from the fairness? dept
Unfortunately, the Senate passed the bill by a decent margin, 69-27. The bill will move to the House where it may be more difficult to pass. So it may die on the vine, even as the administration has said it will support it.
by Mike Masnick
Mon, May 6th 2013 7:59pm
by Michael Ho
Mon, May 6th 2013 5:00pm
by Mike Masnick
Mon, May 6th 2013 4:42pm
Steele, Hansmeier, and Duffy (“Principals”) are attorneys with shattered law practices. Seeking easy money, they conspired to operate this enterprise and formed the AF Holdings and Ingenuity 13 entities (among other fungible entities) for the sole purpose of litigating copyright-infringement lawsuits. They created these entities to shield the Principals from potential liability and to give an appearance of legitimacy.That last paragraph is the key one. Given all of this, Judge Wright looks at what he can do. First, he digs into the failure of Team Prenda to "conduct a sufficient investigation" into whether or not anyone they were suing actually infringed on the copyrights they held. However, he notes, his bigger concern is not the lack of sufficient investigation, but rather Prenda's attempt at a "cover-up" of this point as well as Gibbs' "hasty after-the-fact investigation, and a shoddy one at that." In fact, he calls certain statements from Gibbs concerning the investigation "a blatant lie."
AF Holdings and Ingenuity 13 have no assets other than several copyrights to pornographic movies. There are no official owners or officers for these two offshore entities, but the Principals are the de facto owners and officers.
The Principals started their copyright-enforcement crusade in about 2010, through Prenda Law, which was also owned and controlled by the Principals. Their litigation strategy consisted of monitoring BitTorrent download activity of their copyrighted pornographic movies, recording IP addresses of the computers downloading the movies, filing suit in federal court to subpoena Internet Service Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and sending cease-and-desist letters to the subscribers, offering to settle each copyright infringement claim for about $4,000.
This nationwide strategy was highly successful because of statutory copyright damages, the pornographic subject matter, and the high cost of litigation. Most defendants settled with the Principals, resulting in proceeds of millions of dollars due to the numerosity of defendants. These settlement funds resided in the Principals’ accounts and not in accounts belonging to AF Holdings or Ingenuity 13. No taxes have been paid on this income.
For defendants that refused to settle, the Principals engaged in vexatious litigation designed to coerce settlement. These lawsuits were filed using boilerplate complaints based on a modicum of evidence, calculated to maximize settlement profits by minimizing costs and effort.
The Principals have shown little desire to proceed in these lawsuits when faced with a determined defendant. Instead of litigating, they dismiss the case. When pressed for discovery, the Principals offer only disinformation—even to the Court.
The Principals have hired willing attorneys, like Gibbs, to prosecute these cases. Though Gibbs is culpable for his own conduct before the Court, the Principals directed his actions. In some instances, Gibbs operated within narrow parameters given to him by the Principals, whom he called “senior attorneys.”
The Principals maintained full control over the entire copyright-litigation operation. The Principals dictated the strategy to employ in each case, ordered their hired lawyers and witnesses to provide disinformation about the cases and the nature of their operation, and possessed all financial interests in the outcome of each case.
The Principals stole the identity of Alan Cooper (of 2170 Highway 47 North, Isle, MN 56342). The Principals fraudulently signed the copyright assignment for “Popular Demand” using Alan Cooper’s signature without his authorization, holding him out to be an officer of AF Holdings. Alan Cooper is not an officer of AF Holdings and has no affiliation with Plaintiffs other than his employment as a groundskeeper for Steele. There is no other person named Alan Cooper related to AF Holdings or Ingenuity 13.
The Principals ordered Gibbs to commit the following acts before this Court: file copyright-infringement complaints based on a single snapshot of Internet activity; name individuals as defendants based on a statistical guess; and assert a copyright assignment with a fraudulent signature. The Principals also instructed Gibbs to prosecute these lawsuits only if they remained profitable; and to dismiss them otherwise.
Plaintiffs have demonstrated their willingness to deceive not just this Court, but other courts where they have appeared. Plaintiffs’ representations about their operations, relationships, and financial interests have varied from feigned ignorance to misstatements to outright lies. But this deception was calculated so that the Court would grant Plaintiffs’ early-discovery requests, thereby allowing Plaintiffs to identify defendants and exact settlement proceeds from them. With these granted requests, Plaintiffs borrow the authority of the Court to pressure settlement.
