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This Week In Techdirt History: December 31st - January 6th

za, 01/06/2018 - 21:00

Five Years Ago

This week in 2003, we kicked off the year by witnessing things start to go seriously wrong for a little law firm by the name of Prenda. Well, that and noting how, as usual, nothing at all was entering the public domain (a situation that looked like it could be extended thanks to the supreme court). The Megaupload case was mired in the courts and some companies were getting impatient. And we saw some pretty stunning DMCA nonsense with a takedown over a barely-customized default blog login page.

Ten Years Ago

This week in 2008, Hollywood was getting a taste of trade negotiation problems, the RIAA was admitting some errors in the Jammie Thomas trial (while flubbing an opportunity for some not-awful PR), and RealNetworks (which was still around) was shutting down competitors. We couldn't help think the entertainment industry needed to learn from the folks making a living by selling public domain content on eBay.

Fifteen Years Ago

This week in 2003 (and the last few days of 2002), the internet was changing and growing: it appeared that criminals had really figured out to use it, and there was a debate over dropping the capital "I" at the beginning, and of course some time to mourn the death of the payphone. We saw the DMCA abused to take down an entire web host over one claim of infringement, and record labels try to claim that even 95 years is too short for copyright, while one author was trying to challenge the unusual copyright on Peter Pan, and the tech industry was gearing up to fight back against DRM. Also, we celebrated the 20th birthday of TCP/IP.



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New York State Appellate Court Says Cell Site Location Records Have No Expectation Of Privacy

za, 01/06/2018 - 04:39

The Supreme Court will deliver its ruling on the issue of cell site location info later this year, possibly changing the contours of the Third Party Doctrine for the first time since its erection out of thin air more than four decades ago. Until then, a patchwork of decisions has been handed down by state courts, some finding state law provides more protection for cell phone users than the US Constitution. At the federal level, however, years of precedent has resulted in a mostly-unified front by appellate courts. According to their decisions, cell site location info is a third-party record, undeserving of Fourth Amendment protections.

One of New York State's appellate courts has sided with the federal level. According to its recent decision, there are no privacy expectations in CSLI collected and stored by cell phone providers.

[W]e conclude that the acquisition of that information was not a search requiring a warrant under either the federal or state constitution. As the People point out, this case involves only historical cell site location information, contained in the business records of defendant's service provider, which placed his phone within a certain cell site "sector" at the time he used the phone to make calls, send text messages, or receive calls or messages.

Under these circumstances, we conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant's use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties…

The court goes on to declare that even if it had felt like suppressing the evidence and extending privacy protections to CSLI, it wouldn't have helped the defendant.

As a final matter, we agree with the People that any error in the court's refusal to suppress defendant's cell site location information is harmless. The evidence of defendant's identity as a participant in the crime is overwhelming, and there is no reasonable possibility that the verdict would have been different if the location information had been suppressed…

This decision will stand even if the Supreme Court upends 40+ years of Third Party Doctrine rulings. Decisions like these are rarely retroactively applied. Even if Carpenter wins his Supreme Court case, it's likely the lower court will allow the evidence to remain in play, pointing out officers were reasonable to rely on precedential decisions finding no Fourth Amendment protections for third party records. The same goes for the defendant here. Post-decision alterations to the contours of the Constitution rarely help those whose rights have been determined to be violated after the fact.



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For Cops Handing Out Bogus Pedestrian Tickets, Ignorance Of The Law Is The Most Profitable Excuse

za, 01/06/2018 - 00:44

Ignorance of the law is no excuse… unless you're a police officer. Then it's a magical world of immunity and good faith exceptions! But it gets even better. In Florida, ignorance of the law is highly-profitable.

On its face, Florida’s pedestrian statute 316.130(11) seems straightforward enough: fail to cross a street in a crosswalk where required, and you are liable for a ticket ranging from $51 to $77. The authorities across the state issue hundreds of the tickets every year with the public claim that they were trying to cut down Florida’s outsize number of pedestrian deaths.

Good for them. Whatever the government can do to cut down on deaths is probably good, considering the average Floridian's propensity for harming themselves and others in extremely creative ways. The problem is it's unclear how much safer Florida residents are going to be when they're being busted for violations they didn't commit. ProPublica looked at the data and found that a vast majority of pedestrian tickets aren't backed by the law.

In Broward County, for instance, around 70 percent of the more than 3,300 crosswalk tickets issued in those years were given in error, according to the Times-Union/ProPublica examination. In Hillsborough County, where more than 500 crosswalk tickets were given, the percentage of bad tickets was around 80 percent; in Orange County, around 56 percent of the almost 650 tickets were given erroneously.

The letter of the law -- which we are reminded is what really counts when the government enforces it -- says no one is allowed to cross in the middle of street between two adjacent intersections with traffic lights. This is supposed to route people to intersections with crosswalks controlled by signals, rather than playing in traffic or taking their chances at less-controlled intersections. This isn't how the law is being enforced. Police are ticketing people crossing between unprotected intersections as well. That doesn't really make people that much safer.

[E]xamination shows that officers routinely write tickets for people crossing the street in places that are not in between intersections with traffic lights. In short, people are being punished for failing to avail themselves of safety features that aren’t readily accessible.

The official reaction to ProPublica's report has been worse than a shrug. It's been genuine indifference to the problems it causes people ticketed for non-violations of the law. Most law enforcement agencies said nothing more than recipients were welcome to challenge the bogus tickets in court. But people always could, so it's not like the agencies are making some sort of concession, much less offering apologies or promises to improve. The "fight it in court" proposal is a non-starter, since it's likely wages lost due to a day in court will far outweigh the face value of the ticket they never should have received. The potential savings of $55-77 just isn't worth it for most people, so the government will continue to collect on bogus tickets simply because it's hit a sweet spot in pricing.

Then there's the reaction of this agency, which openly admits pedestrian stops aren't about pedestrian safety or even actual violations of the law.

In Jacksonville, the sheriff’s office said it also used pedestrian tickets as a way to stop and question people suspected of criminal activity. The tickets, the officials said, gave officers probable cause to do so.

Except that an un-violated law isn't really "probable cause." Unfortunately, courts are often willing to grant officers the benefit of a doubt when it comes to the wording of the laws they enforce. They won't extend this courtesy to citizens, but officers stand a fair chance of keeping evidence in play even if the evidence was derived from a bullshit pedestrian stop. Given that reality, there's zero incentive for law enforcement agencies to improve officers' knowledge of the laws they're enforcing. In fact, the steady drip of $55-77 fees is the only incentive in play, and it's skewed completely towards issuing as many tickets as possible for perceived violations.

And that brings us to another troubling finding: it appears pedestrian tickets are just another way for police officers to (further) hassle certain citizens.

In Hillsborough, blacks make up 18 percent of the population, but received 43 percent of the bad tickets, according to our data analysis. In Orange County, where 23 percent of the population is black, blacks were issued 40 percent of the bad tickets. In Miami-Dade, black residents are 16 percent of the population, but received 29 percent of the flawed tickets. And in Broward, 61 percent of the bad tickets went to blacks, who make up just 30 percent of population.

Pressure is going to have to come from above if anything is going to change. None of the law enforcement agencies offering comments or statements made any pledge to actually start enforcing the law as written. One stated pedestrian tickets had almost nothing to do with pedestrian traffic violations. And one agency disagreed with the findings, but refused to state why it refused to believe ticket stats it had generated itself.

This is the attitude of law enforcement agencies when confronted with their ignorance of the law. They simply do not care. Keep that in mind the next time someone says something about most cops being good people, etc. Those at the top -- or at least those given the power to speak for law enforcement agencies -- are not good people. If they're leading by example, their departments are rotten to the core.



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Really Bad Ideas: French President Macron Wants To Ban 'Fake News' During The Election

vr, 01/05/2018 - 22:38

French President Emmanuel Macron was held up by some in the tech industry as a moderate who "got technology" leading up to his election. And yet, every time he seems to weigh in on tech related issues, it's with an absolutely terrible take on it. He wanted to mandate encryption backdoors and demand internet censorship of "radicals" online who post "inflammatory content." And now he's expanding that position and saying he wants to ban "fake news" during election season.

