Mike Masnick’s Techdirt Profile


About Mike MasnickTechdirt Insider

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

He can be found on Twitter at http://www.twitter.com/mmasnick

Posted on Techdirt - 29 August 2016 @ 4:15pm

New Zealand Court Grants Kim Dotcom's Request To Have Extradition Hearing Livestreamed On YouTube, Despite DOJ Protests

from the sorry-doj dept

The Kim Dotcom extradition appeal is now under way, with the first question being whether or not the courtroom drama could be livestreamed on the internet for a global public to watch. The request was originally made by Kim Dotcom and his lawyers, but the lawyers for the US government opposed... because... well, just because.

"US defends mass surveillance programs with 'If you have nothing to hide, you have nothing to fear' but opposes live streaming of my hearing," Dotcom, who attended some of the hearing, said on Twitter.
Honestly, it's not at all clear why the government lawyers are opposing this other than to just oppose stuff and be generally obstructionist. However, it doesn't appear to have worked. A little while ago, Dotcom's lawyer Ira Rothken announced that the court had agreed to allow live streaming:
And Kim Dotcom himself tweeted that it would begin tomorrow, once a cameraman was set up:
This should be an interesting hearing to watch no matter what. If you want a preview of some of the points, check out our podcast interview with Dotcom's lawyer, Ira Rothken from last week.

42 Comments | Leave a Comment..

Posted on Techdirt - 29 August 2016 @ 2:41pm

FBI Says Foreign Hackers Got Into Election Computers

from the well,-that's-just-great dept

We've written probably hundreds of stories on just what a dumb idea electronic voting systems are, highlighting how poorly implemented they are, and how easily hacked. And, yet, despite lots of security experts sounding the alarm over and over again, you still get election officials ridiculously declaring that their own systems are somehow hack proof.

And now, along comes the FBI to alert people that it's discovered at least two state election computer systems have been hacked already, and both by foreign entities.

The FBI has uncovered evidence that foreign hackers penetrated two state election databases in recent weeks, prompting the bureau to warn election officials across the country to take new steps to enhance the security of their computer systems, according to federal and state law enforcement officials.
The report apparently noted that Arizona and Illinois were the two states whose systems were exploited -- with both attacks coming from the same IP addresses. From the report, it does not look as if the hacks were specifically about modifying vote totals, but rather accessing voter registration data -- but that's still a pretty big concern.

In response, the Department of Homeland Security has apparently reached out to state election officials offering "help" in better securing their election systems. Doesn't it seem a bit late for them to start securing their systems now? And, of course, it's not like DHS is somehow a great at stopping hackers either. It wasn't so long ago that a 16-year-old kid using the online handle "penis" was able to hack DHS's computer systems.

Maybe, just maybe, people in charge of elections in America should have considered some of this, I dunno, two decades ago when people first raised the issues about vulnerabilities in election systems.

30 Comments | Leave a Comment..

Posted on Techdirt - 29 August 2016 @ 11:44am

'Trade Deals' & Corporate Sovereignty: How Convicted Executives Escape Punishment

from the the-shadow-court-system dept

Okay, we've been trying to raise the alarm bells about "ISDS" -- "Investor State Dispute Settlement" -- systems for many, many years, even helping to push the term "corporate sovereignty" to help describe it, since people's brains seem to turn to mush when you spell out ISDS. We've pointed out over and over again the problems of such a system where it basically allows companies to sue countries for passing regulations they don't like. We've noted over and over and over again how problematic this is... and yet people still tell us it's no big deal and the system is fair and "necessary" to keep countries from doing things like simply nationalizing an industry that foreign companies build up. Of course, that doesn't happen that often. ISDS corporate sovereignty cases are happening quite frequently, over subjects like Eli Lilly being upset that Canada rejected some patents and Philip Morris suing lots of countries for passing anti-smoking health regulations.

Thankfully, Chris Hamby, an excellent investigative reporter with BuzzFeed*, has done a massive detailed investigative report into the ISDS corporate sovereignty system and what a complete disaster it is. Much of this was assumed before, but many of the ISDS cases are done in complete secrecy, so there are few details out there. Hamby's reporting, though, will hopefully change that.

You know how we've written about the whole "high court, low court" thing where those in power and with connections get treated differently in court than those without? Well, consider the ISDS corporate sovereignty system an international version of the high court. You can only access it if you're a company, but it's also used, repeatedly, to protect executives who have been convicted of crimes for actions by companies. In just the first report (apparently more is coming), Hamby reveals:

  • A Dubai real estate mogul and former business partner of Donald Trump was sentenced to prison for collaborating on a deal that would swindle the Egyptian people out of millions of dollars — but then he turned to ISDS and got his prison sentence wiped away.
  • In El Salvador, a court found that a factory had poisoned a village — including dozens of children — with lead, failing for years to take government-ordered steps to prevent the toxic metal from seeping out. But the factory owners’ lawyers used ISDS to help the company dodge a criminal conviction and the responsibility for cleaning up the area and providing needed medical care.
  • Two financiers convicted of embezzling more than $300 million from an Indonesian bank used an ISDS finding to fend off Interpol, shield their assets, and effectively nullify their punishment.
  • The report notes that lawyers have increasingly looked to ISDS not as a system of last resort, as it was originally intended, but as a creative way to pad their billing help companies get all sorts of advantages over governments.
    Driving this expansion are the lawyers themselves. They have devised new and creative ways to deploy ISDS, and in the process bill millions to both the businesses and the governments they represent. At posh locales around the globe, members of The Club meet to swap strategies and drum up potential clients, some of which are household names, such as ExxonMobil or Eli Lilly, but many more of which are much lower profile. In specialty publications, the lawyers suggest novel ways to use ISDS as leverage against governments. It’s a sort of sophisticated, international version of the plaintiff’s attorney TV ad or billboard: Has your business been harmed by an increase in mining royalties in Mali? Our experienced team of lawyers may be able to help.

    A few of their ideas: Sue Libya for failing to protect an oil facility during a civil war. Sue Spain for reducing solar energy incentives as a severe recession forced the government to make budget cuts. Sue India for allowing a generic drug company to make a cheaper version of a cancer drug.
    There are even lawyers who basically just scour the world for any regulatory change, and then go hunting for companies who can bring ISDS corporate sovereignty cases over those regulatory changes. In other words, the cart is not just in front of the horse here, it's dragging it down the hill.

    And don't buy the claim that the "newer" versions of ISDS found in agreements like the TPP and the TTIP are somehow better and have fixed the problems of the old ones. The BuzzFeed report notes that there are massive loopholes, and lawyers are already preparing their clients on how to exploit them, should the TPP get ratified. As for the claim that ISDS must be fine because the US has never lost a case -- according to the report, that's basically mostly been luck, and it's unlikely to hold up much longer.

    But, really, it's the escaping criminal charges stuff that's eye-opening in this first report:

    Reviewing publicly available information for about 300 claims filed during the past five years, BuzzFeed News found more than 35 cases in which the company or executive seeking protection in ISDS was accused of criminal activity, including money laundering, embezzlement, stock manipulation, bribery, war profiteering, and fraud.

    Among them: a bank in Cyprus that the US government accused of financing terrorism and organized crime, an oil company executive accused of embezzling millions from the impoverished African nation of Burundi, and the Russian oligarch known as “the Kremlin’s banker.”

