Prosecutor Lays The Blame For The Ferguson Debacle At The Feet Of 'Social Media'

van TechDirt - 1 uur 14 min geleden
When prosecutor Robert McCulloch began his announcement of the grand jury's decision in Officer Darren Wilson's shooting of an unarmed Ferguson resident, he expressed his displeasure with a very familiar scapegoat: On August 9th Michael Brown was shot and killed by police officer Darren Wilson. Within minutes, various accounts of the incident began appearing on social media, accounts filled with speculation and little, if any, solid, accurate information...

The most significant challenge encountered in this investigation has been the 24-hour news cycle and its insatiable appetite for something, for anything, to talk about, following closely behind with the nonstop rumors on social media. One would have thought the most significant challenge would have been the investgation itself, rather than the words of multiple uninvolved parties. Government officials blaming outside entities for their own struggles and failures is nothing new. The normal, non-social media has taken numerous turns as the scapegoat du jour. But now it's more fashionable to blame the general public and their social outlets. When not blaming the public for talking about stuff, government officials blame the services themselves, villainizing them for providing platforms that criminals, terrorists and other malcontents might use.

Not included in the blame-shifting was the Ferguson police department's severe mismanagement of the "investigation," the decision to turn Ferguson into a lower-Midwest Afghanistan, the combativeness of the city's FOIA departments or the no-fly zone erected solely for the purpose of keeping the media out. No. As McCulloch saw it, the Twitter, Facebook, et al (but mostly Twitter) obstructed justice.

It's little surprise McCulloch has no affection for social media, especially when it's being used to highlight his inaccuracies.

"Darren Wilson never stood over Mike Brown's body" - Bob McCullough pic.twitter.com/TAe2gYGLoR

— Jay (@JayChillinBro) November 25, 2014 If you're going to open up your discussion of a heated issue by pointing fingers at everyone else, you can expect to be ridiculed mercilessly. The Hollywood Reporter has collected some great responses to McCullough's opening gambit. Here are a few of the better ones I spotted while hanging out on The Twit last night.
Wil Wheaton referenced a classic board game.

It was social media, on the internet, with the smart phone.

— Wil Wheaton (@wilw) November 25, 2014 It was social media, on the internet, with the smart phone. Lowering the Bar's Kevin Underhill stopped presses, shouted "Here's your headline, boys!"


— Kevin Underhill (@loweringthebar) November 25, 2014 FERGUSON PROSECUTOR ANNOUNCES GRAND JURY HAS INDICTED SOCIAL MEDIA God Himself:

Apparently Mike Brown was shot and killed by social media.

— God (@TheTweetOfGod) November 25, 2014 Apparently Mike Brown was shot and killed by social media McCulloch's "extended whine" (according to CNN legal analyst Jeffrey Toobin) has to be seen to be believed greeted with slow, disbelieving shakes of the head. In addition to blaming social media, McCulloch discussed the unreliability of eyewitness accounts, something cops and prosecutors tend to consider perfectly reliable when seeking to obtain warrants or indictments.

McCulloch didn't discuss his decision to take a (wholly fake) "impartial" stance during the grand jury deliberations rather than act as a prosecutor and drive for an indictment. His disingenuous nod towards "jury independence" was just a weak cover for his unwillingness to prosecute Darren Wilson. He also didn't discuss his family ties to law enforcement or his previous reluctance to pursue prosecution of police officers.

By the end of the press conference (which has been described as "bizarre" and "rambling"), McCulloch had made his views perfectly clear: the only person blameless in this incident is the officer who shot an unarmed man.

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T-Mobile Still Doesn't Understand (Or Simply Doesn't Care) That Their 'Music Freedom' Plan Tramples Net Neutrality

van TechDirt - 2 uur 14 min geleden
Back in June we noted how T-Mobile had unveiled a new "Music Freedom" program that exempts the biggest music streaming companies from T-Mobile's usage caps. When introduced at the time, T-Mobile pitched the idea as a huge win for consumers, as you could listen to say -- Spotify -- without worrying about eroding your usage allotments. T-Mobile also insisted that if your favorite service isn't included, you can just Tweet T-Mobile to have it whitelisted for cap exemption. Sounds like a great deal for everybody, right?

Well, no. Imagine you're one of the thousands of smaller streaming services or non-profits arbitrarily deemed too small to get on the cap-exemption list. You're suddenly facing a steeper competitive slope than ever before, given that larger companies' services are excluded from the cap and yours aren't. Whereas T-Mobile should be delivering all bits equally, by injecting themselves into the middle, they've tilted the playing field against small operations and non-profits. Meanwhile, begging the company via Twitter for inclusion is far from a transparent process. Furthermore, in doing this, T-Mobile is quite clearly admitting that the data caps it puts on are artificially low, harming consumers by charging them extra if they happen to use a higher bandwidth service that hasn't buddy'd up with the company.

At the time it was announced, ultra-hip T-Mobile CEO John Legere was "genuinely surprised" by the criticism from neutrality advocates, arguing that because nobody was paying T-Mobile to bypass the caps -- it couldn't possibly be a neutrality violation. Judging from this recent Reddit conversation, many consumers are confused as well, and are quite eager to root against their best self interest. The FCC has also made it clear they think this is simply "creative pricing," and won't be prohibited by the agency's new neutrality rules.

But because consumers, hipsteresque CEOs and regulators don't understand what's happening doesn't make it less true: T-Mobile's idea (and AT&T's similarly-minded sponsored data effort) sets horrible precedents by letting carriers artificially inject themselves into a content and service ecosystem that is healthier with them out of the way. Accept the idea that carriers can use caps in such a discriminatory fashion, and you're opening the door to a world of aggressive and anti-competitive behavior.

