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Mike is the founder and CEO of Floor64 and editor of the Techdirt blog.

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Posted on Techdirt - 26 May 2017 @ 9:41am

Piracy Killing Hollywood So Bad That Disney Made More Money In 2016 Than Any Studio Ever

from the must-be-because-of-the-mickey-mouse-copyright dept

Remember, to hear the MPAA tell it, piracy is really killing the movie industry. It's been whining about piracy for basically my entire lifetime, and constantly predicting its own demise if "something" is not done. And, despite the fact that Congress has repeatedly obliged Hollywood in ratcheting up copyright anti-piracy laws and despite the fact that the MPAA has been clearly wrong repeatedly (such that the new technologies it feared actually helped expand Hollywood's business), the studios continue to push for awful changes to copyright law, citing the horrors of piracy.

And yet... now it's coming out that Disney not only had a good year last year, it had the best year ever for a movie studio. Not surprisingly, Disney put out its own glowing press release over this:

Today, The Walt Disney Studios will become the first studio ever to reach the $7 billion threshold at the global box office, setting a new industry record. With a powerful $290 million global debut for Rogue One: A Star Wars Story, Disney's year-to-date grosses are $6,988.3 million from Jan. 1 through Dec. 18, 2016, including $2,700.4 million domestically, also an industry record, and $4,287.9 million internationally, a Disney record.

These phenomenal box office results are driven by films from Disney, Walt Disney Animation Studios, Pixar Animation Studios, Marvel Studios, and Lucasfilm, representing the first time that all five of these world-class brands have released films in the same calendar year.

"This historic achievement is possible because all of our film studios are bringing their absolute best to the table, telling great stories of all kinds that resonate with audiences across borders, gender, and generations," said Alan Horn, Chairman, The Walt Disney Studios. "These films work because each one has not only something for everyone, but everything for someone. It's our honor to be able to create these experiences for audiences, and we're thankful to them for continuing to come out to the theater with us.

Indeed. Making great movies and making them accessible for people to watch is a great business strategy. Freaking out about a small group of people seeing infringing copies of the movie? Perhaps not so much. Either way, it's amusing to see how the studio's own PR drastically undermines the doom and gloom stories from the MPAA and Hollywood's other lobbyists about how dire the situation is. Maybe copyright infringement isn't such a big problem when you actually focus on making a quality product that people want.

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Posted on Techdirt - 25 May 2017 @ 1:34pm

Cloudflare Ups The Ante In Search Of Prior Art To Invalidate ALL Patents From Patent Troll Blackbird Tech

from the can't-stop,-won't-stop dept

A few weeks ago, we wrote about Cloudflare's decision to punch back hard against a patent troll, Blackbird Technologies, that had sued the company over a questionable patent (US Patent 6,453,335). Beyond just challenging the claim of infringement, the company also filed ethics complaints against the lawyers who run Blackbird, noting that the company appeared to be a law firm masquerading as a company, and breaking a number of local rules about law firms and "buying" a proprietary interest in a lawsuit. At the same time, Cloudflare set up a $50,000 fund to offer prizes to people who could find prior art not just to invalidate the patent that Cloudflare was sued over but also every other patent held by Blackbird Technologies.

Apparently, the company has now received a ton of submissions -- many of which it claims are quite thorough. And it's upping the ante. An anonymous donor has agreed to match the $50,000 fund, and so now Cloudflare is offering $100,000 for prior art to invalidate Blackbird Tech patents. The company says that it's received 140 separate prior art submissions so far, targeting 18 of the 38 patents and applications it knows about, but wants to go after the rest as well.

We’ve been impressed with the exceptionally high quality of the submissions. The Cloudflare community of users and readers of our blog are an accomplished bunch, so we have a number of searches that were done by expert engineers and programmers. In one case that stood out to us, someone wrote in about a project they personally had worked on as an engineer back in 1993, which they are convinced is conclusive prior art to a Blackbird Tech patent. We will continue to collect and review these submissions.

The submissions so far relate to 18 of the 38 Blackbird Tech patents and applications. You can see a summary of the number of submissions per patent here (PDF). You'll see there are still 20 Blackbird Tech patents and applications we’ve yet to receive a submission for.

We’re looking for prior art on 100% of the Blackbird Tech patents. If you are interested in helping, take some time to look into those patents where we don’t have anything yet. We’ll update the chart as we review the submissions with additional information about the number we receive, and their quality, to help focus the search. After the initial review, we’ll start to color code the patents (i.e., red/yellow/green) to demonstrate the number and quality of submissions we’ve received on each patent.

Also, Cloudflare is nothing if not thorough in going after any and every argument made by Blackbird Technologies. In response to Cloudflare's ethics complaints against Blackbird as violating rules for lawyers and law firms, the company insists it's not a law firm, to which Cloudflare now claims "oh really?"

And Ms. Verlander’s unequivocal assertion that Blackbird Tech is not a law firm can be contrasted with sworn statements submitted by Blackbird Tech attorneys to courts last May asserting how much they operate like a law firm. In Blackbird Tech v. Service Lighting and Electrical Supplies, Blackbird Tech CEO Wendy Verlander, Blackbird Tech co-founder Chris Freeman, and Blackbird Tech employee Sean Thompson, each filed declarations in opposition to a proposed protective order.

Protective orders are important in patent litigation. Often, discovery in those cases involves companies handing over highly confidential information about their most important trade secrets or the history of how they developed valuable intellectual property. In most cases, courts limit access to such materials only to outside counsel, as opposed to the parties’ employees and in-house counsel. In-house counsel generally serve a number of functions at a business that include competitive decision-making, either directly or indirectly. Because in-house counsel may benefit from the additional perspective and insight gained by exposure to sensitive trade secrets of a competitor, and are unable to simply wipe their memories clean, courts in patent litigation cases often limit their review of particularly sensitive documents. In such cases, documents classified as “HIGHLY CONFIDENTIAL—ATTORNEY EYES ONLY” are limited to review by outside counsel, who are less likely to face the same sort of business decisions in the future.

When it served their purposes in opposition to a proposed protective order, the Blackbird Tech attorneys were quick to point out how much they operated only like a law firm and distance themselves from their business roles. Their sworn declarations specifically asserted:

  • “Although the structure of Blackbird is unique, the realities of patent litigation at Blackbird are very much the same as patent litigation on behalf of clients at law firms.” (Verlander at ¶13, Freeman at ¶14)

  • “Thus, in many ways, my role at Blackbird as a member of the Litigation Group is identical to my previous role as outside counsel at a law firm.” (Verlander at ¶13, Freeman at ¶14)(emphasis added)

  • “Blackbird’s Litigation Group operates almost identically to outside law firm counsel. Blackbird’s litigators are presented with patents and possible infringers, just as clients bring to law firms. The Blackbird litigators then bring their litigation expertise to bear and thoroughly analyze the patent and the potential infringement case, ultimately deciding whether to move forward with litigation — just as a law firm would evaluate a case. If the Blackbird litigation team identifies a strong infringement case, the litigators draft Complaints and conduct litigation, acting in the same role as outside counsel.” (Verlander at ¶14, Freeman at ¶15)(emphasis added).

  • “On a day-to-day basis, what I do at Blackbird is the same as what I did when practicing at a firm.” (Thompson at ¶2).

This inconsistency points out once again how Blackbird is attempting to gain an advantage by turning traditional roles on their head. If they were a typical company, that was looking to make products using the patents they own, then we’d be able to seek discovery on their products and operations. Instead, they function as a law firm with no business operations that would be subject to the same sort of scrutiny they will apply to a company like Cloudflare.

Also, while we noted the ethics complaints that Cloudflare has filed, it appears that politicians are paying attention and at least one is looking to make Blackbird Technologies' style of patent trolling explicitly illegal:

On May 23, 2017, Rep. Keith Wheeler of Illinois introduced a bill (the “Ethics in Patent Litigation Act”) that would make it the public policy of the State of Illinois that attorneys in the state, like Blackbird co-founder Chris Freeman (LinkedIn), should not be able to buy patents themselves for the purpose of suing on them if they are not in the business of any other productive activity.

Cloudflare is very much building on the Newegg strategy of making sure that if you try to patent troll against it, it's going to hit back hard -- which should discourage other patent trolls from trying (in Newegg's case, this has been amazingly successful, even if it took a few years). But, again, the idea that our system allows this to happen in the first place is the real travesty. Companies shouldn't have to fight back hard to discourage being attacked by patent trolls. The very existence of trolls is the problem. Bad patents, broadly granted, combined with a ridiculous patent litigation process that makes this system ripe for abuse. It's great that Cloudflare is fighting back. It's frustrating that it's even necessary.

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Posted on Techdirt - 25 May 2017 @ 10:44am

UK Government Using Manchester Attacks As An Excuse To Kill Encryption

from the say-what-now? dept

It's no secret that there are those in the current UK government who are just itching to kill encryption. Earlier this year, Home Secretary Amber Rudd made some profoundly ill-informed comments about how encryption on the internet was "completely unacceptable" and saying that they needed to stop companies from providing end-to-end encryption. And, in the recently leaked Tory Manifesto, it was made clear that the current government sees breaking encryption as a priority:

In addition, we do not believe that there should be a safe space for terrorists to be able to communicate online and will work to prevent them from having this capability.

As has been explained time and time again, the only way you prevent bad guys from having encryption is by preventing everyone from having effective encryption... and that makes everyone significantly less safe. Seriously, the only way to do this is to put dangerous vulnerabilities into encryption that will certainly be hacked fairly quickly. This doesn't make people safer. It makes them less safe.

But, of course, like so many politicians these days (of all major parties) it appears that the Conservative Party in the UK can't let a good tragedy go to waste. The Independent is reporting that, because of the attack in Manchester this week, the party is ramping up its plans to outlaw encrypted communications:

Government officials appear to have briefed newspapers that they will put many of the most invasive parts of the relatively new Investigatory Powers Act into effect after the bombing at Manchester Arena.

The specific powers being discussed – named Technical Capability Orders – require big technology and internet companies to break their own security so that messages can be read by intelligence agencies.

Again, in case you're just joining us, requiring that internet companies "break their own security so that messages can be read by intelligence agencies" is the nice way of saying "kill real encryption." It means that these companies will be deliberately forced to leave vulnerabilities in encryption that will be a goldmine for hackers of all kinds, from foreign surveillance to online criminals.

