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Posted on Techdirt Podcast - 18 September 2018 @ 1:30pm

Techdirt Podcast Episode 183: No Easy Answers For Content Moderation

from the aint-so-simple dept

We've done it — we've solved the challenge of content moderation! (Checks notes). No, wait, sorry: we haven't. But what we have done is invited Kate Klonick, law professor and author of the excellent paper The New Governors: The People, Rules, and Processes Governing Online Speech, to join us for an in-depth discussion about how we got here and why there are no easy or simple answers for content moderation.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 16 September 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the writin'-words dept

This week, both of our top comments on the insightful side come from our post about Apple deleting purchased movies from people's devices after losing the rights. In first place, it's Gwiz responding to the idea that people should known they are only licensing digital content, not buying it:

Then why does the button say "Buy" and not "Rent"?

As far as I'm concerned, when the terms of sale indicate that I am "purchasing" a digital copy, then that is exactly what I am doing. I will take "my copy" and do with it as I please, which includes removing any DRM and making backup copies.

This is exactly what I do periodically with my Kindle and the wife's Kindle. I save un-DRMed copies of everything to my laptop with Calibre.

In second place, it's Thad responding to the assertion that copyright law is more to blame than Apple:

But Apple implemented a system that allows purchases to become unavailable when the work is no longer for sale. That is on Apple.

There are other digital distributors that do not operate under those same terms.

To pick one example: Rifftrax no longer sells the two 1960s Doctor Who movies that used to be available on the site; it lost the rights to them. However, if you purchased them when they were available, then you can still stream or download them.

To pick another example: The Square Enix game Last Remnant was recently removed from Steam; it's no longer for sale. But if you bought it when it was for sale, you can still download and play it. If you bought a Steam code from a third-party seller, you can still redeem that code.

Rifftrax is located in the US. Valve is located in the US. Both companies are subject to exactly the same copyright laws that Apple is. And yet, they don't take away their customers' purchases when those items are removed from their stores.

There's plenty to criticize about US copyright law.

But this? This is Apple's fault. Not solely Apple's fault, but Apple's certainly not blameless.

For editor's choice on the insightful side, we'll carry on the trend with two more comments from that post. First, it's Bergman with another rejection of the "it's just a license" idea:

If it was a rental, the price shouldn't be the same as a purchase. If it was a purchase, then Apple owes a refund since they charged for a purchase, not a rental.

And what if the customer(s) just licensed their money to Apple?

Next, it's Get off my cyber-lawn! painting an even broader picture of the ridiculousness of how digital goods often work:

I went onto a large, popular e-book website last month and looked up a book I wanted to purchase (still popular, still in print). I got an "out of stock" response for a freaking E-BOOK!

Its bad enough that you want to charge me as much OR MORE money than for a print copy, but then you tell me you are fresh out of 1s and 0s for that particular item?

And THAT is what contributes to a "pirate" culture.

Over on the funny side, our first place winner is TheResidentSkeptic with an attempt to sort out government demands of social media companies:

At least the rules are getting clearer...

1) If you block posting of any user content, we will fine you.
2) if you fail to remove objectionable content within 1 hour we will fine you.
3) if you remove or otherwise censor any content, we will fine you.
4) If you don't block objectionable content from being posted, we will fine you.

or, to put it simply, "Send us all your money"

In second place, it's That One Guy expanding on the proposal that the SDCC's trademark war over the term "Con" could present some promotional opportunities:

Several opportunities in fact, given SDCC convinced a judge that shortening 'convention' to 'con' belongs only to them. Really, legal thuggery paired with trying to monopolize a word with multiple connotations, one of them not so pleasant? The jokes practically write themselves.

'When you think 'con', think SDCC.'

'SDCC: For when you want a first-class con.'

'Why settle for a lesser con where they might not know what they're doing when you can let the SDCC show you how a con-job really works.'

For editor's choice on the funny side, we start out with Stephen T. Stone, who has a question about Valve's latest foggy explanation of who it will ban from Steam:

Defining what separates a good faith effort to sell a game from a "troll" involves a "deep assessment" of the developer, Valve says, including a look at "what they've done in the past, their behavior on Steam as a developer, as a customer, their banking information, developers they associate with, and more."

So when do they ban games published by EA?

And last but not least, we've got an anonymous commenter catching another commenter out on an amusing typo about, er, rampant piracy:

Wonton piracy is only practical if you can get the goods fresh. Nobody wants stale wontons.

That's all for this week, folks!

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Posted on Techdirt - 15 September 2018 @ 12:00pm

Congress Shall Make No Law. Techdirt Shall Make T-Shirts.

from the emojiment dept

Get your First Emojiment gear on Teespring »

This week, we launched our latest line of Techdirt Gear in our Teespring store. It uses Twitter's free Twemoji icon set, licensed under CC-BY 4.0, to bring you an emoji-fied version of the First Amendment to the US Constitution. Some people might just see random symbols, but others will see some very important words. Indeed, it serves as a litmus test for how well people know their civil rights! The First Emojiment is available on t-shirts, hoodies, mugs and stickers — get yours today!

