- The world's largest coal supplier, Shenhua Group Corp, is partnering with SolarReserve to build 1,000 megawatts of solar power facilities in China for a couple billion bucks. This is just one step towards China building solar power plants capable of generating 10,000 megawatts of electricity by 2020. [url]
- Ivanpah is a huge solar energy farm with about 350,000 computer controlled mirrors redirecting sunlight at a tower in the middle of a California-Nevada border desert. A few of its mirrors were aimed incorrectly and damaged its operations, but this kind of solar farm design might not be very economical for very long, anyway. [url]
- New solar energy capturing materials could help harvest sunlight during the day and release the energy at night -- or at any other time, on demand. Chemically-based storage materials -- aka solar thermal fuels (STF) -- have been around for a while, but the development of inexpensive, durable solid (transparent) materials with this ability might be more practical and lead to smarter windows and surfaces that can absorb light and emit heat. [url]
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But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it's clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better -- ignoring that restricting the rights of the public has a real cost. Delving briefly into the subject of IPRs, it is a matter of principle that a balanced intellectual property (IP) regime, i.e. a model that balances rights with adequate limitations/exceptions, contributes optimally to the holistic development and growth of the nation. Limitations or exceptions are flexibilities in the law, which cut down absolute monopoly conferred by IPRs, and ensure that use and sharing of knowledge for purposes such as research, education and access to medicines are not overridden by IP rightholders’ claims. The Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), which is the largest international agreement governing countries’ IPR regimes also promotes the use of these flexibilities to build balanced regimes. The policy does occasionally state its commitment to the TRIPS agreement and the Doha Declaration, but does not commit or spell out any new concrete steps. Thus, it fails to show any seriousness about upholding and promoting a ‘balanced’ regime – in stark comparison to the detailed and surgical manner in which it aims to raise awareness about IPRs and commercialise them. This is unfortunate -- and it's also a reason why I've argued we need to move away from calling them "limitations and exceptions" and towards what they actually are: the public's rights. The intellectual property laws, themselves, are "limitations and exceptions" on the public's right to use these things.
Unfortunately, when you don't have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public's rights.
The other big myth is that "patents = innovation." As we've noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately "measure innovation" fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we've covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it's no longer a "pirate nation." But, of course, in the process, it's turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.
But, as Sinha notes, it appears that India got the exact wrong message from China: It is likely that the idea to use the IPR policy as a tool for ‘IPR indoctrination’ to result in staggering IPR generation came to the Indian government from their Chinese counterparts. In 1995, China started conducting elaborate training of its officers, researchers and students to popularise a generation of IPRs and last year the country received 10 lakh patent filings – an international record. At the conference, the officials were in awe of the Chinese statistics, and they were confident of catching up in the next few years. This despite the fact that in China, the race to patent innovations has only led to a proliferation of low value innovations in high numbers. Less than 1% of China’s patents are of intermediate or high value. Thus, China despite its high patent filings shows only a weak innovative performance. Globally, there is enough evidence to show that there is no positive correlation between patent filings and cumulative innovative performance of a country. Unfortunately, this kind of blind belief that "patents = innovation" may serve to do severe damage to both the public and actual innovation in India. There are lots of (reasonable) concerns about high prices for medicines, but it could also harm India's pharmaceutical industry, which has actually thrived on being able to produce generic drugs that compete globally. Increasing a patent regime would actually stifle that industry. One hopes that at least someone who actually understands how innovation works can get through to the Indian government before it makes a big, big mistake.
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As it turns out, that "established track record" didn't mean all that much.
Shortly after Frontier began attempting to integrate 3.7 million customers in the three states starting April 1, things began to unravel. Numerous customers complained they couldn't use phone, broadband or cable TV services -- at all -- for weeks. Company apps no longer worked. Some DNS servers stopped responding. Voicemail services no longer functioned. Customers left without service for weeks say they called customer service lines only to be yelled at or ignored by Frontier support representatives.
