Marietje Schaake, a member of the European Parliament often credited as one of the most tech savvy (and, yes, a regular Techdirt reader) has penned an excellent article, In defense of digital freedom. It's well worth a read, even if it covers many things that regular readers of the site will be familiar with. The key point it makes, however, is that we shouldn't be frightened by all the "cyberwar" FUD out there, which is designed to get us to give up our ideals on internet freedom. It discusses how much hype there is around "cyber" everything, nearly all of it trying to scare people. She admits that there are real threats, but those driving the discussion seem to have little interest in parsing them out from the hype and bluster. She notes that, in this rush for new laws, we seem to ignore that existing infrastructure can actually handle most of the actual problems. The good news is that we don’t need ‘cyber democracy’ to guarantee ‘cyber security’. In most cases the foundations for resilience are already in our existing laws and regulations. Technologies are an essential part of our daily lives, businesses, education, cultural experiences and political engagement. As a result, resilience and defense need to be integrated and mainstreamed to strengthen both freedom and security.

[....] To prevent fear, hype and incident-driven policies and practices, knowledge, transparency and accountability are needed. Let us not make ‘cyber’ into something completely different, alien or spacy. But rather, let us focus on integrating technological developments in a way that allows us to preserve core (constitutional) principles, democratic oversight, and digital freedoms as essentials in our open societies. She also notes that much of the hype may be driven by companies and politicians who benefit from such hype, driving new business to companies and passing new laws that give politicians more power. But, she notes, if we make policy based on those two drivers, internet freedom will certainly be put at risk. The unintended consequences are pretty clear: US government has stated that American made, lawful intercept technologies, have come back as a boomerang when they were used against US interests by actors in third countries.

Other companies, such as Area Spa from Italy designed a monitoring centre, and had people on the ground in Syria helping the Assad government succeed in anti-democratic or even criminal behaviour by helping the crackdown against peaceful dissidents and demonstrators. One key point she makes is that we need to have a fact-based, careful look at the issues, in which we avoid conflating very, very different things (i.e., random hacking with "war"). To avoid a slippery slope, clear distinctions between various crimes and threats are needed. Economic damage as a result of criminal activity should render a different response than a state-led attack posing national security threats. Yet, at the moment, at least in the public debate, the distinction between various cyber threats is very unclear. Uncertainly can make people feel vulnerable, while it is internet users and citizens that need to be informed and empowered. We need to build resilient and educated societies instead of installing fear.

States also need to prioritise in their partnerships, and look for consistency of actions by different government departments. Recently, the United States chose to sign a bilateral agreement with Russia on combatting Intellectual Property Rights infringements. The agreed cooperation seems in direct contradiction with objectives of the State Department in the field of internet freedom. In Russia, a newly adopted law gives the state the authority to use Deep Packet Inspections in internet traffic. There's a lot more in the piece as well, and I think many of our readers will find it quite interesting. It's always nice to know that there are some elected officials in the world are trying to base key policy decisions, including those around internet freedom, on reality rather than fear and hype.

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Unless, like me, you are looking at the release dates for the next generation of gaming consoles the way a starving hyena watches an approaching gazelle that's been eating nothing but butter for weeks, perhaps you're not up on all the information coming about regarding Microsoft's next console. Actually, as I'll discuss in a moment, even if you are paying constant attention, you probably still don't know a whole lot for sure. See, after months and months of speculation on possible features of the next Xbox, Microsoft stupidly decided to not firmly address any of that speculation at the release event for the Xbox One. The most troublesome in terms of bad press have been rumors about online connection requirements and how used games would be handled. I say press, but perhaps I should rather say non-mainstream press, because it's really been the smaller blogs and citizen journalists that have produced a roundly negative buzz for the Xbox One.

You would think that in a negative and uncertain climate that's been brewing for the past several months, Microsoft would use the official release press event as a way to clear all of this up. Good answers or bad answers, it's important that the public and the press have a firm understanding on what to expect out of the console. Aren't we constantly told that uncertainty is four letter word in economics and business? That's why it's so curious that Microsoft appears to have provided very little in the way of answers and what answers it has chosen to supply have been both contradictory and confusing.

So, let's take the two issues in order. First up is rumors about online requirements. It turns out that the detail we were murkiest about was the one Microsoft themselves are the murkiest about. The official Microsoft party line on the day the company revealed the Xbox One: "It does not have to be always connected, but Xbox One does require a connection to the Internet." Welcome back. I say that because I assume you just spent the past fifteen minutes rereading that last sentence over and over again trying to figure out what the hell it means. As it turns out, the key word is "always." The Xbox One will require an internet connection at certain points, but it won't need to constantly be connected to function. So, what are those certain points? Well, nobody, including Microsoft, seems to know, which is strange of them to admit since it's their nun-punching freaking product. Microsoft executive Phil Harrison told Kotaku that he "believes" a connection is required once every 24 hours. Oh, and possibly one is needed in order to play a new game for the first time. Also when you first use the console. The lack of finality in these answers is astounding, particularly coming from a Microsoft executive giving interviews at the release event. Imagine going to your local auto show and having a Ford Motor VP telling you how wonderful their new car is, but can't firmly answer any questions about its motor or how many miles-per-gallon it gets?

