It all boils down to evidence. If there is no evidence whatsoever, an attentive and diligent judge won’t allow a case assigned to him to linger – he will rule summarily in defendant’s favor. That’s exactly what happened today. An experienced cardsharper Malibu Media (M. Keith Lipscomb) didn’t convince the judge that the proof of infringement (or, more precisely, the lack thereof) elevates to a necessary level of controversy that requires a jury trial.
The most hilarious part is that the defendant wasn’t even represented — he fought pro se instead. This tells volumes about the quality of Malibu’s “investigation” and “proof.” What we witness is a bluff on a massive scale, nothing more.
Canarywatch.org
“Warrant canary” is a colloquial term for a regularly published statement that an internet service provider (ISP) has not received legal process that it would be prohibited from saying it had received, such as a national security letter. The term “warrant canary” is a reference to the canaries used to provide warnings in coalmines, which would become sick from carbon monoxide poisoning before the miners would—warning of the otherwise-invisible danger. Just like canaries in a coalmine, the canaries on web pages “die” when they are exposed to something toxic—like a secret FISA court order.
Warrant canaries rely upon the legal theory of compelled speech. Compelled speech happens when a person is forced by the government to make expressive statements they do not want to make. Fortunately, the First Amendment protects against compelled speech in most circumstances. In fact, we’re not aware of any case where a court has upheld compelled false speech. Thus, a service provider could argue that, when its statement about the legal process received is no longer true, it cannot be compelled to reissue the now false statement, and can, instead, remain silent. So far, no court has addressed this issue.
But if you’re not paying attention to a specific canary, you may never know when it changes. Plenty of providers don’t have warrant canaries. Those that do may not make them obvious. And when warrant canaries do change, it’s not always immediately obvious what that change means.
That’s why EFF has joined with a coalition of organizations, including the Berkman Center for Internet and Society, New York University’s Technology Law & Policy Clinic, and the Calyx Institute to launch Canarywatch.org. The Calyx Institute runs and hosts Canarywatch.org.
Homeland Security Totally Misunderstands Trademark Law; Seizes Perfectly Legal Sporting Goods Anyway
Homeland Security’s Immigration & Customs Enforcement group (ICE) has a history of seizing stuff without understanding even the most basic concepts around intellectual property. After all, these are the same meatheads who seized some blogs for alleged copyright infringement, and then had to return some of them over a year later, after they realized it was a mistake. ICE also has a history of using big sporting events to kiss up to the multi-billion dollar sports organizations by shutting down small businesses, protecting Americans from unlicensed underwear. And, of course, what bigger sporting event is there than the Super Bowl. Every year they make a bunch of seizures related to the Superbowl, and this year was no different.
ICE agents gleefully were patrolling Phoenix looking for clothes to seize. But there was just one, rather large, problem with how they went about it. It appears that the people in charge of all this, didn’t know the first thing about the “law” they were supposedly enforcing. Seizing counterfeits is about stopping trademark infringement. But not everything using a trademark is infringing. Trademark, after all, is a form of a consumer protection law, designed to protect people from buying one thing, believing it’s another. If there’s no likelihood of confusion, then ICE isn’t supposed to be seizing it (and, yes, there is also dilution of trademark, but ICE isn’t supposed to be seizing products that dilute someone’s trademark — just those that are “counterfeit”). But that’s not, apparently, how ICE sees things
Michael Hayden: September 11th Gave Me Permission To Reinterpret The 4th Amendment
Michael Hayden, the former CIA and NSA director, has revealed what most people already suspected — to him, the Constitution is a document that he can rewrite based on his personal beliefs at any particular time, as noted by Conor Friedersdorf at the Atlantic. Specifically, he admits that after September 11th, 2001, he was able to totally reinterpret the 4th Amendment to mean something entirely different:
In a speech at Washington and Lee University, Michael Hayden, a former head of both the CIA and NSA, opined on signals intelligence under the Constitution, arguing that what the 4th Amendment forbids changed after September 11, 2001. He noted that “unreasonable search and seizure,” is prohibited under the Constitution, but cast it as a living document, with “reasonableness” determined by “the totality of circumstances in which we find ourselves in history.”
