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

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

from the comcastic dept

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

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

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

The rebranded Looking Glass Cyber Solutions has told Fight for the Future that "Comcastroturf" violates Comcast's "valuable intellectual property rights" and that failure to take down the site may lead to further legal action around cybersquatting and trademark violations.

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

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

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

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

from the no-more-bulls dept

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

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

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

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

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

Theresa May Plans To Regulate, Tax And Censor The Internet

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yeah, we got that from all the nonsense above.

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

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

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

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

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

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

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

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

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

from the not-cool dept

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

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

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

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

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

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

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

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

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

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

from the oh-come-on dept

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

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

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

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

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

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

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

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

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

from the stay-tuned dept

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

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

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

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

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

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

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

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

from the wait,-what? dept

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

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

Offensive or inappropriate content on BBC websites

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

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

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

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

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

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

from the get-a-little-perspective dept

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

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

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

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

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

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

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

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

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

Microsoft Is PISSED OFF At The NSA Over WannaCry Attack

from the as-it-should-be dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leaked NSA Hacking Tool On Global Ransomware Rampage

from the who-trusts-the-nsa? dept

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

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

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

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

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

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

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

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

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

Now Canceled Crowdfunding Project Sent DMCA Notice Following Skeptical Review

from the you're-not-helping dept

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

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

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

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

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

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

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

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

from the reflect-away dept

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

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

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

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

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

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

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

MySpace Tries To Play Dead To Avoid Lawsuits

from the hide-and-seek dept

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

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

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

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

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

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

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

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

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

RHEINHEIMER: There is none, your honor.

THE COURT: Why not?

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

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

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

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

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

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

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

AGUIAR: Right.

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

AGUIAR: Right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Posted on Techdirt - 12 May 2017 @ 6:25am

Story About Ex-Sony Pictures Boss Magically Disappears From Gawker; His Lawyer Tells Reporters Not To Talk About It

from the right-to-be-forgotten? dept

Can people use a bankruptcy proceeding to create a "right to be forgotten"? We already know that Europe has implemented a form of a right to be forgotten that it's now looking to expand. However, in the US, the First Amendment has protected us against such things -- even if some politicians don't realize it.

However, it appears that something has happened, hidden behind the sealed doors of Gawker's bankruptcy that has resulted in a story about ex-Sony Pictures boss Michael Lynton disappearing from the Gawker archive:

A 2015 Gawker article that highlighted leaked emails written by Sony Pictures CEO Michael Lynton has been quietly removed from the internet, the latest in a line of stories from the former digital media company to be disappeared under apparent legal pressure from powerful figures.

The story pieced together some of Lynton’s emails disclosed in the Sony Hack, the monstrous dump of company materials in late 2014 that was catastrophic for the studio and widely covered by the media.

Lynton -- who once claimed that nothing good has come from the internet ever -- left Sony Pictures recently to focus on being chair of the board at Snap, the company that does Snapchat (a company that kinda relies on that no good, very bad internet Lynton hates). But apparently, on the side, he was somehow secretly convincing the Gawker "estate" to delete some articles he didn't like.

This is different than when Univsion pulled down a bunch of Gawker stories after purchasing many of the company's assets out of bankruptcy. In that case, Univision claimed -- questionably -- that since it had purchased just the assets, but not liabilities, it had to take down any story that was subject to a lawsuit. This ignored a whole bunch of things, including the "first publication" rule, but whatever. In this case, the story was still hosted by what's left of Gawker. That is, when Gawker sold a bunch of assets to Univision, it did not sell the flagship "Gawker" site itself, but has instead maintained the archives. And that included some stories on Lynton that revealed things via the Sony Pictures email hack.

And thus it appears that some sort of settlement was reached behind the scenes, with no public explanation or details... to flat out delete a story that apparently Lynton or someone close to Lynton didn't like. As reporter Matthew Zeitlin notes, we should all be concerned that a news story can disappear just "because of opaque bankruptcy proceedings." And, of course, because this is the internet, the Streisand Effect is already taking over, with people passing around links to the story that was disappeared. The story in question, like many stories, was probably embarrassing to some people, but there's been no evidence presented (publicly at least) that it was untrue. No one has shown any evidence that the Sony hack emails that it was based on were not accurate. Ironically, the suppressed story itself is, somewhat, about using money and connections to do things that normal people can't do, so perhaps it's only fitting that a behind the scenes, opaque process was then used to try to memory hole that story.

