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Posted on Techdirt - 7 October 2015 @ 12:53pm

Australia Finally Rejects Gene Patents

from the big-win dept

Back in 2013, in a hugely important decision, the US Supreme Court rejected the idea of gene patents, in particular the patents held by Myriad Genetics for the BRCA1 and BRCA2 genes (that are genetic warning signs for breast cancer). A parallel case was happening down in Australia, where an Australian court went the other way last year, ruling that genes could be patented. As we noted, the case could still be appealed to the Australian High Court. And now... the High Court has finally rejected gene patents.

The High Court held that an isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm that are indicative of susceptibility to breast cancer and ovarian cancer, was not a "patentable invention"...
Specifically, the court rejected the argument that isolating the gene represented a "manner of manufacture" as required by the law to be patentable.
The Court unanimously allowed the appeal, holding that the invention claimed did not fall within the concept of a manner of manufacture. The Court held that, having regard to the relevant factors, an isolated nucleic acid, coding for the BRCA1 protein, with specified variations, is not a manner of manufacture. While the invention claimed might be, in a formal sense, a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed. A plurality of the Court considered that to attribute patentability to the invention as claimed would involve an extension of the concept of a manner of manufacture which was not appropriate for judicial determination.
That's a fairly complex way of saying you can't patent genes. It's always nice to see a little more common sense enter the patent system.

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Posted on Techdirt - 7 October 2015 @ 11:46am

TPP Also Locks In Broken Anti-Circumvention Rules That Destroy Your Freedoms

from the sad-to-see dept

We already wrote about how New Zealand has released some of the details about the finalized TPP agreement before the official text is released. The one we discussed is forcing participants into a "life plus 70 years" copyright term, even as the US had been exploring going back towards a life plus 50 regime like much of the rest of the world. That won't be possible any more.

Another issue revealed in the New Zealand announcement is that the TPP will similarly lock in an anti-circumvention clause. In the US, we have a really problematic anti-circumvention law in Section 1201 of the DMCA, which says it's against the law to circumvent "technological protection measures" even if for reasons that are perfectly legal and non-infringing. This has created a huge mess that threatens innovation in all sorts of problematic ways. It takes away our freedom to tinker with devices that we own. It also makes it illegal to do things that pretty much everyone agrees should be perfectly legal.

Earlier this year, some in Congress introduced a bill to fix Section 1201. However, that may not be possible after the TPP is agreed to. Again, the details matter, but here's what New Zealand has to say about this issue:

New Zealand has, however, agreed to extend its existing laws on technological protection measures (TPMs), which control access to digital content like music, TV programmes, films and software. Circumventing TPMs will be prohibited but exceptions will apply to ensure that people can still circumvent them where there is no copyright issue (for example, playing region-coded DVDs purchased from overseas) or where there is an existing copyright exception (for example, converting a book to braille).
So, yes, it appears there will be certain exceptions allowed, but again that gets the equation entirely backwards. At best, circumvention should be considered legal as the default, and the problem should only come in if the circumvention was done for the purpose of actual infringement. Starting from the position of "no circumvention" and then backdooring in "exceptions" massively hinders innovation by requiring permission before certain innovations are allowed.

Given how important this kind of innovation has been for the tech sector, it's disappointing in the extreme that the USTR has decided to lock this in and block all kinds of important innovations from moving forward. Once again, the USTR seems focused on protecting legacy industries while hamstringing innovative industries.

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Posted on Techdirt - 7 October 2015 @ 10:46am

Former NSA Directors Coming Out Strongly *Against* Backdooring Encryption

from the didn't-see-that-coming dept

Earlier this summer, we were taken a bit by surprise when both former NSA/CIA boss Michael Hayden, along with former DHS boss Michael Chertoff, came out fairly strongly against backdooring encryption at a time when their counterparts still in the government seemed to be leaning in the other direction and have been pushing proposals to mandate backdoors. And it appears they're not backing down. Hayden has now doubled down with further statements against backdooring encryption, according to Lorenzo Franceschi-Bicchierai at Vice's Motherboard.

Michael Hayden, the former head of the US top spy agencies, the CIA, and the NSA, thinks the US government should stop railing against encryption and should support strong crypto rather than asking for backdoors.

The US is “better served by stronger encryption, rather than baking in weaker encryption,” he said during a panel on Tuesday.
Later, he told Lorenzo that part of his thinking is that the intelligence community doesn't need such backdoors since it has other ways of getting that info:
“In retrospect, we mastered the problem we created by the lack of the Clipper Chip,” he said. “We were able to do a whole bunch of other things. Some of the other things were metadata, and bulk collection and so on.”
Hayden is being a bit snarky there. He knows that privacy advocates will take his words about backdooring encryption and celebrate them, so he's using it at the same time to argue in favor of the other problematic programs -- programs that Hayden is most closely associated with involving mass surveillance. He's also being disingenuous. The metadata and mass surveillance efforts generally give you access to a different kind of information. What Hayden leaves out, of course, is the real reason why backdoors usually aren't that important: because there are almost always ways to hack into encrypted data, though that also raises serious questions.

Meanwhile, another former NSA director, Mike McConnell, has joined with the other two Michaels in arguing against backdoors. This according to Kaveh Waddell at the National Journal:
“Don’t get in the way of pro­gress,” Mc­Con­nell said Thursday at a pan­el dur­ing an en­cryp­tion sum­mit hos­ted by The Wash­ing­ton Post. “Don’t get in the way of in­nov­a­tion and cre­ativ­ity, be­cause this is go­ing to hap­pen. Some­body’s go­ing to provide this en­cryp­tion.”

Mc­Con­nell’s po­s­i­tion is a com­plete de­par­ture from the per­spect­ive he rep­res­en­ted in gov­ern­ment, a shift he has pub­licly ac­know­ledged. When he ran the Na­tion­al Se­cur­ity Agency in the 1990s, Mc­Con­nell was a vo­cal sup­port­er of the Clip­per Chip, a device de­veloped by the NSA that al­lowed the gov­ern­ment to de­crypt elec­tron­ic com­mu­nic­a­tions.
Of course, what's mostly left out of this discussion is that both McConnell and Hayden are now in the private sector -- Hayden at the Chertoff Group with Michael Chertoff, and McConnell at defense contracting giant (and former Ed Snowden employer) Booz Allen Hamilton -- where both have economic reasons for supporting actual stronger security, rather than undermining such security. Either way, in this debate, it seems that those pushing for backdooring encryption are increasingly being marginalized entirely. Even their normally faithful supporters have moved on into the world of reality, where backdooring encryption only leads to trouble.

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Posted on Techdirt - 7 October 2015 @ 6:13am

New Zealand Confirms That TPP Would Extend Copyright Terms In Many Countries, Block US Plans To Reduce Terms

from the total-failure dept

Previously leaked reports and drafts of the TPP agreement had showed that the US and Australia were strongly pushing other countries to extend the minimum copyright terms to "life plus 70 years," up from the international norm of "life plus 50 years." Mexico was actually pushing for life plus 100 at one point. This seemed bizarre to us. It's hard to see how anyone could legitimately support extending copyright terms, but the USTR refused to back down. This made no sense, given that here in the US, as we undergo a major copyright reform effort, even the head of the US Copyright Office has admitted that perhaps it's time to start moving back towards life plus 50 years here in the US.

So, now with the TPP concluded and no one willing to release the actual text, New Zealand has at least admitted that it and Canada caved and agreed to put "life plus 70" into the TPP.

TPP requires New Zealand to move to 70 years as well, but allows for a transition to do this over time.

