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Eric Schmidt Still A Fan Of Figuring Out A Way To Erase The Past

Mike Masnick — Wed, 22 May 2013 15:26:41 PDT

Back in 2010, we wrote about Google's Eric Schmidt suggesting that in the future kids might change their names as they reach adulthood in order to disconnect their present-selves from their youthful indiscretions that were recorded permanently online. That seemed a bit silly to us at the time, but Schmidt is still focused on this basic concept apparently. His latest is the desire for some sort of delete button for the internet, again as a way to cover up some youthful indiscretions:

"In America, there's a sense of fairness that's culturally true for all of us," Schmidt said. "The lack of a delete button on the Internet is a significant issue. There is a time when erasure is a right thing."

Of course, this makes me wonder, what the hell did Eric Schmidt do as a kid that was so bad?

Yes, yes, we erase the criminal records of youthful offenders when they come of age, but I think this is something different. Trying to delete factual information from the internet is a quixotic task, unlikely to yield much that's beneficial.

Perhaps instead of trying to delete the past, society as a whole will become a lot more accepting of the fact that kids do stupid things when they're young. And many of them learn valuable lessons from those stupid things and they grow up to be better people. Plenty of folks have funny tales of their youthful indiscretions and, while these stories may be more difficult to embellish for effect if the details are all sitting on YouTube, does it really make more sense to try to delete that history or just to recognize that kids grow up and things they did as teenagers do not reflect how they're likely to act as adults?

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Chinese Hacks Of Google Database Of Surveillance Targets Highlight How Dumb Technology Backdoors Are

Mike Masnick — Wed, 22 May 2013 14:24:41 PDT

We've argued for quite some time that law enforcement's desire to require backdoors for wiretapping in all electronic communications is really dumb, because it won't just be law enforcement using it (and, when they use it, it won't just be for legitimate purposes). As soon as you have that backdoor in place, you've pretty much guaranteed that it becomes something of a target. And the news that broke earlier this week about how Chinese hackers who broke into Google servers a few years ago were targeting their database of which accounts had been flagged for national security surveillance makes this point that much clearer. The people doing this kind of hacking aren't dumb: they know that there are weaknesses where they can probe. A few weeks back, a Microsoft exec had actually revealed that their own analysis of similar attacks on Microsoft's servers from China showed the same basic target and discussed the serious implications.

"What we found was the attackers were actually looking for the accounts that we had lawful wiretap orders on," Aucsmith says. "So if you think about this, this is brilliant counter-intelligence. You have two choices: If you want to find out if your agents, if you will, have been discovered, you can try to break into the FBI to find out that way. Presumably that's difficult. Or you can break into the people that the courts have served paper on and see if you can find it that way. That's essentially what we think they were trolling for, at least in our case."

The more openings and the more data that is shared, the more openings and opportunities there are for people who you don't want to see that data to have access to it. That should be a major concern. Just before all of this was revealed, we had written about a new report how such backdoors basically destroy any competent attempt at cybersecurity. Julian Sanchez highlights how those who think this isn't a problem are almost certainly confused about how computer security works.

Defenders of the FBI proposal tend to pooh-pooh security concerns raised about requirisng such backdoors: Our brilliant American programmers, they assert, will find ways to enable wiretapping without creating new vulnerabilities. But if a company like Google, with its massive financial resources and a stable of some of the smartest coders anywhere, can be victimized in this way, how realistic is it to expect thousands of Internet startups to achieve better security?

Creating more access to information that should be secret might help law enforcement, at the expense of our civil liberties, but it's also going to help those with nefarious intent quite a bit. And that should be a serious concern.

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Released Video From Silva Beating Shows His Last Moments; Video Of Actual Beating Still Missing

Tim Cushing — Wed, 22 May 2013 13:20:41 PDT

A pair of the cell phone recordings of the David Silva beating have been released by attorney Daniel Rodriguez. 23ABC News received the videos first, both of which capture the final moments of Silva's life. Unfortunately for those seeking more clarity as to the actions of the nine responding officers, these videos fail to provide much insight into the officers' actions during the previous 30-40 minutes.

Both videos were shot after the batons had stopped (allegedly) swinging. [The videos won't embed so you'll have to click through to view them.] In the first, Silva is surrounded by several members of law enforcement who are obviously still restraining him. You can hear faint orders to "get down" being yelled by the officers, but the most noticeable sounds come from Silva himself, who spends most of the runtime screaming.

The second video shows the efforts of law enforcement and the responding EMS unit to revive Silva. One of the offscreen voices makes a couple of interesting statements. First, he points out that officers "stood around for five minutes" by Silva's unmoving body before attempting resuscitation. The second, echoed by a female voice, lends some credence to the story put forth by several witnesses: "Now, it's a murder scene."

Also of note, at 5:19 a second cell phone, presumably recording, shows up in frame. This would appear to be the other cell phone that was seized by the Sheriff's Department, the one on which the footage is no longer available.

The witnesses claim that both phones had footage of officers striking and kicking Silva, but with both phones now returned to their owners, none of the footage has survived. Both phones made their way from the deputies who seized the phones to the Kern County Sheriff's Office, which then shared the phones with the Bakersfield PD and the FBI. The FBI has apparently analyzed both phones but has yet to release its findings.

Here's where we stand right now, according to Rodriguez:

Rodriguez told ABC23 that "the more incriminating video was one on the other cellphone." He said that video was shot "while the batons were swinging." Rodriguez added the second phone was returned to his client with no video. If a video was erased from that phone, he said, it could not be recovered because of the type of the device.

David Cohn, the attorney for David Silva's family, has his own concerns:

[Cohn] said his clients are concerned that the videos might be erased or destroyed, either accidentally or on purpose. He has not seen them.

"If I'd heard that they'd given them to the FBI, ok," he told The Associated Press on Tuesday. "But the Bakersfield Police Department, whom they work with on a daily basis? It certainly doesn't have the look of impartiality."

Cohn also (obviously) has his concerns about the phone seizures themselves.

Cohn said the Sheriff's Department went "well beyond a reasonable search" in obtaining the videos, making no effort to ask for copies or voluntary cooperation from the witnesses.

"They held these people hostage for several hours pending the serving of a search warrant. I've never heard of that before," he said.

Beyond the deputies' abuse of these witnesses' rights, there's another aspect that may have made these seizures illegal, as posited by ExCop-LawStudent.

The Privacy Protection Act, 42 U.S.C. 2000aa(a) (hereafter PPA), states:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication….

This law provides that if a person takes a video of police action and intends to disseminate it to the public, the police can only obtain the video by subpoena, not by a search warrant. In this case neither of the individuals who had their property seized were suspects in the crime being investigated, the death of David Silva at the hands of Kern County Sheriff’s deputies, nor were they being arrested.

The sheriff’s office was aware of the video because the individual that taped the beating called 911.

Further, that individual informed the 911 personnel that she intended to disseminate the video to the public (at 0:46 of the call), saying “I’m sending it to the news.” At this point, the Sheriff’s office was on notice that this was “work product” protected by the Privacy Protection Act, and should have been obtained by subpoena, not by a search warrant. Indeed, the law specifically provides that a warrant can only be used after a subpoena has failed to obtain the material.

In support of this argument, the author cites the infamous case brought against the US by Steve Jackson Games, which had several work products seized by US Secret Service agents via a warrant, despite not being a suspect in the investigation at hand. The end result was $50,000 in damages plus attorney's fees being awarded to the game maker for these illegal seizures.

The video supposedly containing the most damning footage is missing. What we do have available only shows the aftermath of the beating. We're still waiting for much more information to be released. There's been no word back from the FBI on its analysis of the phones. The coroner has yet to release an official cause of death and the sheriff's office has stated this process could take up to four months. Kern County Sheriff Donny Youngblood continues to make concerned noises, but the lack of conclusive video has also prompted a bit more hedging, along with some unfortunate statements.

"I have seen the video," Youngblood said last week. "I cannot speculate whether they acted appropriately or not just by looking at the video."

The sheriff, however, acknowledged that there is a great deal of public concern about the incident and subsequent investigation. "It is not just troubling to the public, it is not just troubling to news media, it is troubling to me," he said. In an interview with The Times, he said the credibility of the department is at stake.

"Baton strikes were used, but what I don't know is how many and where they were on the body and if they caused significant injury that caused death," he said.

Youngblood said the baton is a less lethal weapon, and because of that its use doesn’t usually lead to deputies being placed on leave. But he said the head is not an appropriate place for a baton strike.

"Sometimes in the heat of battle, the baton doesn't go where you want it to go.... If someone has 20 baton strikes to the head, OK, that is easy for us. But when there is a fight or scuffle and a baton strike goes where it should not ... then you have to evaluate,” he said.

The passive voice in this context is bordering on reprehensible. There's a person controlling the baton and that person presumably should have the training to ensure proper "placement" of the weapon. The two deputies seen on the surveillance tape seem to be controlling their batons very well, using both hands to swing and connect with Silva. Nine officers swinging batons at one man are going to run out of "appropriate" real estate on a human body very quickly.

Youngblood seems to be drawing a line between proper baton use and a savage beating, but he's drawing the line in his office's favor. If all officers aimed exclusively and repeatedly for Silva's head, it's an open-and-shut case. But, if Silva struggled, or if blows rained down on other parts of his body as well, it's probably just good (if a bit too aggressive) police work (pending "evaluation").

Youngblood's statement serves two purposes: to define how far officers under his control actually have to go in terms of violence in order to warrant further review or disciplinary action, and to justify the fact that his deputies are still on active duty, despite earlier reporting that they had been placed on paid administrative leave until the investigation was complete.

It is common to place law enforcement officers on paid leave during investigations of arrest-related deaths, but the Californian reported the deputies involved remain on duty.

