DailyDirt: New Models For (Not) Funding Science?

from the urls-we-dig-up dept

In lean times like these, it's getting tougher to get funding for science and technology research, especially for innovative but high-risk ideas. It's no surprise that both the government and the private sector seem to feel more comfortable investing their money in more conservative "sure thing" efforts these days. While the scientific funding system is far from perfect, some of the attempts to "fix" it are making it even worse. Here are just a few (good and bad) examples.

• Canada's scientific research and development agency, the National Research Council, has announced that it will now only conduct research that has "social or economic gain." Apparently, the President of the NRC actually said, "Scientific discovery is not valuable unless it has commercial value." Unfortunately, that's one giant leap backwards for mankind. [url]
• U.S. House of Representatives chair Lamar Smith (R-TX) is proposing to replace the National Science Foundation's peer review process with a new set of funding criteria chosen by Congress. Smith's "High Quality Research Act" would require the NSF to judge grants based on three criteria -- that the research will: advance national health, prosperity, welfare, and security; solve problems that are important to society at large; and not duplicate other research projects being funded by the government. [url]
• On a more positive note, the Thiel Foundation's Breakout Labs is aiming to change the way early-stage science is funded. Their grants of up to $350,000 over 1-2 years will enable startups to chase some risky ideas with groundbreaking potential, returning a small percentage of any commercial success back to Breakout Labs to help fund the future ventures. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: breakout labs, canada, discovery, funding, grants, innovation, research, science
Companies: nrc, nsf, thiel foundation

MIT And Aaron Swartz's Lawyers Argue Over Releasing Evidence

from the who's-hiding-what? dept

Last Friday, Aaron Swartz's lawyers asked the court that had been overseeing his case to lift a protective order on material submitted during discovery, which Swartz's family and lawyers say will help show how bogus the case against him was -- and which they've hinted will show how MIT went way too far in trying to help prosecutors go after Swartz. According to exchanges between Swartz's lawyer, Elliot Peters, and MIT staff (including MIT President Rafael Reif), MIT has argued that such documents should not be revealed because (a) it might violate the privacy of MIT employees and (b) because MIT never intended the info to be public. Peters discovered this after a reporter for the Wall Street Journal forwarded him the following statement from MIT:

The decision to lift the protective order rests with the judge who put it in place. Documents provided by MIT in the Swartz case included individual names and information regarding MIT employees. It is MIT policy and practice to protect employee privacy. MIT provided the documents under the express understanding that they would be protected from disclosure, which is the purpose of the protective order. Given this, we are concerned about any public release of information about individual MIT employees: we will seek to protect their privacy. At the same time, MIT is eager to share important facts about its actions in the Aaron Swartz matter with the public: Professor Hal Abelson has been charged by President Rafael Reif with conducting an analysis that will be made public in the coming weeks.

Peters, quite reasonably, found this statement to be absurd. Especially the part about MIT claiming that it provided the documents in the belief that they would be kept secret. As Peters noted in response, this was obviously untrue.

"This statement is an insult to my intelligence. The documents were provided to the government before any protective order was entered, and directly contrary to this statement, with the express understanding that they would be used in a criminal prosecution', which would lead to a PUBLIC TRIAL, at which time the documents would be offered into evidence and the witnesses would testify, in public. MIT never could have expected these materials not to become public, and I find this statement to be shockingly misleading and insincere."

Around this same time, the Congressional investigation into Swartz's prosecution requested the same information. Given that, Swartz's legal team met with the DOJ to discuss releasing the documents currently under protective order. They agreed to redact certain personal information (phone numbers, emails, home addresses, social security numbers, birthdays), as well as the names of four people who were questioned during the investigation, but who "were not actively involved in either the Government's or any institution's investigation" into Swartz. However, where the conversations broke down was over redacting the names and info of just about everyone else: law enforcement, MIT employees and JSTOR employees.

Swartz's lawyer argues that this information should be public and if the case had gone forward would have been public:

Criminal proceedings in our nation's courts are presumptively public....

