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Drug Dog Testing Process Eliminates Handler Bias. Unsurprisingly, Cops Don't Like it.

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When a cop needs an excuse to search something (but can't manage to talk the citizen into consenting) there's almost always a four-legged cop waiting in the wings to give the cop permission to do what he wanted to do anyway. You will rarely hear testimony given in any court case where a K9 hasn't "alerted" to the smell of drugs. Once this "alert" is delivered, officers are free to override objections to warrantless searches under the theory that a dog's permission is all that's needed.What's willfully ignored by law enforcement officers is the nature of the beasts they deploy: dogs like pleasing handlers and will react to unconscious cues and/or do the thing they're expected to do: "find drugs." If the dog knows it can perform an act for a reward, it will perform that act, whether or not drugs are present. Unfortunately, there's a deliberate dearth of data when it comes to drug-sniffing dog fallibility. Tracking this data would undercut the dogs' raison d'etre: to act as probable cause for warrantless searches. This lack of data makes challenging drug dog "alerts" in court almost impossible.Fortunately, someone's actually looking into making drug dogs better -- or, at the very least, providing evidence that drug dogs are no more accurate at detecting drugs than $2 field tests. A program started by a former police K9 trainer is looking to remove the human factor from drug dog performance evaluations.

One organization trying to address handler bias is the Pacific Northwest Police Detection Dog Association. In the U.S., a drug-sniffing dog team — the dog and its handler — has to be periodically retested and certified, usually by one of the many regional K9 associations. Some groups have tougher testing methods than others; the PNWK9 has a method that aspires to scientific levels of impartiality."It's a double-blind," says Fred Helfers, the retired police K9 handler and trainer who designed the system. "No outside influence."In Helfers' tests, nobody in the room knows where the drugs are hidden; not the handler, not even the test administrator. That's to eliminate the possibility of someone unconsciously telegraphing signals to the dog as it gets close to the target.
Why this hasn't been done before is a mystery. (I mean, it's a mystery if we pretend there aren't a million reasons law enforcement agencies prefer the status quo.) As NPR points out, a study published seven years ago showed drug dogs respond more to handler cues than to the presence of drugs. Researcher Lisa Lit's tests found dogs alerting to areas researchers indicated scents would be likely, rather than where scents were actually located. What was presented as a test of drug dogs was actually a test of the dogs' handlers. The dogs failed because their handlers failed.Needless to say, the study was unpopular in the law enforcement community. Law enforcement K9 trainers denounced the study and refused to provide any more assistance to researchers. Lit calls this study -- one that pointed out the Clever Hans-esque performance of drug sniffing dogs -- a "career killer." This is what happens to research that doesn't conform with law enforcement's self-image.Helfers' testing process -- in which die rolls determine drug locations and eliminate tester bias -- doesn't conform with officers' apparently misplaced belief in their own "training and expertise."
Occasionally, the dice determine that there will be no drugs hidden at all — sometimes for several tests in a row. He recalls that happening at another certification event."There were some new teams that failed that sequence," Helfers says. "Because they didn't trust their dog."He says those handlers couldn't get past their expectation that drugs should be there. "I think they 'overworked' the car. Instead of going around once or twice and trusting their dog and watching their dog work, maybe they'd seen something that wasn't there," Helfers says.
This shows there's no question drug dogs respond to handlers. If dogs fail to respond, the animals are treated as untrustworthy by the same officers who refer to them as "probable cause on four legs." This is part of the problematic law enforcement mindset. A cop would never stop anyone who isn't a criminal… at least according to cops. This likely isn't a conscious thought, but rather the expected outcome of years of instruction that lead officers to view a wide swath of innocent behavior as inherently suspicious. (See also: too nervous, too calm, moving too much, moving too little, not looking directly at officers, looking directly at officers, traveling on any major highway, driving too fast/too slow/too perfect, ad nauseum.)There is no room in this mindset for the possibility that the person being questioned isn't a criminal. If a cop can't find anything, it's time for a drug dog to do a few laps around the person's car, luggage, etc. If there's still no "hit," the problem must be the dog rather than the lack of contraband. Why? Because the only reason a cop would be interested in this particular person is because this person is doing something illegal. All other possibilities are discarded. This is clearly and disturbingly illustrated by this statement from another K9 officer:
"There's been cars that my dog's hit on... and just because there wasn't a product in it, doesn't mean the dog can't smell it," says Gunnar Fulmer, a K9 officer with the Walla Walla Police Department. "[The drug odor] gets permeated in clothing, it gets permeated in the headliners in cars."[...]"The dogs are mainly used to confirm what we already suspect," says Fulmer. "When the dogs come out, about 99 percent of the time we get an alert. And it's because we already know what's in the car; we just need that confirmation to help us out with that."
Confirmation bias, plain as day, and yet Officer Fulmar seems completely unaware of the underlying thrust of his statement. Worse, officers like Fulmer remains opposed to tracking of K9 false hits or to the introduction of any form of scientific rigor to the process.
Handlers also point out that scientific neutrality is not something you can reasonably expect during traffic stops, since police are trained to act on their suspicions.
In short, officers want to have free rein to allow their hunches to develop into warrantless searches with the assistance of animals prone to responding to handlers' cues, rather than the existence of contraband. Better an innocent man have his vehicle tossed than an officer admit his K9 partner might be more interested in giving him what he wants (a warrantless search) than in detecting the presence (or non-presence) of drugs.This mindset permeates the entire process. When testing methods eliminate officers' involuntary cues or point out how frequently dogs respond to their handlers, it's the process that's wrong. Or the dogs. But never, under any circumstances, are the officers wrong. Law enforcement is willingly operating in its own massive blind spot, unable to fathom the slim possibility that the person they thought had drugs on them might not actually possess any drugs.And this doesn't even address the bottom feeders of law enforcement: officers who knowingly use K9s to skirt warrant requirements, telling citizens the dog "alerted" even when it hasn't or has only done so in response to the officer's prompts. All of this is excused when officers actually find drugs and the times they don't are waved away with tired Drug War cliches about the sacrifice of a few people's rights for the greater good.What this testing method shows is dogs (and their handlers) aren't to be trusted -- not without more data. If law enforcement can't admit to being wrong, they'll never look for ways to improve. Given what's been shown, drug dogs should not be treated as "probable cause on four legs." At best, they're walking confirmation bias -- self-serving tools of civil liberties circumvention.

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posted at: 12:00am on 30-Nov-2017
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Chicago Considers Another Dumb 'Texting And Walking' Law To Raise Revenue

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Since the advent of the smartphone, it seems that every few years or so, one government enttity or another suddenly has the brilliant idea that its constituency ought to have fines levied on them for "distracted walking." This catchall term has a much more specific meaning with in the laws in question: walking and using a phone at the same time. While this nonsense began mostly in foreign countries, there a few states in America that have some flavor of this kind of law on the books.And now my beloved hometown of Chicago is looking to join the nanny government ranks in the most Chicago way possible: by charging enormous fines for "distracted walking" in a fairly naked attempt to generate revenue for the government.

Aldermen Ed Burke (Ward 14) and Anthony Beale (Ward 9) introduced an ordinance Wednesday aimed at changing pedestrians' bad behavior by fining them if they text or use a mobile device while walking through intersections in Chicago.The measure proposed by Burke and Beale would fine pedestrians between $90 and $500 for each incident of using a mobile device while crossing a street or highway. The full City Council would have to pass the measure.
There are a myriad of reasons why these laws are silly. Given that we're talking about pedestrians here, it seems clear that these laws are being pitched as an attempt to protect the safety of the very citizens it would fine. That kind of parental hue of government is generally pretty silly, but not nearly as silly as expecting that a $500 fine will get someone to not blindly walk across a highway while texting, but the very likely result of being splattered across the windshield of an SUV wouldn't. In other words, were this crisis as dangerous as the good Aldermen suggest, the roads would be paved with blood, making for a perfectly suitable warning to distracted walkers. Notably, these deaths simply aren't happening.Which is entirely besides the point, because if a fine that can be up to $500 for something as subjective as distracted walking is anything other than a cash-grab by a municipal government whose efforts to balance its budget are comedic at Mel Brooks levels, then I can't imagine what that other thing would be.

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posted at: 12:00am on 30-Nov-2017
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Activision Considering An Opposition To Trademark For Dog-Curbing Company 'Call Of Doodee'

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There's a line in Ian Fleming's opus Goldfinger that goes: "Once is an accident. Twice is a coincidence. Three times is an enemy action." It appears that as far as strange trademark attacks issued from entertainment properties upon canine-related services are concerned, we've officially reached the coincidence stage. You will recall that we were just discussing an odd trademark opposition filed from RZA of the Wu-Tang Clan against a dog-walking service calling itself Woof-Tang Clan. On the heels of that, we learn that Activision is mulling an opposition on a trademark application for a dog-poop removal service calling itself Call of DooDee.

Enter Call of DooDee, the clever name for a dog poop cleaning service that's not too hard to differentiate where they received their inspiration. The subject matter of the business itself in relation to the franchise is something that we're not even going to touch. Activision may not find the situation humorous, but you can bet we got a chuckle out of it. Someone who is not laughing however, is the Illinois business owner that filed the initial trademark.
While the application was filed with the USPTO in June, Activision recently asked for extended time to consider filing an opposition. While I would very much enjoy reading about intellectual property lawyers entering into long-form and serious legal discussions during which they would be forced to say the word "doodee" repeatedly, it should be immediately obvious to anyone involved that no opposition is warranted here.While the name of the business is a clear homage to the phrase "call of duty", it's far less clear whether that homage has anything to do with the famous video game franchise. The phrase has military origins, to which the game franchise itself is a titular homage. Beyond that, there is no other tie between a dog-curbing service and the video game franchise. They operate in different industries and, frankly, on different planes of existence. One business is digital, while the other is material and fecal. While some haters of the franchise might indeed claim that it is very, very shitty, this is neither the sort of market tie that is material in trademark law, nor do I suspect that it is the sort of evidence for public confusion that Activision's lawyers would want present in its opposition.I would hope that any plans for an opposition being filed would make its way into Activision's wastebin. Perhaps to sit alongside several knotted little blue baggies.

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posted at: 12:00am on 29-Nov-2017
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Court Says Cop's Theft Of Evidence Shouldn't Have Any Effect On Man's 15-Year Drug Sentence

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Texas criminal justice blog Grits for Breakfast is highlighting a recent court decision in which several judges somehow found a way to uphold a conviction directly predicated on law enforcement deception.

Here's a crazy case out of Harris County: The Government-Always-Wins faction on the Texas Court of Criminal Appeals wrangled a four-member plurality on a habeas corpus writ to overturn the trial court's recommendation and uphold a conviction in which law enforcement misrepresented the weight of drugs found on a defendant, calling it 26 kilos when the real amount of actual cocaine was likely less than a gram.The reason for the discrepancy: A police officer stole the drugs and replaced them with sheetrock powder laced with cocaine so it would trigger a field test. While the defense stipulated Mr. Pena intended to transport cocaine, we don’t really know how much because the cop stole it before they ever got to weigh it.The case continues the CCA's longstanding penchant for finding excuses to compartmentalize severe police misconduct and uphold convictions in spite of it. The trial judge recommended the defendant be granted relief, but four members of the high court found excuses to tolerate this sordid situation.
How do we get to 26 kilos from less than a gram of actual cocaine? It happens like this...Martin Pena needed money for rent. He agreed to meet some other men at a taqueria to run some sort of an errand for $500. One of the men took Pena's car and returned with it a short while later. When he returned, there was a black ice chest in Pena's car. Pena was instructed to drive it to another location and park his vehicle, leaving the keys inside.Pena was pulled over by Houston police officers who arrested him for an outstanding warrant. The vehicle was impounded and an inventory search performed. The 26 kilos of "cocaine" in the ice chest were discovered and Pena was convicted of transporting 400 grams of cocaine -- enough to trigger a mandatory minimum 15-year sentence.It was more than a year after Pena's guilty plea before new evidence came to light. The 26 kilos found in Pena's car was almost 100% drywall powder. The ice chest in Pena's car had been tampered with before Pena ever took control of it. Officer Marcos Carrion -- one of the officers who participated in Pena's arrest -- was dirty. He was not only working for drug traffickers, providing them with inside law enforcement info, but also working for himself. From the decision [PDF]:
When a shipment was identified, Carrion and his cohorts replaced the trafficker’s cocaine with sheetrock and trace amounts of cocaine sprinkled on top. Carrion would then seize the “fake” drugs once they reached their destination (usually a courier), knowing that the replaced sheetrock with the sprinkling of cocaine would field-test positive and that it would not be tested for purity. By doing this, Carrion was able to steal narcotics from the traffickers he was working for, and because the traffickers believed that their drugs were in the possession of the State they never learned that the drugs had been stolen.
That's what happened to the cocaine Pena was supposed to deliver. Carrion took the real stuff, replaced it with sheetrock dusted with cocaine, and closed the loop by performing the arrest. Since Carrion knew drug labs wouldn't test the cocaine for purity, Pena was allowed to believe he was facing a significantly longer prison sentence if he didn't plead guilty -- far more than the 400 grams he agreed to.The lower court agreed with Pena's assertion he would not have pled guilty if this information had been turned over to him prior to him entering his plea. The higher court disagrees. It found he was still guilty of transporting cocaine, even though the substance Pena transported was almost completely drywall. Under Texas law, drug weight calculations are based on the total weight, not the purity of the substance.
Although Pena, in a sense, was carrying the “wrong” cocaine because of Carrion’s drug-swapping actions; his conviction is based on the substance seized from his vehicle, not the cocaine he never possessed. And, as a matter of state law, the substance he possessed is cocaine. In Texas, a controlled substance includes the substance and any adulterants and dilutants.[...]The Code makes no exceptions for cocaine with “a lot” of sheetrock in it or based on the purity of the controlled substance.
It admits Officer Carrion's theft of the original stash and replacement with a much more profitable (for Carrion) 99/1 ratio of sheetrock/cocaine was disturbing, but does not change the underlying fact Pena was transporting some form of cocaine.
To be sure, Carrion’s misconduct was willful, brazen, and appalling, but it does not change the fact that Pena was in possession of about 26 kilograms of cocaine (together with adulterants and dilutants) and that his conviction is based on that possession.
This is a disturbing conclusion, albeit one more firmly supported by existing caselaw and statutory direction. The other finding -- that Carrion's actions should have no bearing on the length of Pena's conviction -- is even worse.
To show that Carrion tampered with or fabricated the drugs seized from his car, Pena would have to show that Carrion knew that an investigation or official proceeding was pending or in progress and that he made, presented, or used the seized cocaine with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding. TEX. PENAL CODE § 37.09(a)(2); Wilson, 311 S.W.3d at 464. In addition, he would have to show that the misconduct in question took place before the commission of his crime because the state suppression rule “deals with exclusion of illegally obtained evidence of a prior crime[,]” not a crime committed after the misconduct.
The justices claim reading this Pena's way would allow anarchy to reign supreme. For instance, someone could conceivably get away with murdering a cop if he could prove the incident began with an unlawful arrest. (This is literally the example used by the court.) It's a very short parade of horribles that uses an extreme scenario to excuse noxious government misconduct. To thread the legal needle after this "better citizens get screwed than a hypothetical cop murderer go free" assertion, the Texas court has to turn itself into everything citizens hope their courts never morph into: an aider and abettor of police misconduct, rather than a check against government abuse.Here's what Grits for Breakfast has to say about this legal rationale:
Just as disingenuous was their analysis regarding whether the officer tampered with evidence. Here's a headspinning quote from the main opinion showing the black-is-white, freedom-is-slavery type Orwellian reasoning they had to engage in to reach this conclusion:there is no dispute that drug dealers returned Pena's car after placing an ice chest full of cocaine in the backseat, that Pena retook possession of the car and was the sole occupant of the vehicle when he pulled over, or that [the police officer's] misconduct took place before Pena took possession of the cocaine in his car. Based on this, Pena cannot prove that [the officer] tampered with or fabricated the drugs in Pena's car within the meaning of Section 37.09 of the Texas Penal Code.
The evidence exists Officer Carrion stole and replaced the drugs. The DEA, which had Carrion under investigation at the time of Pena's arrest, had this evidence. In fact, the DEA tested the substance seized from Pena's car, finding it contained almost no cocaine. And yet, the court insists the evidence does not exist -- or at least does not exist in any way that would allow Pena to challenge his sentence. It seems to believe that because Pena believed he was transporting genuine cocaine -- and because the state considers the presence of adulterants when calculating weight -- a sentence based almost solely on the actions of a crooked cop should stand. No one but Officer Carrion has any idea how much cocaine was in the ice chest originally. But that amount vanished into Carrion's criminal side gig, leaving behind nothing more than 26 kilograms of sheetrock and less than a gram of actual cocaine.As Grits for Breakfast notes, there are a few dissenting opinions, but because the dissenting judges couldn't agree on which issue of this abhorrent case was the worst, the plurality of judges refusing to punish law enforcement wrongdoing by stripping it of a courtroom victory end up with a dubious "win" of their own. And bad cops are given a better idea of just how far they'll have to go before they need to start worrying about judicial pushback.

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posted at: 12:00am on 29-Nov-2017
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Wu-Tang Clan's RZA Opposes Trademark Application For Dog-Walking Company Called Woof-Tang Clan

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The last time we mentioned the Wu-Tang Clan here at Techdirt, we were discussing the group's bizarre yet inventive attempt to curtail digital music's infinite goods problem by releasing a single copy of an entire album for $1 million. It was a creative approach, though one that likely isn't a model that transfers well to the music industry as a whole. But it seems that the copyright arena isn't the only intellectual property venue in which Wu-Tang wants to play, as RZA, a member of the group, has filed a trademark opposition to a dog-walking company calling itself Woof-Tang Clan.