This change could benefit New Zealand artists in some cases, but the benefits are likely to be modest. Extending the copyright period also means New Zealand consumers and businesses will forego savings they otherwise would have made from books, music and films coming off copyright earlier. The net cost of extending New Zealand’s copyright term from 50 to 70 years will be small to begin with and increases gradually over 20 years, reaching a relatively constant level after that. Over the very long term, including the initial 20-year period, the average annual cost is estimated to be around $55 million.
This is hugely problematic and, once again, shows how even if the TPP doesn't directly require changes to current US law, at the very least it locks in a very dumb provision that the US has already expressed interest in changing. And now we won't be able to because an unelected bureaucrat, negotiating behind closed doors with help from the MPAA & RIAA, pushed through provisions like this one.

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Posted on Techdirt - 6 October 2015 @ 2:54pm

The TPP And The Tobacco Carve-out Bring Together Strange Bedfellows... While Highlighting The Problems Of The TPP

from the not-a-good-idea dept

It's been rumored for years, but reports out of Atlanta suggest that it's now confirmed that in order to finalize the Trans Pacific Partnership (TPP) agreement, everyone agreed to carve tobacco out of the corporate sovereignty system, better known as ISDS (investor state dispute settlement). These systems allow companies to sue countries for passing regulations that the companies feel harm their ability to profit -- and tobacco companies have already filed ISDS complaints in a few countries that have pushed to put health warnings on cigarette packages.

While some health activists have cheered on this carve out -- it appears that almost everyone else is pissed off. Not because they think that Big Tobacco should be shaking down countries that pass anti-smoking laws (though, there may be some of that), but because they recognize the problems that occur when governments can start to set up trade deals that "carve out" certain industries. It's opening up a huge can of worms. Even some supporters of corporate sovereignty/ISDS are worried about what it means when one particular industry can just be excluded entirely from the process. Two of the biggest supporters of ISDS and TPP in Congress, Senators Mitch McConnell and Orrin Hatch, have both warned that the US should not carve out tobacco. Here's McConnell a few months ago, standing up for those poor, poor tobacco farmers:

“It is essential as you work to finalize the TPP, you allow Kentucky tobacco to realize the same economic benefits and export potential other U.S. agricultural commodities will enjoy with a successful agreement.”
And here's Hatch actually making a fairly salient point about the carve out:
“Although I don’t support tobacco at all, I still think it was essential,” Hatch said. “It’ll cost us some votes. And every vote is essential. And there are other things I am very concerned about. I’ve committed to read the bill, and I will read it, but right now I’m leaning against it.”
That doesn't bode well for the agreement, given that Hatch was a huge supporter of the TPP. Another Senator, Thom Tillis, has pointed out that carving out one industry opens up the possibility of carving out others:
“I’ll not only vote against it, I’ll work hard to have it defeated if it goes in the final agreement.... Once you carve out someone from dispute settlement agreements, then who’s next?”
And the tobacco carve-out, believe it or not, seems to be one thing that both big business and big labor agree on, though for entirely different reasons. The US Chamber of Commerce and the National Association of Manufacturers are totally against it:
we ask all of the TPP governments to reject the exclusion of products from the coverage of the TPP and its enforcement mechanism.... Such exclusions are unnecessary and would be highly damaging to the international rules based trading system and the prospects for the TPP.
And here was the AFL-CIO opposing the entire ISDS mechanism, and noting that the tobacco carve-out just highlights the problems of ISDS. Whereas Senator Tillis worried about "who's next" to get carved out, the AFL-CIO is pointing out that maybe there should be a lot more.
Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision.
Indeed, as Sean Flynn pointed out just last week, carving out tobacco really just enforces how dangerous corporate sovereignty really is:
The new exception validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations.

The carve out does nothing to halt the disturbing recent trend of companies using ISDS provisions in trade agreements to enforce international intellectual property norms through ISDS tribunals. This is, indeed, the claim at the heart of the tobacco cases now being litigated in ISDS systems. The claim is that tobacco regulations requiring plain packaging violate the trademark rights of tobacco companies protected by the World Trade Organization agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The pharmaceutical company Eli Lilly has also claimed that the denial of a new use patent on an old (off-patent) medicine violates rights granted by TRIPS and the North Atlantic Free Trade Agreement (NAFTA).
Meanwhile, US trade officials are, of course, trying to tap dance around the fact that basically everyone absolutely hates this. The USTR has tried to pretend this isn't a big deal because tobacco is "unique."
The U.S. Government seeks to include this language because tobacco is a unique product – it is highly addictive, always harmful to human health, and the single most preventable cause of death in the world. Recognizing these facts about tobacco through the TPP will represent an important step forward for public health in the international trade community.
It's true that tobacco can be a serious health concern, but shouldn't we be raising questions about why this procedure is no good for tobacco companies, but just dandy for every other industry -- including some that produce harmful products? Or those like pharmaceutical companies who are jacking up prices to keep necessary medicines out of the hands of the poor?

Oh, and then there are those who are in complete denial, who are insisting that there really isn't a carve-out for tobacco, even though there almost certainly is (we can't say for sure, of course, because the documents are secret):
“TPP will not discriminate against any agricultural commodity nor will it exclude tobacco. On the contrary, TPP will provide protections to ensure that governments can implement tobacco control measures, while guaranteeing that tobacco has the same legal status as any other product,” a U.S. official told CQ Roll Call last week.
In short, the whole tobacco carve-out situation is a microcosm of the problems with the TPP. You have a terrible idea (corporate sovereignty) mixed with a weak attempt to appease health activists (carve out tobacco), that basically fixes nothing and satisfies no one. And, now, the same Senators in Congress who demanded the fast track authority be granted, which ties their own arms behind their backs in terms of changing the agreement, are threatening to force this change, even though they've already given up the power to do so.

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Posted on Techdirt - 6 October 2015 @ 1:55pm

Happy Birthday And The Problem With The Copyright Office's 'Orphan Works' Plan

from the orphan-works-are-your-fault,-don't-blame-us dept

A few weeks ago, we wrote about the big ruling by Judge George King in a district court in California that Warner/Chappell does not hold a valid copyright in the song "Happy Birthday." The press ran with the story, with nearly all of the coverage falsely stating that the judge had declared Happy Birthday to be in the public domain. As we noted in our post, however, that was not the case. While the plaintiffs had urged just such a finding, Judge King noted that there were issues related to this that a jury would need to answer, and he would not go that far. Instead, he merely stated that Warner did not hold a valid copyright. Many people assume that this is good enough. The likelihood of some third party magically showing up after all of these years and not just claiming the copyright, but having enough evidence to prove it seems very slim. Glenn Fleishman has done a nice job writing up a detailed explanation of this copyright mess for Fast Company, in which he notes the "uncertainty is maddening."

It's worse than that. As we noted in our original post, technically, this makes "Happy Birthday" an orphan work -- i.e., a work where the exact copyright status or owner is "unknown." Orphan works have been a big problem that the Copyright Office has been studying for some time. However, the solution proposed by the Copyright Office is ridiculous, and the case of Happy Birthday should demonstrate pretty simply why the proposal is broken.

The plan says that anyone who wants to make use of an orphaned work would have to meet six criteria to avoid possible liability:

Users must: (1) if sued for infringement, prove to the court by a preponderance of the evidence that they performed a good faith, qualifying search to locate and identify the owner of the infringed copyright before the use of the work began; (2) file a Notice of Use with the Copyright Office; (3) provide attribution to the legal owner of the copyright, if reasonable under the circumstances; (4) include a to-be-determined "orphan works" symbol with any public distribution, display, or performance of the work; (5) assert eligibility for such limitations in the initial pleading in any civil action involving the infringed work; and (6) state with particularity the basis for eligibility for the limitations during initial discovery disclosures.
Now, let's look at this in terms of Happy Birthday. If you want to sing Happy Birthday, you would first have to conduct and document a "good faith, qualifying search to locate and identify the owner" of Happy Birthday before you sang it. You would then have to file a "notice of use" with the Copyright Office, telling the Copyright Office about this use of an orphaned work. Now, obviously, for most folks singing "happy birthday" at a birthday party, they're not going to do that -- and that's fine. After all, they ignored the copyright when many believed Warner/Chappell held a valid copyright.