This week T-Mobile announced they've added a few more small services like Google Play Music and SoundCloud, bringing the total list of cap-exempt services to 27 (how many streaming music, audio services, radio stations and podcast broadcasts exist in the world again?). Meanwhile, Legere seems no more enlightened as to why setting arbitrary usage limits then exempting only some companies isn't really a good idea, patting himself on the back for being so pro consumer:"Music Freedom is pro-consumer, pro-music and pure Un-carrier," said John Legere, president and CEO of T-Mobile. “And today we’re taking another huge step toward our ultimate goal of including every streaming music service in the program. Anyone can play. No one pays. And everyone wins."Except again, not everybody wins. Does a small independent streaming radio station too little to meet T-Mobile's invisible interest threshold for whitelisted services "win" if their bits are counted against the cap, but the bytes of Pandora aren't? Net neutrality is about carriers getting out of the way, not erecting annoying new arbitrary systems of control and monetization. T-Mobile has made some great, pro-consumer moves of late, but this isn't one of them. The company either doesn't understand that "Music Freedom" tramples all over net neutrality, or they understand this all too well and simply hope consumers are too stupid to notice.

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[Feature] Invitations sent out for next EU-Russia 'summit'

van EU Observer - 2 uur 51 min geleden
Putin is persona non grata in EU capitals. But he is likely to meet leaders in the margins of WWII memorials in January, despite questions on the suitability of his attendance.

Categorieën: Europees nieuws

Juncker's plan: Making €60bn worth five times more

van EU Observer - 2 uur 51 min geleden
Juncker is set to unveil an "investment package" he says is worth €315bn for the next three years. But the EU's actual contribution to the scheme will be just €8bn.

Categorieën: Europees nieuws

The Ferguson Grand Jury Decision Proves 'The System' Still 'Works'

van TechDirt - 3 uur 14 min geleden

Many people may have hoped this would be one of those rare exceptions, but to anybody paying attention, the Ferguson grand jury's decision to give Officer Darren Wilson a pass on the shooting of Michael Brown was a foregone conclusion.

The road to the inevitable was unusual, however. Grand juries aren't there to decide guilt. They're only there to determine whether probable cause exists to hand down an indictment. This happens thousands of times a year all over the country, and it's a true rarity when indictments are not handed down. According to the Bureau of Justice Statistics, U.S. attorneys prosecuted 162,000 federal cases in 2010, the most recent year for which we have data. Grand juries declined to return an indictment in 11 of them. It's not a true comparison only in this respect: the above numbers are federal and this was handled by a state grand jury. But the numbers won't vary by much. Grand juries hear evidence provided by a prosecutor seeking an indictment. It is not an adversarial system.

And the system works -- if the system's designed to obtain indictments. That's what grand juries do best. As we covered here earlier this year, a grand jury in North Carolina showed the system is capable of racking up indictments at breakneck speed. During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds. That didn't happen here. The grand jury considered this case over a period of nearly three months. Hundred of pages of evidence and nearly 70 hours of testimony were considered. But the length of the process wasn't the only oddity. There was also the behavior of prosecutor Robert McCullough. Paul Cassell -- who's been acting as law enforcement's Stewart Baker at the Volokh Conspiracy -- maintains that everything about the Ferguson shooting grand jury was normal as normal could be, give or take a few months of deliberation. Defense attorney Jeff Gamso points out the flaws in Cassell's assertions. Now, of course, we know that the grand jury did what we knew it would do. No, they said, we're not going to indict Wilson. And Cassell is back to assure us that they did their job properly and that there's absolutely nothing out of the ordinary that went on. Specifically, he says this:

"A day before the grand jury’s decision was announced, Michael Brown’s family attorney raised the objection that the grand jury process was unfair because it was deviation from the normal process. 'When you think about it, if this prosecutor is saying we’re just going to be fair, we’re not going to recommend any charges, that’s different from anything he’s done in his past 28 years with grand juries,' attorney Benjamin Crump argued. It turns out that at least part of this claim is untrue: McCulloch presented to the grand jury the full range of charges, from first degree murder to involuntary manslaughter. The only difference from normal process was, apparently, that the prosecutor did not make any particular recommendation — leaving the issue up to the grand jurors. But it is hard to understand how this had any ultimate bearing on the outcome. Of course, if McCulloch’s recommendation was against filing charges, then he would never have gone to the grand jury in a normal case. And if his recommendation was filing charges, then in the normal course a grand jury (or judge) would have had to review the evidence and would have been thrown out the indictment at the point."

Cassell makes the following points.

1. Benjamin Crump says that the prosecutor's behavior in this case was unusual because he didn't recommend any charges.

2. That's not true.

3. The only thing unusual is that the prosecutor didn't recommend any charges. A prosecutor not recommending any particular charge is an oddity. Not only that, but McCulloch advised the grand jury that any doubt it held meant it must find in favor of Officer Wilson. That's something prosecutors seeking indictments never do. Prosecutors prosecute. Indictments are why they exist. Without these, they can't move forward on capital crimes. And yet, McCulloch apparently felt the non-adversarial setting wasn't predisposed enough in Wilson's favor. In this setting, McCulloch acted more as Wilson's defense attorney than the jurisdiction's prosecutor.

Indictments are easy. Probable cause is all the grand jury needs to move forward with an indictment. That's an extremely low bar. That's a cop telling you a dog said he can search your car (or your anal cavity) without a warrant -- and that a judge will back up his facially ridiculous assertion. Probable cause in the context of a grand jury is a hurdle that is generally cleared with little to no thought. (See also: the two statistics quoted in previous paragraphs.)