And, so far, there is zero evidence that the Manchester attack had anything to do with encryption. And, even if it did, so what? If the UK forced companies to break encryption, people planning terrorist attacks would just switch to other encryption products that don't have corporate entities in the UK. Or they'd come up with other ways to communicate. It will do basically nothing to stop terrorist attacks, but will instead make it much, much easier for all sorts of people with nefarious intent to hack into the private communications of everyone.

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Posted on Techdirt - 25 May 2017 @ 9:32am

Some Of The Best Net Neutrality Reporting Is... Coming From Sites Owned By Verizon?

from the well,-that's-cool... dept

You may remember, a few years ago, Verizon attempted to start its own tech blog, called "SugarString," where the founding editor they hired was telling potential reporters they couldn't write about net neutrality. After that got mocked around the web, the whole idea of SugarString faded away. However, these days, Verizon actually owns a ton of content sites. It bought AOL in 2015, which already owned the Huffington Post, Techcrunch, Engadget and more. More recently, of course, it bought Yahoo as well. Suddenly, Verizon owns a ton of tech reporting.

And here's the amazing thing: some of the best reporting about how awful Ajit Pai's net neutrality proposal is... is coming from those sites now owned by Verizon. For example, over at Yahoo News, Rob Pegoraro has been doing a great job debunking many of Ajit Pai's claims about the history of the internet. In particular, Pai and his supporters keep insisting that the move by then FCC boss Tom Wheeler in 2015 to reclassify broadband under Title II upset a consensus going back to the Bill Clinton years that broadband was not under Title II. Except that's... just wrong:

Pai led off with a dubious recap of history. In his telling, broadband thrived from the passage of the Telecommunications Act of 1996 until Pai's predecessor, former FCC chair Tom Wheeler, forced through today's net-neutrality rules that subject internet providers to phone-company "common carrier" regulations dating back to the 1930s that require the equal treatment of customers' traffic.

"Two years ago, the federal government's approach suddenly changed," Pai said. "The FCC, on a party-line vote, decided to impose a set of heavy-handed regulations upon the internet."

But as the FCC's own site shows, the commission didn't reclassify cable providers to lift them out of the common-carrier bucket until March 14, 2002, not 1996.

That's when the commission reclassified cable providers from open-ended "telecommunications services" to "information services" — a term that as, described in the 1996 law, better fits proprietary online services like floppy-disk-era AOL.

The commission didn't extend the same treatment to phone-based providers until 2005.

There's a lot more in that piece as well, correcting the blatant factual errors in Ajit Pai's claims about net neutrality.

Of course, you might claim that Verizon just purchased Yahoo, so perhaps word had not yet filtered down. But let's shift over to TechCrunch, which has been on the AOL banner for years, and the Verizon/AOL banner for quite some time as well. Over there, a reporter by the name of Devin Coldewey has written a series of truly excellent articles about the FCC's plans to roll back net neutrality. Those pieces are thorough, detail-oriented and not prone to the sorts of hyperbole that (unfortunately) have been seen on both sides of the net neutrality debate. For example, look at his article from last week that carefully goes through the arguments against net neutrality that people are making, and then carefully debunks each one. The piece is so damn good, I wish we ran it ourselves. For example, here's just one of the eight separate arguments that he debunks:

We’re not trying to remove net neutrality rules, just Title II

TL;DR: Removing the rules is literally in the proposal

It is frequently said that the point is not to remove the rules themselves, just change the authority to something a little less heavy-handed.

This is a puzzling assertion to make when the proposal itself asks over and over again whether the “bright line” rules of no blocking, no throttling, etc should be removed. It’s pretty clear that proponents don’t think the rules are necessary and will eliminate them if they can. Just because they frame their preference in the form of a question doesn’t make it any less obvious.

A sort of corollary to this argument is that internet providers will voluntarily adhere to suggested practices. This is a pretty laughable suggestion, and even if it were true, it self-destructs: if companies have no problem subjecting themselves to these restrictions, how can they be as onerous as they say?

Then, this week, once the rules were actually released, Coldewey absolutely destroys the key argument that Ajit Pai's FCC is making about the rules, noting that it appears to be a deliberate misrepresentation of how the internet works:

The first point the FCC makes is regarding the text of the 1996 Telecommunications Act, and how it defines “telecommunications service” (how broadband is currently defined, allowing net neutrality rules to be effected) and “information service” (how it was before the net neutrality rule).

Now, I’m going to list the two definitions. Which one do you think sounds like what a broadband provider does?

  1. “The offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system.”
  2. “The transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

Take your time.

...

Okay. Number 2, right? Because your ISP doesn’t store the data you post on Facebook, or the address you look up on Google Maps, or the Pope you read about on Wikipedia. It’s edge providers like the ones I just mentioned that do all the “generating, acquiring, storing,” and so on. ISPs just transmit the information, don’t they?

Perhaps it would surprise you, then, to hear that the FCC has the exact opposite idea of how the internet works!

This is good stuff. Thorough, careful, and detailed facts that totally undermine Ajit Pai and the FCC's arguments. And it's coming from a site owned by Verizon. Now, obviously, the good news out of this is that it appears that Verizon is not interfering with editorial on these sites. That's actually encouraging (though I do wonder if the company will push to have "the other side" heard on these sites as well). Honestly, though, the links above are to three of the best pieces I've seen on net neutrality and how the arguments being made by Ajit Pai are either faulty, bogus or, at the very least, misrepresent reality. It's just icing on the cake that they happen to be on sites owned by Verizon, a company that has been at the center of the fight to kill net neutrality, and even had to drum up a fake journalist to talk to one of its execs, who insisted that the company really loved net neutrality (note: it does not).

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Posted on Techdirt - 25 May 2017 @ 3:24am

Colombian Grad Student Finally Cleared Of Criminal Charges For Posting Academic Article Online

from the copyright-gone-mad dept

Three years ago, we brought you the horrifying story of Diego Gomez, a grad student in Colombia. While working on his own research, he relied on and cited a paper that he couldn't find anywhere else online. As was common practice in Colombia, Gomez uploaded that paper to Scribd so that others could follow his own work and understand his citation. As a research practice, this is a really good idea. Under copyright law, however, it gets stupidly problematic. And it was made much more stupidly problematic by the insane copyright law passed in Colombia -- under pressure from the US -- which made this a criminal act for which Gomez faced up to 8 years in prison along with monetary fines.

Again, he absolutely did upload someone else's paper to the internet -- but this was an academic paper, it wasn't for Gomez's own profit, but for perfectly reasonable academic purposes, to make sure people were better informed. Not only that, but as soon as he found out the paper's author was unhappy, he deleted the paper from Scribd. And yet he's spent the past few years dealing with criminal charges over it. Thankfully, just this week Gomez was cleared of any wrongdoing. It just cost him four years of absolute hell. And it's not totally over yet. While the judge has given a "not guilty" verdict, the prosecutor has already announced plans to appeal.

"I have been cleared. I am innocent," a delighted Gómez said after the verdict. "When I received the news, after 4 years with so much uncertainty, which is an obstacle in personal and professional life, that was a great happiness. However, knowing that the prosecutor appealed brings uncertainty back."

EFF has been heavily involved in this case, and note that it shows one of the many problems with countries ratcheting up punishments for copyright infringement often under the guise of "complying with international agreements.":

Diego’s story also demonstrates what can go wrong when nations enact severe penalties for copyright infringement. Even if all academic research were published freely and openly, researchers would still need to use and share copyrighted materials for educational purposes. With severe prison sentences on the line for copyright infringement, freedom of expression and intellectual freedom suffer.

Diego’s story also serves as a cautionary tale of what can happen when copyright law is broadened through international agreements. The law Diego was prosecuted under was enacted as part of a trade agreement with the United States. But as is often the case when trade agreements are used to expand copyright law, the agreement only exported the U.S.’ extreme criminal penalties; it didn’t export our broad fair use provisions. When copyright law becomes more restrictive with no account for freedom of expression, people like Diego suffer.

Indeed. I know that we get a fair amount of pushback from some in the copyright industry whenever we talk about the free speech or chilling effects impact of overzealous copyright enforcement. Time and time again we're told that these are "anomalies" or that such things are impossible, because why would anyone ever use copyright to stifle someone's speech. However, I can't even imagine the horror that Gomez has gone through for the past four years, in which he was literally facing being locked up for years and fines for being a good academic. That's insane -- and so is any copyright law that would allow this to happen.

The fact that Colombian prosecutors aren't yet willing to drop this case is even more upsetting and concerning. What possible reason do they have for thinking that this case is worth pushing forward like this?

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Posted on Techdirt - 24 May 2017 @ 6:31pm

Titan Note Continues Trying To Sell Its Questionable Device; Its Own Actions Keep Raising More Questions

from the sketchy dept

A few weeks back, I wrote about IndieGogo shutting down a crowdfunding project for a small notetaking/speaker device called Titan Note. As I pointed out at the time, there were a lot of alarm bells about the product, but I had still backed it just to see if it might actually work. IndieGogo shutting it down actually had me relieved because the more I thought about it, the less sure I was the project was legit. Making things even more bizarre -- and leading to my post about it -- was the news that the guy behind Titan Note had sent a bogus DMCA takedown notice to the Verge over its skeptical take on the product. The DMCA notice targeted the use of Titan Note's promotional images -- which are clearly fair use for news publications.

A few days after that all went down, I went to see if the guy behind Titan Note had anything to say about it. There was a post on Facebook claiming that it was all IndieGogo's fault and promising it would be on another "more trusted" platform soon:

As you have noticed, your orders on Indiegogo have been refunded. We got into a dispute with Indiegogo and we decided to use another platform instead. Indiegogo doesn't have your best interest in mind and we decided to find a better solution for both you and ourselves.

This seemed... sketchy for a variety of reasons. What kind of "dispute" could they have gotten into? A number of people asked in the comments, and the Titan Note guy (it's unclear if it's more than just one guy), just started pasting the same boilerplate response over and over again, insisting that there was a "dispute" over "payment and fees."

