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from the b-i-n-no-go dept on Wednesday, August 27th, 2014 @ 2:45PM

Another day, another story of stupid software patents getting stomped out of existence thanks to the Supreme Court's Alice v. CLS Bank ruling. As we've been noting, this ruling is looking like it's going to invalidate a ton of software patents (and that's a good thing). The latest one dumped was an attempt to patent bingo online. Yes, bingo. The lower court had already rejected the patent using previous Supreme Court rulings against patenting "abstract ideas." Now, with the Alice ruling in hand, the Appeals Court for the Federal Circuit (CAFC) completed the stomping out of the bingo patent. They didn't waste much time on it either, pushing out a compact 7-page ruling. It makes short work of Planet Bingo (yes, that's the patent holder's name) and its claim that the patent actually is inventive and new:

“[I]f a patent’s recitation of a computer amounts to a mere instruction to ‘implemen[t]’ an abstract idea ‘on . . . a computer,’ . . . that addition cannot impart patent eligibility.” Alice, 134 S. Ct. at 2358 (quoting Mayo, 132 S. Ct. at 1301). In this case, the claims recite a generic computer implementation of the covered abstract idea.

Planet Bingo argues that the patents recite "significantly more" than an abstract idea because the invention includes “complex computer code with three distinct subparts.” ... We disagree. The ’646 and ’045 patents do not claim the “accounting program,” “ticket program,” and “verification program” that Planet Bingo identifies in its briefs. Instead, the claims recite a program that is used for the generic functions of storing, retrieving, and verifying a chosen set of bingo numbers against a winning set of bingo numbers. And, as was the case in Alice, “the function performed by the computer at each step of the process is ‘[p]urely conventional.’”

Planet Bingo really pushed hard on the ridiculous idea that because lots of numbers were involved, this was patentable subject matter. CAFC didn't buy it.

Planet Bingo argues that “in real world use, literally thousands, if not millions of preselected Bingo numbers are handled by the claimed computer program,” making it impossible for the invention to be carried out manually.... But the claimed inventions not require as much. At most, the claims require “two sets of Bingo numbers,” “a player,” and “a manager.” ... We need not, and do not, address whether a claimed invention requiring many transactions might tip the scales of patent eligibility, as the claims fall far short of capturing an invention that necessarily handles "thousands, if not millions” of bingo numbers or players.

It's a new era for software patents, and it looks like many of them are invalid. It's also a new era for CAFC, which both has new leadership... and (finally) some pretty clear instructions from the Supreme Court to dump these broadly written software patents. It may take a few years for the system to clear out, but this is going to be tremendously helpful for companies that actually innovate, rather than those that just try to shove tollbooths in the innovative process.

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from the about-time dept on Wednesday, August 27th, 2014 @ 1:37PM

If you like PC games, chances are you already know all about GOG, or Good Old Games. The GOG website has done more to extend the life of gently-aged games by building a platform for old games that will work on new machines while having one singular principal dominate their products: there shall be no DRM. Digital Rights Managment seems like it's always existed and has equally never worked, what with cracks, hacks and other methods for getting around games that employ DRM being available almost immediately after games get released. It's a losing strategy. GOG, on the other hand, has made their insistence on DRM-free games a winning strategy for themselves, for customers, and even for once-apprehensive publishers. DRM certainly hasn't disappeared from the gaming industry, but GOG's working experiment has gone a long way to reduce its use.

And now, GOG wants to bring that same principal to television shows and movies.

They're starting small, launching with a handful of independent documentaries for $5.99 a piece in hopes of eventually branching out to studio films and television shows. The folks at GOG are pushing hard on the "DRM-free" angle here too, promising that nothing they sell will be saddled with the copyright restrictions you might get while buying a TV show on iTunes or Amazon.

"Most of [the studios we spoke to] admit that DRM does not protect anything, all protections are cracked on the day of the release of the movie or even before and that there is no DRM that can protect a movie against piracy," said a GOG representative in an e-mail to Kotaku. "The whole industry knows DRM is just smoke and mirrors and it does not work, so why not abandon it?"

Why not indeed? Though streaming is becoming a dominant method for viewing content, there still must be a market for the ownership of movies and television shows. DRM from the likes of the current marketplaces serves no end except to annoy actual customers, while pirated versions of pretty much everything already exist for those not willing to do right by content producers. What GOG did for games certainly seems like it should work for movies and TV shows: remove the annoyance and provide a clean and slick market for DRM-free show/movie content. As they said, they're starting small, but if this is successful we might finally start to see a landslide of a perception-change when it comes to DRM.

