Five Years Ago
By this time in 2010, everyone had seen the leaked draft of ACTA — so, naturally, the USTR decided it was time to release it. It was, as we put it, "only very slightly less awful than expected", and it was missing a critical piece of information: what each country is pushing for.
Speaking of pushes by various countries, this week in 2010 we saw Canada's recording industry begin a campaign for draconian copyright laws, while India introduced draft copyright amendments that were a mixed bag. We were unsurprised to discover that UK piracy statistics are bunk too (while at home the MPAA was refusing to reveal how it came up with its own bogus numbers). Amidst all this, Google launched its tool for looking up international takedown stats, though it seemed to have significant limitations.
Also in 2010: Blizzard sold $2-million worth of virtual horses in four hours while Ubisoft was busy annoying customers with its DRM; still-free Hulu announced its paid subscription service while DirecTV struck another customer-confusing release deal with movie studios; and we looked at possibilities for reforming copyright such as returning it to its roots or using compulsory licensing to build an "abundance-based" system.
Ten Years Ago
Plenty of what happened in 2010 wasn't exactly new to that year. Five years earlier the same week, the Canadian recording industry was already trying to kill online music stores with tariffs, the UK recording industry was already saying stupid thinks about filesharing, and bad DRM was already annoying customers.
The entertainment industry was exerting a lot of influence on law enforcement, and sharing songs or movies before their release became a felony with three years of jailtime. Not content to be overly protective of the movies themselves, the MPAA was also sending C&Ds to people who use its movie rating system for other things. Not content to be overly protective of the songs themselves, the recording industry in Germany was forcing a bunch of lyrics sites to shut down.
Microsoft Encarta was still around in 2005, and beginning to adopt some vaguely Wikipedia-like features, but it was too little too late. Macromedia was also still around, and this week Adobe announced that it would buy it for $3.4-billion. And catalog shopping was still around, but not for long, it seemed. Book publishers were starting to freak out about Google's scanning plans, while newspaper editors were surprisingly and naively not freaking out about Craigslist (if they even knew what it was).
Fifteen Years Ago
Just this morning, I was calibrating the voice-wakeup on my phone and being frustrated by its general lack of responsiveness. Despite this, I can't deny it's come a long way from visions of voice-based WAP shopping all the way back in 2000, when AltaVista was still around and postponing its IPO, and colleges were bizarrely cracking open the subject of internet ethics.
This week in 2000 also featured a big announcement from Mirimax: an experiment in putting feature films online, something nobody had done before. It was impossible not to consider the turbulent future of that move, since this was also a time of rampant discussion and controversy around Napster, including some side-switching and the decision of a few fans to put together a system for donating money to Metallica.
Fifty Years Ago
Predictions are abundant in the technology world. They are also almost always wrong, usually either vastly overestimating change in the short-term or vastly underestimating it in the long-term. But there's one fundamental and famous tech prophecy that has held true throughout all the twists and turns of the entire digital revolution: Moore's Law, which turned 50 this week. Put in the simplest terms, the law states that the power of computer processors (more technically, the number of transistors in dense integrated circuits) will double every two years — and that's exactly what's happened for half a century.
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As with last week's awesome stuff, we're trying out something slightly different. Instead of gathering three new crowdfunded products, we're focusing on just one and taking a slightly closer look at it. Please let us know what you think in the comments!
This week, we're looking at a potentially exciting new addition to the maker's toolkit: the Orbit1 tabletop electroplater.
The Orbit1 simplifies, streamlines and compacts the complex process of electroplating a wide variety of materials with various metal coatings, and could open up a whole new world of possibilities for all sorts of creators. 3D printers get so much focus in these discussions that it's easy to forget there are other pieces to the puzzle, and a tabletop electroplater fills in a big gap. There are many things you can't do with plastic, metal 3D printing is still expensive and not easily accessible, and electroplating typically means forking over cash to professionals with large machines — so the Orbit1 is enabling countless new avenues for prototyping, jewellerymaking, art and more. It even enables the creation of printed circuit boards with a standard 3D printer. That will make it a boon to future Kickstarter projects too: many creators go as far as they can doing home prototyping work with their 3D printers, and the Orbit1 pushes that limit considerably further for many projects.
As with virtually all new devices these days, the Orbit1 is going to be unnecessarily shackled to its proprietary apps and cloud system. Thankfully, it appears they aren't going too far with this: the device can be controlled with the app via Bluetooth so it isn't online-only, and the "expert mode" (where all the various settings are under your control) is useable even without an account on the online service. But it sounds like many other features — including the ability to automatically determine settings and store various settings profiles — will be tied to the cloud. There's also no desktop app for controlling the Orbit1: it's limited to Android and iOS.
This approach to new devices is becoming a huge headache. Backing many things on Kickstarter now means not just betting that the creators will be able to produce the product successfully, but that they will also evolve into a sustainable company that keeps its servers running and properly manages your account. Using such devices means additional accounts and passwords (we all need more of those right?), putting your personal data on yet another distant server (best practice!), and having even more limited cloud storage (the Orbit1 comes with 5gb) scattered in fragments across the web. Mobile-only control means you're also relying on the apps to remain active and updated in proprietary app stores, with the potential for issues on that end of things to suddenly and randomly brick your new toy.
The Admirable, But Problematic
There is, however, some justification for the Orbit1's desire to tie users into an ongoing relationship: the creators appear to have a sincere commitment to environmental responsibility and safety (not to mention a genuine need to comply with various countries' regulations). Electroplating can be dangerous — the solutions used in some settings are highly poisonous, and all of them require proper disposal to avoid serious environmental damage. While the Orbit1 can work with any electroplating solution, and those with more knowledge of the process will surely make use of that, the creators are also focused on selling their own line of the safest possible solutions along with a free recycling service.