But the story gets even worse. The Hollywood Reporter has also reported on this and notes that Lynton's lawyer, Andrew Celli, has warned its reporter, Eriq Gardner, not to even report on the disappearing story:

Celli made contact to The Hollywood Reporter's general counsel to express concern after I made inquiries about the vanished article with Gawker. He later suggested that to even repeat the gist of the original Gawker story would be damaging. He threatened a lawsuit and, referring to the Sony hack, told me, “There is a sin at the bottom of this. It’s wrong. The source for information is the result of a crime.”

This is, in the famed words of Popehat, what is known as censorious thuggery. Threatening people with litigation for reporting the news creates serious chilling effects. As Gardner notes in his article -- and as we've been reporting ourselves -- there seems to be a big business lately in so-called "reputation management" efforts to get embarrassing news stories disappeared from the internet. That should concern everyone. There's a reason that the US has a 1st Amendment and rejects things like a "Right to be Forgotten." Such things have a history of being abused by the rich and powerful to silence the press, just because the rich and powerful don't like those stories.

Even if one could give Lynton the benefit of the doubt in getting Gawker's estate to take down the original story, the fact that his lawyer then threatened another publication with a lawsuit just for reporting on the situation makes this even more problematic. Lynton may not like the internet very much, but that doesn't mean he gets to censor it at will.

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Posted on Techdirt - 11 May 2017 @ 1:29pm

Lawsuit Claiming Fyre Festival Sent Cease & Desist Letters To Online Critics Doesn't Show Any Actual Evidence

from the up-in-flames dept

If, somehow, you've avoided all the news about the Fyre Festival from the past few weeks... well... you've been missing out. There's a ton of coverage basically everywhere, but what was promoted as an upscale music festival on a private island in the Bahamas, complete with private flights, luxury lodging, and fine dining... turned out to be... nothing. Despite having lots of rich and famous folks (especially Instagram stars) promoting the festival for months, it eventually appears that promoting and hyping was about all that was done for the festival, rather than actually organizing stuff. The festival was "canceled" but not before a bunch of people made their way to a not-so-private island in the Bahamas (Great Exumas) and discovered... that there was effectively nothing there. There was no music festival. The "lodging" was emergency relief structures. The "fine dining" was slices of bread and cheese with some lettuce. It's been quite a story.

As you can imagine there have been lawsuits filed. Oh so many lawsuits. The sixth of these lawsuits, filed by Kenneth and Emily Reel, is getting a bunch of attention, in part because it includes the festival's PR agency, 42West, rather than just the "startup" behind the festival, Fyre Media (it was supposed to offer some sort of app), its founder Billy McFarland, and the musician Ja Rule, who was supposedly also a creator of the festival. But, even more interesting for those of us here at Techdirt is that he latest filing also claims that Fyre Festival has been threatening social media posters with cease-and-desist letters for posting negative things about the festival. That's what puts this squarely into Techdirt/Streisand Effect territory.

You can read the full filing here or below. Admittedly, the filing is... kinda weak. There seem to be many claims that are little more than cut-and-pasted from media reports (without citation or credit). For example, the social media cease-and-desist threats are not shown with much detail (and don't appear to be included as an exhibit). Here's what the lawsuit says:

As for those individuals who elected to speak negatively about the Defendants on social media, they are now being threatened with legal action via cease and desist letters. Specifically, if the social media comments were not taken down, the Defendants claim they could “incite violence, rioting, or civil unrest,” with the caveat that if “someone innocent does get hurt as a result … Fyre Festival will hold you accountable and responsible.”

It is a little unclear from the filing if the lawyers have actually even seen this cease and desist letter. It would appear to be almost word for word identical to a TMZ post from a week ago, which doesn't present any actual evidence of the cease and desist letter -- and doesn't name the lawyers or even the recipient of the letter. The lawsuit doesn't cite the TMZ article, but also doesn't present any additional evidence of actual letters being sent (normally, you'd think it would be included as an exhibit if they had such a letter). Still, if such letters were actually sent, I imagine it won't be long until they're public.