As described above, the circumstances in this case have changed dramatically. Perhaps most obviously, with Mr. Swartz's death, there is no longer a case to prosecute and thus no danger that disclosure will impede a fair trial. Mr. Swartz's tragic death has also led to an increase in public interest in both the details of the investigation and prosecution and the reasonableness of prosecutions under the CFAA generally. In its discussions with Mr. Swartz's counsel about modifying the Protective Order, the Government has not, to date, asserted any reliance interest based on the Protective Order. Even if it were to assert such an interest, any Government reliance on the Protective Order's terms is tempered by the fact that it is a blanket order and therefore inherently overinclusive. As this District explained in Bulger, modification of such a blanket order is not unusual. Id. at 54. As a result, the only interest left to be balanced against the significant public interest in access to unredacted documents is the alleged privacy interest of the government employees and third party individuals named in the discovery materials. For the reasons discussed below, those interests are minimal and are overcome by the public interest in the disclosure of these documents.

They further note that hiding the names of those actually responsible will make the Congressional investigation into what happened much more difficult. Second, the information was provided initially without any expectation that this info would be kept private, so to ask for it to be kept private now makes little sense. In fact, they note that most of the people named, who the government and MIT wish to redact, were likely potential witnesses had the trial been able to move forward. "Consequently, MIT and JSTOR cannot now claim any reliance interest on behalf of their employees in the continued privacy of their emails at the time they produced the emails at issue to the government." They further point out that most of the names in question are already public and highlight press accounts and previous releases of documents in the case that specifically name: "MIT employees Dave Newman, Paul Acosta, Ellen Duranceau, Ann Wolpert, Mike Halsall, and Mark Sillis and JSTOR employee Brian Larsen, identifies their positions, and quotes their email communications." Given that this is already public, it seems odd to further seek to redact their participation.

The argument in the other direction is that the attention this case has received means that names of such folks might lead to threats, but Swartz's lawyer says there has been no evidence presented of any threats to MIT or JSTOR employees -- and even if there was, that wouldn't necessitate blocking out info on all such employees.

Separately, his lawyers point out that redacting law enforcement officials names makes even less sense, given that they are public employees.

Days after this motion was filed, MIT "responded" by agreeing to release the documents itself... but with those same redactions requested by the DOJ. MIT President Reif has tried to spin this as being "in the spirit of openness, balanced with responsibility." Of course, that doesn't make much sense. The DOJ has already agreed that this same level of information should be released, so MIT isn't doing anything here other than making it appear -- falsely -- as if it is making some concession towards openness. On top of that, MIT has said it will not release this info until its overall investigation is over.

Not surprisingly, Swartz's family is not particularly impressed by all of this. In a statement provided to us, Swartz's girlfriend, Taren Stinebrickner-Kauffman, notes that this is misleading not just because MIT isn't doing anything new here, but also in that this isn't MIT's decision at all.

“I welcome President Reif's commitment to transparency. However, this announcement is misleading. MIT does not get to decide in what form the evidence is released publicly. The judge does. MIT has already given this evidence to the courts, at which point it gave up proprietary control over the evidence. President Reif's decision simply foreshadows the inevitability that the judge will release at least this much of the evidence. It sets a low bar, but it does not decide the matter. The redacted documents MIT is releasing only tell one part of the story. Huge amounts of information would still be hidden beneath the protective order -- information that MIT's investigators themselves will not have access to unless the protective order is lifted. If MIT is really committed to transparency and having a full, complete investigation, they need to join the call with Aaron’s lawyers to lift the protective order."

Similarly, Aaron's father, Robert Swartz, noted that this is not a concession by MIT, and that MIT already gave up its rights to these documents, so trying to control how they are disseminated makes little sense.

"This is not a change in MIT's position. MIT could have no expectation of privacy or security since this evidence was given to the government with the understanding that it was evidence in a public trial,” said Robert Swartz, Aaron’s father. “They understood when they gave these documents to the government that they had no rights to privacy or security. MIT should release all internal communications related to this case whether or not they were provided to the government including all internal communications they had related to how they handled it and decided not to ask the government to drop the case."

Stinebrickner-Kauffman also pointed out that "if MIT wished to protect these people's privacy, MIT should not have become involved in the criminal trial to begin with. They made a calculated decision not to nip this case in the bud. They don't get to avoid the consequences now, after Aaron’s death."

Filed Under: aaron swartz, discovery, elliot peters, evidence, mit, names, protective order, rafael reif, transparency

'Defendant' In Prenda Law Case Reveals He Agreed To Take A Dive

from the incredible dept

Back in December, we wrote about one of Prenda Law's latest tricks (or, rather, a whole bag of tricks) involving using shell companies (who appear to be controlled by Prenda itself, where the CEO may have been faked via identity fraud) to file cases against a single "named" defendant who settles quickly... but part of that "settlement" is that the "defendant" agrees to allow discovery of a long list of "co-conspirators." Prenda argues that those co-conspirators cannot fight back against discovery, because they're not "defendants." And, thus, Prenda gets a big list of names/contact info of more people to shake down.

