A method of optimizing a computer system, the method comprising the steps of:detecting a problem in the computer system;activating an AI engine in response to the problem detection;utilizing, by the AI engine, selected ones of a plurality of sensors to gather information about the computer system;determining, by the AI engine, a likely solution to the problem from the gathered information; andwhen a likely solution cannot be determined, saving a state of the computer system.Other than the final step of saving the state of the computer where a solution cannot be found, this claim essentially covers using AI to diagnose computer problems. (The claim survived a challenge before the Patent Trial and Appeal Board, but the Federal Circuit recently ordered [PDF] that the Board reconsider whether prior art, in combination, rendered the claim obvious.) A more recent patent raises similar concerns. U.S. Patent No. 9,760,834 (the '834 patent), owned by Hampton Creek, Inc., relates to using machine learning techniques to create models that can be used to analyze proteins. This patent is quite long, and its claims are also quite long (which makes it easier to avoid infringement because every claim limitation has to be met for there to be infringement). But the patent still reflects a worrying trend. In essence, Claim 1 of the patent amounts to 'do machine learning on this particular type of application.' Indeed, during the prosecution of the patent application, Hampton Creek argued [PDF] that prior art could be distinguished because it merely described applying machine learning to "assay data" rather than explicitly applying the techniques to protein fragments.More specifically, the patent follows Claim 1 with a variety of subsequent claims that amount to 'When you're doing that machine learning from Claim 1, use this particular well-known pre-existing machine learning algorithm.' Indeed, in our opinion the patent reads like the table of contents of an intro to AI textbook. It covers using just about every standard machine learning technique you'd expect to learn in an intro to AI class—including linear and nonlinear regression, k-nearest neighbor, clustering, support vector machines, principal component analysis, feature selection using lasso or elastic net, Gaussian processes, and even decision trees—but applied to the specific example of proteins and data you can measure about them. Certainly, applying these techniques to proteins may be a worthwhile and time-consuming enterprise. But that does not mean it deserves a patent. A company should not get a multi-year monopoly on using well-known techniques in a particular domain where there was no reason to think the techniques couldn't be used in that domain (even if they were the first to apply the techniques there). A patent like this doesn't really bring any new technology to the table; it simply limits the areas in which an existing tool can be used. For this reason, we are declaring the '834 patent our latest Stupid Patent of the Month.In fairness, the '834 patent is not as egregious as some of the other patents we have selected for this dubious 'honor.' But we still think the patent is worth highlighting in this series because the problems similar patents could create for innovation and economic progress might be much more serious. Handing out patents on using well-known machine learning techniques but limited to a particular field merely encourages an arms race where everyone, even companies doing routine development, attempts to patent their work. The end result is a minefield of low-quality machine learning patents, each applying the entire field of machine learning to a niche sub-problem. Such an environment will fuel patent trolling and hurt startups that want to use machine learning as a small part of the larger novel technologies they want to bring to market.We recently launched a major project monitoring advances in artificial intelligence and machine learning. As we pursue this project, we'll also monitor patenting in AI and try to gauge its impact on progress.Reposted from EFF's Stupid Patent of the Month series.
Elsevier is hoping to keep researchers on its platform with the launch of a free layer of content called ScienceDirect Topics, offering an initial 80,000 pages of material relating to the life sciences, biomedical sciences and neuroscience. Each offers a quick definition of a key term or topic, details of related terms and relevant excerpts from Elsevier books.Significantly, this content is not written to order but is extracted from Elsevier's books, in a process that Sumita Singh, managing director of Elsevier Reference Solutions, described as "completely automated, algorithmically generated and machine-learning based".It's typical of Elsevier's unbridled ambition that instead of supporting a digital commons like Wikipedia, it wants to compete with it by creating its own redundant versions of the same information, which are proprietary. Even worse, it is drawing that information from books written by academics who have given Elsevier a license -- perhaps unwittingly -- that allows it to do that. The fact that a commercial outfit mines what are often publicly-funded texts in this way is deeply hypocritical, since Elsevier's own policy on text and data mining forbids other companies from doing the same. It's another example of how Elsevier uses its near-monopolistic stranglehold over academic publishing for further competitive advantage. Maybe it's time anti-trust authorities around the world took a look at what is going on here.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
it's a reflection of a growing trend in which businesses across Southeast Asia look to China for inspiration for everything from e-commerce to mobile payment systems and news apps.Once derided as a copycat of Western giants, Chinese companies have grown in stature to the point that in many areas they are now seen as the pinnacle of business innovation.The article mentions dockless bike-sharing, which is huge in China, being copied in California by a startup called Limebike. It notes that Thailand's central bank has introduced a standardized QR code that enables the country's smartphone users to pay for their purchases simply by scanning their devices -- a habit that is well on the way to replacing cash and credit cards in China. In Malaysia, an online second-hand car trading platform Carsome based its approach closely on a Chinese company operating in Nanjing. Other copycats of Chinese innovators include:
Orami, Thailand's leading e-commerce business, which started out as a clone of China's online baby product platform Mia; Offpeak, a Malaysian version of the Chinese group buying website Meituan; and BaBe, an Indonesian news app that borrowed the business idea from China's Toutiao and has been downloaded more than 10 million times.As the article points out, it is perhaps natural that entrepreneurs in Southeast Asia should look to China for ideas given the commonalities of culture. But that kind of creative borrowing can only occur if Chinese companies are producing enough good business ideas that are worth copying. It's evident that they are, and it's time that the West recognized that fact.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
In a press release this morning, PlayerUnknown's Battlegrounds developer Bluehole took a shot at Epic Games, calling out Fortnite for cloning the 100-man PVP gameplay style with its upcoming free update ‘Battle Royale.’“We’ve had an ongoing relationship with Epic Games throughout PUBG’s development as they are the creators of [Unreal Engine 4], the engine we licensed for the game,” Bluehole vice president Chang Han Kim said in the press release. “After listening to the growing feedback from our community and reviewing the gameplay for ourselves, we are concerned that Fortnite may be replicating the experience for which PUBG is known.”This is a game studio getting upset over what is purely an idea, not an expression. Having 100 players face off against another 100 players in a game mode is not expression and is no more unique than, say, first-person shooter games, itself a genre with innumerable entrants. Bluehole goes on to note that it is going to "contemplate further action", but whatever that action would be would not include a successful legal action against Epic Games. There is simply nothing remotely like copyright infringement here.Strangely, Bluehole also makes much of its claim that Epic Games referenced PlayerUnknown Battlegrounds to promote Fortnite, which sort of sounds like trademark law territory. The problem, both from a legal standpoint and from a public relations standpoint, is that this claim appears to amount to Epic Games applauding Bluehole on the Playstation Blog.
This may be a reference to Epic creative director Donald Mustard’s note on the PlayStation Blog, in which he wrote: “We love Battle Royale games like PUBG and thought Fortnite would make a great foundation for our own version.”But that's neither trademark infringement nor evidence for copyright infringement. Even as Epic gives a full-throated acknowledgement that it is seeking to emulate a game mode from Bluehole's game, it's just a game mode, not a specific expression. That simply isn't copyright infringement, any more so than someone saying, "Doom was great, so now I want to make a first-person shooter game like it."Idea/expression dichotomy: learn it, folks. It will keep you from paying lawyers to lose a case for you.
the Americans insisted on longer intellectual property patent terms and stronger copyright regulations than many countries wanted. Canada will now argue for shorter patent terms, in support of its generic drug sector and in an attempt to keep drug costs down.Canada is also keen to water down the investor-state dispute settlement negotiated by the U.S. in the original deal, and bolster the state's right to regulate in the public interest.The move by Canada to rein in some of the worst excesses of corporate sovereignty follows the EU's lead in this area. As Techdirt reported, during the TTIP negotiations between the EU and US, the former suggested replacing the old ISDS with a "new" Investment Court System (ICS). Although the US was not interested, Canada later agreed to this slightly watered-down version for the CETA trade deal with the EU.The ICS still doesn't exist, and is still something of a mystery in terms of how it will work. It was proposed in an attempt to head off massive public concern about corporations being able to sue governments -- and thus taxpayers -- for huge sums, completely outside the normal legal system, and subject to few constraints. But even ICS was not enough to stop the Belgian region of Wallonia nearly de-railing the CETA deal at the last moment.Anxious to avoid that happening again, the President of the European Commission, Jean-Claude Juncker, had a rather radical suggestion in his recent State of the Union address. In order to make future trade deals easier to push through the legislative process in the EU, Juncker proposed removing investment protection chapters from them completely, and negotiating a separate deal covering this aspect. An article on Politico.eu explains the thinking behind that move:
Slicing out investment protection will give [Juncker] an immediate legal advantage. Under EU law, a trade deal without investment clauses could be ratified exclusively by the European Parliament and by the member countries as represented at the Council in Brussels. That effectively removes the direct veto powers of the Walloons.Simon Lester, Trade Policy Analyst at the Cato Institute, thinks the US should follow suit -- an idea that someone from the same group suggested a few years ago:
The Europeans have faced a greater struggle with investment protection and ISDS than has been the case in the United States, but these provisions have been a problem here as well. If we want to make it easier to get trade negotiations completed and trade agreements passed by Congress, we should consider following the EU's lead.Although removing corporate sovereignty from trade deals does not solve the larger problem of giving companies special protection, it is a step in the right direction. For example, after concluding trade deals that do not have ISDS chapters, governments may decide to bring them in as quickly as possible in order to enjoy their claimed benefits. When commercial relations work perfectly well without them -- as is already the case for both the US-Australia trade deal, and the one between the EU and South Korea, neither of which include corporate sovereignty -- governments may decide to leave it at that, and forget about further negotiations covering investment.Unfortunately, none of these recent moves is likely to help the UK, currently struggling with the implications of last year's "Brexit" referendum to leave the EU. Ever-inventive lawyers have realized that an unexpected withdrawal of the country from the EU could represent an excellent opportunity for companies that have invested in the UK to claim that they will suffer as a result, and to use corporate sovereignty clauses to claim compensation potentially amounting to billions of dollars. Corporate Europe Observatory has a new post exploring what could happen here:
the UK's impending exit from the European Union may bring new investment arbitration opportunities. The country has 92 investment agreements in force, which investors from other countries could use to file ISDS claims against the UK. In conferences and alerts for their multinational clients, some of the top investment arbitration law firms are already assessing the prospect of such Brexit claims. Depending on how the Brexit negotiations turn out, these lawsuits could be about anything from foreign carmakers or financial companies losing free access to the EU market, to the government scrapping subsidies for certain sectors. One lawyer from UK-based law firm Volterra Fietta has even suggested that "there may be a number of investors that would have come to the UK expecting to have a certain low wage group of employees", which might sue for loss of expected profit if they lose access to underpaid, foreign workers.But the clever lawyers don't stop there. They see opportunities for corporations to use Brexit as a way to sue other EU countries too:
Several law firms have published briefings suggesting that it would be an advantage for corporations if they structured their foreign investment into the remaining EU member states through the UK. This means that if you are a German company, for instance, and have an investment in Romania you could let this investment 'flow' through a subsidiary -- possibly only a mailbox company -- in the UK. You could then sue Romania via its bilateral investment treaty with the UK -- even if no such treaty was in place between Romania and Germany.This kind of "creativity" is yet another reason why tweaks to corporate sovereignty of the kind contemplated by the EU and Canada are simply not enough: ISDS needs to be dropped completely from all trade deals -- past, present and future.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
In a major win for private property rights, a federal judge ruled that Indiana can no longer seize vehicles under its controversial civil forfeiture laws, which allow police to confiscate property without filing criminal charges. Judge Jane Magnus-Stinson ruled that Indiana's laws were unconstitutional because they failed to provide a timely hearing for the property owner to contest the seizure.The case springs from an arrest and seizure made last September when the plaintiff was pulled over by Indianapolis law enforcement. Finding a small amount of marijuana on the driver, the Indy PD felt justified in claiming his entire vehicle as its own. Not content to be screwed out of a car for his personal use stash, Leroy Washington enlisted the help of defense lawyer Jeff Cardella. They filed a class action lawsuit challenging the state's forfeiture law on behalf of the hundreds of drivers whose cars have ended up in the possession of Indiana law enforcement -- all without being convicted of any criminal activity.Seizing cars is something Indiana law enforcement does frequently. According to the stats quoted by the judge, the state seizes around 11 cars a week. Once the vehicles are in the law enforcement's possession, drivers are forbidden from seeking to regain their property until the state says it's OK to do so. And it's generally in no hurry to do so. It can hold the vehicle for six months before starting forfeiture proceedings, forcing car owners to find other transportation while their vehicles sit in impound lots.As the judge notes in the decision [PDF], this law -- which locks car owners out of the loop for months -- poses significant problems for people who haven't been convicted of criminal activity.