Youngblood's deputies who allegedly beat a man to death are still on patrol. One hopes that they won't find themselves in any situations in which a baton strike might be used, or go where the deputies "don't want it to go."

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AT&T Says You Can Use Any Video Streaming App You Want... Just As Soon As It Can Get The Meter Running

Tim Cushing — Wed, 22 May 2013 12:17:41 PDT

AT&T isn't going to let something like "net neutrality" slow it down from shaking every spare cent out of its customer base. (Source: I'm a customer. Also: see these.) Beginning last year with its blocking of Apple's Facetime app (exempting customers who were paying for higher service tiers) and continuing on through its recent lockout of Google Hangouts, AT&T has skirted neutrality by using one term: pre-loaded.

In its mind, as long as an app is "pre-loaded" by phone manufacturers (and competing options are available), AT&T can block app functionality if it feels it's somehow leaving money on the table. Of course, this irritates many of its customers and brings with it an uncomfortable amount of heat as the word travels around the web.

AT&T has now issued another statement to critics of its Hangout-blocking, one which sends the clear message that the company will gladly welcome streaming video apps with open arms (even pre-loaded apps), just as soon as it's able to simultaneously welcome a fat stream of income.

AT&T has issued a second, follow up statement that doesn't make a whole lot more sense than the first one did, and again tries to place the blame at the feet of OS and device makers. AT&T does, however, promise that they'll stop blocking video chat apps from running over their network by the end of this year:

"For video chat apps that come pre-loaded on devices, we currently give all OS and device makers the ability for those apps to work over cellular for our customers who are on Mobile Share or Tiered plans. Apple, Samsung and BlackBerry have chosen to enable this for their pre-loaded video chat apps. And by mid-June, we’ll have enabled those apps over cellular for our unlimited plan customers who have LTE devices from those three manufacturers.

Throughout the second half of this year, we plan to enable pre-loaded video chat apps over cellular for all our customers, regardless of data plan or device; that work is expected to be complete by year end.

Today, all of our customers can use any mobile video chat app that they download from the Internet, such as Skype."

AT&T's buying time while trying to appear to be working towards a "solution" for all of its customers. The longer it can hold out, the more likely the chance that someone upgrades or switches devices, thus pulling them off their grandfathered unlimited data plans and onto tiered/metered plans that earn AT&T a bit more money.

It tries to present this as a network issue, but Karl Bode translates AT&T's corporatespeak into the miserable truth:

In other words this isn't really technical (AT&T's LTE network is currently ranked the fastest available in the States), it's a way to bully unlimited users on to costlier plans. It's also a network neutrality violation, regardless of AT&T's choice of language.

Now, there's nothing wrong with a business attempting to earn more money. But the key word here is "earn." AT&T's just trying to grab more income while offering nothing in return but a bunch of laughable statements -- both in regards to the current issues, as well as the non-stop "congestion" posturing it uses to justify limited, expensive data plans. It's obviously most interested in tying users to high-margin "services." The least it could do is drop the obviously ridiculous statements and tell its customers they can have what they want just as soon as it gets what it wants.

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Reporters Find Exposed Personal Data Via Google, Threatened With CFAA Charges

Mike Masnick — Wed, 22 May 2013 11:14:41 PDT

In a story that sounds mighty similar to the Andrew "weev" Aurenheimer situation, two reporters from the Scripps News service have been told that they may be hit with Computer Fraud and Abuse Act (CFAA) charges after a Google search they did turned up personal data on 170,000 customers that two telcos left exposed. At issue are low-income customers of YourTel and TerraCom, who provide service for the FCC's Lifeline, a phone service for people who are enrolled in state or federal assistance programs. Apparently, the real issue was a company called Vcare, which the two telcos outsourced certain services to. The Scripps reporters noted that they did nothing more than a Google search:

The unprotected TerraCom and YourTel records came to light through the simplest of tools: a reporter’s Google search of TerraCom.

The records include 44,000 application or certification forms and 127,000 supporting documents or “proof” files, such as scans or photos of food-stamp cards, driver’s licenses, tax records, U.S. and foreign passports, pay stubs and parole letters. Taken together, the records expose residents of at least 26 states.

The application records, drawn from 18 of those states and generally dated from last September through November, list potential customers’ names, signatures, birth dates, home addresses and partial or full Social Security numbers. The proof files, from last September through April, include residents of at least eight remaining states.

Of course, rather than be thankful to the reporters for letting them know about a huge security lapse, or be apologetic for revealing all sorts of key data on their customers, they decided to sue.

However, Vcare and the two telecom companies assert that the reporters "hacked" their way into the data using "automated" methods to access the data. And what was this malicious hacking tool that penetrated the security of Vcare's servers? In a letter sent to Scripps News by Jonathan D. Lee, counsel for both of the cell carriers, Lee said that Vcare's research had shown that the reporters were "using the 'Wget' program to search for and download the Companies' confidential data." GNU Wget is a free and open source tool used for batch downloads over HTTP and FTP. Lee claimed Vcare's investigation found the files were bulk-downloaded via two Scripps IP addresses.

I'm not sure how anyone could claim that the mere use of Wget constitutes a form of hacking, even under the extremely loose interpretations of the CFAA. However, as mentioned, the story does have similarities to the weev case -- except this time we're talking about reporters for a well known news service, rather than someone with a reputation as an internet troll. Hopefully, if the telcos do decide to actually file a lawsuit, it gets laughed out of court.

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New York Times Tells Startup It Can't Even Mention The NY Times

Mike Masnick — Wed, 22 May 2013 10:07:03 PDT

Another day, another story of a ridiculously overaggressive legal move by a big company. This time it's the NY Times, which turned its bogus nastygramming skills on a startup called Scroll Kit. Scroll Kit is a three person startup that tries to make a system to create more compelling publishing of stories easier. There's been a big push to make digital media more digitally native, and there have been a few cool examples of it in action, but it still tends to take a lot of development time -- something that Scroll Kit is looking to make easier. Neat. Of course, if you follow the media space, you'd know that last year, the NY Times put out a story called Snow Fall that was very well designed. I didn't think it was miraculous, but definitely a step up, and showed a better way to tell a story online. The old media guard has been spazzing out over Snow Fall as if it was the greatest thing ever, which is silly -- and even the NYT itself is taking that one example way too seriously in turning "snow fall" into a verb inside its newsroom -- as in, "we need to 'snow fall' that story."

Okay. Whatever. The guys at Scroll Kit agreed that Snow Fall is a nice example, and they knew that it took the NY Times many months to design it. So, in a compelling example of their own product, they showed how Scroll Kit could be used to recreate Snow Fall's design elements in about an hour, and put up a video showing that. This is called "good marketing." But, to the NY Times, they claimed it was copyright infringement, sending the following email to Scroll Kit founder Cody Brown: First of all, there's a tremendously strong fair use argument here. Nothing in what Scroll Kit did with the video competed with the Snow Fall story in any way shape or form. The video was just a demonstration of its product and how you could use it to create a Snow Fall like experience. Still, the folks at Scroll Kit decided that fighting the NY Times wasn't worth the trouble, so they took down the video and sent off an email to the lawyer saying they had complied. But, apparently that wasn't enough for Deborah Beshaw-Farrell of the NY Times' legal department, as she sent off another letter, still complaining: The first letter was bad, but this one is downright ridiculous. Switching the video to private should certainly be enough. But, the claim that they need to remove any reference to the NY Times from the website, including a factual description of reality is completely bogus. It's just the NY Times acting as a legal bully. Brown publicly asked the NY Times to reconsider, noting that if it believes so strongly that things like Snow Fall are the future of news, it's pretty ridiculous for them to try to intimidate and shut down a startup looking to make that process easier.

In response to Brown's request for more info, he received a third email, from a different lawyer at the NY Times, Richard Samson, with a statement that is even more ridiculous:

Dear Mr. Brown: We are offended by the fact that you are promoting your tool, as a way to quickly replicate copyright-protected content owned by The New York Times Company. It also seems strange to me that you would defend your right to boast about how quickly you were able to commit copyright infringement:

The NYT spent hundreds of hours hand-coding “Snow Fall” We made a replica in an hour.

If you wouldn’t mind using another publication to advertise your infringement tool, we’d appreciate it.

Sincerely,
Richard Samson

Again, this is completely bogus on many levels. The tool is not "an infringement tool," it's a creative tool for creating this type of thing. Anyone with any even rudimentary knowledge of design and development know that it's fairly standard for people to create tools based on creating things that others have created in the past. In fact, lots of websites copy elements and style from other websites. Even the NY Times tends to be a fairly derivative site design-wise. Second: being "offended" is no legal basis for making a threat. Brown was not boasting about "committing copyright infringement," but about using a tool to be able to do a similar design. It had nothing to do with infringement, and everything to do with making the design process easier.

The NY Times is being absolutely ridiculous here.

Once again, however, we see what happens when companies focus on legal strategies rather than supporting innovation. Sure, Scroll Kit could make it easier for competitors to the NY Times to create compelling stories, but it also might help the NY Times drive its own efforts forward. Perhaps, rather than spend many months of its own designers' time, it could use something like Scroll Kit to make it easier for their staff to design such compelling stories. Instead, they focus on stifling it with highly questionable legal threats. You know how you can tell when a company is really in trouble? When it focuses on legal attacks on others, rather than driving its own innovation.

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So It's Come To This: Seven High School Students Arrested For Throwing... Water Balloons

Tim Cushing — Wed, 22 May 2013 09:12:35 PDT

The weather's (mostly) hot. School's almost out. And what better way to celebrate summer being almost here than being arrested and charged with a misdemeanor for throwing water balloons.