As we noted, there was some suspicion that the "named" defendants and their lawyers were somehow in on the deal -- and the judge in at least one case flat out asked Prenda's John Steele, and the defendant's lawyer Adam Urbanczyk, if they "were in bed together" to come up with such a settlement. At the time, we pointed out that it was still a big leap to assume that, but now there's a bit more evidence. In one of these cases, involving the likely-Prenda-shell-company Guava, one of the named defendants, Spencer Merkel, has filed an incredible affidavit in which he admits that Prenda had offered him a "settlement" in which he would be "named" in a lawsuit and agree to cough up his BitTorrent log files. And Prenda provided him with the lawyer who would then represent him thousands of miles from his home.

Michael offered me a settlement deal. The deal consisted of the following parts:

a. I would agree to be sued.

b. Prenda would ask for, and I would provide, a copy of the bit-torrent log from my computer. The excuse for gathering this log is that it would corroborate the IP address evidence that they had already gathered through the use of Prenda's sottware.

c. Prenda would, upon receipt of the information, dismiss the case against me.

4. In discussion of the settlement, Michael stated that he did not know of any pro bono attorneys in Oregon, but could provide the name of an attorney who might take my case in Minnesota. Because I cannot afford to pay an attorney, I agreed to be sued in the state of Minnesota. I then retained my attorney, Trina Morrison, based on the information provided to me by Prenda Law.

Now, throughout all of this, he believed that Prenda was representing Hard Drive Productions, one of the porn companies that Prenda used to represent, but whose cases they dropped entirely not too long ago to focus solely on these questionable shell companies they claim to be "representing."

5. Before the start of this case, I had not heard of Guava LLC. I believed that I would be sued by Hard Drive Productions, Inc. I believe that Guava LLC's case against me is based on my admission to Michael that I downloaded the video at issue in the Hard Drive Productions case.

6. Before the case against me was filed, I had not heard of Alpha Law Firm. I believed that opposing counsel was Prenda Law.

7. Afier subpoenas were served in the case against me, I learned of Guava LLC's and Prenda Law's practice of finding one John Doc to be a named defendant, and then discovering the names of and requesting settlement money from other John Does by issuing subpoenas to ISPs.

Oh, and it gets worse. After all of this... Prenda went after him again, which seems to be why he's now willing to speak out about the "deal."

8. Last week, on 01/15/13, I was once again contacted by Prenda Law Firm. I received a voice mail from someone on behalf of Prenda Law stating that I needed to make payment arrangements or I would be sued.

At the very least this raises very serious questions about the conduct of Prenda Law and some of the lawyers who represented these named defendants. Given that Prenda is already dealing with serious questions in multiple courts about possible fraudulent activity, finding out that they may have effectively blackmailed a defendant into taking a dive, for the purpose of "agreeing" to discovery to find another batch of people to go after, can't look good.

Filed Under: discovery, john steele, prenda, settlements, spencer merkel
Companies: guava, prenda, prenda law

Prenda Lawyer Claims Judge 'Abhors' Copyright Holders After Judge Becomes Curious About Who Alan Cooper Really Is

from the discovery dept

We've been covering the bizarre situation surrounding some of copyright troll Prenda Law's cases that involve two companies -- AF Holdings and Ingenuity 13 -- where a mysterious person named "Alan Cooper" was listed as CEO. That, alone, isn't so mysterious. But what made it odd was that a guy who took care of one of John Steele's homes reached out to some of the courts hearing cases involving those two companies to note that his name is Alan Cooper, and he had reason to believe that Prenda had used his name illegally as the pretend CEO of these companies. A lawyer in California fighting some of these Prenda / Ingenuity 13 cases, Morgan Pietz, called this to the attention of the court. In response, Prenda's California lawyer, Brett Gibbs, threw a bit of a hissy fit in which he refused to answer some simple questions concerning who actually runs Ingenuity 13, and who "Alan Cooper" really is. Gibbs then sought sanctions against Pietz, which were quickly rejected (pdf) by Judge Otis Wright.

