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September 2017
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Smart Taps Three Top Execs; Trish Lemley Joins Fosina; Jessica Ulin joins DWA San Francisco

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Experienced CMO, CRO, Global Operations Director and CQO Guide International Programmatic Growth Smart (formerly known as Smart AdServer) announced that it has made three key hires to drive international growth and client support, as it has extended its footprint into ten countries and expanded its offering to a full-stack ad-tech platform for premium publishers. The [...]

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posted at: 12:00am on 30-Sep-2017
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Stupid Patent Of The Month: Will Patents Slow Artificial Intelligence?

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We have written many times about why the patent system is a bad fit for software. Too often, the Patent Office reviews applications without ever looking at real world software and hands out broad, vague, or obvious patents on software concepts. These patents fuel patent trolling and waste. As machine learning and artificial intelligence become more commonplace, it is worth considering how these flaws in the patent system might impact advances in AI. Some have worried about very broad patents being issued in the AI space. For example, Google has a patent on a common machine learning technique called dropout. This means that Google could insist that no one else use this technique until 2032. Meanwhile, Microsoft has a patent application with some very broad claims on active machine learning (the Patent Office recently issued a non-final rejection, though the application remains pending and Microsoft will have the opportunity to argue why it should still be granted a patent). Patents on fundamental machine learning techniques have the potential to fragment development and hold up advances in AI.As a subset of software development, AI patents are likely to raise many of the same problems as software patents generally. For example, we've noted that many software patents take the form: apply well-known technique X in domain Y. For example, our Stupid Patent of the Month from January 2015 applied the years-old practice of remotely updating software to sports video games (the patent was later found invalid). Other patents have computers do incredibly simple things like counting votes or counting calories. We can expect the Patent Office to hand out similar patents on using machine learning techniques in obvious and expected ways.Indeed, this has already happened. Take U.S. Patent No. 5,944,839, for a "system and method for automatically maintaining a computer system." This patent includes very broad claims applying AI to diagnosing problems with computer systems. Claim 6 of this patent states:

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 classincluding 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 treesbut 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.

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Elsevier Launching Rival To Wikipedia By Extracting Scientific Definitions Automatically From Authors' Texts

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Elsevier is at it again. It has launched a new (free) service that is likely to undermine open access alternatives by providing Wikipedia-like definitions generated automatically from texts it publishes. As an article on the Times Higher Education site explains, the aim is to stop users of the publishing giant's ScienceDirect platform from leaving Elsevier's walled garden and visiting sites like Wikipedia in order to look up definitions of key terms:

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+

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Simulmedia Partners With Neustar to Provide Independent Verification of TV Campaigns

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Now–Simulmedia Connects Linear TV Viewership to Actual Sales. Simulmedia, a company focused on data-optimized national TV campaigns, announced it has expanded its partnership with Neustar, a company specializing in identity resolution solutions. Neustar’s MarketShare will independently verify the results of Simulmedia TV campaigns to give advertisers an accurate measure of the ads impact on sales. [...]

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posted at: 12:00am on 29-Sep-2017
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New Mobile Video Ad Format from TabMo: Can It Change User Response?

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Reality: People Don’t Like Mobile Video Ads Much. Below is data that shows that–and that’s followed by TabMo’s new video format offering, which TabMo‘s founder, Renaud Biet (pictured left) hopes helps solve the problem. Take a look. Fact: Google has found that, “when people have a negative brand experience on mobile, they are 62% less [...]

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posted at: 12:00am on 29-Sep-2017
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Chinese High-Tech Startups: Now More Copied Than Copying

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Techdirt has been pointing out for a while that the cliché about Chinese companies being little more than clever copycats, unable to come up with their own ideas, ceased to be true years ago. Anyone clinging to that belief is simply deluding themselves, and is likely to have a rude awakening as Chinese high-tech companies continue to advance in global influence. China's advances in basic research are pretty clear, but what about business innovation? That's an area that the US has traditionally prided itself on being the world leader. However, an interesting article in the South China Morning Post -- a Hong Kong-based newspaper owned by the Chinese e-commerce giant Alibaba, which has a market capitalization of $400 billion -- explores how it's Chinese ideas that are now being copied:

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+

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posted at: 12:00am on 29-Sep-2017
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Idea v. Expression: Game Studio Bluehole Gets Its Fur Up Over Epic Games Putting 100 Vs. 100 Player Battle Royale Into Game

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Of all the things that most people get wrong about copyright law, the idea/expression dichotomy has to rank near the top. The confusion over this is easily explained by the pervasive ownership culture that has emerged organically from an intellectual property ecosystem that only moves in the direction of more protectionism. Because of that culture, most people simply assume that the creation of the idea is itself a copyrightable thing, rather than the reality which is that copyright only applies to specific expression. The useful example at hand is that one cannot copyright a superhero named after an animal that wears a mask and a cape, but one can copyright Batman, particularly any books, comics, or movies in which Batman is depicted.As already stated, this reality evades many people. But it probably shouldn't evade those in industries dominated by copyright, such as the video game industry. Despite that, Bluehole, developers of the wildly popular PlayerUnknown's Battlegrounds developer, appears to have its fur up over another studio, Epic Games, releasing a "battle royale" game mode for its Fortnite title.

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.

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posted at: 12:00am on 29-Sep-2017
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DeviceID Reset Fraud: AppsFlyer Data Study IDs New Threat to Mobile App Marketers

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AppsFlyer Introduces Protect360 for Enterprise-Grade Fraud Protection. AppsFlyer, a mobile attribution and marketing analytics company, has introduced a holistic, integrated solution — Protect360 — that immunizes advertisers against the cost and loss of mobile install fraud. In beta testing with select clients, Protect360 DeviceID Reset Fraud was more widespread than previously known, and will cost [...]

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posted at: 12:00am on 28-Sep-2017
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Federal Judge Says Indiana's Vehicle Forfeiture Laws Are Unconstitutional

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More good news on the forfeiture front: Nick Sibilla of forfeiture watchdogs Institute for Justice reports a federal judge has declared one of Indiana's civil asset forfeiture laws unconstitutional.

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.

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Lawyers Gearing Up To Hit UK With Corporate Sovereignty Claims Totalling Billions Of Dollars Over Brexit

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We're not hearing much about corporate sovereignty -- also known as "investment state dispute settlement" (ISDS) -- these days. It's definitely still a problem, especially for smaller countries. But the big fights over the inclusion of corporate sovereignty chapters in the two global trade deals -- the Transatlantic Trade and Investment Partnership (TTIP), and the Trans-Pacific Partnership (TPP) agreement -- have been put on hold for the moment. That's for the simple reason that both TPP and TTIP are in a kind of limbo following the election of Donald Trump as US President with his anti-free trade platform.TTIP seems completely moribund, whereas TPP -- re-branded as TPP11 to reflect the fact that there are only 11 countries now that the US has pulled out -- is showing the odd twitch of life. A recent article in the Canadian newspaper National Post points out that the departure of the US might even allow some of the worst bits of TPP to be jettisoned:

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+

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Do You Suffer From FOMO? 3 Ways to Optimize Your Budget With Test-Driven Marketing

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A phenomenon is occurring across the marketing landscape, best described in a four-letter word: FOMO. This fear of missing out has sent many a marketer to the ends of the earth, chasing one channel after the next in search of those coveted customers. The truth is, jumping on every new network, every new platform, and [...]