Hail academia, forever teaching our youth that anything and everything will be punished to the fullest extent of the law, even childhood hijinks our parents would have approved of, if only they weren't so busy being arrested themselves.

Seven teenage students in North Carolina were arrested on Thursday and charged with a misdemeanor for throwing water balloons during a school prank. A parent was also arrested during the incident.

The seven boys, all between the ages of 16 and 17, threw balloons filled with tap water as an end-of-year prank at Enloe High School in Raleigh. The balloons were rumored to be filled with “other substances,” but Wake County Public School System spokeswoman Renee McCoy said “all indications” were that only water was used.

Six of the teens were charged with disorderly conduct. The seventh was charged with assault and battery for hitting a school security officer with a balloon.

You've got to respect the uniform -- even if that uniform is a 50/50 polyester/ugly blend. If other students, teachers and administration staff get hit, that's a ~~paddlin'~~ simple "disorderly conduct" (a.k.a., the cop's best friend). And if you can't respect the security guard's uniform, you had damn well better respect the boys in blue, or you'll get thrown to the ground for throwing water balloons.

Kevin Hines, the parent who was arrested, was just acting out of concern for a student's wellbeing. No good deed goes unpunished, not when we're sending cops after kids armed with water balloons.

Kevin Hines said saw Raleigh police officers acting aggressively towards a student they were arresting when he drove up to the school.

"Being lifted up by the neck and taken down hard," Hines said.

Hines said he tried to intervene was but was told he didn't know the whole story. Hines complied and said he wished to speak to the principal.

"You're just trying to cause trouble. Get out," Hines said an officer told him.

Hines said he then attempted to talk to a lieutenant but was approached by two officers and threatening with a TASER. Hines said he told the officers that wasn't necessary.

"They arrested me on grounds of trespassing," Hines said. "So, they put cuffs on me and carried me away."

Swell. An unarmed parent who's concerned that someone (NOT A COP) might get hurt is handcuffed, threatened with a taser and charged for "causing trouble," which apparently goes on the books as "second degree trespassing."

Another parent is "causing trouble" as well, although this might be the kind of trouble that sticks:

The mother of an Enloe High School student has filed a complaint with the Raleigh Police Department after an officer threw her son to the ground Thursday as police responded to a water balloon battle at the school.

Call me naive, but I never thought I'd ever read a sentence this incongruous in my life: "...as police responded to a water balloon battle..." Tase me. Tase me now, lord. At least it wasn't a water pistol fight. Martial law would have been declared and the National Guard called in.

Here's the school's official statement on the "event."

Renee McCoy, a representative of Wake County Public Schools, said they rely on the training of the Raleigh Police Department in these situations. "We leave those decisions up to Raleigh PD," McCoy said.

Punt.

Seven kids with misdemeanors on their records ("released on bail" -- I am not kidding) for throwing weaponized water. I'm not really sure what schools are teaching kids at this point -- that every minor infraction must be dealt with swiftly and brutally? That violating school policies is a criminal offence? Whatever they're trying to teach by jettisoning critical thinking and replacing it with zero tolerance cops on speed dial, it's not getting through. All students are going to learn is that school administration has farmed out its disciplinary responsibilities to a variety of humorless, uniformed thugs -- some private, some public -- and that there really is no crime too small.

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First Hand Account Of Judicial Smackdown Of Prenda In Minnesota

Matthew Sparby — Wed, 22 May 2013 07:50:35 PDT

Yesterday we had a story about how a judge in Minnesota, Judge Ann Alton, angrily accused Paul Hansmeier of fraud in the lawsuit filed by Alan Cooper against Prenda. There was some confusion by the judge about whether Cooper and Godfread were in on the fraud too, which seems to have made the judge less open to possible damages against Prenda. Either way, without a court reporter, Matthew Sparby, who was in attendance, wrote up the following first-hand account of what happened in the court room. It's definitely disappointing to see that the judge made a few bad assumptions about Cooper/Godfread, but good to see that she knew that Prenda has been up to no good.

I am not an attorney. I attended today's hearing out of curiosity and convenience. I happened to have an appointment across the street from the Hennepin County Government Center today and decided that it would be interesting to see the wheels of justice in motion first hand. As such, it is important to note that these are the observations of a layperson.

As the session started, Judge Alton announced that there was no live court reporter and that there was an audio recording being made instead.

Two other cases were called first, and then the Judge called Cooper vs. Prenda. She began by saying, "This one gives me a lot of pause." Then the attorneys introduced themselves.

Paul Godfread was present representing Alan Cooper (who was not in attendance) and Paul Hansmeier was present representing Prenda, et al. He sat alone at the table and I don't believe any other Prenda principals were in attendance.

Judge Alton then started off by addressing Hansmeier saying that it would appear he had a bit of a conflict relating to some findings of law, "[an] order from a US District Court Judge sanctioning you for fraud, among other things." She went on to say, "I'm not sure I should hear you at all." She asked Hansmeier if Morgan Pietz had filed the list of Bar Associations to which the Prenda principals were admitted as well as whether Pietz had sent copies of Judge Wright's order to all of the other Judges presiding over Prenda cases. Hansmeier replied, "I believe he did, your honor."

Judge Alton was clearly agitated going into this. In reference to the Prenda business model she said, "This is fraud, clear and simple." She also said, "I will be reporting this to the Lawyers Board." In fact, she would make a similar comment at least one more time at the end of the hearing. Still addressing Hansmeier, she went on, "Your involvement in this case is a TRAVESTY!" She added impact (both figuratively and literally) to that point by slapping her hand on the bench.

If I closed my eyes, I could have very easily assumed I was watching an episode of Judge Judy at this point. Judge Alton's passion and inflection as she admonished Prenda's behavior was, quite frankly, a tremendous surprise to me as a non-attorney. My discussions with actual attorneys after the hearing confirmed the abnormality of the scene.

In an attempt to defend their activities, Hansmeier referenced the the actions of the RIAA and MPAA. Judge Alton was unimpressed. She told him, "That doesn't mean you become your own zealot!" Further berating Prenda's pattern of mailing threatening settlement letters to alleged copyright violators, Judge Alton said, "You are guilty of fraud every time you send one of these letters." Hansmeier then began to reference the Jammie Thomas-Rasset case. Again, the Judge wasn't interested, interrupting with a curt, "So what?"

Now things got a little bit confusing. The Judge called Paul Hansmeier a fraud. Then she said that Alan Cooper is a fraud and that Paul Godfread may be a fraud as well. I looked to the person sitting next to me and the look on his face showed the same confusion. Quite humbly, Godfread told Judge Alton that he took exception to being labeled a fraud. He tried to clarify the situation but his message didn't seem to get through. In fact, for much of the hearing, Judge Alton was under the impression that Judge Wright's order actually implicated Alan Cooper as a Prenda Principal. Luckily this comes up again later.

As Godfread was explaining Cooper's actual position in reference to Judge Wright's findings, Hansmeier objected. He complained that there was no evidence to support the findings and said that they weren't given the opportunity to cross examine Cooper during the sanctions hearing in Los Angeles.

Throughout the hearing, Judge Alton would frequently refer back to Judge Wright's sanctions order, reading portions of it both to herself and out loud to clarify various points including asking where "Nevis" is. Godfread said it was an island in the Caribbean, most commonly known as an offshore tax haven. While he was saying this, Hansmeier was shaking his head.

The Judge continued to review the various exhibits filed with the case and Paul Hansmeier again raised the issue of not having been given the opportunity to cross examine Alan Cooper in L.A. Judge Alton glared at him saying, "That, right now, does not concern me."

She then turned her attention to Godfread saying, "You're not going to get any damages out of me. I don't give damages when everyone is a fraud." Again, she appeared to be under the impression that Alan Cooper was complicit in Prenda's actions. Godfread repeated his earlier assertions that Cooper was merely a caretaker for John Steele's property in Minnesota. The Judge then said, "Mr. Steele worked for Prenda Law which is running these phony lawsuits."

After reading further into Judge Wright's findings, Judge Alton finally identified the portion that clearly separated Alan Cooper from Prenda's actions and identified him as a victim of their fraud rather than a willing participant.

Unfortunately, this new realization didn't seem to alter Judge Alton's stance on refusing to grant any damages. Godfread decided to approach it from a different angle, though. In lieu of damages, he suggested that Judge Alton order Prenda to return all of the settlement money it had received over the course of its campaign. Judge Alton rejected that suggestion saying that it wouldn't be possible unless, via discovery or other means, they are able to determine how much money that actually is.

The Judge then took a moment to reiterate that Prenda's methods of threatening people are not allowed before moving on to the topic of service. This is, after all, a Default Hearing. Hansmeier repeated the assertion that Prenda never received service of the complaint. The judge looked through the folder in front of her and suggested that Godfread may not have properly served Prenda. She asked Godfread if he served them through publication. He said that he didn't, but told her that, as shown in his Affidavit of Service, he sent the complaint and the interrogatories via certified mail and provided a receipt from the US Postal Service showing that it was received by Prenda on March 18th. He also refers to the fact that Prenda DID respond to the interrogatories, so how can they claim they never received service of the rest of it? Judge Alton then said, "That will satisfy me."

Hansmeier then claims that Duffy received only the interrogatories and not the complaint, and that Godfread's receipt doesn't prove that the complaint was sent in that envelope. The Judge responded with, "Mr. Duffy's credibility is not good and he's not here."

Judge Alton then asked Godfread about other facts such as whether they have proof that Prenda was keeping the settlement money. Godfread said that Hansmeier himself admitted as much. Hansmeier responded saying, "That is categorically false."

The Judge then asked if Cooper had actually testified to the fact that he did not authorize the use of his name in the AF Holdings cases. Godfread confirmed that Cooper did testify to that. Then, talking to Godfread, Judge Alton said, "I can't find a conspiracy to harm him. I believe you but I can't find it."