Following a seizure, the government may hold a vehicle without taking any action for 180 days, or for 90 days after receiving written notice from the owner demanding the vehicle's return. Ind. Code § 34-24-1-3. During this timeframe, the owner of the property has no ability to challenge the seizure, because replevin is prohibited by the statute. Ind. Code § 34- 24-1-2(c) (“Property that is seized under subsection (a) … is not subject to replevin but is considered to be in the custody of the law enforcement agency making the seizure.”).Therefore, three to six months may elapse, during which time the owner is deprived of the use of his vehicle, and the government is not required to take any action whatsoever regarding the seized property. It is particularly problematic that the statute specifically bars replevin. Absent another statutorily created mechanism to challenge the deprivation, replevin would provide a vehicle owner’s only recourse. But that avenue has been specifically foreclosed by the statute. During those months, if the owner has secured financing to purchase the vehicle, he is still required to make payments on that loan, lest he risk foreclosure and repossession. He is also required, of course, to make other arrangements for his transportation needs, which may include fundamental life activities such as transit to a job or school, visits to health care professionals, and caretaking for children or other family members. It is evident to this Court that a three- to six-month deprivation is a lengthy one, and could cause significant hardship to the individual whose vehicle is seized.[...]Second, unlike some states’ statutes, Indiana’s forfeiture provisions do not allow for interim relief during the pendency of proceedings. Such interim relief could include returning the seized vehicle subject to the posting of a surety bond or other adequate security. [...] The absence of an opportunity for interim relief particularly burdens individuals who lack the financial resources to secure another vehicle during the pendency of proceedings, or who are unable to access reliable public transportation.As the court concludes, this process -- enabled by state law -- makes a mockery of Constitutional rights.
[I]ndiana Code Section 34-24-1-1(a)(1), as read in conjunction with the statutory provisions of the same chapter, violates the Due Process Clause of the Fifth and Fourteenth Amendments. The Court therefore permanently enjoins Defendants from enforcing that statutory provision.This is exactly the conclusion Indiana's law enforcement didn't want the court to reach. In hopes of heading off the lawsuit (and this precedent), the state argued the return of Washington's vehicle rendered the case moot. The court doesn't care for this dodge, and points out it's exactly the sort of move anticipated both by Washington's earlier briefs and the court itself:
The Court concludes (as it did in its order denying Defendants’ Motion to Dismiss) that Washington has established that the inherently transitory doctrine applies here. First, it is uncertain that a claim will remain live for any individual who could be named as a plaintiff long enough for a court to certify the class. The statute itself limits the pre-forfeiture period to 180 days. As the procedural history of this case illustrates, despite a district court’s best efforts to provide prompt resolution to all pending matters, the realities of a district court’s docket and case load (along with the possibility that the parties may need additional time to conduct discovery related to class certification) may result in motions to certify being unresolved for longer than 180 days. In this case, Washington’s Motion to Certify a Class was filed on November 2, 2016—more than 180 days before the issuance of an order resolving it. [Filing No. 3.] And, as the State retains discretion to return the seized property to its owner at any time, it could attempt to moot any named plaintiff’s claim by simply returning the property after the plaintiff files a motion to certify.It further points out mooting Washington wouldn't moot the class action, which includes everyone similarly situated -- both now and in the future.
Second, there will be a constant class of persons suffering the deprivation complained of in the Complaint. Defendants have not indicated any intention to cease enforcement of the statute, and Defendants do not dispute that at least 169 vehicles have been seized for forfeiture between November 2, 2016 and February 13, 2017.The end result is a federal injunction preventing Indiana law enforcement from seizing vehicles without better recovery routes available for car owners. Since the adjoining clause walking all over the Constitution hasn't been rewritten yet, this pretty much means the end of vehicle seizures until that's addressed by the legislature. Considering state lawmakers were already considering forfeiture reforms, this might mark the permanent end of taking cars away from people without obtaining corresponding convictions.
A Republican from California is no less a United States citizen than a Democrat. Yet her vote for President counts for nothing. Likewise with a Democrat in Texas. There is no reason not to allocate electors in a way that gives equal weight to every citizen's vote, at least within the constraints of the framers' original compromise.States initially adopted “winner take all” because it amplified the power of that state's votes. This troubled even Jefferson, who recognized the incentive to try to expand a state's influence. As he wrote, “[a]n election by districts would be best if it could be general, but while ten States choose either by legislatures or by [winner take all] it is folly and worse than folly for the other States not to do it.”Yet once (practically) every other state had embraced winner take all, its important effect was not to amplify, but to shift the focus of the presidential campaigns. This is because under “winner take all,” the only states in which it makes any sense for a presidential candidate to campaign are “battleground states” — states in which the popular vote can be expected to be so close that one side has a real chance to beat the other.Thus in 2016, two-thirds of campaign events happened in just 6 battleground states — Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan. Four battleground states — Florida, North Carolina, Ohio and Pennsylvania — saw 71% of campaign ad spending and 57% of candidate appearances. All together, the 14 battleground states saw 99% of ad spending and 95% of candidate visits for campaign purposes.The argument, then, is to try to force states away from "winner-take-all." Right now, only Maine and Nebraska don't do winner take all with their electoral college votes, but they both don't have many votes anyway.Lessig's plan to bring this about is to bring legal challenges and hopefully get them to the Supreme Court. As Lessig explains:
The Supreme Court has made it clear that the principle of “one person, one vote” applies in the “Presidential selection process”—first in a set of cases in the 1960s, and most recently, in 2000, in a case called Bush v. Gore. But the Court has not yet considered whether “winner take all” rules are themselves consistent with “one person, one vote.” Delaware asked the Supreme Court to consider the question 50 years ago. The Court declined the request for review.It is long past time for the Court to address this inequality directly.In a separate post, Lessig has laid out the reasoning more clearly and responded to some of the key questions. The sort of judo move here, is that Lessig is effectively trying to use the Supreme Court's reasoning in Bush v. Gore to make this work -- and he's argued that if you supported the Supreme Court in that ruling, you're being inconsistent if you argue against the case he's hoping to bring, as they're based on the same principles of one person, one vote.
The real question for the opponents here is Bush v. Gore (2000): If the application of “one person, one vote” to restrict winner-take-all is invalid because the Framers never intended the clause to be used in that way, was the application of “one person, one vote” to the Florida recount invalid, because of course, the Framers of the 14th Amendment had no intent whatsoever about the Supreme Court supervising the state's rules for counting or recounting votes?The point is just this: It's perfectly respectable to say, Bush was wrong, and our claim is wrong as well. But it is selective to say, Bush was right, but our claim is wrong.Of course, there are still others who argue that a proportional breakdown will create other problems as well, such as those who support an even more radical change: to a ranked choice voting system. And while I agree that a ranked choice setup would be much better, it has basically zero chance of happening any time soon. Lessig's chances with this lawsuit appear quite slim as well, but they're at least above zero. And, yes, I'm sure some people will point to the National Popular Vote Interstate Compact, as a sort of "competing" idea to Lessig's to force a move to make the popular vote actually matter -- and Lessig has said he's supportive of that effort too -- he just sees EqualVote as another way of forcing the issue.Either way, this is a project worth paying attention to -- even if it may be a longshot. Lessig may take a lot of these longshots, but if he gets one right, it could have a pretty major impact.
One of their two flagship titles on Steam - Early Access survival horror game Die Young - has been received well enough, but the developers believe piracy is enough of a problem to necessitate an unusual solution: Players unable or unwilling to buy the game are able to just download it, directly and DRM free, from the Indie Gala site.Speaking candidly, Indie Gala state that piracy is a double-edged sword. For a smaller independent title such as Die Young with little marketing budget, it helps to get eyes on the product, even if they are piratical ones. Less good is that pirated copies tend to be older, less stable builds, and potentially located on malware-strewn sites. The move to just allow access to the game direct seems to be done with the intent of at least converting some would-be pirates to customers as development continues.Now, the key to this is that Die Young is still in active development in Early Access. The free version the studio is giving away is nearly the entire product as it currently stands, but those freely given versions won't receive the updated content that gets developed. For that, downloaders will have to transition to the Steam version of the game. In that way, this is a strange sort of hybrid between a game demo, playtesting an early build, and the try-before-I-buy scenario so many of those that admit to pirating games have claimed they engage in. For all this to be embraced by the game studio itself is the difference here, along with its claim of concern that gamers could get malware from untrustworthy sites.It's easy to see how this could work. Gamers who like the content will want the updates and some of them will go to Steam to get them legitimately. Some gamers will be willing to try the game out since it's free when they might otherwise not have and, if they like it enough, will go to Steam to get the updated game legitimately. And some gamers will simply want to support a studio that has treated the larger gaming community so well and will go to Steam to get the game legitimately.There's no downside to this. Piracy does exist, but by utilizing free content and treating people in a way that's human, its effects can be greatly mitigated.
