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Date: Thursday, 24 Apr 2014 02:53
In the continuing global legal fight over Megaupload, the company apparently is asking the Hong Kong high court to set aside the restraining order on the company's assets that was put in place over two years ago, following a request from the US Justice Department. Megaupload was always legally based in Hong Kong, even if the company itself was based in New Zealand. Megaupload appears to be claiming that the Hong Kong Justice Department did not properly follow the law in going along with the US DOJ's request. The main issue, which has been debated back in the US, is that, technically, the DOJ cannot serve Megaupload (the company) since it has no US employees or presence. The DOJ can go after foreign individuals, but when it comes to foreign companies, the law is pretty explicit that they can't. While the DOJ is actively seeking to change that law, it doesn't change the basic problem with the original request.

Megaupload is pointing out that the US DOJ's request to the HK DOJ depended on Megaupload being served the criminal summons. But since that hasn't been satisfied, it argues the HK DOJ has no basis for restraining Megaupload's assets:
The order was granted on the basis of an ex parte application by the HK DOJ made at the request of the US DOJ. The grounds for discharge of the order is the failure by the HK DOJ—acting on the basis of information provided by the US DOJ—to fully and frankly disclose in that ex parte application serious legal issues relating to the US DOJ’s inability to serve Megaupload with a criminal summons in accordance with United States federal law. Among other things, the US DOJ failed to explain how it intended to comply with the service of process requirements imposed by the Federal Rules of Criminal Procedure, which, as argued in Megaupload’s application, are an essential prerequisite to initiating any criminal proceedings against Megaupload and cannot be satisfied for a corporation that has no physical presence or subsidiaries in the United States. Megaupload has submitted those filings with its application to the High Court.
Megaupload claims it's seeking to free the assets in order to attempt to regain control over the leased servers from Carpathia, which the DOJ has been hoping would be destroyed (leading to the destruction of evidence in a criminal case, at the DOJ's urging). While the issue of serving Megaupload is something of a technical snafu, it's one in a rather long line of sloppy lawyering by the DOJ throughout this case.

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Author: "Mike Masnick"
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Date: Thursday, 24 Apr 2014 00:00
So far, grabbing fossil fuels out of the ground has been an unbeatable way to get cheap energy. Since fossil fuels (presumably) come from decaying dinosaurs (and their contemporaries), it makes some sense that growing biofuels might be a way to generate a more renewable source of energy. Unfortunately, biofuel projects haven't quite demonstrated an obviously better way to replace fossil fuels. Here are just a few links to some biofuel info that could lead to more environmentally friendly fuels. If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Author: "Michael Ho"
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Date: Wednesday, 23 Apr 2014 22:42

With all of the trademark insanity we see here at Techdirt, it can occasionally seem like the USPTO doesn't ever render a good decision on whether or not to approve a mark. With that in mind, I occasionally like to highlight when trademark law -- one of the few IP laws that seems to get as much right as wrong -- is done correctly. Take, for instance, the case of the apparently zillions of organizations that attempted to trademark "Boston Strong" in the wake of the bombing of the marathon last year.

The Boston Beer Company, makers of Samuel Adams, was among many that had applied for the "Boston Strong" trademark. The USPTO, in a moment of uncommon clarity, denied it on the grounds that the phrase was both a poor representation of a brand and also had moved into the common lexicon surrounding the tragedy.

“It has resulted in a Facebook website; is used by the Boston Red Sox baseball club; appears on shoelace medallions; was the name of a concert in support of the marathon bombing victims; is the title of a planned movie about the marathon bombing; and appears emblazoned across the front of t-shirts provided by numerous different entities,” the decision said. “The use of the slogan is so widespread with respect to the marathon bombing as well as other uses, that its use has become ‘ubiquitous.' The applied-for mark merely conveys an informational social, political, religious, or similar kind of message; it does not function as a trademark or service mark to indicate the source of applicant’s goods and/or services and to identify and distinguish them from others.”
While many of the companies in question were looking to apply the attempted trademark to some wonderful endeavors (Boston Beer Company, for instance, donated proceeds to support victims and their families), denying the mark doesn't stop any of that, it simply stops anyone from locking up what has become a common term of support for the city and victims of the bombing. It actually would have been interesting, had the mark been approved, to see how the charitable organization LiveStrong, famous for its affiliation with horrible-person Lance Armstrong, would have responded. That, however, didn't occur.

The larger point is that while we live in a world of permission culture and language-lock-ups via IP laws, we still see moments of clarity. There's simply no way a "Boston Strong" trademark would have served any public interest, and to lock that phrase up, even for charitable purposes, would have been a poor decision. The USPTO got this one right.



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Author: "Timothy Geigner"
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Date: Wednesday, 23 Apr 2014 21:34

This insight into how police think the public should interact with them is certainly enlightening. (via this tweet and Amy Alkon's Advice Goddess blog)

The backstory is this: a woman was walking down the street when a motorcycle cop approached her, asked her if she lived in the area and if she would talk to him. She says his approach made her feel uncomfortable, so she refused and continued on her way.

"I thought that maybe he was flirting," she said. "I just thought it was odd, I thought it was odd. I wasn't really sure but I felt uncomfortable because there wasn't anyone around."

She says she was worried he might not even a real cop, so she refused to stop and began jogging away from him.

"He just crept along beside me on his motorcycle and he started saying, 'Hey ma'am! I want to talk to you. Hey stop, ma'am! I want to talk to you.' Then my anxiety rose even higher," she said.
This was followed shortly thereafter by the cop dismounting, chasing her down, tackling her and placing her under arrest. The police chief claims this arrest was for "walking on the wrong side of the road," (as well as "evading arrest" and "resisting arrest") despite the fact that the woman wasn't ultimately charged with anything.

Even if the preceding events could possibly be dismissed as hearsay, or something tainted by false impressions and emotions, there's the police chief's responses to questions about this interaction.

Whitehouse Police Chief Craig Shelton says this:
Shelton says by law you're not required to stop and talk to an officer if there's not a lawful reason for them to be stopping you.
But then he says this:
"Normally if a police officer pulls up, in my opinion, it's awful odd for somebody just to take off and not want to speak to the police officer," Shelton said.
Yes, this may seem "odd" to a police officer, but it's not all that odd for citizens, even those committing no real crime (Shelton justifies the stop with the "walking on the wrong side of the street" crap) to have no desire to talk to police officers. A huge imbalance of power makes conversation uncomfortable. Anyone who's attempted small talk with their boss understands this. If someone doesn't want to talk to a cop, it's not odd, it's normal.

Only a cop -- someone who doesn't understand the strain caused by the imbalance of power -- would consider this response "odd." And when law enforcement officials use the word "odd," they actually mean "suspicious." (Hence this woman being chased, tackled and arrested -- all for "walking on the wrong side of the street.") Holding a conversation with a cop without somehow appearing nervous, fidgety or otherwise strained (all natural body responses that will be read by most cops as signs of guilt) isn't something many people can do. Knowing that these common reactions will only serve to "alert" cops to theoretical criminal behavior further exacerbates the situation.

Beyond that, there's the other assertions Shelton makes in defense of his officer's actions. First, he claims the cop's motorcycle and uniform clearly indicated he was a cop and not some bad guy seeking to do harm.
"The motorcycle has a patch on both sides of the gas tank. It's black and white and says 'Whitehouse Police,' and has red and blue lights on it," Whitehouse Police Chief Craig Shelton said. "So you have to take it for what it is. Do you think he's a Whitehouse police officer? Why would you think he's someone impersonating a police officer?"
Why would you assume he isn't? Shelton is completely divorced from reality. For one, most people can't determine the difference between a cop and an impostor, especially if they're making active efforts to disengage from the interaction.

For another, plenty of cops -- real cops -- have been charged with rape and sexual assault. So, being a legitimate cop doesn't really eliminate the danger for a woman walking on her own with no one else around. Sure, this cop may not be a rapist, but I would imagine those who have been raped by a cop probably thought the officer who violated them wasn't a rapist right up to the point they were being raped.