Here's the catch, though: the solutions are available to people with Orbit1 accounts, and those accounts can get cancelled if people fail to return their used solutions to be recycled. The details are slightly unclear, but it seems like this means a full account cancellation, which would also include all the additional cloud-tied features mentioned above. Now, while I understand and even approve of the desire to put real pressure on people to use the Orbit1 in a responsible way, I can't help but think this is going to screw some undeserving users.
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Geheime diensten die iets te verbergen hebben, tunnels en privacytrends. De interwebs zijn groot. Niet elke tweet wordt gezien, niet elke blog wordt gelezen. En er is meer in de wereld. Daarom een stukje service van ons naar jou toe: alles wat je deze week over internetvrijheid had kunnen lezen, kijken of luisteren in 432 woorden.
Het nieuws van de week
Deze week gaf Duitse krant Die Zeit een fascinerend inkijkje in hoe geheime diensten samenwerken en hoe de uitwisseling van informatie tussen die diensten werkt. De NSA en de Duitse geheime dienst, de BND, werkten samen. De NSA gaf zoektermen aan de BND. Die doorzocht dan haar eigen databases daarop. Maar de NSA gaf jarenlang meer zoektermen dan mocht volgens de regels van de BND en de BND heeft dit nooit doorgegeven aan de Duitse regering, uit angst dat ze zelf geen informatie meer van de NSA zou krijgen.
- Tommy Wieringa schreef dit jaar de Kousbroeklezing ‘Niemands meester, niemands knecht‘: “De woorden ‘fraude’ of ‘terrorisme’ zijn het Sesam-open-u van de privacy; noem ze en ons privéleven wordt openbaar en onze grondrechten verdampen. De al dan niet fictieve Dritte im Bunde bedreigt, als hij de ruimte krijgt, ons welzijn en onze individuele vrijheid. En om onze vrijheid op lange termijn te beschermen, maakt de overheid zich er op korte termijn meester van. Aan het monsterverbond dat is gegroeid tussen burger en overheid, ligt de angst voor een derde ten grondslag – angst die levend gehouden en aangewakkerd moet worden om effectief te zijn. De overheid gedraagt zich als een pooier, die beschermt wie zij in feite gijzelt.”
- Voor Mediaforum beschreef Ot van Daalen (oud-directeur van Bits of Freedom) tien privacytrends: Van de relevantie van Snowden tot de rol van toezichthouders en het Europees Hof, er staan er inmiddels al negen online.
- Ook de Belastingdienst is vrolijk aan het profilen. In een interview aan De Correspondent geeft algemeen directeur Hans Blokpoel aan hoe hij daarover denkt. Hij stelt de toehoorder gerust: om te voorkomen dat ze over de grens gaan, heeft hij een ‘veiligheidsventiel’ ingebouwd. Maar bij kritische navraag naar dat ventiel, wil hij er maar weinig over kwijt.
- De Nederlandse Leanne Wijsma, probeert soms te ontsnappen aan het leven waarin we continu achter een beeldscherm zitten, waar hier en nu niet meer helder afgebakend zijn. Ze moemt dat ‘liquid reality’. Dat ontsnappen moet je heel letterlijk nemen. Leanne graaft namelijk tunnels. Ze maakt een gat op een bepaalde plek en komt een paar meter verder weer de grond uit. En dat alles terwijl ze het filmt.
FBI And United Airlines Shoot The Messenger After Security Researcher Discovers Vulnerabilities In Airplane Computer System
The latest version of this has gotten the EFF involved in defending a security intelligence expert who tweeted from aboard a United Airlines flight about his ability to hack into the flight's WiFi and access some level of the flight's communications.
Find myself on a 737/800, lets see Box-IFE-ICE-SATCOM, ? Shall we start playing with EICAS messages? "PASS OXYGEN ON" Anyone ? :) — Chris Roberts (@Sidragon1) April 15, 2015
It may not mean much to you, but he's talking about getting access to communications systems and even some level of controls within the plane itself. And if that doesn't scare you, it should. It scared the feds, too, but it didn't scare them into actually, you know, addressing the security concerns. But it did scare them enough that upon the plane landing Roberts was scooped up by the FBI, questioned for several hours, and had his encrypted computer, tablet, and drives snatched from him. No warrant for any of this, mind you, at least not at the time of this writing. As you can imagine, he's not pleased. Mostly, though, he's confused as to why the feds are picking on him at all. Roberts told FORBES he was disconcerted by the actions of US law enforcement. “Feds have known about issues in planes for years, why are they hot now? I’m a researcher, that’s what I do, I don’t go out to harm or hurt, why pick on researchers? If not us then who will find flaws?” Which is the entire point. The government should be thanking its lucky stars that a benevolent force such as Chris Roberts was the one who found this exploit, rather than someone who might actually wish to do harm. Tweeting about it may alert more nefarious folks that such an exploit exists, sure, but it also got the attention of the federal government who had damned well better be fixing this tout de suite. As far as anyone interested in actually fixing this exploit should be concerned, mission freaking accomplished. And yet Roberts is targeted, not because he's an actual threat, but merely for doing what people in his profession do.
And not just at the conclusion of that flight, either, I should add. The harassment continued afterwards. Roberts was back at the airport on Saturday evening, headed to San Francisco to attend two high-profile security conferences, the RSA Conference, where he is scheduled to present on Thursday, and BSides SF. After Roberts retrieved his boarding pass, made his way through the TSA checkpoint and reached the gate, United corporate security personnel stopped him from boarding the plane. Roberts was told to expect a letter explaining the reasons for not being allowed to travel on United. Thankfully, Roberts was able to book a last-minute flight on another airline and has now landed safely in San Francisco.