RG's users could continue "claiming”, i.e. agreeing to make public or uploading documents in the way they may have become accustomed to with RG's site. An automated system, utilizing existing technologies and ready to be implemented by STM members, would indicate if the version of the article could be shared publicly or privately. If publicly, then the content could be posted widely. If privately, then the article would remain available only to the co-authors or other private research groups consistent with the STM Voluntary Principles. In addition, a message could be sent to the author showing how to obtain rights to post the article more widely. This system could be implemented within 30-60 days and could then handle this "processing" well within 24 hours.In other words, an upload filter, of exactly the kind proposed by the European Commission in its new Copyright Directive. There appears to be a concerted push by the copyright industry to bring in upload filters where it can, either through legislation, as in the EU, or through "voluntary" agreements, as with ResearchGate. Although the lawyer's letter is couched in the politest terms, it leaves no doubt that if ResearchGate refuses to implement STM's helpful suggestion, things might become less pleasant. It concludes:
On behalf of STM, I urge you therefore to consider this proposal. If you fail to accede to this proposal by 22 September 2017, then STM will be leaving the path open for its individual members to follow up with you separately, whether individually or in groups sharing a similar interest and approach, as they may see fit.What this latest move shows is that publishers aren't prepared to allow academics to share even their own papers without permission. It underlines that, along with fat profits, what the industry is most concerned about in this struggle is control. Academic publishers will graciously allow ResearchGate to exist, but only if they are recognized unequivocally as the gatekeeper.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+
"Successful exploitation of these vulnerabilities may allow a remote attacker to gain unauthorized access and impact the intended operation of the pump. Despite the segmented design, it may be possible for an attacker to compromise the communications module and the therapeutic module of the pump.Impact to individual organizations depends on many factors that are unique to each organization. ICS-CERT recommends that organizations evaluate the impact of these vulnerabilities based on their operational environment and specific clinical usage."Both the FDA and DHS have ramped up the attention they're giving such vulnerabilities, recently having issued similar first ever warnings about flaws in pacemakers by St. Jude Medical, which can be similarly abused to kill patients. And while this is all wonderful news if you're a wetworker operating in an environment where such flaws take years to discover much less fix, it's decidedly less fun for the companies being criticized for half-assed security measures. In most cases, the companies impacted make it their top priority to downplay the risks involved, as the Smiths Group did in its statement on the vulnerabilities:
The possibility of this exploit taking place in a clinical setting is highly unlikely, as it requires a complex and an unlikely series of conditions.Except six of the vulnerabilities in question simply involve the use of hard-coded credentials, the same problem that has plagued the home router market for years. For its part, Smiths says it's working hard to implement a fix for the flaws -- that might be released in January 2018. In the interim Smiths is urging hospitals to assess the risk, change the default login credentials, and disconnect these devices from the network where necessary. But considering the low quality of IT support in most hospitals (a major reason for a massive spike in hospital ransomware attacks) -- there's certainly no guarantee of any of these mitigation measures actually happening.
"No bullshit: if I could do it all over again I would have found another court order injunction for removal of links (probably something that can be found online pretty easily) made changes in photoshop to show the links that I wanted removed and then sent to 'removals@google.com' as a pdf — showing the court order docket number, the judges [sic] signature — but with the new links put in," Arnstein wrote in a July 2014 email, according to his criminal complaint. "Google isn't checking this stuff; that's the bottom line b/c I spent $30,000 fuckin thousand dollars and nearly 2 fuckin years to do what legit could have been done for about 6 hours of searching and photoshop by a guy for $200., all in ONE DAY".The DOJ -- aided greatly by Arnstein generating plenty of evidence against himself -- pulled the trigger on a federal indictment. And, thanks to several other cases of rep management firms defrauding courts, Google is indeed "checking this stuff," limiting the effectiveness of impersonating judges and/or sliding bogus paperwork past them.Arnstein has now pled guilty to a conspiracy charge, the DOJ reports.
ARNSTEIN, 40, of Kailua, Hawaii, pled guilty to one count of conspiracy to forge a judicial signature, which carries a maximum sentence of five years in prison. The maximum potential sentence is prescribed by Congress and is provided here for informational purposes only, as any sentencing of the defendant will be determined by the judge.And one more bit of schadenfreude:
Acting Manhattan U.S. Attorney Joon H. Kim said: "As he admitted today, Michael Arnstein exploited the authority of the federal judiciary in a blatantly criminal scheme. By forging court orders and the signature of a U.S. District Judge, Arnstein was able to effectively erase websites critical of Arnstein's business from its search results. Now Arnstein awaits sentencing in the same court he impersonated."Some sympathy is warranted for those hoping to battle negative reviews. Even illegitimate negative reviews can be close to impossible to remove from the web. But if the system seems unfair, it has to be. Making it easier to remove bogus reviews would just make it easier for companies/individuals who've earned every acidic word in their negative reviews to scrub the web of bad things.The internet may be a well-oiled hate machine, but it's also a handy source of reference for customers who want to emerge unscathed from interactions with providers of goods and services. Easy delistings would turn the web into a cheery place where every company appears to exceed expectations, even as they screw their customers over.
Narcos Productions, LLC (NPL) — the company behind the series and its popular video game spinoff Narcos: Cartel Wars — contend that without NPL's "knowledge or consent, on Aug. 20, 2016, Escobar filed use-based applications to register the marks NARCOS and CARTEL WARS with the [U.S. Patent and Trademark Office] covering a range of goods and services." Those services include everything from "downloadable ring tones" and "sunglasses, decorative magnets" to "temporary tattoos, bookmarks and sheet music," according to the trademark application documents included with the letter. The letter calls the claims "fraudulent." "For example," writes NPL attorney Jill M. Pietrini, "Escobar claims that it has used NARCOS in connection with things like 'operating a website' and 'game services provided online from a computer network' since Jan. 31, 1986. However, the internet had not been developed for widespread consumer use in 1986, nor was the capability to provide audiovisual works nor game services available at that time."So basically the lawyers for the show are demonstrating how flimsy Escobar's attempts to setup a legal way to extort the show are. Trademark law is quite clear on the rights it affords to those who are the first to use a trademark in commerce and ought to act as a shield to these attempts. Despite that, emails obtained by THR from Escobar's legal team to Escobar himself seem to indicate that Narcos is considering just paying Escobar to go away anyway.
In a subsequent email correspondence obtained by THR and dated Sept. 1, an attorney for Escobar Inc. at Century City-based Browne George Ross LLP informs his client that he and Pietrini had a productive conversation about the claim."I floated the idea of paying you for an assignment or license or release related to your pre-exisiting rights in the trademarks in certain categories," Wesley writes. "She seemed to see the logic of exploring those discussions. She is going to speak with her client and get back to me."While there is no clear commitment to a licensing deal there, the entertainment industry is notorious for paying people like this to go away, so it's not entirely out of the question. Given the clear legal framework here, however, as well as the personalities involved on the other side, it strikes me as fairly ludicrous that the show's producers would want any part of paying a former member of the cartel for no clear legal reason. Escobar's lawyers are making a lot of noise about how if Escobar chooses not to settle for whatever Narcos might be willing to pay him, then they "own the trademarks", which certainly is not remotely true here in the United States.Adding to how strange all of this is would be the fact that a location scout for the show, Carlos Munoz Portal, was murdered in Mexico in recent weeks while scouting locations for Narcos' fourth season. While the facts surrounding Portal's death remain unknown at the time of this writing, Escobar has been rather cryptic on the topic.
Speaking Monday to The Hollywood Reporter, Escobar's 71-year-old surviving brother, Roberto De Jesus Escobar Gaviria, suggested the show's producers are not cut out for filming in such cartel-infested locales as Mexico and Colombia, adding that they would benefit from the hiring of "hitmen ... as security."As for whether or not anyone at Escobar Inc., including Gaviria, currently has any knowledge regarding what happened to slain location scout Portal, Gustafsson would only offer, "No comment on that. But Escobar Inc. cooperates with all law enforcement."It's as likely as not that Escobar is merely playing coy on this topic to add some gravitas to his threats and demands to Narcos and Netflix, but the comments are chill-inducing considering the source. Regardless, the merits of the trademark claims at hand remain fairly clear. Talks of Narcos capitulating or not, it's difficult to imagine a $1 Billion payday for Escobar coming anytime soon.
"That target list presents a new wrinkle in the unfolding analysis of the CCleaner attack, one that shifts it from what might have otherwise been a run-of-the-mill mass cybercrime scheme to a potentially state-sponsored spying operation that cast a wide net, and then filtered it for specific tech-industry victims. Cisco and security firm Kaspersky have both pointed out that the malware element in the tainted version of CCleaner shares some code with a sophisticated hacking group known as Group 72, or Axiom, which security firm Novetta named a Chinese government operation in 2015."One configuration file on the attackers' server was also set for China's time zone, though of course neither of these are enough solid evidence to definitively conclude state-sponsored involvement... yet. In an updated post to its website, Avast has been forced to concede that their initial claim that the second, multi-staged payload was never delivered was false, and that the total number of compromised machines at these targeted companies is "at least in the order of hundreds":
"First of all, analysis of the data from the CnC server has proven that this was an APT (Advanced Persistent Threat) programmed to deliver the 2nd stage payload to select users. Specifically, the server logs indicated 20 machines in a total of 8 organizations to which the 2nd stage payload was sent, but given that the logs were only collected for little over three days, the actual number of computers that received the 2nd stage payload was likely at least in the order of hundreds. This is a change from our previous statement, in which we said that to the best of our knowledge, the 2nd stage payload never delivered."Cisco also warned impacted tech companies that deleting the software itself off of infected PCs is no guarantee that the threat has been mitigated, since the payload may have installed a second payload on their networks with its own, still-active command and control server. Like previous attacks of this type, the reported scope of the sophisticated attack is likely to only grow as researchers dig deeper.As several outlets were quick to correctly note the attack on CCleaner highlights a supply-side security problem at a growing number of software companies like Ukrainian accounting software MeDoc and South Korea-based firm Netsarang, which both passed on malware to trusting clients in the last few months. Traditionally we've comforted ourselves by insisting we're safe if we just avoid untrusted app stores, dubious attachments, or questionable links -- but this attack further up the software supply chain erodes public trust, which could deter users from using or updating essential protection.
Undertexter.se has had a police raid this morning (July 9) and servers and computers have been seized, and therefore, the site is down. We who work on the site don't consider an interpretation of dialog to be something illegal, especially not when sharing it for free. Henrik Pontén [the copyright industry's primary henchman in Sweden], who is behind the raid, disagrees. Sorry Hollywood, this was the totally wrong card to play. We will never surrender. [...] We must do everything in our power to stop these anti-pirates. [...]Well, the fight is now over and, unfortunately, the man behind Undertexter has been convicted of copyright infringement.