In a lawsuit filed November 15th, RZA (real name Robert Diggs) touted the long history of the Wu-Tang Clan mark and how its appearance on various goods and services "has come to represent enormous goodwill." The suit also claimed the Wu-Tang mark is "unmistakably associated with [RZA] such that it constitutes part of his identity."Woof-Tang Clan's owner, Marty Cuatchon, filed a trademark application for his company on June 8th. As the New York Daily News noted, the company also briefly sold T-shirts on its website that made explicit reference to late Wu-Tang rapper Ol' Dirty Bastard's debut album, Return to the 36 Chambers: The Dirty Version. The shirt tweaked the album's famous cover – a snapshot of ODB's ID card for food stamps – to feature a dog named Bali in the rapper's place. Another shirt parodied the cover of De La Soul's 3 Feet High and Rising. Both have been removed from the company's website.
Now, the t-shirt aspect of this will muddy the waters as to just how valid an opposition this is. It's almost certain that RZA has a trademark for all things "Wu-Tang Clan" for apparel, after all. Still, the shirts are obvious parody, in line with Woof-Tang Clan's obvious homage as a parody in its business' name to begin with. Commercial in nature or not, this sort of parody is generally regarded as protected fair use.Particularly, it should go without saying, when that use in no way deceives the consuming public about the source or affiliations of the supposedly offending company. That confusion is the controlling factor for trademark concerns and any claim that the public is going to think this small dog-walking company is run by or is affiliated with a world-renowned rap group is a hell of a logic-hurdle over which to leap. Rolling Stone's reporting suggests that RZA's filing claims that Woof-Tang Clan is suggesting a connection to the group, but all it actually suggests is that the folks behind Woof-Tang Clan are likely fans of the RZA and his cohorts. Marty Cuatchon, the man behind the company, confirmed as much.
Speaking with the Daily News Saturday, Cuatchon said he was unaware of RZA's trademark challenge and declined to comment until speaking with a lawyer. However, he did say, "I am a fan. We walk dogs. I thought it was a good idea."
A much better idea than this needless trademark opposition, I would say.

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posted at: 12:00am on 28-Nov-2017
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Yet Another Legal Action By Dogged Privacy Activist Brings Good News And Bad News For Facebook In EU's Highest Court

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The Austrian privacy activist Max Schrems has appeared a few times on Techdirt, as he conducts his long-running campaign to find out what Facebook is doing with his personal data, and to take back control of it. In 2011, he obtained a CD-ROM (remember those?) containing all the information that Facebook held about him at that time. More dramatically, in 2015 Schrems persuaded the Court of Justice of the European Union (CJEU) that the Safe Harbor framework for transferring personal data from the EU to the US was illegal under EU laws because of the NSA's spying, as revealed by Edward Snowden. As Schrem's detailed commentary (pdf) on that CJEU judgment explains, the case was specifically about Facebook, although it applied much more generally. Last month, we wrote about another case, currently being referred to the CJEU, concerning Facebook's use of standard contractual clauses (SCCs) (pdf), also known as "model clauses". It's an alternative legal approach for transferring data across the Atlantic, and if the CJEU rules against Facebook again, it could make things rather difficult for the big US Internet companies (but ordinary businesses won't be affected much.)You might think that all these Facebook cases would be more than enough for any privacy activist, but not for Schrems, apparently. He is engaged in yet another legal action that involves Facebook (pdf). As Schrems explains:

[he] has sued Facebook over his private Facebook account at his home court in Vienna, Austria. Schrems accuses Facebook to massively violate strict European privacy laws. The lawsuit includes claims from invalid privacy policies all the way to data sharing with US intelligence services. In addition to bringing his personal claims, he also invited other users to sign over their rights to him, to form a so-called "Austrian style class action" against Facebook, in which he represents other users on a pro bono basis.
This legal action is rather different from the others discussed above, and involves Schrems personally suing Facebook in Austria using civil law. Unusually, he also gathered 25,000 people to join him in a class action against Facebook, each asking for €500 damages. Because of the importance of the legal questions under discussion, Austria's supreme court referred them to the CJEU for a definitive ruling. As is usual, before the CJEU judges themselves rule, one of the court's Advocates General offered a legal opinion, which has just been published. Two questions were considered: whether Schrems could bring a case at all, and whether a class action was possible. Here's Schrems' explanation of what the Advocate General (AG) said for the first issue:
Facebook tried to argue that Mr Schrems cannot bring a lawsuit at his home court, as he would not qualify as a consumer, but as a business. This is despite the fact that the courts have found, that the lawsuit is organized on a pro bono basis and he never used his Facebook account in any commercial way.The strategy of Facebook was to force Schrems to bring his lawsuit at Facebook's home court in Dublin -- where a single case of €500 could cost Millions in legal fees. This was clearly rejected by the AG, just like previously by the Higher Regional Court in Vienna: Individuals that fight for their rights as volunteers are not 'businesses' and can enjoy their consumer rights. The AG confirmed: Mr Schrems can bring a 'model case' in Vienna.
On the second question:
the advocate general accepted Facebook's point of view: An "Austrian style class action" is only admissible against an Austrian company -- but not if an Austrian consumer sues a company in another EU member state [Facebook's EU operations have their headquarters in Ireland].
Schrems spends some time explaining why he thinks the Advocate General is wrong, and it's worth reading his thoughts here, since Schrems is naturally something of an expert in this domain after all these years. But as he also points out, what counts is what the five judges who will consider the case at the CJEU decide. Although they usually accept the reasoning of the Advocate General, they don't have to and sometimes disagree. Schrems thinks their judgment will be handed down in January 2018, after which the case will go back to the Austrian courts to make a final ruling based on the CJEU's findings.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Daily Deal: Black Friday Sales

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Check out these Black Friday deals and more in the Techdirt Deals Store.Small and discreet, TREBLAB's X11 earbuds are perfect whether you're running, working out, doing chores, or just going about your commute. These buds have your soundtrack covered with elite Bluetooth audio, and are packed with features like passive noise cancellation and a built-in mic. They come in four different colors and are on sale for $35.99 (down from $41.99).

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Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

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posted at: 12:00am on 25-Nov-2017
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This Week In Techdirt History: November 19th - 25th

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Five Years AgoThis week in 2012, we saw a lot of interesting documents related to copyright. First, there was the excellent report from Derek Khanna at the Republican Study Committee, which was quickly retracted by the party (but that wouldn't be the last we'd hear from Khanna — and we continued to look closely at the report). Next, there was the newly available English translation of a Polish copyright study that, it turned out, had been critical to the growth of the ACTA opposition. Finally, the Mercatus Center at George Mason University was getting ready to publish a book about the need for copyright reform — just as rightsholders were co-opting the "reform" language for their own purposes.Ten Years AgoThis week in 2007, we got the opinions of presidential candidates on copyright through the lens of an incredibly slanted survey clearly aimed at promoting stronger laws, while a much better and more interesting report was highlighting just how much casual infringement everyone commits every day (rendering copyright law largely obsolete). While music retailers were begging the recording industry to cut it out with the DRM and the MPAA was defending its assault on universities, the writer's strike was highlighting just how many new competitors Hollywood has online. Meanwhile, a company was claiming to offer "open-source DRM", which we noted is either not open source, or not DRM.Fifteen Years AgoThe more things change, the more they sound exactly like they did in 2001 — like concerns about the uptick in fake, doctored photos being spread online, and tech companies asking the FCC not to filter the internet. On the copyright front, some were of course trying to claim that DRM can save the entertainment industry while Microsoft was realizing that it's a futile endeavor. We also pointed to an early article discussing something that would become a common point here at Techdirt: copyright is about user rights, not an analogy for property. Meanwhile, though it started as a small and curious experiment, it was becoming apparent that Google and Amazon's newfangled "web services" offerings might change the face of the web as we know it.

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NFL Expands Streaming Even Further With New Deal With Verizon, Which Will Make Mobile Streaming Non-Exclusive

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Long-time readers of Techdirt will know that for as long as I've written here, I've screamed for professional and college sports leagues to offer better streaming options. It has never made a lick of sense to me that an industry so reliant on eyeballs and advertising revenue would want to limit either by keeping people from watching their games. While we're not where I'd like to be, much has changed in the intervening years. Streaming from pro sports leagues has advanced considerably, both in terms of quality and availability. And, perhaps more importantly, this march has only gone in the direction of more and better streaming options.A march that continues into the present, in fact, as the NFL appears to be on the verge of inking a new streaming deal with Verizon that is just as important for what it does not include as what it does. We'll start with what Verizon gets from the deal, which is an end to the hilarious limit on screen size for the NFL streaming product.

Verizon and the National Football League are in talks to sign another streaming rights deal. According to a Bloomberg report, the wireless provider and the NFL are close to finalizing a new deal that would let Verizon stream games to Internet-connected TVs, tablets, and phones. Verizon's previous deal only allowed it to stream games to devices with screens that are 7-inches or smaller, so the new deal would open up NFL games to Verizon customers who primarily consume TV content on smart TVs, tablets, and other large devices.
This tells us a number of things. First, it tells us that Verizon is betting relatively small phones aren't the only devices that NFL fans want to watch NFL games on. With the explosion of Smart TVs and mobile tablets with 4G connections, fans have never been more ready to stream an NFL game from so many places, whether it's on the go in transit or in front of a computer screen or tablet at home. Likewise, these deal terms tell us that the NFL too sees value in expanding streaming generally (more on that in a minute). No longer attempting to limit this deal specifically to smartphones, the NFL is knocking over the dam keeping streaming at bay. This, in case it wasn't obvious, should be shiver-inducing for terrestrial and cable TV networks that used to be the dominant players for sports broadcasts.But what's not in the Verizon deal is what demonstrates just how big an opportunity the NFL sees in streaming.
According to people familiar with the matter, Verizon would also lose exclusive rights to air games on mobile devices as part of the deal. That means that while Verizon customers would have more device options for watching football, it may not be the only one to stream NFL games. Other wireless providers or streaming TV providers, such as Sling TV or DirecTV Now, may be able to strike their own deals with the NFL and provide streamed games to their subscribers through their own apps.
That's a big deal, particularly for a league that has operated with exclusivity deals essentially as a business mantra. Born of the era of network television, the NFL has long maintained these types of close broadcast partnerships, but now that is slipping away when it comes to streaming. And ultimately that's the only move that makes sense, as eyeballs and advertising revenue will be spread far and wide through the NFL's own network, making the real estate for ads on its broadcasts all the more valuable.Streaming keeps expanding in pro sports. It's a great thing for everyone other than cable TV.

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posted at: 12:00am on 23-Nov-2017
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Vulnerability Found In Amazon Key, Again Showing How Dumber Tech Is Often The Smarter Option

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As with most things in the internet of things space, secure, smart door locks have traditionally been frequently shown to be neither. In fact, a recent study that looked at 16 different smart locks found twelve of them to be easily compromised. And again, many of these vulnerabilities were of the vanilla stupid variety, with passwords being transmitted unencrypted, letting anybody with a modicum of technical skill and a Bluetooth sniffer to pluck your front door access code out of thin air. Like most things in the IOT space, companies have been so eager to make a buck they've left common sense standing on the front porch.So when Amazon introduced its new $250 Smart Key system a few weeks back, most people were understandably skeptical. The product promises to securely let Amazon delivery folk unlock your front door and place packages inside, with an accompanying camera that tracks every move the deliveryman makes to ensure personal security. But the idea of Amazon delivery personnel gaining access to your home immediately raised all manner of questions among journalists, ranging from obvious questions of personal security to what happens if Amazon lets fido out by accident:

"Amazon flat-out says that, if your pet has access to the front door, you should not use the service. Dogs don't take kindly to strangers entering the home, and cats may try to bolt through an open door. Then again, Amazon also touts the joy of allowing pet sitters and dog walkers to access your home with the smart lock."
This skepticism is understandable. Amazon already has a live microphone sitting in millions of customer homes worldwide, and the idea of letting Amazon also open your front door at will is a bridge too far for many. As if on cue, reports quickly emerged last week that justified this concerns, highlighting how the Amazon Key camera system could be easily exploited to disable system safeguards. Researchers at Rhino Security Labs demonstrated that by using a simple program within WiFi range, the camera can be not only disabled, but frozen -- presenting the image of a closed door while burglars happily pilfer your possessions.As with many of these vulnerabilities, Rhino Security researchers note that the attack isn't particularly complicated, leaving traces neither in the image recordings or the system logs:
"In their demonstration, shown in the video above, a delivery person unlocks the door with their Amazon Key app, opens the door, drops off a package, and then closes the door behind them. Normally, they'd then lock the door with their app. In this attack, they instead run a program on their laptopor, Rhino's researchers suggest, on a simple handheld device anyone could build using a Raspberry Pi minicomputer and an antennathat sends a series of "deauthorization" commands to the home's Cloud Cam."
Amazon is promising an update that resolves the problem shortly, though the service has -- as countless IOT devices have before it -- already acted as an unintentional advertisement to the fact that dumb technology often remains the smartest option.

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New York Court Says NYPD Must Get Warrants To Deploy Stingrays

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Another court has decided warrants must accompany Stingray use. (via the New York Times) The ruling handed down earlier this month clarifies the distinction between the records obtained and the records requested. In this case, police used a pen register request to deploy their Stingray device. As the court points out, Stingray devices grab a lot more than just phone numbers.

A pen register or trap and trace warrant is authorized under New York's CPL Art. 705.00. According to that Article, a pen register is a device that attaches to a landline phone to identify and record "the numbers dialed or otherwise transmitted" in outgoing and incoming calls." CPL 705.00 (1). In addition, CPL 705.00 (2) defines a trap and trace as a similar device to that of the pen register that identifies the "originating number" for a call. It should be noted, however, that Article 705 does not authorize the gathering of location information using a cell phone's Global Positioning system (GPS), nor does it authorize the gathering of additional information, that might include the content of a phone's calls or text messages by the use of a pen register and/or trap and trace order.[...]Thus, it is improper under New York Law to authorize the obtaining of any information from a suspect's phone other that the phone numbers dialed or otherwise transmitted in outgoing and incoming calls and/or an originating phone number.
As the court notes, the addition of GPS location info changes the matrix for law enforcement paperwork. It's not enough to settle for the lower requirements of a pen register order. Tracking and tracing people involves a higher statutory burden. And that's exactly what this is: to deploy a Stingray, a team of officers must fire one up and roam all over the place until they home in on their target. This is completely distinct from showing up at a telco office asking for dialed digits.Additionally, the court points out that while the information obtained (the phone's location) might ultimately be a third party record accessible with a subpoena, the government can't be the third party collecting the records.
[U]nlike pen register device information or that provided by the CSLI, a cell site simulator device does not involve a third party. "The question of who is recording an individual's information initially is key." See US v Lambis, supra, citing In re US for Historical Cell Site Data, 724 F.3d 600 [5th Circ. 2013] [distinguishing between "whether it is the Government collecting the information or requiring a third party to collect or store it, or whether it is a third party, of its own accord and for its own purposes, recording the information"]. The Lambis court continued: "For both pen register information and CSLI, the Government ultimately obtains the information from the service provider who is keeping a record of the information. With the cell-site simulator, the Government cuts out the middleman and obtains the information directly." US v Lambis, Id.By its very nature, then, the use of a cell site simulator intrudes upon an individual's reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case by the NYPD.
Presumably, the NYPD was less than forthcoming about its Stingray use. In the opening of the opinion, the court points out the location the suspect was tracked to was completely unrelated to any information the NYPD already had in hand when it took its Stingray out for a spin.
Based upon the information gathered from this order for the defendant's cell phone, Detective Brown located and arrested the defendant three days later on April 15, 2016, inside of 1540 Sterling Place, Apartment 3E in Brooklyn, an address not previously identified as of any interest to this investigation.
The decision also notes Stingray use was "conceded" by the prosecution, suggesting it fought this disclosure for as long as it could.This is good news for residents of New York and another small step towards a unified judicial view on Stingray deployments. Better yet, it has probably resulted in audible wailing and gnashing of teeth in the upper levels of the NYPD bureaucracy.

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High Volume with Safety & Profit Vs Whitelisting

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Dan Larden, Global Strategic Partnerships Director, Infectious Media (pictured below), an international programmatic agency, shares his insights on Whiltelisting. With all the recent talk around ad fraud and viewability, it's no surprise that whitelisting has started to enter into many conversations around brand safety. While it seems smart to reduce the risk of misplacement by […]The post High Volume with Safety & Profit Vs Whitelisting appeared first on Adotas.