Pietz then asked the court to basically put the case on hold and to order Gibbs / Prenda to respond to his questions concerning AF Holdings and Ingenuity 13:

This motion is made on the ground that "good cause" exists to authorize the limited discovery requested, per Rule 26(d)(1), because, very recently, deeply troubling factual allegations have been made which suggest the plaintiff is engaged in a widespread and systemic fraud on the Courts affecting thousands of ISP subscribers. Specifically, very troubling questions have been raised as to whether Prenda Law, Inc., has misappropriated the identity of one Mr. Alan Cooper of Minnesota, holding him out in federal court filings as the principal of plaintiff Ingenuity 13, a shell entity organized in St. Kitts and Nevis, without Mr. Cooper's knowledge or consent. For weeks, undersigned counsel, and others, have sought answers from Prenda Law, Inc. and its clients AF Holdings, LLC and Ingenuity 13, LLC, to try and put these concerns to rest. None of the answers proffered to date have been at all reassuring; to the extent Prenda has engaged on the issue at all, the only answers provided have been evasive to a degree that is almost comical.

The filing goes on to point out that Prenda could have avoided all of this by simply producing the Alan Cooper in question and showing that it's not John Steele's housekeeper.

If Prenda Law would simply identify the "Alan Cooper" who it claims is the true principal of Ingenuity 13, LLC and AF Holdings, LLC, or even confirm that such a person actually exists (notwithstanding the allegations of Alan Cooper of Minnesota), this ex parte application would not be necessary. Essentially, whether or not there is another Alan Cooper is the million-dollar question. However, Prenda Law has explicitly stated that it will not address any of the troubling factual circumstances raised by Mr. Cooper, or answer any questions on this topic, unless it is compelled to do so.

Courts don't often grant this kind of thing... but this time it did. Right after Christmas the judge granted the order in full, meaning that Gibbs and Prenda are now required to answer the following questions:

1. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, is there another Alan Cooper who is currently the principal of Ingenuity 13, LLC — yes or no?
2. If the answer to the first interrogatory is yes, state all contact information for this Alan Cooper, including current home address, business address, and telephone number.
3. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, was there ever another Alan Cooper who was, in the past, the principal of Ingenuity 13, LLC — yes or no?
4. If the answer to the third interrogatory is yes, state all contact information for this Alan Cooper, including all known home addresses, business addresses, and telephone numbers.
5. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, is there another Alan Cooper who is currently the principal of AF Holdings, LLC — yes or no?
6. If the answer to the fifth interrogatory is yes, state all contact information for this Alan Cooper, including current home address, business address, and telephone number.
7. Other than the Alan Cooper of Minnesota who is represented by attorney Paul Godfread, was there ever another Alan Cooper who was, in the past, the principal of AF Holdings, LLC — yes or no?
8. If the answer to the seventh interrogatory is yes, state all contact information for this Alan Cooper, including all known home addresses, business addresses, and telephone numbers.
9. If the answer to the third interrogatory is yes, state each position this Alan Cooper held at Ingenuity 13, LLC and the dates such position was held.
10. If the answer to the seventh interrogatory is yes, state each position this Alan Cooper held at AF Holdings, LLC and the dates such position was held.
11. Eleventh Special Interrogatory: Was the Alan Cooper of Minnesota who is represented by attorney Paul Godfread ever a principal, even unwittingly, of Ingenuity 13, LLC?
12. Was the Alan Cooper of Minnesota who is represented by attorney Paul Godfread ever a principal, even unwittingly, of AF Holdings, LLC?
13. On November 26, 2012, when undersigned counsel emailed Brett Gibbs to ask for a routine extension request, Mr. Gibbs responded by email “I would have to check with our client about that request. Just an FYI, our client usually does not like to grant these types of requests on short notice unless there is a reasonable chance that settlement may occur in the case.” Later, Mr. Gibbs purported to have an answer on his query to the “client” regarding an extension. Who is the client contact at Ingenuity 13, LLC that Mr. Gibbs spoke with on this matter? Note, no details of the communication are being requested, just the name of the client contact.
14. Reference is made to the following civil actions filed by AF Holdings, LLC and Ingenuity 13, LLC in the Northern District of California: 4:2012-cv-02049-PJH; 3:2012-cv-02393-CRB; 5:2012-cv-02394-LHK; 3:2012-cv-02396-EMC; 3:2012-cv-02404-SC; 4:2012-cv-02411-PJH; 3:2012-cv-02415-CRB; 4:2012-cv-03248-PJH; 3:2012-cv-04218-WHA; 5:2012-cv-04219-LHK; 5:2012-cv-04446-EJD; 5:2012-cv-04447-RMW; 5:2012-cv-04448-EJD; 3:2012-cv-04982-CRB; 3:2012-cv-04216-JSW; 3:2012-cv-04217-RS; 5:2012-cv-04445-LHK; 3:2012-cv-04449-SC; 3:2012-cv-04450-MMC; 3:2012-cv-04976-JSW; 3:2012-cv-04977-WHA; 4:2012-cv-04978-PJH; 5:2012-cv-04979-LHK; 5:2012-cv-04980-EJD; 3:2012-cv-04981-RS. With respect to the copyright assignments attached to the complaints in these actions, as Exhibit B thereto, which all appear to have a similar signature by "Alan Cooper," please state whether the person who signed these assignments was the Alan Cooper of Minnesota who is represented by attorney Paul Godfread — yes or no?
15. If the answer to the fourteenth interrogatory is no, then state all contact information for the person that did sign these documents, including all known home addresses, business addresses, and telephone numbers.