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posted at: 12:00am on 27-Sep-2017
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Larry Lessig's Latest Big Challenge: Fixing The Way We Elect A President

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Over the last few years, Larry Lessig has not shied away from trying to bring about change to the corruption he sees in our political system with "big" projects. Rather than chipping away at ideas, Lessig has been announcing huge, almost impossible plans, generating lots of attention and hoping that they either create real change, or at the very least, create discussion on the topics he's attacking. So far, even he admits that most of those projects have been less than successful in achieving their goals. Back in 2014, there was his attempt to build a crowdfunded SuperPAC with the goal of ending SuperPACs (supporting candidates who would change campaign finance). While they raised a lot of money, Lessig admitted that the organization failed to make a real difference in the elections it participated in. Then there was the plan to call a new Constitutional Convention (which continues to garner discussion to this day, but mainly from those ideologically opposed to Lessig). And, of course, the failed campaign to be the Democratic nominee for President, where his main goal was to get into the debates -- only to have the Democrats change the rules to keep him out.Each of these can certainly have the appearance of a rather quixotic approach to taking on government corruption. And while there are many things I do agree with Lessig on, there's also a pretty long list where I disagree with him. But, what I respect is that even as outwardly "crazy" as many of these plans appear to be, there's always an astoundingly detailed, well-thought out and well-argued logic behind them, even if the likelihood of success is low. He's making big gestures that may have a low probability of success, but these aren't campaigns that have just been thrown together on a whim -- they have a clear purpose and fit in with a larger theme, often trying to game the system in some clever way. They're gimmicky, but in ways that at least make you think.All of that is true with his latest project as well: an attempt to change the way we elect the president. Obviously, many people who were upset with the results of last year's election (and lingering anger about the 2000 election) have been arguing that it's time to get rid of the electoral college. And, frankly, it's kind of difficult to justify why we still have an electoral college when it's quite clear that it serves no really useful function. But, of course, because of the way things worked out in 2000 and 2016, even discussing the problems of the electoral college have become (stupidly) partisan. And, because it's part of the Constitution, getting rid of the electoral college is a near impossibility.So, instead, Lessig is attacking things a step down the chain with his EqualVotes campaign. The argument, again, makes a lot of sense. Don't get rid of the electoral college -- but stop giving all electoral votes in a state to the winner of the popular vote in that state. This is the part that's really undemocratic. As Lessig explains:

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 statesstates 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 statesFlorida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan. Four battleground statesFlorida, North Carolina, Ohio and Pennsylvaniasaw 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 processfirst 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.

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Yet Another Developer Sees That Free Can Work For Video Games As Both An Anti-Piracy Strategy And As Promotion

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We've made the argument for some time that there are ways to use giving away free content in order to both stave off the threat of video game piracy and to garner greater attention for the product. For all of the congratulations we heap on game developers for simply not completely freaking out over the fact that piracy exists, far too few of those developers go on to actually take advantage of what freely given away products can do for them. But there are those out there who get it, including Indie Gala, a studio that is essentially giving away its product as it stands for free, both because it wants gamers to get clean copies of the game from clean sites and in order to drive those gamers to the Early Access Steam version of the game.

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.

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Strong Company Culture is About so Much More than Perks

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An INSIGHT by Erik Matlick (pictured left), a serial entrepreneur and founder and CEO of the marketing data company Bombora. Today, much of the conversation about workplace culture focuses on the unique and intriguing extras that companies include in both their employment packages and their office spaces, including everything from employee pricing on electronics to [...]

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Velcro's Hilarious Trademark Lesson Video Actually A Good Lesson In Just How Stupid Trademark Law Has Become

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So, you've probably heard stories in the past about the fear some trademark lawyers have about "genericide" -- where their product's name becomes so attached to the product that it's considered generic and the trademark no longer applies? Think kleenex and xerox for example. We've found, over the years, that people get a bit too worked up about this, leading trademark lawyers to make some really dumb demands along the way to try to "prevent" what is generally impossible to actually prevent. We also often see people claim (falsely) that this means companies are required to stop any and all uses of their mark, even when not infringing (or, even worse, seeing people falsely claiming that the same thing applies to copyright). Either way, the company Velcro has taken... well... quite a unique approach to the fact that everyone calls their most famous product "velcro" -- even when made by competitors. They made an absolutely hilarious "We are the World"-style video begging you not to call it Velcro and telling you, in no uncertain terms, that they it's "fucking hook & loop." Really.

When I first saw it, I thought it was a John Oliver or SNL-style parody video, but nope. It's real. It's on Velcro's official YouTube feed, and they even have a behind the scenes "making of" video to explain how the video was made and how it came about (including the fact that two actual Velcro lawyers are in the video).
Of course, they insist they're doing this to get people talking about the importance of calling it "hook and loop" though I think at best, it will just get people talking about how incredibly dumb trademark law has become, where this kind of thing is seen as necessary. The only people who will now start calling it "hook and loop" are likely to be people doing it ironically. In which case, they may go with the longer "this is fucking hook and loop," as the song suggests. But, as the song itself suggests, it's totally ridiculous that the company has to do this to try to get you to stop saying the brand name that the company spent "60 plus years" building. The song also jokingly references other genericized brands, such as Clorox, Band-Aid and Rollerblades.Thankfully, they don't seem to get the finer points of the law really wrong in the song -- noting that the patent on velcro expired 40 years ago, and if everyone calls everything similar velcro, the company might "lose our circle R." Of course, they leave out the fact that if they lose the trademark... it's actually probably not that big a deal. People will still call all similar products velcro, but Velcro-brand velcro will almost certainly still be able to charge a premium, since people will recognize the brand name.And that's really what highlights how dumb all of this is. Even if you lose the trademark to genericide, that doesn't mean the company packs up and moves on. It just shows how much the brand itself has resonated, and companies have lots of ways to continue to capitalize on that brand, even without the registered trademark. So, while I can always get behind hilarious videos concerning oddities in trademark, copyright or patent law, this video seems like a much better lesson in the stupidity of trademark law (and how much lawyers overreact to the fear of genericide) than any legitimate argument against calling someone else's velcro-like fastner "velcro."

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Scientific Publishers Want Upload Filter To Stop Academics Sharing Their Own Papers Without Permission

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Back in March of this year, Techdirt wrote about ResearchGate, a site that allows its members to upload and share academic papers. Although the site says it is the responsibility of the uploaders to make sure that they have the necessary rights to post and share material, it's clear that millions of articles on ResearchGate are unauthorized copies according to the restrictive agreements that publishers typically impose on their authors. As we wrote back then, it was interesting that academic publishers were fine with that, but not with Sci-Hub posting and sharing more or less the same number of unauthorized papers.Somewhat belatedly, the International Association of Scientific Technical and Medical Publishers (STM) has now announced that it is not fine with authors sharing copies of their own papers on ResearchGate without asking permission. In a letter to the site from its lawyers (pdf), the STM is proposing what it calls "a sustainable way to grow and to continue the important role you play in the research ecosystem". Here's what it wants ResearchGate ("RG") to do:

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+

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This Week In Techdirt History: September 17th - 23rd

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Five Years AgoThere was all sorts of copyright nonsense this week in 2012, beginning with a claim from the Canadian Mint over a musician's album cover photo that included some pennies sitting on a table. We noticed some disturbing things hiding in the history of US copyright, like the fact that the Copyright Act explicitly says disruptive innovation should be blocked, or that somehow a letter written by John Adams in 1755 had still not entered the public domain. The Spanish octogenarian who gained notoriety after her extremely poor "restoration" of a fresco of Jesus decided, for some reason, to start exercising her copyright over the famous failure, and we also saw the beginning of the copyright dustup over The Innocence of Muslims.Also, this was the week that the Big Four record labels became the Big Three, with regulators approving Universal's purchase of EMI.Ten Years AgoThings weren't much better this week in 2007, with the copyright czar stepping up to sing the praises of the DMCA and copyright holders gloating over every mole successfully whac'd in their pointless crusade. NBC seemed insistent on making life harder for paying customers> (though CBS seemed to have a better handle on internet video), the Canadian recording industry was flip-flopping on private copying levees lest people get the impression downloading was legal, and a book store at Harvard was trying to claim copyright on... its book prices.Fifteen Years AgoGuess what? More of the same this week in 2002. The music industry was touting new "CD-killer" music formats without mentioning their real motivation was the enhanced copyright protection of new, pointless devices, while at least one record company was taking the absurd anti-leak action of sending reviewers individual players containing the CD and glued shut. Cablevision gave everyone a preview of the DRM future by accidentally turning on new copyright protection technology for a little while. At least CEA head Gary Shapiro was eloquently making the point that downloading is neither immoral nor illegal, though that sensible understanding of the situation unsurprisingly didn't catch on with the entertainment industries.