    Some are at the center of notorious scandals, from the billionaire accused of orchestrating a massive Ponzi scheme in Mauritius to multiple telecommunications tycoons charged in the ever-widening “2G scam” in India, which made it into Time magazine’s top 10 abuses of power, alongside Watergate. The companies or executives involved in these cases either denied wrongdoing or did not respond to requests for comment.

    Most of the 35-plus cases are still ongoing. But in at least eight of the cases, bringing an ISDS claim got results for the accused wrongdoers, including a multimillion-dollar award, a dropped criminal investigation, and dropped criminal charges. In another, the tribunal has directed the government to halt a criminal case while the arbitration is pending.

    The report then goes on to detail some specific case studies of people accused of criminal activity using corporate sovereignty tribunals to effectively get away with it.

    There's also evidence that all this game playing with corporate sovereignty involves lawyers effectively doing "treaty shopping" to figure out where to set up companies so they can sue specific countries for money. Really.

    A key service offered by the ISDS legal industry goes by various euphemisms: “corporate structuring,” “re-domiciling,” “nationality planning.” Critics have a different term: “treaty shopping.” It amounts to helping businesses figure out which countries’ treaties afford the most leeway for bringing ISDS claims, then setting up a holding company there — sometimes little more than some space in an office building — from which to launch attacks.

    So it is that a private equity firm based in Texas can fly the flags of Belgium and Luxembourg, enabling it to sue South Korea, which convicted one of its executives of stock manipulation. The private equity firm declined to comment.

    That means that even though domestic people aren't supposed to be able to use ISDS against their own governments, it still can happen:
    ISDS was designed to protect foreign investors, not people suing their own government. But members of the once-prominent Turkish Uzan family — accused of perpetrating a fraud worth billions and derided at one point by a US federal judge as “business imperialists of the worst kind” — found a way to sue their native land through a variety of companies primarily under their control in Cyprus, Poland, and the Netherlands. (Turkey won each case, but at a cost of tens of millions in legal fees.) The family’s telecommunications company, however, remained Turkish so it could bring a claim against Kazakhstan, with which Turkey has a treaty — and win a $125 million award.
    And, yes, lawyers specializing in this kind of money making effort are also the ones (shocker!) using the infamous revolving door at the US Trade Representative's office to cash in:

    Daniel M. Price negotiated the section of NAFTA containing ISDS when he was a lawyer at the Office of the US Trade Representative. He later served as a top international trade official in the George W. Bush White House.

    In between these government stints, he worked as a private lawyer helping clients in ISDS cases. Twice he used the treaty he himself had helped negotiate to help US-based businesses pursue claims against Mexico.

    He founded and chaired the unit handling ISDS claims at Sidley Austin, a leading global law firm. Today, he promotes his services as an arbitrator and, along with a powerhouse team that includes other former government lawyers, sells international expertise on ISDS and related matters.

    Nice work, if you can get it.

    Another key point in the report is that the talking point from ISDS defenders that governments win more ISDS cases than companies is basically bullshit:
    To prove that ISDS is not biased in favor of businesses, they point to the outcomes of known cases: Governments have won about 35% of the time, while business interests have won only about 25%.

    But that statistic is anything but straightforward. It pertains only to the outcomes of known cases; ISDS is so secretive no one even knows how many additional cases there have been. Also secret are most of the settlements. Roughly a quarter of the known cases were settled, but the terms are almost never disclosed.

    Moreover, subtract the cases that arbitrators tossed out because they didn’t have jurisdiction to hear the claim, and that win–loss balance flips: Business interests have won 60% of the time. Even then, cases recorded as losses for the corporation can actually be wins. In one case, an executive failed to garner a monetary judgment but obtained a finding that helped him wipe away a criminal punishment.
    There's much, much, much more in this story, and it's just the first in a series. Hopefully things like this will start to wake people up to just how incredibly bad ISDS corporate sovereignty provisions really are. They're not just some obscure system that involves big companies fighting. They're becoming an alternative court system for the super powerful and connected -- and letting them literally get away with criminal behavior.

    * Okay, okay, I know some people still insist that BuzzFeed is just a horrible site full of nothing but junk, but it's actually got a really great reporting team, that has done some amazing work over the years -- it's just that very few people know about it.

    22 Comments | Leave a Comment..

    Posted on Techdirt - 29 August 2016 @ 10:44am

    Head Of Anti-Counterfeiting Lobbying Group Says He's Going To Make Counterfeit Techdirt T-Shirts

    from the does-he-think-he's-making-a-point? dept

    Every so often when people find out about the position we tend to take on copying, they hit back with what they think is a "gotcha" of something along the lines of "you wouldn't feel that way if someone copied your stuff." They really do. All the time. There are a number of scraper/spam blogs that copy and repost Techdirt's content, and it's really no big deal. As we've noted for a long time, all of the content that we publish directly we've declared to be in the public domain, so feel free to copy it with some caveats (which we'll discuss below). Last week, we launched our latest T-shirt, the "Copying is Not Theft" shirt:

    So far there's been a great response to it, but some people seem really upset by the basic message. On Twitter and in our comments, we've had a few people pull out the "Oh, well how will you feel when I copy that shirt!" line of thinking that they'd found some sort of gotcha. The oddest, of all, however, was John Anderson, who apparently runs something called the "Global Anti-Counterfeiting Group" insisting that he's going to counterfeit our shirt.
    Yes, yes, he's obviously just being snarky and thinking he's making a point, but it still seems odd for someone who insists he's against counterfeiting to basically say he's planning to counterfeit our shirt. At the very least, it actually gives us a platform to make our point: if he really wants to do so, he can absolutely go and make those cheap $5 shirts. But they won't sell. Why? This is the whole point we've been trying to make all this time. The reason people buy shirts from us is because (1) they like the shirts and (2) they want to support Techdirt. Somehow, I get the feeling that the community that John Anderson has built up around his Global Anti-Counterfeiting Group aren't exactly the kind of people who would jump at an offer to buy "Copying is Not Theft" T-shirts, even if they are 25% the price of our T-shirts.

    This is the point that so many fail to get when they freak out about people copying. If you've built up a community of people who want to support you and people who like and are interested in what you do, there's nothing to fear from copying. It's only when you don't have that kind of support, or when you're trying to force something on people that they don't want that you suddenly have to worry about copying.

    This is why we've always pointed to the same response when people say they're going to copy us and prove that we really are worried about copying or that copying really is theft. It's not. Here's what I wrote nearly a decade ago and it's still stands true today:
    We have no problem with people taking our content and reposting it. It's funny how many people come here, like yourself, and assume you've found some "gotcha." You haven't. There already are about 10 sites that copy Techdirt, post for post. Some of them give us credit. Some of them don't. We don't go after any of them.

    Here's why:

    1. None of those sites get any traffic. By themselves, they offer nothing special.

    2. If anything, it doesn't take people long to read those sites and figure out that the content is really from Techdirt. Then they just come here to the original source. So, it tends to help drive more traffic to us. That's cool.

    3. As soon as the people realize the other sites are simply copying us, it makes those sites look really, really bad. If you want to risk your reputation like that, go ahead, but it's a big risk.

