Out of concern for their safety, Hoyland moved his children to the back of the house and retrieved a cell phone to record the incident outside. He intended to remain inside but changed his mind when he believed he heard the officers yell “shoot” or “shooting.” He proceeded to switch the porch light on, open his front door, and hold his phone, which was recording, out in front of him.And this is the reaction he got:
Within seconds, an officer shouted, “Drop the camera!” McMenomy yelled at Hoyland to go back inside the house. Hoyland remained where he stood and began screaming at the officers. He shouted, “You are in my yard!” and “What is this, a DWI stop, and you guys are doing this? Are you kidding me?” Hoyland also yelled that his wife was handicapped and demanded that the officers do their jobs “the right way.” McMenomy again ordered Hoyland to “stay inside.” Immediately following this command, with Hoyland remaining in the doorway, “the arrest decision was made” by McMenomy who shouted “you are under arrest,” and ordered Hoyland to raise his hands. About thirty seconds of time elapsed between Hoyland’s emergence from his house into the doorway and McMenomy’s pronouncement that he was under arrest. Hoyland did not resist, raised his hands and laid down on the ground, following the instructions given by the officers. He was taken into custody by McMenomy and Cho without incident.Since the confrontation was recorded, there is little room for variances between Hoyland and the officers' testimony. As the court sees it, there is no question Hoyland did nothing even remotely approaching "obstruction."
Throughout this encounter, Hoyland never left the area around his front door, failing to ever come closer than 30-40 feet from the officers. He never told his wife or Illetschko to disobey the officers’ commands. He never ran away or resisted the officers as he himself was arrested. Finally, he never physically intervened, and never attempted to physically intervene, in the arrest of anyone.The local prosecutor found the charge baseless. The prosecutor stated it was clear Hoyland came out to inform officers of his wife's disability while recording the event. At best, Hoyland's actions were nothing more than a "fleeting interruption." The Appeals Court comes to the same conclusion.Having failed with the "it was obstruction" argument, the officers attempted to portray Holyand's arrest as a necessity for officer safety. The court finds this no more convincing.
Any fear of danger the officers felt due to Hoyland’s presence cannot justify an arrest for obstruction. McMenomy asserts that his mind raced in fear of an ambush when Hoyland emerged from the house. This fear, according to the officers, made Hoyland’s arrest reasonable after he refused to go back inside his home. But the officers are mistaken. However reasonable the command for Hoyland to go back inside may have been, his refusal to do so did not constitute obstruction. As Minnesota law makes abundantly clear, obstruction must be either physical obstruction or verbal conduct, such as fighting words, that has the effect of physically obstructing officers in the performance of their duties. Nowhere in Minnesota law does mere physical presence at a distance constitute obstruction. So arresting Hoyland for obstruction due to his continued presence in his doorway was unreasonable under state law.Even when we consider his verbal conduct, no reasonable officer could construe his shouting as “physically obstructing or interfering” in the officers’ performance of their duties. See Krawsky, 426 N.W.2d at 877. Admittedly, he was shouting criticisms at the officers. But “[i]n a democracy, public officials have no general privilege to avoid publicity and embarrassment by preventing public scrutiny of their actions.” See Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005). And none of Hoyland’s comments could be reasonably interpreted as rising above scrutiny to create a threat or a danger to police or to constitute obstruction.This allows Hoyland to continue pursuing his Fourth Amendment claim. The court moves on to the First Amendment. Again, the officers argued there was no stifling of Hoyland's First Amendment rights because a) he was obstructing officers, and b) even if he wasn't, he had no Constitutional right to record a traffic stop. The court spends barely any time discussing the officers' obstruction bullshit. Instead, it concentrates on the officers' misguided assertions, which are backed by a previous court decision that's not nearly as helpful as the officers believe it is.
[T]he officers argue that, under Colten v. Kentucky, Hoyland “had no constitutional right to observe a [felony traffic stop] or to engage the [arresting] officer[s] in conversation at that time.”[...]But the officers’ reliance on Colten is misplaced for three reasons. First, the location of the traffic stop in Colten—a busy highway—implicated important concerns of public safety. Here, the arrest took place in a residential area with no other vehicles or persons around. And Hoyland was not standing on the side of a highway observing a traffic stop, but rather standing in the doorway of his own home trying to tell the officers that his wife was handicapped…Here, Hoyland is not challenging the constitutionality of a statute; he is bringing a § 1983 claim against the officers for retaliating against him for exercising his First Amendment rights. Colten, on the other hand, was simply “refusing to move on after being directed to do so . . . without more.”[L]ater Supreme Court cases make it clear that the First Amendment protects verbal criticism directed at police officers. See, e.g., Hill, 482 U.S. at 461. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Id. at 462-63. Thus Hoyland’s communications were protected activity.The court goes on to point out Hoyland has a possibly legitimate argument the arrest was made to prevent him from exercising his First Amendment rights.
McMenomy’s deposition testimony clearly shows that the arrest decision was not made after Hoyland had ignored the initial order to go back inside. It was only after Hoyland had stood in the doorway shouting criticisms and messages about his wife’s physical disability that the arrest decision was made… The arrest decision was not made when Hoyland first disobeyed an order, but only after he had begun exercising his First Amendment rights.Because the charge was bogus and the officers had no probable cause for Hoyland's arrest, both his Constitutional claims will have to be faced by the government defendants. As the court concludes, immunity is a privilege, not a right, and should be treated as such by courts and those seeking to avail themselves of it.
Police officers have a tough job. They must confront dangerous situations and make difficult decisions in short time frames. This is why we offer the protection of qualified immunity—to insulate officers from the constant threat of litigation while serving and safeguarding their fellow citizens. But to receive that protection, we must find as a matter of law that the officers acted within the confines of the Constitution. They must avoid arresting persons without at least arguable probable cause. They must not take adverse actions against persons for exercising their First Amendment rights. Looking at the facts of this case, we cannot hold as a matter of law that the officers acted constitutionally.The court doesn't go so far as to establish a right to record police, but it does offer up enough precedential cases to make any arguments to the contrary unlikely to find sympathy with the judges. As for Hoyland, he at least has a chance to make his case at the lower level and receive some sort of compensation for an interaction with officers that began with them ordering him to stop filming and ended in a bogus arrest.
I tried loading the Windows version of Sonic Mania while my Steam account was offline. That's when Sonic Mania informed me, in no uncertain terms, that "Steam user must be logged in to play this game."Turns out, Sega has applied the much-malignedDenuvo copy-protection system to Sonic Mania's PC version—and this Denuvo implementation won't unlock the game for players so long as Steam is operating in "offline mode." Until the game receives an update, Sonic Mania fans hoping to play the PC version in an offline capacity are out of luck. (Your backup option, should you want to do something like board a plane, is to boot the game while connected to Wi-Fi, then disconnect from the Internet and leave the game running in the background until you're ready to play. It's not necessarily an ideal workaround.)Gamers immediately began complaining both that the DRM was keeping them from playing their legitimately purchased game and that the Steam store page for Sonic Mania was devoid of any notification of Denuvo or its online requirement in the system requirements page, or anywhere else for that matter. Somewhat oddly, a Steam account with the handle of "Sega Dev" responded to the complaints, saying the omission on the store page was a mistake. That mistake has been rectified and the store page now informs buyers of the Denuvo requirement. But that same account also informed Steam users that "Sonic Mania is intended to be played offline", and has promised to investigate the issue.Even stranger, the PR lead for the Sonic franchise went even further and practically begged for the public to complain to the company about Denuvo and the online requirement.
In particular, please do share your feedback on DRM or any issues you're having at the link above. Make your voices heard.— Aaron Webber (@RubyEclipse) August 29, 2017
"...encryption doesn't stop ISPs from knowing which internet-of-things devices their users have, nor does it stop them seeing when we use those devices. In the Princeton study, ISPs could track a user's sleep patterns by detecting when a sleep tracker was connecting to the internet. It also revealed that ISPs could identify when a home security camera detected movement and when someone was watching a live stream from their security camera."Similar concerns have been raised (and promptly ignored in most areas) regarding information collected from smart energy meters by your power utility, since power usage can similarly provide all manner of monetizeable insight into your daily behavior. The researchers do note that more sophisticated users could use a VPN to confuse their ISP, but the full study indicates there will be some impact on network performance that could be a problem on slower connections:
"The authors say there might be ways to cut down the snooping abilities of ISPs. One possible defence involves deliberately filling a network with small amounts of traffic. This could be done by running all your internet traffic through a VPN and then programming the VPN to record and play back that traffic even when the IOT device is not in use, making it tricky for ISPs to work out when a particular device is actually being used. However, this would probably slow down the network, making it a somewhat impractical defence against network observations."Aren't you glad Congress recently voted to kill consumer broadband privacy protections solely for the financial benefit of Comcast, AT&T, Verizon and Charter (Spectrum)? Those fairly basic rules required that ISPs be entirely transparent about what data they're collecting and who they're selling it to. The rules, proposed after Verizon was caught modifying user data packets to track online behavior (without telling anyone), also would have required customers opt in to more sensitive financial data collection. Without them, oversight of ISP data collection is sketchy at best, no matter what large ISPs and their friends claim.While the lack of ISP transparency as to what's being collected and sold is one problem, so too is the fact that most of these devices offer little to no insight or control over what kind of data and information they're transmitting. That leaves the onus entirely on the consumer to try and cobble together an imperfect array of technical solutions to minimize ISP snooping and protect themselves (often impossible for your average grandparent or Luddite), or to take the smarter path in the smart home era and resort to older, dumber technologies whenever and wherever possible.
Lip-reading CCTV software could soon be used to capture unsuspecting customer's private conversations about products and services as they browse in high street stores.Security experts say the technology will offer companies the chance to collect more "honest" market research but privacy campaigners have described the proposals as "creepy" and "completely irresponsible".That story from the Sunday Herald in Scotland focuses on the commercial "opportunities" this technology offers. It's easy to imagine the future scenarios as shop assistants are primed to descend upon people who speak favorably about goods on sale, or who express a wish for something that is not immediately visible to them. But even more troubling are the non-commercial uses, for example when applied to CCTV feeds supposedly for "security" purposes.How companies and law enforcement use CCTV+lip-reading software will presumably be subject to legislation, either existing or introduced specially. But given the lax standards for digital surveillance, and the apparent presumption by many state agencies that they can listen to anything they are able to grab, it would be naïve to think they won't deploy this technology as much as they can. In fact, they probably already have.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
In a complaint filed on Thursday in federal court in San Francisco, Atari said Nestle knowingly exploited the “Breakout” name, look and feel through social media and a video, hoping to leverage “the special place it holds among nostalgic Baby Boomers, Generation X, and even today’s Millennial and post-Millennial ’gamers.’”The commercial did this by encouraging customers to "breakout" and eat KitKat bars, while replacing all of the iconic imagery from the original game Breakout with Nestle imagery, such as replacing the blocks in the game with KitKat bars. For these sins, the lawsuit filed by Atari claims both that customers could be confused into thinking there was some association between the two companies and that the imagery Nestle used in the commercial constituted copyright infringement on the original game. Both claims stretch this writer's credulity quite thin.On the trademark claim, Atari goes to some lengths to detail the history of the game and the vaunted status the company once held in the industry. In doing this, it notes that it has held trademarks on varieties of the term Breakout for nearly forty years. The problem is that all of these trademarks are for goods and services that have nothing to do with the food or confection industries. To get around that, Atari itself admits it isn't really in the gaming business any longer, but rather in the licensing business. So, by using the term "breakout" in its ad campaign, Atari claims it has been harmed by Nestle's use of the term in that it wasn't allowed to license that term to the very same Nestle.