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Nielsen & Clypd Collaborate on Audience-Based Buying

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The collaboration will enable execution and posting on media buys across networks by combining Nielsen's Audience-Based Buying Data with clypd's Advanced Targeting Proposal, Forecasting and Yield Optimization Platform. Nielsen announced that it will collaborate with clypd, a leading audience-based sales platform for television networks. The syndicated service will offer the advertising ecosystem a fully integrated, [...]

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'Smart' Hospital IV Pump Vulnerable To Remote Hack Attack

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By this point, the half-baked security in most internet of things devices has become a bit of a running joke, leading to amusing Twitter accounts like Internet of Shit that highlight the sordid depth of this particular apathy rabbit hole. And while refrigerators leaking your gmail credentials and tea kettles that expose your home networks are entertaining in their own way, it's easy to lose sight of the fact that the same half-assed security in the IOT space also exists on most home routers, your car, your pacemaker, and countless other essential devices and services your life may depend on.The lack of security in the medical front is particularly alarming. The latest case in point: security researchers have discovered eight vulnerabilities in a syringe infusion pump used by hospitals to help administer medication to patients intravenously. The flaws in the Medifusion 4000 infusion pump, manufactured by UK medical multinational Smiths Group, were discovered by security researcher Scott Gayou. The device is utilized to deliver medications, blood, antibiotics and other fluids to critical care patients, patients undergoing surgery (anesthesia) -- and newborn babies.The flaws were severe enough to warrant a new warning from the Department of Homeland Security, which issued an advisory that, like similar past advisories, rather downplays the fact these flaws could be utilized by a skilled hacker to kill somebody covertly:

"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.

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posted at: 12:00am on 23-Sep-2017
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Company CEO Pleads Guilty After Forging Judge's Signatures On Bogus Court Orders Sent To Google

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Earlier this spring, a jewelry company CEO earned himself a federal indictment for his bespoke reputation management efforts. Realizing it was extremely difficult to erase negative reviews from the net, National Sapphire Company boss Michael Arnstein took one such reviewer to court. He was awarded an injunction after the defendant no-showed, resulting in the delisting of 54 URLs.But the negative reviews kept coming. Rather than hire a lawyer and bring more defamation suits, Arnstein opted for the initially less-costly option: mocking up delisting orders and forging a judge's signature. This apparently worked well enough Arnstein felt comfortable sharing his fraudulent tactics with others. This swaggering, inculpatory statement was included in the federal complaint.

"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.

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Advertisers: Upfront/Newfront Needs To Address Critical Audience Issues

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More high-level advertisers are coming to the Upfront and Digital NewFront events for networking and intelligence, and they want more stage time devoted to audience effectiveness and measurement. That's the key finding of the 2017 Upfront/NewFront Report from Advertiser Perceptions, which analyzes the motivations and reactions of advertisers attending the May and June events. No [...]

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CCleaner Hack May Have Been A State-Sponsored Attack On 18 Major Tech Companies

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At the beginning of this week, reports emerged that Avast, owner of the popular CCleaner software, had been hacked. Initial investigations by security researchers at Cisco Talos discovered that the intruder not only compromised Avast's servers, but managed to embed both a backdoor and "a multi-stage malware payload" that rode on top of the installation of CCleaner. That infected software -- traditionally designed to help scrub PCs of cookies and other tracking software and malware -- was subsequently distributed by Avast to 700,000 customers (initially, that number was thought to be 2.27 million).And while that's all notably terrible, it appears initial reports dramatically under-stated both the scope and the damage done by the hack. Initially, news reports and statements by Avast insisted that the hackers weren't able to "do any harm" because the second, multi-stage malware payload was never effectively delivered. But subsequent reports by both Avast and Cisco Talos researchers indicate this payload was effectively delivered -- with the express goal of gaining access to the servers and networks of at least 18 technology giants, including Intel, Google, Microsoft, Akamai, Samsung, Sony, VMware, HTC, Linksys, D-Link and Cisco itself.Cisco's researchers say they obtained a copy of the hackers' command-and-control server from an unnamed source. That server contained detailed logs of the 700,000 or so computers that had "phoned home" to the hackers earlier this month. Subsequent investigation has concluded that the hackers didn't really care about most of the infected customers, and that this may have been a sophisticated state-sponsored attack specifically designed access and copy internal information and trade secrets from major tech firms:

"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.

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Dispute Between Roberto Escobar And Netflix Over 'Narcos' Gets Weird: Licensing Talks And A Dead Location Scout

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Last year we discussed a dispute between Roberto Escobar, brother of the infamous drug kingpin Pablo Escobar and the Medellin cartel's accountant, and Netflix over the latter's hit show Narcos. It was a strange dispute for any number of reasons, ranging from Roberto Escobar's demand for one billion dollars and the rights to alter content in future episodes to the fact that Escobar's demands didn't lay any actual claim to any intellectual property in dispute, all the way up to the fact that Narcos doesn't actually portray Roberto Escobar at all. Much like the silly dispute between Activision and Manuel Noriega over publicity rights, it was pretty much assumed that this nonsense would be done away with more quickly than a federal informant working on the inside of the cartel.Sadly, however, this still appears to be a thing, and it's getting quite strange. For starters, Escobar's legal team claims that a capitulation of sorts by the show might be in the works. It all starts as you'd expect, with the legal team for Narcos detailing via a letter how silly Escobar's claims are, as well as how plainly false the applications Escobar subsequently made for trademarks on terms and titles from the show were.

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.

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posted at: 12:00am on 22-Sep-2017
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IAB Tech Lab Launches Blockchain Advertising Working Group

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IAB Tech Lab kicked off a Blockchain Working Group with co-chairs Richard Bush, Chief Product & Technology Officer, NYIAX (pictured top left) and Michael Palmer, Global Director Product, [m]Platform, GroupM (pictured lower left). Here’s their blog post on the initiative. We are excited to announce that the IAB Tech Lab is establishing a new working [...]

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posted at: 12:00am on 21-Sep-2017
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Bogus Lawsuit-Slinging Rep Management Firm Sued By Pissed Consumer

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Solvera -- a reputation management firm allegedly engaging in legal fraud to delist criticism -- is facing multiple legal problems as a result of its highly-questionable services. In late August, the Texas Attorney General filed a complaint against the company, alleging it defrauded courts by filing bogus defamation lawsuits on behalf of possibly-unaware clients, utilizing duped lawyers with bogus statements from fake defendants.This sort of behavior has been uncovered in recent months through investigations by Paul Alan Levy of Public Citizen and lawprof/blogger Eugene Volokh. It has also been revealed through independent research by Pissed Consumer, an obvious target of these unsavory (and illegal) reputation management tactics.Pissed Consumer is also going against Solvera. It has sued the company in Contra Costa County, California -- Solvera's backyard -- along with a number of other firms in the reputation management business and the companies they've created to act as plaintiffs in bogus defamation lawsuits.It's pretty much identical to the lawsuit Pissed Consumer filed last year against a number of defendants, including the lawyers whose name appeared on the bogus paperwork: Mark Lapham and Owen Mascott. The previous lawsuit referenced Nevada Corporate Headquarters -- the apparent origin point of some of these bogus lawsuits -- but the latest adds Solvera as a defendant.It also places much of the alleged blame on the embattled rep management firm. From the filing [PDF]:

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.

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posted at: 12:00am on 21-Sep-2017
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With Court Ruling, Fan Subtitles Officially Copyright Infringement In Sweden

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Several years ago, in an unfortunate display of police bending the knee to the copyright industries, Swedish law enforcement raided the offices of Undertexter, a site chiefly dedicated to fan translations for subtitles of films. While these fan translations have been handcuffed to film piracy -- mostly through the messaging efforts of film and television content producers -- the raid registered as an extreme escalation in the battle on subtitles. Most folks have a hard time understanding why such action was taken, with most fan translations only being useful due to the content makers underserving parts of the earth that speak a variety of languages. These fan translations mostly open up those markets for makers of movies and television who have otherwise chosen not to translate their work into the relevant languages.For its part, Undertexter vowed to fight the legal action, proclaiming its work non-infringing by virtue of serving up mere dialog translations.

