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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.

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Posted on Techdirt - 24 August 2016 @ 9:30am

Copyright Group, In Arguing Against FCC's Set Top Box Proposal, Appears To Argue That VCRs & DVRs Are Also Illegal

from the that's-not-how-it-works dept

Earlier this month, we wrote about how the Copyright Officer had filed a really bizarre and legally dubious comment with the FCC concerning the FCC's plan to open up competition in TV set top boxes, ending cable company's monopoly on those boxes (for which they bring in $21 billion in revenue per year). The FCC's plan was pretty straightforward -- and the cable companies have attacked it on all sides, with the one argument that seems to be sticking is that this plan is somehow an affront to copyright, and would result in piracy. This is blatantly, factually incorrect. The FCC's plan makes it clear that any system would retain existing technology protection measures against piracy (for better or for worse). If this new system resulted in infringement, it would because there's infringement on the internet already, not because of these new rules.

The Copyright Office's comment was ridiculous on multiple levels, but the worst was the basic argument that private agreements between cable providers and content providers could somehow limit or erase the fair use rights of the public. Yet that's exactly what the Copyright Office argued:

"The Office's principal reservation is that, as currently proposed, the rule could interfere with copyright owners' rights to license their works as provided by copyright law, and restrict their ability to impose reasonable conditions on the use of these works through the private negotiations that are the hallmark of the vibrant and dynamic MPVD marketplace."
This simply incorrect interpretation of the law raised some pretty serious questions, with Public Knowledge going so far as to note a somewhat disturbing pattern of the Copyright Office acting like a lobbying arm for Hollywood, rather than an impartial organization bound by what's in the actual law.

Following up on all of this, one of the many legacy entertainment industry lobbying groups, the Copyright Alliance has released its own letter to the FCC basically repeating what the Copyright Office claimed. It also put out a blog post about the letter... but really the blog post seemed to be an attempt to attack Public Knowledge for its comments about the Copyright Office.

The Copyright Alliance's letter is basically exactly what you'd expect, rehashing the already debunked claims about how the FCC's plans will cause copyright problems, but the Copyright Alliance seems to take it one step further, arguing, ridiculously, that anything that copyright holders don't like is obviously against the law. Read the following quite carefully:
As noted by the Copyright Office, copyright law is predicated on the theory that creators are incentivized to create new works by the prospect of reaping the economic fruits of their creative labor, which in turn benefits the public by increasing the number of creative works available for their enjoyment. This economic rationale behind copyright protection has been repeatedly confirmed by the Supreme Court. The Copyright Act creates these incentives by granting copyright owners a bundle of exclusive rights in their works, which they can assign and/or license to third parties in their discretion. The detailed contractual arrangements governing the release of copyrighted works into the commercial marketplace are what enable copyright owners to realize the full value of their works. The FCC’s Proposal undermines this licensing structure by forcing MVPDs to deliver copyrighted content—including all content the MVPDs license from programmers and other content creators—to unlicensed third parties, without the authorization of those copyright holders, while offering no mechanism to ensure that the detailed license arrangements between MVPDs and programmers/copyright owners are respected. Therefore, the Register is correct in her observation that the Proposal threatens to harm copyright owners by encroaching on their exclusive prerogatives to both exercise and license their rights to reproduce, distribute, display, and perform their creative works, as well as by undermining their ability to earn a return on their investment in those works.
Except, if what I've bolded above is actually copyright law, then the VCR, the DVR, the MP3 player, photocopiers and much of the very internet itself are inherently against copyright law. But that's not what courts have found. If you look at the classic Betamax lawsuit, it made it abundantly clear that even when there were license agreements between content providers and TV stations that end users could absolutely record and watch content via an "unlicensed" device, known as the VCR. This just takes the Copyright Office's ridiculous assertion that copyright holders and ISPs can somehow write fair use out of their agreements for end users, and takes it even further to effectively write the Betamax ruling out of existence and set up a framework that says there can be no fair use in new consumer electronics.

That's both wrong and crazy. And, yes, I know that the former Copyright Office boss Ralph Oman has argued that all technology should be considered infringing until Congress says it's okay, but that's not the actual law, and it's incredibly dishonest to suggest it's the case.

Here's the important thing that the Copyright Office and the Copyright Alliance don't seem to understand (or are willfully ignoring). This content is already licensed. The only people who will get access to it are those who have a legitimate right to access the content from their cable providers. In other words, everything is licensed. There is no "harm" at all. The only issue is that the content can be accessed (by the paying subscribers!) via alternative hardware (which might add some more features, but which will still have the same copy protection). But nothing in this creates any problems for the content creators, because the overall setup is the same. They have licensed the work. The hardware alternatives that may arise may include some additional features, such as recording and such, but that's well within their legal rights under fair use. The complaint here seems to just be that the Copyright Alliance and the Copyright Office don't like fair use and don't want the Betamax standard to exist any more.

The Copyright Alliance and its funders in the entertainment industry may wish that the VCR were never made legal (even though it was a device that basically saved Hollywood by bringing in massive new markets and revenue streams), but they don't get to rewrite history and pretend it doesn't exist.

It's this kind of crap that is so annoying about these groups like the Copyright Alliance. They are flat out misrepresenting reality.

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Posted on Techdirt - 24 August 2016 @ 8:31am

Tempting Fate: Pittsburgh Election Officials Insist Their E-Voting Machines Can't Be Hacked

from the fire-everyone dept

Let's face facts: if you have an electronic voting machine it can be hacked. Anyone who claims any piece of technology or computer equipment is "unhackable" is a fool and should not be in a position to determine the security of such equipment. Electronic voting machines have a very long tradition of having absolutely horrible security and being easily hacked. It's why it's so important that people understand just how vulnerable these things are, not just because they can be hacked, but the poor security practices around them will lead many people to distrust the results of any election, even if all the votes were actually counted.

You know what doesn't help? Having election officials declare their e-voting machines unhackable. And yet that's exactly what officials in Pennsylvania's Allegheny County (think: Pittsburgh) have done.

Starting in the next few weeks and running past Election Day, the machines will undergo tests to ensure they are recording votes properly, that they have not been hacked and that they cannot be tampered with, said Mark Wolosik, longtime manager of the Allegheny County Elections Division. Each test is designed to check a potential breach in the system.

“The voting public can feel confident,” Wolosik said. “Everything is tested extensively before the election, after election and on Election Day.”

Election officials in Allegheny and Westmoreland counties said they are confident their electronic voting systems are immune from hackers or malware that could alter election results.

“In my experience, there is no way to compromise these election systems,” said Dave Ridilla, head of Westmoreland County's computer information department.
That doesn't make me feel more confident. It makes me question the competence of those officials. Any such hardware can be hacked. Saying it can't means that you're just not understanding the threats you face, and that's more problematic. There are things that people can do to minimize the risks, and hopefully that's what's happening here, but giving a flat out "there is no way" statement is ridiculous on its face and is almost screaming out to have that statement mocked when the equipment is actually hacked.

The machines being used do not appear to have open source software that people can examine, and they don't have a paper backup, so if votes are tampered with there's really no clear way to know for sure. That's especially problematic. Yes, people may have done a good job securing the machines, but saying they can't be hacked is not just wrong, but it calls into question the competence of the people securing the machines.

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Posted on Techdirt - 23 August 2016 @ 10:30pm

Little Tree Air Freshener Company Sues Non-Profit For Making Tree Shaped Ornaments

from the who-owns-the-trees dept

You know those stupid and annoying "tree shaped" car air fresheners you see every damn where? Of course you do. The company behind those "Little Trees" is called Car-Freshner Corporation, and it's notoriously overprotective of whatever trademark it thinks it has. Way back in 2009, we wrote about the company and an absolutely ridiculous ad it had taken out in Photoshop User Magazine:

At the time, we noted how odd it was to take out a full page ad warning people against supposed trademark infringement, and over-claiming its own rights at the same time (e.g., "no matter how you use it."). So it comes as little surprise that Car-Freshener corporation is a bit of a trademark bully in court. Though, perhaps it's met its match -- and it may result in it losing some trademarks.

Trademark lawyer Marty Schwimmer, who runs the excellent Trademark Blog, is representing a non-profit organization, Sun Cedar, that has been sued by Car-Freshener for daring to create tree-shaped blocks of wood (cedar!) that smell good. The answers and counterclaims from Sun Cedar is worth the read in full, but we'll hit a few high points here. Sun Cedar is not just a non-profit, but an organization that tries to train and to employ "at risk" individuals, including those who are homeless, ex-felons and substance abusers to help them get back on their feet. The organization creates objects out of wood, including tree shaped ornaments. It even ran a very successful Kickstarter project last year.