    4. A big part of the value of Techdirt is the community here. You can't just replicate that.

    5. Another big part of the value of Techdirt is that we, the writers, engage in the comments. You absolutely cannot fake that on your own site.

    So, really, what's the purpose of copying our content in the manner you describe, other than maybe driving a little traffic our way?

    So, if you really want to, I'd suggest it's pretty dumb, but go ahead.
    This same thing holds true for counterfeiting goods as well. When we launched our first shirt, the Nerd Harder shirt, we saw a few copycats spring up on Teespring, complete with the language claiming that the shirts were from Techdirt, when they were not. We reached out to Teespring telling them we had no problem with them leaving up the T-shirts, but we would appreciate it if they didn't say that supporting them was supporting Techdirt. That's been consistent with our position all along, that in the realm of trademark, the one thing that does make sense is when it's used as a form of consumer protection. If buyers might be confused about who is really endorsing the product, that's a reasonable concern. But someone copying our shirt without pretending it's from us? That's totally cool. In fact, maybe they can make it better.

    I mean, it's not like we even came up with the phrase "copying is not theft" either. It's the name of a truly wonderful song that Nina Paley wrote and illustrated:
    Did we "steal" her song in taking the title and making it a shirt? Hell, no. We made a new thing. We took something that she did and we built on it to offer something new (cool T-shirts) to a different audience (ours), and so far, it seems to be working. If John Anderson thinks he can compete with his audience, he should go for it.

    Hell, we'd be happy to compete with anyone doing so, because we know the message resonates with our audience. I'm not so sure it would resonate with the audience of some random person trying (and failing) to prove a point. So, bring it on.

    And, yes, we've even made it extra easy for folks like John Anderson. If he likes, we've made the original image available as both a vector SVG file and a high-res PNG. So go ahead, John Anderson from the Global Anti-Counterfeiting Group. Go ahead and counterfeit our shirt. Knock yourself out. I imagine you'll sell somewhere close to zero of them. Though the members of your group may find it odd that the head of a Global Anti-Counterfeiting Group's first response to seeing a T-shirt he doesn't like is to talk about counterfeiting it. Right, John?

    Anyway, if you'd like to make a point to John Anderson and the Global Anti-Counterfeiting Group, here's your opportunity. Buy one of our lovely Copying is Not Theft T-shirts.

    43 Comments | Leave a Comment..

    Posted on Techdirt - 29 August 2016 @ 6:24am

    Clinton Campaign Happily Using Strong End-To-End Encryption To Communicate; Will They Let The Rest Of Us Use It Too?

    from the good-for-the-goose dept

    Hillary Clinton has been somewhat hard to pin down on the encryption debate -- because she's done what she's done with plenty of issues, generally spoken in broad platitudes without ever making a statement that allows her position to actually be clear. But she's certainly said some pretty concerning stuff. Last fall she said:

    Encryption of mobile communications presents a particularly tough problem. We should take the concerns of law enforcement and counterterrorism professionals seriously. They have warned that impenetrable encryption may prevent them from accessing terrorist communications and preventing a future attack.
    Of course, she then did a "on the other hand" and noted the concerns of security folks. Since then, she's called for a sort of Manhattan Project on encryption, believing that if Silicon Valley people could just nerd harder, they could make encryption that could only be broken by law enforcement. That's not how it works. She's also complained that Silicon Valley treats the government "as its adversary."

    So it seems rather noteworthy that, following questions about how well she secured her own emails, combined with email leaks from the DNC and reports that the campaign itself has been hacked, the Clinton campaign has now started using Signal, the popular encrypted messaging system from Open Whisper Systems (which made the protocol that is generally considered the best around for end-to-end encrypted messaging).
    In the intervening weeks, staffers were told, according to a person who works with the committee, that if anyone was going to communicate about Donald Trump over e-mail or text message, especially if those missives were even remotely contentious or disparaging, it was imperative that they do so using an application called Signal....

    Signal, staffers in the meeting were told, was “Snowden-approved.” A week after the meeting at the campaign headquarters, according to two people who have worked with the D.N.C. and the Clinton campaign, an e-mail was sent out instructing staffers where to download the app and how to use it.
    So, you'd think that, maybe (just maybe) the Clinton campaign might come out and say that it's not planning to support bills that would outlaw Signal after they're elected, right?

    Perhaps it'll take another lesson. Because, apparently, the Clinton campaign staffers didn't pay much attention to the briefing:
    While the D.N.C. hack sent tremors down the spines of virtually everyone in Washington, it didn’t take long for people to take the easy route, once again e-mailing sensitive information that could easily hamper the campaign if it ever became public. Or, as one Washington insider told me: “No one really learned.”
    So, there's that.

    The other oddity in this story is that Hillary Clinton has called for Snowden to be put in jail, and yet now her campaign is telling everyone to use Snowden-approved encryption? The irony did not go unnoticed by one person in particular:

    44 Comments | Leave a Comment..

    Posted on Techdirt - 29 August 2016 @ 3:23am

    Leaked EU Copyright Proposal A Complete Mess: Want To Tax Google To Prop Up Failing Publishers

    from the that's-not-the-role-of-copyright dept

    Well, here we go again with the bad EU copyright proposals. Just a few days ago, Mozilla actually launched a petition to call on the EU to update its copyright laws for the 21st century, to make it "so we can tinker, create, share, and learn on the internet." Apparently the EU's answer to this is "Fuck You!"

    According to a leaked draft of the EU Commission's plan to "modernize" copyright, the plan really seems focused on coming up with new ways to tax successful internet companies, like Google, to prop up other companies and industries that have failed to adapt. Apparently, the EU Commission thinks that copyright should be a tool to punish innovation and to reward those who have refused to innovate.

    The leaked draft talks repeatedly about this silly idea of a "value gap." Just a few weeks ago we discussed why the "value gap" is a misleading talking point. It's being used by companies that didn't innovate to try to guarantee a business model, with that model being "have the government force successful companies to subsidize us, because we didn't adapt to the current market." And this draft is full of that kind of thinking.

    The draft also continues to weigh "the impact" of various proposals on different stake holders. For example, it notes whether different proposals will have a "positive, neutral, or negative" impact on rightsholders, internet services, consumers and "fundamental rights." While it's nice that they include the "fundamental rights" (and the public -- who, it should be noted, are more than just "consumers") it feels like they're trying to set up proposals again that are sort of "balancing" all of these interests, rather than finding the one that maximizes overall utility. In fact, it's quite troubling that they seem to think that anything that directly expands copyright automatically benefits "rightsholders." We've seen how that's not true at all. Greater freedom to remix, reuse and build on the works of others allow everyday people to become creators themselves more easily. And saddling internet platforms also harms many, many content creators who are only able to create, publicize, distribute, connect and monetize because of these new platforms. But the draft doesn't seem to take much of that into account -- or sort of hand-waves it away.