The Attunda District Court sentenced the now 32-year-old operator to probation. In addition, he has to pay 217,000 Swedish Kroner ($27,000), which will be taken from the advertising and donation revenues he collected through the site.While there were millions of subtitles available on Undertexter, only 74 movies were referenced by the prosecution. These were carefully selected to ensure a strong case it seems, as many of the titles weren’t commercially available in Sweden at the time.During the trial, the defense had argued that the fan-made subtitles are not infringing since movies are made up of video and sound, with subtitles being an extra. However, the court disagreed with this line of reasoning, the verdict shows.What ultimately happened here is that Undertexter had translations for a few films available legitimately in Sweden and the prosecution proceeded to essentially pretend like those films were the whole story. The reality is that sites like Undertexter are primarily useful because those legitimate options, including the relevant language translations, are not available. Sites like this are used by many who buy movies and television and then apply the fan-subs afterwards. Customers who would, in other words, not be able to be customers if not for the fan-subs. The piracy portion of these subtitles is incidental to the mission, in other words, but the copyright industries in Sweden claimed that piracy was really the whole point.On the other hand, one wonders exactly how much Swedish tax money was spent to bring a guy who ran a subtitle site to the tune of probation and $27,000? Is this really the best use of everyone's time?
Plaintiff is informed and believes and based thereon alleges that Defendant Solvera Group, Inc. (“Solvera”) is a California corporation incorporated under the laws of California, and orchestrated some or all of these schemes of fake litigation to remove consumer reviews.The allegations are repeated numerous times, thanks to the long list of defendants. But here's one rundown of the rep management scam, apparently involving Solvera and the two California lawyers.
Plaintiff is informed and believes and based thereon alleges that Defendant Solvera or Doe Corporation, operating as a reputation management company, conceived of the plan and organized the cooperation of Hair Solutions, Radonich, and Owen T. Mascott to bring the plan to fruition.Since September 2010, at least 949 individuals have posted complaints about Keranique on PissedConsumer.com. Additionally, numerous comments have been posted by third parties in response to those complaints. The majority of the comments have been negative.Plaintiff is informed and believes and based thereon alleges that at the bequest of Defendant Solvera or Doe Corporation and with the full cooperation of Defendant Radonich, Mr. Mascott filed a complaint on behalf of Hair Solutions against Radonich for defamation.In the underlying action the conspirators sought only injunctive relief. Specifically, the complaint requested an injunction that Radonich be “ordered to take all action, including but not limited to, requesting removal from the Internet search engines including Google, Yahoo!, and Bing of all defamatory, disparaging, libelous, and false statements about Plaintiff that Defendant has posted on the Internet.”Mr. Mascott filed the Complaint on January 7, 2016. On information and belief, at all relevant times Mascott knew that Radonich was not the author of the statements at issue in the Radonich Case, and thus was not a proper defendant in that case.Shortly thereafter, on January 13, 2016, Mascott filed a Stipulation for Final Judgment and Permanent Injunction with the Superior Court, containing a jurat from Radonich dated January 9, 2016. (See Exhibit 5.) On information and belief, Mascott coordinated with Radonich as Radonich’s attorney in acquiring this stipulation, such that he simultaneously represented both parties in the Radonich Case.Having obtained a stipulated injunction from the Court, the conspirators then approached various search engines including, on information and belief, Google, Yahoo!, and Bing and requested that those search engines deindex the pages of Pissed Consumer. Instead of limiting the deindexing to the pages that contained statements Radonich claimed to have posted, the request to deindex included all web pages with entries about Keranique.By engaging in this scheme, Defendant Conspirators obtained a court order under false pretenses and used the court order to persuade popular search engines to deindex every statement about Keranique, including the First Amendment protected statements of opinion and true fact posted by other individuals who were not a party to the underlying action.And on it goes for several pages, detailing reputation management companies creating sham companies and bogus defendants -- with the apparent assistance of cooperative lawyers -- to delist content for paying clients. Whether or not clients actually knew this was happening remains to be seen, but the Texas AG's complaint claims Solvera lied to both its customers and the lawyers it used about the lawsuits it was filing. However, the two lawyers named here appear to have been complicit in the scheme, although they may never have been used directly by Solvera.Needless to say, Google has stepped up its rejections of questionable court orders targeting protected speech. The increased scrutiny makes this fraudulent scheme less of a sure thing for shady reputation management companies. In Solvera's case, nuking criticism with fraudulently-obtained court orders was apparently big business, with its owner claiming to charge $50,000-$100,000 for this delisting service. (He's also a fan of Right to Be Forgotten, which makes cosmic sense but not business sense.) Hopefully, Solvera socked some of that cash away. It's got a lot of people to answer to.
Unfortunately for Defendants, the Ninth Circuit has not recognized a genericness ab initio theory of defense. Instead, the Ninth Circuit very clearly states that there are only five categories of trademarks: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005). No case law from this circuit separates genericness into two different types nor have Defendants provided the Court with Ninth Circuit precedent that adopts their arguments. Accordingly, as there is no dispositive basis or Ninth Circuit jurisprudence to accept an argument revolving around a generic ab initio defense, the Court GRANTS Plaintiff’s motion for summary judgment on this contention.So, yeah, not a real good look on the part of the SLC's legal team. Later in the ruling, the court goes on to rule against SLC's motion for summary judgement, which was essentially asking the court to rule that "comic con" is now a generic term. The court declined to do so, moving the case forward. But it's important to note that the court, in a ruling that otherwise dealt somewhat harshly with SLC's lawyers, makes a point of noting that it did not deny the motion because Salt Lake City doesn't have the facts on its side. Instead, the court notes that in motions like this, favorable weight is generally given both to the plaintiff and to any holder of a valid trademark (the plaintiff again, in this case), and that's what precludes the court from granting a summary judgement. The ruling goes on to state:
After a careful review of the parties’ moving papers, the applicable law, and the evidence on the record, the Court finds that Defendants have satisfied their burden of demonstrating a genuine issue of material fact as to genericide. “Federal courts [] view usage of [a] term by competitors in the industry as strong evidence of how the public perceives them.” Classic Foods Int’l Corp. v. Kettle Foods, Inc., 468 F. Supp. 2d 1181, 1190 (C.D. Cal. 2007). “The more members of the public see a term used by competitors in the field, the less likely they will be to identify the term with one particular producer.” Id. Here, Defendants produce evidence that demonstrates that “comic cons” are held in nearly every state of the United States including New York Comic Con, Amazing Arizona Comic Con, Emerald City Comic Con, and Tampa Bay Comic Con. (Doc. No. 223-1 at 39, 101, 129, 160.) This evidence of over 100 competitors using the unhyphenated form of Plaintiff’s trademark strongly suggests that the mark is generic. Consequently, this is persuasive evidence of genericide. See CG Roxane LLC v. Fiji Water Co. LLC, 569 F. Supp. 2d 1019, 1027 (N.D. Cal. 2008) (holding that a competitors use of a mark is compelling evidence of genericness as it reflects how the public identifies the term).Due to that, the court denied San Diego Comic-Con's motion to deny SLC that defense. So, when the trial moves forward now, it should be clear exactly what the defense by Salt Lake City will be: generecide. Given this ruling's opinion of the facts on that question, it appears that defense will be quite strong.It's something of a canary in the coal mine for the SDCC, in other words. I somewhat expect we'll now hear more talks of a settlement before this goes much further.
According to ghacks.net, a new firmware update for HP Officejet printers released yesterday appears to be identical to the reviled DRM update released exactly one year ago. When you try to use third-party ink after installing the new/old firmware, you apparently run into an error that says “One or more cartridges appear to be damaged. Remove them and replace with new cartridges.” Depending on how many cartridges your specific printer uses, it may be possible to insert one or two without getting an error. But it seems when all of the ink cartridge slots are filled up, the warning message will be displayed again.Just like a year ago, this restriction is being foisted upon consumers under the guise of a security update, powered by a service HP calls its "Dynamic Security" platform. Fortunately, consumers have several paths to avoid dealing with this nonsense. Customers can head to the HP support website and download an alternate firmware without the Dynamic Security platform embedded (something that HP knows most users won't do, and which places the onus for remedying HP's bad behavior on the end user). Users then have to block HP's automatic update functionality to prevent this firmware from being installed automatically (at the cost of useful updates).There's probably an easier, more elegant solution: stop buying HP printers until the company realizes that eliminating device functionality under the pretense of security is obnoxious bullshit.
Last week the major record labels managed to take out YouTube-MP3, the largest ripping site of all. Still, there are many like it that continue business as usual. For many music industry insiders, who see streamripping as one of the largest piracy threats, this is a constant source of frustration.In the UK, music industry group BPI worked hard to tackle the issue proactively. Last year the organization already signed an agreement with YouTube-MP3 to block UK traffic. This limited the availability of the site locally, but the group believes that YouTube itself should take responsibility as well.The crux of the plan, according to industry insiders, appears to be to get YouTube involved to block these sites from ripping its content into audio format. Between complaining that YouTube hasn't threatened enough legal action of its own and some rather silly complaints revolving around Google "steering" traffic to ripping sites via autocomplete on Google searches of all things, something of a full court press appears to be on. And, in one sense, it's understandable. Music groups that allow their music to be on YouTube look for the advertising revenue that comes along with it. One imagines that running a video through these ripping sites doesn't trigger that same ad revenue, otherwise nobody would be complaining.But here's the thing: there are a ton of legitimate uses outside of the music business to use these sites. I use them all the time. I primarily use them for videos that are essentially speech-based content so I can listen to them on the go. History lectures, public debates, reviews: they're all on YouTube, they're all perfectly listenable in audio format, and none of the makers of that content are shouting about YouTube MP3 rips.So what we're left with again is the content industries attacking a tool with legitimate uses simply because some percentage of the public uses it in a way they don't like.
It recently revised a “Press Release and Public Information Policy” that provides guidance for police officers regarding how, what, and when information should be given to the press and public. The revisions came in July, and local journalists aren’t happy.“The policy leaves it up to individual state troopers to determine what is news and what isn’t,” Michael Donoghue, the executive director of the Vermont Press Association, tells CJR. “Crimes, including sexual assaults, armed robberies, arsons, burglaries, embezzlements, drugs, and more are not required to be disclosed. Vermonters want to know if they are safe in their homes and out on the streets.”The new policy [PDF] prefers ambiguity to clarity and transparency. Worse, it allows officers and police officials to make subjective calls on newsworthiness, which is obviously going to make policing the police that much more difficult. This part is particularly problematic, as it restricts dissemination of information to that which is subjectively defined as "significant public interest."
Press releases will be issued as soon as practicable for significant incidents of public interest, including, but not limited to arrests, citations, road closures, hazardous scenes and motor vehicle crashes.Beyond that, VSP will withhold all info that "could identify" victims of crimes. This would include those who are on the receiving end of criminal activity by law enforcement officers. As Peters points out, this may nod to privacy, but does very little for public safety. (Not to mention accountability…) This would allow officers to withhold information that might be actually useful to the public, like the areas where repeated criminal activity is being observed.Even as it places more limits on dissemination, the State Police is playing up its supposed "consultation" with local journalists when revising its policy. That's as much of a sham as the new policy.
