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June 2017
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Hitwise Study Finds Paid Search Clicks Have Overtaken Organic In Three of Four Summer-Related Industries

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Hitwise, a marketing intelligence company, recently looked at changes in searches in four major Home & Garden categories and found that in three–Furniture, Appliances, and Garden–clicks from paid searches have overtaken clicks from organic searches in the last year and even with DIY, which maintains a slight organic lead, paid clicks are closing in.          [...]

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posted at: 12:00am on 30-Jun-2017
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Combating Mobile Fraud: An AppLift Report

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AppLift’s Newest Fraud Report Reveals News and Entertainment App Categories are at Highest Risk of Fraudulent Activity. AppLift, a mobile advertising technology company, released the study, “Mobile Advertising Fraud: The Next Battlegrounds,” revealing international fraud distribution data. The e-book is a follow-on report to the company’s 2015 fraud study that uncovers new statistics about mobile [...]

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DOJ Asks The Supreme Court To Give It Permission To Search Data Centers Anywhere In The World

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Having been told "no" twice by the Second Circuit Court of Appeals, the DOJ is asking the Supreme Court to overturn the decision finding Microsoft did not need to hand over communications stored in foreign data centers in response to a US warrant.The Appeals Court told the DOJ that statutory language simply didn't agree with the premise pushed by the government: that US-issued warrants should allow the law enforcement to dig through "file cabinets" not actually located at the premises (United States) searched. The court noted jurisdictional limitations have always been part of the warrant process (although recent Rule 41 changes somewhat undercut this). That the information sought is digital rather than physical doesn't change this. The court suggested the DOJ take it up with Congress if it doesn't like the status quo. The DOJ has proposed legislation but likely feels a Supreme Court decision in its favor would be a swifter resolution.The DOJ's 207-page petition [PDF] actually only contains about 30 pages of arguments. The bulk of the petition is made up of previous court decisions and oral argument transcripts covering the DOJ's losses at the lower level. The Table of Contents gets right to the point, utilizing the section header "The panel's decision is wrong" to set the tone for its rehashed arguments.The DOJ quotes the dissenting judges from the Appeals Court's decision, one of which makes the ever-popular "appeal to 9/11" argument:

Judge Raggi also emphasized the exceptional importance of this case and the “immediate and serious adverse consequences” of the panel’s ruling. “On the panel’s reasoning,” she explained, if the government had been able to show in early September 2001 probable cause to believe that the 9/11 perpetrators “were communicating electronically about an imminent, devastating attack on the United States, and that Microsoft possessed those emails,” a federal court would not have been able to issue a Section 2703 warrant if Microsoft had stored the emails outside the United States, “even though [Microsoft’s] employees would not have had to leave their desks in Redmond, Washington, to retrieve them.”
All well and good, if you like that sort of thing, but the facts of the case are far less dire:
In December 2013, the government applied for a warrant requiring Microsoft to disclose email information for a particular user’s email account. See App., infra, 2a, 8a-10a. The government’s application established probable cause to believe that the account was being used to conduct criminal drug activity.
This is how most arguments for expansions of law enforcement reach and grasp go: talk about how it will be used to stop terrorists; actually use it to hunt down normal criminals.The petition admits Congress meant for domestic laws to only be applied domestically before arguing certain "applications" of US law should be seen as permissible inversions of Congressional intent. The DOJ argues Microsoft's United States offices should permit worldwide searches of its data centers. Once again, the government's arguments that stored communications are no different than paper files in a file cabinet (made when it wants broadly-written electronic storage searches to be seen as no more intrusive than a residence search) works against it. This interpretation of the Stored Communications Act means any service provider anywhere could be made to hand over documents stored overseas as long as they have a US office where a warrant can be served. This would be the case even if the service provider has no US storage locations and nothing more than a US-based "storefront" for convenience.Microsoft has already responded with a lengthy blog post. It points out the better way forward is not to have the Supreme Court reinterpret a 30-year-old law, but rather to work with US service providers and Congress to build a better law that addresses the world as it is now.
The litigation path DOJ is now trying to extend in parallel to legislative progress seeks to require the Supreme Court to decide how a law written three decades ago applies to today’s global internet. The previous decision was soundly in our favor, and we’re confident our arguments will be persuasive with the Supreme Court. However, we’d prefer to keep working alongside the DOJ and before Congress on enacting new law, as Judge Lynch suggested, that works for everyone rather than arguing about an outdated law. We think the legislative path is better for the country too.
The post also points out cooperation with foreign law enforcement is a much faster process than has been portrayed by the DOJ, which insists it takes "weeks" to see results of these cooperative efforts. Following the Charlie Hebdo attack, Microsoft was able to turn over US-stored communications to French law enforcement in under an hour.What the DOJ doesn't seem to understand (or genuinely just doesn't care about) is a decision granting it the power to seize communications from anywhere in the world would result in foreign governments expecting the same treatment when requesting communications stored in the US.
Should people be governed by the laws of their own country? If the decision in our case were reversed, it would subject every person in the world to every other country’s legal process. The email of a person who lives and works in Dublin would be subject to an American warrant issued by a U.S. court just as an American would be subject to an Irish warrant. Our customers tell us they want to be governed by the laws of their own government, and they deserve the certainty of knowing what laws govern their data.
If the Supreme Court decides to grant the DOJ's petition, this won't be argued until the next session, leaving the DOJ plenty of time to work on its legislative proposals. Hopefully, it's actually working with US service providers on this, rather than thinking it's the only stakeholder of importance in the legislative process.

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Zillow Only Kinda Backs Down From Dubious McMansion Hell Threats Following EFF's Engagement

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The saga of Zillow's totally bullshit legal threat has lasted all of three days. Following a terrible (and still wrong) attempt at damage control, Zillow has sent a note to all the reporters who have covered the story to say that it won't be taking legal action:

We have decided not to pursue any legal action against Kate Wagner and McMansion Hell. We've had a lot of conversations about this, including with attorneys from the EFF, whose advocacy and work we respect. EFF has stated that McMansion Hell won't use photos from Zillow moving forward.It was never our intent for McMansion Hell to shut down, or for this to appear as an attack on Kate's freedom of expression. We acted out of an abundance of caution to protect our partners - the agents and brokers who entrust us to display photos of their clients' homes.
Even this response is bullshit. Note, first of all, there still isn't any apology there. Second, notice that they're still prattling on about how the action was justified and are also happy that McMansion Hell won't be using images from Zillow, even though the site and its founder, Kate Wagner absolutely could do so if doing so meets the standards of fair use (which all of the examples I've seen on the site so far almost certainly do). Third, "decided not to pursue legal action against Kate Wagner." Well, no fucking duh. This is because any lawyer with an ounce of knowledge on these topics has already explained that you have no actual legal claim here at all. Fourth, this was not done "out of an abundance of caution" or "to protect" your partners. It appears to have been done in a fit of anxious cluelessness, in a manner that made Zillow look terrible and petty -- not to mention clueless on the law.Still, good on EFF for getting involved and helping out. EFF has a blog post about this issue and has posted the incredibly thorough debunking letter it sent Zillow, explaining how Zillow has literally no legal leg to stand on. And it also makes quite clear that Wagner has every right to continue to use images from Zillow -- but that she is choosing not to do so going forward (it's a little unclear if she intends to replace older images sourced from Zillow).Either way, Zillow still comes out of this looking like shit. The fact that it never apologized and still seems to think that the legal notice was the right thing to do (not to mention that it's still focused on whether or not Wagner will make use of these images) suggests that Zillow has not even remotely learned a lesson here. This does not speak well of Zillow as a company.

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May/Jun 2017 - Spectrum 2017 Conference Recap

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International Spectrum 2017 was a hit with new and existing developers. See what you missed at this year's four days of education, networking, and fun. Also read about important industry talks that went on at the conference this year.

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posted at: 12:00am on 30-Jun-2017
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May/Jun 2017 Magazine

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Cover Story - Spectrum 2017 Conference Recap

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Greatest Barrier To Augmented & Virtual Realities Are The Apps And Accessories

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Vibrant, is reporting that consumers say the need for additional software, apps and hardware is the greatest barrier preventing them from experiencing virtual reality (VR) and augmented reality (AR) digital advertisements, according to new research from insperience marketing experts, Vibrant Media. The research - which assessed opinions on VR and AR from over 3000 consumers [...]

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posted at: 12:00am on 29-Jun-2017
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NSA Appears To Be Seducing Sen. John Cornyn With Personal Tours And One-On-One Meetings

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One of the surveillance state's biggest cheerleaders is seeing his years of support pay off.

Two congressional sources confirmed a May meeting, where Sen. John Cornyn, (R-Tex.), a vocal supporter of the intelligence community, got a private audience with the NSA Director Adm. Michael Rogers.Cornyn also got a private tour of the signals intelligence facility at Fort Meade, Maryland at the same time as the May meeting.
Officials "familiar with the situation" (possibly read "jealous as hell") expressed concern about Cornyn's personal NSA tour. And for good reason. If Rogers and other NSA officials were feeding Cornyn information the rest of the NSA's Congressional oversight isn't privy to, that's a problem. It's more of a problem as the date for Section 702's reauthorization approaches. And it seems even more problematic that Cornyn was given a personal walk-and-talk while oversight members were failing to get substantive answers from the DNI during a Senate hearing.There's a long history of the IC playing favorites with oversight members (and vice versa) and a long history of those favorites withholding information from other members of Congress. This visit/personal chat may have been innocuous but given its context -- the Section 702 renewal -- it looks shady as hell.The additional context is the DNI's office believes all is forgiven -- or at least, no longer relevant. Reversing Clapper's promise to hand in something on incidentally-collected US persons' communications, the new Director is saying that's just not going to happen.The Foreign Policy article notes that it's common for incoming reps and senators to be given a tour and that oversight members routinely visit the NSA as part of their oversight duties, but this Cornyn-only event definitely appears to be the agency making a play for unbridled support from a powerful Senator.

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posted at: 12:00am on 29-Jun-2017
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Thankfully, Marketing Industry Plan For 'Ringless Voicemail' Dies a Quiet Death...For Now

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So we've been talking the past month about a push by the marketing industry (a company by the name of "All About The Message," specifically) to exempt "ringless voicemail" from existing robocalling and privacy rules. Ringless voicemail lets a company leave a marketing or political message in your inbox without your phone ringing. But such technology is currently prohibited by the Telephone Consumer Protection Act (TCPA) , which prohibits such marketing efforts without the "prior express consent of the called party."In its petition to the FCC (pdf), All About the Message tried to claim that the existing consumer protections on this front were "archaic," ringless voicemails shouldn't be included because they're not technically "calls," and that exempting ringless voicemail from these rules provided an "important public purpose:"

"A direct to voicemail service platform is not covered by the TCPA, and the use of direct to voicemail insertion technology does not make a call to a wireless phone number as contemplated by Section 227, of Title 47 of the U.S. Code. What is more, consumers are not charged for delivery of the voicemail communications. Further, from a broader policy perspective, the use of direct to voicemail technology serves an important public purpose. The act of depositing a voicemail on a voicemail service without dialing a consumers' cellular telephone line does not result in the kind of disruptions to a consumer's lifedead air calls, calls interrupting consumers at inconvenient times, or delivery charges to consumers -- which the TCPA was designed to prevent.
The effort quickly then received the full-throated support of the US Chamber of Commerce, American Financial Services Association and the Republican National Committee, which in a supporting filing of its own (pdf) tried to claim that blocking this annoying effort would violate the First Amendment:
"Telephone outreach campaigns are a core part of political activism. Political organizations like the RNC use all manner of communications to discuss political and governmental issues and to solicit donations - including direct-to-voicemail messages. The Commission should tread carefully so as not to burden constitutionally protected political speech without a compelling interest.
The problem: at no point did any of these companies or organizations spend much time thinking about what consumers actually wanted, and they sure as hell didn't want their voicemail inboxes being filled up with spam. As a result, when the news wires began to issue reports on the ringless voicemail plan, consumers were quick to complain to the FCC and political leaders about the effort. All About the Message has since submitted a very short letter to the FCC stating they were pulling their petition from consideration, putting this latest attempt to annoy the hell out of you and your family to bed... for now.

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posted at: 12:00am on 29-Jun-2017
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Transparency-Not Yet Clear if It's Here

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Adotas asked Jason Beckerman, CEO and co-Founder, Unified; Henrik Busch, Blackwood Seven’s managing director and co-founder; and John Donahue, Sonobi’s chief product & marketing officer for their insights and predictions concerning transparency in media. Q: What, if anything, has changed over the course of the last year since the Association of National Advertisers (ANA) released [...]

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posted at: 12:00am on 28-Jun-2017
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To Avoid Being Cut Out Of The Market, US Tech Companies Are Allowing Russian Vetting Of Source Code

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Nobody trusts anybody, and it's probably going to end up affecting end users the most. The Snowden leaks showed the NSA's Tailored Access Operations routinely intercepted network hardware to insert backdoors. The exploits leaked by the Shadow Brokers indicated the NSA was very active on the software exploit front as well.In response to the Snowden leaks, it appears the Russian hardware/software purchasers are stepping up their due diligence efforts. This comes at a time when the Russian government is suspected of hacking away at the American democratic process, as Reuters reports.

Russian authorities are asking Western tech companies to allow them to review source code for security products such as firewalls, anti-virus applications and software containing encryption before permitting the products to be imported and sold in the country. The requests, which have increased since 2014, are ostensibly done to ensure foreign spy agencies have not hidden any "backdoors" that would allow them to burrow into Russian systems.
According to the article, multiple US officials and company executives are tracing the uptick in review demands to a downturn in US-Russian relations following Russia's 2014 annexation of Crimea. But the NSA's hardware operations were exposed in mid-2014, so it's hard to believe the Snowden effect isn't in play.
[Some] reviews are… conducted by the Federal Service for Technical and Export Control (FSTEC), a Russian defense agency tasked with countering cyber espionage and protecting state secrets. Records published by FSTEC and reviewed by Reuters show that from 1996 to 2013, it conducted source code reviews as part of approvals for 13 technology products from Western companies. In the past three years alone it carried out 28 reviews.
Since these companies aren't willing to give up their share of an $18.4 billion market, compromises are being made. Examinations of code are being done in "clean rooms," with conditions somewhat controlled by the companies being vetted. But this isn't always the case. Nor are these precautions necessarily enough to prevent those doing the vetting -- some linked to the Russian government -- from finding undiscovered security holes and flaws. The vetting may help keep Russian government agencies and private companies from being spied on by the US, but it's not going to do much to keep the Russian government from spying on Russian companies and Russian computer users.So far, only one company has publicly announced its refusal to submit its software for vetting. Symantec has rejected testing by Echelon, a Moscow-based lab with some tenuous ties to the Russian military.
But for Symantec, the lab "didn't meet our bar" for independence, said spokeswoman Kristen Batch.“In the case of Russia, we decided the protection of our customer base through the deployment of uncompromised security products was more important than pursuing an increase in market share in Russia,” said Batch, who added that the company did not believe Russia had tried to hack into its products.
The company also provides testing for the Russian Ministry of Defense and multiple law enforcement agencies. Echelon claims it's wholly independent from the Russian government, but those assertions haven't been enough to overcome Symantec's objections. Other companies (the article lists HP and IBM) have allowed their products to be tested by Echelon, but neither were willing to comment on this story.The Russians are checking for US backdoors while potentially seeking to install their own. US companies are given the choice of possibly aiding in Russian domestic surveillance or being locked out of the market. Any lost sales here can at least be partially chalked up to the Snowden leaks. If so, the fallout from the leaks is still causing harm to US companies, years down the road.

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posted at: 12:00am on 28-Jun-2017
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Court Says Gov't Has To Give Back $167,000 It Seized During A String Of 4th Amendment Violations

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The Ninth Circuit Court of Appeals has no good news for the lying law enforcement officers who were hoping to walk off with $167,000 of someone else's money. Two years ago, the district court ruled in favor of Straughn Gorman, who was subjected to two lengthy traffic stops in less than an hour by officers hoping to help themselves to cash he was carrying in his RV.After stopping Gorman for a non-violation (driving too slow in the left lane), State Trooper Greg Monroe spent roughly a half-hour trying to obtain consent to search Gorman's RV. His reasonable suspicion? Gorman's use of the word "chick" to describe the girlfriend he was driving to visit and the supposedly "rehearsed" aspects of his employment history. Trooper Monroe performed an extensive background check on Gorman while hoping to prolong the stop until a K-9 unit could be deployed, but even his non-routine call to an El Paso DEA records center failed to drag out the traffic stop long enough for it to arrive.All Monroe knew when he finally let Gorman go is Gorman had at least $2,000 on him. Monroe wasn't going to let this money get away, so he called up another officer from another agency and "relayed his suspicions." He also told the other officer (Deputy Doug Fisher) to bring a drug-sniffing dog with him. Fisher wasn't assigned to patrol the highway Gorman was traveling on, but decided that would be the best use of his time.Fisher pulled over Gorman after his tire touched the fog line a couple of times. Another records check was run, even though Fisher already knew what results to expect, thanks to Trooper Monroe's heads-up. The drug dog supposedly alerted near a right-rear compartment of the RV. Gorman gave the deputy permission to search that area, but that wasn't good enough for Fisher. Fisher said the alert gave him permission to search the entire RV. This resulted in the discovery of $167,000 in cash, which Fisher took. Gorman was (again) free to go. Gorman was never charged with any criminal act, much less given a citation for the supposed moving violations that predicated the two stops.The government appealed the lower court's decision, which gave Gorman back his $167,000 plus legal fees. It raised a number of defenses for its actions (which included the state's attorney omitting several facts about the two searches from its affidavits), but the Appeals Court is no more receptive of this deception and deceit than the lower court. From the decision [PDF]:

We hold that the search of Gorman’s vehicle following the coordinated traffic stops violated the Constitution and affirm the district court’s order granting Gorman’s motion to suppress. Gorman’s first roadside detention was unreasonably prolonged in violation of the Fourth Amendment. The dog sniff and the search of Gorman’s vehicle, in turn, followed directly in an unbroken causal chain of events from that constitutional violation. As a result, the seized currency is the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.[...]The coordinated action at issue in Gorman’s case offers a prime illustration of the value of the “fruit of the poisonous tree” analysis. The analysis allows us to see the officers’ conduct in Gorman’s case as what it is: a single integrated effort by police to circumvent the Constitution by making two coordinated stops. When the result of one stop is communicated and, on that basis, another stop is planned and implemented, the coordinated stops become, in effect, one integrated stop that must as a whole satisfy the Constitution’s requirements. An illegal police venture cannot be made legal simply by dividing it into two coordinated stops.
This won't be the only time officers behave this way. The Supreme Court's Rodriguez decision stated traffic stops are over once the "objective is complete." This forces officers to be a bit more creative if they're engaged in fishing expeditions without reasonable suspicion to extend the stop. One "solution" is shown above: have a second law enforcement officer initiate a stop to prolong the roadside investigation without triggering the protections of Rodriguez. Another "solution" is to have K-9 units perform stops or be in close proximity, thus lowering the chances of a court finding the stop to be "prolonged."Both of these solutions are violations of Rodriguez, even if some courts will award the government points for effort. Fortunately, there are a few courts adhering to the intent of the decision: it's not the length of the Fourth Amendment violation, it's the violation itself.Unfortunately, anything cash-related tends to make officers bypass their better judgment and push the edge of the Fourth Amendment envelope. The good news -- at least for Straugh Gorman -- is he's getting all of his cash back, plus legal fees. That it took more than two years for this to happen is unfortunate, but to be expected -- especially in a legal system that's stacked against victims of civil asset forfeiture.