And with the question of used games, we do no better. Harrison told one reporter: "We will have a system where you can take that digital content and trade a previously played game at a retail store. We're not announcing the details of that today, but we will have announced in due course." Then told another: "We will have a solution—we're not talking about it today—for you to be able to trade your previously-played games online." What you immediately notice is not only the lack of any specifics to one of the major questions hanging over the console like a set of rain clouds, but even these two non-answers are different. The first talks about used games being traded at retail stores, while the second seems to mention trading games online. That'd be a huge development if true, with some kind of Microsoft online trading platform threatening GameStop and other used game retailers. Speaking of which, reports are already surfacing that Microsoft is requiring agreements limited to select retailers to actually be able to buy and sell used games. If those reports are accurate, trading games will only be possible through those select retailers and the game publisher and Microsoft will take a massive cut of the transaction, leaving retailers with very little margin. The end results of this setup will be higher prices for used games and the inability for gamers to trade games with one another.

Still, as bad as that would be, Microsoft hasn't even officially confirmed that program either. Between that uncertainty and that of online connection requirements, it's no wonder the general public hasn't been keen on the Xbox One release yet. There is a market, sadly, for the kind of walled gardens and restrictive requirements discussed above. Apple's mobile devices prove that. But where Apple officially and boisterously owns those concepts, Microsoft's opaque stance on these questions can only mute any release buzz for their new console. It's high time the company got everyone on message.

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We've already written about how the DOJ has a bit of history of spying on journalists' phone records without following the rules, and that was only scratching the surface. On Monday we showed that to be the case with the revelation about the questionable spying on a Fox News reporter. The DOJ didn't just spy on him, but also suggested he was a co-conspirator, for merely doing basic journalism. Over at Mother Jones, Julian Sanchez has an article, which was written prior to the revelation about Rosen, but talking about how everyone claiming that the DOJ's actions with the AP are "unprecedented" are probably wrong. The Justice Department has a variety of loopholes it can jump through to claim spying on reporters is legal. Often, this seems to happen because the FBI/DOJ seem to believe that they get to interpret the rules however they want to interpret them with little or no oversight: Only in January 2009 did the FBI think to ask the Justice Department's in-house lawyers whether the press restrictions apply when reporter records are obtained through indirect means such as community of interest requests. Government lawyers said yes, but the FBI concluded it didn't have to tell the press in the specific case it had inquired about, because agents had not "understood at the time the subpoenas were issued that the subpoenas called for reporters' records." As he points out, the real story around all of this might not be the "unprecedented" nature of spying on reporters, but rather how common it is, without anyone knowing that it's happening (and while the DOJ's publicly stated rules suggest that this kind of spying won't happen). The real scandal may be just how much snooping on the media the current rules permit. To fully understand the AP seizures, the media and the public need a clearer picture of the rules governing all forms of spying on media—and how often such info-grabs have happened. Maybe the seizure of AP records is an extraordinary case. Or maybe the only extraordinary thing is that we're hearing about it. So, instead of being outraged about just how unprecedented these events appear to be, perhaps we should be outraged over how common they probably are -- and how the DOJ appears to have a totally cavalier attitude towards spying on journalists.

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Making your own carbonated soft drinks has a few benefits -- from knowing where all the ingredients came from (eg. no brominated vegetable oil) to getting the satisfaction of creating your own custom flavoring. It's not quite as simple as punching a button on a vending machine, but it's not exactly rocket science, either. Here are just a few links on being your own soda jerk.

• Sodastream has been around since 1903, but it went public on the Nasdaq in 2010 and started expanding its DIY soda making system to take on the big soft drink makers. But marketing itself as an alternative isn't always easy, and it had to change its 2013 SuperBowl commercial to remove Coke and Pepsi logos. [url]
• The secret recipe for a can of Coca-Cola isn't just getting the mixture of caramel coloring and phosphoric acid right; there are also a zillion other details from packaging and distribution that have been optimized. The top of the aluminum can is actually a different aluminum-magnesium alloy from the rest of the can, engineered so it can have a pop-top and still withstand the pressurized contents. [url]
• When making your own soda, be sure to use 100% essential food oils that are rated food grade. Recipes to make Open Cola and the "original" Coke are available, but there's a bit of set up involved. [url]

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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During the course of President Obama's administration, he has gone back and forth over support for the WIPO treaty for the blind, which would make it easier for vision impaired people to get copies of books that they can read (allowing legally made copies to be shared across borders). It's a pretty simple proposition, and while the White House had announced support for the agreement back in 2009, the people who were responsible for that position were later replaced by content industry folks, who suddenly changed the administration's position on the treaty. Since then, the administration has been responsible for blocking the treaty from getting done. And, of course, we've seen the MPAA celebrate this lack of a treaty, because it sees any attempt to negotiate a treaty that includes "exceptions" to copyright (i.e., rights of the public) expanded as a problem.

With the next round of negotiations set to take place soon in Morocco, a "We the People" petition has been set up to ask President Obama to side with the blind, rather than the MPAA. Less than 1% of printed works globally are accessible to the blind. This is because laws around the world bar printed material from being turned into formats useable by the blind and visually impaired, or for such material to be shared across borders.

That’s why 186 countries will soon convene in Morocco to finalize a Treaty that would empower the world’s nearly 300 million blind citizens with the same rights to read, learn, and earn that the sighted enjoy. However, huge and powerful corporations – many wholly unaffected by the proposed Treaty – are working to fatally weaken it or block its adoption.