She then made her order. She ordered that Prenda and its principals immediately cease using Alan Cooper's name, "and that's all. That's as far as I'll go."

In parting, she addressed Paul Hansmeier, once again saying, "I believe you to be in violation of a whole lot of rules." She then repeated her earlier statement that she was forwarding the case folder to the Lawyers Board.

And that was the end. Judge Alton then called a recess before the next case.

After leaving the courtroom, I sat down with another observer for a cup of coffee as we discussed how strange the hearing was. A few minutes later, Paul Godfread walked up and we chatted for a while about how the hearing had unfolded in such an unexpected way. He understandably lamented the lack of a damage award. When I told him that following all of this over the last several months has been educational, he expressed a fear of it being a poor source of education given how atypical these proceedings have been.

Still, I'm glad that I was able to attend today and I would encourage other members of the laity like myself to make an effort to observe these kinds of proceedings themselves. It was a truly fascinating experience.

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Quack Professor Releases Dumbest Violent Video Game Theory Ever

Timothy Geigner — Wed, 22 May 2013 05:51:35 PDT

If you have sensed an increase in the levels of air-borne stupidity in the world lately, as have I, you might be looking for the root cause of this collective mental climate change. I think I've found it. I believe it's caused by emissions of stupid generated by the debate over violent video games. Where else can you go for opinions that so blatantly ignore statistics and reason? You have retired military trumping up the next generations of "killers," despite violence and mass shootings being down in America. We have the damned Vice President of the United States showing his complete blind spot on the legality of taxing supposedly violent games. Not to mention newspaper industries that rely on the 1st Amendment to operate considering whether censorship of violent media might just be the answer to all of our problems.

But if you thought that was as bad as the theories get, on how violent games are harmful, oh boy were you wrong. See, a South Korean professor now believes that violent games are a plague on all of us...because they make our video cards run hotter and the resulting radio waves are harmful.

Korean site Inven (via tipster Sang) reports that the professor's study apparently revealed that a game's graphics card temperature was 36°C when idling. Now, that sounds about right. The card's temperature apparently increased to 45°C during a racing game. But then, Professor Cho's study stated that when a "violent game" was played, the temperature supposedly shot up to 57°C. In turn, the game emitted more radio waves.

For those of you who aren't suffering face-palm-induced concussion syndrome, you're probably already thinking about all the other everyday things that can cause your GPU to run hotter, such as graphic design work or, you know, watching HD movies. In fact, those activities can push the temperatures even higher. Or maybe you're thinking about how correlating how much work a GPU does to how violent a game is just might be the kind of thing that can cause a brain to commit suicide. Or maybe you're wondering if having your notebook computer on your lap every time you've played Doom has put your testicles at risk of mutation, turning them into monstrous, sentient testicilians, a race of self-reproductive hell-nuts bent on destroying the world.

Well, whatever you're thinking, calm the hell down and put your pants back on. This guy is as crackers as crackers gets.

Previously, Professor Cho has apparently published research on how drinking for three days straight will cause liver damage, how watching porn will cause unmarried men liver damage, and how smartphones cause people to have irregular voices. He sounds like a very serious researcher!

Were any of that actually true, I can assure you I'd be speaking in falsetto about my double-liver-damage instead of remarking on how crazy Professor Cho is.

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How Low Can Drones Go?

Glyn Moody — Wed, 22 May 2013 03:46:35 PDT

As we've pointed out in a few stories, drones aren't necessarily something to worry about. Like any technology, they can be used for good and bad purposes, and shouldn't be dismissed out of hand. But determining where exactly the line between acceptable and unacceptable lies is tricky, as the following story from the Capitol Hill Seattle blog shows:

This afternoon, a stranger set an aerial drone into flight over my yard and beside my house near Miller Playfield. I initially mistook its noisy buzzing for a weed-whacker on this warm spring day.

So how close does a drone have to be to someone's home before it becomes intrusive? Clearly, at some height the air is part of the sky commons that belongs to everyone, as a famous 1946 US Supreme Court decision laid down: The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.

The post continues:

After several minutes, I looked out my third-story window to see a drone hovering a few feet away. My husband went to talk to the man on the sidewalk outside our home who was operating the drone with a remote control, to ask him to not fly his drone near our home. The man insisted that it is legal for him to fly an aerial drone over our yard and adjacent to our windows. He noted that the drone has a camera, which transmits images he viewed through a set of glasses. He purported to be doing "research". We are extremely concerned, as he could very easily be a criminal who plans to break into our house or a peeping-tom.

Those sound like reasonable concerns. So does that mean that drones with cameras need to fly further away from the property of others than those without, so that the images they capture don't invade people's privacy? How might we set that distance? These and related questions are starting to be posed more frequently, as more drones enter our skies. At some point, we will need to start coming up with some answers that most people find reasonable.

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

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Prenda Gets Some Tiny Bit Of Good News, As It May Get Out Of Two Critical Cases

Mike Masnick — Tue, 21 May 2013 23:19:20 PDT

It's been a busy day for Prenda news, with some trouble in Minnesota and central California. However, it may have some slightly better news in two other key cases where judges had suddenly taken a deeper interest in what exactly was going on with Prenda. First up, the Sunlust case in Florida, which was actually the first case where a judge suggested Prenda was engaged in "fraud on the court" during an Abbott & Costello-worthy hearing. That case has continued to move forward with efforts to put sanctions on the key Prenda players. The lawyer, Graham Syfert, for the defendant, Tuan Nguyen, surprised some people by dropping Brett Gibbs from the target list, after he more or less threw his bosses at Prenda under the bus. However, Syfert has surprised a few folks by filing a motion to withdraw all pending motions. Basically, they're saying "drop the case and don't seek sanctions." That has left a lot of people scratching their heads, but suggests strongly that a settlement of sorts has been reached.

Perhaps the legal experts here can fill in the specifics about this one. I believe that the judge could continue to seek sanctions from Team Prenda if she feels it's appropriate, or if something improper happened, but it seems a lot less likely that this will happen now that Nguyen/Syfert have effectively bowed out of the case. Considering how deeply interested in the specifics the judge in this case had been, this is unfortunate. Yes, we already have Judge Wright's ruling on a similar matter in California, but having other courts come to the same conclusion seems like it would be useful.

Then we have the other Prenda case in Northern California, where the judge had become curious as to who exactly had signed a form on behalf of "Salt Marsh," ordering the original document to be produced. Last week, Paul Duffy claimed ignorance and tried to throw Brett Gibbs under the bus (again). Meanwhile, former Prenda paralegal/claimed boss of AF Holdings/Ingenuity 13, Mark Lutz, suggested that he had signed "on behalf of Salt Marsh" but no longer had the original. The judge could have dug deeper on that, but apparently has decided to let it go, saying that the question about Salt Marsh was "substantially complied with" and is ending the case.

Because AF's counsel has now substantially complied with the Court's order, the Court sees no basis to continue deferring a final judgment.

That means that particular case will also be closed. So, assuming the Florida case is similarly closed, that will leave the Judge Wright ruling in Central California as the only main battleground concerning the overall nature of Prenda's antics over the past few years.

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Ridiculous Timing: Obama Administration Responds To Spying On AP By Pushing Journalist Shield Law That Wouldn't Matter

Mike Masnick — Tue, 21 May 2013 20:16:20 PDT

There was one odd side note in all of the attention last week to the DOJ spying on the AP under questionable circumstances. Right after being confronted about it, the Obama administration released some talking points about how they support a reintroduction of a reporter's shield law. There have been various attempts to pass a special shield law for journalists for a few years now, though in the past it's been blocked each time. Also, we've been fairly skeptical about the whole process, because different politicians always seek to carve out key parties, whether it's bloggers or Wikileaks. Frankly, it's always seemed to us that a shield law should protect acts of journalism. That is, it should apply to specific situations, rather than specific people.

In the past, the Obama administration has claimed to support such a shield law, but with serious limitations, such as not having that law apply when the administration decides (by itself) that it's a matter that involves "significant" harm to national security. Given that Eric Holder has already argued that this case involved such a situation (even if the evidence suggests otherwise), it seems likely that any such shield law for journalists wouldn't have mattered in the AP case. There may have been some procedural differences, but the end result would have likely been pretty much the same.

But, really, using this story as a nail to hang their support for a shield law seems pretty ridiculous. "Oh, yeah, you caught us spying on reporters -- here's a bill that we want that wouldn't have stopped that, but if you're really concerned about a pretend level of privacy for journalists and their sources, it's something, sorta."

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DailyDirt: Weapons In The Sky

Joyce Hung — Tue, 21 May 2013 17:00:00 PDT

Completely autonomous drones that can decide who or what to strike are still many years away from becoming a reality, but the military has already developed various unmanned aircraft that it's been using primarily for gathering intelligence (rather than for attacking targets). Here are a few more examples of some of the high-tech flying weapons that exist today.

