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Yes, the Top 20% Is a Problem Too

David Brooks begs Democrats not to go nuts this year: Democrats are trying to start a populist v. populist campaign against Trump, which is a fight they cannot win. Democratic populists talk as if the only elite in America is big business, big pharma — the top 1 percent. This allows them to sound populist […]

Felony Contempt of Business Model: Lexmark's Anti-Competitive Legacy

In 2002, Lexmark was one of the leading printer companies in the world. A division of IBM—the original tech giant—Lexmark was also a pioneer in the now-familiar practice of locking customers in to expensive "consumables," like the carbon powder that laser-printers fuse to paper to produce printouts.

Lexmark gave its customers the choice of paying extra for their cartridges (by buying refillable cartridges at a $50 premium), or paying extra for their toner (saving $50 on a cartridge whose "lock-out" chip prevented refilling, so that they would have to buy a whole cartridge when the non-refillable one ran dry). Customers, however, had a counteroffer for Lexmark: they wanted to save $50 on a "non-refillable" cartridge and then go ahead and refill it. After all, carbon is relatively abundant throughout the universe, and more locally, Earth has more carbon that it knows what to do with.

Various competitors of Lexmark stepped up to help its customers with their counteroffer. One such company was Static Control Components, which reverse-engineered Lexmark's lock-out chip and found that its 55-byte program performed a relatively straightforward function that would be easy to duplicate: when a cartridge was newly filled, this chip signaled to the printer that the cartridge had available toner. Once the cartridge ran out, the chip would tell the printer that it had an empty cartridge. Refilling the cartridge did no good because the chip would still tell the printer that there was no toner available.

After Static Control performed this bit of reverse engineering, it was able to manufacture its own chips, which it sold to remanufacturers, who would pour in fresh carbon, swap out the chip, and sell the cartridges. Lexmark had a strong objection to this. But like every business, Lexmark’s products should be subject to market pressures, including the possibility that customers will make uses (and re-uses) of your product that aren’t exactly what the manufacturer intended. Lexmark was in a position to create its own refilling business to compete with Static Control, of course. But it didn’t want to. Instead, it wanted to trap purchasers into the lucrative two-tier market it had dreamed up.

Under a reasonable open market, that would have been the end of it: Lexmark would have either sucked it up and taken the losses at the margins from Static Control, or it would have gone into the refilling business and tried to outcompete them. But in 2002, Lexmark thought it had a third option: to have the pathway that Static Control took to create aftermarket competition declared illegal.

In 1998, President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law. The DMCA was a comprehensive set of copyright changes occasioned by the advent of commercial Internet services. While the DMCA's significance has only grown over time, one part, Section 1201, has become central to the story of competition, information security, and self-determination in digital technology, reaching far beyond the traditional copyright industries. And this overflow really begins with the dispute between Lexmark and Static Control.

DMCA 1201—the "anti-circumvention" rule—imposes a blanket ban on disabling or bypassing "access controls" for copyrighted works. In plain language, that means that you can't override a manufacturer's software locks on copyrighted works. Notably, DMCA 1201 does not limit itself to banning circumvention where copyright infringement takes place: if you remove or bypass a copyright lock to do something that is perfectly legal, like fair use or reverse engineering, you're still in violation of DMCA 1201. What's more, providing people with a tool to bypass a DMCA 1201 lock can sometimes be a criminal violation, a felony punishable by a five-year prison sentence and a $500,000 fine (for a first offense!).

Originally, DMCA 1201 was used by companies that made products like DVD players and game consoles. For example, DVD players rely on "region coding" to stop people from buying DVDs in one country and watching them in another country. This isn't a copyright violation (buying a licensed DVD and then watching it in your home is definitely not a copyright violation!), but it is a violation of the movie studios' business models, which maximize profits by controlling when movies are released in different "territories." Because bringing a DVD from one territory to another and watching it require that you somehow disable your DVD player's software lock, the movie studios have been able to create a new kind of violation: Felony Contempt of Business Model.