While the police say they consulted the press (the state public-safety head wrote in a July letter-to-the-editor that the police “met with and had several discussions with and solicited input from” local journalists), the press association didn’t receive a final draft of the revisions before they were implemented.Donoghue says the formal consultation amounted to one meeting with two officials. Another press association leader then asked to meet with the public-safety head, who hadn’t attended the meeting except to offer a brief welcome. That request wasn’t granted, and there was no follow-up meeting involving the press.When asked directly about the changes (and their tendency to make dissemination of information even less likely), the Police spokesman offered up some talking points, but little in the way of clarity. He told Waterman the policy tries to strike a balance between the public's right to know and individual privacy and the integrity of criminal investigations. The spokesman also pointed to the department's 14 press releases a day as evidence that it's all over this transparency thing. But, as is pointed out by the policy's critics, 14 releases a day isn't much when there are more than 300 officers on staff. The VSP issues press releases for things like driving with a suspended license and other misdemeanors. If this minutia is supposed to be evidence of transparency, what are the other 300 officers doing with their time?The faux consultation and the broad language attempt to disguise the self-interested policy rewriting. Law enforcement agencies are rarely paragons of transparency. The new rules the State Police wrote itself with almost zero consultation will only serve to keep more information out of the public's hands.
In a stunning move, the House of Representatives on Tuesday approved an amendment to the Make America Secure and Prosperous Appropriations Act that will roll back Attorney General Jeff Sessions’s expansion of asset forfeiture.Amendment number 126 was sponsored by a bipartisan group of nine members, led by Michigan Republican Rep. Justin Amash. He was joined by Democratic Reps. Ro Khanna of California; Washington state’s Pramila Jayapal, a rising progressive star; and Hawaii’s Tulsi Gabbard.If this passes the Senate untouched, the amendment will roll things back to 2015 -- once again prohibiting federal adoption of local forfeitures. It would make state and local agencies play by the rules set for them by their legislatures, rather than allow them to bypass protections put in place to discourage abuse of programs loaded with the most perverted of incentives.
Appreciate the support guys, but that's the wrong logo 🤔 https://t.co/quF1xTq1xP— Cal Athletics (@CalAthletics) September 6, 2017
Larpenter has reached a settlement in the civil suit filed against him by Jennifer and Wayne Anderson, whose home was raided by Larpenter's deputies in 2016 after Jennifer blogged critically about the sheriff."I think the sheriff's finally learned that he can't bully people and violate people's constitutional rights," Wayne, a Houma police officer, told local station WWLTV. "In our case, he stepped on the wrong people's constitutional rights because we knew our rights. Hopefully, he thinks twice the next time he gets his feelings hurt."If Larpenter is going to think twice, it will be because a federal court -- in no uncertain terms -- told him he travelled far outside Constitutional confines and the boundaries of his job to harass a critic. The decision opened with this memorable line:
Some qualified immunity cases are hard. This case is not one of them.It went on from there to explain there was no legal precedent that offered cover for his actions, pointing out no reasonable law enforcement officer could possibly believe abusing a statute already found unconstitutional could possibly be Constitutional.The Andersons have already received $50,000 from Terre Bonne Parish for its participation in this debacle. The amount of Larpenter's settlement is still undisclosed.Despite all of this, there's been no action taken by Terre Bonne Parish to punish Sheriff Larpenter for his actions. This will hopefully be corrected. $50,000 has already been transferred from the parish to the Andersons for his 1st and 4th Amendment violations, and it's unclear who will actually be paying for the most recent settlement. Someone who thinks they can use the powers granted to them by constituents to engage in foolhardy witch hunts against critics can't be trusted to impartially handle the job of law and order.
The Fredericton-based craft brewery announced through social media it's putting the popular organic dark wheat beer "to rest" after losing a lengthy legal battle with another company over trademark infringement. The Facebook post does not name the other company, but Picaroons Traditional Ales owner Sean Dunbar confirmed it's liquor giant Goslings.Picaroons received a cease and desist order from Goslings, saying the beer infringed on its Dark 'n Stormy cocktail, made with Gosling's Black Seal Rum and Gosling's Stormy Ginger Beer."We tried, you know, saying 'Please,'" Dunbar said. "We tried arguing that the two products really didn't have anything to do with each other."Those arguments didn't work. And I would think such arguments shouldn't even be necessary for a couple of reasons. First, and, damn it, I'm going to keep shouting about this until the USPTO finally listens: not all alcoholic drinks compete in the same marketplace and trademarks should afford more subtelty to those market distinctions. Wine, beer, liquor, cocktails are all distinct items for a shopper. With sufficient differences in names and branding, nobody is going to mistake a wine company for a beer company, or a beer company for a liquor company. "Dark 'n Stormy" and "Dark and Stormy Night" aren't completely distinct, but they're distinct enough when placed on different types of drinks to be discernable to the common consumer.And about that "Dark and Stormy Night" brand name itself. Dunbar claims he got the term for his beer from a Peanuts comic strip, which is perplexing to me because "It was a dark and stormy night" is a cliche opening for a work of fiction. That's what it's known for and, in some circles, it's used essentially as a joke that references a lack of creativity. A dark 'n stormy cocktail, however, references the stormy weather in the Carribean where the term was coined. I personally never would have made the connection from the beer's name to that of the cocktail, and I'm not sure many others would have either.But, rather than fighting this out in court, Picaroons decided to cave and kill the brand.
Picaroons said in its Facebook post that the brew at the centre of the dispute had been in production for 11 years."We certainly did not go out without a fight, though after months and months we've officially lost the battle and are now retiring our lightest dark beer."Dunbar said the company worked with a local trademark lawyer and "would have loved to defend it to the hilt," but decided taking it all the way to court wasn't worth the expense."Good bye old friend," the Facebook post said. "RIP."And so another craft beer brand commits suicide rather than fight for its life in court, proving once again that trademark bullying works.
Registrations for UK beer brands increased by 19 per cent in the last year, according to London-based law firm RPC. The number of new trade marks rose from 968 in 2007 to 1,983 in 2016. The firm said the wave of trademarking came in the wake of craft beer's increased popularity.For anyone paying attention to the effect stringent trademark laws and our protectionist culture can have on an industry, the craft beer market is going to provide a wonderful lesson. If proponents of strict trademark law are to be believed, if trademark laws are generally benign or to the public benefit in other words, then the growth will continue. If those of us who have foreseen the coming disaster for some time are correct, however, growth will slow and trademark disputes will explode.It's almost a perfect storm for this kind of thing. Craft brewing has elements both of skill and creativity to it. The industry long operated on the fringes of trademark law, with brewers rarely going to battle over creatively named beers and companies. While we've already stated that this practice has begun to change over to protectionism, the doubling of trademark registrations in only a decade's time within a rapidly growing industry, is the kind of outlier that will give us an answer to how trademark laws impact the industry.
Jeremy Drew, a commercial partner at RPC, said the craft beer sector has been "booming"."With more players in the market it's becoming more important that companies protect their intellectual property," he said, adding that an increase in trademarks could lead to more legal disputes between brands.It seems obvious to this writer that an increase in disputes will slow growth and scare off potential entries to the market. It may also result in breweries closing due to legal costs and disputes. If that indeed happens, it seems clear that the public is not benefiting from a craft beer market that isn't maximized, either in consumer options or in benefits to the wider economy. After a decade of explosive trademark registrations, the coming decade in the craft brewing industry is going to be very instructive.
The panel affirmed the district court’s order denying the defendant’s motion to suppress contraband seized during a warrantless search of the defendant’s truck.The panel held that under the totality of the circumstances, there was probable cause to believe that contraband would be found in the truck, and that the search was therefore permissible under the automobile exception to the warrant requirement.It's the "totality of the circumstances" that's the problem. The court did a lot of scribbling in the margins to help the government's probable cause math add up. The DEA had lots of stuff that was almost proof of something, but lots of key elements were missing. The opinion is riddled with details of agents verbally filling in gaps in their surveillance with assumptions.
[A]gents intercepted another call between Penitani and Faagai, in which Faagai was attempting to locate Penitani at the Pearlridge Shopping Center for what appeared to be a pre-planned meeting. Drug Enforcement Administration Special Agent Clement Sze (“Special Agent Sze”) testified that he believed that although agents were not able to conduct surveillance of that meeting, they believed, based on the entirety of their investigation, that Penitani and Mitchell were meeting Faagai to supply him with methamphetamine.The beginning of the DEA's bad math: a meeting agents did not actually hear or see. More fuzzy math follows.
On November 5, 2012, agents intercepted a text message from Faagai to Penitani in which Faagai said that he was going to Costco in Kapolei “to buy food for [his] house” and that if Penitani “gotta buy food for [Penitani’s] house,” they should meet at Costco. Special Agent Sze testified that he believed that Faagai was using “food” as a code word for “money.”Or it could just be food. Since the defense didn't challenge these assertions, the Appeals Court decides to take the agent at his word. Agents attempted to catch the dealers in the act, but missed an opportunity.
Agents traveled to the Costco in Kapolei and observed Penitani and his then girlfriend, Keschan Taylor, exit Costco and drive away. Agents did not see Faagai in the area, but Special Agent Sze testified that the agents believed that the meeting between Faagai and Penitani had already taken place.Another unobserved meeting, presumed by the government to have taken place and, presumably, been of an illicit nature.Having intercepted another conversation about "food" and "tools" to take place at a local restaurant, agents headed out to observe the hand-off. Again, they missed their marks.
Law enforcement agents conducted surveillance at the Jack In The Box and did not see Faagai or Penitani. At 8:14 p.m., agents intercepted a text message from Penitani to Faagai changing the location of the meeting to a 7-Eleven. The agents drove to the 7-Eleven at 8:30 p.m., where they saw Faagai in the parking lot, leaning into the passenger side window of Penitani’s car. Penitani and Faagai had already been there for approximately 15 minutes.Once again, Special Agent Sze makes an assumption and, once again, the court finds it credible.
Special Agent Sze testified that he believed that the drug transaction had already occurred by the time agents arrived on scene.Based on this wealth of horseshoe/hand grenade information, agents performed a pretextual stop and proceeded to search Faagai's vehicle without a warrant. A half-pound of methamphetamine was discovered along with the usual paraphernalia. The Appeals Court says all the gaps in info and all the assumptions made about unobserved meetings and unheard conversations is fine. It all adds up to Faagai's vehicle being the "more than likely" final resting spot of drugs no DEA agent actually saw change hands.
At the 7-Eleven, agents observed Faagai walk away from Penitani’s car and toward his own truck without anything in his hands. Agents did not observe the entirety of the meeting, which lasted roughly 15 minutes. Because the circumstances indicate the purpose of the meeting was to engage in a drug transaction, there is probable cause to believe that Penitani had delivered drugs (the promised “tools”) to Faagai, and that these drugs could be found in Faagai’s truck.Why in Faagai’s truck? We know that there was probable cause to believe Penitani brought the “tools” (the drugs) so that Faagai could “get back to work” and not “lose [his] job” (deal the drugs). We know that Faagai arrived at the 7- Eleven in a vehicle, because he drove away in his truck. When the police saw Faagai leaning into the window of Penitani’s car, he had nothing in his hands.Where could the “tools” (drugs) be located? In Penitani’s car? Unlikely, because the purpose of the meeting was for Penitani to deliver drugs to Faagai and Faagai left the scene in his truck. On Faagai’s person? Perhaps, but unlikely given that in prior transactions, Penitani had dealt in pounds of methamphetamine. Hidden in the environs of the 7- Eleven? Unlikely, given the high value of the drugs. In Faagai’s truck? More likely than not.Judge Kozinski's dissent illustrates the dangers of allowing the government to substitute expertise for observation when it comes to commonly-used terms and meetings no one saw take place.
