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Bewaarplicht: wrong, on so many levels

van Bits of Freedom - 3 uur 39 min geleden

Op grond van de Europese regels op grond waarvan jouw communicatiegedrag langdurig bewaard moeten worden (je weet wel, die richtlijn die vorige week ongeldig is verklaard), moet Nederland de Europese Commissie elk jaar statistieken aanleveren over het gebruik van de gegevens. Maar Nederland negeert die verplichting. En als ze al gedwongen wordt die gegevens aan te leveren, dan kan ze het niet.

In die regels staat dat alle lidstaten jaarlijks bepaalde cijfers over de bewaarde gegevens aan de Europese Commissie moeten sturen. Eind 2010 vroeg ik het ministerie van Veiligheid en Justitie eens om de cijfers die zij aan de Europese Commissie had gestuurd openbaar te maken.

Het antwoord was ontluisterend. Het ministerie had onder meer 24 uitspraken van rechters waarin het woord “verkeersgegevens” voorkwam meegestuurd. Ze vergat er bij te vertellen dat een groot aantal van die zaken speelden toen de bewaarplicht nog niet van kracht was, in minstens een zaak de rechter het gebruik van de verkeersgegevens weigerde en een meerdere uitspraken over één en dezelfde zaak gaan. Geen onderbouwing van de effectiviteit van de bewaarplicht dus.

Vorig jaar vroeg Bits of Freedom het ministerie opnieuw. Nu we een paar jaar verder zijn zou het toch wel mogelijk moeten zijn om die statistieken aan te leveren zou je denken. Het ministerie maakte een brief met een geïrriteerd verzoek om cijfers van de Europese Commissie openbaar:

However, some stakeholders and in particular the telecommunications industry and data protection authorities continue to question the need for obligatory retention of such data.

Het antwoord van onze regering?

Voor wat betreft de eerste vraag verwijs ik graag naar de informatie die Nederland op 2 september 2010 heeft aangeleverd [...]

Uw tweede vraag betreft het opvragen van historische gegevens ten behoeve van de opsporing en vervolging van strafbare feiten. […] Op dit moment kan ik om de volgende redenen niet aan dat verzoek voldoen. […] Er wordt echter geen management informatie bijgehouden van de verzoeken aan de aanbieders en de antwoorden die daarop volgen […]. Per dag worden er bovendien honderden verzoeken gedaan, wat het – mede gezien de beperkte capaciteit – praktisch onuitvoerbaar maakt om uw vragen op een andere wijze binnen de gestelde termijn te beantwoorden. […]

Wrong, on so many levels. Het was toch al lang duidelijk dat de eerder verstrekte informatie absoluut waardeloos was? Waarom dan nog een keer naar verwijzen? Waarom wordt er eigenlijk geen “managementinformatie” bijgehouden als we die informatie jaarlijks aan moeten leveren? En waarom moet de Europese Commissie er om vragen als we er wettelijk toe verplicht zijn? En waarom is er wél capaciteit om elke dag weer honderden keren in het communicatiegedrag van burgers te neuzen, maar is er niet de capaciteit om bij te houden hoe zinvol dat eigenlijk is? Of, desnoods, waarom niet een maandje lang bijhouden, zoals de Europese Commissie voorstelt?

Het onderzoekscentrum van het ministerie kon de effectiviteit van de bewaarplicht ook niet aantonen. Sowieso leverde de minister die (wettelijk verplichte!) evaluatie meer dan anderhalf jaar te laat op en gebeurde de publicatie ervan ook alleen per ongeluk. Nu blijkt het ministerie ook al jarenlang de weinige verplichtingen uit de Europese regels te negeren. Dus, nog één keer: afschaffen die Wet bewaarplicht telecommunicatiegegevens.

Categorieën: Technieuws

[Opinion] Learning from the past: EU aid in the Eastern Partnership

van EU Observer - 4 uur 28 min geleden
Ukraine, in particular, badly needs effective external aid. But EU aid for reforms in Eastern Partnership countries has so far failed to bring tangible results.


Categorieën: Europees nieuws

Google May Consider Giving A Boost To Encrypted Sites

van TechDirt - 7 uur 4 min geleden
Interesting report over at the WSJ noting that some at Google are considering if they should boost the search results for sites that are encrypted as an attempt to encourage more widespread use of encryption. I would be a bit surprised if the company did this, as Google always claims that it's focus is entirely on the quality of the content of sites, and delivering people to what they're looking for. While the search algorithms do take into account things like page load time, it seems like encryption status might not be seen as a real indicator of quality. Still, I hope that Google does seriously consider such a move, because it could (very quickly) drive many more sites to encrypt -- and, it would probably (finally) drive more services that refuse to make encryption work to figure it out. For example, almost no media sites will do full encryption because it would effectively break most ad networks. So, for most media properties, going full encryption automatically means taking a huge hit in ad revenue. The various ad networks could do things to fix this, but very few of them seem interested (actually, very few of them seem to even understand the issue). If Google were to make this change, then the pressure coming from media properties (many of whom live and die based on their Google rankings) to ad networks to figure this out, would hopefully be enough to create a real shift.

