Leopold had requested FBI Director James Comey's talking points for a variety of subjects, including "going dark," the terrorist attacks in Paris, the "Ferguson Effect," and encryption. The FBI responded with two things, both of which add up to nothing.The letter Leopold received noted that the FBI had found 487 pages responsive to his request. Of those, the agency will be releasing a grand total of zero pages. All 487 have been withheld under FOIA exemptions b(5) through b(7)(E).
Despite not releasing a single page, the FBI still utilized some taxpayer pocket change to mail Leopold a CD containing nothing more than its rejection. Leopold notes he'll be using it as a coaster.
The exemptions cited are bogus. "Talking points" aren't deliberative documents, interagency memos, or documents containing sensitive personal information [b(5), b(6)]. Neither are they documents that might expose law enforcement sources or investigative techniques [b7(D) and 7(E)].They are exactly what the name says they are: points to be used when discussing these issues in Congressional hearings or during press conferences. They are indicative of the public stances the FBI takes on certain issues. There's nothing secret about them, or at least there shouldn't be.But the FBI is treating Comey's talking points like they're confidential documents that could result in the exposure of its sources and techniques. If Comey's talking points do actually include this information, that's pretty irresponsible. These are used to make public statements and they certainly shouldn't include sensitive information not meant for the public domain.And there's 487 pages of them, which means Comey has had plenty to talk about. The eventual release of these documents post-lawsuit should be entertaining and informative. Considering Comey has taken public stances privately opposed by other FBI officials and has made of habit of bypassing agency norms when delivering statements, it would be interesting to see if his past statements have periodically veered away from the agency's prepared talking points.This response is a typical one for the FBI, which frequently returns an upraised middle finger to the requester in lieu of the documents requested. It's just how it opens FOIA negotiations. From there, requesters are expected to begin the appeals process or, in the case of FOIA enthusiast Jason Leopold, file yet another FOIA lawsuit that's 90% boilerplate and 10% "this is SPECIFICALLY how [US Government Agency X] has dicked me around this time."
Fun stuff ahead for some website owners, thanks to a breakdown in the registration process. A Swiss security researcher has spotted bogus ICANN blacklist removal emails being sent to site owners containing a Word document that acts as a trigger for ransomware.
Fake @ICANN Domain Abuse Notices being spammend out to domain owners, distributing malware (Dridex?) - icann-monitor[dot]org
These fake @ICANN abuse notices distribute Cerber Ransomware (hXXp://csenet.org/view/file5.exe) calling out to ffoqr3ug7m726zou.1nuljt\.top— abuse.ch (@abuse_ch) December 29, 2016
These fake @ICANN abuse notices distribute Cerber Ransomware (hXXp://csenet.org/view/file5.exe) calling out to ffoqr3ug7m726zou.1nuljt\.top
The email appears to orginate from somewhere legitimate, as seen in this screenshot:
But the quasi-legit URL (icann-monitor.org) was only very recently registered through eNom, which apparently had no problem with some internet rando snagging a URL closely associated with the international group that governs domain names.
Ironically, the emails containing this malware inform recipients that their domain is "being used for spamming and spreading malware." The spam email invites site owners to download a malware-laced "report" for further instructions on how to remove their site from the blacklist, warning them they only have 24 hours to fall victim to ransomware respond.The researcher is now "counting the hours (days?)" until either eNom or ICANN act in response to this spoofing/ransomware attack. Don't hold your breath. ICANN has yet to say anything publicly about this and, as of this point, eNom has yet to deactivate the account. For now, the fake ICANN still lives and breathes and poses a threat to recipients of this official-looking email.
The NYPD's estranged relationship with its oversight continues. The Civilian Complaint Review Board -- put into place after it became apparent the NYPD wasn't interested in policing itself -- has noticed the department is vocally supportive of better policing, but has no interest in actually making any changes to the way it disciplines its officers.The NYPD has yet to see a civilian complaint it can't make disappear and has almost always recommended a lesser punishment for misconduct than the Board has recommended. In controversial "chokehold" cases, the Board found the NYPD was completely uninterested in doing anything about officers' use of a tactic it has outlawed.
In those cases where CCRB substantiated chokeholds, recommended Administrative Charges, and DAO became involved, none of the substantiated cases ever went to trial before a NYPD Trial Commissioner. Instead, DAO departed from CCRB’s recommendation every time. Rather than pursue the more serious Administrative Charges, DAO recommended lesser penalties or no discipline whatsoever.
Despite being shown no respect by the NYPD, the CCRB has decided to protect the badged-and-armed delicate flower of the department by softening the language in its Taser use report before publication.
In the spring, an oversight agency for the New York Police Department circulated a draft report on the use of Taser stun guns. The report highlighted “troubling” findings and issued stern recommendations: The police should create an annual report on the use of Tasers and prohibit their use on handcuffed suspects.But the latter recommendation was removed from the final version of the report, quietly released in October by the agency, the Civilian Complaint Review Board, with no formal announcement. The other was removed from the executive summary and relegated to the report’s final page.The agency also removed language highlighting what police reform advocates and civil liberties groups later said was the board’s central finding: In most Taser encounters reviewed, officers used the stun guns on people who were unarmed.
What the CCRB found wasn't encouraging. The NYPD already has a troubled history of Taser misuse. Not much is made of it because Taser deployment in the force is severely limited. But the NYPD's ability to make even a small number of civilian complaints vanish into the ether remains unchanged. The New York Times highlights the report's findings, which are disturbing and have remained unaltered.
Over the period studied in the report, from 2014 through 2015, the board’s investigators conducted full investigations of 51 of the 153 complaints filed and substantiated only three of them.
The other 102 fell by the wayside because the complainants failed to cooperate with the investigation. Perhaps some of them felt the outcome would be no different than the 94% that did make it all the way through the process. Perhaps some had outstanding warrants, unpaid tickets, a general disinterest in interacting with law enforcement, or whatever. But with only six percent of complaints being substantiated, the outcome of the NYPD's internal efforts are par for the course: lots of complaints, almost zero repercussions.But just as disheartening is the fact that the CCRB edited its report to ensure the NYPD wouldn't even feel the weight of PRINTED WORDS.
The alterations to the report run throughout and appear to play down the findings — which remain unchanged — and remove language that could be considered charged or critical of the Police Department.
This is an organization with an inordinate amount of power -- both over the people it serves as well as the politicians that ostensibly control its budget and activities. Specific edits were made to turn the report into something as proactively exonerative as statements made by the NYPD itself in the wake of excessive force allegations. Police brass say things like "the officer's gun discharged." The CCRB -- post-editing -- says things like this:
[T]he draft report found that “there is also evidence” that Tasers were being used in response to unruly or obstinate behavior by suspects. That phrase was changed in the final version to say that “there is concern.”
Also excised was the Board's "troubling" finding that Taser deployment often occurred when suspects were already in custody. The stat -- 30% of the time -- remains. The word "troubling" is nowhere to be found. Another sentence was removed completely, apparently out of concern the NYPD might react badly to it.
"[A] review of several of the police custody complaints supports the perception that the Tasing may have occurred unnecessarily."
The NYPD needs to be subjected to strong language that draws attention unavoidably to its use of excessive force. This is the sort of thing the NYPD finds to be "appropriate" Taser use.
Mr. Sells said in an interview that during the discovery phase of the lawsuit, he learned that two separate officers used Tasers on Mr. Paul, striking him a total of 13 times — six by one officer; seven by the other — over the course of 41 seconds.
Anthony Paul is dead. He was 29 years old when he died in NYPD custody. The NYPD brushed off accusations of excessive force with the above "appropriate" statement, as well as the excuse that the Tasers failed to deliver even more electricity to the eventual corpse of Mr. Paul.
"...not all of the “activations” resulted “in actual electrical circuit charge transmissions.”
A government entity that has the power to kill civilians who do not immediately subject themselves to an arrest is apparently too weak to handle direct criticism of its actions. The Board has wiped any implications from its findings, leaving the stats to speak for themselves. The facts aren't pretty, but the NYPD has no problem ignoring hard numbers and incontrovertible facts. But it must be protected from any insinuations that its use of force is sometimes too much… or occasionally unjustifiable.
Last year, we wrote about the ridiculous situation for Amos Yee, a teenager in Singapore who was arrested for some of his YouTube videos criticizing Lee Kwan Yew, the country's founder and long-time Prime Minister. As we said at the time, watching the videos over which he was arrested (which have since been made private), it seemed clear that Yee was doing what many teenagers do, and mouthing off to authority. He was a precocious kid with strong opinions, and he had an audience on YouTube. Good for him.
We quoted an excellent New Yorker profile of Yee at the time that had this fantastic paragraph, written by Nathan Heller:
Yee has all the hallmarks of a green and thriving mind; he is exactly the kind of person you would one day want reviewing your books, making your movies, maybe even running your country. Americans, who enjoy the benefits of free media, have a responsibility to take him more seriously than they take the government that has tried to quiet him for thinking freely in the public sphere. And those of us in the Fourth Estate have a duty to spread word of his ridiculous charges. If people like Amos Yee end up the custodians of our profession, the future of countries like Singapore can be brighter than their past.
A few months ago, Yee got in trouble yet again. Specifically, he was thrown in jail for criticizing religions (Christianity and Islam in particular). Once again, it involved an opinionated teen being punished for his opinions -- though, as Phil Robertson of Human Rights Watch noted at the time, there appeared to be something of a Streisand Effect going on:
"Every time the authorities go after him, it just adds to his online audience," said Mr Robertson in an email.
Yee explains that his position now is: if a social media user is found to be inciting harassment and gets taken down, that isn't clamping down of free speech. That's what should be done.
Along that line, he also believes it would have been reasonable for YouTube to take down many of his videos, which he has now largely retrospectively privatised.
I could even go as far as to say that my kind of video that humps the Quran, and was overly rude to religious people. I'd probably want my videos and maybe even my account to be taken down too. It is just not a good way to communicate information to people.