Ask the President to compel US negotiators to fight for a strong Treaty that gives blind people equal access to books and doesn't burden those who want to provide them. Please sign today! It may be difficult to get to 100,000 signatures, but We The People petitions have previously been successful in getting the administration to come out against SOPA and against the Library of Congress' decision to say that unlocking mobile phones is a form of copyright infringement.

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Here's a wacky one. Blogger Mark Reinhardt, who blogs about Idaho, had written a blog post critical of local TV station KTVB and its news reporting. With it, he included a YouTube clip of the reporting in question, along with some of his own commentary about why the reporting was "one sided journalism." While the disclaimer he posted with it, which implied that he believed the use was fair use, was legally meaningless (and slightly incorrect), using a news clip and commenting on it is still a classic form of fair use. Either way, KTVB claimed the video and had YouTube take it down, saying it was infringing. Whether or not it was actually infringing is actually not a huge part of the issue, because what happened next was interesting.

Mark Reinhardt remembered that, last year, KTVB had used one of his videos to illustrate a story. Amazingly, they didn't even credit it to him, but generally to "YouTube." So, he went tit for tat, and sent KTVB an email demanding that they remove his video (or, that they properly credit him). There are, of course, a number of legal problems with his particular notice. It does not meet the requirements of a proper DMCA takedown notice (not even close). Also, while he's emailing KTVB, he only provides them with a YouTube link, rather than the link of the story. If he wants the video taken down from YouTube (unlikely, since it's his video), then he needs to alert YouTube. If he wants it off of KTVB's site, then he needs to file a compliant DMCA notice pointing to the KTVB story. Of course, KTVB would have a number of reasonable defenses (including fair use and implied license, given that the video was on YouTube with embedding enabled).

Either way, it does seem rather interesting that the news channel issued a takedown on his use of their video, when it had no problems running one of his videos without credit.

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It looks like the bill for Prenda Law is going up. Yet another court has now awarded attorneys' fees, telling "AF Holdings" (one of Prenda's shell companies) to pay $9,425. Of course, since Prenda still tries to deny that it controls AF Holdings, I'm sure they'll try to avoid paying up. It would be extra amusing if they suggested Alan Cooper should pay up, since that's the name that was signed on various AF Holdings' filings, but which many people believe was really signed by John Steele. Of course, since that whole "faking the name" thing flopped, it's now been Mark Lutz -- former paralegal/lackey of John Steele -- who has been "named" as the boss of AF Holdings. So, it sounds like Lutz should pay this one... Now the question is how long does it take Lutz to realize that Steele, Hansmeier and Duffy will probably leave him hanging out to dry as well?

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Assuming you haven't been under a rock, there's a decent chance that you've seen astronaut Chris Hadfield's rendition of David Bowie's Space Oddity (with the lyrics conveniently changed to skip the whole dying in space part). The video was released just before Hadfield returned to earth, and completely fit with Hadfield's time on the International Space Station, where he became the world's first serious social media expert from space -- tweeting, Tumbling and YouTubing up a storm. But... filming a cover song and releasing it via YouTube from space had some people wondering: can you untangle the copyright issues here? Thankfully, Glenn Fleishman dug in over at the Economist (which, lamely, still refuses to name their writers, but now provides the "initials" of bloggers, so you can parse out who's who), and explained what a fine mess it is.

The punchline here is that it doesn't really matter, because after a bunch of back and forth negotiations, they got all the permissions they needed directly from David Bowie. But, assuming others start going up into space (yay, private space tourism), this issue is going to be raised sooner or later. Glenn points out that it's kind of messy, because different countries have very different compulsory licensing laws for cover songs, and there are no compulsories for sync licenses, which are needed to put the song to a video. There was also the issue of the International Space Station having different sections "owned" by different countries, and the official agreement says that it matters where creation happens -- so if the video had been done in all different parts of the space station, it potentially could have been a mess (though, it looks like it was all filmed in parts owned by NASA).

While there's no issue with this specific case, Glenn alerts us to a paper from a few years ago that lays out how copyright in space is about to get complicated: The copyright issue may seem trivial, but the emergence of privately funded rocket launches, space tourism and space exploration hold the potential for more substantive disputes. If an astronaut were to travel to the Moon, an asteroid or Mars on a privately funded spacecraft, the situation would become knottier still, because the United Nations Outer Space Treaty of 1967 applies to countries, not companies or private individuals. J.A.L. Sterling, a London-based expert on international copyright law, anticipated all this in a 2008 paper, "Space Copyright Law: the new dimension", in which he lists dozens more potentially problematic scenarios that could arise, some seemingly risible at first. He asks what would have happened if, on a moon landing broadcast live by NASA across the world, two astronauts were overcome by emotion and burst into song—one covered by copyright. NASA might still be engaged in litigation 40 years later. More prosaically and immediately plausibly, Sterling considers space travellers who put copyrighted material from Earth on a server reachable from space, or engage in rights-violating "public performances" for crewmates. If the first person to walk on Mars decides to launch into "A Whole New World", the rights will need to have been cleared with Disney first. Yeah, remember Rob Reid's funny sci-fi novel about copyright in space? Perhaps, like many sci-fi books, it will eventually turn out to be an accurate prediction of the future.