So long as DMCA 1201 was only applied to a few niche devices like DVD and game players used to control access and copying of commercial entertainment products, it was at least contained. Lexmark, however, was determined to expand DMCA 1201 and avail itself of the right to sue competitors for contempt of its own business models. Lexmark's lawsuit against Static Control made an unprecedented argument: that bypassing its lock-out chips was a violation of DMCA 1201.

At first, it's hard to understand how this could work. The lock-out chips on a toner cartridge control access to fine carbon powders -- not copyrighted works. How could a law that banned breaking copyright locks cover bypassing locks on carbon?

Lexmark had an answer: the copyrighted work in its toner cartridge was the 55-byte program in the lock-out chip, which also functioned as a password that enabled printing. Software is copyrightable, and so the copyrighted work that the lock was protecting was... part of the lock itself.

Happily, the court didn't buy it. While the judges in the Court of Appeals for the Sixth Circuit acknowledged that software could be copyrighted, they found that a software program doesn’t trigger DMCA 1201 restrictions when it’s used as a password.

Time went by, and Lexmark fared just fine. Today, Lexmark is part of a conglomerate of companies that also includes Static Control, putting them both on the same side.

The underlying story of Static Control was once routine: once a company like Lexmark attained dominance, it would attract competitors who would find ways to erode that dominance by providing its customers with superior products at lower prices. The new entrants would rely on adversarial interoperability as their chief competitive weapon: that's when a company makes a new product that works with another company's existing products, against the established company's wishes.

Unfortunately, Lexmark (now combined with Static Control) didn’t give up after the court refused to allow it to use section 1201 to block competition. It shifted its focus to patent law and tried to fight off new competitors with that intellectual property claim, rather than by making better products at better prices. It’s such efforts that led EFF to launch its patent-busting project, to help clear a path for competition in digital tools that benefit users.

Today, Lexmark's legacy isn't an object lesson in the ways that adversarial interoperability can fuel competition, lowering prices and improving products. Rather, it's an early example of a ruthless campaign to dominate markets and see off competitors by invoking Felony Contempt of Business Model and various intellectual property regimes.

As the years have gone by, DMCA 1201 has only become more of a threat, despite the good legal precedent in Lexmark. That's because other federal appeals courts have rejected the Lexmark precedent, holding that DMCA 1201 liability can attach no matter why the downstream user bypassed an access control, unless one of the narrow, temporary exemptions apply.

The first printer ink wars were fought with superior products, but today's printer ink wars are being fought with dirtytricks and legalthreats.

More than 15 years ago, the case Lexmark showed us that forcing companies to compete on price and quality created a vibrant market where no one could dominate forever. Today, that promise has not been kept. Between patents, unfair terms of service and copyright overreach, the dominant players no longer need fear upstart competitors wielding adversarial interoperability: instead, using one of these underlying legal theories, the incumbents can simply bring (or threaten) suit for Felony Contempt of Business Model and sue or scare off nascent competitors before they can even get started.

Is it any wonder that investors now call any business dominated by a Big Tech giant the kill zone, rather than seeing it as an opportunity to seize a market from a bloated tyrant? It started with printers, but it definitely hasn’t ended there.

Related Cases:  Lexmark v. Static Control Case Archive

A Major Police Body Camera Maker Hits Pause on Face Surveillance

Communities and lawmakers across the country are waking up to the fact that using face recognition for government surveillance is a troubling trend, particularly when used with cameras that police officers wear. On Thursday, Axon—a major police body-worn camera maker—added its voice to calls to press the pause button on this type of face surveillance, saying it will no longer be “commercializing face matching products on our body cameras at this time.”

Axon’s decision follows strong opposition to government use of face surveillance. San Francisco in May banned city use of face surveillance. This month, Oakland, California and Somerville, Massachusetts have both taken crucial steps toward adopting similar bans, with both measures now headed for full city council votes. 