Amos Yee, 18, was detained Dec. 16 and remains in custody "pending federal immigration court proceedings," U.S. Immigration and Customs Enforcement spokeswoman Gail Montenegro said in a written statement.
Separately, Marilu Cabrera with U.S. Citizenship and Immigration Services, which handles some asylum requests, said the agency "cannot confirm or deny" details of any asylum case.
The Human Rights Watch deputy director for Asia, Phil Robertson, called on the U.S. to recognize Yee's asylum claim, saying he has been consistently harassed by the Singapore government for publicly expressing his views on politics and religion and severely criticizing the city-state's leaders, including late Prime Minister Lee Kuan Yew.
Whether or not you agree with Yee's views, it is an important free speech case -- and granting him asylum would be a good way to show that the US still does believe in promoting freedom of expression around the globe.
The track record of this state's legislature is less than stellar. Hell, it's less than passable. 1/5 would not re-elect.But there are still a few legislators with good ideas trying to do good things within the confines of a state where adultery is still considered a criminal act. The Tenth Amendment Center briefly highlights three new bills targeting law enforcement Stingray device use, all with their own merits.The first, brought by state rep J. Todd Rutherford, is the most extreme of the three.
The legislation would prohibit any state or local law enforcement agency in South Carolina from purchasing cell site simulators, commonly known as “stingrays.”
At this point, use of these devices by South Carolina law enforcement is unconfirmed. If, indeed, no agencies are in possession of IMSI catchers, this bill would maintain the status quo. If agencies are already in possession of the devices, the bill would require these agencies to discontinue use and... ask Harris Corp. for a refund, I guess. This wouldn't prevent state agencies from asking for federal assistance and borrowing their devices, but it's still the most restrictive Stingray-related legislation proposed yet.As such, it will probably never become law. The other proposals have a much better chance of reaching the governor's desk. Rutherford's backup proposal would prevent agencies purchasing cell tower spoofers from entering into nondisclosure agreements with manufacturers.The third bill being introduced should be pushed in concert with Rutherford's second bill. Rep. Cezar McKnight's proposal would prevent state law enforcement agencies from signing nondisclosure agreements with the FBI, which has been standard procedure since the modified military tech began making its way to police departments around the nation. This would help ensure any evidence obtained with these devices will be properly presented in court, rather than obscured behind parallel construction. Or it could, theoretically. The bill ties this to warrant usage, so nondisclosure agreements would be allowed if the agreement doesn't stipulate the devices should be deployed without securing a warrant first. This ties it to the DOJ's current Stingray guidelines, which is better than continuing to obscure device deployment behind pen register orders.The FBI's nondisclosure agreements have never specifically instructed law enforcement to avoid seeking warrants. However, the implication of the demanded secrecy pretty much made it impossible to seek a warrant, since doing so would disclose use of the device. Parallel construction was encouraged if warrants were sought and evidence introduced in court, but the FBI never strictly forbade the use of warrants in its nondisclosure agreements. So, the bill should be reworded to forbid entering into nondisclosure agreements with federal agencies and drop the clause tying it to warrant requests.All in all, it's an encouraging set of proposals, but it's hard to see law enforcement agencies letting any of these make it to the governor's desk without a fight.
We've talked a lot about how Microsoft managed to shoot Windows 10 (and consumer goodwill) squarely in the foot by refusing to seriously address OS privacy concerns, and by using malware-style tactics to try and force users on older versions of Windows to upgrade. While Microsoft's decision to offer Windows 10 as a free upgrade to Windows 7 and Windows 8.1 made sense on its surface, the company repeatedly bungled the promotion by making the multi-gigabyte upgrade impossible to avoid, which was a huge problem for those on capped and metered broadband connections.
But at times Microsoft made things even worse by engaging in behavior that would make even the lowest scumware peddlers proud. Like that time the Redmond-giant began pushing Windows 10 upgrade popups that pretended to let users close the popup dialogue by pressing X, only to have that begin the upgrade anyway against the user's wishes.
Between this and the company's outright refusal to let users control how and when the operating system phoned home, Microsoft managed to take a relatively successful OS launch and turn it squarely on its head -- largely by ignoring some of the most basic principles of design, customer service, and public relations.
Now that the Windows 10 upgrade push is long gone, the company actually got close to acknowledging that its behavior went too far. Speaking on the Windows Weekly podcast, Microsoft's Chief Marketing Officer Chris Capossela finally acknowledged that the company mishandled the entire forced upgrade (though he falls short of apologizing or addressing the parallel privacy concerns):
"We know we want people to be running Windows 10 from a security perspective, but finding the right balance where you're not stepping over the line of being too aggressive is something we tried and for a lot of the year I think we got it right, but there was one particular moment in particular where, you know, the red X in the dialog box which typically means you cancel didn't mean cancel.
And within a couple of hours of that hitting the world, with the listening systems we have we knew that we had gone too far and then, of course, it takes some time to roll out the update that changes that behavior. And those two weeks were pretty painful and clearly a lowlight for us. We learned a lot from it obviously."
Except Microsoft didn't really "get it right," and users made that abundantly obvious. And whether Microsoft actually "learned a lot from it" really isn't clear, since a refusal to let users truly control how the OS works (whether it's preventing the OS from being quite so chatty or letting users dictate upgrade schedules on their own terms) has been somewhat of a recurring theme since launch. That "we know what's best for you" mentality has been bone-grafted to the company's DNA for some time, and we'll likely have to wait until Windows 11 to see if any lessons were actually learned.
The FBI is investigating how hackers infiltrated computers at the Federal Deposit Insurance Corporation for several years beginning in 2010 in a breach senior FDIC officials believe was sponsored by China's military, people with knowledge of the matter said.The security breach, in which hackers gained access to dozens of computers including the workstation for former FDIC Chairwoman Sheila Bair, has also been the target of a probe by a congressional committee.
Caught in the middle of all this are the financial transactions of millions of Americans, in addition to whatever sensitive government information might have been located on the FDIC's computers.But claiming the Chinese were involved seems premature, even according to Reuter's own reporting, which relies heavily on a bunch of anonymous government officials discussing documents no one at Reuters has seen.
Last month, the banking regulator allowed congressional staff to view internal communications between senior FDIC officials related to the hacking, two people who took part in the review said. In the exchanges, the officials referred to the attacks as having been carried out by Chinese military-sponsored hackers, they said. The staff was not allowed to keep copies of the exchanges, which did not explain why the FDIC officials believe the Chinese military was behind the breach.
About the only thing confirmed is the FBI's presence, and that too relies on anonymous officials "familiar with the matter" who described the investigation as ongoing. That being said (anonymously), it's safer to assume the FBI is checking this out than it is to assume it was a state-sponsored attack. But there seems to be a new and undeniable urge to make attributions as quiickly as possible, even if the evidence doesn't conclusively point to anyone in particular.What hasn't changed is the long delay between discovery and announcement. This hack happened more than five years ago and the FDIC spent nearly two years purging the system of the suspected hackers. Then it waited until it was being investigated by the FBI and Congress before acknowledging the security breach.And it's not as though the FDIC has gotten everything locked down, despite being more than six years removed from a major breach.
This year, the FDIC has reported to Congress at least seven cybersecurity incidents it considered to be major which occurred in 2015 or 2016.An annual report by the regulator said there were 159 incidents of unauthorized computer access during fiscal year 2015, according to a redacted copy obtained by Reuters under a Freedom of Information Act request.Rather than major breaches by hackers, however, these incidents included security lapses such as employees copying sensitive data to thumb drives and leaving the agency.Twenty of the incidents were confirmed data breaches, according to an FDIC document provided to Reuters by the U.S. House of Representatives Committee on Science, Space and Technology. That represents a higher number than was previously reported by the regulator under reporting guidelines for major incidents.
In response to these continued incidents, the FDIC has taken the bold step of… banning thumb drives. It appears the lengthy delays between discovery and disclosure will remain in place. In response to the Reuters report, a round of "no comments" was offered from a variety of government officials, as well as the contractor hired by the FDIC to rid its computers of invaders.An earlier investigation by the House Science Committee does offer some support for the Chinese military hackers theory, but the only conclusion it reached was that the hack appeared to be China-based. Committee members were less than impressed with the FDIC's reluctance to cooperate with the probe and suspected staffers of trying to shield the new FDIC chairman from criticism. The Inspector General's report couldn't find any evidence confirming this assumption, but the 2013 report did find that top FDIC officials weren't even briefed on the discovered breach until more than a year after it was discovered. So, it's not just secrecy between branches of government. It's also secrecy within a single government body. And never mind the millions of Americans potentially affected. They'll always find out last.
If there is a common theme that runs through much of the posts we do on trademark disputes, it's that the ultimate responsibility for them lies at the feet of a USPTO that's only too willing to grant privilege on words and terms when it should not. The examples of this abound, from a video game trademark on the term "candy" to trademarks being granted in the entertainment market for the word "live."And now we can add to this list that the USPTO apparently granted a trademark for the restaurant industry to a company on the word "succotash." This came to light when that company, Knead Hospitality + Design, sent a cease and desist notice to Beth Barden, who runs a restaurant in Kansas City that goes by the name Succotash.
Barden learned via email that Knead Hospitality + Design filed a trademark registration for Succotash and requested she remove the trademark symbol from her website. But the D.C. company's move has bigger implications: The filing gives it the nationwide right to use that trademark in connection with bar, catering and restaurant services. If Barden wanted to expand or franchise outside the Kansas City area, she could be subject to trademark infringement, said Cheryl Burbach, a partner in Hovey Williams LLP, an Overland Park intellectual property law firm."All of a sudden, your name isn't yours anymore," Barden told the Kansas City Business Journal. "It's a little terrifying because clearly they have more money than I have, more opportunity to fight this thing than I do."
Now, notably, Barden's restaurant is over a decade old, while Knead Hospitality + Design came to be only in 2014. As such, Barden likely has all sorts of protections available to her via common law trademark rights. She has hired an attorney to fight the C&D... and to get Knead's registration cancelled. And that really should happen, because allowing a trademark in the restaurant industry that consists entirely of the name of a common dish is insane. So insane, in fact, that that's the reason why Barden herself never even bothered to attempt to register the trademark herself.