    Even the way the draft describes "problems" show that it's biased at looking for ways to prop up old industries:

    In particular intervention at EU level is expected, because of its scale, to strengthen publishers bargaining powers in a more effective way than it has happened under national measures such as the "ancillary rights" adopted in DE and ES, where major online service providers either closed down their news aggregation services (ES) or concluded free licences for the use of publishers' content (DE) which did not generate any remuneration for publishers so far. Moreover the related right granted to press publishers under this option would be different from the ES law insofar as it would be an exclusive right and not an unwaivable compensation: this would leave news publishers a greater margin for manoeuvre to negotiate different types of agreements with service providers and is therefore expected to be more effective for them in the long run (notably as it will allow press publishers to develop new business models in a flexible way).
    Basically, so much is looking at how can we prop up newspaper businesses by basically forcing Google to pay them to link to them. Even more ridiculously, the report says that basically pushing Google to pay to link to news will "benefit consumers" because it will mean more "high quality" news. That seems like a dubious assumption.
    Consumers reap considerable benefits from news aggregators and social media news providers. At the same time they also benefit from high quality newspaper content feeding these channels of consumption. By fostering the production of high quality news content, this option is expected to have a positive impact on consumers. Better market conditions for the news publishing industry could give rise to the development of innovative offers for the digital distribution of news content, with larger catalogues and more choice. Digital subscription of newspapers and magazines are expected to be further developed, which will be particularly beneficial to consumers given the decline of print products.
    That seems like the EU Commission is only thinking a single step out, and not any further about how business models may develop. Doing this will also lock in Google as the dominant player and not allow newer, better, more innovative startups to enter the market without first having to raise significant amounts of capital. The report notes that consumer groups disagree with the assumption that consumers will benefit under such a plan, but the entirety of the Commissions reason for this is "well, this is different from the Spanish law that made Google News shut down."

    All in all, this looks like (unfortunately typical for Europe) plan written by bureaucrats looking to basically minimize the number of people who are upset, rather than creating the best actual overall plan. As a result, the proposals look to be a mess, that will almost certainly harm innovation and creativity in Europe.

    Read More | 28 Comments | Leave a Comment..

    Posted on Techdirt - 26 August 2016 @ 7:39pm

    If You're Learning About It From Slate, Running Your Own Email Server Is A Horrendously Bad Idea

    from the don't-do-this dept

    So, Slate has a weird article by Nat Meysenburg suggesting that everyday people should run their own email servers. He admits up front that he doesn't think Hillary Clinton should have run her own email server, but for lots of other people he declares it to be "a good idea."

    For years, I’ve been trying to convince people that there is value in having an email server in your closet. But few seemed to really get it, so I often found myself wishing for a high-profile example to illustrate why it is a good idea. That wish has, in a way, come true: The casual news consumer has had the pleasure of hearing about a “private email server” quite a lot over the past year.
    Except, beyond that, he's basically wrong. Yes, if you're really technologically savvy and want to do it, you can absolutely run your own email server. Though, honestly, it's probably going to be kind of a pain, because you'll need to constantly be patching it and protecting it, and even then it will probably be significantly less secure than if you use an online provider. Meysenberg is right on only one point, barely, and it's that if you run your own email server, and the government wants to get access to it, at least you'll know about it:
    When your emails reside on a cloud provider’s server, the owners of that server are ultimately who decide when to let the government, or any other party, access those emails. In the case of your work’s server, those choices are made by your employer. In the case of Gmail (or any other cloud provider), this choice is typically made by the company’s legal team, based on its evaluation of the government’s demands. Most of the big companies, including Google, do have a policy of notifying users about demands before they hand over the requested data, which would give you an opportunity to assert your rights in court. However, there are many cases in which the government’s demand will be accompanied by a gag order forbidding the company from providing that notice.
    And, thus, he notes:
    Having a private server in your home side steps these uncertainties. At home you as a private individual have the ability determine who has access to your email inbox—just like you have a right to determine who has access to that box of old love letters from high school. By owning the server, all requests for data have to go through you (and/or your lawyers), and any confiscation of the physical hard drives on which your emails are stored requires a search warrant for your home. And unlike with email stored in the cloud, it will always be obvious if and when the police seize your email server.
    But, of course, none of that stops the government from getting your server if they want it... it's just that in this one case you'll know about it.

    And for what tradeoff? Well, there are some pretty big ones. If you're not particularly skilled and experienced with online security issues, your personal email server is almost certainly significantly less secure than the big companies that have strong security teams and are constantly making it stronger and on the lookout for attacks. If you're that good, you're not learning about the issue of hosting your own email server for the first time in... Slate.

    The article insists that it's a myth that running your own server is a security nightmare, but I've yet to see an online security expert who agrees with that even remotely. Even the comments to the Slate piece are filled with IT folks screaming about what a bad idea this is.

    In the end, this seems to be an issue of tradeoffs and skills. If you're quite skilled with online security and you think the government might want secret access to your email, then maybe in some limited cases, it might make more sense for you to run your own server -- though, even then you're exposing yourself to being hacked by the government too, because, you know, they do that kind of thing also in some cases. Otherwise, you're almost certainly opening yourself up to a home IT nightmare and a lot more trouble than it's worth for significantly less security.

    In short, even if you're not Hillary Clinton, running your own email server is a bad idea. And if you're just now getting the idea from Slate... then it's a really bad idea.

    45 Comments | Leave a Comment..

    Posted on The Entrepreneur's Corner - 26 August 2016 @ 4:29pm

    Administration Creates A Hack For A Entrepreneur's Immigration Visa

    from the innovation-for-innovation dept

    For many, many years we've talked about why the US should have an entrepreneur's visa to let in smart entrepreneurs who are able to build companies and create jobs in the US, rather than kicking out the very people who are helping to build out the US economy. However, because immigration is such a touchy issue, attempts to do so via Congress have gone nowhere. And while we've had some concerns about the actual implementation (in particular the focus on requiring the entrepreneurs to raise a fair amount of venture capital), the general concept is a good one.

    Late on Friday, it appears that the White House effectively worked out a way to create a startup entrepreneur's visa on its own, without going through Congress. The US Citizenship and Immigration Services announced a plan to expand the "parole" powers it already has to international entrepreneurs, allowing them to stay in the country while building a company:

    The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.
    Homeland Security would review each request on a case-by-case basis, but would require the following rules:
    • Who have a significant ownership interest in the startup (at least 15 percent) and have  an active and central role to its operations;
    • Whose startup was formed in the United States within the past three years; and
    • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
      • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
      • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
      • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
    This does seem better than some of the earlier proposals, which included requirements after receiving the visa to have to raise upwards of $1 million from investors. We were worried that this would basically force entrepreneurs to take money from VCs when they might not otherwise need to. This parole system still has raising money as a criteria, but the amount is significantly lower and DHS also has the flexibility to still grant the parole without the investment if there is "other reliable and compelling evidence of the startup entity's substantial potential for rapid growth and job creation."

    It does still feel a bit arbitrary, but overall this is definitely a good step for entrepreneurship in the US.

    Read More | 11 Comments | Leave a Comment..

    Posted on Techdirt - 26 August 2016 @ 2:43pm

    France Passes Copyright Law Demanding Royalties For Every Image Search Engines Index Online

    from the that'll-work-out-just-fine dept

    The Disruptive Competition Project is detailing yet another bad copyright law change in Europe -- France, in particular, this time. Called the Freedom of Creation Act, it actually passed a few months ago, but people are just beginning to understand and comprehend the full horror of what's happening. Basically, it will now require any site that indexes images on the internet (i.e., any image search engine) to pay royalties for each image to a collection society.