So, yeah, both organizations make tree shaped objects that smell nice. But that's about the extent of it. To argue that only the Little Trees trademark extends that far is a huge reach. In comparing the two, Sun Cedar's response points out that the only real similarities are the idea of a pine tree -- and that's not protectable.
Sun Cedar does not use any distinctive element that Plaintiffs could arguably claim as a mark (such as the saturated green field or block base in its Tree Design). It is questionable whether Plaintiffs can assert rights in either a blank silhouette of a tree or a blank configuration of a pine tree, because Plaintiffs (1) chose the pine tree outline for functional reasons (to the point of patenting the shape); and (2) have abandoned the blank silhouette registrations, as they do not use blank silhouettes as trademarks in commerce. Finally, Sun Cedar’s $10, thick, wooden ornaments are sold on its website, through Kickstarter, and in “green” retail stores, as opposed to in the gas stations and car washes that sell Plaintiffs’ approximately $1.00 cardboard-thin cellulose car fresheners. The two products never have and never will be offered for sale side by side in any retail setting.
Now, if you follow the law around trademarks and patents there are a couple of eyebrow raising statements in that paragraph above, beyond just the "hey, our trees are nothing like your trees and there's no chance of confusion." That's the standard "no likelihood of confusion" defense to trademark claims. And it's a good one here, because, really, those are pretty different. And it's ridiculous to argue that any tree shaped thing that smells nice infringes -- especially since there are lots of other such products:

So, yeah.

But, as mentioned above, there are other serious problems here called out in the response and counterclaims that could mean that Car-Freshener is going to lose some of the trademark protections it likes to claim it has. First up: the patent issue. What's that got to do with anything? Well, you see Car-Freshener apparently also got itself a patent on its design, patent 3,065,915, granted back in November of 1962. As you're probably aware, that patent is now long expired. But what does that have to do with the trademark? Well, the patent -- which is technically on the system for removing the car freshener from the packaging over a period of time to release the smell, claims that the tree-shaped design is actually functional to make all this work:
Upon information and belief, this diagram illustrates the system claimed by the ’915 Patent. Specifically, the diagram consists of seven images, each showing the body of the air freshener in different stages of removal from the cellophane package over a seven week period. A notch is cut in the center of the cellophane. The first week, the packaging is pulled down to the first branch and only the top of the tree is exposed. The second week, the packaging is pulled down to the second branch, exposing more of the tree, and the cellophane is tucked under the corresponding branches. This continues until the seventh week, when the tree is removed completely from the packaging.
This matters to trademark law because you can't trademark functional design. That's what patent law is for. So Sun Cedar is arguing that the entire trademark here is invalid because it tried to trademark a functional design, and the fact that it's functional is proven by Car-Freshener's own patent. That's a neat legal judo move.
In short, upon information and belief, the shape of the Tree Design is essential to the use or purpose of the article for which it is registered, namely air fresheners. As such, the Tree Design is functional and is not entitled to registration, pursuant to Section 14(3) of the Lanham Act, 15 U.S.C. § 1064(3).
The filing also argues that the rectangular block base of Little Trees fresheners is also functional since it's used to display names or the type of scent or other information.

The other interesting argument is that Car-Freshener actually abandoned the actual design in the trademarks that it holds on Little Trees. It gives a few examples of this, but we'll show one here to demonstrate. In arguing that Car-Freshener has abandoned trademarks like US Reg. No 1,781,016, the filing points out that the actual trademark is for a silhouette of the tree shape:
But that the products it's offering, which it claims show the use in commerce, are not of the silhouette, but quite different:
I will admit that this part -- claiming abandonment -- feels like more of a stretch to me. Frankly, it seems the case should be won solely on the lack of any likelihood of confusion. But the patent argument saying that the tree-shaped design is functional and therefore cannot be covered by trademark sure is a fun one. It will be interesting to see how this goes in court -- and whether or not Car-Freshener's trademark bullying over its Little Trees products results in the company actually losing some or all of its trademarks...

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Posted on Techdirt - 23 August 2016 @ 9:43am

Think Tank That First Proposed SOPA Now Claims 'Proof' That SOPA Would Have Been Great

from the yeah,-good-one,-guys dept

Oh boy. The Information Technology and Innovation Foundation (ITIF) is a DC-based think tank that, from it's name, you might think would promote things that are important for innovation. And yet, this misleadingly named think tank has been on the wrong side of almost every major tech issue over the last few years -- perhaps because a large segment of its funding comes from anti-technology industries, like the entertainment industry and the large telco/broadband providers. This is the same organization that argued that net neutrality was bad, that kicking people off the internet for piracy was a good idea, that the US gov't should encourage countries to censor the internet and, most recently, that broadband companies charging more to not track your every move is "pro-consumer."

But perhaps the pinnacle of bullshit policy proposals from ITIF was that it was the organization (again, funded by the entertainment industry) that first proposed the basic framework of site blocking as a response to copyright infringement, back in 2009. The basis of that proposal was then turned into SOPA, leading ITIF to take a victory lap for creating what it believed was such a good law.

Of course, you know how that all went down. After actual technologists pointed out how problematic the ITIF approach to site blocking would be, and the public spoke up, the bill went nowhere. And ITIF is basically the sorest of sore losers. Last fall, ITIF published a bogus snarky "report" insisting that it's original SOPA plan for DNS blocking "did not break the internet." This, of course, conveniently misstates what was meant by "breaking the internet" when tech experts like Paul Vixie explained the problems with SOPA. It wasn't that the overall internet would just stop working or that fewer people would use it, but rather than basic ways in which the internet is expected to function (I reach out to this DNS entry, I get back the proper response) would fail, and that would open up opportunities for serious mischief, from man in the middle attacks to breaking how certain security protocols work.

But ITIF just can't let it go. This week it published a new report, once again using snark to insist that the internet didn't break: How Website Blocking Is Curbing Digital Piracy Without "Breaking the Internet." But its "evidence" is pretty suspect. It relies heavily on a recent report from some Carnegie Mellon professors, but leaves out the fact that those professors run a research center that was launched with a massive grant... from the MPAA. It also quotes papers from NetNames (funded by NBC Universal) and the Digital Citizens Alliances (a secretive MPAA front group that was a core component to the MPAA's "Project Goliath" plan to attack Google).

The paper is full of misleading statements and half truths. Take this for example:

In the vitriolic debates over the Stop Online Piracy Act (SOPA) in the United States, many opponents of taking action to limit access to foreign websites dedicated to piracy argued that website blocking would “break the Internet,” although they never satisfactorily explained how this breakage would occur or why the Internet was not already broken, since some site blocking already existed before the SOPA debate. Nonetheless, no policymaker wanted to be accused of being responsible for breaking the Internet. Five years later, we have evidence to evaluate. Meanwhile, 25 nations have enacted policies and regulations regarding website blocking to find a better balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy. And the Internet still works just fine in these nations.
Actually lots of people pretty clearly explained how and why it would break things -- including tech superstars like Paul Vixie and, yes, even Comcast, the owner of NBC Universal, an MPAA member. This is from Comcast:
When we launched the Domain Helper service, we also set in motion its eventual shutdown due to our plans to launch DNSSEC. Domain Helper has been turned off since DNS response modification tactics, including DNS redirect services, are technically incompatible with DNSSEC and/or create conditions that can be indistinguishable from malicious modifications of DNS traffic (including DNS cache poisoning attacks). Since we want to ensure our customers have the most secure Internet experience, and that if they detect any DNSSEC breakage or error messages that they know to be concerned (rather than not knowing if the breakage/error was "official" and caused by our redirect service or "unofficial" and caused by an attacker), our priority has been placed on DNSSEC deployment -- now automatically protecting our customers...
The non-technical policy wonks at ITIF might not understand this "technical" speak, but what Comcast is saying here is that using DNS blocking is a massive security risk. It doesn't mean that the internet itself "stops working" altogether, but that a core way that the internet is expected to work no longer does, and that exposes lots of people to lots of mischief.