The order also requires them to produce identification documents for the people identified in the questions above, along with proof of their employment at the companies in question. Oh yeah, and also to produce the "signature" of Alan Cooper on documentation which Gibbs had claimed (in earlier court documents) that he had seen on various other court documents.

Given that the judge has, in short order, denied Gibbs' request for sanctions while granting Pietz's request for such discovery, it would appear that the judge isn't buying Prenda's story and is at least curious as to whether or not Prenda can turn up an actual Alan Cooper who is not John Steele's housekeeper. It appears that Prenda has until January 10th to produce the information. Of course, instead of doing that, Prenda appears to be throwing the judicial equivalent of a shit fit.

On New Year's Eve, Gibbs filed one of the more extraordinary motions you'll see, arguing that Judge Wright, in merely asking Gibbs to answer who the CEO is of Ingenuity 13, is impossibly biased against copyright holders and should be removed from the case. I am not joking.

The story Plaintiff now sets forth is rather simple: Honorable Judge Otis D. Wright, II simply abhors plaintiffs who attempt to assert their rights with respect to online infringement of pornography copyrights. Honorable Judge Wright’s abhorrence of such assertions of right under the Copyright Act has risen to a level such that a neutral observer would have reasonable grounds to question Honorable Judge Wright’s impartiality. Indeed, in light of Honorable Judge Wright’s conduct, Plaintiff contends that it would be impossible to convince a neutral observer that Honorable Judge Wright regards this particular type of case impartially.

What follows is a rather ridiculous diatribe, in which Gibbs argues that somehow Judge Wright has it in for companies like the ones he represents, because they dare to enforce their copyrights. He points to an earlier ruling from Judge Wright in a Malibu Media case in which the judge is clearly aware of how copyright trolling works, and says it's somehow unfair for the judge to actually call these companies out on the fact that they're using the court system as part of a business model, rather than for a legitimate judicial purpose. More importantly, he never points out why this absolves him from having to identify just who is Alan Cooper, and whether or not Prenda lied to the court about Alan Cooper and the various companies he's associated with. Of course, nowhere does the evidence show that Judge Wright is biased against copyright holders -- merely concerned that those who are engaged in copyright trolling have a legitimate purpose for what they're doing. His actions, to date, have all revolved around requiring such companies to prove that they're not just in the legal shakedown business -- but rather than do that, Gibbs is throwing a temper tantrum. Crazy.

Filed Under: alan cooper, brett gibbs, copyright, discovery, john steele, morgan pietz, otis wright
Companies: af holdings, ingenuity 13, prenda, prenda law

The Complex Joys Of Music In The Age Of Digital Abundance

from the times-they-are-a-changin' dept

A recent issue of The New Yorker had a fine essay by Mike Spies about the joys of discovering and listening to music. But its overall tone is rather melancholic:

We seem to have created an environment in which wonderful music, newly discovered, is difficult to treasure. For treasures, as the fugitive salesman in the flea market was implying, are hard to come by -- you have to work to find them. And the function of fugitive salesmen is to slow the endless deluge, drawing our attention to one album at a time, creating demand not for what we need to survive but for what we yearn for. Because how else can you form a relationship with a record when you're cursed with the knowledge that, just an easy click away, there might be something better, something crucial and cataclysmic? The tyranny of selection is the opposite of freedom. And the more you click, the more you enhance the disposability of your endeavor.