California Assemblymember Phil Ting has also introduced A.B. 1215, the Body Camera Accountability Act, which would prohibit the application of all biometric technology on cameras worn or carried by police officers.

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California: No Face Recognition on Body-Worn Cameras

Axon made its decision based on the recommendation of its independent ethics board. (EFF Tech Projects Director Jeremy Gillula sits on the Axon Ethics Board, in his personal capacity.)

As EFF and others have noted, the interaction between face surveillance and police cameras have grave implications for privacy, free speech, and racial justice.

In its own statement, Axon highlighted the need for lawmakers to think carefully about the issues raised by using face surveillance on police cameras. 

Technology is moving much faster than legislative bodies and courts can respond. Hence, we believe it is critical for technology leaders to work hard to understand the ethical, legal, and community implications for new technologies that are too new to be effectively covered by existing law.

The ethics board report, published by New York University’s Policing Project, has also recommended that jurisdictions should not adopt face recognition technology without “going through open, transparent, democratic processes” that allow for public analysis, input and objection. “Further, development of face recognition products should be premised on evidence-based benefits,” the report said.

This is exactly the sort of review and auditing process for surveillance technologies, known as CCOPS or SERO, that EFF and others have supported across the country.

It should be noted that Axon has left open the possibility that it may include face recognition in the future, which is why we need federal and state laws—such as A.B. 1215—that would ban the use of biometric technology on body cameras altogether.  As New York Timescolumnist Charlie Warzel wrote about Axon’s announcement, “true progress will have to come from regulation at the city, state or federal level.”

We agree. Californians, please urge your lawmakers to pass A.B. 1215. Communities across the country can urge their lawmakers to ensure that police body-worn cameras, intended to act as a tool to improve police accountability, do not morph into a mass biometric surveillance network.

Again!? The NSA’s Phone Records Program Still Can’t Stay Within the Law

Just as the Trump administration has signaled its interest in a permanent “clean” reauthorization  of the Patriot Act’s phone surveillance provision, the NSA proves once again that it is not to be trusted with these tools. New documents obtained by the ACLU and reported in the Wall Street Journal have revealed that last year the NSA once again collected phone records of Americans that it was not authorized to obtain.

The NSA collected Information, including who phone-users were calling and for how long, after a telecommunications firm began sending the information to the NSA—despite the fact that it had received no orders that would have authorized them to do so. Although the name of the company is redacted, for years it has been widely reported that large telecommunication firms like AT&T and Verizon have worked with the NSA as part of BLARNEY, an NSA project that leverages “commercial partnerships” in order to gather intelligence.

 This “anomalous” unauthorized collection of American’s private information comes only a few months after a separate incident in which “technical irregularities” resulted in the NSA getting access to many more records than it should have. In response, the NSA erased three years of all of its collected metadata, which amounted to records of hundreds of millions of phone calls. The documents released today include an assessment by the NSA that the overcollection had a “significant impact on civil liberties and privacy,” which is putting it mildly.

 The NSA’s telephone record program, conducted under Section 215 of the Patriot Act, allows it to collect metadata of phone calls, including phone numbers, time stamps, and other identifying information. While this information may seem benign, many organizations and outlets, including EFF, have demonstrated how things like time stamps, phone numbers, and the GPS coordinates of where calls were made can be stitched together to reveal potentially compromising information about a person. Metadata can, for instance, have dire consequences for vulnerable populations who fear retribution for political beliefs, or whose metadata could be used in immigration enforcement.

 With Section 215 up for re-authorization in December, these two instances prove that it’s time to let the NSA’s permission to sweep up phone records expire. If Section 215 is allowed to be reauthorized, accidents like this—in which an unthinkable amount of our personal data winds up in the hands of the government—will continue to happen.

Related Cases:  Jewel v. NSA

The Cost of Endless War

The “war on terror” has cost us twice what we’d need to pay for healthcare for every American.

All Publicity is Good Publicity

The camps at the border are getting some bad press. Time to call in the spin doctors.