But the system still worked. It worked exactly as it has for years and years. For civilians, the odds are terrible. 11 cases out of 162,000 ended up with no indictment. For police officers, the numbers are the complete opposite. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment. So, when the grand jury failed to return an indictment, the system still worked. The outcome was never seriously in doubt. When it's civilians, grand juries can "indict a ham sandwich." When it's law enforcement officers, it's this:

Remember, grand juries used to be indict a ham sandwich. Now they can’t indict white bread.

— gideonstrumpet (@gideonstrumpet) November 25, 2014 Remember, grand juries used to be indict a ham sandwich. Now they can’t indict white bread. The Ferguson grand jury played its part in the process. It examined evidence presented by a prosecutor who wasn't interested in pursuing an indictment against his client Officer Wilson and did what grand juries do when faced with the possibility of indicting cops: it declined to do so. Average Americans can expect returned indictments at fast-food drive-in speeds. Police officers will get weeks of deliberation followed by a non-indictment. The system works as it always has. Had the prosecution desired an indictment against Ferguson Police Officer Darren Wilson, the presentment would have taken an hour, maybe two, and there would have been a true bill by close of business the next day, well before Michael Brown had been laid to rest. The grand jury isn’t the venue to present “all the evidence.” That’s what trials are for. The grand jury serves a very limited function, to determine whether sufficient evidence exists so that there is probable cause to proceed to trial.

In Ferguson, the grand jury served a very different purpose. It was the mechanism by which the guardians of the status quo protect the American dream of an orderly society, where the appearance of challenge is preserved so that lazy and ignorant Americans can sleep well at night, secure in the belief that their officials and institutions are doing the job of protecting their comfort against the unsavory and the malcontents. The end result is no surprise. There are factors that contribute to this, not the least of which being that police officers perform a job that sometimes requires the use of deadly force. Because of this, more leeway is given to police officers facing criminal charges. That prosecutors play for the same "team" as cops weighs into this non-indictment as well.

But everyone knew it would end up this way, even as they hoped it wouldn't. The extended deliberations were basically a show trial meant to show a watching nation how serious officials were working to have justice served -- without all the unpleasant, uncontrollable uncertainties an actual trial tends to bring with it. This is how the system works. Even if the decision gone the other way, the end result would likely be no different. Officer Wilson would be armed with a defense lawyer and still facing prosecutors lacking the desire to prosecute.

No one gained any ground as a result of this. We're still right where we were. And it can't be fixed by destroying Officer Wilson or turning Michael Brown into a martyr. This sort of thing happens far too often to be repaired by simplistic measures. The system is imbalanced and cannot be righted by tipping the scale in the opposite direction and hoping it all averages out. There's a greater cry for accountability that's now being belatedly answered as law enforcement agencies are making more of an effort to work with community leaders and equip officers with recording devices. Unfortunately, most of this is driven by reactions to massive amounts of police misconduct rather than by proactive efforts. But, beyond all of that, the justice system's extreme deference to law enforcement continues to trip up installed corrective measures by allowing it to set the tone and the rules of engagement.

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Commission to publish more trade documents in bid for public support

van EU Observer - 3 uur 48 min geleden
The European Commission has pledged to increase the number of documents it makes public relating to ongoing free trade talks with the US in a bid to shore up public support for the negotiations.

Categorieën: Europees nieuws

Report On UK Terrorist Murder: MI5 Absolved, Facebook Guilty

van TechDirt - 4 uur 19 min geleden
We've just written about new counter-terrorism measures announced by the UK Home Secretary. In her speech, she concluded with this clear statement of future intentions if the Conservatives win a majority in the UK's General Election next year: I must emphasise that these [new surveillance] powers are limited and they do not mandate the retention of and access to data that would in all cases identify a suspect who has, for example, been accessing servers hosting illegal content. The progress in this Bill is welcome -- but we will still need to return to the Communications Data Bill in the next Parliament. Of course, that would mean finding some way to win support for an intrusive Communications Data Bill, which provoked such a strong reaction the last time it was discussed. So it's interesting coincidence that the day after that place-marker by the Home Secretary, a new report (pdf, and embedded below) has been published on a particularly brutal terrorist attack that took place on the streets of London last year. The report comes from the UK's Intelligence and Security Committee (ISC), which was roundly condemned by a Parliamentary committee earlier this year for being out of touch and ineffectual. It was asked to examine what lessons could be learned from the failure to stop the attack, given that both the two men convicted of murdering the British soldier Fusilier Rigby were known to the UK intelligence service. Here's a summary of the findings from the press release (pdf): The two men appeared, between them, in seven different Agency investigations -- for the most part as low-level Subjects of Interest. There were errors in these operations, where processes were not followed, decisions not recorded, or delays encountered. However we do not consider that any of these errors, taken individually, were significant enough to have made a difference.

