Old Fucking Punk @lwriemen@librem.one

On Trial in a Language You Don’t Speak

COOK COUNTY, ILL.—Morelia Orozco walks into the George N. Leighton Criminal Court Building at 8:30 a.m. holding a clipboard with her schedule for the day. As a full-time Spanish court interpreter in her 40s, she is swamped with seven courtrooms to cover. Just before her first case, Orozco receives an unexpected text message urgently calling her to another courtroom. She rushes over to help, leaving her assigned case unattended.

The client is a middle-aged man who has trouble expressing himself in English in a stressful court setting. At lightning speed, Orozco translates the judge’s words for her client and the client’s words to the court. About 30 minutes later, she hurries off to her next assignment.

“We are always running from one [courtroom] to another,” says Veronica Rivas, a per-session Spanish court interpreter for Cook County.

Court interpreters are in high demand in Cook County, home to 743,200 people with limited English proficiency—around 15% of the population. But in recent years, the number of full-time interpreters has decreased. In 2014, the county had 34 full-time interpreters; now, there are 29.

At the Daley Center, one of the busiest courts in Cook County, an average of 66 cases call for an interpreter daily. Only six Spanish interpreters and one Polish interpreter, including per-session interpreters, are regularly stationed there.

Advocates say the decline in full-time court interpreters means vulnerable, non-English-speaking communities may not be getting adequate legal support. The Chicago News Guild, a local of the Communication Workers of America (CWA) that represents court interpreters, has collected a list of incidents when no interpretation services were available in courts. (Full disclosure: In These Times’ staff is represented by CWA’s Washington-Baltimore News Guild.) The list, though not comprehensive, records 26 such cases since April 2018. For instance, on June 11, 2018, two Spanish-speaking parents were unable to get unsupervised visits for their child at the Juvenile Courthouse, and on November 7, 2018, the court ignored an Arabic-speaking defendant’s request for an interpreter. According to the list, the judge conducted proceedings “off the record,” and a friend of the defendant who speaks a little English attempted to help but did not interpret the court proceedings unless the Judge asked the defendant a question. At the end, the defendant was found guilty.

The unavailability of court interpreters often leads to long wait times, continuances or a family member or friend interpreting for the case.

“We clearly do not have enough interpreters,” says Craig Rosenbaum, executive director of the Chicago News Guild. “The courts are not being served.”

In 2018, around 58,000 interpretation sessions were conducted in Cook County courts, a drop of 31% from the 85,000 sessions in 2015, according to the Chief Judge’s office. The office maintains, however, that “the number of court interpreters is sufficient to meet demand, and interpreters are provided upon request,” according to Pat Milhizer, communications director at the office.

Interpretation services are a low priority within most court budgets nationwide, says Mike Ferreira, president of the California Federation of Interpreters Local 39000 (also a local of CWA). “When it comes to language access in the courts,” he says, the courts tend to do “whatever is the least expensive, minimum level of service to avoid appellate issues.”

A lack of court interpreters has caused problems across the country. A shortage of Mayan interpreters, for languages such as Mam, K’iche’ and Q’anjob’al, has caused delays in immigration courts. And in one Huntsville, Ala., case, a woman who knew only a few words of English unwittingly relinquished parental rights to her youngest son in 2016.

“There’s a constitutional obligation to provide everyone with access to the courts,” says Alan Mills, executive director of the Uptown People’s Law Center in Cook County. “Providing an interpreter is a necessary part of that. It’s not optional.”

The Office of the Chief Judge is currently in the process of hiring more full-time interpreters. Meanwhile, 54 per-session interpreters have been enlisted, none of whom are eligible for employee benefits.

Claudia Perez, a single mother of four, has worked for Cook County as a per-session interpreter for over 12 years. She has no health plan, no sick pay and no paid vacation, despite working three to four full days per week. “I used to work almost every day when I first started,” Perez says. “Because the county doesn’t want to pay for health insurance, they limit my hours.”