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Leonard Barshack, who founded BigFoot, which was a (quite popular) internet forwarding mailing service in the dotcom era, has apparently sued Twitter for taking away his username, @SunValley and giving it to the Sun Valley resort. Barshack, who lives in Sun Valley, Idaho, claims that taking away his username was a violation of Twitter's policies, because he didn't really violate Sun Valley's trademark. As Eric Goldman notes, this lawsuit has little likelihood of succeeding. Twitter claimed that the combination of using the name @SunValley with a sun logo similar to Sun Valley's, was a non-parody impersonation of the trademark holder.

Reading through the actual filing, Barshack, who is represented by his wife, Erin Smith, who also is a plaintiff, focuses on the fact that Sun Valley doesn't indicate on its website that its logo is covered by trademark. That's about as close to meaningless as you can imagine. Not only do you not have to show that it's a registered trademark, you don't even need to have a registered trademark (though, it helps if you're seeking damages) because common law trademarks are perfectly acceptable in most cases.

But, more to the point, Twitter has no legal obligation to let you keep your account. If it wants to take away the account and shut it down, it can. If it wants to change the name of your account, it can. I just don't see what the purpose of the lawsuit is, other than that Barshack is upset. I can understand that, and I might even agree that Twitter could and should handle disputes like this differently, but that doesn't give him any basis at all for a lawsuit. Not liking something that a company does isn't a reason to sue.

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5/24/2013 Author:  Jens-Henrik Jeppesen CDT Position Paper on The Treatment of Pseudonymous Data Under The Proposed Data Protection Regulation Consumer Privacy International More Issues in Consumer Privacy

For nearly 18 months, European politicians and officials have been deep in debate on the proposed Data Protection Regulation. The discussion has been heated and at times controversial, with keen participation by companies, civil society, data protection authorities, and governments – from the European Union and beyond. Currently, Members of the European Parliament face the difficult task of assessing several thousand proposed amendments to the original proposal, and representatives of Member State governments try to work out how differences in rules and practices across the 27 countries can be reconciled.

CDT has contributed actively to this debate. In our initial analysis of the DPR, we stated our strong support for the Commission’s proposal, and suggested a number of areas for further work. In particular, we highlighted The Right To Be Forgotten as a provision that requires further attention, and earlier this month, we brought out an in-depth examination of the issue. 

Now, CDT addresses another central issue that has emerged in the debate on the DPR: Pseudonymous data. The broad question is, whether data held by data controllers that do not readily identify individuals should be subject to less stringent obligations than information which relates directly to an individual. Viviane Reding, the European Commissioner responsible for the DPR, has discussed the issue in recent speeches, and has argued that it makes sense to encourage data controllers to use pseudonyms rather than actual names.

In our paper, CDT sets out our views on how the concept can be made operational in the context of the DPR. Like Commissioner Reding, CDT has argued that the Regulation should be formulated to incentivize companies to keep data in less readily-identifiable forms, and different treatment of pseudonymous data does make sense in certain cases. At the same time, we believe that the definition and rules for the processing of “pseudonymous data” must be carefully constrained so that this exception does not swallow the rule that citizens have a right to the protection of their personal — including pseudonymous — data.

CDT’s paper suggests approaches to determining what constitutes pseudonymous data, and which types of such data could qualify for less stringent rules under the DPR. Key criteria are the ease with which a pseudonym may be tied to a real-world identity, and whether the pseudonym can be considered persistent and universal. We also discuss the obligations that different categories of data should carry. For some pseudonymous data sets it may be reasonable to limit obligations such as access rights and data portability. Equally, in cases of data breach the obligation to notify the data subject may not apply, but only if the data cannot reasonably be tied to particular individuals.

Pseudonymous data involve some difficult and complex issues, and the discussions among Members of Parliament, Member State and Commission officials will continue for some time. We hope the paper helps illuminate the central questions and move the debate forward.

While we realize that the intricacies of IP law (and its often-attendant ridiculousness) can be rather difficult for the average, uninterested person to parse, it's really not asking too much to expect large international news agencies to make an effort to get the terminology right.

As you recall, Kim Dotcom recently announced he holds a patent for two-factor authentication, which he then waved in the direction of other internet titans like Twitter and Google, promising not to sue in exchange for contributions to his legal defense fund.

Here's how AFP (Agence France-Presse), the third-largest news agency in the world (and one of the oldest) titled its coverage of the Dotcom/patent story: Kim Dotcom might sue Twitter, Google and Facebook over copyright infringement.

Congratulations, AFP. The headline sounds like Facebook itself wrote it, using machine learning to gather IP-related flotsam from the feeds of millions of teenagers, each one bragging about trademarking their copyright on some catchy phrase they misheard on Twitter ("Be careful talking when you have a mouthful of glass") and regurgitating its findings in 40-pt font across the top of Raw Story's piped-in news selection.

The story reiterates the "copyright" claim in the opening paragraph. Internet mogul Kim Dotcom said Thursday he was considering taking legal action against tech giants such as Twitter, Google and Facebook for infringing copyright on a security measure he invented. Then it quotes Dotcom tweeting about his patent and even remarks on the fact that Kim posted a patent approved in 2000 as proof. But, even with multiple chances to rescue this story from the unfortunate headline, AFP continues down its chosen path. Dotcom said he had never sought to enforce copyright on his invention but was now reconsidering in light of the US case accusing him of masterminding massive online piracy through his now-defunct Megaupload file-sharing site. Now, the hypothetical teens used above can be excused their (hypothetical) ignorance. But a news agency, especially one of AFP's size and longevity? Not a chance. It's especially inexcusable when AFP seems to know the correct terminology when its suing Google for linking to its stories or suing a photographer whose photographs it used without permission. (No, you read that last part right.)