We have also considered whether, taken together, these errors may have affected the outcome. We have concluded that, given what the Agencies knew at the time, they were not in a position to prevent the murder of Fusilier Rigby.
That is, despite tracking the two men responsible for the attack several times in earlier investigations, and despite making errors, the Agency -- MI5 -- is absolved of responsibility for what happened. But of course, for such a heinous crime -- the soldier was hacked to death on a public street in broad daylight -- a guilty party must be found. Here's what the ISC came up with: The one issue which we have learned of which, in our view, could have been decisive only came to light after the attack. This was an online exchange in December 2012 between Adebowale and an extremist overseas, in which Adebowale expressed his intent to murder a soldier in the most graphic and emotive manner. This was highly significant. Had MI5 had access to this exchange at the time, Adebowale would have become a top priority. There is then a significant possibility that MI5 would have been able to prevent the attack. According to the Guardian, that online exchange took place on Facebook. The ISC it goes on: We have examined whether the Agencies could have discovered this intelligence before the attack, had they had cause to do so: it is highly unlikely. What is clear is that the one party which could have made a difference was the company on whose system the exchange took place. However, this company does not regard themselves as under any obligation to ensure that they identify such threats, or to report them to the authorities. We find this unacceptable: however unintentionally, they are providing a safe haven for terrorists. That "safe haven for terrorists" is, of course, precisely the rhetoric used by other senior intelligence officers, in what looks increasingly like a co-ordinated attack on Internet companies and the encryption technologies that are increasingly being deployed. The ISC is quite clear what is needed -- more surveillance: Our Report considers the wider relationship between law enforcement authorities and Communications Service Providers. None of the major US companies we approached proactively monitor and review suspicious content on their systems, largely relying on users to notify them of offensive or suspicious content. Well, that's because they are communications companies: they provide ways to communicate, just like phone companies or the post system. There's no more reason they should be monitoring every piece of content on their systems than telephone companies should monitor the content of calls, or post offices the content of letters. It's not their job, and would in any case be an extraordinary invasion of privacy. We also found that none of them regard themselves as compelled to comply with UK warrants obtained under the Regulation of Investigatory Powers Act 2000. That's probably because they are generally US companies, subject to US law. If the UK were to insist that they complied with UK warrants as if they were UK companies, it will have to be prepared for UK companies providing services abroad to be subject to Russian and Chinese legal demands too. Is that really what it wants? The Commission then goes on to make its drift quite clear: We note that the Government has already started to take action on these issues, through the Data Retention and Investigatory Powers Act 2014 and the appointment of the Special Envoy on intelligence and law enforcement data sharing. However, the problem is acute: until it is resolved the British public are exposed to a higher level of threat. That is, far from letting considerations of privacy temper some of the more extreme counter-terrorism measures brought in recently, the ISC is hinting that the UK government should abrogate even more British freedoms -- purely to protect British freedoms, you understand.

That the ISC's report into the attack turns out to be a whitewash is no surprise. Earlier this month, the UK's leading human rights groups decided to boycott another inquiry that it would be conducting, since they had "lost all trust in the committee’s ability to uncover the truth." And just before the ISC report was published, it was claimed that the committee had "failed to speak to witnesses who say the plot's leader was repeatedly contacted by the security services before the attack": Those making the allegations say they raise concerns about MI5’s conduct and offer a possible explanation of what contributed to his transformation from extremist into terrorist murderer.

Adebolajo has said he was repeatedly pressed by the security services to turn informant for three years before he and Adebowale murdered Rigby.
Here's what the report says on this potentially crucial matter: In relation to the allegations that MI5 had been trying to recruit Adebolajo as an agent, MI5 has argued that it would be damaging to national security to comment on such allegations. All allegations concerning MI5’s recruitment of agents -- whether true or not -- fall under their ‘Neither Confirm Nor Deny’ (NCND) policy. How convenient. But it's not the only thing that's convenient in this story. As the above indicates, the existence of messages between one of the killers and an extremist overseas allowed the report to absolve the UK's security services, and blame Facebook. But where exactly did that message come from? According to the Guardian: David Cameron revealed that the messages only came to light after the attack "as a result of a retrospective review by the company". Sir Malcolm Rifkind, chair of the ISC. said the information was given to GCHQ "by a third party" on a confidential basis. So who gave that information to GCHQ? The statement above makes it clear it wasn't Facebook itself but a "third party". Who else had access to such private messages? Someone at the company? Maybe, although that seems very unlikely given the company's awareness of how big an issue this would be.

Another obvious candidate is the NSA. Snowden has told us that it accesses and stores vast quantities of messages as they flow across the Internet; given the nature of the conversation, and the keywords it contains, it seems quite likely that it was added to a database somewhere, "just in case". Perhaps it was dug out at the request of GCHQ, which then passed it on to the company concerned -- in order to land it in hot water, and get MI5 off the hook. Just another benefit of being part of the Five Eyes club.

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EU funds airline data-sharing despite legal worries

van EU Observer - 4 uur 42 min geleden
The EU commission has awarded €50mn to member states to set up passenger data sharing systems, despite an upcoming EU Court analysis on the probity of similar schemes.

Categorieën: Europees nieuws

Member states owe EU over €320bn

van EU Observer - 5 uur 2 min geleden
EU internal budget auditors say member states will need to fork out an additional €326 billion to finance their on-going EU-funded projects over the coming years.

Categorieën: Europees nieuws

White House Admits That It Still Supports Parts Of SOPA: Wants To Make Streaming A Felony

van TechDirt - 5 uur 26 min geleden
Last week, we wrote that Senator (and still for the next few weeks, Majority Leader) Harry Reid was looking for ways to push for a piece of SOPA, making streaming a felony, into law. The story we'd heard from multiple sources was that he was looking to attach it to the USA Freedom Act. His office came out and denied that claim vehemently. Still, multiple sources insisted not only that it was true, but that Reid was still looking for other vehicles to push that through. And... just days later, the White House responded to some (somewhat pointless) White House "We The People" petitions by... announcing that it, too, wanted to turn unauthorized streaming into a felony. This was in response to two separate petitions, Stop SOPA 2013 and Stop SOPA 2014. Neither petition made much sense, as SOPA has been long dead since early 2012. There was never any specific bill in either 2013 or 2014. And yet, Alex Niejelow, the chief of staff to the IP Czar (a position that is in limbo, as the new czar has been nominated, but not yet approved), used those petitions as an opportunity to reiterate that the White House, like Reid, supports making unauthorized streaming a felony.