In an ongoing contract negotiation with Cook County, the union is demanding 30 full-time Spanish interpreters, seven Polish, two Arabic, and sick pay for per-session interpreters.

The importance of interpreters should not be underestimated, says Elsa Prado, who worked as a per-session interpreter in Cook County from 1998 to 2013. “We are literally the voice, the eyes and the ears of people who cannot speak English.”

Don't Renew Section 215 Indefinitely

The New York Times reported that the Trump administration wants Section 215, the legal authority that allows the National Security Agency to collect Americans’ telephone records, renewed indefinitely. That’s despite earlier reports the NSA had shuttered its Call Details Record (CDR) Program because it ran afoul of the law, violated the privacy of scores of Americans, and reportedly failed to produce useful intelligence. In a letter to Congress, outgoing Director of National Intelligence Dan Coats argued for permanently reauthorizing the legal authority, which also allows the government to collect a vast array of “tangible things” in national security investigations, as well as other provisions of the Patriot Act that are set to expire in December.

For years, the government relied on Section 215 of the USA Patriot Act to conduct a dragnet surveillance program that collected billions of phone records documenting who a person called and for how long they called them—more than enough information for analysts to infer very personal details about a person, including who they have relationships with, and the private nature of those relationships.

In 2015, a federal appeals court held that NSA’s interpretation of Section 215 to conduct this surveillance dragnet was “unprecedented and unwarranted.” Despite the passage of the 2015 USA Freedom Act, which gave the government more limited authority to conduct the CDR program, the government continued to collect hundreds of millions of records. And in 2018, the NSA was compelled to delete millions of records after it learned that some of the data had been collected from phone service providers without legal authority or authorization.

If the program does not help ensure the safety of Americans, cannot stay within the law, and violates our privacy, then why should Congress reauthorize it? After all, as of now, the NSA isn’t even using it.

This December, rather than permanently renew the authorization that allows the NSA to use an invasive program, it’s important that we push Congress to end the Call Details Record program once and for all and enact other important reforms.

Take Action

Tell Congress to End the CDR Program

Related Cases:  Jewel v. NSA

Court Rules That “Patent Troll” is Opinion, Not Defamation

Free speech in the patent world saw a big win on Friday, when the New Hampshire Supreme Court held that calling someone a “patent troll” doesn’t constitute defamation. The court’s opinion [PDF] is good news for critics of abusive patent litigation, and anyone who values robust public debate around patent policy. The opinion represents a loss for Automated Transactions, LLC (ATL), a patent assertion entity that sued [PDF] more than a dozen people and trade groups claiming it was defamed.

EFF worked together with the ACLU of New Hampshire to file an amicus brief [PDF] in this case, explaining that the lower court judge got this case right when he ruled against ATL. That decision gave wide latitude for public debate about important policy issues—even when the debate veers into harsh language. We’re glad the New Hampshire Supreme Court agreed.

Last week’s ruling court notes that “patent troll” is a phrase used to describe “a class of patent owners who do not provide end products or services themselves, but who do demand royalties as a price for authorizing the work of others.” However, the justices note that “patent troll” has no clear settled definition. For instance, some observers of the patent world would exclude particular entities, like individual inventors or universities, from the moniker “patent troll.”

Because of this, when ATL’s many critics call it a “patent troll,” they are expressing their subjective opinions. Differences of opinion about many things—including patent lawsuits—cannot and should not be settled with a defamation lawsuit.

“We conclude that the challenged statement, that ATL is a well-known patent troll, is one of opinion rather than fact,” write the New Hampshire justices. “As the slideshow demonstrates, the statement is an assertion that, among other things, ATL is a patent troll because its patent-enforcement activity is ‘aggressive.’ This statement cannot be proven true or false because whether given behavior is ‘aggressive’ cannot be objectively verified.”

The court ruling also upheld tough talk about ATL’s behavior beyond the phrase “patent troll.” For instance, the court looked at statements referring to ATL’s actions as “extortive,” and rejected defamation claims on that basis, finding that was rhetorical hyperbole. Another ATL critic had complained that ATL’s efforts “cost them only postage and the paper their demand letters are written on.” This, too, was hyperbole, part of the give-and-take of a public debate.