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DailyDirt: Aircraft That Stay In The Sky For Days (Or Longer)

van TechDirt - 10 uur 10 min geleden
Most folks don't really like flying for more than a few hours at a time, so it's not really a problem for a lot of people that most planes aren't even capable of flights lasting longer than day. (Zeppelins can fly for weeks at a time, but those ships haven't been flying regularly for a while.) Autonomous drones have been making some really long flights recently, and there may be more uses for aircraft that can stay up in the air for long periods of time. Here are just a few examples. If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

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Video Games Do Cause Aggression... If They Suck Out Loud

van TechDirt - 11 uur 19 min geleden

I think I've come to the realization that the debate over whether violent video games cause real-life violence is probably never going to end. Centuries from now, some new race of alien beings will be picking over humanity's remains like some kind of alien-Indiana Jones and think to themselves, "What the hell is this bullshit?" They'll look over fossilized papers about crazy video game hardliners who were running guns on the side, or studies that stated that violent games will breed violent children despite the relative lack of violent children present. Oh, the laughs they will have at our expense.

But, it turns out, there is a way you can cause aggression in children through games. You just have to make really crappy games. Researchers at the Oxford Internet Institute and the University of Rochester took Half-Life 2, one of the most satisfyingly intuitive games ever made (in my opinion), and modified it, turning it into a game of tag rather than a first person shooter. Some users were given a tutorial, and others were simply thrown into the game. Those that did not get the tutorial were much more aggressive after playing. Andrew Przybylski from the Oxford Internet Institute:

"This need to master the game was far more significant than whether the game contained violent material. Players of games without any violent content were still feeling pretty aggressive if they hadn't been able to master the controls or progress through the levels at the end of the session." So, all you have to do to make folks aggressive with a game is make it very difficult, counter-intuitive, and annoying. You know, like Battle Toads, Myst, or any game produced by Derek Smart. This explains why I used to go over to a friend's house, find him playing Bulls Vs. Blazers on his Sega, and would know for sure that the gaming session would eventually end with him ripping the cartridge out of the machine and chucking it at a wall (true story).

The real question is: if we were going to tax violent games because we thought that's what made some kids violent, are we similarly going to tax shitty games for the same reason? It would make just as much sense, which is to say none, but it might be a good buttress against the ruination of the next ending to a Mass Effect game, amirite?



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Google Apparently Chose Not To Tell The NSA About Heartbleed

van TechDirt - di, 04/15/2014 - 23:48
Well, this is interesting. I naturally assumed that when the various researchers first discovered Heartbleed, they told the government about it. While I know that some people think this is crazy, it is fairly standard practice, especially for a bug as big and as problematic as Heartbleed. However, the National Journal has an article suggesting that Google deliberately chose not to tell the government about Heartbleed. No official reason is given, but assuming this is true, it wouldn't be difficult to understand why. Google employees (especially on the security side) still seem absolutely furious about the NSA hacking into Google's data centers, and various other privacy violations. When a National Journal reporter contacted Google about the issue, note the response: Asked whether Google discussed Heartbleed with the government, a company spokeswoman said only that the "security of our users' information is a top priority" and that Google users do not need to change their passwords. Here's the thing: if the NSA hadn't become so focused on hacking everyone, it wouldn't be in this position. The NSA's dual offense and defense role has poisoned the waters, such that no company can or should trust the government to do the responsible thing and help secure vulnerable systems any more. And for that, the government only has itself to blame.

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USPTO Keeps Granting Patents At Record Rates: 6,000 Utility Patents Granted In A Single Week

van TechDirt - di, 04/15/2014 - 22:43
With the latest attempt at patent reform stalling out a bit, it's worth looking at how the last attempt to reform patents to stop abuse, 2011's America Invents Act, has helped solve the problem of bogus patents. Oh, actually, it hasn't. As Patently-O notes, patenting has continued to shoot up at an insane pace, setting new records along the way. Does anyone actually believe that the US has really become that much more inventive in just the past few years, or can we reasonably assume that the USPTO is passing a ton of crappy patents, ensuring that patent trolling activities over bad patents continue for decades to come? The latest dubious "record" is the USPTO granting over 6,000 utility patents in a single week. Because nothing says "innovation" like throwing over a quarter of a million monopolies into innovative markets every year. That's not helping innovation. It's throwing piles upon piles of sand into the gears of innovation.

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The FBI's Facial Recognition Database Combines Lo-Res Photos With Zero Civil Liberties Considerations

van TechDirt - di, 04/15/2014 - 21:40

Another FOIA lawsuit brought against the government by the EFF has resulted in the release of previously withheld documents. The papers cut loose this time detail the FBI's facial recognition database and other parts of its "Next Generation Identification" (NGI) program, one that aims to compile a collection of biometric data.