Nevertheless, United’s refusal to allow Roberts to fly is both disappointing and confusing. As a member of the security research community, his job is to identify vulnerabilities in networks so that they can be fixed. Indeed, he was headed to RSA speak about security vulnerabilities in a talk called “Security Hopscotch” when attempting to board the United flight. This should be seen as useful for the public, which now knows somewhat certainly that United Airlines would much rather attempt to achieve security through obscurity rather than seeing experts like Roberts as a boon to their own safety product. Should you need to fly anytime soon, do you really want to board a flight run by a company that has now demonstrated that it tolerates vulnerabilities aboard its flights and also would rather try to put its head in the sand than deal with those vulnerabilities? I sure wouldn't. Keep in mind, by the way, that United is getting this important information into its own security for free. But rather than be grateful, out come the cross hairs.
It's enough with this crap already. No amount of embarrassment is justification for harassing a security researcher who happens to be fault-testing technology on high-profile targets. And doing it free of charge, I might add. In the realm of security, Roberts is a helpful force, not a harmful one. It'd be nice if the Feds and United Airlines would behave gratefully, rather than targeting the man.
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UK Government Belated FOI Transparency Lamented By The Man Who Pushed For It, 'Cash-Strapped' Agencies
The UK's Freedom of Information law was a long time coming. In contrast to the United States government, which (begrudgingly) (and only sort of) threw open its filing cabinets for its citizens' perusal in 1966, the UK's version didn't go live until 2005, after nine years of legislative maneuvering. Tony Blair, who started the push as an opposition leader, was already expressing his regrets five years later. “Freedom of information,” he wrote in his 2010 memoir, “A Journey.”“Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naïve, foolish, irresponsible nincompoop.” And why wouldn't he? It's a wonderful tool of transparency and accountability. But it's also this: The requests come in to local councils with appalling regularity: “How many residents in Sutton own an ostrich?” “What procedures are in place for a zombie invasion of Cumbria?” “How many people have been banned from Birmingham Library because they smell?”
In Wigan, the council was asked what plans were in place to protect the town from a dragon attack, while Worthing Borough Council had to outline its preparations for an asteroid crash. That's the unavoidable side effect of allowing the public to request information from their government. These requests are referred to as "vexatious" and a waste of government funds. But the alternative is to "go dark." There's no middle ground that won't ultimately be misused by government agencies to withhold more information than they already do. And judging from what's been uncovered so far thanks to the UK's FOI law, there's nothing many government entities would like more than additional exceptions and exemptions. A slew of political scandals have come to light under the act. It was Ms. Brooke’s F.O.I. request that ultimately led to the parliamentary expenses scandal in 2009, resulting in the imprisonment of five Labour members of Parliament and two Conservative peers.
More recently, Jeremy Hunt, the current health secretary who formerly was culture secretary, was embroiled in controversy after F.O.I. requests revealed his close relationship with Rupert Murdoch’s media empire during News Corp’s approximately $12 billion bid for the broadcaster BSkyB. And Eric Pickles, the minister for communities and local government, landed in hot water for spending about $110,000 on tea and biscuits in a single year. Smaller government bodies are the ones doing the most complaining about the costs of responding to FOI requests. The complaint is partially legitimate. Less funding means stretching tax dollars further. But it also leads to some disingenuous proclamations. At Buckinghamshire County Council, workers last year spent 11,276 hours handling more than 1,700 requests, costing the taxpayers more than $400,000. The leader of the council, Martin Tett, complained of the cost in “times of austerity.”
“This is money we could be spending on other vital services, like children’s services or care for the elderly,” he said. There's a solution to that problem, and it doesn't involve a return to greater secrecy. It's a national law, and funding to cover requests should be made available by the UK government itself if smaller locales find themselves cutting children's services to handle FOI requests. Sure, there's not an infinite amount of funds available, but what's being spent on handling FOI requests is basically a rounding error. Between October 2013 and September 2014, central government departments received 48,727 requests, which would put the approximate annual cost of freedom of information at over $20 million.
Still, as advocates point out, that represents about 0.0019 percent of the budget — and $20 million is less than what the British taxpayer has paid for the travel expenses of Prince Andrew, the Duke of York. While ostriches, asteroids and dragons may be "wasting" local funds, the amount spent handling requests is almost nonexistent. Local governments should be petitioning the national government for FOI funding assistance, not claiming that increased transparency is robbing the elderly of proper care or taking food out of children's mouths. It's "think of the children," slightly rephrased. Whenever funds run low, government agencies never take a look at the $110,0000 spent on tea and biscuits. They'd much rather generate outrage and sympathy by pointing the fiscal gun at the heads of retirees and schoolchildren.
Considering the amount of fiscal impropriety FOI requests uncover (despite the best efforts of government agencies to thwart them), it can easily be argued that this transparency pays for itself -- especially when it only has to cover .002% of the national budget to break even.