But -- and here's the important point -- all of the "professional" situations where the song was used would almost certainly have to go through this process. Films that used the song wouldn't be able to get "errors and omissions" (E&O) insurance without first proving they made it through this process (and you need E&O insurance to ever get a movie released). Restaurants that wanted to sing Happy Birthday rather than their made up song would need to do the same thing. And they'd all likely have to hire lawyers in order to properly document the "search" and to file the notice with the Copyright Office. And very few people are going to want to go through that process. It may be slightly better than paying thousands of dollars to Warner/Chappell, but not much.

How is this solution possibly a "good compromise" on the issue of orphan works? How does adding such a burden, just so someone can sing Happy Birthday, possibly make sense?

Once again, the "problem" of orphan works is a self-made problem, created by copyright laws that automatically grant copyright to all new fixed works, rather than requiring registration in the first place. If it required registration, there would be some sort of record and paper trail of who owned the copyright and when it was valid. But in a world where everything gets copyright protection, we get a world with millions upon millions of orphaned works -- and if anyone who ever wanted to do anything with it had to go through the convoluted mess just to do something like sing Happy Birthday, the "answer" is no answer at all. It's just making a bad problem worse.

The way to fix orphan works is not to increase the burden, it's to fix a broken copyright system, and to require registration in the first place.

Bonus content: This doesn't fit directly into this post about orphan works, but this video by Vi Hart about the copyright on Happy Birthday is totally worth watching, presenting the issue from the perspective of someone knowledgeable about music theory, rather than copyright law, and showing yet another way in which the idea that Happy Birthday ever deserved copyright is a ridiculous idea.

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Posted on Techdirt - 6 October 2015 @ 10:44am

Apple Punishes iFixit For Doing A Tear Down On Apple TV

from the really-now? dept

The past two Techdirt podcasts had special guest Kyle Wiens, the CEO of iFixit, discussing both the DMCA's anti-circumvention review process and the more general importance of the freedom to tinker. In those podcasts, Wiens talked a bit about some companies being more willing than others to support iFixit's efforts to help people repair or modify products they had purchased.

Apple, apparently, is not a fan.

The company, which is famous for its somewhat arbitrary decisions to reject certain apps from appearing in its iTunes store, has now pulled iFixit's app entirely. Though, this time it's not necessarily for "arbitrary" reasons, but because Apple is pissed that iFixit took the Apple TV device that Apple sent the company, and did a teardown on it.

Of course, that makes you wonder what the hell Apple expected iFixit to do, since teardowns are kind of its thing.

Not too long ago, we tore down the Apple TV and Siri Remote. The developer unit we disassembled was sent to us by Apple. Evidently, they didn’t intend for us to take it apart. But we’re a teardown and repair company; teardowns are in our DNA—and nothing makes us happier than figuring out what makes these gadgets tick. We weighed the risks, blithely tossed those risks over our shoulder, and tore down the Apple TV anyway.

A few days later, we got an email from Apple informing us that we violated their terms and conditions—and the offending developer account had been banned. Unfortunately, iFixit’s app was tied to that same account, so Apple pulled the app as well. Their justification was that we had taken “actions that may hinder the performance or intended use of the App Store, B2B Program, or the Program.”

Live and learn.
iFixit notes that it's not too concerned about this. Its Android app still works, and it's been improving its mobile site so you don't really need an app in the first place. And also, iFixit offers open APIs that would allow others to make their own apps that use iFixit data (though whether or not Apple would approve such an app is another question).

But, still, in this age where so much of what we buy is computerized and a complete black box, one of the key points of last week's podcast was the importance of learning what's really inside these boxes. Given that Apple's earliest roots come from Steve Wozniak hacking around devices and building something better, it seems like a real shame that Apple is not only not supporting such activities with its own equipment, but it's actively punishing those who do so.

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Posted on Techdirt - 6 October 2015 @ 8:21am

NSA Screws Up Another Thing: EU Court Of Justice Throws The Internet For A Loop In Ending Safe Harbor

from the well,-now-what? dept

A couple of weeks ago we wrote about the fact that it appeared that the EU Court of Justice was likely to throw out the EU-US data protection safe harbor as invalid, following a case brought over the NSA's snooping on US tech companies -- and now it has happened. The "the EU-US data protection safe harbor" may sound boring, but it's actually been fairly important in making sure that US internet companies can operate in Europe. It's been under attack for some time from those who feel that these American companies don't take European privacy interests seriously enough, but it's really the NSA and its idiotic "collect it all" mentality that has brought the whole structure crashing down. Many will celebrate this, but probably for the wrong reasons. As it stands right now, this result is undoubtedly bad for the internet. What happens next is key. If you want to blame anyone... blame the NSA. And if the US wants to fix this mess, it needs to stop mass surveillance.

The case was brought by Max Schrems, an Austrian privacy activist who argued that the NSA's PRISM surveillance program (a program that resulted from Section 702 of the FISA Amendments Act, and enables the NSA to request certain information from internet companies, once approved by the FISA Court) violates the safe harbor. The safe harbor itself was established back in 2000 in order to allow internet companies to transfer data from Europe back to the US, with a promise that the privacy of that data would be kept at a similar level as if it were in Europe. The process for getting such safe harbor protections is something of a joke (we've gone through it here at Techdirt), and mostly involves throwing money at an organization that takes money to make sure your policies comply with the safe harbor requirements. Like so many regulations, it really seems to only serve to shift money to those who make sure you comply.

Still, losing those safe harbors can really shake up the internet -- and not necessarily in a good way. While I'm sure some (probably short-sighted) privacy advocates will cheer on this result, it's going to make a mess of things for the time being. Europe has been working on a new data protection directive to update the old one (which the safe harbor is based on) and early indications are that it will be a mess, and potentially hazardous to free speech rights. In addition, the US and EU have been trying to negotiate a new data protection safe harbor anyway, and that hasn't been going smoothly, and this will continue to throw a wrench into things.

Big companies will likely be able to negotiate their way around this, but there will likely be some legal flareups in one or two countries, creating a mishmash of jurisdictional confusion over privacy rights. Smaller internet companies will now face much greater threats in doing business in Europe. Even worse, some are going to use this as an opportunity to try to fragment the internet, demanding companies keep data locally within country borders -- which actually will create more targets for mass surveillance, rather than fewer. Chances are that little will change in the immediate future -- as many companies will just keep right on doing what they're doing and hoping no one really cares. But the potential for people to bring lawsuits could shake things up.

In the specific case here, the Court of Justice found that the safe harbor was invalid, and thus it did not stop Irish officials from considering Schrems' complaint that Facebook violated his rights in making data available to the NSA. So that specific case still needs to move forward and should be interesting to watch.

In short, though, this is yet more damage directly done by the NSA and the US's ridiculous attitude towards mass surveillance, without any concern at all to the economic costs that such mass surveillance creates for US companies. As the EFF notes in its response to the news, the US brought this on itself with its idiotic mass surveillance efforts. This end result is a mess that could lead to greater fragmentation of the internet, which won't do anything to better protect people's privacy (and, actually, might make it more exposed). The only logical way forward is to move away from mass surveillance and towards a more comprehensive view of privacy that takes into account the public's rights -- including the right to free expression. Danny O'Brien at EFF sums it up nicely:

That would certainly force the companies to re-think and re-engineer how they manage the vast amount of data they collect. It will not, however, protect their customers from mass surveillance. The geographic siloing of data is of little practical help against mass surveillance if each and every country feels that ordinary customer data is a legitimate target for signals intelligence. If governments continue to permit intelligence agencies to indiscriminately scoop up data, then they will find a way to do that, wherever that data may be kept. Keep your data in Ireland, and GCHQ may well target it, and pass it onto the Americans. Keep your data in your own country, and you'll find the NSA—or other European states, or even your own government— breaking into those systems to extract it.