Niejelow carefully tries to frame the plan as not going after individuals for uploading videos, but the language choices are deliberate here: To be clear: We are not advocating for, and do not support, Congress enacting criminal sanctions against people who upload their own, non-commercial performances of other artists' works on Tumblr, against the content creators making your favorite mashup on YouTube, or against the users of these services -- like many of you who signed this petition -- who watch and listen to this digital content.

Rather, we think the law should deter the large-scale willful reproduction, distribution, and streaming of illegal, infringing content for profit. We think it is important to combat this type of activity because of the negative impact it has in diminishing the drive and economic incentive to produce the great movies, sporting events, and music that we love and that account for millions of American jobs and billions of dollars contributed to our economy annually.
Almost everything in those two paragraphs is misleading -- sometimes extremely so. As Harvard law professor Jonathan Zittrain helpfully explained back in 2011, the move to make unauthorized streaming a felony, changed the law in subtle, but dangerous ways. It's true, of course, that merely uploading a file would not be considered an offense under that part of the law (it may violate other aspects of the law), but it could still be problematic. Here was Zittrain's discussion, specifically in response to the question of whether or not Justin Bieber could have gotten in trouble for uploading videos of himself covering songs: No one is saying that the public performance is occasioned by the mere act of uploading or downloading a file -- so a huge part of that analysis is going after straw men. The question is whether placing a file onto YouTube and configuring the placement so that it can be streamed -- indeed, intending that as the only reason for the file being there -- results in a performance as it's streamed to lots of people. Sadly that answer could be yes. Here's the definition of a public performance under 17 USC 101: To perform or display a work "publicly" means (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times. So, the argument would go that Bieber falls under clause (2) -- he's transmitting a performance to a place open to the public ("YouTube") or perhaps simply to the public directly, "by means of any device or process."

The fact that YouTube might also be liable for performing the work (or may or may not have a license if the license is just for it) is irrelevant; you can have more than one party deemed responsible for an infringement. Indeed, think about embedding the video on your own page -- would it matter if the page were served from your own server in your home (the easiest case for liability) or from a third party hosting service with whom you'd contracted, or who let you put it there? Surely putting the stuff on a rental server wouldn't be enough to "launder" liability for the person who put it there. (Again, ignoring whether the third party server could itself be liable, too; this starts to implicate the DMCA safe harbors.) YouTube contributors have their own little home pages on the service, in which their videos are embedded. So, yes, those videos are likely public performances.
Of course, they try to get around this by claiming they don't want this to impact "non-commercial performances." But, the definition of "non-commercial" is pretty fluid. Did you put ads on your upload? Uh oh. Did the video go viral and allow you to do something that made money? Uh oh.

Or how about the "large-scale" aspect. Well, we embed plenty of YouTube videos on this site. Would that make us "large-scale"?

And then there's the "negative impact" argument. Really? What is the actual negative impact from people streaming these works? As we've shown, the actual output of basically all of these industries is rapidly increasing. There doesn't seem to be any evidence of a negative impact at all. It's especially bullshit to slip in "sporting events" in there (but, again shows how sporting organizations, including UFC and MLB, have been key to lobbying for this change), when the sporting events industry is thriving at unprecedented levels, and many of the major sports leagues (especially MLB) have shown that when you make a really good premium product, people will pay.

In fact, literally the day after the White House appeared to be arguing that streaming has created a "negative impact [that is] diminishing the drive and economic incentive to produce great... sporting events," PwC came out with its latest analysis of the sports market in North America, showing that it's nothing but up, up and up for sporting events in the US. If people streaming these events online has diminished the economic incentives, someone forgot to tell, well, everyone. If your job is to be in charge of understanding "intellectual property" in the US, shouldn't facts like this have a role? Here's PwC's data (2014 is estimated, as of October), and it shows a pretty steady upward trend, especially on "media rights," the only part really likely impacted by any streaming: Furthermore, if you look at the full report [pdf] PwC predicts continued massive growth, especially in media rights, but we won't show that because it's speculation.

But, basically, the argument that sports events are somehow facing negative incentives to put on great events because some people are streaming unauthorized versions just doesn't make any sense at all. It makes the claim that such a law is needed incredibly suspect, and hints strongly at the simple fact that this is nothing more than an attempted government favor to certain lobbyists.

Even where sports streaming does occur, it tends to be in situations where the leagues themselves have made it nearly impossible to legitimately pay for access in the first place, with idiotic concepts like blackout rules. Want to massively decrease unauthorized streaming of sporting events? Make better services and drop blackout rules. No need to turn hosting a webpage with some embeds into a felony.

Either way, it seems clear that the White House (and some in the Senate) still don't realize that all of SOPA was a bad idea, including the ridiculous plan to make unauthorized streaming a felony.

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[Ticker] EU migration commissioner: Pope's signal received

van EU Observer - 5 uur 30 min geleden
Migration commissioner Dimitris Avramopoulos told the European Parliament on Tuesday evening he "fully agreed" with pope Francis' statements on boat migrants from Africa. "This strong signal he sent us, was received", Avramopoulos said. “We cannot allow the Mediterranean to become a vast graveyard”, Francis had said earlier on Tuesday.

Categorieën: Europees nieuws

[Ticker] EU court upholds Rubik's Cube trademark

van EU Observer - 5 uur 31 min geleden
The EU General Court in Luxembourg on Tuesday decided to uphold the EU trademark for the famous Rubik's Cube and rejected a case brought in 2006 by German toy manufacturer, Simba Toys, to have it cancelled. The 3D puzzle was invented in 1974 by the Hungarian architect Erno Rubik.

