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This Week In Techdirt History: December 24th - 30th

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Five Years AgoThis week in 2012, we were a bit surprised and confused to see pirated movies being shared from Hollywood IP addresses — and, it soon turned out, from all major record labels, and several government agencies including the DOJ. Whether this was just amateur honeypotting was unclear, but whatever the case, Hollywood still broke records at the box office that year. Meanwhile, the Senate was debating the extension of FISA — which means they were rejecting amendments that could improve it and passing it with all its problems intact.Ten Years AgoThis week in 2007, we took a look at Hollywood's ongoing crusade to convince ISPs around the world to block sites it doesn't like, and also at how the industry's supposed challenges with digitally archiving films are caused by their obsession with ownership and copyright, not technological limitations. The MPAA, at least, realized (after years of complaints) that elaborately DRM-laden DVD screeners for the Oscars are not worth the effort. Meanwhile, as the EU began looking to destroy fashion innovation by enforcing fashion copyrights, we were even more distressed to hear copyright mentioned in the same breath as the great pyramids of Egypt and the works of Michelangelo.Fifteen Years AgoThis week in 2002, people were telling the Copyright Office just what they think about the terrible parts of the DMCA, as Declan McCullough was treading the line of fearmongering but still providing a good look at some of the injustices the law enables. Cablevision's Optimum Online broadband was threatening to ban customers who use file trading services (regardless of the purpose of their use), and Hollywood was still obsessed with DRM — and this is an industry smart enough to fire the guy who convinced them selling DVDs might be a good idea!

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posted at: 12:00am on 31-Dec-2017
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New Year's Message: Keep On Believing

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Since 2008, my final post of the year is one where I try to reflect on the year coming to a close -- with a general focus on optimism. That is, the usual goal of these posts is to take a step back from the day to day grind and look at the larger picture to see what good things have happened, that often get missed in the daily struggle. Techdirt has now reached its 20th birthday, and we've now been doing these posts for nine years. The first one was a response to a few comments I'd received, asking how it was possible to write about all the stuff we write about without getting depressed -- which made me realize that I was actually incredibly optimistic about the overall future. The things we write about are frustrating and annoying not because we're pessimistic about the world, but because we're optimistic. The frustration is a response to efforts to slow down or hinder all the good opportunities, and the progress and innovation we see. If you're curious, here are the past New Year's posts:

There's no denying it: this year has been a struggle. As many of you know, at the beginning of 2017 we were sued by someone who disagreed with our coverage. There is no denying that the lawsuit defined much of the year for us here at Techdirt -- and part of that was coming to terms with the very real impact the case was having on us as a site and on me personally. Thankfully, many of you stood up to support our continued reporting, and this fall, the case was dismissed, and the judge affirmed what we maintained all along: everything we wrote was protected by the First Amendment. That was gratifying. The case, however, is not yet over, as we are still dealing with the ongoing appeal by the plaintiff.In many ways, I think that our experience can be seen as an analogy for how I view the year as a whole. It has been quite a challenge on a variety of different fronts. For people looking to be upset or pessimistic, there are plenty of reasons to be concerned. The FCC has gone through with its plan to destroy net neutrality without any effort to bring about real competition in the market for broadband access. Attempts to undermine "the most important law on the internet," Section 230 of the Communications Decency Act, have gained quite a lot of traction. While no such law has yet passed, it may pass early on in the new year. While Congress was just prevented from reauthorizing surveillance on Section 702 of the FISA Amendments Act (temporarily), there's been little real effort to reform our broken surveillance system to abide by the 4th Amendment. On top of all of that, it feels like 2017 was the year that the dam broke, leading many people to start to be more concerned about the power of the internet, rather than the opportunities it enables. This has manifested itself in many ways, but most concerning to us is an increasing willingness to toss aside the principles of free speech in order to support censorship of speech that some segment of the population declares "bad." And that's leaving out a variety of potentially larger political and societal issues that have left many people quite concerned about the future.And yet, believe it or not, I am still optimistic about the future. I still see the promise of the internet. I still recognize the wonders brought about by protecting everyone's civil liberties and how it has opened us up to many more insights and voices that were unfortunately silenced in the past. The ability to speak up on the internet has created a fascinating situation over the past few months, where often powerful men have been brought down for abusing their positions of power. We're also starting to see the beginnings of some brand new opportunities online. The concerns that many people now have over large internet companies are driving lots of interesting efforts into new online tools and services -- and, somewhat incredibly, new protocols which at least offer hope that we can return to the original promise of the internet: a truly distributed system, rather than a series of large silos.As with the lawsuit against us, it feels like we're living through incredibly challenging times. They create struggles and problems and challenges. But by standing up for what we believe in and in fighting for the rights and the future that we know are possible, we can still prevail. The fact that there are setbacks, or even derailments, along the way does not define the end result. The future always remains possible, and the promise and excitement and opportunity that led me to start Techdirt in the first place all still remain. I'm still amazed at how much has changed in the 20 years since we started Techdirt -- and while it's easy to remember the bad things, it's often hard to recognize all the good that has come along as well. And that's doubly true during the most challenging of times. But don't be fooled by short-term swings and momentum. Tides change, and the long-term trend for innovation and for civil liberties tends to go in the right direction, even with some challenges along the way.If anything, though, this year should remind us that even as the larger trajectory tends to go in the right direction, it only does that because there are lots of people who are fighting to make it so. It does not do that entirely on its own, and there are times when forces push back against such progress. In short: keep on believing in the good things that can come, and then go out and fight for them. Don't get disheartened by the struggles -- just recognize that those also present new opportunities.We certainly intend to keep on fighting here -- and we hope you'll be right there alongside us. If you'd like to help us -- you can do so by sharing our stories, by commenting on them, or more directly supporting us. You can support us at our Insider Shop, our First Amendment reporting fund at ISupportJouranlism.com, our our Patreon page or pick up some of our great t-shirts, hoodies and mugs. Many media sites have struggled in 2017 and we can't tell you how much we appreciate that you choose to spend time with us and to support us and keep us going.As always, the most amazing thing about Techdirt is the community of folks that are here. The community continues to amaze us and support us and to make everything that happens around here worthwhile. We reached 20 years of Techdirt earlier this year and I still wake up each and every day excited to write about these ideas, to share these ideas, and to debate these ideas. And a large part of what makes it such a joy is everyone here -- and not just the commenters, but the lurkers as well, or the people who share our stuff on social media. And, this year especially, seeing how the community stepped up to support us in our most challenging times was truly incredible.Thank you for being a microcosm of why I still believe in the power of community on the internet. Thank you for making Techdirt such a special place.