It's also odd, because this bit about the cease-and-desist letters comes in the same section as the discussion concerning the "application" that Fyre Festival has set up for people to ask for their money back. If you haven't heard, rather than just refunding the money, the Festival has asked people to "apply" for a possible "refund" providing little to no info on whether or not they're likely to get it. The lawsuit points out, reasonably, that while the festival promised refunds, asking people to apply and then providing no details or process is not quite the same thing as actually giving the refunds. And, most amusingly, the "application" has been mocked for encouraging people to accept passes to next year's Fyre Festival (which they insist will be a real thing) in lieu of a refund. Really:

If, somehow, you can't see that image, it shows one of the questions from the application (question 13 -- which raises a separate issue of just how many questions should you have to answer to get a freaking refund for a festival that didn't happen?!?) saying:

Would you prefer to exchange your 2017 ticket(s) for additional 2018 VIP passes, as opposed to receiving a refund (Ex: If you purchased 3 passes for 2017 you would receive 6 total 2018 VIP passes).

As you likely know, we've been through the ringer on social media and this has been a challenging week for us as we were unable to realize our dream on the first try. We are now one of the world's most famous festivals, for all the wrong reasons. We want to reverse that sentiment by producing something amazing. We are fully committed to this event next year, and to producing it in the most professional way, with experienced professionals. We have received support and commitments from several musicians to perform at next year's event. We would be so thankful to have your support as well.

And then, the kicker: it provides two "options" for the recipient to choose from:

  • Yes, let it ride. I'd love to support you all in creating something amazing!
  • No, I'm not down for the adventure
  • I have so many questions just about this question. Like, how they'll be producing an event when they're buried under at least 6 lawsuits and possibly more. Or how they can promise it will be professionally run by like, real professionals, when it appears that none of that happened this time around. Or how they can promise that "several musicians" have "committed" to performing when all the musicians who similarly "committed" to perform at this year's event... didn't. The main guy behind all of this, McFarland, has claimed publicly that "currently 81% of guests who have filled out the refund application have said they would like to attend Fyre Festival 2018", which I think people should view with the level of credibility of the guy who promised a music festival on a private island with luxury lodging and fine dining, and left a bunch of wealthy people on a non-private island in relief tents with bread and cheese and no electricity.

    Either way, it's a little unclear if Fyre Festival is actually sending cease-and-desist letters, or if it's maybe a part of this crazy long refund application that suggests that Fyre Festival "will hold you accountable and responsible" for negative postings. But... whatever it is... threatening people for saying bad things about your non-existent and massively overhyped festival seems... unwise.

    And, reading through the various lawsuits and news reporting over this, it certainly seems that the number of "unwise" moves by the organizers of this event began long ago and kept piling up at a fairly astounding rate. The lawsuit includes a bunch of claims that appear to have originated in a NY Mag article by Chloe Gordon, who wrote that she was hired by Fyre Festival to help out, and that it was clear things would be a disaster months ago. Oddly (again), the lawsuit doesn't note that many of the claims in the lawsuit came from that article, but they do... including this astounding claim about a meeting six weeks before the event was supposed to take place:

    Meanwhile the event planners were holed up indoors putting together a game plan and a budget. With so little having been prepared ahead of time, the official verdict was that it would take $50 million to pull off. Planners also warned that it would be not be up to the standard they had advertised. The best idea, they said, would be to roll everyone’s tickets over to 2018 and start planning for the next year immediately. They had a meeting with the Fyre execs to deliver the news. A guy from the marketing team said, “Let’s just do it and be legends, man.”

    Yeah, so sending out threatening cease-and-desist letters as mentioned in the lawsuit is certainly within the realm of possibility.

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    Posted on Techdirt - 11 May 2017 @ 9:18am

    Patent Trolling Lawyers May Have Picked With The Wrong Company To Shake Down: Cloudflare Hits Back

    from the bam dept

    Earlier this year, we wrote a story about a fairly nutty patent troll, Blackbird Technologies, who had sued a bunch of companies over a patent it claimed covered letting users download content to consume offline (even though the actual patent was for a CD-ROM burning system). Blackbird has been suing a ton of companies over the last few years, and one of its recent targets was CDN provider Cloudflare (note: we're a customer of Cloudflare). The lawsuit is over US Patent 6,453,335 on "providing an internet third party data channel." The patent itself seems questionable. The application of the patent to Cloudflare's technology seems questionable -- but rather than dig into all of that, instead, let's focus on Cloudflare's response to all of this. First, it's pushing back on the lawsuit (of course), but it's going much, much further than that. As detailed in a new blog post, it's directly going after the lawyers behind Blackbird.