Categorieën: Europees nieuws

CenturyLink: We Lobby For Protectionist State Laws Because You Didn't Want Faster Fiber Anyway

van TechDirt - 6 uur 44 min geleden
As we've noted, the very first place to start if we're seriously interested in fixing U.S. broadband competition problems is the protectionist laws ISPs paid to have passed in nearly two-dozen states. These laws hinder or outright ban towns and cities across the country from not only building their own broadband networks in areas ISPs refuse to serve, but they also in many cases prohibit towns and cities from cooperating with smaller private companies. These laws were passed like wild fire over a fifteen-year span, but have seen renewed attention lately as Google Fiber fuels a lust for more competition and faster, cheaper networks.

One of the biggest historical supporters of these laws is CenturyLink (formerly CenturyTel, and before that, Qwest). From suing to prevent Utah towns and cities from using Qwest poles in 2005, to teaming with Time Warner Cable to pass awful laws in the Carolinas, CenturyLink has been a starring player in making sure towns and cities can't improve their own broadband fortunes -- even in cases where companies like CenturyLink refuse to.

At the receiving end of this behavior are towns like Wilson, North Carolina, and Chattanooga, Tennessee -- both of which have tried to build better broadband networks but ran face first into the handy work of companies like Comcast, AT&T, CenturyLink and Time Warner Cable. Both towns recently petitioned the FCC (pdf), asking the agency to preempt portions of Tennessee and North Carolina state statutes that restrict their ability to provide or expand broadband services. Instead of standing up for local rights or against letting lumbering duopolies write telecom law, politicians like Martha Blackburn sided with the telecom companies, pushing laws trying to tie the FCC's hands on the matter (you know, for the rights of the little people).

While municipal broadband opponents often try to vilify these efforts as "government run amok," the reality is that these towns and cities wouldn't be trying to enter the broadband business if we had meaningful competition driving better pricing and services. In a recent New York Times story exploring these awful laws, CenturyLink feebly attempts to defend itself to the Times, insisting that it's not building faster next-generation fiber networks -- because nobody actually wants them:"We build our network to meet customer expectations,” said Bill Hanchey, a CenturyLink regional vice president who oversees government affairs. But customers are not clamoring for the speed provided by fiber, he said. "It does us no good to go out and build networks that customers don’t need or aren't requesting."The Times doesn't bother to challenge this assertion, and CenturyLink doesn't explain why cities and towns are trying to build better broadband if they don't want faster, better service. That customers don't want faster fiber is probably of particular note to the tens of millions of CenturyLink customers whose aging, expensive DSL lines (capped at 150 GB of usage each month, no less) struggle to reach speeds of 3-6 Mbps downstream.

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Categorieën: Technieuws

EU is 'aged and weary', says pope

van EU Observer - 8 uur 18 min geleden
Pope Francis has criticised the EU's treatment of migrants, its institutions, and its focus on growth and consumerism.

Categorieën: Europees nieuws

[Ticker] France suspends Russia warship delivery 'until further notice'

van EU Observer - 8 uur 22 min geleden
The office of Francois Hollande said on Tuesday the French president has suspended "until further notice" the delivery of the first of two warships for Russia due to "the situation" in east Ukraine. Russian deputy defence minister Yury Borisov said the Kremlin will not initiate court proceedings for now.

Categorieën: Europees nieuws

IRS Finally Examines Backup Tapes, Recovers 30,000 'Missing' Lois Lerner Emails

van TechDirt - 8 uur 45 min geleden

Whether or not the IRS is subjecting certain politically-affiliated groups to an unfair amount of attention remains to be seen. What is indisputable is that the agency's document retention policies are an unenforced joke. As citizens, we're required to hold onto pertinent financial records for 2-7 years just in case the IRS wants to look through them. The IRS, however, seemingly only retains records for as long as it can keep itself from inadvertently destroying them.

Emails from IRS official Lois Lerner have been sought for several months. At first, the IRS said it had them. Then it said it couldn't find them. Then it said Lerner's computer suffered a hard drive crash, taking with it a bunch of the emails being sought. Then it said more computers had crashed, taking out even more emails. Then it said it had recycled the crashed hard drives, making any data unrecoverable.

Questions were asked, most of them being "Bro, do you even back up files to a server?" Apparently, the IRS did no such thing, or was unaware of it, or didn't understand the question… and so on. The IRS admitted it told officials to print out and save emails (per internal guidance) but apparently no one took these rules very seriously, as there was no hard copy to be found either. A Justice Department official noted that there were backups, but that it was too hard to recover stuff from them, before dozing off in mid-sentence.

Now, all of a sudden (well, actually on a pre-Thanksgiving week Friday afternoon), the IRS has suddenly found the emails it claimed were lost. Up to 30,000 missing emails sent by former Internal Revenue Service official Lois Lerner have been recovered by the IRS inspector general, five months after they were deemed lost forever.

The U.S. Treasury Inspector General for Tax Administration (TIGTA) informed congressional staffers from several committees on Friday that the emails were found among hundreds of “disaster recovery tapes” that were used to back up the IRS email system. The prodigal Lerner emails have returned! And there was much rejoicing, especially in Darrell Issa's camp, which has been applying much of the pressure over the past several months.

It will still be some time before these emails are turned over, however. The investigators looked through 744 disaster recovery tapes, holding an estimated 250 million emails and says it will be a few weeks before the recovered emails are in a readable format. If this goes at the usual speed of government, it will be next year before the emails even make their way into the hands of the investigating committee, and longer than that before the public can take a look for itself.

The good news is that despite the IRS's internal failures, the system still mostly worked. A backup backed up files and (after much hassling) an internal investigation recovered most of what had been declared officially missing. It's almost enough to restore your faith in the IRS (and the government as a whole), except for almost everything else about the IRS (and the government as a whole).