EPIC's FOIA lawsuit over similar information revealed last year that the FBI's facial recognition software (as of 2010) had an acceptable margin of error of 20%. With a 1-in-5 chance of "recognizing" the wrong person, the accuracy of the database had nowhere to go but up. But it appears the FBI prioritizes quantity over quality, as the first number to hit you from the "released" documents is a big one. The records we received show that the face recognition component of NGI may include as many as 52 million face images by 2015. By 2012, NGI already contained 13.6 million images representing between 7 and 8 million individuals, and by the middle of 2013, the size of the database increased to 16 million images. The new records reveal that the database will be capable of processing 55,000 direct photo enrollments daily and of conducting tens of thousands of searches every day. The millions of images come from a handful of sources. Only 46 million of those images, however, will be from criminal databases. The other 6 million will come from other sources, not all of those necessarily related to criminal or terrorist activity. [T]he FBI does not define either the “Special Population Cognizant” database or the "new repositories" category [which account for nearly a million images]...

A 2007 FBI document available on the web describes SPC as “a service provided to Other Federal Organizations (OFOs), or other agencies with special needs by agreement with the FBI” and notes that “[t]hese SPC Files can be specific to a particular case or subject set (e.g., gang or terrorist related), or can be generic agency files consisting of employee records.” These employee records may be tossed into the database along with the criminal records if the FBI chooses to assign these a Universal Control Number (UCN). And these records may become more common. As the EFF points out, if you submit your fingerprints as part of a pre-employment background check, these are added to the FBI's database. If employers decide they also want a pre-employment mug shot, that will head the FBI's way as well.

The database will be populated with non-criminal photos and overseen by an agency that hasn't provided an updated Privacy Impact Assessment for its facial recognition program since 2008. The low resolution (often at 0.75 megapixels or less) makes this blending of hit/non-hit photos even more problematic, as it means the FBI's actual accuracy rate still hovers between 80-85%. But the agency has weasel-worded its way out of having to defend such a lousy accuracy rating. [T]he FBI has disclaimed responsibility for accuracy, stating that “[t]he candidate list is an investigative lead not an identification."

Because the system is designed to provide a ranked list of candidates, the FBI states NGI never actually makes a “positive identification,” and “therefore, there is no false positive rate.” The FBI generates a "top 50 candidates" report from searches, which it claims is only an "investigative tool," not a starting point for any investigation. That's some remarkably devious dissembling. The agency won't ever be wrong because it's not even trying to be right!

So, how exactly is this supposed to aid in investigations, if the best results are a grab bag of low-res photos dredged from a variety of sources, some of them non-criminal? The FBI doesn't say. All it says is that the "true candidate" will show up on the "top 50 list" 85% of the time -- and then only if the "true candidate" is already present in the database. The EFF asks the question the FBI hasn't asked itself, or at least hasn't shown any interest in answering honestly. It is unclear what happens when the “true candidate” does not exist in the gallery—does NGI still return possible matches? Could those people then be subject to criminal investigation for no other reason than that a computer thought their face was mathematically similar to a suspect’s? The FBI's "answer" shifts all the accountability to other law enforcement agencies. [T]he Bureau notes that because “this is an investigative search and caveats will be prevalent on the return detailing that the [non-FBI] agency is responsible for determining the identity of the subject, there should be NO legal issues.” The FBI, which hasn't updated its privacy protections in a half-decade, which knows that a majority of the photos in its database have a resolution only slightly above "useless" and which sees no problem with throwing photos of criminals and non-criminals into the same database, still has yet to see any significant pushback on its NGI expansion from anyone tasked with overseeing the agency. The fact that these documents were forced free via a FOIA lawsuit shows the FBI has no interest in sharing this info with the public. As for our representatives -- they either don't know or don't care, neither of which should make the represented happy.

This program has some very serious issues, and it's only going to get worse unless someone outside the FBI intervenes. It's obvious from its caveat emptor-esque "policy" ("not our fault if you arrest the wrong pixelated suspect") governing law enforcement's use of the intermingled good guy/bad guy database that it has no interest in policing itself.



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Intuit Does Subterfuge To Combat Free-Filing Tax Returns

van TechDirt - di, 04/15/2014 - 20:27
It's tax time again, when we all turn just a bit more Republican for a month or so, curse out the inept government that asks us to pay for all that they do, and emote a general grumbling attitude throughout the days. Fun, right? Part of what makes this time of year such a royal pain in the ass is that many of us pay to pay our taxes, using any number of accounting and tax prep services just to keep Uncle Sam off our backs. Last year, we wrote about how Intuit, the company behind TurboTax, was actively waging a campaign against the government free-filing program, in which the IRS offers to fill out much of the paperwork and allow citizens to e-file their taxes with minimal input. The program is entirely voluntary, but that didn't stop Intuit from raging against the machine, suggesting that the IRS would overcharge the poor and that the program would, like, really hurt their business (honesty!).