Just Like the Real Thing

All the new amenities at your co-working space.

The Pioneering Surgeon Who Defied Victorian Gender Norms

Assigned female at birth, Dr. James Barry lived life as a man—and saved lives.

With Census Decision, Trump’s GOP Falters in March Toward White Minority Rule

The Supreme Court's failure to address the racist underpinnings of the census citizenship question — even while blocking it — is concerning.

The post With Census Decision, Trump’s GOP Falters in March Toward White Minority Rule appeared first on The Intercept.

Josh Gottheimer Warned Democratic Leaders He Had Votes to Block Bill Mandating Better Conditions for Children in Detention

The bill passed by Congress “does nothing to hold a rogue agency accountable for its cruelty,” said Rep. Pramila Jayapal.

The post Josh Gottheimer Warned Democratic Leaders He Had Votes to Block Bill Mandating Better Conditions for Children in Detention appeared first on The Intercept.

NYPD Added Nearly 2,500 New People to Its Gang Database in the Last Year

The secret gang database maintained by New York police consists almost entirely of brown and black people.

The post NYPD Added Nearly 2,500 New People to Its Gang Database in the Last Year appeared first on The Intercept.

The Democratic Debates Showcased the Most Dangerous Form of Climate Denial

An ongoing forest fire has ravaged more than 42,000 acres of the Florida Everglades. Forest fires are a natural occurrence, but they are expected to get worse as climate change lengthens the fire season and reduces rainfall. About 40 miles south of the blaze is Miami, a coastal city of half a million resting on a foundation of porous limestone, which floods on sunny days and could be partly underwater by 2045.

The first Democratic Primary Debates of the 2020 election unfolded in Miami amid this climate chaos. Climate change will transform the future in unforeseeably ways. But this transformation is already happening all around us. The next decade is the time to embark on a just transition to climate safety: The Intergovernmental Panel on Climate Change report says that we need to cut global carbon emissions in half in this timeframe to have any hope of staving off a climate crisis that would existentially threaten human society. Alarmingly, most Democratic candidates have made it clear that they have little understanding of the magnitude of the threat and the response required to meet it. And moderators curated debates devoid of the urgency this moment demands.

On Wednesday, the first debate devoted a total of seven minutes to the existential threat of global warming. The moderators evidenced paltry knowled­ge of the subject: Chuck Todd confused the key terms “mitigation” (reducing emissions) and “adaptation” (increasing resiliency), and echoed right-wing talking points about the “cost” of addressing climate change. None of the 10 candidates mentioned the Green New Deal. On Thursday, it was eight minutes spent on climate, and three candidates referred briefly to the Green New Deal. One of them was John Hickenloper, who cited it as an example of why candidates shouldn’t identify as socialists.

Of course, it’s far more important to look at what candidates actually do beyond the debate spotlight. Jay Inslee stands out for convincingly campaigning on climate change as his number-one priority. His plans for sector-by-sector decarbonization and phasing out the fossil fuel industry are impressively detailed—and even suggest using state power to decommission oil, gas and coal assets.

Elizabeth Warren has multiple plans for that, and aspects of them, like the call for a concerted industrial policy and mass job creation, are good. But a worrying thread of “economic patriotism” unites those plans: She sees the global market for green technology as a way for the U.S. to reassert its manufacturing prowess, a quest for dominance that would undermine global cooperation.

At last night’s debate, Todd did a slightly better job presenting his climate question, framing climate change as a “major concern for voters” and asking for policy details. But candidates’ responses left much to be desired.

Kamala Harris referred to the “climate crisis” as an “existential threat” and voiced support for a Green New Deal, but quickly pivoted to other supposed threats—Trump, King Jong Un, and Putin—thus undercutting the punch of her initially bold statement.

Joe Biden waxed nostalgic about the Obama administration’s achievements, emphasized the need for electric-vehicle-recharging stations, and discussed jobs and the Paris Accord before pointing the finger at the “85 percent of the world makes up the rest” of carbon emissions.