As the outages and problems continue throughout May, politicians and Florida Attorney General Pam Bondi had to intervene and begin the traditional practice of light wrist slapping for the screw ups:"The ones that are most disturbing to me are our senior complaints that only have a hardline and they can’t call 9-1-1 if they need too. Many people, they’re internet is down so their alarm systems aren’t working,” she said. “This is unacceptable that this has happened. We’ve told them that, first of all people who have been out cable service, should not have to request a refund; they should automatically be given a refund."Frontier's also now under fire in California, where lawmakers recently held a hearing to press Frontier on its incompetence. At the hearing, Frontier blamed "corrupt Verizon data" and a particularly dysfunctional overseas support center obtained by Verizon for the problems:"Another key issue was the temporary use of a Philippines-based call center. Frontier used that call center because it was the same one Verizon used to handle customer issues and the company assumed those customer service representatives worked with California customers before."Except "corrupt data" doesn't explain the depth of the problems (like broken DNS servers), and most of these issues should have been prepared for during the fifteen months between the deal's announcement and the customer integration.
The real problem is that Verizon (who no longer wanted these customers) sold them to a company focused on growing for growth's sake -- but unmotivated to seriously invest in customer support because there's just not enough competition to warrant it. And this isn't the first time this has happened; both Fairpoint Communications and Hawaiian Telcom went bankrupt when they bought massive swaths of unwanted Verizon territory. In the Fairpoint deal, the ISP acquired Verizon's customers in Maine, Vermont and New Hampshire, but then imploded from the support strain -- and the debt from the deal.
In short, regulators keep seeing how these lose/lose deals go south quickly, but keep signing off on them anyway. Usually that's because they figure that an utterly incompetent company is better than an utterly apathetic company when it comes to delivering barely adequate service. It's just par for the course for an industry where abysmal service is the norm -- because there's little to no real competitive pressure holding any of them to a higher standard.
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The DMCA Should Not Be An All Purpose Tool For Taking Down Content; And It's Espeically Bad For Harassment
The Business Insider story doesn't reveal who the person is, and we're not going to do so either, because having looked at the details it's not going to do anyone any good. Suffice it to say that the story is legit. It involves a "controversial" topic (that shouldn't be controversial, if you're even remotely informed) and I don't want the comments on this story to devolve into an argument about said controversial topic. Either way, this is a clear story where some people on "one side" of this issue decided they were going to harass and intimidate someone on the other side. And this wasn't just garden variety "disagreement on the internet" that someone claims is harassing. This was a dedicated plan to intimidate the person. And they were clearly happy about getting her info and planned to do more with it: Elsewhere the same people discussed literally using the general controversy over the DMCA to create further harassment of the individual.
The person complained to Twitter about the harassment and it appears that someone from Twitter told her that since the people harassing her were using photos, she should make a DMCA complaint. This was mistake number one. The DMCA should never be used for things that aren't really about copyright issues. It's not designed for that kind of thing and Twitter deserves to be chided for one of its employees suggesting that. However, in looking at the commentary around all of this, a lot of people are angry that DMCA notices involve passing on the full notices. I saw someone complain that companies should never forward on DMCA notices because it only will be used for abuse. That's a really bad idea.
There are good policy reasons for why we should want companies to forward DMCA notices on to the person who gets their work taken down. For one, given all the bogus takedown notices we talk about, things would be a lot worse if the people who were accused of infringement never were able to find out the details of who sent the notice. That's part of the point of the DMCA, to create at least some channel of communication between the copyright holder and those accused of infringing. Obviously, in a harassment situation, things are totally different and it's why the DMCA notice-and-takedown is exactly the wrong tool for this sort of thing, and any attempt to expand it in that direction is a really, really bad idea.
Furthermore, we should want DMCA notices passed on, including to places like Lumen Database, because that's how we actually get some information about how the DMCA notice and takedown process is working -- or not working. Worrying about censoring information in notices or not passing them along is not a good move. It just highlights why the DMCA process is a bad idea in contexts like harassment.