He explained that as the NSA’s leader, tactics he found unreasonable on September 10, 2001 struck him as reasonable the next day, after roughly 3,000 were killed. “I actually started to do different things,” he said. “And I didn’t need to ask ‘mother, may I’ from the Congress or the president or anyone else. It was within my charter, but in terms of the mature judgment about what’s reasonable and what’s not reasonable, the death of 3,000 countrymen kind of took me in a direction over here, perfectly within my authority, but a different place than the one in which I was located before the attacks took place. So if we’re going to draw this line I think we have to understand that it’s kind of a movable feast here.”
Hollywood’s Release Delays Breed Pirates
Hollywood has a message to all those pirates who keep making excuses to download and stream films illegally.
“You have no excuse.”
The major movie studios have done enough to make their content legally available, launching thousands of convenient movie services worldwide, they claim.
“We need to bust the myth that legal content is unavailable. Creative industries are tirelessly experimenting with new business models that deliver films, books, music, TV programs, newspapers, games and other creative works to consumers,” Stan McCoy noted on the MPAA blog this week.
“In Europe, there are over 3,000 on-demand audio-visual services available to European citizens,” he adds.
So is the MPA right? Is “availability” an imaginary problem that pirates use as an excuse not to pay?
Google Finally Stops Playing Mute On Net Neutrality, Says New Rules Won’t Hurt Google Fiber In The Slightest
While Google was a major player in the net neutrality fight early on, the company performed a stark about-face on the issue sometime around 2010. Google was responsible for co-writing the FCC’s original, wimpy net neutrality rules alongside AT&T and Verizon, which were jam-packed with loopholes and ensured that wireless networks and devices weren’t covered at all. When called out on this, Google pretty feebly insisted they weren’t being inconsistent, though it was clear to most folks that the company had shifted lobbying strategies in the hopes of fostering a better relationship across both sides of the political aisle.
As a result, when net neutrality supporters needed Google the most during the Title II debate, Google remained silent. Recently, when asked about net neutrality during press events, the company simply refused to comment.
Now that the Title II tide has shifted without Google’s help, the company has re-entered the discussion to once again support meaningful net neutrality rules. We noted a few weeks ago that Google told the FCC in a filing that Title-II based rules could actually help their Google Fiber deployment by streamlining the utility pole attachment process. Now in a conversation with the Washington Post, Google has made its clearest public statement in years regarding support for Title II net neutrality rules:
“The sort of open Internet rules that the [Federal Communications Commission] is currently discussing aren’t an impediment to those plans,” Google said in a statement, “and they didn’t impact our decision to invest in Fiber.”
Battle Over Google Subpoena Threatens Critical Online Free Speech Protections
A high-profile battle over whether Google must respond to an unusual and dangerous subpoena raises fundamental concerns about federal free speech law and the protections it affords hosts of online content, the Electronic Frontier Foundation (EFF) argued in an amicus brief filed today.
Attorney General Jim Hood of Mississippi issued the 79-page subpoena in October, seeking information about Google’s policies and practices with respect to content it hosts, Internet searches, and more. The invasive request appeared to be based primarily on allegedly unlawful activities of third parties who use Google’s services. Then in December, journalists reported that documents disclosed in the Sony hack outlined a Hollywood plot against Google, including plans to pressure Hood into aggressively investigating the search engine giant. In the face of these developments, and the Attorney General’s unwillingness to narrow the request, Google sought protection from a Mississippi federal court.