Perhaps AFP truly doesn't understand the definitions and limitations of various IP protections. It certainly doesn't seem to be too well-informed in the linked stories. Maybe AFP views all IP terms as interchangable. It may be striving to know just enough to be dangerous, but to date, it only seems to have gathered enough knowledge to injure itself.

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While Brett Gibbs has "parted ways" with Prenda and its copyright trolling, from all appearances he was an instrumental part of many of its efforts. Of course, the three main players, John Steele, Paul Hansmeier and Paul Duffy, were quick to throw Gibbs under a bus in Judge Wright's courtroom after Gibb's repeatedly told courts that he was little more than a puppet for Steele and Hansmeier. In Judge Wright's order, however, he lumped Gibbs in with Steele, Hansmeier and Duffy as being jointly and severally liable for the amount owed.

While Judge Wright's most recent order told Gibbs to officially withdraw from the cases, it doesn't mean that Gibbs has been let off the hook for payment. In response, it appears that Gibbs is basically begging Judge Wright for mercy, highlighting that he's completely broke and has expensive medical bills due to his brain cancer. It is a sob story, and you do feel bad for the guy... but then you remember some of his actions during the course of all of these cases, including more than a few absolutely ridiculous claims and tactics in this case and in how he dealt with opposing counsel. And, of course, there's the fact that he was involved in an operation that is being widely accused (by a federal court judge, among others) of perpetrating a massive shakedown scheme, threatening people with a lawsuit for gay porn if they don't pay up.

Yes, it's sad that Gibbs got brain cancer. I don't wish that on anyone. And it's sad that he's got less than $500 in his bank account and over $50,000 in debts. But, perhaps he should have thought of all of that before getting involved in a scheme that threatens thousands of people with highly questionable lawsuits if they don't pay up. Still, the main targets of Judge Wright's focus are clearly Steele, Hansmeier, and Duffy, so it'll be interesting to see if he agrees to let Gibbs off the hook in some manner.

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This week at CTIA 2013, FCC Commissioner Jessica Rosenworcel presented ten ideas for spectrum policy. Though I don’t agree with all of them, she articulated a reasonable vision for spectrum policy that prioritizes consumer demand, incorporates market-oriented solutions, and establishes transparent goals and timelines. Commissioner Rosenworcel’s principled approach stands in stark contrast to the intellectually bankrupt incentive auction recommendation offered by the Department of Justice last month.

Commissioner Rosenworcel clearly defines three simple goals for a successful incentive auction:

• Raising enough revenue to support the nation’s first interoperable, wireless broadband public safety network;
• Making more broadband spectrum available through policies that are attractive to broadcasters; and
• Providing fair treatment to those broadcasters who do not wish to participate in the auction.

All three goals are consistent with consumer demand for wireless broadband services, the market-oriented reassignment of broadcast spectrum envisioned by the National Broadband Plan, and the will of Congress.

In comparison, the DOJ’s recommendation focuses on only one goal: Subsidizing two particular companies – Sprint Nextel and T-Mobile – to ensure they obtain spectrum in the auction. The DOJ claims these subsidies are necessary to promote competition. But, there is a substantial difference between fair government policies that promote competition generally and a policy of favoring foreign-owned companies over their domestic competitors.

Unfortunately, the DOJ is not alone in its belief that bestowing government benefits on favored companies is a legitimate goal in a free society. Some members of the House Commerce Committee believe the DOJ’s past merger reviews provide “a solid factual and analytical basis” for its current recommendation to the FCC.

The fatal flaw in this theory is that the DOJ’s recommendation to the FCC is inconsistent with the factual findings and analysis of the DOJ in its past merger reviews. As I’ve noted previously, in its complaint against the AT&T/T-Mobile merger, the DOJ found that, “due to the advantages arising from their scope and scale of coverage,” Sprint Nextel and T-Mobile are “especially well-positioned to drive competition” in the wireless industry. That finding doesn’t provide any factual or analytical basis whatsoever to conclude that Sprint Nextel and T-Mobile require special government treatment in the incentive auction in order to compete with Verizon and AT&T.

That’s why the DOJ recommendation relies on an irrational and discriminatory presumption that Verizon and AT&T are using spectrum less efficiently than Sprint Nextel and T-Mobile. A speculative presumption doesn’t require the DOJ to admit its own deceit. It merely requires audacity.

In an era when government officials routinely revise the facts to suit their preferred outcomes and disclaim responsibility for the actions of the agencies they’re charged with leading, Commissioner Rosenworcel’s speech required intellectual bravery and political courage. Her ideas deserve a fair hearing.

Citizens recording police activity often find their subjects in no mood to be photographed. These amateur photographers/filmmakers are threatened, attacked or dragged to the nearest police station and booked, using charges like "interference" or "disorderly conduct" or "walking in an alley" to make sure they don't walk away unintimidated.