Of course, this is a common complaint -- that digital abundance is somehow devaluing our experience of art. It's a close cousin of the idea put about by the copyright industries that the lower the price of something, the less you value it (neatly confounding two quite distinct concepts -- "price" and "value".) But the post by Spies rises above that, partly because it is so poetic in its phrasing, and partly because it gets down to specifics. Here, for example, is his description of some of the pleasures enjoyed during that now-lost era of analog scarcity (the music was already digital, but the packaging wasn't):

When I returned to my dorm, I unwrapped the cellophane and turned the album over in my hands, flirting with it, searching for clues about what lay within. The cover image of the singer seemed to tell the story of a man who, perhaps in order to avoid great pain, had entered oblivion, but done so in style, with a cool cigarette sticking straight out of his mouth. The question was: How did he get to oblivion, and why did he seek it out in the first place? The answer, needless to say, was the CD itself: the music, the sonic promise.

There seem to be two distinct elements here. The first is "clues" for the music: that cover image of the singer. In the pre-Internet days, such images had considerable power because they were one of the main ways musicians were visualized for the public. Today, a simple image search will bring up hundreds, if not thousands of images of musicians engaged in lots of activities, both cool and uncool. But for anyone who was truly "searching for clues" about the music, even the uncool images might, in their authentic awkwardness, offer vital hints.

The other element, of course, is the music itself, and its "sonic promise". But again, to understand any given piece of music, is it not useful to have access to the pieces written before and after it by the artist, the pieces that influenced it, and those that it influenced? Or what about all the pieces written in that year, or for the same musicians, or played at the same venue? Those complex cuts of the totality of recorded music -- the rich and surprising playlists that people make and share -- are something that the Internet with its digital abundance is uniquely well-placed to supply in a way that CDs never could. Isn't that multidimensional richness something to be welcomed, not feared?

On the one hand, Spies seems to be saying that today it's too easy, that we don't do enough to earn the pleasure of our music by spending time as we did in the old days:

if I was going to buy a CD, back when I bought them, I had to eke out some time, and even pray for a little luck, as I could spend hours in a dimly lit store, and leave with nothing. So I had to make a conscious decision that I was going to take my chances.

But on the other, he seems to be lamenting the fact that it's just too hard, that we can never know whether we have found what we are looking for, because there is always more to explore:

how else can you form a relationship with a record when you're cursed with the knowledge that, just an easy click away, there might be something better, something crucial and cataclysmic?

Perhaps he just needs to recognize that, as in so many domains, the shift from analog scarcity to digital abundance brings with it a need to change our own ways of thinking and listening. Now, the difficulty of finding music that we like -- the hours spent bent over racks of CDs in that "dimly lit store" -- has become a challenge that is physically trivial, but mentally far more demanding because it is unconstrained and almost limitless in its extent. It's no longer about arriving at that definitive record that is "crucial and cataclysmic", but more about enjoying the journey through, and connections between, entire sequences of wonderful musical performances.

I suspect that the generation now growing up with digital abundance will have no difficulty forming their own deep and important emotional bonds with collections of music that they have discovered not through a slow process of seeking and finding in the physical world, but by constant, high-velocity adventures through an equally valid digital space.

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

Filed Under: discovery, music, technology

New Zealand High Court: FBI Must Release Its Evidence Against Kim Dotcom

from the not-going-well dept

The US's case against Kim Dotcom and Megaupload continues to run into significant problems. While the US Justice Department (with an assist from New Zealand law enforcement) has continued to insist that extraditing Kim Dotcom halfway around the world to the US was a mere formality, and that the evidence against him need not be shown, the courts in New Zealand have taken a rather different view. They refused to rubberstamp the acquisition as the US hoped. Then, the New Zealand High Court stepped in to review the extradition issue, making a final ruling that says that the FBI needs to reveal its evidence and that the extradition request does not comply with the law as currently written.

In other words, a complete and utter failure by the FBI in this effort.

The full ruling (pdf and embedded below) is quite an interesting read, if you've got the time. Basically, the court agrees with the assertion from the US that an extradition hearing isn't meant to try the full case... but, then points out that this doesn't mean you completely ignore the basic rights of the accused. It is still a criminal case, and as such they have certain basic rights that must be observed -- and which the US was trying to deny to Dotcom. The court considers a variety of case law, including some Canadian extradition cases, and even directly notes that some past cases involved "rubber stamp" approvals of extradition (literally using that term). However, more recent cases have pushed back against that and said that the home court need not try all of the evidence, but should at least look at the evidence to see if it is defective.