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Alabama Media Group Isn't Messing Around With Ray Moore's Silly Threat

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Last week, we wrote about the truly ridiculous letter sent by Senate candidate Roy Moore's nutty lawyer, Trenton Garmon, threatening to sue Alabama Media Group for defamation for daring to write about reports of Moore's sketchy behavior towards girls and young women. In that piece, we noted that AMG made it clear it wasn't going to back down, noting that it stood behind its reporting and the threats only made the news organization that much more interested in "doggedly" pursuing the truth. Now, as pointed out on Boing Boing, we see the official response from Alabama Media Group's lawyer, John G. Thompson Jr.Suffice it to say, Thompson doesn't have much time for Garmon's nonsense:

You have (now twice) threatened to sue AMG and AL.com concerning AL.com's recent reporting about Roy Moore, Kayla Moore, and their Foundation for Moral Law. You have accused AL.com of making "false reports and/or careless reporting" about multiple subjects related to your clients. Your letter demands that AL.com retract and recant its prior stories and that it "cease and desist" from any further reporting about your clients.AL.com hereby rejects your demand. AL.com stands by its reporting regarding all of the matters addressed in your letter. AL.com has reported on newsworthy matters of significant public concern regarding your clients. Roy Moore is now, and for decades has been, a public figure. He is now running for a seat in the United States Senate. He is asking people of Alabama to financially support his campaign and his Foundation (headed by Mrs. Moore), and to vote for him. Alabamians -- for that matter, all Americans -- have a right to know about the individuals who wish to represent them in public office. Like every political candidate, Mr. Moore is subject to scrutiny and analysis by the media and the general public regarding his fitness for public office. AL.com's reporting has provided the public with important information directly relevant to that inquiry.You accuse AL.com of defamation in purely conclusory fashion. You have not explained how anything that AL.com reported is untrue, inaccurate, or erroneous, nor do you provide any support for your position. You have also not shown that AL.com reported any of its stories with actual malice, as you know you must because your clients are public figures (a point you have admitted in in recent television interviews). To the contrary, an ever-increasing torrent of accusers and journalist investigators have publicly verified the facts reported by AL.com.
Nice, simple and to the point. While there's no doubt that Moore is a public figure (which requires the higher "actual malice" bar for defamation), it's a nice little jab to point out that Garmon himself admitted that during a TV interview.From there, Thompson points out that any damage to Moore's reputation comes from Moore's actions, not AL.com's accurate reporting:
Your letter goes on to say that AL.com's reporting has harmed Mr. Moore's reputation. Mr. Moore, however, has quite a colorful past that long-preceded any of AL.com's recent coverage of your clients. Moreover, much of the information that you claim harmed Mr. Moore's reputation had already been published by those who know him personally and reported by other media outlets. In other words, any damage to Mr. Moore's reputation was self-inflicted and had already occurred long before AL.com's recent reporting.
And, from there, we get to the "and if you do go through with this, we'll hit back harder than you'd like" part of the letter, in which AMG says that it'll move for Rule 11 sanctions for frivolous filings, and also demand that the Moores' need to preserve any documents for any countersuit effort.
For these and other reasons, we strongly believe that any lawsuit of the type you threaten would be frivolous, and could not be brought in good faith. Should your clients nevertheless decide to pursue this matter further, AL.com will vigorously defend itself, and will employ all available remedies, including a Rule 11 motion if warranted. We are confident that litigation would not only demonstrate that Al.com exercised the utmost diligence and employed high journalistic standards in reporting these stories, but would also reveal other important information about your clients.
That last line is basically "Look, we all know that Moore doesn't want to go through discovery on this..."
We are hereby putting your clients on notice of their duty to preserve and maintain all materials, documents, writings, recordings statements, notes, letters, journals, diaries, calendars, emails, photographs, videos, computers, cell phones, electronic data, and other information that is or could remotely be relevant in any manner to any of the claims that you have made. These include, but are not limited to, all materials and information related to Mr. Moore's history of romantic relationships or physical encounters (whether consensual or not); your clients' fundraising, compensation, and finances; and Mr. Moore's speaking engagements, travel arrangements, and other expenses. As you know, failure to preserve any such materials may expose your clients to sanctions.
Reading this letter, you almost get the sense that Alabama Media Group would quite enjoy getting sued by Moore...

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4 Ways to Boost Your Campaigns With Blockchain

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Blockchain. If you haven't heard about it yet, you will. It's the ingenious technology underlying the success of bitcoin and other cryptocurrencies. Not only that, but it's now poised to be a game changer for industries across the spectrum. Internet advertising stands to gain massively from blockchain protocols in a future that benefits publishers, users, […]The post 4 Ways to Boost Your Campaigns With Blockchain appeared first on Adotas.

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Q3 2017 U.S. TV & Video Market At-A-Glancefrom Videology

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Videology released their Q3 2017 U.S. TV & Video Market At-A-Glancereport. Advanced LinearTVand ConnectedTVoffer advertisersawealth of opportunities for increased targeting and more accurate measurement, said Mark McKee, EVP, Marketing&Sales, North America, Videology (pictured left). It's no surprise that we're continuing to see these channels grow in our platform, and we don't expect them to slow […]The post Q3 2017 U.S. TV & Video Market At-A-Glancefrom Videology appeared first on Adotas.

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Drone-Maker DJI Offers Bug Bounty Program, Then Threatens Bug-Finder With The CFAA

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Far too many companies and industries out there seem to think that the best way to handle a security researcher finding security holes in their tech and websites is to immediately begin issuing threats. This is almost always monumentally dumb for any number of reasons, ranging from the work these researchers do actually being a benefit to these companies issuing the threats, to the resulting coverage of the threats making the vulnerabilities more widely known than they would have been otherwise.But drone-maker DJI gets special marks for attacking security researchers, having decided to turn on one that was working within the bug-bounty program it had set up.

DJI, the Chinese company that manufactures the popular Phantom brand of consumer quadcopter drones, was informed in September that developers had left the private keys for both the "wildcard" certificate for all the company's Web domains and the keys to cloud storage accounts on Amazon Web Services exposed publicly in code posted to GitHub. Using the data, researcher Kevin Finisterre was able to access flight log data and images uploaded by DJI customers, including photos of government IDs, drivers licenses, and passports. Some of the data included flight logs from accounts associated with government and military domains.Finisterre found the security error after beginning to probe DJI's systems under DJI's bug bounty program, which was announced in August. But as Finisterre worked to document the bug with the company, he got increasing pushback—including a threat of charges under the Computer Fraud and Abuse Act (CFAA). DJI refused to offer any protection against legal action in the company's "final offer" for the data. So Finisterre dropped out of the program and published his findings publicly yesterday, along with a narrative entitled, "Why I walked away from $30,000 of DJI bounty money."
Finisterre helpfully documented his interactions with several DJI employees, all of which paint a pretty clear picture of a company that encouraged his work in finding exposed data and insecure public-facing websites. So appreciative was DJI, in fact, that Finisterre won the top prize for its bug-bounty program: $30,000. That prize came for Finisterre's discovery that DJI's SSL certificates and firmware encryption keys had been exposed via GitHub for years. After receiving written confirmation from DJI that its servers were within the scope of the bounty program, Finisterre submitted his disclosure report.That's when things got weird.
When Finisterre submitted his full report on the exposure to the bug bounty program, he received an e-mail from DJI's Brendan Schulman that said the company's servers were suddenly not in scope for the bounty program. Still, Finisterre received notification from DJI's bug bounty program e-mail account on September 28 that his report earned the top reward for the program—$30,000 in cash. Then, Finisterre heard nothing for nearly a month.Ultimately, Finisterre received an e-mail containing an agreement contract that he said "did not offer researchers any sort of protection. For me personally, the wording put my right to work at risk, and posed a direct conflict of interest to many things including my freedom of speech." It seemed clear to Finisterre that "the entire ‘Bug Bounty’ program was rushed based on this alone," he wrote.
He goes on to note that he had several lawyers look over the contract, all of whom balked at the language it contained. Hiring any of them to work the contract to the point that it was something he would sign would cost several thousand dollars, reducing the bounty reward to the point that it wasn't really worth collecting. On top of all that, the language in the contract offered nothing in the way of protection from the CFAA, which is frankly insane for a bug bounty program. The whole point is to research vulnerabilities. Jail time is not supposed to be a risk in that sort of work.When Finisterre decided to refuse the bounty and go public instead, DJI suddenly began calling him a "hacker" and acted as though it barely had any idea who he was, despite having interacted with him over hundreds of emails.
DJI is investigating the reported unauthorized access of one of DJI’s servers containing personal information submitted by our users. As part of its commitment to customers’ data security, DJI engaged an independent cyber security firm to investigate this report and the impact of any unauthorized access to that data. Today, a hacker who obtained some of this data posted online his confidential communications with DJI employees about his attempts to claim a “bug bounty” from the DJI Security Response Center.DJI implemented its Security Response Center to encourage independent security researchers to responsibly report potential vulnerabilities. DJI asks researchers to follow standard terms for bug bounty programs, which are designed to protect confidential data and allow time for analysis and resolution of a vulnerability before it is publicly disclosed. The hacker in question refused to agree to these terms, despite DJI’s continued attempts to negotiate with him, and threatened DJI if his terms were not met.
DJI has also shuttered the bug bounty program, with emails to it resulting in bouncebacks informing the reader that while they can still submit bug reports, the bounties are no longer available.And so here we are. DJI offered a bug bounty program that one researcher responded to with a report about some serious vulnerabilities, including the disclosure of DJI customer information. Instead of being grateful for that information and correcting it, DJI instead decided to go the strongarm route, resulting in the public now knowing just how bad at security DJI is. Way to go?

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Top German Judges Slam EU Plans To Create Global Court To Enforce Corporate Sovereignty

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A few weeks ago, we wrote how many -- even the US Trade Representative, Robert Lighthizer -- seem to think it's time for corporate sovereignty, also called "investor-state dispute settlement" (ISDS), to go. For some reason the European Commission disagrees. As Techdirt readers may recall, after receiving a bloody nose in a public consultation about corporate sovereignty, the Commission announced to great fanfare that it was "replacing" ISDS with something called the Investment Court System (ICS). In fact, this amounted to little more than putting lipstick on the ISDS pig, since ICS suffered from the same fundamental flaw: it gave companies unique rights to sue countries in a supra-national court. The EU is still plugging away at the ICS idea, and it now wants to go further by creating a truly global corporate sovereignty system enforced by a new Multilateral Investment Court (pdf), an initiative formally launched a couple of months ago:

the [EU's] approach since 2015 has been to institutionalise the system for the resolution of investment disputes in EU trade and investment agreements through the inclusion of the Investment Court System (ICS). However, due to its bilateral nature, the ICS cannot fully address all the aforementioned problems. Moreover, the inclusion of ICSs in [EU] agreements has costs in terms of administrative complexity and budgetary impact.The multilateral investment court initiative aims at setting up a framework for the resolution of international investment disputes that is permanent, independent and legitimate; predictable in delivering consistent case-law; allowing for an appeal of decisions; cost-effective; transparent and efficient proceedings and allowing for third party interventions (including for example interested environmental or labour organisations).
When the ICS was first proposed, the German Association of Judges, which Wikipedia describes as "the largest professional organization of judges and public prosecutors in Germany", ripped it to shreds. The same august body has just meted out similar treatment to the Multilateral Investment Court, and has asked the German government "to deny the European Commission the required mandate to negotiate the establishment of a Multinational Investment Court (MIC)."The document, originally in German, and available in an unofficial translation by EuroMinds Linguistics (pdf), contains a devastating analysis of the MIC and its flaws. For example, it points out that international investment protection law is characterized by a "lack of substantive lawprinciples". That is, there are no global investment laws that the MIC could apply when deciding cases. The MIC would effectively be making it up as it went along. The German Association of Judges points out why the situation would be even worse for the MIC than for the ICS or ISDS tribunals:
Because of [the arbitration courts'] position, they can override decisions of national administrations and courts in favour of an investor. This exercise of power, exercised by an arbitral tribunal, has thus far been limited to the enforcement of individual arbitral awards. However, it would be considerably strengthened if the arbitral tribunals were upgraded to an MIC with permanent jurisdiction, which would operate under an international convention. Together with the investment protection agreements, as part of European law, the MIC Convention will be recognised by international law and can thus bind national courts. This will make the MIC a standard-setting organization.
In other words, the MIC would be able to create what amount to global laws, without any democratic input or scrutiny. The document also explains -- as many have before -- why special investor courts are unnecessary:
The protection of individual goods, including those of investors, is the daily work of the judges of all judicial courts and instances. In principle, these rights can also be claimed by foreign investors....the best investor protection is a functioning, uncorrupted administration and jurisdiction and a democratic legislative process. It is the task of every investor to determine this; they can avoid investments in countries that do not fulfil these standards. If they, nonetheless, take the risk, no special protection is necessary.
Obvious really.Recognizing that the German government and European Commission will probably try to go ahead with the MIC initiative anyway, the German Association of Judges makes a number of sensible suggestions for improving the idea, and limiting the possible damage. However, the real solution would be for the EU to join other, wiser nations and abolish the system completely.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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This Week In Techdirt History: November 12th - 18th

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Five Years AgoWe've been talking a lot about copyright in these history posts recently, but this week in 2012 there was more news on the patent front. While patent troll TQP Development was launching a new crusade against hundreds of companies, the patent-aggressive medical device company Medtronic was getting a taste of its own medicine, and HTC and Apple were putting a patent dispute to rest. IBM's patent lawyer was making some vague arguments in defense of the patent system, while an excellet Wired article was laying out said system's many problems, and a Harvard research scientist was declaring sharing discoveries to be more efficient and honorable than patenting them.Ten Years AgoThere was plenty of patent news this week in 2007 too, with a random patent over computer databases rearing its head to extract some cash from Google, and an astounding new case over a text messaging patent targeting 131 defendants. Patent hoarder Acacia was launching some new attacks while losing at least one lawsuit, and Nathan Myhrvold was raising $1-billion to buy even more patents to troll people with. Garmin and TomTom settled a patent dispute to concentrate on acquisition fights, an analyst firm succeeded in escaping an aggressive patent lawsuit over data collection, and we took a closer look at the sovereign immunity laws that were letting State Universities sue over patents without ever getting sued back.Fifteen Years AgoThis week in 2002, Hollywood was launching its too-little-too-late VOD service Movielink, while music labels were struggling to catch up with digital distribution after dragging their heels for far too long (with EMI taking an extremely slight lead). While the legal battle over DVD copying software remained unresolved, the software was released anyway, right around the same time that Sony and Phillips teamed up to buy a DRM company.But probably our most interesting headline in retrospect was US Plans Huge Computer System To Spy On The Public. This, in 2002, referred to the first reports on DARPA's new Information Awareness Office, which was so controversial that Congress would de-fund it the following year. It would be another ten years before the Snowden leaks revealed that its key surveillance programs had simply been renamed and moved to different agencies, and continued to receive funding under classified annexes.

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posted at: 12:00am on 19-Nov-2017
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Good Ruling: Court Affirms Fox's Victory In Trademark Suit From Empire Distribution Over Its Hit Show 'Empire'

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In far too many trademark disputes, including those that actually reach the courthouse, there is far too little in the way of nuance when it comes to ruling. While I've long complained about a lack of focus on some of the higher-level concepts within trademark law, such as how the overall focus should be on public confusion and the simple fact that the category designations within the USPTO are far too broad, there is typically not enough recognition in the real minutia within the law as well.But that simply isn't the case in a ruling from the 9th Circuit Court of Appeals on a lawsuit filed by Fox Television for declaratory relief from threats issued by Empire Distribution, Inc., a record label, over trademark concerns and Fox's hit show Empire.Some background is in order. Empire, for those of you who don't know, is a show about a family-run record label in New York City called Empire Enterprises. Empire Distribution is a real-life label that has worked with names as big as T.I. and Snoop Dogg. At some point, Empire Distribution sent trademark threat notices to Fox, claiming that the name of the show was a trademark violation. In response, Fox filed for declaratory relief, which the district court granted. Empire Distribution appealed, resulting in the 9th Circuit Court of Appeals reviewing the decision and affirming it.But it's why the ruling was affirmed that is the star of this legal show, with the detailed court opinion laying out the nuance of the law.

On Thursday, the 9th Circuit reviewed the district court's summary judgment decision, and in affirming Fox's victory, decided to apply the Rogers test, which was first developed by a sister appellate circuit in 1989 in response to Federico Fellini's 1986 film Ginger and Fred, which triggered a lawsuit by Ginger Rogers.
The Rogers test, as it's called, resulted from that case and says that the title of a work is not infringing on trademark except if the title has no artistic relevance to the overall work or if it explicitly misleads the public as to the source of the work. For example, if someone were to create a television show called Michael Jordan's Cooking Hour, the public would think that the former Bulls star was involved with it. If he wasn't, the title of the show would infringe on any trademarks he might have for television shows (along with a host of other infringements, likely). But Empire, the Fox show, gets its name from the fictitious company it portrays, along with its setting in New York City, giving the title artistic relevance. It also does nothing to attempt to mislead the public into thinking that there is any involvement or reference to Empire Distribution. Therefore, Empire passes the Rogers test.Empire Distribution argued that part of the artistic relevance portion of the Rogers test includes a requirement for the new work to reference the older entity to be considered artistically relevant and protected. The court basically slaps that idea down and suggests that Empire Distribution's legal team doesn't understand the Rogers test at all.
This is how a work fails the first prong of the Rogers test: by bearing a title which has no artistic relevance to the work. A title may have artistic relevance by linking the work to another mark, as with 'Barbie Girl,' or it may have artistic relevance by supporting the themes and geographic setting of the work, as with Empire. Reference to another work may be a component of artistic relevance, but it is not a prerequisite. Accordingly, the relevance of the word 'empire' to Fox’s expressive work is sufficient to satisfy the first prong of the Rogers test.
The court goes on to say that Empire passes the Rogers test on the second prong as neither the show nor its title makes any claims or references to Empire Distribution, and is therefore doing nothing that is "explicitly misleading."For us trademark nerds, it's a great ruling with a wonderful explanation of some nuance in trademark law and precedent. For Empire Distribution, who never should have made such silly threats, it's simply a judicial beatdown.

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Judge Halts Copyright Troll's Lawsuit Against A Now-Deceased Elderly Man With Dementia And An IP Address

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Stories about copyright trolls issuing questionable settlement demands and lawsuits using laughably flimsy evidence with no regard to mitigating circumstances are somewhat common around here. The most egregious cases range from trolls sending threat letters to the elderly to flat out suing the innocent. This sort of thing is essentially inherent in a business model that closely apes an extortion ring, and here's another quintessential example of that.It all started when Venice PI sued a man for being part of a torrent swarm offering the movie Once Upon a Time in Venice. The judge in the case has put the proceedings on hold, noting rather harshly that Venice PI's evidence sucks, and that the man in question had severe enough dementia that his family says he couldn't even have operated a computer as described in the lawsuit and, at age 91, has died.

The man’s wife informed a federal court in Seattle that he passed away recently, at the respectable age of 91. While age doesn’t prove innocence, the widow also mentioned that her husband suffered from dementia and was both mentally and physically incapable of operating a computer at the time of the alleged offense.These circumstances raised doubt with US District Court Judge Thomas Zilly, who brought them up in a recent order (citations omitted).“In two different cases, plaintiff sued the same, now deceased, defendant, namely Wilbur Miller. Mr. Miller’s widow submitted a declaration indicating that, for about five years prior to his death at the age of 91, Mr. Miller suffered from dementia and was both mentally and physically incapable of operating a computer."
Oops. Still, the condition of the copyright troll's victim wasn't the topic which received Judy Zilly's harshest criticism. That distinction goes to the quality and quantity of evidence Venice PI produced in its lawsuit. The Judge notes that this evidence amounts essentially to nothing more than an IP address. He then goes on to suggest that any tracking of IP addresses that pointed to Mr. Miller being a torrent-y type of guy should have its accuracy immediately questioned. Beyond that, the judge indicated that Venice PI can't use that IP address to try to find, you know, actual evidence.
Moreover, plaintiff may not, based solely on IP addresses, launch a fishing expedition aimed at coercing individuals into either admitting to copyright infringement or pointing a finger at family members, friends, tenants, or neighbors.
To that end, lawyers for Venice PI are barred from having any contact with Miller's family or any other unnamed defendant in this case. In addition, Zilly is demanding any other evidence the plaintiff's can produce -- likely none --, as well as information on how IP addresses in bittorrent swarms might be spoofed. The judge goes on to say that if no further evidence can be presented, the claims will be dismissed with prejudice.It's simply great to see a court get this so correct in a copyright troll case. Too often trolls are allowed to skate by in presenting evidence that isn't evidence at all, with no ground given to the sort of mitigating testimony offered by Miller's widow. That Venice IP hasn't dismissed their case against the now-deceased man is an added stain on its trollish soul.