    How would this work? When an image is published online, the reproduction right and the right of communication to the public of this image shall be transferred to one or more collecting societies appointed by the French government. Online communication services “reproducing and communicating to the public images for search and indexing purposes” shall have to obtain a license from those collecting societies to index images legally. The license fee will either be based on the revenue accruing from the exploitation of the service or be a lump sum fee.
    Of course, this makes no sense. In the US, thankfully, multiple cases on things like Google Images have found that indexing the images and showing thumbnails is clearly fair use. But that's not how it's going to work in France.

    This seems particularly pointless on any number of levels. First, image search engines aren't "publishing" any works, they're just indexing what's already online and showing people where those images are. Second, if people creating works don't want them indexed they can just use robots.txt. And, yes, someone else might post those images elsewhere, but that's no reason to blame and charge a search engine. But the bigger issue, honestly, is that it's hard to see how this sort of system actually helps content creators at all. Does anyone honestly believe that the money this collection society collects will go to the people who created the indexed images? Remember, copyright collection societies have a very long and very detailed history of abuse and corruption. They collect lots of money, but they're not so great about paying it back out. And, as the Disruptive Competition Project points out, this is particularly problematic in this case, where both jurisdictional questions and just basic logistics make it almost impossible for the collection society to accurately distribute funds:
    Moreover, the territorial scope of this measure is unclear. Are the rights of reproduction and communication to the public transferred to a collecting society when an image is published on a French website or on any website? Is the measure based on the nationality of the works? In practice, this measure may claim ownership of the billions of pictures uploaded everyday globally – even though the huge majority of those pictures are published today for personal use by the close-to-3-billion smartphones’ owners, not expecting any revenue. It is also worth noting that a sizable number of those pictures is published under a Creative Commons license that usually refuse remuneration in return, for example, for attribution. Therefore, this measure would override the choice made by users publishing under such a license – and more generally, would deprive rightsholders of the choice between licensing their pictures or not.

    Even worse, there is no realistic way for collecting societies to redistribute the revenues from the license fees accurately and fairly to billions of rightsholders all over the world. The relevant collecting societies won’t attempt to contact all French rightsholders (when close to 70% of French citizens above 15 years old have a smartphone!), let alone all global rightsholders. In practice, the money will be split between the relevant collecting societies and the few rightsholders affiliated to those societies, who – as we say in France – won the “Jackpot”.
    It will be worth following to see how this plays out. If France does follow through and a collection society actually goes after Google, it does make me wonder if Google might pull out the nuclear option yet again and shut down Google Images in France as it did with Google News in Spain, when the Spanish government passed a similar tax on news aggregation.

    Once again, like so many of these laws, this seems to not be so much about copyright as it is about taxing Google.

    65 Comments | Leave a Comment..

    Posted on Techdirt - 26 August 2016 @ 10:49am

    The FBI's Megaupload Domains Are Now Hosting Porn Ads

    from the well,-they-have-some-experience dept

    Well, we know the FBI is particularly adept at hosting porn on the internet. After all, just a few days ago it was revealed that in the short time it was running a child porn site as a honeypot, it actually made the site run much faster. But now Torrentfreak points us to the news that some other FBI sites are serving up porn as well, though mostly out of FBI incompetence, rather than competence. Apparently the domain the FBI was using for its nameservers for the domains it seized from Megaupload expired, and someone else snapped it up and redirected all the sites using those nameservers to advertisements basically for porn. So, the FBI is now essentially pointing people to porn via Megaupload.

    Here's the really amazing thing, though: this is not the first time this has happened. The same exact thing happened last year for Megaupload.com. And after Torrentfreak reported on that, the FBI removed the namerservers completely. But just for the .com. The rest of the Megaupload domains continued pointing to the same nameserver... and the domain for that nameserver expired again and has been snapped up by another company pushing porn sites.
    Now, the FBI apologists will argue that this is no big deal. Obviously, the FBI didn't do this on purpose. But it certainly does continue to raise questions about the FBI's competence on tech matters. Why the hell were they using nameservers that they either didn't control in the first place, or that were held by someone so incompetent that they were allowed to expire and be snapped up by someone else? Having nameserver domains expire is not a particularly common occurrence. Maybe it's time for the FBI to admit that seizing websites isn't exactly a core competence. Unless it's operating child porn websites. Then, apparently, it has super skills.

    19 Comments | Leave a Comment..

    Posted on Techdirt - 26 August 2016 @ 9:40am

    Newspaper Archive Disappears From Google, Because Company Wants To Cash In

    from the all-about-the-money dept

    Another day, another case of copyright being used to lock up information, rather than make it more accessible. In this case, it's the news archives of the Milwaukee Journal-Sentinel, according to an interesting piece by Henry Grabar over at Slate. A decade or so ago, the newspaper partnered with Google to digitize all of its archives and make them publicly accessible.

    The archive had initially been made available on Google around 2008 as part of the company’s effort to digitize historical newspapers. That project ended in 2011, but not before Google had scanned more than 60 million pages covering 250 years of history’s first drafts. Those newspapers have remained publicly accessible, and serve both professional historians and home genealogists.

    When the Milwaukee project began, Google used microfilms from the papers that had already been uploaded to the ProQuest research database. Because some things were missing from ProQuest, the Journal-Sentinel asked the Milwaukee Public Library to help out. The library let the company digitize decades of microfilms to bulk out the digital archives.

    The article notes that another company, named Newsbank, also has a deal with the Journal-Sentinel to digitize and archive its papers, and tried to get the Milwaukee Public Library to buy access to its database. The library found the offerings way too expensive (it was almost the entire amount of the library's materials budget). Newsbank decided that part of the problem was that the stuff was also available for free via Google, so it got the Journal-Sentinel to get Google to take down the archive that it had helped create, with help from the library.
    Then, in August, Newsbank let the other shoe drop: According to Urban Milwaukee, Gannett—which purchased the paper in April—asked the Journal-Sentinel to ask Google to remove the paper’s digital archives, which the company did. It’s harder to sell a product when it’s being given away for free, after all.
    So now the digital archive that the Milwaukee Public Library had helped Google and the Journal-Sentinel create, is no longer available, because another company wants the MPL to pay a significant percentage of its operating budget to access the same material.
    What’s different about Milwaukee is that the city is being asked to buy back something it already had—and, in the case of the library’s digital scans, had even helped build.
    The library has said that it plans to have the new archive available for people soon -- but it likely won't be free any more. Perhaps because it now needs to pay to get access to the same database it had helped create. Remember when copyright law was supposed to be about furthering knowledge and learning -- and not locking it up so that one company could extract all profit from it?

    28 Comments | Leave a Comment..

    Posted on Techdirt - 26 August 2016 @ 8:32am

    Former US Patent Office Director Freaked Out That Business Methods & Software Are Less Patentable Than Before

    from the chill-out,-david dept

    Bloomberg has an interesting article noting how the US Patent Office is (rightfully!) rejecting lots of software and business method patent applications these days, thanks to the Supreme Court's excellent ruling in the Alice case.