    You see, it's fairly typical for patent trolling operations to be pretty secretive about how they operate. They are often formed by former patent lawyers who then try to lay low while they know they're abusing the system. In this case, Cloudflare is first calling out the patent lawyers behind Blackbird:

    Blackbird was formed three years ago by two attorneys who left law firms where they had been engaged in patent defense work — Wendy Verlander (@bbirdtech_CEO; LinkedIn) at WilmerHale, and Chris Freeman (LinkedIn) at Kirkland & Ellis. Notably, both of those firms promote themselves as ready to protect companies from patent trolls. Kirkland trumpets that its IP practice group scored a victory against the “original patent troll,” while WilmerHale has a Patent Troll Initiative that aims to help businesses deal comprehensively with patent trolls.

    Having gained valuable experience and training by working for clients who paid their firms handsomely to fight suits brought by patent trolls, Verlander and Freeman were well aware of the harm done to their clients by patent trolls. Yet, Verlander and Freeman decided to cast their lot with the other side and formed a patent troll for themselves.

    But it goes way beyond them just flipping to the dark side. As Cloudflare details, it believes that Blackbird and the two lawyers who run it may have violated legal ethics rules. Many of them. First, Cloudflare makes the case that Blackbird Technologies is really just a law firm, rather than a tech company:

    As made clear in this blog post, Blackbird’s founders made the decision to leave law firms that were engaged in the defense of clients who were faced with patent lawsuits, and formed a new law firm focused on bringing law suits as a patent troll. The only services promoted on its website (http://www.blackbird-tech.com/) are legal services; the website notes that Blackbird represents a “new model” which provides the benefits of “top law firm experience” offering clients the ability to “litigate at reduced costs.”

    Of 12 total employees listed on the Blackbird website, 7 are attorneys. The remaining 5 are very junior employees described as “analysts” (3 are current undergraduate students and 2 received Bachelor's degrees last May). As far as we can determine, Blackbird produces no products or services which it makes available to the public. Rather, it offers litigation services and is in the business of filing lawsuits. And its output in that regard is prolific, as it has filed a total of 107 lawsuits since September 2014.

    As final confirmation that Blackbird is a law firm marketing legal services, its own website includes a disclaimer about “Attorney Advertising,” which states explicitly “[p]lease note that this website may contain attorney advertising.”

    Blackbird’s “new model” seems to be only that its operations set out to distort the traditional Attorney-Client relationship. Blackbird’s website makes a direct pitch of its legal services to recruit clients with potential claims and then, instead of taking them on as a client, purchases their claims and provides additional consideration that likely gives the client an ongoing interest in the resulting litigation. In doing so, Blackbird is flouting its ethical obligations meant to protect clients and distorting the judicial process by obfuscating and limiting potential counterclaims against the real party in interest.

    And thus, the company is subject to certain rules. Many of which Cloudflare argues it is not following.

    1. Blackbird may have acquired a proprietary interest in the subject matter of the litigation in violation of Rule 1.8(i) — Attorneys have a near monopoly of representing clients in the judicial system. Rule of Professional Conduct 1.8(i) explicitly prohibits an attorney from “acquir[ing] a proprietary interest in a cause of action or subject matter of litigation.” But that is exactly what Blackbird does. Blackbird’s website contains a pitch to recruit clients with potential legal claims under their patents, but then buys those claims and brings them on their own behalf. Wouldn’t that be a violation of Rule 1.8(i)? Doesn’t Blackbird’s attempt to pitch this as a “new model” of being a patent troll ignore the fact that the only non-law firm activity in which they are engaged (buying patents to bring lawsuits) is the exact thing prohibited by Rule 1.8(i)? They shouldn’t be able to use creative contractual or corporate structures to avoid its responsibility under the rules.