The dispute was regarding the payment and the fees. Moreover, Indiegogo has a history of not taking responsibility for the users on its platform. Many are dissatisfied with the Indiegogo platform. It was a wrong move from our side to take orders on the Indiegogo platform in the first place and we truly apologize about that. We promise that we will make it up to you when we relaunch Titan Note on a more trusted platform next week. Please let us know if you have any other questions.

More people began to question this, and then he started insisting he couldn't talk any more about it, because he was going to sue IndieGogo.

We are in the process of pursuing legal action against Indiegogo for their misconduct. Because of this, neither we or them can go into more specific details. We appreciate your understanding and we apologize for the inconvenience this has caused you.

Somewhere around this time, I decided to ask some questions on the Facebook page as well, noting that the boilerplate claims didn't make much sense. There's no reason to expect a dispute about "fees" since IndieGogo is pretty damn clear on the fee breakdown. I pointed out that there's simply no reason that he can't explain more of what the problem was, even if a lawsuit was in process -- and furthermore, suggested that it might make sense to delay a new crowdfunding campaign until after such a lawsuit was filed, so that backers could better understand the details. Separately, I asked about why they sent the DMCA notice.

A few hours later, I noticed that my question about the DMCA was deleted. I saw someone else asked a similar question -- and that was deleted. After a few more people asked, he finally posted another boilerplate answer, responding to a bunch of users:

About the DMCA: We sent the DMCA notice to the verge because they used our copyrighted images without our permission. No reputable publication would do that. They stole our property and we had to take action.

I responded to that, noting that this explanation made no sense at all. First of all, the images were promotional images, released for the press. Second, the Verge's use was clearly fair use. And, finally, I pointed out that this explanation was clearly not true, and the reason for the DMCA notice was obviously the skeptical nature of the Verge's article because none of the other news articles that were hyping up the Titan Note -- and which the company proudly linked to -- appeared to have DMCA notices over their use of the very same images.

And that's when I got blocked from commenting on the Titan Note Facebook page and all my remaining comments were deleted (he had already deleted my DMCA questions earlier).

So that confirmed just how sketchy this whole project was to me. The DMCA notice was bad. The nonsensical explanations were worse. And deleting some fairly straightforward questions about all of that (and then blocking me from commenting any more)? That's not a trustworthy project.

At almost the exact same time that I got blocked, Titan Note "relaunched" on a supposedly more trustworthy platform, an Australian site called Pozible. The project quickly got to nearly $100,000 in backing. I emailed Pozible to ask if they did any checking on projects, and pointed out that IndieGogo had taken the same project down. Almost immediately I got an email response from someone at Pozible, telling me that their own system had "flagged" the project and they were suspending the project until the creator provided more information.

I similarly reached out to IndieGogo to find out if the "fee dispute" claim was legit. Not so, the company told me. While they would not go into the full reasons for the project being suspended, they did say that "a lengthy investigation" by the trust and safety team determined that the company was violating IndieGogo's terms and services, and made it clear "this was not a dispute about fees, but a violation on their end." IndieGogo's terms involve lots of things, but one line that stands out:

Campaign Owners are not permitted to create a Campaign to raise funds for illegal activities, to cause harm to people or property, or to scam others. If the Campaign is claiming to do the impossible or it's just plain phony, don't post it.

Not surprisingly, after Pozible shut down the campaign after just a few hours, a bunch of people went back to Facebook to ask questions and note that this was now two crowdfunding platforms that had shut down the campaign entirely, and demanding answers. A few joked that "boilerplate" answers would be coming soon. It actually took a few days, but eventually...

To clarify, Neither of those platforms have seen our product. The outcome is not a reflection of Titan Note's quality and again, they have not seen our product. We have had competitors that have posted slanderous information to the platforms and we are in the process of bringing legal action against one of those platforms for their misconduct. We will not let a bump in the road stop our passion.

So... yeah. That doesn't actually answer the question. Nearly all crowdfunding projects don't involve the platforms seeing the projects, but it's very rare for projects to be canceled. It certainly suggests something else is up with this project and that's why they were canceled. Besides, the original story was that IndieGogo canceled over a "fee dispute." If that's the case, why would it matter that it hadn't seen the product?

And, of course, a few days after that -- earlier this week -- Titan Note launched its own website entirely (previously, one of the concerns was that the company didn't appear to have a website). And that website is allowing pre-orders. We won't link to it directly (no reason to give it free advertising), but astoundingly, the company is using the canceled IndieGogo project on its new website as proof of how cool it is:

Yes, the IndieGogo campaign had over 12,000 backers and had initially raised over $1.1 million dollars. But that was canceled and all the money was refunded. It seems very, very, very questionable to then go on and put up a website that suggests the project successfully raised that much money when that's not how things actually ended.

Distressingly, the project is also using the various positive press it got upon launching on the website, leaving out the Verge (obviously).

Not surprisingly, I am not the only person concerned about all of this. There are still some users in the Titan Note comments concerned about this (I have no idea how many others had their comments deleted, as mine were). There's also a Facebook group on crowdfunding scams that has taken a special interest in Titan Note with a few different discussions on it -- including concern about the current offering directly off the website.

Throughout all of this, I still would like the product to be legit, because it certainly would be an interesting product! However, with all of the red flags raised, and the questionable way that Titan Note has responded to these kinds of questions, it seems entirely reasonable to believe that the product is, at the very least, greatly exaggerated, and might possibly not exist at all. I did send Titan Note an email listing out a series of questions and letting them know I would be writing about this. So far, there has been no response. If one should come in, I will update this post.

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Posted on Techdirt - 23 May 2017 @ 3:00pm

If Net Neutrality Dies, Comcast Can Just Block A Protest Site Instead Of Sending A Bogus Cease-And-Desist

from the comcastic dept

It appears that a vendor working for Comcast sent a totally bullshit cease-and-desist letter regarding a pro-net neutrality site: Comcastroturf.com, created by our friends over at Fight for the Future. The Comcastroturf website was set up as a tool to see if someone filed bogus FCC comments in your name. As you probably recall, there is a bot that has been flooding the FCC comment site with bogus anti-net neutrality comments, filed in alphabetical order. Reporters contacted some of the individuals whose names appear on these comments, and they had no idea what it was about. People are still trying to track down who is actually responsible for the bogus comments, but Fight for the Future set up this neat site to let you check if your name was used by whoever is behind it.

And, of course, the name "Comcastroturf" is pretty damn clever, given the topic. Kudos to Fight for the Future for coming up with that one. It is, of course, totally legal to use the domain name of a company that you're protesting in your own domain. There are numerous cases on this issue, normally discussed as the so-called "Sucks Sites." There's clearly no legal issue with Comcastroturf, and any reasonably informed human being would know that. Unfortunately, it would appear that Comcast hired a company that employs some non-reasonably informed humans.

The cease-and-desist letter was sent by a company called "Looking Glass Cyber Solutions" (no, really), which used to be called "Cyveillance" (only marginally less bad). We've written about Cyveillance twice before -- and both times they were about totally bogus takedown requests from Cyveillance that caused serious problems. The most recent was the time that Cyveillance, working for Qualcomm, filed a bogus DMCA notice that took down Qualcomm's own Github repository. Nice move. The earlier story, however was in 2013, and involved Cyveillance -- again representing Comcast -- sending a threatening takedown demand to some more of our friends over at TorrentFreak, claiming (ridiculously) that public court filings were Comcast's copyright-covered material, and threatening serious legal consequences if it wasn't taken down. Eventually, Comcast stepped in and admitted the cease-and-desist was "sent in error." You'd think that maybe this would have caused Comcast to think twice about using Cyveillance for such things. But, nope.

The rebranded Looking Glass Cyber Solutions has told Fight for the Future that "Comcastroturf" violates Comcast's "valuable intellectual property rights" and that failure to take down the site may lead to further legal action around cybersquatting and trademark violations. (Update: Turns out it wasn't a "rebranding" but Looking Glass bought Cyveillance...).

Of course, there's no way that Comcast would actually move forward with any legal action here. In fact, I'm pretty sure it already regrets the fact that the numbskulls at this vendor they hired to police their brand online just caused (yet another) massive headache for their brand online. Maybe, this time, Comcast will finally let Cyveillance/Looking Glass Cyber go, and find partners who don't fuck up so badly. Meanwhile, the fact that Looking Glass Cyber can't even figure out that Comcastroturf is a perfectly legal protest site makes the company's website -- which is chock full of idiotic buzzwords about "threat mitigation" and "threat intelligence" -- look that much more ridiculous. The only "threat" here is Looking Glass/Cyveillance and their silly cluelessness sending out censorious threats based on what appears to be little actual research.

Of course, without true net neutrality, if Comcast really wanted to silence Comcastroturf, it would just block everyone from accessing the site...

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Posted on Techdirt - 22 May 2017 @ 11:43am

Sorry East Texas: Supreme Court Slams The Door On Patent Jurisdiction Shopping

from the no-more-bulls dept

Another Supreme Court case on patents, and another complete smackdown of the Court of Appeals for the Federal Circuit (CAFC), the court that is supposed to be the "expert" on patent cases. This morning the ruling on the TC Heartland case came out, and it could help put an end to jurisdiction shopping for patent cases. As you've probably heard, for years now patent trolls and other aggressive patent litigants have been filing their cases in East Texas, as it's become a jurisdiction that is ridiculous friendly to patent holders. The towns of Marshall and Tyler, Texas have practically built up industries around the fact that they are "patent friendly" jurisdictions. In the past few years, a second favored jurisdiction has popped up: Delaware, after a few academic studies showed that the courts there may have been even more friendly than East Texas. The TC Heartland case was about a case filed in Delaware, and raised the issue of whether or not this kind of patent forum shopping was okay. CAFC, in its usual CAFC manner, said "sure, that's great, we love jurisdiction shopping and have since our 1990 ruling in VE Holding v. Johnson Gas. This was kind of ironic, as one of the key justifications given for setting up CAFC in the first place was to put an end to jurisdiction shopping in patent cases.

Either way, CAFC once again blessed the ability of patent holders to sue in plaintiff friendly locations, and the Supreme Court -- which has spent the past decade reteaching patent law to CAFC every chance it gets -- has done so again. Once again, the decision was unanimous, with the court voting 8 - 0 that trolls can't just file over and over again in East Texas (Gorsuch, having just joined the court after the case was heard, did not take part). The opinion, written by Justice Thomas, goes through the history of jurisdiction issues related to where one can bring lawsuits, noting that historically, where a company was incorporated was the proper jurisdiction.