Now, the Business Insider article does make a good point that other companies, like Automattic and Github, are much clearer to people who are submitting DMCA notices that their details will be passed on to those who they're accusing of infringement -- and point out that you can have an agent file on your behalf. That's also something that Twitter should do. But people complaining that Twitter should not forward on DMCA notices are confusing two separate issues. Twitter absolutely should forward on DMCA notices. That's important. What they shouldn't do is tell people to file DMCA notices over harassment issues.
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And the police deemed that worthy of seizing? Even though the site also had a ton of news articles that would normally be considered protected expression?
I want to repeat this just to show how crazy it is. The police in Norway didn't go after actual infringers, they went after a news site that links to sites that host an app that might be used to infringe. Oh, and they did it using an asset seizure procedure that has basically no due process prior to an entire news website disappearing. That's messed up.
Apparently, Electronic Frontier Norway (EFN -- which is unrelated but similar to the EFF here in the States) -- and the Norwegian Unix User Group (NUUG) went to court over this, but had that rejected (perhaps reasonably) for lack of standing. However, TorrentFreak is reporting that the case is being appealed... but this time with the legal owner of the site: With the new party the groups hope to have sufficient standing to have the case heard. In their appeal there’s a strong focus on the free speech element, and they hope the court will clarify when domain seizures are appropriate.
“We feel that this is an important case that addresses the limits of free speech,” EFN’s managing director Tom Fredrik Blenning tells TorrentFreak.
NUUG leader Hans-Petter Fjeld adds that the authorities shouldn’t be allowed to seize the domain name of a news site, which writes about open source software that by itself is not infringing.
“Part of what makes us upset is that the domain name of a news site about a piece of free software that has both legal and illegal uses, has been seized without judicial scrutiny,” Fjeld says. This use of asset seizure to take down news sites that might be distantly related to infringement is extremely troubling. It's happened in the US, including just recently returning some domains it had seized five years prior, without ever having any evidence of actual infringement associated with those news sites.
The idea that this form of blatant censorship is being used globally should be yet another warning of how copyright law is regularly abused for censorship.
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Star Trek Fan Film Axanar Lawyers Tell Court About JJ Abrams Claims Of Paramount Dropping Suit, Express Confusion
Of course, between now and "within a few weeks," the case is still going on... and the folks behind the fan film, called Axanar, had to file their reply to the amended complaint. And they have. And, as per usual with these things, it goes through and rebuts various claims and then tosses in a bunch of counterclaims. Normally we'd go through and analyze the more interesting/important claims, but given that there's still a pretty good chance the whole case is going away shortly, we'll skip all that and jump to the part where Axanar's lawyers point to the JJ Abrams/Justin Lin statements and basically throw their hands in the air and say "we don't know what to do about this." After highlighting both of their comments, as well as the quote from Paramount "confirming" the settlement talks, the filing notes: Nevertheless, despite these public comments, the present action remains pending, and Defendants are currently left with uncertainty as to how Axanar may proceed with its film to fulfill the wishes of thousands of fans who have contributed. Given that pretty much everyone has admitted that there are settlement talks that are far along, it seems like the court should put the case on hold to see how those pan out. It's fairly common to see courts give parties extra time to settle such disputes out of court, and here's a case where that extra time clearly makes a lot of sense.
It still seems likely that the case will settle soon. I've seen some (fairly ignorant) commentary online arguing that because Axanar has filed counterclaims, the case must now move forward, but that's wrong. People are confusing the fact that the parties can settle the case outside of court with the issue of whether or not Paramount can just drop the case. From the statements everyone made, it's quite clear that they were discussing settlements, not Paramount universally backing away. A Star Trek "rumors" site claims that people at CBS are upset about the counterclaims and may continue the case even if Paramount settles (remember, Paramount and CBS co-own the various Star Trek IP). That report also claims that the two companies want the settlement to include the Axanar project being shut down -- which would seem to contradict the claims from Abrams.