ITIF, of course, will then point to the fact that 25 countries have implemented DNS blocking, and since they haven't seen the internet "stop" working in those places, they assume it's fine. This is dubious on two accounts. First, much of the mischief that can be caused by DNS blocking won't be directly observable to the public. ITIF really is in no position to know what kind of mischief is now enabled thanks to DNS blocking in those countries, but it won't be surprising to see that it eventually leads to security nightmares. The second is more fundamental: many people in those countries now use VPNs to virtually transport themselves elsewhere to get around these blocks. Many, in fact, transport themselves to the US to access things here. But, put in place site blocking in the US, where a huge percentage of internet traffic happens, and the opportunities for massive mischief increase quite a lot. But ITIF is too clueless to understand this.

In fact, the only "problem" that ITIF says might come up with DNS blocking is that it might take down multiple servers behind the same DNS, but which ITIF insists is easy to fix. ITIF also insists that such a small percentage of people use VPNs, getting around DNS blocking won't be much of a problem. Though, hilariously, they then admit that the methods to get around DNS blocking could put users at risk. But ITIF never puts two and two together to recognize how DNS blocking puts more people at risk.
Critics claim that DNS blocking, like IP blocking, will cause “collateral damage” due to the risk of over-blocking, as a single domain can host many websites through website extensions.26 However, this risk can be addressed by implementing DNS blocking at the subdomain level (e.g. www.piracysite.maindomain.com instead of www.maindomain.com)....

[....] Many, if not most, consumers have low levels of computer literacy and certainly are not sophisticated enough to understand how to manipulate the DNS settings in the network configuration of their computers, mobile phones, and other Internet-connected devices. Furthermore, users who switch DNS servers can expose themselves to many security risks if they cannot trust the responses from these servers.
You know what else will mean you can't trust the results from a DNS server? DNS blockades! That's the "breaking" of the internet that Vixie and others were talking about. Which ITIF still doesn't comprehend.

Later in the report, ITIF also claims that people who worried about DNS blocking for copyright infringement were "fine" for it in blocking malware:
The irony is that just months before leading opponents stated their opposition to website blocking, a key opponent said it was okay to block domains that spread malware and that this could be done without harming the Internet itself.
I'll just note that basically every other sentence in that paragraph has a footnote as a source for the information... but that sentence conveniently has no footnote. I've looked at the other footnoted links in that paragraph and none of them involve "leading opponents" supporting DNS blocking for malware. So I'm curious how ITIF's sourcing on this key point seems to have magically disappeared.

There's more in the ITIF report, but it's basically fighting the same old war: it lost on SOPA, but ITIF can't let it go. And so it's not just fighting, but fighting dishonestly. It takes quotes out of context, makes misleading statements and doesn't seem to actually understand the core technological issues at play here. And it would be at least marginally more compelling if every study it cited (and ITIF itself) weren't funded by the MPAA, the main driver behind SOPA.

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Posted on Techdirt - 23 August 2016 @ 8:40am

Peter Thiel's Lawyer Now Sending Questionable Defamation Threat Letters To Media On Behalf Of Melania Trump

from the billionaires-censoring-the-press dept

Charles Harder is the California lawyer who likely will forever be known as "Peter Thiel's lawyer" after Thiel helped set up his own law firm with the "focal point" of hunting for any lawsuit that might destroy Gawker. It appears that Thiel is happy to share his pet lawyer with his new best buddy, Donald Trump, or Trump's wife, Melania. On Monday the UK's Daily Mail (not exactly known for its accuracy in reporting) received a threat letter from Harder, representing Melania Trump, claiming that its recent article on Melania was defamatory.

I'm not exactly sure where Mr. Harder is looking to sue but, if it's in the US, it's difficult to see how the article reaches the level of defamation by any stretch of the imagination. Melania Trump is, obviously, a public figure and, under US law, for a news report to be defamatory it needs to not only be incorrect and harmful but also published "with actual malice" -- meaning that the Daily Mail would have known that the published statements of fact were false, or they had a reckless disregard for the truth. Reading through the original Daily Mail article, I don't see how that could possibly be the case. The supposed "bombshell" claims in the piece are statements from a couple of different sources alleging that Melania was an escort when she first came to NY (and that may be how she met Donald in the first place). But the Mail is actually (somewhat surprisingly, given its reputation), quite careful with those statements, pointing out that they came from a book, but also noting that there's little evidence to back them up. It also points to a Slovenian magazine article claiming that the modelling agency Melania worked for was actually an escort service, but the Mail only notes that the magazine said this, and then gets a quote from the guy who ran the modelling agency saying (vehemently) that the story wasn't true.

Furthermore, the Daily Mail noted:

There is no evidence to back up these startling claims made in Suzy magazine.
The rest of the article is just kind of weird. Perhaps it's how the Mail normally reports, but much of the second half is stories from a guy who had a crush on Melania when they were both teens.

But, yeah, it's not at all clear how any of this rises to the level of defamation. The Daily Mail doesn't say anything defamatory about Melania at all. It just notes that certain sources (a book written by an anonymous author and a Slovenian magazine article) make these claims (both of which are accurate factual statements) and then notes that there's little actual evidence to back them up. And yes, this is a trashy tabloidy kind of thing to do ("some people say..." to say something mean, rather than making the case themselves), but it's difficult to see how it comes anywhere near the standard for actual defamation.

And it's not just the Daily Mail that Harder is going after. The Guardian reports that Harder has said that Melania may also sue Politico and the Week for reporting on her immigration status a few weeks back. You may remember the story. Politico noted some discrepancies in the timing of when Melania had claimed she had come to America, and the date of some nude photos that the NY Post dug up from a photo shoot in NY. That led Politico to raise questions about whether or not Melania was an illegal immigrant -- a bit of irony considering her husband's hardline stance against illegal immigration.

Once again, going through the Politico story, it's basically ridiculous to argue that anything in there is defamatory. Again: the statements need to be statements of fact (not just questioning things) that were made with "actual malice." There's no way the Politico article reaches that level.

But, again, we're talking about Charles Harder and the Trumps here, and the legitimacy of the case may be secondary to just threatening people. Trump, of course, has a long history of SLAPP-like lawsuits designed to bury journalists he doesn't like. And that's not me just saying that, Trump has flat out admitted to doing this:
Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. "I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about."
And, again, that's the basis of Thiel's campaign against Gawker, where no matter what you think of the Hogan case, the other cases that Harder has filed against Gawker appear to pretty clearly be basic SLAPP suits designed to burden the company with legal fees.

And, of course, some smaller publications have already been intimidated into silence. The NY Times notes that Harder has contacted other publications as well (mainly those that wrote about the Daily Mail's article) and at least two of them have retracted or apologized for their original stories. Here's the Inquisitr apologizing and retracting its story and here's Liberal America doing the same thing. Liberal America flat out explains:
This is being written under duress because I don’t have enough money to fight a legal battle against the Trump machine.
You can see the full threat letter that Charles Harder sent on behalf of Melania and judge for yourself. Harder claims that he can show "actual malice" in the reporting "by nature of the fact that my client has publicly denied the foregoing statements." That's not, actually, how one proves "actual malice."

Without being able to see the original stories at Inquisitr and Liberal America, I can't say definitively if either one said anything that would be considered defamatory, but it certainly sounds like they were just quoting what was in the Daily Mail article, which does not seem to be defamatory.

So what are we left with? A thin-skinned Presidential candidate who has admitted to happily filing bogus lawsuits to burden journalists whose reporting he doesn't like, whose wife has teamed up with a lawyer who was basically set up in business to "focus" on filing a bunch of lawsuits for the purpose of overburdening a publication another billionaire disliked. People have been disagreeing with me over whether or not the Gawker shutdown is a big deal, insisting that "if you just don't publish private sex tapes, there won't be a problem." Yet, here we have publications already being intimidated into not publishing stories and other larger publications being threatened for reporting which does not appear to be defamatory at all.

Doesn't that seem the least bit problematic to some people?

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Posted on Techdirt - 22 August 2016 @ 4:02pm

With Both Presidential Candidates Claiming To Be Against The TPP, President Obama Kicks Off Campaign To Ratify It

from the so-that'll-be-interesting dept

Even as the candidate that President Obama is supporting, Hillary Clinton, has been increasingly insisting that she really (no, really) is against the TPP (despite being for it prior to this campaign) -- and even as Donald Trump has been vehemently against it, despite trade agreements usually getting strong support from the GOP -- President Obama is making a big push to get the TPP ratified by Congress. It needs a majority vote in both houses of Congress to be ratified in the US. Last week, we noted the weird situation where everyone's position on the agreement appeared to be wishy-washy, though mostly for all the wrong reasons.