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- Jimmy Kimmel regularly tricks unsuspecting people for his late night talk show, and one of his pranks includes setting up an organic juice taste test that actually gives people samples of beverages such as Skittles blended in water, melted Creamsicles, Tang or Fun Dip dissolved in water. When people think they're drinking a natural/organic juice, they'll tell you it's fresh and not too sweet or sugary -- even when it's basically sugar and water with artificial flavors. [url]
- People who attend commercial food conferences might not be food experts when it comes to telling the difference between a McDonald's meal and an organic alternative to fast food. McNuggets are definitely tasty, and who can tell what tastes "organic" anyway? If you tell people it's organic, they'll believe it's organic. [url]
- Plating high end cuisine is an art that can make almost any food look a bit more appetizing. It's amazing how good a sliced up hot pocket with ranch dressing blobs can look. [url]
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Pay attention to the gaming scene and the way gamers interact with game companies and journalists and you'll see that times are a little tense these days. Without diving into any of the debates currently being had throughout Gamerdom (Gamerstan? Gaming Nation?), let's just all agree that there is a big fat trust vacuum at the moment and that this vacuum is being filled by all kinds of reactions, some of which are reasonable, some of which are silly and overreaching. What's happened since in the last year or so has exacerbated the distrust to the point where companies operate on tip-toes with their audiences or they suffer the consequences. What cannot be done in a time like this, if a company wants to make money and keep its fanbase loyal, is to further breach that trust.
Take Microsoft, for example. The Xbox-maker recently pimped The Witcher 3 for its Xbox console on YouTube...using footage from the PC version of the game. Today, the Xbox YouTube channel released a rad new video for the upcoming role-playing game The Witcher 3. There’s just one problem: it’s not actually running on an Xbox. Whoops. Yep, despite that XBOX logo stamped on the bottom right corner of the above video, this is actually footage from the (presumably better-looking) PC version of the game. The easiest way to tell? You can run the YouTube video at 60 frames-per-second; the developers of The Witcher 3 (out May 19 for PS4/XB1/PC) have specified that the console versions are actually locked at 30 FPS. Now, I can already hear every person on the planet who either isn't a gamer at all or is a casual gamer at most screaming, "There's no way this is a big deal!" And, ultimately, they're right, it's not the hugest issue in gaming today. Game-makers play these kinds of tricks all the time, whether it's showing the wrong version of the game, passing off cut-scenes as gameplay elements, or promoting features in games that aren't present upon release. But the tolerance for these tricks is completely gone. It's now common to see disclaimers that footage isn't actually of gameplay, or that the footage is from one version of the game or another. And, while the Xbox channel did eventually edit to include a disclaimer that the footage was from the PC version of the game, the bait-and-switch nature of all this seems more inexplicable when it appears on the YouTube page for the console itself.
Next thing you know, prospective customers are crying foul and the game developer, CD Projeck Red, a company that is generally awesome in terms of being customer friendly, suddenly has to scramble to assure its fans that it had no idea Microsoft was doing any of this. Again, no reason not to believe them, but in the trust vacuum everyone might be in on the conspiracy and blowback is done via carpet-bomb instead of in a measured way.
Is this false advertising or an inadvertent error? I have no idea, but I do know that gaming companies can't make these errors and think they can get away with it at the moment.
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Thankfully, the guy selling those 3D printed left sharks, Fernando Sosa, was able to retain lawyer Chris Sprigman, who pointed out that there is no copyright in costume design. Soon after that, we noted a bizarre twist on the story, in that Perry's legal team made a quick effort to go and trademark left shark, while (amazingly) using one of Sosa's photos of his own 3D printed models as the photo they submitted showing what they were trademarking.
Either way, Perry's legal team has been working on a few different trademarks related to "left shark" but apparently trademark examiner David Collier has some concerns about Perry's trademarking attempt: David Collier, the trademark examiner, isn't yet impressed by the attempt to register the design, which, he wrote, "identifies only a particular character; it does not function as a service mark to identify and distinguish applicant’s services from those of others and to indicate the source of applicant’s services."
In other words, there's not enough evidence submitted yet that consumers look at "Left Shark" and think of a Katy Perry music performance.
The examiner also noted the differences between a photograph of Perry dancing with "Left Shark" and the drawing of "Left Shark" submitted as the design.
"Specifically, the [photograph] displays the mark as a stylized depiction of a forward leaning shark in nearly a front profile with a portion of a dorsal fin, two pectoral fins and two legs and feet substituted for the caudal fin on the tail," he wrote. "The shark has five gills, a full mouth with teeth and round eyes with eyelids; however, the drawing displays the mark as a stylized depiction of an upright shark in full front profile with no dorsal fin, two full pectoral fins and two legs and feet; the shark has three gills and the shark's mouth appears without teeth; the shark also has oval eyes without eyelids." Of course, we feel obliged to go back to a point that Sprigman made early on in these discussions: while Perry may have had something to do with creating Left Shark, she had basically nothing to do with the reasons why Left Shark became "Left Shark" rather than "random dancing character in a big show that everyone forgets soon after." As Sprigman noted: No one knew that one of the sharks dancing next to Katy Perry during the Super Bowl halftime show was Left Shark until the Internet told us so. The Internet decided that Left Shark’s flubbed dance moves were hilarious. It gave Left Shark his name, and then it made him into a meme. Left Shark isn’t really about Katy Perry. So if anyone deserves a trademark on it, it should be "the internet." Or we can just make this simple and not trademark it at all.
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DHS Opening Office In Silicon Valley To More Efficiently Complain To Tech Companies About Encryption
If only the endlessly-escalating West Coast cost of living could have prevented this: Today I am pleased to announce that the Department of Homeland Security is also finalizing plans to open up a satellite office in Silicon Valley, to serve as another point of contact with our friends here. We want to strengthen critical relationships in Silicon Valley and ensure that the government and the private sector benefit from each other’s research and development. That's Jeh Johnson addressing the crowd at the RSA Conference. Of all the news no one wanted to hear, this has to be close to the top of the list. Three-lettered government agencies are pretty much NIMBY as far as the tech world is concerned, especially after Snowden's revelations have seriously and swiftly eroded trust in the government. No one wants a next-door neighbor who's going to constantly be dropping by for a cup of decryption.