It turns out that trying to stifle people's ability to simplify their own lives and file their taxes for free wasn't all that great for the old public relations department, however, so Intuit has instead decided to go the sneaky route and get a bunch of unwitting mouthpieces to do it for them. Over the last year, a rabbi, a state NAACP official, a small town mayor and other community leaders wrote op-eds and letters to Congress with remarkably similar language on a remarkably obscure topic. Each railed against a long-standing proposal that would give taxpayers the option to use pre-filled tax returns. They warned that the program would be a conflict of interest for the IRS and would especially hurt low-income people, who wouldn't have the resources to fight inaccurate returns. Rabbi Elliot Dorff wrote in a Jewish Journal op-ed that he "shudder[s] at the impact this program will have on the most vulnerable people in American society." So you're wondering where the problem in all of this is? Well, it turns out these folks didn't just independently decide to write the same op-eds. It would appear that they were approached by groups affiliated with Intuit and asked to write them. The folks targeted weren't informed of the connection, either. Rabbi Dorff says he was approached by a former student, Emily Pflaster, who sent him details and asked him to write an op-ed alerting the Jewish community to the threat. What Pflaster did not tell him is that she works for a PR and lobbying firm with connections to Intuit, the maker of best-selling tax software TurboTax.

"I wish she would have told me that," Dorff told ProPublica. You think? What once appeared to be some kind of grassroots campaign by the concerned public towards what might be a real issue suddenly has devolved into a public relations blitz undertaken through dishonest means by corporate interests. In other words, it's the same message we got last year, and from the same source, but that source is hiding behind unwitting accomplices. The underhanded deeds weren't over, however. The website of Pflaster's firm, JCI Worldwide, had listed Intuit among its clients, but removed it after ProPublica contacted them. Pflaster said Intuit had been listed by mistake.... That's quite an error to make and quite a coincidental time for that error to be "corrected." And, while Intuit's only comment on the matter was some general mumblings about how they use multiple avenues to improve "tax empowerment" of the public, it's a special kind of shady that refers to demonizing an entirely optional and free government service as empowerment of the public. Meanwhile, of course, Intuit has lobbied heavily on bills related to free-filing.

In the end, there may indeed be flaws in the government's free-filing program and process. Actually, it'd be a bit of a shock if there weren't flaws. But it's voluntary, and the solution to those flaws is most certainly not subterfuge and dishonest attempts to coerce a public through their religious leaders.

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Judge Richard Posner's Ruling In Wacky 'Banana Lady' Case Highlights Just How Wrong Judge Kozinski Was About Copyright

van TechDirt - di, 04/15/2014 - 19:35
If you're talking about the short list of the most well-known appellate judges in the federal court system today, Judges Alex Kozinski and Richard Posner are likely on that list, potentially near the top. We've discussed both plenty of times in the past, sometimes agreeing strongly with rulings from both -- and sometimes finding their rulings maddeningly troublesome. However, lately we've been especially troubled by Kozinski's ruling in the Cindy Lee Garcia case, in which he appeared to make up his own rules about what copyright law says, and how an actress in someone else's film can magically claim a copyright over her performance.

A new ruling by Posner in a case that is... well... positively bananas, provides a nice quick lesson in just how wrong Kozinski was. The case of Catherine Conrad, the "Banana Lady" involves Conrad suing a bunch of credit unions over a variety of wacky theories after she performed at some event they held. All of the basic theories got tossed out by a state court, but since copyright is a federal issue, it went through the federal courts, ending up in front of Posner and two other judges in the 7th Circuit. The issue is that Conrad claims a copyright on a bunch of things she likely has no copyright claim over, but in part, told the credit unions that people in attendance could take photographs and videos, but only for "personal use." Conrad, additionally, insists that posting such images and videos to Facebook is not personal use, and therefore her copyrights have been violated. There are a whole bunch of problems with this argument, as you might imagine, but let's focus on one part of Posner's decision that Kozinski might want to take note of: The performance itself was not copyrighted or even copyrightable, not being “fixed in any tangible medium of expression.” 17 U.S.C. § 102(a); see, e.g., Kelley v. Chicago Park District, 635 F.3d 290, 303–04 (7th Cir. 2011); Baltimore Orioles, Inc. v. Major League Baseball Players Assʹn, 805 F.2d 663, 675 (7th Cir. 1986); United States v. Moghadam, 175 F.3d 1269, 1280–81 (11th Cir. 1999); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 2.03[B], p. 2‐32 (Aug. 2004). To comply with the requirement of fixity she would have had either to have recorded the performance or to have created a written “dance notation” of it. See Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004); Horgan v. Macmillan, Inc., 789 F.2d 157, 160 and n. 3 Wikipedia, (2d Cir. 1986); “Dance Notation,” http://en.wikipedia.org/wiki/Dance_notation. She did neither. What's somewhat incredible is that the David Nimmer that Posner relies on above to highlight that a performance itself is not copyrightable is one of the few "copyright experts" to claim that Kozinski's bizarre interpretation makes sense. Of course, while Nimmer is still one of the most respected copyright scholars around, his analysis of copyright law has been increasingly odd over the past few years.