While most of the ruling is deep in the weeds about definitions in the law, and whether or not Congress intended to change certain definitions, here's a simplified version of what happened: some have interpreted patent law to mean that a patent holder can sue an alleged infringer anywhere that a product is sold/available. In the age of the internet, this generally means "anywhere." Thus, as long as your product was available in Texas or Delaware, trolls could sue in those locations -- even if the company was nowhere near those locations. Here, however, the Court has said that the lawsuits are supposed to be filed where the company "resides," which it says is the state where the company is incorporated. This is a huge win for companies who are targeted by patent trolls. Rather than being dragged across the country to courts like East Texas or Delaware, which have built up large practices and reputations for supporting patent trolls over actual innovators, now cases will need to be filed where the alleged infringer is actually incorporated.

Expect to see the usual whining from patent trolls and their supporters about this -- but just remember: if they have a serious case of infringement, they should be fine filing it wherever the defendants actually are. Their concern is not about how this is somehow bad for patent owners. It's really about how certain courts were biased in their favor and they can no longer take advantage of that. Of course, this might mean that the ice rink in Marshall, Texas needs to find a new sponsor.

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Posted on Techdirt - 22 May 2017 @ 9:32am

Theresa May Plans To Regulate, Tax And Censor The Internet

from the who-would-vote-for-that? dept

With UK Prime Minister Theresa May recently calling for a new election there, which she is expected to win easily (despite recent reports of narrowing polls), last week May's Conservative party released its Manifesto (what we in the US tend to call a party's "platform"). There are all sorts of things in there that are getting press attention, but for the stuff that matters here on Techdirt, let's just say May's view of the internet is not a good one. A part of the plan is basically to regulate, tax and censor the internet, because the Conservative Party leadership doesn't seem to much like the internet -- and they especially dislike the fact that Google and Facebook are so successful.

What's hilarious is that the manifesto basically promises to put in place all sorts of rules that will absolutely kill off any internet economy in the UK, as no company in its right mind would agree to these restrictions, while, at the same time, it talks up how important it is to support digital businesses in the UK. Of course, some of the plan is couched in nice sounding language that should actually scare you:

A Conservative government will develop a digital charter, working with industry and charities to establish a new framework that balances freedom with protection for users, and offers opportunities alongside obligations for businesses and platforms. This charter has two fundamental aims: that we will make Britain the best place to start and run a digital business; and that we will make Britain the safest place in the world to be online.

"Balances" freedoms? Freedoms aren't supposed to be "balanced." They're supposed to be supported and protected. And when you have your freedoms protected, that also protects users. Those two things aren't in opposition. They don't need to be balanced. As for "obligations for businesses and platforms" -- those five words are basically the ones that say "we're going to force Google and Facebook to censor stuff we don't like, while making it impossible for any new platform to ever challenge the big guys." It's a bad, bad idea.

Of course, immediately after that, there's a bunch of nonsense about how the UK will be the "best" place to run a digital business. That's, uh, not even remotely true based on what is said in the immediately preceding paragraph.

We will ensure there is a sustainable business model for high-quality media online, to create a level playing field for our media and creative industries.

This is a dog whistle to the legacy film and recording industries about terrible copyright laws on the way. For a few years now, those industries have been whining about the need for a "level playing field" -- which to them means no internet innovation in business models, but rather a government mandated business model that protects an old, legacy way of doing business. Promising a "sustainable business model" from the government makes no sense. That's not how it works unless you're giving companies monopolies... oh, wait, yeah, that's what copyright is all about. So, basically, say goodbye to lots of innovation in the creative fields in the UK, because Theresa May wants to lock in the business model from 1998.

Our starting point is that online rules should reflect those that govern our lives offline. It should be as unacceptable to bully online as it is in the playground, as difficult to groom a young child on the internet as it is in a community, as hard for children to access violent and degrading pornography online as it is in the high street, and as difficult to commit a crime digitally as it is physically.

Again, these are the kinds of things that lots of people find reassuring... if they know absolutely fuck all about how the internet works and what it would actually take to do this. First off, the rules that govern offline do govern online. Second, it is just as socially unacceptable to bully on the playground as it is to online -- but (spoilers!) it still happens in both places. It's sad and unfortunate, but history has yet to come up with a way to stop bullying on the playground, and most suggestions for how to do it online involve ridiculous surveillance and censorship, which creates a whole host of other problems. And, the whole "grooming children" on the internet is an overblown moral panic that happens extremely rarely. As for running into pornography and violence -- certainly an issue, but one that parents generally are supposed to handle, rather than the government seeking to censor the entire internet. And, what the hell does it even mean to say it should be as difficult to commit a crime digitally as it is physically? In many cases, it's more difficult. In some cases, it's easier. But, given the long list of crimes, it's difficult to argue that digital crime, as a whole, is somehow "easier" than offline crime. It's a silly, meaningless statement that just plays on bogus fears about the "dangers" of the internet.

We will put a responsibility on industry not to direct users – even unintentionally – to hate speech, pornography, or other sources of harm. We will make clear the responsibility of platforms to enable the reporting of inappropriate, bullying, harmful or illegal content, with take-down on a comply-or-explain basis.

Basically: we will make private internet companies our internet censorship police, or we'll fine them millions of dollars. This will create all sorts of unnecessary problems. First, to avoid liability, companies will massively over-censor. We see this happen all the time. All sorts of perfectly fine and legitimate content will be censored just to avoid the potential liability. Second, this will be massively expensive. Sure, Facebook and Google can probably handle the expense, but no one else will be able to. If you're trying to start the next Facebook or Google in the UK, you're fucked. You can't afford to police all the content on your platform, nor can you afford the potential liability. Probably best to just move somewhere else. Third, does the UK government really want private platforms like Google and Facebook making these determinations? Why is it handing off the responsibility of what kind of speech is "illegal" to private, for-profit companies (foreign companies, at that)?

In addition, we do not believe that there should be a safe space for terrorists to be able to communicate online and will work to prevent them from having this capability.

And this may be the most terrifying line of all here. That's the dog whistle for "we'll outlaw encryption" because encryption -- in the minds of foolish, scaredy-cat politicians -- creates "safe spaces" for terrorists. Nevermind that the same encryption creates "safe" spaces for every other person and that undermining that makes absolutely everyone less safe. This is a dangerous plan that seems to echo the words of the UK's Home Secretary, Amber Rudd, from a few months ago, where she wanted to find people who knew the necessary hashtags to silence terrorists online. This isn't policy making. This is nonsense.

We will educate today’s young people in the harms of the internet and how best to combat them, introducing comprehensive Relationships and Sex Education in all primary and secondary schools to ensure that children learn about the risks of the internet, including cyberbullying and online grooming.

First of all, why is the education only on the "risks" of the internet, and not the benefits and opportunities? What an odd thing to focus on. Second, it's 2017. Are there really still schools that don't already teach this stuff? And, as mentioned earlier, the bogeymen of "cyberbullying" and "online grooming" are both overblown moral panics.

We will give people new rights to ensure they are in control of their own data, including the ability to require major social media platforms to delete information held about them at the age of 18, the ability to access and export personal data, and an expectation that personal data held should be stored in a secure way.

And... there's the "right to be forgotten." Apparently, the plan is a blanket right to be forgotten for anything about you from before you're 18. Look, I did stupid things before I was 18. You probably did too. It's kind of part of being a teenager. You do stupid things. Most people then grow up. They regret what they did, but most normal people recognize that when others did stupid stuff in their teens, it was because they were teenagers who then grew up as well. In other words, most people put that stuff into context. You don't need to delete it. You just recognize it happened, that the person was a teenager when they did it, and you assume they probably grew up and matured.

We will continue with our £1.9 billion investment in cyber security and build on the successful establishment of the National Cyber Security Centre through our world-leading cyber security strategy. We will make sure that our public services, businesses, charities and individual users are protected from cyber risks. We will further strengthen cyber security standards for government and public services, requiring all public services to follow the most up to date cyber security techniques appropriate.

How the hell are you going to do that at the same time that you're outlawing encryption?

Some people say that it is not for government to regulate when it comes to technology and the internet. We disagree.

Yeah, we got that from all the nonsense above.

Nor do we agree that the risks of such an approach outweigh the potential benefits.

Then you need to hire at least someone in your leadership who understands the internet, because it's clear that that's severely lacking.

We will introduce a sanctions regime to ensure compliance, giving regulators the ability to fine or prosecute those companies that fail in their legal duties, and to order the removal of content where it clearly breaches UK law. We will also create a power in law for government to introduce an industry-wide levy from social media companies and communication service providers to support awareness and preventative activity to counter internet harms, just as is already the case with the gambling industry.

There's the censorship and taxation bit, all in the course of a couple of sentences. Sanctions to "ensure compliance" with the censorship regime and "levies" to tax Facebook and Google to pay up because of imaginary "internet harms."

We believe that the United Kingdom can lead the world in providing answers. So we will open discussions with the leading tech companies and other like-minded democracies about the global rules of the digital economy, to develop an international legal framework that we have for so long benefited from in other areas like banking and trade.

So, not only will they tax, regulate and censor the internet, they want to get other countries to do the same thing.

There's much more in the manifesto, but this is basically a joke, and would destroy the tech sector in the UK, rather than help it. It shows an astounding level of ignorance about the internet and technology, and seems to be written by technically illiterate people who fall for internet hoaxes and now only think of the internet in terms of what they fear about it. It's a bad look, and a rather stunning one from a Conservative Party that supposedly favors deregulation/free market kind of ideas. This plan is the exact opposite. It's technically clueless, top-down paternalism.