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posted at: 12:00am on 18-Nov-2017
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New Study Finds Poorly Secured Smart Toys Lets Attackers Listen In On Your Kids

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We've long noted how the painful lack of security and privacy standards in the internet of (broken) things is also very well-represented in the world of connected toys. Like IOT vendors, toymakers were so eager to make money, they left even basic privacy and security standards stranded in the rear view mirror as they rush to connect everything to the internet. As a result, we've seen repeated instances where your kids' conversations and interests are being hoovered up without consent, with the data frequently left unencrypted and openly accessible in the cloud.With Luddites everywhere failing to realize that modern Barbie needs a better firewall, this is increasingly becoming a bigger problem. The latest case in point: new research by Which? and the German consumer group Stiftung Warentest found yet more flaws in Bluetooth and wifi-enabled toys that allow a total stranger to listen in on or chat up your toddler:

"The investigation found that four out of seven of the tested toys could be used to communicate with the children playing with them. Security failures were discovered in the Furby Connect, i-Que Intelligent Robot, Toy-Fi Teddy and CloudPets.With each of these toys, the Bluetooth connection had not been secured, meaning the researcher did not need a password, pin or any other authentication to gain access. Little technical knowhow was needed to hack into the toys to start sharing messages with a child.
Again, the problem isn't just bad security, it's the total lack of security:
"With the i-Que Intelligent Robot, available from Argos and Hamleys, the investigation discovered that anyone could download the app, find an i-Que within their Bluetooth range and start using the robot's voice by typing into a text field. The toy is made by Genesis, which also manufactures the My Friend Cayla doll, recently banned in Germany owing to security and hacking concerns. Both toys are distributed in the UK by Vivid."
Genesis was already facing a lawsuit here in the States accusing it of violating COPPA (the Childrens' Online Privacy Protection Act of 1998) by failing to adequately inform parents' that their kids conversations and personal data collected by the toys are being shipped off to servers and third-party companies. Said lawsuit also points out how the privacy policies governing the collection of kids' data aren't clear, aren't prominently displayed, and often change without notice. Overseas the reaction has been notably more hysterical, with German regulators urging parents to destroy these not-so-smart dolls or pay massive fines.As is usually the case, the companies responsible for this total privacy and security failure like to portray these flaws as limited in scope and unlikely to be exploited:
"The British Toy and Hobby Association, of which Vivid and Hasbro are members, said: The industry takes its responsibilities incredibly seriously when making products for children, with BTHA members investing heavily in everything from toy safety to data privacy and online security."We are aware of the Which? report, but understand the circumstances in which these investigations have taken place rely on a perfect set of circumstances and manipulation of the toys and the software that make the outcome highly unlikely in reality."
Again though, this is often not just vulnerabilities we're talking about, but no security or privacy standards whatsoever. The idea that this isn't being exploited, however infrequent, seems unlikely -- especially as the media highlights more and more similar flaws. And again, with the internet of broken things introducing millions of new attack vectors into homes and businesses worldwide every day, the impact from this sort of privacy and security apathy will be cumulative.

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FBI Acts Like It's Still 1960 With Its Report On 'Black Identity Extremists'

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We already knew Jeff Sessions was a throwback. The new head of the DOJ rolled back civil rights investigations by the agency while calling for harsher penalties and longer jail terms for drug-related crimes, while re-opening the door for asset forfeiture abuse with his rollback of Obama-era policy changes.But it's more than just the new old-school DOJ. The FBI is just as regressive. Under its new DOJ leadership, the FBI (inadvertently) published some speculative Blue Lives Matter fanfic [PDF] -- an "Intelligence Assessment" entitled "Black Identity Extremists Likely Motivated to Target Police Officers."There's no hedging in the title, despite what the word "likely" usually insinuates. According to the FBI, this means there's an 80-95% chance it believes its own spin.Here's the opening sentence:

The FBI assesses it is very likely Black Identity Extremist (BIE) perceptions of police brutality against African Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence.
And here's what the term "very likely" means when the FBI uses it:
Beyond that, the FBI says this:
The FBI has high confidence in these assessments…
And here's how the FBI defines "high confidence."
High confidence generally indicates the FBI’s judgments are based on high quality information from multiple sources. High confidence in a judgment does not imply the assessment is a fact or a certainty; such judgments might be wrong. While additional reporting and information sources may change analytical judgments, such changes are most likely to be refinements and not substantial in nature.
What's in this open-and-shut report? What key elements lead the FBI to believe "BIEs" will be killing cops in the future? Well, it appears to be nothing more than a recounting of recent cop killings, coupled with anecdotal evidence, like the expression of anti-white sentiment in social media posts. Beyond that, there's little connecting those who have killed cops with the ethereal FBI BIE ideal. There's certainly no organization behind the killings -- only a few common factors. And those factors -- if the FBI is allowed to continue to treat "BIE" as a threat to police officers -- will do little to discourage violence against police officers.What it will do is allow law enforcement to engage in racial profiling and to overreact to social media rants by angry black men. And it will allow the FBI to turn into the same FBI that targeted Martin Luther King Jr. and other civil rights activists during the 1960s. In fact, it almost acknowledges as much in the report.
BIEs have historically justified and perpetrated violence against law enforcement, which they perceived as representative of the institutionalized oppression of African Americans, but had not targeted law enforcement with premeditated violence for the nearly two decades leading up to the lethal incidents observed beginning in 2014. BIE violence peaked in the 1960s and 1970s in response to changing socioeconomic attitudes and treatment of blacks during the Civil Rights Movement.
The composers of this report may have a lot of confidence in their assumptions, but no one else seems to.
Daryl Johnson, a former Department of Homeland Security intelligence agent, when asked by Foreign Policy in October why the F.B.I. would create the term “B.I.E.,” said, “I have no idea” and “I’m at a loss.” Michael German, a former F.B.I. agent and fellow with the Brennan Center for Justice’s liberty and national security program, said the “Black Identity Extremists” label simply represents an F.B.I. effort to define a movement where none exists. “Basically, it’s black people who scare them,” he said.“Could you name an African-American organization that has committed violence against police officers?” Representative Karen Bass asked Attorney General Jeff Sessions at Tuesday’s hearing. “Can you name one today that has targeted police officers in a violent manner?” It’s no surprise that he could not. Mr. Sessions, who confessed that he had not read the report, said he would need to “confirm” and would reply in writing at a later time. The F.B.I. itself admits in the report, that, even by its own definition, “B.I.E. violence has been rare over the past 20 years.”
If the report is acted on, it will be the 1960s all over again.
Although it’s unclear what actions the F.B.I. will take as a result of the report, the conclusions pave the way for it to gather data on, monitor and deploy informants to keep tabs on individuals and groups it believes to be B.I.E.s. This could chill and criminalize a wide array of nonviolent activism in ways that have terrifying echoes its infamous Cointelpro program, which investigated and intimidated black civil rights groups and leaders, including Marcus Garvey and the Rev. Dr. Martin Luther King Jr. Under this program, F.B.I. agents concocted a false internal narrative connecting Dr. King to foreign enemies, allowing agents to justify threatening to publicize his private life and encouraging him to commit suicide. This is a reminder that while the “Black Identity Extremist” designation is new, the strategy of using a vague definition to justify broad law enforcement action is not.
This is what the report looks like from the outside. It's unclear if those inside the agency feel the same way. The leaked report confirms many people's suspicions about law enforcement agencies: they view minorities as threats and will concoct narratives to support these views. There's no evidence any sort of BIE organization exists, much less the existence of a concerted effort to inflict violence on police officers. But this report is a gift to every police officer and FBI agent who really wants to believe African Americans are out to get them. Given the administration's unqualified support for law enforcement, coupled with the Commander in Chief's off-the-cuff encouragement of violence, this report is basically an invitation to start policing like it's 1960, rather than 2017.

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Professor Says Threats Of Retaliation By China Stopped Publication Of His Book Revealing Chinese Influence In Australia

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We've just written about how the Chinese government wanted to censor articles published by two academic publishers, Cambridge University Press (CUP) and Springer. After an initial wobble, CUP ultimately refused, while Springer by contrast decided to kowtow to the authorities. Those incidents concerned the publication in China of articles the Chinese didn't like. Now it seems the latter are extending their campaign against inconvenient facts to other countries, in this case Australia:

Prominent Charles Sturt University academic Clive Hamilton said Allen & Unwin was ready to publish his manuscript Silent Invasion, but last week informed him it could no longer proceed because it was worried about defamation action."Allen & Unwin said that they were worried about retaliation from Beijing through a number of possible avenues including legal threats, orchestrated by Beijing, and they decided it was too big a risk and so therefore pulled the plug and returned the rights to me," Professor Hamilton said.
As the article on ABC News explains, "Silent Invasion" is about the Chinese Communist Party's activities and growing influence in Australia -- obviously a highly sensitive topic for China. In an email to the company, obtained by ABC News, Professor Hamilton's former publishers, Allen & Unwin, wrote about what it saw as "potential threats" if it published his book:
The most serious of these threats was the very high chance of a vexatious defamation action against Allen & Unwin, and possibly against you personally as well.
It's a little hard to see how an entire nation might sue successfully for defamation, but that's not the point. Once again, the mere threat of litigation was enough to cause someone -- in this case a publisher -- to self-censor. Interestingly, the ABC News article notes that the Australian government is expected to unveil soon new legislation to counter foreign interference in the country, which suggests that it is becoming a serious problem. We can expect more such attempts to censor overseas sources of information it doesn't like from the increasingly self-confident and intransigent China.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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City Of Portland Still Jerking Around Local Businesses Over Trademark Of Famous City Sign

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The last time we checked in with the city of Portland, it was attempting to navigate some perilous waters regarding a trademark the city has on a famous city sign. Beer-maker Pabst, which I am to understand somehow won a blue ribbon a long time ago, built a logo for a concert series it wanted to promote in Portland that served as an homage to the famous sign, which includes an outline of the state and a stag leaping across the top of it. Because of this, the city saw fit to send a cease and desist notice to Pabst, despite beer not generally being a competitor for a city's tourism business. When everyone pointed this out to the city, it decided to not pursue any legal action. But the city continued to threaten local businesses with its trademark, including Vintage Roadside, which sells a "Made In Portland" series of photos on Etsy, some of which included the famous sign. Vintage Roadside decided to sue the city to have the trademark declared invalid, prompting Portland officials to issue a covenant not to sue to avoid any ruling on the matter.You might have thought that this series of slapdowns would have deterred Portland officials from this bullying course of action, but you'd be wrong. Portland attempted to expand the trademark it has for the sign into the alcohol designation, thinking that it could license the image to beermakers and make some coin. Unfortunately for the city, a local brewery already has a trademark for the sign for the beer business.

Adam Milne's brewpub is fighting City Hall. And as of today, Milne is winning. The white sign hanging above the front door of Old Town Brewing's taproom on Northeast Martin Luther King Jr. Boulevard features the silhouette of a leaping buck. Behind the bar, a herd of white stags bound across eight wooden beer tap handles. The glasses, the coasters, and every bottle of Pilsner brewed in-house are festooned with the jumping deer—the same one that glows on the iconic "Portland Oregon" sign.In the fall of 2016, the city attempted to expand its trademark into the territory of beer. This September, a year later, the U.S. Patent and Trademark Office rejected the city's request, citing the similarity to Old Town Brewing's trademark, issued in 2012."Getting the trademark was a very long, challenging process," Milne says. "We've built a brand we're so proud of."
Now, Portland has been clear that it intends to partner with macro-breweries across the nation in a licensing scheme for the sign. It surely must have known that Old Town Brewing, local to the area, had a trademark on the imagery in question, yet it attempted to register the mark anyway. And, after the rebuke from the USPTO, it seems the city is still going to pursue the mark, essentially trying to muscle out a local business to pursue national licensing arrangements.
Bryant Enge, director of the city's Bureau of Internal Business Services, says he's not discouraged by the patent office's rejection of Portland's trademark application. "Initial trademark application rejections are not uncommon," Enge says. "We're confident that the trademark will be approved."
And the city is not even waiting for its preferred outcome before pursuing the very licensing arrangements that were the impetus for all this to begin with.
Curiously, while the federal patent office ruled that Old Town Brewing's claim to the White Stag image is "incontestable," the city continues to negotiate with big brewers over licensing rights. The Pabst deal with the city doesn't bother Milne—a unicorn isn't going to be confused with a stag, he says. But the local beer makers at Old Town Brewing fear the city will try to license the image of the stag to large, corporate alcohol sellers.
That sure reads like a pretty blatant violation of trademark law, with the added spice of it being done by a city government to one of its constituent businesses. Whatever the outcome of the trademark appeal, that's pretty gross.

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Proactive Content Discovery: First Dibs!

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Mobile Posseand Phoenix Marketing International issued research on which mobile usersare most interested in Proactive Content Discovery. Proactive Content Discovery can be described as the automatic opening of relevant content when a phone is unlocked, making it the first screen a user sees. Research Overview:A study of 900 mobile phone users -- conducted by Phoenix […]The post Proactive Content Discovery: First Dibs! appeared first on Adotas.

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Texas National Guard Latest Agency To Be Discovered Operating Flying Cell Tower Spoofers

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More evidence of high-flying surveillance has been uncovered by public records requests. The Texas Observer reports it has obtained documents showing local National Guard units are in possession of airborne IMSI catchers.

The Texas National Guard last year spent more than $373,000 to install controversial cellphone eavesdropping devices in secretive surveillance aircraft.

Maryland-based Digital Receiver Technology Inc., or DRT, installed two of its DRT 1301C “portable receiver systems” in National Guard aircraft in partnership with the Drug Enforcement Administration, according to a contract between the Texas National Guard and the company. The contract states that the dirt boxes, as they’re often called after the company’s acronym, are for “investigative case analytical support” in counternarcotics operations and were purchased using state drug-asset forfeiture money.

These aren't the first DRT boxes to be exposed via public records requests. Law enforcement agencies in Chicago and Los Angeles are also deploying these surveillance devices -- with minimal oversight and no public discussion prior to deployment. The same goes for the US Marshals Service, which has been flying its DRT boxes for a few years now with zero transparency or public oversight.

The same goes for the National Guard in Texas. There doesn't seem to be any supporting documentation suggesting any public consultation in any form before acquisition and deployment. Not only that, but there's nothing in the documents obtained that clarifies what legal authority permits National Guard use of flying cell tower spoofers.

[T]he Texas National Guard is a military force under the governor’s command, not law enforcement. It’s unclear under what legal authorities the State Guard would be operating to conduct electronic eavesdropping. In 2015, the Justice Department issued guidelines for federal law enforcement agencies requiring that a probable cause warrant be obtained from a judge before using such technology. The Texas National Guard refused to explain to the Observer what steps, if any, it takes to secure a warrant prior to deploying the devices, or where the dirt boxes are being used.

No one knows what guidance the National Guard is operating under, much less what it does with all the cell phone data it hoovers up. It's a black hole and the National Guard refuses to discuss it. While it's undoubtedly true some law enforcement methods need to be kept under wraps, this doesn't mean agencies -- especially those like the National Guard which only play a supporting role in some law enforcement activities -- should deploy mass surveillance tools without some public discussion. Concerns definitely need to be addressed when a military agency gets into the domestic law enforcement business.

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Shady Anti-Spyware Developer Loses Lawsuit Against Competitor Who Flagged Its Software As Malicious

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Enigma Software makes Spyhunter, a malware-fighting program with a very questionable reputation. But the company isn't known so much for containing threats as it's known for issuing threats. It sued a review site for having the audacity to suggest its pay-to-clean anti-spyware software wasn't a good fit for most users… or really any users at all.Bleeping Computer found itself served with a defamation lawsuit for making fact-based claims (with links to supporting evidence) about Enigma's dubious product, dubious customer service tactics (like the always-popular "auto-renew"), and dubious lawsuits. Somehow, this dubious lawsuit managed to survive a motion to dismiss. Fortunately, Bleeping Computer was propped up by Malwarebytes' developers, who tossed $5,000 into Bleeping Computer's legal defense fund.The developers of this more highly-regarded anti-malware program soon found themselves facing the litigious wrath of Enigma, which apparently makes enough from its pay-to-clean, auto-renewing, subscription-based Spyhunter program to keeps lawyers busy all the damn time.Enigma decided to sue Malwarebytes for felony interference with a business model, a.k.a., "tortious interference." According to Enigma, it was unfair and retaliatory for Malwarebytes to treat its software as a threat to users and remove it from computers when performing scans.The judge, fortunately, did not agree. Malwarebytes has emerged victorious [PDF] in a lawsuit that began with unfair business practices allegations before somehow morphing into an argument about the limits of Section 230 immunity.Malwarebytes cited a Ninth Circuit Appeals Court decision which dealt with the actions of another anti-malware provider, Kaspersky. In that case, Kaspersky availed itself of Section 230 immunity to dismiss claims made by Zango, an adware pusher. As Malwarebytes points out, the Appeals Court found Kaspersky's blocking of Zango's adware to be immune from Zango's claims of interference, reasoning that the removal of objectionable software is pretty much equivalent to removing objectionable content. Efforts made to police software/content do not strip providers and publishers of immunity.Enigma argued the decision clearly stated the removed material must be "content that the provider or user considers obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable." It claimed its software fell under none of those headings. The district court disagrees:

Enigma overlooks Zango’s clear holding that § 230(c)(2)(B) immunity applies to “a provider of computer services that makes available software that filters or screens material that the user or the provider deems objectionable.”[...]This interpretation of Zango aligns with the plain language of the statute, which likewise states that immunity applies to “material that the provider or user considers to be . . . objectionable.” 47 U.S.C. § 230(c)(2)(A) (emphasis added). In Zango, the provider of the anti-malware software, Kaspersky, exercised its discretion to select the criteria it would use to identify objectionable computer programs. The Ninth Circuit held that malware, as Kaspersky defined it, was properly within the scope of “objectionable” material. In that respect, the Court agrees with Malwarebytes that Zango is factually indistinguishable from the scenario here.
In its final attempt to skirt Section 230 immunity, Enigma attempted to resculpt its arguments into a half-assed Lanham Act complaint. But the court has zero sympathy for Enigma's attempt to drag trademark into this.
Enigma’s argument fails because its complaint does not allege an intellectual property claim. The Lanham Act contains two parts: one governing trademark infringement (15 U.S.C. § 1114) and one governing unfair competition (15 U.S.C. § 1125(a)). The unfair competition provision, in turn, “creates two distinct bases of liability”: one governing false association (15 U.S.C. § 1125(a)(1)(A)) and one governing false advertising (15 U.S.C. § 1125(a)(1)(B)). Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1384 (2014). Enigma’s complaint asserts a false advertising claim under § 1125(a)(1)(B). FAC ¶ 135.Enigma does not assert claims under the trademark provisions of the Lanham Act. The complaint does not allege that Enigma owns trademarks or any other form of intellectual property, nor does it allege that Malwarebytes has committed any form of intellectual property infringement, including misuse of its trademarks. Accordingly, the Court finds that Enigma’s false advertising claim under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), does not arise under a “law pertaining to intellectual property” under 47 U.S.C. § 230(e)(2).
Enigma loses, Malwarebytes wins, and status remains quo until the inevitable appeal. Enigma seems to believe it can sue its way into respectability -- somehow failing to realize every lawsuit against competitors and critics moves it several steps in the opposite direction.