While anything is possible, and the revealing of the settlement before it was actually agreed to could make things a bit messier, I find the claims about this difficult to believe. Axanar had to file its response because the case is still going and it was due. And they filed a strong response with counterclaims, because they have to do that, in case the settlement talks do fall apart for whatever reason. They can't go back to the judge and say "Hey, we filed a weak response because we thought we were all chummy now." That's not how it works. And, of course, the lawyers on the other side know this as well. The idea that the high priced lawyers at Paramount and CBS were somehow offended by this seems like a stretch. I may not agree with their views on copyright law, but I'd doubt they're so thin-skinned that some expected counterclaims will suddenly stop them from wanting to settle. Frankly, all the talk about how the counterclaims have sunk the settlement seem like wishful thinking from a group of folks who just hate the idea of Axanar.
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Senate Intelligence Committee Expands FBI NSL Powers With Secret Amendment To Secret Intelligence Bill
The annual intelligence authorization is under way, with the Senate deciding how much money the nation's spy agencies will receive next year, along with anything else they can slip in while no one's looking. The entire discussion takes place behind closed doors, so there's very little stopping the Intelligence Committee's many surveillance fans from amending the bill to increase intelligence agencies' powers.
A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.
If passed, the change would expand the reach of the FBI’s already highly controversial national security letters.
The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”
Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.
The FBI's history of abusing NSLs is well-documented. These letters allow the agency to route around judicial oversight by chanting "national security" while composing their requests. (Bonus feature: recipients are forbidden from talking about them... indefinitely.) Increasing the FBI's access with no corresponding increase in oversight is definitely not a good idea, considering it has never shown interest in self-restraint.
The FBI historically has not had access to email records via NSLs, although it did spend several years doing exactly that before being shut down by the DOJ. It obviously wants that access again and FBI Director James Comey claims the only thing standing between it and the access it always thought it had is a "typo."
If this secret amendment passes along with the authorization bill, it would weaken attempts to reform the ECPA -- the 1986 law that gives the government warrantless access to emails and other online documents more than 180 days old. But rather than fix the Senate intelligence authorization bill, legislators are looking to carve a hole in the recently (and unanimously) passed Email Privacy Act.
Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.
Privacy advocates warn that adding it to the broadly supported reform effort would backfire.
“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”
The FBI should be sending out fruit baskets to the Senate Intelligence Committee for both expanding its surveillance reach and undercutting a much-needed reform effort. Secret laws made by secretive committees during closed-doors sessions doesn't seem very "American," but much like the super-secretive NSLs the FBI loves so much, the routine invocation of "national security" tends to ward off the scrutiny this process desperately needs.
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Design van Google, hyper reality en girls of the internet. De interwebs zijn groot. Niet elke tweet wordt gezien, niet elke blog wordt gelezen. Daarom een stukje service van ons naar jou toe: mooie, ontroerende, zorgwekkende en/of hilarische linkjes over internetvrijheid die we deze week ontdekten en graag met je delen.
- In de long read afdeling van The Guardian verscheen een artikel over de situatie van klokkenluiders in de VS. De krant sprak exclusief met John Crane, een voormalig hoge ambtenaar in het Amerikaanse Ministerie van Defensie. Crane maakt aan de hand van de zaak rondom Thomas Drake glashelder dat de officiële Amerikaanse respons op Snowden —dat hij gebruik had moeten maken van de klokkenluiderswetgeving— nonsens is: Snowden had geen andere optie.
- Tristan Harris was een ‘product filosoof’ en ‘design ethicus’ voor Google. In een heel leesbaar artikel beschrijft hij tien manieren waarop ontwerpers van de informatieproducten die we dagelijks gebruiken misbruik maken van onze cognitieve valkuilen. Zijn oplossing? Ontwerpers zouden ons moeten verleiden tot ‘time well spent‘.
- Nog een filosofisch stuk: Meredith Meredith reflecteert naar aanleiding van het boek The Real World of Technology van Ursula Franklin op de rol die technologie speelt in onze democratie. Franklin is daar helder over: “There is no technology for justice. There is only justice.“
- Deze week lazen we via Rhizome over het fantastische Girls of the ~internet museum (GIM), een Tumblr die tussen 2012 en 2015 actief was. Het is een prachtige bron van een “alternatieve” (want vrouwelijke) online esthetiek. Eenmaal onderaan aangekomen kan het niet anders dan dat je het mainstream internet ongelooflijk saai en beperkt gaat vinden. Je bent dus gewaarschuwd.