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UberMedia Launches Vista for a Complete Diagnostic View of Your Business

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Standalone suite of business intelligence tools help marketers accurately assess the performance of their businesses using location intelligence and geo-spatial analysis. UberMedia, a company that provides mobile data solutions to creatively solve persistent challenges, has added a new component to its mobile location product line with the launch of Vista, a suite of diagnostic intelligence [...]

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posted at: 12:00am on 27-Jun-2017
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Zillow Sends Totally Bullshit Legal Threat To McMansion Hell

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There are few things I hate more than when tech platforms -- which have benefited from key rights provided to internet platforms and the public -- turn around and abuse the law to try to silence or kill off others. And the latest company to dive headfirst into this unfortunate pool of shame is Zillow, which is threatening to sue the person behind McMansionHell.com based on a number of different awful interpretations of the law that can be summed up as: "hey, you can't use our images to make fun of homes."This threat against McMansion Hell is particularly dumb. On multiple levels. The threat letter offers up a bunch of theories for why McMansion Hell is illegal, none of which make any sense at all when you dig in. Zillow just looks like a particularly assholish, censorial thug.McMansion Hell, if you didn't already know about it, is basically exactly what it says on the tin. It's a website that looks critically at some trends in home design. I've visited the site a few times in the past, but not in a while -- and because of the threat, the site is currently down. This is what you see as I write this:

But, before that, it looked something like this (via Google Cache):
I realize there's a lot there, but the site would take a bunch of images, of houses, sometimes adding annotations and captions and the go into great detail critiquing a trend, or style, or architectural or real estate idea. It was informative and funny. And, at least for the time being, it doesn't exist.Zillow's legal theories here are... mostly of the crazypants variety. First, the letter says that McMansion Hell is violating Zillow's terms of service, because the terms of service forbid reproducing or modifying images on Zillow.
Zillow's Terms of Use (the "Terms") specifically prohibit reproducing, modifying, distributing, or otherwise creating derivative works from any portion of the Zillow Site. The Terms further prohibit reproduction of any underlying images from real estate listings on the Zillow Site, as well as any use of the Zillow Site that could harm Zillow or its suppliers.You are in violation of the Terms, and admit to this Yourself in certain posts on Your Site, wherein You state that "[a]ll photographs in this post are from real estate aggregate Zillow.com..." and reference the fact that Your posts feature "[m]anipulated photos."
First off, Zillow cannot use its terms of service to wipe out fair use as a legal defense. The only remedy for Zillow is to stop the person behind McMansion Hell, Kate Wagner, from having an account on the site. But since many of the images are publicly available, she absolutely has a right to make non-infringing fair use reproductions and derivative works. This general threat that if you violate the terms that the company comes up with itself you've run into legal trouble is nonsensical (even though some try to make CFAA arguments about this -- but we'll get to that).Next, Zillow's lawyer insists that this is not fair use. The argument here can basically be summed up as "No Fair Use Allowed."
In addition to violating the Terms, Your actions infringe on the rights of each copyright holder of the images. You state that the Images are used "for the purposes of education, satire, and parody consistent with 17 U.S.C. § 107," which appears to be a claim that Your use constitutes fair use. Courts weight four primary factors in determining whether use of a copyright work is fair use. When those factors are applied to Your use of the Images on Your Site, none support an argument that Your use is fair use.
That's it. Say there are four factors, mention none of them, then say that none of the factors apply. While it is true that merely saying that you're using the images for fair use purposes is not enough to shield you if you are infringing, here it seems to pretty clearly be fair use under all of the factors. The use is clearly transformative. Whereas Zillow is about selling houses, McMansion Hell is about providing commentary and criticism about real estate and residential architecture. That's a very different use, and showing images of actual homes seems perfectly key to that, and we have multiple cases that have said similar uses are fair use. On top of that, there's tremendous commentary and criticism to go along with the images, which makes it an even stronger fair use argument.And, let's not forget that, as far as I know -- and as the letter more or less admits -- Zillow doesn't hold the copyright in these images. It's merely licensing them from the actual copyright holders, and thus it can't make any credible copyright threat against McMansion Hell, as it doesn't even hold the rights in question. What a joke.Finally we get to the CFAA argument which, of the three arguments made, is the dumbest. But at least there's an actual legal issue there -- unlike the previous two:
Furthermore, Your activities may violate the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and state laws prohibiting fraud and interference with Zillow's business expectations and interests.
Of course, note the lack of any explanation for how this violates the CFAA. That should be a pretty strong statement that Zillow's lawyer knows there's no substance to this argument, but wants to make the threat letter sound as scary as possible (which worked). The only argument that the company could probably come up with is the claim that violating the terms is what violates the CFAA -- but those arguments have mostly (though not entirely) failed in court. Even when the argument has been accepted, I fail to see how the situations in those cases would apply here to a blog doing commentary.In other words, all three of the supposed arguments against McMansion Hell are silly in the extreme. Zillow and its lawyer, Christopher Poole, (note: not moot) should feel bad. It appears that Poole (the lawyer one) just joined Zillow last month. Hopefully, this was the overeager new guy thinking he was doing something good, rather than shitting all over Zillow's brand as a supporter of a free and open internet.Hopefully as this gets out, and people realize just how ridiculously censorial and obnoxious Zillow appears, the company will reconsider and apologize. This is not just bad behavior. This is attacking free speech on an open internet -- the same open internet that allowed Zillow to exist and thrive in the first place. The company should be ashamed.

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posted at: 12:00am on 27-Jun-2017
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NJ Mayor Can't Stop Streisanding Himself After Being On The Receiving End Of The Crying Jordan Meme

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Of all the wonderful gifts the internet has bestowed upon humanity, there is perhaps none more precious to me than the now famous Crying Jordan meme. After Michael Jordan's tearful Hall of Fame induction speech, an image of him in tears took on the secondary purpose of being photoshopped onto anyone the internet wanted to portray as being sad or upset about pretty much anything. The creativity of some of the memes is nearly unmatched, leading to it becoming so popular that then President Obama brought it up when giving Jordan the Presidential Medal of Freedom. In other words, as far as internet memes go, the crying Jordan meme is nearly as prolific and celebrated as the basketball career of Jordan itself.Which is why it's somewhat odd that the loser of a local township committee election went completely bonkers when he himself got "crying Jordan'd."

Cinnaminson (N.J.) mayor Anthony Minniti lost his bid for re-election to the township committee Tuesday when a retired police sergeant defeated him in the Republican primary. When a Facebook user Crying Jordan’d Minniti’s campaign flyer and posted the image to the Cinnaminson Friends & Neighbors page, well, the mayor got real mad:

“Obviously, I’m disgusted by this post, but sadly not surprised,” Minniti said about what he described as the “inflammatory, outrageous rhetoric” of the Facebook page. “It was only a matter of time before someone took this moblike behavior too far, and this is definitely too far,” he said. “Hate has no place in Cinnaminson, and this needs to be treated with the seriousness it warrants.”

In other communications, Minniti has suggested not just that the meme is an output of some demonic hate-engine, but that it's racist. Why? Because the Jordan meme is barely known in common circles and its true purpose is to put white people in "blackface." Yeah, seriously.
Portraying any white person in blackface is racist and unacceptable. There’s no question about that,” he said. “If this was such a well-known meme and this is something everybody knows about, why did the Facebook administrator pull it down? It was flagged as racist by others. It was taken down because it was racist, or deemed racist by the administrator.
We'll do the easy part of this first: the crying Jordan meme is most certainly not racist. Jordan himself has noticed the meme and has reportedly received it with somewhere between a shrug and mild annoyance. Also, I'm fairly certain our first ever black President would not toss around jokes about a racist meme while celebrating an African American award recipient. In addition to all of that: shut up, it's not racist. It's just not.But it's worth noting that this is a story about a person who lost a mayoral election at the primary stage in a small town in New Jersey. I'm not certain how many people would be aware of the story at all, nor would they have seen the following meme in question, had Minniti not chosen to throw his shit fit about it all. But I'm fairly certain that answer could be stated as "less", with so much media coverage over Minniti Streisanding this into the mainstream.
Anger about being the subject of a meme that then makes that meme go viral is not anger well spent.

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posted at: 12:00am on 27-Jun-2017
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This Week In Techdirt History: June 18th - 24th

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Five Years AgoThe Charles Carreon saga continued this week in 2012, with a lawsuit against Matthew Inman and the charities he was raising money for. When the full details of the suit became public, so did all sorts of nuttiness contained therein. Inman came to the table with an open letter, telling Carreon to take some time off and cool down — but he didn't listen, and promised to subpoena Twitter and Ars Technica over a parody account mocking him. Finally, at the very end of the week, he admitted the initial lawsuit was a mistake — but kept on digging anyway with new bizarre theories and attacks.Ten Years AgoThis week in 2007, NBC was on a copyright warpath, trying to get the FCC to force ISPs to monitor traffic for infringement, and trotting out the now famously hilarious attempt to blame movie piracy for hurting corn farmers. Viacom was still going full-force against YouTube and bulldozing over fair use in the process, even as YouTube (which played a big role in ending P2P's dominance of web traffic) was unveiling its video editing tool to encourage more user-generated content. And EMI was oh-so-shockingly discovering that people responded positively to the sale of DRM-free music.Fifteen Years AgoThere are a variety of reactions I often have to these stories from these early days of Techdirt. Sometimes they include amusingly incorrect predictions or shockingly precise ones; sometimes it's simply intriguing to see the small beginnings of something that would later become a big deal. This week in 2002, there was one post that fell into that latter category in a particularly striking way that makes it very funny to read now in all its early innocence, and so I think it's worth reposting in full. In the days when the web was still fresh, before some of the bigger cyberwar panics, and long before today's perplexing geopolitical landscape, there was this small post entitled Can't Hack The Kremlin:

Apparently, since the new website of Russian President Vladimir Putin went online about 24 hours ago, more than 100 hackers have tried to break in. Putin is "excited" that the Kremlin's techies have been able to block all the hack attacks. Does anyone else think this is just begging for more hackers to hit the site until someone finds a way in? It seems odd to promote how proud you are that no one broke in after just one day.
And the rest is, as they say, history. And also current events.

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posted at: 12:00am on 25-Jun-2017
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Factual and Adform Partner to Expand Location Data Access Across Europe

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Factual has announced a new partnership with Adform, a European-based, full stack advertising technology platform, to give advertisers increased, direct access to high-quality global location data across Europe. This new partnership expands Factual's presence and capabilities across Europe and continues its investment since announcing the company's expanded European operations earlier this year. Media targeting using [...]

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posted at: 12:00am on 24-Jun-2017
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NBA Rookie Is Just So Happy To Play For 'Team Name' In The City Of 'City'

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It ain't easy being a high-profile celebrity these days. A job that once mostly involved ducking cameras and putting out the occasional press release has evolved into one where multiple social media platforms must be updated so that fans feel that real connection that can only come with a carefully managed social media message. The brand is the ultimate product rather than any athletic or artistic output. To that end, even these social media messages come with sponsorships, carefully cultivated relationships with large companies itching to attach their names to well-followed celebrities and their social media accounts.Speaking of athletes, the NBA draft just happened. Many young men realized their dream to play in the NBA after years of hard work. Because they are young, many of those athletes have social media accounts with the expected platforms. And many of them posted messages about how happy they were with the draft day results. Like Markelle Fultz, for instance, who was drafted number one overall by the Philadelphia Seventy-Sixers and immediately took to Instagram to let his fans know completely, organically and authentically how pleased he was.


Oops. In case you can't read the embedded tweet, Fultz said that he was "Excited to head to (City) and join the (team name)", all while happily pointing out that the message was sponsored by watchmaker Tissot. Clearly this was a pre-written template to send out on Instagram once it had been filled in, except Fultz never filled it in. While he deleted the message shortly after, it's unclear just how (insert emotion) Tissot was with the message.More importantly, the curtain gets pulled back on Fultz's engagement with his followers. Certainly it's not the biggest deal in the world and most people are having a little light-hearted fun with Fultz's faux pas, but it does strike me that anyone that saw his Instagram account as a way to honestly engage with him likely knows better now.Fultz, meanwhile, can likely console himself with whatever insane amount of money a number one overall pick gets these days. Here's hoping the Sixers don't forget to fill in the direct deposit template.

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posted at: 12:00am on 24-Jun-2017
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King Has 'Crush' Trademark Opposed By Dr. Pepper

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App-maker King, of Candy Crush fame, has built up a reputation for itself as a trademark bully. The company has previously attempted to threaten pretty much any game or mobile app that utilizes the words "candy" or "saga." And if that sounds insane to you, you're not alone, as there have been several instances of severe backlash against how King goes about "protecting" its trademarks.As this site's version of the saying goes: live by the intellectual property, die by the intellectual property. Well, not die, perhaps, but it's slightly amusing to watch King have its "Crush" trademark opposed by Dr. Pepper.

In a bid to create a further layer of protection for their games, King.com have filed an application to protect ‘Crush’ as a trade mark in the US for confectionery. Unhappy about this application, Dr Pepper have filed an opposition claiming the ‘Crush’ trade mark will damage the goodwill of their own ‘Crush’ marks.Dr Pepper owns several trade marks for the word for a number of items including certain confectionary items and cosmetics. Dr Pepper has based their claims on the fact they believe by allowing the application by King.com, it will cause dilution of the distinctive quality of Dr Peppers marks.
Ok, let's get the obvious out of the way: this is a fairly silly opposition if its basis is to do with customer confusion. Frankly, I can't imagine how many people are even aware that the Crush mark is being used in the confections space by Dr. Pepper. I certainly can't think of a single Crush-branded candy. My quick google search didn't turn up much either. Crush is known for its soft drinks. Meanwhile, King is known for its apps, and even if it makes the move into retail in the way that Angry Birds has, and that retail business includes candies, who is going to confuse any of that with Dr. Pepper's Crush brand?That being said, this opposition is certainly more valid than King's bullying of the makers of The Banner Saga over that last word. I won't say this has reached the level of schadenfreude for me, but it is somewhat hard to get any tears to build up over King having to endure a silly opposition to its trademark.

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posted at: 12:00am on 24-Jun-2017
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iQ Media and Lotame Introduce Real-Time TV Measurement and Attribution Solution

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New Partnership Maps TV Investments to Business Outcomes by Connecting Smart TV Viewership, Behavioral Data and Brand Mentions. iQ Media, a pioneer of real-time TV intelligence for brands, announced a new partnership with Lotame,an independent data management platform and most trusted data exchange. This new partnership delivers the industry's first real-time TV attribution solution, giving [...]

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posted at: 12:00am on 23-Jun-2017
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Is Transparency the Answer to Achieving Accountable and Effective Marketing? The Answer May Surprise You

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Recently, Proctor and Gamble called on the media buying and selling industry to get its act together and demanded transparency into the whole supply chain. When I buy Proctor and Gamble's products, I don't ask them for transparency into their supply chain. In fact, I buy their products knowing that I will get high quality [...]

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Florida Cops Shut Down Secret Spy Plane Plan After Backlash By Locals

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The Miami-Dade Police Department has decided to drop its wide-area surveillance plan in the face of public backlash. The MDPD tried to slip it past residents and the county government by claiming the acquisition of a secret spy plane was too important to be done properly.