But that's not stopping Obama from having his cabinet make a big push to get it approved by Congress:

Among those who will hit the road will be Secretary of State John F. Kerry; Secretary of Defense Ashton B. Carter; retired Admiral Michael G. Mullen, former chairman of the Joint Chiefs of Staff under Presidents George W. Bush and Obama; Admiral Harry B. Harris Jr., commander of the United States Pacific Command; and William Cohen, a former Republican senator and defense secretary under President Bill Clinton.
Of course, everyone knows that it won't be voted on until after the election.

Although the administration’s push will begin in September, no vote on the accord will occur before the election. Just as the White House and congressional Republican leaders mostly agree on the economic benefits of trade, they have parallel political interests in delaying debate.

Republicans do not want to provoke attacks from their presidential nominee, Donald J. Trump, who called the trade accord “a rape of our country,” or hurt other Republican candidates. Mr. Obama does not want to make trouble for the Democratic nominee, Hillary Clinton, who has struggled to persuade voters of her sincerity in switching from support of the pact to opposition. This month, during an economic address in Michigan, she declared, “I oppose it now, I’ll oppose it after the election and I’ll oppose it as president.”

But, of course, that seems like it could also make a so-called "lame duck" vote pretty damn awkward as well. Yes, after the charade of the election is over, perhaps politicians will revert to their previous positions supporting the deal, but even at their most cynical, it seems a bit crass to do so right after the election. It would just underscore how absolutely full of shit they were during the campaign season. Maybe that doesn't have political consequences... but it should.

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Posted on Techdirt - 22 August 2016 @ 2:35pm

Why Are The Congressional Intelligence Committees So Quiet On The NSA Malware Leaks?

from the speak-up,-feinstein,-we-can't-hear-you dept

Last week, we wrote about the leak of various NSA hacking tools, that showed it had zero-day exploits for a bunch of hardware, including some from Cisco. This has raised some concerns about how long the NSA sat on these vulnerabilities without telling companies -- along with reaffirming what many people already suspected: that the supposed "Vulnerabilities Equities Program" (VEP), in which the NSA is supposed to disclose the vulnerabilities it finds to the companies to patch, is a complete joke.

But Marcy Wheeler has another important point about all of this. When the Snowden documents originally leaked three plus years ago, the various top members of the House and Senate Intelligence Committees -- the so-called Gang of Four -- were quick to speak out (and condemn) the leak. But, oddly, this time they're staying pretty quiet.

Within hours of the first Snowden leak, Dianne Feinstein and Mike Rogers had issued statements about the phone dragnet. As far as I’ve seen, Adam Schiff is the only Gang of Four member who has weighed in on this

U.S. Rep. Adam Schiff, the ranking Democrat on the House Intelligence Committee, also spoke with Mary Louise. He said he couldn’t comment on the accuracy of any reports about the leak.

But he said, “If these allegations were true, I’d be very concerned about the impact on the intelligence community. I’d also obviously want to know who the responsible parties were. … If this were a Russian actor — and again, this is multiple ‘ifs’ here — we’d have to ask what is causing this escalation.”

Say, Congressman Schiff. Aren’t you the ranking member of the House Intelligence Committee and couldn’t you hold some hearings to get to the bottom of this?

Meanwhile, both Feinstein (who is the only Gang of Four member not campaigning for reelection right now) and Richard Burr have been weighing in on recent events, but not the Shadow Brokers release.

If the House and Senate Intelligence Committees were really about "oversight" of the NSA, then shouldn't they have jumped on this immediately? Shouldn't they be looking into how the NSA manages the VEP? Shouldn't they be looking into how these tools got out? Why are they just staying silent or giving meaningless statements like Schiff's?

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Posted on Techdirt - 22 August 2016 @ 1:07pm

Anti-Piracy Operations Are Fabricating Links To Non-Existent Torrents In DMCA Notices

from the this-seems-like-a-problem dept

We've seen lots of stories involving various "anti-piracy" organizations sending bogus takedown notices -- often because they use lame keyword matching without any review, and it targets totally unrelated things that happen to have the same name. However, the folks over at TorrentFreak have found another form of totally bogus takedown: completely fabricated torrent links for torrents that have never existed. The issue here is that the fabricated links were targeting two torrent caching systems, Zoink.it and Torrage.com. TorrentFreak explains how they work... but also why the targeted links did not ever exist:

These don’t have a searchable index of torrents, but serve as a hosting platform for torrent sites, identifying torrents by their unique hash.

For example, a torrent for an episode of Ballers that aired a few weeks ago has the hash C87000EF73557A488D5C21BF8F9FA4CC24EC0513. This file would then be available at Zoink under the following url:

zoink.it/torrent/C87000EF73557A488D5C21BF8F9FA4CC24EC0513.torrent.

We say would be, because Zoink.it was shut down at the end of 2014. The same is true for the other torrent cache, Torrage, which has been offline for quite a while as well.
Okay, so you can see how this happened. The anti-piracy groups understood just enough about how the torrent cache sites worked, that they automated sending takedowns based on torrent hashes on the assumption that those torrents would also show up via the cache sites. Okay, understandable. But here's the problem: they never checked to see if those links ever existed. Hell, it sounds like they never even visited Zoink.it again for at least the past two years.

And yet they sent takedowns for links there.

So how can these companies actually claim that they know these "files" are infringing, when they clearly never even checked the links, let alone the fact that the site they're accusing of infringement, hasn't even been up for two years?

The TorrentFreak article notes that this is not a one-off thing. They found other anti-piracy groups sending takedowns for more non-existent torrents on the same non-existing sites. We know that these fly-by-night operations don't bother to check the files to see if they're actually infringing material, but now we know they don't even seem to check to see if sites or links ever actually existed in the first place.

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Posted on Techdirt - 22 August 2016 @ 11:55am

Did The NY Times Give Up Its Journalism Standards The Second Facebook Threw A Few Million Its Way?

from the seems-like-a-problem dept

Last month, we discussed how Facebook was apparently forking over truckloads of cash to various media companies to get them to use Facebook Live, the company's new livestreaming video platform. This arrangement struck us as odd -- and potentially an FTC violation, in that these media companies are basically promoting and endorsing Facebook's product, after getting paid millions of dollars, without ever disclosing the payments and the relationship. That seems... questionable. Apparently the two largest recipients of the cash were Buzzfeed and the NY Times, who each got over $3 million to stream these videos. Buzzfeed, for its part, has embraced the ridiculousness of this situation with Buzzfeedian gusto, putting on stunts like livestreaming exploding a watermelon with rubberbands. But that's kind of what you'd expect from Buzzfeed.

The NY Times, on the other hand, is a bit of a different beast. The newspaper likes to pride itself on being serious, careful, thoughtful journalism. And while that's often a lot more what the people there tell themselves than reality, it does raise some questions about what the NY Times is doing with that $3+ million and how journalistic it is. Apparently, I'm not the only one to wonder about this, as the NY Times recently appointed public editor, Liz Spayd, is concerned about what the NY Times is doing here as well.

here’s the problem. After watching countless hours of live video in the past few weeks, I have hit upon many that are either plagued by technical malfunctions, feel contrived, drone on too long, ignore audience questions or are simply boring, by I imagine most anyone’s standards.

Too many don’t live up to the journalistic quality one typically associates with The New York Times. Take one produced at the Republican convention, where we’re on the floor chatting up delegates. The idea is right, but the sound cuts in and out for three long minutes and becomes so grating that one Facebook viewer messaged: “WOW. THE AUDIO IS HORRIBLE!” Another added: “Unwatchable,” and one humorously said, “RIP headphone users...” Another video on raging fires in Canada shows the narrator staring off-screen while the sound keeps breaking up. Not a single flame ever appears. One viewer, April Simpson, sent in this comment: “It would be a much more effective interview if you could roll in some of the amazing video of the fire. Seriously, nyt contact me — I could help you with all of this.”

And in a category all its own, there is a video of an editor with two reporters who are pitching their stories in hopes of getting good play on the home page. It’s an odd meeting — of a type I’ve never seen nor heard of in my 30 years in newsrooms. And it turns out it was more of a simulation to show the kinds of conversations that take place in a newsroom. In other words, it was posed.