Meanwhile, Posner notes all the other problems with Conrad's wacky claim, including the idea that she could have a valid copyright on a banana costume: Conrad has copyrights, which we'll assume are valid, on photographs and sculptures of her in her banana costume. She has also registered a copyright on the costume itself, but there is doubt (not necessary for us to resolve) about the validity of that copyright because banana costumes quite similar to hers are, we are surprised to discover, a common consumer product. See, e.g., “Adult Banana Costumes,” Google, www.google.com/#q=adult+banana+costumes&tbm=shop I just love the thought of Richard Posner doing that Google search. There's also a somewhat hilarious explanation of what a "singing telegram" is. However, he accepts the possibility that she might have a valid copyright and explores whether or not photos and videos taken by audience members could possibly infringe. He finds that suggestion pretty much preposterous (again, Kozinski should read this): Photos or videos made by members of the audience could conceivably have been either reproductions of, or works derivative from—that is, creative variants of, Gracen v. No. 13‐2899 5 Bradford Exchange, 698 F.2d 300, 304–05 (7th Cir. 1983)—copyrighted elements of Conrad’s performance, such as the costume (if it is copyrightable). And she has the exclusive right to create or license reproductions of and derivative works from works that she has validly copyrighted. 17 U.S.C. §§ 106(1), (2). It’s unlikely that the photos and videos were derivative works; to be such a work, a photograph, or any other copy, must have an element of originality, Schrock v. Learning Curve Intʹl, Inc., 586 F.3d 513, 519 (7th Cir. 2009); Ets‐Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076–77 (9th Cir. 2000)—some modicum of creativity added to the copyright‐ed work. Cf. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991); Bleistein v. Donaldson Litho‐graphing Co., 188 U.S. 239, 249–50 (1903) (Holmes, J.); Jewelers’ Circular Publishing Co. v. Keystone Publishing Co., 274 F. 932, 934 (S.D.N.Y. 1921) (L. Hand, J.). “To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work.” L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 492 (2d Cir. 1976) (en banc). But whether the photos or videos were mere depictions, or sufficiently departed from the originals to be derivative works, they would violate Conrad’s copyrights if the copyrights covered material that members of the audience duplicated in their photos and videos.

She had, it is true, authorized the arrangers of the trade association event to permit the members of the audience to take photos, or make videos, for their personal use. But that was a limited license. We don’t know how limited; but maybe it didn’t authorize posting photos or videos on the internet, or at least on some of the internet sites on which they were posted; and in that event such posting may have violated the provision of the Copyright Act that forbids unauthorized video or tape recording of a musical performance, 17 U.S.C. § 1101(a), or the provision that forbids the unauthorized public display of copyrighted musical or choreographic works. § 106(5). The arrangers might therefore be charged with having induced violation of those provisions. Cf. Metro‐Goldwyn‐Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005). But Conrad does not invoke either provision, and probably couldn’t because one of the arrangers advised the audience of the prohibition at the end of the performance—and Conrad doesn’t contend that any photos or videos of it were posted on the internet before the performance ended.

So her suit has no merit.
Separately, Posner notes that it seems clear that Conrad seems to spend an inordinate amount of time filing frivolous lawsuits, including one in which she even sued someone for not posting a video of her performance -- somewhat the opposite of the present case. But we cannot end this opinion without remarking her abuse of the legal process by incessant filing of frivolous lawsuits. This is at least the eighth case she's filed in federal court since 2009, and she has filed at least nine cases in state court just since 2011.... She appears not to have won any judgments, but she did obtain settlements in the first three federal suits that she filed.

She once sued event organizers who mailed persons attending the event a postcard that had a picture of her in her banana costume. On another occasion she sued persons who videotaped her performance but declined to post the video on their website after she demanded a $40,000 license fee; her theory was that the recording infringed her copyright even though she had consented to it and that the individual defendants’ decision not to post the video (and thus avoid paying the license fee) constituted tortious interference with her business. The defendants obtained summary judgment in that suit after enduring 15 months of litigation.

She has filed suits in state and federal court against her former lawyers, and once sued her web hosting company for taking down her web site after she failed to pay the bill. The web host had paid $4000 to compensate her for “lost business” while the web site was down—even though it was down because of her failure to pay. She pocketed the $4000 but sued the web host—and in both state and federal court—anyway.