This case has its origins in the patents of inventor David Barcelou, who claims he came up with the idea of connecting ATMs to the Internet. As Barcelou describes in his defamation lawsuit, he saw “his business efforts fail,” before he went on to transfer patent rights to ATL and create a patent assertion business.

ATL began suing banks and credit unions that were allegedly using Barcelou’s patents in their ATMs. In all, about 200 different companies paid ATL a total of $3 million in licensing fees to avoid litigation—that’s an average of $15,000 per company.

But when they were finally examined by judges, ATL’s patents failed to hold up. The Federal Circuit invalidated several patent claims owned by ATL, and further found that the defendants’ ATMs did not infringe the Barcelou patents.

After that court loss, ATL had a steep drop in licensing revenue. That’s when ATL launched its defamation lawsuit, blaming its critics for its setbacks.

For software developers and small business owners who bear the brunt of patent troll demands and lawsuits, the New Hampshire decision sends a clear message. If you’re upset about the abuses inherent in our current patent system, it’s okay to speak out by using the term “patent troll.” Calling out bad actors in the system is part and parcel of the debate around our patent and innovation policies.

Related Cases:  Abstract Patent Litigation

Jill Biden Tells Voters to Settle for Her Husband

Jill Biden has a message for voters reluctant to get behind her husband: settle or face another four years of hell. That’s essentially what the former second lady, in surprisingly blunt terms, told a group of teachers in New Hampshire on Monday, as she attempted to make the case for why Joe Biden is the […]

The NYPD Finally Fired the Cop Who Killed Eric Garner — but the Police Reaction Shows How Little Will Change

The decision will not alter the entrenched police ideology that allows for deaths like Garner’s — showing why reform will be slow and tough.

The post The NYPD Finally Fired the Cop Who Killed Eric Garner — but the Police Reaction Shows How Little Will Change appeared first on The Intercept.

Mike Pompeo Has Extreme Views on Muslims — and Liberals Don’t Seem to Care

A lengthy profile in the New Yorker conspicuously neglected to mention the secretary of state’s ties to notorious Islamophobes.

The post Mike Pompeo Has Extreme Views on Muslims — and Liberals Don’t Seem to Care appeared first on The Intercept.

Greenland’s New Deal

The year is 2042. The country is overrun by mutants. Thank god we bought Greenland!

Detective Trump in: The Conflict of Interest

Jeffrey Epstein is dead of an apparent suicide...time to get an extremely neutral party on the case!

Why Eric Garner Couldn’t Breathe

Update: On Aug. 19, 2019, the NYPD announced it had fired Daniel Pantaleo, the police officer who put Eric Garner in a chokehold.

When New York City police arrested and subdued Eric Garner, he fit a profile: an uncooperative black man committing a petty crime. But the profile that police should have recognized—and the one that Garner fit perfectly—was of someone vulnerable to a dangerous combination of banned law enforcement practices used routinely across the country with impunity, and sometimes fatal results.

Contrary to conventional wisdom, it was not the chokehold alone that killed Garner. And it was not solely Officer Daniel Pantaleo who was responsible for the homicide of the unarmed 43-year-old African-American man arrested for a “quality-of-life” offense under “broken windows policing” that encourages arrest for even the most trivial crimes—in Garner’s case, selling “loosies,” unpackaged cigarettes, on a Staten Island street.

The video of his death, which went viral and sparked protests, shows Pantaleo’s arm tightened around Garner’s neck. It also shows a cluster of officers, including Pantaleo, kneeling on Garner’s back and pressing his face, mouth and nose to the pavement as he lay facedown, hands cuffed behind him, pleading— at least 11 times—“I can’t breathe.”

The Office of the City Medical Examiner ruled Garner’s death a homicide, citing both “compression of neck (chokehold) [and] compression of chest and prone positioning during physical restraint by police.”