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Posted on Techdirt - 19 May 2017 @ 10:43am

Malta's Prime Minister Sues Panama Papers Journalist For Defamation; Gets Facebook To Delete His Reporting

from the not-cool dept

You recall, of course, the Panama Papers? The massive leak of documents about offshore shell companies last year, that a large coalition of reporters worked on for many months before releasing a bunch of stories at the same time. The documents were leaked from a law firm, and highlighted more than a few cases of what appeared to be questionable activity by the rich and powerful in moving money around in offshore accounts. Apparently the subject of one such story, Malta's Prime Minister Joseph Muscat, wasn't happy that he and some of his colleagues were mentioned in some of the reporting on this, and filed a defamation case against Matthew Caruana Galizia, the reporter who wrote up some stories, using the Panama Papers, arguing that Muscat and his chief of staff were involved in a scheme to get kickbacks on the sale of Maltese passports.

Caruana Galizia, who is a journalist at the International Consortium of Investigative Journalists (ICIJ), and who coordinated the mass reporting effort on the Panama Papers (and who won a Pulitzer Prize as part of that), had posted those stories to his Facebook page. In addition to facing this defamation lawsuit, Caruana Galizia has also noted that Facebook has deleted some of his posts and locked him out of his account temporarily. It would appear that someone has complained to Facebook about those posts, claiming they were terms of service violations. Once again, this should be a reminder of the problem of relying on someone else's platform for posting your stories, as they get to make up the rules for what's allowed.

But there are two larger issues here: First, this appears to be a classic SLAPP-style lawsuit, in which reporters are being sued as an attempt to chill free speech on reporting that the subject doesn't like. I'm no expert in Maltese defamation law, but it does appear that there has been a lot of concern about abuse of Maltese defamation law to intimidate reporters and chill speech (amusingly, that article focuses on Daphne Caruana Galizia who has been sued a few times for defamation, and who appears to be Matthew's very proud mother). There have also been attempts to update defamation law in Malta, but there appears to be nothing akin to a an anti-SLAPP provision. Indeed, it's not even clear if there's a "truth" defense.

The interview with Daphne Caruana Galizia is quite detailed in how officials in Malta use defamation laws to chill the free speech of journalists:

The fees and court expenses for filing a civil suit for libel are low and therefore not a bar to frivolous cases. There is no penalty to be paid by those who file cases unnecessarily, even if they eventually lose the case. Meanwhile, the journalist who has been sued has to pay a lawyer to defend him/her, pay fees to file a formal response to the suit, and go to many court hearings over the course of several years. Even if the journalist is cleared of libel, he or she has still paid a heavy price in terms of stress, time wasted and money spent.

Criminal defamation cases are even worse. In this case, there is really no bar. The politician or other public person who feels himself to have been libelled will file a formal request for the police to prosecute the journalist, and the police are obliged to comply as they cannot ignore a formal request. The complainant pays nothing, as this is a police prosecution and not a civil suit. Meanwhile, the journalist must pay lawyers to defend him/herself and be present at every single court hearing as required under Maltese law. The stress is great. Though the government has pledged itself to repeal the criminal defamation law, it has not.

And now her son gets to experience that terrible process as well.

The other issue is Facebook's decision to take down the posts and lock Matthew out of his account. That's... bad. Yes, it's a private platform and has the right to make these kinds of decisions, but if Facebook wants to position itself as a platform for free speech and communication around the globe, it needs to stand up for the rights of the people using the platform, especially when they're doing investigative reporting, backed up by evidence, and speaking truth to power. Unfortunately, in this instance, it failed to do that, and is, instead, punishing the journalist. That's a shame.

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Posted on Techdirt - 18 May 2017 @ 6:48pm

New EU Lawsuit Claims Google Failed To Forget 'Sensitive' Information, Such As Their 'Political Affiliation'

from the oh-come-on dept

For years, we've pointed out that the "Right to be Forgotten" (RTBF) in Europe is a dangerous tool that has been and will continue to be abused as a tool to censor freedom of expression, while hiding behind a claim that it is to protect "privacy." While the concept has been around for a while, it really took off online with a EU Court of Justice (CJEU) ruling from three years ago, saying that Google's search results index counted as a data repository on someone, and thus, an individual could force Google to "delink" certain results from searches on their names. But, the court left some leeway to Google to decide whether or not the requests were valid. Basically, if the information is no longer relevant for the public to know about the person, then Google should delink it. Now, obviously, that's a horribly subjective standard, and Google has had to staff up on people to determine whether or not any requested delinking qualifies.

Part of the problem with all of this is that it seems to produce tremendous liability. Fail to get a delinking request "right" and Google is right back in court, which is exactly where we are today. Google has rejected just under 60% of requests to delink info in Europe, and four individuals in France were so upset by this, that they complained that their rights were being violated. The French data protection regulator, CNIL, actually agreed with Google that the information shouldn't be "forgotten." However, the four have appealed their case, and it's been kicked back to the European Court of Justice. The four individuals are claiming that the information is "sensitive data" and are suggesting that just being "sensitive data" alone is enough to require forgetting -- no matter what the "public interest" may be in that info.

As Google has noted in a blog post, there are serious questions here about whether or not people can hide information from their past that may be relevant:

The CJEU now has to decide whether "sensitive personal data"—such as the political allegiance of an individual, or a past criminal conviction reported in the press—should always outweigh the public interest.

The tricky thing with this kind of information is that it is often important for people to know and it is frequently reported in newspapers and elsewhere. Requiring automatic delisting from search engines, without any public interest balancing test, risks creating a dangerous loophole. Such a loophole would enable anyone to demand removal of links that should remain up in the public interest, simply by claiming they contain some element of sensitive personal data.

While that is an important point -- equally important is the question of how this can be massively damaging for basically any other company, that doesn't have Google's legal team and resources to fight. The fact that anyone disagreeing with your decision on a RTBF request can put a company at risk for failing to delete something, and take them to court repeatedly, means that most companies are going to default to deleting.

At least with things like the DMCA notice-and-takedown provision -- which is already massively and widely abused to censor content -- there are fairly clear and strict rules about how a takedown notice works, and what it requires. With the RTBF, it's not at all clear, and risks significant and repeated litigation. As it stands, the system is a recipe for widespread censorship of often important information.

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Posted on Techdirt - 18 May 2017 @ 11:41am

US & EU Not Banning Laptops On Planes... Yet

from the stay-tuned dept

Last week there were reports claiming that the Department of Homeland Security (DHS) was just about ready to ban any laptops from being in the passenger cabin on any flights between the EU and the US. As we pointed out this made no sense, even if there were credible reports of terrorists turning laptops into bombs (as the rumor goes). The plan was supposedly set to go into effect last Thursday, but on that day DHS said it hadn't made a final decision yet. Of course, apparently some over eager airline employees had official signs printed up claiming the ban was already in place (leading to later apologies).

Apparently, the decision not to implement the ban came because EU officials were not thrilled with the idea and wanted to discuss -- leading to a series of meetings. Of course, that also allowed time for the airline industry to snap to attention and announce that such a ban might cost travelers around $1 billion. Admittedly, there may be some dubious math involved... but it's fairly obvious that such a plan would lead to all sorts of problems for travelers -- from general lost productivity, to delays and confusion around checking the laptops, to broken, lost or stolen computers and more.

At least for now, we can breathe a sigh of relief that the EU/US meetings have ended without a plan to ban laptops on planes... though such a plan could always pop out again in the near future (and, it will almost certainly happen if there is an airplane bombing). And, of course, there's still the ominous "other measures" still being considered:

US and EU officials have decided against a ban on laptops and tablets in cabin baggage on flights from Europe.

But after a four-hour meeting in Brussels to discuss the threats to aviation security, officials said other measures were still being considered.

Air travel security theater continues to be the worst security theater.

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Posted on Techdirt - 18 May 2017 @ 3:25am

BBC Says It May Contact Your Boss If You Post Comments It Finds Problematic

from the wait,-what? dept

There are all sorts of different ways that websites that allow comments have dealt with trollish behavior over the years, but I think the BBC's new policy is the first I've seen in which the organization threatens that it may contact your boss or your school (found via Frank Fisher).

The new policy has a short section on "offensive or inappropriate content on BBC websites" where it says the following:

Offensive or inappropriate content on BBC websites

If you post or send offensive, inappropriate or objectionable content anywhere on or to BBC websites or otherwise engage in any disruptive behaviour on any BBC service, the BBC may use your personal information to stop such behaviour.

Where the BBC reasonably believes that you are or may be in breach of any applicable laws (e.g. because content you have posted may be defamatory), the BBC may use your personal information to inform relevant third parties such as your employer, school email/internet provider or law enforcement agencies about the content and your behaviour.

To be fair, it does seem to limit this to cases where it believes you've violated the law, but even so, it seems like a stretch to argue that the BBC should be calling your boss to tell on you for being a dipshit online, even if you break the law. We've all seen the stories of people actually confronting their own trolls or, better yet, the mothers of their trolls, but to make it official BBC policy seems to be going a bit far. Sure, if someone is breaking a criminal law, informing the police sounds perfectly reasonable, but your boss or your school?

Anyway, I guess be forewarned: if you don't want the BBC telling your boss you're a jerk online, maybe don't be a jerk on the BBC's website.

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Posted on Techdirt - 17 May 2017 @ 9:23am

Well, Duh: Facebook's System To Stop 'Fake News' Isn't Working -- Because Facebook Isn't The Problem

from the get-a-little-perspective dept

It's not like we didn't say right away that those rushing to blame Facebook for "fake news" were missing the point and that the problem was always with the nature of confirmation bias, rather than the systems people use to support their own views. But, alas, the roar of "but Facebook must be the problem, because we saw "fake news" on Facebook" along with the related "but, come on, it must 'take responsibility'" arguments kept getting louder and louder, to the point that Facebook agreed to start trying to warn people of fake news.

And, guess what? Just like basically every attempt to stifle speech without looking at the underlying causes of that speech... it's backfiring. The new warning labels are not stopping the spread of "fake news" and may, in fact, be helping it.

When Facebook’s new fact-checking system labeled a Newport Buzz article as possible “fake news”, warning users against sharing it, something unexpected happened. Traffic to the story skyrocketed, according to Christian Winthrop, editor of the local Rhode Island website.

“A bunch of conservative groups grabbed this and said, ‘Hey, they are trying to silence this blog – share, share share,’” said Winthrop, who published the story that falsely claimed hundreds of thousands of Irish people were brought to the US as slaves. “With Facebook trying to throttle it and say, ‘Don’t share it,’ it actually had the opposite effect.”