Her previous state‐court complaint against persons who are defendants in the present case accused one of them of being “armed and dangerous,” compared him to the Unabomber, and suggested that “someone from Homeland Security or Fort Know” (she must have meant Fort Knox) should take his “threats seriously.” She didn’t specify what those threats were, or whether she meant that he had made threats or that he posed a threat. She demanded that another defendant both admit having been “physically present at the Kennedy Compound located in Boston, MA” (presumably she meant Hyannis Port, not Boston) on the day before or the day of the trade association event involved in this case and produce all her travel documents for those days.

The defendants in one of Conrad’s federal suits were awarded more than $55,000 in costs and fees, pursuant to 17 U.S.C. § 505, which authorizes the award of costs, including a reasonable attorney’s fee, to the prevailing party in a copyright suit. She has been sanctioned at least $23,000 in her state court suits on the authority of Wis. Stat. §§ 802.05(3), 895.044, and possibly $73,000 more in one of the suits, though we can't be sure just why her company was ordered to pay that amount to the defendants in that suit.
Posner closes by questioning why the federal district court has not yet barred her from filing further suits until she has paid her previous litigation debts.

To be clear, this case is nuttier than the Garcia case in many ways, but the underlying principle concerning copyright is basically the same: whether or not a "performer" has any copyright claim. Posner dismisses such a preposterous idea quickly, whereas Kozinski upended decades of otherwise settled law.

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The Most Bizarre Response To The Pulitzers Yet, From The Guy Who Authorized CIA Torture

van TechDirt - di, 04/15/2014 - 18:33
So, the Guardian and the Washington Post won the Pulitzer for "public service" for their coverage of the NSA's surveillance activities. We mentioned how this should really end the debate over whether or not Ed Snowden was a whistleblower or not, but knew that would never happen. We'd already covered Rep. Peter King's incensed response, but an even more amusing response has to be the one from John Yoo. You may recall Yoo as the guy in the George W. Bush administration who basically shredded the Constitution in "authorizing" the CIA's torture program. He's weighed in a few times about the NSA stuff, arguing that the NSA shouldn't have to obey the Constitution because it takes too long and insists that the courts have no role in determining if something violates the 4th Amendment.

For reasons that are beyond comprehension, the political color commentary sportscasters at Politico decided to ask Yoo if the Pulitzer vindicated Snowden, and he (of course) answered with an emphatic no, though in a way that suggests he still has no clue what this story is about: John Yoo, a former deputy assistant attorney general and author of the 2002 memos advising the CIA’s use of enhanced interrogation techniques, said the Pulitzer committee’s decision did not vindicate Snowden.

“I’m not surprised the Pulitzer committee gave The Washington Post a prize for pursuing a sensationalist story, even when the story is a disaster for its own country,” he said. “I don’t think we need automatically read the prize as a vindication for Snowden’s crimes. Awarding a prize to a newspaper that covered a hurricane does not somehow vindicate the hurricane, [and] awarding a Pulitzer for a photo of a murder does not somehow vindicate the crime.”
Except, of course, the award was not for their coverage of Snowden's actions (mislabled "crimes") by Yoo, but rather the NSA's actions. So if we replace "Snowden's crimes" in the quote above with "the NSA's crimes" the quote actually makes some sense. The reporting certainly was no vindication of the NSA -- quite the opposite. The award itself was always for the reporting on the NSA, and the reason it vindicates Snowden (and which Yoo seems unable to comprehend) is because without Snowden, there would be no reporting on the NSA's unconstitutional and illegal behavior. There would be no "national debate" on the surveillance state, and there would be no ongoing effort in all three branches of government to change how the intelligence community spies on people.

The award wasn't for reporting on Snowden. It was on the NSA. And it's that reporting that vindicates Snowden. It's simply crazy that folks like Yoo are so focused on hating Snowden that they still don't seem to realize that.

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Dianne Feinstein Asks DOJ To Investigate Leak Of Torture Report Summary To McClatchy News Service

van TechDirt - di, 04/15/2014 - 17:34

Sen. Feinstein seemed incredibly outraged that her office was spied on by the CIA in its efforts to keep a torture report under wraps. This was noted with some attendant irony, given Feinstein's boisterous support of the NSA's surveillance efforts.

Now, she's stepped into irony again, opening an investigation of McClatchy News for leaking a condensed, bullet-points-only summation of the findings hidden within the still-unreleased 6,600-page "torture report." The Senate Intelligence Committee has opened an investigation into how McClatchy obtained the classified conclusions of a report into the CIA’s use of waterboarding and other harsh interrogation tactics, the panel’s chairwoman said Friday.

Sen. Dianne Feinstein, D-Calif., said she was also referring the case to the Justice Department for investigation.

“If someone distributed any part of this classified report, they broke the law and should be prosecuted,” Feinstein said in a prepared statement. “The committee is investigating this unauthorized disclosure and I intend to refer the matter to the Department of Justice.” Unauthorized disclosure, maybe. But it's looking more and more like the only way Americans are ever going to see the inside of the infamous report is via unauthorized channels, what with the CIA asking for redaction privileges. This is the same Senator who fought the CIA over control of this report, only now she wants to control how the information is fed to the public.