In his new year’s speech to journalists at the &‌Eacute;lys&‌eacute;e palace, Macron said he would shortly present the new law in order to fight the spread of fake news, which he said threatened liberal democracies.

New legislation for websites would include more transparency about sponsored content. Under the new law, websites would have to say who is financing them and the amount of money for sponsored content would be capped.

For fake news published during election seasons, an emergency legal action could allow authorities to remove that content or even block the website, Macron said. “If we want to protect liberal democracies, we must be strong and have clear rules,” he added.

The transparency idea isn't such a bad one (though the details would matter quite a bit), but it's unclear why the amount of money for sponsored content should be capped if it's clearly labeled and disclosed. But the really troubling part is that last one, allowing for "emergency legal action" to remove content. It may not be surprising that Macron is saying this about fake news -- since there were reports of a burst of fake new campaigns that tried to influence the French electorate to vote against Macron in the election.

But, as we've discussed many, many times -- the idea of government-mandated censorship, even if for the idea of stopping "fake news" is a terrible idea. It will be abused and abused badly. Remember, while the term "fake news" was first popularized by people who were upset about Donald Trump's election, he's now co-opted the term and uses it to argue that any media report that makes him look bad is "fake news." Imagine what a Trump or a French Trump-like figure would do with this kind of power?

A big part of the problem, obviously, is that "fake news" means different things to different people, and whoever has the power to order such content taken down will have plenty of opportunities to abuse that power -- such as to take down news that is merely unflattering to those in power. Or, even on a more subtle level, what if an unflattering story has a few small errors or misrepresentations. Claim "fake news" and make it disappear. This eagerness of so many to immediately leap to "censor it!" as the only possible response to propaganda is highly troubling -- and most certainly goes against the French ideals of freedom.



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White Noise On YouTube Gets FIVE Separate Copyright Claims From Other White Noise Providers

vr, 01/05/2018 - 20:59

The implications of YouTube's ContentID system in an era of user-generated content can sometimes be quite muddy. It is widely known that ContentID is open to abuse, and that it is indeed abused on the regular. However, too many stories about that abuse play far in the margins of what the average person could look at and recognize as a very real problem.

This is not one of those stories.

Instead, the story of how one music professor's upload to YouTube of 10 hours of pure white noise was flagged five times for copyright infringement (FIVE TIMES!) operates as though someone somewhere is trying to bring a reductio ad absurdum argument into physicality.

That’s what’s happened to Australia-based music technologist Sebastian Tomczak, who uploaded a completely non-infringing work to YouTube and now faces five separate copyright complaints. One of Tomczak videos was a masterpiece entitled “10 Hours of Low Level White Noise” which features – wait for it – ten hours of low-level white noise.

“The white noise video was part of a number of videos I put online at the time. I was interested in listening to continuous sounds of various types, and how our perception of these kinds of sounds and our attention changes over longer periods – e.g. distracted, focused, sleeping, waking, working etc,” Tomczak says.

I could embed the video, which you can find on YouTube here, but I won't bother because the video is exactly as advertised: ten straight hours of white noise. Tomczak composed this white noise himself, in all of its beautifully non-creative glory, making the copyright claims all the more absurd. Remember, copyright only applies to new creative works. White noise would not qualify. Now, the video is still available despite the copyright claims because the four different entities filing these five complaints against it -- one, incredibly, filed twice for two different "compositions"-- chose to simply monetize Tomczak's video instead of having it taken down.

As seen from the image below, posted by Tomczak to his Twitter account, the five complaints came from four copyright holders, with one feeling the need to file two separate complaints while citing two different works.

My ten hour white noise video now has five copyright claims! :) pic.twitter.com/dX9PCM1qGx

— Sebastian Tomczak (@littlescale) January 4, 2018

As you will see, several of the complaints came from representatives of folks creating white noise compositions as sleep therapy or for other therapeutic effect. This, it should hardly need to be noted, does not somehow make Tomczak's independent composition that is equally devoid of creative output somehow infringing. White noise is white noise for a reason, after all. This isn't even a case of what to do about copyright in the event of independent creation of the same creative works. Judge Learned Hand's famous line on independent creation notes: "[I]f by some magic a man who had never known it were to compose anew Keats's 'Ode on a Grecian Urn,' he would be an 'author,' and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's." But white noise is no "Ode on a Grecian Urn." There simply is no copyright here at all.

Still, the story is immensely useful in demonstrating just how vulnerable to abuse ContentID and copyright claiming systems can be on the internet. The original claim against this video dates back several years, which means that for some time others have been profiting from Tomczak's white noise, with nothing in the way of human intervention on YouTube's end that would take one look at this whole thing and proclaim the claims ridiculous. In this case, this all happened to someone, Tomczak, who seems to largely not care about the claims beyond being mildly amused by them.

Tomczak says that to him, automated copyright claims are largely an annoyance and if he was making enough money from YouTube, the system would be detrimental in the long run. He feels it’s something that YouTube should adjust, to ensure that false claims aren’t filed against uploads like his.

But that lax attitude doesn't change the absurdity of a reality in which ten hours of white noise can be flagged by four different outsiders as infringing, all the while the copyright industries scream that Google and YouTube aren't doing enough to clamp down on copyright infringement.



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California The Latest State To Propose Its Own Net Neutrality Rules

vr, 01/05/2018 - 19:44

As we've been trying to help people understand, the FCC's repeal of net neutrality goes well beyond just killing net neutrality. The agency's "Restoring Internet Freedom" order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).

The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.

But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow "increase popups" and "aid extremists." In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.

California's back again to try the same thing with net neutrality.

Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal "pre-empts" states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

"Under existing law, the Public Utilities Commission has regulatory authority over public utilities, including telephone corporations. Pursuant to its existing authority, the commission supervises administration of the state's telecommunications universal service programs. The Digital Infrastructure and Video Competition Act of 2006 establishes a procedure for the issuance of state franchises for the provision of video service, defined to include cable service and open-video systems, administered by these commissions.

The bill would state the intent of the Legislature to enact legislation to effectuate net neutrality in California utilizing the state's regulatory powers and to prevent Internet service providers from engaging in practices inconsistent with net neutrality...

There's of course several potential pitfalls here. One, the real issues will arise when California begins trying to define what net neutrality is. As we saw on the federal level in 2010 and 2015, lobbyists are immeasurably successful at using the complex technical nature of net neutrality to their advantage, convincing Luddite lawmakers to include so many loopholes as to make the rules useless. ISP lobbyists will likely work overtime to either water down the bill's language to the point of absurdity, misrepresent what the bill does (as they did with privacy), or bombard the state with lawsuits (likely all three).

And that's of course California. There's countless states where companies like AT&T and Comcast quite literally own state legislatures and most telecom regulators (Tennessee comes quickly to mind). States where similar laws will never be passed or enforced, creating huge oversight gaps for companies with thirty-years of documented anti-competitive history.

That's why, again, the best path forward to protecting net neutrality remains in hoping the courts get it right, and reverse the FCC's repeal for being "arbitrary and capricious," ignoring the public welfare, and turning a blind eye to shady comment period fraud. Not that states shouldn't try to protect consumers, but without rooting out state-level telecom influence and corruption first, passing meaningful state-level net neutrality protections -- then seeing consistent enforcement -- remains a long shot.



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Daily Deal: FRESHeBUDS Pro Magnetic Bluetooth Earbuds

vr, 01/05/2018 - 19:39

Listen to your music and take calls without the hassle of cords. The $29.95 FRESHeBUDS Pro Magnetic Bluetooth Earbuds connect automatically to your device via Bluetooth as soon as you pull apart the magnetic earbuds. They are sweat and water resistant, feature a battery that lasts for up to 10 hours of playtime, fully charge in 90 minutes, and are designed to be comfortably lightweight and secure in your ears.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.



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Shocked, Shocked To Learn The Patent Office Is Structurally Designed To Approve Shit Patents

vr, 01/05/2018 - 18:38

The book Innovation and Its Discontents, by Adam Jaffe and Josh Lerner, was first published in 2004. We've cited the book frequently around here, as it did a bang up job describing structural problems with our patent system (and the judicial review of patents). There were a few big points that it made about why our patent system was so fucked up, and a big one was the incentive structure that heavily incentivized approving patents rather than rejecting them.