Again, this isn't a surprise. Fake news was never the issue. People weren't changing their minds based on fake news. They were using it for confirmation of their views. And when you get contradictory information, cognitive dissonance kicks in, and you rationalize why your beliefs were right. In fact, studies haves shown that when questionable beliefs are attacked with facts, it often makes the believers dig in even stronger. And that seems to be what's happening here. With efforts made to call out "fake news" the people who believe it just see this as "fake news" itself -- and an attack on what they believe is true. It's easy to chalk up any fake news labels as just part of the grand conspiracy to suppress info "they" don't want you to see.

The article goes on to talk to a bunch of different people who operate sites that had articles dinged with the "fake news" scarlet letter from Facebook, and most of them (though, not all) say they saw no real impact on traffic.

Of course, because we've seen this kind of thing play out before, it's likely that rather than recognizing Facebook isn't the issue, people who are angry about what they believe to be the scourge of "fake news" will also double down -- just like those who fall for "fake news." They'll insist that it's Facebook's fault that the fake news issue didn't just go away when Facebook put warning labels on stories. They'll ignore the fact that they were the ones demanding such things in the first place, and that they insisted such labels would work. Instead, they'll argue that Facebook should be doing even more to suppress "fake news" and never consider that maybe they're targeting the symptoms and not the actual disease.

Facebook has always been an easy target, but Facebook isn't the problem. People want to share bogus, fake, or misleading news, because it confirms their biases and beliefs and makes them feel good. That's not Facebook's fault. It's a problem in how we educate people and how we teach basic media literacy. That's not going to be fixed with warning labels.

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Posted on Techdirt - 16 May 2017 @ 3:23am

Microsoft Is PISSED OFF At The NSA Over WannaCry Attack

from the as-it-should-be dept

So, for about a day, Microsoft followed the usual course of action concerning the WannaCry malware that made the rounds last week. As we noted, this ransomware/attackware was built off some leaked NSA exploit code utilizing a vulnerability in Microsoft Windows... that the NSA failed to tell Microsoft about. Microsoft had actually patched it a few weeks prior to the code leaking online via Shadow Brokers, but, still... the NSA is supposed to disclose most of these vulnerabilities, rather than hold them for offensive use (that's the theory, at least).

Microsoft did its standard "no comment" bit for a day or so, but then on Sunday, its President and Chief Legal Officer let loose on the NSA for its failures that resulted in all of this happening. First, it officially confirmed what people were saying about the code being built off of leaked NSA code:

The WannaCrypt exploits used in the attack were drawn from the exploits stolen from the National Security Agency, or NSA, in the United States.

The post does a good job discussing what Microsoft is doing about this and what it means, but then has this:

Finally, this attack provides yet another example of why the stockpiling of vulnerabilities by governments is such a problem. This is an emerging pattern in 2017. We have seen vulnerabilities stored by the CIA show up on WikiLeaks, and now this vulnerability stolen from the NSA has affected customers around the world. Repeatedly, exploits in the hands of governments have leaked into the public domain and caused widespread damage. An equivalent scenario with conventional weapons would be the U.S. military having some of its Tomahawk missiles stolen. And this most recent attack represents a completely unintended but disconcerting link between the two most serious forms of cybersecurity threats in the world today – nation-state action and organized criminal action.

The governments of the world should treat this attack as a wake-up call. They need to take a different approach and adhere in cyberspace to the same rules applied to weapons in the physical world. We need governments to consider the damage to civilians that comes from hoarding these vulnerabilities and the use of these exploits. This is one reason we called in February for a new “Digital Geneva Convention” to govern these issues, including a new requirement for governments to report vulnerabilities to vendors, rather than stockpile, sell, or exploit them. And it’s why we’ve pledged our support for defending every customer everywhere in the face of cyberattacks, regardless of their nationality. This weekend, whether it’s in London, New York, Moscow, Delhi, Sao Paulo, or Beijing, we’re putting this principle into action and working with customers around the world.

Whatever you might think of Microsoft and privacy and such, in the last few years (in part thanks to Smith's focus on this), it has been really good about pushing back on government surveillance and interference. This blog post seems to be the next step in that effort. I'm sure that plenty of readers here have a reflexive dislike of Microsoft (no need to express it in the comments, we know already), but the company has been taking a strong stand against excessive surveillance and other efforts to weaken the public's security. Calling out the failures of the intelligence community in not disclosing these kinds of vulnerabilities is another good step, and it's good to see Microsoft make such a clear statement on it.

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Posted on Techdirt - 15 May 2017 @ 10:44am

Judge Alsup Threatens To Block Malibu Media From Any More Copyright Trolling In Northern California

from the run-away...-run-away dept

Yes, we keep seeing Judge William Alsup appear on these pages, as he keeps getting high profile tech related cases. And, while we don't always agree with his decisions, I don't think that anyone can argue that he isn't careful and thorough in making sure he understands the technology involved in these cases. The most well-known example of this, of course, was the time he taught himself to program Java to understand the deeper issues in the copyright dispute over Java's API's (which helped him make the right call in saying API's were not eligible for copyright protection -- a ruling that was unfortunately overturned by the Federal Circuit). More recently, Judge Alsup also got some attention for demanding lessons and reading materials in how to build LiDAR systems, to understand the trade secrets fight between Uber and Waymo over their LiDAR technology. And, just as a reminder, he's not talking about basic level stuff here:

Please keep in mind that the judge is already familiar with basic light and optics principles involving lens, such as focal lengths, the non-linear nature of focal points as a function of distance of an object from the lens, where objects get focused to on a screen behind the lens, and the use of a lens to project as well as to focus. So, most useful would be literature on adapting LiDAR to self-driving vehicles, including various strategies for positioning light-emitting diodes behind the lens for best overall effect, as well as use of a single lens to project outgoing light as well as to focus incoming reflections (other than, of course, the patents in suit). The judge wishes to learn the prior art and public domain art bearing on the patents in suit and trade secrets in suit.

Yeah. So. It was probably a good thing that, a year and a half ago, the Chief Judge in the Northern District of California, said that any new Malibu Media copyright trolling cases had to go in front of Judge Alsup. Malibu Media, of course, is the US's biggest copyright troll, responsible for a fairly insane percentage of all the copyright infringement lawsuits filed in the US. We've had a ton of stories about the company and some of its fairly shady practices in copyright trolling. Malibu Media, of course, is also a sleight of hand, as it's actually the porn company better known as X-Art. It's also been connected to the famous "international men of mystery", often referred to as Guardaley -- a German company, that's gone through various name changes, and seems to be behind numerous copyright trolling operations.

Either way, last year, we noted that Judge Alsup had been quick to understand what was going on with Malibu Media, and, in particular, called out the company for attempting to cut and run on any case when challenged. This is pretty typical of many copyright trolls. If the defendant in the case actually challenges anything, Malibu will often dismiss the case and run away, so as not to have to bother with defending its own legal tactics.

It appears that Alsup is getting increasingly tired of Malibu Media trying to abuse the judicial system as part of its shakedown business model. As first noted by the Fight Copyright Trolls blog, Alsup has issued an order to show cause why it should be barred from filing any more lawsuits in the district.

Specifically, Alsup is doing this in response to Malibu Media's claims that the geolocation technology it uses, from Maxmind, is close to 100% accurate in locating where a given IP address is located. If Maxmind sounds familiar, that's because it's the company which was the subject of numerous stories last year about how laughably bad its geolocation tools were, including the truly horrifying story of how Maxmind would tell lots of people that various IP addresses were at a random house in Kansas, leading lots of strangers to show up there, often angry about scams or spam.

So, yeah, to then go into court and declare that Maxmind is perfect... didn't go over too well:

In this particular case, as in each case filed in this district in October 2016, counsel for Malibu Media averred in a sworn declaration that Malibu Media used a database called “Maxmind” to map our defendant’s IP address to a particular district in order to determine the proper venue for this action (Dkt. No. 7-6). The declaration parroted several hearsay statements about the accuracy of Maxmind from its website, but counsel also averred that in their experience in California “Maxmind has always been 100% accurate to the state level, 100% accurate at identifying the ISP and has predicted the correct district 146 out of 147 times”

He then points to that article linked above, about the house in Kansas, and says that Malibu Media better come up with better evidence of accuracy, or that's it for lawsuits in Northern California:

Malibu Media is hereby ordered to SHOW CAUSE at that hearing, why the Court should not bar further Malibu Media cases in this district until the accuracy of the geolocation technology is fully vetted. Malibu Media shall file a written statement, with all factual assertions supported by declarations sworn under the penalty of perjury by MAY 16 AT NOON.

Oh, and since Malibu Media has a history of cutting and running, he added this kicker:

To be clear, this order applies even if Malibu Media voluntarily dismisses this action.

In other words: don't run and hide. It won't work.

The order also highlights that Alsup is well aware of how the copyright trolling scam works, quoting another judicial hero in the fight against copyright trolls, Judge Otis Wright, who famously was the first to call out Prenda, and kicked off a series of events that resulted in Prenda's two principles getting indicted.

Here, Judge Alsup quotes Judge Wright, calling out Malibu Media as well:

The Court is familiar with lawsuits like this one. These lawsuits run a common theme: plaintiff owns a copyright to a pornographic movie; plaintiff sues numerous John Does in a single action for using BitTorrent to pirate the movie; plaintiff subpoenas the ISPs to obtain the identities of these Does; if successful, plaintiff will send out demand letters to the Does; because of embarrassment, many Does will send back a nuisance-value check to the plaintiff. The cost to the plaintiff: a single filing fee, a bit of discovery, and stamps. The rewards: potentially hundreds of thousands of dollars. Rarely do these cases reach the merits.

The federal courts are not cogs in a plaintiff’s copyright-enforcement business model. The Court will not idly watch what is essentially an extortion scheme, for a case that plaintiff has no intention of bringing to trial.

It's really quite astounding that operations like Malibu Media have been able to keep this up this long. It eventually crashed and burned for Prenda, and it looks like Malibu Media may be facing some more significant challenges in the near future as well.

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Posted on Techdirt - 12 May 2017 @ 7:39pm

Leaked NSA Hacking Tool On Global Ransomware Rampage

from the who-trusts-the-nsa? dept

Welp. What was that we were saying about the problems of the NSA creating hacking tools that leak, rather than helping patch security flaws? Oh, right. That it would make everyone less safe.