The current course we are on, toward deeper and deeper encryption in response to the demands of the marketplace, is one that presents real challenges for those in law enforcement and national security.
Let me be clear: I understand the importance of what encryption brings to privacy. But, imagine the problems if, well after the advent of the telephone, the warrant authority of the government to investigate crime had extended only to the U.S. mail.
Our inability to access encrypted information poses public safety challenges. In fact, encryption is making it harder for your government to find criminal activity, and potential terrorist activity.
We in government know that a solution to this dilemma must take full account of the privacy rights and expectations of the American public, the state of the technology, and the cybersecurity of American businesses.
We need your help to find the solution. "Let me be clear: I understand the importance of what doors bring to privacy. But, imagine the problems if, well after humanity moved out of caves, the warrant authority of the government to investigate crime had only extended to dwellings without doors."
Bullshit. The DHS, along with other law enforcement agencies -- is seeking is the path of least resistance. It can get warrants to search encrypted devices. It just may not be able to immediately crack them open and feast on the innards. It may also get court orders to compel decryption. This is far less assured and risks dragging the Fifth Amendment down to the Fourth's level, but it's still an option.
Then there's the option of subpoenaing third parties, like cloud storage services, to find the content that can't be accessed on the phone. So, it's not as though it's locked out forever. This may happen occasionally but it won't suddenly turn law enforcement into a wholly futile pursuit.
Silicon Valley isn't going to help the DHS "find a solution." There isn't one. The DHS may as well get some legislation going and force companies to provide a stupid "good guys only" backdoor because the tech world already knows you can't keep bad guys out with broken encryption. This should be painfully obvious and yet, the "good guy" agencies seem to think tech companies are just holding out on them.
From there, Johnson switches to his most disingenuous rhetorical device: the assertion that Americans are clamoring for an unrealistic level of safety. I tell audiences that I can build you a perfectly safe city on a hill, but it will constitute a prison. Who the fuck is asking you to do that? The only people pushing for "perfectly safe" are government agencies who like big budgets and increased power and the private companies that profit from this sort of fearmongering. Most Americans are far more pragmatic and they'd rather keep what's left of their privacy and civil liberties, even if it means the safety of the country is slightly less assured.
And this makes me want to vomit with contempt: In the name of homeland security, we can build more walls, erect more screening devices, interrogate more people, and make everybody suspicious of each other, but we should not do this at the cost of who we are as a nation of people who cherish privacy and freedom to travel, celebrate our diversity, and who are not afraid. THAT IS LITERALLY ALL YOU HAVE DONE SINCE 2001.
In the name of "homeland security," we have TSA agents groping people, breaking their luggage, humiliating people with medical issues and stealing personal belongings -- all without ever having prevented a single attempted hijacking or bombing. In the name of "national security," we have indulged every nosy do-gooder with numerous hotlines to report their neighbors' ownership of luggage or cameras or pressure cookers. In the name of the "war on terror," we have a 100-mile buffer zone around the nation's borders that nearly completely eliminates every Constitutional protection.
Jeh Johnson hasn't been in the position long, but he's already descended into inadvertent self-parody. This speech was apparently delivered with complete sincerity, which means Johnson has no idea how his agency is perceived. There are very few people who believe the DHS is some sort of civil liberties champion. Jeh Johnson is obviously one of them.
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Designer Still Pursuing Bogus Takedown Of Periodic Table Of HTML Elements; Has No Idea How Copyright Works
Very recently, we covered designer Alara Mills' wholly misguided takedown efforts against Mike Riethmuller, a coder who crafted a periodic table of HTML 5 elements that she claimed looked like hers. Here's Riethmuller's:
Which was inspired by Josh Duck's earlier effort:
Neither of which look like the HTML 5 table Alara Mills sells:
But she claims Duck's (and consequently, Riethmuller's) infringes on this earlier version, which was the subject of a lawsuit she brought against Duck.
The suit was dismissed. Duck settled rather than fight Mills' baseless claims, which included the unsupported accusation that somehow Duck had intercepted her original version -- which she had emailed to someone else entirely -- and used that to craft his version. From the cease-and-desist order, in which her lawyers don't sound too sure about the theory their client is pushing: Ms. Mills submitted an earlier version of her chart within a book prospectus to a publisher in July 29, 2010, a copy of which is enclosed. This is the version that was possibly leaked to you in creation of your Periodic Table. Using this "win" (she voluntarily dismissed the suit with prejudice), she's now pursuing Riethmuller over his Duck-inspired version -- not because it looks like her current version, but because it looks like the unreleased version Duck supposedly infringed on.
When I wrapped up the last post, I noted that Mills had apologized to Riethmuller and withdrawn her legal threats. Apparently, that move was just PR-related. Mills had no intention of dropping her baseless claims against Riethmuller. The same night that post went live (with the final "good news" added to it), she reversed course. Mills has filed a followup complaint to Github in hopes of expediting the removal of Riethmuller's HTML 5 table.
Here's her original takedown request, which spends as much time on claims of "owning" common elements like Mendeleev's periodic table design and coding constants as it does espousing conspiracy theories and mangling IP terminology. [Interrupted periodically for commentary.] I, Alara Mills, have read and understand GitHub's Guide to Filing a DMCA Notice.