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?

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Videology Saves Advertisers Billions, Blocking Beaucoup Bots; Braavo Capital Closes $70M to Fuel Mobile App Growth; More

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Videology Saves Advertisers Billions of Dollars Using White Ops, Blocking Over 500 Billion Bot Requests in Past Three Years. Blocked Bot Requests on Track to Top 1 Trillion by Q1 2018. Videology, a software provider for converged TV and video advertising, announced that the company has blocked about 550 billion fraudulent bot requests - and [...]

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posted at: 12:00am on 20-Sep-2017
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Court Allows San Diego Comic-Con's Suit Against The Salt Lake City Comic Con To Move Forward

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A few months ago, we alerted our readers that a trademark dispute between the San Diego Comic-Con and a company producing a Salt Lake City Comic Con, originally filed in 2014, was still going on. In fact, the district court hearing the case just recently ruled on several motions from both parties, including motions for judicial notice (essentially having the court affirm basic facts about the case), motions to exclude expert testimony, and motions for summary judgement. On the face of it, the news is mostly bad for the Salt Lake City convention, with nearly every ruling coming down against it. However, digging into the ruling itself, there is a light at the end of the tunnel.As for the bad news, it seems to be mostly of the Salt Lake City Comic Con's own making, or the making of its legal team. The court points out that the defendant's lawyers motion and defenses are all over the place, in some places arguing for generecide -- or that "comic con" has become a generic term -- while in others arguing that "comic con" is generic ab initio -- or that the term was generic even prior to San Diego Comic-Con's initial use of it. It's an important distinction for a couple of reasons, including that the defenses SLC has stated it will make revolve around genericide, yet much of the evidence in the motions in this ruling revolve around generic ab initio and, more importantly, the 9th Circuit doesn't have any precedent or acknowledgement of generic ad initio as a matter of law, and this district court is governed by 9th Circuit precedent.

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.

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Chrome Announces Unified Autoplay-What does it really mean for your ad?

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Autoplay will only be allowed when the media itself doesn't include sound, or when the user has indicated an interest in the media. The following was posted on the Chromium blog on September 14. Users watch and listen to a lot of media, and autoplay can make it faster and easier to consume on the [...]

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How CPG Brands Can Harness Personalization to Engage Consumers

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I have recently spoken to many CMOs and Chief Digital Officers of CPG companies (our friends in the UK and elsewhere call them FMCG). They are fascinated by the concept of data-driven dynamic creative and personalization. After decades of blasting consumers with one size fits all messagingnot just on TV and print (where you had [...]

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HP Brings Back Obnoxious DRM That Cripples Competing Printer Cartridges

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Around a year ago, HP was roundly and justly ridiculed for launching a DRM time bomb -- or a software update designed specifically to disable competing printer cartridges starting on a set date. As a result, HP Printer owners using third-party cartridges woke up one day to warnings about a "cartridge problem," or errors stating, "one or more cartridges are missing or damaged," or that the user was using an "older generation cartridge." The EFF was quick to lambast the practice in a letter to HP, noting that HP abused its security update mechanism to trick its customers and actively erode product functionality.HP only made matters worse for itself by claiming at the time that it was only looking out for the safety and security of its customers, while patting itself on the back for being pro-active about addressing a problem it caused -- only after a massive consumer backlash occurred.Fast forward almost exactly one year, and it looks like HP hasn't learned much from the Keurig-esque experience. The company this week released a new software update for the company's OfficeJet 6800 series, OfficeJet Pro 6200 series, OfficeJet Pro X 450 series, and OfficeJet Pro 8600 series printers. One of the major "benefits" of the update? Printer cartridges from competing manufacturers no longer work. Again:

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.

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This Week In Techdirt History: September 10th - 16th

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Five Years AgoThis week in 2012, we were watching as the House of Representatives got ready to move forward with extending the FISA Amendments Act despite huge problems and a worrying lack of information about secret interpretations of the law. Of course, it quickly passed — basically thanks to lots of lying and misrepresentation about what the bill actually contained. Meanwhile, having failed to get new cybersecurity legislation passed, the White House was looking to tackle the issue with an executive order, the draft text of which was leaked at the end of the week. Of course, we were also worried about efforts to make cybersecurity enforcement the job of the ITU, an idea with a whole host of problems of its own.Ten Years AgoThis week in 2007, we were appalled at (and slightly amused by) the pathetic attempts at "innovation" on display in the legacy recording industry, such as the hype around the "ringle" — a combination of a single and a ringtone! Imagine that! Similarly, Universal Music seemed to have gotten the message that subscription services are a good idea, but gotten the details of the implementation entirely wrong. It was also around this time that we started to hear complaints from sound engineers and audiophiles about iPods and earbuds destroying the sound quality of music — though perhaps that was just a way to get press, much like blaming Facebook for destroying the economy. Meanwhile, Prince, unpredictable as always, decided to sue eBay, YouTube and The Pirate Bay for copyright infringement.Fifteen Years AgoThis week in 2002, the bizarre blanket ban on video games we mentioned last week quickly started to fail in the courts, the battle between China's censors and Google heated up then fizzled out, and a well-known AP writer joined the ranks of people totally misunderstanding the digital music debate. The music industry was doing its best to paint Kazaa and Morpheus as infringers, while Morpheus was seeking summary judgement saying it doesn't violate copyright law. And one on-the-money essay explained how the industry was killing the goose that lays the golden eggs by trying to destroy digital music.

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posted at: 12:00am on 17-Sep-2017
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Music Industry Is Painting A Target On YouTube Ripping Sites, Despite Their Many Non-Infringing Uses

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Concentrated attacks on technology tools that can sometimes, but not always, be used for nefarious purposes have quite a long history, from Google and Wikipedia, to suing online sites like Craigslist over how users use the service. Even torrent technology itself, having become a four-letter-word that the content industry has managed to tether to copyright infringement, is nothing more than a tool with plenty of legitimate uses.Well, it appears that the latest target in the music industry's crosshairs are sites that rip YouTube videos into MP3 format.

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.

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posted at: 12:00am on 16-Sep-2017
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When Godwin's Law Met The Streisand Effect

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Okay, here's a fun post for a Friday evening: Earlier this week, I was at World Hosting Days, where I gave a keynote speech about the importance of CDA 230 and things like intermediary liability protections -- and why they are so important to protecting free speech online. The emcee of the event was Mike Godwin, who (among his many, many accomplishments over the years as an internet lawyer and philosopher) coined Godwin's Law. The organizers of the event, realizing that they had the guy who coined Godwin's Law and the guy (me!) who coined the Streisand Effect in the same place at the same time, thought it might be fun to have the two of us talk about these two memes.And, voila. Here's the video of the two of us discussing it. We're also planning to release this as a podcast soon, so if you already listen to the Techdirt podcast and want to wait for that, feel free... But, if you want to skip ahead and watch/listen now, go for it.



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Videology Saves Advertisers Billions, Blocking Beaucoup Bots; Braavo Capital Closes $70M to Fuel Mobile App Growth: OneSpot Appoints David Brown CSO; Hitwise: Top Searched Back to School Products

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Videology Saves Advertisers Billions of Dollars Using White Ops, Blocking Over 500 Billion Bot Requests in Past Three Years. Blocked Bot Requests on Track to Top 1 Trillion by Q1 2018. Videology, a software provider for converged TV and video advertising, announced that the company has blocked about 550 billion fraudulent bot requests - and [...]