Gibbs’s statement is a blatant lie. His statement resembles other statements given by Plaintiffs in this and their other cases: statements that sound reasonable but lack truth. Thus, the Court concludes that Gibbs, even in the face of sanctions, continued to make factual misrepresentions to the Court.However, he notes that even with this, it is inappropriate to impose Rule 11 sanctions (typically used for attorney misconduct) because the cases have already been dismissed. Wright then goes through a list of other deceptions by Prenda, including the Cooper forgery, ignoring the order blocking early discovery, the self-dealing with the copyright, the failure to disclose their own interest in the case, and other attempts to obfuscate facts. However, he notes, sanctions are still not the most appropriate, given that a decently large sanction wouldn't be effective because the plaintiffs "will transfer out their settlement proceeds and plead paucity."
though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up is familiar with their prime directive and will gladly refit them for their next voyage. The Court will refer this matter to the United States Attorney for the Central District of California. The will also refer this matter to the Criminal Investigation Division of the Internal Revenue Service and will notify all judges before whom these attorneys have pending cases. For the sake of completeness, the Court requests Pietz to assist by filing a report, within 14 days, containing contact information for: (1) every bar (state and federal) where these attorneys are admitted to practice; and (2) every judge before whom these attorneys have pending cases.
by Mike Masnick
Mon, May 6th 2013 2:43pm
Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.And we've wondered why other countries do not do the same. When I was in Spain last week, a reporter I spoke to kept asking about the Special 301 list, as it seemed to be such a key concern for people there, and I noted that more countries should do what Canada does. I realize that there are other issues there, and Canada knows that the US isn't likely to create a trade war over the list, but it still seemed odd how seriously some other countries take the list.
The Chilean government said today it does not recognize as a valid instrument rating called "301 list" that makes the United States on violation of intellectual property rights and this year again includes the country in its Priority Watch section .Good for Chile to stand up for itself against the list.
"This report is conducted outside the margins of the Free Trade Agreement between our country and the U.S., and therefore not recognized by Chile as a valid instrument rating," said a statement released this morning.
The "'301 List' lacks clear criteria for categorizing the different countries, but is rather a reflection of the interests of American industry selectively applying their intellectual property standards to other countries," it added.
by Mike Masnick
Mon, May 6th 2013 1:37pm
american psychiatric association
But it is critical to realize that we cannot succeed if we use DSM categories as the “gold standard.” The diagnostic system has to be based on the emerging research data, not on the current symptom-based categories. Imagine deciding that EKGs were not useful because many patients with chest pain did not have EKG changes. That is what we have been doing for decades when we reject a biomarker because it does not detect a DSM category. We need to begin collecting the genetic, imaging, physiologic, and cognitive data to see how all the data – not just the symptoms – cluster and how these clusters relate to treatment response.As others have noted, this is a "potentially seismic move" since the NIMH is so central to funding so much research concerning mental health.
That is why NIMH will be re-orienting its research away from DSM categories. Going forward, we will be supporting research projects that look across current categories – or sub-divide current categories – to begin to develop a better system. What does this mean for applicants? Clinical trials might study all patients in a mood clinic rather than those meeting strict major depressive disorder criteria. Studies of biomarkers for “depression” might begin by looking across many disorders with anhedonia or emotional appraisal bias or psychomotor retardation to understand the circuitry underlying these symptoms. What does this mean for patients? We are committed to new and better treatments, but we feel this will only happen by developing a more precise diagnostic system.
by Mike Masnick
Mon, May 6th 2013 12:27pm
by Mike Masnick
Mon, May 6th 2013 11:04am
by Mike Masnick
Mon, May 6th 2013 9:59am
With respect to changing incentives for creators, distributors, and users, research could help determineThe paper itself points to the concerns raised over things like SOPA and ACTA as reason to have a more empirical based approach to copyright reform, which is a good sign (and goes against those who insist that the SOPA protests had no real impact). The report goes into a lot more details, including a number of other important research topics as well.
With respect to the enablers of and impediments to voluntary licensing transactions in copyrighted works, research would help determine
- how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating revenues to offset those expenses;
- under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;
- the motivations of various types of users and potential users of creative works, including both infringers and lawful users; the effects of enhanced enforcement remedies on promoting creativity, technological innovation, and freedom of expression; and
- how the costs of distributing creative content are affected by social media and other new technologies.