Now, to be clear, I think there's value in experimentation -- and if you don't fail with your experiments, you're probably not experimenting enough. But when Facebook is throwing millions at publications like the NY Times, some of these don't feel so much like "experimenting with this neat new technology" but more like "oh, fuck, we need to make more videos because we promised Facebook in exchange for all this cash." Indeed, Spayd suggests the quantity over quality approach is a part of the problem here:
On the one hand, it has before it a compelling new form of journalism, a young and eager audience, and the crown prince of social media opening up its checkbook. On the other hand, if you’re producing about 120 videos a month, implementing good quality control can take a back seat.
And, when the paper's editor defends all these videos under the "this is how we experiment" banner, Spayd responds, rightly, that there are ways to experiment that still live up to the kind of quality standards the NY Times likes to think it has:
But this particular experiment veers significantly from The Times’s past approach to new journalism forms. The newsroom has shown that innovation doesn’t have to equate with poor quality. Whether it was with interactive graphics, virtual reality or podcasts, The Times is a model for innovating at a thoughtful, measured pace, but with quality worthy of its name.

This time, that’s not the case. It’s as if we passed over beta and went straight to bulk.
Does anyone believe that this would play out this way if Facebook hadn't added 3 million reasons for the NY Times to go for bulk? I think that's the bigger story here. Spayd mentions the cash in passing, but doesn't spend much time on it. It still seems like the real issue. I get that the NY Times is a business and that it needs to make money, but usually there's a separation. Here, when a private company is paying for a specific type of coverage that is promoting their own technology -- and the NY Times isn't disclosing it, while pumping out lots of low quality content, it should raise a lot of questions about why that's okay.

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Posted on Techdirt - 22 August 2016 @ 10:54am

Donald Trump Has Freed Up Journalists' Ability To Call Bullshit; But It Won't Last, Nor Extend To Others

from the that's-too-bad dept

If you've been watching the political press at all this election season, you may notice something interesting that's different: the press is now calling bullshit on Donald Trump pretty regularly. Perhaps nothing has made this quite as clear as whoever handles the chyron text for CNN, who seems to take a bit of delight in real time fact checking of Donald Trump in a manner never really seen before:


Of course, there are different ways to look at this. If you're Michael Goodwin at the NY Post, you argue that it's yet another example of the horrible biased liberal media, but even worse because now it's dropped all pretenses:
It’s pure bias, which the Times fancies itself an expert in detecting in others, but is blissfully tolerant of its own. And with the top political editor quoted in the story as ­approving the one-sided coverage as necessary and deserving, the prejudice is now official policy.

It’s a historic mistake and a complete break with the paper’s own traditions. Instead of dropping its standards, the Times should bend over backwards to enforce them, even while acknowledging that Trump is a rare breed. That’s the whole point of standards — they are designed to guide decisions not just in easy cases, but in all cases, to preserve trust.
That makes for a neat media narrative, but it doesn't really make much sense. If it were the case, then we'd see this kind of bullshit calling on lots of conservative politicians. But that's rarely the case. It seems to me that Ezra Klein's take on the same issue, at Vox, is much more accurate. That the media feels freed of its awkward "objective" standpoint by the fact that Trump is just so blatant in his lies. This is not to say other politicians aren't frequently dishonest or wrong. But Trump takes lying to a new level.
"The things Trump says are demonstrably false in a way that’s abnormal for politicians," says the Atlantic’s James Fallows, who wrote the book Why Americans Hate the Media. "When he says he got a letter from the NFL on the debates and then the NFL says, ‘No, he didn’t,’ it emboldens the media to treat him in a different way."

Politicians are not fully truthful. Everyone knows that. But they make a basic effort at being, as Stephen Colbert put it, truthy. The statistics they cite are usually in the neighborhood of correct. The falsehoods they offer are crafted through the careful omission of fact rather than the inclusion of falsehood. They may say things journalists know are wrong — climate change denial is a constant among Republican officeholders — but they protect themselves by wrapping their arguments in well-constructed controversy or appealing to hand-selected experts.

This is part of how political reporting operates. Politicians are allowed to be wrong, but they can’t lie. Trump just lies.
This is a big difference, but one that many people often confuse. Getting things wrong -- because you're misinformed, because you just really want to believe something is true, or because you just made a mistake -- is one thing. But pure fabrication is something different. And it's the outright fabrications that the press feels comfortable calling out.

The question is what does this actually mean for journalism? Goodwin, at the Post, sees this as the downfall of journalism. The fact that the media will actually call someone out on their lies is seen as "bias" because it's not done equally to other candidates. Klein sees this as a temporary state of being -- because most other candidates will return to their truthy wrongness with the press happy to eat that up, with nothing more than a "he said/she said" type of false equivalency when there's some question about the facts.

Another writer, Pascal-Emmanuel Gobry, more or less agrees with Goodwin that this is somehow freeing the press up to be biased, after noting how much he disagrees with Trump -- but worries about the press feeling emboldened.
I hate Trump, and I hope he loses. But I fear one consequence of his candidacy will be an even more biased press in the future.
Then there's Klein, who thinks that Trump's uniqueness means that this is a unique scenario for the press as well, and one that has many of them uncomfortable:

Covering Trump this way isn’t freeing. It’s uncomfortable, both for individual journalists and for the broader institutions they serve. I think, if anything, the likely reaction will be overcorrection: The press would be so happy to have a semi-normal Republican candidate it could cover respectfully that whoever follows Trump is likely to benefit from a bit of halo effect just by comparison.

Like so much else in this election, what defines the press’s coverage of Trump isn’t that he’s a Republican but that there is something abnormal about him, about his campaign, and about the dynamics surrounding it. Assuming more normal politicians succeed him, more normal forms of coverage will reassert themselves.

I think Klein is probably right here, and this is an unfortunate thing. Because we should want our press to be calling bullshit. It's not bias to call out someone when they lie. It's not bias to point out someone said something that's wrong. We should get over this lame "he said/she said" concept behind the stupidly fake idea of "objective" reporting, and do what reporters should be doing: calling bullshit when there's actual bullshit.

If there's any bias in the media, it's not because they're calling bullshit, but because they're not doing it enough. They should be more aggressive in pointing out not just what's an outright lie, but when a politician says something that's wrong (though they should distinguish between what's just wrong and what's a deliberate lie). Klein is probably right that reporters will go back to their old ways after this election, and Goodwin and Gobry will breathe a sigh of relief, but the reality is that we'll be losing out on a real opportunity to move the media from compliant stenographers to actual journalists.

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Posted on Techdirt - 22 August 2016 @ 9:47am

India Criminalizes Merely Visiting A Copyright Infringing 'Blocked' Site

from the what-a-mess dept

The Indian film industry has long had a complicated relationship with piracy. After all, India's Bollywood regularly produces the most films of any other country in the world (it's often neck and neck with Nigeria). That seems to be a sign that the market is pretty healthy. After all, filmmakers keep telling us that piracy is going to destroy their reasons for making films... and yet here's a market that's making tons and tons of films (many of which are excellent). And, as we've noted in the past, the film studios in India are making lots of money, in part because they're competing effectively against piracy. And, then you even have some Indian filmmakers who recognize that piracy helps spread the message of their films to a wider audience.

And yet... because it's (oooooh! scary!) "piracy," there will always be some who freak out and come up with bad ideas. Apparently, one of those bad ideas is now the law. After already putting in place dumb site blocking laws that force ISPs, under court order, to block access to sites deemed hubs of infringement, the Indian government now says that getting around one of those blocks (hi there, VPN user!) is a criminal act that could get you three years in jail.

"What are you in for?" "Me? I used a VPN to access Archive.org."

Think I'm joking? The Internet Archive was included in the ban list. As was GitHub and Vimeo.

So why is the Indian government doing this kind of thing, despite everything noted in the first paragraph about the thriving and successful Indian creative industries? Perhaps it's because of absolutely bullshit articles like this one at "The News Minute" claiming that Indian films gross $2 billion, but piracy makes 35% more. I found that article because well-known copyright maximalist, Canadian lawyer Barry Sookman, happily tweeted the link. But you have to be pretty bad at understanding copyright law if you think it's a good article. After all, it struck me as odd for the headline to note that "piracy" makes more money than the Indian film industry. And that's because it's not true. Yes, the article starts out by claiming it does:

India's film industry, said to be the largest globally with some 1,000 movies produced each year, earns around $2 billion from legitimate sources such as screening at theatres, home videos and TV rights. But with $2.7 billion, piracy earns 35 per cent more, and a way out has proved elusive.
Where is this $2.7 billion coming from and where is it going? And if it were really true that piracy "earned" so much more money, uh, then shouldn't the Indian studios embrace piracy and start making that money for itself? But, of course, the answer is that that's not what's actually happening. It's just how the terrible reporter at The News Minute confusingly explains things, and copyright lawyers like Sookman happily retweet because it fits into his narrative. But you have to dig deeper into the article to find out that the $2.7 million "earned" by pirates is actually just the made up number of the value of movies downloaded.
"The infringing copies appear online within few hours of a film release," Singh told IANS, and added: "The Indian film industry loses around Rs 18,000 crore ($2.7 billion) and over 60,000 jobs every year because of piracy."
You see, here they're now calling the $2.7 billion "losses." Because that's a made up number that the industry wants you to believe it would have made if piracy did not exist. But that's not money "earned" by piracy. And pretending it is is incredibly dishonest. After lots of hand-wringing and whining about evil pirates, finally, at the end of the article, you have someone who speaks sense, filmmaker Anurag Basu, who recognizes the way you beat piracy is by competing with it:
"Piracy is working because people can buy a (pirated) DVD for Rs 100 and a whole family can watch it. We have to offer that kind of entertainment at that price. It has to be as easy to get an original DVD as it is to get a pirated one," he said.
But, instead of doing that, the government is buying into ridiculous claims about pirates "earning" more money, and thus they're now trying to criminalize merely accessing a website that they've banned for having infringing material. Websites like the Internet Archive and Vimeo.