The fact is that the woman probably would have extricated herself from the situation no matter what. A strange man -- in uniform or out -- persistently trying to get a woman to talk to him in an area with few other pedestrians is almost always going to be treated as a possible threat. It's the persistence that sets off the alarms. If you're rebuffed and go away, the threat subsides. But if you persist, whether you're just some stranger or a guy in full uniform on a police motorcycle, it will continue to push the needle toward "threat."

But that's the problem. Despite all of this, Chief Shelton just thinks it's "odd" the woman wouldn't stop. Shelton makes things even worse by making this contradictory claim.
Bonnette hasn't been charged with anything, but the entire incident was caught on dashcam video and Shelton says it will be investigated further. He also says Johnson acted appropriately and won't be reprimanded.
There go the odds of ever seeing the video. Shelton has already cleared the officer ahead of his promise to investigate further. How does that even add up in his head? He's already made his decision. Unless, of course, he means he's going to investigate to see if any further charges can be brought against the "odd" woman who refused to talk to his officer until he had her pinned on the ground and handcuffed. But that would just be vindictive and surely the Whitehouse PD is above that. If that's not what Shelton meant, then the investigation he's performing will be open-and-shut, caged in by air quotes and quite possibly doing away altogether with the bothersome "open" half of open-and-shut.



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Author: "Tim Cushing"
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Date: Wednesday, 23 Apr 2014 20:16

If you were alive yesterday and opened up a web browser, you likely saw the story of how the NYPD attempted to build some social media buzz and found that attempt turned around on its ass. The police force that has previously done a decent job at connecting with people on Twitter decided to run a campaign asking the public to share photos of themselves with police officers. They probably thought most of the pictures would be of smiling and appreciative citizens and local beat cops. Let's just say their expectations were slightly off the mark.

Almost immediately after the call went out from the department's official Twitter account, storms of users took the opportunity to instead attach some of the most unfavorable images of New York City officers that could be found on the Internet. And judging by the output on Tuesday, there are quite a few. Officers holding down a photographer on the pavement and a white-shirted supervisor twisting an arm, among scores taken during Occupy Wall Street protests. An officer knocking a bicyclist to the ground during a Critical Mass protest ride, and another dancing provocatively with a barely clad paradegoer. A dog being shot. Officers on trial, or sleeping in uniform on a subway train.
Oops. But this probably should have been expected in response to a police force that has had some very serious public relations problems revolving around some serious policy decisions. Stop and frisk, waste and fraud, and an apparent distaste for citizen journalists were on everyone's mind and the backlash was as severe as described above. Having found their campaign being turned into a PR nightmare, you might think the NYPD would react angrily to yesterday's mishap. It turns out they were prepared to be adults.
A spokeswoman for the department, Deputy Chief Kim Y. Royster, said in a two-sentence statement Tuesday evening that the department was “creating new ways to communicate effectively with the community” and that Twitter provided “an open forum for an uncensored exchange” that is “good for our city.”

The experience will not stop the department from pushing forward with social media endeavors, its top spokesman, Stephen Davis, said. “You take the good with the bad,” he said.
Look, I realize that praising Royster's statement in light of the larger problems the NYPD has in interacting with their own citizenry may seem strange, but the fact is that both spokespeople are absolutely correct. The entire point of social media is about engagement. If that engagement doesn't go exactly as they expected, and it certainly didn't, that doesn't mean there isn't value in it. Choosing to respond in an adult way means the trolling doesn't get any worse and may actually provide an avenue for dialog that results in real change. It may be a small thing, but it's still a good thing.



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Author: "Timothy Geigner"
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Date: Wednesday, 23 Apr 2014 19:15

[Update: hole has been closed by ACB's IT team]

The Computer Fraud and Abuse Act is so severely flawed that people are extremely hesitant to report security holes in websites, especially after witnessing what happened to Weev (Andrew Auernheimer), who went to jail for exposing a flaw in AT&T's site that exposed user info when values in the URL were incremented.

The same goes here with this submission from an anonymous Techdirt reader who added this note, along with a link to a post in the Computer Security subreddit.

"I remember a person was recently arrested for finding this same flaw in a website and told (at&t/apple??) about it. He was arrested and jailed if I remember right. This is the type of chilling effects that come when people view techies as hackers and are arrested for pointing out flaws.

The flaw is in:

http://www.acbincentives.com/lgnetflix/claimdetails.asp?txtclaimnum=30345

By changing the number at the end you can harvest personal info.

I won't report the flaw, I could go to jail."
Is that overdramatic? Doubtful. People have reported security flaws to companies only to have these entities press charges, file lawsuits or otherwise tell them to shut up. Weev's only out because the government's case was brought in the wrong venue. The CFAA, which has been used to punish many helpful people, is still intact and as awful as ever.

As the (also anonymous) redditor points out, he or she has tried to contact the company but has found no avenue to address this security hole which exposes names, addresses and email addresses of customers sending in claims for a free year of Netflix streaming that came bundled with their purchase of an LG Smart TV. Incrementing the digits at the end of the URL brings up other claims, some with images of receipts attached. In addition, anyone can upload support documents to these claims.

Here's a screenshot of the hole in question:


As the original poster points out, with a little coding, someone could put together a database of addresses that most likely house a brand new LG Smart TV. And this may not just be limited to LG. ACB Incentives is the company behind this promotion, and it handles the same sort of online rebate forms for a variety of companies. These rebate submission sites all branch off acbincentives.com, which could mean it's just a matter of figuring out how each one handles submitted claims, URL-wise.

Now, I've contacted the company to let them know. Amanda Phelps at the Memphis branch says she's bringing it to the attention of programming. I also let her know that it may affect other rebate pages but that I can't confirm that. We'll see how quickly this is closed*, but all in all, the people at ACB seemed to be concerned and helpful, rather than suspcious.

*Very quickly, it appears. See note at top of post.

But the underlying point remains. Many people who discover these flaws aren't criminals and aren't looking to expose the data of thousands of unsuspecting users. They're simply concerned that this is happening and often incredulous that major companies would be this careless with customers' data. That the kneejerk reaction has often been to shoot the messenger definitely gives those discovering these holes second thoughts as to reporting them, a hesitation that could allow someone with more nefarious aims to exploit the exposed data. The law needs to change, and so does the attitude that anyone discovering a flaw must be some sort of evil hacker -- or that the entity must do whatever it takes, even if it means throwing the CFAA at someone, just to prevent a little embarrassment.



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Author: "Tim Cushing"
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Date: Wednesday, 23 Apr 2014 18:09

Search engines own the internet. The rest of us are just renting space. At least, that's what a Texas court seems to believe. Google is in court fighting a gag order telling it to chase down and remove certain mentions of a certain lawyer from the internet. (via WaCon)

[I]n a stunning and all-encompassing gag order signed over a year ago and now being appealed to Houston's 1st Court of Appeals, attorney Calvin C. Jackson, who was accused of forging attorney signatures on court records, demands Google erase all mention of those accusations from the entire Internet including other websites.
Jackson, who settled over these allegations (details also under a gag order), now wants it all to just go away. And he's gotten a Texas court to agree with him. Not only does he want the past erased, he's also seeking to bar "Google" from ever mentioning this unpleasantness again. So, we have both prior restraint and an impossibility, all wrapped up in a terrible gag order.

The requests Google is fighting play right to the edges of the "ridiculousness' envelope. Cleaning the internet isn't like expunging a criminal record, but this Texas court apparently feels Google (and other search engines) should be able to just go around deleting stuff, even stuff they doesn't own (which would be pretty much all of it).
The gag order, signed by visiting San Antonio Judge Richard Price in February 2013, forces Google and other search engines to wipe out all record of the allegations from the Internet. It also compels the search engine to find third parties who posted the information to get it back and destroy it.
"Get it back?" The hell? Does this judge really believe Google can just knock on the door of other sites and demand they hand over the "hard copy?" Once again, we have someone with power mistaking his home page for "The Internet." Google and other search engines index the web. They are not in charge of the web.

Judge Price doesn't seem to have any idea how Google is supposed to prevent future discussions of this case from appearing anywhere on the web. He just seems to feel a big company like this should be able to do anything he imagines it can. If he ever decides to leave the judicial racket, I'm sure the MPAA can set him up with an office, if UK Prime Minister David Cameron doesn't snatch him up first.