The government’s entire case rests on four meetings between Faagai and John Penitani, a suspected meth dealer. Despite observing most of these meetings and assiduously wiretapping Penitani’s phone, officers never saw a handoff of money or contraband, nor heard an explicit mention of drugs. In fact, they saw and heard nothing objectively suspicious.The most probative evidence supporting the search was a conversation between Penitani and Faagai where they discussed meeting at Costco to buy food. Agents testified that they “believed [food] to be a code” for drugs. But there was no expert testimony or any other evidence supporting the speculation that food stood for drugs. See United States v. Bailey, 607 F.2d 237, 240 & n.6 (9th Cir. 1979) (discussing expert’s testimony on the meaning of alleged code words). Many people go to Costco to buy food. If talking about shopping for food at Costco were sufficient to justify a search, many of us would be searched by the police twice a week—thrice right before Thanksgiving. Nor does it make any sense to substitute food for drugs when talking about where to meet. If Penitani and Faagai were meeting up to conduct a drug deal, why specify the purpose of the meeting? Why say “Let’s meet at Costco for a drug transfer” rather than just “Let’s meet at Costco,” with the purpose of the meeting understood?A few judges have called out the government for this behavior, making claims that would turn a large number of non-criminals into potential suspects. Drug dealers are humans and do human things just like millions of non-drug dealers. They shop at Costco just like innocent people do. But the government would have us believe -- "based on training and expertise" -- that common activities are suspicious, especially when the government is already engaged in an investigation. Even the most innocuous actions become sinister when the government is seeking to reach a foregone conclusion.But there's more to it than that. Kozinski also points out the DEA's "training and expertise" statements often paint contradictory situations as equally suspicious. If the government wants to keep making arguments about common activities being the height of criminal suspicion, the least it could do is be consistent.
The fact that the two men decided to meet in a place with “hardly any people” cuts the wrong way. The government commonly argues that drug dealers intentionally seek out busy locations because a “high volume of pedestrian and vehicle traffic can mask drug-dealing activity.” United States v. Ruiz, 785 F.3d 1134, 1138 (7th Cir. 2015). Here, the government claims the opposite, evidently trying to have it both ways. At best, this fact is irrelevant: There was nothing incriminating about the two men’s preference for a quieter location.Kozinski sums up his dissent this way:
The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Faagai was carrying drugs in his car when he was stopped.And here's the inevitable outcome of this decision, which is published and precedential:
Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.Edge cases like these need to be watched closely by judges. The courts have greatly expanded law enforcement power over the years at the expense of the Bill of Rights. Lowering probable cause to possible cause just makes it easier for officers to have their illegal search and their evidence too.
Said site is now unsurprisingly being flagged as suspicious by OpenDNS (and probably others) 🤦♂️🤦♂️🤦♂️ pic.twitter.com/JZOIgSQpRo— John Kelly (@mrjohnkelly73) September 8, 2017
Google have now marked the Equifax breach notification SSN check as phishing. pic.twitter.com/zb2dDQEwip— Kevin Beaumont (@GossiTheDog) September 8, 2017
Just wow. If you enter "Test" and "123456" on Equifax's hack checker page, it says your data has been breached. pic.twitter.com/cTjTs7Frjv— Zack Whittaker (@zackwhittaker) September 8, 2017
We apologize to our consumers and business customers for the concern and frustration this causes.That's a classic non-apology. It's not apologizing for its own actions. It's not apologizing for the total mess it's created. It's just apologizing if you're "concerned and frustrated."Oh, and did we mention that the very morning of the day that Equifax announced the breach, it tweeted out about a newsletter it published about how "safeguarding valuable customer data is critical." Really (again, screenshotted in case this disappears):What the fuck, Equifax? Should we even mention that Equifax has been a key lobbying force against data breach bills? Those bills have some problems... but, really, it's not a good look following all of this.And while there was some concern that signing up to check to see if you were a victim (again: look, you probably were...) would force you out of being a part of any class action lawsuit, that's since been "clarified" to not apply to any class action lawsuits over the breach. And you better believe that the company is going to be facing one heck of a class action lawsuit (a bunch are being filed, but they'll likely be consolidated).That's all background of course. What I really wanted to discuss is how this will almost certainly get worse before it gets better. More than twelve years ago, I wrote that every major data breach is later revealed to be worse than initially reported on. This has held true for years and years. The initial analysis almost always underplays how serious the leak is or how much data is leaked. Stay tuned, because there's a very high likelihood we'll find out that either more people were impacted or that more sensitive information is out there.And that should be a major concern, because what we already know here is stunning. As Michael Hiltzik at the LA Times noted, this is the mother lode of data if you want to commit all sorts of fraud:
The data now at large includes names, Social Security numbers, birthdates, addresses and driver's license numbers, all of which can be used fraudulently to validate the identity of someone trying to open a bank or credit account in another person's name.In some cases, Equifax says, the security questions and answers used on some websites to verify users' identity may also have been exposed. Having that information in hand would allow hackers to change their targets' passwords and other account settings.Other data breaches may have been bigger in terms of total accounts impacted, but it's hard to see how any data breach could have been this damaging. For over a decade, we've pointed out that credit bureaus like Equifax are collecting way too much data, with zero transparency. In fact, back in 2005, we wrote about Equifax itself saying that it was "unconstitutional and un-American" to let people know what kind of information Equifax had on them. The amount of data that Equifax and the other credit bureaus hold is staggering -- and as this event shows, they don't seem to have much of a clue about how to actually secure it.At some point, we need to rethink why we've given Equifax, Experian and TransUnion so much power over so much of our everyday lives. You can't opt-out. They collect most of their data without us knowing and in secret. You can't avoid them. And now we know that at least one of them doesn't know how to secure that data.
Lawmakers assigned to oversee the sprawling U.S. intelligence apparatus rely strongly on a staff that in recent years has included scores of onetime spooks, analysts and lawyers who previously worked at the spy agencies under scrutiny.According to a comprehensive analysis by McClatchy, at least one-third, and perhaps far more, of the professional staff members who carry out the work of the House and Senate intelligence committees are themselves veterans of the agencies that the two panels oversee.Really not a problem, I suppose, if the other two-thirds are staunch civil rights defenders and privacy advocates. But of course they're not. They're just more government employees, many of whom find defending the status quo to be a more sensible career path, one that starts with idealism (sometimes) and ends with a pension, with very little forward momentum during the intervening years.The "intelligence community" term attempts to humanize a hulking behemoth bristling with surveillance apparati, currently hoovering up $80 billion every year. And that estimate is likely on the low end, as these agencies have another, entirely-opaque budget to utilize on top of this.The other low estimate at work here is McClatchy's guess at the number of former agency employees currently working for the intelligence oversight committees. It's not always easy to sniff out the origins of staffers, especially if they've possibly spent some time engaged in clandestine activities.
McClatchy’s analysis determined the staffers’ backgrounds based on searches of LinkedIn profiles, congressional records, executive profiles and in a handful of cases, press reports, obituaries or personal interviews in which the former or current committee staff members publicly acknowledged their own intelligence background.In dozens of cases, McClatchy could not determine whether a given staff member had worked in intelligence. Some have left almost no trace on the internet, itself perhaps a telling sign of a sensitive prior professional life.According to staffers who spoke to McClatchy, the one-third estimate is way, way off. One said "all but a couple" of staffers he worked with came from intelligence agencies. Others estimated IC oversight market saturation to be 50-75%.Obviously, a dearth of intelligence experience would be less than useful for oversight committees. Experience is extremely useful but in cases where oversight is already severely lacking, stuffing the roster with IC picks is guaranteed to result in the sort of non-oversight we've become accustomed to. Not only are staffers likely to advise against additional accountability and lobby against reform efforts, they're also likely to know how to ensure any reform efforts are shot full of exploitable holes by the time they hit the president's desk.And there's no good way of fixing this that won't leave other government committees tied up in policies that prevent them from hiring anyone with subject matter expertise. Pretty much the only thing that can be done is sitting back and marveling at the breadth of the intelligence community's regulatory capture.
A Utah movie theater that dared to serve alcohol during a sexually explicit movie has won its legal battle against the state's Department of Alcoholic Beverage Control (DABC)."The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie," U.S. District Judge David Nuffer wrote for the court Thursday.The decision [PDF] details a lot of the backstory, which includes state officials singling out Brewvies to score cheap wins for the state alcohol board. It also shows the state, after harassing Brewvies multiple times, suggesting it could preview all movies before showing (the court calls this "untenable"), alter the movies it shows to edit out "obscene" content (forbidden by contracts with motion picture studios), or just stop serving alcohol (lose a great deal of its profits).It also shows an attorney at the state's attorney's office was the source of the sole complaint against Brewvies' showing of Deadpool -- the end result of which was even more harassment of the theater and, consequently, this lawsuit.
Between February 12, 2016, and March 24, 2016, Brewvies showed the movie Deadpool on one of its screens. A friend of Sheila Page, the attorney at the Attorney General’s Office who represents the DABC in enforcement proceedings, mentioned to Ms. Page that Brewvies was showing Deadpool. Once Ms. Page received the information from her friend, she sent an email to Defendant Margaret Hardie, who has been the DABC Compliance Officer assigned to Brewvies since 2014. In her email to Ms. Hardie, dated February 22, 2016, Ms. Page wrote: “I hate to bring this up, but it is just too blatant to ignore. Brewvies is showing Deadpool. The reviews describe explicit sex scenes and male and female frontal nudity. I know some people who have seen it, and they confirm that it is very raunchy amid the bloody violence. Perhaps you should refer it to [the State Bureau of Investigation].” That email, which was the only complaint received by the DABC about Brewvies showing Deadpool, triggered a referral to the State Bureau of Investigation.Undercover officers were sent to "investigate." It would have been cheaper to keep them home. All three had already seen the movie, one of them multiple times. But their attendance generated an inadvertently-hilarious report on all the naughtiness contained in Deadpool... and gave Brown's article its unforgettable title.