A new thought process seems to be taking hold, however. As we covered a few weeks ago, police officers are now trotting out the bizarre theory that the cell phone filming them might be a weapon. Photography Is Not A Crime has rounded up another instance of a cop playing the "cell phone=gun" card in order to prevent being recorded. A California cop who was being video recorded by a smartphone said she was in fear for her life because the phone could have possibly been a gun, marking at least the fourth time this year a cop in this country has uttered those nonsensical words.

The trend of insinuating cell phones can be guns began earlier this year when Juan “Biggie” Santana had his Sony Bloggie confiscated by Hialeah police officer Antonio Sentmanat in South Florida.

It continued when San Diego police officer Martin Reinhold slapped a phone out of Adam Pringle’s hands and arrested him while writing him a citation for smoking a cigarette on a beach boardwalk.

Then again in Arkansas when a cop ripped an iPhone out of a man’s hands who had been trying to document the Exxon oil spill outside Little Rock.
It certainly hasn't reached epidemic levels yet, but the argument seems to be increasing in popularity. The story we covered contained a statement by the police officer that indicated this new "cell phone=gun" logic is part of the training process.

Now, it's not entirely impossible to make a weapon shaped like a cell phone. It's just highly unlikely. PINAC's article contains a video of a cell phone/gun, but it seems to require a bulky, out-of-date antenna to hide the barrel. The weapon exists (or existed), but it (or any knockoffs) never made an appearance here in the US. [T]hat weapon never even made it to the United States, according to ExCopLawStudent, a former cop turned law student who firmly believes in the right of officers to ensure their safety, but who also understands police paranoia doesn’t override the Constitution.

In 2000 or 2001, police in Europe discovered a four-shot gun disguised as a cellphone. Since then police officers in the United States have claimed on multiple occasions that civilians who were recording video with their cellphones had to put the phone down. Why? Because it could be a weapon.

Geez, guys, you’re killing us. There have been no cellphone guns recovered in the United States, according to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. None. Zero. Nada. Zilch.

In addition, there are exactly zero court cases that discuss the issue. As a matter of fact, there is nothing in the legal world that discuss the issue. No law review articles, no trial or appellate briefs, nothing. So, the threat of a weaponized cell phone is hovering at zero, or close enough to it to be laughable when a law enforcement officer uses this "danger" as an excuse to prevent being recorded. Even the supposedly trained-in-the-art-of-phoneguns cops don't take the argument seriously. Or at least no more seriously than the TSA agents who are instructed to consider 3 ounces or less of a liquid "safe," ignoring the fact that any traveler with opposable thumbs could pour 6 ounces of liquid into two three-ounce containers and sail right through the checkpoint with a "dangerous" amount of contraband. [I]f Detective Shannon Todd of the Newark Police Gang Unit was really so stupid to believe that the phone could have been a gun, then why did she first order the citizen to place it back into his pocket? The rhetoric is used solely to shut down filming. If this was an actual weapon, one presumes it would be confiscated and the carrier arrested, or at least detained until proper paperwork was produced (cell phone bill?). This also conveniently ignores the fact that many everyday objects that people carry around have also been converted into weapons at one point or another.

The only threat a cell phone presents to an officer making this assertion is the possibility of public embarrassment. I suppose we should be happy that these officers are at least going above and beyond the "you can't film me" argument and showing a little creativity in their shutdowns of amateur policewatchers. But this one crosses the "fine line between clever and stupid" and just keeps running.

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To protect themselves against excessive monitoring, security exploits and ISP throttling, some BitTorrent users turn to anonymizing services such as VPNs and proxies.

Over the past months interest in these privacy protection services has surged. However, for some less technically skilled people all the talk about privacy settings and IP-leaks may prove to be too much.

The latter group is now catered for by TrafficPrivacy, a new and fully anonymous BitTorrent client that launched this week. Feature wise the client is relatively limited, but unlike others it has a fully configured and dummy proof anonymity option built in. Simply enter your login credentials and everything just works.

“TrafficPrivacy’s mission is to provide users with real 100% protection and anonymity without additional settings, which can be quite difficult for non tech savvy users. That’s why we include protection into a tiny BitTorrent client,” TrafficPrivacy’s Alex told TorrentFreak.

As with other anonymity services a long term subscription to TrafficPrivacy doesn’t come free. The service is currently priced at $6.95 per month, but there is a 7-day free trial available for people who want to give it a spin before committing to it longer term.

Contrary to VPNs or BitTorrent proxies, users will have to swap their current BitTorrent client for the TrafficPrivacy software. This is a deliberate choice from the makers, as it’s the only way to guarantee that all the privacy settings are properly configured.

With Vuze, uTorrent and other clients people often forget to use the right settings or get confused by the terminology, which can result in their true IP-address leaking out. The new client’s goal is to avoid this.

“The target audience for TrafficPrivacy are users who put a lot of value on their safety and anonymity, but do not want to configure all the complicated settings. We want to keep everything as simple as possible and let users feel safe without tinkering with various privacy options in current BitTorrent clients,” Alex says.

TrafficPrivacy BitTorrent Client

One thing to keep in mind is that TrafficPrivacy only offers anonymous BitTorrent transfers. Other traffic, such as that generated by a web browser, will be linked to the user’s regular IP-address. Users can see if anonymity is turned on directly from the client, but it’s always wise to verify it through an external service that checks the BitTorrent IP.