Documents submitted by the commission, first reported by New Times last Thursday, showed that MDPD has already applied for a $500,000 Department of Justice grant to begin testing the program. The department claimed the deadline to apply for the grants had allegedly been too pressing to wait to notify the public, and so County Mayor Carlos Gimenez's office applied for the DOJ money without first getting public approval.
A classic case of asking forgiveness rather than permission, coupled with a deliberate attempt to circumvent the part of the process that would have caused the most problems for the MDPD's surveillance plans: the public's comments.Once the document was posted publicly, the backlash began, led by a number of rights groups including the ACLU and the Defending Rights and Dissent Foundation. The surveillance system sought is repurposed Iraq War tech: a high-powered camera system mounted on an airplane that proponents and opponents both describe as a "DVR for real life." Capable of capturing a 32-square-mile area, the cameras don't provide much in terms of close-up detail, but do allow law enforcement agencies to track people's movements over a several hour period, whether in real-time or by replaying recordings.As the Miami New Times reports, the MDPD has offered no justification for this expansion of its surveillance powers. Apparently, the new surveillance tech was supposed to sell itself, what with most of the cost being offset by a $500,000 DOJ grant. Just as disturbing is the fact that so few county lawmakers questioned the acquisition, even after being made aware the MDPD had already applied for the grant without running it by them first.Fortunately, the plan is now dead. The MDPD may still want its eye in the sky, but its top official has decided he won't go against the public's will... for now.
[A]fter New Times broke news of the plan two weeks ago, MDPD Director Juan Perez announced in an email to the American Civil Liberties Union today that he's scrapping the program."There is some good news on the horizon for you," Perez told ACLU Florida Director Howard Simon at 10:20 a.m., according to a copy Simon sent New Times. "I am scrapping the project, but would like to get your opinion on the matter."
The ACLU is obviously pleased with this decision, but still hasn't heard from the MDPD director whether this includes trashing its DOJ grant request, or whether this grant money might be still be used to purchase other surveillance gear the public won't know about until it's on the doorstep of approval.The good news is the public's voice was heard, if a little after the fact. The invaluable reporting by the Miami New Times was instrumental in mobilizing opposition, something good journalism has a tendency to do. The real test of the MDPD's new outlook will be when the next opportunity to buy up surveillance gear with federal grants arrives. Hopefully, it will seek out public comment first, rather than only react when the backlash becomes too much to ignore.

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posted at: 12:00am on 23-Jun-2017
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Facial Recognition Software Brings Personalized Ads To The Supermarket

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Facial recognition software is getting to the point where there are some very interesting things that can be done with it in everyday life. That includes really bad ideas like enabling the police to run record checks on everyone who passes in front of their body-worn cameras. But it also means that businesses can start applying the technology in novel ways. Here's what is happening on a trial basis in some German supermarkets and post offices, as reported by Deutsche Welle:

There's a camera and a screen set up by the check-out. A visual sensor scans the faces of waiting customers who have looked directly at the camera and detects whether they're male or female and how old they are.Marketing company Echion is running the cameras and screens. The brands that advertise with them have clearly delineated target groups. If the visual sensor detects that enough people who fall into a company's target demographic are looking at the screen, an ad by this company will start playing.
Being shown ads that are likely to be more relevant to you is probably no bad thing. But once cameras are in place, it would be natural for shops to start using them for other more complex tasks, like spotting known shoplifters:
faces of individuals caught on camera are converted into a biometric template and cross-referenced with a database for a possible match with past shoplifters or known criminals. Some stores in the US give shoplifting suspects the option of allowing themselves to be photographed, rather than arrested. All this had been made possible by the arrival of networked, high-resolution security cameras and rapidly advancing analytical capabilities.
That's from a story in the Guardian last year, so it's likely that the technology has moved on considerably since then. It's easy to think of more troubling extensions to the idea of scanning shoppers: for example, linking up to other databases of troublemakers and ne'er-do-wells, or to selfies derived from social networks.As well as obvious privacy issues, explored in the Deutsche Welle report, a more general concern is the normalization this latest application of facial scanning might produce. Once cameras coupled with facial recognition software are routinely installed in everyday settings like supermarkets -- with appropriate warnings -- perhaps we will begin to accept them as the norm, and barely notice their silent spread to other locations and situations.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 12:00am on 23-Jun-2017
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Sizmek Adds Digital Audio Channel to Ad Server

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Sizmek, a people-based creative optimization and data activation platform today announced the availability of digital audio on Sizmek's end-to-end workflow management platform, as well as the addition of digital audio capabilities to Sizmek's mobile DSP, StrikeAd. Integration with several partners, including Triton Digital, are enabling the new offering. Through this integration, buyers using the StrikeAd [...]

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posted at: 12:00am on 22-Jun-2017
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Cheese: The Final Frontier For The Completion Of The Canada-EU Trade Deal CETA

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Remember CETA, the "Comprehensive Economic and Trade Agreement" between the EU and Canada? After years of on-off moments, including one last burst of uncertainty in March of this year, it finally seemed that everything had been settled, and that the deal would soon come into force. But it turns out that there is another, hitherto-unsuspected problem -- cheese:

Canada's CBC reported on its website that plans to have CETA (the Comprehensive Economic Trade Agreement) in place on 1 July were "threatened by a new cheese dispute". It said Europeans were upset at how Canada would allocate import quotas for new EU products, including 18,000 additional tonnes of cheese that Canada has agreed to import tariff-free.
Euractiv has all the details of the problem, which turns out to be bickering over how EU cheese producers will share that new tariff-free allowance. That's just last-minute haggling, and presumably will be solved with some appropriate sticks and carrots on both sides of the Atlantic. But an earlier report on the same site indicates there are deeper issues with CETA that remain unresolved:
In France, 110 MPs have demanded the opinion of the Constitutional Council on the legality of CETA. A ruling is due this summer. And Belgium, whose calls for additional guarantees had led to a confrontation with Brussels, has promised to take its concerns to the Court of Justice of the European Union in the coming weeks.Most recently, it is France's new President Emmanuel Macron who has put the issue back on the negotiating table, promising in the last days of his presidential campaign to set up an expert committee to examine the CETA agreement before ratification.
The last one of these is particularly problematic. Macron has adopted a surprisingly muscular style in his first few days as French President, most famously in his handshake with Donald Trump, and won't want to be seen backing down from his promise to seek expert scrutiny of CETA before ratification. Looks like there's life in that cheesy CETA saga yet.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 12:00am on 22-Jun-2017
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Sheriff Defends Deputies' Lies In Court By Saying Officers Didn't Know They Were Supposed To Tell The Truth

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The Orange County (CA) District Attorney's office remains in the news. It's not often an entire prosecutors' office gets booted off a high-profile murder case, but that's what happens when misconduct occurs on a massive scale. An open-and-shut murder case with eight victims is now the DA's perpetual nightmare. Judge Thomas Goethals kicked the agency to the curb after uncovering repeated discovery violations committed by prosecutors.But the problems go back further than this case. The office has hidden the existence of a law enforcement database from defense lawyers (and judges) for a quarter century -- a database holding all sorts of information about jailhouse snitches that may have made the difference in a number of cases.A quarter-century of obfuscation followed by outright lying on the stand by prosecution witnesses is something you'd think would be addressed by a swift housecleaning. You'd be wrong. So far, there have been no announcements from the DA about pending investigations -- either into its own misconduct, or the repeated abuses of the jail's snitch program run by the local sheriff's office.Add to that yet another revelation from the current criminal case: the sheriff's office shredded documents ahead of an announced investigation by the DOJ.

Sheriff's deputies doctored and shredded records after the announced launch of a U.S. Department of Justice (DOJ) probe eight years ago into suspected police corruption, according to the latest courthouse bombshell filed March 30 in what is known nationally as the Orange County Jailhouse Informant Scandal.Revealed in a brief filed by Scott Sanders, the assistant public defender in People v. Scott Dekraai, a pending death penalty case marred by astonishing law enforcement misconduct, Deputy Michael Carrillo wrote an entry never intended for public consumption: "ADUJSTED (sic) THE DISCIPLINARY ISOLATION LOGS FOR THE DOJ TO MATCH THE LOGS FOR AD-SEG AND PC LOGS, PER SGT JOHNSON."
Those in charge of the sheriff's snitch program have been asked to testify in response to perjury allegations. They have chosen not to, with each sheriff's office witness called pleading the Fifth. This chain of events has led to the most jaw-dropping law enforcement statement I have ever read, and that includes arguments made in support of setting toddlers on fire with carelessly-tossed flashbang grenades.
Sheriff Sandra Hutchens claims the veteran officers were unaware they were required to testify honestly during prior court appearances for the death penalty case marred by astonishing degrees of government cheating.
Officers, especially veteran ones, are aware they are required to testify honestly. This is why they're sworn in before testimony. There's a promise made at that point. Not testifying honestly is called "perjury," as the officers are surely aware. High school students taking civics classes are aware of this. No one's really unclear on the whole "tell the truth in court" thing.This is R. Scott Moxley's paraphrasing of what was actually asserted by the sheriff. The paraphrasing strips the original quote of its defensive obfuscation, but the real quote is no less damning, if not as direct. (Original quote obtained from Moxley.)
[T]he OC sheriff was asked why a veteran deputy had lied about the existence of incriminating agency TRED records after swearing in open court he would tell the "whole truth" and she replied, "I believe he was unclear about what he could or couldn't say about that system."
I'm not sure what the deputy thought was unclear, other than it seemed wiser for him to lie to the court than reveal the database the sheriff's office had kept hidden from defendants for years. If there was a question about what could be said in open court, the sheriff's witnesses could have asked to discuss the specifics in camera and allow the judge to decided whether it could be discussed publicly. Denying the existence of records that exist is still perjury, no matter how the sheriff wants to spin it.Hutchens and every "veteran officer" she's referring to should be fired immediately. Anyone who honestly believes testifying in court is subject to discretion calls by the sheriff's office about what can and can't be discussed needs to replaced with those who understands and respects the oaths they take. If they're actually stupid enough to believe being a law enforcement officer makes truth-telling under oath optional, they should be forced to tattoo "THIS END UP" on their foreheads to prevent them from making unfortunate decisions about which method of bipedal ambulation works most efficiently and have "DON'T LIE IN COURT" notes safety-pinned to their chests if they're going to be within 1000 feet of any US courthouse.

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posted at: 12:00am on 22-Jun-2017
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Portrait of an Ad Blocker

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According to Kantar Media, connected adults who use ad blockers tend to skew male and are right smack in the young Millennial age group: Males are 28% more likely to have downloaded an ad-blocking app. Adults aged 18-24 are 109% more likely than average to use an ad blocker. Those who use an ad blocker [...]

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posted at: 12:00am on 21-Jun-2017
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Small Irish Craft Beer Joint Has Actually Original Trademark Opposed By Holder Of A Purely Geographic Mark

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It seems like not a week can go by without some silly trademark dispute in the alcohol industries. This latest example comes to us from Ireland and provides a vivid demonstration for why trademarks ought to only be granted on unique and original names and not, say, on a mark based on common geography.Leo Mansfield of the Connemara region of Ireland opened a storefront business and called it "Conn O'Mara" after the titular fictional character he created as something of a mascot for the store. He registered the name "Conn O'Mara" as a trademark in 2009, as well as the logo for the Conn O'Mara character he created. All of this is perfectly original stuff, a fun and fictionalized nod to the Irish region where the storefront is located. In 2015, however, Mansfield decided to release a line of craft beer through the store as well and filed for a trademark on the name and logo to be used on his brews. Beam Suntory, headquartered in Chicago with two distilleries in Ireland, filed a notice of opposition to Mansfield's trademark, claiming that it has a registered mark for "Connemara" for the liquor marketplace.

Cooley Distillery claimed that products under the ‘Conn O’Mara’ mark could be confused with its own Connemara Irish whiskey products.“I am appalled by the idea that Cooley Distillery would attempt to trademark ‘Connemara’,” Mansfield said in his counter statement seen by The Spirits Business. “Connemara is the world renowned geographical area of outstanding natural beauty in which I live and do business. If Cooley Distillery’s intent is to stifle local commercial activity and deny the use of the geographical name of the area to goods and services from the area, then I am outraged.”
And with good reason. Mansfield's trademark is original, a fictional character and name that playfully serves as an homage to the region. Beam Suntory's mark, however, is the name of the region. Even putting aside my personal crusade to get the trademark offices of the world to recognize that the beer, wine, and liquor marketplaces are distinct enough to deserve their own trademarks, allowing a major industry to lock up a trademark for a name that is a geographic area is just plain silly. It's not original, it's not distinctive, and it treads on all of the other existing and potential businesses within that geographic area.It seems some of the locals in Connemara are on Mansfield's side.
Mansfield told The Spirits Business he decided to “go public” with his point of view now because he was “fed up” with the lengthy process. He added that local bars have decided to get behind him “and will be contacting the reps”.
Now, Beam Suntory is a huge company, but it still can't be worth the PR hit and the local patronage of these Connemara businesses to fight a storefront shop with a unique name and fictional character.

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posted at: 12:00am on 21-Jun-2017
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Coal CEO Threatens John Oliver With A SLAPP Suit

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This past weekend on John Oliver's Last Week Tonight, he took on the issue of "coal" and some politicians' obsession with coal jobs as the only true "American" jobs. The whole segment is interesting, but obviously not the kind of thing we'd normally write up. What we do frequently write about, however, is censorious threats, often from wealthy execs, designed to try to silence people from commenting on issues regarding those doing the threatening. And, it appears that's exactly what happened with coal exec Bob Murray, the CEO of Murray Energy, when he found out that John Oliver was doing a segment that included some bits about Murray.

I recommend watching the whole thing, but the parts about Murray include a brief bit around 4:45 in the video and then a much longer section starting around 12:30 in the video, where Oliver notes:
I'm going to need to be careful here, because when we contacted Murray Energy for this piece, they sent us a letter instructing us to "cease and desist from any effort to defame, harass, or otherwise injure Mr. Murray or Murray Energy" and telling us that "failure to do so will result in immediate litigation..."
Oliver notes that this is the first cease & desist his show has received (which he agrees is incredible). Oliver also points out that Murray has, in fact, been known to follow through on these threats -- suing the NY Times, a contributor to the Huffington Post and more. Many of these lawsuits appear to be fairly classic SLAPP suits, in which the lawsuits against reporters and journalism outfits are designed to try to silence them. Thankfully, Oliver and HBO have good lawyers who clearly know Oliver's rights to talk about, criticize and satirize Murray -- and Oliver then spends the next ten or so minutes doing so (hilariously), even to the point of involving a talking squirrel (you need to watch it yourself to understand why it makes sense). He also notes this at the end:
Bob Murray, I didn't really plan for so much of this piece to be about you, but you kinda forced my hand on that one. And I know you're probably going to sue me over this. But, you know what? I stand by everything I said.
Kudos to Oliver for taking a principled stand here for free speech on an important issue. Of course, Oliver has HBO and its lawyers to back him up, but it sure would be a hell of a lot easier if we had strong anti-SLAPP laws to protect him. So, once again, this is why we need a strong federal anti-SLAPP law, not to mention better state-level anti-SLAPP laws. Bob Murray appears to be based in Ohio, which (lucky him) appears to have no anti-SLAPP law, while I believe John Oliver is in NY, which has an incredibly weak anti-SLAPP law.Perhaps, sometime soon, John Oliver can take on the need for stronger anti-SLAPP laws.

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posted at: 12:00am on 21-Jun-2017
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Innovid Launches Real-time Creative Targeting System for Digital TV Based on Offline CPG Purchase Data from Nielsen Catalina Solutions

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Innovid, a video marketing platform for advertisers to create, deliver and measure video experiences on any device, today launched the first-ever technology solution for marketers to dynamically customize connected TV and over-the-top (OTT) ads based on purchase-based CPG audience segments from Nielsen Catalina Solutions (NCS), a leader in purchase-based targeting and return on ad spend [...]

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posted at: 12:00am on 20-Jun-2017
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Samba TV Raises $30 Million in Growth Capital

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Samba TV, a data and analytics company offering a TV Audience Platform, today announced that it has secured $30 million in Series B financing led by Union Grove Venture Partners and followed by Interpublic Group, MDC Ventures, Time Warner, A+E Networks, TGM, Draper Associates and Ambition VC. Samba TV will use the funding to expand [...]

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posted at: 12:00am on 20-Jun-2017
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Supreme Court Won't Hear Dancing Baby Case... Despite Gov't Admitting 'Serious Legal Error'

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Sometimes I think purgatory must be filing a lawsuit over a wrongful DMCA takedown notice. I'm pretty sure that's how Stephanie Lenz feels. After all, she's been fighting against Universal Music issuing a bogus DMCA takedown against her dancing baby, and I'm pretty sure that "baby" will be graduating high school before too long. Last we'd checked in, the Supreme Court was debating hearing the appeal in the case, and had asked the White House to weigh in. The White House responded last month with a truly bizarre argument, agreeing that the 9th Circuit's ruling contained a "significant legal error" but said that this case was "not a suitable vehicle for correcting that mistake."Whether it was for that reason or for no reason at all, the Supreme Court has now decided not to hear the appeal, meaning that the case is back (once again) in District Court, where it may actually go to trial to determine if Universal Music knew that the video was fair use when it issued the initial takedown.As we've discussed time and time again, this particular case is an important one, if Section 512(f) of the DMCA -- the part that says you cannot file bogus DMCA takedowns -- is to have any teeth. The problem, right now is that there are piles upon piles of abusive DMCA takedowns, targeting all sorts of content that is perfectly legitimate and non-infringing. Yet, because there is basically no punishment for issuing such takedowns, they continue. Unfortunately, this particular case keeps coming out with "mixed bag" rulings that probably won't help very much in the long term. While we may have hoped that the Supreme Court would clear things up and make sure 512(f) actually does its job, it appears that's unlikely to happen any time soon.

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posted at: 12:00am on 20-Jun-2017
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South Carolina Sheriffs Less Interested In Enforcing Laws Than Taking Stuff

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It's not like we need any more evidence showing asset forfeiture has almost nothing to do with enforcing laws or breaking up criminal organizations. But law enforcement agencies just keep generating damning data.The Charleston Post and Courier's article on the subject runs under an innocuous title that seems to put the blame on the federal government for the asset forfeiture sins of local police, but the article tells a completely different story. The officers and officials quoted in the story make noises about taking down criminals, but the greedy devil is in the details.