Officer Bullock’s report describes certain scenes of the movie in terms of the prohibitions of Subsection 7. For instance, he states that the male and female characters were “shown numerous times engaging in acts or simulated acts of sexual intercourse” and that the male character “is shown on his back under bed sheets briefly engaged in masturbation or simulated masturbation using a stuffed unicorn toy.” He also describes a scene where the woman was wearing a leather bikini, with an imagined strap-on penis “that isn’t shown,” and “has her groin area pressed against the man’s posterior,” and she tells him to relax as he is sweating and grimacing. She then bends down and says, “Happy Women’s Rights Day” during what Officer Bullock calls “the sodomy or simulated sodomy scene.”Officer Bullock also says that during one sex scene, the male character fondled the woman’s bare breasts and, finally, during the credits, Officer Bullock describes “a drawing of the main character (male) . . . ‘as he rides on the back of a unicorn, he rubs its horn briefly until the horn shoots out rainbows (simulating orgasm).”Officer Bullock (along with Officer Cannon -- Utah's pro prudes seem to have the porniest of surnames…) presented their "findings" and the state went to work getting itself sued. In the end, it's the state hearing a judge whisper "It's First Amendment Day every day!" in its ear as it drives its point home.
The State offered only one governmental interest in support of Section 7’s restrictions: avoiding potential negative secondary effects from combining sexually explicit images with alcohol. Though this may be a compelling governmental interest, Section 7 is not the least restrictive means for accomplishing it.Section 7 is overinclusive. A statute is overinclusive, and thus facially invalid, if there is a showing that the “law punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly legitimate sweep.” If the statute is found to be overinclusive it will “invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”Section 7 is overinclusive because it captures mainstream content.The court continues, pointing out how the state's alcohol regulations serve to unconstitutionally regulate speech, a definite forbidden (government) act.
Section 7 reaches “many films that are far removed from what is colloquially termed ‘hard core,’ or even ‘soft core,’ pornography.” The State admits this. It makes no contention that Deadpool is pornography. The State only argues that by analogy short portions of Deadpool are like the films typically found in an adult theater.Unlike the statute in Baby Dolls Topless Saloons, no language limits Section 7’s application to those businesses that are characterized by regularly showing sexually explicit material, who make that their essential nature. The State has violated the First Amendment by bringing an administrative enforcement action against a mainstream motion picture theater showing an R-rated movie. That demonstrates the breadth of Section 7’s reach. Section 7’s restrictions impose unacceptable limitations on speech that the State admits should be accorded full First Amendment protection.State booze regulators will have to go back to the drawing board. The statute needs to be severely narrowed before it can be considered constitutional. Undercover officers Bullock and Cannon will have to start watching R-rated movies on their own time, on their own dime, and presumably without a notebook in one hand and a hard on for free speech oppression in the other.
Sheboygan's Police Chief, Chris Domagalski, corrects errors in a story circulating on social media this week, accusing his department of withholding information from the community. The story involved the arrest of a Sheboygan man facing several felony drug charges, resisting arrest, and biting an officer at Erie and North 14th Street.[...]Domagalski, armed with facts, and the law, spoke out about the accusations, encouraging the community to be very careful about where they get their news - saying "Because you have a website and a facebook page, does not make you a journalist. When you engage in repeated unethical conduct, your character is revealed, and people should weigh that in their decision about whether they rely on you for news."This is true… partly. A website and a Facebook page does not automatically make someone a journalist. But having only a website and a Facebook page does not disqualify someone from being a journalist. There are plenty of journalists out there who've never written anything on a printed page. There are plenty of people committing journalism without ever intending to, and a lot of that revolves around requesting public records.The journalist, who Chief Domagalski says isn't one, wrote an article about this arrest, suggesting the refusal to turn over recordings of the arrest was a sign of more widespread misconduct within the force.There's not enough information out there to state definitively which side of the story is more credible. It must be noted there's no love shown for the unnamed "non-journalist" in this article's comment thread, suggesting someone who has aimed for muckraker but settled for constant annoyance.Unfortunately, the writer for WHBL Radio seems inclined to consider only those who show tons of deference to police officials to be real journalists. Those that question the actions and motives of government entities are nothing more than non-journalist interlopers.Some of that sentiment can be picked up in the first sentence of the second quoted paragraph:
Domagalski, armed with facts, and the law…That's some credible stenography right there. Then again, someone without even a Facebook page or a website could have transcribed Domagalski's statement without pausing to infer the chief was wholly in the right.There's more, though.
The Sheboygan Police Department has a number of different ways to communicate factual, verified information to the public, including services like Nixle, which will push information out as text messages or email, AND a service powered by LexisNexis, which provides real-time mapping of police calls within the city. They also maintain a social media presence on facebook and twitter, and communicate regularly with credible journalists in Sheboygan, who can accurately communicate important information about the community with the public.Apparently, people employed by WHBL will also be determining who is or isn't a "credible journalist." Defined in these surrounding terms, it will be those who publish whatever the PD provides, even if it appears to contradict what has been captured on video or gleaned from public records.I prefer my journalists to show distance, rather than deference, when covering controversial incidents involving public servants. And I don't give a damn if the journalists I read have nothing more than a Wordpress blog and a Muckrock account. What I find less than credible is coverage of police press conferences that read like low-key fan fiction -- especially ones that idolize authority figures while trotting out self-congratulatory prose. The police chief is implying he prefers deference in his journalists, and WHBL is only too happy to comply.
Appellee invoked his right to counsel at approximately 10:50 a.m. Appellee's platoon leader signed a "Receipt for Pre-Trial/Post Trial Prisoner or Detained Person," and SSG Knight escorted Appellee back to his unit, where he remained in the company area and accessed both his Kyocera phone and iPhone.[...]In the office, Investigator Tsai informed Appellee of the verbal search and seizure authorization, and Appellee questioned the validity of verbal authorizations, asking to see a written one. Around this time, the commander left the office. Investigator Tsai told Appellee that verbal authorizations are valid and asked if Appellee had any cell phones on his person. Appellee then handed an iPhone to the investigators. Investigator Tsai saw that the iPhone was protected by a numeric passcode, and asked Appellee to provide it. Appellee refused.At this point, this line of questioning should have been abandoned. Actually, it should never have begun without Mitchell's lawyer present. But the investigators apparently believed that asking, rather than ordering, Mitchell to unlock his phone made the whole thing consensual.
Investigator Tsai then handed the phone back to Appellee and asked him to unlock it, saying: "if you could unlock it, great, if you could help us out. But if you don't, we'll wait for a digital forensic expert to unlock it." Neither investigator knew at the time that Appellee's iPhone had two finger/thumb prints stored, and could have potentially been opened using "Touch ID capabilities." Appellee then entered his passcode and unlocked the phone: "[Appellee] was also required to permanently disable the cell phone's passcode protection. In order to do so, [he] was required to access the phone's settings and enter his numeric passcode (PIN) two more times to fully disable the phone's protections."The military judge at the lower level suppressed the evidence, holding that Mitchell was in custody without requested legal representation at the time he unlocked his phone for investigators. The Appeals Court affirms the lower court's findings.
Under the circumstances presented, we conclude that the Government violated Appellee's Fifth Amendment right to counsel as protected by Miranda and Edwards. The Government does not contest that Appellee was in custody when he invoked his right to counsel while detained at the military police station. It is almost equally clear that Appellee was in custody in his commander's office when investigators asked him to unlock his iPhone.The court also points out that simply asking nicely for an in-custody suspect to "help out" the government by possibly incriminating themselves doesn't make it any more Fifth Amendment-compliant, nor does it change the nature of questioning from an "interrogation" to "a couple of guys chatting about stuff with absolutely no criminal case-building implications."
This line of questioning qualifies as interrogation. The agents' initial request—“can you give us your PIN?”—is an express question, reasonably likely to elicit an incriminating response. The Government contends that a request for consent to search is not an interrogation, citing this Court’s reasoning in United States v. Frazier that “such requests are not interrogations and the consent given is ordinarily not a statement.” 34 M.J. 135, 137 (C.M.A. 1992). But asking Appellee to state his passcode involves more than a mere consent to search; it asks Appellee to provide the Government with the passcode itself, which is incriminating information in the Fifth Amendment sense, and thus privileged.The court points out the simple act of unlocking a phone can be incriminating. It demonstrates for investigators and prosecutors the person holding the phone may well be responsible for any incriminating content found on it. It also implies ownership, making it easier to connect the person to the device (and the content contained).
By asking Appellee to enter his passcode, the Government was seeking an “answer[] … which would furnish a link in the chain of evidence needed to prosecute” in the same way that Hoffman and Hubbell used the phrase. Not only did the response give the Government access to direct evidence as in Hubbell, it also constituted direct evidence as in Hoffman. See Hubbell, 530 U.S. at 39–40 (“The documents were produced before a grand jury …. The use of those sources of information eventually led to the return of an indictment ….”); Hoffman, 341 U.S. at 488 (“[T]ruthful answers … to these questions might have disclosed that he was engaged in such proscribed activity.”). As even the dissent concedes, Appellee’s response constitutes an implicit statement “that [he] owned the phone and knew the passcode for it.”Based on that, the court finds Mitchell's Fifth Amendment rights were violated by this in-custody request to provide a passcode. Unfortunately, the court considers this the end of its judicial inquiry.
In light of this holding, we need not reach the question of whether the Government directly violated Appellee’s Fifth Amendment privilege against compelled self-incrimination. We thus do not address whether Appellee’s delivery of his passcode was “testimonial” or “compelled,” as each represents a distinct inquiry.Even though the ruling doesn't extend far enough to make passcodes worthy of Fifth Amendment protections, the judicial analysis at least shows providing passwords can create evidence to be used against the accused. This decision doesn't quite stretch that far thanks to the investigators' ignoring Mitchell's invocation of his right to an attorney, but it does the act of entering passwords can be considered self-incriminating.
“Given recent media events my inspector has asked that I make an official request … for an authorization,” writes a member of the Calgary Police Electronic Surveillance Team on April 6 of this year. “There is some urgency to try and get this authorization in place as we are currently using the device.”The device in question is an International Mobile Subscriber Identity-catcher — known more commonly as an IMSI catcher, a Mobile Device Identifier, or by the brand name Stingray.The Calgary Police join the rest of the nation's police forces in the officially un-admitted to use of Stingray devices. The Royal Canadian Mounted Police is the only agency to actually hold a press briefing to announce its use of the controversial devices. All other admissions have been dragged out of agencies, either through court filings or through public records requests.Perhaps sensing the government's regulators might have a problem with a bunch of unregulated signals, Canadian law enforcement agencies are obtaining "just in case" authorization, even as they state there's nothing legally preventing them from deploying the devices without the Innovation, Science and Economic Development agency's (Canada's FCC equivalent) approval.
