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Posted on Techdirt - 31 August 2016 @ 12:52pm

Our 'Copying Is Not Theft' T-Shirt Seems To REALLY Upset Some People

from the slow-down-folks dept

So, last week we launched our new Copying is Not Theft t-shirts (and hoodies, and stickers and mugs). It's a nice shirt:

We thought the message was fairly straightforward, building of the wonderful song and animation done by Nina Paley: Copying Is Not Theft:
That doesn't necessarily mean that copying is always legal or morally correct. But it pretty clearly is not theft.

The shirt is selling fine (get yours soon, because it's only available for a few more days!), but what's been surprising is how much it has resulted in pure rage from some people who seem really, really pissed off that we'd dare suggest the simple fact that copying is not theft.

Earlier this week, we wrote about the head of the Global Anti-Counterfeiting Group promising to make counterfeit copies of our t-shirt (which seems a bit... odd, no?), but today I wanted to highlight some of the other responses we've received. The fact is, many people do understand the message and seem to appreciate it, but I'm somewhat surprised at those who disagree with it who feel the need to not just disagree, but to act as if merely stating a four word factual sentence is somehow offensive. It started in our comments where someone insisted that saying copying is not theft wasn't just wrong, but was "ignorant and irresponsible." Huh.
There have been a few similar comments to our posts, and a few angry remarks on Twitter, but the real action has definitely been on Facebook, where some people are just really, really angry. Here's just a sampling:

And, then, of course, you have that one person who always thinks they have the "gotcha" moment:
Then there's the guy who's so confused and angry that he's sure we've got our offices stacked high with infringing material, so he's "reported" us (to whom...? no idea...)
And then there are the people who get so frustrated that we're being accurate that they then need to mock us for using words as they're supposed to be used.
Anyway, if you'd like to join in the fun, our Facebook post seems to be the biggest magnet for attracting these kinds of comments. But, we'll just leave you with one last one: the guy who found a different kind of "gotcha" by confusing our "Copyright" topic icon for a copyright notice on Techdirt, which he found ironic. And then he just wouldn't let go when we explained that it wasn't a copyright notice.
We've been doing this long enough to recognize that it stirs a lot of passion and emotion, so it doesn't surprise us that some people don't like the message on the shirt (and certainly plenty of others seem to enjoy it). But, we're still fairly astounded at the level of brainwashing that seems to go on, such that people get so angry about trying to separate out the fairly fundamental differences between copying something and stealing it.

Either way, if you're looking for a t-shirt that is a... uh... proven conversation starter, check out our Copying Is Not Theft gear while it's still available...

133 Comments | Leave a Comment..

Posted on Techdirt - 31 August 2016 @ 11:49am

Washington Post Charges An 'Activation' Fee To Let You Pay Them To Get Around Their Paywall

from the how-nice dept

We're still pretty skeptical about paywalls for most newspapers, because they really tend to limit the audience for your offering, and limit people sharing that content as well (which is pretty important for growing your audience these days). But, some newspapers have really embraced them, including the Washington Post, which lately has ramped up its paywall efforts. And, apparently with that, come sneaky fees. First noticed by an editor at the WSJ (another paywall site, though one that has been designed to be much more porous), Tim Hanrahan, it appears that the Washington Post now has an "activation fee" to subscribe to get around the paywall:

Of course, we've been reporting on how telcos and broadband providers have made an entire (large!) business out of sneaking in bogus extra fees for well over a decade. As we noted back then, many of these tack-on fees are really so that the service provider can advertise much lower fees than they're actually charging. It certainly feels like misleading advertising, though the FTC doesn't seem that interested in getting involved.

Of course, we also wondered, all the way back in 2004, when these kinds of bogus fees would start spreading to other businesses.
"Perhaps other companies should get into this game as well. Want a pizza pie? It's just $3, but there's a $3.50 "crust fee," a $9.38 "oven fee," a $4.50 "service fee," and a $2.18 "cleanup fee." Plus tax."
Not too many other businesses have gone down that road... but I guess the Washington Post has decided to leap in head first.

26 Comments | Leave a Comment..

Posted on Techdirt - 31 August 2016 @ 9:38am

James Comey Claims He Wants An 'Adult Conversation' About Encryption; Apparently 'Adults' Ignore Experts

from the the-child-is-you dept

Oh, James Comey. The FBI Director seems to have staked out his reputation on being the guy who will go to his grave refusing to understand what basically every technology expert has been telling him for the past couple of years: his desire to backdoor encryption will make everyone less safe. But Comey is pot committed on his belief that encryption is bad and that Silicon Valley just needs to nerd harder and it'll somehow come up with encryption that has a magic golden key for him. His latest is saying that it's time for an "adult conversation" on encryption:

"The conversation we've been trying to have about this has dipped below public consciousness now, and that's fine," Comey said at a symposium organized by Symantec, a technology company. "Because what we want to do is collect information this year so that next year we can have an adult conversation in this country."
This is not just insulting, but counterproductive. Plenty of experts have been trying their damnedest to have an "adult conversation" with Comey, explaining to him why he's wrong about the risks of "going dark," while others have -- in fairly great detail -- explained the serious dangers behind Comey's approach.