To guarantee the user’s privacy the company says it doesn’t keep any connection logs that can be traced back to individual customers. Also, if the TrafficPrivacy servers happen to go down the client will stop working entirely.

“If TrafficPrivacy server goes down, all downloads stop and it doesn’t leak the real IP-address,” Alex informs TorrentFreak.

The TrafficPrivacy team are no newcomers to the security scene. The new client was developed as part of the existing TorrentPrivacy proxy/VPN service, but when the new client was finished they decided to turn in into a completely new product and a brand of its own.

While TrafficPrivacy might not appeal to all BitTorrent users, its ease of use and simplicity will probably be welcomed by those who are less technically skilled.

Source: TrafficPrivacy Launches Anonymous BitTorrent Client

The RIAA is gearing up for the big copyright reform battle doing the only thing it knows: whining that everyone else won't fix its own broken business model. Despite heavy budget cuts and layoffs, the RIAA hasn't yet realized that singing the same old debunked song isn't a winner. It's claiming that the DMCA's safe harbors are broken and need to be fixed. It's really quite incredible. They talk how they've sent 20 million DMCA takedowns to Google, and then complain that the process isn't working. Seems odd, then, that they would send so many. Perhaps they should have knocked it off earlier, and focused on things like teaching people how to have better business models.

But, that's not how the RIAA functions.

Rather than having a useful employee, like a VP of new business models, the RIAA has a VP of anti-piracy (I actually believe they have a few), and one of them, Brad Buckles, wrote the latest misleading screed against the safe harbors. The short version is basically: everyone else needs to prop up our business models by randomly taking down content that might, possibly be infringing. Of course, this makes no logical sense, no matter how much the RIAA wants to play pretend. Already, we see stories practically every day about how the copyright holders themselves -- including the RIAA -- send bogus DMCA takedowns all the time. And those are the guys who are supposed to know what's infringing.

And yet they magically expect some third party, who has no idea if the content was put up in an authorized manner or not to make that determination for them? Really? Do they not realize (or not care) what a massive chilling effect that would have on innovation? If service providers are required to proactively guess at what is infringing and what's not -- and face liability for guessing wrong -- then the obvious is going to happen: a lot less innovation in any service that includes user generated content. The risk of liability would be way too high. That may not matter to the RIAA, who has never been a fan of the internet, but it sure as hell matters to the public, who has received tremendous value from the internet. I'd also imagine it matters quite a bit to tons of musicians who are not a part of the RIAA machine, who now use the internet to have a better career than they ever had under the old system.

So, here's a suggestion for the RIAA, while they're laying off a bunch of staffers (despite giving boss Cary Sherman a hefty raise to $1.5 million per year). Maybe layoff the "anti-piracy" team -- since clearly that's not working for you -- and hire a "new business model" or "innovation" team, and give them a shot to help your members.

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We found it odd back in February to see Ron Paul try to use the domain dispute process to take over RonPaul.com, a domain that was held by some of his biggest supporters. The folks who had the domain had even offered Paul the RonPaul.org domain for free, since they didn't want to disrupt their existing community, and Ron Paul (or his lawyers) tried to spin that into something to use against them, pretending that it showed malicious intent.

It appears that the whole thing has backfired badly on Ron Paul. He failed in his attempt to seize both domain names and was also found guilty of reverse domain hijacking on the .org account, for filing the demand for it after it had already been offered to him for free.

On the use of the .com, the panel found the following: As Respondent puts it, expressing support and devotion to Ron Paul’s political ideals is a legitimate interest that does not require Complainant’s authorization or approval. Moreover, Respondent’s legitimate interest in the Domain Name is strong because the site provides a place for political speech, which is at the heart of what the United States Constitution’s First Amendment is designed to protect. In this way, the Panel is persuaded by Respondent’s arguments and evidence that Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish any trademark at issue. Moreover, Respondent has submitted evidence that there are multiple, very clear disclaimers on the website to which the Domain Name links, indicating that the site is not Complainant’s official site. In regards to Complainant’s arguments that the website is actually a “pretext for commercial advantage”, the Panel finds the website linked to the Domain Name is primarily a noncommercial service, while the products advertised and sold are ancillary to the site’s primary purpose as a source of news and information about Ron Paul, and serving as political forum. Moreover, Respondent’s use meets the criteria for a nominative fair use, as stated in a number of UDRP cases. Yeah. Ron Paul loses out because the First Amendment is even stronger than he believes it to be. How about that?

The fact that the owners offered the .org for free plays heavily into the decision: Finally, related to Respondent’s second main point, there is no evidence that Respondent has attempted to corner the market of domain names to prevent Complainant from reflecting his alleged RON PAUL mark in a domain name. To the contrary, the evidence indicates that in 2013 Respondent offered to give Complainant the Domain Name for free. And it's this point that leads to the panel saying that Paul was engaged in reverse domain hijacking. Respondent has requested, based on the evidence presented, that the Panel make a finding of Reverse Domain Name Hijacking. In view of the unique facts of this case, in which the evidence demonstrates that Respondent offered to give the Domain Name to Complainant for no charge, with no strings attached, the Panel is inclined to agree. Instead of accepting the Domain Name, Complainant brought this proceeding. A finding of Reverse Domain Name Hijacking seems to this Panel to be appropriate in the circumstances. While this may just make Ron Paul hate the UN even more, perhaps it'll drive home the point that his initial attack on the fan site was ridiculous.