Atari’s IP licensing activities are responsible for a significant portion of its annual revenues. Revenues from its best-known games make up a significant portion of those revenues. Without the benefit of its licensing revenues, profits of Atari would be significantly lower. As an initial, straightforward matter, Nestlé has denied Atari the licensing fees it would have charged Nestlé for use of Atari’s intellectual property in the widely distributed KIT KAT “Breakout” campaign, had Atari agreed to such use.Sophistry in a trademark case? Gross. Nestle goes on to note that it has been harmed because now it won't have the opportunity to license other classic games like Asteroids and Centipede to the massive candy market. The problem is that this isn't how trademarks work. Certainly, had Nestle attempted to make an actual video game to market its KitKat bars and called it Breakout, Atari would have valid reason to go ballistic. This isn't what happened. Nestle made a commercial for candy. Atari does not sell candy, nor does it hold any trademarks for "breakout" for the candy industry.On the copyright side, the claims are even more laughable.
In at least one video advertisement, Nestlé’s ad begins with four actors – two young, two middle-aged, in keeping with Breakout’s multi-generational appeal – sitting on a couch playing a video game. The game is revealed to be Breakout, with the nominal and insignificant difference between the classic version and Nestlé’s unauthorized version being that the long, rectangular bricks players “break” in the former are replaced with long, rectangular bricks made of KIT KAT chocolate bars in the latter.Nestlé’s “Breakout” video advertisements depict imagery of the Breakout game which is covered and protected by Atari’s valid registered copyrights. The game simulation depicted in Nestlé’s video advertisement is substantially similar to the Breakout graphics covered by Atari’s valid registered copyrights.Here again, Atari seems to be confused what its intellectual property rights actually protect it against. The copyright for Breakout covers its specific expression. By Atari's own admission, Nestle transformed that expression to serve as an homage to the game while relating it to KitKat bars. On top of that, Nestle did not make a video game. They simply created images that looked like one. Calling this copyright infringement is akin to the NFL suing Mars for its "Want to get away" Snickers commercial that showed an NFL referee in the middle of a football game as if Mars was putting on a football event. That would rightly be called crazy. Claiming copyright here is the same thing.Too many lawsuits these days try to marry trademark and copyright infringement claims, trying to bolster one with the other. But this one from Atari is pretty special in its brave hilarity. Fortunately, Nestle is an organization with the resources to fight back against a once proud gamemaker that has since gone full on troll.
"This case and extradition should now be dismissed in the interests of justice."The government's illegal conduct has reached such an extreme level that we believe that no court should entertain an extradition proceeding so tainted with state sponsored abuse and violations of basic human rights."For years now, I've explained why the case against Dotcom has serious problems -- mainly in that it makes up elements of criminal activity that simply don't exist in the law. The fact that there was also illegal spying on Dotcom and his partners only raises more questions. Yet, so far, the courts don't seem very interested in dealing with any of that, preferring to smooth things over with a simple "but bad stuff happened, therefore he should be punished." It's one of the most extreme examples we've seen of what law professor Eric Goldman has called out concerning lawsuit about infringement online: the courts frequently ignore the actual law if they sense there was "too much infringement." The fact that the government also got some of its information through illegal spying may not be enough to counteract the massive gravitational pull of "but... but... infringement."
Xbox Live is experiencing some serious downtime at the moment, with many owners unable to play games or even sign in.Microsoft acknowledged that both core services and purchasing was impacted before service was restored somewhere around 1am. Multiplayer games were affected, including major titles like Overwatch and Destiny. This is to be expected for online gaming when the online service is down. Single-player games, however, could still be played by putting the Xbox in "offline mode."And that's great, except it's worth remembering that offline mode wasn't going to be a thing in Microsoft's initial plans. And, sure, five hours of being separated from a customer's legitimate purchases isn't a major travesty, but this outage demonstrates that even these minor inconveniences can be helpfully avoided by simply not requiring always online DRM. Had Microsoft had its way, paying customers would have been at best annoyed for several hours, unable to play the games they bought and certainly not being offered any recompense for their troubles.More importantly, this episode should highlight several things. First, this is Microsoft we're talking about, and they were down hard for several hours. Let's acknowledge that it could have been worse. What if the service were down for several days? Second, what if this wasn't Microsoft we were talking about, with all of its riches and resources, but a smaller entity unable to recover so quickly? How long would the service have been down, keeping paying, legitimate customers from their valid purchases? Third, all of this real and potential damage to legitimate customers had been achieved for what? The Playstation, as we've noted, doesn't have this requirement, yet it is making money hand over fist. What good would Microsoft's original plan have done for all of this potential damage?Those questions aside, Microsoft ought to be writing love letters to the fans that revolted against its always online plan. It's that backlash that helped keep this minor inconvenience for online gamers from being a full-blown PR nightmare.
According to a July 18 letter obtained by The Hollywood Reporter, the celebrity hot spot is threatening a lawsuit against the adorably named pet spa if the Cateau doesn't change the name of its business. Lawyers for the Andre Balazs-owned hotel warned Cateau, located in Toluca Lake neighborhood of L.A., that it could pursue claims related to trademark infringement, trademark dilution and unfair competition.Group 99, which controls Chateau's intellectual property, insists in the cease & desist letter that their hotel has spent almost a century building the iconic brand and doesn't want customers to mistakenly think the Hollywood hangout is venturing into kitty care and rescue.C'mon, meow. Concerns about public confusion are a stretch at best. Members of the public aren't going to see this pet boarder's name and assume the human hotel has gotten into the boarding business. Rather, they will assume that the owners of the boarder have playfully pun-ified its name while operating in a distinct marketplace. If the people behind the Cateau Marmont are guilty of anything at all, it's of delving into puns, the laziest form of comedy (which I love dearly).The fear of confusion on display by the human hotel is also belied by another punny player in the neighborhood.
Interestingly enough, as THR points out, the Chateau Marmont doesn’t seemed too concerned about a Beverly Grove dog spa similarly named Chateau Marmutt — a business established close to two decades ago.If anything, this should be a fight between Chateau Marmutt and Cateau Marmont, with no involvement for the human counterpart. Meanwhile, the Chateau has spotlighted its own lack of humor, which I will happily point out is a distinct trait for the humans to whom it purports to cater.
Although a warrant this broad would be disturbing in any administration, Internet users have every reason to be concerned in an administration led by a President who has shown intense intolerance for disagreement and a tendency to lash out with raw language and threats directed at political adversaries, and who has urged his supporters to attack protesters. The listing of all those who visited or interacted in any way with this web site could easily form the beginning of an “Enemies List” that would put Richard Nixon to shame.Our clients in the intervention are five anonymous Internet users who viewed the web site, either to learn more about the protests, to coordinate their own protest activities; one of our clients was also a journalist whose reasons for visiting the site included reporting remotely on the protests. The Does object to allowing federal prosecutors to put their names on a list of potential enemies of the Trump Administration who are to be visited by FBI agents or hauled in for questioning by federal prosecutors. Our argument is based on the First Amendment right to read anonymously — analogous to the right to speak anonymously that we have litigated in many other cases; that right is now broadly accepted as a basis to refuse to enforce discovery to identify online speakers without evidence that the speakers have done something wrong. The right to read anonymously has been addressed less often, but in drafting our papers on very short notice we were able to draw on an amicus brief we had filed ten years ago in the Maryland Court of Appeals.However, just a day after those filings, the DOJ itself admitted that perhaps the warrant was a step or two too far and has responded to DreamHost, admitting that the original warrant was too broad and asking to modify the warrant to make it more narrow. The DOJ insists that it is just looking for actual criminal behavior, not building a list of Trump haters.
The Warrant--like the criminal investigation--is singularly focused on criminal activity.It will not be used for any other purpose. Contrary to DreamHost's claims, the Warrant was notintended to be used, and will not be used, to "identify the political dissidents of the currentadministration[.]"... Nor will it be used to "chill[ ] free association and the right offree speech afforded by the Constitution." In fact, as discussed further below, after conducting acareful search and seizing the evidence within the scope of the Warrant, law enforcement will setaside any information that was produced by DreamHost but is outside the scope of the Warrant; itwill seal that information; and it will not revisit that information without a further court order.The DOJ then suggests that part of the problem was that it didn't quite realize just how much info DreamHost might have had on visitors to this site, and thus it didn't realize that it was actually requesting so much:
The government is acutely aware that criminal investigations involving electronic evidencepresent unique challenges. One of those challenges is that some of the evidence -- particularly thefull scope of the evidence -- will be hidden from the government's view unless and until thegovernment obtains a court order or search warrant. That is an important part of the history in thiscase because much of DreamHost's challenge to the Warrant is based on information that was notknown (and would not reasonably have been known) to the government when the Warrant wasapplied for and obtained. What the government did not know when it obtained the Warrant -- whatit could not have reasonably known -- was the extent of visitor data maintained by DreamHost thatextends beyond the government's singular focus in this case of investigating the planning,organization, and participation in the January 20, 2017 riot. The government has no interest inrecords relating to the 1.3 million lP addresses that are mentioned in DreamHost's numerous pressreleases and Opposition brief. The government's investigation is focused on the violencediscussed in the Affidavit.And, to make that even more clear, it agrees to amend the warrant:
Consistent with that focus, the government is asking this Court to entera new Attachment B to the Warrant, and remains committed to minimizing the information that isultimately seized for the government's criminal investigation.While I imagine many people won't be willing to give the DOJ the benefit of the doubt here, I think it's entirely possible (and even likely) that the request for so much info was due to confusion and bumbling agents, rather than a nefarious plan to build an enemies list. I still think that there are serious concerns to be had about the warrant -- and it sounds like DreamHost still isn't comfortable with things either:
Notably, the government has attempted to have a dialogue with DreamHost about thesematters. Regrettably, those attempts have proven unproductive because DreamHost maintains thatthe Warrant is improper and that the Court lacks jurisdiction to issue the Warrant... As recently as this past week, DreamHost told the government that it would provide noinformation about the Website without further legal process and--somewhat incompatibly--toldthe government that DreamHost would only discuss limiting the production of information calledfor by the Wanant if the government first withdrew the Warrant in its entiretyYou can see the amended warrant at the end of the DOJ's filing. It still feels like a fishing expedition, but it's clearly not nearly as broad as before, where it may have included basically all IP addresses of anyone visiting the site.
There were a total of 23 disclosures of information from the Australian Federal Police to enforcement agencies in other countries in that year. In addition to China, Australia handed over metadata to Taiwan, Hong Kong, Serbia, Switzerland, Solomon Islands, United Kingdom, New Zealand, Zimbabwe, Argentina, Slovenia, Canada, Germany, Singapore, Indonesia, the United States of America, Papua New Guinea, the Republic of Ireland, Netherlands, Spain, and France.China's the odd one here and it only makes the list of Australian data-sharing partners because Australia has a distinct interest in extraditing criminals from China for prosecution. A 2007 mutual assistance treaty laid the groundwork for the handover of Australians' metadata, but this appears to be the first time Australia has actually done so.The spokesperson for the Australian Attorney-General's office says this is perfectly fine. In fact, Australia has already handed over metadata to Hong Kong, so why not China? Everyone's rights are being looked out for by the Australian government… according to the Australian government. This is from AG George Brandis' office:
"Given the global nature of serious transnational and organised crime, effective international cooperation is critical. Any cooperation, including with China, is subject to safeguards to ensure compliance with our international human rights obligations."Adding a twist to this data-sharing arrangement is there might not have been any metadata to share in the first place. The government actually had to put a law in place demanding ISPs retain metadata for the government for an extended period of time… just in case the government decided it needed it. Left to their own devices, ISPs would have dumped the data as soon as practical (read: ran out of interested private partners). Now they're obliged to keep it… just in case Australia wants to hand it over to known humans rights violators like the Chinese government in exchange for extradition.There are other discomfiting details in the latest report. Last year, 33 authorizations were made to collect metadata on Australian journalists -- all of them coming from a single agency, the Western Australia Police. This low-key surveillance of journalists also comes courtesy of the same law changes that compelled ISPs to retain this metadata in the first place. As Taylor and Farrell report, the concessions made to pass the law limited the number of agencies with access to the data, but allowed law enforcement to target journalists -- provided they secure something called a "journalist information warrant," which is done in secret and allows the government to grab the information without the target being notified.Overall, the government accessed Australians' metadata (which may include web browsing history) thousands of times, mostly for banal reasons. Selling data retention to the public and hesitant legislators meant talking a lot about terrorism and child exploitation, but the numbers show those requests are far outnumbered by normal law enforcement work.