Let's not worry about that First Amendment. Let's just let Calvin Jackson control his past and future via court orders. Except that's not working out very well for him. The order may be sealed but the gag order doesn't cover this sort of discussion, or Google's arguments against prior restraint and impossibility. All he's done (with the court's blessing) is ensure more discussion of past allegations. And until this order gets reversed, every site discussing this (like us) will apparently be waiting for Google to knock on the door and ask that we turn over our "originals."



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Author: "Tim Cushing"
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Date: Wednesday, 23 Apr 2014 17:12
We mentioned this briefly in our writeup of the oral arguments at the Supreme Court in the Aereo case, but I wanted to focus in on one particularly annoying issue that has come up repeatedly throughout this company's history: the idea that its compliance with the law is actually the company circumventing the law. A perfect example of this is an incredibly ill-informed opinion piece for New York Magazine's Kevin Roose that declares, based on a near total misunderstanding of the case, that the Supreme Court should shut down Aereo because its 10,000 antennas are a cheap "copyright-avoidance gimmick."

But that's simply incorrect. It's actually 100% the opposite. We'll fully admit, as that article does, that the setup of Aereo is simply insane from a technology standpoint. There is no good reason at all to design the technology this way. But the reason they're doing this is not to avoid copyright but to comply with it. If you think that this is insane (and you're right) the answer is not to whine about what Aereo is doing, but to note that it's copyright law that leads to this bizarre result. Don't blame Aereo for following exactly what the law says, and then say it's a "gimmick." Blame the law for forcing Aereo down this path.

Of course, it's one thing for an uninformed magazine columnist to make this argument... but quite another for Supreme Court justices to do so themselves. And tragically, in the oral arguments, a few of them appeared to be coming close to making that kind of argument (though not so ridiculously as the column above). The worst offender was Chief Justice Roberts, who asked:
All I'm trying to get at, and I'm not saying it's outcome determinative or necessarily bad, I'm just saying your technological model is based solely on circumventing legal prohibitions that you don't want to comply with, which is fine. I mean, that's -- you know, lawyers do that.
Note the twisting here. Complying with the law is now "circumventing legal prohibitions." Justices Ginsburg and Scalia both also asked about whether or not the technology decisions had any technological purpose, or if they were solely about the law (though, at least both questioned if the choices were about "complying" with the law). But the implication that is being raised (and has been explicitly raised by others) is that in setting up this "a Rube Goldberg–like contrivance" (as 2nd Circuit judge Denny Chin called Aereo in his dissent to the company's victory in that court) it means that they're somehow violating the law by meticulously complying with it.

And that's a very dangerous assumption, even by implication.

If that argument is allowed to fly, then it's not a stretch to see how copyright holders might twist lots of versions of complying with the law, into infringing on the law simply by arguing that the form of compliance is somehow "too clever." That would lead to all sorts of dangerous implications -- in which those who are being careful to comply with the law may suddenly be deemed infringing because of their careful compliance. Under such a standard, the more carefully you aim to comply with the law, the greater chance you can be accused of "contorting" yourself in a manner that allows copyright holders to argue that your compliance is somehow "less than sincere" as appears to be the main suggestion here.

It's troubling that at least a few of the Supreme Court Justices appear to even be considering such a possibility.

Yes, Aereo's setup is technologically bizarre. But that's because it's doing everything to comply with copyright law. If you have a problem with it, it's not because the company is breaking the law, it's because the law itself is broken. It would be a cruel twist of fate for Aereo to lose its case because Supreme Court Justices believed that it had broken the law, because the inevitable results of the broken law itself create a situation where complying with the law looks so bizarre that it appears to be infringement!

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Author: "Mike Masnick"
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Date: Wednesday, 23 Apr 2014 16:05
The ACLU has jumped into a troubling legal fight, in which it appears that the DOJ has issued gag orders against Twitter and Yahoo concerning grand jury subpoenas that have been sent to both companies. This case is one we mentioned last week where magistrate judge John Facciola asked the two companies to weigh in, as he appears unconvinced that the government's request is sound. However, the whole thing is happening under seal, which the ACLU feels is inappropriate, given the importance of allowing companies to respond freely to such requests, without being gagged.

The ACLU filed a motion last night seeking to represent the public's interest in open court proceedings when the government seeks gag orders on Internet companies. We know about the three cases only because the magistrate judge pushed back on the government, inviting Yahoo and Twitter to weigh in and ordering the government to make its legal arguments public. The government appealed those orders to a district court, where the judge ordered the appeals sealed. The ACLU is now moving to intervene in the district court for the purpose of opening these gag order proceedings to public scrutiny. In a democracy, if your government is going to gag someone from speaking, it should publicly explain why.

The federal government has an awesome array of tools and technologies in its investigative arsenal, and it often goes to great lengths to shield its tactics from outside scrutiny. Not only does this secrecy prevent people from challenging surveillance used against them, but it also means that elected officials can't openly debate the underlying policies, and communities can't discuss their government's actions.

Traditionally, gag order applications are considered ex parte – meaning with only the government's argument on the record before the court. However, Magistrate Judge Facciola noted that the government's request in this case raised controversial legal questions, and so invited Twitter and Yahoo to respond. (In one case, the government withdrew its gag order application after Judge Facciola invited Twitter's participation.) He also ordered the government file public copies of its gag order applications with limited redactions.

It's good to see at least some pushback on the feds' attempt to get information and to silence companies from saying anything about it. But it's still quite troubling that they seem to assume they have near free rein to do so in the first place. Kudos to the ACLU for stepping in as well, and representing the public interest.

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Author: "Mike Masnick"
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Date: Wednesday, 23 Apr 2014 14:47
We didn't write about this case when it came out because it just seemed so ridiculous, but filmmaker Quentin Tarantino sued Gawker Media earlier this year for linking to a script he had apparently been working on. There had been a bunch of media coverage over the fact that his script for The Hateful Eight leaked, and was being shared around Hollywood, though not online. Gawker then asked anyone if they'd seen a copy, leading to a followup post which included a link to the newly leaked script.

Tarantino argued that by soliciting from the public a copy of the script and then subsequently linking to it, Gawker was guilty of contributory infringement. Thankfully, a federal court that actually understands copyright law has quickly disabused Tarantino of that bizarre interpretation of copyright law, granting Gawker's motion to dismiss. The big problem: at no point anywhere in the process above, did Tarantino's lawyer show how Gawker's actions resulted in anyone infringing on anyone's copyright. That makes it quite hard to pin "contributory infringement" when there's no direct infringement in the first place:
However, nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place. For example, Plaintiff’s Complaint fails to allege the identity of a single third-party infringer, the date, the time, or the details of a single instance of third-party infringement, or, more importantly, how Defendant allegedly caused, induced, or materially contributed to the infringement by those third parties
In a footnote, the court further notes that even if Tarantino's lawyers could dredge up some example of direct infringement based on someone reading the script, the lawsuit still wouldn't make any sense:
Even if Plaintiff alleged that individuals accessed the links contained in Defendant’s article in order to read Plaintiff’s script, such an allegation would still not support Plaintiff’s contributory infringement claim against Defendant. Simply viewing a copy of allegedly infringing work on one’s own computer does not constitute the direct infringement necessary to support Plaintiff’s contributory infringement claim. See Perfect 10, Inc., 508 F.3d at 1169 (where alleged primary infringers merely view pages containing infringing images, but do not “store[] infringing images on their computers,” there is no infringement). In addition, based on the allegations of the Complaint, there can be little doubt that Plaintiff has a strong claim for direct infringement against Doe 1, a/k/a AnonFiles.com. However, Plaintiff has not alleged and it is highly unlikely that Plaintiff will be able to plead facts demonstrating that Defendant somehow induced, caused, or materially contributed to the infringing conduct by publishing a link to the screenplay after it was wrongfully posted on AnonFiles.com.
The court notes that Gawker spent a lot of effort explaining why this is fair use but notes that, "albeit persuasive and potentially dispositive," it doesn't even need to bother with that argument since there's no infringement to defend against fair use here anyway.

