by Mike Masnick
Fri, Mar 25th 2011 4:01am
by Mike Masnick
Tue, Aug 31st 2010 7:37pm
from the probable-cause dept
The decision in Maynard is just one of several rulings in recent years reflecting a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private....Nice to see some judges recognizing this, though it remains to be seen how many others will agree... and how the Supreme Court reacts to all of this.
As a result of such decisions, I believe that magistrate judges presented with ex parte requests for authority to deploy various forms of warrantless location-tracking must carefully re- examine the constitutionality of such investigative techniques, and that it is no longer enough to dismiss the need for such analysis by relying on cases such as Knotts or, as discussed below, Smith v. Maryland.... For the reasons discussed below, I now conclude that the Fourth Amendment prohibits as an unreasonable search and seizure the order the government now seeks in the absence of a showing of "probable cause, supported by Oath or affirmation[.]"
by Mike Masnick
Fri, Jul 23rd 2010 8:58am
from the say-what-now dept
Defendants, and each of them, enabled the transfer/transmission and publication of this copyright protected content via mobile devices by building and implementing a peer to peer file sharing network with the dedicated purpose of enabling end users to share multimedia files via this MMS network. Defendants, and each of them, profited from these activities by charging the transmitter and receivers of this content a fee or flat rate for the transfer/transmission that resulted in the publication of said content. Despite charging the transmitter and receiver a fee for the delivery of this copyrighted content, Defendants, and each of them, failed to compensate the holder of the copyrights for this content that was necessary in generating the MMS data revenue. Furthermore, Defendants, and each of them failed or refused to provide a system where an adequate accounting of the transfer/transmission and publication of this copyrighted content could be made.Basically, this company, Luvdarts, made MMS content, and it got distributed via MMS. Since recipients of MMS can forward the MMS data they receive, such content got forwarded around. Since the mobile operators receive revenue for MMS data, Luvdarts is effectively claiming that they are profiting off the infringement of Luvdarts content. This makes no sense. It's like saying that any email provider is infringing on the copyrights of email writers by letting recipients forward emails. You know those chain emails that get passed around? Imagine if one of the authors of those then sued all the big email providers. It would get laughed out of court. Hopefully, this lawsuit gets laughed out of court too.
The one oddity is that the lawsuit claims that the mobile operators do not qualify for DMCA safe harbor protections, because they're "not service providers" as defined in the DMCA. Specifically:
The transmission of this MMS data is not covered by the exemption for Internet Service Providers as set forth in 17 U.S.C. §512 because the wireless carriers are not Internet Service Providers as defined by §512 while providing a dedicated MMS network for multimedia file sharing.Really? If you haven't read your §512 lately, why not go take a look and explain how a mobile operator offering MMS is not covered. It certainly seems covered by the definition:
Definitions.--Help me out. Where are mobile operators offering MMS features excluded? Looks like yet another frivolous lawsuit. But, of course, Luvdarts is demanding the statutory maximum of $150,000 per infringement, and claims "9,999 to 100,000 counts of infringement" (broad enough range there?). Good luck, Max.
(1) Service provider--
(A) As used in subsection (a), the term "service provider" means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.
(B) As used in this section, other than subsection (a), the term "service provider" means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).
by Mike Masnick
Thu, Jul 15th 2010 10:05pm
from the about-time dept
Apparently, I wasn't alone in thinking this and Sprint has noticed. With its new WiMax network, it has stayed away from talking about any caps, and has now admitted that the reaction to the EVDO caps is part of the reason why. They're afraid that, just as they're trying to convince people to use the WiMax network, they'll get scared off by caps. The problem, of course, is that these mobile broadband providers are fighting against themselves on these things. They want to convince the world that these networks are useful -- and to do that, you have to show all the cool things that you can do with them. But, if they haven't really invested enough in the networks, they can actually run into some congestion problems, and so they can't encourage you to use them too much. Hopefully, the investment into WiMax (or, potentially moving on to LTE) will mean that such congestion problems are mostly a thing of the past, and that it's not worth implementing caps.