The $1.8 billion prototype Unmanned Combat Air System demonstrator was recently launched into the air from a catapult. This marked the first-ever catapult launch of a drone from the flight deck of an aircraft carrier. [url]
The Lockheed Martin F-22 Raptor, the most advanced stealth fighter jet in history, seems to have a problem with suffocating its pilots during normal flight. Since 2008, pilots would frequently and inexplicably suffer from what appeared to hypoxia -- in one case, a pilot hit a tree while landing and didn't even realize it. The cause of the problem was only recently identified as being due to a faulty valve on the pilots' life-support vest. You'd think that after spending almost $80 billion on these planes, it wouldn't have taken them almost five years to figure this out. [url]
After 16 years and billions of dollars, the "Airborne Laser" project -- a 747 jumbo-jet equipped with a powerful laser that can shoot missiles out of the sky -- has finally been scrapped. Cost prohibitive and impractical, the Airborne Laser would likely have cost $92,000/hour to fly if it had worked. [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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Bad Day For Prenda Continues: Judge Rejects Stay, Adds $1k Per Day For Each Day They Don't Pay Up

Mike Masnick — Tue, 21 May 2013 16:02:45 PDT

Prenda's not having a very good day (or month, for that matter). We noted yesterday that Paul Hansmeier had asked the appeals court to put a stay on the attorney's fees awarded by Judge Otis Wright in California. The court rejected the request, partly on procedural grounds, noting that you have to put in the request at the district court first, not jumping the gun and going straight to the appeals court. Soon after that, the lawyer representing many of Team Prenda, Heather Rosing, filed for a stay in the district court, claiming that Prenda was "deprived of due process."

Judge Wright made quick work of this, noting the filing irregularity, and the pattern of seeking "eleventh-hour pleas for relief," and then rejected the request, and added a $1,000 per day penalty for every day that they fail to put up a bond in the amount owed. Oh yeah, also he asks them to explain to the court why they didn't pay up as ordered. Might as well include the full text here:

Prenda Law, Inc., through its attorneys at Klinedinst PC, filed a notice of appeal to the Ninth Circuit. (ECF No. 157.) Oddly, to this notice of appeal, Prenda attached an ex parte application seeking a stay of enforcement of the Court’s May 6, 2013 Order Issuing Sanctions. (ECF No. 157-1.) Not only was this application improperly filed; but once again, Prenda resorted to an eleventh-hour plea for relief.

Even assuming this application was properly filed, the Court finds no basis to grant Prenda’s request. Under the Court’s order, Prenda, along with John Steele, Paul Hansmeier, Paul Duffy, Brett Gibbs, AF Holdings LLC, and Ingenuity 13 LLC, were required to pay by May 20, 2013, an attorney’s-fee award of $81,319.72. By filing this application, it appears no such payment was made.

Instead, an emergency motion was filed with the Ninth Circuit to stay enforcement of the order. That motion was promptly denied. (ECF No. 150.) Prenda now seeks to remedy a problem of their own making. By refusing to pay, or at least refusing to post a supersedeas bond, Prenda (and the other parties) cannot establish that it “is without fault in creating the crisis that requires ex parte relief, or that the crisis occurred as a result of excusable neglect.” Mission Power Eng’g Co. v. Cont’l Casualty Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). Prenda’s application is therefore DENIED.

Further, Steele, Hansmeier, Duffy, Gibbs, AF Holdings, Ingenuity 13, and Prenda are hereby ORDERED TO SHOW CAUSE why they have contravened the Court’s order to pay the attorney’s-fee award. The Court hereby imposes a penalty of $1,000 per day, per person or entity,1 until this attorney’s-fee award is paid or a bond for the same amount is posted. This penalty shall be paid to the Clerk of Court on the same day the attorney’s-fee award is paid or the bond is posted. This penalty must be paid unless it is evident that the award was paid or the bond was posted on or before May 20, 2013. Failure to comply will result in additional sanctions.

Upon motion and posting of a supersedeas bond, the Court will stay execution of the attorney’s-fee award. Fed. R. Civ. P. 62(d).

Finally, as a housekeeping matter, the Court requests Brett Gibbs to file requests for withdrawal of attorney in this and the related cases. Brett Gibbs appears to have withdrawn from these cases. (OSC Hr’g Tr. 87:1–8, Mar. 11, 2013 (“I am no longer employed by Prenda or any other corporation or LLC that is involved in these cases.”).) Given the circumstances and the relationship between Gibbs and his clients, the Court will approve his requests for withdrawal.

IT IS SO ORDERED.

And so it is. Perhaps, rather than spending so much time talking to the press, John Steele should have been counting his pennies to pay up.

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Angry Judge Tells Prenda To Stop Falsifying Alan Cooper's Signature; Calls It Fraud

Mike Masnick — Tue, 21 May 2013 15:01:48 PDT

Looks like Prenda continues to have problems in court. In the lawsuit in Minnesota that Alan Cooper brought against Prenda and John Steele for fraudulent use of his name, it appears that Judge Ann Alton made fairly quick work of getting the whole thing off of her docket. Someone going by the twitter handle "J.P. Baggins" was in attendance, and says that the judge ordered Prenda to stop using Alan Cooper's name and brought the case to a close. There won't be any damages awarded, but it seems clear that the judge was not at all happy with Prenda. She referred to Paul Hansmeier, appearing for Prenda Law, as acting in a way that is "not appropriate for an attorney" while also claiming that what they had done was "fraud, pure and simple." She also told him that she believed him "to be in violation of a whole lot of rules" and she'll be reporting him to the lawyer's board (just one more to pile on, I guess).

Another person in the courtroom, Matthew Sparby noted that the judge was a bit confused at the beginning, apparently misreading Judge Otis Wright's infamous order to also implicate Cooper as well, and while that was eventually cleared up by Cooper's lawyer, Paul Godfread, Sparby thinks that may be why no damages were awarded.

She apparently also closed by telling Hansmeier to "never EVER send" fraudulent letters "EVER again" and noted that she was "offended this case is here" before abruptly ending the whole thing. Seems like another bad day for Prenda.

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More Details Emerge On Key Legal Fight Over DMCA Abuse

Mike Masnick — Tue, 21 May 2013 14:15:31 PDT

We recently wrote about a key legal fight over DMCA abuse and whether or not you can expect punishment for bogus DMCA takedowns under 512(f). The fact that even the MPAA has weighed in to make sure that there are basically no remedies for its faulty DMCA notices suggests how important this fight is -- even though at its core it appears to be a silly petty squabble among two bloggers who clearly hate each other. You can read back over the previous posts to get the details, but a few details have come out since the last filing, which may be quite relevant.

Gina Crosley-Corcoran's (the blogger who filed the DMCA notices) filing against Amy Tuteur (the blogger who sued claiming a DMCA 512(f) violation) made a few claims that, if true, would likely weaken Tuteur's case dramatically. The key claims were that neither of the hosts that Tuteur said had removed her blog/account had actually done so. Without the actual removal or loss of account, Tuteur's overall claim is much weaker, since some cases have argued that you can only win a 512(f) case if the content was actually removed in reaction to the DMCA notices. Crosley-Corcoran's filing claimed that the first hosting company, BlueHost, never took down the content or the account, but that Tuteur chose to switch accounts, saying that BlueHost only warned that it could take down the content or shut down her account, but that it did not. However, Tuteur has posted to her own blog a screenshot from Crosley-Corocran's own blog that includes not just a screenshot of Tuteur's blog being shutdown on BlueHost, but also where Crosley-Corcoran brags about BlueHost taking down the entire blog. So... for Crosley-Corcoran to claim in her filing that BlueHost didn't take down the site, when Crosley-Corcoran's own statements show that it did... I can't imagine that will go over well in court. Next up was the second host, Daring Host. Crosley-Corcoran's filing includes the claim that Daring Host told Tuteur it had to cancel her account due to being unable to handle the traffic, not because of the DMCA issue. It even provided a deposition from the owner of Daring Host claiming that he was clear to Tuteur that it was the traffic issue, not the DMCA notice, that resulted in the closing of the account. Except... Tuteur has now posted an original email from Daring Host to her about the closing of the account, where it's quite clear that a key reason was the possible liability from the DMCA notice.

Amy,

I spoke with the lawyer I’ve used with my businesses earlier today about the situation with your website and it being targeted. He informed me that hosting your website is a liability on a few different levels which is a risk to my business. While I support your cause and understand the situation you are in, I will no longer be able to host your website due to the risk and liability it poses to my business.

I do not want to leave you and your website out in the cold because I can understand that fighting against the people who are targeting you is not an easy task. I have done some research for you and found a couple of different businesses that should be able to host your website better in terms of dealing with it being targeted.

The first host I’ve found is called Alibabahost.com. On their website they state “AlibabaHost provides freedom of content and speech. Regarding the DMCA complains, we forward them to you and you decide how to proceed next.”

Considering the only legal liability that had come up had been the DMCA notice, combined with the fact that he directly highlights how the first host he suggests handles DMCA complaints, it seems pretty clear that the DMCA takedowns and further threats of more takedowns was a (if not "the") driving force behind telling her to look elsewhere. Given that the deposition from the same owner, Nick Esposito, appears to conflict with what he directly told Tuteur, he may face some interesting questions as well from the court.

For what it's worth, Crosley-Corcoran appears to have shown up in our comments on the last post claiming:

I did not "brag" about my DMCA taking down her site. In fact, the court has the evidence (submitted by her side, ironically) showing me saying that I, quote, "wish I could take credit, but this was more than me." I knew then that the host did not take action to remove her site because of my DMCA, and she knew it too.

Given the screenshot above, this appears to be wholly untrue. She does appear to have very clearly bragged about the DMCA notice taking down her site. Also, there was a Facebook post from Crosley-Corcoran that talked excitedly about how she was spending the "legal fund" that she had solicited from her readers to help take down the site from Daring Host, and: "if she keeps on doing what she's doing, this will keep happening."

Also, while it's cut off at the end of that screenshot above, that original post from Crosley-Corcoran appears to clearly admit that she's using the DMCA notice not to stop copyright infringement, but to silence protected speech:

She could owe me statutory damages, but because I'm a fair and reasonable human being, my attorney and I felt it was best to discuss a non-monetary settlement with Amy and her lawyer. I'm not looking to be greedy — I simply wanted a resolution. In exchange for me not pursuing the damages, we wanted Amy to agree to stop personally attacking me. It was that simple.