Of these requests, 57,166 were related to illicit drug offences, 25,245 requests were for homicide offences, and 4,454 requests were made to assist terrorism investigations.For an outlay of $66 million in metadata costs (paid to ISPs, reimbursing 80% of their compliance costs), the government netted 366 arrests in 2015-16. This raises the question of how often metadata is accessed just because it can be accessed or for purely speculative reasons.
That crash was into the rear of a Smart car driven by Harry Deshommes. While Hegele did not suffer any serious injuries, Deshommes had to have his spleen removed and suffered from a skull fracture, a traumatic brain injury, a broken left arm, a broken back, several broken ribs and a broken pelvis, according to CBS 12. Deshommes’ Smart car reportedly rolled several times after impact.Deputy Hegele was placed on unpaid leave after the accident. HOLD YOUR APPLAUSE.Well before that critical crash, the sheriff's office documented several traffic-related incidents in the deputy's career, starting early on, Internal Affairs records show.Let the record[s] show that Deputy Hegele:
- backed into a parked cruiser- fell asleep at the wheel, hitting a median and causing more than $1000 worth of damage- rear-ended a car at an intersection, causing $4000 worth of damage- rear-ended yet another car, causing $12,000 worth of damageAnd, finally, the coup de grace of Hegele's super-shitty law enforcement driving career (not including the event above):
Failed to report a crash until hours after it happened and once he had replaced the car’s flat tires. Investigators believe Hegele attempted to respond to a robbery call and hit either a curb or a sidewalk that slashed two of his tires. The report said Hegele called to let dispatch know he was having issues with his vehicle and to put him out of service, but did not say what happened. Then, he called another deputy to bring him spare tires, went to a restaurant for dinner and then called a sergeant nearly two hours after the incident happened to report the damage.In most of these cases, Hegele only received a written reprimand. In a couple of them, he was suspended without pay -- for a total of two days between both incidents. Hegle has lost his driving privileges twice, for a total of 120 days.But there's even more:
Other than traffic crashes, Hegele has been cited numerous times for “indifference to policies and procedures.”In 2012, Internal Affairs investigators said in the first three months of the year Hegele had 72 calls for service he responded to. Of those, 52 cases required log entries by the deputies to document the case to go along with a case number. Hegele only submitted nine, according to records.There was a chance to send Hegele packing before he did any more damage. He failed a vehicle inspection for leaving his personal weapon in the patrol car, wedged between the seat and the console with a bullet missing. The weapon was "clearly visible" from outside the vehicle. Hegele couldn't explain why a bullet was missing but said he put the gun there to keep it away from his 4-year-old daughter while he was moving. Also inside the vehicle? A signed Miranda rights waiver card, wholly separated from the investigation file it apparently went with.Instead of being fired, the department gave Hegele -- who at that point had already been involved in five car accidents and multiple Internal Affairs investigations -- a "last chance:" 15 days suspension and a transfer. The only upside of this "last chance" was the agreement revoked Hegele's option to challenge any future for-cause firings, which is what should follow his latest accident.Hegele is now on trial for reckless driving, which is extremely lenient considering the number of charges he could face for his actions. Undoubtedly, he will be leaving behind a bunch of frustrated, angry co-workers who likely cannot understand why someone so toxic was allowed to pollute their ranks for so long.But if anything's going to prevent future Hegeles, it's his agency realizing it's far too lax when it comes to handing out punishment for misconduct. Hegele managed to rack up several thousand dollars-worth of damages in his career, along with whatever collateral damage accrued from his sloppy habits and policework. In return, he received some stern paper-waving and two unpaid days off. Calling that "absurd" makes the word "absurd" as meaningless as "literally." It's horrendous and inexcusable. Hegele may be on his way out, but if Palm Beach County Sheriff's Department wants to be taken seriously, it will be sending a lot of supervisors and officials packing as well.
First of all, Google is big, in fact, the current estimate is that Google is serving up between 1.5 to 2 trillion searches per year.That amounts to 125 billion searches per month.Google also makes a lot of money. In the last quarter, it made a stunning $26 billion, of which $4.1 billion was profit.This is where most publications stop when griping about Google's billions in comparison to their declining net worths. Assuming the equation is zero sum is only part of the problem. The rest of it's the math they don't feel like doing. But Baekdal follows through. Not all of this profit is related to Google's searches. Alphabet -- Google's parent company -- has a lot of irons in the internet fire, some of them actually profitable. Stripping everything out but search revenue, we end up with this:
Google Search has a revenue of $4.65 billion per month, of which about $700 million (not billion) is profit per month.Smaller, but still hundreds of millions more in profit than most papers make. Again, these are dollar signs in publications' eyes, each of them apparently believing a revenue-"sharing" plan forcibly applied to Google with net thousands of dollars in new revenue for each participant.Not so:
Now, we can take the $700 million in profit and divide that by the 125 billion searches to get the profit per search query.The result is that Google makes... $0.0056 per search query.That's almost nothing, even for a publication receiving millions of hits via Google every month. As Baekdal does the math, the revenue per month is obviously nothing compared to what publications believe it should be. Even with every search monetized by Google's ad placement (which nets higher revenue for Google and more to "share" with publications), the total payout for a site receiving 3 million hits per month (Baekdal uses Denmark's largest paper as an example) would be between $930-1000/month. Not exactly business model-saving $$$. And not every search is monetized, so the payout would likely be even less.Nate Hoffelder of the Digital Reader points out Baekdal's math is slightly off, thanks to a misconception about how the snippet tax would be collected.
Baekdal made a couple goofs in his calculations (he thought Google would be paying for clicks rather than for impressions)...But even so, there's no money there:
Google is making under 4 cents per search, and turning a profit of around a half a cent per search.Of course, that is an average across all of Google's search results, and it includes search terms and even whole verticals which are not monetized (Google News, for example). And that is also a global average and not based on EU revenues, so it is not 100% applicable. (And those calculations are based on a bunch of unsupported assumptions.)Leaving those caveats aside, the point that matters is that news publishers want Google to pay for the use of their links and snippets. This means that Google would need to take that 3.7 cents and divide it between all of the relevant links returned with each click of the search button (after taking a cut for itself).That money is not going to go nearly as far as the news publishers think.Would having this math in front them cause publishers to rethink their plans to divert Google's "billions" into their own pockets? Probably not. Not understanding how this all actually works is extremely helpful when demanding a billion-dollar tech company start handing over cash for directing more traffic to the publications' sites. The very premise is beyond stupid, but it gets even more stupid when each publisher acts like the biggest cut of an apparently minuscule payout won't have to be shared with every other publisher whose sites end up in the same search results.If these publications are dying, it's not because of Google. And they apparently have enough cash flow to pay lawyers and lobbyists to keep pushing local governments to craft anti-internet legislation on their behalf.
"Home entertainment is really starting to add up. Want to watch “The Crown,” “The Handmaid's Tale,” “Transparent,” “Game of Thrones” and “Homeland”? Prepare to drop $51 a month — minimum. And that number doesn't even include your Internet package or basic options such as Food Network, Travel Channel and Syfy.And just when we thought we'd reached maximum capacity, in September, CBS will resurrect “Star Trek” for a new series called “Discovery.” Fans rejoiced at the announcement — they'd been without a “Trek” series for 12 years — until they made a rude discovery of their own: The new show would only be available on the CBS All Access app. That's $5.99 a month to basically watch one show. Absolutely nobody is signing up for the “NCIS” reruns. So now we're at $57 a month.So, several things. One, $57 a month is still significantly less money that what many people pay for cable. Two, writers like this ignore a number of obvious realities that can lower your costs further, including the fact that countless people share streaming service passwords (something most streaming companies don't care about because they see it as free advertising). You also need to factor in things like over the air antennas (and the rising number of solutions that let you record this content to DVR), which provide additional options for less money -- or free.Writers like this also hysterically like to avoid so much as mentioning piracy. Too many writers bizarrely act as if you're not allowed to even acknowledge piracy exists because it's naughty. But if you're "analyzing" how much it costs for an ordinary consumer to get TV content and you're not factoring in piracy, you're missing a fairly massive part of the overall picture. It doesn't really matter if you or your publisher don't like it, or don't think people should be doing it. It's happening, it's part of the overall cost-saving picture, and it's something companies have to compete with. Yet it's never even mentioned in these reports.That said, journalists pushing the "if I buy everything in the store it gets expensive" narrative are missing the most important point: actual consumers repeatedly say cord cutting saves them significant sums of money each and every month. And if any of these writers had actually bothered to, say, talk to actual cord cutters, they would tell them the same thing.Every time a story like this pops up I enjoy heading over to Reddit where users quickly point out how cord cutting is saving them plenty of money. Why? Because it provides something most traditional cable providers aren't willing to: flexibility and choice. With cord cutting, the end user gets to decide how to best balance their viewing options to build a content package that works for them and their budget. That's in contrast to your cable provider, who'll consistently pay empty lip service to choice and flexibility, right before it raises both your cable bill and set top box rental fee.Yet somehow the reality that consumers are truly saving money escapes these pearl-clutching authors. Like in this recent story at Wired pushing the same, stale narrative. One user at Reddit put their objection to these reports rather succinctly:
"I don't know why every article like this dives into recreating cable, and then laments that it's not that much cheaper than cable. He's way more concerned with watching channels than watching shows or entertainment."Look, if you really like paying a significant sum of money for 500 channels to a company with a worse customer service rating than the IRS nobody's stopping you. In fact, if you truly need to access every shred of programming imaginable and have oodles of disposable income, cable remains your best bet. But the idea that cord cutting is somehow "failing" just because it's not good at mirroring the abysmal value presented by the traditional cable bundle makes no coherent sense. At the very least, the next time you proudly declare that cord cutting doesn't save consumers money -- perhaps talk to some actual consumers first?
What explains this shift? One factor appears to be the success of various professional groups in convincing the government to tailor regulation to their needs, for instance by lobbying for occupational licensing. Jason Furman, then the chair of the Council of Economic Advisors, observed in 2015 that the share of the American workforce covered by state licensing laws grew from less than 5% in the 1950s to 25% by 2008, arguing that this deterred new competition.The proliferation of occupational licensing might be seen as harmful overregulation. Other sectors are plagued by the opposite. Jeffrey Zhang, an economist at the Federal Reserve, argues that banking deregulation in the 1990s led to rapid bank concentration alongside “sub-optimally higher levels of risk-taking”. As a result, the salaries of senior bank employees grew rapidly. Zhang concludes that the rent-seeking enabled by financial deregulation played a sizeable role in the growth of income inequality: bankers were able to skew the system in their favour, to the detriment of everybody else.Indeed, we see this in areas that we cover as well. Certainly it seems like letting the big cable and telco companies run free for a decade decreased competition, lowered the quality of service (massively) and allowed those companies to create massive monopoly rents for themselves. But in many other industries, we've pointed out the problems with excessive occupational licensing. I know not everyone agrees, but we think the rise of car hailing services and home sharing like Airbnb has been quite revolutionary (even if companies like Uber may have been run by some awful people). Similarly, we've discussed repeatedly how excess regulations in the drone space have really held back what could be a huge area of innovation.The Economist article suggests that the ability of industries to steer regulations in a way they want is a big part of the issue:
The success of such lobbying depends on the government's susceptibility. This does not appear to be in short supply in America. James E. Bessen, an economist at Boston University,links high profits through regulatory advantages to political factors including lobbying and campaign spending. The work of other economists reinforces his observation. Jeffrey R. Brown and Jiekun Huang, two researchers writing for the National Bureau of Economic Research, use data> from White House visitor logs during the Obama administration to show that corporate executives' meetings with White House staff were associated with a bump in their company stock price, more government contracts and positive regulatory decisions. Firms that had better access to the Obama White House also experienced a large drop in stock prices when the 2016 election result was announced.In the tech world, this is unfortunate. It used to be that tech companies didn't need to have a presence in DC, because they could just innovate, rather than having to deal constantly with policy pressure. But, nowadays that's increasingly difficult -- and not necessarily because everyone else is lobbying -- but rather because the political landscape has become something of a shakedown game. As we've discussed in the past, while many outside of DC view lobbyists as making all of this happen, those involved suggest the roles are reversed here. Politicians -- desperate to raise campaign cash -- are often the ones reaching out to companies and basically threatening them with certain regulations if they don't decide to step up and donate.So what's the end result here? That's... not clear. Unfortunately, it appears that crony capitalism is on the rise, and with it, more and more unproductive entrepreneurship. The real problem, as James and I discussed in our podcast, is that this is unsustainable, and most likely will mean growing productive entrepreneurship happening elsewhere (and we're already seeing some evidence of that today). There certainly doesn't seem to be any real concerted effort to move away from unproductive entrepreneurship in the US -- but perhaps by making more people aware of it, people will start to recognize how big a problem it truly is.