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Categorieën: Technieuws

UK Government Brings In Yet More Counter-Terrorism Measures -- Including Internal Exile

van TechDirt - 10 uur 48 min geleden

The UK has the sad distinction of leading the way in the West when it comes to playing up the terrorism threat to justify the introduction of disproportionate surveillance laws. One of the favorite rhetorical tricks employed here is to invoke the "capabilities gap": this refers to the fact that the security services are unable to capture all communications in the same way they once could. But it's a misleading comparison.

It's true that it was easier to spy on the public's communications in the past; the percentage of traffic that can be tracked today may be lower, but the overall quantity of information available to the police and security forces is vastly greater, simply because the range of digital communications is so wide, and their use in everyday life so pervasive. This means that it is quite unnecessary to put in place even more intrusive monitoring in order to gain equivalent amounts of relevant information. However, the UK's Home Secretary, Theresa May, didn't let a little thing like the facts get in the way when she introduced yet another counter-terrorist bill earlier this week: I remain passionately convinced of the need to address the capabilities gap the authorities face when it comes to communications data. And I am pleased to say that the Bill will go some way to bridging that gap. It will therefore require internet providers to retain Internet Protocol -- or IP -- address data to identify individual users of internet services. That might seem a curious thing to introduce, since UK ISPs are already required to store metadata. A useful post from the Open Rights Group (ORG) explains this is all about the rise of mobile Internet use: The new proposal, while being consistent with existing arrangements for ISPs in the UK, is another proposal for blanket retention beyond what is needed for business purposes.

In any case, this is a rather backward proposal, dealing with a problem that exists because the mobile companies continue to rely on out of date technology. To take a moment to explain: the Internet is famously running out of addresses (numbers that identify a point on the Internet – Internet Protocol version 4 (IPv4) addresses).

To deal with the lack of address space, mobile companies use a technology called "Network Address Translation" or NAT, which allows several devices to share the same IP address. Most people use this at home to allow two or three computers to use the ADSL or cable connection, However the mobile companies do this at a far greater scale called "Carrier Grade NAT" -- and there will be hundreds of different people using the same IP address.
It is for this reason that the port number for each connection must also be stored under the new proposals. But as ORG goes on to point out, it would be far better if mobile phone companies were encouraged to upgrade their systems to IPv6, which has such an abundance of addresses that this kind of quick fix would be unnecessary. Even then, such addresses would only identify a device, not who was using it at any given time.

Similarly, ORG also notes that this blanket retention could fall foul of a recent ruling by the European Union's Court of Justice that data retention must be "limited to what is strictly necessary. Indeed, because all IP addresses and port numbers are retained, the fear has to be that sooner or later they will be used in an attempt to identify those accused of copyright infringement -- as in Australia.

However, it seems unlikely that the UK government will worry about these kind of details given that the new counter-terrorism and security bill includes even more troubling provisions, such as the following: in response to the increased threat we face and in response to the police and security services telling us this is what they need, we will legislate to allow TPIM [Terrorism Prevention and Investigation Measures] subjects to be relocated to different parts of the country. Yes, you read that correctly: the new bill will introduce internal exile for the UK. The parallels between the UK and Soviet Russia become more painfully apparent by the day.

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

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Categorieën: Technieuws

Corporate Sovereignty's Chilling Effects

van TechDirt - 13 uur 48 min geleden

As we've noted before, corporate sovereignty -- known more formally as investor-state dispute settlement (ISDS) -- has emerged as the most contentious element of the transatlantic trade deal TAFTA/TTIP, currently being negotiated. Not only has the ISDS chapter been put on hold pending the analysis of 150,000 submissions to a consultation held on the subject, but top EU politicians continue to flip-flop nervously on the subject.

Many of the worries have been about foreign investors being able to sue governments for bringing in policies that are claimed to be an indirect "expropriation". The sums awarded under corporate sovereignty provisions can be considerable, but monetary losses are not the only threat that ISDS chapters pose. Arguably even more serious is the chilling effect they can have on a country's ability to frame and bring in future legislation. This is not a new phenomenon. The North American Free Trade Agreement, NAFTA, is 20 years old, and its Chapter 11 provides guarantees of corporate sovereignty for investors. Here's what happened in Canada as a result, according to a 2001 article in The Nation: Carla Hills, the US Trade Representative who oversaw the NAFTA negotiations for Bush I and now heads her own trade-consulting firm, was among the very first to play this game of bump-and-run intimidation. Her corporate clients include big tobacco -- R.J. Reynolds and Philip Morris. Sixteen months after leaving office, Hills dispatched Julius Katz, her former chief deputy at USTR, to warn Ottawa to back off its proposed law to require plain packaging for cigarettes. If it didn't, Katz said, Canada would have to compensate his clients under NAFTA and the new legal doctrine [of corporate sovereignty] he and Hills had helped create. "No US multinational tobacco manufacturer or its lobbyists are going to dictate health policy in this country," the Canadian health minister vowed. Canada backed off, nevertheless.