Once again, it seems like people who grow up totally immersed in a world of copyright maximalism automatically leap to the conclusion that "something I don't like" must be an infringement of copyright. Thankfully, the law (mostly) doesn't work that way.

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Author: "Mike Masnick"
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Date: Wednesday, 23 Apr 2014 12:43

Cops lie. Citizens know this. Defense attorneys know this. Prosecutors know this. Most importantly, judges know this. But rarely does it have any effect on the outcome of the case at hand. But in what has been described as a "Perry Mason moment," five Illinois police officers were caught lying on the stand. (h/t to Trevor Debus)

A seemingly routine suppression hearing in a suburban Chicago courthouse last month took an unexpected dramatic turn when video from a police car was introduced that disproved the testimony of five police officers.

They had said Joseph Sperling was arrested after officers who pulled him over in a traffic stop smelled marijuana, searched the vehicle and found nearly a pound in a backpack lying on the back seat of his car. But the Glenview police video showed the search occurred only after Sperling was taken from his car, frisked and handcuffed, reports the Chicago Tribune (sub. req.).
I suppose once the film rolled, there was little the judge could do but address it. It's one thing for a cop to lie in the courtroom and have it discovered months, weeks or even years later. It's quite another when the testimony is rebutted by video evidence during the same hearing.
"All the officers lied on the stand today," said [Judge Catherine] Haberkorn, who herself is a former prosecutor, at the March 31 hearing. "So there is strong evidence it was conspiracy to lie in this case, for everyone to come up with the same lie."
The officers, currently on desk duty, apparently did conspire to lie about the specifics of the search, at least according to the lawsuit filed by the arrestee shortly after this suppression hearing went sideways.
Joseph Sperling says in his suit that Chicago police asked Glenview officers at the scene of his arrest last June to turn off their squad car dashcams. At least one Glenview officer didn't, resulting in video footage that persuaded a Cook County Circuit Court judge to grant a motion to suppress seized evidence, because police testimony contradicted what the camera showed.
This case has obviously provoked quite a bit of discussion as to how often cops lie and what the final arbiters -- the judges -- do when they take this knowledge into consideration. The answers, unfortunately, are depressing. Even if these temporary desk jockeys manage to retain their jobs, one would think their days as credible witnesses are over. Nothing could be farther from the truth.

Scott Greenfield talks about one judge he heard discuss why he kept on pushing defendants into the maw of the prison system, even while knowing those on the law enforcement side weren't necessarily any better when it came to truth-telling.
After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary…

What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn’t deserve to be there, and he wasn’t going to cut everyone free because he couldn’t tell who was who. […] He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable.
Judge Richard Kopf, prompted by Greenfield's post, offered his own thoughts as to why he finds cops credible witnesses, despite loads of evidence otherwise. It's a bracing read and admirably soul-baring, but it's not going to make anyone feel any better about their odds against a lying law enforcement officer. While he makes several points that indicate he's still more careful in his selection process than the Judge Harold mentioned above, he does make the following indictment of his own beliefs and behavior.
I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.
Will Baude at the Volokh Conspiracy, who originally questioned whether these five cops would be unable to offer believable testimony in the future, gathered some notable comments from Judge Kopf's post that lend credence to the belief that everyone in the courtroom knows cops lie, but there's very little anyone's actually willing to do about it, partly because the system destroys judges who refuse to play along.

Lorin Duckman, a former New York judge, noted how the system lends itself to accommodating lying cops, if only to keep the system moving at the pace that pleases most of those involved.
It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants for their livelihood ...
But Duckman also points out that judges have their own livelihoods to consider, and speaking aloud about the fact that cops lie on the stand tends to short-circuit their futures.
[M]ost of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear[t], they did.

A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I?
The system is broken all the way up and all the way down. These five cops were very possibly only called out because it was unavoidable. Their punishment for being caught perjuring themselves has been desk duty, something that may seem tedious compared to pulling people over and illegally searching their vehicles, but can hardly be considered a true punishment. It's not as though the facts are disputed. The cops are being "investigated" after lying in court in front of a judge and several witnesses. There's literally nothing to "investigate."

This is just two police departments (Glenview and Chicago) buying time until they can weigh possible punishments and outcomes. As few judges are willing to confront the fact that cops lie with the same frequency as other human beings, just as few PDs are willing to terminate officers (partly due to pushback from officers' unions), no matter the wrongdoing.

But before all hope is destroyed, another judge (Alabama's Judge Joseph Johnson) commenting at Kopf's blog noted the status quo is changing, at least in his courtroom.
Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tired of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expect this in this age of technology.” We will see.
Looking at this and another set of isolated incidents -- the pushback by two judges against overly-broad search warrants -- gives a modicum of hope that law enforcement will be finally forced to play by the rules that have been existent since shortly after the founding of this nation. It's too little, far too late and it's marked by outliers rather than exceptions to the rule. But at least it's something. And the more the public is informed about the routine abuse of civil liberties by law enforcement, the less those tasked with handling the intersection of cops and civilians will be able to ignore the reality of the situation and blithely (and blindly) believe badges denote a more trustworthy class of human.



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Author: "Tim Cushing"
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Date: Wednesday, 23 Apr 2014 10:41

Many people will be familiar with the name Carlos Slim as intermittently the richest person in the world, generally vying with Bill Gates for that title. Some will probably be aware that his huge fortune -- currently listed as $69.67 billion in his Wikipedia entry -- is derived from a business empire based on telecommunications. But as this article in the Los Angeles Times points out, ordinary Mexicans have paid a high price for his success -- literally:

telephone service, both land-line and cellular, is dominated by companies owned by Mexican tycoon Carlos Slim, one of the world's richest men, who has grown his businesses throughout Latin America. That means Mexicans pay some of the world's highest prices for some of the spottiest phone service.
Nor is that the only sector in Mexico where business power is highly concentrated:
For years, most of Mexican television has been dominated by a single company, Televisa, the largest broadcaster in the Spanish-speaking world. (Most of the rest is controlled by another single company, TV Azteca.)
On the face of it then, a new Mexican telecoms law that aims to loosen the grip of those dominant companies should be a good thing. But increasingly people are worried that its bad elements may outweigh the good, as Global Voices explains:
Billed as an effort to break up Mexico's notorious telecommunications and broadcast monopolies, the law covers a broad range of electronic communications issues -- and treads heavily in human rights territory. At the behest of the "competent" authorities, the law authorizes telecommunications companies to "block, inhibit, or eliminate" communications services "at critical moments for public and national security." The law also authorizes Internet service providers to offer service packages that "respond to market demands" and differentiating in "capacity, speed, and quality" -- a measure that could preclude protections for net neutrality in the country. To top it off, security measures in the law would allow authorities to track user activity in real time using geolocation tools, without obtaining prior court approval.
That's a pretty toxic mix -- censorship, real-time surveillance and no net neutrality. The good news is that Mexicans are starting to mobilize against the proposed measures:
ContingenteMX, a nonprofit collective consisting of Human Rights, environmental and social network activists and citizens, hereby demands a guarantee that the inalienable right of free Internet access -- established on the Constitution -- be clearly spelled out in Mexico’s Telecommunications and Broadcasting Law. It also requests that the constitutional citizen initiative "Internet Libre para Todos" (Free Internet For All), signed by over 223 thousand duly identified citizens and delivered to Congress in 2013 as a proposal to guarantee the right of Internet access become law.
According to a report on vice.com, people have already taken to the streets in protest against the new law. In addition:
Mexico's human rights commission has already denounced the legislation for violating basic constitutional rights including the right to privacy and freedom of expression. In the coming weeks the legislation will go before the senate and Internet freedom activists are hoping it will get voted down.
Let's hope so too.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+



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Author: "Glyn Moody"
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Date: Wednesday, 23 Apr 2014 07:20
We've covered the ridiculousness of the UK's "voluntary" web filters. UK officials have been pushing such things for years and finally pushed them through by focusing on stopping "pornography" (for the children, of course). While it quickly came out that the filters were blocking tons of legitimate content (as filters always do), the UK government quickly moved to talk about ways to expand what the filters covered.