And for the true pro, we also recently launched our Free Speech Pro-Tip gear to help correct a particularly pernicious myth about the First Amendment:

Free Speech Pro-Tip, By Techdirt

Get your Free Speech Pro-Tip gear on Teespring »

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Posted on Free Speech - 12 September 2018 @ 9:00am

The First Emojiment: New T-Shirts & More By Techdirt

from the make-no-law dept

Get your First Emojiment gear on Teespring »

You know the words — or at least you should! Introducing the latest line of t-shirts, hoodies, mugs and stickers from Techdirt: our emoji-fied version of the First Amendment to the US Constitution, available now on Teespring. The design is based on the Twemoji icon set, licensed under CC-BY 4.0.

Also, be sure to check out our recently-released Free Speech Pro-Tip gear and all the other great designs in our Teespring store.

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Posted on Techdirt - 11 September 2018 @ 1:30pm

Techdirt Podcast Episode 182: Anonymity In The Media & Online

from the someone-said dept

Anonymity is back in the news in a big way, especially since the New York Times published an explosive opinion piece by an anonymous White House official. Here at Techdirt — proudly one of the few blogs that still allows completely anonymous comments with no sign-up — we've talked about anonymity for a long time in the context of the internet. On this week's episode, Mike and regular co-hosts Dennis Yang and Hersh Reddy talk about the benefits, challenges, and overall importance of anonymous speech.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 9 September 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the speak-up dept

This week, our first place winner on the insightful side is E. Zachary Knight, responding to our post about Google moderating our post about content moderation with his own experience:

Yeah, Google Ads' automated moderation tools are garbage. Just a few months ago, they blocked all ads on my site because according to them we were committing copyright infringement. I tried appealing but was denied instantly every single time. I tried removing a few embedded Youtube videos, one of which was copyright claimed by Warner Bros, but that was not the issue. Finally, after no help at all from Google on this, I found out that they considered me linking directly to the mp3 of my own podcast was what they considered copyright infringement. The only way to fix the issue was to remove all links to, again, my own podcast.

In second place, we've got Michael with a response to the latest social media regulatory mess in Germany:

Facebook, Google, and Twitter are actually loving this.

They can afford to navigate this mess. Nobody else can. Germany has handed them a massive gift - no startups can complete. Sure, Germany may eventually make it impossible, but until that happens, it has really just made it impossible for anyone else.

For editor's choice on the insightful side, we start out with a comment from Lebron Paul 2020 about the Louisiana police using a hoax antifa list, taking special note of where the list proliferated:

Uum, question...

"The hoax was promoted on Neo-Nazi websites like Stormfront"

Soooo... how'd these cops come across this document? Asking for a friend

Next, it's Stephen T. Stone with some thoughts on Nintendo's war on ROM sites:

Did crushing Napster help the RIAA push the genie of illicit MP3 filesharing back in the bottle? How about the MPAA putting “watermarks” on DVD screeners? Denuvo has a few stories to tell you about its DRM, and I believe they all end with, “And then it was cracked, too.” Nintendo could literally sue every ROM site out of existence *right now* and it could still not prevent the sharing of ROMs.

So long as the Internet exists, people will find a way to share files that corporations have a much harder time stopping. So long as human nature is what it is, filesharing will be a hydra: Cut off one head and two more shall take its place. Nintendo can kill ROM sites; it cannot kill both human nature and technological protocols. If your personal dogma tells you otherwise, you might want to reëxamine those beliefs.

Over on the funny side, our first place winner is Capt ICE Enforcer responding to the ninth circuit declining to review the monkey selfie case:

Oh no, now the monkeys have no reason to take pictures. Why, Oh Why!

In second place, it's John Roddy wondering about the insane attorneys fees award in the Comic Con trademark dust-up:

Sooooo, if I embrace the power of puns and start referring to this case as a literal "comic CON", can they sue me for trademark infringement as well?

For editor's choice on the funny side, we start out with a response from the sarcastically-named I Agree! to the assertion that Germany's social media regulation problems are indicative of all regulation of everything, everywhere:

Exactly. Take for the example, the regulations (i.e. laws) against killing people. They started off as a well meaning attempt to protect the innocent, but now I can't even go and kill the people that obviously need killing. Bah!

And finally, we've got one more anonymous thought about the ironic AdSense moderation of our post about the impossibility of good moderation:

Rule number 1 of content moderation

Don't talk about content moderation

That's all for this week, folks!

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Posted on Techdirt - 8 September 2018 @ 12:00pm

This Week In Techdirt History: September 2nd - 8th

from the depths-of-time dept

Five Years Ago

This week in 2013, the NSA revelations continued with the discovery that the US was launching hundreds of cyberattacks and that AT&T had employees embedded in the government to provide real-time phone call searches. The various excuses and half-measures were coming frequently, with a former agency boss saying surveillance is important but the NSA should just lie less, President Obama saying the NSA needs more checks and balances while simultaneously claiming the existing ones are working well, and the agency itself asserting that it only spies on bad people while leaving open a giant loophole that covers spying on everyone else.