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Dumb Smart Phones

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When Apple first announced that a virtual personal assistant called Siri was going to live in every single one of their phones, it felt like the future was almost here. At long last, smart phones would actually become smart: Instead of having to physically unlock our phones and tap out emails on uncomfortably tiny keyboards, […]The post Dumb Smart Phones appeared first on Adotas.

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Rozcomnadzor's Corruption Scandal Doesn't Prevent The Russian Government From Empowering It To Ignore Due Process

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Reading our coverage of Rozcomnadzor, the Russian government agency tasked with keeping the internet clean of piracy, you would know that the agency has a laughably bad track record for pretty much everything. Even as ranking members of the agency have been embroiled in a corruption scandal in which they bilked Russian taxpayers by creating fake employees, the statistics out on Rozcomnadzor's ability to carry out its stated mission -- blocking sites used for piracy on the internet -- are horrendous. Put simply, the agency has managed to take down 4,000 "pirate" sites through legal cluster bombs that have inflicted 41,000 sites worth of collateral damage. Any honest look at those kinds of numbers would lead a sincere government to seriously consider whether such an agency was worthy of existence at all.The Russian government, on the other hand, has decided to expand Rozcomnadzor's powers by essentially nixing anything that would even remotely look like due process. The new proposal being considered by the Russian Ministry of Culture is severe, to say the least.

A new amendment that that was published by the Ministry of Culture proposes to allow for near-instant pirate site blockades to protect the local movie industry, Vedomosti reports.At the moment, website owners are given three days to remove infringing content before any action is taken. Under the new proposal, site blockades would be implemented less than 24 hours after Rozcomnadzor is alerted. Website owners will not get the chance to remove the infringing content and a court order isn't required either.
If this looks like a change almost perfectly designed for even more collateral damage and practically begging to be abused, then you're looking at this in exactly the right way. The collateral damage, already severe, will be worsened by the supercharged speed of the takedown process and the omission of any site's ability to address the court's concerns prior to having its site censored. It's almost as if removing infringing material from websites isn't the actual goal of this agency at all. Instead, quick censorship based on accusations without judicial oversight is the order of the day, and it is inevitable that the government and adverse commercial entities will wield this weapon with abandon.Keep in mind that Rozcomnadzor has already proven itself unreliable on matters of public servitude. The Russian government itself, of course, has little interest in free speech rights for its citizens and has built a reputation for itself as perfectly willing to pretzel Russian law to silence dissenting opinions. Everyone should be immediately suspicious of the Russian government handing itself so much power to censor outside of the Russian's courts purview.There are some making much noise about the law's requirement that sites be infringing on Russian films.
The new blocking plans go further than any of the previous legislation, but they will only apply to movies that have “a national film certificate” from Russian authorities, as HWR points out. This doesn’t cover any Hollywood movies, which typically top the local box office.
Except this focus on Russian films hasn't kept those tens of thousands of sites caught up as collateral damage out of the censorship blast, has it? This new law under consideration is dangerous to anyone that cares about free speech, particularly in a region already besieged by efforts to limit that speech.

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Investigation Shows Chicago PD Has Zero Interest In Holding Its Officers Accountable

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Why Chicago's Police Force Is A Godawful Train Wreck, Part 192: A Staggering Lack of Accountability.

Even after a Chicago Tribune investigation in March revealed faults with the disciplinary system that had caused officials to lose cases — and after they pledged to track down and finalize those cases — some punishments remain pending.ProPublica Illinois and the Tribune, collaborating on this story, discovered Levigne's case as reporters tried to determine whether police officials had followed through on their promise.The previous story detailed how pending punishments for at least 14 officers had been forgotten, and pointed out there likely were more. Police officials have required many of those officers, as well as about a dozen others, to serve punishments — years late — during the past few months, the Tribune and ProPublica Illinois confirmed.But officials continued to let other old cases stall as they failed to make sense of their own disjointed — and sometimes incorrect — records.
That's just the latest in a long line of travesties committed by the Chicago PD. This follows other such lowlights as the PD operating its own Constitution-free "black site" inside the city, where criminal suspects were taken, detained, and interrogated with zero regard for their civil liberties. When Chicago police officers aren't shooting people and lying about it, they're participating in god knows what other sorts of misconduct after tampering with their recording devices.The reason it's taken so long for anything to be done about this is a lack of accountability. Those up top feel no compunction to punish officers for misdeeds, often only following through when forced to by public outcry. When it does finally occur, it's years after the fact and often reduced to wrist slap.The case cited above in the Chicago Tribune report involves Chicago PD officer Brandon Levigne. Levigne pulled a gun on a motorist for supposedly cutting him off in traffic. Levigne was not in uniform. The driver, Brandon Whitehead, called 911, thinking he was being carjacked. Whitehead reported this incident to the Chicago PD. This report was filed in 2006.
Police officials concluded that Levigne had mistreated the Whiteheads, used profanity and lied about it, and they recommended that he be suspended for 60 days. But they didn't follow through, and the officer didn't serve a reduced suspension until just this month, after reporters repeatedly questioned the delay.
It took eleven years for the officer to be punished. And it was a lighter punishment than police officials originally recommended. In the intervening years, Levigne -- who the department had ruled had engaged in misconduct years ago -- was promoted to detective.The system used to track officer misconduct is archaic and needlessly convoluted -- so much so the system's inability to provide anything resembling accountability appears to be deliberate.
Emanuel fired police Superintendent Garry McCarthy, appointed a task force to propose reforms and revamped the former police oversight agency, the Independent Police Review Authority, or IPRA.A replacement agency, the Civilian Office of Police Accountability, began work Sept. 15.But COPA must work within the same labyrinthine disciplinary system that has contributed to a lack of accountability. Records are kept on paper and shuffled between the oversight agency and the Police Department.There is no management system in place to track cases, and they fall through the cracks.
And again, the only reason the CPD is moving forward with long-delayed punishments is due to outside pressure. External investigations by ProPublica and the Chicago Times have resulted in more cases being completed than years of internal management by the department. The new independent oversight board faces the same challenges: a culture deeply uninterested in punishing misconduct and a tracking system so broken it makes a mockery of the phrase "paper trail." One serious complaint finally resulted in a (laughable) punishment more than a half-decade after the fact.
A police spokesman said Stacker served his one-day suspension in April, six years after the warrantless entry. Stacker is currently stripped of police powers and on desk duty in connection with another case, a police spokesman said.
In this case, Officer Stacker announced he would file a grievance after an internal investigation found he had violated citizens' Fourth Amendment rights. But that's all Stacker did. The grievance was never filed and the case slipped into the undertow of the CPD's complaint tracking system, only resurfacing years later with the assistance of outside scrutiny.The IRPA's help is appreciated but it too has problems following through with investigations and recommendations. Accused officers deliberately screw with the system by promising to challenge rulings or appeal decisions. These moves are never made and the complaints sit in limbo awaiting officers' next moves. When punishments are finally handed down years after the fact, they're often far less than was recommended or agreed to. The appeals that officers never got around to filing are somehow treated as being filed in absentia. And even the reduced punishments are never served.
Officer Jorge Martinez Jr. was accused of drunkenly challenging and taunting a security guard and officers from a Texas police department while attending a wedding reception in Dallas in 2007. He was charged with misdemeanor assault in Texas, but the case was dismissed.IPRA recommended a 60-day suspension in 2011, but Martinez settled with the city for five days in 2015.IPRA had no record of getting the settlement agreement that reduced the punishment, so years passed and Martinez never served the suspension. In May, however, a CPD sergeant in the Bureau of Internal Affairs alerted IPRA and Police Department officials that Martinez's disciplinary case was listed as active when it should have been closed long ago, emails show.Still, nothing happened.
The Chicago PD is an accountability black hole. Plenty of paperwork goes in, but it's never seen again. The CPD won't make any sort of effort, despite handling many of these investigations in house. The independent review board suffers from its outsider status and its relative powerlessness to ensure closed investigations result in the meting out of discipline. There's no reason for the CPD to change. It's gotten along for years with a minimum of scrutiny and its officers have tons of experience in the art of thwarting oversight. If the heads up top aren't rolling, abusive officers further down the organizational chart have nothing to fear.

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This Week In Techdirt History: November 5th - 11th

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Five Years AgoThis week in 2012, while Twitter was improving its DMCA policy, YouTube copyright claims managed to take down a viral video of a 9-year-old football star and, of course, a video all about fair use and remix culture, just as noted asshole Craig Brittain was launching his DMCA abuse strategy with Popehat in the crosshairs. And the Harry Fox Agency somehow managed to claim copyright over 164-year-old Johann Strauss music, while shortsighted publishers managed to extract a hefty ruling against lyric websites.Ten Years AgoThis week in 2007, the huge Writers' Guild strike began, causing all kinds of ripple effects in Hollywood, though not interfering with the Senate's attempts to turn the DOJ into Hollywood's police force. The entertainment industry was really figuring out how to use DRM and the DMCA to stifle innovation by shutting down a DVD jukebox, even as Blu-Ray DRM was being rapidly cracked and other DRM was turning up security holes — not to mention MLB screwing over a bunch of fans who purchased content by changing their DRM scheme and making that content disappear.Fifteen Years AgoThis week in 2002 was pretty much exactly the same on the DRM front, with BMG striving to copy-protect all CDs sold in Europe and EMI taking a similar attitude, while two of the biggest names in copy protection technology were merging to join forces in the futile fight, I suppose not listening to the computer scientists pointing out that CD copy protection is worthless But what else could the music industry do? Online CD sales were falling, and who could they possibly blame but pirates?

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The REAL State of Ads.txt Adoption

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The REAL State of Ads.txt Adoption Ads.txt Adoption Rate by Adform Business Intelligence (October 2017)The post The REAL State of Ads.txt Adoption appeared first on Adotas.

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IAB's HOW TO CREATE AND POST AN ADS.TXT FILE

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HOW TO CREATE AND POST AN ADS.TXT FILE From the IAB Tech site–here is all the info you need to learn how to post an ads.txt file. Definition: Publisher IDs What are publisher IDs? Sometimes called the seller network id or the account id, these are the IDs associated with a Publisher's account on an […]The post IAB’s HOW TO CREATE AND POST AN ADS.TXT FILE appeared first on Adotas.

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Ins and Outs of Adopting ads.txt-what's being reported

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In Martech Today there's a pretty good overview of the different experiences a company can have when it comes to instituting ads/txt: A paragraph from that article follows Getting on board The hardest part for a publisher is ensuring that it has a complete list of the unique IDs its sellers and resellers use to […]The post Ins and Outs of Adopting ads.txt–what’s being reported appeared first on Adotas.

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And Another Thing: Those Dumb Social Media Guidelines For Journalists Are Going To Paint A Target On Their Backs

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Just last week we discussed the alarming trend in media companies for putting in place restrictive social media policies for their employees, including their opinion commentators. In that post, we focused on how this move is both dumb and bad for two reasons. First, restricting the opinions of those followed by the public for their opinions is flatly nonsensical. Second, the goal of these policies -- to have the public view companies as non-partisan -- is simply a fantasy in these hyper-partisan times. Nobody is going to decide that the New York Times or Wall Street Journal are suddenly bastions of non-partisanship simply because either muzzled its staff.But there is another negative consequence of these policies that the original post didn't touch: it paints a target on the backs of the employees it governs. Because of, again, hyper-partisanship that has reached true trolling levels, these social media policies will be wielded like a cudgel by every trollish dissenter that doesn't like a particular media outlet. The New York Times, for example, is already having to endure this.


You can see what I mean. Because of a social media policy looking to strip anything that might even appear partisan from the social media output of its employees, the New York Times has given true partisans a weapon to wield. A weapon, I might add, vague enough to be a perfect weapon for trollish behavior. When a pair of quotation marks around a word can be used to threaten someone's employment, particularly when the person threatening has a history of contacting the employers of journalists, we have a problem.The solution to this is quite simple. Any media property, conservative or liberal, that is contacted by someone like this bitching about partisan reporting, should have but one response for that person: shove off. Particularly in the realm of opinion politics, cries of bias have reached the level of wolf-crying. It's expected, it means nothing, and it is easily ignored. Again, I mean for that to apply to both sides of the political aisle.But the social media policy disrupts the New York Times' ability to flick away the concerns of a partisan booger. Because of the policy, the booger must be heard and, I imagine, the booger's claims must be validated or invalidated. That, in case it wasn't clear, is fairly stupid and counterproductive.Stop arming boogers, media companies.

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DRM Strikes Again: Sonic Forces Just Plain Broken Thanks To Denuvo

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You may recall that Sega released its title Sonic Mania earlier this year, without bothering to inform anyone that the game came laden with Denuvo DRM and an always-online requirement. While Sega eventually patched the always-online requirement out, Denuvo remained, as did a hefty number of viciously negative Steam reviews from gamers that couldn't play the game as they intended or who were simply pissed off that DRM like Denuvo was included without mention to the public.Well, Sega just released another game, Sonic Forces, and once again the complaints are rolling in. This time, however, gamers are blaming Denuvo for flat out breaking the game completely.

Sonic Forces has already had a bit of an uphill battle to face releasing after Sonic Mania, but it looks like PC users are going to have an even rougher time of it. Thanks to the magic of Denuvo DRM, most users can't even progress past the second level in the game. Upon reaching the first mission with your custom avatar, the game promptly crashes with little explanation. Sega has been diligent in quickly issuing a patch, at least.
So Sega was again quick to issue a patch, but the company should have learned by now that you cannot patch a first impression with your customers. It's important to note that Sonic Forces is a console port to PC, and it is having a myriad of other problems that customers are complaining about, but the reviews for the game are still being weighed down by customers who couldn't play past the second level.The Destructoid post seems to think this should have been hashed out during testing.
I know with a lot of PC ports, issues can come down to user hardware configurations. It can be hard to determine whether a person experiencing slowdown or crashes is having a legitimate problem or something on their end. An issue like crashes based on Denuvo, though, is something that should have been noticeable to anyone in the QA department.
The easier strategy would be to simply not have any crashes due to Denuvo by not using it at all. After all, it's not like this particular DRM is in any way useful, anyway.

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Sizmek Partners with DoubleVerify, comScore and Integral Ad Science

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SizmekInc., an independent buy-side advertising platform deliveringimpressions that inspire, announced its partnerships with DoubleVerify, comScore and Integral Ad Science (IAS) togrant advertisers greater workflow efficiency for HTML5 video measurement. Working in tandem with Sizmek's data enablement, creative optimization and media execution capabilities, Sizmek'sVerification API framework provides a unified, streamlined way of trafficking, as opposed to […]The post Sizmek Partners with DoubleVerify, comScore and Integral Ad Science appeared first on Adotas.