Called the Technological Incarceration Project, the idea is to make not so much an internet of things as an internet of incarceration.Professor Hunter's team is researching an advanced form of home detention, using artificial intelligence, machine-learning algorithms and lightweight electronic sensors to monitor convicted offenders on a 24-hour basis.The idea is to go beyond today's electronic tagging systems, which provide a relatively crude and sometimes circumventable form of surveillance, to one that is pervasive, intelligent -- and shockingly painful:
Under his team's proposal, offenders would be fitted with an electronic bracelet or anklet capable of delivering an incapacitating shock if an algorithm detects that a new crime or violation is about to be committed.That assessment would be made by a combination of biometric factors, such as voice recognition and facial analysis.Leaving aside the obvious and important issue of how reliable the algorithms would be in judging when a violation was about to take place, there are a couple of other aspects of this approach worth noting. One is that it shifts the costs of incarceration from the state to the offender, who ends up paying for his or her upkeep in the virtual prison. That would obviously appeal to those who are concerned about the mounting cost to taxpayers of running expensive prisons. The virtual prison would also allow offenders to remain with their family, and thus offers the hope that they might be re-integrated into society more easily than when isolated in an unnatural prison setting. Irrespective of any possible financial benefits, that has to be a good reason to explore the option further.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
Trouble continues for HBO as another episode of the popular Game of Thrones series has just leaked online, days ahead of the official premiere. Copies of the sixth episode of the current season, titled ‘Death is the Enemy,’ are currently circulating on various streaming portals, direct download, and torrent sites.At the moment it’s not confirmed how the leak came about but some suggest that it was leaked by HBO itself in Spain. Several people have posted screenshots and videos that suggest it was made public by HBO unintentionally.With no counter-narrative yet from HBO, which you'll recall loves to scream about hacks and piracy, the accidental leak from HBO is the only explanation on offer as of the time of this writing. And, look, mistakes like this happen. The point of this post isn't to point the finger and laugh at HBO for accidentally leaking an episode itself.No, the point is that these leaks just don't matter. The show continues to rack up the same astounding viewership numbers, leaks and all. It's wildly successful. It has been spun off into board games and all manner of merchandise. It's to the point that nobody batted an eye when HBO refused to pay the hackers' ransom to not release the episodes early. There would be no point. Hell, when the first four episodes of season five of the show were leaked early, that season broke the show's viewership records.So chill, HBO. Leaks from hackers, leaks from distributors, and leaks from your own offices aren't going to bring the piracy dragons to your doors to destroy your keep.
"We've got this unbelievably passionate base of Disney consumers worldwide that we've never had the opportunity to connect with directly other than through the parks,” Iger said. “It's high time we got into the business to accomplish that.”Iger acknowledged that the decision to act was spurred by the disruption in the traditional TV eco-system that has been rocking ESPN for the past few years. But Disney's blue-chip brands give them a leg up in taking a radical new approach to reaching consumers.“It's not just a defensive movie, it's an offensive move,” Iger said.Granted it's not really playing offense when you only react after worries about cord cutting and ratings slides causes a $22 billion valuation hit in just a few days, something Disney experienced last year. Still, it's good to see Disney pull its head out of the sand and embrace the idea of giving consumers what they want, even if the move is painfully belated and under-cooked. The problem for ESPN specifically, as many have been quick to point out, is that the company is still stuck between a rock and a hard place in terms of navigating the transition to streaming -- even if it does everything right (which it won't).There's plenty of reasons for that, the biggest being that streaming simply can't be as profitable as the long-standing practice of forcing cable TV customers on to bloated bundles filled with channels (like ESPN) that they may not want. ESPN currently makes $7.21 for each cable TV subscriber, many of which pay for ESPN begrudgingly. One survey found that 56% of ESPN viewers would ditch the channel if it meant saving that money off of their monthly bill. Fear of losing those customers was one of the reason ESPN sued Verizon when the company tried to take ESPN out of its core TV bundle.And while ESPN may now be technically doing the right thing in finally offering a direct-to-consumer streaming product, such an offering will only aid to expedite viewer defections, while ESPN's sports licensing costs remain the same:
"A streaming service, while it might attract sports fans who have cut the cord, won't solve ESPN's profit problems. Instead it will exacerbate them. Why? Because ESPN will continue to lose the millions upon millions of cable subscribers who pay for it but never watch it. Losing $7.21 from each non-watcher is going to be a revenue killer. There is no possible way the universe of sports fans who want ESPN can make up that revenue, even if they're charged more for a streaming service."Traditionally, many cable and broadcast companies have tried to give the impression of adaptation by launching a streaming service, then saddling it with all manner of caveats to prevent existing, traditional cable TV customers from downgrading to the cheaper, more flexible streaming option. This really never works, but it looks like the path Iger and Disney are going to follow when it comes to ESPN's latest streaming venture:
"To make matters worse, Disney appears to be planning a streaming service that even the most rabid sports fan will be reluctant to pay for. All the good stuff — big-time college football, professional basketball, the Monday night National Football League game — will remain exclusively on ESPN's cable channels. The streaming service will get, well, other things. It's pretty clear that Iger is still trying to protect Disney's legacy cable business, and that his move to the internet is not exactly a wholehearted embrace."In other words, ESPN's epiphany and transition isn't quite as profound as many are suggesting, and ESPN still somehow believes it can control the rate of evolution; a fool's errand. Many industry insiders also have told me over the years that ESPN's contracts with many cable providers state that should ESPN offer its own streaming services, cable providers will no longer be bound by restrictions forcing them to include ESPN in their core lineups, which will only accelerate the number of skinny bundle options without ESPN.It's a damned if you do and damned if you don't scenario for ESPN, and even if ESPN does all the right things here and offers a truly compelling streaming platform customers really enjoy -- there's simply no getting around the fact that this transition is still going to really hurt.
YouTube is facing criticism after a new artificial intelligence program monitoring "extremist" content began flagging and removing masses of videos and blocking channels that document war crimes in the Middle East.Middle East Eye, the monitoring organisation Airwars and the open-source investigations site Bellingcat are among a number of sites that have had videos removed for breaching YouTube's Community Guidelines.This comes just days after YouTube announced it was expanding its program to remove "terror content" from its platform -- including better "accuracy." Oops.Again, there are no easy answers here. You can certainly understand why no platform wants to host actual terrorism propaganda. And platforms should have the right to host or decline to host whatever content they want. The real issue is that we have more and more people -- including politicians -- demanding that these platforms must regulate, filter and moderate the content on their platform to remove "bad" speech. But in the over 4 years I've been asking this question since that last time we wrote about the shut down of the channel documenting atrocities, no one's explained to me how these platforms can distinguish videos celebrating atrocities from those documenting atrocities. And this gets even more complicated when you realize: sometimes those are the same videos. And sometimes, letting terrorists or others post the evidence of what they're doing, people are better able to stop that activity.There is plenty of "bad" content out there, but the kneejerk reaction that we need to censor it and take it down ignores how frequently that is likely to backfire -- as it clearly did in this case.
A group of Twitter users will be indicted in Saudi Arabia on charges of harming public order for threatening the "safety and moderate ideology of society" through extremism, according to a statement on state news agency SPA.The country's chief prosecutor summoned the Twitter users on Sunday, the statement said, without naming them or specifying how many were accused.The substance of the offending tweets can only be speculated about. Presumably, they violated the kingdom's self-image and/or that of the prevailing religion. More statements were made by officials, but none of them offered clarity on the tweets' content. Instead, they were contradictory statements using the Saudi version of "We're big supporters of free speech, but.."
In a separate statement, Public Prosecutor Sheikh Saud bin Abdullah al-Muajab said he respected freedom of opinion but asserted his office's power to pursue cases against those who promote hatred or sectarianism, or mislead public opinion."Misleading public opinion" becomes a much vaguer complaint when the government defines what the public's opinion should be and enforces it with dissent-crushing laws. There's no church/state separation at play either, so religious leaders are pretty much political leaders, and "misleading public opinion" could be nothing more than a disagreement over interpretations of a religious text. In most countries, the worst that might happen is a ruined Thanksgiving dinner. Over there, it's jail time and a possible beating.In an absurd twist, Saudi Arabia will host 2020's G20 summit -- an annual gathering of world leaders, most of which hail from a freer world. Because of this, some leaders will be hesitant to condemn the Saudi kingdom for its continued oppression of speech. If things don't change tremendously over the next few years, participating in the G20 summit will amount to tacit approval of the Saudi government's abuses and will legitimize ongoing censorship.
The @YesYoureRacist account began tweeting pictures of demonstrators on Saturday, asking, "If you recognize any of the Nazis marching in #Charlottesville, send me their names/profiles and I'll make them famous."It's been credited with outing a University of Nevada student, who acknowledges attending a rally in Charlottesville Friday night but maintains he is not a racist.That student, of course, then went on to say that he was only attending the rally to preserve a statue of Robert E. Lee because he believes "the replacement of the statue will be the slow replacement of white heritage within the United States", which, you know... racist. If you've seen the now famous photos of the white supremacists marching, this student is the one you've seen screaming while wild-eyed. That's notable for a very specific reason: the people at these types of rallies used to wear hoods over their heads. And for good reason, as they didn't want the wider public to be able to identify them alongside their detestable beliefs.But not so in Charlottesville. Instead, the ralliers marched with their faces in full view of the public, allowing the man behind @YesYoureRacist to retweet the photos to his thousands of followers, identify them by name, find out where they go to school and/or work, and then contact those places to inform them they have a racist in their midst thus allowing them to take action if they choose. None of this, by the way, should be confused with doxxing, the process by which jerks on Twitter detail personal information from those that are trying to keep personal information secret. No, these protesters marched proudly in public, splashing their easily-identifiable faces all over the newswire. @YesYoureRacist, through speech and expression, is now simply making them even more famous.This isn't to say that all of this will go on without a hitch. It won't. Already there have been mistakes made in identifying some involved in the white supremacist marches. One man was misidentified when followers of @YesYoureRacist decided that passing resemblances without any further checking were enough to vilify a man who was not at the rally, is not a white supremacist, and in fact runs a laboratory dedicated to helping people. Because extremism is everywhere these days, this man was threatened to the point of his deciding his home was no longer safe.But that is a failure of a good idea gone too far, not of the idea of supercharging the fame of horrible people itself being bad. What is needed there is better speech and sleuthing, not an end to it. Free speech and expression gets the messiest in these sorts of endeavors, after all, and those mistakes don't nullify the overall good being done. As Ken "Popehat" White points out in a useful tweetstorm more speech is good, but so is a careful and proportional response:
So, identifying people and contacting their employer to complain is "more speech." I'm not opposed in all circumstances. /1— FireAndFuryPopehat (@Popehat) August 15, 2017
But: it's not inherently moral any more than inherently immoral. It depends on the people who participate and their conduct. /2— FireAndFuryPopehat (@Popehat) August 15, 2017
/3 For instance, if you suck at it and get the wrong person, or promote people who suck at it, you're morally responsible for the result.— FireAndFuryPopehat (@Popehat) August 15, 2017
/5 Second, whatever moral argument there is for calling out, there's none for harassing family and friends of targets. Fuck you if you do it— FireAndFuryPopehat (@Popehat) August 15, 2017
On August 29 2014, Hall filed the instant action against Lund, Jessop, and Dunk for intentional infliction of emotional distress, libel, false light invasion of privacy, and invasion of privacy. In addition to those named or identified in the previous harassment action, Hall named as a defendant derHoaxster@gmail.com (derHoaxster), and alleged that derHoaxster had “published multiple statements disparaging Plaintiff as dishonest in his law practice and in his personal life.” Hall also named Yahoo as a defendant, based on allegations that Yahoo had published or republished threatening and defamatory statements made by Lund, Jessop, Dunk, and derHoaxster.Yahoo, naturally, claimed it had done no such thing. It also pointed out postings by third parties were the third parties' problem, not Yahoo's. Hall, however, argued Yahoo could be proven to be responsible for the supposed republished content. The court humored him. Hall did not fail to disappoint.