Ten Years Ago

This week in 2008, there were two huge launches from Google: they introduced the Chrome browser, and the Android Market for apps (which they touted heavily as being more open than Apple's App Store. AT&T was bragging about the pursuit of patents while US Customs was raiding trade show booths over patent infringement. Facebook was, rather heavyhandedly, blocking all links to the very useful resource of BugMeNot. And we were starting to see how the proliferation of GPS-enabled devices was becoming a tool of the police.

Fifteen Years Ago

There was a big launch this week in 2003 as well, with the folks behind Kazaa (who had also recently made the ill-advised choice to send DMCA notices to Google) launched the soon-to-be-nearly-ubiquitous Skype. It was also the very early days of the RSS protocol, and our post questioning whether it was a bit overhyped somehow got us lumped in with the supposed "RSS backlash". Meanwhile, the RIAA was preparing to upgrade its legal campaign from subpoenas to actual lawsuits, while also offering a hilarious amnesty program for anyone who would sign a file sharing confession and delete all their songs.

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Posted on Techdirt Podcast - 4 September 2018 @ 1:30pm

Techdirt Podcast Episode 181: There's Always Something New To Learn About Copyright

from the continuing-education dept

Copyright is a big, complicated monster of a law, composed of patchwork updates and shaped by international agreements — which is, in fact, the source of a lot of its problems. But fixing copyright means understanding it, so this week we've got a conversation with UCLA professor Neil Netanel, author of the new book Copyright: What Everyone Needs To Know, because there's always something new to learn about copyright.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 2 September 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the wall-scrawls dept

This week, the cops managed to spur both our top comments on the insightful side with two different stories. First up, it's That One Guy responding to a commenter who accused Tim Cushing of hypocrisy by comparing an earlier call to not serve cops at restaurants with a new post about an ill-fated plan for amateur cops:

If some cops try to take Tim's words to heart and strive to improve themselves, and some restaurant owners take his words to heart and refuse to serve cops, how the hell are things supposed to get any better?

From the comment section of that article, by the person who wrote it:

The couple of incidents doesn't seriously mean cops shouldn't be allowed to eat in restaurants. This little exercise in exaggeration is meant to demonstrate that officers of the law are not inherently honest and decent people, even if there are many among them that are. There's no reason to give their word more credence than the average citizen's.

As he noted the point wasn't to demonize all cops and call them all liars, it was to point out that they do not deserve the automatic assumption of honesty that some people give them because they lie just like anyone else, something putting on a badge does not magically make go away.

As for the question, slowly and with a lot of hard work. Reputations are funny things, hard to build up, easy to destroy, but they can be built back up.

Making it very clear that the majority do not support what the 'few bad apples' do such that fellow law enforcement are the first to call them out and demand that they be held accountable for their actions would go a long way to improving their relationship with the public.

When a cop screws up they need to own it, even if it costs them. Whey they deliberately abuse their authority and/or power they need to be held responsible for that, and those around them with badges should be the first in line demanding accountability and punishments for those abuses, holding fellow officers(or law enforcement in general if you'r talking about judges and DA's) to a higher standard rather than a lower one.

The article just yesterday serves as a great example of how not to improve police/public relations. It should not take a court to tell multiple officers that an invitation to one cop to rest their feet is an invitation for several of them to spend three hours searching a house. It should not require a state supreme court to tell officers(and state prosecutors) that constitutional rights are more than just speed-bumps, a minor inconvenience that can be ignored on a whim.

There are other ways that the relationship between police and the public could begin to be improved, but a lot of it's on those with badges, and far too many seem entirely indifferent to improving or doing anything about the rot within their ranks. Until that changes things will continue to get worse.

In second place, it's Anonymous Anonymous Coward looking at the story of cops who lost the use of evidence acquired during a medical emergency that they treated as a warrantless search opportunity, and noting that there's more blame to go around:

The police are not the only culprits

"Arielle Turner was indicted by a grand jury for the death of her infant."

"Over at the hospital, an examination did not turn up any signs of abuse or foul play. Investigators believed the infant's death to be accidental."

We all know that, if they want to, any DA could indict a ham sandwich (so to speak). But those two quotes above seem directly contradictory. If the investigators found the death accidental, they where the hell the the indictment come from.

It is not just the police officer who performed the search that committed misdeeds. The DA who got the indictment from the grand jury must have told some super duper whoppers.

For editor's choice on the insightful side, we start out with a comment from hij about the AT&T-linked group sending out ridiculous "your rates will go up" messages to oppose net neutrality:

The joke is on them, the rates were going to increase regardless.

Next, it's an anonymous commenter on the emerging trend of suing internet platforms for bias:

Well, it is better for the ego to claim that you are being censored, that to accept that you views are unpopular.

Over on the funny side, our first place winner is Gary with a response to Mike's post about the telco lobby talking points that were accidentally (presumably) sent to him:

Am I the only one here that sees this as actual proof that Mike is really shilling for the Telcos? He is even part of their inner circle!

In second place, it's Ninja relating an apropos experience he just had while commenting on our post about how AI is not a silver bullet for content moderation:

Aaaaaand, ironically my comment filled with all those words got held for moderation. Laughing like a maniac here lmao

For editor's choice on the funny side, first we remain on that post where an anonymous commenter called us up on our phrasing:

The word "bullet" has been flagged as inappropriate; our AI engine suggests "Silver Suppository" as an alternative.