Barden said she never registered a Succotash trademark because she didn't think a common vegetable dish could be trademarked. Even so, Barden is considered a senior user who owns prior common law trademark rights in the Kansas City area. Knead filed its trademark application on March 14, 2015, well after Barden began using the name in Kansas City.
Her naiveté would be quite sweet, had it not led to her now having to pay an attorney to keep a trademark bully with a mark that never should have been granted in the first place at bay. Which brings us all the way back to the original point: if the USPTO can't be bothered to think about a trademark application for long enough to realize it never should have granted this particular mark, the time for new oversight is at hand.
Never let it be said that Kamala Harris gives up after being told her totally bogus legal crusade is totally bogus. She's now filed brand new charges against the execs who run Backpage.com -- despite having the very same lawsuit thrown out a few weeks ago. As you may recall, for years, Harris (and some other state Attorneys General) have been crusading against the classified website Backpage, because some of its users use it to post illegal prostitution ads. As has been explained dozens of times, the proper thing to do in those situations is to use that information to go after those actually breaking the law. Instead, Harris and others have whined about their desire to put Backpage execs in jail instead (which won't actually stop any illegal activity -- since it will just move to another site).
Let's be crystal clear here: California Attorney General Kamala Harris (who in just a few weeks will become a US Senator) knows that she has no legal basis for arresting the execs behind Backpage. How do we know she knows this? Because three years ago she signed a letter whining about how she had no legal authority to arrest Backpage because it's (rightly) protected by Section 230 of the CDA, saying that you can't blame a site for the actions of its users. So it did seem weird, back in October, when Harris -- along with Texas Attorney General Ken Paxton -- decided to arrest Backpage's execs anyway, and charge them with "pimping." As we note at the time, the criminal complaint against them was laughable and almost completely bogus. Not only was Backpage protected by CDA 230, but the actual investigation into Backpage undercut the case they were bringing, because it showed a willingness by Backpage to delete prostitution ads when brought to their attention by law enforcement, and to block those users from reposting.
So it was no surprise at all when the court quickly tossed all the charges against the execs, and told Harris to take it up with Congress... which, of course, is where she'll be in a month. However, not content to just try to change the laws, Harris has chosen to file brand new charges against the three execs, Carl Ferrer, Michael Lacy, and James Larkin. The press release from Harris claims that the reason for the new charges is that she's "uncovered new evidence" but that's a load of hogwash.
The new charges still include bogus "pimping" charges, but now also have a bunch of "money laundering" charges as well. And that sounds scary, but once again the details look to be complete bullshit. Basically, the "money laundering" is that Backpage set up a separate operation to handle billing, after American Express (under pressure from grandstanding politicians) said it no longer wanted to work with Backpage. So, the lawsuit argues, Backpage set up a sort of shell corporation to accept AmEx charges, without it looking like they were coming from Backpage. But in order for it to be money laundering, it has to involve a situation where the money itself is coming from illegal activity, and over and over and over and over again the courts have said that Backpage's activity is not illegal. In fact, that's what a court told Harris just two weeks ago.
This is a frightening abuse of power to harass a company just because Harris doesn't like how people use that company, and because she and her staff can't be bothered to do the actual law enforcement work of using that information to go after the actual lawbreakers. It's shameful.
As you head home for the holidays, perhaps passing through a checkpoint or two, take some time to think about U.S. Patent No. 6,888,460, "Advertising trays for security screening." The owner of this patent, SecurityPoint Holdings, Inc., has sued the United States government for infringement. SecurityPoint recently won a trial on validity [PDF] and the case will now proceed to a damages phase. So, unless the validity decision gets overturned on appeal, we'll soon be paying tax dollars for the idea of moving trays on carts.Although the title of the patent mentions advertising, some of its claims do not require any ads at all. In fact, the patent is so broad it reads on almost any system of using trays and carts at a checkpoint. The first claim of the patent (with limitations labeled), reads as follows:
1. A method comprising:[a] positioning a first tray cart containing trays at the proximate end of a scanning device through which objects may be passed, wherein said scanning device comprises a proximate end and a distal end,[b] removing a tray from said first tray cart,[c] passing said tray through said scanning device from said proximate end through to said distal end,[d] providing a second tray cart at said distal end of said scanning device,[e] receiving said tray passed through said scanning device in said second tray cart, and[f] moving said second cart to said proximate end of said scanning device so that said trays in said second cart be passed through said scanning device at said proximate end.
In plain English, this claim means: send trays through a checkpoint and use two carts to move the trays back and forth. As is common with patents, the claim uses obtuse language for ordinary things. For example, the word-salad at limitation [f] pretty much just says: "use a cart to move trays from the end of the checkpoint back to the start."In a trial before the Court of Federal Claims, the government argued that this claim was obvious because moving trays using carts was well-known in many contexts. The court disagreed. The court suggested that even if using carts to move trays was well-known, the government needed prior art specifically for security checkpoints (arguably the government had such evidence, but the court disagreed on that point too).In fairness to SecurityPoint, evidence at trial suggested that it had developed a good system for managing trays and carts within the confined space of an airport security checkpoint. But the patent's claims are far broader than any specific solution. This is something we often see in patent law: someone develops a (fairly narrow) innovation, but then broadly claims it, capturing things that are well-known or banal. This sort of claiming hurts follow-on inventors who develop their own ideas that wouldn't infringe any narrower claim, and weren't invented by the patent holder. But because the broader claim is allowed, their own inventions become infringing. Here, claim 1 is not limited to any particular kind of cart, tray, or scanner. The claim really reads on using a couple of carts to move trays and, in our view, should have been found obvious.Together with Public Knowledge, we recently filed an amicus brief [PDF] asking the Supreme Court to consider the obviousness standard in patent law. We argue that, as applied by the Federal Circuit, obviousness law has abandoned common sense. Specifically, we argue that the Federal Circuit has failed to apply a Supreme Court case called KSR v. Teleflexthat calls for a flexible, common sense approach. We hope the Supreme Court takes that case. If it does, it might help us save some tax dollars that would otherwise have gone to SecurityPoint. Unfortunately, whatever happens, we'll likely still be stuck waiting at airport checkpoints.Reposted from EFF'sStupid Patent of the Month series.
Let it never be forgotten that Nintendo hates you, Nintendo fans. The gaming giant has a long and decorated history both of anti-consumer practices, such as attempting to poison the roster of YouTuber game reviewers, bricking consoles if gamers don't agree to its post-release EULA updates, and attacking some of its biggest and most creative fans by issuing takedowns and threats for fan-made game levels, fan-made games that have barely anything to do with its IP, and shutting down fan-made remakes of games that are decades old.Yet Nintendo has been notably lenient in some areas in enforcing its intellectual property as well. The most prominent of these would be what's referred to as "ROM hacks", in which the original Nintendo ROMs are modded to include new and original content. These ROM hacks abound and are readily available, requiring the original game (or a pirated version) in order to be used. Now, for the first time reported, one of these ROM hacks has fallen into the sights of Nintendo's lawyers.
A fan-made Pokémon ROM hack in the works for eight years was set to launch this Sunday. But a letter sent by Nintendo's Australian law firm on Wednesday has stopped those plans in their tracks. According to Adam "Koolboyman" Vierra, developer of the fan-made Pokémon Prism project, Nintendo's Australian law firm sent him a cease-and-desist letter, which he uploaded to Google Drive with identifying information redacted. (American representatives for Nintendo were not able to confirm the letter's authenticity as of press time.) The request alleges that Koolboyman's project, which alters the source ROM of the 1999 game Pokémon Gold to create an entirely new adventure, violates multiple Australian laws.
The location of all of this requires some explanation. Vierra lives in California and Nintendo's legal team is based out of the United States, but Vierra had been planning on releasing the game via Rijon.com, which is based in Australia. It was Nintendo's Australian legal team that sent the threat letter. That team has previously taken action against downloaders of pirated Nintendo games, but not on creative fans producing these kinds of ROM hacks. As noted before, the company worldwide has generally allowed these add-on mods to exist. Not so much in this case, for reasons not currently being offered by Nintendo.But let's all not lose sight that this is a mod on a game nearly two decades old created by a fan to incorporate brand new gameplay and story elements into the existing game and engine, and was going to be offered free of charge. It's CounterStrike, in other words, except using a Nintendo product. And there are entire sites and fan-groups built around these sorts of mods. They're a boon to gaming companies by extending the life of the demand for a game for free, as fans take on the work of adding on to it in a way that still requires the original in order to play it at all.And this isn't even Vierra's first go at this sort of thing.
Vierra himself might have assumed Nintendo would allow a Pokémon ROM hack, because his last one, Pokémon Brown, launched in 2004 with nothing in the way of dispute from Nintendo. That hack's new "Rijon" region would have been hugely expanded upon in Pokémon Prism. It would have contained other tweaks, such as Brown's special monster types (wood, gas, wind, abnormal, and sound), a tweak to the game's "clock" system, and new music compositions. (Other Pokémon ROM hack depositories are easy to find online.)
One could say that this all reeks of a legal team in a foreign country not being on the same page as the HQ back home. Except that it can also be said that expanding IP enforcement to this new front is perfectly in line with Nintendo's general heavy-handed approach to protectionism. Because Nintendo can't help itself. Because Nintendo hates you.
It just won't stop when it comes to trademark disputes involving the alcohol industry. Such disputes between wine, beer, and liquor companies are legion. In such a crowded industry, it needs to be hammered home that the purpose of trademark law is not so that big companies can bully smaller companies, but rather so that customers are protected from imitation products and from being confused as to who they are buying from.The latest such dispute is between Butterball, the turkey-selling king based out of North Carolina, and a small wine company in Australia. At issue is one of McWilliam's Wines Group's chardonnays, which the company has branded as its Butterball Chardonnay.