Combine all of that, and it seems like a pretty strong argument that Crosley-Corcoran used the DMCA to silence criticism, rather than for stopping copyright infringement, and that she knew and celebrated that fact publicly, contrary to what she stated in her filing and in our comments.

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NYC Says Renting Out Your Place Via Airbnb Is Running An Illegal Hotel

Mike Masnick — Tue, 21 May 2013 13:04:00 PDT

We've seen this over and over again: new and innovative startups enter a market in a creative and compelling way, and a combination of incumbents and regulators get in the way of something cool happening. Perhaps the most well known recent example of this is with Uber, but probably a close second is Airbnb. Airbnb is the immensely popular system for letting people rent out their homes/apartments/spare rooms to willing guests for (usually) short stays. Completely coincidentally, just this morning, I tried Airbnb for the very first time, trying to book a stay in Manhattan for an upcoming trip. And... soon after I submitted my request, I saw this report that officials in New York City have deemed Airbnb to violate the city's "illegal hotel law." Basically, they're arguing that people renting out their homes are running illegal hotels. They originally asked the guy who rented his condo out to pay $7,000 for both violating that law and for zoning and building code violations, but then dropped the latter part, and lowered the fine to $2,400 for just the hotel part.

Of course, laws like the illegal hotel law are supposed to be about public safety, and to maintain certain health and safety standards. But, the reality is that, like so much regulation these days, it's turned into a way to keep competition out. Laws to protect hotel visitors certainly made some amount of sense in the past, but most of the reasons why they're in place don't necessarily apply to the way Airbnb functions. Because we can now share information pretty easily, Airbnb's detailed review system and communication process take away most of the "risk" that necessitated a health and safety law.

Just as an example, in my own search for a place to stay, I went through about half a dozen different apartments that were available, and looked over the pictures and carefully read the reviews. I immediately discounted the cheapest one, because multiple reviews mentioned that the apartment had not been cleaned prior to them showing up. Information and the sharing of information made that place undesirable just like that. No laws needed. I also emailed back and forth with a few other apartment/condo owners to find out some details about their places, before finally selecting one that worked for me. Honestly, the experience has been awesome so far, giving me much greater choice, and the likelihood of a much nicer stay than in a hotel.

The new ruling doesn't suddenly make Airbnb itself "illegal," but does suggest that if the city finds out that you're using the service, you could face stiff fines. At the heart of the issue is a really stupid law that was basically designed to make Airbnb impossible: it says you can't rent out your place for less than 29 days. The only purpose of this law is to protect hotels from competition. The backer of the law claims that it was really about landlords illegally converting residential buildings into hotels, but if that was the case, they should have made the bill a lot clearer, because it's being used to punish this Airbnb user. Airbnb, which tried to intervene in the case, is (quite reasonably) disappointed:

This decision runs contrary to the stated intention and the plain text of New York law, so obviously we are disappointed. But more importantly, this decision makes it even more critical that New York law be clarified to make sure regular New Yorkers can occasionally rent out their own homes. There is universal agreement that occasional hosts like Nigel Warren were not the target of the 2010 law, but that agreement provides little comfort to the handful of people, like Nigel, who find themselves targeted by overzealous enforcement officials. It is time to fix this law and protect hosts who occasionally rent out their own homes. Eighty-seven percent of Airbnb hosts in New York list just a home they live in -- they are average New Yorkers trying to make ends meet, not illegal hotels that should be subject to the 2010 law.

As the reports note, this doesn't mean that the city will now be going after the tens of thousands of residents who rent their places out on Airbnb, but if complaints are filed, it can go after them. Hopefully, this doesn't scare off the person whose house I just requested... But, more importantly, this shows, yet again, why bad regulations can do serious harm to innovation, often while serving to protect less innovative incumbents.

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If You Think You Should Actually Own Products You Bought, Now Would Be A Good Time To Call Congress

Mike Masnick — Tue, 21 May 2013 12:01:25 PDT

We recently wrote about a bill being introduced in Congress that would help fix the DMCA by making a very minor, but important, set of changes to the anti-circumvention clauses of the DMCA. As you may recall, Section 1201 of the law says that it's against copyright law to circumvent "technological measures" designed to prevent you from accessing something, even if the purpose of bypassing those measures is not to actually infringe on any copyright. That's why we end up with crazy situations like it being illegal to "unlock" your mobile phone. A bipartisan group of Representatives have introduced this new bill, the Unlocking Technology Act (HR 1892), which makes it clear that if you circumvent technological protection measures to do something that doesn't infringe, then that, itself, is not a violation of copyright law. This doesn't "weaken" copyrights in any way. Those who break DRM to infringe are still violating this clause. All it does is stop the absurd situation where you are found to "violate" copyright law despite not infringing on anyone's copyright.

It's difficult to think of any reason why this bill shouldn't become law.

And, of course, because of that, there's an uphill battle to get Congress to actually support it. FixTheDMCA -- the group that first put forth the petition that got the White House to agree that you should be able to unlock your mobile phones -- is now running a call-in campaign, asking people to call their Congressional representatives, to let them know that they should support the bill.

It's a pretty simple question: do you actually own the products you buy? Most people think that they do, but under the current text of Section 1201, the anti-circumvention provision of the DMCA, you don't. Here's a chance to fix that basic premise and to make it clear you own what you buy. Seems like something Congress should easily support, so now might be a good time to let them know that.

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Makers Of Nutella Force Fan Who Created World Nutella Day To Shut It Down [Updated]

Timothy Geigner — Tue, 21 May 2013 11:04:00 PDT

Update: As of today, there are reports that Ferrero has been in contact with Sarah Russo and has worked out an arrangement by which Nutella Day will be reinstated with the company's blessing. The company is blaming the cease & desist on over-zealous lawyers as opposed to any public backlash. This may satisfy some people, while others will note that aggressive intellectual property laws and protection lead to this kind of collateral damage all the time.

Ferrero, the makers of Nutella, a hazelnut/chocolate spread that enjoys a love from people that I'll never understand (disclaimer: I hate chocolate), sure doesn't like anyone to use anything remotely like its name ever. You may not recall that it pushed back against the P2P network Gnutella a decade ago over their name being too similar. While you could argue that might be at least somewhat understandable, how about when the company went legal on a smoothie shop for selling a shake that used its product and had the daring gall to, you know, tell people what was in it? Well, perhaps you think that at least Ferrero was targeting a commercial enterprise, even if doing so resulted in one less shop buying Nutella. I mean, it isn't like the company was going after ordinary customers who liked its product, right?

Well, ChurchHatesTucker writes in to inform us that Ferrero is doing exactly that, because f#$@ the fans, damn it. See, there is apparently something called World Nutella Day, which is ironically on my birthday (God, I hate Nutella...), where one website encourages everyone on the planet to cook something with Nutella. This, naturally, requires people to buy Nutella. Or it did, rather, until Ferrero threatened the creator of World Nutella Day with a cease and desist, forcing her to shut down the site completely. Via World Nutella Day founder, Sara Rosso:

On May 25, 2013, I'll be darkening the World Nutella Day site, nutelladay.com, and all social media presence (Facebook, Twitter), in compliance with a cease-and-desist I received from lawyers representing Ferrero, SpA (makers of Nutella). The cease-and-desist letter was a bit of a surprise and a disappointment, as over the years I've had contact and positive experiences with several employees of Ferrero, SpA., and with their public relations and brand strategy consultants, and I've always tried to collaborate and work together in the spirit and goodwill of a fan-run celebration of a spread I (to this day) still eat.

Yup, you read that correctly. The makers of Nutella darkened a website purely designed to promote its product, even after directly working with Rosso for the last seven years. It's almost as if Ferrero doesn't want anyone to eat Nutella, with which I happen to whole-heartedly agree. No attempt to work out some kind of an arrangement, no even-handed license of the trademark, no humanity whatsoever. It's just, "Hey, thanks for being a fan, now shut it all down because the lawyers flipped out and somehow think you're harming us."

Honestly, the stunning part to me is how genteel Rosso appears to be about all this.

I've spent hundreds of hours interacting with you, the fans, collecting and sharing your contributions, updating the World Nutella Day website with more than 700 recipes which were painstakingly gathered from bloggers sending me their posts and by scouring the internet for the best Nutella recipes, Tweeting and sharing on Facebook your favorite sayings, stories, and links about Nutella, and encouraging everyone to try it just once! Thanks for letting me be a part of that – it was truly a labor of love by a fan and something I did as a fan, in my (very little) spare time, and I have a full-time job I love. I hope that February 5th stays alive in your hearts and on your spoons, and hopefully it's arrivederci (see you soon) and not addio (goodbye).

It's hard to imagine someone sounding so sweet over the company of which she's a fan pulling such a brash and damnable move. I'd be livid, not hoping to start the site back up once Ferrero had a stupidectomy. I might even be encouraging everyone within earshot not to buy from a company that would pull this kind of stunt. Then again, perhaps I'm not as sweet as Russo because I'm not filled with Nutella spread. Who knows, but I'm sure there are many former customers of Nutella today.

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Kitchen Nightmares Lawyers Threaten Infamous Samy And Amy If They Talk About Their Experience On The Show

Mike Masnick — Tue, 21 May 2013 10:05:49 PDT

Last week we wrote about the crazy mess that followed the recent episode of the show Kitchen Nightmares on Fox, in which the star of the show, Gordon Ramsay, actually walked away from Amy's Baking Company, after the owners, Samy and Amy Bouzaglo, didn't take well to any criticism. After the episode aired, they were further mocked on Yelp and Reddit (Yelp "haters" were a key part of the episode), and there was an explosion of anger on the restaurant's Facebook page, though the couple insists they were hacked.