Specifically, there were two big ideas mentioned in the book about the US Patent & Trademark Office: (1) that because Congress forced the USPTO to fund itself from fees, it had the direct financial incentive to encourage more patent applications, and a good way to do that is to approve a lot more patents and (2) individual examiners were rated and reviewed based on productivity scores on how many patent applications they completed -- and it is much faster and less time consuming to approve a patent, rather than reject one. That's because once you approve a patent it's completed and gone from your desk (and into the productivity metrics as "completed"). But, if you "reject" a patent, it's not done. Even though the USPTO issues what it calls "Final Rejections" there's nothing final about it. The patent applicant can keep going back to the well over and over again, making minor tweaks on the application, requiring the examiner to go through it again. And each time they do, that hurts their productivity ratings. As an additional "bonus" -- the USPTO actually makes significantly more money when it grants a patent, because in addition to application fees, there are also issuance fees and renewal fees.

In the years after that book came out, the USPTO actually seemed to pay attention. It changed how it measured examiners' work and, magically, fewer patents were approved. For a bit. When President Obama appointed David Kappos to head the Patent Office, he decided that the number one problem that the Patent Office had was its huge backlog of patent applications. And, there's no denying that was a problem -- but it was a problem the USPTO created itself by spending the previous dozen years or so agreeing to issue patents on all sorts of crazy things, leading to more applications and more filers hoping to get their own golden patent trolling lottery ticket. So, it was little surprise when soon after Kappos took over, the USPTO started approving patents much more quickly, and a study from 2013 found that (surprise, surprise) it did so by drastically lowering the standards for approving patents.

Now there's a new study with even more empirical evidence showing how the Patent Office's entire structure is designed to incentivize the approval of crap patents (first highlighted by Tim Lee over at Ars Technica). The paper is by professors Michael Frakes and Melissa Wasserman, and they used FOIA (yay!) to get data on millions of patent applications between 1983 and 2010. The key point with that date range is that Congress only switch the USPTO over to funding itself off of fees in 1991 -- so the researchers could look at before and after data. It also allowed them to look at different cross sections within the data.

So, for example, the researchers looked at whether or not there was evidence that the USPTO approved more patent applications when there was a big backlog. The answer: hell yes!

Specifically, we compared the Agency’s patent grant rate across different groups of applicants based on the tendency of their associated technologies to file repeat applications; importantly, we performed this across technology comparison for two groups—defined by their average tendency to file repeat applications—before and after periods of budgetary shortfall and increases in application backlog. Our findings suggested that when the Patent Office begins to face mounting backlogs, it appears to act on its incentive to grant patents at higher rates for technologies that are associated with higher rates of repeat application.11 In figure 1, we replicate a figure from Frakes and Wasserman (2015), demonstrating that the Patent Office indeed began to grant at differentially higher rates for high repeat-filing technologies during the mid-1990s, a moment in time when the Patent Office’s application backlog began to increase considerably year-by-year. Again, this analysis is alarming because it suggests that factors other than the underlying quality of applications are affecting the Patent Office’s decision to allow patents.

Then there's a separate question of whether or not the USPTO has a higher approval rate for "profit-maximizing" patents. That is: not all patent fees are the same. Smaller entities get to pay reduced fees. Big companies pay full freight. If the USPTO is being incentivized by fees... then it's likely to approve big company patents faster. And... that's what happened. The study also looked at whether or not the USPTO more readily approved patents in categories where there were higher renewal rates -- meaning a much higher likelihood of generating future fees from renewals. Take a wild guess what they found in both of those studies?

As theory predicts, the Patent Office does indeed grant patents at notably higher rates to large entities and applicants from high renewal rate technologies when it finds itself in a position of insufficient fee revenue.9 More broadly, the parameters of its fee schedule appear to affect the way in which the Patent Office applies the legal patentability requirements. This is concerning, given that the granting decision should be based solely on whether the application meets the legal patentability standards. If the fee structure were to encourage more patent grants overall (or more grants during times of budgetary shortfalls), the result could be the issuance of patents lacking legal validity, potentially leading to substantial social harms.

Of course, patent system (and patent troll) supporters will cry foul at this for all the usual reasons -- insisting that this is all a conspiracy to take away their patents. But that's ridiculous. Everyone should agree that we're all better off if the Patent Office is not approving low quality patents. I guess everyone... except those with low quality patents. Basically if people are complaining about the results of this study, there's a half decent chance that it's because they hold crap patents.

The report suggests some ways to try to fix these incentives -- or at least to minimize the social cost of them. One is to stop making the PTO so reliant on fees. You can understand why it was appealing for Congress to make the PTO funded by fees in the first place: not having to allocate taxpayer money to an agency seems like a good thing. But it's important to pay attention to what kinds of incentives that can create -- and how it could create serious problems, as it has here. The report suggests raising patent filing fees -- such that they cover the costs of the actual examination, thus making it less likely for there to be budgetary shortfalls that create these warped incentives.

Because the actual fees paid to the Patent Office for the examination of a patent application are a fraction of the overall cost of securing a patent (which includes attorney fees), there is reason to believe that even a two-fold or three-fold increase in examination fees will not substantially impede access to the U.S. patent system. As a bonus, increasing examination fees will likely also result in raising the quality of patent applications filed with the Patent Office, as applicants become more judicious in selecting those inventions for which they choose to pursue patent rights.

While that increase in filing fee may feel unfair to some, they also propose doing away with the issuance fee -- so there won't be additional expense for actually getting the patent upfront (there are still renewal fees, but that's much further down the road). As for renewal fees:

Instead of eliminating renewal fees, we recommend that Congress decouple the renewal fee income from the revenue stream that the Patent Office can immediately access for funding. While this decoupling goal could be achieved in various ways, we propose the most straightforward approach: Congress would abolish the requirement that the Agency’s aggregate fee income not exceed its operational costs. Renewal fees would then be allocated to a separate fund, similar to the Patent and Trademark Fee Reserve Fund, and earmarked for Patent Office use only. This fund would then be used to provide rebates to small and micro-entities. As a replacement for the guaranteed fee discount for any given small- or micro-entity application, the Agency’s excess renewal fee income would be used to subsidize the small- and micro-entity examination fee.

Perhaps an even more important modification -- and one that's been obvious for many, many years -- is to actually have final rejections of bad patent applications, so people and companies can't just keep refiling over and over again without end. As the paper notes, it's not at all clear what societal benefits allowing repeat filings creates. It overburdens the system, creates incentives for bad patents to get approved, and provides no benefit to anyone other than the entity applying for bad patents. The specific proposal in the paper is that filers can get just one chance to refile the application.

It's good to see more research being done on all of this -- and to see more empirical evidence. What's troubling is that almost all of this was clearly shown more than a dozen years ago, and Congress still hasn't done a damn thing to fix any of it.



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Maine Governor Tells 16-Year-Old Worried About Net Neutrality Repeal To 'Pick Up A Book And Read'

vr, 01/05/2018 - 15:27

As more than a few folks have noted, many opponents of net neutrality (from FCC boss Ajit Pai to Mark Cuban) are following blind ideology. Many of them quite honestly believe that no regulation can ever be good, and that government is absolutely never capable of doing the right thing. That kind of simplicity may feel good as you navigate a complicated world, but it's intellectually lazy. As a result, the decision to use net neutrality rules as an imperfect but necessary stopgap (until we can reduce corruption and drive more competition into the sector) simply befuddles them.

Of course this kind of blind ideology is particularly handy when you don't actually know how modern broadband markets or net neutrality even work, but your gut just tells you why the whole nefarious affair is simply bad. That's why you'll see folks like Ted Cruz consistently doubling down on bizarre, misleading claims based on repeatedly debunked falsehoods. Needless to say, this sort of lazy thinking is not particularly productive. Especially when you're a member of the same government purportedly tasked with analyzing real-world data, listening to constituent concerns, and actively tasked with making things better.