What will change the equation is for states, including and especially the United States, to realize that dragnet surveillance undermines their national security and the global security of our data. It has economic consequences, as regulators, companies and individuals lose trust in Internet companies and services. It has political consequences as nations vie to keep data out of the hands of other countries, while seeking to keep it trackable by their own intelligence services.

There's only one way forward to end this battle in a way that keeps the Internet open and preserves everyone's privacy. Countries have to make clear that mass surveillance of innocent citizens is a violation of human rights law, whether it is conducted inside their borders or outside, upon foreigners or residents. They have to bring their surveillance programs, foreign and domestic, back under control.
The ruling today is not a win for privacy. It creates a bigger mess, but it's one that needs to be cleaned up at the source, and that's where governments (and not just the US government) are going with mass surveillance. Unfortunately, there doesn't seem to be any indication that this is what's going to happen. Instead, expect the US and EU to try to paper over this by coming up with a new safe harbor plan that won't change anything, but which may just be more expensive for companies. That's a mistake. There's a way to fix this mess and it's to stop mass surveillance.

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Posted on Techdirt - 5 October 2015 @ 12:43pm

The Stagnation Of eBooks Due To Closed Platforms And DRM

from the open-it-all-up dept

Craig Mod has a fascinating article for Aeon, talking about the unfortunate stagnation in digital books. He spent years reading books almost exclusively in ebook form, but has gradually moved back to physical books, and the article is a long and detailed exploration into the limits of ebooks today -- nearly all of which are not due to actual limitations of the medium, but deliberate choices by the platform providers (mainly Amazon, obviously) to create closed, limited, DRM-laden platforms for ebooks.

When new platform innovations come along, the standard progression is that they take the old thing -- whatever it is they're "replacing" -- and create a new version of it in the new media. Early TV was just radio plays where you could see the people, for example. The true innovation starts to show up when people realize that you can do something new with the new media that simply wasn't possible before. But, with ebooks, it seems like we've never really reached that stage. It's just replicated books... and that's it. The innovations on top of that are fairly small. Yes, you can suddenly get any book you want, from just about anywhere and start reading it almost immediately. And, yes, you can take notes that are backed up. Those are nice. But it still just feels like a book moved from paper to digital. It takes almost no advantage of both the ability to expand and change the canvas, or the fact that you're now a part of a world-connected network where information can be shared.

While I don't think (as some have argued) that Amazon has some sort of dangerous "monopoly" on ebooks, Mod is correct that there's been very little pressure on Amazon to continue to innovate and improve the platform. And, he argues (quite reasonably), if Amazon were to open up its platform and let others innovate on top of it, the whole thing could become much more valuable:

It seems as though Amazon has been disincentivised to stake out bold explorations by effectively winning a monopoly (deservedly, in many ways) on the market. And worse still, the digital book ‘stack’ – the collection of technology upon which our digital book ecosystems are built – is mostly closed, keeping external innovators away.

To understand how the closed nature of digital book ecosystems hurts designers and readers, it’s useful to look at how the open nature of print ecosystems stimulates us. ‘Open’ means that publishers and designers are bound to no single option at most steps of the production process. Nobody owns any single piece of a ‘book’. For example, a basic physical book stack might include TextEdit for writing; InDesign for layout; OpenType for fonts; the printers; the paper‑makers; the distribution centres; and, finally, the bookstores that stock and sell the hardcopy books.
And, on top of this, people creating "ebooks" are limited to the options given to them by Amazon and Apple and Google. And then it all gets locked down:
Designers working within this closed ecosystem are, most critically, limited in typographic and layout options. Amazon and Apple are the paper‑makers, the typographers, the printers, the binders and the distributors: if they don’t make a style of paper you like, too bad. The boundaries of digital book design are beholden to their whim.
The fact that all of these platforms rely on DRM -- often at the demands of short-sighted publishers -- only makes the problem worse:
The potential power of digital is that it can take the ponderous and isolated nature of physical things and make them light and movable. Physical things are difficult to copy at scale, while digital things in open environments can replicate effortlessly. Physical is largely immutable, digital can be malleable. Physical is isolated, digital is networked. This is where digital rights management (DRM) – a closed, proprietary layer of many digital reading stacks – hurts books most and undermines almost all that latent value proposition in digital. It artificially imposes the heaviness and isolation of physical books on their digital counterparts, which should be loose, networked objects. DRM constraints over our rights as readers make it feel like we’re renting our digital books, not owning them.
If ebook platforms and technology were more open, it's quite conceivable that we'd be experiencing a different kind of ebook revolution right now. People could be much more creative in taking the best of what books provide and leveraging the best of what a giant, connected digital network provides -- creating wonderful new works of powerful art that go beyond the standard paper book. But we don't have that. We have a few different walled gardens, locked tight, and a weak recreation of the paper book in digital form.

It's difficult to mourn for lost culture that we never actually had, but it's not difficult to recognize that we've probably lost a tremendous amount of culture and creativity by not allowing such things to thrive.

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Posted on Techdirt - 5 October 2015 @ 11:42am

Stanford Professor Insists Consumers Are Helped By Patent Trolls

from the why-does-stanford-hire-these-people dept

Bloomberg has a weird story about Unwired Planet's patent trolling. As we've discussed, Unwired Planet is a company that's gone through many forms over the years, from Phone.com to Openwave and then Unwired Planet. It's true that the company was something of a pioneer in early WAP browsers, but WAP browsers were a joke that never caught on. The mobile internet didn't really catch on until the rise of smartphones and higher bandwidth wireless data connections -- which Unwired Planet had nothing to do with. So like many failed tech companies, it decided to go full on patent troll. A few years ago, we wrote about it buying more than 2,000 patents from Ericsson that it was then using to shake down companies that didn't fail in the same space that Unwired Planet did fail in.

The Bloomberg article is mostly unremarkable, other than calling the company the "inventor" of the mobile internet. That's misleading. It was one hyped up company that helped push a failed vision of a mobile internet, that eventually went nowhere. And now it's patent trolling. But the other bizarre part of the article is that it quotes Stanford professor Stephen Haber as claiming that consumers benefit from patent trolls:

“The losers from a world without patent litigation would, in the end, be consumers,” said Haber. Inventors won’t innovate unless they can ensure they are paid for their invention, he argued.
He may argue that, but he's wrong. Like, really wrong. Actual research shows that the leading reasons for innovating have absolutely nothing to do with patents. Rather, people and companies tend to innovate because (1) they need something themselves or (2) they see a need in the market. And the "ensure they are paid for their invention" makes no sense. If they have an invention people want, then they can sell that product and make money that way. You don't need patents for that. Yes, some others may enter the market as well, but that's called competition, and that's a good thing.

Amazingly, if you look at Stephen Haber's official bio, you'd think he'd know this. After all, it says:
Haber has spent his academic life investigating the political institutions and economic policies that delay innovation and improvements in living standards. Much of that work has focused on how regulatory and supervisory agencies are often used by incumbent firms to stifle competition, thereby curtailing economic opportunities and slowing technological progress.
Regulatory agencies used by incumbent firms to stifle competition is basically the definition of the patent system. Yet, instead, Haber has been spending the last few years preaching the wonders of patent trolling, insisting that lots of litigation is just fine and that there's no evidence that it's harming consumers. That's ridiculous. Tons of studies have shown the massive costs of patent trolling on innovation.