    Fewer than 5 percent of applications for business-method patents are getting approved by the patent office, according to data from law firm Kilpatrick Townsend & Stockton and LexisNexis PatentAdvisor. (A typical approval rate is 25 percent to 45 percent.) When asked how many business-method patents they’ve approved in the past year or two, patent examiners often say “the answer is zero,” according to Kate Gaudry, a Kilpatrick Townsend patent lawyer. “Some of them are saying, ‘My hands are tied.’ ” The number of business-method patent applications has fallen in half since 2014, as patent owners seek different classifications or give up altogether.
    Courts are doing similar work:
    Courts have invalidated more than 370 software patents under the new standard, according to data compiled by law firm Fenwick & West. District and appellate courts have thrown out two of three patents brought before them since Alice Corp. v. CLS Bank.
    Now, for those of us who were paying attention to what a mess things were before this is an undeniably good situation. Bad patent applications and bad patents are getting rejected. We don't need broad patents on software and business methods. Let people build stuff and compete in the marketplace. This is good for innovation.

    But, of course, if you're former US Patent and Trademark Office boss David Kappos -- who presided over a massive increase in patenting, which the Government Accountability Office recently noted was mainly due to basically no quality standards being used -- this is a bad thing. Perhaps he takes it personally that the current patent situation really puts an exclamation point on the fact that he helped usher in hundreds of thousands of anti-innovation weapons that could be used to shake down actual innovators. So he has to lash out at this change where you can't just willy nilly patent obvious software and business method ideas:
    He says the invalidation of patents is “out of control” and has “definitely gone too far,” citing a case awaiting an appellate ruling in which a patent has been invalidated for software enabling video game developers to more easily manipulate the movements of characters’ mouths to match dialogue. “Important software innovations that are highly technical are being deemed unpatentable,” Kappos says. “You can get software patents allowed in both China and Europe that aren’t allowable in the U.S. anymore.”
    So? That's actually a good thing for innovation. It means more people can build on and improve on that work and there can be more competition, which leads to more rapid innovation. Why is Kappos so against that? We're seeing amazing new innovations happening all the time and it's not because of patents. If Kappos got away from all the patent lawyers he spends his time with and spoke to actual engineers who are doing the innovating, he'd find they don't care about patents. They're excited about patents being rejected because it means they can focus on building cool and innovative stuff again.

    11 Comments | Leave a Comment..

    Posted on Techdirt - 26 August 2016 @ 6:33am

    Certificate Authority Gave Out Certs For GitHub To Someone Who Just Had A GitHub Account

    from the oops dept

    For many years now, we've talked about the many different problems today's web security system has based on the model of security certificates issued by Certificate Authorities. All you need is a bad Certificate Authority to be trusted and a lot of bad stuff can happen. And it appears we've got yet another example.

    A message on Mozilla's security policy mailing list notes that a free certificate authority named WoSign appeared to be doing some pretty bad stuff, including handing out certificates for a base domain if someone merely had control over a subdomain. This was discovered by accident, but then tested on GitHub... and it worked.

    In June 2015, an applicant found a problem with WoSign's free certificate service, which allowed them to get a certificate for the base domain if they were able to prove control of a subdomain.

    The reporter proved the problem in two ways. They accidentally discovered it when trying to get a certificate for med.ucf.edu and mistakenly also applied for www.ucf.edu, which was approved. They then confirmed the problem by using their control of theiraccount.github.com/theiraccount.github.io to get a cert for github.com, github.io, and www.github.io.

    They reported this to WoSign, giving only the Github certificate as an example. That cert was revoked and the vulnerability was fixed. However recently, they got in touch with Google to note that the ucf.edu cert still had not been revoked almost a year later.
    As you can imagine, this should be a cause for quite some concern:
    The lack of revocation of the ucf.edu certificate (still unrevoked at time of writing, although it may have been by time of posting) strongly suggests that WoSign either did not or could not search their issuance databases for other occurrences of the same problem. Mozilla considers such a search a basic part of the response to disclosure of a vulnerability which causes misissuance, and expects CAs to keep records detailed enough to make it possible.
    Mozilla also noted that WoSign never informed it of the earlier misissuance either. This is a pretty big mistake. The Mozilla post also calls out some questionable activity by WoSign in backdating certificates, but this first point is the really troubling one.

    I recognize that until a better system is found, certificate authorities issuing certificates is about all we have right now for web security -- but, once again, it really seems like we need to be moving to a better solution.

    10 Comments | Leave a Comment..

    Posted on Techdirt - 25 August 2016 @ 4:05pm

    Team Prenda Done Fighting Judge Otis Wright

    from the govern-yourself-accordingly dept

    Well, one of the big Prenda cases may finally be over. As you may recall, the first truly scathing legal ruling against Team Prenda came a little over three years ago when Judge Otis Wright basically lit Team Prenda on fire. If you haven't read that whole decision in a while, it's still a thing of beauty. Here's just one paragraph:

    Plaintiffs have demonstrated their willingness to deceive not just this Court, but other courts where they have appeared. Plaintiffs’ representations about their operations, relationships, and financial interests have varied from feigned ignorance to misstatements to outright lies. But this deception was calculated so that the Court would grant Plaintiffs’ early-discovery requests, thereby allowing Plaintiffs to identify defendants and exact settlement proceeds from them. With these granted requests, Plaintiffs borrow the authority of the Court to pressure settlement.
    Since this was their first really major loss in court, Team Prenda still brashly insisted they would prevail on appeal, and that Judge Wright's ruling would not last. At the time Prenda mastermind John Steele even insisted that this was the only time that they had lost:
    But very few people can argue that these [sanctions] are allowed, legally. The overwhelming majority of courts have found in our favor in hearings. The only cases that stand out are Judge Wright.
    Of course, since then, court after court after court after court after court has ruled against Steele (there are more, I just got tired of finding them all). And, of course, Steele is facing discipline from the Illinois Attorney Discipline Board and, quite possibly, criminal trials (where the investigation likely began following Judge Wright's ruling, which passed along the info to law enforcement).

    In the midst of all of this, Steele's big appeal of Wright's ruling, that he was so sure about, fell flat on its face back in June. For all of Steele's talk about how Wright was totally off base and there was no basis for sanctions, the 9th Circuit didn't buy it at all.
    The district court did not abuse its discretion in ordering the Prenda Principals to post additional bond to cover Doe’s attorney’s fees on appeal. The district court had ample reason to do so. The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders. They have lied to other courts about their ability to pay sanctions.... They also failed to pay their own attorney’s fees in this case. Considering the Prenda Principals’ tactics throughout this case, it was not an abuse of discretion to increase the bond amount to cover the projected cost of attorney’s fees on appeal.
    Given all that, the case went back down to Judge Wright and, finally, it appears that this case is really over. Earlier this week, Judge Wright basically closed out the case after Steele and Hansmeier* agreed to settle rather than try to fight on, with the insurance company that had originally secured the bond they needed to get to cover the possible sanctions, SureTec, agreeing to pay out the money. (*Well, not really Hansmeier -- since he filed bankruptcy, the bankruptcy trustee handled it for him instead).
    Doe, Steele, and Hansmeier filed a stipulation and proposed order with the Ninth Circuit seeking to settle all issues that were the subject of the appeal, the relevant terms of which are as follows: (1) Doe shall be paid a total amount of $132,393.75, which consists of the original $81,319.72 sanction, $278.73 in interest, and $50,795.30 in costs and fees incurred on appeal; (2) Doe will move this Court for summary adjudication of SureTec’s obligation on the bonds in the amount of $132,393.75, which Steele and Hansmeier agree not to oppose; and (3) Doe, Steele, and Hansmeier agree not to file any further motions, appeals, or petitions for writ of certiorari on the issues adjudicated on appeal.
    Judge Wright accepts the agreement and the case is basically, finally, over.