1. Identify the copyrighted work you believe has been infringed.
The copyrighted work I believe is infringed is my copyright in the 2-D artwork titled “The HTML Table of Elements.” The copyright is registered with the United States Copyright Office with an effective date of registration of January 27, 2010 and registration number VAu 1-014-116. “The HTML Table of Elements” is my original, United States copyrighted artwork. It is an original work inspired by the Periodic Table of Elements from chemistry that I first sketched out on paper December 25, 2009. The HTML Elements within my chart are placed in my own unique categories. It is this unique ordering that took it out of fair use and thereby made it eligible for copyright. (Author's unique ordering of HTML5 Elements within their literary books is also what makes them unique for copyright.) [You can't take something "out" of fair use. Fair use is a defense. She may have meant "public domain," but even if so, she's still completely wrong. You can make use of public domain elements, but what you can't do is "remove" them so that no one else can do the same. But that's what she's claiming.] 2. Identify the material that you allege is infringing the copyrighted work listed in item #1, above.
The material I am alleging is infringing the copyrighted work is hosted at the following URL: http://madebymike.com.au/html5-periodic-table/
My HTML Elements and Attributes Infographic has evolved into a proprietary graphic with various derivative works. The one in question is an earlier derivative work which was submitted within a book prospectus submitted to publishers as early as May 2010. This version was leaked to Joshua Duck, who then made an unauthorized derivative work of my original work and hosted it at http://joshduck.com/periodic-table.html. [Word salad. First, this still assumes that these are "derivative" from her works, when there's very little evidence to support that. And, remember, the only control Mills has is on derivative works of the parts of the original that was actually protectable by copyright. And there's almost nothing in the original that is protectable -- and what little there is does not appear to be carried over into Duck's or Riethmuller's design. And, of course, this argument rests on the still-unsubstantiated claim that Duck had access to her earlier versions and used that as the basis for his table.] I filed a lawsuit against Joshua Duck March 2014 and the matter was settled out of court with Joshua Duck agreeing to removing the infringing content and not to use it again (Settlement agreement is attached). However, I have discovered that Michael Riethmuller has recreated another unauthorized derivative work which is an exact recreation of Josh Duck's work, which is also an unauthorized derivative work which infringed on my copyrighted work. [It's not an "exact" recreation. It's significantly different and it's inspired by Duck's version, rather than being a ripoff of a ripoff of Mills' questionable "original."] 3. Explain what the affected user would need to do in order to remedy the infringement
I recently emailed Michael Riethmuller to express my concerns and asked him to please change the credit language he is attributing to Josh Duck on his sites page. I am willing to allow Michael Riethmueller to keep the derivative work IF he is willing to update the credit language to state me as the true and rightful owner of the work. [The only person who believes you're the "rightful owner" of common coding elements arrayed on a remix of Mendeleev's periodic table is YOU, Ms. Mills.] He has not responded, which makes me allege that Josh Duck is somehow behind Michael Riethmuller recreation of his work, to add injury to insult. Additionally, both parties are coincidentally from Australia, though Josh Duck now resides in Northern California and is employed at Facebook. If Michael is unwilling to make this change in credit of the work, then I want to request for it to be completely taken down. [The world according to Mills: Australia is a continent inhabited solely by Riethmuller and Duck, who have both conspired to screw Mills out of some poster sales. This bizarre theory helps explain why Mills can't be dissuaded of her notion that Duck somehow intercepted her earlier, unpublished chart. The world -- well, at least Australia -- has it in for Mills and will stop at nothing to steal her HTML 5 table.] I also want to challenge Michael Riethmuller's threat that he will simply send a counter to my take down request on the bases of fair-use. Though the periodic table is fair-use and the HTML5 elements categorized by the W3.org is fair-use, my unique effort in categorizing and placement of the HTML5 elements within my chart made it eligible for U. S. copyright. Josh Duck copied my work without permission and with the false assumption that it was not copyrighted and thus he did not apply any real originality to his version, using the exact same color choices and placement of the elements within his chart making them jarringly similar. It is for this reason that I am asking Michael Riethmuller to either give appropriate credit to me at the true author of his "inspired" work, or take it down. [Nice. A preemptive strike against fair use. The best offense is a good offense, I guess. As for the rest, anyone with eyes can see Duck's version does not use the "exact same color choices and placement of elements." And this has to be the first recorded use of the phrase "jarringly similar." Click through for the full-size version.]
The original takedown request is thoroughly ridiculous. As is Mills herself, who keeps finding conspiracies where none exist and doesn't seem to have even a basic understanding of fair use, idea vs. expression, derivative works or even that her chart she claims Duck copied exactly only very faintly resembles her version.
So, she told Riethmuller she'd drop all of this and let it go. That was the evening after the post went live. The next day, Riethmuller emailed me Mills' revived effort to have his table kicked off of Github. Dear Github Support,
I am emailing to follow-up on the status of my DMCA notice. As per my last communication with Michael Riethmueller, I requested that he please place an appropriate credit to me as the original author of the work instead of taking down the work all together.