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posted at: 12:00am on 30-Dec-2017
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The Evolving Power of Email

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Adotas talks with Eric Wanta, CMO, Ziveabout the power of email in 2018 to help brands personalize their marketing efforts. Q: Email is always evolving, what do you see being a major change or innovation that will alter how we email in 2018? A:In a nutshell, I think it will be Better Ways to Deal […]The post The Evolving Power of Email appeared first on Adotas.

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Hawaiian Supreme Court Says The First Amendment Protects Filming Law Enforcement

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There's no unified national view on First Amendment protections for filming police, but a few recent cases have established this right in some judicial circuits. Until a case makes its way to the US Supreme Court, cops who don't like being recorded in public can still roll the dice on immunity when arresting people for operating cameras.Via the Volokh Conspiracy (at its new, paywall-free home at Reason) comes another decision in favor of a First Amendment right to record. This one was delivered by the Hawaiian state supreme court, which at least ensures residents can't be hassled for recording officers… or at least ensures success in the pursuant lawsuit.In this case, journalist Thomas Russo happened upon a police checkpoint and decided to film it. During his filming of a traffic stop, he was instructed to do several things -- like back up and turn his vehicle's hazard lights on. Every instruction given by officers appeared to be followed in Russo's recording but officers still arrested him and took his phone. The charges -- failing to comply with a lawful order and disorderly conduct -- were ultimately dismissed. The court examined the footage of the stop and found it did not show Russo disobeying orders. Anything that appeared as noncompliance on Russo's part was due to the vagueness of the officer's orders, rather than direct disobedience.More importantly, the court takes a stand on the First Amendment issue.