- Design consultant Keiichi Matsuda heeft Hyper-Reality online gezet. In dit stuk design fiction brengt hij in beeld hoe een wereld eruit zou kunnen zien waarin het fysieke en virtuele radicaal meer samenvallen. Het is geestig, bizar en verontrustend tegelijkertijd.
- Tijd over? Lees dan ook even dit stuk van Zeynep Tufekci over de vermeende neutraliteit van Facebook.
In April 2015, President Obama issued Executive Order 13694 declaring a national emergency to deal with the threat of hostile cyber activity against the United States.
But six months later, the emergency powers that he invoked to punish offenders had still not been used because no qualifying targets were identified, according to a newly released Treasury Department report.
It certainly sounded scary enough. Obama said things about "cyber threats" being a serious threat to national security and the US economy. The state of emergency, according to the President, would create a "targeted tool" for combating our cyber-enemies.
This state of emergency is just one more in a line of uninterrupted states of emergencies dating back to the mid-1970s. A perpetual state of emergency is far more useful to the government than a "targeted tool," so a declaration of (cyber) war against a bunch of noncombatants still served a purpose, if only indirectly.
It started the ball rolling on the CISPA/CISA resurgence, which eventually "passed" after being attached to the coattails of a budget bill with far more momentum and support, as few legislators were willing to stare down the barrel of a government shutdown just to prevent a badly-written cyber-bill from passing.
More importantly, the president's statement and executive order gave the administration permission to do things it doesn't normally get to do.
Under the powers delegated by such statutes, the President may seize property, organize and control the means of production, seize commodities, assign military forces abroad, institute martial law, seize and control all transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a variety of ways, control the lives of United States citizens.
Declaring a state of emergency allows for the potential wreaking of havoc in taxpayers' lives. And even if these powers go unexercised (or anything), it still costs the taxpayers money.
Even though it generated no policy outputs, implementation of the executive order nevertheless incurred costs of “approximately $760,000, most of which represent wage and salary costs for federal personnel,” the Treasury report said.
The expenses of national states of emergency aren't being offset by seized funds or assets related to the targets of the executive order. The Treasury Department's report logically notes that zero targets means zero seizures. According to another report quoted by Steven Aftergood of the Federation of American Scientists, the long-running "state of emergency" prompted by various North Korean actions is resulting in less than ~$60,000 a year -- compared to an operational cost of at least $125,000/month (presumably the North Korean state of emergency is more expensive than the "cyberwar" one). No one really expects a "break even" government, but it's inarguable that targeting known or unknown entities via executive orders really isn't doing much to cripple their operations.
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Copyright: for when you just don't feel like being criticized. (Currently available for periods up to, and including, seventy years past your death!)
Matt Hosseinzadeh, a.k.a. "Matt Hoss," a.k.a. "Bold Guy," a.k.a. "Horny Tony," runs a moderately successful YouTube channel containing his moderately well-done videos of his "characters" performing feats of pickup artistry and parkour. It's all fairly ridiculous, but considering the depths pickup artists can plumb, the HossZone videos are actually fairly tame.
However, they aren't immune to criticsm. The two people behind YouTube channel H3H3 Productions posted a reaction video containing parts of one of HossZone's pickup-and-parkour recordings. The video, which the Kleins made private shortly after the legal threats began, has been mirrored here. This made Hoss irritable and he sent a lawyer after Ethan and Hila Klein of H3H3 Productions.
They've detailed the experience here:
According to H3H3, it all began with a demand for the removal of the video and $3,750 in legal fees racked up so far by Hoss's lawyer. From there, it got stupider. After failing to secure instant capitulation, HossZone's lawyer altered the terms of the deal. ("Pray I don't alter it stupider...") H3H3 could avoid paying any money by apologizing via their channel for misappropriating Hoss's "art," say some nice stuff about him in their apology video, and throw additional compliments HossZone's way for a period of no less than 60 days. (I am not kidding. Watch the video above.)