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Algorithmic Videos Are Making YouTube Unsuitable For Young Children, And Google's 'Revenue Architecture' Is To Blame

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There's an interesting article on Medium by James Bridle that's generating plenty of discussion at the moment. It has the title "Something is wrong on the internet", which is certainly true. Specifically, what the article is concerned about is the following:

Someone or something or some combination of people and things is using YouTube to systematically frighten, traumatise, and abuse children, automatically and at scale, and it forces me to question my own beliefs about the internet, at every level.
I recommend reading the article so that you can decide whether it is a perspicacious analysis of what's wrong with the Internet today, or merely another of the hyperbolic "the Internet is corrupting innocent children" screeds that come along from time to time. As an alternative -- or in addition -- you might want to read this somewhat more measured piece from the New York Times, which raises many similar points:
the [YouTube Kids] app contains dark corners, too, as videos that are disturbing for children slip past its filters, either by mistake or because bad actors have found ways to fool the YouTube Kids algorithms.In recent months, parents like Ms. Burns have complained that their children have been shown videos with well-known characters in violent or lewd situations and other clips with disturbing imagery, sometimes set to nursery rhymes.
The piece on Medium explores a particular class of YouTube Kids videos that share certain characteristics. They have bizarre, keyword-strewn titles like "Bad Baby with Tantrum and Crying for Lollipops Little Babies Learn Colors Finger Family Song 2" or "Angry Baby vs Spiderman vs Frozen Elsa BABY DROWNING w/ Maleficent Car Pink Spidergirl Superhero IRL". They have massive numbers of views: 110 million for "Bad Baby" and 75 million for "Angry Baby". In total, there seem to be thousands of them with similar, strange titles, and similar, disturbing content, which collectively are racking up billions of views.As Bridle rightly notes, the sheer scale and downright oddness of the videos suggests that some are being generated, at least in part, by automated algorithms that churn out increasingly-deranged variations on themes that are already popular on the YouTube Kids channel. The aim is to garner as many views as possible, and to get children to watch yet more of the many similar videos. More views means more revenue from advertising: alongside the video, before it, or even in it -- some feature blatant product placement. Young children are the perfect audience for this kind of material: they are inexperienced, and therefore are less likely to dismiss episodes as poor quality; they are curious, and so will probably watch closely to see what happens, no matter how absurd and vacuous the storyline; and they probably don't use ad blockers. As Bridle says in his Medium post:
right now, right here, YouTube and Google are complicit in that system [of psychological abuse]. The architecture they have built to extract the maximum revenue from online video is being hacked by persons unknown to abuse children, perhaps not even deliberately, but at a massive scale.
That may be overstating it, but it is certainly true that YouTube's "revenue architecture", based on how many views videos achieve, tends to produce a race to the bottom in terms of quality, and a shift to automated production of endless variations on a popular themes -- both with the aim of maximizing the audience.Given the potential harm that inappropriate material could produce when viewed by young children, there's a strong argument that Google should apply other criteria in order to de-emphasize such offerings. A possible approach would be to allow adults to rate the material their children see, using a mechanism separate from the current "like" and "dislike". Google could then use adverse parental ratings to scale back payments it makes to channels, while good ratings from adults would cause income to be boosted. Parents would need to sign up before rating material, but that's unlikely to be a significant barrier to participation for those who care about what their children watch.Although there is always a risk of such systems being gamed, the sheer scale of the audience involved -- millions of views for a video -- makes it much harder than for material that has smaller reach, where bogus votes skew results more easily. Google would anyway need to develop systems that can detect attempts to use large-scale bots to boost ratings. The fact that the company has become quite adept at spotting and blocking spam at scale on Gmail suggests it could create such a system if there were enough pressure from parents to do so.If Google adopted such a reward system, Darwinian dynamics are likely to lead to better-quality content for children, where "better" is defined by the broad consensus of what adults want their children to see. Other ways that Google could encourage such content to be produced would be to allow parents to boost further what they regard as valuable content with one-off donations or regular subscriptions. Techdirt readers can doubtless come up with other ways of providing incentives to YouTube channels to move away from the automated and often disturbing material many are increasingly filled with.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Logitech Once Again Shows That In The Modern Era, You Don't Really Own What You Buy

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Time and time again we've highlighted how in the modern era you don't really own the hardware you buy. In the broadband-connected era, firmware updates can often eliminate functionality promised to you at launch, as we saw with the Sony Playstation 3. And with everything now relying on internet-connectivity, companies can often give up on supporting devices entirely, often leaving users with very expensive paperweights as we saw after Google acquired Revolv.The latest example of this phenomenon is courtesy of Logitech, which annoyed consumers this week by announcing that it would be shutting down all support for the company's Harmony Link hub. Released in 2011, the Link hub provided smartphone and tablet owners the ability to use these devices as universal remotes for thousands of devices. But users over at the Logitech forums say they've been receiving e-mails informing them these devices will be effectively bricked in the new year:

"This is an important update regarding your Harmony Link. On March 16, 2018, Logitech will discontinue service and support for Harmony Link. Your Harmony Link will no longer function after this date...There is a technology certificate license that will expire next March. The certificate will not be renewed as we are focusing resources on our current app-based remote, the Harmony Hub."
Again there's no monthly subscription fee for the service, and Logitech is compounding the problem by not really clearly communicating why it's deciding to completely brick Link units. On the plus side, Logitech says it's giving Link owners under warranty a Logitech Hub for free, and providing out-of-warranty Link owners a one-time, 35-percent discount on the Hub. But many users in the company's forums and over at Reddit are questioning why the hardware needs to be crippled entirely (instead of just, say, ending formal support):
"This exact situation right here is why Ive always said if it requires a cloud service to function, I dont want it hosting things locally on my own network is where its at.
Indeed. While this entire fracas was unfolding, several Reddit users discovered that the company was banning users from using the phrase "class action lawsuit," which unsurprisingly is only making frustrated Link owners more annoyed.Update: After some notable backlash, Logitech has announced that all existing Harmony Link owners will be upgraded to the company's Harmony Hub, for free. Which is nice, but doesn't really change the reality that you no longer actually own what you buy.

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Using Advanced Modeling to Segment, Build and Target Media Audiences

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Hitwise recently has put itsclickstream, search, and survey-based data into one comprehensive dashboard that enables marketers to combine insights with advanced modeling to segment, build and target media audiences through its platform or their own DSP. We sat down with London-based Nigel Wilson, Managing Director at Hitwise (pictured below), to learn more: Q: What do […]The post Using Advanced Modeling to Segment, Build and Target Media Audiences appeared first on Adotas.

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The Intersection of Content, Community and Commerce

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Eder Holguin (pictured left) is the CEO of OneQube.com and co-founder of LiveVote.com. Eder talks about the intersection of content, community and commerce. As the digital world continues to grow and evolve, one thing is certain: Brands and marketeres need to adapt or fail in their marketing efforts. With so many new platforms emerging, the […]The post The Intersection of Content, Community and Commerce appeared first on Adotas.

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Deputy Shoots Family's Terrier; Complains About Cost Of The Bullet

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In disturbing, but sadly unsurprising news, a law enforcement officer is being accused of killing a family pet -- one that very likely did not need to be killed. Kelli Sullivan's dog was shot by a sheriff's deputy when the deputy responded to Sullivan's call about being harassed by a neighbor. Sullivan soon learned why you're taking the lives of everyone and everything into your own hands by asking for law enforcement assistance.

The dog was 12 pounds, and Sullivan says about ankle height on most people. She said the dog did not seem like a threat to the officer. She said after the deputy had taken care of a neighborhood disturbance, her son’s dog escaped from their house."The dog got out. I walked to the end of the driveway to try to catch her. My daughter was running around trying to catch her. I thought we were going to go back in the house. I walked back to the house opened the door, turned around, (and) boom, he shot her," Sullivan said. "It was a horrific event. He shot the dog up close and blew her skull apart in front of my children. Like her eyeballs were out of her head."According to Sullivan, the dog had no history of biting and was behaving normally for a dog of her breed.
Sullivan's dog was a rat terrier -- a breed not really known for aggressive behavior. Nonetheless, the deputy's report said the dog posed enough of a threat he had no choice but to shoot it in the head.
In his official report, the deputy said, “…alone [sic] came the house dog charging at me in an aggressive manner and grabbing at my leg and my boots. I swung my baton at the dog to scare it away. The house dog then charge [sic] at me again in an aggressive manner and once swung my baton. The [sic] Mr. Sullivan couldn’t contain the dog. For a third time the house dog charged at me in an aggressive manner I then fire one shot with my hand gun and killing the dog [sic].”
But that's not the end of it, although that would probably be more than enough. A deputy unable to handle the "aggressive manner" of a 12-lb. dog is going to have severe difficulties handling aggressive behavior by full-grown humans. Nope, the deputy then allegedly had the audacity to:A. Claim his killing of the dog was in the family's best interest, andB. Complain about the cost of the bullet.
According to Kelli Sullivan, after killing Leia, the deputy told her that if she had bitten him, he’d have to sue, and that shooting her was the better option. He then told her, “It was a shame I had to waste that bullet, it was a really expensive hollow-point bullet.”
At this point, all we have is the family's story. There's no video of the incident and the sheriff's department has yet to respond to calls for comments and/or statements. But the allegations are far from unusual. This is something that happens dozens of times per day in the US.
The exact number of dogs killed by law enforcement officers is difficult to quantify because there is no official record of these deaths across American agencies. Laurel Matthews, a program specialist with the US Department of Justice’s community-oriented policing services office, says fatal encounters are an “epidemic” and estimates that 25 to 30 pet dogs are killed daily by police.
If there's ever going to be a downturn in this number, it starts with the police departments and runs right through the court systems. Police departments can provide better training, equipping officers with knowledge and techniques to better ensure animals make it out of these "interactions" alive.But the bigger step towards lowering this number (and, consequently, the number of humans killed by police officers) has to be taken by the nation's courts. At this point, pretty much all officers have to do to justify killings is claim they feared for their safety. In cases involving humans and their pets, this is usually enough to allow them to escape civil liability, if not criminal liability. Unless there's plenty of evidence stating otherwise -- something that usually includes recordings of officers' statements and accidents during these incidents -- the courts will usually find it impossible to discount the subjective feelings of the involved officers.The silver lining at this point is more and more courts are viewing the killing of people's pets by law enforcement officers as something potentially in violation of the Fourth Amendment.
[A]ccording to Charlotte-based attorney Scott MacLatchie, who represents law enforcement agencies and officers in civil suits. "Six (out of 11) federal circuit courts of appeal have ruled that the killing of a pet does represent a Fourth Amendment seizure," he says.
Let's not forget another basic fact: pets aren't instantly cowed by uniforms and waved weapons. Animals respond to certain stimuli and having strangers invading their territory seldom makes them comfortable. Owners can do whatever's possible to restrain pets, but what owners see as normal, non-threatening behavior by their pets is often seen as potentially harmful by people trained specifically to see potential danger in almost every interaction. And for most pets, the more aggressive the stranger is -- especially one using every physical tool available to "secure the scene" -- the more defensive they'll be.The problem is no one can "cop-proof" their home. It's impossible. What seems normal to them seems suspicious or threatening to law enforcement officers. They can't stop pets from running to greet the new person in the house in whatever fashion the pet normally greets strangers. They can't stop people from walking out of rooms or through doors unexpectedly. All they can do is hope everything goes as uneventfully as possible. That completely skews these interactions. Those with the hours and years of specialized training are expected to be treated like heavily-armed babies -- shielded from surprises, loud noises, or unexpected movements. And, for the most part, the courts have treated these completely backwards rules of engagement as completely normal expectations.That's how you end up with dead 12-lb. terriers and cops complaining about the cost of bullets: the constant shifting of responsibility back on the untrained citizens who thought they might end up with some help, rather than a dead pet, when they called the police.

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Miami City Attorney Tries To Erase Photos Of Fired Firefighters From The Internet

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Six firefighters fired over a racist incident are the possible, but unlikely, beneficiaries of Florida public records law. Here's how they ended up fired, via the Miami Herald, which broke the story. (h/t Boing Boing)

Miami’s fire chief on Thursday blasted six fired firefighters accused of draping a noose over a black colleague’s family photos, and released images of the “egregious and hateful” vandalism.Photos of the scene at Fire Station 12, located on Northwest 46th Street near Charles Hadley Park, show that someone took a black lieutenant’s family photos out of their picture frames, drew penises onto the pictures, then reinserted them in their frames and placed them on a wood shelf next to a teddy bear figurine. Someone also hung a noose made of thin, white rope over one of the photos.
Five more firefighters are still under investigation. The six firefighters -- Capt. William W. Bryson, Lt. Alejandro Sese, David Rivera, Harold Santana, Justin Rumbaugh and Kevin Meizoso -- were all terminated after the completion of a Miami police investigation. We know their names and what they look like, thanks to the Miami Herald's reporting and an apparent misstep by a Miami government agency.
On Thursday, ahead of a press conference scheduled for Friday morning with Miami’s mayor, Miami Fire Rescue also released the fired firefighters’ department photos even though Florida law exempts pictures of current and former firefighters from disclosure under the state’s broad public records laws.
Now, the city -- facing a possible lawsuit from the firefighters union -- is throwing CTRL-Z notices at local news agencies.
Just after midnight Friday morning, an assistant city attorney wrote an email to multiple news outlets demanding that the media “cease and desist from further showing the firefighters pictures in your coverage of this event.” Jones said the photos of the six men had been released accidentally.“As former first responders, their photos are confidential and exempt under Florida’s public disclosure law and should not have been released,” wrote Kevin R. Jones.
Too bad. That's a problem for the city, not journalists. The Miami Herald will be keeping the photos up. So will WPLG, which interviewed the victim of the racist acts. It's been relegated to a sidebar, but the photos are still there.
ABC News has also kept the photos up, albeit as an image that lasts only as long as it takes for the autoplaying video to load. Those looking for a longer-lasting image will have to make do with the sidebar thumbnail.
The images are already out there. Telling the media to unpublish the photos is a ridiculous move. The union plans to sue the city for releasing the photos, but that's not going to do anything to return the internet to the state it was in prior to the accidental photo dump.As for the firefighters inadvertently left unprotected by this "violation" of Florida's open records law, it would seem the best way to keep your photo from being displayed in stories about racist acts by public servants is refraining from engaging in bigoted acts while employed as public servants. Trying to turn online media sources into self-serving time machines only ensures maximum visibility.

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Disney Bans LA Times Writers From Advance Screenings In Response To Negative Articles

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Once again, Disney has decided to sacrifice goodwill for brand perception. Not content to limit itself to sending C&Ds to kids' birthday party performers, Disney's latest act of self-savagery has resulted in backlash from several top journalistic entities.Back in September, the LA Times dug into Disney's supremely cosy relationship with Anaheim's government -- one that has produced years of subsidies, incentives, and tax shelters for the entertainment giant. Disney wasn't happy with the report, so it responded the way any rational company would: it issued a statement stating the articles were full of errors and claimed the LA Times "showed a complete disregard for basic journalistic standards." (Despite these claims, Disney has yet to ask for corrections to the LA Times' investigative articles.)Then it responded the way any irrational company would: by locking LA Times reviewers out of advance movie screenings.

The Los Angeles Times had made Disney’s blackout public in a note to readers last week that explained why no feature articles about Disney movies appeared in its 2017 holiday movie preview section. Disney also did not give The Times early access to “Thor: Ragnarok” so that it could prepare a review in time for its Friday opening.
This resulted in the sort of thing Disney should have expected. Critics groups and several large newspapers showed their support for the LA Times by refusing to attend Disney movie screenings. The critics groups also announced they would not consider any Disney films for awards until the ban was lifted. But what likely hurt Disney the most was the show of support from powerful Hollywood figures, one of which -- Ava DuVernay -- has a movie slated to be released by Disney next March.Thanks to the swift, strong backlash, Disney has now rescinded its ban. But you won't be hearing Disney admit to being wrong. Instead, it's still trying to portray the LA Times as the sole transgressor in this debacle.
“We’ve had productive discussions with the newly installed leadership at The Los Angeles Times regarding our specific concerns, and as a result, we’ve agreed to restore access to advance screenings for their film critics,” Disney said in a statement.
Yep. Nothing to do with the backlash prompted by its bullshit move. Instead, it's all about a recent regime change and some "productive discussions." And the entertainment giant has nothing to say about its stupidly punitive actions resulting in more attention being drawn to the LA Times articles it disagrees with. There's not much that's more counterproductive than attempting to punish news outlets for delivering news. Even if the news outlet is in the wrong, there's nothing to be gained from refusing to be the adult in the room.

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Moosehead Still At It: Sues Hop 'N Moose Brewing For Trademark Infringement

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Despite all of the coverage we provide on alcohol-related trademark disputes, Moosehead Breweries has still managed to separate itself from the pack with its aggressive trademark enforcement behavior. You should recall that this is the brewery that sued a root beer company called Moose Whiz and a brewery making a beer called Müs Knuckle under the theory that because it somehow got a trademark on the term "moose" it therefore means that any beverage company using that word is infringing its trademark. That's not correct on multiple fronts, including the question of whether any customers are actually or potentially being confused by the so-called infringing uses. Add to that the somewhat strange circumstance of Canada's CIPO approving a heritage word like "moose" in the Canadian market.Well, Moosehead is still at it, this time suing a brewery called Hop 'N Moose over that same trademark.

Moosehead Breweries Limited, based in Saint John, New Brunswick, sued the Hop’n Moose Brewing Co. last week in federal court in Vermont, alleging trademark infringement. The Canadian firm alleges that the moose image the downtown Rutland brewpub uses is too similar to the moose head with antlers the larger company uses in its logos and branding materials.The lawsuit asks for a jury trial and wants Hop’n Moose ordered to hand over any profits it has made while using the moose image. It also wants the Rutland company to stop using the image and to “deliver up and/or destroy” all trademark infringing products. The filing also demands that Hop’n Moose stop using the domain address for its website, hopnmoose.com.
Here again we see Moosehead wielding a fairly generic term like a trademark cudgel. I have to admit being a little surprised that the filing goes in as hard as it does on the actual trade dress of both brands. In past trademark suits, Moosehead has thought it enough to show up with its "moose" trademark and assume that was enough. Here they are going after the image of moose in both companies' logos, claiming that they will cause confusion. Here are both logos.

Sure, you might say there are some similarities there, but only because both show an image of a moose. One is just the head of the moose, hence the beer named "moosehead", where the other is the silhouette of a full moose. It should be noted that Moosehead does have a trademark on a version of its moose head image that is a silhouette, except that I can't find it being used anywhere. Even if the brewery does use that image, it is certainly not the image or logo that the public associates with Moosehead beer.And that's the ultimate point here. The rest of the trade dress is, again, different enough to stave off any real customer confusion. In addition, the company names are different enough, and prominently displayed in both cases, to keep customers from being confused. It's a wonder why Moosehead keeps going down this road, but I suppose bullies are going to bully.