On July 17, 2015, Hall filed a first amended complaint (FAC) that included the same causes of action alleged in his initial complaint as well as a new fifth cause of action against Yahoo for intentional interference with contract. In the new cause of action, Hall alleged that Yahoo had flooded his America Online (AOL) email account with more than 2000 emails denigrating AOL’s services. Hall’s FAC also alleged that Yahoo was not shielded by the CDA because Yahoo had failed to identify the users of the screen names who had posted defamatory statements about him, and that Yahoo itself was the “content provider” of those statements.This was Hall's attempt to peel back Yahoo's Section 230 immunity. It's an interesting theory -- Yahoo's failure to identify strips it of immunity. It's also one without any legal basis. This amended complaint didn't do much for Hall. Yahoo responded with one of its own under California's anti-SLAPP law. In support of its motion, Yahoo submitted an affidavit stating it did not create any of the content in its forums, bulletin boards, chatrooms, etc.Hall simply doubled down.
Hall opposed the demurrer and anti-SLAPP motion, arguing that Yahoo was not shielded from liability under the CDA because it had not provided, in response to Hall’s discovery requests, telephone numbers for the users of the screen names “pddunk@yahoo.com” and “derHoaxster@yahoo.com.”The anti-SLAPP motion was granted and Hall appealed. The appeals court takes particular interest in Hall's bizarre Section 230 theories.
Hall’s argument that Yahoo was required to identify the persons who posted the objectionable content by providing the names, addresses, telephone numbers, or other identifying information for such persons is legally unsupported. The CDA contains no such requirement, and Hall cites no authority that construes the statute to impose such a requirement. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790 (Delfino), a case on which Hall relies, undermines rather than supports his position. The court in Delfino concluded that because “there was no evidence that Agilent [the interactive computer service provider] played any role whatsoever in ‘the creation or development’ of” the objectionable content that was the subject of the action, it clearly satisfied the third element required for a finding of CDA immunity. (Id. at p. 807.) Here, there was undisputed evidence that Yahoo was not responsible, in whole or in part, for the content of the emails and posts that are the subject of Hall’s claims. The trial court accordingly did not err by granting the anti-SLAPP motion.As the court points out earlier in the decision, Yahoo's declaration that it did not post or publish the allegedly defamatory content went uncontested by Hall. Instead, Hall picked his misunderstanding of Section 230 as the hill to die on. On top of having his lawsuit dismissed (both for failure to state a claim and under California's anti-SLAPP law), Hall will now be paying Yahoo's legal cost.The decision here is another reminder of two things:1. There is still no federal anti-SLAPP law, something that would greatly discourage baseless lawsuits like these from being brought in federal court. It would also discourage the same behavior in state courts, which is where this one was filed.2. Section 230 provides important protections for service providers who are almost always the easiest party to find and serve, even if they've done nothing else but provide a platform for people to speak their minds.
The platform has been established with funds from the Danish Industry Foundation and it combines basic research with industrial innovation in a completely new way, ensuring that industry and the universities get greater benefit from each other's knowledge and technology.University researchers and companies collaborate across the board to create fundamental new knowledge that is constantly made available to everyone -- and which nobody may patent. On the contrary, everyone is subsequently freely able to use the knowledge to develop and patent their own unique products.According to Aarhus University, Danish industry loves it:
The idea of collaborating in such a patent-free zone has aroused enormous interest in industry and among companies that otherwise use considerable resources on protecting their intellectual property rights.The attraction seems to be that an open platform will make it easier for companies -- particularly smaller ones -- to gain access to innovative technologies at an early stage, without needing to worry about patents and licensing. Aarhus University hopes that the approach will also allow researchers to take greater risks with their work, rather than sticking with safer, less ambitious projects, as has happened in the past. The first example is already up and running. It is called SPOMAN (Smart Polymer Materials and Nano-Composites), and has a project page hosted on the Open Science Framework site:
In this project, you will find minutes from the Open Science meetings, current status of the initiative, general presentations etc. More importantly, this project has links to the individual activities and research projects under Open Science. In these projects, the research progress, lab journals and more are found.Combined with the no-patent promise, you don't get much more open than that.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
In March 2007, William Price pled guilty in the Western District of Missouri to two offenses involving production and receipt of child pornography. In exchange for a favorable sentencing recommendation from the government, Price entered into a plea agreement that included a waiver of his rights under FOIA to records connected to his case. He was sentenced to fifty years’ imprisonment and is currently incarcerated.[...]Specifically, Price agreed towaive[] all of his rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case including, without limitation, any records that may be sought under the Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act of 1974, 5 U.S.C. § 552a.The court notes FOIA waivers are neither "common nor unheard of."
A recent study of the various kinds of waivers included in plea agreements found that, in 2009, 25% of robbery plea agreements and 23% of arson plea agreements contained a FOIA waiver.Price did end up submitting an FOIA in 2011. But it wasn't directly related to the case. He was seeking documents related to his ex-wife, from whom he'd obtained a privacy waiver. The FBI denied the request, claiming Price was attempting to indirectly circumvent his waiver agreement.The government also claimed the FOIA lawsuit Price filed pro se wasn't actually an FOIA lawsuit. The court disagrees.
The government argues that this suit is an attempt by Price to challenge his conviction or sentence that turns on whether his waiver was knowing, voluntary, and intelligent. We see it differently. This is a FOIA suit in which we are asked to determine de novo whether the FBI lawfully withheld records that Price requested.The court doesn't have much sympathy for the plaintiff's argument that the FBI's denial creates another FOIA exemption, one that isn't statutorily-supported. The court points out it does nothing of the sort. The FBI is only denying records to Price, but those records can still be accessed by another person. As such, they are not covered by a phantom exemption, but rather Price himself is forbidden from accessing these records via a contract he signed with the government.As the court points out, allowing Price to access these documents despite his plea agreement with the government would result in FOIA chaos. When FOIA lawsuit settlements are obtained, requesters often agree to the receipt of certain documents, rather than everything they've sought. The agreement states they cannot pursue the denied documents or engage in further litigation over these denied documents. If contracts like these aren't honored, the government would never offer to settle FOIA litigation because plaintiffs could just file new requests for denied documents and engage in further litigation despite having agreed explicitly to refrain from further requests and lawsuits. It's a good point, albeit one that ignores the fact most plaintiffs don't have unlimited funds for FOIA litigation, whereas the government's litigation funding will never dry up, no matter how many litigants it does battle with.But the court does have a problem with FOIA waivers in general. As the court sees it, the waiver serves no purpose in terms of adjudicating criminal defendants.
More fundamentally, in responding to Price’s public policy-based challenge, the government has not pointed us to any legitimate criminal-justice interest served by including a waiver of FOIA rights in Price’s plea agreement. Amicus argues, and all parties agree, that a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking [a plea] bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of [a defendant’s] cooperation with the authorities...”[...]Indeed, all the government says is that “the public interest in the efficient and effective prosecution and conviction of sex offenders . . . is considerable and outweighs whatever public interest may exist in the [contents of the] investigation and prosecution files of [a] single defendant.” Appellee Br. 36. But how? Certainly litigating FOIA disputes in court can be burdensome for the parties involved, as the government notes, see id. at 46, but in what way do FOIA waivers actually support “efficient and effective prosecution”? The government leaves us to guess.The government's first reason for securing FOIA waivers? The people we lock up get bored and make us do extra work.
When pressed at oral argument about what legitimate criminal-justice purpose FOIA waivers might serve, the government simply responded: “Prisoners frankly have a lot of time on their hands and they write a lot of FOIA requests, and it is a burden to agencies especially like the FBI . . . .”The government also claimed a lack of FOIA waivers would undercut the "finality" of agreed-to plea deals. The court finds this argument ridiculous.
[I]n another point gone missing from the government’s brief and raised by its counsel only at oral argument, FOIA waivers may occasionally promote the government’s legitimate interest in finality. But as best we can tell, FOIA waivers promote finality only by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality.The court also points out the government didn't raise either of these arguments in its brief. In general, appeals courts are extremely uninterested in new legal arguments raised at the last minute, especially when years of litigation have come and gone before they even view the cases.But it goes further than that. The court says FOIA is a vehicle of government accountability that must remain open to criminal defendants. In some cases, it's the only way for defendants to gain access to documents relevant to their prosecution.
FOIA thus provides an important vehicle for vindicating significant rights—and for keeping prosecutors honest. Indeed, in some cases it provides the only vehicle. And the government, at least in this case, has not told or shown us how taking that tool away from criminal defendants serves the interests of justice compared to the harms those waivers cause.The court sums up its decision by calling out the government for attempting to further tilt an already-slanted legal playing field.
[T]his uneven power dynamic lurks in the background in cases like these and calls for a careful consideration of Price’s claim. Here Price has shown, through real-world examples, that enforcing a FOIA waiver would make it harder for litigants in his position to discover potentially exculpatory information or material supporting an ineffective-assistance-of-counsel claim. This is especially true given that, “with rare exceptions, only the waivor” in such cases “has the requisite knowledge and interest to lodge a FOIA request in the first place.” Amicus Br. 27. On the other side of the scale, the government has offered us nothing more than the unsupported blanket assertion that FOIA waivers assist in effective and efficient prosecution, without any support or explanation how. Under these particular circumstances, and based on the briefing in this case, we have little trouble in concluding that the public interest in enforcing Price’s waiver is outweighed by the harm to public policy that enforcement would cause.But even as it strips away the government's blanket assertions, the court reminds readers (and potential litigants) that it's not offering a blanket of its own.
To be clear, we do not hold that FOIA waivers in plea agreements are always unenforceable. We simply hold that the government may not invoke Price’s FOIA waiver as a basis for denying him access to the records he requests because, in this case, the government has given us no adequate rationale for enforcing this waiver in light of the public-policy harms Price has identified. That’s it.So, FOIA waivers will remain part of plea agreements. But this instructive ruling should give defendants some guidance on how to better challenge these waivers.
