I've also been watching this draw out and I expressed concern over Axanar's dubious claims that what they were doing constitutes fair use.
It's like if someone decided to use the "fan film/fair use" argument to produce a professional Star Wars film, or a James Bond film. Fair use is actually limited to what you're able to do:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work
I don't care what kind of moronic reason some idiot comes up with, fan art, fan fiction, fan films have never been considered "fair use". The reason most rights holders don't press it is because they don't consider them a serious threat.
Then, along comes Axanar Productions. What they did went far beyond what fair use allows. They solicited donations/funds from users online and posted in their online solicitation that backers would be able to download a digital copy of the film. Fair use doesn't allow someone to profit from copyrighted intellectual property rights. Make no mistake about it, Axanar Productions is profiting off this movie.
It's no different than torrent websites which distribute audio, video and printed content that is owned by those who created that content.
Axanar isn't making a review of a Paramount or CBS "Star Trek" production, they are making a professional movies while infringing on CBS and Paramount's copyrights.
Case in point, fair use can be claimed if you're making a parody film, or producing a review on a copyrighted property. Since Star Trek: Axanar isn't a parody nor a review, Axanar doesn't have a leg to stand on.
despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.
AC, defense attorneys do this more frequently than you realize. If it turns out to be more detrimental in releasing that information to the public, defense attorneys won't release it. Engaging in behavior as indicated by that comment by the defense attorney is not a violation of the bar association.
Additionally, if the information mentioned in a trial is deemed to be too sensitive, attorneys either for the defense, plaintiff or for the prosecution move to close the proceedings and to seal the court record, which makes it immune to FOIA requests as well.
I expected this kind of decision simply because the courts aren't going to allow law enforcement to violate the spirit of "due process". This is the cornerstone of our law, where it concerns charging suspects with crimes and the courts are mostly reluctant when "due process" is violated on an egregious level as was done in this case.
The FBI may be able to keep its N.I.T. hacking tool secret but if it expects to have the evidence they collect to be admitted into a criminal trial, then it needs to disclose those tools and how they operate to defense attorneys who are representing these suspects.
The judge gave the FBI a choice: either (1) disclose the N.I.T. to the defense attorneys (allowing them to investigate how the N.I.T. is used) or (2) keep the N.I.T. secret and lose the evidence collected with it.
Thanks for posting this, Mike. When I came across it last night, and submitted it this morning, I thought it was an interesting twist. The FBI never once stopped to realize how they would compel Apple's software engineers to write the code and what they would do if the engineers refused, which is exactly what looks like will happen.
If the Supreme Court rules against Apple, the FBI wins. BUT, it could prove a hollow victory if Apple's own software engineers revolt and decide to quit Apple and refuse to write the code.
The original New York Times article is a very fascinating read. Try as hard as they like, the FBI is fighting one company but it looks like Apple's own staff are going to quit rather than make the software more insecure.
I must be missing something because government isn't allowed to destroy any documents considering that every memo, document, file, email or whatever is supposed to be saved. It doesn't matter how any laws were written. Now that this is in the open, expect these officials in San Francisco to come under fire for destroying government documents. I respect that the Department of Justice is going to get involved in this one
If the government wants to save face, their best move is to withdraw their court challenge and to drop their request. This has turned into one of the worst screwups in the history of this country, rating just before the McCarthy Hearings and the Watergate scandal.
What shocks me is that the government doesn't label journalists as 'terrorists'. What happens is that when someone doesn't support what they are doing, you are called a troublemaker, a conspiracy nut or something worse. This country hasn't been attacked by terrorists since September 11th, no matter how many times they try to label 'killers' as terrorists.
Don't you just love how the government tries to call anyone a terrorist when they go out and kill people? Last I checked, before September 11th, they were called mass murderers or serial killers. Just another example of the government using "terrorism" as the "all-in-one" boogeyman.