The pattern is not hard to recognize, because it happens over and over again. Government officials find some absolute horror -- the kind of thing that no one will stand up for -- to push for some form of censorship. Few fight back because no one wants to be seen as standing up for something absolutely horrific online, or be seen as being against "family values." But, then, once the filters are in place, it becomes so easy both to ignore the fact that the filters don't work (and censor lots of legitimate content) and to constantly expand and expand and expand them. And people will have much less of a leg to stand on, because they didn't fight back at the beginning.

That appears to be happening at an astonishingly fast pace in the UK. Index On Censorship has a fantastic article, discussing how a UK government official has already admitted to plans to expand the filter to "unsavoury" content rather than just "illegal."
James Brokenshire was giving an interview to the Financial Times last month about his role in the government’s online counter-extremism programme. Ministers are trying to figure out how to block content that’s illegal in the UK but hosted overseas. For a while the interview stayed on course. There was “more work to do” negotiating with internet service providers (ISPs), he said. And then, quite suddenly, he let the cat out the bag. The internet firms would have to deal with “material that may not be illegal but certainly is unsavoury”, he said.

And there it was. The sneaking suspicion of free thinkers was confirmed. The government was no longer restricting itself to censoring web content which was illegal. It was going to start censoring content which it simply didn’t like.
It goes on, in fairly great detail, to describe just how quickly the UK is sliding away down that slippery slope of censorship. It highlights how these filters were kicked off as an "anti-porn" effort, where the details were left intentionally vague.
But David Cameron positioned himself differently, by starting up an anti-porn crusade. It was an extremely effective manouvre. ISPs now suddenly faced the prospect of being made to look like apologists for the sexualisation of childhood.

Or at least, that’s how it was sold. By the time Cameron had done a couple of breakfast shows, the precise subject of discussion was becoming difficult to establish. Was this about child abuse content? Or rape porn? Or ‘normal’ porn? It was increasingly hard to tell.
And, of course, the fact that the filters go too far, is never seen as a serious problem.
The filters went well beyond what Cameron had been talking about. Suddenly, sexual health sites had been blocked, as had domestic violence support sites, gay and lesbian sites, eating disorder sites, alcohol and smoking sites, ‘web forums’ and, most baffling of all, ‘esoteric material’. Childline, Refuge, Stonewall and the Samaritans were blocked, as was the site of Claire Perry, the Tory MP who led the call for the opt-in filtering. The software was unable to distinguish between her description of what children should be protected from and the things themselves.

At the same time, the filtering software was failing to get at the sites it was supposed to be targeting. Under-blocking was at somewhere between 5% and 35%.

Children who were supposed to be protected from pornography were now being denied advice about sexual health. People trying to escape abuse were prevented from accessing websites which could offer support.

And something else curious was happening too: A reactionary view of human sexuality was taking over. Websites which dealt with breast feeding or fine art were being blocked. The male eye was winning: impressing the sense that the only function for the naked female body was sexual.
But, of course, no one in the UK government seems to care. In fact, they're looking to expand the program. Because it was never about actually stopping porn. It was always about having a tool for mass censorship.
The list was supposed to be a collection of child abuse sites, which were automatically blocked via a system called Cleanfeed. But soon, criminally obscene material was added to it – a famously difficult benchmark to demonstrate in law. Then, in 2011, the Motion Picture Association started court proceedings to add a site indexing downloads of copyrighted material.

There are no safeguards to stop the list being extended to include other types of sites.

This is not an ideal system. For a start, it involves blocking material which has not been found illegal in a court of law. The Crown Prosecution Service is tasked with saying whether a site reaches the criminal threshold. This is like coming to a ruling before the start of a trial. The CPS is not an arbiter of whether something is illegal. It is an arbiter, and not always a very good one, of whether there is a realistic chance of conviction.

As the IWF admits on its website, it is looking for potentially criminal activity – content can only be confirmed to be criminal by a court of law. This is the hinterland of legality, the grey area where momentum and secrecy count for more than a judge’s ruling.

There may have been court supervision in putting in place the blocking process itself but it is not present for individual cases. Record companies are requesting sites be taken down and it is happening. The sites are only being notified afterwards, are only able to make representations afterwards. The traditional course of justice has been turned on its head.
And it just keeps going on and on. As the report notes, "the possibilities for mission creep are extensive." You don't say. They also note that technologically clueless politicians love this because they can claim they're solving a hard problem when they're really doing no such thing (and really are just creating other problems at the same time):
MPs like filtering software because it seems like a simple solution to a complex problem. It is simple. So simple it does not exist.
Of course, if you recognize that the continued expansion of such filters was likely the plan from the beginning, then everything is going according to plan. The fact that it doesn't solve any problems the public are dealing with is meaningless. It solves a problem that the politicians are dealing with: how to be able to say they've "done something" to "protect the children" while at the same time building up the tools and powers of the government to stifle any speech they don't like. To those folks, the system is working perfectly.

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Author: "Mike Masnick"
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Date: Wednesday, 23 Apr 2014 03:17
Back in December, it was revealed that the NSA had given RSA $10 million to push weakened crypto. Specifically, RSA took $10 million to make Dual Elliptic Curve Deterministic Random Bit Generator, better known as Dual_EC_DRBG, as the default random number generator in its BSAFE offering. The random number generator is a key part of crypto, because true randomness is nearly impossible, so you need to be as random as possible. If it's not truly random, you've basically made incredibly weak crypto that is easy to break. And that's clearly what happened here. There were other stories, released earlier, about how the NSA spent hundreds of millions of dollars to effectively take over security standards surreptitiously, including at least one standard from the National Institute of Standards and Technology (NIST). People quickly realized they were talking about Dual_EC_DRBG, meaning that the algorithm was suspect from at least September of last year (though there were indications many suspected it much earlier).

In response to all this, NIST quickly issued an announcement recommending against using Dual_EC_DRBG, but it didn't finally remove it from its random number generator recommendations until this week -- following through on an open comment process on changing its recommendations.

Following a public comment period and review, the National Institute of Standards and Technology (NIST) has removed a cryptographic algorithm from its draft guidance on random number generators. Before implementing the change, NIST is requesting final public comments on the revised document, Recommendation for Random Number Generation Using Deterministic Random Bit Generators (NIST Special Publication 800-90A, Rev. 1).

The revised document retains three of the four previously available options for generating pseudorandom bits needed to create secure cryptographic keys for encrypting data. It omits an algorithm known as Dual_EC_DRBG, or Dual Elliptic Curve Deterministic Random Bit Generator. NIST recommends that current users of Dual_EC_DRBG transition to one of the three remaining approved algorithms as quickly as possible.

In September 2013, news reports prompted public concern about the trustworthiness of Dual_EC_DRBG. As a result, NIST immediately recommended against the use of the algorithm and reissued SP 800-90A for public comment.

Some commenters expressed concerns that the algorithm contains a weakness that would allow attackers to figure out the secret cryptographic keys and defeat the protections provided by those keys. Based on its own evaluation, and in response to the lack of public confidence in the algorithm, NIST removed Dual_EC_DRBG from the Rev. 1 document.

In the announcement, NIST also points out that it's reviewing its cryptographic standards development process, to try to prevent this sort of thing from happening again.

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Author: "Mike Masnick"
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Date: Wednesday, 23 Apr 2014 00:00
Robots that mimic biological organisms can take advantage of centuries (or more) of evolution to perform various tasks. Robot locomotion that cheats off nimble animals could be more adaptable in natural environments -- and animal-inspired bots could teach robot designers about how to make robots that are more flexible in uncontrolled conditions (outside of factories). Here are just a few more examples of biomimicry. If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Author: "Michael Ho"
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Date: Tuesday, 22 Apr 2014 22:59
Late last fall, we highlighted some very questionable practices by Intellectual Ventures in suing a bunch of big banks for patent infringement. Our focus was on a particular patent, 6,182,894, which was initially assigned to American Express, and which claimed to cover the concept of CID or CVV codes (those little extra three numbers on the back of your credit card you're supposed to type in as an added security measure). American Express, perhaps realizing how ridiculous it would be to sue over such a patent "donated" it to a non-profit, the Consumer and Merchant Awareness Foundation ("CMAF"), who explicitly promised that it would only be used to encourage better credit card security, and that it would never use the patent "against issuers, acquirers, merchants or consumers related to activity in the retail financial services and payment areas." Of course, it took all of about two years before CMAF effectively sold the patent to Intellectual Ventures, and then disappeared as an entity. IV, apparently, felt that it was not bound by the original promises, and started suing basically everyone. Soon after our story appeared exposing this questionable activity, Intellectual Ventures suddenly decided to drop that particular patent from its lawsuit. Shocking.