The Paris Olympic bid committee will consider esports for inclusion as a medal event in the 2024 Olympic Games, according to Tony Estanguet, the committee’s co-president. Estanguet told the Associated Press that talks have been scheduled with the International Olympic Committee and with esports representatives “to better understand what the process is and why it is such a success.”Estanguet also had some thoughts for esports skeptics out there: “We have to look at it because we can’t say, ‘It’s not us. It’s not about Olympics.’ The youth, yes they are interested in esport and this kind of thing. Let’s look at it. Let’s meet them. Let’s try if we can find some bridges.”If you might be thinking that this consideration will meet the same swift death past niche competitions have met at Mount Olympics -- competitive poker for instance -- it's worth noting that the distinction here is the medal event, not the inclusion in Olympic games generally. The Rio games already showcased eSports competitions as exhibition matches and Asia's Olympic Council has already included medal events for eSports in the 2022 Asian Games. It seems whatever fortifications have been built against eSports gaining entry to the Olympic castle have already been splintered, making eSports' inclusion in 2024 all the more possible.Still, we'll have to wait to find out the verdict on this one.
The Paris Olympics 2024 program will be finalized after the 2020 Tokyo Olympics, so the committee will have years to consider the question and take note of the reception to these showcase competitions.“There is some time to look at it, to interact, to engage,” said Estanguet. “The IOC will have the last say, if they want esports on the program.”I for one am greatly looking forward to the great fustercluck that will be the IOC's enforcement of its claimed intellectual property rights over the broadcasting of competitions using copyrighted and trademarked gaming content specifically to a fanbase that, by its nature, knows how to use technology to subvert both. Should be fun.
The Plaintiff Corporations in question were, therefore, properly joined, and the caseshould be remanded to state court. First, Mr. Murray is the CEO and director of each of thePlaintiff Corporations and is listed as the controller of the mines owned by thosecorporations. Not only is Mr. Murray heavily interrelated with these corporations in a formalbusiness sense, but a reasonable person who knows of Mr. Murray, especially in WestVirginia or another coal state, would find it nearly impossible to separate Mr. Murray fromhis corporations and mines. With such a strong interrelationship between Mr. Murray andthe Plaintiff Corporations, defamatory statements made about Mr. Murray in hisprofessional capacity may be easily seen as negatively implicating the operation of hiscorporations.The court admits that the statements by Oliver were about Murray himself, and not his companies, but says the two are so closely identified with one another that it doesn't matter for this purpose. Also some of the comments Oliver made, while about Murray, were specifically about actions at Murray-owned companies.
The allegedly defamatory statements made about Mr. Murray did refer to him in hisprofessional capacity. First, the Crandall Canyon Statement refers to a collapse at a mineMr. Murray chaired and operated regarding the cause of the collapse. Second, The BlackLung Statement refers to Mr. Murray in his professional capacity because his decisionsregarding Black Lung regulation would be made as the chairman and operator of the mines.The alleged “character assassinations” of Mr. Murray, including the Geriatric Dr. EvilStatement, refer to Mr. Murray in his capacity as a private individual because they bear norelation to his professional conduct. However, because the interrelationship between Mr.Murray and the Plaintiff Corporations is so strong, it is possible that those comments maydefame the corporations if it was determined that the comments discredited the way thePlaintiff Corporations were operated. The Crandall Canyon statement implies that thePlaintiff Corporations are run by a dishonest figure, while the Black Lung statement impliesa lack of care for the safety of Mr. Murray's employees. Even without the characterstatements, there would be sufficient cause for the Plaintiff Corporations to have a possiblechance of success in a defamation action based on comments made about Mr. MurrayRandom aside: for reasons that I do not understand, in the midst of the above paragraph the court adds a footnote explaining Dr. Evil in much greater details than seems necessary.
1 For those who might not be familiar, Dr. Evil, whose real name is Douglas Evil Powers,gained notoriety as the villain of the Austin Powers film franchise. He is a parody of Ernst StavroBlofeld, a nemesis of James Bond. Along with his cat, Mr. Bigglesworth, a colorful supportingentourage, and a plethora of secret lairs, Dr. Evil made several attempts at taking over the world,before ultimately finding redemption by the end of the final film.First: SPOILER ALERT. And second, I mean, sure. That's a decent summary (and I must admit I don't remember Dr. Evil even having a real name, but it's been a while since I've seen the films), but I'm not sure why this footnote is necessary in a straightforward decision to remand. Almost feels like the judge wanted to get in something oddly humorous in such a weird case.But back to the meat of the ruling. The court says that since the statements could defame the companies in West Virginia and (whoops...) HBO and those West Virginia coal companies are incorporated in Delaware, there's no diversity jurisdiction to move the case to federal court:
Defendants' primary contention is that the Plaintiff Corporationswere not properly joined because the defamatory statements were not of and concerningthe corporations, giving the corporations no possibility of asserting a right to relief. Asdiscussed herein, this Court finds that defamatory statements made about an executive ofa business may be sufficient to defame his business where the statement was made aboutthe individual in his professional capacity and reflects negatively on the operation of thebusiness. Therefore, the Plaintiff Corporations may have been defamed by statementsmade about Mr. Murray, giving them a possibility of success in this action as set forth byAshworth, 395 F.Supp.2d at 403. Because the Plaintiff Corporations have this possibilityof success, they were properly joined. This joinder destroys the diversity jurisdiction, whichwould have allowed a removal to this Court because the Plaintiff Corporations and HomeBox Office, Inc. are all incorporated in Delaware. Therefore, this action should be remandedto state court.All in all, a pretty straightforward decision on remanding -- and, of course, it makes no statement on the merits (or lack thereof) of the actual defamation claims. This is probably not a big deal in the overall case, as Oliver/HBO's argument is much, much stronger when it comes to whether or not his statements were defamatory (as the ACLU so nicely explained in their now-irrelevant amicus brief), but it is at least something of a setback for Oliver and HBO. And, in case you're wondering, the 4th Circuit (where this is) does not tend to allow remand orders like this to be appealed. So they're likely stuck in state court. That's a bit of a hassle for Oliver/HBO, and a bigger annoyance for reporters like myself who do have access to federal court records while state court records in West Virginia are (annoyingly) not so easy to access.
Elsevier announces its acquisition of bepress. In a move entirely consistent with its strategy to pivot beyond content licensing to preprints, analytics, workflow, and decision-support, Elsevier is now a major if not the foremost single player in the institutional repository landscape. If successful, and there are some risks, this acquisition will position Elsevier as an increasingly dominant player in preprints, continuing its march to adopt and coopt open access.As that post explains, Bepress is not a publishing company, but seeks to provide key elements of the general infrastructure needed for scholarly communications. That includes things like repositories -- the stores of articles produced by researchers at an institution, or covering a specific field -- and "showcases". Bepress's product in this field is called Digital Commons. It claims to be:
the only comprehensive showcase that lets institutions publish, manage, and increase recognition for everything produced on campus -- and the only institutional repository and publishing platform that integrates with a full faculty research and impact suite.It's a shrewd acquisition by Elsevier. It continues to move the company beyond the role of a traditional publisher into one that can offer a complete solution for the academic world, with products and services handling every aspect of scholarly work. By acquiring more and more parts of this solution, Elsevier can integrate them ever-more tightly, which will encourage users of one element to adopt others. If this process of integration can be carried out successfully, it will leave Elsevier with almost total control of the sector, beyond even today's already profitable position.That may be great for Elsevier shareholders, but it limits choices for the academic community. Fortunately, there are ways to counter Elsevier's rise to monopoly power. Techdirt wrote about one of them last year, when a new open preprint repository for the social sciences, SocArXiv, was created soon after Elsevier bought SSRN. There are already a number of open source alternatives to Bepress products, and supporting those rather than moving to Elsevier-owned services is an obvious move for those in the academic community who wish to preserve their independence. The problem is that doing so is likely to require a certain amount of effort, and it may be that institutions, libraries and academics don't have the time or energy to do that, and they will simply sign up to Elsevier's monoculture without worrying too much about the long-term consequences.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.It all sounds so reasonable until you actually think about the implications of the law. Let's address them in order.To start, requiring a university to affirm the importance of free expression is the kind of pablum born from trying to establish that there is a problem where one doesn't actually exist. Does anyone imagine that polling the nation's universities on this question would result in some schools saying, "Meh, free expression isn't that big a deal"? Come on.As for disinviting speakers that "members of the campus wish to hear from", let's talk about that. First, how many members of campus are we talking about? And how are we to gauge their interest? If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied? Or are the numbers something different? All of this is unclear in the law, even as it happily neuters a school's ability to manage its own campus. Why is a state legislature a better arbiter of who belongs on campus than the school itself?Then there are the disciplinary sanctions on students that "interfere with the free-speech rights of others". This is the really silly part, because it seeks to scholastically criminalize speech in order to protect speech. The proponents of this law will want to say that this refers to students rioting, or accosting would-be invited speakers, but there are already laws on the books to prosecute those crimes. Instead, this law seeks to punish students that attempt to shut down speaking engagements via peaceful protest, which is a form of speech. The law originally required mandatory suspension from school for students who are found to have violated the law twice. The universities beat that back and had it struck, but the proponents of the bill aren't even pretending that they aren't trying to stop anything other than the speech of students, while also detailing how its newly-created committee reports will be used to simply toss out adminstrators lovers of the law don't like.
Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus. If that doesn't immediately demonstrate how flatly gross this bill is, you need to recalibrate your sensors.Look, I said this in the last post, but I'll say it again: anyone that wants to say that campuses today are not as open to outside or unpopular viewpoints as they once were or should be won't get anything other than agreement for me. I tend to think the problem is overstated in certain circles, but I do agree that campuses today are generally less open-minded than they should be. But the solution to that is to win the argument via speech, not to run crying to state legislatures to simply curb the speech of others.
VPN: So you can login to Ukrainian coffee shop WiFi from the safety of your home internet connection— SwiftOnSecurity (@SwiftOnSecurity) August 7, 2017
Hotspot Shield makes strong claims about the privacy and security of its data collectionand sharing practices. CEO David Gorodyansky has stated that “we never log or storeuser data.” The company's website promises “Anonymous Browsing” and notes thatHotspot Shield keeps “no logs of your online activity or personal information.” HotspotShield further differentiates itself from “...disreputable providers [that] are able to offerfree VPN services [ ] because they make their money tracking and selling their users'activities” by claiming that “Hotspot Shield neither tracks nor sells customers'information.”Take a wild guess what's coming next...
While connection logs can be designed to be minimally privacy-invasive, HotspotShield engages in logging practices around user connection data, beyond troubleshootingtechnical issues. The service uses this information to “identify [a user's] general location,improve the Service, or optimize advertisements displayed through the Service.” IPaddresses, unique device identifiers, and other “application information” are regularlycollected by Hotspot Shield.And then this:
While insisting that it does not make money from selling customer data, Hotspot Shieldpromises to connect advertisers to unique users that are frequent visitors of travel, retail,business, and finance websites. Moreover, these entities have access to IP addresses anddevice identifiers collected via Hotspot Shield. Even if Hotspot Shield only provides“hashed” or “proxy” IP addresses to these partners, third parties can also link informationabout web-viewing habits while using the Hotspot Shield by cross-referencing cookies,identifiers, or other information.And more:
Contrary to Hotspot Shield's claims, the VPN has been found to be actively injectingJavaScript codes using iframes for advertising and tracking purposes. An iframe, or“inline frame,” is an HTML tag that can be used to embed content from another site orservice onto a webpage; iframes are frequently used to insert advertising, but can also beused to inject other malicious or unwanted code onto a webpage.Further analysis of Hotspot Shield's reverse-engineered source code revealed that theVPN uses more than five different third-party tracking libraries, contradictingstatements that Hotspot Shield ensures anonymous and private web browsing.But, wait, there's more...
Additional research has revealed that Hotspot Shield further redirects e-commerce trafficto partnering domains. For example, when a user connects through the VPN to accessspecific commercial web domains, including major online retailers likeAnd just one more thing...and , the application can intercept and redirectHTTP requests to partner websites that include online advertising companies.