According to a complaint filed Dec. 12 in the U.S. District Court for the Eastern District of North Carolina, Butterball states that McWilliam’s Wines Group Ltd. “produces, sells, distributes, and imports into the United States a variety of Evans & Tate branded wines, including a type of chardonnay named ‘BUTTERBALL.’”Butterball states that its trademarked goods and services range from turkeys and marinades to fat fryers and mobile device software. The complaint goes on to say, “The consumer goodwill associated with the BUTTERBALL Marks is one of Butterball’s most valuable assets. Accordingly, the integrity of the BUTTERBALL Marks is extremely important to Butterball and crucial to the continued vitality and growth of Butterball’s business.”
Notably absent from Butterball's list of goods and services using the Butterball trademark is anything having to do with wine in particular, or even beverages in general. And there is good reason for this: Butterball doesn't make wine. A brief look at its products page confirms what everyone already knows: Butterball makes meat products, along with a few ancillary items. In other words, when you think of Butterball, you think of turkey. It seems unlikely that the company can argue it is in a competitive marketplace with a wine seller at all, never mind that there might be any kind of customer confusion that could occur due to the name.And the branding of both companies doesn't make confusion any more likely. Here are both brands side by side.
Yeah, the branding of the wine label looks nothing like Butterball's branding, and it has the name of the wine company clearly depicted on it. Now, I'm sure that Butterball will at some point trot out the trademark bully's favorite excuse and claim it had to file this lawsuit or risk losing its trademark, but that isn't actually true. It would only be true if there were actual potential confusion or a real demonstrable infringement within Butterball's marketplace. Neither are the case.This lawsuit is a real turkey, in other words. I'm so, so sorry...
The easiest way to thwart a public records request is to demand a ridiculous amount of money up front. The McKinney Texas Police Department tried to chase away a request for records on a controversial cop by asking for $79,000 to fulfill it. Florida's state attorney's office stiff-armed a mother requesting official documents related to her own daughter's suicide by telling her it would cost at least $180,000 to round up the records. Even the federal government gets in on this action, with the FBI telling MuckRock it would cost more than a quarter-million dollars to deliver its records on government contractor Booz Allen.Here we have more of the same… only with even higher fees and a government agency plainly uninterested in fulfilling a request.
Back in February, a nonprofit group called Reclaim the Records filed requests for Missouri birth and death listings from 1910 through 2015.The California-based outfit describes itself as a “group of genealogists, historians, researchers, and open government advocates who are filing Freedom of Information requests to get public data released back into the public domain.”The group sought the information under Missouri’s Sunshine Law. After more than four months, the Missouri Department of Health and Senior Services (DHSS) finally got back to Reclaim the Records with an estimate of what its request would cost.A letter from the legal office of the department estimated the birth list would take the agency 23,376 hours to compile and the death list 11,688 hours. At $42.50 an hour, the tab came to an eye-popping $1.5 million.
Faced with a $1.5 million tab, Reclaim the Records went with the cheaper option: hiring a lawyer. Kansas City attorney Bernard Rhodes wrote a letter to the department suggesting it could handle this on a range-of-years basis (rather than the per-day search the DHSS proposed) for a presumably much lower cost. The letter resulted in savings of nearly 100%.
A few days after that, [DHSS General Counsel Nikki] Loethen emailed Rhodes and told him the department was revising the cost estimate down – to around $5,000, or a 99.7 percent decrease.
If this fee sounds reasonable, it's only in comparison to the $1.5 million the DHSS wanted earlier. What should be a simple search of existing digital records was being made needlessly complex and expensive by the DHSS. Rhodes suggested the department utilize a single search covering several years at a time, rather than the options the DHSS had proposed.At that point, the DHSS decided it was no longer interested in working with Reclaim the Records.
A few days later, however, Loethen advised Rhodes that the department would refuse to provide the records altogether.
I guess this is Plan B. When Plan A -- make requesters an offer they can't refuse accept -- doesn't work out, the next move is generally summed up in two words: "Sue us."Reclaim the Records has now joined countless other individuals and entities in suing the government to release records that rightfully belong to the public. And in Missouri, the DHSS's responses are pretty much just normal government business.
Reclaim the Records’ dispute with DHSS comes against the backdrop of a November report by Missouri State Auditor Nicole Galloway on local governments’ compliance with the Sunshine Law. Galloway’s office made public records requests of 326 randomly selected political subdivisions in the state, and more than a third failed to respond in a timely fashion and another 15.5 percent didn’t respond at all, the report found. Galloway estimated that 65.3 percent “would not fully comply with public record requests.”“By failing to properly and timely respond to requests or denying requests unjustifiably, political subdivisions risk fines, lawsuits, and loss of credibility with their constituency,” the report stated.
Perhaps it's time for the state to come up with a new slogan. The "Show Me" state isn't showing much. And it's charging some every excessive admission.What makes this all worse is Reclaim the Records knows the records request could be fulfilled very easily. The same data the nonprofit is requesting is already available. The state sells this data to third parties but won't turn them over to a public records requester. Unlike several states, Missouri doesn't make this data openly available by publishing it online. It locks it up and charges for access, and one imagines the $1.5 million it asked Reclaim the Records for is far higher than it would have charged if the nonprofit had simply asked to buy it.
I'm going to keep ringing the warning bell about how the explosive growth in the beer and wine businesses has resulted in a similar explosion in trademark disputes until people start listening. An industry that has benefited from so much interest and competition is eventually going to find itself with a massive litigious roadblock on its hands if something isn't done. That said, the typical trademark dispute in the alcohol spaces normally deals with fairly creative names, artistic labels, or cross-industry trademark concerns. Less common are the types of trademark disputes in which the trademark in question is laughably broad or common.Less common, but not completely absent, however. In Australia, for instance, one winery sued another over a trademark it holds on the word "signature." The suit failed for exactly the reasons you're thinking of.
Yesterday the court dismissed an application by Yalumba against the Jacobs Creek Reserve Barossa Signature range, which claimed the Pernod Ricard term infringed on the Yalumba trade mark, “THE SIGNATURE”. The fight was provoked by Yalumba owner Robert Hill-Smith when Pernod Ricard released three Jacobs Creek red wines in September 2015 with “Barossa Signature” on the label.
In her judgment today, Natalie Charlesworth said the case came down to three questions: whether Pernod Ricard used the words “Barossa Signature” appropriately under the Trade Marks Act, whether it was deceptively similar to the Yalumba Trademark, and whether Pernod Ricard used the term “in good faith to indicate the kind, quality, intended purpose, geographical origin or some other characteristic”.
In the ruling itself, Charlesworth goes on to answer those three questions, though she stops herself after the second of them. She reasons that if Prenod Ricard used the words appropriately under the law, as she affirms, and that such use is not going to confuse the public into the origin of the product, as she also affirms, then the answer to the third question doesn't matter. She goes on to note the differences in trade dress and also notes that the trademarked term "The Signature" is devoid of origin-defining value. Therefore, the lawsuit is dismissed.As is typical, the ultimate fault for all of this is upon whoever thought approving a trademark for a term like "signature" for an industry overflowing with "signature" labels was a good idea. The term is generic in identifying premier products within a brand. It's used all over the place. How this trademark application ever passed the smell test in Australia is beyond me.
Abbey Dental of Las Vegas doesn't like the number of negative reviews that are piling up at Pissed Consumer. But that's about all it (and its lawyers) know. It seems to understand that taking on Pissed Consumer with a defamation lawsuit would be a complete failure, as would be any effort it made to sue individual reviewers. Nevada has an anti-SLAPP law in place, which would fit Abbey Dental's attempt to artificially resuscitate its reputation to a tee.So, instead of handling this in the normal way (which would also be the route least likely to succeed), the company has decided to take a more oblique approach: a lawsuit filed in federal court (to better dodge the state's anti-SLAPP law) centered on a variety of tremendously stupid trademark infringement claims.Pissed Consumer, represented by Marc Randazza, has decided to swerve as well -- the better to attack Abbey Dental's circuitous claims head on and ensure it doesn't escape the anti-SLAPP statute it's so desperate to avoid.As is noted in the first footnote of Pissed Consumer's motion to dismiss/summary judgment request [PDF], the defendant and its lawyer have given Abbey Dental plenty of time to back away from the precipice.
[Abbey Dental's] complaint was filed on October 27, 2015. Shortly thereafter, Defendant warned Plaintiff that the case was frivolous and would be subject to an Anti-SLAPP motion. (See Email from Randazza to Amin dated Jan. 6, 2016, attached hereto as Exhibit 1.) Defendant spent more than a year trying to get Plaintiff to come to its senses. After eight extensions seeking to avoid this, Defendant finally filed its first Anti-SLAPP motion. (ECF No. 25.) Plaintiff responded by filing an Amended Complaint 1 day later. The Amended Complaint simply compounds the problem, and cures nothing.
Abbey Dental's lawyers are creative, but the arguments made are novel, which is a judicial term for "wtf." The company -- in its desperation to avoid having to deal with Section 230 of the CDA -- claims that Pissed Consumer has done everything from domain name squatting to abuse of keywords/metatags (something settled a long time ago) to injure its trademarked name. Pretty much everything in its complaint is -- at best -- stupid bullshit.
Abbey argues that using the words “Abbey Dental” on a web page with consumer reviews about Abbey creates a likelihood of confusion in the minds of consumers by making them think that the web site is affiliated with Abbey. This makes no sense. This use is clearly nominative fair use.[...]The first issue is Opinion’s use of search result copy on Google. The copy that accompanies a search result for the term “abbey dental” that leads users to Opinion’s web site informs users that they will arrive at a site with reviews of this particular business. The Ninth Circuit summed up the weakness of Abbey’s argument here when it recognized that internet users:fully expect to find some sites that aren’t what they imagine based on a glance at the domain name or search engine summary. Outside the special case of . . . domains that actively claim affiliation with the trademark holder, consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page – if then.[...]Though it is not an element of an infringement claim, Abbey also alleges at that Opinion is diverting Internet users to Abbey’s competitors by providing advertising on its web site. Even if this were an element of an infringement claim these allegations would not help Abbey. Opinion does not create these advertising links, and they are tailored to the search patterns of visitors.