However, it continued with a few other patents... but that all ended last week when a judge rejected the remaining patents as completely bogus:
... the Court concludes as a matter of law, based on a clear and convincing evidence, that neither the '137 nor the '382 patent contains patentable subject matter under Section 101.... Nothing in the Court's Claim Construction establishes patentability, since however the claim terms may be construed each patent consists of nothing more [than] the entry of data into a computer database, the breakdown and organization of that entered data according to some criteria, disclosed in the '137 patent, but not the '382 patent, and the transmission of information derived from that entered data to a computer user, all through the use of conventional computer components, such as a database and processors, operating in a conventional manner. There is no inventive technology or other inventive concept that authorizes the protections of a patent, such as an improvement in the workings of the computer or the transmissibility of data or some other transformation of data into something qualitatively beyond the informational content of the data entered, even though the data might be organized and manipulated to disclose useful correlations. Rather, these patents are "drawn to a mental process -- i.e., an abstract idea."...
The two patents in question, 8,083,137 and 7,603,382, describe some rather basic and obvious ideas that a couple of patent lawyers twisted around to make it appear like they were patentable. The '382 patent claims to patent offering up a custom webpage to a user based on their personal preferences. The '137 patent is about "administering financial accounts." In both cases, Joe Mullin in the link above notes that they appear to have really originated with patent lawyers. The '137 patent did come from an engineer, but it wasn't because of anything she invented. She was doing some retirement planning, and her patent lawyer husband thought that her ideas for tracking budgets could be patented. The '382 patent just came straight from a patent lawyer.

And, of course, what the judge was noting above, is that neither should have been granted as patents in the first place, because both just involved basic data processing that any software could do. Neither did anything even remotely inventive. And, of course, the fact that both originated with patent lawyers highlights just how bogus IV's constant refrain is about how it's protecting individual inventors. It's never been about individual inventors at all.

It's been about the lawsuits and the money.

Which is why it should be no surprise to read about IV's response to this complete loss:
[Our] patent portfolio is deep and we have another action pending against Capital One in Maryland. We remain committed to defending our intellectual property rights, as well as those of our customers and investors.
In other words, okay, if we didn't get you with the first batch of bogus patents, we have tens of thousands of other bogus patents, and sooner or later, some judge will either let us win, or these banks will fork over lots of cash to make us go away.

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Author: "Mike Masnick"
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Date: Tuesday, 22 Apr 2014 21:59
A recent article in the NY Times talked about how the US State Department is behind a project to build up mesh networks that can be used in countries with authoritarian governments, helping citizens of those places access an internet that is often greatly limited. This isn't actually new. In fact, three years ago we wrote about another NY Times article about the State Department funding these kinds of projects. Nor is the specific project in the latest NYT article new. A few months back, we had covered an important milestone with Commotion, the mesh networking project coming out of New America Foundation's Open Technology Institute (OTI).

But the latest NYT article is especially odd, not because it repeats old news, but because it tries to build a narrative that Commotion and other such projects funded by the State Department are somehow awkward because they could be used to fight back against government surveillance, such as those of the NSA. The problem is that the issues are unrelated, and nothing in mesh networking deals with stopping surveillance. As Ed Felten notes, the Times reporters appear to be confusing things greatly:
There’s only one problem: mesh networks don’t do much to protect you from surveillance. They’re useful, but not for that purpose.

A mesh network is constructed from a bunch of nodes that connect to each other opportunistically and figure out how to forward packets of data among themselves. This is in constrast to the hub-and-spoke model common on most networks.

The big advantage of mesh networks is availability: set up nodes wherever you can, and they’ll find other nearby nodes and self-organize to route data. It’s not always the most efficient way to move data, but it is resilient and can provide working connectivity in difficult places and conditions. This alone makes mesh networks worth pursing.

But what mesh networks don’t do is protect your privacy. As soon as an adversary connects to your network, or your network links up to the Internet, you’re dealing with the same security and privacy problems you would have had with an ordinary connection.
The whole point of Commotion and other mesh networks is availability, not privacy. The target use is for places where governments are seeking to shut down internet access, not surveil on them. Yes, there is a case where if you could set up a mesh network that then routed around government surveillance points you could circumvent some level of surveillance, but the networks themselves are not designed to be surveillance proof. In fact, back in January when we wrote about Commotion, we pointed out directly that the folks behind the project themselves are pretty explicit that Commotion is not about hiding your identity or preventing monitoring of internet traffic.

Could a mesh network also be combined with stronger privacy and security protections? Yes, but that's different than just assuming that mesh networking takes on that problem by itself. It doesn't -- and it's misleading for the NYT to suggest otherwise.

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Author: "Mike Masnick"
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Date: Tuesday, 22 Apr 2014 21:01
The oral arguments in the Aereo case happened this morning before the Supreme Court and you can read the transcript here (it's still a travesty that there is no live broadcasting (or any video recording at all) of the proceedings, but that's a different argument for a different day). As with any such case, this discussion needs to be prefaced with the fact that reading the tea leaves from what Justices say during oral arguments is a unlikely to yield much that is useful. You'll often see large segments of the arguments discuss issues that later don't appear at all in the final ruling. In some cases, Justices are just testing out certain theories or pushing the lawyers to see how they respond. Oral arguments do matter, but not nearly as much as the underlying briefs. We still have a few months (probably) to find out how the Court will rule, but we can at least comment on some of today's discussion.