Hickenloper, a man who once claimed he drank fracking fluid to prove it was harmless, said working with the oil and gas industry will help address climate change. But those industries are to blame both for climate change and for fostering the dangerous negligence of our political system; they must be dismantled and their executives prosecuted.

Pete Buttigieg called for “aggressive and ambitious measures.” His first example? A “carbon tax and dividend”—the posterchild for the gradual, technocratic, market-oriented proposals that have failed to gain political traction or avert climate chaos.

Of the 20, only Bernie Sanders seemed to grasp—and relish—the need to confront the fossil fuel industry, and to divert the “trillion and a half dollars” we spend “on weapons of destruction” to transform our energy systems. It’s less the dollar amount that sets him apart, and more the way he links international cooperation and U.S. demilitarization—and doesn’t shy away from naming climate change as our “common enemy.” Yet he didn’t mention the Green New Deal, even though it is an element of his campaign platform.

Weeks earlier, Tom Perez, chair of the Democratic National Committee, rejected calls for a debate centered on the climate emergency. His reasons, which framed the climate crisis as one narrow “issue” among many others and concern-trolled about breaking the previously-devised rules governing debate procedure, were cringeworthy. He also threatened any candidate who participates in a unsanctioned debate with exclusion from the official ones.

By doing so, he offered an on-the-nose illustration of how the political establishment is aiding and abetting the crimes of fossil capital. Perhaps Democratic Party elites believe that ignoring climate change is somehow necessary to winning over some slice of voters against Trump next November. But they're wrong on the politics: People know that action is necessary. According to recent polls commissioned by Data for Progress, 64% of registered Democratic voters want a climate debate and 71% support a Green New Deal.

On Tuesday, hundreds of Sunrise Movement activists descended the DNC headquarters, demanding a climate debate. As of Thursday, dozens remained, having camped out overnight. Their persistence matches the depth of the crisis. As Sunrise co-founder Varshini Prakash said in a statement released Tuesday, “Business as usual is a death sentence.”

The most dangerous form of climate denial is no longer Senator Jim Inhofe throwing a snowball on the Senate floor to prove that global warming isn’t real, or Trump calling climate change a Chinese hoax. It’s liberal and centrist politicians who should know better appealing to “bipartisan consensus,” immediately shifting the blame to other countries when the U.S. has among the highest per-capita emissions in the world, or asking, “How will we pay for it?”

Moderators shouldn't wait roughly an hour and 19 minutes, as they did at last night's debate, to ask the first question explicitly about climate change—and Democratic candidates shouldn't wait for them to do so either. Climate change shapes every other political question. It does not belong on a laundry list of topics, because we can’t build a better world without a livable planet.

California Set to Ban Hair Discrimination

This is the kind of thing that I suppose Fox News will mock someday, but it’s a good idea: The CROWN Act, which passed the state Senate in April, was approved by the state Assembly on Thursday. It would outlaw policies that punish black employees and students for their hairstyles. Supporters say the bill’s acronym […]

Bernie Sanders Said Medicare for All Would Protect Abortion. Here’s Why.

Last night, Sen. Bernie Sanders (I-Vt.) was asked on the Democratic presidential debate stage how he would protect abortion rights in the face of unprecedented attacks on the procedure and the possibility that Roe v. Wade might be overturned. Sanders gave a surprising response: He’d fight back against restrictions on abortion with his signature legislation, Medicare […]

Please STOP, stop, stop using #Google #reCaptcha on your websites!
You are giving away your visitors' #privacy and they cannot even opt-out and avoid it if they want to reach your contents.
https://www.fastcompany.com/90369697/googles-new-recaptcha-has-a-dark-side
#privacyMatters #webdevelopment

Nextcloud announces a new collaborative rich text editor called Nextcloud Text, not "a replacement to a full office suite, but rather a distraction-free, focused way of writing rich-text documents alone or together with others."
https://cloud.nextcloud.com/s/4Bi8CMtKLDe2otY

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