That's just some of the trademark claims dispensed with. Then there's the completely ridiculous "cybersquatting" claim -- raised because Pissed Consumer's review page URL contains the words "Abbey Dental."
[T]here is nothing actionable about Opinion’s use of the Abbey Dental mark in its sub-domain [abbey-dental.pissedconsumer.com]. Tabari is instructive here, and observed that,when Internet users search for a web site through a search engine the consumer will click on the link for a likely-relevant site without paying much attention to the URL. Use of a trademark in the site’s domain name isn’t materially different from use in its text or metatags in this context; a search engine can find a trademark in a site regardless of where exactly it appears.
As for any "customer confusion," not even a "moron in a hurry" would think Pissed Consumer's gripe page was somehow an official extension of the Abbey Dental brand. Not only that, but it's impossible to write about a business without using the business's name.
Abbey’s argument on this point is frivolous on its face; Opinion’s use is plainly a nominative fair use of the “Abbey Dental” mark; there is no way to have a review page about a business without naming the business. Opinion does nothing to create any sense of affiliation or sponsorship by the thousands of reviewed businesses.
Since Abbey Dental seems intent on avoiding fights it knows it can lose (Section 230, Nevada's anti-SLAPP law), Pissed Consumer is bringing the fight to it. The combination motion asks for both a dismissal and sanctioning under the state's anti-SLAPP law. As Randazza points out in the motion, the company's federal filing shouldn't allow it to escape the reach of local statutes.
Anti-SLAPP statutes apply in federal court. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003); see also Thomas v. Fry’s Elecs., Inc., 400 F.3d 1206, 1207 (9th Cir. 2005). NRS 41.650 provides that a person who engages in conduct protected under Nevada’s Anti-SLAPP statute “is immune from any civil action for claims based upon the communication” (emphasis added). NRS 41.635-670 creates a substantive immunity from certain categories of lawsuits and is substantive in nature.
The motion notes that Abbey Dental's bogus trademark infringement lawsuit is just a creative way to avoid dealing with legal precedent it can't surmount and is wholly intended to make criticism of it disappear. This is made even more explicit by its requested injunction.
Abbey’s claims are centered on the theory that Opinion is liable for directing consumers to through its use of industry-standard sub-domains and Google ad copy. To ensure that users actually see reviews about a company, a consumer review web site must use a given business’s name in a sub-domain and ad copy. To restrict such a site from doing so would be to effectively remove web pages containing reviews of the business from the Internet, as no one would be able to find them while performing an Internet search. Abbey’s prayer for relief makes this even clearer, as it seeks both a preliminary and permanent injunction barring Opinion from using Abbey’s name on pissedconsumer.com.
Pissed Consumer is not only asking for a dismissal and a fee award under the anti-SLAPP statute, but also additional sanctions against Abbey Dental for bringing such a frivolous complaint to court.With any luck, this will all be granted. Abbey Dental has to know its trademark infringement claims are baseless. I guess it was hoping Pissed Consumer would be less familiar with IP law, or that the presiding judge would would be the "moron in a hurry," mistaking a lot of legal-sounding mumbo jumbo for actionable claims.Final note: Abbey Dental's reputation may be hurting right now, but I assume the installation of Dr. [name], [title] will soon turn things around.
A Florida Court of Appeals has handed down a somewhat surprising ruling [PDF] in a case centering on evidence obtained from a teen's cellphone. (via FourthAmendment.com)Two juveniles fled their vehicle during a traffic stop, with one of them (referred to as "K.C." in the ruling) leaving behind his cellphone on the car's seat. This phone -- whose lockscreen featured a photo of someone who "looked similar" to "K.C." -- was taken by the officer.Several months later, the PD's forensic lab was asked to determine ownership of the phone. The phone was locked with a passcode, but the lab was able to unlock and retrieve this information. No warrant was obtained and the search apparently wasn't limited to determining ownership. The use of evidence obtained from the phone was challenged, but the state felt it had plenty of warrant exceptions to save its search.
K.C. was charged with burglary of a conveyance. He moved to suppress the contents of the cell phone, from which the police had obtained his name, on the ground that the phone was searched without a warrant. After the presentation of the foregoing facts, the prosecutor argued that the phone was abandoned, and the owner had no expectation of privacy in the phone once abandoned.
Generally speaking, abandonment of property results in privacy expectations being stripped. In this case, however, the court found that K.C.'s use of passcode meant that he retained an expectation of privacy even after leaving the phone behind.The court points to the Supreme Court's Riley decision, noting that today's smartphones are not simply "locked containers." They are more equivalent to a locked house, considering the wealth of information contained in them. If law enforcement can't search a house without a warrant simply because the resident fled when seeing them ("abandoning" the house), it can't search a locked cellphone simply because it was left behind by a fleeing suspect.It quotes this section of the Riley decision on the way to its conclusion:
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
It then addresses the state's claim that abandoned property of all types no longer carries an expectation of privacy.
Our supreme court has recognized that “[t]he test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy…"[...]While we acknowledge that the physical cell phone in this case was left in the stolen vehicle by the individual, and it was not claimed by anyone at the police station, its contents were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it. Indeed, the password protection that most cell phone users place on their devices is designed specifically to prevent unauthorized access to the vast store of personal information which a cell phone can hold when the phone is out of the owner’s possession.
It's the steps taken to protect the phone's contents that determines the expectation of privacy in abandoned phone. The court doesn't appear to be extending this protection to all abandoned cellphones.The court also points out that, given the circumstances of the case, seeking a warrant would have been a very minor inconvenience.
Where a cell phone is “abandoned,” yet its contents are protected by a password, obtaining a warrant is even less problematic. In this case, how difficult and inefficient would it have been for the officer to obtain a search warrant, when the cell phone in question was in police possession for months?
Also of note: the good faith exception was never raised, otherwise this decision may have gone the other way. That's rather surprising, considering it's almost always raised when evidence might be suppressed, no matter how far away removed from any common definition of "good faith" the government's actions were.It would also be interesting to see this line of thinking applied to the Third Party Doctrine. If attempts are made to limit the generation of third-party records (the use of VPNs/Tor for web browsing, shutting off GPS location for phones, etc.), does that give the records that are still generated a greater expectation of privacy? Or would it simply be assumed that, no matter what efforts are made by cellphone/computer users, anything held by a third party can still be obtained without a warrant?
Law enforcement databases, while useful in investigations, are also severely problematic. Not only does the desire to "collect it all" result in databases full of information about innocent people, but very few agencies are serious about deterring database misuse. In most cases -- despite the constant threat of criminal prosecution -- most abusers are hit with nothing more than short suspensions for improper access.Then there's the problem with the humans running the systems. When mistakes are made (or information is entered for more malicious reasons) by government agencies, the consequences for those mistakenly targeted can be severe.
During a bitter, year-long legal battle that ended last month, Mr Hanson was shocked to discover his name was embedded in the police database as a "person of interest" involved in "suspected criminal activity" and "possibly associating" with Comanchero Outlaw Motorcycle Gang members.The intelligence entry carried the highest "A1" police reliability rating. But Fairfax Media can reveal the only basis for the report was that Mr Hanson's family car had been observed in the same street, at the same time, as "two motorcycle riders" wearing Comanchero shirts.
The appearance of Mark Hanson (not his real name) in the police database occurred after a traffic stop in a casino parking lot. The officer performing the stop jumped to several conclusions, stating that Hanson's car was spotted "in the vicinity of several sports cars and motorbikes" on another street. In addition, the officer referred to the vehicle Hanson was driving his family in as "hotted up."These inferences -- all of which were based on coincidental observations not backed up by any info collected by the officer -- became the official police narrative, thanks to his report's entry into the law enforcement database. From that point on, former police officer Hanson was considered to be involved in gang-related activity.Because Hanson is a former police officer, he was able to get this corrected. Most citizens don't have the power to make that happen. He approached police supervisors about his database entry and was given some vague assurances that the bullshit he had been subjected to because of the officer's report might not happen again.
When Mr Hanson canvassed senior police about the revelation, the force's Professional Standards chief inspector Gregory Jewiss confirmed that the constable had generated an "entity link" containing unconfirmed information but said there was no evidence to suggest "any malicious intent" had been involved in its creation. He added the officer would be spoken with to ensure his "knowledge" was "improved" and such linkages were "not made again".
But the assurance that his database record had been purged did nothing to mitigate the damage already done. Hanson's entirely fake criminal status had already made its way into the hands of other agencies with access to the database, like State Crime Command's gangs squad and the Australian Crime Commission.Hanson was forced to go to court to get this information excised. The removal the chief inspector assured him about wasn't performed proactively. Having both the money and knowledge to press his case effectively was key for Hanson's courtroom success. For most people, these two resources are beyond their reach, as was confirmed by a recent COPS (the criminal database in question) forum held by the New South Wales Council for Civil Liberties.
The forum found that while entries in the database can result in extra police attention, it is "highly unlikely" that people would ever obtain intelligence reports and there is no entitlement to amendment of the database.
Citizens have no right to correct law enforcement's wrongs and no right to see what information has been gathered on them. They are almost completely at the mercy of the government. And the government is no less prone to errors or vindictiveness than those outside of it. The difference is that the government can do far more damage than any individual can, as it has the ability to mobilize entire agencies based on bad information.
Just when you think you've seen it all in silly trademark filings, along comes a liquor company to block the trademark application for the logo of an NBA basketball team. Jagermeister, a liquor I haven't thought about since my college days because I'm a grownup that drinks grownup drinks, has decided that the logo for the Milwaukee Bucks is too similar to its own logo and must be stopped.
Germany-based Mast-Jägermeister SE has filed its opposition to the Milwaukee Bucks trademark application with the U.S. Patent and Trademark Office. The notice, filed Thursday, argues that there is a likelihood of confusion between the two logos, a false suggestion of connection and a dilution of the Jägermeister logo’s “distinctive quality.” Jägermeister says the services provided by the two organizations “are so related” that it creates the potential for confusion. The potential for confusion “is enhanced by the extraordinary fame” of Jägermeister’s trademarks, the notice says.