Every year in Spartanburg County, the Sheriff's Office organizes a week-long crackdown on Interstates 26 and 85 involving multiple local and federal agencies. They call it "Rolling Thunder."
Cool name. About as cool as the "interdiction teams" Rolling Thunder contains, which makes it sound as though officers are seriously engaged in disrupting drug trafficking. And the numbers here show the week-long effort did indeed result in a whole lot of searches.
During the March operation, deputies and their colleagues pulled over 1,110 motorists — the majority of whom were black or Hispanic — mostly for infractions such as making improper lane changes or following too closely. Police searched 158 vehicles, including large tour buses. Drug-detecting dogs sniffed around 105 vehicles, and the tour bus luggage…
But did it result in a whole lot of drug traffickers being shown the (jail) door? Of course not.
Just eight felony arrests were made, but police found and seized 233 pounds of marijuana, nearly 8 kilos of cocaine, 164 ounces of heroin, more than 4,800 prescription drug items, 65 grams of methamphetamine, $139,320 in cash and counterfeit consumer products.
Why even make the slightest effort to prosecute when civil asset forfeiture allows you to make nearly no effort at all? Here's Rolling Thunder "participant" trophy-winner Sheriff Chuck Wright making claims about the wondrous works of interdiction teams.
“You’re not going to do this here and get a free pass,” Wright said. “People in Spartanburg County elected me to enforce all laws, and that’s what I’m going to do.”“The proof is in the pudding. Look around. Do you want this in your street?” Wright said.
But a free pass is exactly what most people got. Eight felony arrests arising from 158 vehicle searches which turned up a whole bunch of drugs and cash. Not sure how a search-and-release program isn't a "free pass" or does anything to prevent more drugs from ending up on the street. Drug producers can always produce more drugs. And as long as their mules aren't sitting in jail, they should have little trouble moving product from point A to B.The most damning fact is this: South Carolina law enforcement agencies simply stopped enforcing laws when told they weren't allowed to enrich themselves through asset forfeiture. When the federal government briefly shut down its equitable sharing program -- which allowed agencies to route around state forfeiture restrictions to stake a larger claim of seized property -- local agencies shut down their drug interdiction efforts.
"The tip of the spear has just been blunted — it’s got no point now," Charleston County Sheriff Al Cannon said at the time.Hampton County suspended drug interdiction patrols until the payment program resumed.
This is the ugly reality of asset forfeiture. It's not about laws. Or drugs. Or taking down drug cartels. It's about taking stuff from people with a minimum of legal fuss. When the going gets tough, the tough shut down. What began as a well-intentioned notion has become a mockery of property rights and due process.

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This Week In Techdirt History: June 11th - 17th

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Five Years AgoIt was this week in 2012 that The Oatmeal wrote a level-headed criticism of FunnyJunk and received, in return, a somewhat scattershot threat of a defamation lawsuit. As a result, a whole lot of internet attention and ire was turned on one man, whose name we'd become very familiar with: Charles Carreon, who dug in his heels and tried to shut down The Oatmeal's fundraiser. Then he lashed out and accused Matt Inman of "instigating security attacks", and then swore he'd find some legal avenue by which to go after Inman. The saga, as you know, will continue in future weeks...Ten Years AgoThis week in 2007, media companies continued to pile on to YouTube with money-grab lawsuits. Sports leagues were actively fighting to claim ownership of facts about games, with the NCAA rejecting a reporter for live-blogging and Major League Baseball taking its legal fight over fantasy leagues to the appeals court. The MPAA and RIAA teamed up to create yet another lobbying group hot on the heels of the new Copyright Alliance, AT&T decided to start filtering infringing content for Hollywood, and a worrying court ruling ordered TorrentSpy to collect and hand over additional data on its users.Fifteen Years AgoThis week in 2002, in an act that practically defined "too little, too late", Sony and Universal announced plans to cut prices on digital music downloads. The BSA was beating its usual drum about the dangers of software piracy, the government was floundering when it came to internal use of technology, and the geeks in Silicon Valley were continuing to get more political. It was also this week that the late, great David Bowie shared some of his refreshingly forward-looking thoughts on copyright in the digital age, saying "I'm fully confident that copyright, for instance, will no longer exist in 10 years, and authorship and intellectual property is in for such a bashing." Almost everything he said about the nature of the coming change was correct, but he underestimated the power, tenacity and deep pockets of those who continue to fight tooth and nail against it.Ninety-Seven Years AgoMost cliches exist for a reason — though tired, they are apt. It's easy to forget they had to come from somewhere, and fun to find out where that was. And so this week we celebrate the birth of a common political cliche: the "smoke-filled room" where big decisions are made by powerful people. It was on June 11th, 1920 that Raymond Clapper of the United Press first used the term to describe the nomination process for Warren G. Harding at the Republican National Convention, presumably not knowing it would enter the lexicon as a go-to shorthand.

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Fake Libel Court Order Used In (Failed) Attempt To Vanish Sexual Battery Conviction

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People who do not have a legal reason to have content delisted are still trying to trick Google into compliance with various illegal actions. So far, we've seen bogus lawsuits filed by fake plaintiffs against fake defendants, slid by inattentive judges to secure takedown orders. We've seen people trying to limit negative search engine results by forging judge's signatures on fake orders. We've seen people assemble fake news sites to post copies of negative content solely for the purpose of targeting the original posts with fraudulent takedown orders.Eugene Volokh has dug up another interesting libel takedown order, supposedly issued by a Michigan federal court. It awards the plaintiff, Abraham Motamedi, $5,720 in legal fees and the delisting of sex offender registry-related URLs (only one of which isn't a top-level domain). From the order [PDF]:

IT IS FURTHER ORDERED: that to prevent further or future harm to Plaintiff’s reputation in the community and protect his employment from the dangers of labeling him as a “sex offender”, Plaintiff is awarded a permanent injunction against Defendants … compelling these Defendants to immediately remove any and all sex offender postings of Plaintiff caused by these Defendants, including but not limited to the sex offender postings presently on the following websites:– http://www.sexoffenderrecord.com/citydirectory/ID/Meridian/Abraham_Motamedi_1353346– http://www.sexcrimedata.com/– http://ev.onlinedetective.com/– http://onlinedetective.com/– http://offendex.com/
The plaintiff also is granted a permanent injunction against further posts linking him to sexual offenses.
IT IS FURTHER ORDERED: that to prevent further or future harm to Plaintiff’s reputation in the community and protect his employment from the dangers of labeling him as a “sex offender”, Plaintiff is awarded a permanent injunction against Defendants CHARLES RODERICK II, a/k/a Chuck Roderick, an individual, WEB EXPRESS, L.L.C., d/b/a “Online Detective”, an Arizona limited liability company; and, ONLINEDETECTIVE.COM, L.L.C., an Arizona Limited Liability Company compelling these Defendants to refrain from ever posting any similar sex offender posting concerning 5 Plaintiff or otherwise posting defamatory statements concerning Plaintiff on the internet.
Volokh says this was submitted to Google, despite the order naming only the sites listed above. The order doesn't discuss Section 230 once, even though it skips a set of intermediaries in its haste to get to the delisting. But that's really no surprise, considering no judge ever saw a complaint, much less signed their name to this judgment.
There is no Motamedi v. Oesterblad in the Eastern District of Michigan. The case number 2:13-cv-14541 (the number listed in the order) in that district corresponds to a completely different order. There is no Daniel Ro. Markus, the lawyer who, according to the order, was responsible for the case. The order submitted to Google was a forgery, like the ones discussed here (Lichterman and Aukerman), here (Arnstein), and here (Haas).
Nevertheless, Abraham Motamedi insists it's a real court order. Volokh spoke to Motamedi, who claimed the order was legit (despite the case being nonexistent). This isn't necessarily an indication Motamedi crafted the completely-fake court order. It could mean some shady reputation management company did it on his behalf. But considering Motamedi never expressed any hesitance about his assertions, it's safe to assume he's well aware this isn't legitimate.Additional weirdness: the criminal conviction Motamedi is trying to make vanish was handed down in Idaho and he now apparently lives in Nevada. Where Michigan factors into all of this is a mystery, although I suppose completely fake court documents don't have to adhere to any sort of jurisdictional limits.As more evidence of forged/fake court documents is uncovered, it's crucial that that intermediaries pay close attention to any supposed court order they receive. Failing to give these documents additional scrutiny will only encourage further abuse.

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Cable Industry Lobbyist Proclaims Cable TV Industry 'Failing' While Advocating Against Broadband Consumer Rights

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I'll forgive our dear readers if they don't have the name Matthew Polka floating in their memories right at this moment. As a refresher, he's the CEO of American Cable Association, the lobbying group that represents smaller cable and broadband providers. One would think that a group like this would be very interested in breaking up the near-monopolies held by the larger players in this industry and fostering more competition within the marketplace, except that Polka has literally said the opposite. The ACA has also been involved in battles against any sort of regulation in the broadband industry, against privacy rules with any real teeth, and against the plan to require cable companies to open service to third-party cable boxes.And in some respects on those last points, I get it. Hey, the ACA is lobbying for its member clients, not for the American people. Even as Polka has made noise about how great non-competition would be for America, everyone knew that was silly. What he says is clearly crafted to make his cable company clients as happy as possible, obviously.

The cable TV business is in trouble—in fact, it is "failing" as a business due to rising programming costs and consumers switching from traditional TV subscriptions to online video streaming, according to a cable lobbyist group."As a business, it is failing," said Matthew Polka, CEO of the American Cable Association (ACA). "It is very, very difficult for a cable operator in many cases to even break even on the cable side of the business, which is why broadband is so important, giving consumers more of a choice that we can't give them on cable [TV]."
Well, that's certainly different. These comments by Polka about how the cable television industry is failing differ from the doom-and-gloom sideshow too often pitched as a reason for cable companies to not do all sorts of things that would benefit customers. Instead, Polka's tone appears to be sincere on this point: the cable television industry, as we have come to know it, is in its death throes. Given cord-cutting and a new customer adoption rate that has been falling in the younger generations, it's refreshing to hear a cable lobbyist come out and admit all of this.The problem is that when you square this with the other point he made -- the importance of broadband -- a shiver bolts down the spine.
That's one reason cable companies in the ACA see broadband as "their future," Polka said. A cable company executive who appeared alongside Polka on the C-SPAN show echoed those comments.Video is "certainly our worst product," said Tom Larsen, senior VP of government and public relations for cable company Mediacom. "It makes the least amount of money."Larsen and Polka both praised the FCC's new Republican leadership for taking a deregulatory approach to broadband.
This, of course, refers in part to the gutting of net neutrality, the death of which is being to served to the American public by the same new leadership Polka is so happy to praise. It should be immediately clear what the ACA is hoping for when you take into account the sum of its previous stances, nearly all of which have been de facto anti-competition, as well as this newfound full focus on the broadband portion of its members' services. It expects to be able to strangle the ISP industry in the same way its anti-competitive practices helped pave the way for cable providers being unable to respond to customer demands.

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When Will The Google Future Be Here?

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These days, companies like Google are actually working toward perfecting machine learning to apply to applications as varied as cars that can navigate themselves through traffic without errors and image recognition that's accurate enough to locate an item within the image in a product catalog out on the Internet somewhere. The question isn't Is the [...]

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Wyden Siren: Coats Is Answering A Different Question About Surveillance Of US Persons

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Remember, folks, when Senator Ron Wyden asks certain questions or suggests something nefarious is going on behind the scenes, you'd best listen. Time and time again over the past six years or so, whenever he's brought up such an issue, he's been right. Some on Twitter have now dubbed this the Wyden Siren. Pay attention when Wyden is hinting at something. So... it's time to pay attention. On Thursday, Wyden sent a letter to Dan Coats, the Director of National Intelligence, complaining that he is answering a different question than the one Wyden asked. This is, of course, a fairly typical move in political circles, but especially in the intelligence community. You word answers in very tricky ways, such that you know the public will be misled, but if pressed in the future, you can argue that your answer was not untruthful -- just semantically misleading in the extreme.This case goes back to Wyden questioning Coats on June 7th about whether Section 702 can be used to collect purely domestic communications. There were already some people screaming "Wyden Siren" on Twitter about the question, even to the point of arguing that the question was setting up Coats the way that James Clapper was setup a few years back (in which he lied about NSA surveillance on Americans). Coats stated that such a thing would be against the law -- leading Marcy Wheeler to point out not only that the statement is incorrect, but that Coats signed a memo saying it's incorrect.After the hearing, as Wyden's new letter to Coats points out, Coats gave Wyden an answer. But, as Wyden now points out, it was an answer to a different question:

Dear Director Coats:At the Senate Select Committee on Intelligence's open hearing on June 7, 2017, I asked you the following question and requested a yes or no response: "Can the government use FISA Act Section 702 to collect communications it knows are entirely domestic." You responded: "Not to my knowledge. It would be against the law." After the hearing, in response to questions from reporters, the ODNI sent the following:
"Section 702(b)(4) plainly states we 'may not intentionally acquire anycommunication as to which the sender and all intended recipients are knownat the time of acquisition to be located in the United States.' The DNIinterpreted Senator Wyden's question to ask about this provision andanswered accordingly.
That was not my question. Please provide a public response to my question, as asked at the June 7, 2017, hearing.Thank you for your attention to this important matter.Sincerely,
Ron Wyden
Pay attention, folks. The Wyden Siren is blaring... and that usually means more awful surveillance revelations will be coming soon...

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Decade-Old GTA4 Modding Tool Suddenly Taken Down After Take-Two Interactive's Threat

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Video game makers and publishers have wildly different stances on modding communities, as is well known. Some embrace the communities and see them correctly as a free boon to the popularity of their games, while others would rather maintain strict control of the gaming experience by resorting to legal muscle with modders. But there is something strange in the Grand Theft Auto franchise, with Rockstar Games and Take-Two Interactive often taking confusing positions on what communities can do with their games. What would seem undeniable is that the modding community has extended the lifespan of finely-aged games, such as Grand Theft Auto IV, by giving gamers new ways to play them.And, yet, Take-Two appears to have recently sent a threat letter to a wildly popular tool to mod GTA4, angering of a large swath of its own fans. OpenIV is the name of the tool and it had a wide array of uses, including making videos of gameplay from angles impossible in Rockstar's editor, to adding new vehicles to the game and delving into the game code to find secret areas. Some content created using the tool has even been featured on Rockstar's website, with the company going to lengths to praise the modding community's creations. Earlier this month, however, the creators of OpenIV got a cease and desist letter from Take-Two.

According to a post on the official OpenIV website, the alleged cease and desist came on June 5th 2017. The supposed problem, OpenIV’s creators say, is that the program allows “third parties to defeat security features of its software and modify that software in violation Take-Two’s rights.” After discussing their options, the team behind the tool says they decided it was not worth their time to fight back.“Yes, we can go to court and yet again prove that modding is fair use and our actions are legal,” creator GooD-NTS wrote. “Yes, we could. But we decided not to. Going to court will take at least few months of our time and huge amount of efforts, and, at best, we’ll get absolutely nothing. Spending time just to restore status quo is really unproductive, and all the money in the world can’t compensate the loss of time. So, we decided to agree with their claims and we’re stopping distribution of OpenIV.”
The reaction from the gaming community was as swift as it was one-sided in its near universal condemnation of the takedown. Reactions ranged from confusion about why this action was taken after nearly ten years of OpenIV being in use and distribution to promises to never buy a Take-Two game again. Here is a sample of the reaction from Kotaku's post.

Now, we could have a perfectly reasonable discussion about why modding of this kind ought to be considered Fair Use. Or we could discuss how petulant legal threats of this kind are a detriment to creation and the operations of running a creative endeavor. That, after all, is something we know quite a bit about.But my chief question is much more basic: How in the world did Take-Two think that this was a good business decision? Given the extreme backlash, whatever harm was caused to gamers themselves by the modding tool must be minimal at worst. Given how long Take-Two put up with this tool existing without threatening it for so long seems to indicate that any harm to the company was minimal at worst. Meanwhile, it's quite clear that this is a tool that fans of GTA4 very much want to be able to use and its use only happens if they have a copy of the game. It makes the game more useful and attractive, in other words, which means more sold copies. What in the world was the company trying to accomplish here, other than merely resorting to protectionism?

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Mar/Apr 2017 - MultiValue Framework vs. NoSQL/Relational Database

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We don't call a jacket a lapel just because a jacket has a lapel. Likewise, we need to stop calling MultiValue a database just because it has one. There's so much more. Underselling the power we bring to every project is a thing of the past.

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Mar/Apr 2017 Magazine

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Cover Story - MultiValue Framework vs. NoSQL/Relational Database

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Lisa Cucinotta Joins Adaptly as VP of Accounts

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Marketing technology and services company Adaptly announced that Lisa Cucinotta (pictured left) has joined the company as Vice President of Accounts where she will lead Adaptly’s East Coast Client Strategy team and be responsible for the management, development, and growth of all East Coast accounts. “Lisa brings a wealth of digital experience to the company. [...]

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Mobile Gamers Prefer Rewarded Ads By 4-to-1 Margin, Tapjoy Research Finds

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Three-quarters of mobile gamers say they are likely to watch rewarded videos when offered the chance. Consumers want their apps free and their ads rewarded. A new study by Tapjoy, Modern Mobile Gamer report , found that mobile gamers in the US prefer opt-in, rewarded advertisements over mandatory ads such as pre-roll videos by a [...]