H3H3 refused to do so, so Hoss has now filed a copyright infringement lawsuit against Ethan and Hila Klein. Hoss also hit H3H3 with a copyright strike, despite the fact that the video central to the complaint had been set to "private" shortly after his lawyer began issuing legal threats.
Unlike others who have sought to abuse copyright to censor critics, Hoss appears to have his end of it pretty much nailed down. He has a valid, registered copyright that predates the H3H3 reaction video and his complaint isn't filled with vagues assertions about ethereal property and even vaguer assertions about how it's been violated.
That being said, detailed allegations aren't always credible allegations. It appears that fair use is still misunderstood by a great deal of the population, including those representing plaintiffs in copyright infringement lawsuits. From the complaint:
On or about February 15, 2016, Defendants published a video on their YouTube channel that copied and displayed virtually all of Mr. Hoss’s original Work (the “Infringing Video”).
The Infringing Video features the Defendants purporting to discuss the Work in what they believe to be a humorous manner but in fact reproduces virtually all of the Work as nothing more than a prop in the Defendants’ “comedy routine.”
Contrary to what Hoss's lawyer implies here, there is nothing in caselaw that forbids the use of "virtually all" of a work under fair use. Judges and juries may be more sympathetic if you don't, but this does not automatically make a work infringing, rather than fair use.
And, contrary to what is stated in the complaint, the ratio of H3H3-to-Hoss is far less that his lawyer would make it appear. [link to ad-blocker blocker Forbes]
The 13 minute h3h3 productions video in question uses about three minutes of HossZone’s skit, while the rest of the video features Ethan and Hila talking about the setting, script, character development, and even the costume design used by HossZone. They also talk about random things pertaining to their life, as most vlogs of theirs do.
The original video runs 5:25, so H3H3 used a little more than half of it, but that half only makes up about a third of the total reaction video runtime. Not that all this math makes much of a difference when fair use is raised as a defense, but it does serve two purposes: it illustrates there was a great deal of commentary surrounding Hoss's content and it appears to contradict the claims made by the plaintiff.
The Infringing Video was created and published without license from Mr. Hoss in direct violation of Mr. Hoss's exclusive rights as an author pursuant to 17 U.S.C. § 106.
Fair use does not require the obtaining of a license from a copyright holder (no matter what Sony Music claims...) because that's exactly what "fair use" is: the use of copyrighted works in a non-infringing way.
The Infringing Video does nothing to alter the original Work with new expression, meaning, or message
The Infringing Video fails to contribute a single substantive comment, criticism, or even parody to or of the original Work.
These are opinions, not factual assertions. The court will determine how substantive Hoss's take on H3H3's video is, but even those standing far outside of the IP-wonk circle can plainly see these are purely subjective statements.
Aside from the fact, as described in greater detail above, that the Infringing Video does not constitute a transformative fair use, it is also the fact that the Defendants operate the Ethan and Hila YouTube channel, where they published the Infringing Video, as an entertainment channel via which the Defendants generate advertising revenues.
People make money from fair use all the time. This argument has been debunked so often, it should ingrained in the mind of any decent IP lawyer.
What's interesting about this lawsuit is that HossZone also accuses H3H3 of filing a "false" DMCA counter notification in response to Hosszone's takedown request.
On or about April 26, 2016, the Defendants submitted to YouTube a counter notification, pursuant to 17 USC § 512(g)(3), affirming under penalty of perjury that the Infringing Video was improperly removed because it was, among other reasons, a fair use and “noncommercial.”
And if it's Hoss's takedown that delivered a strike to H3H3's account is determined to be bogus, what then? Still going to go HAM on the "perjury" angle?
Hoss's lawyer seems to take particular issue with the possibility that the Klein's may have received ad revenue from their reaction video. In addition to claiming YouTube's third-party advertising makes any uploaded video a "commercial" product, the attorney claims that most of H3H3's popularity is due to Hoss's talent and inherent likability, rather than the commentary added to the video or the rest of H3H3's video productions.
Upon information and belief, the Defendants have unfairly derived profit from the Infringing Video in the form of their YouTube channel, which generates advertising revenue, increasing in popularity during the two-month period that the Infringing Video was displayed.