First, about the chokehold: According to his lawyer, Pantaleo told the official inquiry he “never exerted any pressure on the windpipe.”

His denial, even if true, is largely irrelevant. There are two main types of chokeholds, and during a struggle, one may easily slide into the other. Pressure to the windpipe—an air choke—directly cuts off the ability to breathe and can kill quickly. Pressure to the veins and arteries of the neck—a blood or carotid choke—stops blood flowing to and from the brain and cuts off its oxygen.

Both holds can kill, and that is why, back in 1993, the NYPD banned them. Chief John F. Timoney, then commander of the department’s Office of Management Analysis and Planning, said: “Basically, stay the hell away from the neck. That’s what [the policy] says.”

And then, Garner’s second cause of death: positional asphyxia caused by “compression of chest and prone positioning.” Even when used alone, extended prone restraint—placing a suspect facedown, hogtied or with hands cuffed behind—has caused untold in-custody deaths by suffocation and is therefore prohibited by many police departments, including the NYPD. But when officers also kneel or push on the restrained person’s back or neck, as they did with Garner, the danger of positional asphyxia escalates. And when the suspect has been pepper sprayed, is intoxicated or has medical conditions such as Garner’s—obesity, asthma and a weak heart—the danger skyrockets.

Dr. Michael Baden, former NYC chief medical examiner and later State Police chief forensic pathologist, who was hired by the Garner family to review the autopsy report, told the New York Times: “Obese people especially, lying face down, prone, are unable to breathe when enough pressure is put on their back. The pressure prevents the diaphragm from going up and down, and he can’t inhale and exhale.’’

The cell phone video shows that even after Pantaleo released the chokehold, and Garner was cuffed, hundreds of pounds of cop flesh pushed down on him. His struggle against that weight was evidence not of vitality and aggression, but rather of desperation to change position so that he could breathe.

“The natural reaction to oxygen deficiency occurs—the person struggles more violently,” a 1995 National Law Enforcement Technology Center bulletin warned. The struggle aggravates the asphyxia by increasing the heart rate and causing carbon dioxide to build up in the lungs.

Ill-trained or angry police who double down on restraint when a handcuffed captive thrashes are clearly violating procedure. “As soon as the suspect is handcuffed, get him off his stomach,” the NYPD’s Guidelines to Preventing Deaths in Custody state. “Turn him on his side or place him in a seated position. If he continues to struggle, do not sit on his back.”

The fact that Garner had medical conditions increasing his vulnerability to positional asphyxia was not readily knowable. But that he was obese and struggling to breathe—even after the chokehold that compromised him was released—was obvious. That, once handcuffed and down, he was not immediately turned over or allowed to sit up was both a violation of long-standing policy and, ultimately, homicidal.

And by failing to act after Garner became comatose, police further violated policy—and possibly the law. The NYPD patrol guide warns that officers are required to “intervene if the use of force against a subject clearly becomes excessive. Failure to do so may result in both criminal and civil liability.”

The FBI issues similar injunctions. To avoid in-custody injury or death, officers should “monitor subjects carefully for breathing difficulties/loss of consciousness. Be prepared to administer CPR. Obtain medical assistance immediately.”

“He didn’t die because he stopped breathing on his own,” said his sister, Ellisha Flagg. “He died because someone took his breath away.”

And the EMTs who arrived on the scene made no effort to give it back. Faced with the limp, unconscious man, they were bizarrely passive, failing to apply an oxygen mask, to ensure  that Garner’s airway was clear or to assess his condition in any way beyond seeking a pulse.

Prone restraint and resulting positional asphyxia have been implicated in numerous in-custody deaths on the street and in prisons. And if police departments are unmoved by compassion, they might consider liability. Even though officers escape criminal charges, civil courts have levied millions of dollars in settlements.