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Islamic State Using Small Drones Routinely In Iraq For Scouting And Dropping Explosives

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Here on Techdirt we like to remind people that drones are not just death-dealing machines in the sky, but can also be a force for good. However, like any other technology, drones can and are utilized by the worst as well as the best. Inevitably, that includes terrorist groups like Islamic State (ISIS), as an interesting article from the Los Angeles Times reveals:

In the seven months of the Iraqi government's drive to recapture Mosul from the jihadists, small drones have become a signature tactic of the [ISIS] group: Their appearance on the horizon, loaded with a camera, signals that punishing mortar barrages will soon be on the way. Others guide car bombs to their target, or drop small explosives miles behind the front line.
Most of these drones come from the Chinese company DJI, generally regarded as the leading drone manufacturer in terms of market share. Clearly, the routine use of its products by ISIS is not the best publicity in the world:
Reports that Islamic State had used DJI products pushed the company in February to create a geofence, a software restriction that creates a no-fly zone, over large swaths of Iraq and Syria, specifically over Mosul.
But there are problems with geofencing. First, there is the issue of when a demand to geofence certain regions is legitimate, since answering that question requires a political judgment about who is really in power. Secondly, it's not that hard to get around geofencing, either by using quick fixes, or simply swapping to other drones that run on open source code that allows geofencing to be turned off.Given that geofencing may not work, countermeasures are generally necessary. Those include rather crude solutions like shooting drones out of the sky with firearms, to more sophisticated ones like the DroneGun, from the Australia-based DroneShield Ltd., a company that specializes in counter-drone technology:
[the DroneGun] jams the GPS signal and radio linkages between the drone and its operator. The device, which sends out a jamming cone over a mile in length, forces the drone to either land immediately or to return to its base so that it can be tracked.
DroneShield's CEO, Oleg Vornik, already has some thoughts on what terrorists will do next:
"we believe organizations like ISIS will begin deploying swarms of drones. If you saw the Super Bowl halftime, you would have seen dozens of drones with little lights on them moving in a choreographed fashion," Vornik said. "That technology can be used to load grenades onto a large number of drones."
In other words, as drones continue to develop new and potentially exciting capabilities, so terrorists will eagerly embrace them -- just like everyone else.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Another Judge Says The Microsoft Decision Doesn't Matter; Orders Google To Hand Over Overseas Data

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Microsoft may not have to respond to government demands for US persons' data held overseas, but it looks like everyone else (specifically, Google) will have to keep trawling their foreign data stores for US law enforcement.The Second Circuit Appeals Court ruled US government warrants don't apply to overseas data. Courts outside of the Second Circuit are finding this ruling doesn't apply to Google's foreign data storage. The most obvious reason for this is other circuits aren't bound by this decision. The less obvious reason has to do with how Google stores its data.As Google describes it, communications and data are in constant motion, moving in and out of the country as needed for maximum efficiency. When a warrant arrives, Google gathers everything it finds in its domestic servers but hands back a null response to data currently held overseas. Sometimes what Google hands law enforcement is nothing more than unusable digital fragments. Obviously, the government isn't happy with this new status quo.And it is a new status quo, as is pointed out in this ruling [PDF] by a DC magistrate judge [via FourthAmendment.com]. The ruling here aligns itself with one handed down in Pennsylvania earlier this year. In that decision -- like in this one -- the judge noted Google used to capture everything requested, no matter where it was located. It's only very recently Google has refused to chase down data (and data fragments) located in servers around the world.The process was described this way in the Pennsylvania decision:

Google stores user data in various locations, some of which are in the United States and some of which are in countries outside the United States. Some user files may be broken into component parts, and different parts of a single file may be stored in different locations (and, accordingly, different countries) at the same time. Google operates a state-of-the-art intelligent network that, with respect to some types of data, including some of the data at issue in this case, automatically moves data from one location on Google's network to another as frequently as needed to optimize for performance, reliability, and other efficiencies.As a result, the country or countries in which specific user data, or components of that data, is located may change. It is possible that the network will change the location of data between the time when the legal process is sought and when it is served. As such, Google contends that it does not currently have the capability, for all of its services, to determine the location of the data and produce that data to a human user at any particular point in time.
Nothing has changed here. And nothing has changed in terms of legal analysis, despite this memorandum order being issued in a DC court. The court finds Google does not effect a seizure of requested data because it simply makes a copy of it. It also points out (and Google concedes) that it does not act as a government agent when it does this, despite the only reason for Google's copying of the data is to respond to a government warrant. The court notes the Stored Communications Act does carry privacy implications, but only as far as the private entity's actions -- not the government's demands. The court's analysis states the SCA provisions only prohibits unlawful access (such as hacking) while regulating companies' responses to government demands.The court goes on to say Google's view of its legal responsibilities is completely untenable. Because of the transitory nature of Google's data handling, it would never be able to fully comply with demands for records, no matter which country issued the order.
Finally, it must be said that the above Morrison analysis of the operative sections of the SCA has the added benefit of avoiding the bizarre results that application of the Microsoft decision to modern data networks like Google's would produce. If that decision's focus on the physical location of the data's storage were to be applied to service providers using such networks, the records and information the government would receive in response to an SCA warrant may differ significantly depending on the date on which the warrant is served. Indeed, the same warrant served on ten different days may well produce ten different results depending on where on the network the shards of responsive data are located at the moment each warrant is served. Such random results -- generated by a computer algorithm -- would serve the interests of neither privacy nor international comity.Compounding the problem, even assuming the service provider could and would identify for law enforcement the location of the foreign-based servers on which the missing data was stored (as Google refused to do here), that knowledge would effectively be useless to the government here. By the time the government could initiate the international legal process necessary to obtain the missing data from wherever it was stored, it is entirely possible that the network would have relocated the data yet again to a server in a different country. Moreover, it is Google's position that it need not respond overseas to any such international legal requests because it is only at its headquarters in California that its data can be accessed and compiled into a recognizable electronic file. Thus, in Google's view, the only means available to obtain records and information related to a Google account is by serving an SCA warrant on its LIS team in California.
The magistrate says that's not going to work -- not under the stipulations of the SCA. In fact, it's just not going to work at all because of Google's data-handling. It may be primed for efficiency, but does little to help it comply with warrants.
To reach the conclusion advanced by Google here, the Court would need to find that a properly-issued SCA warrant requiring the disclosure to law enforcement in the United States from Google's headquarters in the United States of digital files accessible only from the United States constitutes an extraterritorial application of the SCA simply because pieces of data that make up those files were stored on a server located outside the United States at the moment in time the warrant was executed. Because such a conclusion runs contrary to the straightforward extraterritorial analysis of the SCA under Morrison detailed above, the Court finds that Google has not shown cause for its failure to produce all the records and information called for in the instant warrant within its possession, custody, or control.
In the end, the court orders Google to ignore the realities of its data flow. It may make things easier for law enforcement, but it has very little to do with keeping the government within its jurisdictional confines.
Google's LIS representatives in California can access, compile, and disclose to the government those records and information with the push of a button and "without ever leaving their desks in the United States." Microsoft, 829 F.3d at 229 (Lynch, J., concurring). Because that "entire process takes place domestically," id., Google will be ordered to comply with the warrant in full, and to disclose to the government all responsive electronic records and infonnation identified in Attachment B to the warrant within its possession, custody or control, wherever those records and information may be electronically stored.
In essence, Google is being ordered to act as a government agent to secure all requested data wherever it happens to reside. Since it can do it from a California office, the court reasons nothing foreign is touched -- at least not by the government. Once it's all packaged up locally, the local boys can access it without fear of a suppression challenge.

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Winning the Iron Throne of Retargeting: How Competition Leads to Innovation

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Spoiler alert: This post is going heavy on Game of Thrones references. Why? Because the marketing world might as well be Westeros. Competition, treachery, and earning loyalty are all at the forefront of our industry. Competition is scary. There is always a risk that someone will do what we do faster and better, becoming so [...]

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What Does Snapchat's Acquisition of Placed Mean for You-Let Us Know

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The News: Snap Inc. SNAP, -3.87% has acquired Placed, a startup that measures the impact of ads by using location-based analytics, the ad startup said this week. The acquisition comes as Snap works to ramp up its advertising business under the theory that its small user base will be more engaged and thus bring in [...]

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Connecticut Lawmakers Drop Anti-SLAPP, Libel Tourism Bills On The Governor's Desk

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Some good news for free speech is emerging in Connecticut. In the first bit of good news, an anti-SLAPP law has been unanimously passed by legislators and is headed for the governor's desk.

The House of Representatives unanimously approved and sent to the governor’s desk Monday a bill to enable defendants who are exercising First Amendment rights to more easily seek dismissal of some lawsuits intended to silence them.“It’s a bill to protect people against ‘libel bullies,’” said Rep. William Tong, D-Stamford.[...]The bill passed the Senate unanimously last week.
If passed, this would lower the number of states without anti-SLAPP laws to 21, which means there's still a lot of work to do if there's any hope of preventing forum-shopping by censorious litigants. The bill provides for the filing of anti-SLAPP motions by defendants who feel a libel suit has been filed simply to shut them up. It also prevents the court from advancing the case further -- most importantly, blocking discovery attempts by plaintiffs -- until the special motion has been ruled on.Under this law, libel litigants would need to show a "preponderance of evidence" in support of their lawsuit's claims at the early stages of litigation, helping decrease the costs of defending against defamation claims. In addition, court fees and legal fees would be awarded to the defendant if the anti-SLAPP motion is granted. This deterrent will hopefully prevent bad faith litigators from filing lawsuits just to waste defendants' time and money.Unfortunately, the law also requires the defendant to make the same evidentiary showing first, which kind of turns anti-SLAPP motions into a pre-trial trial where both parties are given evidentiary burdens during a preliminary set of motions. This somewhat subverts the purpose of the bill, which is to reduce defendants' costs prior to litigation. This is the part of the law the ACLU would like to see removed before it will offer its support.(Weirdly, the ACLU also wants the language to the bill to exclude commercial speech, which it doesn't feel should be elevated to the level of other protected speech. The problem with this is that it would give bad faith litigants a way to dodge anti-SLAPP motions simply by pointing to advertising on defendants' websites or defendants' use of personal social media accounts to promote their businesses, etc.)It's not a perfect anti-SLAPP bill, but it's far, far better than the state continuing without one.The other good news is the passage of a bill targeting "libel tourism."
The House on Tuesday unanimously approved legislation that would protect Connecticut residents from libel suits file in other countries.The bill, which also cleared the Senate unanimously, is now headed to Gov. Dannel P. Malloy for signature. If signed into law, it would prohibit enforcement of libel judgments in countries with defamation standards lower than those in Connecticut.
This bill is somewhat redundant, considering the US government already shields US residents from foreign libel lawsuits under the SPEECH Act. To overcome this, foreign libel litigants would have to file in a country with comparable free speech protections and deal with Section 230 protections, if they've chosen to target the easiest defendant to serve, rather than the individual involved in the alleged defamation.But a little extra legal protection never hurts, especially if a libel tourist somehow manages to avoid US federal jurisdiction when suing a US resident. That being said, it's a pretty safe bill to pass and it's apparently turning one legislator into a Connecticut resident's personal hero.
[Senator Joe] Markley introduced the bill at the request of a Cheshire resident, and he expressed pleasure Wednesday that a constituent’s bill garnered approval.
Representatives that actually represent their constituents: an unexpected, but lovely, touch.

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Techdirt Podcast Episode 126: Talking Freedom Of Information With A 'FOIA Terrorist'

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We've made FOIA requests several times over the years, with varying results — but there are others out there who have dedicated their careers to understanding and using the FOIA process. One such person is Jason Leopold, a Buzzfeed reporter and FOIA litigator who was dubbed a "FOIA terrorist" by the government. He joins us this week on the podcast to discuss the ins and outs of Freedom Of Information.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.


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Judge Orders MCSK To Cease Collecting Royalties For Kenyan Musicians

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The saga of the Music Copyright Society of Kenya (MCSK) over the past couple of years has certainly been interesting to watch. In the summer of 2015, the Kenyan government responded to some fairly damning reports about just how little money MCSK was paying artists as part of its copyright collection scheme with a tongue-lashing. It also demanded that MCSK open up detailed books on its business and itemize how much it was collecting, paying artists, and paying itself in administrative fees. When the group responded with reports that might as well have been written in crayon for all the professionalism they showed, the government elected to strip MCSK of its collection license as a Collective Management Organization (CMO), instead setting up new collection groups that it for some reason thought would be less corrupt. I'm sure the Kenyan government thought that would be the end of MCSK.But nooooooope. Up until very recently, MCSK was advertising itself as the only CMO on the market, despite it not having a license to operate at all. It also was continuing to harass local businesses for royalties it was not authorized to collect. So, the court system in Kenya is now taking its turn at saying, "No, seriously, we're the government and you have to stop doing this."

The Music Copyright Society has been temporarily stopped from collecting royalties. The order was given by High Court judge Ruth Sitati. Her order arose out of a case filed following complaints from the business community that the MCSK was demanding royalties despite lacking a licence to operate as a Collective Management Organisation. Sitati also barred the MCSK or its agents from publishing information insinuating it is duly licensed as a CMO, pending hearing and determination of the case.
Why the court thinks MCSK will listen to it any more than the other branches of government remains unaddressed, but it likely has to do with the court having higher standing and respect than the government's Copyright Board. The court likewise has asked MCSK to open its books, though its refusal to do so earlier would indicate some sort of fear in doing this publicly. Seeing those books disclosed during the discovery process would provide some interesting details in just how money tends to flow through these collection societies.What should be clear, regardless, is that these types of organizations don't care to operate in the open light. One wonders just how musicians can think their interests are being served by them at all at this point.

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Kantar Media's Global Dimension Survey; Sabio Mobile Makes Two Key Executive Hires; New! AppsFlyer Mobile App

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Consumers around the world think that advertising is changing for the better and that advertisers are doing a better job of reaching them but they have some issues and concerns with online advertising, in particular. Kantar Media's global Dimension survey included responses from more than 5,000 connected adult consumers. Here are some of the findings: [...]

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EU Copyright Proposal: Not Good, But Not As Blatantly Terrible As It Could Have Been

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We recently warned that there were efforts underway to make the EU's copyright reform proposal even more draconian and ridiculous. Thankfully, the "compromise," which wasn't a compromise at all and would have made things much worse, was rejected by the Internal Market and Consumer Protection (IMCO) committee, but there was still plenty of bad stuff to be concerned about.The mandatory filtering (i.e., mandatory censorship) regime for internet platforms was rejected. That's a good thing. But, on the flip side, the so-called "link tax" requiring payments from those who link to and aggregate news to news publishers has moved forward. Two other small bits of good news were also included: the "freedom of panorama" allowing people to photograph buildings and sculptures without violating someone's copyright and also a "remix right" that will protect the public from doing basic remixing of copyright-covered works. There are still concerns about the "text and data mining" rules which limit what content can be acquired.So, basically, it's a mixed bag. Some, of course, will argue that any "compromise" will involve some good and some bad, but that assumes that we need a compromise here. Why not aim for creating a policy that's actually better overall, rather than a "compromise" solution? Europe has the chance to led the way, but appears to have little interest in doing so. Either way, there's still more to go in this process, and other committees to approve things, so the policy still has a long way to go. Hopefully, by the end it pushes more and more to being true copyright reform, rather than just "propping up old industries" reform.

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This Week In Techdirt History: June 4th - 10th

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Five Years AgoEarly this week in 2012, as the world continued to get its head around the recently-leaked details of the Stuxnet worm, we wondered why the usually-leak-averse White House didn't seem to be hassling anyone over these huge revelations, leading us to ask whether Chelsea (then Bradley) Manning would face the same charges if he had shared info with the New York Times instead of Wikileaks. Of course, by the end of the week, the winds seemed to be turning a little bit, with reports of an FBI investigation and calls for a hearing from Sen. Feinstein.Ten Years AgoThis week in 2007, Google was struggling to make publishers realize that its book search could be their friend by helping them make co-branded versions of the search for their own websites. Publishers, meanwhile, were pulling absurd stunts like stealing Google laptops at trade shows in order to air their misguided displeasure. Up here in Canada, following extensive and bizarre shaming from the industry over an apparent movie camcording problem, politicians introduced a new anti-camdording bill. And as the world awaited the approaching and much-hyped release of the iPhone, a number of other devices started getting labelled (both correctly and incorrectly) as competitors.Fifteen Years AgoThis week in 2002, the Church of Scientology was locked in a battle with Google over search results, the BSA teamed up with Egypt to issue a Fatwa on piracy, and Microsoft told Hollywood to get over itself and put content online. The buzz around newfangled "blogs" reached a fever pitch (and this is, I think, the first week where we started solely referring to them as blogs and never mentioning "weblogs") so of course one big question was: can you make money with them? Another big question was whether or not they count as "journalism", and apparently Berkeley's opinion was yes.Sixty-Eight Years AgoComparisons to George Orwell's Ninteen Eighty-Four are not exactly uncommon in today's political and social climate, and while I personally remember finding its senior counterpart Brave New World to be the more resonant and insightful dystopia (it's been a while since I've read either), it seems worth noting that it was on June 8th, 1949 that Orwell's masterpiece was first published.

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Vibes Unveils New Features for Mobile Engagement Platform

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Vibes now supports emojis, Facebook Messenger and more to enable marketers to better deliver personalized engagements on mobile. Vibes, a mobile engagement company used by brands to deliver targeted, personalized customer experiences, announced the availability of new features to the Vibes Mobile Engagement Platform. The enhancements enable brands to personally engage with consumers at scale [...]

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Trademark Bullying Works: Dawa Food Mart Agrees To Name Change After Trademark Suit From Wawa

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You may recall that earlier this year, mid-sized convenience store company Wawa filed a trademark suit against the Dawa Food Mart, a single location food market in New Jersey. At the time, we pointed out several problems with the lawsuit, including the stature of the companies being vastly different, the offerings of the companies not being particularly identical, and the fact that it was clear that the Korean owner of Dawa was not attempting to trade on Wawa's name (Dawa means "welcome" in his language). What all of this amounted to was pretty clearly a low likelihood of any actual confusion in the marketplace, which was nearly admitted to when Wawa's reps excused the legal action away as obligated under trademark law, despite that not being actually true.But, as we keep pointing out, trademark bullying like this works, and now Dawa Food Mart has agreed to change its name in exchange for Wawa not seeking damages against it.