We agree with the reasoning of the First Circuit and of other federal courts of appeal that have considered this issue. The rights to free speech and press serve not only to protect the individual's right to self-expression, but also to promote the vital goal of “affording the public access to discussion, debate, and the dissemination of information and ideas.” Bellotti, 435 U.S. at 783... This aspect of the First Amendment is all the more critical when the ideas and information sought to be disseminated pertain to government officials and law enforcement personnel, “who are granted substantial discretion that may be misused to deprive individuals of their liberties.” Glik, 655 F.3d at 82; see also Gentile, 501 U.S. at 1034-35. Public access to such information serves to guarantee “public oversight of law enforcement” and “minimizes the possibility of abuse by ensuring that police departments and officers are held accountable for their actions.” Peer News LLC v. City & Cty. of Honolulu, 138 Hawai‘i 53, 73-74, 376 P.3d 1, 22-23 (2016) (considering accessibility of police officer disciplinary records under state public records law). In light of these principles, this court likewise concludes that the “filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities,” Glik, 655 F.2d at 82, is protected by the First Amendment to the United States Constitution and by the independent protections afforded by article I, section 4 of the Hawai‘i Constitution.[...]In this case, Russo was engaged in video recording Officers Lawson and Fairchild as they conducted a traffic stop pursuant to a scheduled law enforcement action. Whether he was acting in an individual capacity or as a representative of the media, Russo's conduct in videotaping the police officers in public was protected by the First Amendment to the United States Constitution and article I, section 4 of the Hawai‘i Constitution.[...][W]e observe that “[i]n our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights,” and, to ensure the protections that the First Amendment affords, officers may often be expected to show restraint when “they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.” Glik, 655 F.3d at 84.
As for the government's claims the officers had every right to arrest Russo for disobeying orders, the court has this to say:
The video footage stipulated into evidence by the parties shows that Russo did, in fact, comply with the officers' order. When Officer Fairchild instructed Russo to return to his vehicle and turn on his hazard lights, Russo complied. When Officer Fairchild waved his hand and directed Russo to “step off to the side” to avoid getting “run over,” Russo likewise complied--responding, “Okay,” and walking away from the general area to which Officer Fairchild had gestured. When Russo was subsequently approached and ordered by Officer Lawson to “stand back there,” Russo complied by taking a few steps away from the area and asking whether he could stand on private property. When Officer Lawson responded that he could not and ordered him to “stand back there,” Russo took several steps back towards the highway and asked, “Can I stand on public property?” When Officer Lawson then threatened Russo with arrest, Russo immediately began walking backwards, away from the area and towards the general direction to which Officers Lawson and Fairchild pointed. For the remainder of the video, as the police officers persisted in walking towards Russo and commanding that he “stand back there,” Russo continued to walk backwards and away from the traffic stop area. It appears from the video recording that Russo only stopped walking backwards when he was physically prevented from doing so and arrested by the officers.Although Russo may have continued to engage Officers Lawson and Fairchild in conversation and questions during the encounter, the video itself plainly demonstrates that Russo obeyed their command. Russo appeared to make a concerted effort to comply with the officers' instructions, and the video shows that he walked away or backwards when ordered by the officers to step or stand back. The parties agreed that the video footage was the best evidence of the encounter, and the footage impels the conclusion that Russo did, in fact, comply with the officers' order. Thus, given the evidence in this case, there was no probable cause to support the charge of failure to comply with a lawful order of a police officer in violation of HRS § 291C-23.
Not only was it a baseless charge, it was stacked on top of a First Amendment violation and a catch-all "disorderly conduct" rap. No credit of good faith is given and the court finds in favor of Russo and filming police officers. It's a solid win for Hawaiian citizens and another favorable court opinion to be cited in upcoming courtroom battles.

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posted at: 12:02am on 29-Dec-2017
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Prosecutors Benefiting Most From Police Body Cameras

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Touted as police accountability tools, body cameras haven't lived up to that reputation. Camera roll outs have had mixed results. In some places, departments have experienced declines in complaints. In others, the data shows nothing conclusive -- except, perhaps, that the cameras can be manipulated as easily as dashcams and audio recorders.The one place cameras are definitely paying off, it seems, is in courtrooms. And it has nothing to do with civil lawsuits and everything to do with locking people up. If there's an entity benefiting directly from the explosion in body camera use, it's the nation's prosecutors. The stated fears about body-worn cameras being used by department brass to play "gotcha" with the rank-and-file haven't materialized. More often than not, footage is being used to put people behind bars.A George Mason University survey [PDF] of prosecutors shows a majority of them have used body-worn camera footage as evidence.