With respect to the enforcement challenges, research could help determine
- the significance of transaction costs as barriers to utilization of copyrighted works;
- the extent of problems involving orphan works (whose owners cannot be identified), user-generated content, and collaborative and iterative works;
- what are successful arrangements for managing transaction costs;
- the roles of public and private institutions in facilitating licensing;
- the relationship of transaction costs to legal rules such as compulsory licenses; and
- changes in transaction costs with new technological and business developments.
In assessing the balance between copyright protection and the statutory exceptions and limitations to copyright research could help determine
- how much is spent by governments and private parties on copyright enforcement;
- against whom enforcement efforts are targeted and what remedies are sought and granted;
- the results of enforcement efforts in terms of compensation, prevention, education, and deterrence;
- how the effectiveness of enforcement efforts is changing with the expansion of digital networks;
- the costs and benefits of current enforcement methods vis-a-vis those associated with proposed new enforcement methods;
- the relative vulnerability of different business models to infringement; and
- the costs and benefits of fair use exceptions and the Digital Millennium Copyright Act (DMCA) safe harbors.
Eventually, research will help inform decisions about key aspects of copyright policy, including
- the costs and benefits of copyright exceptions and limitations in terms of the economic outputs and welfare effects of those individuals, businesses, educational institutions, and other entities that rely on them;
- how copyright and the various categories of limits and exceptions interact with innovative and/or disruptive technologies and platforms; and
- what adverse effects, if any, exceptions and limitations have on copyright holders and their potential to generate economic outputs and welfare effects.
- the appropriate scope of copyright protection;
- the optimal duration of the copyright term;
- the best arrangements for correcting market imperfections that inhibit voluntary licensing;
- appropriate safe harbors and fair use exceptions to copyright;
- effective enforcement remedies for infringing use and the best arrangements for correcting deficiencies in enforcement mechanisms;
- the advisability of reintroducing a formal registration requirement; and
- the advantages and disadvantages of reshaping the copyright regime with different rules for different media.
by Mike Masnick
Mon, May 6th 2013 8:41am
[Michael Froman's] one of the most egregious examples — up there with Bob Rubin, literally — we’ve yet seen of the way the revolving door works between business and government generally, and between Citigroup and Treasury in particular.That's troubling, to say the least. Salmon points to a Matt Taibbi piece for Rolling Stone that highlights some very questionable activity on the part of Froman, including keeping his job at Citibank while helping to select the economic team for Obama's first term... the very folks who would be in charge of regulating Citibank.
Leading the search for the president’s new economic team was his close friend and Harvard Law classmate Michael Froman, a high-ranking executive at Citigroup. During the campaign, Froman had emerged as one of Obama’s biggest fundraisers, bundling $200,000 in contributions and introducing the candidate to a host of heavy hitters — chief among them his mentor Bob Rubin, the former co-chairman of Goldman Sachs who served as Treasury secretary under Bill Clinton. Froman had served as chief of staff to Rubin at Treasury, and had followed his boss when Rubin left the Clinton administration to serve as a senior counselor to Citigroup (a massive new financial conglomerate created by deregulatory moves pushed through by Rubin himself).That piece also talks about Froman's role in getting Timothy Geithner his job at Treasury, right after Geithner helped craft the bailout of Citibank that basically put all the risk on the Fed and didn't require any Citi concessions or exec changes, despite their own culpability in making a ton of bad investments.
Incredibly, Froman did not resign from the bank when he went to work for Obama: He remained in the employ of Citigroup for two more months, even as he helped appoint the very people who would shape the future of his own firm....
Geithner, in other words, is hired to head the U.S. Treasury by an executive from Citigroup — Michael Froman — before the ink is even dry on a massive government giveaway to Citigroup that Geithner himself was instrumental in delivering. In the annals of brazen political swindles, this one has to go in the all-time Fuck-the-Optics Hall of Fame.I was hopeful that perhaps we'd get a USTR who was in favor of openness and transparency, but it looks like Froman may be the quintessential example of a backroom dealer, who already has a reputation for pushing through bad trade agreements.