The important thing to get from the discussion was that the Justices, for the most part, seem to actually recognize that with copyright law the way it is today, finding -- as the broadcasters would like -- that Aereo is engaged in a public performance -- may have long term consequences for all sorts of other industries. It starts off early on, with Justice Sotomayor jumping in with a very different question, concerning whether or not Aereo is a cable company, which would include a different set of issues (in fact, this was exactly the strategy that Aereo competitor/predecessor ivi sought to take -- and ran into trouble). She points out that there may be value in avoiding the whole public performance question all together, since it could get messy:
If we take public performance, maybe we run into what Professor Nimmer saw as a problem. Why isn't what used to be called a phonograph record store that sells phonograph records to 10,000 customers a public performance? It seems to fall within that definition. But if it is, there's no -- no first sale doctrine and it's a big problem. So we could avoid that problem.
Meanwhile, Justice Breyer is clearly concerned about the possible impact on the cloud, again in discussing the possibility that the Court could avoid the issue by calling Aereo a cable company:
And what you've read in their briefs is they, in their supporting amici, have thrown up a series of serious problems not involving them, like the cloud, which the government tells us to ignore, and many others, which make me nervous about taking your preferred group.
Which bounces back to Sotomayor, who notes that the public performance definition the broadcasters want "sweeps up" an awful lot of other businesses where it doesn't make sense:
I mean, Justice Breyer has already asked you -- said he's troubled about the phonograph store, and -- and the Dropbox and the iCloud. I'm also worried about how to define or -- public performance or the performance of a work publicly, which I guess is the better way to do it, according to you. How do I define that so that someone who sells coaxial cable to a resident of a building is not swept up as a participant in this? Or someone who -- the sort of passive storage advisors that -- this is really hard for me.
Justice Kagan, also, quickly gets to the heart of the matter -- the point that we've been raising since the beginning with Aereo -- that this is all about the length of the cable. If someone were to do this at home -- with the same exact electronic setup, it's clearly legal. But the broadcasters want to make Aereo illegal, because the length of the cable between the "DVR" component and the "TV" component is much longer.
Suppose a company just gave the antenna and a hard drive, that's what they sold to the user, and the user was able to use the antenna and the hard drive in her own house or apartment in order to get all these broadcast programs. What would the -- would that be a performance?
When the broadcaster's lawyer pushes back, Kagan points out that it does seem odd that where the hardware sits determines if there's a public performance or not.
But then it really does depend on, like, where the -- where the hardware is. In other words, if -- if Aereo has the hardware in its warehouse as opposed to Aereo selling the hardware to the particular end user, that is going to make all the difference in the world as to whether we have a public performance or not a public performance.
Chief Justice Roberts highlighted the same issue:
Why isn't -- and I don't want to stretch it too -- but why isn't it like a public garage in your own garage? I mean, you know, if you -- you can park your car in your own garage or you can park it in a public garage. You can go to Radio Shack and buy an antenna and a DVR or you can rent those facilities somewhere else from Aereo. They've -- they've got an antenna. They'll let you use it when you need it and they can, you know, record the stuff as well and let you pick it up when you need it
There's then a discussion trying to see if there's a way to distinguish Aereo from the Cablevision decision (in the 2nd Circuit appeals court) saying that Cablevision's remote DVR was legal. The lawyer for the broadcaster says that he thinks the Cablevision decision was decided incorrectly, but the difference is that Cablevision already has a license. This is misleading, because the license in Cablevision was unrelated to the issue of the DVR feature. Furthermore, over-the-air broadcasts (which is what Aereo offers) have an implied license already associated with them (you don't have to pay to watch over-the-air TV for that very reason). So the distinction here is meaningless. Justice Breyer says that, even if that's true, there's still a real risk to cloud computing.
But then the problem is in the words that do that, because we have to write words, are we somehow catching other things that really will change life and shouldn't, such as the cloud? And you said, well, as the government says, don't worry, because that isn't a public performance. And then I read the definition and I don't see how to get out of it.
When asked similar questions, the Deputy Solicitor General, Malcolm Stewart, (again, bizarrely, the US is intervening on behalf of Hollywood for no clear reason), appears to admit that there's no clear line, and that things should be decided on something of a case by case basis:
I think you would have to -- you would have to know both the details of the service and you would have to be making a harder call there about how to draw the line, because I don't pretend that there is a bright line between providing a service and providing access to equipment. If you look, for instance, at the extremes of a person putting a rooftop antenna at his own home, everybody agrees that the rooftop antenna manufacturer is not performing at all and the individual is engaged in a solely private performance.

The other extreme is the cable company, one big antenna, makes transmissions to a lot of people; Congress clearly intended to define that as a private performance. Somewhere in the -- you could come up with lots of hypotheticals that look more or less like one of the other extremes, they are somewhere in the middle. It's an authentically hard call as to where to draw the line. So I don't have a good answer for you.
But that seems rather important, given that this case is asking for that line to be drawn. And the Justices were clearly struggling with that point. Justice Breyer responded:
How do we get out of the example? I mean, how do we get out -- what words do I write to get out of this, throwing into this clause a music store that distributes via Federal Express, a device, or the U.S. Postal Service or even someone over the counter, distributes to 10,000 people a copy of a record which they then will take and play it? They have, to the same degree, transmitted something that will electronically make a performance of the music. So are they when they sell the record violating the display clause?
This isn't to say that the Justices are in agreement with Aereo. They expressed plenty of skepticism about the whole setup, arguing repeatedly that the whole thing seems to have been set up solely to fit within the law, using a technological setup that makes no sense. Aereo, in response, sought to argue that there were technical reasons for its setup, but frankly, that's bogus. The technological setup is insane, but the insanity is not because Aereo is trying to "get around" the law, but the exact opposite. Because it's trying to stay within the law. If the setup of copyright law itself wasn't so insane, there would be much better ways to do what Aereo is doing. But thanks to a bunch of interlocking "rights" buried within copyright law, and caselaw that is basically duct-taped onto the statute every time a new technology comes around, actually innovative requires the Rube Goldbergian-approach that Aereo took just to stay within the law. It's ridiculous that that is seen as a suggestion of illegality...

When the broadcasters lawyer comes back to rebut Aereo's lawyer, he argues that if Aereo loses, it can just get a license or go out of business. But Justice Breyer notes that it's really not that simple:
Once you take them out of the compulsory licensing system, they're going to have to find copyright owners, who owns James Agee's pictures? Who owns something that was written by -- like a French silent film in 1915? I mean, the problem is that they might want to have perfectly good things that people want to watch and they can't find out how to get permission. That is a problem that worries me and it worries me again once you kick them out of the other systems
In the end, I think the Justices were rightly worried about how any ruling might impact the cloud. While there was some skepticism about Aereo's setup, Aereo's lawyer did a good job highlighting why those were wrong. Still -- and again, reading Supreme Court tea leaves is nearly impossible -- if I were going to guess, I'd guess that the Supreme Court will seek some sort of "narrow" ruling that tries to say that Aereo should get a license (possibly just throwing the issue back to the lower courts on the details), while doing everything it can to avoid a ruling that throws the entirety of cloud computing under the bus.

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Author: "Mike Masnick"
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Date: Tuesday, 22 Apr 2014 20:13
Having followed the saga of Prenda Law over the past few years, one thing has become clear: John Steele really loves the "I know you are, but what am I" form of legal argument, in which whatever he's accused of, he aggressively accuses his accuser of being guilty of the same. It's a sort of faux macho move, in which every attack on him is met with an equally or more aggressive attack. To date, the strategy has failed badly, but it seems that Steele just can't let go of this kind of approach. In the latest round of the Anthony Smith case, Steele appears to be trying on a variant of that aggressive posture, taking on the very serious and direct accusations made against him (including those by multiple federal judges) and mocking them, by asking another court rhetorically, "what, do you really think I'm guilty of all these crazy things?" when the answer to that question may very well be yes.

At issue is the continuing fight over getting Steele and his collaborators, Paul Hansmeier and Paul Duffy, to actually pay up for their abuse of the legal process. Last we checked in on this particular case, the district court was finding them in contempt and piling more onto the money they would need to pay, while the appeals court does not appear to be impressed by Team Prenda's arguments, clearly calling out the "shell games" that Prenda and associated entities were playing.

While aspects of the case have been stayed during the appeal, other aspects are moving forward, including Smith's lawyer continuing to push for discovery on the actual assets of Steele, Hansmeier and Duffy. As you may recall, despite being required to provide such information, they did so in a questionable manner. As Judge David Herndon pointed out:
The Court finds that plaintiff's counsel has not met its burden. They submitted incomplete, and to say the least suspicious, statements of financial condition. Attached to each statement was a letter from their certified public accountant ("CPA"). In these letters, the CPA indicates a departure from generally accepted accounting principles. He further notes that plaintiff's counsel elected to omit substantially all of the disclosures required by generally accepted accounting principles. The Court finds these statements insufficient to establish plaintiff's counsel's inability to pay.
Since then, Smith's lawyer, Jason Sweet of Booth & Sweet, has continued to push for determining the financial position of the three individuals here. There's a sealed document which apparently hints at some shady financial dealings, but it appears to be making Steele very angry. While Paul Duffy filed a pretty empty opposition saying that he has no offshore accounts, Steele went into full on, ultra-aggressive "who me?" defensiveness in response, leading to some incredible statements, considering what multiple courts have already said about them. The classic part has to be this:
For this Court to find any act of Prenda should be attributed to Steele, the Court would have to believe that Steele lied to multiple federal judges without getting caught, committed massive tax fraud without the IRS finding out, and proactively broke into the Illinois Secretary of State’s corporate records database to hide his ownership of Prenda Law, all because of the remote chance that years later a federal judge might sanction Prenda Law for $261,000.
Except... of course, multiple judges have already claimed that Steele and the others have lied, including in this very case. In the original ruling in this case, Judge Patrick Murphy directly called out Steele for lying, saying: "These men have shown a relentless willingness to lie to the Court on paper and in person." He furthermore highlighted how it was quite clear that Steele was directly involved in Prenda, which Steele is now denying yet again. And no one is claiming he hacked into the corporate records database (though, now that he's denied it, it almost makes you wonder...), but that he was clearly in control of Prenda and received much of the money that went into Prenda.