“Despite the dramatic storyline, this all comes down to well-established law protecting hosts of Internet content from liability for much of what their users say and do on their platforms: Section 230 of the Communications Decency Act,” said EFF Intellectual Property Director Corynne McSherry. “If CDA 230 was disregarded, and online service providers were required to respond in full to subpoenas like this one, they would inevitably face extraordinary legal costs. That would be enough for most businesses to get out of the interactive content business all together, as everything from comments on news stories to sharing of home videos could be a recipe for expensive litigation.”
In the amicus brief filed today, EFF argues that Congress’ express intent was to encourage the development of new communications technologies by holding online speakers responsible for what they say—instead of the soapboxes where they say it. It’s a principle that has allowed the Internet and the myriad online communities it contains to thrive.
“CDA 230 is perhaps the most valuable law we have for protecting innovation and online speech,” said EFF Frank Stanton Legal Fellow Jamie Williams. “The Mississippi subpoena is an obvious violation of federal statute, and the court should grant Google the protection that Congress intended.”
US Ambassador: No, net neutrality will NOT allow the UN to seize control of the internet from us
An op-ed in the Washington Post by policy wonk Larry Downes last week argued: “The public utility approach would provide opponents of a free and open Internet ample opportunity to call out US efforts as hypocritical, unnecessarily undermining our authority.”
Comcast also argued in a filing with the FCC that “reclassification could have broader implications globally and weaken the United States’ positions regarding international Internet regulation.” New rules “could undermine the United States’ resistance to greater oversight of the Internet by the UN’s International Telecommunication Union.”
S.F. Cops Arrest Public Defender for Publicly Defending
The officer’s explanation to the lawyer at the time was that if she didn’t stop objecting to what he wanted to do, “I will arrest you for resisting arrest.” That either made sense to him or he just didn’t care. That’s bad either way.
Jami Tillotson is a public defender in San Francisco, and was with a client who was appearing at the courthouse for a misdemeanor theft charge. After the appearance, her client and another man were apparently stopped in the hallway by five police officers, led by Sgt. Brian Stansbury (he’s the one in the suit). Tillotson noticed this and, not surprisingly, came over to find out what was going on.
‘Cause that’s what we do, you know. If we represent someone and notice something that might affect their legal rights—like, let’s say, if they have been stopped by police officers and we happen to be in the area—we like to find out what is going on. It’s actually kind of our job. We might even object, if something’s objectionable. Just FYI.
The facts aren’t 100% clear, but here’s a summary based on the reports and video. Police claim these two guys are “persons of interest” in another crime. The sergeant says he just wants to take their pictures and then they’ll be “free to go.” Tillotson says no thanks, and that’s when he states that “if you continue to do this [object], I will arrest you for resisting arrest.” She says, “please do,” and he does. He then takes pictures of the men as Tillotson is led away in handcuffs, and she spent the next hour cuffed to a wall in a holding cell.
Torture If You Must, But Do Not Under Any Circumstances Call the New York Times
Monday’s guilty verdict in the trial of former CIA officer Jeffrey Sterling on espionage charges — for talking to a newspaper reporter — is the latest milepost on the dark and dismal path Barack Obama has traveled since his inaugural promises to usher in a “new era of openness.”
Far from rejecting the authoritarian bent of his presidential predecessor, Obama has simply adjusted it, adding his own personal touches, most notably an enthusiasm for criminally prosecuting the kinds of leaks that are essential to a free press.
The Sterling case – especially in light of Obama’s complicity in the cover-up of torture during the Bush administration – sends a clear message to people in government service: You won’t get in trouble as long as you do what you’re told (even torture people). But if you talk to a reporter and tell him something we want kept secret, we will spare no effort to destroy you.
There’s really no sign any more of the former community organizer who joyously declared on his first full day in office that “there’s been too much secrecy in this city… Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.”
Instead, as author Scott Horton explained to me a few weeks ago, Obama’s thinking on these issues was swayed by John Brennan, the former senior adviser he eventually named CIA director. And for Brennan and his ilk, secrecy is a core value — partly for legitimate national security reasons and partly as an impregnable shield against embarrassment and accountability.