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Cop Loses Immunity After Shooting, Headstomping Gravely-Injured Suspect

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Court decisions stripping officers of immunity for civil liberties violations are still mostly an anomaly. But we'll take what we can get. This immunity-stripping decision by the Ninth Circuit Appeals Court appears to have been aided by the police department's own dashcam video, which helped dispel some of the "our word against yours" haze that clouds excessive force cases.In this case, acts of violence followed several seizures (of the epileptic variety, rather than the law enforcement variety). From the decision [PDF]:

Connor Zion suffered several seizures. He then had a seemingly related episode where he bit his mother and cut her and his roommate with a kitchen knife. Police were called. Deputy Juan Lopez arrived at Zion’s apartment complex. As Lopez exited his police car, Zion ran at him and stabbed him in the arms. Deputy Michael Higgins drove up separately and witnessed the attack on Lopez.
This was then followed by more acts of violence. Some of it clearly excessive, according to the court.
What happened next is captured in two videos taken by cameras mounted on the dashboards of the two police cruisers. Zion is seen running toward the apartment complex. Lopez Video 2:58. Higgins shoots at him from about fifteen feet away. Higgins Video 3:25. Nine shots are heard and Zion falls to the ground. Lopez Video 2:54. Higgins then runs to where Zion has fallen and fires nine more rounds at Zion’s body from a distance of about four feet, emptying his weapon. Id. at 3:00–03. Zion curls up on his side. Id. Higgins pauses and walks in a circle. Id. at 3:05. Zion is still moving. Id. at 3:00–12. Higgins then takes a running start and stomps on Zion’s head three times. Id. at 3:11–20.
Here's the video, courtesy of the Appeals Court.
This footage proves key to the Ninth's decision. As it points out, Higgins' statements don't align with the events captured by the cruiser's dashcam
Higgins testified that Zion was trying to get up. But we “may not simply accept what may be a self-serving account by the police officer.” Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994). This is especially so where there is contrary evidence. In the video, Zion shows no signs of getting up. Lopez Video 3:01.
The video shows Higgins shooting Zion several times from point-blank range, pausing a few moments before deciding to stomp Zion's head three times. At all times, Zion is laying on the ground almost motionless (he raises his head once after the second salvo of shots).As the court points out, law enforcement officers are allowed to use deadly force until the threatening situation has terminated. But that does not mean officers are allowed to deploy force until the person is "terminated." Higgins appears to believe he's entitled to maintain some sort of force continuum right up until EMS crews haul the dead body away. That's where he's wrong. Or at the very least, there's at least two ways a jury might find him culpable for violating Zion's rights.
Plaintiff doesn’t challenge Higgins’s initial nine-round volley, but does challenge the second volley (fired at close range while Zion was lying on the ground) and the headstomping. By the time of the second volley, Higgins had shot at Zion nine times at relatively close range and Zion had dropped to the ground. In the video, Zion appears to have been wounded and is making no threatening gestures. Lopez Video 3:04. While Higgins couldn’t be sure that Zion wasn’t bluffing or only temporarily subdued, Zion was lying on the ground and so was not in a position where he could easily harm anyone or flee. A reasonable jury could find that Zion was no longer an immediate threat, and that Higgins should have held his fire unless and until Zion showed signs of danger or flight. Or, a jury could find that the second round of bullets was justified, but not the head-stomping.[...][T]erminating at threat doesn’t necessarily mean terminating the suspect. If the suspect is on the ground and appears wounded, he may no longer pose a threat; a reasonable officer would reassess the situation rather than continue shooting. This is particularly true when the suspect wields a knife rather than a firearm.
With that, the Ninth Circuit sends the case back to the district court, overturning its summary judgment in favor of Officer Higgins. It also points out the plaintiff is entitled to recover her costs for the appeal. And, importantly, it unseals the two videos it relied on to reach its conclusions, so the public can draw its own conclusions about the incident in question in light of the officer's misleading statements.

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Village Hotels Bullies Small Pub Into Changing Its Name By Brandishing Its 'Village' Trademark

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Seeing trademark bullies in operation, particularly when a large entity bullies a small business, will never cease being a source of frustration for me. That said, my frustration gets supercharged when the trademark being wielded as a bullying weapon is laughably generic and clearly should never have been granted in the first place. And when the bully is attacking a company that it doesn't even compete with, that's the anger-cherry on top of the hate-sundae.Speaking of which: meet Village Hotels. Based in the UK, the chain operates 29 hotel properties and makes for itself a great deal of money. BH Village Inn, on the other hand, is a community owned pub in Roughlee, Lancashire. It has no rooms for rent. It has no concierge. It was simply a pub, once known as the Bay Horse Inn, which was bought by three hundred residents of the town and re-opened as the Bay Horse Village Inn, as a nod to the community ownership. They tried to register the name of the pub as a trademark. That's when Village Hotels fired off a threat letter.

In their letter on behalf of Village Hotels, DWF solicitors said: 'Our client owns an international portfolio of registered trademarks, including registrations for Village. It has come to our client's attention that you have registered the name 'BH Village Inns Ltd' and that you describe the nature of the business as 'public houses and bars'. Our client operates a successful hotel business comprising 29 hotels in the UK with a turnover of approximately £185million. Your use of the company's name is highly likely to cause considerable confusion in the minds of the public. Unless stopped, this will cause substantial damage to our company's reputation and goodwill and will not be tolerated.'
Yes, despite the two entities not remotely competing with one another, Village Hotels sent this letter off and then gave the folks running the BH Village Inn two weeks to change its name. This, despite there not being any threat of confusion or competition. Not to mention that this bullying was championed as the result of a hotel group holding an EU trademark on the word "village", which is fairly crazy. That word is all kinds of generic, so much so that it's used everywhere, as one of the folks behind BH Village Inn noted.
Mr Swarbrick, who has taken over the running of pub after it was bought by the local community, said: 'It is quite ridiculous. I checked with Companies House and there are 4,800 other companies which have 'village' in their name.'I phoned their solicitor and asked if he was planning to contact all of them as well.'
Despite this, and despite the conversations Swarbrick had with several lawyers, all of whom assured him he would win his case if Village Hotels took this to trial, the name of the pub will indeed be changed. They will instead simply register the pub as BHVI. Why? Because money, of course. Bullies like Village Hotels rely on having a bigger legal war chest than the small businesses on which they prey. The BH Village Inn couldn't afford the trial, so its name gets changed to BHVI.Trademark bullying works, at least until the backlash hits the profit margin.

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This Week In Techdirt History: October 29th - November 4th

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Five Years AgoThis week in 2012, the UN's ITU was trying to butt in on patent issues despite nobody wanting that, while CNN was making the all-too-common mistake of equating patents with innovation. Both the MPAA and Megaupload were trying to get in on the fight over what would happen to users' files, while the DOJ was trying to make sure nobody took too close a look at its activities in the case. This was also the week that George Lucas surprised everyone by selling Star Wars and all of Lucasfilm's other properties to Disney.Ten Years AgoThis week in 2007, following the shutdown of OiNK, Trent Reznor stepped up to explain why the file sharing network had been cool, while TorrentFreak was keeping track of the many new sites popping up in its wake and demonstrating the pointlessness of the shutdown. Meanwhile, the EFF was pushing movie studios to start respecting fair use in their "guidelines" for fan creations, and publishing videos that demonstrated fair use but also underlined how hard it is to determine — though perhaps they would have been useful for Fox as it went after Republican presidential candidates for posting debate footage online.Fifteen Years AgoThis week in 2002, we took a look at how DRM for music CDs was just a plain ol' bad idea, and another at how developing nations should avoid strong copyright for (among other reasons) the sake of fair use. DVD burners had finally dropped enough in price that Hollywood was freaking out about them, while then RIAA-boss was flummoxed to lose an Oxford Debate about file sharing by being apparently surprised that file-sharers in the audience also bought more music.

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Thrive+ Speaks Out! *Exclusive Interview*

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The latest controversy launched on Reddit by an anonymous poster criticizing the Thrive+ video agency/SSP has exploded across the adtech universe and has raised the topic of adtech cyber bullying and the appropriate use and purpose of ads.txt. I reached out to interview Fiona Walsh the CEO of Thrive+ and discover what really is going […]The post Thrive+ Speaks Out! *Exclusive Interview* appeared first on Adotas.

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Oversight Board Report On DC Police Cameras Contradicts Earlier Report's Claims

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Less than a month after a first report was delivered on Washington, DC police body camera use, a second one has arrived. And it seems to contradict some assertions made in the first report.The first report was put together by an extension of DC's government called the Lab@DC. It showed body camera use doing almost nothing to curtail use of force by officers. This seemed to undercut the notion body cameras can be a tool of accountability. But they never will be -- not if the agencies using them remain uninterested in punishing officers for misconduct.The Lab@DC report stated officers -- more than 2,000 of them -- weren't observed repeatedly or intentionally violating body camera activation policies.

Other researchers have suggested that BWCs may fail to affect outcomes because of nonadherence: officers, for a variety of reasons, may not use their assigned cameras according to departmental policy. They may fail to turn on the camera, for example. We have no indication that non-adherence was a widespread problem in this study. For 98% of the days in 2016, MPD averaged at least one video (and often many more) per call for service associated with a treatment officer. Further, even for the 2% of days in 2016 in which the number of videos uploaded was less than the number of incidents for which we would expect them, the difference is minimal, with 96% average adherence based on our measure.
The latest report, however, comes to the opposite conclusion. This one [PDF], put together by DC's police oversight board, shows plenty of nonadherence. (via FourthAmendment.com)
More than a third of cases investigated by a D.C. police oversight board after complaints were made about officers’ conduct this past year involved officers who did not properly use their body-worn cameras during those incidents, according to a report made public Tuesday.Some officers turned the cameras on too late, others too early, the report from the Office of Police Complaints found. In 13 percent of the cases, at least one officer at a crime scene or incident failed to turn on the camera, though colleagues did.
This is causing problems with accountability. Michael G. Tobin, the director of the Office of Police Complaints, says these "failures" sometimes compromise entire internal investigations. But he's also quick to excuse the officers, citing the newness of the technology.The "newness" may contribute to some unintentional failure to follow policy, but it's not as though the department's body camera policy is full of contradictory instructions on activations.
MPD General Order SPT-302.13 specifies that “[m]embers, including primary, secondary, and assisting members, shall start their BWC recordings as soon as a call is initiated via radio or communication from OUC [Office of Unified Communications] on their mobile data computer (MDC), or at the beginning of any self-initiated police action.”
Cameras should be rolling for pretty much any officer interaction with the public. The problem for DC police oversight -- and the public itself -- is that these activation failures compromise investigations of police misconduct. To investigators inside and outside the department, there's no discernible difference between forgetting to turn on a camera and deliberately leaving a camera off. The small upside is the 2,800 cameras in use, which lowers the chance that all responding officers will fail to produce footage.The camera policy doesn't leave activation to officer discretion. But the hardware does, and that's an issue that needs to be addressed. Surprisingly, it's the local police union that's calling for additional accountability measures.
Police Sgt. Matthew Mahl, the chairman of the police union, said he plans to ask the department for new equipment that would automatically turn on body cameras when a gun is removed from the holster.
That will help cover cases where deadly force is threatened or deployed. But there are a lot of misconduct and excessive force complaints that will fall through the "gun out, camera on" cracks.The combination of both reports suggests cameras still aren't fixing law enforcement. Too many officers still feel the equipment is optional, even when it's issued at the start of every shift and clipped to their chests for the next 12 hours. If there's no downturn in force deployment, it's because no one's made it clear the absence of footage should be nearly as damning as the existence of damning footage.

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Internet Association Sells Out The Internet: Caves In And Will Now Support Revised SESTA

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This morning, at about the same time as I published my article criticizing Senator Portman's decision to push forward with SESTA, an amended version of the bill was released, that has only a few small changes. Most notably it appears to improve the "knowledge" standard, which was definitely the worst part of the bill. The original bill had the following standard:

The term 'participation in a venture' means knowing conduct by an individual or entity, by any means, that assists, supports, or facilitates a violation...
The concern here was twofold. "Knowing conduct" means knowing of the conduct, not the outcome. That is, knowing that people can comment, not that those comments "facilitate" a violation of sex trafficking laws. That's way too broad. Separately, the "assists, supports, or facilitates" language is very broad, and includes completely passive actions (facilitates), rather than active participation.The updated manager's amendment fixes... just some of this. It now says:
The term 'participation in a venture' means knowingly assisting, supporting, or facilitating a violation...
So now it's "knowingly" doing the other things, rather than just "knowing conduct." That's better. But, it's still very broad. And the "facilitation" is still there. Making it "knowingly facilitates" certainly helps, but it's still much broader than before. Because you have now created what is effectively a notice-and-takedown system for all kinds of content. Someone just needs to claim that your site "facilitates" sex trafficking, and now you have "knowledge." Thus, the strong incentive will be to remove, remove, remove. As we already see, the DMCA notice and takedown provisions are widely abused. Anyone who thinks this won't be widely abused has not been paying attention.Furthermore, even "knowingly assisting, supporting, or facilitating" is going to lead to a lot of problems. We know this because we already lived through it with the DMCA. The entire 10 year fight between Viacom and YouTube was, in large part, over the definition of "knowing." Because Viacom wanted it to be a broad standard of "knowing that bad stuff happens on the platform," while YouTube argued (correctly) for an "actual knowledge" meaning, which means that you would have to have knowledge of specific content that violates the law, and then be responsible for removing that specific content. If you just make "knowing" the standard, without the "actual knowledge" part, you're in for lawsuits arguing that general knowledge makes you guilty. And that could impact tons of companies.Take Tinder. The incredibly popular dating app is almost certainly used by some sex traffickers to traffic people against their will. Here's an article from three years ago talking about sex trafficking on Tinder. Boom. Now Tinder has "knowledge" that its platform is "assisting, supporting, or facilitating" sex trafficking. It may now be both civilly and criminally liable. So, you tell me, what should Tinder do to get rid of this liability? I'll wait. And if you think no one will bother to sue Tinder over something like this, need I remind you of the many lawsuits we've been writing about in which people are suing every social media platform because vaguely defined "terrorists" use the platform?At least under the DMCA there's a clear "safe harbor" setup, whereby companies know the conditions under which they need to remove stuff to avoid liability. SESTA has no safe harbor language. It just says knowledge. But then what? We're in for years of litigation before courts determine what the hell this means, and that likely means startups will die. And others will never even have a chance to get off the ground.And, once again, this doesn't solve the other giant concern we had about the original bill, which is that this will encourage platforms to stop helping law enforcement and to stop monitoring their platforms for trafficking, because doing so can constitute "knowledge" and make them liable, if they are unable to wave a magic wand and make all such conduct disappear.In other words, the new bill is still hugely problematic.And that's why it's extremely troublesome that the Internet Association -- the giant lobbying organization representing larger internet companies, has now come out in support of the new SESTA:
Internet Association is committed to combating sexual exploitation and sex trafficking online and supports SESTA. Important changes made to SESTA will grant victims the ability to secure the justice they deserve, allow internet platforms to continue their work combating human trafficking, and protect good actors in the ecosystem.Internet Association thanks cosponsors Sen. Portman and Sen. Blumenthal for their careful work and bipartisan collaboration on this crucially important topic and Chairman Thune and Ranking Member Nelson for their leadership of the Commerce Committee. We look forward to working with the House and Senate as SESTA moves through the legislative process to ensure that our members are able to continue their work to fight exploitation.
I honestly am flabbergasted at this move by the Internet Association. This will do serious, serious harm to tons of internet companies. Since the Internet Association represents the bigger tech companies, perhaps they stupidly feel that they can handle the resulting mess. But smaller organizations are going to die because of the overreach of this legislation. This is a shameful move in which the Internet Association has sold its soul.I know that many of the big internet companies were under lots of pressure this week from Congress over things like Russian ads, and it almost feels like this is their attempt to appease Congress, since some in Congress have (totally incorrectly) framed the SESTA debate as being one where tech companies were opposing efforts to stop sex trafficking. Since they're already fending off charges of helping foreign adversaries undermine elections, perhaps they felt they didn't want to add bogus claims of supporting sex trafficking to the pile.But, this is a bad, bad decision. Yes, the manager's amendment is slightly better, but it's not good. It's bad for the internet. It's bad for free speech. And the fact that the Internet Association has stupidly put its stamp of approval on this is going to make it much more difficult to stop. Already Senators Blumenthal and Portman are pretending that because the Internet Association is on board, it means all of "tech" is on board. This is wrong and it's dangerous. The large members of the Internet Association may be able to survive this mess (though it will be costly) but smaller organizations are going to be harmed. And, in the end, it will do nothing to stop sex trafficking, and could even make the problem worse.

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Another Stash House Sting Criticized By The Court... But Lengthy Sentences Left Untouched

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The Sixth Circuit Court of Appeals has let some more stash house sting convictions stand. But not without considerable discussion of the government's tactics. And not without one judge appending a long rebuke to her reluctant concurrence.Once again, the ATF has managed to secure multiple convictions predicated on nonexistent evidence. The sting, helmed by veteran ATF agent Richard Zayas, involved a made-up drug stash house "containing" at least enough drugs to trigger 10-year mandatory minimum sentences for the defendants. Zayas' sting operations always include fictitious armed stash house guards, otherwise the ATF's involvement would be unnecessary.The end result is multiple convictions. But other than a few seized weapons, nothing contributing to public safety was achieved. No actual drug dealer was targeted, nor was the sting linked with any larger ATF/DEA/FBI operation aimed at curbing inner city drug trade.Nonetheless, the Sixth Circuit Appeals Court upholds everything, rejecting multiple due process challenges from the defendants. The entire opinion [PDF] should be read just to understand the nearly-insurmountable barriers defendants face when challenging questionable government behavior -- both during the sting and during the trial.Judge Jane Stranch's concurrence clearly communicates her displeasure with ATF sting operations in general, even if it's tempered by her inability to move the dial in the appellants' favor.