Interestingly, it seems that talks for a wider catalog are proceeding more successfully than I might have expected.

"These are very smart people and they see that the anti-piracy measure does not work at all," said a GOG rep in an e-mail. "We realize that the movie industry is much older than the gaming industry and it moves slower, with caution. As such, we'll get started with some real examples to show that it works–hence our first batch of 20 documentaries."

What also interests me is how the documentaries for this pilot program are all focused on gaming and internet culture, arguably attractive to a demographic that might be most knowledgeable about piracy and perhaps more willing than the general population to pirate content. If they can be successful there, I'd argue the rest of the general public ought to be a cinch. Get on board with this, studios. Someone is trying to save you from yourselves.

from the total-failure dept on Wednesday, August 27th, 2014 @ 12:35PM

We were among the first to report that the federal court system's PACER electronic database of court records had deleted a ton of old cases, and once our story went live, we saw a ton of lawyers, law professors and journalists flip out over the news, which had been hidden in a little-read notice on the PACER site, posted with basically no notice at all. The Washington Post got the Administrative Office of the US Courts to provide a statement about the deletions that makes almost no sense at all.

Charles Hall, a spokesperson for the Administrative Office, told The Post via e-mail that the change was made on Aug. 11 in preparation for an overhaul of the the PACER architecture, including the implementation of the next generation of the Judiciary's Case Management and Electronic Case Files System. "NextGen replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen," he wrote.

However, as a result of the changes the locally developed legacy case management systems of some courts were no longer compatible with PACER, he says. Since PACER works as a sort of distributed network of different archives rather than one centralized database, that's a major problem.

However, Hall says, the dockets and documents no longer available through the system could still be obtained directly from the relevant court and "all open cases, as well as any new filings, will continue to be available on PACER."

Yes, I can understand how there might be some backwards compatibility problems, but it seems like there's a pretty straightforward way to deal with that: move the old files to the new system. But no one seems to be doing that. The claim that it's okay because the documents are available "directly from the relevant court" is a ridiculous, weak excuse. The whole point of PACER was to make the records more accessible and to get away from having the documents only available to people who have the time and resources to go down to the local court to get the documents.

The Washington Post also spoke to Brian Carver from UC Berkeley's School of Information, who recently took over the management of RECAP (the crowd-sourced effort that many of us rely on and contribute to) to post any documents obtained via PACER to the freely available web via the Internet Archive. He made a pretty good point, that it's absolutely ridiculous that no one at the courts made this information public earlier so that people could try to do something to preserve the availability of those case records:

Carver says their group would be happy to host the files publicly, and are reaching out the courts to see if that is possible. But he was still shocked by the lack of advance warning. "If we had known about it in advance maybe we could have done something to target these documents and archive them publicly," he says. "It was really an announcement of an accomplished feat -- we weren't told until after this deed was already done."

Meanwhile, Aaron Greenspan, who runs another site that makes court documents publicly available, PlainSite, (and who first alerted us to this issue), has sent the Administrative Office of the US Courts a response to this, pointing out, as we mentioned above, how ridiculous it is:

The supposed explanation that the dockets and documents were stored in an "incompatible" format is nonsensical and has no technical justification whatsoever. As you well know, database schema changes happen all the time, and it is easily within the realm of possibility to write conversion scripts—especially given how much money the AO has spent on PACER NextGen already. In fact, the technology known as ODBC exists for this very reason.

He further has offered to "reverse-engineer the supposedly legacy format(s) ourselves and make the data available to the public for free at no cost to the Government" and even asked them to ship the hard drives to him. Somehow, I doubt that's going to happen, but it seems like working with Carver or Greenspan or anyone else, frankly, would have made more sense than just deleting these public records.

Update: And... Carl Malamud of Public.Resource.Org has sent letters to all of the courts that had cases deleted, requesting copies of the deleted cases. We'll see how that goes.

While it's great that PACER is apparently moving to a new system (the login page is already different, though the underlying pages still remain horrifyingly painful to use), dumping a bunch of cases down the memory hole is a huge problem.

from the good-luck-with-that dept on Wednesday, August 27th, 2014 @ 11:25AM

We've been covering the pending release of the Senate Intelligence Committee's CIA torture report, which is currently undergoing a fight over what should or should not be redacted. We also covered the NY Times report about how former CIA boss George Tenet (who helped mentor current CIA boss John Brennan) is both implicated by the report... and has been leading the campaign to discredit the report.