As for the issue of the IRS, well, last we checked, at least one judge, Otis Wright, has referred their conduct to the IRS, and there are at least some indications that an investigation is ongoing. And while no one thinks they set up this shell game specifically to avoid this particular ruling, it's not difficult to see that they did so to try to avoid a series of similar court rulings, after Prenda's initial approach started getting regularly shot down in court.

Steele's response also ratchets up the ridiculous rhetoric in describing the copyright trolling shakedown business, which they copied from a bunch of other firms:
Steele and his partner, Paul Hansmeier (”Hansmeier”) were early pioneers in catching thieves and hackers who engaged in stealing copyrighted works and other computer related misdeeds, including computer hacking and copyright infringement.
Except, of course, they were neither pioneers, nor were they catching "thieves" or "hackers." Rather, by all accounts, they set up a honeypot site, uploaded their own content to it, shared it on file sharing sites, and then used the IP addresses of those who followed the release that they themselves put online, to shake them down with lawsuits and demands for settlement. The evidence on this is fairly overwhelming.

Steele tries to argue away the "oddities" the court noted in the filings made by the CPA they hired this way:
At the hearing, no reference was made to the GAAP, the Generally Accepted Accounting Rules, a set of standards designed for the financial reporting of corporations, not individuals. Steele submitted his financial statement as directed. Steele’s submissions were accurate, and no filing since has disproved any aspect of Steele’s statement
If he thinks that this will get him out of the fact that the CPA "elected to omit substantially all of the disclosures required" I would imagine he's got another thing coming.

Steele, also tries to angrily argue away the infamous Brett Gibbs spreadsheet that revealed the revenue of Prenda Law, and how 70% of it went to both Steele and Hansmeier, who have long denied being associated with that firm. Steele argues that this spreadsheet was made by Gibbs, as opposed to (as Gibbs has noted) made by Prenda and shared with Gibbs via a shared Dropbox account.
It appears that Mr. Gibbs created some accounting sheet of Prenda Law finances for some period of time prior to this case, and thus is irrelevant. Steele has no personal knowledge of Mr. Gibbs’ accounting records, methodology, or how Mr. Gibbs created his documents. According to Mr. Gibbs himself, he doesn’t either, and claims he doesn’t even know how his document came into existence. Such a document hardly comports with the Federal Rules of Civil Procedure governing admissible evidence.
He focuses on the fact that the spreadsheet is not admissible. Of course, his partner, Hansmeier, having argued basically the same thing in the past, has also suggested that the facts of the document are accurate, noting (incorrectly) that the document supports Steele/Hansmeier's position and that it was "stolen."

Related to all of this, Steele appears to still be playing games. In a separate filing, Sweet details how Steele took it upon himself to (incorrectly) inform various parties that Sweet had subpoenaed, that the stay on one part of the case meant those subpoenas were withdrawn as well. Except that they're part of a separate process, which is still ongoing. Sweet asked Steele to confirm that Steele had gone back to those third parties, and admitted that he was wrong in interfering with the discovery process. Steele did not do so, but rather sent one of his snarky emails about how he promises that he "will address your most recent round of subpoenas as appropriate."

It's been a while since Steele has done this kind of thing, but it's the same old John Steele, cocky until the very end, even as all of the evidence is against him. It reminds you of a little kid who has been caught doing something wrong but figures if he just keeps denying it over and over again, buying himself time, there will be some way to get out of it all.

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Author: "Mike Masnick"
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Date: Tuesday, 22 Apr 2014 19:11
For the past five years or so, the USTR's chief intellectual property negotiator has been Stan McCoy. McCoy has long positioned himself as an intellectual property maximalist, repeating talking points from lobbyists regularly, while condescending to anyone who questions the legitimacy of those claims. McCoy famously was the chief negotiator behind the US's disastrous (and mostly failed) attempt to push ACTA through, as well as the lead on the TPP's intellectual property chapter -- a chapter so bad it may help sink the TPP agreement. In fact, previous reports have noted that McCoy's bullying and aggression in trying to push through the TPP were angering others in the negotiations. McCoy also has a long history of mocking public interest advocates, while praising maximalists for similar tactics. From a report a few years ago concerning a hearing that McCoy chaired:
The burden of proof was very obviously on the public interest, civil society groups. Stan McCoy of the USTR, who was presiding over the hearing, joked about the two-phonebook-sized submission by the International Intellectual Property Alliance. (Lol?) Sadly, there is no independent verification of these industry reports and there were no tough questions for industry regarding their testimony. Several times, McCoy interrupted civil society groups’ testimony to chide them on speaking too generally about IP policy, but refrained when industry witnesses did the same.
Given all that, it should be no surprise at all that McCoy, the failed strategist behind ACTA and the TPP's IP provisions... has received his reward and pat on the back from the industry: a shiny new job at the MPAA. As Tim Lee notes in that link, this is just the latest in the never-ending revolving door between maximalist lobbying groups and the USTR:
Last year I wrote that at least a dozen former senior USTR officials have moved to industry groups that favor stronger protections. McCoy's hire makes it a baker's dozen. Previous hires include including Greg Frazier, who (according to his LinkedIn page) spent 8 years as the executive vice president of the Motion Picture Association of America after a stint at USTR. Other former USTR officials took jobs at drug and medical device companies.

McCoy's old job, assistant USTR for intellectual property and innovation, made him the Obama administration's highest-ranking trade negotiator on patent and copyright issues. Jamie Love, director of the public interest organization Knowledge Ecology International, notes that this isn't the first time USTR's top intellectual property official has gone on to take a lobbying job. McCoy's predecessor, Victoria Espinel, is now the head of the software industry group BSA.

Espinel's predecessor at BSA was Robert Holleyman, the man Obama just nominated to a senior post at USTR. While at BSA, Holleyman supported the controversial Stop Online Piracy Act, which would have created an official internet blacklist to aid in anti-piracy efforts. (He backtracked a few weeks later after an uproar in the technology community.

Another of McCoy's predecessors as USTR's top IP official is Joe Papovich, who later spent seven years as a lobbyist for the recording industry.
As Lee notes, the revolving door between maximalist lobbying organizations and the USTR goes round and round, with USTR officials joining the lobbyist organizations and then going back to the USTR. It's a clear case of regulatory capture by the industry. None of those folks go on to public interest or civil society groups, nor does the USTR ever seem interested in hiring those people. It's entirely a one-sided effort to help out the biggest lobbying interests. Work for a few years pushing through policies that favor those companies, and then get "rewarded" with a nice, high-paying job for those very same lobbyists, and no one ever seems to point out the obvious corruption in the entire process.

As Lee notes, as easy as it is to ascribe comic-book levels of ill-intent here, that's unlikely. McCoy and others genuinely believe what they're doing is the right thing. But the end results are clear:
I doubt public servants like McCoy consciously pursue dubious policies in an effort to curry favor with future employers. McCoy's press representative hasn't responded to my interview request, but I assume McCoy sincerely believes the Hollywood-friendly policies he advocated at USTR were in the interests of the nation.

But the revolving door between USTR and industry groups creates a strong but subtle pressure on USTR's culture. Like many government agencies, USTR regularly turns to outside experts to help it sort through complex trade issues. Naturally, they turn to people they trust: their former colleagues — or even former bosses — who now work at trade organizations with plenty of resources to devote to understanding the minutia of trade policy.
And it's even worse than that, frankly. Because, when you combine that revolving door, with the proposals seen in ACTA, TPP and elsewhere, it undermines the public trust in all of this. People see it and naturally assume corruption, even if the intent is pure. In other words, even if we give McCoy and others the benefit of the doubt, the very fact that he spent 5 years pushing entirely for the MPAA's policies, while brushing off any and all claims from the MPAA's critics, and then took a job at the MPAA, confirms in the minds of many people that the USTR has no interest in representing the public good. And that perception (regardless if the underlying intent is real or not) corrodes public trust in the federal government, and the USTR in particular.

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Author: "Mike Masnick"
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