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More Data, More Problems: Trust, Transparency & Targeting in 2017: Bazaarvoice + AdAge Report

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A joint study from Bazaarvoice and Ad Age research shows that data sources, freshness and quality are unclear among both agency and brand-side marketers. Bazaarvoice, Inc., a provider of consumer-generated content (CGC), advertising, and personalization solutions, announced the results of More Data, More Problems: Trust, Transparency & Targeting in 2017, a research study that Advertising [...]

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posted at: 12:00am on 15-Sep-2017
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Vermont State Police Rewrite Press Rules To Withhold As Much Information As Possible

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Various authority figures have attempted to define journalism, usually excluding their critics. A recent post here covered a police chief who decided he could determine a journalist's credibility based almost solely on their web presence. Trimming down the definition of "journalist" allows government officials to limit their accountability by treating only certain outlets as credible.So, we already have government authorities attempting to define what is or isn't a "real" news outlet. Jonathan Peters of the Columbia Journalism Review reports a government authority is attempting to define what is or isn't news. In this case, it's the Vermont State Police.

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.

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House Passes Amendment Rolling Back Jeff Sessions' Civil Asset Forfeiture Expansion

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Trump's pick for attorney general unsurprisingly holds the same ideals as his boss. He also holds the same misconceptions and misplaced nostalgia for tough-on-crime policing that went out of vogue as soon as it became apparent it wasn't doing anything but filling up prisons.Attorney General Jeff Sessions has been going hot and heavy on a 1980s-esque law enforcement policy revival. He booted the DOJ off the civil rights beat, telling states and cities to solve their own police misconduct problems -- something they were clearly unwilling to do on their own, hence the DOJ's intercession. He told cops they're getting back their access to war gear, rolling back the Obama administration's minimal 1033 program reforms.He's been touting tougher policing and tougher sentencing, using a false narrative of a country under siege by drug dealers and criminal border-jumpers. In a time of historic lows -- both in violent criminal activity and violence towards police officers -- AG Sessions is acting like a street corner preacher, promising an impending apocalypse to anyone who will listen.Sessions is also peeling away federal reforms to asset forfeiture. He's opened the federal safety valve for civil forfeitures, allowing local PDs to dodge state laws limiting the amount of property they can take from uncharged citizens.Given the makeup of Congress, one would assume Sessions' ongoing effort to raise US law enforcement to "a law unto itself" level would ride on rails, at least up until midterm elections. Instead, Sessions is facing a literal House divided -- not against itself exactly -- but against him.

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.

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Critic-Raiding Sheriff Settles With Bloggers Who Sued Him Over His Unconstitutional Actions

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Now that Terre Bonne Parish sheriff Jerry Larpenter has had his immunity stripped by a federal court, it appears he's ready to pay up to keep the damages from mounting. Sheriff Larpenter abused a terrible law -- Louisiana's still-on-the-books-for-some-reason criminal defamation law -- to harass a critic of his. On the way to getting slapped by the court, Larpenter went judge-shopping (bringing his warrant to an off-duty judge) for someone willing to sign his unconstitutional warrant -- a judge who later found the warrant with his signature on it to be perfectly legal.The state court of appeals shot down Larpenter's warrant. The inevitable civil suit that followed found Larpenter being de-immunized in successive decisions, leaving him to actually bear some responsibility for his act of censorship.Elizabeth Nolan Brown reports Larpenter is now making nice with Jennifer and Wayne Anderson, the couple targeted by the sheriff for their criticism. The Andersons had their home raided by Larpenter's deputies, who seized every electronic device they could find, including the Andersons' childrens' laptop.

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.

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The Rise and (Slight) Fall of Mobile Video: A Ooyala Report

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After 22 Strong Quarters, Mobile Video Goes Flat, New Ooyala Q2 2017 Video Index Reveals. Ooyala, a provider of software and services that simplify the complexity of producing, streaming and monetizing video, released its Q2 2017 Global Video Index, revealing video consumption on mobile devices stayed essentially flat in the second quarter of 2017. This [...]

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Chicago Bears Back Off GoBears Hashtag Dispute Over Trademark Concern With Cal

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With the trademarking of hashtags now in full swing, it's about time some light was shone on exactly what type of trademarks are granted on them. The trademarking of hashtags isn't in and of itself perplexing, although it does cause this writer some mild annoyance. Locking up language in general is something that should be treated carefully, but doing so specifically with social media language in an ecosystem designed for proliferation and sharing is ripe for conflict. One need only look at how the Olympics treats hashtags to see this, or how big businesses will greedily "protect" the use of hashtags, no matter any actual concern about public confusion over the use of the marks. The point is, the same general problem with the practical application of trademarks is exacerbated by social media: trademarks too often aren't specific or identifying enough.Recently, an example of this has emerged on Twitter in the form of a quickly-resolved dispute between the University of California and the NFL's Chicago Bears. Cal's mascot is "the Golden Bears", you see. The Chicago Bears somewhat irritatingly staked a claim to the hashtag #GoBears, such that the Chicago Bears logo appeared every time someone used the hashtag. The University of California holds a trademark on the hashtag, however, and the school's Twitter account registered its annoyance with the Chicago team in an admittedly congenial way.


Now, to be clear, what the Chicago Bears did was both dumb and irritating. Cal's response was not overly aggressive either. The end result of all of this was that the Chicago Bears backed off and the team logo no longer appears when the hashtag is used. There's no big bad villian in this story.But we're not going to let this go without pointing out that #GoBears simply is not a source-identifying hashtag for the Cal Golden Bears. It's just not. There are a ton of teams that use some flavor of "bears" as their mascots. Here in Chicago, when someone says "go Bears!", there is no confusion as to the reference and the University of California never even enters the mind. So, instead of being a trademark designed to act as a brand identifier, instead this is simply an instance of a university locking up the term in hashtag form. It's exactly the same as what the Chicago Bears did, in other words, when it placed its logo alongside any use of the hashtag: claiming ownership and limiting the use of the term for everyone else. Given that the term is a terrible identifier of the product being discussed, it seems obvious that it never should have been granted trademark rights.

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posted at: 12:01am on 14-Sep-2017
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High impact units/HTML5 and IAB's New Ad Portfolio

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An ADOTAS Q&A with Christophe Menard (pictured left), General Manager of Sublime Skinz Inc (USA), explores the new IAB ad standards, the transition to HTML, and how that affects online publishers and advertisers. The IAB New Ad Portfolio replaces all the previous creative display guidelines for mobile and desktop - including the Universal Ad Package [...]

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Las Vegas Police Union Fire Off Whining, Flag-Dripping Request To The NFL To 'Investigate' Michael Bennett For Saying Things

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If you have even a passing interest in American sports, you will likely already be aware that Seattle Seahawks player Michael Bennett has been in the news of late due to an incident that occurred in Las Vegas during the Mayweather v. McGregor fight. Police responded to reports of shots being fired in a casino where Bennett also happened to be and, in the chaos that ensued afterwards, officers put Bennett on the ground and cuffed him as he ran away from the shooting. For his part, Bennett claims the officer pointed his gun at him and threatened to "blow his fucking head off" and that the entire detainment was done without any reason other than his being a large black man. He was quite vocal about the incident on Twitter and during press interviews.The Las Vegas police, not surprisingly, aren't loving how Bennett is characterizing what occurred. During a press conference of their own, LVPD representatives couldn't answer as to why Bennett was detained at all during the incident, nor could they explain why the detaining officer's body camera was off during the incident. Despite these shrugs at fairly apropos questions, the union representing the police officers, the Las Vegas Police Protective Association Metro, did manage to fire off one of the whiniest letters to the NFL asking them to "investigate" Bennett for... saying things?