Consumers have reported instances of credit card fraud after purchasing the “Elite”paid-version of Hotspot Shield VPN. One consumer reported “thousands of dollars” incredit card charges, as well as other suspicious online activity.There's even more in the complaint, but those are some highlights. CDT claims that these are deceptive trade practices. Of course, the FTC doesn't need to do anything here. Such a complaint is basically asking the FTC to investigate and do something, and the FTC doesn't always do so. But at the very least, it may wake some people up about being careful which VPNs they use.
... the bill would be as if Congress decided that FedEx was legally liable for anything illegal it ever carries, even where it's ignorant of the infraction and acts in good faith. That would be a crazy notion in itself, but rather than applying only to FedEx's tech equivalents—the giants like Google and Facebook—it also would apply to smaller, less well-moneyed services like Wikipedia. Even if the larger internet companies can bear the burden of defending against a vastly increased number of prosecutions and lawsuits—and that's by no means certain—it would be fatal for smaller companies and startups. Amending Section 230's broad liability protection for internet service providers would expand the scope of criminal and civil liability for those services in ways that would force the tech companies to drastically alter or eliminate features that users have come to rely on. It could strangle many internet startups in their cribs.Because of all of this, our think tank organization, the Copia Institute, teamed up with our friends at Engine to put together an open letter from tech companies to Congress about this bill. We've put it up at 230matters.com. Some great tech/internet companies have already signed onto the letter, including Reddit, GitHub, Cloudflare, Medium, Automattic, Rackspace, Tucows and more. We'll be sending a second version of the letter in a few weeks, so if you represent a tech/internet company and have the authority to do so, you can sign the letter on that site (if you work at such a company and don't have the authority, please forward this to someone who does...). We all support the larger goal of stopping sex trafficking, but as these tech companies know all too well, this bill will actually harm that goal by making it harder for the companies to help in that process.
The PTAB is authorized to construe the claims in accordancewith their broadest reasonable interpretation...It then goes through and affirms all of how PTAB construed the various claims, saying they are perfectly reasonable constructions and then concludes, simply:
We have considered all of Personal Audio's arguments,and affirm the PTAB's conclusion that the challengedclaims are anticipated by the Patrick/CBCreference, and alternatively that the claims are invalid asobvious in view of the Compton/CNN reference.And thus, the patent is still invalid. Personal Audio can appeal to the Supreme Court (which seems unlikely to take such a straightforward case), but EFF says it's ready if it does go that far:
“Although we're happy that this patent is still invalid, Personal Audio could seek review at the Supreme Court,” said Vera Ranieri, Staff Attorney at EFF. “We'll be there if they do.”
"Dewes described some methods by which a canny broker can find an individual in the noise, just from a long list of URLs and timestamps. Some make things very easy: for instance, anyone who visits their own analytics page on Twitter ends up with a URL in their browsing record which contains their Twitter username, and is only visible to them. Find that URL, and you've linked the anonymous data to an actual person. A similar trick works for German social networking site Xing."The pair also highlighted how repetitive visitation of websites specific to you (your bank, your hobbies, your neighborhood) help further narrow down your identity:
"For other users, a more probabilistic approach can deanonymise them. For instance, a mere 10 URLs can be enough to uniquely identify someone - just think, for instance, of how few people there are at your company, with your bank, your hobby, your preferred newspaper and your mobile phone provider. By creating “fingerprints” from the data, it's possible to compare it to other, more public, sources of what URLs people have visited, such as social media accounts, or public YouTube playlists."Of course this is nothing new, and researchers have been making this precise point for several years now. Princeton researcher Arvind Narayanan in particular has been warning that anonymous data isn't really anonymous for the better part of the last decade, yet somehow the message never seems to resonate, and everyone from broadband providers to internet of things companies continue to pretend that "anonymization" of data is some kind of impenetrable, mystical firewall preventing companies or hackers from identifying you.
As an initial matter, it bears emphasis that it has been and remains the Department's policy that members of the news media will not be subject to prosecution based solely on newsgathering activities. Furthermore, in light of the importance of the constitutionally protected newsgathering process, the Department views the use of tools to seek evidence from or involving the news media as an extraordinary measure.Journalists have been subpoenaed before in leak investigations, but the DOJ has generally been unwilling to jail journalists for refusing to hand over information on their sources. Jeff Sessions, however, seems less concerned about using the weight of the law against members of the press.In his written remarks before a press briefing on national security leaks, Sessions said this:
I have listened to career investigators and prosecutors about how to most successfully investigate and prosecute these matters. At their suggestion, one of the things we are doing is reviewing policies affecting media subpoenas. We respect the important role that the press plays and will give them respect, but it is not unlimited. They cannot place lives at risk with impunity. We must balance their role with protecting our national security and the lives of those who serve in our intelligence community, the armed forces, and all law abiding Americans.This strongly suggests the 2013 guidelines on "new media" will be rewritten by Sessions' DOJ to justify increased prosecutions of journalists. This is a dangerous step forward, especially in an era where leaks seem to be coming faster than journalists can publish them. Throwing a few journalists in jail for contempt creates a severe chilling effect. Even the enhanced threat of prosecution may be enough to discourage journalists from publishing leaked docs or working with government sources.Sessions was asked directly if this administration would prosecute journalists. He refused to answer the question before ending the briefing. This would be the second time Sessions has dodged this question -- the first being Sen. Klobluchar's question along the same lines during his confirmation hearing. What better way to send a chilling message to journalists then telling them their freedom might be at stake as they attend a press briefing.
A non-transitory computer-readable storage medium containing instructions, the instructions when executed by a processor causing the processor to [use a computer to]:receive at a first computer system, via a network, event data descriptive of an event to occur at an event time [get event and time information];receive via the network, reminder data descriptive of a reminder time to occur on or before the event time [get the reminder time];at a time after receipt of the event data, receive via the network article data descriptive of an article to be associated with the event, the article data created during an electronic scanning operation [receive some additional information (created by scanning) relating to the event]; andat the reminder time send via the network a reminder message describing the event and the article to a second computer system, for presentation at the second computer system [at the reminder time, send the reminder message].Although this claim uses some obscure language (like "non-transitory computer-readable storage medium" and "article data"), it describes a quite mundane process. The "article data" is simply additional information associated with an event. For example, 'buy a cake' might be included with a birthday reminder. The patent also requires that this extra information be input via a "scanning operation" (e.g. scanning a QR code).The '680 patent comes from an application filed in July 2012. It is supposed to represent a non-obvious advance on technology that existed before that date. Of course, reminder messages were standard many years before the application was filed. And just a few minutes of research reveals that QR codes were already used to encode information for reminder messages. For example, QRickit suggested using QR codes for calendar events and reminders (with the option of adding additional information beyond the event descriptor). This 2011 article suggests using QR codes to embed information such as "assignments for the week." The only even arguable difference from the prior art is that the patent's claims require the "article data" to be received after the event data. In our view, that is not a distinction that warrants the government-granted monopoly power inherent in a patent.The Patent Office reviewed HP's application for years without ever considering any real-world products. Indeed, the examiner considered only patents and patent applications. We have complained before that the Patent Office seems to operate in an alternative universe where only patents provide evidence of the state of the art in software. The fact that the Patent Office doesn't take developments in real software into account in its assessment of prior art speaks poorly for its ability to determine whether patent applications actually reflect new inventions.In addition to failing to consider real products, the Patent Office gives little weight to common sense and takes an extremely rigid approach to evaluating whether or not a patent application is obvious. This leads to patents on things like taking photos against a white background, filming a yoga class, voting for a favorite photo, and out-of-office email. Much of the responsibility for this mess rests with the Federal Circuit, which has failed to apply a Supreme Court case called KSR v. Teleflex that calls for a flexible, common sense approach to obviousness. Together with Public Knowledge, EFF recently filed an amicus brief [PDF] asking the Supreme Court to consider the obviousness standard in patent law and to reaffirm that examiners can reject common sense combinations of known elements.Even leaving obviousness aside, HP's patent application still should have been rejected under Alice v. CLS Bank. In Alice, the Supreme Court ruled that an abstract idea does not become eligible for a patent simply by being implemented on a generic computer. As with many software patents, the patent goes out of its way to explain that its method can be implemented on a generic computer, or, as the patent puts it "generally any computer." Despite this, the prosecution history [PDF] reveals that the examiner never even mentioned Alice, even in office actions written well after the Supreme Court's decision came down. We have written many times (e.g. 1, 2, 3, and 4) to protest that the Patent Office is not doing enough to diligently apply the Alice decision. The '680 patent provides yet another example of abstract software patents being issued despite the Supreme Court's ruling.In case you want to set a reminder, the '680 patent will expire on December 16, 2035.Republished from the EFF's Stupid Patent of the Month series.
White--You listen to me, and you listen good. This ends now and here is how it's going to work. I have deleted my Twitter account because, frankly, I have better things to do than deal with you and your followers. I am going to make you a one-time offer and you get to choose.So, nice guy, right? Ken posted that email to his blog and to Twitter, noting: "I don't respond well to threats. It's kind of a thing. Sorry, Jason."And... Twitter suspends Ken's Popehat account for 12 hours. Ken's. Not Jason's. Not the guy doing the threatening. The guy posting about being threatened. It's Twitter's "cool off" suspension, in which your account is still live, but you can't tweet, retweet or like other tweets for 12 hours.Having seen stuff like this before, I'm pretty sure I know why Twitter did this, even if it's stupid. Twitter's terms of service and "rules" which are incorporated into the terms says that you cannot share private information. In the past I've seen similar suspensions when people post someone else's email that includes phone numbers/addresses and the like. Indeed in a post that Ken just put up on his own blog, Twitter confirms that it's the posting of someone else's info that got him into trouble, though Ken points out that Twitter itself says that it will take context into account. And if you're taking context into account, you have to wonder how it is that Ken gets suspended for highlighting the guy who threatened him, while the actual threatener remains free to post at will.I asked Ken for a comment on the situation, and he told me:You will take this offer today or the only thing you will have to know is that, sooner or later, I will come for you.Jason L. Van Dyke
- I am willing to walk away. Right here. Right now. You remove the libelous blog posts about me and make whatever excuse you want. I really don't care what it is. You will never see or hear from me ever again. We both go about our lives.
- You can do what I think you are more than likely to do anyway and simple add this e-mail to your blog post. If you d that, I want to make it very clear what is going to happen. I have a picture of you. I am going to put it on my mirror at home, near my desk, and in my truck. My pure and absolute hatred for you will be unprecedented. My hatred for you will serve as a motivation for me to build an entirely new business and to earn enough money so that, one day, I will be able to make your life such an absolute living hell that I'll be able to hurt you without so much as laying a hand on you. I will make you so miserable and treat you with such extreme and completely unprecedented cruelly that you'll either kill yourself or move yourself and your family to the most remote part of the world you can afford to escape my wrath. The bottom line is that I will not forget you and that there will be retribution. It may take me a year. It may take me 20 years. I may get you on my first try. I may get you on my seventeenth try. But I will never stop.
Attorney & Counselor at Law
Twitter is perfectly in its rights to do this. Twitter is a private company with its own free speech and free association rights. I've got no right to post there if they don't want me to post there.But I think most reasonable people would see this as egregiously stupid, and a sign of a recurrent problem -- the systems that social media platforms put in place to deal with harassment are often dumb, and seem to catch people responding to threats and abuse as often as they catch the abuse itself.Meanwhile, I'm not deleting the tweet. I wrote about a lawyer and damn-near-active-prosecutor who threatened people who writing about him, and he threatened me. When I wrote more, he threatened more, including that freakish email. That's newsworthy, and I'm not taking it down.Indeed. We've talked many times about the problems of demanding that platforms police behavior. It's one of those things that seems easy, until you realize just how tricky it is. A trust and safety team dropping in on Ken's conversations wouldn't have the relevant background and is likely to rush through and make a bad decision. So be careful what you wish for when you say platforms should be policing content. They're probably not up to the task.