The proposed order, which includes a permanent injunction barring the use of the Dawa name, has been submitted for the approval of U.S. District Judge Katherine Hayden in Newark. Dawa would have to change its name within 90 days of court approval. The store by that time also would have to use or destroy all materials with the Dawa name.Under the proposed agreement, Wawa would drop demands that Dawa be required to pay compensatory damages, as well as Wawa’s legal expenses and attorneys’ fees. Dawa would be obligated to pay $12,000 to Wawa if it’s found to have violated the proposed agreement.
There's some irony here in the Korean owner being forced to cease using a word that means "welcome" for his business, all because a bigger corporate entity threatened him with compensatory damages. Irony aside, this is unfortunate, not the least because of the expense Dawa will take on in changing its name, signage, branding, etc., but also because of the time sink this surely was for him. Still, this kind of bullying works because the potential damages outweighed the already sunk costs for Dawa.It's worth repeating the trademark law was designed to benefit the public. Given the lack of real confusion between the two businesses, I'm going to need some help seeing where the beneficiary of this trademark action is the public and not Wawa corporate interests.

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How The Death Of Net Neutrality Could Hamstring The Internet Of Things

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So we've already spent a lot of time talking about how underneath the hype, the "internet of things" is a bit of a shitshow. A lack of device security and a general apathy toward anything resembling privacy standards has resulted in an absolute torrent of new attack vectors being introduced into millions of homes and devices nationwide. Many of these devices are being quickly compromised in a matter of minutes for use in historically massive DDoS attacks, and most security analysts believe it's only a matter of time before they contribute to an attack on essential infrastructure putting notable lives at risk.But the internet of things segment is facing another threat: the looming death of net neutrality.We've already watched as large ISPs have used their market power to force you to upgrade to more expensive broadband tiers if you want certain services (like Facetime) to actually work. We've watched as ISPs have imposed completely arbitrary and unnecessary usage caps and overage fees, then used those punitive limitations to give their own streaming services a leg up on smaller competitors. And we've watched as Comcast simply refused to let its broadband customers use the hardware of their choice, using a rotating crop of faux-technical, nonsensical justifications.So as the FCC looks to effectively strip away most meaningful oversight of these broadband duopolies, what will stop these massive companies from expanding these behaviors into the internet of things realm as they try to corner the home automation and security market? If your answer is "jack shit," you win!Several startups and former FCC boss Tom Wheeler warned Wired this week that the kind of anti-competitive incumbent ISP behavior we've seen already well documented in other segments will be certain to manifest itself in the IOT space, eventually. Why wouldn't companies with thirty years of documented anti-competitive behavior use the death of net neutrality to give their own (or paying partner) IOT products, a leg up?:

"For example, imagine Comcast or Verizon partnering with a few select internet connected smoke detector companies and then delaying notifications from smoke detectors made by other companies. New companies could not meaningfully enter the market without partnering with these major internet service providers. After all, who wants a slow smoke detector? "The future could end up being controlled by four companies," Wheeler says. "That's why open networks are important."
Given what we've seen from ISPs so far, there's really not much reason to doubt they'd also try to implement new pricing paradigms that somehow require additional payments to connect "formally approved" devices to the network to ensure the best security and "optimal performance":
"Without the FCC's net neutrality rules, providers might also be free to force you to rent a cable modem or WiFi router the same way you already have to rent a cable box, or even to charge you for each computer, tablet, or IoT gadget you connect to the web. Instead of one flat fee for an internet connection that supports all your gadgets, you could end up having to manage multiple subscriptions."
This isn't just some hyperbolic, overly-dramatic parade of potential horribles. We've already watched these very same companies block mobile payment companies they didn't want to compete with. And we've watched as they've fought tooth and nail to prevent consumers from being able to buy and use the cable boxes of their choice. Why wouldn't these giant ISPs press their advantage after spending millions in lobbying? Especially when the FCC is clearly signaling that we're entering an era of zero accountability for some of the least liked companies in America?To be clear, even if the FCC does kill net neutrality rules later this year, large ISPs likely won't engage in this behavior right away. AT&T has a Time Warner merger to get approval for, and Verizon, Comcast and Charter will want to make it appear like blindly gutting oversight of the uncompetitive sector isn't going to be the epic shitstorm most of us know it will be. But sooner or later, without adequate safeguards, the lesser angels of these companies well-documented natures will shine through, and that could spell significant trouble for consumers and startups alike that run afoul of massive duopolies' IOT, home automation, and home security ambitions.

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The Art & Practice of Data-Driven Storytelling: A Q&A with Andy Pocock

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Adotas gets insights and answers from Andy Pocock (pictured left), SVP Strategic Business Development, Flashtalking, about the art and science of storytelling in advertising. arketing. How has storytelling changed and what role has data played in that change? A: Storytelling — the kind of storytelling used in advertising to move people one way or another [...]

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TV Season In Review: The Top Social Moments Of The 2016-17 Season

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With the U.S. broadcast TV season recently wrapped, Nielsen's Social Content Ratingslaunched at the start of the seasonfound that a whopping 2.9 billion social interactions about programs across Facebook and Twitter were generated across the digital ether. While consumers' collective eyes witnessed everything from NBA buzzer beaters to a dramedy about relationships to, of course, [...]

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This Machine Kills Accountability: The Ongoing Persecution Of Good Cops

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There are several ways the many problems with American policing could be addressed, but maybe a good starting point would be the way good cops are treated. It takes a concerted effort to remove a bad officer from the force. And, far too often, an ousted officer simply finds a new agency to work for.Good cops are a relative rarity. There are several who go through their career with a minimal number of sustained complaints, but that alone isn't enough to earn them the label of "good." Far too many are unwilling to speak up when misconduct occurs. Of course, the entire system discourages officers from speaking up. Those that do are ostracized, at best. At worst, they're pressured into giving up their law enforcement career.There's no better example of law enforcement's skewed priorities than the follow cases. In the first, officers who leaked body cam footage to the press to expose an officer's abusive behavior are facing more serious consequences than the cop they exposed. (via PoliceMisconduct.net)

The officers are accused of downloading and leaking body camera video and confidential records on Officer William Martin. The video shows Martin’s controversial arrest of Jacqueline Craig – the Fort Worth mother who called police to report an assault on her son, back in December.Officer Martin received a suspension for his actions, but Pridgen and Keyes were demoted. As a result of that demotion the two are no longer a part of Chief Fitzgerald’s executive team and both have been busted down to the rank of police captain.
The video released went viral, and for good reason. It showed Officer Martin assaulting someone who had called the police to report a neighbor had choked her 7-year-old son for littering. If there's anyone to blame for how an attempt to file a police report became a viral example of inappropriate use of force, it's Officer Martin:
“My son is 7-years-old, [he] don’t have the right to grab him and choke him,” Craig tells Martin, referring to the neighbor.“Why don’t you teach your son not to litter,” asks Martin in a mocking and accusatory tone.“He can’t prove to me that my son did or didn’t, but it doesn’t matter,” Craig says. “That doesn’t give him the right to put his hands on him.”“Why not,” Martin asks.
A bystander's video, posted to Facebook, was damning. The officer's own body camera footage was even worse. And yet, it's the officers who leaked the footage losing their titles and pay, rather than the officer who deployed the excessive force.
At the press conference this morning Craig’s attorney, Lee Merritt, talked about the punishment for Officer Martin versus the punishment for the FWPD officers. “Martin amassed a series of felonies on that day from assault, to aggravated assault, to perjury, official corruption, false arrest [and] to each of these he received no criminal investigation, no criminal prosecution. He received a 10-day vacation and he was returned to the force with a scheduled promotion,” Merritt said.
What hurts more, a demotion from the chief's executive force, or ten days off and the gentle reminder not to escalate routine policework into a viral media event?The second incident is even worse, in terms of changing cop culture. An officer who didn't kill someone is suing his former employer.
A West Virginia police officer who was fired after not shooting an emotionally disturbed man with an unloaded gun filed a civil rights lawsuit Wednesday against his former department.Mader's lawsuit, filed Wednesday on his behalf by the American Civil Liberties Union of West Virginia and the law office of Timothy O'Brien, claims he was wrongly terminated, and that the county, city and police department violated his First and Fourteenth Amendment rights. He is seeking compensatory and punitive damages in excess of $75,000.
Rather than view a suicidal person as an unfinished story just waiting for cops to write the final chapter, the officer talked to the man and attempted to resolve the situation without violence. This plan was ruined by the next cop through the door, who immediately shot and killed the suicidal man. The gun the man was holding was unloaded. Sure, the next officer through the door didn't know that, but it's not as though the officer took any time to assess the situation -- something that might have included speaking to the officer who was already present in the room with the "dangerous threat."Officer Mader was fired. The other cop was praised. According to the department, Mader "put two other officers in danger" by not immediately killing the suicidal man. In his notice of termination, Mader was let go for "failing to neutralize a threat." Oddly, the only person who spent any time talking to the suicidal man didn't see him as a threat. It was only the other officers -- who had spent zero time interacting with the man -- who felt "endangered" and "threatened."For this decision, Mader was not only fired, but dragged through the mud by his supervisors and fellow officers:
The department said Mader did not attempt to deescalate the situation, first yelling profanity at Williams and then freezing. City officials also said Mader was fired due to "multiple" prior incidents, including performing a search of a car without probable cause. Mader's lawsuit says those statements are false. Officials also called him a "disgruntled employee" and "a bad cop."The officer who shot Williams texted Mader after the press conference, according to the lawsuit, and called him a "coward" who "didn't have the balls to save [his] own life."
This is the thanks officers get for attempting to protect and serve their community. Far too many officers act as though the world's out to get them -- a mindset that becomes a self-fulfilling prophecy when they treat everyone else not dressed in blue as a threat.Being a good cop gets you nowhere. Or, rather, it gets you demoted or fired. Until the internal attitude changes, the external behavior of law enforcement officers will only get worse.

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Two Big Copyright Cases Sent To Top EU Court: One On Sampling, The Other On Freedom Of The Press

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Back in 2012, Techdirt wrote about one of the longest-running copyright sagas. It involved a 2-second rhythmic sample from the Kraftwerk track "Metall auf Metall", which was used by the German rapper Sabrina Setlur in a single called "Nur Mir". After the case had ping-ponged around various German courts for 12 years, a decision by Hamburg's highest regional court seemed to be the end of the matter, as Tim Cushing described in his comprehensive post. But in 2016, Germany's constitutional court took a look, and now a press release from the country's highest court (original in German), the Bundesgerichtshof (BGH), informs us that the case is still not yet over, and that it is moving up a level. The BGH has asked the Court of Justice of the European Union (CJEU), the top court in the EU, to clarify some basic points of law. A post on the IPKat blog runs through the details, and notes that one of the issues is:

What role the rights granted by the Charter of Fundamental Rights of the European Union plays: in particular, what is the relationship between copyright protection (Article 17(2)) and freedom of the arts (Article 13)?
That's asking a pretty deep question about copyright, and its relationship to creativity. As it happens, the same BGH has referred another copyright case to the CJEU asking equally important questions about that the role and limits of copyright (original in German). Here's IPKat again:
The second reference (I ZR 139/15 - Afghanistan Papiere) has been made in the context of litigation between the German Government and German newspaper WAZ over the unauthorised publication by the latter of the so called 'Afghanistan Papers', ie confidential military reports on the operations of the Germany armed forces in the region in the period 2005-2012.
Exciting stuff. Equally exciting, albeit in a different way, are the key questions the BGH wants the CJEU to answer:
can copyright protection be trumped by the need to safeguard freedom of the press and freedom of information? Or can fundamental rights be even directly invoked to prevent enforcement of copyright?There is probably no need to note that this question goes to the very heart of copyright protection, and will revive the longstanding discussion around the scope of protection.
Indeed. These are two very big copyright cases whose outcomes could have a major impact on the contours of copyright law in the EU, and maybe even beyond.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Brewery Sues Competitor Over Schooner Logos And Use Of The Word 'Head'

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Another day, another sigh-inducing trademark dispute in the craft beer industry. As we've discussed for some time now, the beer industry has a massive problem on its hands in the form of a deluge of trademark disputes between competitors. This has largely been the result of a huge uptick in craft brewers opening new businesses saddled alongside the tradition of creatively naming different beers and the limitations of the English language. Sometimes, however, you get a good old fashioned trademark dispute where one side is simply claiming similarities so tenuous as to be laughable.Introducing Shipyard Brewing Co., which is suing Logboat Brewing Company claiming that because the latter both uses an image of a schooner on its label for its Shiphead beer brand and because the name of the beer includes the word "head" at all, that its a trademark violation. Let's deal with each in order, mostly because simply putting the beer labels side by side should allow us to take the schooner portion of the claim off the list of things we'll take seriously quite easily.


Do both labels use the image of a schooner? Yup! Are those uses, or the labels themselves, even remotely similar? Hell no! Shipyard's label is a picture of a schooner on the water, whereas Logboat's label is dominated by an image of a woman with a schooner for a head. You know, "shiphead." The beer labels themselves aren't remotely similar so as to rise to the level of trademark infringement.Which Shipyard likely realizes, which is why they're lacing this trademark suit with the following claims: its the combination of the label and Logboat's use of the word "head" and the name it gave its outdoor seating area near the brewery that creates the customer confusion.
Shipyard further owns and has used other trademarks that contain the term HEAD as a suffix in relation to its beers, including, but not limited to, PUMPKINHEAD, MELONHEAD, and APPLEHEAD. Shipyard’s family of SHIPYARD, SHIP, and HEAD marks (collectively “Shipyard’s Trademarks”) all were in use and/or registered prior to Logboat’s earliest priority date of February 20, 2014.
The suit goes on to note that Logboat refers to its outdoor eating area as "the shipyard", which, yeah, the brewery has a boating theme. But with all of the examples of "ship" and "head" related trademarks owned by Shipyard, what the company chiefly demonstrates is that it does not have a trademark registered for "shiphead." The owner of that mark is Logboat, actually, which was registered in 2014 at which time no opposition was raised against it by Shipyard or anyone else. Logboat took to social media to explain:
“Logboat’s Shiphead Ginger Wheat trademark was registered by the U.S. Patent and Trademark Office following examination by a trademark examiner,” the statement said, “and successfully passed though the public opposition phase. Logboat’s mark was never challenged during the registration process as being likely to cause confusion with the trademark of any other party.”
What Shiphead is trying to do is string two or three tenuous trademark issues together and weave it into a valid trademark lawsuit. It's very unlikely to work, however, given how dissimilar the logos and marks are.

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5 Top Social Channels' Marketing Spend: Kantar Media Study

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Kantar Media took a peek at the five big social channels in the U.S., and the $117.9 million they spent last year on marketing. Two of them stood well above the rest in expenditures and success. Guess who got the top spots Facebook has transcended its role as a mere social media network and [...]

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Cheap DNA Testing Is Giving Some Insurers Even More Ways To Deny Coverage

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Joel Winston -- current consumer protection lawyer and former New Jersey attorney general -- is offering up the periodic reminder that terms of service are rarely written with the user's best interests in mind. Winston highlights the demands Ancestry.com makes in exchange for using its paid service. Two-thirds of those highlighted are standard operating procedure for far too many services. [h/t War on Privacy]The first is the perpetual license users grant Ancestry.com for exploitation of their DNA data. Again, this sort of thing can be found at many services heavily-reliant on users' contributions. And many of those not only want your money, but the opportunity to sell off data as well.

Specifically, by submitting DNA to AncestryDNA, you agree to “grant AncestryDNA and the Ancestry Group Companies a perpetual, royalty-free, world-wide, transferable license to use your DNA, and any DNA you submit for any person from whom you obtained legal authorization as described in this Agreement, and to use, host, sublicense and distribute the resulting analysis to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered.”
It's not particularly heinous. (Yes, I'm damning it with faint damnation.) But it's no better than countless other services, and this one deals with DNA, which is arguably more personal than, say, tweets... or coarse demographic info. It would be nice to know this up front. Ancestry.com can claim it does inform users of this, but it's part of a lengthy Terms and Conditions which contains enough dense language and boilerplate legalese to deter all but the most detail-oriented from reading it all the way through.Opting out is, of course, much more difficult. As Winston notes, several hoops must be jumped through to pull your DNA out of this broad "agreement." It also takes the company 30 days to handle users' requests, and it doesn't affect any studies, etc. the company has already supplied with your DNA data. It also may involve phone calls, which is super fun in the age of digital communications that leave a better, more easily-verifiable paper trail.On top of that, there's the arbitration clause, which will ensure users have as little leverage as possible should they be unhappy with Ancestry's services or handling of DNA data. This, too, is sadly a part of too many terms of service agreements. Arbitration forces users to play on the company's playground, rather than the more neutral field created by filing a civil complaint. This sucks, but once again, it's nothing that's unique to Ancestry.com.What's most disturbing about Ancestry's growing DNA collection is something Glyn Moody highlighted here a couple of years ago.
According to an article on Fusion.net, Ancestry now has over 800,000 samples, while 23andMe has a million customers (Ancestry says that a more up-to-date figure is 1.2 million members in its database). Those are significant holdings, and it's only natural that the police would try to use them to solve crimes; both companies confirm that they will turn over information from their databases to law enforcement agencies if served with a suitable court order.
Customers' DNA info -- processed by Ancestry.com -- becomes nothing more than a third-party record. The company says it only complies with court orders, but there's a lack of specificity in that statement. A court order may be nothing more than a subpoena, rather than a search warrant. Third-party records have a lowered expectation of privacy, which means warrants aren't a necessity.What makes this even more problematic is the company's willingness to hand over "familial" DNA -- in other words, DNA that isn't necessarily yours but comes from the same gene pool. Mixing this together raises the chance of false positives, which is never a good thing when someone's freedom is on the line.And it's not just limited to police snooping. Ancestry is making this information available to private parties (see the perpetual license above), which could have adverse effects on people who've never used the service.
Buried in the “Informed Consent” section, which is incorporated into the Terms of Service, Ancestry.com warns customers, “it is possible that information about you or a genetic relative could be revealed, such as that you or a relative are carriers of a particular disease. That information could be used by insurers to deny you insurance coverage, by law enforcement agencies to identify you or your relatives, and in some places, the data could be used by employers to deny employment.”This is a massive red flag. The data “you or a genetic relative” give to AncestryDNA could be used against “you or a genetic relative” by employers, insurers, and law enforcement.
The damage being done isn't theoretical. Glyn Moody's piece dealt with a man who became a suspect in a 20-year-old murder thanks to his father's DNA data (obtained by law enforcement from privately-held genetic databases). Winston's piece also covers the law enforcement aspects of Ancestry's license/sharing. But as the terms warn, insurers and employers could decide they want nothing to do with you, thanks to your familial DNA.
For example, a young woman named Theresa Morelli applied for individual disability insurance, consented to release of her medical records through the Medical Information Bureau (a credit reporting agency for medical history), and was approved for coverage. One month later, Ms. Morelli’s coverage was cancelled and premiums refunded when the insurer learned her father had Huntington’s disease, a genetic illness.Startlingly, the Medical Information Bureau (MIB) used Morelli’s broad consent to query her father’s physician, a doctor with whom she had no prior patient relationship. More importantly, the applicant herself wasn’t diagnosed with Huntington’s carrier status, but she suffered exclusion on the basis of a genetic predisposition in her family.
Health care insurers are forbidden by federal law from using DNA data to deny coverage, but as Winston points out, nothing prohibits other insurers (life, long-term disability, etc.) from using this to decline coverage. And there's nothing at all in the law preventing employers from using DNA data to screen out potential employees who might be a net loss on company-provided insurance plans.The upside is a $99 DNA test, something that used to be prohibitively expensive. The downside… well, it's pretty much everything else. In exchange for cheap testing, customers have to give up nearly everything. They can't easily stop the sharing of data, have limited ability to challenge information demands by law enforcement, and zero chance to fully control the use of data you've handed over to Ancestry.com. Information about how your DNA data is being used isn't easily obtained and anything insurers and employers are doing with this information is almost completely opaque. And, if you don't like it -- or feel Ancestry has managed to overstep the broad powers granted to it by its users -- you're stuck with arbitration as your only recourse.