There's a great deal there to unpack. The first thing that struck me was how badly the letter attempts to wrap Las Vegas police officers in the American flag. The NFL is currently going through a series of kneeling protests during the national anthem, an expression of rights that has some people quite upset. I'll leave that debate to the side for this post, but by calling the league out for that in the letter before saying it hopes the league won't ignore Bennett's comments about the LVPD, it sure sounds like Las Vegas police seem to think it deserves more respect than the American flag. Which is sort of a weird argument to make.But the crux of the silliness here is that this is a letter from a police union asking a person's employer to investigate an employee for speech it claims is "false and defamatory." It should be obvious that there are legal relief avenues for the police if they feel they have been defamed. It rings as strange for the same police that detained Bennett to be whining to his employer, begging it to then investigate Bennett's conduct, which consists entirely of speech. The NFL has built a name for itself for its heavy-handed, top-down, overtly political approach to investigating its players. It seems pretty clear that this was a petty attempt by the police to then harass Bennett through his employer as a result of his choosing to speak out about his perspective on the incident for which the LVPD itself could not provide the relevant answers to pointed questions.To be clear, I am making no judgment on the nature of the incident itself. Whether racism was a factor or not is an open question. That said, harassing a citizen for his speech on Twitter and in interviews by appealing to the authority of his employer is both weak and underhanded.Update: This post has been updated to clarify that it was the police union that sent the letter, rather than the police department itself. We apologize for the original error.

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Another Craft Beer Brand Gets Bullied To Death Over Shaky Trademark Claims

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The warning bells for the craft beer industry have been sounding for some time now, but the trademark disputes keep on coming. Even as trademark registrations in craft beer grow exponentially and intellectual property attorneys themselves are predicting an explosion in disputes on the horizon, the legal cases and threat letters have begun to grow. What once was an industry known for cooperative and congenial attitudes on trademark issues has devolved into corporate protectionism. But inter-industry disputes aren't the only concern, as the explosion in the craft beer industry has also invited trademark disputes from those outside of the industry.Trademark protectionists can now put another pelt on the wall, that of the Dark and Stormy Night beer made by Picaroons Traditional Ales.

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.

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Adform Receives Accreditation From Media Rating Council

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Adform, one of the world's leading independent advertising technology platform companies announced today that the Media Rating Council (MRC) has granted Adform accreditation for its viewability measurement across Desktop, Mobile Web and App environments for both Display and Video ads. We congratulate Adform for earning MRC accreditation, said George W. Ivie, Executive Director and CEO [...]

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Court Says 'Possible' Just As Good As 'Probable;' Lets DEA To Keep Evidence From Warrantless Search

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The Ninth Circuit Appeals Court has handed down a decision which appears to lower the bar for probable cause. The government's evidence -- obtained via a warrantless search -- will remain unsuppressed. Here's the summary of the decision [PDF]:

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.

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Prelude To Disaster: Craft Beer Trademark Applications Have Doubled In Ten Years

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We've been sounding the warning bells on this for some time now, but the craft beer industry has a trademark problem. As the industry continues its explosive growth, bringing with that growth all of the benefits to the economy and to the public along with it, so too has grown the industry's use of trademarks on all of these new brands. What once was a relatively small cottage industry filled with congenial small players has morphed into very big business. Morphing with it has been that congenial attitude in the industry, with craft breweries now far more protective of their brands and far more willing to send out legal threats and engage in court battles over intellectual property than ever before. It's gotten to the point that even intellectual property attorneys are beginning to warn everyone that the lawsuits and threats are going to inevitably increase. This represents a roadblock to an otherwise thriving industry and it's only going to get worse.That's because, in the last ten years alone, trademark registrations for craft brews have doubled in number, while just this past year at least one market has seen a twenty-percent increase in registrations.

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.

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This Week In Techdirt History: September 3rd - 9th

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Five Years AgoThis week in 2012, as the election drew near, we noted that both the Democrats and Republicans were in deep denial about the need for copyright reform — even as the tide seemed to be turning on bad copyright laws in some other countries. Meanwhile, the copyright takedown game was going nuts as usual, with rightsholders issuing takedowns over content that has been gone for months, and automated bots managing to take down the live-stream of the Hugo awards (for showing clips from an award-winning show) and even the official stream of the Democratic National Convention (with claims from a shockingly long list of media companies).Ten Years AgoIronically for sci-fi fans who couldn't watch the Hugos in 2012, this same week in 2007 it was a sci-fi writers group abusing the DMCA to take down content. Meanwhile, Ridley Scott gave as an interlude from Hollywood's usual complaints about technology being used for piracy (like the MPAA's new crusade against camcording in UK cinemas) to complain about small screens killing the art form. This was also the week that Apple made major updates to its iPod line including the introduction of the iPod Touch, and we noted that the excitement around the technology was itself a good argument against music industry business models.Fifteen Years AgoThis week in 2002, record labels were actually backing away from copy protection, although their official music download sites were still languishing in obscurity. The industry was fresh off an insane attempt to stop piracy with a lawsuit against internet backbone providers, and Duke University had just received a curious anonymous $1-million donation to fight abuse of the DMCA. This was also the week that Greece passed a somewhat-infamous anti-gaming law that, due to its vague wording, effectively banned all video games.

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SpotX Announces New Header Bidding Suite Designed Specifically for Video

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New Senior Director, Tal Almany (pictured left), to drive solution featuring server-side wrapper and direct integration links via OVPs and app SDKs. Video ad serving platform SpotX announced a new header bidding suite built specifically for video, featuring a server-side wrapper and an advancement of the company’s shift from tag-based integrations. The new suite of [...]

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Equifax Security Breach Is A Complete Disaster... And Will Almost Certainly Get Worse

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Okay, chances are you've already heard about the massive security breach at Equifax, that leaked a ton of important data on potentially 143 million people in the US (basically the majority of adults in America). If you haven't, you need to pay more attention to the news. I won't get into all the details of what happened here, but I want to follow a few threads:First, Equifax had been sitting on the knowledge of this breach since July. There is some dispute over how quickly companies should disclose breaches, and it makes sense to give companies at least some time to get everything in order before going public. But here it's not clear what Equifax actually did. The company has seemed almost comically unprepared for this announcement in so many ways. Most incredibly, the site that Equifax set up for checking if your data has been compromised (short answer: yeah, it almost certainly was...) was on a consumer hosting plan using a free shared SSL certificate, a funky domain and an anonymous Whois record. And, incredibly, it asked you for most of your Social Security Number. In short, it's set up in a nearly identical manner to a typical phishing site. Oh and it left open the fact that the site had only one user -- "Edelman" -- the name of a big PR firm.Not surprisingly, it didn't take long for various security tools to warn that the site wasn't safe.

And, when Equifax pushed people to its own "TrustedID" program to supposedly check to see if you were a victim of its own failures... it just started telling everyone yes no matter what info they put in:
So, yeah, what the hell did Equifax do during those six weeks it had to prepare? Oh, well, a few of its top execs used the delay to sell off stock, which may put them in even more hot water (of the criminal variety). Also, just days before it revealed the breach, and long after it knew of it, the company was talking up how admired its CEO is. This is literally the last tweet from Equifax prior to tweeting about the breach (screenshotted, because who knows how long it'll last):
I can't see any scenario under which Smith keeps his job. And it seems likely that many other execs are going to be in trouble as well. Beyond the possible insider trading above, there's already scrutiny on its corporate VP and Chief Legal Officer, John J. Kelley, who made $2.8 million last year and runs the company's "security, compliance, and privacy" efforts.And despite six weeks to prepare for this, the following was Equifax's non-apology:
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.

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Intelligence Oversight Committees Are Being Stocked With Former Intelligence Agency Employees

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RESOLVED: this nation's intelligence oversight is indisputably useless. It's about 99% joke and 1% Ron Wyden dog-whistle questions that go unanswered for months or years. Committees on both sides of the legislature are composed mostly of surveillance cheerleaders and flak catchers profoundly uninterested in performing actual oversight. Reform efforts tend to take place despite the intelligence committees, rather than because of them. Every so often, positive changes are made for purely partisan reasons.Super-friendly "oversight" committees aren't helping hold our nation's multiple intelligence agencies accountable. But it goes deeper than lawmaking fanboys/girls holding prominent positions in intelligence committees. The desire to limit accountability traces back further than the front-mouths lobbing softballs to IC leaders at Congressional hearings. As Tim Johnson and Ben Wieder report for McClatchy News, the intelligence community has been stocking committees with home teamers for years.