Most state prosecutors’ offices (almost two-thirds) are already working with BWC evidence. Of these offices, a full 42.1% have used the evidence for longer than one year. Yet, a significant number (almost one-fifth of those using BWC evidence) are still very new to working with it (one month or less).Nearly all prosecutors’ offices in jurisdictions with BWCs (92.6%) have used BWC evidence to prosecute private citizens. In comparison, 8.3% of offices located in jurisdictions with BWCs indicated that they have used BWC evidence to prosecute a police officer. It should be noted, however, that many more total citizens than police are prosecuted each year, so these percentages are not directly comparable.
Prosecutors also found camera footage to be far more useful to them than their defensive counterparts.
Very high numbers of respondents (79.5%) indicated that prosecutors in their offices support BWC use. Additionally, large majorities believed that BWC evidence will help the prosecution more than it will assist the defense (62.7%) and that BWCs would improve prosecutors’ overall ability to prosecute cases (65.8%). Fewer than 10% of lead prosecutors disagreed with these statements. Taken together, these results suggest that lead prosecutors view BWC evidence as a powerful prosecutorial tool.[...]A majority believed that BWC evidence would increase both rates of conviction (58.3% agreement) and the frequency/likelihood of plea bargains (62.3% agreement).
Considering the advantages camera footage has given prosecutors, it's surprising there are still complaints about the tech. Most seem to indicate prosecutors aren't happy the tool that's helping them secure more convictions might also require them to do a more work. Beyond concerns about logistics (storage, retrieval), prosecutors cite the time needed to review footage as a potential downside. This complaint, however, goes right to the heart of the issue -- something that needs to be addressed by law enforcement agencies.
66.9% of respondents feared that jurors might come to expect BWC evidence and that a lack of footage might lead jurors to question an account given by an officer or witness. Indeed, almost half of the sample (44%) agreed the BWC evidence would produce minor discrepancies between officer testimony and the videos. Additionally, 48.7% worried about the potential for BWCs to produce videos that do not fully or objectively capture events in a case.
When cameras are deployed and policies are clear on when they should be activated, it should indeed damage the prosecution's case if footage isn't recorded by officers. Since few departments are willing to hold officers accountable for selectively recording incidents -- and since courts have yet to make broad determinations about missing footage -- it's up to the public (jurors) to greet officers' assertions about unrecorded incidents as more dubious than those where footage exists.There's another thing that surveys of law enforcement officers and officials has uncovered. Attempts by officials to calm officers concerned about body cam "gotchas" often contain assertions the recordings will be used to train officers and correct observed issues, rather than used to run them out of a job. But this assertion is mostly false. As former police officer Greg Prickett pointed out at Fault Lines, there's simply too much footage and too few hours in the day.
In 2013, “Mitch” Brailsford was a police recruit in Mesa, Arizona, and was one of thirteen officers being equipped with an Axon body camera. He was one of the first officers so equipped and told the media at the time that it would help him be a better police officer by letting him review his actions and correct his mistakes.That is BS, although I have no doubt that Mitch believes it. It is common for rookies to believe this, but in practice, video is very rarely reviewed by patrol officers or their supervisors. There just isn’t time to do so.
Prickett's assertion is borne out by more George Mason University research [PDF].
[T]he largest effect of the implementation of BWCs was on accountability, which had increased in scope to cover a range of aspects of policing, including training, reporting, discretion, and police-citizen interactions. At the same time, the intensity with which officers’ experienced accountability had not significantly increased as BWC footage was not systematically used to monitor, review, and/or evaluate police officer conduct and quality of performance.
This continues to be true, even though this is one of the reasons given by agencies for the deployment of cameras.
BWCs were implemented primarily for training purposes and to protect patrol officers against groundless complaints rather than as a mechanism for identifying officer misconduct, for failing to comply with departmental policies, and for poor street-level performance. Although Users initially feared that BWCs were going to be used to get them into trouble for minor instances of misconduct or rule violations, their frames changed over time as they realized that BWCs were not going to be used by Managers as a “gotcha” mechanism.
When footage is reviewed, it usually exonerates officers. Day-to-day improvements in officer behavior just aren't happening because no department has the time to review hours of footage in search of training opportunities. Given this lack of oversight, it's hardly a surprise some research has shown almost no improvement in officer behavior following a body camera roll out.What has been sold to the public as a new era of transparency and accountability has instead become just another closed shop run by law enforcement and prosecutors. The main beneficiaries of millions of hours of footage are police officers. Footage that helps secure convictions makes its way to prosecutors immediately. Footage showing possible misconduct or exonerating evidence remains in law enforcement agencies' complete control until forced to relinquish it. While there have been positive developments here and there, the best accountability tool still seems to be cameras, but mostly those wielded by citizens.

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posted at: 12:02am on 29-Dec-2017
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Dear Barstool Sports: No You Cannot Sue The NFL For Its Non-Infringing Merchandise. Also, Relax.

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It has certainly been a turbulent year for the NFL. The league is reeling from ratings declines, accusations of political bias, its own versions of the #MeToo wave that has collided with our larger culture, and a seemingly never ending controversy over how players comport themselves during the National Anthem that essentially works as a feedback loop of outrage on every side helped along by the man holding the highest public office in our union. With that in mind, relatively small intellectual property dust-ups may seem low on the eyeball list for those following the league, but it's still worth pointing out when the league gets IP questions wrong, as it often does.Yet not every accusation lobbed in its direction is valid and the rather over the top response from one online outlet over the branding of some t-shirts is one that is not. The background on this is that Barstool Sports is a part humor, part satire, part sports blog with a turbulent relationship with Roger Goodell and the NFL. The Boston iteration of the site has been a particularly virulent thorn in the NFL's side and made much of its name when the league suspended Tom Brady for deflating some footballs. The site also pitches a line of t-shirts with the phrase "Saturdays are for the boys" on them, which I suppose is some kind of a nod to college football. Well, the NFL recently came out with a line of "Sundays are for the [blank]" line of shirts, with the blank being each of the 32 NFL teams that famously play games on Sundays. This did not escape Barstool Sports' attention.

But this I cannot stand for. I’m not letting this rat fuck Roger Goodell pull one over on me. I’m not letting him stand at the podium at the Super Bowl, say he’s never heard of Barstool Sports, then start slinging SAFTB gear in the NFL.com store. That’s fucking bullshit and I wouldn’t be a man if I let it slide. I don’t know what I’m gonna do because I’m not entirely sure that this is actionable, as we don’t own every day of the week, but I’ve never let the rules stop me from making a scene before, Roger. I’ll get Charlie Kelly to draw up a C&D in crayon and I’ll go sit my ass in the lobby at Park Ave, a place where I’m banned from enter, again. I’ll have Michael Portnoy Esq bury you up to your eyeballs in paperwork. I’ll start selling so many goddamn NFL copyright infringing t-shirts it’ll make your head spin.
First and foremost: bros, take a breath. Whatever the relationship between Barstool Sports and the NFL, these t-shirts are not some threat to the site's merchandise income. As for the intellectual property question here, there really isn't one. A phrase of this nature, this size, and this level of creative originality isn't going to be the cornerstone of the copyright lawsuit of the century, and that's without taking into account the NFL's large cadre of lawyers. On the trademark front, the phrases are both non-unique enough and sufficiently different so as to wave off any concerns about public confusion. There's just nothing here.But if the threat of selling copyright infringing merch on Barstool's end isn't some joke, or perhaps even if it is, such statements serve as great evidence for any willfull infringement claims the NFL might want to make against the site in the future. Some of the media coverage has included questioning what the upside for the NFL is in using such a similar phrase, which is fairly silly. The upside is selling the shirts. The real question is: what is the downside? The answer is pretty clearly: there is none.