    2. Blackbird may be sharing fees or firm equity with non-lawyers in violation of Rule 5.4(a) or 5.4(d) — In order to preserve the integrity of the Attorney-Client relationship, Rule of Professional Conduct 5.4(a) prohibits attorneys from splitting legal fees in individual matters with non-lawyers, and Rule 5.4(d) prohibits providing an equity interest in a firm to non-lawyers. We think Blackbird may be violating both provisions. Although he no longer owns the patent and is not a party to the case, the assignment agreement’s terms (specifying payment of only $1) makes it possible that Mr. Kaufman has a contingency interest in the lawsuit. If that is the case, wouldn’t Blackbird be in violation of Rule 5.4(a)? Similarly, Blackbird has moved very quickly since its founding to file lawsuits against a great number of companies — 107 complaints since September 2014. So far, none of those cases have gone to trial. We intend to examine whether they have used financial support from non-lawyers to fund the very fast start to their operations in exchange for an impermissible equity interest, or have shared an equity interest with patent holders like Mr. Kaufmann, either of which would be in violation of Rule 5.4(d).

    Yeah. So, that might make things slightly more interesting for Blackbird. Rather than just having to fight off the claims of non-infringement or attempts to invalidate the patents, if Cloudflare's arguments here get anywhere, it could put the founders of Blackbird into serious trouble. In some ways, based on Cloudflare's description of how Blackbird operates, it reminds me of Righthaven. As you may recall, that was a copyright trolling operation that effectively "bought" the bare right to sue from newspapers. They pretended they bought the copyright (since you can't just buy a right to sue), but the transfer agreement left all the actual power with the newspapers, and courts eventually realized that all Righthaven really obtained was the right to sue. That resulted in the collapse of Righthaven. This isn't exactly analogous, but there are some clear similarities, in having a "company," rather than a law firm (but still run completely by lawyers), "purchase" patents or copyrights solely for the purpose of suing, while setting up arrangements to share the proceeds with the previous holder of those copyrights or patents. It's a pretty sleazy business no matter what -- and with Righthaven it proved to be its undoing. Blackbird may face a similar challenge.

    Cloudflare claims they're taking such an extreme step with the bar complaints to ward off other patent trolls from evolving into this type of model, that will only encourage more bogus lawsuits. And, that's not all the company is doing in going after Blackbird. The company is also crowdfunding up to $50,0000 for prior art discoveries not just on the patent being asserted against Cloudflare but on any patent held by Blackbird Technologies.

    The first bounty (up to $20,000) is for prior art which reads on the patent Blackbird is using to sue Cloudflare, the ‘335 patent. $10,000 is guaranteed and will be divided among prior art submissions that raise substantive questions on the ‘335 patent. The remaining $10,000 will be used to compensate prior art submissions that Cloudflare uses as evidence in an invalidation procedure at the USPTO or invalidation at trial. The latest date of prior art on the ‘335 patent would be July 20, 1998.

    The larger bounty (up to $30,000) will be spread among those submitting substantial prior art which reads on any of the 34 other outstanding Blackbird patents or their 3 in-flight patent applications and could lead to the invalidation of these dubious patents. Cloudflare will pay the second bounty to people who submit relevant and substantive prior art which, in Cloudflare’s opinion, reads on any other Blackbird patent. The money will be distributed based on the quality of the prior art, the perceived value of the patent, and the extent to which the evidence is used in a proceeding to invalidate one of the Blackbird patents.

    We will maintain a list of all the Blackbird patents at cloudflare.com/blackbirdpatents/. The list will provide the number of each patent, the relevant latest date of prior art, and will list germane already-identified prior art. We will update the list periodically as we get new information submitted.

    In other words, if Blackbird Technologies wants to go after Cloudflare in court, Cloudflare is going to hit back hard and make sure that Blackbird can't just run away. In many ways, this reminds me of Newegg's scorched earth approach to any patent trolls that sue them. Once a troll initiates a lawsuit, Newegg goes to war to make sure that other patent trolls don't even think of trying to go after Newegg again (and that strategy seems to mostly be working, as trolls now know to steer clear of the company).

    Kudos to Cloudflare for hitting back against patent trolling that serves no purpose whatsoever, other than to shake down innovative companies and stifle their services. But, really, the true travesty here is that the company needs to do this at all. Our patent (and copyright) systems seem almost perfectly designed for this kind of shakedown game, having nothing whatsoever to do witht the stated purpose of supporting actual innovators and creators. Instead, it's become a paper game abused by lawyers to enrich themselves at the expense of actual innovators and creators.