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.

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How the AI Revolution Leads to Innovation in the Ad World

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AdYouLike is one of world’s largest artificial-intelligence-driven ad platforms. Adotas and General Manager U.S. and Chief Revenue Officer at ADYOULIKE Francis Turner (pictured left) sat down to discuss how artificial intelligence is changing the ad world. Q: What are your thoughts on the state of innovation within the adtech industry? A: There's been a massive [...]

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Police Chief Says He'll Decide Who Is Or Isn't A Real Journalist

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Good news, citizens. The police are here to tell you who the real journalists are.

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.

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Federal Court Says Utah Theater Can Serve Up Beer And R-Rated Movies Simultaneously

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Utah and Idaho -- two states with more in common than a border -- have been enforcing First Amendment-trampling liquor laws preventing adults viewing certain films from enjoying adult beverages while doing so. I'm not talking about porn theaters, although the use of the word "adult" certainly leads the mind in that direction. No, I'm talking about regular, old-fashioned R-rated films no one really has much objection to adults viewing, even those who often object to adults viewing films rated X and up.In a clear waste of public funds and law enforcement resources, officers are sneaking off to R-rated films at movie houses serving alcohol in hopes of catching them engaged in double-devilry. The movie houses have been fighting back, noting (in lawsuit form) the enforced laws are unconstitutional and inconsistently enforced. Theaters in Utah and Idaho could expect visits from undercover prudes for films like "50 Shades of Grey" and, apparently, "Deadpool."Theaters in both states sued their respective state alcohol boards. Brewvies -- the theater suing the state of Utah -- has been handed a win. Elizabeth Nolan Brown reports on the federal court's decision in the delightfully-titled article "First Amendment Protects Cinema's Right to Show Unicorn Masturbation Scene While Serving Alcohol, Says Judge."

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.


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my6sense Enhances AI Technology in Programmatic Native Platform

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With native advertising expected to grow from $18.59 Billion in 2017 to $23.22 Billion in 2018 just in the USA alone - a 20% increase, according to eMarketer - organizations on both the supply and demand side of the digital marketing eco-system are looking for ways to increase ad revenue and raise user engagement levels [...]

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Military Appeals Court Says Demands To Unlock Phones May Violate The Fifth Amendment

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A decision [PDF] handed down by the Appeals Court presiding over military cases that almost affirms Fifth Amendment protections against being forced unlock devices and/or hand over passwords. Almost. The CAAF (Court of Appeals for the Armed Forces) doesn't quite connect the final dot, but does at least discuss the issue, rather than dismiss the Fifth Amendment question out of hand. (h/t FourthAmendment.com]The case stems from a harassment case against a soldier who violated (apparently repeatedly) a no-contact order separating him from his wife. After being taken into custody, Sgt. Edward Mitchell demanded to speak to a lawyer. Rather than provide him with a lawyer, investigators asked him to unlock his phone instead.

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.

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Case Dismissed: Judge Throws Out Shiva Ayyadurai's Defamation Lawsuit Against Techdirt

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As you likely know, for most of the past nine months, we've been dealing with a defamation lawsuit from Shiva Ayyadurai, who claims to have invented email. This is a claim that we have disputed at great length and in great detail, showing how email existed long before Ayyadurai wrote his program. We pointed to the well documented public history of email, and how basically all of the components that Ayyadurai now claims credit for preceded his own work. We discussed how his arguments were, at best, misleading, such as arguing that the copyright on his program proved that he was the "inventor of email" -- since patents and copyrights are very different, and just because Microsoft has a copyright on "Windows" it does not mean it "invented" the concept of a windowed graphical user interface (because it did not). As I have said, a case like this is extremely draining -- especially on an emotional level -- and can create massive chilling effects on free speech.A few hours ago, the judge ruled and we prevailed. The case has been dismissed and the judge rejected Ayyadurai's request to file an amended complaint. We are certainly pleased with the decision and his analysis, which notes over and over again that everything that we stated was clearly protected speech, and the defamation (and other claims) had no merit. This is, clearly, a big win for the First Amendment and free speech -- especially the right to call out and criticize a public figure such as Shiva Ayyadurai, who is now running for the US Senate in Massachusetts. We're further happy to see the judge affirm that CDA Section 230 protects us from being sued over comments made on the blog, which cannot be attributed to us under the law. We talk a lot about the importance of CDA 230, in part because it protects sites like our own from these kinds of lawsuits. This is just one more reason we're so concerned about the latest attempt in Congress to undermine CDA 230. While those supporting the bill may claim that it only targets sites like Backpage, such changes to CDA 230 could have a much bigger impact on smaller sites like our own.We are disappointed, however, that the judge denied our separate motion to strike under California's anti-SLAPP law. For years, we've discussed the importance of strong anti-SLAPP laws that protect individuals and sites from going through costly legal battles. Good anti-SLAPP laws do two things: they stop lawsuits early and they make those who bring SLAPP suits -- that is, lawsuits clearly designed to silence protected speech -- pay the legal fees. The question in this case was whether or not California's anti-SLAPP law should apply to a case brought in Massachusetts. While other courts have said that the state of the speaker should determine which anti-SLAPP laws are applied (even in other states' courts), it was an issue that had not yet been ruled upon in the First Circuit where this case was heard. While we're happy with the overall dismissal and the strong language used to support our free speech rights, we're nevertheless disappointed that the judge chose not to apply California's anti-SLAPP law here.However, that just reinforces the argument we've been making for years: we need stronger anti-SLAPP laws in many states (including Massachusetts) and, even more importantly, we need a strong federal anti-SLAPP law to protect against frivolous lawsuits designed to silence protected speech. The results of this case have only strengthened our resolve to do everything possible to continue to fight hard for protecting freedom of expression and to push for stronger anti-SLAPP laws that make free speech possible, and not burdensome and expensive.You have not heard the last from us on the issue of the First Amendment, free speech and anti-SLAPP laws -- or how some try to use the court system to silence and bully critics. Step one of this is our new Free Speech edition, which we announced just a few weeks ago, where we are focusing more of our reporting efforts on issues related to free speech and anti-SLAPP. We intend to do a lot more as well. For years, we've talked about these issues from the position of an observer, and now we can talk about them from the perspective of someone who has gone through this process as well.Of course, if you have to face something like this, it helps to have great lawyers--and we're immensely grateful for the incredible hard-work of Rob Bertsche, Jeff Pyle and Thomas Sutcliffe along with the rest of the team at their firm, Prince Lobel Tye LLP.Finally, I can't even begin to thank everyone who has supported us over the past nine months -- whether by kind words (you don't know how much that helped!) or through our survival fund at ISupportJournalism.com or by becoming a Techdirt Insider. We just passed Techdirt's 20th anniversary and while it's one thing to think that people like and support you, it's another thing altogether to see how people come out to support you when it matters most. And we were overwhelmed by the support we received over the past nine months, and the kind words and help that many, many people offered. It was beyond heartening, and, once again, it reinforces our resolve to continue to speak up for free speech and to do what we can to protect others' ability to speak out as well.

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Canadian Cops Belatedly Asking For Authorization To Deploy Stingray Devices They've Been Using For Years

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Better late than never is the motto of Canadian law enforcement Stingray Squads. Documents obtained by Vice Canada show police scrambling to obtain warrants for equipment they were already deploying.

“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.

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IOC President Tosses Shade At Including eSports In Olympics Over Concerns About Violence And Doping

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You will recall that a few weeks back we discussed the Paris Olympic Committee's open attitude towards looking at eSports for inclusion in the upcoming 2024 Olympic Games. This refreshing stance from an Olympic committee was a welcome step in the eSports trend, although it came with no promises taht we would actually see eSports in Paris seven years from now. The IOC, as always, would have the final say, and we all knew the massive headwind eSports would face with the grandpappy Olympic committee: eSports aren't real sports. Hell, I'm sure many advocates for competitive gaming were already gearing up to fight that fight.Unfortunately, it looks like the IOC is likely to turn its nose up at eSports for entirely different and far, far more stupid reasons. The first of those dumb reasons, according to IOC President Thomas Bach, will indeed have a familiar ring to gamers.