There is no mistake as to my copyrighted work being a protected work that does not fall under fair-use. [This again. FAIR USE DOES NOT WORK THAT WAY. You can't exempt your copyrighted material from fair use. It either is or it isn't, but you can't somehow get out ahead of it just by declaring your work not open to fair use.] I added enough originality to the expression of this art work by placing the HTML5 elements in my own unique order different from the World Wide Web Consortium's categorization of the HTML elements. This is the same copyright protect that is granted to all other authors of HTML5 literary books: they all came up with their own unique listing of the HTML elements within their works. [So what? Just like all these authors used the same common elements to create protect-able creations, so did Mills. And Duck. And Riethmuller. It is completely possible for all of these to exist without infringing on each other and for every single one to be protected by copyright. Mills cannot seem to wrap her mind around this concept.] The work that Michael Riethmueller is using is a modified version of Josh Duck's unauthorized version of my original art work. Josh Duck was under the false assumption that my work was not copyrighted and therefore copied my exact color scheme and placement of the HTML elements making the works too similar. ["Too similar?" It isn't. It's only as "similar" as the elements behind it force it to be (Mendeleev's periodic table design; the semi-rigid hierarchy of coding elements).] I don't think it is unreasonable for me to request that Michael Riethmueller's work be credited appropriately to me to avoid additional unauthorized use of his work. Again, if Mr. Riethmueller is unwilling to update the author credit, I do want to request to have the work taken down. [Riethmuller won't credit her because he never saw Mills' version. He may have seen Duck's version and his more closely bears resemblance to Duck's than to Mills', but either way none of these charts bear enough resemblance to each other to make one of them infringing. Riethmuller owes Mills nothing in the way of "credit." She had no part of this. She only thinks she does because she registered her version back in 2010 and now feels other versions are somehow infringing on her creation.] Given Michael Riethmueller's refusal to credit the work to me as the rightful owner, I am also alleging that Josh Duck is somehow very much behind Michael's recreated work as a form of retaliation for my rightfully filing a lawsuit against him which was settled out of court at Josh Duck's explicit request. [More conspiracy theories. Nothing factual alleged here and veering very close to being defamatory. This argument is about as worthless as her decision to play the sexism card during my earlier Twitter conversation with her. (If you're planning on chatting with her, get screenshots. She likes to delete tweets.]
So, Mills has learned nothing other than how to give the appearance that she's learned something. She's continuing to push Riethmuller to give her credit she doesn't deserve (and which is not a part of copyright law anyway) and she has clearly shown she doesn't understand the first thing about fair use, derivative works or that the underlying elements of "her" HTML 5 periodic table can be remixed in a number of highly-similar ways without infringing on her "original."
From where I sit, there just aren't enough periodic tables of HTML 5 elements and that situation should be remedied, although I would ask any Australians to refrain from participating unless they already know everyone else who lives on their continent.
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In Deal To Get Loretta Lynch Confirmed As Attorney General, Senate Agrees To Undermine Free Speech On The Internet
Two versions of bills aimed at sex trafficking are being kicked around by legislators. The SAVE Act (Stop Advertising Victims of Exploitation) passed out of the House last year. The Senate version -- the much-less-acronymically-catchy JVTA (Justice for Victims of Trafficking Act) is looking to be no better than the House's version, thanks to a last-minute proposed amendment from Senator Mark Kirk, who's been dying to kill off Backpages.com's adult advertising for quite some time now. And Kirk was able to get this terrible amendment added as part of the "Senate deal" to finally confirm Loretta Lynch as our new Attorney General. Unfortunately, part of the deal to move the bill forward appears to include a version of the SAVE Act which will amend existing federal anti-trafficking law in vague ways that will be used to prosecute online content hosts for third-party content. This bill, Amendment 273 to the JVTA, closely parallels a version of the SAVE Act that passed the House in January. As can be clearly seen by the House bill's title, advertising is being targeted. Kirk's amendment adds "advertising" to the list of forbidden activities, which obviously will have repercussions for website owners should this pass with the amendment attached. It would effectively wipe out Section 230 for many websites, if any content on their sites is seen as "advertising sex trafficking."
Obviously, no one here is supporting "sex trafficking," but the focus should be on going after the actual people engaged in sex trafficking -- not allowing criminal charges to be placed against any website that didn't magically block someone putting up such ads. In an age of user generated content, such "advertising" content could potentially show up anywhere -- and any website operator who doesn't magically find and delete all of it faces criminal charges (that our incoming Attorney General can then use to go after them).
This would put website owners in the line of fire, should they fail to immediately delete advertising that falls under the purview of this law. ISPs, search engines and carriers are exempted from the SAVE Act, but site owners are not. Not only that, but if more of the SAVE Act gets folded into the JVTA, site owners will be given the burden of acquiring proof that every affected ad only pertains to adults over the age of 18. Failure to do so could result in a five-year prison sentence.
In a perfect world, illegal ads would be easy to spot. But it isn't a perfect world and those advertising illicit services are highly unlikely to hand over the information site owners need to have on hand to avoid being held responsible for third-party postings. It's a quick evisceration of Section 230 protections being performed by a very broad blade.
The bill's sponsors are more than happy to admit they're trying to attack Backpages and Craigslist. This is questionable enough, but they're apparently unconcerned if other site owners -- ones who don't specialize in advertising -- get caught in the crossfire. This vagueness and the resulting uncertainty it brings for hosts of third-party content will create a chilling effect on hosts’ willingness to allow users to upload content to their platforms. The specter of facing federal criminal trafficking charges over content created by someone else will make content hosts extremely wary and will encourage over-blocking of wholly lawful, constitutionally protected speech. Worse -- at least from the perspective of trying to eliminate trafficking ads -- the wording of the bill suggests the best way for site owners to win is not to play. One thing is clear: by creating a situation where a host is vulnerable to liability if it has knowledge of trafficking-related content on its servers, Amendment 273 will actually discourage proactive filtering and screening mechanisms that many platforms currently employ. If this appears to be the safest route for site owners to take, this law will result in more trafficking ads, rather than less.
Even further on this point, right now, sites like Craigslist and Backpages are great tools for law enforcement to find and track down actual sex traffickers. Putting the liability on them to stop the advertisements or face criminal charges doesn't stop the sex trafficking at all, it just makes it that much harder for law enforcement to find it. Does Senator Kirk really want to go down as the Senator who made it more difficult for law enforcement to find and arrest sex traffickers?