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posted at: 12:00am on 08-Jun-2017
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Simulmedia's VAMOS: A Powerful Predictive Analytics Platform

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Simulmedia announced that it is has begun to license a standalone version of its patented Video Advertising Marketing Operating System (VAMOS), a powerful predictive planning, analytics and execution platform built for TV. VAMOS will now be offered as Software as a Service (SaaS) to marketers, agencies, TV media owners and distributors to optimize their TV [...]

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The Data Relationship Makeover: What's Mobile Got To Do With It?

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In a couple of years, retail will be a smartphone-only business. Seems like a radical statement, but look at the facts. The majority of online shopping is already done on mobile devices, and 79% of smartphone owners have specifically used apps to help with shopping. From progressive web to native apps, clienteling to fulfillment, it's [...]

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Unfortunate: Patent Office Director Michelle Lee Has Resigned

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There was this bizarre mystery earlier this year where no one in the government would even say who was in charge of the US Patent and Trademark Office (USPTO). There had been public statements made that the Trump administration was keeping on Michelle Lee, but her picture had been deleted from the Commerce Department website, and public appearances were being canceled and no one would say what was up. Finally, in mid-March, after months of questioning, the USPTO told people that Lee was still in the job. To us, this was a good thing. The past few USPTO directors had been cut from the "more patents is always a good thing" mold, whereas Lee actually recognized that bad patents harmed innovation. And even though the last time the Patent Office got concerned about bad patents it allowed the patent approval backlog to fill up, under Lee the backlog has reached its lowest point in a decade.She seemed to be doing a great job all around -- though patent trolls and the group of patent lawyers who love the trolls were campaigning about her -- and it appeared she would stick around. That would be a good thing. For all the craziness going on in the government right now, having competent leadership at the USPTO would be one less thing to worry about. But... now it's being reported that Lee has suddenly resigned and sent a goodbye email to staff. That's bad news on the patent front. Of course, it may be ages before any new director is appointed. As I type this, of the 559 key positions requiring Senate confirmation, Trump hasn't even named a nominee for 431 of them. That number rises to 456 if you include nominees who have been announced but not formally submitted. And that doesn't even get to the 63 nominations that haven't yet been confirmed. Adding the new USPTO director to that pile may mean no new USPTO director for.... who the hell knows how long.

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How Document-Tracking Dots Helped The FBI Track Down Russian Hacking Doc Leaker

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The surprising story that quickly followed the somewhat-less-surprising Intercept leak was the arrest of Reality Leigh Winner for the leak of the document. It was an incredibly fast leak investigation that apparently began when The Intercept reached out for comment after obtaining the document on May 30th.There's been a lot of talk that The Intercept acted carelessly when speaking to government officials and burned its source. But the evidence trail laid down by the FBI's affidavit suggests Winner did most of the burning herself. The document given to The Intercept was either an original printout or a scan of it. It showed telltale creases where it had been folded and placed into an envelope by the leaker.More importantly, the document contained something else: data that indicated where and when the document had been printed. This made it much easier to link Winner to the posted document. Rob Graham of Errata Security walks through the steps he took to decipher the physical metadata created by the NSA printer used by Winner. Printers -- and not just those owned by secretive government agencies -- can help rat out leakers.

The problem is that most new printers print nearly invisibly yellow dots that track down exactly when and where documents, any document, is printed. Because the NSA logs all printing jobs on its printers, it can use this to match up precisely who printed the document.
Using a paint program to invert the document's color scheme and the EFF's handy spy-in-the-printer tool, Graham obtained the following information using only the auto-printed dots on the Intercept document:
The document leaked by the Intercept was from a printer with model number 54, serial number 29535218. The document was printed on May 9, 2017 at 6:20. The NSA almost certainly has a record of who used the printer at that time.
Very definitely it does have such records, as do a great many entities not heavily involved in national security. Many documents in many companies are considered "uncontrolled" if printed, and built-in document tracking allows them to track down employees who may have jeopardized nothing more than their own employment.However, this does bring everything back around to the "just metadata" argument. The government has often claimed the wholesale collection of metadata is harmless, because it's nothing more than transactional records. Obviously, metadata can be quite damaging. Winner's decision to print the document ended her very short stint as a leaker.Conversely, the government also claims -- when raising the "going dark" specter -- that metadata and other transactional records aren't nearly as useful as intercepted communications and/or device contents. To some extent, that's true. But it's obvious that metadata/transactional records aren't nearly as useless as they're portrayed by law enforcement handwringers. Either way the government spins the metadata argument, it's insulting the intelligence of Americans.

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Modus Direct Partners with 4C Insights; Revcontent Launches Truth in Media Initiative; PocketZoom Case Study with Photofy

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Modus Direct Partners with 4C Insights to Drive Response from Social Media. Modus Direct, a data-driven direct response marketing agency, and 4C Insights, a data science and media technology company, announced a new partnership. Through 4C Social, Modus Direct clients will now be able to find and target their most valuable audiences across major social [...]

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posted at: 12:00am on 06-Jun-2017
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The Music Licensing Swamp: Spotify Settles Over Failure To Obtain Mechanical Licenses

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A year and a half ago we wrote about a lawsuit, filed by musician/songwriter/Techdirt-hater (with a few perhaps surprising exceptions) David Lowery against Spotify, for failing to pay mechanical licenses. As we noted at the time, the more interesting thing to us beyond the lawsuit itself was how it demonstrated what an amazing clusterfuck music licensing is. That's because copyright law has not done a very good job keeping up with the times as technology changes (understatement alert).Basically, each time a new technology undermines the way licensing worked in the past, Congress ends up duct-taping on some new kind of licensing regime. There are a bunch currently, nearly all of which can be traced back to different technological innovations from the past century and a half. And, then, the internet came along. And it wasn't entirely clear how the licensing regimes of things like radio, television, player pianos, and satellite radio fit into the internet. And, some seem to think the answer is: they ALL apply. At the very least, I don't envy the "licensing" team at the various music tech companies.In our initial post, we noted that the issue seemed so complex that after talking to half-a-dozen copyright lawyers, no two could agree on what was actually happening with the lawsuit, or even if it was a legitimate case. The underlying issue had to do with mechanical licensing (a type of licensing which, as it's name suggests, goes all the way back to the early days of "mechanical" reproduction of compositions), and we were wondering how it could possibly be that a company as big as Spotify, whose entire story rested on the idea that it had properly negotiated licenses, had somehow failed to properly secure mechanical licenses. And, yet, a few months later, we noted that the Harry Fox Agency, an organization that many companies, including Spotify, Apple and others, use to handle these kinds of licenses, appeared to be scrambling to send out notices of intent (NOIs), which was something that should have happened way earlier.After Lowery's lawsuit got combined with another similar lawsuit, it's now been announced that Spotify has settled the combined lawsuit and created a $43.4 million fund to pay for the mechanical licenses it failed to obtain properly in the first place. Now, there are still some who argue that mechanical licenses shouldn't even be necessary for a streaming service, but it doesn't appear that anyone has the desire to fight that one out in court, and it's understandable why. Doing so would almost certainly lead to any service making that argument getting slammed by musicians for trying to avoid paying songwriters.Either way, Spotify has paid its way out of this and I remain baffled by the fact that it hadn't just done the right thing in the first place -- though I'm still curious if the real culprit here is the Harry Fox Agency, and if Spotify and HFA have had a long conversation or two about how this all came down. The real lesson in all of this, though, is that music licensing continues to be a complete murky, swampy mess, almost designed to make it that much harder for licensed music services to exist. While Congress dithers with silly ideas about "moving" the Copyright Office, if it wasn't to actually reform copyright laws, it should start by fixing and modernizing the crazy and overly complex licensing regimes.

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Rime's Denuvo Defeated: Developer Gets To Work On DRM Free Version As Performance Hit Details Emerge

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As we had recently discussed, Tequila Works, makers of RiME, had promised pissed off customers that once the game was cracked and its Denuvo DRM defeated, it would release a Denuvo-free version of the game via a patch. The crack of the game came about almost immediately after this statement was made, because of course it was. To their credit, Tequila Works made good on its promise of a patch, while also blaming the use of Denuvo on Grey Box, its publisher.But there's a secondary story here. The actual impact DRM has tended to have throughout its history has been mostly to annoy legitimate customers by either keeping them from playing the game they purchased at all, or by resulting in negative impacts on game performance. For RiME, it appears the issue is the latter, and the person who cracked the game is offering details of how Denuvo tried desperately to turn the dial on its software up to eleven, almost certainly impacting performance of the game.

In a fanfare of celebrations, rising cracking star Baldman announced that he had defeated the latest v4+ iteration of Denuvo and dumped a cracked copy of RiME online. While encouraging people to buy what he describes as a “super nice” game, Baldman was less complimentary about Denuvo. Labeling the anti-tamper technology a “huge abomination,” the cracker said that Denuvo’s creators had really upped their efforts this time out. People like Baldman who work on Denuvo talk of the protection calling on code ‘triggers.’ For RiME, things were reportedly amped up to 11.“In Rime that ugly creature went out of control – how do you like three fucking hundreds of THOUSANDS calls to ‘triggers’ during initial game launch and savegame loading? Did you wonder why game loading times are so long – here is the answer,” Baldman explained. “In previous games like Sniper: Ghost Warrior 3, NieR Automata, Prey there were only about 1000 ‘triggers’ called, so we have x300 here.”
Those triggers are callbacks from the game to Denuvo's servers to verify it's legitimacy. This increase in triggers was almost certainly designed to make the game harder or more laborious to crack, though that obviously didn't work. But, as Baldman continues, the shocking 300k triggers just in the launch and loading screens was only the start. After a mere thirty minutes of gameplay, he recorded two million triggers. It's worth noting that RiME's rollout didn't go off as smoothly as the developer wanted, largely because of performance issues being reported by those who bought it. Baldman attempted to explain why at least part of those woes were likely this roided-up version of Denuvo mucking up performance.
“Protection now calls about 10-30 triggers every second during actual gameplay, slowing game down. In previous games like Sniper: Ghost Warrior 3, NieR Automata, Prey there were only about 1-2 ‘triggers’ called every several minutes during gameplay, so do the math.” Only making matters worse, the cracker says, is the fact the triggers are heavily obfuscated under a virtual machine, which further affects performance.
It seems pretty clear that whatever the percentage of the performance troubles RiME had that are the result of Denuvo, that percentage number is not zero. The DRM is having a performance impact at some level and it seems likely that having it ramped up so high would only increase the draw on power it needs to run. Denuvo is already denying that its software was responsible for the performance issues, but that should be easily cleared up now that Tequila Works is releasing a Denuvo-free version.What remains unclear is why any developer or publisher would use Denuvo any longer. Pissing off your legitimate customers for protection that can be measured in hours is no way to build a customer base.

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This Week In Techdirt History: May 28th - June 3rd

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Five Years AgoThis week in 2012, Google's recently-unveiled tool for looking at DMCA takedown requests was revealing just how unbelievably stupid and bogus those requests so frequently are — but the RIAA was doing its best to blame its own failure to use the tools properly on Google, of course. Meanwhile, the government hit some speedbumps in its pursuit of Kim Dotcom when the New Zealand judge refused to rubber-stamp the extradition order, and the filings with the district court in the US revealed massive flaws in the government's case. Also, it was this week in 2012 that the New York Times revealed the extensive and fascinating details of the Stuxnet worm, confirming that it was a US-led project in conjunction with Israel.Ten Years AgoThis week in 2007, the world was still trying to get its head around YouTube and the explosion of user-generated content. For some that meant pointing out how some of it sucks as if that means anything. For others (like governments around the world) that sometimes meant banning YouTube all together, or just trying to cleverly restrict user-generated content via "free trade" agreements. In Venezuela, however, YouTube became the new refuge for a traditional TV station that was shut down by the government.Fifteen Years AgoThis week in 2002, in the much earlier days of the DMCA, the EFF released a report detailing all the negative fallout of the anti-circumvention provisions for free speech, fair use, and innovation. Governments were struggling to figure out how national laws work on a borderless web, and Silicon Valley was realizing the necessity of dipping its toe into the Washington lobbying game. Meanwhile, Blockbuster was scrambling to go head-to-head with Netflix (and I think we all know how that worked out), online banking seemed to be finally taking off in the US (though that may have just been anecdotal), and the music industry was still not listening to the many people telling it what a big mistake it was making by shutting down Napster.Two-Hundred And Twenty-Seven Years AgoWe recently noted the 1710 passage of the Statute of Anne, the original prototype copyright law — and this week we mark the formal beginning of the copyright saga in the US. It was on May 31st, 1790 that George Washington signed the Copyright Act into law. At the time, the Act was only half a page long, and applied only to books, maps, and charts — though musical compositions were routinely registered as books.

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posted at: 12:00am on 04-Jun-2017
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Kantar Millward Brown & Samba TV Introduce TV Advertising Effectiveness Analytics Platform

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Partnership offers marketers verified passive TV exposure data integrated into TV advertising effectiveness measurement. Kantar Millward Brown announced that it has partnered with Samba TV in the U.S. The partnership combines Samba's TV dataset, one of the industry's broadest and most representative, with Kantar Millward Brown's Ignite Network, a brand marketing analytics platform, to provide [...]

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posted at: 12:00am on 03-Jun-2017
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Game Developer: Just Wait Until The Game Is Cracked And Then We'll Patch Denuvo Out; Game Gets Cracked Immediately

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By now you likely know that Denuvo, the DRM once thought to be the end of piracy, is in what looks like a losing battle for relevance. The DRM's ability to keep piracy groups from cracking video games went from months to weeks to days over the span of a year or so, with its Version 3 roll-out defeated so quickly that I could barely keep up writing the post about its demise. Reactions among game developers has varied, with some developers refusing to use Denuvo entirely, while others silently patched it out of their games once those games have been cracked. From the perspective of the gamer, of course, this all appears to be every bit as silly as every other DRM that has ever been used. Denuvo tends to annoy legitimate game buyers at best, while the pirates, against whom it is meant to fight, appear to have defeated it completely.And so the real story now is in watching how gaming companies are going to behave in this new reality where Denuvo has been neutered and gamers are revolting. Tequila Works, an indie developer responsible for Rime, has a take that ought to indicate exactly what the state of Denuvo's DRM is.

“We have had discussions about Denuvo internally, and one of the key points of all of those discussions have simply been, we want to ensure the best gaming experience for RiME players. RiME is a very personal experience told through both sight and sound. When a game is cracked, it runs the risk of creating issues with both of those items, and we want to do everything we can to preserve this quality in RiME.We are very committed to this, but also to the simple fact that nothing is infallible. That being said, if RIME is cracked we will release a Denuvo free version of RiME and update existing platforms.”
As you may be aware, mere days after putting this statement out there, RiME's Denuvo protection was cracked. There is some additional information, revealed by the person who cracked the game, regarding the performance issues Denuvo's software created as the company desperately tried to keep RiME secure and get itself a win, but we'll leave that to a separate post. For now, we'll focus on Tequila Works' making good on its promise almost as quickly as Denuvo was cracked.
The studio tweeted that it plans to release a DRM-free version of Rime in the future, saying that "a promise is a promise." In the same tweet, the studio also pushed the blame of implementing Denuvo into the game to Grey Box, saying that “we didn’t implement that protection in the 1st [sic] place.”
The time for pushing around responsibility for using Denuvo is long past over. This DRM is so laughably ineffective at this point, and impacts only legitimate customers in a very negative way, that this disaster needs to become an industry black sheep post-haste. Game developers partnering with anyone looking to use Denuvo need to understand that they are almost certainly going to piss off their own customers. That's not a good way to do business.