    Read More | 25 Comments | Leave a Comment..

    Posted on Techdirt - 25 August 2016 @ 2:31pm

    Uber & Lyft As An Extension Of... Or Replacement For... Public Transit

    from the well-that's-interesting dept

    Lyft just announced an interesting partnership with MARTA, the Metropolitan Atlanta Rapid Transit Authority to basically help get more people to and from MARTA stations. It's an interesting approach to try to help make public transit more convenient:

    Partnering with transit agencies like MARTA is a core part of our vision to build a sustainable transportation network. By helping fill the first and last miles between a passenger’s home and a MARTA station, we’re making it easier than ever to ride transit. We believe that when transit is within reach of everyone, our cities are more liveable, connected, and prosperous.
    Of course, it's not entirely clear what's really involved in the "partnership" beyond marketing. Yes, Lyft is offering discount vouchers, but only for 10 rides. And you could already use Lyft or Uber to do this without the partnership.

    Where this potentially gets more interesting is the decision of Dublin, California, to look to Lyft and Uber as a substitute for public transportation by subsidizing rides via those companies instead of taking a bus.
    In a first for California, a public transit agency next month plans to begin subsidizing fares of people who take private Uber and Lyft cars to local destinations rather than riding the bus.

    Passengers ordering Uber or Lyft car trips within two test areas of Dublin will be eligible to get door-to-destination service at a big discount under a partnership between the ride-hailing companies and the Wheels public bus system in Dublin, Alameda and Pleasanton.
    The local transit authority is even suggesting that this might change the way they set up routes and serve certain communities. In fact, they've already killed off one (little used) bus route, suggesting that this new partnership can help replace that route more efficiently.

    I can see why this might annoy some people -- and certainly those who don't trust big private companies like Uber and Lyft are going to complain. Similarly the bus driver's union rep is apparently pissed off. But this is still a really interesting experiment. If it allows municipalities to truly offer better, more efficient transportation and it's cheaper overall, then is it really a problem that some companies might also make some profits from it? It will be interesting to see how this experiment in Dublin works out and if other cities follow suit. And it seems like a much better idea than what's happening in Massachusetts, where the government has instituted a special tax on Lyft and Uber... and giving that money to the taxi companies who didn't innovate.

    13 Comments | Leave a Comment..

    Posted on Techdirt - 25 August 2016 @ 1:04pm

    Techdirt Reading List: Knowledge And The Wealth Of Nations: A Story Of Economic Discovery

    from the the-economics-of-information dept

    We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

    Okay, this is one of my absolute favorite books for understanding economics -- and especially the economics of information. Have you ever read a book where you keep finding yourself excited because you've discovered that other people had independently worked out a bunch of the ideas that had been sifting through your brain? That's what Knowledge and the Wealth of Nations: A Story of Economic Discovery by David Warsh was for me. It almost made me giddy, because I had just been working through my own mental model for the economics of abundance, and then I discovered that some pretty well known economists had been sorting the same things out themselves. It was exciting.

    The book is really well written too. Most of the first half is a fun look at historical economists (going beyond just the economics of information and growth, but using that as a sort of central theme). And then the rest focuses on the work of the economist Paul Romer, who basically brought things around in a very useful way when it comes to the economics of information. Actually, one of the things that bothered/stunned me a little was that this work had been done so recently. As I had been sorting through it, I kept thinking back to applying work from much earlier economists, without realizing that it was still considered such a challenging issue. A key point in the book is understanding how information is the key to economic growth, and in particular, the fact that information itself is abundant, rather than scarce. It's that abundance, and the ability to spread it, that creates new ideas, better efficiency, more growth and a better overall world. Before all that, many economists had actually been confused as to why some economies grew, and others didn't -- and they were equally confused about the role of technology in enabling economic growth. This book lays out a lot of points around this in a really useful manner. I reread it every few years and recommend it highly.

    Leave a Comment..

    Posted on Techdirt - 25 August 2016 @ 12:00pm

    Apple Updates iOS To Close Three Separate 0days That Were Being Exploited

    from the throw-away-your-phone dept

    As you may have heard, if you have an iOS device (iPhone, iPad, even iPod Touch) you should be updating your devices, like a few hours ago. Seriously, if you haven't done it yet, stop reading and go update. The story behind this update is quite incredible, and is detailed in a great article over at Motherboard by Lorenzo Franceschi-Bicchierai. Basically after someone (most likely a gov't) targeted Ahmed Mansoor, a human rights activist in the United Arab Emirates with a slightly questionable text (urging him to click on a link to get info about prison torture), a team of folks from Citizen Lab (who have exposed lots of questionable malware) and Lookout (anti-malware company) got to work on the text and figured out what it did. And, basically the short version is that the single click exploits three separate 0days vulnerabilities to effectively take over your phone in secret. All of it. It secretly jailbreaks the phone without you knowing it and then accesses basically everything.

    “It basically steals all the information on your phone, it intercepts every call, it intercepts every text message, it steals all the emails, the contacts, the FaceTime calls. It also basically backdoors every communications mechanism you have on the phone,” Murray explained. “It steals all the information in the Gmail app, all the Facebook messages, all the Facebook information, your Facebook contacts, everything from Skype, WhatsApp, Viber, WeChat, Telegram—you name it.”
    So that's great.

    The researches believe they've tracked back the exploit to a secretive hacking company called NSO Group. The full Citizen Lab writeup on all of this is quite fascinating as well. They estimate that this exploit from NSO probably costs in the range of a million dollars on the market, though obviously it's closed now. That doesn't mean that NSO or others don't have other exploits up their sleeves.

    The report also notes that this kind of exploit is probably just used by nation states right now, but there's nothing to say that it couldn't move down the stack before too long, letting all sorts of mischievous characters look to basically completely pwn your phone. Pretty scary stuff, and yet another reminder of why it's so dangerous that folks like the NSA are hoarding 0days, rather than revealing them, and that the FBI is trying to force tech companies to break encryption and other tools that are necessary to block these kinds of attacks.

    18 Comments | Leave a Comment..

    Posted on Techdirt - 25 August 2016 @ 9:44am

    If You're Angry About Twitter Banning Someone 'Permanently' For Sharing Olympics GIFs, Blame Copyright Law

    from the bad-law-creates-bad-ideas dept

    Over on LinkedIn a guy named Jim Weber wrote about how he was banned permanently from Twitter because he shared a few GIFs from the Olympics.

    It all started when I saw a GIF of her sublime first pass on the floor routine two weeks ago on the front page of Reddit. Wanting to share what an awesome moment this was, I downloaded the GIF and uploaded it to Twitter with these four words: "Aly Raisman: She's good."

    [To be fully transparent, I also tweeted GIFs of this awesome Japanese wrestler celebrating with her coach and this incredible Perfect 10 by a Chinese diver during the games.]

    I had read that the IOC was banning the press from using GIFs but I didn't see how that applied to me. Sure, I didn't have the rights to any footage at the Olympics — just like countless blogs and users don't have rights to the NFL, NBA, MLB, NHL and NCAA footage that they create GIFs out of and profit from every day.