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posted at: 12:00am on 28-Dec-2017
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Adaptly Predicts: A Look at Social Media's Advertising Universe in 2018

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Adaptlyenables advertisers to scale campaigns across Facebook, Instagram, Snapchat, Twitter, and Pinterest through tech and services.An inaugural member of Ads API programs, the New York-based company gives its clients first-mover advantage through the latest offerings from today's most relevant social channels. Naturally they have some interesting predictions about how the social media landscape will change […]The post Adaptly Predicts: A Look at Social Media’s Advertising Universe in 2018 appeared first on Adotas.

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posted at: 12:00am on 28-Dec-2017
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FCC Announces National Roll Out Of Amber Alerts But For Cops

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The FCC has done away with Net Neutrality. In its place, we get videos of Ajit Pai mocking his opponents, served up in a melange of mishandled memes. We also, apparently, get this: a future where our lives are interrupted by push notifications that treat grown-ass police officers like kidnapped children. (h/t That Anonymous Coward)

The Federal Communications Commission today added a new alert option—called a “Blue Alert”—to the nation’s emergency alerting systems. Blue Alerts can be used by state and local authorities to notify the public of threats to law enforcement and to help apprehend dangerous suspects.Blue Alerts warn the public when there is actionable information related to a law enforcement officer who is missing, seriously injured or killed in the line of duty, or when there is an imminent credible threat to an officer. A Blue Alert could quickly warn you if a violent suspect may be in your community, along with providing instructions on what to do if you spot the suspect and how to stay safe.
Warning people about violent suspects in their area is somewhat useful -- a severe weather alert but for crime. But there's no reason for a system like this to prioritize crimes against police officers. Adding mere threats to the mix just adds a bunch of junk info of nearly no use to the citizens on the receiving end of these alerts. At best, people will clear them from their screen as quickly as they do interloping Amber Alerts. At worst, they'll decide to play Batman and put themselves and officers at risk by attempting to Do Something.This is being rolled out nationally, following two years of prep that commenced after the passage of the Rafael Ramos and Wenjian Liu National Blue Alert Act, named after two NYPD officers who died in an ambush attack. It's a DOJ initiative, but one that requires the assistance of the FCC to utilize the national Emergency Alert System. The FCC is also there to nudge wireless providers towards compliance with "voluntary" guidelines for pushing these alerts to cell phone users.At this point, 28 states have already implemented some form of "Blue Alert" system. The national roll out will encompass the remaining states and US territories. That's what the FCC is announcing: the use of two alert networks to tell people cops are in danger.
Today's Order provides a 12-month implementation period for Blue Alerts to be delivered over the Emergency Alert System and 18 months for delivery over the Wireless Emergency Alert system.
This bill should never have been made law. There's nothing out there that suggests distributing this information outside of law enforcement networks will have any net safety benefit for the public. Taking it nationwide only adds to "Alert" market saturation. Cops have strong support systems and plenty of firepower on their side, unlike missing seniors (Silver Alert) or kidnapped children (Amber Alert). And, unlike targeted weather alerts, a Blue Alert offers up almost no information usable by the general public. If a suspect is still on the loose, the most beneficial information is only implicit: cops are searching for a suspect who hurt/killed one of theirs. For citizens in the area, the best option is to shelter in place. That way they (and their vehicles) won't be mistaken for suspects' and filled with bullet holes.In all seriousness, the Blue Alert system only serves one purpose: to elevate law enforcement officers above the people they serve, granting their victimhood a higher status than that granted to their fellow citizens.

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Nov/Dec 2017 - MultiValue Industry End-of-Year Recap

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Recent years have moved technology deeply into the day-to-day of nearly every culture. We've asked some key influencers in the MultiValue world to talk about how they moved their products forward in 2017. They also talked to us about where they'll be focusing in 2018.

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Nov/Dec 2017 Magazine

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Cover Story - MultiValue Industry End-of-Year Recap

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Germany Accuses Chinese Intelligence Services Of Using Fake LinkedIn Profiles To Recruit Informants And Extract Sensitive Information

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Over the last year, the scale of Russia's disinformation activities has become clearer. Its Internet Research Agency has deployed an astonishing range of sophisticated techniques, included accounts on Twitter and Facebook, and hiring activists within the US without the latter being aware they were working for the Russian government. We also now know that the same organization has been buying Facebook ads on a large scale that were seen by over a hundred million US citizens. But it would be naïve to think that Russia is the only foreign power engaged in this kind of activity. In fact, it would be surprising if any intelligence agency worth its salt were not carrying out similar activities around the globe. The first detailed information about China's use of fake social media accounts to recruit informants and extract sensitive information has just been published by the Bundesamt für Verfassungsschutz (BfV), Germany's domestic intelligence service. As Reuters reports:

Nine months of research had found that more than 10,000 German citizens had been contacted on the LinkedIn professional networking site by fake profiles disguised as headhunters, consultants, think-tankers or scholars, the BfV said.
Quartz quotes the BfV's president, Hans-Georg Maaßen, as saying:
"We are dealing with a broad attempt to infiltrate parliaments, ministries and administrations," said Maaßen. Chinese intelligence services are using new strategies of attack in the digital space."
An interim report on the analysis that appeared on the BfV site in July (original in German) explains how the Chinese operated. The supposed headhunters, scholars and Chinese officials claimed that there were interested in the specialism of the person being approached. They inquired about a possible exchange of professional views on the topic, and spoke of an "important customer" in China:
the Chinese contact persons ask those involved for a curriculum vitae and offered to pay for a trial project. If this was completed satisfactorily, an invitation is made to go to China to meet with the "important customer", with the costs of the stay being covered by the Chinese side. In fact, however, the "important customer" never appears and is not explicitly named. In due course, the persons involved are usually asked regularly to write reports in return for appropriate remuneration, or to pass on internal, sensitive information from the respective work area.
As part of its report, the BfV published a selection of the fake profies. Reuters explains:
Many of the profile pictures show stylish and visually appealing young men and women. The picture of "Laeticia Chen", a manager at the "China Center of International Politics and Economy" was nicked from an online fashion catalogue, an official said.
The Chinese Foreign Ministry spokesman Lu Kang was, of course shocked by the accusations, which he called "baseless":
"We hope the relevant German organizations, particularly government departments, can speak and act more responsibly, and not do things that are not beneficial to the development of bilateral relations," Lu said.
The implicit threat there chimes with two other stories about China that Techdirt published last month. In one of them, the Chinese authorities put pressure on the academic publisher Springer Nature to censor thousands of papers that dealt with topics that showed China in a less than flattering light. Similarly, Allen & Unwin was "persuaded" by the Chinese authorities not to publish a book about China's growing but covert influence in Australia. The row between Australia and China has since escalated further. The latter denounced remarks by Australian politicians as being "full of prejudices against China", and lodged a formal protest. Taken with the latest news of China's attempts to recruit informants using social media, these recent events are evidence of a newly aggressive China on the world scene -- and of what The Economist calls China's "sharp power".Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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posted at: 12:00am on 27-Dec-2017
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Facebook Transparency Report: Lots Of Government Surveillance, Bad Copyright Takedown Requests

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Facebook, which was a bit late to the party, recently released its latest transparency report. In a break from earlier versions of the report, the social media giant has finally moved beyond only detailing requests for information by the government and its alphabet agencies and is now including intellectual property requests and statistics as well. There is a decent amount of information in both sections of the report, but on matters of both intellectual property requests and government information requests, an analysis of the numbers leads to some troubling conclusions.Let's deal with the IP section first. The headline of much of the media reporting on this has been about the 377,000 or so requests Facebook got to take down content based on IP issues, with well over half of those specifically being about copyright. It's not a small number and some are using it to make the case that Facebook is Mos Eisley when it comes to copyright infringement: a hive of scum and villainy. Tragically for those arguments, the validity of those requests makes this all seem far less impactful.

Aggregate data shows Facebook received about 377,400 complaints from January through June, with many referencing multiple posts. About 60 percent of the reports related to suspected copyright violations on Facebook. A “small fraction” of requests were excluded because they were not sent through an official form, Facebook said.The company removed user uploads in response to 81 percent of filings for counterfeiting, 68 percent for copyrights and 47 percent for trademarks, according to its report. The percentages were roughly similar for Instagram.
By my math, the copyright front shrinks from the 377k number to 150k of copyright content Facebook decided, rightly or wrongly, was valid enough to take down the content. That isn't a small number still, but it's not as daunting a number as it originally appeared, particularly when you factor in that Facebook generally sides with the disputer over the person who's content it is removing. On trademark, the numbers are much worse, with less than half of the requests being valid enough to have the content removed. The overall picture is one in which there is indeed some infringement on a site as massive as Facebook, but there is also an enormous amount of invalid requests to the site as well. Not the best look for those that think intellectual property enforcement on the site should be expanded even further.As for government information requests, you will not be shocked to learn that they've gone up rather sharply as of late.
The ninth Facebook transparency report also showed that government requests for information about users increased 21 percent worldwide compared with the second half of 2016, from 64,279 to 78,890.
As we discuss this on the eve of the federal government looking to renew its domestic surveillance powers, it's well worth noting that any of the voices that hollered about the dangers of government spying over, say, the last eight years or so ought to be screaming at the sky, and possibly their own IoT devices, about what has only been an expansion of surveillance and privacy invasion for the general public. That the government is able to get away with this kind of one-sided action only becomes more mysterious as the actions against the public increase over time.