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Posted on Techdirt - 19 August 2016 @ 7:39pm

Federal Election Commission To Crack Down On 'Deez Nuts' As Presidential Candidate

from the you-take-the-fun-out-of-everything dept

In this somewhat insane presidential election, about the only non-terrifying entertainment that came out of it happened last summer when Public Policy Polling (PPP) released a poll showing that "Deez Nuts" would get 9% of the vote.

The more web savvy among you may know that "Deez Nuts" was a popular web meme earlier in 2015, but it didn't quite explain how it got into the poll. It turned out that a 15 year old kid named Brady Olson had filled out the necessary paperwork under the name Deez Nuts, and PPP had decided to toss it into their poll as a bit of fun. The attention paid to Deez Nuts as a political candidate resulted in a bunch of other silly names filling out the paperwork as well -- including Butt Stuff, Mr. Not Sure and Sir TrippyCup aka Young Trippz aka The GOAT aka The Prophet aka Earl.

Of course, after that initial flurry of attention, most people mostly forgot about Deez Nuts, the fake Presidential candidate.... until this week.

You see, earlier this week PPP released a new poll showing that Green Party candidate Jill Stein was trailing Deez Nuts in Texas (also trailing, Harambe, the dead gorilla who is also now something of an internet meme).

And, just like that, it seems the renewed attention may have killed this bit of fun. A day later, the Federal Election Commission (FEC) announced that it will start cracking down on Deez Nuts and other such candidates. It has now started to include a verification procedure for "possibly false or fictitious names."

Yeah, it seems the FEC can't take a joke.
The Commission has authorized staff to send verification letters to filers listing fictional characters, obscene language, sexual references, celebrities (where there is no indication that the named celebrity submitted the filing), animals, or similarly implausible entries as the name or contact information of the candidate or committee.
And they're not kidding around. Part of the process of sending out these letters will remind filers that the FEC may "pursue or refer action for false filing under 52 U.S.C. Section 30109(a) or otherwise report such filings under 52 U.S. C. Section 30107(a)(9)." So, uh, yeah. So, long, Presidential Candidate Deez Nuts. We hardly knew you.

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Posted on Techdirt - 19 August 2016 @ 1:10pm

Hold On... We May Actually Be In For A THIRD Oracle/Google API Copyright Trial

from the you-wouldn't-reimplement-an-api dept

Yikes. A month ago, we wrote about how Oracle was asking Judge Alsup to agree to another new trial in the Oracle v. Google API copyright case. I joked that they basically had no chance, and Judge Alsup had already rejected their attempts to overturn the jury ruling. But... I may have spoken too soon. In a hearing on the matter earlier this week, Oracle insisted that there needed to be a new trial because Google had withheld information on plans to offer Android on Chromebooks -- something that Google announced at this year's Google IO which happened (awkward!) while the trial was going on.

And this morning, Alsup issued an order telling both sides to provide sworn statements about this. For Google, it's why it had not updated its discovery responses to include the plans for Android on Chromebooks, and for Oracle, whether it, too, had neglected to update its discovery responses (and specifically calls out a misrepresentation by Oracle):

By THURSDAY AUGUST 25, AT NOON, Christa Anderson, counsel for Google, shall submit a sworn statement explaining why the discovery responses referenced in Court yesterday were not updated, including the full extent to which counsel knew Google’s intention to launch a full version of Marshmallow, including the Google Play Store, for Chrome OS.

By the same date and time, Annette Hurst, counsel for Oracle, shall submit a sworn statement setting forth, after full inquiry, the full extent to which Oracle neglected to update its discovery responses by reason, in whole or in part, of one or more rulings by the judge. The same statement shall explain why counsel repeatedly represented that the Jones v. Aero/chem decision required an “evidentiary hearing” when that decision, as it turns out, made no mention of an “evidentiary hearing” and instead remanded because no “hearing” or other consideration at all had been given to the issue of discovery conduct by the district judge.
This does not mean that there absolutely will be a third trial, but it's at least more of a possibility than most observers thought possible. I honestly don't see how Android on Chromebook really matters for the fair use analysis. Oracle argues that since most of the talk on the market impact was limited to phones and tablets, that may have impacted the jury, but that's kind of laughable. The reality is that Oracle just wants another crack at a decision it disagrees with.

Of course, all of this is really a stupid side show. The real underlying problem was the Federal Circuit's decision that APIs were covered by copyright, despite almost no one actually thinking that's true. The whole fair use trial was an awkward mess, mainly because all of the arguments weren't so much about "fair use" but about whether or not anyone actually considered APIs to be covered by copyright. Going through another such trial would just be a mess.

But the other area where a new case may come about is that Judge Alsup made clear that Oracle was also free to bring new cases on new uses of Android to see if they were also fair use, meaning that any time Google does anything new with Android, it may face a new fair use trial. They wouldn't need to do this if the CAFC had just recognized that APIs are not covered by copyright, but it didn't and here we are in a big heaping mess.
By the same date, counsel shall meet and confer and advise the Court whether the form of judgment should be amended to reflect that it is not a final judgment but a Rule 52(c) judgment on partial findings, given that Oracle is entitled to challenge further uses of Android herein.
This case is never going to end.

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Posted on Techdirt - 19 August 2016 @ 9:41am

Recording Industry Whines That It's Too Costly To Keep Copyright Terms At Life Plus 50, Instead Of Life Plus 70

from the wait,-what? dept

Okay. I've heard lots of crazy arguments from the record labels, but I may have found the craziest. We've discussed how ridiculous it is that the TPP includes a provision saying that every country that signs on must make sure the minimum copyright term is life plus 70 years. This will impact many of the countries that negotiated the agreement, which currently have terms set at life plus 50. This was a key point that the recording industry and Hollywood fought hard for. When even the Copyright Office recognizes that life plus 70 is too long in many cases, the legacy industries recognized that getting copyright term extension through Congress in the US might be difficult -- so why not lock stuff in via international agreements?

And, of course, the USTR was fine with this, because the USTR goes along with basically everything that Hollywood asks for. But here's the crazy part: having gotten such a ridiculous thing, the recording industry is whining about its own victory. As Kimberlee Weatherall points out, the recording industry in New Zealand is bitching about the fact that the change doesn't go into effect immediately because it's "too costly" for copyright holders.

That's because the TPP has a "phase-in period" that allows countries to adjust and gradually move copyright terms upwards. But the record labels are having none of that:

Meeting before a parliamentary committee this week, Recorded Music chief executive Damian Vaughan said his advocacy group supports an article in the TPP deal that standardizes the terms of protection of a work to the life of an author plus 70 years. (New Zealand is one of several participating nations that currently has a term of 50 years after death.) However, Vaughan thinks a proposed phase-in period for nations upgrading to 70 years is unnecessary and a costly burden for rights holders.

"It's not making copyright simple or easy to understand to the music user or the public whatsoever," he said, according to RadioNZ. "It is making the process significantly more complicated, and it's the rights organizations and the copyright holders who will be forced to administer this… We note the cost we incur will be far higher than any perceived cost savings."
Now, think about what Vaughan is really saying here. Let's be clear: copyright term extension is deliberately removing these works from the public domain. When they were created, a deal was struck between the public and the content creator. That deal said "this work goes into the public domain, but to give you incentive to create it in the first place, we'll give you some limited exclusive rights for this amount of time." That's the deal that was struck. But, now, with copyright term extension, that deal gets thrown out, screwing over the public. They don't get anything back despite the fact that material that was destined for the public no longer is. So there's a massive cost to the public and no payment whatsoever. That's problematic alone.