It appears that he's not the only former CIA boss tapped to do so. Former CIA (and NSA) director Michael Hayden has kicked off what can only, charitably, be described as a smear campaign against the report and any of its supporters. The piece, published in the Washington Times, tries to paint the whole thing as being a "Democrat" plot to discredit the good and righteous CIA-supporting Republicans. Frankly, the idea that any of this is a partisan battle is just silly. Lots of things in DC are partisan, but there's been little indication that the CIA report is driven in any way by partisan interests. After all, the CIA's current director, Brennan, was appointed by a Democratic President. In fact, in the past, Brennan has actually lashed out at Republicans for playing "political football" over national security issues. Of course, now that it's happening in his favor...

Hayden goes on to push a blatant smear on Retired Major General Antonio Taguba, who recently wrote an op-ed for the NY Times asking President Obama to stop hiding the report and to release it. Of course, Hayden doesn't actually link to Taguba's piece. Because he doesn't want you to actually read it. He just wants to smear Taguba, who has some experience in exposing coverups and bad behavior. He headed the military's investigation into the Abu Ghraib prison. And his statement is powerful:

Even though a bipartisan majority of the committee voted to declassify the report, there is a concerted effort to discredit it by depicting it as partisan and unfair. The report’s detractors include the C.I.A. itself: The agency’s rebuttal will be released alongside the report’s key sections. While the C.I.A. is under no obligation to stay silent in the face of criticism, it seems that between its apparently excessive redactions and its spying on the committee’s computers, the agency is determined to resist oversight.

Yet I know from experience that oversight will help the C.I.A. — as it helped the United States military. Ten years ago, I was directed by Lt. Gen. Ricardo S. Sanchez, the senior officer in Iraq, to investigate allegations of detainee abuse at the Abu Ghraib prison in Baghdad. My report’s findings, which prompted a Senate Armed Services Committee hearing, documented a systemic problem: military personnel had perpetrated “numerous incidents of sadistic, blatant, and wanton criminal abuses.”

The findings, along with what became infamous images of abuse, caused a stir and led to prosecutions. The inquiry shed light on our country’s trip to the dark side, in which the United States government engaged in an assault on American ideals, broke the law and in so doing strengthened our enemies.

The heart of Hayden's smear campaign is that Taguba couldn't possibly know what's actually in the report, because it's not out yet. He admits that some details of the report have been leaked to the press, but insists that no one knows if these are accurate. Of course, he also admits that he, himself, was given a copy of the report to review (in unredacted form, even), and yet he doesn't even attempt to counter what was said in the leaks. Hmm.

Hayden also pulls the "law and order" card, in claiming that the CIA couldn't possibly have done wrong because the "CIA’s program was authorized by the highest levels of the U.S. government, declared lawful on four occasions by the Department of Justice, monitored by an Inspector General, and briefed to the leadership of Congress." Except... that's not quite what the leaks from the report have said. It talks about how the CIA regularly misled Congress about the program, including what techniques they were using and how effective the torture program was. Besides, the whole "it's okay because someone said it was legal" excuse is extremely weak.

Hayden also tries to smear two other military generals who have expressed similar concerns. Former Marine Corps Commandant General Charles Krulak and former Central Command Chief General Joseph Hoar wrote a similar article for the Chicago Tribune (again, Hayden fails to link to it). Like Taguba's, it's powerful.

Mr. President, the stakes are too high to allow the intelligence community to circle the wagons and obscure the truth about torture: that it is both wrong and wrong-headed, an immoral and illegal act that makes the country less safe. People familiar with the report, as well as news reports, say that the committee has concluded that torture was more brutal and common than Americans were led to believe and that it failed as an intelligence-producing tactic. The committee also reportedly found that the CIA misled the administration and Congress about the nature and extent of the torture.

We understand why CIA officials will find these findings embarrassing. But potential embarrassment is not a valid reason to try to deny Americans a full understanding of what their government did in their name. The military took its lumps when the Senate Armed Service Committee released its report on detainee abuse within its ranks and emerged as a stronger institution as a result. President Obama should ensure that the CIA does the same.

This report offers the best opportunity yet for us as a nation to come to terms with what our government did in our name. The debate is not historical or academic.