Case in point: one sixteen-year-old Maine high school student recently wrote to Maine Governor Paul LePage, clearly worried about the impact the broadband industry's attack on net neutrality will have on her ability to freely access information online. Camden Hills Regional High School sophomore Hope Osgood actually took the time to write her governor, expressing concern about how the repeal could pose problems for free speech, competition, and the health of information exchange:

"The internet is the easiest way to access anything. News, information, etc. Companies being able to put restrictions on internet usage isn’t ideal! People will be left in the dark about some things. All my school work is internet-based, but what happens if I can’t reach what I need to? What about my lessons in school?"

Osgood said she is concerned that big companies "might have more control over everything. If you wanted to go to a certain website, it might be slowed down. You might have to pay to access that, or it might be completely blocked off what you can see. They could filter news, media, or things they don’t agree with. I don’t think that should be able to happen. Everybody should be able to get information."

Le Page's response to her concerns? To scribble a response in the margins of her letter telling the kid to "pick up a book and read!":

His response not only is insulting, but makes no coherent sense. How would reading a book solve letting telecom monopolies run roughshod over competitors and the health of the internet? It wouldn't. Like so many others, LePage's disdain for net neutrality is being fueled entirely by blind ideology, and much like Donald Trump, the Governor probably couldn't tell you what net neutrality even is in one-on-one conversation. Needless to say, Osgood and her family didn't walk away charmed from her first run in with civil engagement:

"Osgood showed the letter to her grandfather, Rick Osgood, a LePage supporter who didn’t like the tone of the governor’s response. Rick Osgood has voted for LePage twice and supports much of what the governor is doing in Maine, but he called LePage’s message “just a snide remark.” “I think it’s mighty rude,” he said."

Again, a lot of the folks that aided and supported this latest attack on net neutrality don't really understand the backlash that's headed their direction, especially among younger voters. In their heads, they've heroically fought back a "government takeover of the internet" because they're letting blind ideology drive the car. In reality, they've made a stupid, unpopular, economically unsupportable decision that's going to impact voting decisions for the next decade. Watching many of them realize this when election time rolls around should provide at least a modicum of entertainment value in the wake of one of the worst tech policy decisions in a generation.



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Indiana Legislator Wants To Force NFL Team To Hand Out Refunds To Fans 'Offended' By Kneeling Players

vr, 01/05/2018 - 12:23

Free speech isn't free, people trying to stifle your free speech will often remind you. It's dumb enough when it's just your fellow man. It's way worse when it's your elected representative. (via PrawfsBlog)

An Indiana lawmaker is filing legislation that would require the Indianapolis Colts to offer fans refunds if Colts players kneel during the national anthem at home games.

The lawmaker is Milo P. Smith, a lawmaker who has pushed forward legislation opposed by his own offspring to satisfy his base. This appears to be more of the same. Smith's anti-kneeling bill not only poses Constitutional problems, but it completely misconstrues the reasons NFL players kneel.

Rep. Milo Smith, R-Columbus, said his bill would allow fans who feel disrespected by the kneeling to ask for a refund during the first quarter.

"To me when they take a knee during the national anthem, it’s not respecting the national anthem or our country," Smith said. "Our government isn’t perfect, but it's still the best country in the world and I think we need to be respectful of it."

Kneeling doesn't "disrespect" paying customers. If they want to feel offended by it, that's their prerogative, but it's not directed towards them. And it has nothing to do with not respecting the national anthem, the United States, the troops fighting for these players' freedom to express themselves, or anything else related to patriotic jingoism. It's a protest of ongoing oppression of African Americans in the United States. That's what has been diluted by attacks on this particular form of protest. Not only have people like Smith managed to turn the protest into an anti-American statement, they've shifted the players' goalposts away from the law enforcement target to an assault the flag, the troops, and every other symbol of unquestioning patriotism.

Smith is dumb and his proposed law is dumber. Even if it manages to survive a vote on its highly-dubious merits, it certainly won't survive a Constitutional challenge. As Howard Wasserman of Prawfsblog points out, there are numerous ways the law could be construed as government infringement on free speech rights.

[T]he law infringes the Colts' First Amendment rights by sanctioning them (or setting them up for sanction) if they do not prohibit their players from kneeling. If we understand the team as exercising its First Amendment rights when it decides what its players can do, the law abridges that right and for reasons of disagreement with the team's speech in allowing its players to kneel.

A law also can violate a person's rights even if it does not prohibit some actions, by empowering or obligating private persons to take certain steps that harm that person... The same logic is at work with this statute--the Colts are essentially being fined for not stopping the players from kneeling and so will prohibit kneeling to avoid the fine.

In this case the fine comes in the form of a ticket price refund, provided the offended person leaves the game before the end of the first quarter. So, it will basically appeal to those with the same mentality as our Vice President, who apparently attended an Indianapolis Colts game solely for the purpose of being offended. His walkout and attendant statement of offense was apparently directly ordered by President Trump. The demands for refunds by "offended" attendees will serve the same virtue-signalling purpose VP Pence's leaving-in-a-huff did: to briefly ascend a shitty bully pulpit to preach to the converted. (Facebook videos of jersey-burnings optional.)

This bill has zero chance of going anywhere because it's so obviously targeted at silencing protected speech. Considering Smith has done nothing more than talk about this bill so far (it has not been submitted to the legislature at this point), it would appear Smith has plenty of opportunities to run his mouth about speech he doesn't agree with (a.k.a.: more speech). This alone renders his First Amendment-harming legislation superfluous. The Constitution will render the law illegal, should Smith ever put his taxpayers' money where his offended motormouth is.



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It Begins: Some Comic Conventions Refusing To Fold After San Diego Comic-Con Gets Its Trademark Win

vr, 01/05/2018 - 04:57

After following the saga of what seemed like a truly misguided lawsuit brought by the San Diego Comic-Con against the company putting on the Salt Lake ComiCon, the whole thing culminated in the SDCC getting a win in the courtroom. One of the reasons this verdict threw many, including this writer, for a loop is that the defendant in the case made the argument that the SDCC had allowed the term "comic con" to become generic, an argument buttressed by the reality of there being roughly a zillion comic conventions using the term across America. Despite the SLCC's public discussions about appealing the decision and the fact that proceedings are already underway to cancel the SDCC's trademark entirely, much of the media speculation centered around what those zillion other conventions would do in reaction to the verdict.

It was a question that seemingly made sense, but the actual reaction by at least some conventions should have been plainly predictable. And, indeed, now there are some conventions willing to come out and publicly say they aren't going to change a damned thing based on this one verdict.

Yakima’s Central City Comic Con will hold off on a name change after one of the nation’s largest comic conventions won a trademark lawsuit. Yakima’s comic convention started in 2015, and is one of more than 100 conventions that uses “Comic Con” in their names.

“I don’t know how you can trademark two words that are common,” said Jamie Burns, Central City Comic Con events coordinator.

She said Yakima’s convention organizers are taking a wait-and-see attitude, watching to see whether the Emerald City Comic Con in Seattle or Portland’s Rose City Comic Con change their names in response.

Rose City, of course, wouldn't need to change its name as it somewhat infamously and more conveniently decided to partner with the San Diego Comic-Con in the middle of the whole trademark trial, but the larger point remains. The war was not the trademark trial. That was merely the opening battle. To win this war, that the SDCC decided to start for no conceivable reason, it will need to pepper the country with lawsuits against a hundred or so comic conventions, hopefully winning more than it loses and hopefully getting more than $20k a pop, which is what it earned from the three-year campaign against SLCC. All the while, mind you, it must also hope its "comic-con" trademark isn't suddenly cancelled out from underneath it by a USPTO that might finally realize the term is both generic and descriptive.

That's quite a hill to climb and must look more like Waterloo than Normandy.



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Could It Be? Congress Actually Wants To Do The Right Thing On Electronic Voting!

vr, 01/05/2018 - 00:33

One of the topics we've talked about longer than any other topic on Techdirt is the problems with basically all electronic voting systems out there. Remember the good old days of Diebold, the well known voting machine maker? We wrote dozens of stories about its insecure machines starting back in 2003 and continued to write about the problems of electronic voting machines for years and years and years. We've gone through four Presidential elections since then and lots and lots of other elections -- and while the security on e-voting machines has improved, it hasn't improved that much and still is subject to all sorts of risks and questions. And those questions only serve to make people question the legitimacy of election results.