Having a Stanford professor spout such nonsense reflects incredibly poorly on Stanford.

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Posted on Techdirt - 5 October 2015 @ 9:29am

US Intelligence Community's Cavalier Attitude Towards OPM Hack

from the that-old-thing... dept

We've obviously written a few times now about the big OPM hack that was revealed a few months ago, in which it appears that hackers (everyone's blaming China for this) were able to get in and access tons of very, very private records of current and former government employees -- apparently including tons of SF-86 forms. Those forms are required to be filled out for anyone in a national security job in the government, and it basically requires you to 'fess up to anything you've ever done that might, at some point, reflect badly on you. The basic idea behind it is that if you've already admitted to everything, then it makes it much harder for anyone to somehow blackmail you into revealing US national security secrets. But, of course, that also makes those documents pretty damn sensitive. And, by now of course you've heard that the Office of Personnel Management was woefully unprepared to properly protect such sensitive data.

Two recent statements made by top intelligence community leaders again should raise questions about why these guys have been put in charge of "defending" against computer attacks. First up, we have the head of the NSA, Admiral Mike Rogers. Back in August, we noted that Senator Ron Wyden had asked the National Counterintelligence and Security Center (NCSC) if it had even considered the OPM databases "as a counterintelligence vulnerability" prior to these attacks. In short: did the national security community who was in charge of protecting computer systems even realize this was a target. As Marcy Wheeler pointed out last month, Admiral Rogers more or less admitted that the answer was no:

After the intrusion, “as we started more broadly to realize the implications of OPM, to be quite honest, we were starting to work with OPM about how could we apply DOD capability, if that is what you require,” Rogers said at an invitation-only Wilson Center event, referring to his role leading CYBERCOM.

NSA, meanwhile, provided “a significant amount of people and expertise to OPM to try to help them identify what had happened, how it happened and how we should structure the network for the future,” Rogers added.
In other words, the guy who is literally in charge of the "US Cybercommand" organization that is supposed to protect us from computer-based attacks didn't realize until after the hack that this might be a relevant target.

Then, fast forward to last week, where Rogers' boss, Director of National Intelligence James Clapper, testified at a Congressional hearing about the hack. After admitting that CIA employees had to be quickly evacuated from China after the hack, he more or less said that the US shouldn't retaliate, because this was "just espionage" and that the US has basically done the same thing back to them. At least that's the implication of his "wink wink, nod nod" statement to the Senators:
Director of National Intelligence James R. Clapper Jr., testifying before the Senate Armed Services Committee, sought to make a distinction between the OPM hacks and cybertheft of U.S. companies’ secrets to benefit another country’s industry. What happened in OPM case, “as egregious as it was,” Clapper said, was not an attack: “Rather, it would be a form of theft or espionage.”

And, he said, “We, too, practice cyberespionage and . . . we’re not bad at it.” He suggested that the United States would not be wise to seek to punish another country for something its own intelligence services do. “I think it’s a good idea to at least think about the old saw about people who live in glass houses shouldn’t throw rocks.”
Now, he's actually making a totally valid point concerning what the US's response should be. Escalating this issue by hitting back at China isn't going to help anything. Rather, of course, the US government should have done a much better job protecting the information in the first place.

But when you look at these statements together, it shows the somewhat cavalier attitude of the US intelligence community towards actually protecting key US assets. And that's because the US intelligence community is -- as Clapper basically admits -- much more focused on hacking into other countries' systems. For a while now, people have questioned why the NSA should be handling both the offensive and defensive "cybersecurity" programs. The theory has long been that because the NSA is so damn good at the offensive side, it's better positioned to understand the risks and challenges on the defensive side. Yet, given that the NSA's overall mission is so focused on breaking into other systems, it seems that whenever the two conflict, the offensive side wins out and less is done to protect us. The simple fact that the US intelligence community is basically admitting that we do exactly these kinds of attacks on China, yet never considered the same might be done to us, should raise pretty serious questions about why we let the intelligence community handle protecting us against such intrusions in the first place.

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Posted on Techdirt - 5 October 2015 @ 8:20am

After Pulling An All-Nighter, Negotiators Finish TPP; But Don't Expect To See The Text For A While

from the wait-and-wait-and-wait-and-wait dept

After negotiators failed to complete negotiations on the Trans Pacific Partnership (TPP) agreement a few months ago in Maui, there was some concern as to whether or not they'd ever be able to finish the agreement. They called a special negotiating session in Atlanta that began last week, and was supposed to last just a few days to "iron out the details." Except that got extended. And then extended again. And after promises of an announcement last night, they apparently brought in boxes of pizza and told reporters they were going to pull an all nighter to complete the agreement.

Because, of course, when trying to complete an agreement that could reshape global norms on investment, regulations, intellectual property and a little bit of trade... staying up all night sounds like a grand idea.

And just like you after staying up all night before your college finals, negotiators think that this all-nighter worked. This morning they announced a final deal.

But also that it won't be public for maybe a month or so. And then there will be some debate over it, but thanks to Congress caving in on fast track authority, Congress has almost no ability to point out flaws in the agreement. They can only give it a clean yes or no vote. In the announcement, negotiators (not surprisingly) played up all the tariffs that will be wiped out by this agreement. That's the one part that I'm fine with. Trade tariffs are a mostly bad idea, and getting rid of them is fine. But the TPP is not about trade. That's just a pretext.

The key parts are really about regulations and investment. Indeed, two of the big sticking points concerning patent-like exclusive rights on certain new pharmaceutical compounds ("biologics"), where the US was pushing for at least 12-year exclusivity periods to drive up the price of drugs around the globe, while Australia and other countries were pushing for five years. It sounds like there was a compromise that allows for a range from five to eight years, but, again, who the hell knows until we see the details. At the press conference, negotiators refused to give any details, other than suggesting they came up with text that pretends to satisfy everyone. That is, officially it's five years but there are "other regulations" that bring things closer to the US's demanded 12 years. Another point of contention was on the infamous corporate sovereignty provision, officially called "investor state dispute settlement" (ISDS), which is a boring sounding name for saying that foreign companies can take entire countries to special tribunals if they feel that new regulations in those countries negatively impact profits. These tribunals are a joke and put corporate interests over sovereign country interests.

The one real "compromise" here is that the agreement apparently excludes tobacco companies. As we've noted a few times in the past, tobacco companies have used these corporate sovereignty provisions in other trade agreements to sue countries that pass anti-smoking laws of any kind. Last year, the US floated this compromise idea, that if tobacco companies were excluded, the rest of ISDS would remain in place. And it sounds like that's what happened.

Either way, at some point the final text will be revealed and then there will be lots of shouting and screaming, but rest assured that the USTR and the Obama administration are going to fight like crazy to get this approved, because they (very stupidly) see this as part of Obama's "legacy." The compromises may make things a bit more difficult, because the compromises on pharmaceuticals and tobacco will piss off two of the biggest lobbyists in support of the agreement.

From the sound of things, the rest of the intellectual property chapter hasn't changed much since the May version leaked. It's unclear if the USTR ever did push for clearer fair use provisions as was rumored. Chances are they're not in there, but, again, we won't know for a bit, because... "secret trade deal."

And, really, the most sickening part in all of this, beyond the efforts to increase drug prices globally, beyond the efforts to extend copyright terms, beyond the efforts to limit fair use, beyond the efforts to give companies corporate sovereignty over nations... is the ridiculous willingness of the US government to look the other way on human trafficking/slave labor. As you may recall, part of the fast track authority was that this agreement could not include countries designated as human trafficking hot spots. Malaysia, one of the negotiating countries was included in that list. But, no problem, the State Department, for purely political purposes, upgraded Malaysia, even though the country has shown no improvement at all, and just two months earlier police had found 139 mass graves found along a path where migrant workers had been trafficked.