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posted at: 12:00am on 27-Dec-2017
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What's Really Behind the Native Ad Boom?

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  As Native advertising matures, performance is getting better. But what's driving it? Native advertising now makes up 50 percent of digital ad spend and will be a $22 billion dollar market in 2017. But what makes native advertising so successful? For a while now, all the credit has been given to the discrete unit […]The post What's Really Behind the Native Ad Boom? appeared first on Adotas.

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Big Data Brings Big Responsibility for Brands Seeking Enduring Consumer Relationships

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The data at our disposal enables us to transform increasingly pervasive tools into highly persuasive consumer experiences. The more these data-driven experiences serve the individual, the better they will serve the brand. By 2025, there'll be 180 trillion gigabytes of data, and data monetization will become a major source of revenue. That monetization will also […]The post Big Data Brings Big Responsibility for Brands Seeking Enduring Consumer Relationships appeared first on Adotas.

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posted at: 12:00am on 23-Dec-2017
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76% of Consumers Would Buy Products Through Their TVs, NewConnekt Study Finds

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Americans are highly interestedin purchasing products directly from TV commercials and programsusing theirremotes, according to a new t-commerce study released today by Connekt. However,many don't realize the capabilitycurrently exists, suggesting a need forgreater consumer education. Next-GenerationConnected TVs Fulfill Promise of TV Commerce The study found a strong consumer appetite forbuying goods through the largest screen […]The post 76% of Consumers Would Buy Products Through Their TVs, NewConnekt Study Finds appeared first on Adotas.

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IAB Internet Advertising Revenue Report: Mobile Rocks!

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The IAB internet advertising revenue report 2017 first six months results Conducted by PwC Advisory Services LLC (PwC) on an ongoingbasis, with results released quarterly, the IAB Internet AdvertisingRevenue Report was initiated by the Interactive AdvertisingBureau (IAB) in 1996. This report utilizes data and informationreported directly to PwC from companies selling advertising on theinternet as […]The post IAB Internet Advertising Revenue Report: Mobile Rocks! appeared first on Adotas.

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

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Five Years AgoThis week in 2012, the MPAA was claiming that millions of DMCA takedowns are proof that Google needs to magically stop piracy, while the RIAA was trying to rewrite the history of copyright, and the BPI was threatening to personally sue the leaders of the UK pirate party. But the intellectual property diplomats at the US State Department were moaning about how they can't export strict copyright laws as easily as they'd like to, since for every country like the UK (where London police were setting up a special force of copyright cops), there was one like Australia (which was refusing to play Hollywood's game). Then, of course, at the end of that same week, the administration's shortlist for new ambassador appointments included a bunch of big Hollywood donors.Ten Years AgoThis week in 2007, it was sports organizations taking the lead in the copyright fight, realizing they could (ab)use it to try to stifle press coverage, and clamp down on those dastardly live-bloggers. The IFPI went after Alibaba for linking to downloadable music, while the Korean government was paying out $170 million to publishers to mollify them after copyright extensions hurt their businesses. Amidst all this, we were pointing out that "balance" in copyright is a myth and a red herring, and it's time to get off of our unhealthy addiction to intellectual property.Fifteen Years AgoNot much different this week in 2002, with the RIAA amping up its extremely dubious claims with extremely dubious math and Hollywood fighting to ban DVD-copying software — while more and more people began to realize that copyright was enabling widespread censorship (not to mention undermining cybersecurity). But, there was a noteworthy light in the darkness! It was this week, about a year after the initial announcement, that Creative Commons was officially launched and began its ongoing project to change the way we think about copyright, content and sharing.

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Is Apple Slowing Down Old iPhones? Questions and Answers

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In other words, if your iPhone is beginning to run out of battery capacity, these slowdowns might kick in to keep it running for longer or prevent it from shutting down unexpectedly.
All it is admitting to now is trying to keep the old iPhones running for longer.
Does this change your conclusion last month that this is not a conspiracy to force users to buy new phones?
Apple has said the power management technique works on iPhone 6, 6S, SE and 7.
What else could be slowing the older phones down?
What else can users do to, short of buying new phones?
You have probably noticed that when your smartphone (iPhone or Android) is running out of battery, like when there is less than 10 percent, the device begins to run more slowly.
That is partly to keep it running for longer.
No, it could have avoided controversy by being more transparent to begin with.
That would also inform people that they should be getting their batteries replaced. The post Is Apple Slowing Down Old iPhones? Questions and Answers appeared first on Adotas.

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Utomik's PC game subscription service will launch out of beta in early 2018

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In early 2018, people will be able to sign up for $8 per month for unlimited access to its cloud-based library.
Those who sign up while it's still in open beta will get some perks.
New subscribers will pay $6 per month for the first year of their subscription, while those who are already members will be grandfathered into a $6 per month plan for life.
Utomik first started in 2014, and in the intervening years, it's steadily improved its service.
When it launched its open beta in February 2016, it had 145 games.
In addition to its single-player subscription plan, Utomik currently also offers a family plan for $10 per month, which will likely be a higher price when it's out of beta.
This plan enables up to four players to use the same account to browse its library and stream games.
Other services, like Jump, focus on a very small collection of indie game titles so that players don't feel overwhelmed by choices.
Utomik, on the other hand, seems to be focusing more on getting more new titles so that its players can pick from a smorgasbord of games, including older triple-A titles like Volition's Saints Row: The Third.
And it's currently looking to add more launch day titles to make its service appealing to folks who want to play the newest games. The post Utomik's PC game subscription service will launch out of beta in early 2018 appeared first on Adotas.