Comey's response to these efforts so far has been the equivalent of sticking his fingers in his ears and screaming "nah, nah, nah -- can't hear you!" while repeating his "nerd harder" mantra.

An "adult conversation" has to be one where someone in Comey's position is able to admit that maybe, just maybe, he's wrong. It's not one where he gets to keep demanding a new conversation until people tell him that night is day. Because that's just silly.

This new claim about an "adult conversation" is also stupidly counterproductive. All it's going to do is make the actual experts here -- like the authors of that MIT paper on the dangers of backdoor -- dig in and have absolutely no interest in dealing with Comey. How could you when he so flippantly brushes off all the work they've done already?

If we're going to have an adult conversation, it needs to at least start with a recognition that maybe Comey overreacted here. Without that, it's just Comey acting like a child, demanding that everyone do things his way over and over and over and over again.

42 Comments | Leave a Comment..

Posted on Techdirt - 31 August 2016 @ 8:39am

Louis Vuitton's Inability To Take A Joke Opens Up A Chance To Fix Our Broken Trademark Laws

from the my-other-bag--has-law-professors dept

As you may recall, earlier this year we wrote about a good ruling in a ridiculous lawsuit by the notoriously overaggressive trademark enforcers at luxury goods giant Louis Vuitton. You can look back at some of their earlier lawsuits, but the one we wrote about this year was particularly ridiculous. It sued a small bag maker called "My Other Bag" who made a simple tote bag that played on the famous joke bumper sticker "My Other Car is A...." with some sort of luxury car brand listed as the final point. People would put those on not-nearly-as-nice cars. In fact, when I was a kid, my dad had a Ford Pinto (yes, the exploding kind) and it had "My Other Car is a Porsche" as a bumper sticker. It's not a very funny joke (and I totally didn't get it as a kid), but it's a joke. And a fairly common one. So My Other Bag did the same thing with the following tote:

Got it? That's a picture of a bag that looks like a Louis Vuitton bag on the side of a tote. It's obviously a joke, and the district court made that point to LV:
Louis Vuitton is, by its own description, an “active[] and aggressive[]” enforcer of its trademark rights.... In some cases, however, it is better to “accept the implied compliment in [a] parody” and to smile or laugh than it is to sue....
The court later pointed out that the fact that LV doesn't find the joke funny is immaterial.

For whatever reason, LV appealed this decision. And while one hopes that the appeals court will make quick work of the case and back the district court ruling, something interesting may be happening as well. A group of law professors has jumped into the case with a fascinating amicus brief, not just arguing in favor of My Other Bag, but actually making a constitutional argument that the very concept of dilution in trademark law is unconstitutional under the First Amendment.

A little background first: as we've noted many times over the years, the original intent of trademark law was not to be some form of "intellectual property" akin to patents or copyrights. Instead it was designed as a consumer protection statute, to protect individuals from buying Bob's Cola thinking that it was really Coca Cola. That is, trademark isn't about locking up some sort of "property right" as much as it's a way to protect consumers from being fooled or tricked into buying a product that is not what it says it is. And yet, as the concept of "intellectual property" became a bigger and bigger thing, trademark lawyers kept repositioning trademark law as being just a third prong of the same kind of "intellectual property" as patents or copyrights.

A key part of this was inventing, basically out of thin air, the concept of "dilution." Historically, in order to prove trademark infringement, you had to show "a likelihood of confusion" from consumers, fitting with the point above about how it's for consumer protection. However, trademark lawyers found that way too constraining, and added this idea of "dilution," which was a situation where you could be found to violate trademark law if you merely "diluted" the original mark, even if there were no likelihood of confusion. For years, we've pointed out what a bad idea this was, but Congress, always eager to do short-sighted things in support of expanding intellectual property concepts, allowed the concept of "dilution" to be added to trademark law.

Enter the amicus brief from a group of excellent law professors, led by Chris Sprigman and Rebecca Tushnet (both of whom have been mentioned here on Techdirt many times before). The brief was also signed by some other legal all-stars, including Pam Samuelson, Mark Lemley and Robert Brauneis (also mentioned here many times). They argue, first, that MOB isn't causing any customer confusion. But then they also argue that the very concept of dilution itself is unconstitutional as a restriction on the First Amendment:
At the outset, it is important to recognize that the First Amendment landscape has changed substantially in recent years. This Court has ruled that content-based suppression of non-misleading speech, including non-misleading commercial speech, is presumptively unconstitutional and, to be upheld, must be shown to be narrowly tailored to serve compelling state interests....