Following all of this, however, the restaurant announced that it was doing a grand "re-opening" today, which involved a planned press conference and a "job fair" to try to hire 30 new workers. As the show noted, the Bouzaglos apparently have difficulty keeping staff employed for very long. However, the "press conference" has been cancelled. The couple claims it had to do with death threats they received, though it might have more to do with a very different kind of threat: a legal threat from the producers of the show, as reported by RadarOnline.

Lawyers representing the producers of Kitchen Nightmares, Upper Ground Enterprises, sent the couple a letter warning them that talking about the show would be a breach of contract:

We understand that you are planning a public event on May 21, 2013, at which you will discuss your experiences and your "unflattering portrayals" on the show. If you speak about the show without Upper Ground's and Fox's prior approval, and if you disparage the show, its host, or its producers, you will breach your obligations under Paragraph 10 of your Personal Release and Paragraph 14 of your Participant Agreement. These agreements prohibit you from speaking publicly about Kitchen Nighmares, other than to acknowledge "the mere fact of your participation in the Series in personal publicity relating to yourself." Your conduct exposes each of you to liability for liquidated damages of $100,000.

Hmm. While this is a reminder to be careful about what sorts of gag clauses you sign before you do anything, it still seems like a highly questionable move by the producers. The more they seek to silence the couple, the more it suggests that perhaps the portrayal wasn't entirely fair. Meanwhile, the more the couple is allowed to stay in the news, the better one would think it would be for the TV show. The couple's actions and statements on the episode were absolutely ridiculous and clearly showed a restaurant/ownership not worth patronizing. Since then, the couple's confirmed statements (even ignoring the Facebook comments, whether or not you believe they were the result of hackers) concerning Yelp have only served to confirm that the couple can't take any criticism and seem to think that bad reviews of bad food are the world out to get them.

The decision to call out the gag order in the contract to silence them seems ridiculous by Fox. Even if the couple trashed the show (as expected), does anyone think that the couple has even the slightest credibility at this point? No one believes them. Pulling out the gag order makes the show look like it has something to hide.

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If You're Going To Illegally Seize Citizens' Cell Phones, At Least Make Sure You're Grabbing The Right Ones

Tim Cushing — Tue, 21 May 2013 09:03:00 PDT

When cops behave badly, many suddenly develop an acute case of unconstitutional stage fright, often resulting in the immediate confiscation of any cameras/cell phones in the vicinity. If it's going to come down to "our word against yours," it helps immensely to have any contradictory "words" spirited away by Narrative Control, a branch of law enforcement that handles all cop "publicity rights," as well as providing new interpretations and reimaginings of existing statutes.

Sometimes it works. The offending footage vanishes into the ether, resulting in a narrative standoff between the Upstanding (if Overenthusiastic) Officer of the Law and the Obviously Crazy and Dangerous Person Who Should Really Be Doing a Little Hard Time.

Other times, the smash-and-grab fails, and the citizens retain their footage, providing a more rounded narration that often reverses the roles. (Upstanding [if Overenthusiastic] Citizen v. Obviously Crazy and Dangerous Law Enforcement Officer Who Really Shouldn't be Allowed to Abuse Anything Other Than a Demeaning Desk Job.)

Sometimes, though, the (attempted) confiscation of offending footage results in a surprising amount of schadenfreude. These moments occur altogether too infrequently, but when they do, a good time is had by all not attempting to confiscate damning footage.

First off, via Photography is not a Crime, comes the brief but surprisingly satisfying story of bullying tactics backfiring.

New York City police officers arrested a woman who was video recording them from a public sidewalk as they conducted some type of “vehicle safety checkpoint.”

The officers apparently stole a memory card from a camera, which turned out to be the wrong one, allowing us to view the video.

In the Youtube description, under the headline, “You stole the wrong SD card,” Christina Gonzalez said her boyfriend was also arrested.

"We were arrested while filming an NYPD checkpoint on a bridge between a soon to be gentrified Bronx and a quickly gentrifying Harlem. We were charged with OGA, DisCon, and resisting arrest. I was holding a bag of yarn in one hand and a canvas in the other. My partner had food in his hands when he was tackled. Even though their violent actions were unjust, we did not resist. Simultaneous with our “arrests”, the checkpoint was closed down.

We were held for 25 hours."

If you'll notice, both principals were charged with OGA (Obstructing Governmental Administration), in addition to the usual cop standbys, disorderly conduct and (of course) resisting arrest. The thing is, they weren't obstructing anything, at least not according to the NYPD's own Patrol Guide.

a. A person remaining in the vicinity of a stop or arrest shall not be subject to arrest for Obstructing Governmental Administration (Penal Law, Section 195.05) unless the officer has probable cause to believe the person or persons are obstructing governmental administration.

b. None of the following constitutes probable cause for arrest or detention of an onlooker unless the safety of officers or other persons is directly endangered or the officer reasonably believes they are endangered or the law is otherwise violated:

(1) Speech alone, even though crude and vulgar
(2) Requesting and making notes of shield numbers or names of officers
(3) Taking photographs, videotapes or tape recordings
(4) Remaining in the vicinity of the stop or arrest

Even if they were doing all of the above, it still wouldn't add up to OGA. So, that's a BS charge, as is the "resisting arrest," but the latter seems to be tacked on to any arrest that occurs without any real crime being committed. It's an offshoot of "contempt of cop, " which basically means that not immediately shutting up and doing what you're told is the same as resisting arrest.

Among all the fake crimes, a real crime did take place -- an NYPD officer (allegedly) stole a memory card, most likely in hopes of "detaining" the offending footage permanently. But he grabbed the wrong one and now the actions of these officers is on public display and spreading around the web.

That's illegal seizure FAIL #1. The second story comes courtesy of a lawsuit filed against the Galveston (Texas) police department. It starts out ordinarily enough. (Sidebar: there's something horribly wrong with the system if I can state something is "ordinary" and have it contain the following events.)

Jarrett Anthony Neu sued Galveston in Federal Court.

Neu claims that Galveston police arrested him at 4:45 p.m. on March 11, without a warrant, at a Galveston apartment complex. He claims they lied about it in the police report. He claims they subjected him not only to threats, intimidation, insult and humiliation, but severe and cruel physical abuse and punishment by both physical beating and the repeated unnecessary and unwarranted deployment of a less-than-lethal Taser weapon on plaintiff. Plaintiff, who suffers from a pre-existing cardiac ailment, suffered permanent and debilitating injuries as well as permanent disfigurement and scarring at the hands of these police officers.

Someone should get rid of that "less-than-lethal" modifier attached to "Taser." It's been proven multiple times that it can be lethal, if deployed against a person with the "right" ailments or simply deployed repeatedly until the arrestee has sufficiently "stopped resisting." (In these cases, the word "resisting" is often interchangeable with the word "breathing.")

At some point during this "exchange of viewpoints" (or whatever the correct PD terminology is), the police noticed an impartial observer was recording the whole thing for posterity. So, they made the usual move to responsibly collect all evidence, especially the damning kind.

During this police administered beating, officers realized that a citizen was filming the beating via cell phone and the officers involved without a legal reason seized (the wrong) cell phone.

E for effort, guys. You almost had it. And without a warrant! Now, the Galveston PD has a cell phone, but the plaintiff's lawyer has the cell phone.

Counsel for plaintiff has the cell phone that recorded the beating.

It would be nice to think the Galveston PD is kicking themselves for blowing a simple, illegal seizure of someone's phone, but if the plaintiff's story is anything to go by, they're probably kicking someone else.

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DOJ And Dept. Of Education To Colleges: Start Restricting Free Speech On Campus Or Kiss Your Federal Funding Goodbye

Tim Cushing — Tue, 21 May 2013 07:41:00 PDT

Our nation's universities are (or were) usually considered to be places that fostered open discourse and encouraged the discussion of controversial topics in order to promote the growth of both the students and their critical thinking skills. This is no longer the case. Many universities have crafted guidelines and policies that inhibit free speech, usually as an overreaction to offended sensibilities or criminal activity.

Much of what we've covered recently has dealt with private colleges, which have a little more leeway in crafting their speech policies. The chilling of free speech on campus is now spreading to public universities (not that some didn't have this problem already). Worse still, it's a government mandated inhibition of free speech, tied directly to federal funding.

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

What the OCR (the Dept. of Education's Office for Civil Rights) has done is remove the "objective" standard and opened anything said or done to be judged as harassment from a strictly subjective viewpoint. This is coupled with some very broad definitions of the sort of behavior prohibited under these new national codes. Eugene Volokh's in-depth writeup lists some of the prohibited actions.

saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)”
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures or written materials”
making “unwelcome” sexual invitations.

There is no longer any stipulation that the offending actions create a "hostile, offensive or abusive environment." And, again, the "objective and reasonable" yardstick has been removed and replaced with subjectivity.

As FIRE (Foundation for Individual Rights in Education) points out, this new OCR letter contradicts a "Dear Colleague" letter issued by the OCR in 2003, in which the office offered the clarification that any guidelines issued were not intended to inhibit free speech on campus.

I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution ...OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.

It appears the OCR is no longer interested in protecting First Amendment rights. As FIRE notes, the new OCR letter does not contain the phrases "free speech" or "First Amendment" anywhere within its 31 pages. It also contradicts the OCR's earlier guidance on harassment, where it stated that actionable (or prohibited) behavior "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."

FIRE also points out that the new codes cover much more than "sexual" speech, being expanded to cover "gender-based harassment," including "harassment based on a person's nonconformity with gender stereotypes." All well and good to bring more people under this "protection," but it does mean that certain protected speech will now lose its protection, at least on campus. FIRE quotes a Third Circuit Court decision [DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)]:

[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.