The court further notes the fundamental unfairness of the argument made by the US and New Zealand: "severely restrict[ing] the ability of [one party] to file relevant evidence would not easily be characterised as 'fair.'"

The bigger question, then, was whether or not the FBI needed to release its evidence to Dotcom, and again, the Court ruled against the US's position. The Court notes that the law enforcement folks rely on obsolete and outdated caselaw to make their argument, and notes that "I do not find this line of authority particularly persuasive" because they really cover different issues, and (of course) the arguments made appear to be stretched from the original intentions. The judge seems to recognize that the FBI and the Crown are making ridiculous arguments, noting that there is "nothing incompatible" with revealing the evidence in New Zealand and then using it in the US case should extradition be granted.

In my view disclosure should be provided by the requesting state. The Act provides the person sought with a right to challenge whether the threshold for extradition has been met before he will be extradited. Consistent with the requirements of... the Bill of Rights Act to a fair hearing, the person sought should be given access to sufficient information to enable him or her to fully participate in that hearing on an equally informed basis. Without access to materials relevant to the extradition hearing phase, the person sought will be significantly constrained in his or her ability to participate in the hearing and the requesting state will have a significant advantage in terms of access to information.

The order lists out what needs to be disclosed, and it's a pretty long list. Basically "all documents" relating to each of the key charges.

Separately, the judge noted that the "Record of Case" document, which the Crown (with the FBI) used to argue for extradition wasn't up to proper legal standards in that it did not provide the necessary info to support extradition.

She also found the "Record of Case", the document which made the argument for extradition, did not currently meet the legal requirements. She said the FBI was under an "obligation of candour" to provide any evidence which could impact on the court's judgment of whether the extradition threshold had been met - and no information had been provided to support FBI claims. The document "did not comply", she said.

Basically, this is the final ruling on this issue. The New Zealand government and the FBI can't appeal it any higher and now have to actually let Dotcom and his lawyers see the evidence against him. What a concept.

Filed Under: discovery, evidence, extradition, fbi, kim dotcom, new zealand
Companies: megaupload

DailyDirt: Space Shuttle Stories

from the urls-we-dig-up dept

For some people, NASA's Space Shuttle program was almost a complete boondoggle. The shuttles never fully lived up to their original promises, and they were far more expensive than planned. But the design of a reusable space plane captures the imagination in a way that an acorn-shaped capsule doesn't. Here are just a few stories about the Space Shuttle that you might have missed.

• Wayne Hale, a retired Space Shuttle Flight Director, explains how Columbia was damaged by the loss of insulation foam -- by finding out that Discovery was almost damaged in the same way. It wasn't due to improper foam installation, but instead thermal cycling from filling and re-filling the cryogenic fuel. [url]
• On its way to a museum, Enterprise sustains damage to its wingtip after hitting a bridge. The NASA prototype spacecraft never flew in space, and it suffered only cosmetic damage while being transported to its final destination at the Intrepid Sea, Air and Space Museum in Manhattan. [url]
• Caenorhabditis elegans worms actually survived the Columbia disaster, and their descendants flew into space in 2011 on the Endeavour. Worms on a m*********ing spaceplane! [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Filed Under: caenorhabditis elegans, columbia, discovery, endeavour, enterprise, shuttle, space, spacecraft, wayne hale, worms
Companies: nasa

What What (In The Butt)? What What (Fair Use Doesn't Need A Trial)?

from the well-that's-nice dept

Last year, we reported on the really bizarre lawsuit of video producers Brownmark Films suing South Park, Viacom and Paramount for parodying the bizarre hit viral video What What (In The Butt). You can see the original video below, followed by the South Park parody:

It's worth noting that the actual song had been licensed, and the "singer" Samwell was apparently paid. The lawsuit was over the copyright on the video itself. Back in July a court ruled for summary judgment against Brownmark, noting it was a pretty easy case based on parody grounds. We had meant to cover it at the time, and the ruling is somewhat amusing, as the judge can hardly resist noting the general oddity of the video and the case -- but things got busy and it slipped away.

So, thanks to Nate Anderson for pointing our attention to Duke University's Scholarly Communications Officer, Kevin Smith's post discussing an important point that many overlooked in covering the case: that "fair use" was determined without a trial. One of the many problems with a fair use "defense" is that it's still considered a "defense" to a claim of copyright infringement, rather than a right on its own. That means, most courts have felt that in order to determine fair use, you first have to go through a full trial, in which infringement is proven, and then fair use is brought forth as a defense.