And, for all those years, it appeared that basically no one in Congress seemed to have any interest in actually doing anything. Until now. A new bipartisan bill has been introduced, called the Secure Elections Act, that would actually target insecure e-voting machines. The ideas in the bill are not revolutionary -- they're just what almost all computer security professionals have been calling for since we first started writing about e-voting machines all those many years ago, namely:

  1. Strongly encourage states to get rid of paperless e-voting machines so that there is a verifiable paper trail that can be checked to make sure the electronic votes were counted accurately.
  2. Do post-election audits of the machines to make sure that the machines accurately counted votes (i.e., not just in recount situations).
There's more in there as well, including a lot about information sharing on possible cybersecurity threats, which could be potentially quite useful, since elections are not run in any centralized way, but with locals (who often don't have much in the way of computer security knowledge) handling the details. This bill could help standardize some pretty key security practices that would make sure that the machines are safer and that the votes are more credible.

While some have raised concerns about the costs of getting rid of the older e-voting machines, the bill also allows for a grant-making process to help election agencies make this work -- and, really, the cost of botching elections seems like a bigger deal to me. The bill doesn't force states to get rid of the old machines (which Congress probably doesn't have the authority to do...), but does certainly give plenty of incentives (i.e. $$$$) for states to do the right thing.

The article (linked above) over at Ars Technica quotes a few e-voting system experts who are excited about the bill, but note that Congress should act fast if it wants states to actually follow through by the next election. And, of course, Congress is not exactly known for acting quickly. Still, this is a rare instance where it seems to have (finally) figured out how to take on an important issue and to do so intelligently.



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DHS Expands License Plate Dragnet, Streams Collections To US Law Enforcement Agencies

do, 01/04/2018 - 22:38

The DHS has provided the public with a Privacy Impact Assessment (PIA) on its use of license plate readers (LPRs). What the document shows is the DHS's hasty abandonment of plans for a national license plate database had little impact on its ability to create a replacement national license plate database. The document deals with border areas primarily, but that shouldn't lead inland drivers to believe they won't be swept up in the collection.

The DHS has multiple partners in its license plate gathering efforts, with the foremost beneficiary being the DEA, as Papers, Please! Reports:

The latest so-called “Privacy Impact Assessment” (PIA) made public by the US Department of Homeland Security, “CBP License Plate Reader Technology“, provides unsurprising but disturbing details about how the US government’s phobias about foreigners and drugs are driving (pun intended) the convergence of border surveillance and dragnet surveillance of the movements of private vehicles within the USA.

The CBP defines the border as anything within 100 miles of the country's physical borders, which also include international airports. Consequently, more than 2/3rds of the nation's population reside in the CBP's so-called "Constitution-free zone." The plate readers discussed in the PIA aren't just the ones drivers and visitors might expect. While the CBP operates many of these at static locations at entry points, other LPRs are mounted on CBP vehicles or hidden in areas the CBP patrols.

The addition of the DEA adds law enforcement to the mix. This means the DHS is intermingling its collection with existing law enforcement databases, allowing it to build an ad hoc national database without having to inform the public or hire a contractor to build one from the ground up.

[T]he DEA has compiled an aggregated database of geotagged and timestamped license plate records purchased from commercial sources, including records of vehicle locations far from what even the DHS considers the “border zone”.

CBP and DEA are already able to query and retrieve data from each other’s LPR databases. A DEA agent can also set a “TECS alert” flag in the DHS database for a specific license plate number, the same way they can for a specific passport number, so that they will be notified automatically whenever that plate is spotted by a DHS camera.

Vanishing from these multiple databases is any form of targeting. The DHS plans to pipe its LPR collection to DEA and other law enforcement agencies as a live feed, allowing agencies on the receiving end to browse the collection at will and/or add it to databases they control.

“CBP intends to provide DEA access to CBP LPR information… through a real-time streaming service.” Each agency will have a complete copy of the data collected by the other, so that they can merge and mine it and use it for “pre-crime” profiling.

The Impact Assessment notes privacy will, yes, be "impacted," but that's the way it goes. Many, many US citizens who have never crossed the border will have their license plate/location data added to multiple law enforcement databases. But what option does the DHS have? Not policing the "border?" Not helping the DEA out with the Drug War? From the PIA [PDF]:

Privacy Risk: There is a risk to individual participation in that individuals do not have an opportunity to consent to CBP’s retention and use of their license plate data.

Mitigation: This risk is not mitigated given the purpose of the collection. Many areas of both public and private property have signage that alerts individuals that the area is under surveillance; however, this signage does not consistently include a description of how and with whom such data may be shared. Moreover, the only way to opt out of such surveillance is to avoid the impacted area, which may pose significant hardships and be generally unrealistic.

As Papers, Please! notes, this PIA is a nice addition to the DHS's collection, but it's supposed to be released prior to roll out and the public is supposed to be notified via the Federal Register about additional collections of personally-identifiable info by government agencies. None of this has happened in a timely manner, making these collections illegal until the assessments are in place and notices properly published. The DHS -- along with its component agencies -- routinely ignore statutory requirements but, to date, not a single agency official has been punished for disobeying the law.

As for US citizens, they can expect this Kudzu-like growth of surveillance to continue, especially around airports or borders, even as the country remains only minimally threatened by terrorist activity or illegal entry into the country.



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Supporters Aim To Use Net Neutrality To Bludgeon Cash-Compromised Lawmakers In The Midterms

do, 01/04/2018 - 21:02

We've already noted that the best route for killing the FCC's recent attack on net neutrality rests with the courts. Once the repeal hits the Federal Register in January or soon thereafter, competitors and consumer groups will be filing multiple lawsuits against the FCC. Those lawsuits will quite correctly note how the FCC ignored the public, relied on debunked lobbyist data, ignored the people who built the internet, and turned a blind eye to rampant fraud during the comment proceeding as it tried to rush through what may just be the least popular tech policy decision in a generation.

The hope will be to highlight that the FCC engaged in "arbitrary and capricious behavior" under the Telecommunications Act by reversing such a popular rule -- without proving that the broadband market had dramatically changed in just the last two years. They'll also try to claim that the FCC violated the Administrative Procedure Act, and even went so far as to block law enforcement investigations into numerous instances of comment fraud during the open comment period.

There is, however, another less likely route toward stopping the FCC's repeal of net neutrality. Since the vote, net neutrality advocates have been trying to pressure lawmakers into using the Congressional Review Act to roll back the FCC's repeal. Under the CRA, Congress has the ability to dismantle a regulatory decision with a vote on the hill, provided it's done within 60 days of the original regulatory decision. It's how the Trump administration killed broadband privacy rules earlier this year that were passed under the Wheeler FCC, and would have taken effect back in March.

Groups like Fight for the Future have been pushing hard to get enough Senators on board to reach the thirty-vote threshold needed to bring a broader CRA vote to the floor (last I checked, they had around 29 lawmakers on board). As such they've launched a new Vote For Net Neutrality effort intended to drum up public support for the CRA vote, while publicizing the countless Senators that are now-mindlessly beholden to every whim of entrenched telecom duopolists. The group suggests that while the effort may be somewhat Sisyphean, it remains possible:

"In the Senate, we may only need one more Republican to vote for the CRA to get it passed, given that Susan Collins (R-ME) opposed the FCC plan and signalled openness to a CRA. In the House, we'll need about 20 Republicans to listen to their constituents and vote for the CRA. That's harder, but several Republican representatives have already criticized the FCC's vote, and given that more than 75% of Republican voters support net neutrality, it's doable."

While well intentioned, this ignores the fact that Trump would still need to vote to seal the deal and kill the FCC's repeal, something that isn't likely to happen given everything we've seen so far. But net neutrality advocates know that forcing Senators to clearly put their name to a vote against net neutrality could prove immeasurably beneficial as a political cudgel ahead of the looming midterms.