And to make things even more obnoxious, Mr. Vaughan is whining that not being able to fuck over the public fast enough is unfair because it puts too much "cost" on the record labels? REALLY? Boo fucking hoo. You were the ones who pushed for extending copyright terms, and now you want to whine that it might be too costly to administer the process? Fine, fuck it. Let's just toss out the extension and maybe consider decreasing copyright terms overall. That'll give the record labels a lot less to administer, saving them lots and lots of money. Oh, and also giving the public what they were promised. Seems like a good deal all around.

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Posted on Techdirt - 19 August 2016 @ 8:38am

Court To Prenda's John Steele: Okay, Now We'll Sum Up How Much You Cost Taxpayers And Need To Pay

from the the-saga-continues dept

When last we left John Steele, one of the dynamic duo behind the massive copyright trolling scam once known as Prenda Law, he was being scolded by the 7th circuit appeals court (not the first appeals court to do so), for failing to abide by the court's own advice to "stop digging." But digging a deeper and deeper hole has always been in John Steele's nature, it seems. As we've mentioned in the past, Steele reminded me of a guy I once knew, who incorrectly believed that he was clearly smarter than everyone else, and thus believed (incorrectly) that he could talk and lie his way out of any situation if he just kept smiling and talking. That generally doesn't work too well in court -- especially when you're not actually that smart.

In that July ruling, the court upheld most of the money Steele and Paul Hansmeier were told to pay, and scolded them for directly lying about their ability to pay. It referred to Steele's "entire pattern of vexatious and obstructive conduct." However, as we noted, Steele kinda sorta "won" on one point, though even that win was a loss. One of the arguments that Steele's lawyer had made was that on the fine that the lower court gave him for contempt, the basis for that fine appeared to be under the standards for criminal contempt rather than civil contempt. Way back during oral arguments, the judges on the panel had asked Steele's lawyer, somewhat incredulously, if he was actually asking the court to push this over to be a criminal case rather than a civil one, and Steele's lawyer answered affirmatively.

And so, the court notes that the contempt fine "falls on the criminal side of the line," because "it was an unconditional fine that did not reflect actual costs caused by the attorneys’ conduct." So it tossed out the $65,263 fine, but noted that criminal contempt charges might still be filed (out of the frying pan, into the fire). Oh, and of course, it left open the idea that the lower court might go back and actually justify civil contempt fines. And it appears that's exactly what Judge David Herndon in the Southern District of Illinois has done. He's ordered Steele to show cause for why he should not be fined, and then details the basis for such a fine.

As a direct result of Steele’s misrepresentations, between January 29, 2014 and June 5, 2015, this Court expended a significant amount of time and effort addressing matters relating to Steele’s ability to pay the Fee Order. This includes the following: (1) reviewing, researching, and issuing orders resolving and/or reconsidering numerous motions stemming from the misrepresentations; (2) preparing for and holding hearings on February 13, 2014 (Doc. 123) and November 12, 2014 (Doc. 187); and (3) reviewing asset statements submitted by John Steele in support of his inability to pay claim.

Steele’s choice to make misrepresentations to this Court and to continue to press the issue of inability to pay necessitated all of the above. Steele’s misconduct resulted in an actual loss to this Court and, more importantly, to the tax payers. It is the tax payers who ultimately bear the cost of adjudicating Steele’s misrepresentations. See U.S. v. Dowell, 257 F.3d 694, 699-700 (7th Cir. 2001). Considering the real cost to this Court and to the tax payers, the Court may impose a sanction that compensates the taxpayers for the Court’s time....

The Court intends to impose a remedial sanction for the Steele’s misconduct, outlined in this Court’s June 5, 2015 Order (Doc. 199). The remedial sanction shall be a fine in an amount necessary to reimburse the Court for the costs incurred as a result of Steele’s misrepresentations to this Court....
So, yes, the tiny "victory" for Steele in having the contempt fine tossed out was short lived, as a new civil contempt fine appears likely to be on the way. And, who knows, perhaps criminal charges as well. Can't wait to see Steele try to talk himself out of this one too.

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Posted on Techdirt - 19 August 2016 @ 3:26am

Uber Wasting No Time: Launching Test Of Self-Driving Cars

from the this-should-be-interesting dept

It's no secret that Uber has been interested in self-driving vehicles and how they might change its business. Lots of people have predicted futures in which Uber basically runs a fleet of self-driving cars and Uber itself has commented on the idea in the past as well. But I'm not sure anyone expected it to happen this soon. The company is apparently starting a test-run with driverless vehicles in Pittsburgh:

Starting later this month, Uber will allow customers in downtown Pittsburgh to summon self-driving cars from their phones, crossing an important milestone that no automotive or technology company has yet achieved. Google, widely regarded as the leader in the field, has been testing its fleet for several years, and Tesla Motors offers Autopilot, essentially a souped-up cruise control that drives the car on the highway. Earlier this week, Ford announced plans for an autonomous ride-sharing service. But none of these companies has yet brought a self-driving car-sharing service to market.

Uber’s Pittsburgh fleet, which will be supervised by humans in the driver’s seat for the time being, consists of specially modified Volvo XC90 sport-utility vehicles outfitted with dozens of sensors that use cameras, lasers, radar, and GPS receivers. Volvo Cars has so far delivered a handful of vehicles out of a total of 100 due by the end of the year. The two companies signed a pact earlier this year to spend $300 million to develop a fully autonomous car that will be ready for the road by 2021.
Separately, the company announced that it has bought a self-driving startup, Otto, and put its co-founder, Antohony Levandowski, in charge of Uber's self-driving efforts.

We've already noted that Tesla has Uber-like plans as well, but this could certainly get interesting. Lots of people (including us!) have speculated on what the world will look like as autonomous vehicles become more prominent, but it's somewhat amazing how quickly this is happening.

While it's not a huge surprise that Uber may be leading the way, it does still raise some interesting questions. Obviously, lots of people say that Uber wants to do this so that it won't have to pay drivers any more (though in these tests a human is still in the driver's seat and, one assumes, getting paid). But part of the genius (or problem, depending on your point of view...) of Uber was that it was just a platform for drivers who brought their own cars. That is, Uber didn't have to invest the capital in buying up cars. It just provided the platform, drivers brought their own cars, and Uber got a cut. If it's moving to a world of driverless cars, then Uber is no longer the platform for drivers, it's everything. It needs to make the investment and own the cars. That's actually a pretty big shift.

That's not to say that it won't work -- and there's an argument that Uber's real power these days is in its operations software figuring out which cars should go where -- but it is an interesting shift in the business. And given that, it's also interesting to see how Tesla is entering the market from the other direction -- a direction that is more like Uber's original concept, where individuals own their own cars, but then lease them back to Tesla to act as for-hire cars for others. I guess it's possible that Uber could do the same thing too, where any car owner could provide their vehicle back to Uber to earn money, but without having to drive it -- just making it a productive resource.

Who knows how this will turn out -- and I'm sure some people will inevitably freak out when there's a self-driving car accident -- but the future is getting really interesting really fast.

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Posted on Techdirt - 18 August 2016 @ 11:14pm

The Getty Museum's Lessons Learned From Opening Up Content

from the stuff-to-think-about dept

Three years ago, we wrote about the Getty Museum's wise decision to fully support open content (it's important to note that this is the Getty Museum, and not the unrelated stock photo company, Getty Images, a known copyright troll). We were excited to see the museum embracing open access, and taking a principled moral stand on the issue:

Why open content? Why now? The Getty was founded on the conviction that understanding art makes the world a better place, and sharing our digital resources is the natural extension of that belief. This move is also an educational imperative. Artists, students, teachers, writers, and countless others rely on artwork images to learn, tell stories, exchange ideas, and feed their own creativity. In its discussion of open content, the most recent Horizon Report, Museum Edition stated that "it is now the mark -- and social responsibility -- of world-class institutions to develop and share free cultural and educational resources."
This is why we were similarly excited about the NY Public Library embracing the public domain, while disappointed in institutions like the UK's National Portrait Gallery try to lock up content behind questionable copyright claims. Making art and culture more widely available is an important moral imperative.