A former government official in Ottawa told me: "I've seen the letters from the New York and DC law firms coming up to the Canadian government on virtually every new environmental regulation and proposition in the last five years. They involved dry-cleaning chemicals, pharmaceuticals, pesticides, patent law.Virtually all of the new initiatives were targeted and most of them never saw the light of day."
Canada continued to find its room for democratic action constrained by threats of ISDS action over the next decade. In 2013, Elizabeth May, a member of the Canadian Parliament, and leader of the Green Party of Canada, wrote: I am aware of a letter warning Alan Rock when he was Health Minister that removing the registration of pesticides for use in lawns for cosmetic purposes could give rise to Chapter 11 suits, so the move was not made. We have no way of assessing the "chilling effect" of the Chapter 11 cases that Canada has lost. In my opinion, there is a compelling case that the Ethyl and S.D. Myers case [relating to attempts by Canada to introduce tougher environmental laws] have resulted in failures of the Canadian government to regulate and/or ban toxic substances that they would have in the pre-Chapter 11 era. Here's a more recent example of ISDS's chilling effects on democratic law-making. It concerns Indonesia, which has recently decided to terminate all 67 of its bilateral investment treaties. A long and fascinating post on the Transnational Institute Web site explains what happened: In July 2014, Newmont Mining Corporation brought a case against Indonesia using the Indonesia-Netherlands [Bilateral Investment Treaty] at the International Centre for the Settlement of Investment Disputes (ICSID). In making the legal claim, the mining giant argued that the Indonesian Government's plans to implement a ban on unprocessed mineral exports would violate the investment agreement between Indonesia and the Netherlands. The case at ICSID was presented four months after Indonesia announced it would not renew its Bilateral Investment Treaty (BIT) with the Netherlands when it expires in July 2015. After one month, Newmont withdrew its case against Indonesia but only after it had reached an agreement with the Indonesian government, giving the mining company special exemptions from the new mining law. Although the Newmont Mining Corporation may not have liked Indonesia's decision to require mineral processing to take place domestically, rather than abroad, that policy seems a legitimate one for a government to adopt in order to stimulate its local economy and provide employment for its population. As the Transnational Institute's post notes, what's troubling here is that the mere threat of of a corporate sovereignty case was enough to extract special treatment from the Indonesian government, and the lack of transparency of how that was agreed: It has long been argued that the impact of Bilateral Investment Treaties is not just shown in the cases brought to tribunals that rule against states' rights to regulate and protect citizens, but also in the many cases that do not make it to ICSID because states backtrack on regulation for fear of lawsuits. This is called the 'chilling' effect or regulatory chill of investment arbitration. However it is very difficult to show how the chilling effect works, because governments that backtrack in face of threats often do so without public knowledge and because agreements with corporations are made between closed doors. The case of Newmont against Indonesia however, shows the consequences that arise from a mere threat of a billion dollar claim in response to a (proposed) new policy. The fear has to be that the more such threats are successful in "chilling" governmental plans, the more they will be made. As with threats from patent and copyright trolls, governments may well decide that it is simpler to acquiesce to demands, rather than go to the expense and trouble of fighting them in ISDS tribunals, which are a law unto themselves, with the result that their outcomes are far from predictable and potentially very costly.

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

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Categorieën: Technieuws

ACM opent de jacht op webwinkels: 5 tips om géén boete te krijgen.

van ICT recht - 13 uur 55 min geleden

Webwinkeliers opgelet. De ACM gaat de wet consumentenrechten handhaven. Aanleiding is onder meer het onderzoek dat de Consumentenbond onlangs heeft gedaan onder 211 webwinkels.

De Consumentenbond bestelde bij de webwinkels producten en retourneerde deze binnen de wettelijke 14 dagen herroepingstermijn. Het is de bedoeling dat de webwinkelier vervolgens het aankoopbedrag plus de verzendkosten van de heenzending zo snel mogelijk, maar uiterlijk binnen 14 dagen na ontbinding terugstort. De verzendkosten van de heenzending moeten overigens alleen worden teruggestort indien de consument de gehele bestelling retourneert.

Dit alles lijkt echter niet voor iedere webwinkel de praktijk. Maar liefst 65 webwinkels betaalden niet binnen de wettelijke termijn van 14 dagen terug. Van 15 webwinkels hoeft de consument in het geheel geen geld terug te verwachten. Soms kreeg men geen geld terug maar slechts een tegoed. Allemaal niet de bedoeling.

De ACM opent nu dan ook de jacht op webwinkels, en dan vooral de webwinkels in de modebranche. De reden is dat in deze branche veelvuldig producten worden geretourneerd. Webwinkeliers kunnen van de ACM een last onder dwangsom of een boete van maximaal 450.000 euro per overtreding krijgen.

Waar moet je nu op letten om ervoor te zorgen dat jij wél voldoet aan de huidige wet?

1) de webwinkel moet de consument die zijn aankoop ontbindt binnen 14 dagen zijn geld terug betalen;

2) de webwinkel moet álle betalingen die hij van de consument heeft ontvangen terug betalen, dus ook de eventueel betaalde bezorg- en andere bijkomende kosten. Op de website mag dus niet worden vermeld dat alleen het aankoopbedrag wordt terugbetaald;

3) de kosten voor het retour sturen komen voor rekening van de consument als dit ten minste vooraf is gemeld;

4) de webwinkel moet terugbetalen met hetzelfde betaalmiddel als waarmee de consument heeft betaald. Zo mag de webwinkel alleen een tegoedbon geven als de consument met een tegoedbon heeft betaald;

5) de webwinkel moet consumenten op zijn website duidelijk en juist informeren over deze regels.

Alles weten over de wet consumentenrechten die in juni van 2014 is ingegaan? Kijk dan hier!


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Categorieën: Technieuws

[Ticker] EU opposes pact between Russia and Abkhazia

van EU Observer - 14 uur 18 min geleden
The EU's foreign policy chief Federica Mogherini has described the so-called "treaty on alliance and strategic partnership" between Russia and Georgia's breakaway region Abkhazia as being detrimental to on-going efforts to stabilise security in the region. "This violates Georgia’s sovereignty and territorial integrity," she said in a statement.

Categorieën: Europees nieuws