In 2013, Ethan Saylor, who had Down syndrome, refused to leave a Maryland movie theater because he wanted to see the film again. Three off-duty sheriff’s deputies forcibly removed the 294-pound disabled man. “They placed him [facedown] on the ground,” his mother Patti testified before a Senate committee, “prone restraint, put handcuffs on, and my son died of asphyxiation on that floor of that movie theater for that $10 movie ticket.”

Police used prone restraint on: Jonny Gammage, a Pittsburgh man, at a traffic stop; Charles Dixon, an Altoona, Pennsylvania man, after a disturbance at a birthday party; Oral Brown, who was found wandering disoriented in Fort Lauderdale, Florida after his car crashed; and Tanisha Anderson, whom Cleveland police were taking for a mental-health evaluation after her parents reported she had disturbed the peace. All died from positional asphyxia in what amounts to institutionally protected homicide.

In 1999, Brian Drummond, who was unarmed and mentally ill, ended up inva permanent vegetative state after cops subdued him. “Although he had offered no resistance, Officer Brian McElhaney put his knees into Mr. Drummond’s back and placed the weight of his body on him. [Officer Christopher Ned] also put his knees and placed the weight of his body on him, except that he had one knee on Mr. Drummond’s neck,” the Drummond v. City of Anaheim trial transcript noted. Drummond “repeatedly told the officers that he could not breathe and that they were choking him.” One eyewitness testified, “The officers were laughing during the course of these events.”

The 9th Circuit Court concluded in 2003: “The compression asphyxia that resulted appears with unfortunate frequency in the reported decisions of the federal courts, and presumably occurs with even greater frequency on the street.”

More than a decade later, it seems little has changed. Acts of commission and omission by each of the many police who participated in or witnessed Garner’s arrest represent not only individual culpability, but a systemic failure of training or compliance.

It was “all the police [on the scene], not just one police officer, that would have caused the obstruction to breathing,” forensic expert Michael Baden told Fox News.

By blaming only the chokehold, Pantaleo’s fellow officers and much of the media threw one cop under a bus that carries a heavy cargo of ignorance, aggression, profiling, and needed reform. 

The NYPD officers who petulantly turned their backs on the mayor and held work slowdowns added to the impression that the force is out of control, and left the public justifiably wary of trusting police with their lives.

Materials that can revolutionize how light is harnessed for solar energy

Scientists have designed organic molecules capable of generating two excitons per photon of light, a process called singlet fission. The excitons can live for much longer than those generated from their inorganic counterparts, which leads to an amplification of electricity generated per photon that is absorbed by a solar cell.

Heat shield just 10 atoms thick to protect electronic devices

Atomically thin materials could create heat-shields for cell phones or laptops that would protect people and temperature-sensitive components and make future electronic gadgets even more compact.

Twitter Helped Chinese Government Promote Disinformation on Repression of Muslims

Promoted tweets from a state-run news outlet distort the position of Uighurs in the western province of Xinjiang.

The post Twitter Helped Chinese Government Promote Disinformation on Repression of Muslims appeared first on The Intercept.

Don’t Tax Carbon—Just Stop Digging It Up

For alternate perspectives on this issue, see "The Government Should Write Everyone a Check—Paid for by a Carbon Tax" by Owen Poindexter and "Some Economists Say Carbon Taxes Are a Silver Bullet. The Reality Is More Complicated." by Kate Aronoff.

Owen argues that a carbon tax and dividend could cut carbon emissions while contributing to the general welfare, but the model is deeply flawed. Indeed, any carbon tax—whether the revenue is redistributed as dividend or not—would be both ineffective and regressive. We should shift our energies toward climate solutions that eliminate fossil fuels altogether.

For starters, actually existing carbon taxes from Canada to the Netherlands have, at best, reduced carbon emissions only modestly. Look at British Columbia: In 2008, the Canadian province implemented a carbon tax with revenues returned through dividends and income tax rate reductions. While the province’s emissions declined in the program’s first year, they rose again in subsequent years.