    Weber notes that he figured the worst that would happen is that those tweets would get taken down. Instead, his account was banned. Permanently (though, as it turned out later, not really).
    The story has gone pretty viral (on Twitter, naturally), with lots of people expressing anger at Twitter. It also appears that soon after the story started spreading, Twitter actually changed its mind and put back his account.

    Here's the thing, though: if you want to get upset about this, don't get upset at Twitter. Get furious at parts of the DMCA and how some courts have interpreted it lately (and the International Olympic Committee -- it almost always deserves the anger that is pointed in its direction for its extreme protectionist/copyright policies). But remember, not too long ago, the ISP Cox lost big time in an important DMCA case, at the key issue that swayed the judge was the lack of a competent "repeat infringer policy." And what was one of the key things in that case? The fact that Cox didn't permanently ban people.

    So if you're the legal team at Twitter, and you're keeping up on the caselaw, you better believe that you're going to make sure that you have a serious "repeat infringer policy" that kicks people off permanently for sharing a few pieces of copyright-covered material. Because even as basically everyone is saying "what? you shouldn't lose your account permanently for sharing a few happy gifs from the Olympics," in court it would be spun as "Twitter has a history of failing to reasonably implement a repeat infringer policy, as required by the DMCA in Section 512(i)(1)(A)." And if the Olympics or whoever gets a judge like the one in the Cox case, who doesn't seem to care much about whether people use the internet or not, Twitter might just lose.

    Yes, Twitter probably could have handled this a lot better, but if you want to get angry, get angry that copyright law is so fucked up these days.

    Oh, also, this is a decent reminder to be at least somewhat careful about relying too much on anyone's platform. Weber claims to recognize that...
    Not only do I not plan to start a new Twitter account, I'm hesitant to post anything to social media platforms such as Facebook, Instagram or Snapchat with the knowledge that they can and will permanently shut down your account with the snap of their fingers.
    ... except his post about all of this is published on LinkedIn, which is really no different than any of the other social media platforms he listed above. So there's a bit of irony in declaring that he's hesitant to post on social media platforms... on a social media platform.

    18 Comments | Leave a Comment..

    Posted on Techdirt - 25 August 2016 @ 8:41am

    Lawyer Sues Basically All Mainstream Media For RICO Violations For How They Report On Donald Trump

    from the yeah,-that's-not-going-to-work dept

    If you do a Google search on Roy Den Hollander, as I just did, you may discover that basically every result is a story about some absolutely ridiculous lawsuit he has filed. There was the time he sued a nightclub claiming that requiring him to buy a $350 bottle of vodka was a human rights violation. Or the time he sued a bunch of night clubs for violating the 14th Amendment by having "Ladies' Nights." Or the time he sued Columbia University for offering women's studies courses. Or the time he wanted to file a lawsuit to force women to register for the draft. And these are all stories from just the first page of Google results (or following links from those stories). But, you get the idea.

    And now he's back with a new lawsuit. He's basically suing the entire mainstream media claiming that how they report on Donald Trump is a RICO violation. No, really.

    This is an action against the above named defendant news reporters and commentators (“Reporters”) for violating the civil Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et al., (“RICO”) by repeatedly committing the racketeering activity of wire fraud, 18 U.S.C. § 1343, when they (1) create and cause to be broadcast and disseminated false and misleading news reports concerning the Donald J. Trump candidacy for President of the United States (“Trump Candidacy”); (2) provide commentary based on a false set of facts or fail to reveal the alleged factual basis for the assertion of their judgments; and (3) lobby on various news-talk shows in furtherance of their opposition to the Trump Candidacy.
    And to think, I'd been looking for an opportunity to point people to Ken "Popehat" White's Lawsplainer entitled IT'S NOT RICO, DAMMIT:
    Would it be RICO if . . .


    via GIPHY

    . . . .


    But how do you know? I haven't even described the case yet.

    It's never RICO!

    I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.

    But it's an important case! And the facts are terrible! This defendant did really bad things.

    That's not what RICO means. RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.

    RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.
    There's more at that link. You should read it if you ever wonder if a case is a RICO case.

    The lawsuit prattles on and on, but it's not RICO. And, of course, it's not going anywhere, because of the First Amendment. And, honestly, the court might as well just say "No, go away" and point to the First Amendment, but instead will be forced to waste it's time in writing up a more comprehensive explanation for why the media reporting, no matter how much you disagree with it, is not breaking the law.

    Read More | 41 Comments | Leave a Comment..

    Posted on Techdirt - 24 August 2016 @ 11:45am

    Nice Officials Say They'll Sue Internet Users Who Share Photos Of French Fashion Police Fining Women In Burkinis

    from the liberte! dept

    Over the last few weeks there's been plenty of controversy over plans on the Côte d’Azur in the south of France to ban burkinis -- a kind of full body bathing suit favored by some Muslim women. As the Guardian pointed out recently, the whole thing seems like a "bizarre inversion" of Muslim countries where making sure women are covered is enforced:

    The burkini row may seem banal, and to some a surreal inversion of laws in Islamic countries, but it has become yet another flame in the murderous tinderbox of Islamism in France, invoking issues of control over the body, religious freedom, racism, provocation, terrorism, Islam and Islamophobia, republicanism and what the French call laïcité. Lïïcité is the hardest for people outside France to understand: our words “laity” and “secularism” fail to express the depth of allergy to all things theocratic, which is endemic to French societal fabric since the revolution.
    Others are pointing out the absurdities when compared to what's allowed. I've seen several versions of this, but this one is my favorite:
    Either way, the story blew up again last night as the Daily Mail reported on actual instances of women on a beach in Nice being forced to remove clothing and pay fines. While the Daily Mail is not particularly trustworthy on news, a number of other publications have now confirmed the story as well, and pictures are floating around on social media of police forcing women to remove clothing, including one where it's pretty clearly not a burkini at all, but just a large shirt or muumuu of some sort.
    This seems pretty ridiculous on all sorts of levels, but never think things are so ridiculous that some politicians can't make them worse. Guillaume Champeau from the excellent French site Numerama alerts me to the news that the deputy mayor of Nice, Christian Estrosi is threatening to sue those who share these images over social media. Yup, France, a country that claims to pride itself on freedom is not just telling women that they can't cover themselves up too much on the beach, but that it's also illegal to report on the police following through on that. Here's is the awkward Google translation of the French report:
    Christian Estrosi ... has published a press release by the city of Nice, to announce that he would file a complaint against those who would broadcast pictures of municipal police verbalize women guilty of exercising what they believed to be their freedom to dress from head to feet on the beaches.

    " Photos showing municipal police of Nice in the exercise of their functions have been circulating this morning on social networks and raise defamation and threats against these agents ," the statement said.
    Wait. Showing accurate photos creates defamation against the police? How's that work? Estrosi apparently says that legal actions have already been filed, though Numerama was unable to confirm any legal actions as yet. The article also notes that despite Estrosi implying otherwise, police do not have any sort of special protections that say they cannot be photographed while in public.

    Either way, it's not clear what this kind of move will accomplish other than making France appear intolerant and petty towards all sorts of freedoms, including religious freedoms and freedom of speech.

    132 Comments | Leave a Comment..

    More posts from Mike Masnick >>