When the government tries to shame or embarrass someone, it almost always backfires. This is no different. But, I love the White House response to this considering how Obama didn't want to push the fight with Apple or consider any law that would punish tech companies.
We live in a world where law enforcement spies on everybody. This is a bad thing because history always proves that when you give government too much power, it always corrupts.
It reminds me of something that John Emerich Edward Dalberg Acton once said, "Absolute power corrupts absolutely". Government simply cannot be trusted with our privacy or our security when it comes to the technology that every American has.
If the FBI succeeds in this, it would open the floodgates of every citizen across the face of this planet to being hacked by every computer hacker across the country.
During the 2008 presidential campaign, we all heard Democrats spouting the fact that Republicans were spouting "doomsday scenarios" to scare the public into accepting changes in the constitution and drafting new laws that erode our constitutional rights.
Now, Democrats are doing the same damn thing, using this generation's "boogeyman 'terrorists' in an effort to force the people to side with them. I said it before that this would blow up in the government's face and before the case has even had a hearing before the U.S. Supreme Court, this is exactly what has happened.
Just wait until the Supreme Court hears the case, and if they decide to find in favor of the FBI, that Pandora's Box is going to blow up in their pretty little faces.
"Test case" my ass. The FBI thought that if they waved the "terrorist" banner in front of everyone's face that everyone would follow in single file that obedient little sheep dogs. In the wake of police officers, the TSA and many other government agencies violating our rights on a daily basis, there was no way that anyone would support the government in this.
Or the crime was committed within his jurisdiction. Most jurisdictions (at least in the US) have policies and procedures on allowing an outside jurisdiction to execute an arrest within for such circumstances.
AC is an idiot. First, Tim Cook is only the CEO. The sheriff wouldn't be able to arrest him. Second, The sheriff would have to prove that Tim Cook committed a crime within his jurisdiction. Since I seriously doubt Tim Cook has been to Florida when a crime was committed requiring the unlock of an iPhone, this argument falls flat.
There's not a court in this country who would extradict a CEO of a tech company to the state of Florida simply for refusing to install a backdoor or unlock an iPhone.
Finally, when it all comes down to it, Tim Cook would never be extradicted until it makes its way through the federal courts.
AC is also an idiot because it's obvious he believes that we don't have "due process" in this country. Everyone is entitled to appeal any order handed down by any court.
Sheriff Grady Judd is ignorant of the law. First, this idiot sheriff couldn't arrest jack shit unless that company, business or entity is within his jurisdiction. Second, it's not the sheriff but rather the district attorney who would need to petition the courts in California and obtain an extradiction warrant. Even if this sheriff were able to convince the district attorney within his jurisdiction, there isn't a federal court in California that would grant such a request simply because Apple refused to unlock an iPhone.
Believe it or not, Apple is allowed to appeal any order issued by any court. It's hilarious that law enforcement seems to think that the appellate courts don't exist.
Due process must be a real bitch to law enforcement.
What the hell is going on with congress? Even if, by some miracle, they manage to pass such a bill and even if Obama happens to to sign it into law, there's no way the U.S. Supreme Court would allow the law to stand as it would be deemed unconstitutional.
The way I see it, it's beyond the government's authority to force any person, entity, company or business to engage in behavior or conduct that would be contrary to their interests. Indentured servitude doesn't exist in this country and this is exactly what congress and the government is trying to do.
Not only are they trying to force Apple into indentured servitude by forcing them to build something that they currently do not have but then they are also trying to pass laws forcing business entities to build backdoors into all of their products.
This isn't what congress was designed for. Good grief! It feels like were back in the 1950's again, where neighbors were spying on neighbors and reporting them to the police. This smacks of communism and that isn't what this country stands for.
I've been using ad blocking software for years but only because of the unethical motives of advertising companies who use autoplay video ads, full page pop-ups that try to bypass ad-blockers and other unscrupulous advertising methods that have proven to be a major inconvenience.