Upon information and belief, the Defendants’ YouTube channel more than doubled its number of subscribers due, at least in part, to the popularity generated by the Infringing Video.
The lawsuit also claims that Hoss is so charismatic his 3-minute appearance in a video mocking him somehow resulted in the Kleins being able to generate income from Patreon and Kickstarter.
All in all, it's a fairly ridiculous lawsuit which is made worse by its apparent motivation: to remove something Matt Hoss doesn't like from the internet. Even if this somehow works out for the parkouring pickup artist, the battle is already lost. A supporter of the Kleins set up a fundraiser for their legal defense, which amassed over $100,000 in under 24 hours. Meanwhile, what's left of Matt Hosszone's web presence is being savaged by dozens of angry commenters -- most of it far more brutal than anything the Kleins said during their criticism of his video.
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Judge Robert Bryan -- having set his own house against itself by declaring the FBI could keep its NIT info secret while simultaneously declaring the defendant in the child porn case had every right to see it -- has managed to find a way out of his self-induced conundrum. And it's going to make the FBI very sad. (h/t Ars Technica)
For the reasons stated orally on the record, evidence of the N.I.T., the search warrant issued based on the N.I.T., and the fruits of that warrant should be excluded and should not be offered in evidence at trial.
Well, not quite.
Michaud hasn't had the case against him dismissed, but the government will now have to rely on evidence it didn't gain access to by using its illegal search. And there can't be much of that, considering the FBI had no idea who Michaud was or where he resided until after the malware-that-isn't-malware had stripped away Tor's protections and revealed his IP address.
The FBI really can't blame anyone but itself for this outcome. Judge Bryan may have agreed that the FBI had good reason to keep its technique secret, but there was nothing preventing the FBI from voluntarily turning over details on its hacking tool to Michaud. But it chose not to, despite his lawyer's assurance it would maintain as much of the FBI's secrecy as possible while still defending his client.
Judge Bryan found the FBI's ex parte arguments persuasive and declared the agency could keep the info out of Michaud's hands. But doing so meant the judicial playing field was no longer level, as he acknowledged in his written ruling. Fortunately, the court has decided it's not going to allow the government to have its secrecy cake and eat it, too. If it wants to deploy exploits with minimal judicial oversight, then it has to realize it can't successfully counter suppression requests with vows of silence.
It's doubtful the FBI will learn from this experience. It did the same thing in 2012 and received nothing but deference from the courts. This time around, courts and lawyers are better educated, thanks to Snowden's leaks and a few hundred FOIA warriors -- all of whom have served to expose the massive, secret expansion of the government's surveillance reach and the near-complete dearth of effective oversight.
The FBI will be pushing hard for the adoption of the proposed Rule 41 changes. If these had been in place, every illegal search it performed using its NIT and the invalid warrant it obtained would have been legal. As it stands now, however, multiple courts have examined the warrant and the hacking tool and found the FBI's actions to be in violation of current statutes. What should have been slam-dunk prosecutions against unsympathetic defendants have instead become multiple participants in an ongoing debacle.
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De Dutch Datacenter Association en ICTRecht hebben de handen ineengeslagen en het rapport ‘Datacenter en Recht’ gepubliceerd waarin alle juridische aspecten rondom het onderbrengen van IT in datacenters belicht worden. De rode draad in het rapport is vertrouwen als fundament voor succesvolle plaatsing van IT bij een datacenter.
De Nederlandse datacentersector groeit met dubbele cijfers. Er wordt jaar op jaar steeds meer data verzameld, uitgewisseld en gebruikt. De juridische implicaties daarvan zijn voor veel bedrijven en organisaties onduidelijk. Daarom hebben de Dutch Datacenter Association (DDA), die zo’n 90% van de grote commerciële datacenters in Nederland vertegenwoordigd, en ICTRecht, één van de grootste juridische adviesbureaus op het gebied van ICT, hun krachten gebundeld. Het resultaat is een overzichtelijke gids waarin alle juridische aspecten van uitbesteding aan een datacenter aan de orde komen.