And finally, it's Thad with a mirror comment to the earlier editor's choice about platform bias. That was the insightful version, this is the funny one:

"If somebody doesn't take Pajamas Media as seriously as The New York Times, obviously there's only one explanation: liberal bias!"

That's all for this week, folks!

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Posted on Techdirt - 1 September 2018 @ 12:00pm

This Week In Techdirt History: August 26th - September 1st

from the on-the-record dept

Five Years Ago

This week in 2013, we learned that the NSA had tapped the UN and various embassies and cracked the UN's video conferencing encryption. We also got a look at the agency's "black budget" and realized how much effort they were putting into breaking encryption. The DOJ began making the "just metadata" argument, while we looked at how well Ed Snowden covered his tracks and wondered how many intentional surveillance abuses were hidden the same way, not to mention how many of the 1000 other sysadmins with the same access copied documents too. Meanwhile, the UK's Deputy Prime Minister was defending the destruction of Guardian hard drives but not the detention of David Miranda, the latter of which was also condemned by the author of the UK anti-terrorism act. Barry Eisler argued that both incidents were all about creating a chilling effect on journalism, and later in the week we learned that the UK government asked the NY Times to delete the Snowden documents too (they didn't listen).

Ten Years Ago

This week in 2008, people were scrutinizing the true nature of Disney's Mickey Mouse copyrights, AMC was stupidly freaking out over the new trend of fans creating Twitter accounts for fictional TV show characters, and in an early version of the Ubers and Lyfts to come, we saw a bus company in Canada try to shut down a carpool-matching service. Meanwhile, Mattel sadly followed in Hasbro's footsteps and brought the war on Scrabble-clone apps to the rest of the world where it owns the rights to the game, and the Tetris Company started getting in on the same anti-app action. The RIAA won a copyright case because the defendant had foolishly destroyed evidence, while a different and excellent court ruling found that Veoh was protected by safe harbors for videos uploaded by users. But the FBI still had nothing better to do than arrest the leaker of a Guns N' Roses album.

Fifteen Years Ago

Lots of innovations were still in their nascent stages this week in 2003, with everyone struggling to figure out what exactly to do with location-based tech, US wireless carriers doing a not-so-great job of supporting and promoting camera phones, a growing number of consumer electronics starting to come with broadband connectivity (as more and more computer makers started becoming general consumer electronics companies), and of course the beginning of the ascent of the famous/infamous (depending on who you ask) autotune technology. Meanwhile, porn websites were getting in on the file sharing subpoena game while the RIAA (which also got sued by webcasters for monopoly actions) was firing back at a woman who was fighting just such a subpoena.

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Posted on Techdirt Podcast - 28 August 2018 @ 1:30pm

Techdirt Podcast Episode 180: Do Short-Term Profits Hurt Long-Term Innovation?

from the near-and-far dept

Is the way companies are currently structured and operated conducive to long-term innovation? It's a tough question, but there are plenty of reasons to consider that short-term profit incentives might be getting in the way of better overall innovation strategies — and lots of possibilities for how we might rethink companies to change this. This week, the regular crew of Mike, Hersh and Dennis discuss how this problem could be addressed, and whether there's truly a problem at all.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 26 August 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the said-and-done dept

This week, our top comment on the insightful side comes in response to the latest story of a prison phone company recording privileged conversations and passing them o law enforcement. That One Guy was having none of their "technical error" excuse:

See this, I can actually buy. Tech can screw up in any number of ways, so it's entirely feasible that an update would cause that sort of malfunction, and had they actually wanted to stop listening in, that should have been the end of it.

One quick phone call or email informing the company that the last update now has the service operating in violation of state law, a hurried patch, and a purge of any calls accidentally collected in the meanwhile and this would have been a non-story, nothing worth pointing out other than perhaps a sheriff's department getting it right and acting honorably and legally.

That however, is not what happened.

You don't excuse three years worth of illegally collected calls by dumping it on a 'technical glitch'. They knew damn well what they were doing wasn't legal, and they didn't care so long as it allowed them to listen in to calls they had no business hearing.

The original 'technical glitch' was a mistake. Letting it stand for three years without bothering to try to get it fixed was absolutely not, and all those involved need the hammer brought down on them hard for such blatant indifference to violation of the law.

In second place, we've got John Roddy in response to the assertion that online platforms should be treated as the public square when "a rational committee of thought leaders and policy experts" says so:

That already happened. It was Congress when they debated whether or not to accept the proposed amendment to the Communications Decency Act that ultimately became section 230. And barely even a year later, the freaking SUPREME COURT upheld Section 230, despite striking down everything next to it.

For editor's choice on the insightful side, since he absolutely dominated the top ten leaderboard this week, we've got two more comments from That One Guy. First up, it's a little retrospection following Paul Hansmeier's guilty plea:

Ah sweet guilt-free schadenfreude...

With all the bad news coming from various courts these days it's nice to see someone who does have it coming finding themselves in the legal cross-hairs for a well deserved hammering.