Again, rather than addressing any of the issues, or responding to their claims, Hayden goes back to the same tired line that the report is a "Democrat" report, and that since these generals haven't seen it (while he has), they should not comment on it.

Hayden then goes on to brush off the now admitted spying on the Senate Intelligence Committee by the CIA, claiming that it was a "clumsy investigation" and not a "constitutional crisis":

Supporters of the SSCI report are likening CIA opposition to the SSCI Democrats’ conclusions as an attack on oversight itself. CIA’s clumsy investigation into how Senate staffers acquired some documents feeds this story line, but forcefully saying the report is badly flawed isn’t a constitutional crisis — it’s a disagreement over facts.

But the "constitutional crisis" that people were discussing was not a "disagreement over facts" it was over the CIA, a part of the executive branch, spying on its overseers in the legislative branch. That is a constitutional issue. You'd think Hayden would be aware of the basic separation of powers, but perhaps not. Furthermore, it's not the "SSCI Democrats' conclusions." The vote to declassify the report was not Intelligence Committee Democrats vs. Republicans but a bipartisan 11 to 3 vote.

It seems that defenders of the CIA are getting fairly desperate in smearing anyone credible (including three highly respected former high ranking military officers) speaking out on why the CIA's shameful torture program shouldn't be hidden behind black ink.

from the friends-who-pay-more dept on Wednesday, August 27th, 2014 @ 10:19AM

A few weeks ago, Verizon Wireless introduced a new bandwidth throttling plan and tried to claim it wasn't throttling at all, but rather "network optimization," and now Ars Technica has the story of how Comcast is trying to spin its data caps as not being data caps at all. Instead, they're "flexible data consumption plans." Because flexible is fun. Of course, their definition of flexible may be different from yours and mine, because they're only "flexible" on Comcast's side in determining just what the caps are. Once you go over those "flexible" plans, you'll certainly be paying more. Just like a data cap. But, Comcast insists, it's no data cap.

Comcast has been trying to make this argument for a while, even demanding a correction from GigaOm when it referred to these plans as data caps. However, now it's made this argument in a regulatory filing with the New York Public Service Commission in support of its merger with Time Warner Cable. In a section responding to the concerns that some have raised about the merger, Comcast attacks the worries about data caps head on:

First, Comcast does not have “data caps” today. Comcast announced almost two years ago that it was suspending enforcement of its prior 250 GB excessive usage cap and that it would instead be trialing different pricing and packaging options to evaluate options for subscribers – options that reflect evolving Internet usage and that are based on the desire to provide flexible consumption plans, including a plan that enables customers who want to use more data the option to pay more to do so as well as a plan for those who use less data the option to save some money. As has been well publicized for some time now – including through Comcast’s own website – these trials are ongoing and currently cover a small minority of customers. Some of these trials include a data usage plan that allows customers who use very little Internet each month to receive a discount on their service fee, and variations on a plan that provide customers with the ability to buy additional increments of usage if they exceed a base amount (starting at 300 GB) that is included with their service. As it turns out, only a very small percentage of Comcast customers in the trials go over 300 GB in any given month, so few customers see increased costs because of the data plans and Comcast has seen no evidence that the data plans discourage usage, which has generally continued to increase in and outside of the trial markets.

In other words... Comcast is, in fact, testing a data cap. They just don't want you to call it that. Because it's flexible.

Jon Brodkin, over at Ars Technica, notes that the FCC's own working group on data caps -- which included a Comcast VP -- defines data caps in a way that makes it clear that Comcast's plans are, in fact, data caps.

A cap is rarely, if ever, a hard and fast ceiling on a customer's ability to access the network. A cap is usually better understood as a threshold after which the user is subject to a different set of conditions for access, such as movement to a higher priced tier, different product or different speeds. As discussed below, another way of thinking of this is as the boundary between different ‘tiers' of service.

Though, there is a footnote (perhaps added at the behest of the Comcast VP) that Comcast "does not have any caps in place but is trialing two UBP [usage-based pricing] plans."

Either way, the point is pretty clear. To basically everyone who doesn't work for a giant broadband provider, Comcast is testing data caps. Time Warner Cable has tested them in the past. And, furthermore, as we wrote about back in May, in candid moments Comcast will admit that it wants to roll those data caps out to everyone within a few years. Having Time Warner Cable under its belt would certainly help on that front...

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