That's because as we've noted repeatedly, net neutrality has broad, bipartisan appeal among voters. After all, our collective disdain for Comcast (and what passes for Comcast customer service) is one of a few subjects that tends to bridge the partisan divide. It has only been framed as a partisan issue by ISP lobbyists looking to foment dissent and stall progress. As such, it would be foolish to think that the FCC's decision to kill net neutrality won't have a notable impact on voter behavior (particularly among Millennials) as we head into midterm season.

So while overturning the FCC's repeal in the courts remains the best option, finding ways to publicize the grotesque fealty many lawmakers have toward some of the most-hated companies in America still serves a purpose. As we've noted, a big part of the broadband industry's lobbying agenda for 2018 will be the passage of bogus net neutrality legislation that will claim to "put the issue to bed," but will be exclusively focused on making the FCC's unpopular decision permanent. Purging at least a few of AT&T, Verizon and Comcast's mindless footsoldiers from Congress could go a long way in keeping that from happening.

It feels naive in 2018 to think that we can ever purge enough of them to actually pass a meaningful net neutrality law without numerous, idiotic loopholes, but a notable shift in the makeup of Congress could still be helpful in stopping the broadband industry's attempt to replace all meaningful oversight of the uncompetitive broadband sector with the policy equivalent of wet tissue paper.



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China Plans To Turn Country's Most Popular App, WeChat, Into An Official ID System

do, 01/04/2018 - 19:45

In one respect at least, China's embrace of digital technology is far deeper and arguably more advanced than that of the West. Mobile phones are not only ubiquitous, but they are routinely used for just about every kind of daily transaction, especially for those involving digital payments. At the heart of that ecosystem sits Tencent's WeChat program, which has around a billion users in China. It has evolved from a simple chat application to a complete platform running hugely popular apps that are now an essential part of everyday life for most Chinese citizens. The centrality of WeChat makes the following move, reported here by the South China Morning Post, entirely logical:

The government of Guangzhou, capital of the southern coastal province of Guangdong, started on Monday a pilot programme that creates a virtual ID card, which serves the same purpose as the traditional state-issued ID cards, through the WeChat accounts of registered users in the city's Nansha district, according to a report by state news agency Xinhua.

It said that trial will soon cover the entire province and further expand across the country from January next year.

The Wall Street Journal has some details of how people register:

Under the pilot program, funded by the National Development and Reform Commission, people create a basic identity card by scanning an image of their face into a WeChat mini program, reading aloud four numbers that pop up on the screen and entering their identification number as well as other information.

It obviously makes a lot of sense to use the WeChat platform to provide a virtual identity card. It's convenient for users who already turn to WeChat apps to handle most aspects of their lives. It means they don't need to carry around a physical ID card, but can let the software handle the necessary authentication when needed. That's also good news for businesses that want to confirm a person's identity.

But it's also an extremely powerful way for the Chinese government to implement its real-name policy for online activities, something that it has so far failed to push through. It will mean that the daily posts and transactions carried out using a mobile will not only be available to the Chinese authorities, but will be unambiguously linked to an individual once such digital IDs become obligatory for WeChat users, as they surely will. That, in its turn, will be very handy for implementing the proposed "citizen score" framework. Once this has been rolled out nationwide, it will form one of the most effective means of control available to the Chinese government, especially if combined with a similarly comprehensive plan to collect everyone's DNA.

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



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Daily Deal: Six Sigma Green & Black Belt Certification Training

do, 01/04/2018 - 19:40

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.



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Donald Trump Hires Charles Harder To Threaten Steve Bannon With A Lawsuit, Block Publication Of New Book

do, 01/04/2018 - 18:32

If you follow political news at all, you probably saw the story yesterday concerning excerpts from Michael Wolff's upcoming book Fire and Fury, in which former Trump "Chief Strategist" Steve Bannon appeared to completely throw Trump under the bus, allegedly saying a bunch of pretty negative things about Trump and his family -- including the headline-making exaggerated opinion that Trump Jr., Kushner and Manafort meeting with Russians was "treasonous." Trump quickly responded in kind with one of the most incredible statements you'll see (and that's saying something, given the speaker) which starts out thusly:

Steve Bannon has nothing to do with me or my Presidency. When he was fired, he not only lost his job, he lost his mind. Steve was a staffer who worked for me after I had already won the nomination by defeating seventeen candidates, often described as the most talented field ever assembled in the Republican party.

It goes on. Normally, none of this would be Techdirt-worthy, but late last night, a new twist was added. According to ABC News, President Donald Trump has hired lawyer Charles Harder to threaten Steve Bannon with a lawsuit for defamation, breach of confidentiality and non-disparagement agreements. And, then, this morning, more news broke of another letter, written by Harder, sent to Wolff and the book's publisher, demanding that the book not be published at all -- and that they send Harder a complete copy of the book.

So, let's lay our cards on the table here: the lawyer, Charles Harder, is still the lawyer representing a plaintiff in an ongoing lawsuit against us -- and we've written about many of his other lawsuits, including representing the First Lady, Melania Trump. Not much more needs to be said about him. We're also not huge fans of Steve Bannon. Or Donald Trump. Or, for that matter, of Michael Wolff, who has a long history of... not being very good at his job. So, if you want to accuse us of bias in this post, consider it spread all around.

ABC did not publish a copy of the actual letter Harder sent Bannon, but did extensively quote it, so we can piece together most of the letter. Here are the various excerpts:

"This law firm represents President Donald J. Trump and Donald J. Trump for President, Inc. On behalf of our clients, legal notice was issued today to Stephen K. Bannon, that his actions of communicating with author Michael Wolff regarding an upcoming book give rise to numerous legal claims including defamation by libel and slander, and breach of his written confidentiality and non-disparagement agreement with our clients. Legal action is imminent."

"You [Bannon] have breached the Agreement by, among other things, communicating with author Michael Wolff about Mr. Trump, his family members, and the Company, disclosing Confidential Information to Mr. Wolff, and making disparaging statements and in some cases outright defamatory statements to Mr. Wolff about Mr. Trump, his family members, and the Company, knowing that they would be included in Mr. Wolff’s book and publicity surrounding the marketing and sale of his book."

"Remedies for your breach of the agreement include but are not limited to monetary damages, injunctive relief and all other remedies available at law and equity...."

The letter then cites parts of Paragraph 8 of the Agreement: "Consent to Injunction. A breach of any of your promises or agreements under this agreement will cause the Company, Mr. Trump and each other Trump Person irreparable harm. Accordingly, to the extent permitted by law, and without waiving any other rights or remedies against you at law or in equity, you hereby consent to the entry of any order, without prior notice to you, temporarily or permanently enjoining you from violating any of the terms, covenants, agreements or provisions of this agreement on your part to be performed or observed. Such consent is intended to apply to an injunction of any breach or threatened breach."

The "Damages and Other Remedies" part of the Agreement is then cited, "Notwithstanding anything to the contrary, each Trump Person will be entitled to all remedies available at law and equity, including but not limited to monetary damages, in the event of your breach of this agreement. Nothing contained in this agreement will constitute a waiver of any Trump Person’s remedies at law or in equity, all of which are expressly reserved."

"Further, as the prevailing party in any litigation arising out of your breach of the Agreement, Mr. Trump and the Company will be entitled to 'an award of reasonable legal fees and costs."

Phew. Donald Trump, of course, has a long history of threatening defamation lawsuits, not all of which actually come to fruition. He has actually sued for defamation a few times -- but not very successfully. Also, I'm not sure Trump or his supporters should be all that excited about the idea of a Trump deposition either. In the past, those haven't always gone well (though I'm sure the media would salivate over such a thing).

Still, having a sitting President sue a former top advisor and former campaign CEO for defamation would be... unusual. Without seeing everything that Wolff has written, nor seeing everything that Bannon has said, it's difficult to know if anything actually reaches the level of defamation -- nor will we speculate one way or the other. Bannon, of course, may not be the most trustworthy narrator -- and there are already reports that Bannon planned to use the book "to settle scores" against people he disagreed with -- such as Jared Kushner. But portraying people negatively, by itself, is not defamation.