The environmental group Food and Water Watch (FWW) indicates that the type of emissions subject to the tax actually increased in British Columbia between 2011 and 2014, while untaxed emissions went down. As a result, FWW concluded, “It appears that the British Columbia carbon tax has had no beneficial long-term impact on greenhouse gas emissions.” The report speculates that a lack of adequate public transit (meaning individuals rely on cars regardless of the increased price of gas) and the promise of a dividend and lower taxes (which meant people and businesses didn’t mind paying slightly higher energy prices) contributed to the policy’s failure.

But the problems run deeper. Market-based approaches such as a carbon tax are accepted by the fossil fuel industry because they do not actually threaten the ongoing and continuous extraction of oil and gas. In a statement on the 2015 United Nations climate talks in Paris, ExxonMobil endorsed a carbon tax as “the best option” to address climate change while “let[ting] the market drive the selection of solutions.” But the market by itself cannot set in motion a process of reducing carbon emissions toward zero, nor address the larger structural inequalities that are becoming ever more apparent.

According to Basav Sen, climate justice project director at the Washington, D.C.-based Institute for Policy Studies, “A price on carbon is like a sales tax—it doesn’t make polluters pay for greenhouse gas pollution. It makes end users pay.” By contrast, he says, “A regulator solution that phases out fossil fuel extraction and use can be designed to penalize those who are responsible for the problem, not everyone else.” This direction is where we need to go.

Owen argues that the financial burden of a carbon tax could be outweighed by a dividend, while others propose that carbon tax revenues should be used to implement climate solutions in frontline communities. But, as Sen points out (and Owen concedes), if a carbon tax were actually effective, revenues would decline as emissions decrease. The tax itself is not a reliable source of funds for either idea.

There is no evidence that the fossil fuel industry, with its powerful lobby in Washington, would permit a carbon tax to be set high enough to actually compensate for the vast harm the industry has done (and continues to do) across the globe, especially in communities near the sites of extraction.

The belief that a tax-driven process is possible distracts from the more complex and deep-reaching political changes necessary to drastically cut carbon emissions, such as regulating against the extraction and use of fossil fuels and seeking the best and most inclusive ways of transitioning toward a regenerative economy—one that doesn’t leave vulnerable people and communities behind. For instance, governments worldwide provide an estimated $775 billion to $1 trillion annually in subsidies to fossil fuel corporations (not including the social costs that get shifted onto the poor by climate and health impacts and such externalities as military interventions). It can be argued that the fossil fuel industry would not be viable if it were forced to adhere to a strict business model without subsidies and tax breaks.

Ending subsidies would be a start. But a carbon tax is not the answer.

For alternate perspectives on this issue, see "The Government Should Write Everyone a Check—Paid for by a Carbon Tax" by Owen Poindexter and "Some Economists Say Carbon Taxes Are a Silver Bullet. The Reality Is More Complicated." by Kate Aronoff.

Oil Lobbyist Touts Success in Effort to Criminalize Pipeline Protests, Leaked Recording Shows

In leaked audio obtained by The Intercept, AFPM conceded its behind-the-scenes role in crafting state laws to criminalize oil and gas pipeline protests.

The post Oil Lobbyist Touts Success in Effort to Criminalize Pipeline Protests, Leaked Recording Shows appeared first on The Intercept.

A Cycle of Renewal, Broken: How Big Tech and Big Media Abuse Copyright Law to Slay Competition

As long we've had electronic mass media, audiences and creators have benefited from periods of technological upheaval that force old gatekeepers to compete with brash newcomers with new ideas about what constitutes acceptable culture and art. Those newcomers eventually became gatekeepers themselves, who then faced their own crop of revolutionaries. But today, the cycle is broken: as media, telecoms, and tech have all grown concentrated, the markets have become winner-take-all clashes among titans who seek to dominate our culture, our discourse and our communications.

How did the cycle end? Can we bring it back? To understand the answers to these questions, we need to consider how the cycle worked — back when it was still working.