What a "legacy" for President Obama: "compromising" in a way that helps big companies sue countries that pass bad legislation, drive up the price of drugs, decrease access to culture... and look the other way on human trafficking. And now it's a "done" deal.

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Posted on Techdirt - 5 October 2015 @ 6:56am

Paramount Pictures Thinks A Discussion Of GhostVPN Is Really A Pirate Link To The Movie Ghost

from the dmca-all-the-things!! dept

As you may remember, Viacom once sued YouTube for $1 billion dollars over video clips on the site. Right before the case was set to start, Viacom had to scramble and remove some of the alleged infringements from the complaints, because the company realized that Viacom employees had uploaded the clips as part of their marketing campaign. Suing YouTube over clips that you yourself uploaded is not a good look, and it's a big part of the reason why Viacom's arguments fell flat in court. Viacom owns Paramount Pictures, and it would appear that the "level of care" that the company takes in sending DMCA notices has not improved much over the years.

Torrentfreak has the latest round of ridiculously bad DMCA takedown notices coming from a major Hollywood studio. Whereas in the old days, we'd see takedowns occur based on a single word, it appears that here, Paramount has upgraded its auto-censorbot to use two words. Here it appears that anything that is vaguely associated with a movie, plus the word "utorrent" must automatically be wiped from the internet. Take, for example, this conversation on the utorrent forums about how to configure Cyberghost VPN. It's all pretty innocuous, but Paramount Pictures apparently hired one of these fly-by-night censorship outfits by the name of IP-Echelon to take it down, because clearly any use of the word "Ghost" and "utorrent" must be infringing -- even when "ghost" isn't even written out as a separate word.

The Torrentfreak article has a number of similar situations, including one where someone said "imagine that" in a comment, and another where someone used the word "clueless" and Paramount/IP-Echelon insisted they were linking to infringing copies of the movies "Imagine That" and "Clueless." But that's clueless.

And, yes, it's certain that many of the other links in these notices were to actually infringing files. But just because you legitimately take down some links, it doesn't excuse trying to censor perfectly legitimate content.

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Posted on Techdirt - 2 October 2015 @ 7:39pm

Homeland Security Detains Stockton Mayor, Forces Him To Hand Over His Passwords

from the home-of-the-free dept

Anthony Silva, the mayor of Stockton, California, recently went to China for a mayor's conference. On his return to San Francisco airport he was detained by Homeland Security, and then had his two laptops and his mobile phone confiscated. They refused to show him any sort of warrant (of course) and then refused to let him leave until he agreed to hand over his password:

“A few minutes later, DHS agents confiscated all my electronic devices including my personal cell phone. Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property. In addition, they were persistent about requiring my passwords for all devices,” Silva said.

Silva was not allowed to leave the airport until he gave his passwords to the agents, which the mayor’s personal attorney, Mark Reichel, claimed is illegal.

The mayor said the agents told him confiscating property from travelers at the airport was “in fact routine and not unusual,” and promised to return the items within a few days.
To some extent what the DHS told him is true. It's not that unusual, but it's not that common either. But forcing him to turn over the passwords is unusual, and not standard practice. Besides, courts have been growing increasingly less impressed with Homeland Security's willingness to ignore the Constitution at the border.

The feds, of course, refuse to say anything, saying they cannot confirm or deny anything. Silva first claimed that he's "happy to cooperate and comply with these inspection procedures if they are in fact routine and legal," but pretty quickly notes how ridiculous all of this is:
"I think the American people should be extremely concerned about their personal rights and privacy," he said. "As I was being searched at the airport, there was a Latino couple to my left, and an Asian couple to my right also being aggressively searched. I briefly had to remind myself that this was not North Korea or Nazi Germany. This is the land of the Free."
So they keep telling us.

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Posted on Techdirt - 2 October 2015 @ 6:22pm

Pokemon Wants To Totally Bankrupt One Of Its Biggest Fans, Thanks To Copyright

from the how-nice-of-them dept

Back at the end of August, we wrote about a ridiculous situation in which the Pokemon Company decided to sue two fans in Seattle who had set up a Pokemon-themed party leading into the big PAX conference. As soon as the threats came down, these guys shut down the party entirely, but the Pokemon Company would not be stopped in its determination to totally bankrupt and destroy such a big fan who was out there promoting Pokemon and Pokemon culture. The company, represented by big copyright maximalist law firm Davis Wright Tremaine, went forward with the ridiculous lawsuit anyway. While they dismissed one guy from the lawsuit, the other, Ramar Larking Jones, didn't hire a lawyer, saying he had no money for it.

End result is that the Pokemon Company is demanding $4,000 from Jones by November or they say they'll make things even worse. Some of the reporting on this suggests that Jones has lost the case already, but that's not true. Basically, a lawyer from Davis Wright Tremaine (who should question how he sleeps at night), Stuart Dunwoody, is bullying Jones, who says he's just a broke fan of Pokemon. Dunwoody told Jones that Pokemon is willing to "settle" the case for $5,400 and sent him a "final judgment and permanent injunction" for Jones to review. This is not from the judge. This is from Dunwoody, who will submit it to the judge and hope the judge just signs off on it. And, of course, if he gets Jones to agree to this "settlement", that's what the judge will do. Apparently Dunwoody has agreed to accept a $4,000 settlement, but only if the amount is paid by mid-November. Jones has been asking if he can spread it out over a year, noting that he's basically broke and works in a cafe.

Jones, for his part, still doesn't appear to have a lawyer (note: this is a mistake), and has set up a GoFundMe page, trying to raise the $4,000 to pay off Davis Wright Tremaine and Dunwoody (who probably bills more than $4,000 per day for doing this kind of shakedown).

Yes, you can argue that perhaps Jones should not have thrown a "Pokemon-themed" party or used Pokemon characters on the poster, but, really? Does anyone honestly think there is any legitimate harm done here to the Pokemon Company? Especially compared to the reputation it will get for bankrupting someone who appears to be one of its biggest fans (or was). This whole thing is shameful, and the Pokemon Company, Davis Wright Tremaine and Stuart Dunwoody should feel bad about this. They're bankrupting one of Pokemon's biggest fans who was trying to share his love for Pokemon. How does that help anyone, other than Dunwoody's billing hours?

As Jones writes on his GoFundMe: "Trust me I will never throw another fandom party again." Congrats, Stuart Dunwoody. Another fan disillusioned. You must be so proud.

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Posted on Techdirt - 2 October 2015 @ 1:50pm

Patent Loving East Texas Judge Clips Wings Of Largest Patent Troll

from the go-away-now dept

Earlier this year, we noted that patent trolls had struck back, filing a ton of new cases this year. The leading patent troll was a firm called eDekka:

Like many patent trolls, not much is known about eDekka, but it's represented by Austin Hansley, who just happens to represent all three of the top patent troll lawsuit filers in that graphic above: eDekka, Data Carriers and Wetro Lan (you may recall Wetro Lan, for using an expired bogus patent on a basic firewall to troll lots of companies -- and also for its name (say it out loud)). eDekka, though, topped the list with a ton of lawsuits over US Patent 6,266,674, for "random access information retrieval utilizing user-defined labels."

However, in a surprise move, Judge Rodney Gilstrap, in the Eastern District of Texas, has just tossed out 168 lawsuits filed by eDekka, after noting that the '674 patent is not valid under Section 101 of the Patent Act. As recent Supreme Court rulings have made clear, you can't just take a standard thing that people have done for ages, and "do it on a computer" to get a patent. And that's the key problem that Judge Gilstrap notes in his ruling:
As summarized above, the claimed idea represents routine tasks that could be performed by a human. While the generic requirement of a “data structure” is included, Claim 1 essentially describes the common process of receiving, labeling, and storing information, while Claim 3 encompasses retrieving such information.
And thus, the patent covers nothing more than an "abstract idea," which are not patentable under Section 101.