So it's interesting to see an update from The Getty about how its efforts to embrace openness are going. So far, so good, but they've discovered that actually implementing openness runs into some challenges that are interesting to discuss. But, first the good news:
since 2013 the Getty has released over 100,000 more images through the Open Content Program, and we are increasingly using open licenses for Getty-developed content including selected digital publications, Research Institute archival finding aids, Getty Museum online collection data, Getty Conservation Institute teaching and learning resources, and even the very blog you are reading right now. Throughout, our priority in developing openly licensed resources has been to make the Getty’s work as widely available and usable as possible, while retaining the right to attribution.
The article includes two specific case studies which highlight how tricky this can be and the case of freeing up access to Pietro Mellini's Inventory in Verse, from 1681 is an interesting example. At first glance, it seems like it should be easy. It's from 1681. The work is in the public domain. They also note that the original is in their collection so they don't need anyone else's permission in terms of digitizing it (and they agree that the digitization is in the public domain as well). The essays and translations that go with it were all done by Getty or Getty contractors so it holds whatever copyright there might be. And yet... there were still issues, in that some of the related images were from third party sources, and that created some concerns:
The only sticking points were the handful of images from third-party sources, for which permission had been sought and granted before the decision was made to make Mellini open access. In other words, the original permissions requests were simply for a digital publication, without any mention of CC-BY licensing, and thus contractual considerations prevented us from openly licensing the material.
So even in trying to provide wider access to a public domain work, there were issues around related information that had been licensed under different terms.

As the Getty notes, this is why it's kind of important for more museums (and others) to embrace a kind of "open first" principle -- so that they're taking care of these issues from the start, rather than having to back into them later.
it’s much easier to build an openly licensed project from the ground up than it is to make a project open after the fact. When open access is a project goal from the outset, it helps guide decision-making, especially with respect to contracts with collaborators and consultants, and the sourcing of images and code.
There's some other good stuff in there as well, including the fun of trying to open source software that involves modules from different sources with different kinds of open source licenses, but it's good to see this kind of knowledge sharing even on how to be better about knowledge (and culture) sharing...

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Posted on Techdirt - 18 August 2016 @ 4:22pm

Twitter Suspends Hundreds Of Thousands Of Terrorist Accounts, Gives Everyone Its 'Quality Filter'

from the today-twitter-settles-all-its-business dept

Twitter's had a bit of a busy day. It made two big announcements within an hour, first saying that it had suspended 235,000 accounts since February for "promoting terrorism." It followed that up by announcing that it was opening up its "quality filter" for everyone. The quality filter used to only be available to "verified accounts" and was apparently one of the few actual benefits for being a "verified" account. Here's how Twitter explains it:

When turned on, the filter can improve the quality of Tweets you see by using a variety of signals, such as account origin and behavior. Turning it on filters lower-quality content, like duplicate Tweets or content that appears to be automated, from your notifications and other parts of your Twitter experience. It does not filter content from people you follow or accounts you’ve recently interacted with – and depending on your preferences, you can turn it on or off in your notifications settings.
From people who have it, they've indicated that it can do a decent, but not perfect, job in blocking purely trollish behavior. However, I still think that my own suggestion from last week makes more sense: rather than building a universal algorithm like this, give every user the tools to build their own quality filters (and to share the "recipes" of those filters). Not everyone has the same determination of what "quality" is. It's fine if Twitter wants to offer its own such filter, but why not open it up and let anyone create quality filters to use and share?

As for the removal of terrorist accounts, this still feels kind of pointless. Twitter talks about how it's getting faster at removing these accounts, and they're not able to build up many followers before they're shut down again, making Twitter a less useful platform for terrorist or terrorist supporters to use. But, again, if we think about Twitter as a protocol like email or a system like the telephone, this feels... weird. No one's clamoring for "we must stop ISIS from making phone calls." Besides, the intelligence community has said, repeatedly, that they get good intel from watching ISIS' social media activity. Shutting down their accounts may seem like a good thing (no one wants ISIS using their technology...), but what if it's actually making it more difficult for the intelligence community to track them?

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Posted on Techdirt - 18 August 2016 @ 2:38pm

With Republicans Backing Away From TPP, Does It Still Have Any Chance?

from the what-a-weird-year dept

We've pointed out before how topsy turvy things have become with the Trans Pacific Partnership (TPP) agreement lately, and it seems to be getting even more weird, but not for any good reason. As we've pointed out dozens of times now, actual free trade is a good thing for the world -- but the TPP agreement has very, very little to do with free trade. There are certainly some good things in the TPP when it comes to trade, including some stuff on helping protect the free flow of information on the internet, but it is significantly outweighed by numerous problems with the agreement that seem to have little to do with actual free trade and plenty to do with certain industries putting in place protectionist/mercantilist programs that are, in many ways, the opposite of free trade. The two areas that we've discussed at great length are the intellectual property section, which will force countries to ratchet up their laws (which runs against free trade) and the problematic corporate sovereignty provisions, that allow foreign companies to effectively block regulations that may make perfect sense for certain countries.

Historically, the way political support for trade deals in the US works breaks down as follows: Republicans support the deals strongly, with a simplistic mantra of "free trade is good, any free trade agreement must be good." They don't care much about the details (other than if a big company in their region wants some protectionist nugget in the agreement). Meanwhile, the majority of Democrats oppose the agreements, but again, often for simplistic and protectionist reasons. But, there are always a few "moderate" Democrats (i.e., Democrats who recognize free trade is actually a good thing overall) who support free trade and that's enough to get the deals passed. That's mostly how the TPP situation played out for the past few years.

Then the insanity of the 2016 Presidential election hit and everything went sideways.

On the Republican side, you've got Donald Trump, who is opposed to the TPP, but mainly because he doesn't understand international trade at all, and ridiculously seems to believe that everything is a zero sum game, and any trade agreement that helps other countries means we're "losing." The TPP is bad, but not for the reasons Trump thinks. And then you have Hillary Clinton, who had always been in the Democratic clump that supported free trade agreements, and who has always supported the TPP, despite now pretending not to. That's because Bernie Sanders was very much against it (also for mostly the wrong reasons!) and feeling pressure from the success of his campaign, she felt the need to come out against the TPP to avoid losing to Bernie.

So, you have both candidates claiming to be against TPP, but for weird reasons, and no one believing the Dem candidate, while no one quite understanding the GOP candidate. Meanwhile, the sitting President continues to push for the TPP even as the only two people likely to have his job in a few months insist they won't support it.

Now, throw into this mix the fact that Trump's railing against the TPP (again, for dumb reasons) is suddenly getting Republican voters to hate the TPP, and down ticket Republicans who have long supported the TPP are suddenly changing their tune. Senator Pat Toomey, a long time supporter of the TPP has now announced it's a bad deal and he's opposed to it. Of course, he actually spends most of his opinion piece (correctly!) lauding the benefits of free trade, but then says he's opposing it for a few reasons. His reasons are silly, though. It's mainly because the pharma industry has convinced him that the IP provisions in the TPP are too lax. Pharma pushed heavily for more ability to basically lock up their data and discoveries for a very long time, and thanks to Australia pushing back, there was a compromise here. So Toomey insists that's why he's now opposing:

About 46,000 Pennsylvanians have jobs in the life science and pharmaceutical sector, making it one of our state’s largest industries. TPP will make it too easy for other countries to steal innovations that we create in Pennsylvania and take the jobs tied to those innovations.
That's not true at all. What the TPP will do is actually mean that pharma will have an exclusive monopoly on certain things for not quite as long as they'd like. It won't make "stealing innovations" any easier.

Of course, the real reason for Toomey's about-face may have more to do with his re-election campaign:
Toomey's remarks arrive as public polls show him falling behind Democratic challenger Katie McGinty in one of the country's most crucial Senate races. They also come after months of rage against international trade fueled support for Trump and Bernie Sanders, and forced Democratic nominee Hillary Clinton to reverse course on the pending deal. McGinty has opposed the TPP and blasted Toomey over his stand on it.

"Pat Toomey has spent his entire career pushing bad trade deals and policies that ship Americans jobs overseas, so nobody is buying this ridiculous flip flop," McGinty said in a statement.
So, this topsy turvy election year, it's becoming increasingly clear that the TPP might not actually have the support it needs to get ratified in the US. If Republicans are bailing on it (and the top of the ticket screaming about how horrible it is), it's difficult to see how it can gain enough support. There is the popular theory that no matter what happens, in the lame duck session after the election, everyone will revert to their earlier positions and push the damn thing through, but if trade continues to be an issue in the election, doing so will create a huge amount of public anger.

So, in the end, there are a lot of reasons why the TPP may die on the vine... even if all of the reasons for it doing so will be pretty bad.

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