How Things Used to Work

In 1950, a television salesman named Robert Tarlton put together a consortium of TV merchants in the town of Lansford, Pennsylvania to erect an antenna tall enough to pull down signals from Philadelphia, about 90 miles to the southeast. The antenna connected to a web of cables that the consortium strung up and down the streets of Lansford, bringing big-city TV to their customers — and making TV ownership for Lansfordites far more attractive. Though hobbyists had been jury-rigging their own "community antenna television" networks since 1948, no one had ever tried to go into business with such an operation. The first commercial cable TV company was born.

The rise of cable over the following years kicked off decades of political controversy over whether the cable operators should be allowed to stay in business, seeing as they were retransmitting broadcast signals without payment or permission and collecting money for the service. Broadcasters took a dim view of people using their signals without permission, which is a little rich, given that the broadcasting industry itself owed its existence to the ability to play sound recordings over the air without permission or payment.

The FCC brokered a series of compromises in the years that followed, coming up with complex rules governing which signals a cable operator could retransmit, which ones they must retransmit, and how much all this would cost. The end result was a second way to get TV, one that made peace with—and grew alongside—broadcasters, eventually coming to dominate how we get cable TV in our homes.

By 1976, cable and broadcasters joined forces to fight a new technology: home video recorders, starting with Sony's Betamax recorders. In the eyes of the cable operators, broadcasters, and movie studios, these were as illegitimate as the playing of records over the air had been, or as retransmitting those broadcasts over cable had been. Lawsuits over the VCR continued for the next eight years. In 1984, the Supreme Court finally weighed in, legalizing the VCR, and finding that new technologies were not illegal under copyright law if they were "capable of substantial noninfringing uses."

It's hard to imagine how controversial the VCR was in its day. MPAA president Jack Valenti made history by attending a congressional hearing where he thundered ,"I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone."

Despite that unequivocal condemnation, home recording is so normal today that your cable operator likely offers to bundle a digital recorder with your subscription. Just as the record companies made peace with broadcasters, and broadcasters made peace with cable, cable has made its peace with home recording.

It's easy to imagine that this is the general cycle of technology: a new technology comes along and rudely shoulders its way into the marketplace, pouring the old wine of the old guard into its shiny new bottles. The old guard insist that these brash newcomers are mere criminals, and demand justice.

The public flocks to the new technology, and, before you know it, the old guard and the newcomers are toasting one another at banquets and getting ready to sue the next vulgarian who has the temerity to enter their market and pour their old wine into even newer bottles.

That's how it used to work, but the cycle has been interrupted.

The Cycle is Broken

In 1998, Congress passed the Digital Millennium Copyright Act, whose Section 1201 bans bypassing a "technical measure" that “controls access” to copyrighted works. The statute does not make an exemption for people who need to bypass a copyright lock to do something legal, so traditional acts of "adversarial interoperability" (making a new thing that plugs into an old thing without asking for permission) can be headed off before they even get started. Once a company adds a digital lock to its products, it can scare away other companies that want to give it the broadcasters vs records/cable vs broadcasters/VCRs vs cable treatment. These challengers will have to overcome their fear that "trafficking” in a “circumvention device" could trigger DMCA 1201's civil damages or even criminal penalties—$500,000 and 5 years in prison...for a first offense.

When companies like Sony made the first analog TV recorders, they focused on what their customer wanted, not what the winners of last year's technological battle thought was proper. That's how we got VCRs that could record off the air or cable (so you could record any show, even major Hollywood movies getting their first broadcast airing) and that allowed recordings made on one VCR to be played on another recorder (so you could bring that movie over to a friend's house to watch with a bowl of popcorn).

Today's digital video products are different. Cable TV, satellite TV, DVDs/HD DVDs/Blu-Ray, and streaming services all use digital locks that scramble their videos. This allows them to threaten any would-be adversarial interoperators with legal reprisals under DMCA 1201, should they have the temerity to make a user-focused recorder for their products. That stifles a lot of common-sense ideas: for example, a recorder that works on all the programs your cable delivers (even pay-per-views and blockbusters); a recorder that lets you store the Christmas videos that Netflix and Amazon Prime take out of rotation at Christmastime so that you have to pay an upcharge to watch them when they're most relevant; or a recorder that lets you record a video and take it over to a friend's house or transfer it to an archival drive so you can be sure you can watch it ten years (or even ten minutes from now.