This language also suggests a certain amount of laziness on the part of those pushing the bills, as well as those charged with enforcing it. It's a whole lot easier to track down site owners and punish them than it is to find out who's behind the posting of illicit ads. By dumping the burden of proof -- as well as a certain amount of liability -- on site owners, law enforcement agencies will be encouraged to harvest the low-hanging fruit first. And while they do, those touting these laws will praise their efforts, despite the paucity of actual traffickers arrested or indicted.
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Former CIA director David Petraeus received his sentence yesterday for the sweetheart plea deal he struck with the Justice Department after he was discovered to have leaked highly classified information to his biographer and lover Paula Broadwell. As was widely anticipated, the celebrated general received no jail time and instead got only two-years probation plus a $100,000 fine. (As journalist Marcy Wheeler has pointed out, that's less than Petraeus receives for giving one speech.)
The gross hypocrisy in this case knows no bounds. At the same time as Petraeus got off virtually scot-free, the Justice Department has been bringing the hammer down upon other leakers who talk to journalists—sometimes for disclosing information much less sensitive than Petraeus did. It's worth remembering Petraeus' leak was not your run-of-the-mill classified information; it represented some of the most compartmentalized secrets in government. Here's how the original indictment described the eight black books Petraeus handed over to Paula Broadwell:
The books "collectively contained classified information regarding the identifies of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings… and discussions with the president of the United States."
While Petraeus' supporters claim none of this information was ever released to the public after he leaked it to Broadwell, that does not matter in leak cases. You can just ask former CIA officer John Kiriakou, who disclosed the names of two supposedly undercover CIA officers to a researcher. The names were never published, but Kiriakou still got thirty months in jail.
Let's also not forget that David Petraeus lied to FBI officials when they questioned him about his leak. For a reason the Justice Department never explained, he wasn't charged for lying at all. As the New York Times pointed out today, "Lying to federal agents is a felony that carries a sentence of up to five years in prison. The Justice Department has used that charge against terrorists, corrupt politicians and low-level drug dealers." Just apparently not former CIA directors.
Petraeus' deal comes just days after federal prosecutors recommended another sentence to a convicted leaker who worked for the same Central Intelligence Agency—Jeffrey Sterling. In Sterling's case the prosecutors are calling for twenty-four years of prison time. Sterling was convicted of leaking information to Pulitzer Prize-winning reporter James Risen about a botched CIA mission that occurred almost two decades ago. The lawyer for former State Department official Stephen Kim, currently in jail for leaking innocuous information to Fox News' James Rosen, has also objected to the "profound double standard" in Petraeus' case versus Kim's.
To be fair, the rank-and-file at the FBI and Justice Department seem to recognize how egregious the hypocrisy surrounding Petraeus' case is: while Attorney General Eric Holder himself signed off on the lenient deal, he reportedly did so over strenuous objections from FBI and DOJ officials.
Ultimately, no one should be charged under the Espionage Act for leaking information to journalists, but if the government is going to bring charges against low-level officials, it has a responsibility to do so against high-ranking generals as well. And actually, the Justice Department's reasoning behind not seeking a trial for Petraeus is quite telling for just how unjust the Espionage Act is. As the New York Times reported:
[W]ithout a deal, the Justice Department would have faced the prospect of going to trial against a decorated war hero over a disclosure of secrets that President Obama himself said did not harm national security. Plus, a trial would require the government to reveal some of the classified information.
The Justice Department's fear about an embarrassing trial is one the most egregious aspects of Espionage Act prosecutions against leakers and whistleblowers: defendants can be found guilty even if there was no damage to national security at all. It's not one of the elements of the crime, so prosecutors don't have to prove it. By forgoing a trial because they are afraid of graymail, the government is also basically saying to future leakers "if you're going to leak classified information, make sure it's something really classified."
It's possible that Petraeus' deal was so egregious that this could be good news for other leakers. The Daily Beast's Kevin Mauer argued as much earlier today:
Petraeus's relatively light punishment will likely have lasting ramifications on future leak cases, national security lawyers said. They argue the government is cutting its own throat by offering him a more lenient sentence in the wake of harsher penalties to other leakers and creating a double standard that can be exploited by defense attorneys in future cases.
However, given the government's unrelenting pursuit of Sterling, there is little chance of this having a lasting effect. Unfortunately, the Petraeus case will go down in history as one of the most blatant examples of the inherent unfairness of leak trials and the two-tiered system of justice that whistleblowers often face.
Reposted from the Freedom of the Press Foundation
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The following story from Japan, reported by Techcrunch, might seem to be an everyday internet tale of privacy and freedom of speech interacting badly: The Chiba District Court today issued a preliminary injunction forcing the U.S. internet company to remove two anonymous reviews for an undisclosed medical clinic in the country. While they document negative customer experiences at the clinic, neither review violates the policies that Google has in place for user generated content within the Maps service. Nothing special there, you might think, but there's a sting in the tail: The court ruled that Google not only removes the content in Japan, but across the entire globe too. That's troubling, because it's yet another case of a local court asserting its right to affect what happens across the entire internet -- the best-known example being the EU's claim that its privacy regulations have to apply globally if they are to be effective. It's worrying to see a similar ruling from Japan, albeit only in a preliminary injunction, and one that Google is appealing against, because it risks normalizing that view, with serious consequences for the online world. Far from being a domain subject to no rules, as politicians love to claim, the internet would begin to turn into the one place that has to obey every country's laws.
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