The OCR's letter does some dangerous conflation, in addition to its general disregard for students' First Amendment rights. By using the criminal sexual assault that occurred at the University of Montana as a springboard for its harassment policies, the OCR aims to kill two birds with stone, but only manages to injure one with its feckless toss -- free speech. The actions condemned (and meant to be prevented) by this letter remain punishable by existing laws and policies. Adding further limits to speech is simply a welcome byproduct for establishments (universities and the government) that seem to feel more and more that only subjectively acceptable speech should be protected. This new, mandated First-Amendment-as-university-doormat will only serve to make students more closed-minded as they toe these aribitrary lines and make our institutions of higher learning pale parodies of their formerly progressive selves.

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Retired Lt. Col.: Violent Media Has Bred A Generation Of Killers

Timothy Geigner — Tue, 21 May 2013 05:37:00 PDT

I can understand why someone who watches the news on a daily basis might shake their head in dismay. I get how it must feel necessary to put the blame for tragedies like Sandy Hook somewhere, anywhere, even if the eventual target of ire is misplaced. There's probably a certain ill-conceived synergy in pointing at violence in movies for a horrific theater shooting, even if the jury is at best out on the concept of violent media causing violent behavior. But when you hear someone so arrogantly sure that all of this wrong thinking is right and then using that arrogance to pompously try and scare the shit out of everyone, it deserves pushback.

So push back in your own way on Retired Lt. Col. Dave Grossman, whose hobbies amount to telling anyone that will listen that violent media has bred a "generation of vicious, vicious killers."

“This generation is going to give you massacres in the domestic environment and in the work environment,” he predicted, with unrestrained outrage, after ticking off a sobering list of mass murders -- particularly those that have occurred on school grounds and university campuses -- which have plagued American society in recent years.

It's a scare tactic that would be absolutely compelling were it not so absolutely wrong. Nevermind that no conclusive link between violent media and mass violence has been demonstrated, the fact of the matter is that in the long view, mass shootings are decreasing. As is violent crime in general. If one wanted to play the correlation game, they might happily state that violent media is decreasing violent output. I personally won't go that far, but it's fairly difficult to square Grossman's claims with reality.

“There is a generation of vicious, vicious killers out there,” he told his audience. “The video games are their trainers. They’ve been playing Grand Theft Auto every spare moment since they were six years old.”

Oh, please. Who the hell could listen to Niko's voice for years without killing themselves long before they killed anyone else? And besides, if these children are killers and the games their trainers, given the statistics already noted, then the little bastards are really bad at being killers and the games are a poor training manual, since none of this seems to be coming true. But if you thought Grossman had emptied his scare-clip at you already, you're wrong.

His views were no more subtle when he turned his sights to the international scene. A dozen years after the 9/11 terrorist attacks, the energetic and charismatic speaker sees life-threatening threats emanating from Pakistan, Russia, North Korea and Iran. What will the next 9/11 look like, he wondered aloud, before answering his own rhetorical question: “We’re going to get nuked.”

Lovely, and perhaps it will someday happen, but he forgot to mention something: if you look at the number of terrorist incidents in America throughout history, you'll note that the sharp increase in their occurence is non-existent. An enterprising commenter can graph the whole list out from that link if they like, but here's a brief example. We live in the year of our lord, 2013, so let's just start in 2012 and count how many terrorist incidents happened every ten years back:

2012 - 3 incidents, 9 killed
2002 - 14 incidents, 15 killed (note: the beltway sniper is counted as 11 separate incidents, which is stupid. This number should be 3 incidents total.)
1992 - 2 incidents, 1 killed
1982 - 6 incidents, 3 killed
1972 - 7 incidents, 6 killed
1962 - 1 incident, 44 killed
1952 - 0 incidents, 0 killed

Now, my use of 2012 as a starting point certainly is convenient in leaving out 9/11, but it's useful to note that outliers don't dominate the statistics. I should also note that this list ignores Pearl Harbor as the site of a terrorist attack, which seems incorrect in a way. The idea isn't that we can't be concerned about terrorism of any kind, be it Islamic fundementalist or the home-grown Aryan Nation variety, but if you make it your business to go around scaring people like Grossman does, you shouldn't leave out the more comforting facts simply because it is inconvenient to your narrative.

The next generation is not one of killers, this generation is not having to deal with terrorism in a way never before required, but it may be true that the media is more like Grossman and less like myself in that they enjoy scaring you for profit. Beware the man or woman who makes simple proclamations, because they're usually forgetting to tell you something.

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Why Even Good Hospitals And Doctors Are An Obstacle To Better, Cheaper Healthcare

Glyn Moody — Tue, 21 May 2013 03:33:00 PDT

As we noted in the context of antibiotics, it's well recognized that financial incentives cause the pharmaceutical industry to engage in research that tends to maximize profits rather than maximizing the health of the public. But a widely-circulated article in the Washington Post reveals another kind of bias that may stop us from adopting better ways of keeping people healthy that would also reduce healthcare costs.

This flows from the fact that countries with advanced healthcare systems are no longer dealing mainly with infectious diseases like turberculosis, as they once did, but with chronic ones like heart disease, diabetes, AIDS and many cancers. The key here is how best to manage the disease, particularly among elderly patients, and for that, doctors in hospitals aren't necessarily the best way:

Medicine has been so focused on what doctors can do in the hospital that it has barely even begun to figure out what can be done in the home. But the home is where elderly patients spend most of their time. It's where they take their medicine and eat their meals, and it's where they fall into funks and trip over the corner of the carpet. It's where a trained medical professional can see a bad turn before it turns into a catastrophe. Medicine, however, has been reluctant to intrude into homes.

One company, Health Quality Partners, has focused on doing precisely that: The program enrolls Medicare patients with at least one chronic illness and one hospitalization in the past year. It then sends a trained nurse to see them every week, or every month, whether they're healthy or sick. It sounds simple and, in a way, it is. But simple things can be revolutionary.
The results certainly are: According to an independent analysis by the consulting firm Mathematica, HQP has reduced hospitalizations by 33 percent and cut Medicare costs by 22 percent.
And yet Medicare is planning to shelve this pilot program, citing various bureaucratic reasons why it can't continue. Although some supporters of the home-based system maintain that it would be possible to overcome these problems, there remains a more fundamental obstacle to rolling out the Health Quality Partners approach more widely: Hospitals make money when they do more to patients. They lose money when their beds are empty. Put simply, Health Quality Partners makes hospitals lose money.
So again we seem to be confronted by perverse incentives at the heart of our current healthcare. The better and cheaper way would mean scaling back key parts of the system by instituting regular home visits by nurses, thus reducing the number people sent into hospitals to be treated by physicians. That implies taking on very profitable and thus very powerful business interests, including the doctors themselves. Given that resistance, and Medicare's apparent reluctance to force change by backing the Health Quality Partners system, it seems likely that we will be stuck with an inferior, more costly approach to treating chronic diseases despite knowing what looks like a much better way to do it. Some might call that pretty sick.

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'Intellectual Property' Mess Holding Up The TPP

Mike Masnick — Tue, 21 May 2013 00:10:00 PDT

As negotiators are seeking to finish up the Trans Pacific Partnership (TPP) agreement as soon as possible (they had originally promised a done deal by October), it appears that the controversial "intellectual property" chapter is causing the most problems, according to Sean Flynn, who is at the current negotiating round in Lima.

Officially, the Chief Negotiators have backed off the prior commitment to end the TPP negotiation by October, but are still clinging to a goal to end the negotiation by the “end of the year.” But privately, none of the negotiators or stakeholders at this round would express any confidence that the intellectual property issues could be resolved by then. The issues still under contention are massive.

The intellectual property chapter has grown to over 80 pages of text – including all the bracketed suggestions and alternatives. Some negotiators describe it as the longest text currently under negotiation.

Many of the issues are completely blocked. There has not been any new negotiation text offered on the most controversial pharmaceutical provisions since the Melbourne round over a year ago. There is currently no mandate from many countries to negotiate (they only “consult” and “discuss”) the pharmaceutical reimbursement chapter. Barbara Weisel described the pharmaceutical issues as being in a “period of reflection,” and had no comment on when that period might end.

Furthermore, it appears that some of the negotiators are realizing that it's a bad idea to lock in certain concepts, as would be set under the TPP, especially as various court rulings are changing the way copyright laws are viewed, and while a new copyright reform process is ongoing. People seem to be recognizing that agreeing to specific norms that may quickly be undermined by national laws would be a waste of time.

The recent spate of proposals for policy changes for US copyright law have caused a stir. The US is being asked how it can hold on to demands for parallel importation restrictions after the Kirtsaeng ruling, 70 year copyright terms after the Copyright Office proposed shifting them back to 50 years with formalities required for extensions, and strict restrictions on anti-circumvention liability exceptions when the Obama Administration and the Library of Congress have endorsed reforms that would violate the US proposal. Barbara Weisel stated that USTR is “doing what we can to work with Congress” to make sure that the TPP will not restrict policy options. But negotiators have said that there has been no visible movement on the USTR’s positions on Copyright issues, which will be negotiated this week.

And, of course, once again, the USTR appears to have no plans to be transparent in the slightest.

And there is no plan to release any text to the public. This is stark contrast to the last to plurilateral agreements including countries in the region. The Free Trade Area for the Americas and the Anti-Counterfeiting Trade Agreement both released full texts of the negotiating document with brackets indicating text under consideration before the finalization of the texts. For ACTA, there were four publicly released texts between April 2010 and May 2011. For the TPP – none yet, despite the Chief Negotiators’ pronouncement of end of year finalization plans.

Considering how much controversy there is over these items, it seems ridiculous that we still can't actually see what's being negotiated in our name -- especially when there's quite reasonable fears that it could mess with the democratic process of potentially rewriting copyright law.

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