And here we are. With a global ransomware rampage, referred to as "WannaCry" putting tons of people at risk, thanks to leaked NSA malware:

Leaked alleged NSA hacking tools appear to be behind a massive cyberattack disrupting hospitals and companies across Europe, Asia and the U.S., with Russia among the hardest-hit countries.

The unique malware causing the attacks — which been spotted in tens of thousands of incidents in 99 countries, according to the cyber firm Avast — have forced some hospitals to stop admitting new patients with serious medical conditions and driven other companies to shut down their networks, leaving valuable files unavailable.

Specifically, it appears that the ransomware is using an NSA tool called ETERNALBLUE, which was leaked in April by Shadow Brokers. This was among those that were quietly patched by Microsoft back in March, but not everyone installs security patches in a timely manner. Indeed, as some are reporting, some of the victims -- including the National Health Service Hospitals in the UK -- are running ancient Windows XP, an operating system that is not even remotely secure, and is no longer supported.

Thus, there's some debate online about whether the "problem" here is organizations who don't upgrade/patch or the NSA. Of course, these things are not mutually exclusive: you can reasonably blame both. Failing to update and patch your computers is a bad idea these days -- especially for large organizations with IT staff who should know better.

At the same time, the fact that this hack is built off of a leaked NSA hacking tool highlights a couple of key points:

  1. The NSA's dual-hatted offensive & defensive structure is damaging: The NSA plays both offense and defense on computer security. That is, it is supposed to hack into other systems, but also help protect our systems. But it's quite clear that the offensive capabilities are valued much more than the defensive ones -- and that's a problem. Once again, it appears that people in the intelligence community are not doing a clear cost-benefit analysis of the tools that they use. They like their toys, but they rarely seem to take into consideration what happens should those toys get out.
  2. Once again, this reinforces why we should not allow backdoors to encryption or any other such vulnerability. Over and over again, the proponents of backdooring encryption have insisted that it can be built in a "safe" way, where only government will get the backdoor access to encryption. The fact that some of the NSA's most powerful hacking tools have not only been leaked but are now wreaking havoc around the world, should put a complete end to the "going dark" debate. But it won't. It's not safe, but many in the law enforcement community, in particular, are in denial about this.
These problems are not new. Hell, we've been talking about both of them for the better part of a decade already. But this rapid spread of WannaCry is putting an exclamation point on those arguments. Unfortunately, the cynical side of my brain says this warning will still be ignored.

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Posted on Techdirt - 12 May 2017 @ 3:42pm

Now Canceled Crowdfunding Project Sent DMCA Notice Following Skeptical Review

from the you're-not-helping dept

A few months back, I saw some news about a crowdfunding project on IndieGogo, called Titan Note. It was a little a cylindrical device that acted as a microphone, and the guys behind the project insisted that it could transcribe notes with fairly incredible levels of accuracy. The device got some press coverage -- including a quite reasonably skeptical piece at The Verge, entitled "No way this transcription gizmo is as good as it claims to be." There was a lot more skepticism around the project in the comments to the project as well. On top of that, the project's marketing pitch seemed... wrong. That is, it positioned the device as a thing that you could use to "stop taking notes" in classes and meetings in order to pay better attention and learn more. But... that's just wrong. Because the process of taking notes yourself actually helps you commit things to memory. That is, taking notes helps you pay better attention, and thus if you actually used the device the way it was advertised, you might get less out of lectures and meetings.

All that said, here's a confession: I still backed it. I was already skeptical -- in part because of the mis-targeted marketing and because the video looked too good to be true, given the state of transcription products in the market, and I had read that Verge article. But, there was an early bird deal that made it pretty cheap, and I figured that even if it was just a so-so product, it could have some use, such as making it easier to transcribe videos and podcasts for posts here on Techdirt. Given the low price of the early bird, I figured maybe it was worth the risk that the product sucked... or didn't exist at all.

Eventually, the product raised over $1.1 million -- as it announced in a press release. But, late last night I got an email from IndieGogo saying that the project had been shut down and all funds refunded. IndieGogo told the Verge that the project had violated its terms of service -- which could mean lots of things. If anything, I'm more relieved than anything else. I had kind of regretted backing it in the first place, given the skepticism I had over the product.

But, that alone wouldn't make this much of a Techdirt story. Instead, what made this a Techdirt story is this, from the Verge:

When we covered the Titan Note in March, we suggested the company was perhaps exaggerating the capabilities of its product. After all, we said, if Apple or Amazon can’t produce transcription software as accurate and speedy as this, what chance does a company with no commercial history have? We later received a DMCA takedown notice for using of Titan Note’s product imagery to illustrate our story.

What a bunch of jerks. Sure, you can say that DMCA'ing the "images" rather than the actual story is marginally more defensible... but even that's not true. Those were marketing materials that the company released for the clear purpose of having the press promote the device. The only purpose behind a takedown notice was in anger over a skeptical report on the product. At the very least, that shows that Titan Note itself doesn't have much confidence in its own product. If I'd known it was a company that abused the DMCA to try to hit back at criticism I never would have backed it in the first place. Such companies are not trustworthy at all.

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Posted on Techdirt - 12 May 2017 @ 1:46pm

FCC Temporarily Stops Taking Net Neutrality Comments So FCC Can 'Reflect'

from the reflect-away dept

Okay, let's be quite clear here: this is not some crazy new thing that the FCC is doing, but it's important for members of the public to understand what's happening. As lots of people have been commenting (some of which are fake) on the FCC's proposed plan to rollback net neutrality, the FCC will be temporarily be shutting down the ability to comment. This is not in response to the fake comments. Nor is it in response to the site being overwhelmed -- whether by John Oliver or [snort!] random DDoS attacks that no one else can see. Rather it's... to give the FCC a moment of peaceful reflection. No really:

Under the Commission’s long-standing rules that apply to all proceedings, all presentations to Commission “decision-makers” that concern a matter listed on the Agenda are prohibited during what is known as the Sunshine Agenda period. This means that during this brief period of time, members of the public cannot make presentations to FCC employees who are working on the matter, and are likely to be involved in making a decision on it, if the underlying content of the communication concerns the outcome of the proceeding. Thus, for example, during this brief period of time, the Commission’s rules generally prohibit members of the public from submitting comments through the Commission’s website addressing the merits of the Restoring Internet Freedom Notice of Proposed Rulemaking or any other item to be considered at the May 18 meeting. The Commission adopted these rules to provide FCC decision-makers with a period of repose during which they can reflect on the upcoming items.

Apparently, the geniuses at the FCC don't know how to just not read the incoming comments for a few days. Imagine if other businesses put up signs that said "Please, no emails, I need a period of repose to reflect on upcoming business." Most people would think that's crazy. Look, if the FCC wants time alone, it should either just stop looking at the comments for a few days or build a system that holds the comments in transit until the "Sunshine" period is up.

While I'm sure some folks will insist that this is being done to stop the public from commenting, that's not true. It's just a dumb rule that the FCC has that it should dump, in part because of just how clueless and out of touch it makes the FCC look.

Meanwhile, if you do still feel the need to comment, the EFF is doing what the FCC itself should do and has set up its own page at DearFCC.org to hold any comments after midnight tonight (when the Sunshine period goes into effect) until comments open up again. That form is useful, though I generally don't like form mailers that have text that you cannot change, as the EFF's does (it lets you add in additional comments, but has some permanent text). Update: Strike that, I'm wrong. While it does have some pre-filled text, when you click to the next page you can change all of it, and aren't limited to their language at all.

Either way: the important thing is this: if you want to add your comments to the record on net neutrality (AND YOU SHOULD), you should get in a comment today or you'll need to wait a week or so until comments open up again. Meanwhile, since the FCC apparently needs this brief respite to "reflect" on "upcoming items" such as net neutrality, does this mean that we won't be seeing Ajit Pai or his staffers being quoted in the news and on Twitter mocking those who oppose his plans? Or, is that still allowed while they "reflect"?

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Posted on Techdirt - 12 May 2017 @ 8:39am

MySpace Tries To Play Dead To Avoid Lawsuits

from the hide-and-seek dept

Yes, let's get this out of the way already, so you don't need to make this joke in the comments: as a social network, MySpace is considered pretty damn dead already. It lost its cool many, many years ago. And I do still love to point out this 2007 article suggesting that MySpace's dominant position in the social networking market was almost impossible to crack (that didn't age well). But that's not what this post is about. You see, MySpace, still does exist -- you can even visit it and double their traffic for the day. Even as the punchline in bad jokes, MySpace exists and (believe it or not) Time Inc. actually owns it, having bought the company, Viant, that owned it previously.

This story, however, is about how, soon after Time took over MySpace, its lawyers literally tried to hide the company from a plaintiff (and the court) by having the company play dead -- even though it was very much alive. I'm not exaggerating. Time Inc. appeared to play a bunch of legal shenanigans to pretend that MySpace no longer existed, even as the company kept operating -- to the point that Viant's CEO was publicly hyping MySpace. Hell, months after Time Inc. tried to pretend MySpace was dead, Time's CEO was talking up how amazing MySpace was in the press.

The background here: years ago, a guy named Stephen Aguiar was arrested and convicted for drug distribution. He's in prison, serving 25 years. Sometime after his conviction he discovered that some of the evidence against him, that was supplied by MySpace (way back when MySpace was still a big thing), quite likely violated the Stored Communications Act.

Additional background: We've written about the Stored Communications Act before. It's a part of the Electronic Communications Privacy Act (ECPA) that controls what kind of electronic information can be given up without a warrant. As we've also discussed for years, ECPA is woefully out of date for a variety of reasons including the fact that it says that all communications stored on a server for more than 180 days should be considered abandoned and no longer need a warrant to access. But communications less than 180 days do require a warrant.

Back to Aguiar. In late 2013 he discovered that back in 2009, the DEA sent an administrative subpoena to MySpace, under the Stored Communications Act, asking for certain content related to his MySpace account. An administrative subpoena is not a warrant. As we've described in the past, it's basically a fishing expedition by law enforcement, in which they send an official looking document asking for information they may not actually have the rights to. MySpace, back in 2009, apparently had lawyers who fell for this and handed over basically all of Aguiar's account info, despite at least some of it being protected under the SCA and requiring an actual warrant (which would require probable cause and a judge's review).

