because it is not a calculable loss. You cannot, with any accuracy, state that because your game was pirated 300 times you lost 300 sales. You cannot prove even one lost sale because there is no evidence to state that any one person who pirated your game would have bought your game if piracy did not exist. From an accounting perspective it’s speculative and a company cannot accurately determine loss or gain based on speculative accounting.Accuracy isn't really the aim when it comes to justifying the punishment of your paying customers. In order to get them to accept broken software wrapped in restrictive licenses, they first must be made to believe that millions and millions of dollars are lost each year to piracy. They must be at least somewhat convinced that EA (and Ubisoft, among others) were "forced" to insert crippling coding in order to keep the company afloat in a sea of pirating pirates.
But what have these companies actually lost when something is pirated? Is that "cost" greater than the very real cost of returning a customer's money to them? EA doesn't seem to understand there's more than one way to lose a sale.
After the frustrations with SimCity I asked Origin for a refund and received one. This was money they had and then lost a few days later. Applying our earlier conversation about calculable loss, there is a loss that is quantifiable, that will show up in accounting spreadsheets and does take away from profit. That loss is the return, and it is much more dangerous than someone stealing your game...For some reason, many content companies cannot see the truth in this statement. Even though they can't prove that a pirated copy equals a lost sale, they continue to act as though piracy is a greater threat to their business than an angry customer base. For companies like EA, the customer base is large enough that it can usually be shrugged off. For smaller companies, this sort of thinking can do much more damage. In either case, negative experiences do no favors for content creators, especially in an era where people have thousands of entertainment options at their fingertips, 24 hours a day.
In the retail world, you could potentially put a return back on the shelf, you could find another customer that wants it, sell it to them and there would be virtually no loss. In the digital world, because there is no set amount of goods, you gain nothing back (one plus infinity is still infinity). It’s only a negative experience. A negative frustrating experience for a customer should be considered more damaging than a torrent of your game.
Refenes brings the fight to developers (like Maxis) who use "lost sale" figures pulled from the ether to justify the addition of DRM.
I challenge a developer to show evidence that accurately shows implementation of DRM is a return on investment and that losses due to piracy can be calculated. I do not believe this is possible.Any honest developer simply can't do this. Pointing to something like a download total from The Pirate Bay doesn't definitively show anything more than the number of times that title was downloaded. Anything else is merely a theory, and a pretty weak one at that. But Refenes has a suggestion, one all content creators should take to heart.
I do believe people are less likely to pirate your software if the software is easy to buy, easy to run, and does what is advertised.Why this instead of fighting piracy? Because taking away the free option just isn't enough.
People have to WANT to buy your software, people have to WANT to support you. People need to care about your employees and your company’s well being. There is no better way to achieve that than making sure what you put out there is the best you can do and you treat your customers with respect.EA clearly has little respect for its customers. The frontmouth of Maxis, whether using her own words or having them supplied from higher up, proved this with a week of complete denialism. There was no respect from launch day forward. Every new hole in EA's story was greeted with re-confirmation of the same story, occasionally mixed with a bit of hedging.
The developers at Team Meat obviously respect their customers and have been rewarded for their efforts. Even with evidence of massive piracy staring them in the face, they never opted to cripple their game with a "piracy speedbump" that would have adversely affected those who chose to give them their hard-earned money.
by Mike Masnick
Wed, Mar 20th 2013 3:34am
from the it's-not-a-matter-of-trade dept
First, we insist that the European Union and United States release, in timely and ongoing fashion, any and all negotiating or pre-negotiation texts. We believe that secretive “trade” negotiations are absolutely unacceptable forums for devising binding rules that change national non-trade laws.Frankly, they could go much further in their statement. As we've pointed out for years, things like patents and copyrights are the exact opposite of "free trade." They are, by definition, restrictions on free trade -- and a form of protectionism. If the goal of a free trade agreement is to remove those kinds of restrictions and ease the flow of trade between nations, it seems incredibly strange to bundle it with blatant mercantilist concepts of protectionism and monopolies.
Second, we insist that the proposed TAFTA exclude any provisions related to patents, copyright, trademarks, data protection, geographical indications, or other forms of so-called “intellectual property”. Such provisions could impede our rights to health, culture, and free expression and otherwise affect our daily lives.
Past trade agreements negotiated by the US and EU have significantly increased the privileges of multinational corporations at the expense of society in general. Provisions in these agreements can, among many other concerns, limit free speech, constrain access to educational materials such as textbooks and academic journals, and, in the case of medicines, raise healthcare costs and contribute to preventable suffering and death.
Unless “intellectual property” is excluded from these talks, we fear that the outcome will be an agreement that inflicts the worst of both regimes’ rules on the other party. From a democratic perspective, we believe that important rules governing technology, health, and culture should be debated in the US Congress, the European Parliament, national parliaments, and other transparent forums where all stakeholders can be heard—not in closed negotiations that give privileged access to corporate insiders.
The TAFTA negotiations must not lead to a rewriting of patent and copyright rules in a way that tilts the balance even further away from the interests of citizens.
by Glyn Moody
Wed, Mar 20th 2013 12:09am
london evening standard
from the once-you're-lucky,-twice-it's-a-business-model dept
Andrew Mullins, the paper's managing director, says that in the year up to 30 September , the Standard managed to return a profit of just over £1m [$1.5 million].Confronted by this kind of result, the copyright maximalists will probably say: so what? One success proves nothing -- it can't be generalized. But it turns out that another London publication, the weekly listings magazine Time Out, has recently made a similar move, reducing its price to zero. Not surprisingly, that has allowed it to boost its circulation hugely:
The transformation from loss into profit is remarkable when set against the background of the paper's enormous losses when it was a paid-for title.
At the time the paper went free, on 10 October 2009, the previous quarter's figures, if annualised, would have registered a loss of £30m [$45 million].
According to figures from the Audit Bureau of Circulations, Time Out had an average weekly circulation of 305,530 in the final four months of 2012, over five and a half times its 54,875-strong circulation in the same period of 2011.Of course, giving away more copies is easy; the hard part is making money by doing so:
Although Pepper declined to comment on profit targets for the free magazine he said the Time Out business "makes money" and he hopes it will stay in profit.Given the tough economic climate, it's impressive that not one but two companies have turned around ailing publications by giving away copies of previously paid-for titles. Of course, the copyright industries will once more dismiss these as "only" being two examples. So the question has to be: just how many dramatic success stories like these does it take before that tired old cliché about the impossibility of making money by giving things away is taken out the back and finally put out of its misery?
Pepper said: "Ad revenue has massively exceeded our expectations. We have seen very strong double-digit year-on-year growth. You can read as much as you like in to that but the print market is not having a strong time in general."