Here are the logos in question.
Similar? Sure, I suppose, although there are fairly distinct differences between the two logos that would probably keep any customer confusion at bay. There are those lines within the circle on Jagermeister's logo, for instance. Also that big cross at the top, there, I suppose, because Jesus was a huge fan of Bavarian digestifs. Also, and this is a minor point only, the basketball franchise's name is right there on their logo.Regardless of all of that, whatever involvement Jagermeister has in markets other than beverages is minimal, it doesn't have anything to do with basketball, nor would it amount to creating any confusion within the public. All of which Jagermeister has essentially acknowledged in a statement saying that that it is really just wasting everyone's time with all of this while trotting out everyone's favorite excuse for paining someone else's ass with trademark law.
On Monday, Jägermeister's trademark attorney, Katrin Lewertoff of Connecticut apologized for the delay and issued a statement suggesting there really is no trademark tiff."Jägermeister and the Milwaukee Bucks have been cooperating on this issue for months," she said. "The filing was a formality to preserve our intellectual property rights. We expect to come to an agreement with the team soon and appreciate the climate of partnership and fair cooperation with the Milwaukee Bucks in the process."Soon after, the Bucks chimed in with, "“The Bucks have been working amicably with Jägermeister throughout this process and we are confident that we will come to a resolution very soon.”
So everyone is going to end up playing nice over this, but Jagermeister had to block the application in order to preserve it's trademark rights. It's the same excuse we see time and time again and it's almost always false. In this case, for instance, the law only obligates Jagermeister to police it's trademarks in the face of true infringement or confusion. There is none in this case, so the blocking of the application was not necessary.Whatever the purpose of trademark has become in modern times, I doubt the framers had intended it to simply create busy work for lawyers and USPTO employees.
I've made no secret of the fact that I think smartwatches are really wonderful, even as lots of people scoff at the concept (and sales have been disappointing across the board). The first device that clued me in to the possible power of the smartwatch was the original Pebble smartwatch, which I (and many, many others) backed on Kickstarter. I ended up backing their second Kickstarter campaign as well -- but was disappointed in the end product and ended up moving on to another smartwatch instead (the Moto 360, though now it looks like Motorola is dumping that business as well). I didn't end up backing Pebble's latest Kickstarter campaign, which turned out to be a good thing, because as you may have heard, the company announced last week that it had sold its assets to Fitbit, and no more work would be done on Pebble watches (and people who backed the latest project would eventually get refunds, but no watches).
But, things are even worse for those who already do have (and still use) Pebble watches. In the announcement, the company admits that since Pebble watches rely on Pebble servers for certain features, the functionality of the watches may be reduced in the future:
Active Pebble watches will work normally for now. Functionality or service quality may be reduced down the road. We don't expect to release regular software updates or new Pebble features. Our new mission will focus on bringing Pebble's unique wearables expertise to future Fitbit products. We're also working to reduce Pebble's reliance on cloud services, letting all Pebble models stay active long into the future.
Of course, as Cory Doctorow rightly notes, the real problem here is that thanks to stupid laws like the DMCA Section 1201 (barring circumvention of technological protection measures) and the CFAA (barring certain forms of "hacking"), users will have trouble fixing or saving their own watches. It's yet another case of not really owning what you thought you bought... thanks to DRM and bad laws.
The watches are among the many cloud-based Internet-of-Things products that are reliant on the ongoing maintenance of server infrastructure for normal functionality. This problem is exacerbated by the widespread IoT deployment of DRM to lock devices into manufacturer-controlled infrastructure -- thanks to laws like section 1201 of the Digital Millennium Copyright Act, developers who create software to replace cloud functions with alternative/self-hosted servers, or with local computing, face potential jail sentences and millions in fines. Add to that the Computer Fraud and Abuse Act, which has been used to threaten and even jail researchers who improved services but violated their terms of service to do so, and the IoT space is the land of the contingent, soon-to-be-bricked devices
As Cory notes, Pebble should allow their own users to hack their stuff, by releasing source code, schematics and more. Unfortunately, this is unlikely to happen. But it's yet another case of the law getting in the way of something you thought you owned.
Lately it's been John Oliver whose short segments have been related to Techdirt-focus areas, but now it's another Daily Show alum, Samantha Bee, whose show, Full Frontal, just had an excellent segment by Ashley Nicole Black that's a Mr. Robot parody explaining why everyone should learn about protecting their digital info, including putting a passcode on their phone, using different passwords and more. The ~7-minute clip includes brief cameos by Senators Ron Wyden and Pat Leahy talking about overly aggressive US surveillance -- and an extended bit with technologist Chris Soghoian, who just left the ACLU to go help Congress better understand technology (this is good!). And then, at the end, they get Talib Kweli to do an... updated version of his hit song "Get By" to make it relevant to protecting your personal data from government surveillance, and concluding that the surveillance "goes against the 4th Amendment." And, did we mention the whole thing is pretty funny?
Last year, we wrote about an important patent case concerning the common practice of patent trolls going forum shopping. We've been writing about how patent trolls have been flocking to East Texas for ten years now, and little has changed. In fact, as we noted last year, there's one judge in East Texas, Judge Rodney Gilstrap, who famously handled 20% of all patent cases filed in the country in 2014. One judge. And that's not all the patent cases that come into that court. The towns of Marshall, Texas, and Tyler, Texas, have built a giant industry out of being super friendly to patent trolls. And it's ridiculous. But there's a case that could put an end to it and the Supreme Court has thankfully agreed to hear it. The case is called In Re: TC Heartland, and -- somewhat ironically -- it is not about a case filed in East Texas, but rather in the second favorite patent troll destination: Delaware (which has become more friendly to patent trolls over the last few years -- apparently trying to compete with East Texas for the "business.")
The underlying issue in the case is whether or not a 1990 ruling by the Court of Appeals for the Federal Circuit (CAFC) in the VE Holding v. Johnson Gas case basically threw open the floodgates on jurisdiction shopping for patent plaintiffs. This ruling was ridiculous on multiple levels, not the least of which was because one of the driving forces in setting up a centralized appeals court (CAFC) to hear all patent cases was to stop jurisdiction shopping that was happening in the patent space, where patent holders were rushing to favorable courts in favorable circuits. And, yes, the end result has been significantly worse forum shopping than anything that existed prior to CAFC's existence. And when CAFC got a chance to review this bad decision in hearing the TC Heartland case earlier this year... it didn't. It left the earlier rule standing.
The good news, of course, is that when the Supreme Court agrees to hear a patent case these days, it almost always means that CAFC is about to get spanked for being ridiculously bad at its main job of properly interpreting patent law. So hopefully things are lining up to see another SCOTUS smackdown of CAFC... and with that smack, an end to East Texas (or any particular jurisdiction) as a patent troll haven.
Earlier this year Verizon was understandably irritated when it learned (just two days before the public) that Yahoo had failed to disclose a massive hack of the company's systems during the companies' $4.8 billion merger negotiations. Reports suggested that Verizon, who is attempting to pivot from broadband to ads and content, wanted a $1 billion reduction in the asking price and another $1 billion set aside for the inevitable lawsuits. Given its NSA ties, Verizon was likely much less concerned about reports revealing that Yahoo also went out of its way to help the government sniff through subscriber e-mail accounts en masse.
Fast forward to this week, and things just got notably more complicated for both companies. While the first Yahoo hack revealed the personal data of roughly 500,000 Yahoo subscribers, Yahoo just confirmed a second attack by the same party that the company says revealed the personal data of 1 billion Yahoo users. Yahoo says this second attack was only revealed once law enforcement reached out to Yahoo with snippets of the compromised data in hand. But in a website post by Yahoo's chief information security officer Bob Lord, the company effectively admits it still doesn't actually know how the hackers got this information:
"As we previously disclosed in November, law enforcement provided us with data files that a third party claimed was Yahoo user data. We analyzed this data with the assistance of outside forensic experts and found that it appears to be Yahoo user data. Based on further analysis of this data by the forensic experts, we believe an unauthorized third party, in August 2013, stole data associated with more than one billion user accounts. We have not been able to identify the intrusion associated with this theft. We believe this incident is likely distinct from the incident we disclosed on September 22, 2016."
Not too surprisingly, Verizon continues to be frustrated by the revelations, while simultaneously using them to drive down the Yahoo asking price:
"A legal team led by Verizon General Counsel Craig Silliman is assessing the damage from the breaches and is working toward either killing the deal or renegotiating the Yahoo purchase at a lower price, the person said. One of the major objectives for Verizon is negotiating a separation from any future legal fallout from the breaches. Verizon is seeking to have Yahoo assume any lasting responsibility for the hack damage, the person said."
While some outlets continue to suggest the deal could be killed entirely, Yahoo is critical to Verizon executives' beliefs they can transform Verizon from stodgy old telco into a Millennial-focused media and advertising juggernaut. The problem is that Verizon's attempt to become the next Google or Facebook isn't going particularly well. Being a pampered telecom monopoly for a generation doesn't imbue you with the kind of DNA required to make such a disruptive transition, resulting in the company's Millennial-focused streaming service Go90 being a "dud" in the words of Verizon's own partners.
Verizon will likely continue undaunted in its plan to magically become Google by gobbling up failed 90s internet brands. And while it's far from certain that Verizon has the chops to successfully make this transition work, the least we can hope is that the telco brings something vaguely resembling security standards along for the ride as the deal stumbles its way toward its inevitable conclusion.
If you hadn't been paying attention, Samsung hasn't been having a very good year. The company was forced to recall the original Galaxy Note 7 in early September after numerous reports of spontaneous combustion. That was followed by a formal recall by the US Consumer Product Safety Commission. Samsung then doubled down on its incompetence, releasing an "updated" version of the phone that suffered from the exact same problem. By October Samsung was engulfed in an honest-to-goodness PR disaster as it failed to explain how it could "fix" the initial problem by somehow making things worse.