Since the first record players, every generation of entertainment technology has been overtaken by a new generation—a generation that allowed new artists to find new audiences, a new generation that overturned the biases and preconceptions of the executives that controlled the industry and allowed for new modes of expression and new ideas.

Today, as markets concentrate—cable, telecoms, movie studios, and tech platforms—the competition is shifting from the short-lived drive to produce the best TV possible to a long-term strategy of figuring out how to use a few successful shows to sell bundles of mediocre ones.

In a world where the cycle that led to the rise of cable and streaming was still in effect, you could record your favorite shows before they were locked behind a rival's paywalls. You could search all the streaming services' catalogs from a single interface and figure out how to make your dollar go farther by automatically assembling a mix of one-off payments and subscriptions. You could stream the videos your home devices received to your phone while you were on the road...and more.

And just as last year's pirates — the broadcasters, the cable operators, the VCR makers — became this year's admirals, the companies that got their start by making new services that centered your satisfaction instead of the goodwill of the entrenched industries would someday grow to be tomorrow's Goliaths, facing a new army of Davids.

Fatalistic explanations for the unchecked rise of today's monopolized markets—things like network effects and first-mover advantage—are not the whole story. They are not unstoppable forces of nature. The cycle of concentration and renewal in media-tech shows us that, whatever role the forces of first-mover advantage and network effects are playing in market concentration, they are abetted by some badly written and oft-abused legal rules.

DMCA 1201 let companies declare certain kinds of competition illegal: adversarial interoperability, one of the most historically tried-and-true methods for challenging dominant companies, can be made into a crime simply by designing products so that connecting to them requires you to bypass a copyright lock. Since DMCA 1201 bans this "circumvention," it also bans any competition that requires circumvention.

That's why we're challenging DMCA 1201 in court: we don't think that companies should be able to make up their own laws, because inevitably, these turn into "Felony Contempt of Business Model."

DMCA 1201 is just one of the laws and policies that have created the thicket that would-be adversarial interoperators run up against when they seek to upend the established hierarchy: software patents, overreaching license agreements, and theories of tortious interference with contractual relations are all so broadly worded and interpreted that they can be used to intimidate would-be competitors no matter how exciting their products are and no matter how big the market for them would be.

The Darts release video for “Breakup Makeup”

Arizona’s The Darts have released a video for “Breakup Makeup”, the opening track from their recent Alternative Tentacles album I Like You But Not Like That, which came out back in May. Have a watch below.

The post The Darts release video for “Breakup Makeup” appeared first on Dying Scene.

Fireside Chat

Are Antifa terrorists? Come warm yourselves by the fire and discuss.

Bernie Sanders Just Promised to Cut the Nation’s Prison Population in Half

Sen. Bernie Sanders (I-Vermont) unveiled his plan to reform the criminal justice system on Sunday, with proposals to cut the country’s incarcerated population in half, ban private prisons, legalize marijuana, and end mandatory minimum sentencing, solitary confinement, and the federal death penalty. “America’s prisons are hotbeds of human rights violations, torture, sexual assault, and wrongful […]

NOFX release new single “Fish In A Gun Barrel” (proceeds going to Moms Demand Action)

Ahead of the band’s upcoming album, NOFX have released a brand new single titled “Fish In A Gun Barrel.” In an intro to the song Fat Mike explains that the song was written in 2016 but the band held off on releasing it due to it hitting a little too close to home so soon after […]

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Federal Lands Are Becoming Tribal Lands Again

This story was originally published by High Country News and appears here as part of the Climate Desk collaboration.  The smell of scorched soil and burnt wood filled the air. Michael Rondeau, CEO of the Cow Creek Band of Umpqua Tribe of Indians, looked over the damage, clad in forest-green pants and a lemon-yellow jacket […]