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posted at: 12:00am on 03-Jun-2017
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Proposed DHS Rules May Cause The Deaths They Claim To Prevent

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Back at the end of March, the Department of Homeland [in]Security issued rules stating that all electronics larger than a smartphone should be checked instead of kept in a carry-on on flights into the US from 10 airports or on 9 airlines from mainly Muslim countries in the middle east and north Africa. This was following claims by US and UK intelligence that terrorists are smuggling explosive devices in various consumer items to 'target commercial aviation'.Not only does this not pass the smell test -- anyone looking to bring down an aircraft with explosive devices won't care if they're in the cabin or the hold: boom is boom. The idea that items are going to go through some sort of super-secret screening is laughable, when red-team penetration tests find it trivial to get prohibited items onto aircraft (including via people with no ticket who bypass security screenings). And, of course, airports already require carry-on electronics to be x-rayed, and often swabbed for explosive residue. What's more, I remember seeing 'explosives smuggled on board' hysteria since Pan Am 103 almost 30 years ago, where Czech explosive Semtex was suspected to be in everything from fake muesli to electronics following the use of just 12 ounces (340g) to blast a 50cm hole in the 747's hold.A more "credible" theory is potential "cyber warfare" (a pox on that term). With electronics out of sight of the passengers after check-in, access to them is far easier for 'security services'. As well as allowing easy access to snoop on passenger electronics and data, there is a potential for far more nefarious actions in the tradition of Stuxnet.Stuxnet was a worm that targeted a certain Siemens industrial control system primarily used by Iranian nuclear centrifuges. However, it spread via infected USB drives to computers, and from those computers to other USB drives, all the while using rootkits with compromised digital signatures to hide. It essentially used a digital version of '6 degrees of separation' to eventually infect its target. What better way to spread similar malware than to infect a bunch of computers on flights to the target country? It's not just laptops either, cameras need memory cards and are just as easy to infect. As a theory, it's got a lot to commend it, but that's beside the point, because, remember, this is about 'safety' and people not taking bombs into aircraft cabins.So fast forward to the present, and while expanding the ban has been kicked about, a JetBlue flight has shown the incredible danger of requiring electronics to be put into bags that often are kicked about.


The smoking gun battery (Source, Grand Rapids Ford Airport)

May 30th's JetBlue flight 915 (NY JFK to San Francisco) had to make an emergency landing in Michigan after a AA lithium battery in a backpack started to smoke. When it was noticed, the backpack was moved to the aircraft bathroom which presumably dislodged whatever was causing the short. Luckily that was enough to prevent the fire from getting started, which would have soon gotten out of control.And therein lies the problem. Lithium battery fires are very dangerous, and one of the things that make them more dangerous than most other fires is that most of the things you'd do by instinct to put out a fire (smother it, put water on it) actually makes them worse. Realistically, the only way to deal with a lithium fire is to stop it before it starts, and while that happened this time, if it were in the hold we'd be looking at a downed Airbus A321 with 158 dead.Airlines know this and have for a long time. In 2000, I tried to fly with 2 batteries in my checked baggage from the UK to San Francisco with Virgin, and to Las Vegas with TWA. The batteries, Hawker (now Enersys) SBS40's were 38Ah, 12v batteries (yes, you can easily start a car with them) and were packed safely into my checked baggage as well as being certified safe for air travel (they won't leak if tipped or punctured). Virgin had no problems, but TWA flatly refused, citing a risk of fire in the hold (and at 28lb/12.7kg each, carry-on wasn't an option)Now bear in mind this is a battery designed for rugged use, puncture resistant and safe (which is why they were used in Battlebots entries, which is why I was taking them, for the Suicidal Tendencies team), in a fire-resistant case where the only available fuel might be some small amounts of hydrogen gas, and whatever items are around. Lithium batteries generally don't come in rugged fire-resistant cases, provide their own fuel, and worst of all, physical damage (such as heavy-handed baggage handlers) can cause such damage.If you want a more specific example of the risks, just cast your minds back to last year and the Samsung note7. With just the potential for a fire with note7 battery, they were banned from aircraft for safety reasons. They weren't consigned to the hold, where they can cause problems without anyone noticing.And it gets worse, Lithium-ion batteries are EVERYWHERE. Aside from the rechargeable AA and AAA batteries like the one that caught fire on flight 915, lithium batteries are in laptops and cameras. Here are some examples of lithium batteries I had to hand, that I'd take on a trip with me and have to check.
That's a laptop battery, a digital camera battery, a phone battery and a video camera battery (I have 4 of these). One of them is 10 years old, that's how long these batteries have been out there.
Any of these can cause an uncontrollable fire if mishandled (and sometimes, just from age). What's more, any of these devices wouldn't take much to rig with a short-range detonation using nothing more than their own battery as the bomb. A bomb which will pass all the cursory security checks because there are no obvious chemicals (RDX, TNT, etc) to detect.As a policy to prevent bombings, it's not useless, it's actually WORSE than useless, as it makes it FAR easier to take down an aircraft with electronics, just by accident, let alone by design.The only people who benefit from this policy were it to be enacted worldwide, would be the computer snoopers, and of course, the many thieves, pilferers, 5-finger-discount shoppers, and general low-life criminals that seem to be employed at most airports in their security/baggage handling/TSA departments. Anyone else is potentially flying corpse-class.Now, some might say that in this case, having lithium-ion batteries of any kind on an aircraft -- whether in checked luggage or carry-on -- is a recipe for disaster, and that they should be banned in general. But what I'm saying is that they are more prone to fire through mishandling than other battery types, and that such a fire, once it has started and takes hold, is more difficult to get under control easily. Well-maintained, well-treated batteries are safe if they're kept in the cabin, as any incident can at least be quickly addressed, as the recent JetBlue incident showed. Requiring they be put into baggage that is dropped, thrown, punted, squished, molested, rummaged through and otherwise mishandled, before being packed tightly into an aircraft hold unattended means that damage leading to a fire is far more likely, and that fire is unlikely to be discovered - let alone extinguished - before it is too late for the safety of the aircraft.And if you're wondering how to put out a lithium battery fire when started, the answer is to use a class-D fire extinguisher (which only works on metal fires) but in a pinch, salt (pun intended) or sand can be used. Good luck finding the former, or enough of the latter two at 43,000ft. In a pinch, you can use water in mist form to cool around the battery and bring its temperature down (this can take a LOT of water and time), while also isolating it from any other fuel where possible (which was done in this case). Again, this is not really feasible if the fire is in the hold. Here's a demonstration of extinguishing a laptop battery fire, and how even when prepared, and waiting for it, with an extinguisher at the ready, it can still take a minute or two to put it out. Most people would be tempted to stop once the flames go out, allowing for re-ignition.Reposted from the Politics & P2P blog

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5 Ways to Get Better ROI

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Why read this article: This article will unpack why ROI is not a fixed, or, constant number. In the increasingly real-time marketing world, we need to understand the message-level ROI and other dynamics that can dramatically alter your ROI. Years ago, there was a person at Procter & Gamble who carried a little card in [...]

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Telenor Looks To Lead The Anti-Troll Fight In Europe

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In what is beginning to look like a much-welcomed trend, it seems like copyright trolls are finally due to receive some pushback from powerful industry players. Whereas previous pushback has been both isolated and chiefly the province of smaller European government groups, the real curtailing of copyright trolling efforts was always going to come from a revolt by tangential corporate interests. It appears that the soldier on the front of that fight might be Telenor, an ISP that has previously pushed back against efforts for wholesale site-blocking in the name of copyright, and one that is is now looking to export its recent anti-troll win in Norway to the country of Denmark by gathering allies in the ISP industry to its side.

To stop the trolling efforts from getting out of hand, Telenor is now preparing to build a new case at the Frederiksberg Court, hoping to protect the identities of its subscribers. In Denmark, Telenor is supported by fellow Internet provider Telia, which says it will be more critical toward trolling efforts going forward.The branch organization Telecommunications Industry in Denmark notes that other ISPs are backing Telenor’s efforts as well. The group’s director, Jakob Willer, describes the copyright trolling scheme as a “mafia-like” practice, which should be stopped.“There is full support from the industry to Telenor to take this fight and protect customers against mafia-like practices,” Willer says.
This language choice is not remotely inappropriate. Copyright trolls rarely find themselves before an actual court against defendants, instead relying on well-crafted and often deceptive threat letters to generate settlement income for themselves and their clients. It should be immediately clear exactly what is going on here when a law firm so haphazardly threatens litigation yet never conducts it. Extortion is a word that leaps to mind, even if these wolves are garbed in the sheep's clothing offered by the imprimatur of legal language and the status of being an otherwise valid law firm. What's required to break these efforts is the unmasking of these tactics and the tenuous evidence on which they are based, as well as having the privacy erosion that these tactics require laid bare for all to see. ISPs are the perfect paladin for this, as they are the ones giving up customer information based typically on scant evidence.Individuals will find themselves unable to compete with the legal teams of these copyright trolls. So much so, that the unmasking of account information is quickly getting out of control.
These so-called “copyright trolls” have also landed in Denmark, where the number of targeted Internet subscribers is growing at a rapid rate.In 2015, rightsholders received permission from courts to obtain the personal details of 6,187 alleged BitTorrent pirates, based on their IP-addresses. A year later the number of accused subscribers increased by nearly 250 percent, to 21,163.
Why courts so often side with industry in this manner is a discussion for another day, but given that reality, ISPs too are an industry that can take up this fight. Seeing them begin to do so, and banding together to provide a more formidable legal defense of what is essentially their customers' rights, is obviously a step in the right direction. And, while geography plays little role in internet-related questions of this kind, it strikes anyone looking at the map how Telenor appears to be surrounding Germany, the birthplace of copyright trolling, with its legal efforts.All is not quiet on the copyright troll front, in other words, with ISPs now looking to ally against them.

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Stupid Patent Of The Month: Ford Patents A Windshield

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The Supreme Court's recent decision in Impression Products v. Lexmark International was a big win for individuals' right to repair and modify the products they own. While we're delighted by this decision, we expect manufacturers to attempt other methods of controlling the market for resale and repair. That's one reason we're giving this month's Stupid Patent of the Month award to Ford's patent on a vehicle windshield design.

D786,157 is a design patent assigned to a subsidiary of Ford Motor Company. While utility patents are issued for new and useful inventions, design patents cover non-functional, ornamental aspects of a product.Unlike utility patents, design patents have only one claim and usually have little or no written description. The patent only covers the non-functional design of a certain product. But design and utility patents are alike in an important way: both are intended to reward novelty. According to U.S. law, the Patent Office should issue design patents only for sufficiently new and original designs. By that test alone, it's easy to see that the windshield patent should never have been issued.Why did Ford apply for the patent on its windshield design? One possible reason is that it's the automotive industry's latest attempt to control the market for repair. If the shape of your windshield is patented by Ford, then no one else can replace it without risking costly patent litigation.Ford has a troublesome history with independent repair shops: in 2015, it sued the manufacturer of an independent diagnostics tool under Section 1201 of the Digital Millennium Copyright Act, the infamous law that makes it illegal to circumvent digital locks on products you own. Later in 2015, the Librarian of Congress granted an exception to 1201 for some forms of auto repair, but manufacturers have continued to seek out creative ways to close out the market, whether it's through copyright, contract clauses, or patents.In the Supreme Court Lexmark opinion, Justice John Roberts specifically noted the danger of automobile manufacturers shutting out competition in the repair space:
Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.
If the Patent Office continues to issue stupid design patents like Ford's windshield patent, it risks giving manufacturers carte blanche to decide who can repair their products. And customers will pay the price.Republished from the EFF's Stupid Patent of the Month series.

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Fake News in Programmatic Advertising: BrightRoll Highlights Concerns

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BrightRoll surveyed over 400 programmatic advertising decision makers to understand their growing concerns about fake news. The survey yielded some interesting insights which are highlighted below: 96% of advertisers are concerned about fake news in programmatic advertising. 31% will reduce spend with programmatic partners whose inventory includes brands associated with fake news. 43% won’t change [...]

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Could Firmware Expiration Dates Fix The Internet Of Broken Things...Before People Get Hurt?

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If you hadn't noticed, the incredibly flimsy security in most Internet of Things devices has resulted in a security and privacy dumpster fire of epic proportions. And while recent, massive DDoS attacks like the one leveled against DNS provider DYN last year are just one symptom of this problem, most security analysts expect things to get significantly, dramatically worse before they get better. And by worse, most of them mean dramatically worse; as in these vulnerabilities are going to result in attacks on core infrastructure that will inevitably result in human deaths... at scale.Estimates suggest that 21 billion to 50 billion IoT devices are expected to come online by 2020. That's 21 to 50 billion new attack vectors on homes, businesses and governments. And many of these are products that are too large to replace every year (cars, refrigerators, ovens) but are being manufactured by companies for whom software -- and more importantly firmware updates -- aren't a particular forte or priority.To date, there are a number of solutions being proposed to tackle this explosion in poorly-secured devices, none of which seem to really solve the issue. Agencies like Homeland Security have issued a number of toothless standards the companies that are making these poorly-secured products are free to ignore. And efforts at regulating the space, assuming regulators could even craft sensible regulations without hindering the emerging sector in the first place, can similarly be ignored by overseas manufacturers.In the wake of the Wannacry ransomware, University of Pennsylvania researcher Sandy Clark has proposed something along these lines: firmware expiration dates. Clark argues that we've already figured out how to standardize our relationships with automobiles, with mandated regular inspection, maintenance and repairs governed by manufacturer recalls, DOT highway maintenance, and annual owner-obligated inspections. As such, she suggests similar requirements be imposed on internet-connected devices:

  • A requirement that all IoT software be upgradeable throughout the expected lifetime of the product. Many IoT devices on the market right now contain software (firmware) that cannot be patched even against known vulnerabilities.
  • A minimum time limit by which manufacturers must issue patches or software upgrades to fix known vulnerabilities.
  • A minimum time limit for users to install patches or upgrades, perhaps this could be facilitated by insurance providers (perhaps discounts for automated patching, and different price points for different levels of risk)."
  • Of course, none of this would be easy, especially when you consider this is a global problem that needs coordinated, cross-government solutions in an era where agreement on much of anything is cumbersome. And like previous suggestions, there's no guarantee that whoever crafted these requirements would do a particularly good job, that overseas companies would be consistently willing to comply, or that these mandated software upgrades would actually improve device security. And imagine being responsible for determining all of this for the 50 billion looming internet connected devices worldwide?That's why many networking engineers aren't looking so much at the devices as they are at the networks they run on. Network operators say they can design more intelligent networks that can quickly spot, de-prioritize, or quarantine infected devices before they contribute to the next Wannacry or historically-massive DDoS attack. But again, none of this is going to be easy, and it's going to require multi-pronged, multi-country, ultra-flexible solutions. And while we take the time to hash out whatever solution we ultimately adopt, keep in mind that the 50 million IoT device count projected by 2020 -- is expected to balloon to 82 billion by 2025.

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    Aussie Catering Company Pokes Brewery Over Trademark Spat, Now Finds Itself Potentially Losing The Mark Entirely

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    It's a point we apparently need to keep hammering home: for there to be trademark infringement, there must be simultaneous use of a validly held trademark in the same market and there must be real or potential customer confusion. Too often businesses throughout the world are under the impression that trademarks are far more broad than they actually are and that they can be used like a cudgel to smack change out of the pockets of other businesses, competing or otherwise. There are risks to this behavior, including a ding to the bully's reputation, backlash from the public, and a loss of money spent on a legal action that need not have occurred.And, sometimes, a company risks losing the trademark over which it fought entirely. Meet Figjam & Co., a catering business in Australia that threw something of a fit over an Aussie brewery, Burleigh Brewing, having a celebrated beer entitled "FIGJAM Pale Ale."

    Figjam & Co owner Jason Davidson registered the trade name Figjam with IP Australia in 2005 before going on to establish a successful catering business that, among other things, provides beer, food and wine to weddings, parties and other functions. Mr Davidson’s Figjam trademark is registered for various goods and services including beer, fruit juices, syrups and other preparations for making beverages.
    What should be immediately clear is that catering and brewing businesses are not competing with one another. It's also the case that including drinks in your catering business does not put you in the brewing beverages business, thus having trademarks registered to include goods such as beer and juices doesn't make much sense. That's not how those trademark designations are used. We'll get back into that again later, but first I want to share with you a quote from Mr. Davidson that I think perfectly sums up why this was a silly fight to start. Keep in mind that the aim of trademark law is to prevent customer confusion about the origin of a good or service and that that confusion is part of the test for infringement.
    “I’m shocked to discover that Burleigh Brewing has been selling beer using my brand for more than five years,” Mr Davidson. “They would have sold millions of dollars of beer during that time under my trademark. This is a real warning to other small businesses.”
    This quote can be accurately remixed as the following: "There was such a dearth of any confusion among my customers that I had no idea Burleigh Brewing even had a beer including the Figjam name for over half a decade. They've done a ton of business, millions of dollars even, and I have never even had a whiff of any confusion from my customers. Now I'd please like a ton of money."That isn't the likely outcome of all of this, however. In response to being contacted about threatened litigation, Burleigh Brewing has decided to go on the offense.
    Australian intellectual property law prohibits use of a trademark that is “substantially identical or deceptively similar” to another trade mark on the same or similar goods or services. A trademark can, however, be challenged on the basis it is not being used on the goods or services for which is it registered.In the hope that it can obtain registration of the FIGJAM trademark, Burleigh Brewing has filed an application to remove Mr Davidson’s Figjam trademark.
    Oops. In other words, Davidson poked the bear and now the bear is trying to invalidate his trademark (I may be losing the analogy in there somewhere). And all this, mind you, over something that was of so little consequence that it had gone unnoticed for several years. Nice job, all around.

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