Looking over the details things look mighty unpleasant for good old Paul, with page 10 mentioning a possible eleven to fourteen years of prison(though the government apparently won't ask for more than 150 months/12.5 years), and page 11 talking about making restitution for the entire scam they ran, not just what they've been convicted of, which is going to drain that bank account just a titch.

And that is the plea deal, the look on his face when he realized he wasn't going to be able to talk his way out of this and had to agree to a plea deal to avoid things getting even worse must have been priceless.

The whole thing took entirely too long but better late then never, and always nice to start the week with a story for all to enjoy.

Next, it's a comment from a conversation on that post after the subject of piracy as theft was raised:

The funny thing is I strongly suspect that if it came down to it a good number of the 'copyright infringement is theft!' crowd would not be happy if it was legally treated as theft, for two main reasons.

First, the standards of how the accusations differ are significant, and were infringement to use the theft standard mere accusation would not be enough, you'd have to demonstrate that you've in fact lost something.

Second, the fines would be vastly lower, mere pocket change in comparison. No more hundred or thousand dollar fines for a single song, instead even $100 would be in the upper range, with most fines being in the lower double-digits.

This in turn would impact the 'losses' certain groups like to trumpet about, cutting them to a fraction of their current amounts. No longer would a handful of songs cause tens of thousands in 'damages', rather you'd be looking at a few hundred at most, and trying to justify why you need even more laws passed in your favor with numbers like that would be a titch more difficult.

Over on the funny side, our first place comment is a bit of highly contextual satire, following a conversation in which Mike was accused of believing that "piracy is okay because you're ripping off evil corporations", and quoted this accusation in his reply along with a request to be shown where he'd ever said that. Michael was quick on the uptake:

You just did in that post - while at the same time copying someone else's post. Now we have all seen it.

You are a crazy, inhuman, copy-loving machine.

Plus, you are a Google shill and I think you dislike cats.

In second place, we've got response from Nathan F to the judge who threatened to police a newspaper's content day by day, line by line — which is a careful-what-you-wish-for situation:

The Sun should email Judge Scherer an advanced copy of the paper every night asking her to do her line edits and censoring before they send it to press.

For editor's choice on the funny side, we start with a response from Thad to the bizarre suggestion that you can find out the truth about media bias by asking anyone who works for Jeff Bezos:

I asked my Amazon Restaurants delivery guy. He said he didn't know what I was talking about and to please let him get back to work.

Finally, we've got Mononymous Tim raising the stakes on a classic trademark test in response to Heaven Hill Distillery's lawsuit against Bob Dylan's whiskey brand:

Not even a drunk moron in a hurry.

That's all for this week, folks!

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Posted on Techdirt - 25 August 2018 @ 12:00pm

This Week In Techdirt History: August 19th - 25th

from the special-focus dept

Five Years Ago

Once in a while, when evens really heat up in a given week, we skip the five/ten/fifteen-year retrospective and focus in on the big events — and this is one of those times, with the NSA spying debacle elevating to another level this week in 2013.

Firstly, hings heated up on the other side of the Atlantic, with the UK government detaining David Miranda and seizing all his electronics and telling him he'd go to jail if he didn't turn over his passwords in a blatant act of intimidation. While the UK Home office claimed the detention was fully justified, a US official told Reuters that it was done to send a message. That admission was buried in a report about another disturbing action by the UK: forcing The Guardian to destroy hard drives with info from Snowden — an order that came directly from the Prime Minister. On top of all that, a new and questionable revelation in The Independent prompted Edward Snowden to accuse the UK government of leaking additional documents itself to make him look bad.

Back in the US, we were getting a closer look at the loopholes that allowed the NSA to withhold information from Congress, and a glimpse of the agency culture that encouraged deception. Defenders threw up their hands and claimed "we didn't mean it", and got some help from the guy who wrote legal memos defending the CIA torture program. Then the agency revealed that it performs a staggering 20-million database queries per month. It seemed that if some of these more serious leaks had come out a bit earlier, a bill to defund the NSA may have stood more of a chance, while a new bill was introduced to make the agency pay for every abuse of power.

And then things continued to escalate. A new leak showed that the NSA truly could spy on almost anything and set its own filters. The EFF's success in getting a key FISA court ruling declassified revealed that the NSA repeatedly lied to the court, too. Documents showed that a program continued for three years after it was declared unconstitutional, right after tech companies (who the NSA was paying for their help) got immunity in warrantless wiretapping cases. And during the 2002 Olympics, the NSA and FBI spied on every single email in Salt Lake City.

Meanwhile, the US still couldn't even figure out what exactly Snowden took, but it could put together a surveillance review board packed with Washington insiders and NSA sympathizers. By the end of the week, the agency was fumbling to accuse the Wall Street Journal of misleading the public, but then finally (buried on a Friday night in the hopes of avoiding coverage) admitted that yes, there had been a lot of intentional abuses of the system (in contrast to the many denials of this idea).

And the circus wasn't over yet — tune in next week...