Trademark law’s anti-dilution provision creates a content-based right that applies to non-misleading commercial speech. Unlike defamation, it is a right unknown to the Framers of the Constitution. It was developed in the early decades of the twentieth century, when truthful commercial speech received no constitutional protection. LV claims that dilution law allows it to prevent the creation of unauthorized new associations with its mark, which is to say, to prevent consumers from forming new opinions and beliefs even in the absence of deception. This is not just content-based suppression of speech, it is viewpoint-based suppression of speech – the prime evil against which the First Amendment protects. Yet Congress provided no compelling interest to sustain its new restriction on non-misleading commercial speech when it enacted the federal dilution law, nor did it attempt to use the least restrictive means to achieve any such interest
In other words, there's a big problem with the very concept of dilution in trademark law, and it's about time someone did something about it.

Chances are this argument goes nowhere right now. Courts are (somewhat reasonably) loathe to take on constitutional issues when they can deal with a case directly on the law. And in this case, it seems fairly clear that My Other Bag's totes are not confusing and not trademark infringing in the slightest. So it's possible that the 2nd Circuit will avoid the constitutional issue altogether. But this is an issue that's not going away. There's been a pretty constant push to expand dilution law and lots of big companies regularly claim dilution to get around a lack of customer confusion in trademark lawsuits. That means that sooner or later a court is really going to have to address this issue, and it's difficult to see how the dilution concept can pass First Amendment muster.

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Posted on Techdirt - 30 August 2016 @ 10:44am

PETA Has Lost Its Monkey's 'Next Friend' In Its Crazy Copyright Case

from the the-monkey's-uncle-is-missing dept

The ongoing saga that is the monkey selfie lawsuit has continued to move forward, with the lawyers for photographer David Slater filing their brief in response to PETA's. As you probably recall, PETA had teamed up with a primatologist named Antje Engelhardt claiming to be "next friends" for the Indonesian macaque monkey named Naruto, who is alleged to have taken the following selfie with David Slater's camera.

Slater has claimed to hold the copyright on the photo for a long time, though he's wrong. But PETA is much more wrong in arguing that it can step in and claim both (a) that there is a copyright on the image and (b) that the monkey holds it. Slater is just wrong about the copyright existing.

Either way, the PETA case was easily tossed out of the district court based on the fact that monkeys can't get copyrights under US law (US laws don't apply to animals unless specifically stated -- this is why farms aren't legally considered murder camps, no matter what some vegetarians might say). And, of course, PETA appealed. And we expect it will go about as well as the district court case. But it may go even worse.

That's because in the reply, Slater's lawyer points out that not only can a monkey not hold a copyright, but also that PETA has even less standing than before, because the primatologist, Antje Engelhardt, has decided she's no longer a next friend of our buddy Naruto, the smiling monkey.
On appeal, the crazy got crazier. Dr. Engelhardt withdrew from the case. That leaves PETA, which does not allege any relationship with the monkey, as the monkey’s sole next friend.


Two putative next friends filed this action: PETA and Dr. Engelhardt, a primatologist who alleged that she has “known, monitored, and studied Naruto since his birth.” ER 23. It may well be that the relationship with Naruto Dr. Engelhardt alleged is “significant” under Coalition of Clergy v. Bush. However, Dr. Engelhardt moved to withdraw from the case, informing the Court that she “will not continue as a next friend to Appellant in this proceeding.” This Court granted Dr. Engelhardt’s motion, thus leaving PETA as Naruto’s lone putative next friend.
This is a fairly big problem for PETA and its big time (seriously) lawyers from the (previously respectable) law firm of Irell & Manella.
Unlike Dr. Engelhardt, PETA did not allege any relationship with Naruto, much less a significant one. That is a problem on appeal. PETA is now in a position very much like the ballot initiative defenders in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013): a party necessary for standing at the district court is not participating in the appeal. “[S]tanding must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Id. at 2661 (internal quotation marks and citation omitted).

All of the Naruto relationship allegations in the Complaint concern Dr. Engelhardt; none involve PETA.... PETA alleges no connection to Naruto, an Indonesian monkey who lives roughly 10,000 miles from PETA’s headquarters in Virginia.
In other words, even if Engelhardt had standing, PETA doesn't.

The filing also contains its fair share of monkey jokes, so we'll just end this post with a few of those:
Under controlling Ninth Circuit precedent, monkey see, monkey sue is not good law under any Act of Congress unless the legislative text plainly grants non-human animals standing to sue.


The only pertinent fact in this case is that Naruto is a monkey suing for copyright infringement.
Either way, one hopes that the court makes quick work of this case as well, but it is 9th Circuit, which perhaps deserves copyright on its... creative interpretations of copyright law at times. Hopefully this isn't one of those cases.

Read More | 23 Comments | Leave a Comment..

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.

66 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.

57 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.

    26 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.

    62 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:

    45 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.

    53 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 | 12 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.

    12 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.

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    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.

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