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Well, this is rich. During his talk on Thursday, much of which focused on terrorism and drones, President Obama admitted that he's asked Eric Holder to review the DOJ's process for investigating leaks that involve getting information from journalists: President Obama said Thursday that he is “troubled by the possibility that leak investigations may chill the investigative journalism that holds government accountable.”

In a major speech on national security, Obama said that the “Justice Department’s investigation of national security leaks offers a recent example of the challenges involved in striking the right balance between our security and our open society.” While it's great that he's "troubled," it's not a "possibility" that this is chilling investigative journalism, it's a confirmed fact. Not only that, but many believe that this was actually part of the goal all along. There's been no evidence of any interest in "balance." There has, instead, been what is clearly a concerted effort to intimidate whistleblowers and the press that investigates the federal government. The Obama administration has used the Espionage Act against more cases of whistleblowing to the press than all other Presidents combined. That's not about "striking the right balance." Obama said that “journalists should not be at legal risk for doing their jobs," but that the "focus must be on those who break the law." Oh really? Then why did your own DOJ claim that a journalist was an aider and abettor and/or co-conspirator for reporting on a leak -- just like tons of other reporters?

President Obama sounds like someone campaigning against his own policies. Either Eric Holder and the DOJ have "gone rogue" or the President is hastily pretending that his administration is not doing what it clearly has been doing for years.

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Yesterday, Renai LeMay of Delimiter broke the news that mass piracy lawsuits are headed back to Australia.

LeMay revealed that a lawfirm has written a series of letters to major Aussie ISPs asking that they hand over the personal details of individuals said to have downloaded and shared their clients’ copyright material without permission.

After confirming with several sources, Delimiter revealed that the company in question is Sydney-based law firm Marque Lawyers.

So far, several of the ISPs contacted have informed Marque that they will not be handing over the information requested. In response the law firm said it is considering using the courts to force them to do so.

Delimiter contacted Marque both by telephone and email yesterday morning requesting an interview, but when we spoke with LeMay last night nothing had yet been heard back. However, when that call does come it is likely to be an uncomfortable one.

Yesterday morning, just after the Delimiter article went live, a tipster sent TorrentFreak an interesting document. Titled “It wasn’t me, it was my flatmate! – a defense to copyright infringement?” the paper, a newsletter published by Marque themselves, details the company’s stance on file-sharing accusations.

The paper begins with a potted history of the Joel Tenenbaum case in the United States but gets the facts wrong straight from the beginning.

“You may have heard that the US Supreme Court recently refused to hear the appeal of a college student who was ordered to pay $675K in damages for illegally downloading and redistributing thousands of songs through BitTorrent,” the Marque paper begins, wrongly mentioning BitTorrent and the number of songs in the case.

The company then moves on to the big issue of the day – U.S.-based companies who write to ISPs in the hope of identifying alleged pirates so that cash settlements can be obtained. This is where it gets awkward – really awkward.

Referencing a previous case in New York, Marque notes that a court refused to hand over the personal details of Internet subscribers to the plaintiff.

“The judge, rightly in our view, agreed with the users that just because an IP address is in
one person’s name, it does not mean that that person was the one who illegally
downloaded the porn,” Marque Lawyers write.

“As the judge said, an IP address does not necessarily identify a person and so you can’t
be sure that the person who pays for a service has necessarily infringed copyright.”

The law firm then goes on to back up its assertion with scenarios in which the account holder would not be the infringer.

“For example, in an office or at home, where there is a WiFi connection, only one IP
address will be allocated to that wireless connection. This means that every user of each
device (computer, iPad, iPhone etc) connected to that WiFi connection will use the same
IP address. Even a random passerby accessing the WiFi network would be using the
same IP address,” the company explains.

“This decision makes a lot of sense to us. If it holds up, copyright owners will need to be a whole lot more savvy about how they identify and pursue copyright infringers and, perhaps, we’ve seen the end of the mass ‘John Doe’ litigation,” they conclude.

The big question is whether Marque’s clients have indeed become “more savvy” or whether they still intend to rely on IP address-only evidence. If so, the Marque Lawyers document (which can be downloaded here and also from Marque’s own server) will come in very handy for letter recipients.

If the lawfirm writing the letter doesn’t believe that the evidence is up to much, there’s no reason the recipient should either. A simple denial is going to be difficult to argue with.

Source: IP Addresses Don’t Positively Identify Infringers, Anti-Piracy Lawfirm Says

We were just talking about the third attempt by someone in Congress to deal with some aspect of patent trolling, and already we have a fourth bill. Senator John Cornyn has introduced the Patent Abuse Reduction Act, which has a variety of provisions that would make life slightly more difficult for trolls. Some of what's in the bill has been seen in those other bills, like fee shifting (such that trolls need to pay fees if they lose a case) and identifying who is really behind the lawsuit. As the EFF notes, there's plenty to like about the bill, but like all of the other bills so far, it still seems somewhat narrowly focused, rather than taking on larger problems, like the granting of bad patents by the USPTO. Still, it's good to see that Congress seems serious about dealing with patent trolls, and is actually bringing out bills to deal with the issue. Now let's see if something comprehensive might actually get enough momentum to become law.

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