Samsung says that 93% of US-sold Note 7 devices have now been returned, which still leaves around 133,000 phones unaccounted for despite the endless media coverage of the issue. So the company last week came up with a solution: an update to the phone's software that prevents the device from being charged (as in, ever again), effectively "bricking" the device. In a statement posted to Samsung's website, the company said this "bold" step will begin on December 19, as the company works with carriers to finally force the issue:
"To further increase participation, a software update will be released starting on December 19th and will be distributed within 30 days. This software update will prevent U.S. Galaxy Note7 devices from charging and will eliminate their ability to work as mobile devices. Together with our carrier partners, we will be notifying consumers through multiple touchpoints to encourage any remaining Galaxy Note7 owners to participate in the program and to take advantage of the financial incentives available."
T-Mobile has said it will release the device-crippling update on December 27. AT&T confirmed it planned to release it on January 5. Sprint said it will deploy the software update to its customers on January 8. Verizon, however, posted a statement to its website stating that it wouldn't be passing on the update to consumers for fear of ruining their holiday seasons:
"Verizon will not be taking part in this update because of the added risk this could pose to Galaxy Note7 users that do not have another device to switch to. We will not push a software upgrade that will eliminate the ability for the Note7 to work as a mobile device in the heart of the holiday travel season. We do not want to make it impossible to contact family, first responders or medical professionals in an emergency situation."
It's kind of a strange stand by Verizon, which has long been criticized for taking longer than is reasonable to pass on necessary Android security updates. One, because users can exchange the phone at any Verizon store for free. Two, the Verizon-cited risk of not being able to make a call kind of pales in comparison to the risk of carrying around a phone that doubles as a hand grenade. After all, given the FAA has banned the phone from being taken on planes, these users are putting themselves (and potentially those around them) at risk by ignoring the recall.
It's certainly possible that Verizon actually is being sincere here and doesn't want people without a phone for the holidays. But it's just as likely that Verizon's just tired of the entire PR fracas, and doesn't want its customers thinking that it was somehow responsible for their phones not working when the update is released. Regardless, the onus remains on customers who, for whatever reason, think it's nifty to ignore recalls and carry around a potential fire hazard during the holidays.
We've written a bit about how the IRS is trying to force Coinbase to hand over information on all its users, because it's discovered some evidence of at least one person using Bitcoin, via Coinbase, as a tax dodge. While the demand seems massively overbroad, so far the judge has allowed it to move forward. Coinbase has indicated that it will fight back on behalf of users, but nothing definitive has been done yet -- which has some Coinbase users feeling uncomfortable. At least one has now filed to intervene in the case, in order to seek to quash the summons.
Now, where this gets slightly more interesting is the fact that the individual filing, Jeffrey K. Berns, is a managing partner of a class action law firm that has his name on the masthead. The firm does seem to be focusing on building up a reputation in the cryptocurrency world, with a blog dedicated to the topic and much of the firm's recent press relating to issues on cryptocurrencies. So it appears that some of the decision to intervene here may be a bit of brand building, as the firm seems to want to be the go-to player for legal issues dealing with cryptocurrencies. At the very least, that may raise some questions about the motivations behind the filing here -- but it does seem like some objections should be raised to allowing a grand fishing expedition by the IRS.
Another state legislature has decided it's time to start scaling back civil asset forfeiture. Ohio's Senate is the latest to pass a bill targeting the worst excesses of property seizures, as Reason's CJ Ciaramella reports.
The bill passed both the Ohio senate and house by wide margins, despite opposition from law enforcement groups. If it is signed by Ohio Gov. John Kasich, Ohio will join 17 other states in recent years that has overhauled their civil asset forfeiture laws in response to media investigations and reports from civil liberties groups that revealed shocking numbers of people who've had their cash, cars, and even homes seized.
The bill [PDF] started out stronger -- forbidding the forfeiture of property without a conviction -- but has been watered down a bit [changes can be seen here] in response to law enforcement opposition. What remains is a better law than most, one that removes a lot of the perverse incentives.
Under the Ohio bill prosecutors will be required to charge citizens with certain crimes in order to forfeit their property, although in some instances prosecutors may still do so without filing any charges, according to the Columbus Dispatch. It also switches the burden of proof from the defendant to the government to show why property is connected to a crime and bars civil forfeiture for amounts under $15,000.
While it's still frustrating to see legislators automatically assume that "more $$$ = guilty $$$," this burden shift will actually deter many questionable seizures. Law enforcement agencies may obtain hundreds of thousands of dollars through forfeiture every year, but the highest percentage of that money comes from lowball seizures that are far more questionable.Another addition that should curb abuse is the higher bar set for federal partnership. It now sits at $100,000, meaning law enforcement won't be able to use the federal escape valve to route around the new restrictions.And, of course, those who benefited the most from asset forfeiture programs are still griping about the bill by delivering patently false statements.
Law enforcement organizations, such as the Ohio Prosecuting Attorneys Association, still oppose the bill, saying there are already plenty of due process protections for property owners built into the law.
When the state takes action against property, the property -- which can't represent itself -- is named as the defendant. While the property's owners are notified of the intended forfeiture, the system is designed from the ground up to deter challenges. In the case of smaller seizures, the cost of fighting for the return of the property can easily cost more than the seized property's value. The burden of proof is placed on those whose property was seized, and the previous lack of a "basement" for burden-shifting means agencies were comfortable making dozens of small seizures, knowing very few people would attempt to fight the forfeiture.These are good changes. They could have been better, but the law enforcement lobby -- combined with politicians' natural fear of looking "soft" on crime -- tends to result in the compromises seen here. But it's far, far better than ignoring the issue and allowing law enforcement to continue indulging in its perverted incentives.
As you may have heard, the past few years have seen a significant uptick in concern over video game journalism and the ethics surrounding it. While much of the consternation expressed appears to have journalistic ethics playing only in the periphery, there have indeed been stories that should concern anyone that looks to game reviews as a method for deciding on purchases. Like in other industries, some in the gaming industry have chosen legal backlash to combat reviews they don't like, whereas companies like Nintendo have attempted to trade access to unreleased games to institutionalize positive coverage. Instances of game companies trading access for slanted reviews are certainly alarming, though they only represent the carrot part of that approach.The other side of it is the stick, of course. For an example of that, we can look to Square Enix reportedly cutting off access to unreleased games for review to a Spanish website purely because the company doesn't like its review scores.
AreaJugones, a website based in Spain that says it reaches around 700,000 people per month, said in a blog post last week that they heard about this decision from the publisher Koch Media. Koch handles PR and marketing for Square Enix in several European countries, including Spain. After posting their review of Final Fantasy XV last week, AreaJugones editor Juan Alberto Linares got a call from a Koch representative, who reportedly told him that Koch and Square would no longer send them review copies of their games.“The PR told me that we had scored one point less than the current average of Metacritic and that this hurt their interests as a company,” Linares told me in an e-mail this weekend. “I could not believe what he was saying, so when he asked for more explanations, he told me that we also almost always scored his games with lower scores than the other Spanish magazines and other Metacritic media,” Linares said. “We started talking about scores given to other games of his brand and they insist that we score their games lower than the other media, and this is not really true. If we score lower under their games we hurt them, so we were erased from the list of media because we were going to continue hurting them.”
Now, let's be clear: game companies don't owe game review journalists early access to their games. This isn't unethical in the same way as, say, requiring positive reviews or editorial control in order to get access in the first place. But it might actually be more insidious for the same reason. Where we can look at Nintendo's YouTube affiliate program and recognize it for the shill-factory that it is, Square Enix's move is more subtle. It relies both on the idea that the approved reviewers, those that tend to give out more positive marks for Square's games, will impact the consumer market before the untainted reviews are in, as well as the chilling effect blacklists like this will have on other review sites that haven't been targeted by the company yet. If you're the editor of a game review site that has seen AreaJugones get blacklisted and one of your staff is about to post a less than groveling review of a Square Enix game, it might cause you to change the review score and/or article if you aren't committed to the ethics of your craft. That's a problem.A problem, ultimately, for Square Enix, in fact. Because the ultimate effect that moves like this will have will be to condition the consuming public to distrust positive reviews of Square Enix games, and put more faith in reviews with scores that aren't as good. After all, once the blacklisting process has been started, the only review a gamer will know for certain hasn't been influenced by the game-maker will be the review that is negative.It's important to point out a couple of things as part of this. First, Kotaku asked Square Enix for comment and they chose not to comment on the story at all. There is no denial that any of this took place, in other words. Secondly, Metacritic suggests that AreaJugones does indeed tend to score games somewhat lower than its peers (although still higher than critics as a whole). But even if that suggests some kind of pernicious negativity within the site's review scores, blacklisting them won't ultimately accomplish anything positive for Square Enix.
Without citing the Supreme Court's Rodriguez decision, the Superior Court of Delaware has returned a ruling [PDF] that should serve as a deterrent to law enforcement fishing expeditions. (h/t FourthAmendment.com)Two state courts recently held that extending an interaction beyond the objective of a traffic stop is unconstitutional, pointing out that it's not the length of the constitutional violation that's a problem, but the violation itself. There is no de minimis Fourth Amendment violation acceptable under the Rodriguez decision.The court here could have found similarly but didn't even have to make it as far as the Supreme Court's decision to find the officers' post-traffic stop actions unconstitutional.The defendant seeking suppression of evidence was pulled over for speeding. Everything about the stop was completely normal. As the court sees it -- according to the officers' own testimony and reports -- there was nothing else for them to do but issue a speeding citation.Officer Hamilton stopped the defendant (John Geist) and asked for the usual documents. These were provided and the citation was written up. Six minutes after the initiation of the stop, Officer Hamilton to Geist he was free to go. Another officer showed up during the stop and asked Geist if he had any questions. Geist asked the officer what the dollar amount of the speeding fine was.The stop's objective had been achieved and Geist had presented nothing that amounted to reasonable suspicion to justify further questioning. But Officer Hamilton proceeded with more questions, almost all of them focused on getting Geist to consent to a search of his vehicle.