Because these stings are wholly inventions of law enforcement agents, they can and do include powerful inducements to participate in one big “hit,” a hit that is conveniently large enough to qualify for mandatory minimum sentences. Obtaining the outsized reward is also made to look easy—the agent is a disgruntled insider who knows when and how to stage these “rip-and-runs” and offers to provide all needed assistance, from manpower to transportation. The unseemly nature of the Government’s activity is emphasized by its failure to achieve its declared goals of jailing dangerous criminals and making our streets safer. Evidence showing that these hurry-up set-ups achieve the stated goals was not proffered and the facts here demonstrate why: no known dangerous individuals or criminal enterprises were researched or targeted and no pre-existing drug rings or conspiracies were broken up. In fact, this sting trapped Flowers, a gainfully employed young man with no criminal record.
This sting was like others helmed by Agent Zaya: it targeted impoverished inner city minorities. As the judge notes, the fact that ATF stings are disproportionately resulting in the jailing of minorities has not gone unnoticed. It's not just dissertations or investigations by journalists exposing this fact. The ATF is currently facing a lawsuit in Illinois over the selective targeting shown in sting operations.Stranch goes on to note multiple courts have found the ATF's actions troubling. But, so far, they've been unable to do much to stem the flow of stash house sting cases into the nation's courts. They've also been unable -- with rare, rare exceptions -- to provide any sort of relief for defendants caught up in the government's fictitious drug robbery plans.
Despite increasing awareness of the problems and inequities inherent in fictitious stash house stings, at issue here is whether an appropriate legal path exists for a defendant to successfully challenge the stings. A majority of circuits have recognized the outrageous government defense, but impose such a high burden on defendants that the defense rarely results in dismissal of charges.[...][I]t seems we remain without an established vehicle in the law to define a dividing line between law enforcement practices that are honorable and those that are not. In the interim, these questionable schemes continue to use significant government resources and to adversely impact the poor, minorities, and those attempting to re-integrate into society. And they apparently do so with no increase in public safety and no deterrence of or adverse effect on real stash houses. These costly and concerning sting operations do not accord with the principles of our criminal justice system and I hope they will be discontinued.
The ATF continues to spend considerable amounts of money doing little to stop the flow of contraband. It would rather chalk up easy arrests and convictions while doing almost nothing to contribute to public safety. Taxpayers are already paying the ATF to engage in literal charades. They're also on the hook for hundreds of thousands of dollars in incarceration costs per sting victim thanks to the ATF's insistence on pretending there's mandatory minimum-triggering amounts of nonexistent drugs in every fake stash house it convinces someone to rob.This is nasty, brutish work by the government. But it works too well to expect the ATF to voluntarily end this program. It produces too many convictions to be considered a waste of time by the ATF, even as its does nothing at all to stop the trafficking of drugs and guns.

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The Price Wolfenstein 2 Had To Pay To Get Around Germany's Anti-Nazi Laws Was Removing A Mustache

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The last time we talked about Germany's Strafgesetzbuch law, specifically section 86a that prohibits the display of Nazi symbols, iconography, or historical figures with few exceptions, was when Ubisoft accidentally sent the country versions of a South Park video game chock full of swastikas. I feel much the same today about the law as I did then: I get why the law was created, but it's probably time for it to be retired. While the law does make room for Nazi symbols to be displayed for the purposes of art and education, too often those exceptions are either not actually adhered to in real-world examples, while those that might be able to fit their work within those exceptions don't bother trying, too chilled by the law that limits their speech. Coupling that along with the simple fact that German citizens who really want to see Nazi symbols don't have to work particularly hard to circumvent the law resolves the whole matter as being somewhat silly.And it produces silly results. For instance, the latest game in the Wolfenstein series got around the law with what appears to be the minimum amount of effort possible.

The German Strafgesetzbuch section 86a outlaws the use of Nazi symbols as part of the denazification of the country post World War II. This law covers not only symbols like the swastika, but gestures like the Nazi salute. It doesn’t explicitly prohibit depictions of Adolf Hitler, but nevertheless, Hitler’s appearance in Wolfenstein 2: The New Colossus has been censored: they took his mustache off.
Other than barely changing the Nazi symbols in the game and removing Hitler's initials from what looks to be a monogrammed smoking jacket, that's pretty much it. Compliance with the law resulted in the removal of a 'stache. Meanwhile, anyone playing the game with it's World War 2 themes will know exactly who they are seeing: Hitler.

When a law, well-meaning or not, requires its citizens to be criminally stupid for it to be of benefit, it should be obvious that the law is broken. And it would take someone without a functioning brain to play this scene in this specific game and not realize that Hitler was on the screen. That makes the law useless at anything other than forcing us to notice how much Hitler could have looked just like our own Uncle Larry and causing us to have to deal with that reality.Again, I understand why the law was created. Even so, it's time to sunset it.

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With Denuvo Broken, Ubisoft Doubles Up On DRM for Assasin's Creed Origin, Tanking Everyone's Computers

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There are really two themes when it comes to DRM, software supposedly created to stop video game piracy. The first and most notorious theme is what an utter failure DRM has been in accomplishing this core mission. Even once-vaunted DRM platforms like Denuvo have been reduced to code-bloat within the games they're meant to protect. And that's the DRM on the effective end of the spectrum, relatively speaking. But the other theme, one that is arguably far more important and impactful, is how absolutely great DRM software tends to be at annoying customers and prohibiting them from enjoying the games they legitimately purchased. This theme presents itself in multiple forms, from people being flatout unable to use the software they purchased at all, to performance hits due to the DRM software slowing down the customer's computers, to opening up grand new security holes through which malicious actors happily dive into the lives of those very same customers.The track record for DRM, in other words, is almost laughably bad. That AAA publishers haven't acknowledged this reality and still use various forms of DRM is an absurdity. But what Ubisoft did in reacting to the demise of Denuvo, essentially to double up on DRM, is backfiring in predictably frustrating ways. Ubisoft, being Ubisoft, included Denuvo's DRM for Assasin's Creed Origins. But with all the news for Denuvo being bad, the company knew the game would be cracked in hours or days using Denuvo. So, instead of simply removing the customer-annoying DRM, Ubisoft decided to add another layer of DRM on top of it, in the form of VMProtect.

According to Voksi, whose ‘Revolt’ team cracked Wolfenstein II: The New Colossus before its commercial release last week, it’s none of these. The entire problem is directly connected to desperate anti-piracy measures. As widely reported (1,2), the infamous Denuvo anti-piracy technology has been taking a beating lately. Cracking groups are dismantling it in a matter of days, sometimes just hours, making the protection almost pointless. For Assassin’s Creed Origins, however, Ubisoft decided to double up, Voksi says.“Basically, Ubisoft have implemented VMProtect on top of Denuvo, tanking the game’s performance by 30-40%, demanding that people have a more expensive CPU to play the game properly, only because of the DRM. It’s anti-consumer and a disgusting move,” he told TorrentFreak.
If the VMProtect name sounds familiar, that's because it was the company that actually accused Denuvo of using its software in its product without properly licensing it. And if layering DRMs on top of one another and expecting it not to have a negative effect on legit customers sounds like the product of insanity, that's because it is. Basically, unless you're running an upper end processor, the game is likely to be unplayable.
“What is the normal CPU usage for this game?” a user asked on Steam forums. “I randomly get between 60% to 90% and I’m wondering if this is too high or not.”The individual reported running an i7 processor, which is no slouch. However, for those running a CPU with less oomph, matters are even worse. Another gamer, running an i5, reported a 100% load on all four cores of his processor, even when lower graphics settings were selected in an effort to free up resources.“It really doesn’t seem to matter what kind of GPU you are using,” another complained. “The performance issues most people here are complaining about are tied to CPU getting maxed out 100 percent at all times. This results in FPS [frames per second] drops and stutter. As far as I know there is no workaround.”
Well, gentle Steam user, there is a workaround, but it mostly involves buying games from a company that is more interested in providing a great gaming experience to its actual customers than attempting to stamp out game piracy when doing so has proven the most futile task in the industry. If even lowering the graphics settings doesn't keep the game from stuttering noticeably, it won't be long before the refund requests start pouring in. Especially when this decision to layer DRMs like sweatshirts causes customer machines to overheat.
The situation is reportedly so bad that some users are getting the dreaded BSOD (blue screen of death) due to their machines overheating after just an hour or two’s play. It remains unclear whether these crashes are indeed due to the VMProtect/Denuvo combination but the perception is that these anti-piracy measures are at the root of users’ CPU utilization problems.
Ubisoft is always going to Ubisoft, I suppose.

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First Circuit Appeals Court Latest To Overturn Playpen Suppression Order

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A third Appeals Court has ruled on the tactics the FBI used to track down users of a dark web child porn site. And the third one to rule -- the First Circuit Appeals Court -- continues the government's shut out of suppression orders at the appellate level.In the two previous cases to reach this level (Tenth and Eighth), the judges found the FBI's Network Investigative Technique to be a search under the Fourth Amendment. This wasn't much of an issue because the FBI had a warrant. The real issue was the warrant's reach: it was issued in Virginia but the NIT found a home in computers all over the US, not to mention the rest of the world.The lower courts' decisions ordering suppression of evidence for the use of an invalid warrant have all been rejected by US appeals courts. Good faith has been granted to the agent securing the warrant, thus preventing suppression of evidence. In one case, the court even conjectured the deterrent effect of evidence suppression made little sense now that the FBI has statutory permission to ignore jurisdictional limitations when seeking warrants.The First Circuit Appeals Court's decision [PDF] is no different than those preceding it. The previously-granted suppression is reversed and the FBI awarded good faith for its warrant application, which clearly told the Virginia magistrate judge the agency intended to violate the warrant's jurisdictional limits. This decision, however, limits its discussion to the good faith exception and the judges refuse to draw possibly precedential conclusions about the magistrate judge's legal authority to grant a "search anywhere" warrant.The "search anywhere" part of the warrant the lower court found invalid is all academic at this point. Rule 41 jurisdictional limits have been lifted. But that did not happen until after this warrant was procured and deployed. Like the Eighth Circuit before it, the First Circuit decides this after-the-fact rule change somewhat negates the deterrent effect of suppression.The First Circuit says good faith prevails, as the warrant was more or less explicit in its intentions and still managed to be signed by a judge. In fact, the court praises the FBI for applying for a warrant it likely knew violated pre-rule change jurisdiction limitations.

We are unpersuaded by Levin's argument that because, at least according to him, the government was not sure whether the NIT warrant could validly issue under Rule 41, there is government conduct here to deter. Faced with the novel question of whether an NIT warrant can issue -- for which there was no precedent on point -- the government turned to the courts for guidance. The government presented the magistrate judge with a request for a warrant, containing a detailed affidavit from an experienced officer, describing in detail its investigation, including how the NIT works, which places were to be searched, and which information was to be seized. We see no benefit in deterring such conduct -- if anything, such conduct should be encouraged, because it leaves it to the courts to resolve novel legal issues.
I guess the court would prefer to tangle with legal issues it hasn't seen before. This would be one of them -- at least in terms of thousands of searches performed with a single warrant from a seized child porn server located in Virginia. The legal issues may be novel but the end result is more of the same: good faith exception granted and the admission of evidence questionably obtained.

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Sep/Oct 2017 - A View From the Top: Value-Add Followership

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International Spectrum has always been a business and technology resource. A View From the Top is an occasional column dedicated to business perspectives that affect the entire business, not just the technology and technologists.

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Sep/Oct 2017 Magazine

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Cover Story - A View From the Top: Value-Add Followership

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Spinoff: Whatever The Reports About Russian Trolls Buying Ads Is Initially, It's Way, Way Worse

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With several reports about data breaches occurring over the past few years, we've developed something of a mantra around here: it's always, always worse than first reported. Yahoo just went through this having finally admitted that literally every email account was compromised way back in 2013 after having first said it was only a few hundred thousand accounts that were impacted. Deloitte and Equifax followed this same playbook with their own breaches, trickling out little by little just how wide an impact those hacks had achieved.And now we're seeing something of a spinoff of that mantra when it comes to the impact Russian trolls and the now infamous Internet Research Agency (IRA) advertising buys had on Facebook. You may recall that everything about this story seemed fairly minimalist in the initial reporting. The amount of money spent on the ad-buy itself was low enough to induce eyerolls from many. Facebook itself estimated that 11.4 million people saw ads bought by the IRA over the course of two years or so, which is not the kind of number that sets off all four alarms at the democracy firehouse. But Facebook has now given everyone a better idea of how much reach these ads actually had. And these numbers are far more alarming.

Facebook will inform lawmakers this week that roughly 126 million Americans may have been exposed to content generated on its platform by the Russian government-linked troll farm known as the Internet Research Agency between June 2015 and August 2017, CNN has learned. In written testimony to the Senate Judiciary Subcommittee on Crime and Terrorism, a copy of which was obtained by CNN, Facebook General Counsel Colin Stretch says that 29 million people were served content directly from the Internet Research Agency, and that after sharing among users is accounted for, a total of "approximately 126 million people" may have seen it.Facebook does not know, however, how many of those 126 million people actually saw one of those posts, or how many may have scrolled past it or simply not logged in on the day that one of the posts was being served in their News Feed.
The inability to nail down just how many eyeballs viewed these ads is, of course, due to the nature of social media. Buying the ads and targeting primary viewers of them is one thing, but it's the sharing and re-sharing of those ads that extend their reach exponentially. And it's quite nice of Facebook to come right out and admit that it actually has no idea how many people viewed these ads, even as it offers up estimates to the contrary.This is a feature of a social media platform like Facebook, not a bug. And, to the IRA's credit, it's a brilliant and inexpensive method for having some measure of influence in a foreign country's democracy. Facebook builds a sharing tool and these folks take advantage of the very nature of that tool.Which is what makes Facebook's attempt to downplay all of this all the more perplexing.
Nevertheless, Facebook says in its testimony that the posts from those pages represented "a tiny fraction of the overall content on Facebook.""This equals about four-thousandths of one percent (0.004%) of content in News Feed, or approximately 1 out of 23,000 pieces of content," Stretch writes. "Put another way, if each of these posts were a commercial on television, you'd have to watch more than 600 hours of television to see something from the IRA."
Except, as Facebook and Colin Stretch damned well know, Facebook doesn't operate anything remotely like television. Nor do its ads. The engagement process of those ads is wildly different. The ability to share those ads is not a feature of television. The granular targeting for eyeballs of those ads is simply not something that can be achieved by television advertising. The geographic targeting specifically, with an eye on influencing votes and the outcome of an election, is simply not a feature available to traditional television advertising. I know why Facebook wants to pretend otherwise in this instance, but it simply isn't true.So, even as some are trying to downplay the impact, and even the existence, of this foreign intervention into our election cycle, it's worth acknowledging that these things, like data breaches, tend to be worse than first reported. And no obfuscation from Facebook about how much like television it is can change the raw numbers, or its acknowledgement that it doesn't actually know how many people saw this stuff.

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Stupid Patent Of The Month: Bad Patent Goes Down Using Procedures At Patent Office Threatened By Supreme Court Case

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At the height of the first dot-com bubble, many patent applications were filed that took common ideas and put them on the Internet. This month's stupid patent, U.S. Patent No. 6,738,155 ("the '155 patent"), is a good example of that trend.The patent is titled "System and method of providing publishing and printing services via a communications network." Generally, it relates to a "printing and publishing system" that provides "workflow services...using a communication network." The original application was filed in 1999, and the patent issued in 2004.The '155 patent has a significant litigation history. Starting in 2013, its owner1 CTP Innovations, LLC, filed over 50 lawsuits alleging infringement, and told a court it intended to file as many as 200 additional cases. CTP claimed [PDF] that infringement of its patent was "ubiquitous" by the printing and graphic communications industry.In response to CTP's claims of infringement, several defendants challenged the patent at the Patent Office, using a procedure called "inter partes review" (or "IPR" for short). The IPR procedure allows third parties to argue to the Patent Office that a patent shouldn't have been granted because what was claimed in the patent was either known or obvious (two requirements for being awarded a patent) at the time it was allegedly invented. The challenger presents what's called "prior art," that is, material known to the public before the alleged invention. The challenger uses the prior art to show that the patent's claims weren't new or non-obvious when the application was filed. A patent owner is then given the chance to show why they are entitled to a patent.Here is claim 10 of the '155 patent, one of the claims challenged by the defendants:

10. A method of providing printing and publishing services to a remote client in real time using a communication network, the method comprising:storing files on a computer server, the files containing information relating to images, text, art, and data;providing said files to a remote client for the designing of a page layout;generating a portable document format (PDF) file from the designed page layout;generating a plate-ready file from said PDF file; andproviding said plate-ready file to a remote printer.
Here's how the Patent Office presiding over the IPR described [PDF] claim 10:
Claim 10 is drawn to a method that requires: (1) storing files; (2) providing the files to a remote user for designing a page layout; (3) generating a PDF from the designed page layout; (4) generating a "plate-ready file" from the PDF; and (5) providing the plate-ready file to a remote printer.
In order to show that this claim should be cancelled, the challenger relied on several pieces of prior art to show that claim 10 of the '155 patent was obvious.During the IPR, the parties generally did not dispute that steps (1)-(4) were disclosed by the prior art. The only dispute noted by the Patent Office about what was disclosed by one particular prior art combination known as "Dorfman and Apogee" was whether sending a file to a remote printer (step (5)) was new or non-obvious. The Patent Office originally found [PDF] that even though the prior art disclosed all the other parts of the alleged invention, the prior art didn't disclose sending files to a remote printer. That was enough to rule that claim 10 was new and non-obvious, and in favor of the patent owner.We don't think that minor difference from the prior art should matter. The '155 patent doesn't claim to have invented how to send files to a remote printer (nor could it in 1999, as a quick search reveals). Such a trivial change shouldn't allow someone to claim a monopoly, especially when everyone was doing things "on the Internet" in 1999. For this reason, this patent is worthy of our award.Fortunately, the Patent Office changed its mind [PDF] on the patentability of claim 10 and sending files remotely, after the challenger pointed out that the prior art did disclose doing exactly that. In January 2017, the Patent Office ruled that claim 10, as well as claims 11-7, 19 & 20, should be cancelled, and CTP did not appeal that decision.Thanks to IPR, CTP can no longer use many of the claims of the '155 patent to sue others. Indeed, it does not appear that CTP has brought suit against the 200 parties it threatened to sue.IPR is currently facing an existential threat: the Supreme Court is currently deciding whether it is constitutional for the Patent Office to double-check its work after a patent has issued. We think it is. As this short story shows, the Patent Office sometimes misses things in the prior art, and unsurprisingly then, often allows patents that it shouldn't. The public should be able to point out those mistakes to the Patent Office and not have to pay patent owners for things that rightfully belong to the public.Republished from the EFF's Stupid Patent of the Month series.
  • 1. It turned out that at the time CTP filed its lawsuits, it didn't actually own the patent [PDF].


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