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Posted on Techdirt Podcast - 22 August 2018 @ 1:30pm

Techdirt Podcast Episode 179: Emoji & The Law

from the :-) dept

Have you ever thought about the legal issues surrounding emoji? Don't worry, most people haven't. But they are myriad and interesting, with roots nearly two decades ago following the emergence of emoticons — and two people who definitely have thought a lot about it are Eric Goldman and Gabriella Ziccarelli, who join us on this week's episode to talk about the various intersections of emoji and the law.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Techdirt - 19 August 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the he-says-she-says dept

This week, our first place winner on the insightful side is Mason Wheeler with a response to Nintendo's takedown of major ROM sites and one professor's comments about the importance of libraries and archives:

This is exactly right, and it reaches well beyond games; it's a massive problem throughout the software industry. Because we have a copyright regime that incentivizes closed-source software distribution, we end up with essentially the only medium in all of the creative arts or engineering disciplines where the development techniques of a masterpiece cannot be studied because they can't be known.

Instead of Foddy's university libraries, imagine a world in which the only literature students who could study and learn from the techniques of Hemingway's work were those who went to Hemingway University or went on to get a job at HemingCorp, which would have his work available but lacked access to Mark Twain, Jules Verne and Victor Hugo. This sounds absurd, but it's exactly the state of software development today, and a big part of the reason why we have so many quality problems in computer programs.

Contrast this with actual literature, where the ability to read and analyze the words that went into a book is inherent in the medium. I'll always remember something I heard bestselling author Brandon Sanderson say after someone compared his work favorably to that of Robert Jordan: "the only reason you're saying that is because I had an unfair advantage. I was able to start out my writing having read and learned from the work of Robert Jordan, and he wasn't."

In second place, we've got an anonymous response to a commenter who criticized the often-used "Copyright Duration and the Mickey Mouse Curve" graph on the basis that "correlation is not causation":

Correlation is not causation.

Causation, though, is causation.

Since 1990, The Walt Disney Company had lobbied for copyright extension.[12][13] The legislation delayed the entry into the public domain of the earliest Mickey Mouse movies, leading detractors to the nickname "The Mickey Mouse Protection Act".[4]

For editor's choice on the insightful side, we start out with a comment from Ninja about the oh-so-baffling popularity of Kodi boxes:

Maybe if we had good, reliable services that offered content without fragmentation, with ease of access, no bullshit windows and that could be used offline in conjunction with such apps if the user wanted? I mean, why do they like to leave money on the table that much?

Next, it's a response from James Burkhardt to a comparison between our defense of Section 230 and the DMCA to telcos' comments about local loop unbundling:

I would argue that you miss the detail on this situation. Namely, when discussing the burden of Local loop unbundling, telecos use broad language that is short on detail, always highlighting the 'burden', but never explaining what that burden is. Never explaining the scenario in which the presence of this rule makes difficult or impossible moves that are beneficial to consumers. Because there aren't any. Even in a world of competition, I have been unable to find anyone who supports repealing local loop unbundling who can articulate the 'burden' it places on incumbents.

Contrast this with the support SEC 230, where Techdirt has repeatedly noted how it A) prevents a disincentive to moderation, allowing sites to moderate without fear that moderation will create liability (something that happened prior to SEC 230) and B) puts the focus for illegal or Tortuous conduct on the entities responsible, which can include the website, but often does not. Support for SEC 230 comes out of articulable concerns about the internet post repeal.

A better contrast comes in the DMCA and calls for its repeal, as we now discuss arguments for repeal on both ends. And again, we see clear, detailed, articulable concerns about how the DMCA is harming both consumers and creators. The abuses we have seen in the take down provisions combines with a lack of legal remedy for those abuses created by poor drafting and bad jurisprudence. The way the anti-circumvention provision has been used to prevent repair, security research, and circumvent the right of first sale. I can point to specific events if you want to hear it, but the point stands that we can point to not just theoretical harm, but real world harms that have occured. And while yes, the repeal of the DMCA might have negative effects for some content creators, Techdirt has, in my memory, generally called for an overhaul of the system, not tearing it down. Notice and notice, rather than notice and take down. Reinforcing fair use and allowing fair use to bypass technical protection measures. Establishing real legal repercussions for the abuse of the law.

You might think that looking at the effects on consumers and creators rather than copyright holders is 'obfusication'. Or a focus on cost-benefit concerns in enforcement efforts is just 'spaghetti logic'. But here in the real world, those type of concerns are major legal and business concerns, respectively, and should be considered when discussing these topics.

Over on the funny side, our first place winner is an anonymous take on this week's popular story about an 11-year-old hacking election website replicas at DEF CON:

Voting machine company: "This was a useless test of the machine's vulnerabilities. Eleven-year-olds can't vote. So your machines are safe from them getting into and changing any records."

In second place, it's Michael dutifully offering up a now-standard joke that comes around when we criticize Google:

Another attempt for Mike Masnick, Google shill, to highlight how great Google is.

When are you going to get out of their pocket and start talking about the things they do wrong?

For editor's choice on the funny side, we start out with another comment about the DEF CON election hacking, with That One Guy homing in on a software company's complaint that the exercise violates their licensing agreements:

I mean, that's certainly a valid argument, everyone knows that the sort of people who would hack a voting machine would absolutely be the sorts that would stop in a moment the second they realized that doing so would violate the licensing agreement regarding the software.