At that point, the engagement of all aspects of the speeding violation had completed. Nevertheless, Officer Hamilton spontaneously asked Defendant if he had any weapons or drugs in his vehicle. Other than an unspecific “thought that he might be under the influence of alcohol,” Officer Hamilton had utterly no basis for any suspicion that Defendant was transporting anything untoward. On Defendant’s negative reply, Officer Hamilton asked Defendant if he could search the automobile. Defendant, after a fashion, consented.
Consent normally cures a lot of Fourth Amendment ills. But not in this case. Law enforcement isn't allowed to push for searches it has no articulable reasons to pursue.
Certainly, if there had existed any reasonable suspicion on the part of Officer Hamilton that any such contraband were present, a warrant to search, at least arguably, could have been obtained, and consent of the Defendant would have substituted entirely adequately. There was, however, in this case, utterly no basis for any such suspicion.
The state argued that a lack of suspicion shouldn't matter because the officer obtained consent for a search. It argued there were no coercive factors to tip the scale towards unconstitutionality. The court points out something few courts have: that the imbalance of power between law enforcement officers and members of the general public is its own form of coercion.
To say that a reasonable person, standing at the instruction of the officer outside of his vehicle, while wearing sandals, shorts and no shirt, confronting two fully uniformed and armed officers would feel no coercion effect simply flies in the face of reality. In that situation, “Mind if I look around” is not really a question. It is tantamount to the statement: “I’m going to look in your car to see if you’re telling the truth.” The coercion is the situation.
As to the state's assertion that a lack of reasonable suspicion shouldn't result in the suppression of a search for which consent was obtained, the court cites an earlier case that declared drivers aren't expected to put up with being harassed and harangued into "consensual" searches just because they've committed a moving violation.
“Travelers on our State highways should not be subjected to the harassment, embarrassment, and inconvenience of an automobile search following a routine traffic stop unless the officers has at least an articulable suspicion that the search will yield evidence of illegal activity.”
Fishing license revoked. The court never had to approach the Supreme Court's decision because it found the officers' actions wholly unreasonable given the facts of the case. Another win for drivers -- albeit one that it limited to Delaware residents and does nothing to prevent officers from using made-up laws to initiate traffic stops and all of the consensual jousting that usually comes packed with it.
As we've noted, TPP is unlikely to come back from the dead, despite what some seem to think or hope. For example, the Japanese government has decided to go ahead and ratify TPP anyway. That seems foolish, since it has just thrown away most of its bargaining counters for other trade negotiations, in what amounts to an act of political seppuku. As Sean Flynn points out, Japan has form here, since it also ratified the infamous Anti-Counterfeiting Trade Agreement (ACTA), just as pointlessly.One of the most important trade deals still under active discussion is the Regional Comprehensive Economic Partnership (RCEP). Techdirt first wrote about this 18 months ago, while recently we noted that many of its provisions are even worse than those in TPP. One aspect of RCEP that has received little attention so far is the corporate sovereignty chapter. The Transnational Institute (TNI) has put together a useful document looking at what it calls the "hidden costs" of including investor-state dispute settlement (ISDS) in RCEP. It provides an excellent summary of corporate sovereignty activity in Asia that complements a 2014 study from Friends of the Earth Europe, which looked at the same "hidden costs" of ISDS in Europe. Here are a few of the main findings for RCEP nations (pdf):
50 investment arbitration cases already filed against 11 RCEP (Regional Comprehensive Economic Partnership) countries since 1994, over 50% of which have been filed after 2010.
India alone has been the target of 40% of the cases filed against RCEP countries.
Foreign investors have claimed at least 31 billion USD from RCEP countries. Given the secrecy surrounding investor-state dispute settlement (ISDS) proceedings, this could be much more. This amount is 7 billion USD less than India's entire health budget for 2015.
Of the 31 billion USD claimed by investors, 81% has been claimed from just four countries, India, South Korea, Australia and Vietnam.
The largest known amount paid to a foreign Investor by an RCEP country is 337 million USD as part of the settlement in the Cemex versus Indonesia case.
36% of cases against RCEP countries concern environmentally relevant sectors.
RCEP countries have been sued for measures taken to protect public health, adjust corporate taxes, promote industrialisation, and review contracts acquired through allegations of corruption, among others.
The study brings together much-needed data on corporate sovereignty cases in Asia. It also points outs why RCEP countries would be very unwise to sign up to an ISDS chapter in the deal:
Including the harmful ISDS clause in the RCEP trade agreement under negotiation contributes to cementing investors' rights and expanding the scope of private arbitrators' power. RCEP will lock in place this system of privatised justice. Governments will find it much more difficult to withdraw their commitments to the rights accorded to foreign investors in RCEP than in Bilateral Investment Treaties, because they would need to put an end to the whole agreement and not just the sections on investors' rights.
It's a general problem with ISDS provisions in trade deals: they are almost impossible to cancel, however much harm they end up causing. The bigger the deal, the greater the lock-in. This aspect underlines once more how corporate sovereignty comes at the expense of national sovereignty.Finally, there's one other interesting nugget that Techdirt readers may find of note. According to the RCEP report, over two-thirds of all ISDS cases against RCEP nations have come from Europe. At the moment, there are only a few minor trade deals that allow European companies to sue the US in ISDS tribunals, in theory at least. But if some kind of post-Trump TTIP 2.0 were agreed -- always a possibility despite the anti-trade deal rhetoric -- and it included a corporate sovereignty chapter, the US might find itself on the receiving end of a similar barrage of costly lawsuits that will reduce its sovereignty at both a national and local level.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
This week, after we took a look at the latest assault on the public domain (this time coming from CBS), TheResidentSkeptic won the vote for most insightful comment of the week with his definition of the public domain:
The Public Domain exists for content industries to pull stories, characters, and inspiration FROM.
It always bugs me that insightful and funny are our only two positive options. Your comment is both of those, but also depressingly accurate. We need a sadface of some sort. Not for shit we disagree with, but for shit we wished we didn't.
Over on the funny side, both our top comments come in response to the FBI's investigation of a journalist over an obvious joke. That One Guy won first place with an on-point movie reference:
Here's an excellent article from the great people at Techdirt, on this very important, and very misunderstood subject, that we should all care about, very much.
Eugene Volokh of the Volokh Conspiracy points to a recent Georgia Supreme Court decision [PDF] that lets trademark holders know that just because some use of their trademark is less than complimentary doesn't mean the use "tarnishes" the brand.McHugh Fuller Law Group, using nursing home surveys published by the federal government, often seeks to gather litigants for class action suits against possibly-abusive nursing homes/employees. In this case, it decided PruittHealth-Moultrie's survey responses warranted further litigation. It published an ad seeking "suffering loved ones" who might be interested in suing the nursing home -- one that prominently used the nursing home's logo and name.
Naturally, PruittHealth felt this use of its trademark to be disparaging, as it hinted that the company was mistreating its residents. It sued for damages, claiming the law firm's use of its name and logo "diluted" the brand. But its argument had nothing to do with the normal sort of "dilution" often claimed in court. PruittHealth didn't feel potential customers would be misled, but rather that its use in this form took the PruittHealth name down a notch or two.
At issue in this case is tarnishment, which OCGA § 10-1-451 (b) describes as “subsequent use by another of the same or any similar trademark, trade name, label, or form of advertisement” adopted and used by a person, association, or union “if there exists a likelihood of injury to business reputation … of the prior user, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services.” This theory of liability “has had some success when defendant has used plaintiff’s mark as a mark for clearly unwholesome or degrading goods or services.”
PruittHealth testified that it began receiving calls from concerned customers about the patients in its care as a result of the ad. McHugh Fuller testified that it had received 200 queries, resulting in 11 filed lawsuits -- not necessarily a rebuttal of PruittHealth's "likelihood of injury" claims.The Supreme Court, reversing the state appeals court decision, points out that things that may result in damage to trademark holders are not always "tarnishing" under Georgia state law.
However, not every unwelcome use of one’s trademark in the advertising of another provides a basis for a tarnishment claim. See 6 Callman § 22:19. Tarnishment can occur “only if the defendant uses the designation as its own trademark for its own goods or services.”[...]Here, McHugh Fuller was advertising its legal services to individuals who suspect that their loved ones have been harmed by negligent or abusive nursing home services at a specific PruittHealth nursing home. The ad used PruittHealth’s marks in a descriptive manner to identify the specific PruittHealth facility; indeed, McHugh Fuller was counting on the public to identify PruittHealth-Moultrie by the PruittHealth marks used in the ad. The ad did not attempt to link PruittHealth’s marks directly to McHugh Fuller’s own goods or services. McHugh Fuller was advertising what it sells – legal services, which are neither unwholesome nor degrading – under its own trade name, service mark, and logo, each of which appears in the challenged ad. No one reading the ad reproduced above would think that McHugh Fuller was doing anything other than identifying a health care facility that the law firm was willing to sue over its treatment of patients. In short, the ad very clearly was an ad for a law firm and nothing more.
PruittHealth may not have liked what the advertising insinuated (and, indeed, fielded concerned phone calls because of the advertising) but that alone is not enough to bring claims of trademark tarnishment. Advertising is full of unfavorable insinuations and unflattering comparisons, and this law firm's litigant fishing expedition is no different than ads claiming Corporation X's service is less than spectacular while using Corporation X's trademark in the ad copy.
Contrary to PruittHealth’s assertion in the trial court, trademark law does not impose a blanket prohibition on referencing a trademarked name in advertising. “Indeed, it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference, or any other purpose without using the mark.”
PruittHealth's idea of how trademark law should be enforced goes far beyond expanding Georgia's trademark tarnishment law. It rubs right up against speech protected by the federal government.
Moreover, interpreting OCGA § 10-1- 451 (b) expansively to prohibit the use of PruittHealth’s marks to identify its facilities and services in any way, as the company urges, would raise profound First Amendment issues. [...] “Much useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademark.” New Kids on the Block, 971 F2d at 307.
This isn't one of the more egregious examples of using IP protections to shut people up that we've seen. But the end result of PruittHealth's lawsuit -- had the appeals court's decision been allowed to stand -- would have been indistinguishable from the more hamfisted bullying efforts detailed at Techdirt over the years.