The investigation of the CIA wasn't performed just because Washington had money to waste. Supposedly this was done in the public interest, even if almost everyone involved has done as much as they can to keep the information out of the public's hands. It's the kind of government no one wants: one that internalizes its investigative efforts and withholds the findings. The public is frequently treated like an unwanted side effect of governing. "Shut up," Feinstein explained, "or we'll make you regret ever speaking up."

Disappointing, yes. But worse, it's predictable. McClatchy isn't happy. “We are disappointed that Sen. Feinstein plans to seek a Justice Department investigation of our journalism,” said James Asher, McClatchy’s Washington bureau chief. “We believe that Americans need to know what the CIA might have done to detainees and who is responsible for any questionable practices, which is why we have vigorously covered this story.” Asher is right about the public knowing, which is ostensibly the endpoint of investigations like these. But now that it's all been compiled, representatives are (somewhat inadvertently) joining forces with the same agency they decried and throwing as much dirt as they can over any exposure. There's a slim chance that much of the 480-page "executive summary" will survive the rounds of redactions headed its way. For McClatchy to release a 2-page summary is a drop in bucket compared to the voluminous whole.

The DOJ will now (possibly) start searching for yet another whistleblower, one who felt the refusal to discuss the contents beyond vague generalities was an intellectually dishonest move by those heading the investigation. But it's even more wrongheaded for Feinstein to request an investigation into this leaked document, only a few months removed from the CIA asking the DOJ to investigate Feinstein's staffers for their "unauthorized removal" of documents. It's apparently OK to take "unauthorized" documents if you're a Senator, but not so much if you're a journalist.



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Categorieën: Technieuws

Why We Filed An Amicus Brief In Garcia v. Google: Blaming 3rd Parties Has Serious Impact On Free Speech

van TechDirt - di, 04/15/2014 - 16:16
Monday was the deadline for amici briefs over whether or not the 9th Circuit should rehear, en banc, the Garcia v. Google debacle, in which Alex Kozinski made a bunch of highly questionable decisions in ruling that actress Cindy Lee Garcia deserves a copyright in her 5-second performance shown in the controversial 13-minute "trailer" known as Innocence of Muslims. The 9th Circuit made it clear that it would welcome briefs from anyone who wanted to file them, and a bunch of organizations and companies have been lining up to do so. You can see the full list of briefs here, though at the time I write this, it's still being updated. If I get the chance I'll try to review some of the other briefs soon. However, I wanted to write about one such brief first: ours.

After some consideration, we teamed up with the Organization for Transformative Works to file our own brief concerning "intermediary liability." While the 9th Circuit noted it would accept briefs from all interested parties, it also said those briefs had to be shorter than 2,500 words, which is not a lot of space to make complex legal arguments. We fully expected many others to focus in on all of the (many, many) troubling copyright aspects in Kozinski's ruling, but wanted to raise a separate (and, in some ways, larger) issue that was almost entirely ignored by the ruling: that third parties should not be blamed for the actions of their users -- and that Judge Kozinski's broad injunction did just that.

Lawyer Cathy Gellis wrote up an amicus brief on our behalf, highlighting Congress's clear intent in both Sections 230 of the CDA and 512 of the DMCA in providing safe harbors from liability for third parties, in order to encourage them to support free and open dialogue and discourse online, without fear of legal repercussions. As our brief argues, while many have ignored Section 230 (which excludes intellectual property), it should be quite clear that Garcia's case was really nothing more than an attempt to misuse copyright law in order to get around Section 230 and to hold a third party liable. Furthermore, as we've noted in the past, Judge Kozinski's injunction appears to go well beyond what the law says is appropriate in responding to copyright claims.

There is a reason why Congress was so intent on providing safe harbors, recognizing the incentives for broad censorship when you blame service providers for the actions of their users. Judge Kozinski appears to have ignored nearly all of Congress' intent in his ruling, and we're hopeful that (among the many other reasons why his ruling should be reviewed), the rest of the 9th Circuit will recognize that the original ruling has serious First Amendment implications, beyond just the basic copyright questions.

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Categorieën: Technieuws

[Ticker] EU commission presidency race is 'cosmetic' democracy

van EU Observer - di, 04/15/2014 - 14:24
Dutch Socialist MP Harry van Bommel has said having an EU commission presidency race does not make the EU more democratic as the change is only “cosmetic". He told EUobserver he neither knew nor was interested in who was the European leftist candidate (Greece's Alexis Tsipras) for the post.