They're criminals trying to undermine if not shift an election, something with potentially huge repercussions, but that doesn't mean they'd be rude enough to ignore a license, and as such simulated hacking that does so isn't really an accurate scenario, and can be completely dismissed as non-representative of reality.

And finally we head to our post about a police department deciding it can search someone's house because a suspected drug dealer once parked in the driveway. Toom1275 mocked this conclusion with a slightly truncated version of a great Carl Sagan monologue:

"Observation: I can't see a thing on the surface of Venus

Conclusion: Dinosaurs." - Carl Sagan

That's all for this week, folks!

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Posted on Techdirt - 18 August 2018 @ 12:00pm

This Week In Techdirt History: Augusts 12th - 18th

from the so-that's-what-happened dept

Five Years Ago

This week in 2013, the White House incredibly put James Clapper in charge of independent NSA review, then tried to change its tune a bit when people rightly pointed out that this was insane. Meanwhile, Rep. Justin Amash discovered that the House Intelligence Committee had withheld important NSA documents from the rest of Congress, and that the White House knew it. Then, the latest leak revealed that the NSA abused the rules to spy on Americans thousands of times every year — since there was no real oversight, the FISC court just relied on the NSA's own statements to determine what was legal, and agents were told to withhold information from those in charge of oversight. Senators Wyden and Udall hinted that this was just the tip of the iceberg, while NSA defenders claimed the abuses were evidence of the system working well and that the numbers were impressive compared to the amount of spying the NSA does.

Ten Years Ago

This week in 2008, Italy tried and failed to block all access to The Pirate Bay, with the predictable result of a spike in Italian traffic to the site. Universities were realizing that the RIAA was taking advantage of them in its crusade against file-sharing students, while one teenager targeted in a lawsuit managed to get damages reduced with an "innocent infringement" defense. Nintendo was freaking out about memory cards for the Nintendo DS, while Tiffany was continuing its futile efforts to hold eBay accountable for counterfeit products by appealing a court ruling that said they weren't (and this same week, a Belgian court was ruling the same thing).

Fifteen Years Ago

This week in 2003, eBay was only just starting to become the ecommerce platform of choice with folks setting up entire businesses on the site. ISPs were the ones fighting back against the RIAA, along with one accused file-sharer who was hitting the agency with a countersuit arguing that sharing does not equal distribution. There were early rumblings of "personalization" as the future of search engines, and the fairly new technology of MMS picture messages was being put to use for networked security cameras and medical emergencies. And nearly seven years before the iPad, there were lots of tablet computers hitting the market, but nobody wanted them.

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Posted on Techdirt Podcast - 14 August 2018 @ 1:49pm

Techdirt Podcast Episode 178: Old Tweets & Your Permanent Record

from the dangerous-history dept

There has long been anxiety around the "permanent record" of the internet, and recent public shamings based on old tweets have brought that fear to the forefront for many people. But the mass deletion of old tweets also means throwing out huge amounts of potentially valuable information. Is there a technological solution? A cultural one? This week, we're joined by returning guests Cathy Gellis and Parker Higgins to discuss a proposal for fixing the problem without sacrificing the permanent record.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

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Posted on Free Speech - 14 August 2018 @ 10:43am

Free Speech Pro-Tip: You Can Yell Fire In A Crowded Theatre

from the new-gear-from-techdirt dept

Free Speech Pro-Tip, By Techdirt

New gear from Techdirt, now available on Teespring »

No discussion about free speech gets very far without someone busting out the idea that "you can't yell fire in a crowded theatre". It's a phrase that's irritated actual free speech experts for years: it adds nothing to the discussion, and it's not even true — there are plenty of times when you can (not the least of which being if the theatre is actually on fire!) Moreover, the phrase itself is a relic of an old, awful, and overturned Supreme Court ruling that put someone in jail for criticizing the mandatory military draft in the First World War. The inimitable Ken White dug into the phrase's uselessness and horrible legacy in a 2012 Popehat post and, more recently, an episode of the Make No Law podcast.

And now you can help fight back against this dangerous idea with new gear from Techdirt! The Free Speech Pro-Tip is available on t-shirts, hoodies, mugs and stickers from Teespring.

Order yours today, and be sure to check out our storefront for other great Techdirt gear!

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Posted on Techdirt - 12 August 2018 @ 12:00pm

Funniest/Most Insightful Comments Of The Week At Techdirt

from the so-they-say dept

This week, both our top comments on the insightful side come from our post about the MPAA's latest attack on free speech under the guise of saving it. In first place, it's a simple anonymous point made in response to a critic:

I'd just like to point out that Section 230 doesn't prevent anyone from defending themselves from defamation. It just keeps the focus on the actual speakers, instead of the platforms they use.

In second place, it's Stephen T. Stone boiling down the real lesson about struggling Hollywood companies:

To twist an old axiom: If a business model can be destroyed by the Internet, it deserves to be destroyed by the Internet.

For editor's choice on the insightful side, we've got two more comments on that topic in response to other posts this week about the evidence that innovation and legal alternatives are the best way to reduce piracy. Firstly, though this really shouldn't still be necessary, it's an anonymous commenter responding to the ol' comparison to shoplifting and theft:

The supermarket analogy is only barely applicable, because you can't simply instantly and with minimal cost replicate a head of cabbage.