But, in this case, the court skipped all that and said you can determine fair use at the summary judgment stage. That's important. As we've seen, even those who believe they have a strong fair use claim will often settle rather than fight, knowing that the cost of a trial is prohibitive.

What is significant here is that the judge made the fair use decision before there had been a trial. He examined the pleadings and found that everything he needed to make this easy call was already before him. Then he ruled favorably on a motion to dismiss the case on the basis of those pleadings (technically a “motion to dismiss for failure to state a claim”) and dismissed the case with prejudice (which means plaintiff cannot re-file it).

Librarians and other academics are often afraid to rely on fair use, even when there arguments would be strong, because of the expense of defending a lawsuit even when you win. Content companies often encourage that fear, reminding academics that fair use is a defense that can only be decided with certainty at a trial. While this case is a little bit unusual, it invites us, I think, to look at this “chilling effect” and perhaps lend it less credence.

In his ruling to dismiss, Judge Stadtmueller explicitly notes that “evaluating an affirmative defense, and indeed the ‘fair use’ defense, at the pleadings stage is ‘irregular’.” But he thinks it is justified precisely because when the case for fair use is “obvious,” “the court can conclude that this dispute does not warrant ‘putting the defendant[s] through the expense of discovery’.” In other words, in straightforward cases, a fair use claim can be evaluated before there is a trial, explicitly to prevent the cost of litigation from itself becoming an obstacle to proper exercise of fair use.

Who knows if other judges will follow this lead -- and, again, this case may be seen as extreme because it's so obviously fair use. But it would be nice if judges were willing to rule on fair use upfront, rather than go through a protracted and expensive trial.

Filed Under: copyright, discovery, fair use, parody, south park, summary judgment, what what

DailyDirt: Space Shuttle Discovery For Sale, $28.8M OBO, Shipping Included

from the urls-we-dig-up dept

The historic end of the space shuttle program is coming up. The shuttles have been part of an inspiring space program that aimed to win an international "space race" against all comers. Now, though, the space race is turning into a commercial enterprise -- so the demand for ostentatious space vehicles isn't as high as it used to be. The upside is that there may actually be more opportunities for "regular people" (ok, millionaires mostly) to get a chance to go into space. Here are a few links about Discovery and its future plans.

• Discovery's final mission was extended a bit, giving it a total time of 365 days in space. During that non-continuous year in space, Discovery traveled about 148 million miles -- more than the distance between the Earth and the Sun (but done in a relatively tight circle). [url]
• The final resting place for Discovery will be announced on April 12th -- the 30th anniversary of the first shuttle flight. There are over 20 museums that have applied to get one of the last three shuttles after they've been decommissioned. [url]
• The manager of the space station national laboratory makes an analogy that the end of the shuttle program for ISS means that they'll be using "pickup trucks" instead of an 18-wheeler to send equipment to the ISS. Ford or Chevy? [url]
• A pretty big pickup truck, aka an unmanned Delta 4-Heavy rocket, launched from California in January, setting a record for the largest rocket to blast off from the West Coast. It took off from a launch pad that was originally designed for the space shuttles, but no shuttles ever launched from California. [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Filed Under: discovery, iss, space shuttle

Music Publishers Settle With Limewire; Afraid To Have To Prove They Actually Owned Copyrights In Question

from the ah,-discovery... dept

We were a bit surprised last summer when the major music publishers piled on to the bandwagon and sued Limewire. After all, the major record labels (who own most of the major publishers anyway) were already involved in a lawsuit with Limewire and had won a pretty complete victory over the file sharing system. Having the publishers sue as well seemed like just a way to try to squeeze even more money out of a dead shell. Apparently, the publishers just figured that whatever they got out of this was easy money. What they didn't expect was that Limewire, dead as it is, would fight back pretty hard and during discovery demand actual evidence that the publishers really hold the copyrights they claim to hold (something that isn't always clear once you dig into the details). So it's interesting to see that a settlement has been reached, and the publishers' portion of the lawsuit is effectively over. Many reports seem to be assuming that Limewire gave up here, but there's a good chance that it was the publishers who backed out, realizing they had no interest in opening up a discovery process that might prove a large segment of their business is based on pure fiction. In the meantime, they'll leave it to their parent companies to continue the battle to try to get whatever cash they can out of Limewire.

Filed Under: copyright, discovery, publishers
Companies: limewire