So far, most of the comments revealed certainly appear to be statements of opinion not fact. But the full book has not yet been released. We will note, of course, that a pretty long history of US case law (and the good old First Amendment) makes it quite difficult to successfully claim defamation of a public figure -- and there basically is no more public figure right now than Donald Trump. Trump would have to show that Bannon said or wrote false things about Trump, knowing that they were false, or with reckless disregard for the truth. That's not an easy standard to meet but certainly not impossible. I would be very surprised if Bannon went that far, but it's not impossible. And, at least in the excerpted portions in the letter, there does not appear to be an explanation of which statements are actually defamatory and how (which is generally what one does if you're claiming defamation and have an actual basis for such a claim).

Of course, there may be other concerns as well. Some are already raising questions about Wolff's reporting in the book, which could create an interesting wrinkle should a case actually show up:

Becoming increasingly clear to me that Wolff likely sourced most of the juiciest/most scandalous stories from Bannon's various bloviating interviews, and simply took his word for how he characterized the acts/beliefs of others. Very problematic. https://t.co/0d1BLQ3UqB

— Jeff B (@EsotericCD) January 3, 2018

And, as noted, Wolff has been accused of questionable journalistic techniques in the past, which he denies, including claims that he "invented or changed quotes." So it's hardly surprising that a bunch of articles are popping up digging into Wolff's history as well. That said, Axios is also reporting this morning that Wolff recorded his interviews, so if officials want to claim that he made up their quotes, that may backfire badly.

As for the breach of confidentiality and non-disparagement clauses, those are other issues entirely. It's certainly been reported in the past that the Trump campaign made staffers sign confidentiality agreements which appeared to be quite broad. Whether or not such an agreement is actually enforceable would certainly be an interesting legal question, and one that would be watched quite closely in the courts -- especially seeing as there has been a lot of discussion lately about how non-disclosure agreements were used to silence the victims of sexual assault, and how perhaps such agreements should be made illegal, but nothing's really happened on that front so far.

It does seem worth pointing out that there's a built-in contradiction if Bannon's statements are both defamatory and a confidentiality agreement violation. Because if it's violating confidentiality, well, then that's an admission that it's true and not made up. It's possible that Harder is claiming some statements are defamatory while others breach confidentiality --but it'll be fun determining which ones are which.

So, does Trump (and Harder) have a legitimate case against Bannon? Without seeing the details it's difficult to say for certain. However, either way, I think we can express our strong opinion that merely having the President of the United States feel the need to bring in a lawyer to threaten a lawsuit against his former top strategist over some negative things said in a book... is a really bad look. It's no secret that our President appears to have an extremely thin skin when it comes to criticism. Threatening lawsuits certainly doesn't help change that impression.

As for getting Wolff and publisher Henry Holt & Co. to stop publishing the book entirely? That seems extraordinarily unlikely to happen. The book has already been distributed to bookstores, and getting a judge to order the publication to stop would be clear prior restraint and an absolute violation of the First Amendment. And, for Wolff and the publisher, you have to imagine that they're loving the threat for all the free advertising it's providing. There's a term for that, I think. On top of that, I'd argue that the President of the US demanding an entire book not be published is even more ridiculous than threatening Bannon with a defamation lawsuit. Banning books is most certainly not something the President should be doing and is an affront to the First Amendment. But, of course, Donald Trump has a long history of attacking the First Amendment, so perhaps it's not a surprise.

Many may argue that the threats alone may be the point of all of this. Threatening (or even suing) Bannon for saying mean things after leaving the White House may be intended more as a message to other Trump White House staffers (past, present and future) to shut the fuck up, rather than talk to the press. Historically, trying to enforce a code of silence in this manner doesn't tend to work well. It is likely to only lead to more leaking and more talking to the press -- though perhaps with less willingness to put names on the quotes. And, on top of that, threatening the publisher and author seem only likely to interest more authors in writing about the Trump White House in hopes of a similar "free advertising" blitz from the President and his lawyers.



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FCC Prepares To Weaken Broadband's Definition To Hide Competitive, Coverage Issues

do, 01/04/2018 - 15:29

Under Section 706 of the Telecommunications Act, the FCC is required to consistently measure whether broadband is being deployed to all Americans uniformly and "in a reasonable and timely fashion." If the FCC finds that broadband industry is failing at this task (you may have noticed that it is), the agency is required by law to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment" and by "promoting competition in the telecommunications market."

Of course given that the telecom sector is often the poster child for regulatory capture, this mandate often gets intentionally lost in the weeds. This is usually accomplished by simply pretending the lack of competition doesn't exist. Or worse, by meddling with broadband deployment metrics until the numbers show something decidedly different from the reality on the ground. It's a major reason why broadband ISPs (and the lawmakers who love them) whine incessantly every time we try to update the definition of broadband to a more reasonable and modern metric.

As such, we engage in this endless tug of war depending on how grossly-beholden the current FCC regulators are to regional telecom duopolies. Regulators not blindly loyal to giant ISPs will usually try to raise the bar to match modern needs, as Tom Wheeler did when he bumped the standard definition of broadband to 25 Mbps down, 4 Mbps up back in 2015. Revolving door regulators in turn do everything in their power to manipulate or ignore real world data so that the industry's problems magically disappear.

Case in point: the FCC is expected to vote in February on a new proposal that would dramatically weaken the standard definition of broadband. Under the current rules, you're not technically getting "broadband" if your connection in slower than 25 Mbps down, 4 Mbps up. Under Pai's new proposal, your address would be considered "served" and competitive if a wireless provider is capable of offering 10 Mbps down, 1 Mbps up to your area. While many people technically can get wireless at these speeds, rural availability and geography make true coverage highly inconsistent.

The original notice of inquiry (pdf) proposed by the FCC tries to frame this manipulation of the data as a matter of efficiency, asking:

"Given that Americans use both fixed and mobile broadband technologies, we seek comment on whether we should evaluate the deployment of fixed and mobile broadband as separate and distinct ways to achieve advanced telecommunications capability. Taking into account the differences between the various services and the geographic, economic, and population diversity of our nation, we seek comment on focusing this Section 706 Inquiry on whether some form of advanced telecommunications capability, be it fixed or mobile, is being deployed to all Americans in a reasonable and timely fashion. Would such an inquiry best follow the statutory instruction to evaluate the deployment of advanced telecommunications capability "without regard to any transmission media or technology?"

And while that's designed to sound reasonable on its surface, industry analysts like Doug Dawson have quickly pointed out that there's all manner of issues with this effort. One, wireless simply isn't equivalent to a fixed-line connection and may not be for a decade or more in many rural markets, where users not only pay an arm and a leg for capped and metered service, but are often kicked off the network for using these connections like traditional, unlimited fixed-line connections. Folks who believe wireless to be some magical competitive panacea often like to ignore usage caps and higher prices of cellular:

"There is a monstrous difference in price between landline and cellular data. A household using 100 gigabytes of cellular data in the month might pay nearly $1,000 per month. Most ISPs report that the average US household now uses between 150 and 200 gigabytes of broadband per month. It’s hard to think of cellular broadband as a substitute for landline broadband with such disparate pricing."

Folks that think wireless competition will come and save us all also like to ignore the fact that just two carriers hold a monopoly over business data services and backhaul connections that feed towers, something Ajit Pai's FCC also recently tried to downplay when they redefined what constitutes competition in that segment as well. Again, the goal here isn't efficiency, it's illusion:

"The major reason that counting cellular data as equivalent to landline data is that it’s going to largely take the FCC off the hook for promoting broadband. They currently have directed billions from the Universal Service Fund to help build faster broadband networks, mostly in rural America. They can discontinue such programs and not expand their effort if most of rural America is considered to have broadband. With a simple vote a large percentage of rural homes on the wrong side of the digital divide will suddenly have broadband. That’s going to be big news to rural people who already understand that cellular broadband is not really broadband."

Again, it's so much easier to justify your apathy to a problem (in this case, broadband coverage and pricing problems caused by market failure and a lack of competition) when you manipulate the data to suggest the problem somehow doesn't exist.