That said, Sprint's admission of how people responded to the EVDO caps should be a clear warning to ISPs that keep trying to implement broadband caps or metered broadband. Doing so imposes additional costs that you might not have considered, such as the mental transaction costs your users face in determining if it's even worth using your network. Of course, ISPs should know this already. We already have a detailed case study in that AOL only really took off after it switched from hourly billing to an unlimited flat-rate. Why some ISPs want to go back to make their product less valuable is beyond me.
by Mike Masnick
Tue, Dec 8th 2009 2:02pm
from the good-luck-there dept
by Mike Masnick
Wed, Nov 4th 2009 7:22am
from the the-time-has-come dept
This is, in large part, due to poor planning on the part of Palm and Sprint. First, Palm was way too slow in really opening up its developer program. By the time it finally got around to it, more and more Android phones were hitting the market, with much more of a marketing push. Developers, given the choice, will go for the platform that actually has users. That's why I still say it was a huge mistake for Palm and Sprint not to have figured out a way to give away the Palm Pre for free. The thing that Pre needed more than anything else was market share. With market share it could attract developers and a loyal following. Without that, Palm is dead and everyone knows it. Having failed at that, and now thrown away its head start over the rush of Android-powered devices hitting the market, Palm is quickly looking like an afterthought, just months after the Pre was released.
I actually stopped by a Sprint store earlier this week, because I was interested in seeing its recent Android-powered phones in person. I played around with them, and then picked up the Palm Pre as well -- and I have to admit that the hardware on the Pre is really nice. It's just a much nicer overall package than the HTC Hero (an Android-powered phone) -- more compact, had a more solid feel, and the slide out keyboard is actually quite nice (if a bit small). But, after seeing all the developer support moving towards Android, I have no interest in betting on a dying OS. And that's when I wondered why Palm didn't just release an Android-powered Pre as well. I recognize that it's got a lot invested in webOS, but it's a sunk cost and a losing strategy.
A few years back, after years supporting its own Palm operating system, the company started offering Treo's that supported Windows Mobile. It's time to do that again, but for Android, letting the company actually make use of a much larger, committed developer community, rather than trying to keep the whole thing in-house.
by Mike Masnick
Tue, Sep 8th 2009 5:02pm
from the great-moments-in-marketing dept
Apparently, the confusion at Sprint headquarters went well beyond that, because as the company attempted to sort out the confusion, it announced that it was doing away with the special promotion entirely. And yet, even after announcing it, the offer page remained on Sprint's site. It's not at all clear what happened here, other than Sprint seems somewhat clueless in how to do basic promotions, pricing and marketing. Obviously, the company intended to offer the phone for $99 -- it's on the company's own site. And yet, now it's suddenly claiming that it was a mistake? I can already see the business school case study on how not to launch an innovative smart phone.
by Mike Masnick
Thu, Aug 27th 2009 3:52pm
from the just-get-that-sucker-out-there dept
Palm doesn't quite have that.
If the problem was that the SDK wasn't ready, Sprint and Palm should have waited. Launching before the phone was really ready was a mistake, and the company may be paying for it with rather weak sales after an initial burst. However, one analyst has a suggestion that I think makes a lot of sense, saying that Sprint should drop the price of the Palm Pre to $0.99. Basically, let Sprint subsidize more of the phone -- which it would easily make back in service fees (since the phone requires a two year contract with its most expensive data plan). Pricing the phone at $199 makes it a direct comparison to the iPhone, and that's the last thing that Palm or Sprint should want. But dropping the price to $1 (or, hell, give the damn phone away for free with a two year plan), would get it a lot of attention, and give people a real reason to switch away from other carriers or other phones, and give the Pre a shot. Trying to compete with the iPhone by just saying "but we're better" doesn't work. Rather than spending tons of money on creepy TV commercials that make no sense, why not use that ad budget to subsidize the phone in a way that really builds up a lot of attention and serious buyers? If Sprint did that, I'd go sign up for a Palm Pre that very day.
Wed, Mar 25th 2009 12:04am
from the where-are-the-products? dept
Mon, Jan 19th 2009 6:22pm