Lawyers for the Whiting Pierogi Fest in Whiting, Indiana, recently sent a letter to the nonprofit Edwardsville Hometown Committee demanding it stop using the trademarked name or pay royalties for its use.They claim the usage leads to “unfair competition” and “is likely to cause consumer confusion.”Two separate letters were sent to this effect, actually, both making the claim that consumers would be confused between a suburban Chicago "Pierogi Fest" and the "Edwardsville Pierogi Festival." These claims rest on the Chamber's federally registered trademark for "Pierogi Fest", which is itself a laughably broad and almost perfectly descriptive phrase, causing me to wonder how the USPTO approved the mark to begin with. That aside, it should be obvious that any fears for consumer confusion between two geographically distinct (678 miles!) pierogi festivals would make Chicken Little roll his eyes. And it's worth mentioning that both of these threat letters included offers to license the trademark for money, as well.Well, the Edwardsville Hometown Committee declined to license the phrase and has instead filed suit for declaratory relief. In that filing, the Committee reveals that it was not the only recipient of the Chamber's threat letters.
25. The Hometown Committee has both existing contractual relationships with the sponsors of the Edwardsvilie Pierogi Festival and potential contractual relationships with additional sponsors for upcoming Edwardsville Pierogi Festivals. 26. By sending correspondence to sponsors of the Edwardsville Pierogi Festival threatening them with liability for trademark infringement, the Chamber has purposefully and intentionally sought to harm the relationship of the Hometown Committee with its existing sponsors and to prevent prospective relationships between the Hometown Committee and future sponsors of the Edwardsville Pierogi Festival.So the Chamber sent threats to the sponsors of the Committee's Pierogi Festival as well. Not a good look when we're talking about a trademark as broad and descriptive as "Pierogi Fest", particularly when there are lots of other festivals using that same name already. I'm not sure if the Chamber thinks it has a great licensing opportunity with all of the pierogi festivals out there or not, but it's certainly not doing a great job of protecting the trademark it never should have been granted.I imagine Whiting's Chamber of Commerce actually never expected to find itself in court, figuring Edwardsville would simply bow to its demands and license the mark. Hopefully the court will see fit to take this case to its proper end and invalidate the "Pierogi Fest" trademark entirely.
IRE notes the $42,750 and $62,220 fees handed to the Boston Globe for the log of its public records requests and records of crashes involving police cruisers, respectively. IRE also mentions that a Bay State Examiner reporter was told to pay a $710.50 “non-refundable research fee” for an estimate of another fee to obtain copies of internal affairs reports.MuckRock records requester Andrew Quemere wasn't hit with a huge fee for his records request. He was asked for $180 up front before the state police would respond to his request for records. But then the state police decided to keep its records… and Quemere's money, too.
After pocketing $180 in fees for a public records request, the Massachusetts State Police (MSP) turned around and attempted to convince the state supervisor of public records that the agency didn’t have to turn the records over.Quemere was searching for records on marijuana possession enforcement, attempting to see if the MSP were still busting people for pot after voters had approved legalization but before the law took effect. He made this request last December. At first, the MSP tried to argue all the records were exempt from disclosure, citing a criminal records statute which forbade the disclosure of suspects' and arrestees' names and other personal info.Quemere pointed out this information could be redacted before the docs were released to him. The state's Supervisor of Records agreed with Quemere and told MSP to release the redacted records. The state police then asked Quemere for $180 to cover the review and redacting costs: 7.2 hours @ $25/hour.Quemere crowdfunded the fee and sent MSP the check. That's when the state police went from less-than-responsive to entirely unresponsive.
I raised the money through a crowdfunding campaign, and MuckRock sent the MSP a check on March 1. However, the MSP never turned over the records or even acknowledged receiving the check. On March 31, I asked the MSP if they had received the check, but the agency did not respond.Quemere filed another appeal, hoping to at least find out where his money was, if not his requested records. The state supervisor again ruled in favor of Quemere and noted the state police claimed the records would be ready in ten days. Guess what didn't happen.
Instead, Glenn Rooney, an MSP lawyer sent the supervisor of records an email on April 28th in which he again argued that the reports were exempt under the CORI statute. Rooney wrote that the CORI statute allows agencies to withhold records in their entirety, and there is no obligation for them to redact records protected by CORI. He further argued that the MSP could not release the records because someone could use police logs to identify the arrestees.Nearly a month later, Quemere filed his third appeal. And for a third time, the state records supervisor overruled the state police and told the agency to hand over the records.I wish I could tell this has now been resolved but a visit to the request page shows the state police still have yet to turn over the requested records, much less give Quemere an expected due date. As it stands now, there's a ton of unproductive correspondence from the state police uploaded and an expected completion date of "none."
You might think May 35th is an imaginary date, but in China it's a real one. Here, where references to June 4 -- the date of the Tiananmen incident of 1989 -- are banned from the Internet, people use "May 35th" to circumvent censorship and commemorate the events of that day.Inevitably, the authorities soon spotted this trick, and blocked references to May 35th too. But as the author of the New York Times piece, Yu Hua, explains:
May 35th freedom is an art form. To evade censorship when expressing their opinions on the Internet, Chinese people give full rein to the rhetorical functions of language, elevating to a sublime level both innuendo and metaphor, parody and hyperbole, conveying sarcasm and scorn through veiled gibes and wily indirection.The latest, most highly-developed form of that "May 35th freedom" is described in an article on Quartz, which explores an invented Chinese language known as "Martian":
Martian dates back to at least 2004 but its origins are mysterious. Its use appears to have begun among young people in Taiwan for online chatting, and then it spread to the mainland. The characters randomly combine, split, and rebuild traditional Chinese characters, Japanese characters, pinyin, and sometimes English and kaomoji, a mixture of symbols that conveys an emotion (e.g. O(∩_∩)O: Happy).Martian is an extension of the May 35th approach, but with additional elements, including fairly random ones. That makes it hard for the automated censorship systems to spot forbidden topics, since the Martian elements have to be decoded first. Naturally, though, the human censors eventually work out what the Martian terms mean, and add them to the blacklists for automatic blocking. However, according to the Quartz article, China's censorship system is not monolithic, and just because a post written in Martian is blocked on one service doesn't mean it will be blocked on another.It's the continuing existence of those small spaces for free speech, coupled with the never-ending ingenuity of Chinese Internet users in coming up with Martian-like linguistic camouflage, that allows controversial material to be posted and circulated, despite the massive censorship machine.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
In this case, the FBI sent computer code to the defendants’ respective computers that searched those computers for specific information and sent that information back to law enforcement. Even if a defendant has no reasonable expectation of privacy in his IP address, he has a reasonable expectation of privacy in the contents of his personal computer. [...] Moreover, the NIT retrieved content from the defendants’ computers beyond their IP addresses. We conclude the execution of the NIT in this case required a warrant.The court also disposes of the government's "but it's kind of just a tracking device" argument:
Although plausible, this argument is belied by how the NIT actually worked: it was installed on the defendants’ computers in their homes in Iowa. The government rightly points out that our court interprets Rule 41 flexibly in light of advances in technology... but we agree with the district court that the “virtual trip” fiction “stretches the rule too far,” We agree with the majority of courts that have reviewed the NIT warrant. These courts have concluded that “the plain language of Rule 41 and the statutory definition of ‘tracking device’ do not . . . support so broad a reading as to encompass the mechanism of the NIT used in this case.” Id. Thus, we hold that the NIT warrant exceeded the magistrate judge’s jurisdiction.It also agrees with the lower courts' findings the warrant was invalid from the moment it was obtained, since the NIT was clearly going to be traveling outside of the issuing judge's jurisdiction. But that's where the good news ends. The appeals court applies the "good faith" exception and declares the requesting agent -- who knew the NIT would travel outside the jurisdiction and suggested as much in the warrant request -- could rely on a warrant signed by a judge to execute these extrajurisdictional searches.
The defendants also argue that the NIT warrant was facially deficient because FBI agents should have known that a warrant purporting to authorize thousands of searches throughout the country could not be valid. Specifically, Horton argues that “there can be no credible argument that officers reasonably believed that none of the 214,898 members of [Playpen] were located outside of Virginia.” We, however, will not find an obvious deficiency in a warrant that a number of district courts have ruled to be facially valid. Further, we have declined to impose an obligation on law enforcement to “know the legal and jurisdictional limits of a judge’s power to issue interstate search warrants.” Law enforcement did not demonstrate bad faith, and we will apply the Leon balancing test as instructed by the Supreme Court.So, law enforcement officers are not required to know the legal limits of the warrants they seek. Apparently, neither are judges, as the judge signed off on this warrant despite being told it would be executed outside of his jurisdiction.But that's not the worst part of the opinion. The worst part is this: the court says there's no deterrent value in suppressing evidence obtained with a facially-invalid warrant because the law changed after the fact.
Because Rule 41 has been updated to authorize warrants exactly like this one, there is no need to deter law enforcement from seeking similar warrants.Under this rationale, anyone currently incarcerated for marijuana possession or distribution in states where weed is now legal should have their sentences immediately vacated. After all, there's no deterrent effect in keeping them locked up, now that both actions have become legal.So, it's now 2-0 in favor of the FBI in federal appeals courts. In the future, its NIT activities won't receive much scrutiny. But it appears everything it did in violation of Rule 41 prior to the rule changes is being forgiven by higher courts -- whether with generous applications of the "good faith" doctrine or by making the Rule 41 changes effectively retroactive.
"This is a concerning choice by the government,” said OpenMedia communications manager Meghan Sali, who also noted that, under Blais, the regulator declared broadband Internet a basic service in Canada.“Canadians were hoping for somebody with a strong consumer rights background, and will undoubtedly be disheartened to see the Trudeau government place someone from industry into the top decision-making position."Much like former US FCC boss Tom Wheeler, Blais' attempts to actually stand up for consumers raised hackles at Canadian incumbents. At one point, Canadian incumbent Bell actually refused to let Blais appear on their television channels in retribution for his efforts to make Canadian cable television more affordable. Similarly, much like here in the States, incumbent ISPs often tried to characterize Blais' slightly-more consumer-friendly policies as radical and fatal to industry investment and innovation. Needless to say, they're arguably thrilled by this new appointment of a direct ally.Of course the fact that Scott has spent the better part of the last few decades employed by incumbent Canadian ISPs doesn't automatically mean he'll be a sycophant to industry. Many are quick to highlight how nobody thought much of former U.S. FCC boss Tom Wheeler initially, his history of lobbying for the cable and wireless industries having raised plenty of eyebrows after his initial appointment. And because Wheeler went from dingo to what most see as the most-consumer friendly FCC boss potentially in agency history, he's now consistently used to downplay the historical threat posed by revolving door regulators.Except Wheeler was a lobbyist for the cable and wireless industries during their nascent years, when both were pesky upstarts actually interested in competition and disruption. Wheeler also historically showed an uncommon ability to actually change his positions based on facts, an attribute in increasingly rare supply. So while it's certainly possible Canada's new CRTC boss could "pull a Wheeler" and somehow magically become a consumer ally, history generally suggests that Tom Wheeler was the exception, not the rule. Still, maybe Canadians will get lucky and Canada won't revert to a more industry-cozy approach to telecom and media policy.
Major League Baseball has decided not to oppose Blizzard Entertainment’s OverwatchLeague trademark filing, per law firm Morrison / Lee. As part of the OWL’s trademark review process via the Trademark Trial and Appeal Board, organizations have the opportunity to oppose trademarks—and earlier this month, the MLB was reportedly preparing a challenge, along with a request for a 90 day extension.The deadline to file the challenge and extension, July 26, has now come and gone without issue. OWL’s trademark is presumably in place, and while it could still be challenged as a trademark infringement down the road, such a challenge is unlikely given the lack of current filing.While MLB has been happy in the past to be the bully on trademark issues, it seems it decided even this one was too silly to take on. That doesn't feel like it deserves applause as much as brief sigh of relief at one less dumb trademark issue I'd have to write about.