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U-Haul Sends Bogus Legal Threats To Moving Assistance Company Run And Operated By Military Veterans

do, 01/04/2018 - 12:23

Happy New Year, readers! Here's to the first trademark thuggery of 2K18, propelled by U-Haul's mistaken belief that baseless legal threats are always successful and never result in large amounts of backlash.

A little background: several years ago the US Patent and Trademark Office did Americans the disservice of granting two questionable trademarks to U-Haul for purely descriptive phrases: Moving Help and Moving Helpers. U-Haul believes no one should be able to use either of these two words in association with moving assistance services even though there's really no other way to succinctly describe offerings of companies in the moving help business.

Years ago, it took a startup that matched up customers with moving helpers to court, claiming everything from trademark infringement to copyright infringement to misuse of trade secrets. It not only sued the startup, but also singled out the husband and wife behind it for separate lawsuits of their own.

Since then, U-Haul has apparently targeted several websites for the use of these trademarked phrases, even if the sites made no attempt to lead users to believe U-Haul was the company behind the websites. In terms of customer confusion, it's far more likely customers would be baffled U-Haul "owns" the words "moving help" than by any site not affiliated with U-Haul offering assistance with moving. It's makes about as little sense as granting U-Haul exclusive ownership of the words "moving truck" -- something that, fortunately, has not actually happened.

Based on a single courtroom win* and a bunch of successful legal threats, U-Haul has decided to toss its reputation into the internet dumpster. Not content to limit itself to shutting down every use of moving/help/helper it runs across, U-Haul is now in the business of taking jobs away from US military veterans.

*More on that "win" below.

Gregory Sledge owns Veterans Moving Help LLC, a service that puts homeowners and renters in touch with veterans, providing the former with moving help and the latter with a paycheck. Sledge went from being a homeless veteran to owning his own business, and is now helping out fellow veterans with $25/hour jobs.

U-Haul doesn't care for this. Maybe it has nothing against helping veterans earn income, but that will be the end result of its actions if it succeeds. Sledge's business has a solid reputation and several satisfied customers. It also has a URL that U-Haul doesn't want it to have: veteransmovinghelp.com. Late last month, U-Haul sent a cease-and-desist letter [PDF] to Sledge, demanding he shut down his site and surrender the URL to U-Haul. In support of its arguments, it offers its single courtroom victory and a bunch of empty words about infringement.

Your use of MOVING HELP® to promote your directly competitive services is likely to cause confusion with UHI’s MOVING HELP® services and as a result constitutes false designation of origin and trademark infringement under section 43 of the Lanham Act, 15 U.S.C. § 1125. The standard for infringement and false designation of origin will undoubtedly be satisfied: The relevant public will believe that there is some connection between the services offered by eMove, Inc. under the MOVING HELP® mark and the services offered by you through your website.

Your conduct also clearly violates the Anticybersquatting Consumer Protection Act, 15 U.S.C. § 1125(d), which prohibits using or registering a domain name confusingly similar to the trademark of another person. Again, the standard for cybersquatting will clearly be met: You have taken a competitor’s trademark (MOVING HELP®) and used it as a domain name (www.veteransmovinghelp.com) to drive customers to your website to promote your directly competitive services. This is the very kind of conduct the Anticybersquatting Consumer Protection Act is designed to stop.

These legal salvos make several assumptions -- far more assumptions than any morons in a hurry would. Getting help moving necessitates the use of the words "moving" and "help." Sledge's use of the words is merely descriptive of the services offered. There is zero chance a consumer would think Sledge's site is affiliated with U-Haul, especially if they come across his very reluctant recommendation of U-Haul as a moving service.

Sledge's use of the URL for a business with actual customers undercuts the "cybersquatting" accusations. Cybersquatting laws were put in place to prevent speculative purchases of domain names. They weren't erected to prevent multiple companies in the same business from using similar descriptive terms in their URLs.

Then the letter gets to the point: putting the "threat" back in "legal threat:"

Enclosed is an article from Juris Discourse, which highlights the efforts UHI and eMove are willing to undertake to end misuse of their MOVING HELP® trademark and other intellectual property. As you can see from this article, we engaged in a contentious, expensive and time-consuming two year battle, obtained a significant payment, and forced HireAHelper to stop using our trademarks. I am sending this article to you so you understand the consequences of your improper use of MOVING HELP® on your website.

It isn't the victory U-Haul makes it out to be. There was much more in play than incidental use of terms U-Haul managed to secure trademark protection for. The target of that lawsuit - HireAHelper.com -- still exists and is presumably solvent, seven years after U-Haul's "significant" win. U-Haul's counsel also provides a list of websites it has bullied out of existence. Again, this is evidence of nothing. It doesn't shore up its weak claims. All it does is show it's a successful bully. "Might makes right" isn't a credible legal argument and I'm sure U-Haul is hoping for a quick acquiescence rather than actually having to make supportable claims in front of a judge.

The threats continue:

Should we be forced to pursue this matter further, UHI will seek treble damages, attorneys’ fees, and an accounting of all revenues and profits you have derived from your use of the MOVING HELP® trademark as well as preliminary and permanent injunctive relief and money damages.

No one's forcing U-Haul to "pursue this matter further," not even Sledge's refusal to hand over his website nor his angry post on Facebook. U-Haul has zero obligation to pursue this legal threat. Its stupid trademarks aren't going to lapse into unenforceability if it fails to bully a veteran into giving up his livelihood. The onus is on trademark owners to protect their trademarks, but that doesn't equate to scouring the web for common English terms and threatening site owners who have never attempted to portray their offerings as anything more than moving assistance services completely unaffiliated with any nationwide moving company.

U-Haul may have been a successful bully in the past, but it's made a serious mistake targeting a company run by a military veteran that provides jobs to other veterans. Nothing pisses people off more than a large corporation trampling all over the little guy just because it has the liquidity and a large staff of lawyers to do so. They tend to like it even less when the "little guys" are men and women who have served their country.



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Revealed: Vietnam's 10,000-Strong Internet Monitoring Force, Tasked With Stamping Out 'Wrongful Views'

do, 01/04/2018 - 04:50

Over the years, Techdirt has published quite a few stories about Vietnam's moves to stifle dissent online. On Christmas Day, Colonel General Nguyen Trong Nghia, deputy chairman of the General Political Department of the People's Army of Vietnam, revealed that the country had secretly created a massive Internet monitoring unit called "Force 47":

Nghia said the special force tasked with combating wrongful information and anti-state propaganda is called the Force 47, named after Directive No. 47 that governs its foundation.

The team currently has more than 10,000 members, who are "the core fighters" in cyberspace.

The three-star general underlined that members of this team are "red and competent," implying that they have both technology expertise and good political ideals in addition to personality.

As Tuoi Tre News reports, Force 47 is tasked with fighting "wrongful views". Bloomberg points out some recent moves by the Vietnamese authorities to police the online world:

Facebook this year removed 159 accounts at Vietnam's behest, while YouTube took down 4,500 videos, or 90 percent of what the government requested, according to VietnamNet news, which cited Minister of Information and Communications Truong Minh Tuan last week. The National Assembly is debating a cybersecurity bill that would require technology companies to store certain data on servers in the country.

The Wall Street Journal notes that heavy sentences have been imposed on people for using the Internet to spread some of those "wrongful views":

In recent months, the country has increased the penalties for anyone using Facebook as a platform to attack the government. In November, a young blogger was given a seven-year prison sentence for "spreading propaganda against the state," while a well-known environmentalist, Nguyen Ngoc Nhu Quynh, was handed a 10-year sentence on the same charges in June.

Vietnam is hardly alone in wanting to censor online content on a massive scale. As well as the obvious example of China, Germany, too, now requires Internet companies to delete "hate speech". In addition, the UK is threatening to impose tax penalties on companies that don't take down "extremist" material. In order to meet these global demands for rapid and even pre-emptive removal of material, the leading online companies are taking on thousands of people as in-house censors. Both Google and Facebook have promised to increase their "safety" teams to 20,000 people. Against that background, it's hard for the West to condemn Vietnam's latest moves without appearing hypocritical.

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



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