In the RCMP’s letter, they argue that ISED doesn’t actually need to approve their IMSI catcher. Nevertheless, they submitted an application.“The RCMP was first made aware of ISED views on the RCMP’s use of [IMSI catchers] through media coverage in late March 2016,” they RCMP wrote, in requesting “timely” approval to keep using the devices. A second letter, this time from the Ontario Provincial Police, similarly requests permission to use the devices — so similar, in fact, it is nearly word-for-word for the RCMP’s earlier request.Whether ISED will see post-dated requests as a sign of good faith remains to be seen. But there's no way cops are going to stop deploying Stingrays until proper authorization is obtained. And the top name in IMSI catchers is probably assisting agencies in keeping these devices up and running, even if it might mean playing fast and loose with the facts when asking for approval.Stingrays are the law enforcement's worst-kept secret -- on both sides of the border. A steady flow of documents that traces all the way back to a person imprisoned for tax crimes has resulted in plenty of public discussion about the privacy implications of cell tower spoofers… but very little in the way of published policies or judicial guidance. Only a couple of US courts have reached the conclusion Stingray deployments are Fourth Amendment searches. On the other side of the border things are just as unsettled.This isn't a failure of the court system. Instead, it's the result of Stingray best practices -- directly encouraged by federal law enforcement agencies like the FBI: let suspects walk rather than discuss the devices in court. But it's inevitable that more and more info on Stingray use will be divulged in court. And it all starts with paper trails like these belated requests for regulatory clearance.
“We want to promote non-discrimination, non-violence, and peace among people,” Bach told the South China Morning Post. “This doesn’t match with video games, which are about violence, explosions and killing. And there we have to draw a clear line.”The Kotaku piece points out that Bach himself won the gold medal in 1976 for fencing. While nobody would want to make the claim that competitive fencing is violent, are we really to believe that fencing is less a simulacrum for violence than a video game? Not to mention that this blanket statement that video games are about violence at their core is simply wrong, even on the competitive eSports level. Many games of course include violence. But some do not. Bach himself went on to half-heartedly acknowledge this with a nod towards sports simluations that could perhaps still be included, but the very focus on violence is frustratingly dumb. After all, boxing, judo, karate and wrestling have been or are featured Olympic events, and all of them are clearly more "violent" than video games. And that sets aside sports like water polo, which are known to be physically brutal.But violent or no, eSports athletes may find themselves not included in the Olympics over an even more laughable concern: doping.
Bach also pointed out that the esports industry remains an under-regulated space compared to traditional sports: “You have to have somebody who is guaranteeing you that these athletes doing video sports games are not doped, that they are following technical rules, that they are respecting each other.”Okay, stop it. Nobody would claim that eSports is without its drug issues, but the IOC of all organizations keeping it out of the Games over doping concerns is as farcical as it gets. The IOC would tell you, I'm sure, that it is opposite eSports in being one of if not the most regulated sporting event on the planet, and yet doping and PEDs are everywhere in the Olympics. The IOC and its event are no paragon of virtue when it comes to performance enhancing drugs. Listing that as a concern makes this whole thing seem like a joke.So what is this pushback actually about? Likely money, as with all things the IOC. If it felt that eSports being included would be a major money-maker for the IOC, these concerns would melt away faster than a Usain Bolt dash. Once eSports reaches a certain popularity threshhold, which the trend seems to indicate is likely, they'll get their Olympic bid. It just might not be in 2024.
A method for a first mobile application and a second mobile application on a mobile device to share information, comprising:the first mobile application executed by a computer processor on a mobile device determining that the second mobile application is present on the mobile device;receiving, from a user, permission for the first mobile application to access data from the second mobile application;the first mobile application executed by the computer processor requesting data from the second mobile application; andthe first mobile application receiving the requested data from the second mobile application.That's it. The claim simply covers having an app check to see if another app is on the phone, getting the user's permission to access data from the second app, then accessing that data. The '468 patent goes out of its way to make clear that this supposed invention can be practiced on any kind of mobile device. The specification helpfully explains that "the invention or portions of the system of the invention may be in the form of a 'processing machine,' such as a general purpose computer, for example." The patent also emphasizes that the invention can be practiced on any kind of mobile operating system and using applications written in any programming language. How was such a broad and obvious idea allowed to be patented? As we have explained many times before, the Patent Office seems to operate in an alternate universe where the only evidence of the state of the art in software is found in patents. Indeed, the examiner considered only patents and patent applications when reviewing JP Morgan's application. It's no wonder the office gets it so wrong.What would the examiner have found if he had looked beyond patents? It's true that in mid-2013, when the application was originally filed, mobile systems generally asked for permissions up front when installing applications rather than interposing more fine-grained requests. But having more specific requests was a straightforward security and user-interface decision, not an invention. Structures for inter-app communication and permissions had been discussed for years (such as here, here, and here). No person working in application development in 2013 would have looked at Claim 1 of the '468 patent and think it was non-obvious to a person of ordinary skill.JP Morgan's "invention" was not just obvious, it had been implemented in practice. At least some mobile applications already followed the basic system claimed by the '468 patent. In early 2012, after Apple was criticized for allowing apps to access contact data on the iPhone, some apps began requesting user permission before accessing that data. Similarly, Twitter asked for user permission as early as 2011, including on "feature phones", before allowing other apps access to its data. Since it didn't consider any real world software, the Patent Office missed these examples.The Patent Office does a terrible job reviewing software patent applications. Meanwhile, some in the patent lobby are pushing to make it even easier to get broad and abstract software patents. We need real reform that reduces the flood of bad software patents that fuels patent trolling.Reposted from EFF's Stupid Patent of the Month series.
An estimated 20 percent of Los Angeles County's 10,000 deputies have bought cameras for themselves, according to the county's inspector general. Sheriff Jim McDonnell concedes some deputies have their own cameras but disputes that as many as 2,000 wear them on duty.Whatever the number, not a single frame of any video from these cameras has ever made it into the public domain.And therein lies the problem. Body cameras owned by law enforcement officers serve zero public purpose. Any recordings remain the personal property of the officers, who can delete and edit footage as they see fit. The only footage likely to make its way into the hands of the sheriff's department are recordings clearing officers of wrongdoing.While it may be possible to subpoena this footage for civil suits and criminal prosecutions, there's no guarantee the footage will arrive unaltered, or even arrive at all. Personal body cams are unlikely to be bundled with unlimited storage. Footage will be overwritten often (depending on how heavily the camera is used while on duty) and remains in the control of officers, rather than the department and its oversight.As is pointed out in the AP article, the use of privately-owned body cameras contradicts DOJ guidance on the matter. A 2014 DOJ report noted private cameras on public employees is an all-around bad idea.
"Because the agency would not own the recorded data, there would be little or no protection against the officer tampering with the videos or releasing them to the public or online," the report said. "Agencies should not permit personnel to use privately owned body-worn cameras while on duty."The LA sheriff's department makes this worse by allowing the practice to continue without official policies on body camera use. Even the barest minimum of discipline for deleting footage is impossible, as the department is powerless to take action against deputies who vanish away footage containing alleged misconduct.The head of the local law enforcement union pretty much says the only people benefiting from personal body cameras are the officers that own them.
"It's really a personal preference," [union president Ron] Hernandez said. "The guys we have spoken to have said they thought it would be beneficial for them. They see the value in covering themselves."Sorry, but that's not what body cameras are for. They may provide evidence clearing officers of misconduct, but body cameras aren't there to create law enforcement highlight reels. While it's great some officers may find the cameras useful for clearing themselves of charges, they are public employees, not private entities engaging in personal enforcement of laws. The footage should be as public as their positions. But this will never happen if their employer is unwilling to craft a solid body cam policy that addresses private ownership of cameras.As it stands now, the department is allowing its existing policies on evidence handling to act as a stand-in for its non-existent body camera policy. According to these rules, all evidence must be held for two years and turned over on request to the sheriff's department. Supposedly, this will encompass privately-held body camera footage. But it would be much better for body cam evidence to be stored on site where it's immediately accessible and less prone to tampering.Body cameras are already problematic. They have the potential to be great tools of accountability, but this has been continually stunted by legislators and law enforcement agencies, many of which have done all they can to keep this footage out of the public's hands. In this case, the LASD's lack of forward momentum on the camera front has turned a portion of its workforce into sole proprietors with badges, guns, and a collection of home movies starring residents of L.A. County.
An Illinois putative class action was brought against Zillow over the zestimate on three grounds: (1) the zestimate was an unlicensed appraisal, (2) the house profile and zestimate constituted an intrusion into seclusion, and (3) Zillow’s practices violate state consumer protection laws. Zillow wins on a 12(b)(6) motion to dismiss.Unlicensed Appraisal: The applicable licensure statute expressly excludes “the procurement of an automated valuation model.” Furthermore, the law doesn’t support private causes of action.Privacy Invasion. There’s no intrusion when the zestimate is based on public data sources. The plaintiffs also don’t explain how the intrusion is “offensive” or plead the required “anguish and suffering.”Consumer Protection Laws. The court says the zestimates are not false, misleading or confusingGoldman also points out no serious person is likely to confuse a Zestimate with an appraisal… at least not if they expect to be taken seriously. Courts in cases dug up by Goldman have called Zillow Zestimates everything from "inherently unreliable" to "incapable of accurate" valuations. One judge concluded "internet searches are insufficient evidence of property value," spreading the besmirchment to Zillow's competitors and pre-trial Googlers.Zillow pled a First Amendment defense for its publication of lousy Zestimates and other public data. The court [PDF] doesn't make any attempt to address this pleading as it finds plenty it doesn't like about the state law claims.
Zillow argues that the First Amendment requires dismissal of all of Plaintiffs’ claims. (R. 18, Mem. Supp. Mot. Dismiss, 3.) Additionally, Zillow contends that First Amendment concerns aside, Plaintiffs fail to plead the required elements of their claims. (Id. at 9.) While Zillow makes persuasive arguments with respect to the First Amendment, the Court need not and should not rule on them conclusively because Plaintiffs’ claims fail under Illinois statutory law.As the court points out, Zestimates are nothing more than "nonactionable statements of opinion" -- statements that result from no intrusion in personal privacy (because publicly-available info is used) nor violation of real estate regulations in Illinois.All claims have been dismissed without prejudice, meaning real estate litigator (and litigant) Barbara Andersen is welcome to try again. But she -- like the Patels she now represents -- will need to find a better angle than alleged state law violations to take another run at estimates they all subjectively feel are on the low end.
With little notice, more than two dozen state legislatures have passed "seed-preemption laws" designed to block counties and cities from adopting their own rules on the use of seeds, including bans on GMOs. Opponents say that there's nothing more fundamental than a seed, and that now, in many parts of the country, decisions about what can be grown have been taken out of local control and put solely in the hands of the state.Supporters of the move claim that a system of local seed rules would be complicated to navigate. That's a fair point, but it's hard to believe Big Ag really cares about farmers that much. Some of the new laws go well beyond seeds:
Language in the Texas version of the bill preempts not only local laws that affect seeds but also local laws that deal with "cultivating plants grown from seed.” In theory, that could extend to almost anything: what kinds of manure or fertilizer can be used, or whether a county can limit irrigation during a drought, says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance. Along with other activists, her organization was able to force an amendment to the Texas bill guaranteeing the right to impose local water restrictions. Still, the law's wording remains uncomfortably open to interpretation, she says.You would have thought that farmers would welcome the ability to shape local agricultural laws according to local needs and local factors like weather, water and soil. But apparently ag-gagging activists to stop them doing the same is much more important.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+