But... that's not all. In this one single order, Judge Gilstrap says that everyone else who has been sued under this patent shall be considered prevailing parties in their lawsuits and then issued a separate order allowing all of the defendants sued by eDekka to jointly file a brief asking for attorneys' fees:
The Court ORDERS Defendants to file a consolidated brief of not to exceed fifteen (15) pages in support of any and all claims for reasonable attorney fees...
As Joe Mullin notes in his story on this (linked above), this is especially surprising from Judge Gilstrap:
Just the invite is a sign of changing times: in his four years on the bench, Gilstrap has never granted attorneys' fees to a defendant.
Indeed, as we've pointed out just recently, Judge Gilstrap had become something of a patent troll favorite down in East Texas. Perhaps that's changing...

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Posted on Techdirt - 2 October 2015 @ 12:50pm

Malibu Media Copyright Troll Wakes The Beast In Trying To Push Verizon Around

from the not-a-good-idea dept

While we have our issues with Verizon in other areas, the giant telco does have a strong history of protecting its users against crazy copyright trolling and other forms of attacks. Verizon led the way in fighting back against the RIAA when it started demanding Verizon hand over information on tons of customers before any lawsuits were filed. Verizon won. Without this big victory, the copyright trolling situation today would be much, much worse. Verizon has also been known to be on the side of good when the RIAA and MPAA push for extreme changes to copyright laws as well. So it's no surprise that it's now entering a key case in the US's biggest copyright troll, Malibu Media.

In a case before Judge Katherine Forrest in the Southern District of NY, things have not been going that well for Malibu Media. And, this may be surprising to some, given prior to becoming a judge, Forrest was one of the RIAA's lawyers in copyright lawsuits over online infringement. Yes, really.

As per usual, the FightCopyrightTrolls site has been doing a great job keeping tabs on this case, which started getting attention a month ago when the lawyers representing the (still anonymous) John Doe defendant called Judge Forrest's attention to Malibu Media's latest nasty shakedown trick. Earlier in the case, Malibu Media was granted discovery of the Doe's computers and couldn't find any evidence of the Malibu Media/Xart material. But rather than drop the case, Malibu Media's legal team did the standard trick of subtly threatening to embarrass/harass the Doe if he didn't pay up, by putting him through a litany of irrelevant questions designed to find out other people who know the Doe who Malibu Media might go after:

During the deposition, Malibu’s counsel propounded a morass of irrelevant questions concerning, inter alia, Doe’s educational background (including factual and technical details about the courses Doe studied), the identity and location of Doe’s family members, the identity and location of Doe’s employers years before the relevant period herein (including factual and technical details about Doe’s job roles and responsibilities), the location of Doe’s residences years before the relevant period herein, the existence of Doe’s resume/CV, identity and location of persons in Doe’s personal and social life. Indeed, Doe answered questions about two decades’ worth of his life. This line of questioning lasted for more than 2.5 hours. Doe’s testimony in response to these questions is not relevant or material to Malibu’s single cause of action for direct copyright infringement or any of Doe’s defenses.


Dissatisfied with the lack of evidence of infringement and existence of testimony denying same, Malibu’s counsel falsely accused Doe of destroying evidence and reiterated her intention to depose Doe’s significant other (wrongly identified by Malibu as Doe’s wife). In person, at the deposition, the undersigned reiterated Doe’s objection to producing Doe’s significant other and indicated that no evidence exists as to infringement by Doe, such that testimony from any other person concerning same has no probative value and would be pursued only for purposes of harassment. Malibu’s counsel reiterated Malibu’s intention to depose Doe’s significant other and potentially other parties.

[....] While Doe is cognizant of Malibu’s ostensible desire to conduct thorough discovery, it has become apparent that, in the absence of any evidence of infringement on Doe’s part, Malibu is conducting a fishing expedition and campaign of harassment by threatening to depose nonparty witnesses on irrelevant topics and to continue to depose Doe on same. In so doing, Malibu is attempting to prevent ultimate resolution in this matter by creating the false sense that evidence of infringement or wrongdoing exists.
Judge Forrest quickly sided with the Doe and against Malibu Media:
Protective order granted. Plaintiff may not subpoena neighbors or Defendant’s significant other based on the current record. As to the neighbors, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation).

The issue in this is [sic] case is did this defendant download Plaintiff’s works — not anyone living in the apartments nearby.

As to Defendant’s significant other, the Court has read the transcript of the deposition. The testimony is that any use of this woman was on Defendant’s computer. There is no evidence that the computer has or had any of Plaintiff’s copyrighted works that I can see — thus, whether the girlfriend used the computer is irrelevant.
Malibu Media is not happy about this. It is both continuing to push the issue by arguing that the Doe should be "sanctioned" for "perjury" because its "computer forensic examiner has discovered that Defendant used military grade computer wiping software to delete material evidence from his hard drive" and it has asked to subpoena Verizon to try to continue its fishing expedition.

And, yes, now we've finally gotten to Verizon which appears to be fairly pissed off about Malibu Media and has made it clear that Malibu Media's subpoena attempt is not just "defective" but flat out ridiculous.
Here, Plaintiff has not demonstrated “good cause” for extending the discovery cut-off. Its subpoena suffers from multiple defects. It was served on the eve of the discovery cut-off without affording Verizon any meaningful opportunity to investigate the alleged facts. The subpoena was issued from this district but served in Texas and purports to command the appearance of Verizon’s representatives—who reside in or near Arlington, Virginia—to testify on six days’ notice in Texas, i.e., outside the 100-mile radius for commanding testimony of a witness.... And, the subpoena seeks information far beyond that contemplated by the Cable Communications Policy Act (“Cable Act”) as discoverable from an ISP — i.e., more than the name and address of the subscriber associated with an IP address, which Verizon already provided in response to an earlier subpoena in this action. Verizon objected in writing to the current subpoena within six days of service, yet Plaintiff has made no real attempt to address those objections.

At bottom, Malibu Media’s subpoenas impose a significant, cumulative burden on Verizon, while “us[ing] the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and to coerce payment from them.” K-Beech, Inc. v. Does, 2011 U.S. ...; see also Northwestern Mem’l Hosp. v. Ashcroft,... (rejecting argument that a subpoena causes no undue burden merely because “the administrative hardship of compliance would be modest,” but considering instead “the rash of suits around the country” and the publicity generated). Given the defects in the subpoena and other problems addressed herein, Verizon respectfully submits that Plaintiff’s request for relief should be rejected.
Many people have wondered why Malibu Media/Xart have not yet faced the same sort of crackdown as Team Prenda, and it seems likely that it's only a matter of time, and the right case -- with the right judge. Getting a big ISP involved in a case seems like the kind of thing that could finally tip the scales -- as it did in one of the key Prenda cases as well.

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Posted on Techdirt - 2 October 2015 @ 10:34am

David Cameron & The Pig: Revenge Porn & The Right To Be Forgotten

from the a-whole-hog-of-a-mess dept

We've written a lot about two efforts to suppress certain kinds of content online through legal regimes: revenge porn and the right to be forgotten. In both cases (especially revenge porn), it's quite reasonable to be sympathetic to the person whose embarrassing information is just out there for anyone to see. But we're always concerned at the possibility that these new regulations or legal regimes could be misused to simply suppress information that people don't like, without any legitimate basis. We've seen a number of cases recently where we wonder about how newsworthy items could meet the definitions required to be silenced under both of these legal regimes. Whether or not anyone is actually seeking to suppress that information now, it still should lead to some concerns about cases where it could happen.