Until advertising businesses stop using these methods, I'll continue to employ ad blockers and support them. I just have no interest to continue to add websites to a white-list and I just employ a "block all ads" just because it's easier.
Just where the hell does Crazy Mike Masnick come up with these bizarre ideas? What I'm referring to is his comments in the article:
Did you happen to overhear someone planning a crime, but you can no longer remember what the person looked like? You've violated their due process rights.
That is a very bizarre comment for Mike to throw out there. Just because you can't remember what someone looks like, it doesn't violate their due process rights. Matter of fact, it helps the person who committed the crime because you are no longer a qualified witness against him at trial.
While the "brief" is bizarre, Mike Masnick's comments are even more bizarre. This isn't disrespect, but it's apparent that Mr. Masnick didn't take the time to think his comment through or he was very tired when he wrote the article above. I was rolling my eyes at the ceiling when I read that because it made absolutely no sense.
I think if you ask any attorney, they will tell you that law enforcement and prosecutors need a legal basis on which to get any type of warrant, whether that's an arrest warrant, a search warrant or whatever.
Prosecutors saying that "there might be" evidence is NOT a legal justification, that's just a biased opinion coming from the prosecutor and they aren't allowed to go on fishing expeditions just because they think there might be evidence.
What happens if Apple is forced to unlock the device and there is no evidence? That opens up to the filing of lawsuits against the police department and the prosecutor.
Courts do not grant warrants based on guesswork. If they did start doing this, it would open up every case to being appealed in the federal courts and cost local jurisdictions millions of tax dollars in wasted court proceedings.
Somebody needs to remind the San Bernardino district attorney that courts do not allow law enforcement or prosecutors to go on "fishing expeditions" based o0n nothing more than a wild theory. The above statement the prosecutor made:
The seized IPhone may contain evidence
Courts have said in the past that prosecutors and law enforcement need a valid reason to search anything that a suspect might own. Prosecutors and law enforcement need legal justification to search something that a suspect possesses or possessed. Telling the court that they "might be evidence" is not a legal justification for a search, which is why courts routinely toss out evidence when it has been obtained illegally and without due process.
Recently, the Supreme Court ruled in Rodriguez v. United States that police officers who detained a driver and then extended the vehicle stop by calling for a K9 unit where the police found methamphetamine in the car amounted to nothing more than an illegal search.
With Apple, even though the iPhone is owned by the government (the state of California), neither law enforcement nor the government can force any company, corporation, business or private citizen to engage in behavior solely for the benefit of the government.
It's simply ridiculous how little this prosecutor knows ab out the law, which he is supposed to be quite familiar with.
For instance, just say that I have produced an album and Tidal wanted to license my music for their streaming service. Even if they have HFA (as a managing agent) for licensing my music for them, it's not HFA that is liable for paying royalties to either me or my production company, Tidal is wholly responsible for ensuring that royalty checks are paid.
If Tidal sent royalty checks to HFA, then why didn't they follow through with HFA as to why Yesh Music wasn't paid royalties on the music that Tidal licensed?
Many here are forgetting one very important fact, that Tidal didn't follow through with HFA the minute they received the lawsuit. Tidal has serious liability here and the question that hasn't been answered is "why Yesh Music wasn't paid" and "why the royalty rates were miscalculated".
First, if it's discovered that Tidal miscalculated royalty rates on the streamed music, then they have liability with respect to the licensed music. Second, Tidal didn't paid Yesh Music royalty checks for the music they produced. HFA didn't pay royalty checks to Yesh Music for the music they produced. Thing is, HFA has no liability in regards to Yesh Music. Tidal has full liability. If Tidal's agreement with HFA resulted in royalty checks not being paid out to Yesh Music, they it's Tidal that has liability to Yesh Music and that HFA needs to answer to Tidal as to what happened to those royalty checks.
Tidal is simply in a losing position. What it boils down to is that Yesh Music wasn't paid and that who has liability. HFA has liability to Tidal and Tidal has liability to Yesh Music.