Categorieën: Europees nieuws

Would You Trust The NSA's Advice On How To Deal With Heartbleed?

van TechDirt - di, 04/15/2014 - 14:16
Somewhat late to the game (by about a week), after the Heartbleed vulnerability was publicly revealed, and a few days after it was reported and denied that the NSA was already well aware of Heartbleed and exploiting it, the NSA has put out a one page PDF about Heartbleed. This seems like something of a too little, too late effort by the NSA to live up to its semi-promise of a "bias" towards revealing vulnerabilities over exploiting them. However, that leads to the simple question that plenty of people should be asking: given everything you've learned about the NSA recently (or, well, for years), would you trust the NSA's advice on how to deal with Heartbleed? Not that I think the NSA would publicly suggest anything bad, but at this point, the NSA has a serious trust problem in convincing anyone engaged in computer security that they have their best interests in mind.

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[Ticker] Over half of Czechs say 'too many' foreigners in their country

van EU Observer - di, 04/15/2014 - 14:12
Over half of Czechs think there are "too many" foreigners in the country, despite it being the most ethnically homogeneous of the EU states, according to a fresh CVVM poll. Sixty-two percent -the highest percentage since 2005- don't believe every foreigner should be allowed to settle in the country.


Categorieën: Europees nieuws

Yes, Net Neutrality Is A Solution To An Existing Problem

van TechDirt - di, 04/15/2014 - 12:12
While AT&T, Comcast, and Verizon have argued -- with incredible message discipline -- that network neutrality is "a solution in search of a problem," that's simply not true.

There are many concrete examples of network neutrality violations around the world. These network neutrality violations include ISPs blocking websites and applications, ISPs discriminating in favor of some applications and against others, and ISPs charging arbitrary tolls on technology companies.

We have seen network neutrality violations all over the world.

Even in the U.S., there have been some major violations by small and large ISPs. These include:
  • The largest ISP, Comcast, secretly interfering with peer-to-peer technologies, including some of the most popular basic technologies used to distribute online TV and music (2005-2008);
  • A small telephone ISP called Madison River blocking Vonage, a company providing competing telephone service online (2005);
  • Apple blocking Skype on the iPhone, subject to a secret contract with AT&T, a company that competes with Skype in providing telephone service (2008-2009);
  • Verizon, AT&T, and T-Mobile blocking the functionality of Google Wallet on Nexus devices, while all three of those ISPs are part of a competing mobile payments joint venture called Isis (late 2011- +today);
  • and Comcast's disputes with Level 3 and Netflix over termination fees, and the appearance that Comcast is deliberately congesting its network connections to force Netflix to pay Comcast for an acceptable connection (2010- +today).
In other countries, including democracies, there are numerous violations. In Canada, rather than seeking a judicial injunction, a telephone ISP used its control of the wires to block the website of a union member during a strike against that very company in July 2005. In the Netherlands, in 2011, the dominant ISP expressed interest in blocking against U.S.-based Whatsapp and Skype.

In the European Union, widespread violations affect at least 1 in 5 users. That is the conclusion of a report issued in June of 2012 by the Body of European Regulators for Electronic Communications (BEREC), a body composed of the regulatory agencies of each EU country. Most of these restrictions were on online phone services, peer-to-peer technologies (which are used not only by copyright pirates, but also in a variety of well-known technologies, including Skype and several Amazon cloud services), as well as other specific applications "such as gaming, streaming, e-mail or instant messaging service."

ISPs block and discriminate against applications and websites even in countries that require disclosure of the violations and even in countries with far more competition among ISPs than the U.S. A recent Oxford dissertation on the topic explores the wide-scale blocking and discrimination in the United Kingdom, a market with both considerable competition among ISPs and robust disclosure laws.

Essentially, a specific rule that would be upheld in court is necessary protect network neutrality and address a major, global problem.

* Footnote: Thanks to Stanford professor Barbara van Schewick, whose recent letter to the FCC inspired my thinking in this post.

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[Ticker] MEPs pledge against 'excessive corporate lobbying'

van EU Observer - di, 04/15/2014 - 11:09
Pro-transparency groups on Tuesday launched a campaign for MEPs to “stand-up for citizens and democracy against the excessive lobbying influence of banks and big business” in the run-up to the European elections in May. Over 40 MEPs have already signed up to the so-called Politics for People campaign.


Categorieën: Europees nieuws

[Ticker] EU names four more Ukrainians on blacklist

van EU Observer - di, 04/15/2014 - 10:22
The EU has imposed an asset freeze on four more Ukrainians suspected of embezzling state funds: former deputy-PM Serhiy Arbuzov; the ousted president's former head of security Yuriy Ivanyushchenko; former minister of revenues Oleksandr Klymenko; and former energy minister Edward Stavytskyi. The additions increase the blacklist from 18 to 22.


Categorieën: Europees nieuws

[Ticker] Guardian and Washington Post win Pulitzer for NSA story

van EU Observer - di, 04/15/2014 - 09:30
The Guardian and the Washington Post have won the Pulitzer prize for public service for their articles on the National Security Agency's surveillance activities based on leaks from Edward Snowden. The whistleblower said the prize "is a vindication for everyone who believes that the public has a role in government".


Categorieën: Europees nieuws

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