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    Posted on Techdirt - 11 May 2017 @ 3:17am

    Latest Attack On A Free Press: Reporter Arrested For Asking Questions To Trump Administration Officials

    from the um-what? dept

    Another day, another attack on a free press. The latest: a long-time reporter, Daniel Heyman, of the Public News Service in West Virginia was arrested for asking questions of Trump administration officials. Heyman yelled some questions to Health & Human Services Director Tom Price along with White House senior advisor Kellyanne Conway:

    Daniel Ralph Heyman, 54, with the Public News Service of West Virginia, was freed on $5,000 bond Tuesday night on a charge of "willful disruption of government processes," according to a criminal complaint.

    “The above defendant was aggressively breaching the secret service agents to the point where the agents were forced to remove him a couple of times from the area walking up the hallway in the main building of the Capitol,” the complaint states. It adds Heyman caused a disturbance by “yelling questions at Ms. Conway and Secretary Price.”

    Whether you like it or not, the press is kind of supposed to ask questions of elected officials. That's their job. And, sure, some will argue that the complaint says that he was "aggressively breaching the secret service agents," but others on the scene indicated nothing beyond ordinary questioning happened:

    Valerie Woody, who was there as outreach coordinator for the West Virginia Citizen Action Group, said Price's group was moving quickly down a hallway and Heyman was racing after them.

    "I saw nothing in his behavior, I heard nothing that indicated any kind of aggressive behavior or anything like that," she told Public News Service. "Just simple, you know, trying to get somebody's attention and ask them a question. It seems to me there was no violation of anyone's space, or physicality, other than the arrest itself."

    And, making matters worse, rather than admitting to over-aggressive enforcement, Price is cheering on the arrest:

    Secretary of Health and Human Services Tom Price on Wednesday commended police in West Virginia for “doing what they thought was appropriate” in arresting a journalist who shouted questions at him, but added that it wasn’t his call to say whether they took the proper measures.

    Price said the reporter confronted him while he was walking down a hallway. “That gentleman was not in a press conference,” he said.

    I'm curious if Price (or anyone else, for that matter) could point to where in the First Amendment there's a rule that says the press is only allowed to ask questions "at a press conference." That's not how it works. There's also this:

    Asked Wednesday by STAT whether he thought Heyman should have been arrested, Price said: “That’s not my decision to make.”

    Well, that's only partially true. Obviously, the local law enforcement gets to make that decision, but there's nothing stopping a competent public official from telling law enforcement to knock it off and to answer a few basic questions from a reporter.

    In an era where we're hearing more and more about both attacks on a free press, as well as the need for a stronger press, these kinds of shenanigans should not be allowed. In the past, when we've covered police arresting reporters, the courts have come out repeatedly in favor of the reporters (that whole First Amendment thing still matters). But that's of little use in the moment when police are dragging reporters off to jail for shouting questions outside a press conference.

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    Posted on Techdirt - 10 May 2017 @ 3:18pm

    This Makes No Sense: US To Ban Laptops On All Flights From Europe

    from the yes,-but-wait-what? dept

    Earlier this year we wrote about the nonsensical move by the Department of Homeland Security to ban laptops and tablets in the cabin on flights from a bunch of cities in the Middle East. The rumored reason was discoveries that terrorists had learned how to make bombs out of laptops. As we noted, this made almost no sense at all when you challenged any of the assumptions. But, never let logic and reason get in the way of a bit of inane security theater. Because now Homeland Security is about to announce that it's now banning laptops in the cabins on all flights from Europe (it's unclear if this will also apply on flights from the US to Europe, but it seems likely that European airports will reciprocate).

    While this does answer one of the questions raised by the original ban ("why won't potential terrorists just fly out of other countries?") it still raises a host of other questions. Again: why won't this apply to flights from other countries? Or domestic flights? Or all flights? But, really, that just raises an even larger issue, which is that if you want to protect 100% of all flights 100% of the time from ever having a problem in which people might die, the answer is ground all flights and never let anyone fly anywhere ever. Problem solved. Of course, the cost of such a solution would be horrendous -- which is why we don't do it. But that's the key issue: all of these things involve tradeoffs. All too frequently, it appears that government officials -- especially those on the national security side of things -- don't care at all about the tradeoffs. They just care about blocking any possible attack no matter how unlikely or how remote the chance of such an attack might be, and without any consideration of the costs and inconveniences to everyone else. And, yes, it's reasonable to point out that a single attack would be very, very costly as well. And there's clearly a reason to protect heavily against attacks. But there's still a balance.