Thus, in 2014, he sued MySpace for violating the Stored Communications Act, representing himself (pro se). At this point, MySpace was owned by Viant and it hired some lawyers to defend the case. All well and good. But, within weeks of Time Inc. buying Viant, something sketchy started happening. Without telling anyone, Time claims that it changed the name of its "MySpace LLC" subsidiary to "Legacy Vision LLC." Then, it "transferred" all of MySpace's assets to Viant. Four days later, it registered a brand new company... also called MySpace LLC. While this was happening, Time/MySpace basically told no one about this. The people operating MySpace had no idea and nothing changed. Even the lawyers who were representing MySpace in the case knew nothing about it and continued to represent the company for months -- only to be told about six months later that the company they were representing stopped existing months earlier.

Prior to this MySpace had moved to dismiss the lawsuit, and was denied. So the case was supposed to move forward and MySpace was supposed to file an answer to the complaint. Except... it didn't. It didn't do anything at all. The magistrate judge, Patrick Walsh, demanded that the lawyer representing MySpace, Jane Rheinheimer, show up in court leading to a hearing last December with a fairly incredible transcript. Some excerpts:

RHEINHEIMER: My name is Jane Rheinheimer, I’m former counsel, well, counsel for the former MySpace LLC.

THE COURT: Okay. And who’s the representative from MySpace or Legacy?

RHEINHEIMER: There is none, your honor.

THE COURT: Why not?

RHEINHEIMER: Neither MySpace nor Legacy Vision LLC exists as an operating entity anymore, your honor.

THE COURT: Well that sounds like a lawyer talking, like as an operating an entity. Somebody signed a change in the name change in the spring.

RHEINHEIMER: It’s my understanding, your honor. And- My understanding is that Legacy Vision LLC currently exists only in name with the secretary of state. There is no management; there is no employees; there is no asset; there is no anything; there is no operating entity there, your honor.

Got that? There's a sneaky game being played here. Effectively, it appears that Time is claiming that the MySpace that was sued became Legacy Vision, but that Legacy Vision shut down and isn't operating at all. And that this operating MySpace is someone else entirely. The judge was... not impressed, leading to this crazy exchange between the judge and Aguiar (again, representing himself in court, where the judge is helping by explaining what's going on):

THE COURT: Okay. All right, Mr. Aguiar, what do you want to do?

AGUIAR: I’m kind of out of my area of expertise, your honor. My understanding was that the name changed in March. Weren’t the parties obligated to notify either me or the court?

THE COURT: Of course they were. This is middle school stuff, right?

AGUIAR: Right.

THE COURT: This is how four year olds play hide-and-go seek. When you tell them to go hide and go seek, they cover their eyes, and they think you can’t see them, right?

AGUIAR: Right.

THE COURT: So MySpace changed its name to Legacy and they’re like, “There’s no more MySpace, Court.” Okay, here’s what I’m going to do. I’m adding Legacy. I’m going to give you a default... and you can do what you want with it. All right?

In other words, the court was making it clear that it wasn't buying this game. Of course, that same transcript included the court refusing to let MySpace's former lawyer withdraw from the case, even as she was pointing out that she no longer has a client to pay her, because her "client" claims the company no longer exists:

THE COURT: We’ll be entering the default and you make your motion for default judgment. Ms. Rheinheimer, I understand you’re in a tough spot, but your request to withdraw as counsel is denied, okay? Corporations cannot proceed in the federal court without a lawyer and there’s no good reason for you to be off this case. I think it’s just gamesmanship that’s going on with Legacy and MySpace and Mr. Lee, and I’m not letting you off. We’re going forward. He’s going to file a motion for default judgment and if you don’t want to fight that, don’t fight it. I’ll enter the default judgment, okay? And you can go back…

RHEINHEIMER: Very well, your honor. There is no entity to pay me. I have no way of, I have no way of getting paid. There is noth…

THE COURT: I want to tell you I’ve been in this- as a law clerk, I worked at DOJ at the US attorney’s office and I’ve been a Judge for 15 years. I want to tell you what I understand what’s always been the practice since 1984, when I externed for Judge Layton at the federal district court in Chicago. We’re not here, we’re not bill collectors. The fact that you can’t get paid, the rules don’t provide ‘you have to represent your client diligently unless you client is not paying you’. And our local rules don’t require, don’t allow you to get out from under a case because your client isn’t paying you. That’s something you have to- I’m not in the middle of those negotiations. You need to call up Mr. Lee and say, “Hey Judge Walsh is leaving me on this case. I need to get paid.” And I think you should get paid, okay? I’m on your side there, but you’re not flipping the district court upside down because you’re not getting paid. All right?

Soon after this, a few things happened. First, the "new" MySpace got angry at being added to this case, and hired some new lawyers who filed to "intervene" in the case (even though they should already be in the case as it's the same MySpace) in order to try to fight the ruling. The filing is a work of art if legal bullshit were an artform. It insists that MySpace LLC is some totally unrelated company to the MySpace LLC in the lawsuit and acts positively shocked that anyone might think they are the same:

Plaintiff’s Motion constitutes his latest attempt to obtain a default judgment against a company that: (1) never had any dealings with Plaintiff; (2) was never named as a party to this lawsuit; (3) did not exist until well after the conduct complained of in Plaintiff’s complaint occurred; and (4) is both factually and legally a separate entity from the “Myspace LLC” identified in Plaintiff’s complaint which Plaintiff admits now operates under the name Legacy Vision LLC (hereinafter “Judgment Debtor”).

In a separate filing, MySpace attempts to argue that when Time bought Viant/MySpace it structured a complicated agreement in which it was buying the assets, not the liabilities -- and thus the complicated shell corporation and asset movement was really about fulfilling that agreement.

Second, Aguiar got legal representation from lawyer Caleb Mason, who some of you may recognize as a partner of Ken "Popehat" White's. Mason then opposed the intervention and detailed much of the history I summarized above -- including pointing out that despite the name changes and new corporations, MySpace hasn't changed. The same lawyer who accepted service for the original lawsuit is still VP of legal affairs. The same lawyer representing the firm now represented the firm earlier in other cases. The same CEO of Viant/MySpace is still CEO of Viant/MySpace (now a Time Inc. subsidiary).

Third, the original MySpace/Viant lawyer filed a declaration to the court more or less burning MySpace/Viant for telling her to stop doing anything on the case in September way after all the shell games happened, and then completely ignoring her every time she tried to contact them about things moving forward in the case (including the court refusing to let her withdraw):

As is set forth in more detail in the Motion to Withdraw and Declaration of Jane A. Rheinheimer which is filed concurrently with the instant Declaration of Inability to File Opposition or Notice of Non- Opposition, all communication from Viant, Inc. and/or MYSPACE, LLC has ceased. I was advised by the previous corporate counsel for Viant, Inc. on September 16, 2016, that my firm’s services would no longer be required in connection with this matter. Additional written communications from my office on September 16, December 20, December 21, December 22, December 27, and December 29, 2016 and January 10, January 31, February 1, and February 3, 2017 have gone unanswered. I have sent corporate counsel copies of all pleadings, motions, and minute orders of this Court. All of these communications were sent via electronic mail, none of which have been returned.

Given all that, a few days ago the judge, James Otero, ruled in the case... and to say that he's less than pleased with Time Inc./MySpace's games here would be an understatement. The ruling denies "MySpace LLC"'s request to intervene, because the judge notes it was already a party to the case and just chose to ignore it. All the maneuvering is written off as "gamesmanship and evasion." This is the kind of thing you generally don't want to hear a judge saying about your actions in a case:

The Court agrees that this is not a run-of-the-mill motion for default judgment. Although it claims otherwise, MySpace has been actively opposing the motion and has concealed material information or otherwise muddied its representations to the Court.

As for the claim that Time only bought the assets and not the liabilities, the court isn't buying it:

Through a complicated series of transactions not previously disclosed to the Court, Proposed Intervenor argues that a Time, Inc. subsidiary transferred MySpace's assets–but none of its liabilities–to Proposed Intervenor, which currently operates under the same.... MySpace fails to provide any documentation to support these purported transactions.

Also, as to the claims in MySpace's attempt to "intervene" that MySpace LLC didn't exist prior to all of this, the judge points out, wryly, some oddities if that's the case:

A search of "MySpace LLC" on the California Secretary of State website reveals that it has the same address as the headquarters of Time, Inc., the parent company of Viant.... A search of "Legacy Vision LLC" on the website shows that Legacy Vision filed a Statement of Information on November 2, 2015–four months before Defendant MySpace allegedly changed its name to Legacy Vision–with the following information: the limited liability company name is listed as "MYSPACE LLC"; the manager of the entity is "Viant Technology Inc."; and the "AUTH PERSON" who completed the form was Timothy C. Vanderhook, Chief Executive Officer of MySpace LLC and Viant Technology LLC.... "Viant Technology Inc." is listed as the "Manager" of Legacy Vision, and has an address that matches that of Viant Technology LLC's headquarters in Irvine, California....

Moreover, Proposed Intervenor's counsel, LTL Attorneys LLP ("LTL"), was counsel of record for MySpace LLC in another action in the District of Delaware, captioned FO2GO LLC v. MySpace LLC, No. CV 15-00095 RGA (the "Delaware Action"), filed January 27, 2015.... In other words, assuming Proposed Intervenor did not exist until March 2016, it was somehow represented by the same firm over a year before.

The court further calls out attempts by this MySpace to also pretend that Viant Technology LLC and Viant Technology Inc. are somehow different companies (they are not). It goes on and on along these lines, including pointing out that the company had a legal obligation to update the court and the plaintiff in the case to changes in ownership to the defendant -- and eventually orders MySpace to pay Aguiar $1,000 for violating his rights under the SCA, but also to pay nearly $75,000 in Aguiar's legal fees.

What a mess. This kind of bullshit gamesmanship — having Time Inc. pretend that MySpace is dead just to avoid a court case — is the reason lawyers (especially corporate lawyers) have such a bad reputation among so many people. Thankfully it's not always so easy to get away with.

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