Enter UK Prime Minister David Cameron and his apparent, rumored-by-a-single source, naked late night rendezvous with the head of a dead pig.

As you may have heard, last week some details from a new book by Michael Ashcroft and Isabel Oakeshott about Cameron came out -- and the details that got everyone talking involved the possibility of this rather, um, odd encounter with a pig. It was described this way:

The biography also makes claims about the prime minister’s time at university, saying an MP had seen photographic evidence that Cameron put a “private part of his anatomy” into a dead pig’s head as part of a dining club initiation ritual.
This has resulted in all sorts of chatter, speculation, laughter and an outright denial from Cameron. Plenty of people made the slightly eerie connection to the (excellent) television series Black Mirror, whose very first (and probably most well-known) episode involves the UK Prime Minister being forced to fuck a pig on live TV. Of course, that was to save a member of the royal family who had been kidnapped, rather than some sort of weird initiation ceremony.

While David Cameron has claimed he's "too busy" to sue Lord Ashcroft over the book, there are also reports that he was quite busy prior to the book's release trying to "sabotage the book" and somehow block it.

Which leads to the question of whether or not he'd even have the ability to block such content. As we've discussed in the past, the UK has this thing known as a super injunction that has regularly been used to block any reporting on issues that might embarrass the rich and famous. Given just how frequently it's been used, it's almost surprising that it wasn't used in this case.

However, what about these more recent concepts of anti-revenge porn laws and the right to be forgotten? On the revenge porn angle, there is alleged to be a photograph of the "pig" ritual. In Lord Aschcroft's book, it's described this way. After noting that "a distinguished Oxford contemporary" told them of this event a few times, despite the two co-authors assuming it was a joke, eventually the guy gave more details, including information about who supposedly had the photographic evidence:
Some months later, he repeated it a third time, providing a little more detail. The pig’s head, he claimed, had been resting on the lap of a Piers Gaveston society member while Cameron performed the act.

The MP also gave us the dimensions of the alleged photograph, and provided the name of the individual who he claims has it in his keeping.

The owner, however, has failed to respond to our approaches. Perhaps it is a case of mistaken identity. Yet it is an elaborate story for an otherwise credible figure to invent.
For what it's worth, it is not difficult to find sites of questionable credibility claiming to possibly have the photograph in question. Under the legal definition in some "revenge porn" laws, it's quite possible that anyone passing around this photo online could be breaking such a law. As we noted with pictures of Lenny Kravitz's wardrobe malfunction, some of it is up for debate, but there's a reasonable case to be made that such a photo could be considered "revenge porn."

Obviously, this is happening in the UK, rather than the US, but just take a look at California's revenge porn law:
Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
You could see how the person who has the original photograph might very well be guilty of that. And while some may (reasonably) argue that revealing or passing around such a photo is distasteful, should it really be against the law? It certainly appears to be a newsworthy topic according to many -- so should it be illegal?

This is, again, why we're so concerned about revenge porn laws. We readily admit that revenge porn (even if it involves the Prime Minister of the UK and a pig) is distasteful to engage in, but it still seems weird that passing on relevant evidence of something so newsworthy might, itself, be considered a crime.

And then there's the "right to be forgotten." In the original ruling at the EU's Court of Justice, it focused on saying that search engines should be forced to delete links to information that is considered "inadequate, irrelevant or excessive in relation to the purposes of the processing." One could, perhaps, make the argument that details of the Prime Minister of the UK engaged in a sexual act/hazing ritual with the severed head of a pig might possibly meet all those requirements. The ruling does include an exception for "the role played by the data subject in public life" in which case it might be decided "that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question." So, perhaps one would argue that, given Cameron's public role, the interest in the public knowing about his pig romanticizing university hazing activities would eliminate the RTBF in this case. Or at least one would hope so.

But the problem in both these cases is that it's not out of the question that courts might find one or either of the above attacks on free speech to apply here. And you can reasonably argue that what David Cameron did or did not do with a pig back at Oxford as a student isn't really all that important, and the somewhat giddy fascination by many in the press and the public is a depressing sign of our discourse these days -- but it still worries me when we start passing laws that suggest that such things might not even be allowed to be discussed publicly at all. Cameron seems to have, wisely, decided that his best course of action is to just deny the story and hope it blows over (as it likely will). However, we've spent years chronicling people who show no such restraint when embarrassing information comes out about themselves -- and it's important to watch carefully how these new legal regimes might be abused to silence legitimate reporting and free expression.

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Posted on Techdirt - 2 October 2015 @ 6:21am

Jim Jefferies 'Official' Clip Of His 'Gun Control' Routine Taken Down Thanks To Copyright

from the well-that's-great dept

As you may have heard, yesterday there was another mass shooting in the US. I know the topic of mass shootings and gun control and all that raise all sorts of emotions and opinions on all sides of the issue, but this is not the place to discuss them. I'm posting this for a reason that actually does fit into Techdirt's discussion area, and I hope that the conversation stays more closely aligned to the topic of copyright. What's copyright got to do with all of this? Well, after reading some of the news about what happened, I went in search of comedian Jim Jeffries' routine about guns. I'm a big fan of Jeffries, who is damn funny, and I recalled seeing that he did a great routine about guns and gun control in the past. And it seemed timely. So I did a search... and discovered that the video had been taken down. At first, I figured that it must be because someone ripped it and therefore, okay, I can understand it being taken down. But, no, this is the "official" clip uploaded by Jeffries himself. And apparently Netflix did the takedown (probably via ContentID, rather than a DMCA notice):

Yes. It is entirely possible, perhaps even likely, that Jeffries has a deal with Netflix that grants Netflix the exclusive rights to this clip. And I'm sure that some of you feel that this is perfectly reasonable, because Jeffries entered into an agreement with Netflix and this is the tradeoff. But something feels wrong about an artist having his own work being taken off his own YouTube account -- never mind the fact that the content might be relevant and timely right now. And it's not like seeing one relatively short clip of a much longer performance somehow hurt Netflix in anyway. If anything, it would seem to encourage people to go to Netflix to watch the whole thing. So here's a chance for Netflix to get some possibly-viral attention, and yet, it's not happening, because copyright law.

To me, that seems like a broken system.

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Posted on Techdirt - 2 October 2015 @ 3:18am

T-Mobile Customer Data Leaked By Experian... And Faulty Encryption Implementation

from the well,-isn't-that-grand dept

This week's big data leak comes from mobile phone provider T-Mobile, who has admitted that someone hacked into credit giant Experian and got a bunch of T-Mobile customer data. The good news? The personal data was encrypted. The bad news? Experian fucked up the encryption and so it doesn't matter:

We have been notified by Experian, a vendor that processes our credit applications, that they have experienced a data breach. The investigation is ongoing, but what we know right now is that the hacker acquired the records of approximately 15 million people, including new applicants requiring a credit check for service or device financing from September 1, 2013 through September 16, 2015. These records include information such as name, address and birthdate as well as encrypted fields with Social Security number and ID number (such as driver’s license or passport number), and additional information used in T-Mobile’s own credit assessment. Experian has determined that this encryption may have been compromised. We are working with Experian to take protective steps for all of these consumers as quickly as possible.
I happen to be a T-Mobile customer, and I look forward to the usual bullshit response of a year's worth of credit monitoring and promises that this will never happen again. You know, until it does.

As I've said before, I do worry about holding companies totally responsible for when they get hacked, because a determined adversary will hack into any company they want to eventually. That's just the nature of the game. But when the company appears to be totally incompetent to the point of being negligent, it seems reasonable to hold them responsible. I'm sure in the coming days we'll find out more details about how the "encryption was compromised" (and we'll also probably learn that it impacts many more people than originally claimed). But these new data breaches every week or so are starting to get ridiculous.

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