“De IT die bedrijven onderbrengen in datacenters vervullen vaak een kritische rol in de continuïteit van de organisatie. En daarmee zijn datacenters een steeds belangrijker schakel in de Nederlandse economie. Vertrouwen is hiervoor de basis. Als dat vertrouwen er niet is, staat alles stil”, aldus Stijn Grove, directeur van de DDA. “Borging van het vertrouwen middels solide juridische afspraken en kennis is cruciaal.”
“Steeds meer bedrijven en organisaties kiezen voor een datacenter om hun IT in onder te brengen”, vervolgt Grove. “De reden daarvoor is simpel: datacenters zijn specifiek ontworpen voor maximale schaalbaarheid, beschikbaarheid, connectiviteit en energie-efficiëntie, iets dat binnen de muren van een organisatie steeds slechter te realiseren is, al was het alleen maar vanwege het kostenplaatje. Ook de beveiliging van IT wordt in een datacenter op hoog niveau geborgd. De businesscase voor plaatsing van IT in een datacenter is dus snel gemaakt, maar de juridische aspecten daarvan zijn niet altijd duidelijk wat kan leiden tot ongefundeerde beslissingen.”
Met de komst van steeds meer privacyregelgeving – denk aan de meldplicht datalekken – is het van groot belang dat bedrijven IT met vertrouwen uit handen kunnen geven. Maar dat betekent ook dat juridische kennis van zaken noodzakelijk is. “Dit rapport is specifiek bedoeld om uitleg te geven over alle juridische ins- en outs van uitbesteding van IT bij een datacenter. Niet alleen voor uitbestedende partijen of datacenters zelf, maar ook voor andere stakeholders. Hoe zit het met contracten, SLA’s en privacyregelgeving? Wie is er verantwoordelijk als zich onverhoopt een datalek voordoet? Hier moeten op voorhand heel duidelijke afspraken over gemaakt worden om het vertrouwen te waarborgen”, aldus Grove.
Het rapport biedt gebruikers en leveranciers, naast achtergrondinformatie, vele factsheets, checklists en praktische tips. De DDA en ICTRecht gaan het rapport jaarlijks van een update voorzien waarin de laatste ontwikkelingen zoals het op stapel staande Privacy Shield verdrag uitgebreid tegen het licht gehouden zullen worden.
Over Dutch Datacenter Association
Dutch Datacenter Association (DDA) is de brancheorganisatie van datacenters in Nederland. DDA verbindt de marktleidende datacenters in Nederland met een missie: het versterken van de economische groei en het profileren van de datacentersector naar de overheid, media en samenleving.
DDA verwoordt standpunten van de industrie met betrekking tot regelgeving en beleidskwesties. Het toont leiderschap door leden te faciliteren en te stimuleren tot operationele verbetering in de vorm van ‘best practices’. DDA bevordert onderwijs en levert een bijdrage aan technische normen waarmee de datacenterindustrie zich in Nederland en daarbuiten verder kan onderscheiden.
De Dutch Datacenter Association is één van de oprichters van de koepel Digitale Infrastructuur Nederland, DINL. Samen met AMS-IX, DHPA, ISPConnect, SIDN, Nlnet, SURFnet, VvR en Nederland ICT verenigt het de organisaties die het internet mogelijk maken in Nederland. DDA werkt daarnaast actief samen met marktpartijen, overheid en andere belangenorganisaties.
ICTRecht levert deskundig en praktisch juridisch advies over ICT tegen een gunstig tarief. Onze adviezen zijn begrijpelijk en geven blijk van technische kennis. Wij denken pro-actief mee met de klant. Onze mensen zijn dan ook juridisch en technisch thuis in onze niche.
ICT, internet en telecommunicatie zijn technisch complexe gebieden waar de wet vaak achter de snel veranderende feiten aanloopt. Juridisch advies op dit gebied is dan ook geen eenvoudige zaak. ICTRecht kiest voor deze niche omdat zij ervan overtuigd is met haar technische én juridische kennis een unieke dienst te kunnen leveren.Gerelateerde artikelen