    And there must be a better solution. If laptops are a risk factor, it's difficult to see how putting them in the cargo hold -- where there's no one to stop a fire -- is a better solution. Hell, most current airline rules require passengers to store all lithium ion batteries in carry-on luggage for exactly that reason. Putting them all in the hold would seem to increase the risk of accidental explosions and fires that might cause just as much, if not more, damage. And, of course, forcing people to give up their laptops has a secondary (but very serious) problem: for anyone traveling with sensitive information (lawyers, doctors, reporters, business execs, public officials, etc.) giving up your laptop is a massive security risk.

    In other words, the "cost" of this solution is ridiculously high for a very large number of people, for whom flying to or from Europe has just become a massive inconvenience and tremendously problematic to justify given the personal risk. And for what? Vague and unclear threats about "possible" exploding laptops? I'm sure that no one wants to be on a flight with a laptop that will explode (whether on purpose or not), but there has to be a better way to tackle the problem than doing a blanket ban on laptops in the cabin. And, yes, perhaps this sounds like saying nerd harder back to Homeland Security, but this is a case where there clearly are more reasonable tradeoffs that can and should be explored, well short of inconveniencing everyone and creating a very different (but very serious) kind of security threat by forcing people to give up their laptops.

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    Posted on Techdirt - 9 May 2017 @ 3:36pm

    Trump Fires FBI Director Comey

    from the you're-fired dept

    So... not quite sure what to make of this yet, but according to the NY Times, just a little while ago, Donald Trump fired FBI Director James Comey (of course, just after our podcast came out talking about how Comey seemed to be hopeful the Trump administration would approve his encryption backdoor plans).

    “While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgment of the Department of Justice that you are not able to effectively lead the bureau,” Mr. Trump said in a letter dated Tuesday to Mr. Comey.

    “It is essential that we find new leadership for the F.B.I. that restores public trust and confidence in its vital law enforcement mission,” Mr. Trump wrote.

    The full letter is... even more crazy:

    If you can't read that, it says:

    Dear Director Comey:

    I have received the attached letters from the Attorney General and Deputy Attorney General of the United States recommending your dismissal as the Director of the Federal Bureau of Investigation. I have accepted their recommendation and you are hereby terminated and removed from office, effective immediately.

    While I greatly appreciate you informing me, on three separate occasions, that I am not under investigation, I nevertheless concur with the judgement of the Department of Justice that you are not able to effectively lead the Bureau.

    It is essential that we find new leadership for the FBI that restores public trust and confidence in its vital law enforcement mission.

    I wish you the best of luck in your future endeavors.

    Donald J. Trump

    I'm not sure why it even bothers to mention that Trump himself is not a target of an investigation (or that Comey told him that three times). It's already known that the wider administration is subject to an investigation, and even if you don't believe that such an investigation will turn up anything, it's still happening. At the very least, this should call into question whether or not there can effectively be any investigation into the administration that won't involve meddling by the administration. That alone should be a big concern.

    I don't think we've ever said anything particularly supportive of Comey, who we've disagreed with on a large range of issues, but it's difficult to see how this is going to be a good thing. It's already been admitted that the FBI was investigating potential ties between Russia and the administration. Whether or not that investigation had anything at all to do with the firing, there's no way to spin this that looks good.

    Yes, the President has the power to fire the head of the FBI... but when that FBI was conducting an independent investigation of the President, any such firing is clearly going to be seen as politically motivated. And, yes, it's important to note that this is NOT entirely unprecedented. President Clinton fired FBI director William Sessions soon after taking office as well, though there wasn't the stench of an FBI investigation into the President going around at the time. If anything, the comparison that seems slightly more apt that people are making is to Archibald Cox, the independent special prosecutor that Richard Nixon fired, leading to the resignations of the Attorney General and Deputy Attorney General (contrast that to today's news, where it was those two roles who recommended this firing...).

    Comey was not a particularly good FBI director, and we've covered numerous problems with his leadership. But that doesn't mean that whoever replaces him won't be even worse.

    141 Comments | Leave a Comment..

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