“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.

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Jul/Aug 2017 - MultiValue Database and Framework Benchmarking

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Benchmarking has been a topic that's been around for several years, but nothing really has been provided to the MultiValue Community to use. I've heard many different reasons for the lack of benchmarking, so I'll go through a few of them.

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Jul/Aug 2017 Magazine

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Cover Story - MultiValue Database and Framework Benchmarking

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A Closer Look at Cross-Device Data: Deterministic vs Probabilistic

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As online users bounce from desktop to mobile, cross-device tracking is now more than ever a crucial component for any digital marketing strategy. But how can you accurately pinpoint where your audience is? That is where deterministic and probabilistic data comes in. Often used as the foundation for cross-device tracking, it is important to know [...]

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Papyrus, a Blockchain-Supported Online Advertising Ecosystem, Launches in the U.S.

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The New Scalable Model for Transparency, Fraud Protection and Fair Play Will Optimize Digital Ad Spend and Says They Will Save the Industry Up to $110B Annually. Papyrus, a decentralized ecosystem for advertisers, publishers, developers and users supported by Ethereum blockchain and smart contracts, today announced its launch in the U.S. The project, funded so [...]

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This Week In Techdirt History: August 27th - September 2nd

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Five Years AgoThis week in 2012 started out with us catching up on something that happened late on the previous Friday: the jury in the Apple/Samsung patent trial released a surprise snap verdict that Samsung had infringed. Worryingly, they pretty much admitted that they ignored prior art and other key factors to do so — and the foreman's explanation in interviews showed he didn't really understand prior art to begin with. Of course, the whole thing seemed to be simply demonstrating the viability of Samsung products as an alternative to iPhones and iPads — and as you likely know, just last December, SCOTUS overturned this verdict.Ten Years AgoThis week in 2007, the RIAA managed to score a victory in one of its attempts to get a judge to say that "making available" counts as distribution, and immediately began pushing to spread that ruling to other courts. Viacom got meta in its habit of awful YouTube takedowns by taking down someone's video of a Viacom-owned show airing one of his YouTube videos without permission. Congress was trying to get ISPs to be copyright cops and introduce the nightmare of copyright to the fashion industry. And the first iPhone was successfully unlocked, leading AT&T to predictably and pointlessly lash out.Fifteen Years AgoThis week in 2002 there were lots of new and emerging things that people were grappling with (though it was not the first freak-out about ultra-violent video games nor would it be the last). There was the realization that becoming suddenly internet famous comes with a cost that not everyone enjoys; there was the attempt to figure out online diploma mills. All those things are pretty pervasive today and no longer new, but here's one that fifteen years later is still an "emerging" trend like it was then: artificial intelligence and its implications. Excitement over AI has crested and dipped for a long time, much like another piece of tech that was in the same post-overhype torpor in 2002 that it appears it might be headed for today: virtual reality.

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posted at: 12:01am on 04-Sep-2017
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Last Chance To Get Your Techdirt Anniversary Gear!

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Only available until tomorrow! Get your Original Techdirt Logo Gear »
It was last week that we celebrated Techdirt's 20th anniversary, and part of that included digging up the very first Techdirt logo...
...and turning it into some limited edition t-shirts, hoodies and stickers! Now it's your last chance to get your hands on this special anniversary gear, as the sale ends tomorrow, Sunday September 3rd. So if you want one, hurry up and order now! And don't forget to check out our store on teespring for other Techdirt gear.

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posted at: 12:00am on 03-Sep-2017
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Beyond the Great [App] Wall of China: AppsFlyer's Guide to Understanding China's 724 Million Mobile Users

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The Chinese mobile market is like no other. The numbers are staggering: 724 million mobile users, 469 million users making payments with their phones, $1.7 billion quarterly revenue in the Chinese iOS App Store - more than any other country in the world. The list goes on. When you combine the scale and the quality [...]

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posted at: 12:00am on 02-Sep-2017
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Stupid Patent Of The Month: JP Morgan Patents Interapp Permissions

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We have often criticized the Patent Office for issuing broad software patents that cover obvious processes. Instead of promoting innovation in software, the patent system places landmines for developers who wish to use basic and fundamental tools. This month's stupid patent, which covers user permissions for mobile applications, is a classic example. On August 29, 2017, the Patent Office issued U.S. Patent No. 9,747,468 (the '468 patent) to JP Morgan Chase Bank, titled "System and Method for Communication Among Mobile Applications." The patent covers the simple idea of a user giving a mobile application permission to communicate with another application. This idea was obvious when JP Morgan applied for the patent in June 2013. Even worse, it had already been implemented by numerous mobile applications. The Patent Office handed out a broad software monopoly while ignoring both common sense and the real world.The full text of Claim 1 of the '468 patent is as follows:

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.

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posted at: 12:00am on 02-Sep-2017
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Officers With Personal Body Cams Taking The 'Public' Out Of 'Public Accountability'

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America's largest sheriff's department is rolling towards an accountability train wreck. Despite years of discussing the issue, the Los Angeles County Sheriff's Department still has no cohesive policy on body cameras, nor has it taken steps to outfit its officers with the devices.This less-than-ideal situation is being made worse by deputies purchasing their own body cameras with personal funds.

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.

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posted at: 12:00am on 02-Sep-2017
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Optimizing Digital Marketing & Retargeting Investments: The CMO's Test

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The Merkle Digital Marketing Report was recently released. After reading the report, one data point in particular resonated with me: Google Paid Search Spend Up 23% in Q2 2017 So marketers have upped investment in paid search to drive website traffic. This trend doesn't come as a surprise, since paid search was budgeted for at [...]

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posted at: 12:01am on 01-Sep-2017
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Court Dumps Lawsuit Against Zillow Over Its Inaccurate 'Zestimates'

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Earlier this year, real estate litigator and aggrieved homeowner Barbara Andersen sued Zillow for providing a lower "Zestimate" than she believed her house was worth. She alleged Zillow violated Illinois state law by portraying its estimates as appraisals, even though it lacked the proper licensing to perform appraisals. Andersen sought an injunction blocking Zillow from posting information about her home (even publicly-available information) and offering a "Zestimate" on its selling price.Andersen has just had her case tossed, although she's now representing others in a proposed class action against Zillow. At some point between February and earlier this week, Andersen's case was moved to a federal court and she's now listed on the bottom of court documents (as counsel of record), rather than up top as a plaintiff.The new lead plaintiffs are three Patels disputing Zestimates of their multi-million dollar properties. (This rearranging of plaintiffs and lawyers [and lawyers who were also plaintiffs] is unsettling, especially for those of us who learned what we know of the real estate business via repeated viewings of "Glengarry Glen Ross.")The Patels (and "others similarly situated") aren't happy with Zillow. The Patels (collectively) have multiple properties on the market, all listed at prices considerably higher than Zillow's Zestimates. They claim, as Andersen did, that Zillow violates state law by offering something homebuyers might believe is an appraisal. A variety of interconnected laws results in the Patels attempting to coax a federal court into killing Zillow's estimates. As Eric Goldman summarizes, the Patels have gone down on strikes.

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 confusing
Goldman 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.

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posted at: 12:01am on 01-Sep-2017
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Big Ag Gets Ag-Gag Envy, Helps Bring In 'Seed-Preemption' Laws Across The US

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As multiple Techdirt stories attest, farmers do love their "ag-gag" laws, which effectively make it illegal for activists to expose animal abuse in agricultural establishments -- although, strangely, farmers don't phrase it quite like that. Big Ag -- the giant seed and agricultural chemical companies such as Monsanto, Bayer, and DuPont -- seem to have decided they want something similar for seeds. As an article in Mother Jones, originally published by Food and Environment Reporting Network, reports, it looks like they are getting it:

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+

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posted at: 12:01am on 01-Sep-2017
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