It also fails on the comparison of shop-lifting to piracy, in terms of the logistics of it and realities of it.

Shop-lifting, as a physical action, also denies the ability of a different consumer from purchasing the item that was shop-lifted. The downloading of a copied song does not have this effect.

Shop-lifting, as a physical action, can be caught and stopped by enforcement with a very, very, very low degree of false positive, and for those cases with a false positive, there is an immediate and costless method of redress for the accused (show the receipt, be let go). Preventing shop-lifting has a cost footprint in and of itself ... and even with enforcement, the big players actually account for projected loss of revenue to theft in their annual planning. Even with enforcement, the physical action of shop-lifting is accepted as something that cannot be 100% stamped out, and the amount of enforcement and the focus on enforcement gets balanced against the cost-effectiveness of it, and whether or not it will drive people away.

From the perspective of person hoping to profit off their creative work, there would be no reason not to view piracy through a similar lens - what is the most cost-effective method to reduce it? If enforcement is proven to not be cost-effective, and to potentially actually hurt your bottom line, why would you want to continue with it?

Why not instead pursue tactics that will bring in money rather than drive it away?

Next, it's an anonymous caveat to the idea that pirating a work always means you value it:

That's not necessarily true. At most I'd say it could be an admission that your work might have value, but I wouldn't know that until I've seen/read it. I might be willing to pay a modest fee to trial the work if what I knew of it was sufficiently interesting, but then if it was utter crap I would be less upset at the loss of money and possibly willing to view a future work from you. However, if I paid full price for crap, good luck ever getting any money from me ever again.

Over on the funny side, our first place winner is a response from Capt ICE Enforcer to our post about Alex Jones, platforms, and free speech — which, admittedly, did have a lot of preamble:

Gosh. Even the TLDR was TL.

In second place, we've got a response to our post about the cops who lost their qualified immunity over their handling of a Trump rally:

Just an "isolated incident" involving a "few bad apples"

Nothing to see here, people, move along, move along.

And no one had better mention feeling less safe at the sight of a cop, either. That is the /real/ crime, not trusting the police to keep you safe.

Not a mob of 250 cops sending innocent people into another violent mob, to meet whatever fate had in store for them there. That's ok, because #Bluelivesmatter (more than yours), and #Backtheblue, as well, because if you don't, fine, upstanding police might not be protected enough by all the special protections they have.

Playgrounds and suburbs are already a war zone, the police remind us, although where the craters and mangled corpses in jumbled wreckage are, I have no idea.

Back the Blue; it's good for them, and okay for you.

For editor's choice on the funny side, we've got a groaner and a cheap shot. Let's start with the former — Pixelation summing up our post on the problems with West Virginia's cellphone voting initiative:

So what you're saying is...

they're making a bad call?

And now, the cheap shot — from Thad in response to the suggestion that, in order to understand the difference between profit and artistic quality, one should "just look at Batman v. Superman":

I most certainly will not.

That's all for this week, folks!

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Posted on Techdirt - 11 August 2018 @ 12:00pm

This Week In Techdirt History: August 5th - 11th

from the rear-view dept

Five Years Ago

This week in 2013, we learned that lots of government agencies were trying to access that sweet, sweet NSA data — and that the DEA was not only getting it, but being instructed to cover up where it came from. Some data even made it to the IRS, with the same instructions. Once all this was revealed, the DOJ decided it should perhaps be "reviewed", which was small comfort. Then, it was revealed that the NSA scans all emails in and out of the country, and we got a look at the loophole the NSA uses to claim authority to spy on Americans. It turned out this loophole was created on the same day that the FISA court smacked down the NSA for violating the fourth amendment — a ruling people were eager to see, and the DOJ agreed to release a redacted version.

Ten Years Ago

This week in 2008, copyright expert William Patry shut down his excellent blog because covering copyright issues had become "too depressing". To see what he means, look at other events that very same week: the Jammie Thomas trial was turning into a huge mess, Blizzard was trying to block a bot-maker from open-sourcing his code, a fight between TorrentSpy and the MPAA was turning into a major privacy battle thanks to some email spying, and Uri Geller was suing someone for debunking his psychic claims using an eight-second copyrighted clip. Mac clone-maker Psystar, facing a major lawsuit from Apple, was fighting back with an antitrust claim, and a Sony executive was apparently so aware of the failings of legal offerings that he encouraged customers in Australia and New Zealand to pirate PSP games.

Fifteen Years Ago

This week in 2003, people were beginning to dig deeper into just how spammers make money and discovering it doesn't require a lot of customer sales as long as you can keep selling lists of spam targets — and because of this chain of list sales, even well-known companies were profiting from spam. Of course, there also were at least some people buying penis enlargement pills, too. Meanwhile, both Red Hat and IBM were fighting back against SCO's IP lawsuits, while the RIAA was still fighting hard to get info on filesharing students and generally warring with the EFF. And in an example of how much free culture terrifies some people, when Creative Commons reached out to MP3.com about partnering to give artists the option of using CC licenses, the company angrily responded by not just declining but demanding CC "cease and desist" from contacting any artists on MP3.com.

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