Wall Street loved the Citi bailout and the Geithner nomination so much that the Dow immediately posted its biggest two-day jump since 1987, rising 11.8 percent. Citi shares jumped 58 percent in a single day, and JP Morgan Chase, Merrill Lynch and Morgan Stanley soared more than 20 percent, as Wall Street embraced the news that the government’s bailout generosity would not die with George W. Bush and Hank Paulson.
by Mike Masnick
Mon, May 6th 2013 7:20am
The video content we stream to customers is protected with Digital Rights Management (DRM). This is a requirement for any premium subscription video service. The Encrypted Media Extensions allow us to play protected video content in the browser by providing a standardized way for DRM systems to be used with the media element. For example, the specification identifies an encrypted stream format (Common Encryption for the ISO file format, using AES-128 counter mode) and defines how the DRM license challenge/response is handled, both in ways that are independent of any particular DRM. We need to continue to use DRM whether we use a browser plugin or the HTML5 media element, and these extensions make it possible for us to integrate with a variety of DRM systems that may be used by the browser.This seems disingenuous. While Netflix and its studio partners may like DRM, there is no reason that it actually "is a requirement for any premium subscription video service." Lots of professional content and marketplaces work without DRM. Yes, some will copy, but most don't seem to bother. There is no reason that this needs to be built in, and there are many consequences for doing so.
The other view has been represented by corporations that have tried to seize control of the Web with their own proprietary extensions. It has been represented by technologies like Adobe's Flash, Microsoft's Silverlight, and pushes by Apple, phone companies, and others toward highly restrictive new platforms. These technologies are intended to be available from a single source or to require permission for new implementations. Whenever these technologies have become popular, they have inflicted damage on the open ecosystems around them. Websites that depend on Flash or Silverlight typically can't be linked to properly, can't be indexed, can't be translated by machine, can't be accessed by users with disabilities, don't work on all devices, and pose security and privacy risks to their users. Platforms and devices that restrict their users inevitably prevent important innovations and hamper marketplace competition.
The EME proposal suffers from many of these problems because it explicitly abdicates responsibilty on compatibility issues and let web sites require specific proprietary third-party software or even special hardware and particular operating systems (all referred to under the generic name "content decryption modules", or CDMs, and none of them specified by EME). EME's authors keep saying that what CDMs are, and do, and where they come from is totally outside of the scope of EME, and that EME itself can't be thought of as DRM because not all CDMs are DRM systems. Yet if the client can't prove it's running the particular proprietary thing the site demands, and hence doesn't have an approved CDM, it can't render the site's content. Perversely, this is exactly the reverse of the reason that the World Wide Web Consortium exists in the first place. W3C is there to create comprehensible, publicly-implementable standards that will guarantee interoperability, not to facilitate an explosion of new mutually-incompatible software and of sites and services that can only be accessed by particular devices or applications. But EME is a proposal to bring exactly that dysfunctional dynamic into HTML5, even risking a return to the "bad old days, before the Web" of deliberately limited interoperability.
As part of our sponsorship program with the Application Developers Alliance, we're highlighting some of the content on DevsBuild.It, their new resource website, that we think will be most interesting to Techdirt readers.
We've talked a lot about the tax on innovation that patent trolls create, which is well-known inside startup circles but often misunderstood by the broader public, thanks to the pro-innovation rhetoric of high-profile trolls like Intellectual Ventures. The conversation is getting more attention lately, especially with the recent news of Senator Schumer's patent reform bill which specifically aims to fight the patent troll problem, and this interview with an anonymous developer from a tech startup offers some perspective from someone who is directly affected by the issue.
by Mike Masnick
Mon, May 6th 2013 5:13am
by Tim Cushing
Mon, May 6th 2013 3:33am
When discussing NYPD Police Chief Ray Kelly's assertion that "privacy is off the table" as a result of the Boston bombing, I mentioned I hadn't heard any public outcry demanding the government and law enforcement step in and do something (i.e., curtail civil liberties) in response to the tragedy. The responses we were seeing seemed to be nothing more than legislators and law enforcement officials pushing their own agendas.
This isn't just me not hearing what I don't want to hear. There's actual data available that explains the lack of concerned noises from Americans. A CNN/TIME poll shows that nearly two-thirds of Americans aren't interested in sacrificing rights to combat terrorism.
When given a choice, 61 percent of Americans say they are more concerned about the government enacting new anti-terrorism policies that restrict civil liberties, compared to 31 percent who say they are more concerned about the government failing to enact strong new anti-terrorism policies.This is a vast improvement over 1996, when a post-Atlanta Olympics bombing poll showed only 23% opposed giving up freedom in exchange for fighting terrorism.
Explore some core concepts:
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