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posted at: 12:02am on 22-Dec-2017
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Apple Confirms It Slows Down Old iPhones As Their Batteries Age

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Do you have an iPhone that suddenly feels ... slower ... than ... it ... used ... to?
There might be a good reason for that, Apple confirmed to media outlets Thursday: The company is deliberately slowing down some iPhones, albeit for a good reason.
The batteries in older phones start to lose their oomph, especially if the devices have been repeatedly exposed to extreme temperatures.
Beginning with a software update it pushed out last year, however, Apple tried a new tactic: slowing down devices during moments of high demand so their beleaguered batteries could keep up.
Our goal is to deliver the best experience for customers, which includes overall performance and prolonging the life of their devices.
Lithium-ion batteries become less capable of supplying peak current demands when in cold conditions, have a low battery charge or as they age over time, which can result in the device unexpectedly shutting down to protect its electronic components.
Last year we released a feature for iPhone 6, iPhone 6s and iPhone SE to smooth out the instantaneous peaks only when needed to prevent the device from unexpectedly shutting down during these conditions.
Some outraged consumers see this as a plot by Apple to force people to upgrade their iPhones more often and it could certainly have that effect but there is a cheaper fix: replacing your battery.
Before you go through the hassle, though, dig through your iPhone's settings (here's how) and see if your battery actually needs to be replaced.
Look for this warning: Apple will replace your battery for free if your phone is under warranty, according to The Verge. The post Apple Confirms It Slows Down Old iPhones As Their Batteries Age appeared first on Adotas.

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posted at: 12:02am on 22-Dec-2017
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Top EU Court Says Uber Is A Transport Service That Can Be Regulated Like Traditional Taxis

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Uber is a company that provokes strong emotions, as numerous stories on Techdirt indicate. Uber has been involved in some pretty bad situations, including inappropriate behavior, special apps to hide from regulators, and massive leaks of customer information. Despite this, it is undeniable that millions of people around the world love the convenience and competitive pricing of its service.Equally, traditional taxi services dislike it for the way Uber flouts transports regulations that they obey, which is fair enough, and hate it for the way Uber challenges their often lazy monopolies, which is not. This has led to some appalling violence in some countries, as well as numerous legal actions. One of those, instituted by a professional taxi drivers' association in Spain, has resulted in a case before the EU's highest court (pdf), the Court of Justice of the European Union (CJEU), which has just ruled as follows:

the Court declares that an intermediation service such as that at issue in the main proceedings, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys, must be regarded as being inherently linked to a transport service and, accordingly, must be classified as 'a service in the field of transport' within the meaning of EU law.
The CJEU's reasoning was that Uber is more than a simple intermediation service. Its smartphone app is "indispensable" for the process of agreeing to deals between the driver and the customer, and Uber exercises "decisive influence over the conditions under which the drivers provide their service." As a result, the CJEU ruled that Uber is not "an information society service", but a "service in the field of transport", and may therefore be regulated just like traditional taxi services.In practice, this means that Uber will be able to operate in the EU, but will be unable to continue with its swashbuckling approach that has seen it ignore many traditional requirements for taxi services. That result will be important for its knock-on effect on other services offered as part of the so-called "sharing economy". In fact, these are better described as new kinds of rental services, and like Uber they have often skirted around existing laws that cover their field of operation. The CJEU ruling, which can't be appealed, is likely to mean that other companies using online technology to provide such services will also need to obey relevant EU laws.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Canadian Government Looking To Step Up Domestic Surveillance, Scale Back Intelligence Oversight

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Canada has its own PATRIOT Act -- one that was supposed to be fixed by its new heartthrob PM, Justin Trudeau. As Cory Doctorow points out at Boing Boing, Trudeau promised to fix it in post, but that's not what's happening.

Back in 2015, Canada's failing, doomed Conservative government introduced Bill C-51, a far-reaching mass surveillance bill that read like PATRIOT Act fanfic; Justin Trudeau, leader of what was then a minority opposition party, whipped his MPs to vote for it, allowing it to pass, and cynically admitting that he was only turning this into law because he didn't want to give the Conservatives a rhetorical stick to beat him with in the next election -- he promised that once he was Prime Minister, he'd fix it.Now the Trudeau government has introduced Bill C-59, which is meant to correct those deficits. Instead, it makes them far, far worse.
Security research group Citizen Lab have done the heavy lifting Trudeau seems uninterested in doing. A comprehensive report [PDF] detailing everything wrong with the bill (along with 54[!] recommendations for fixes) has been published by the group. In it, Citizen Lab notes C-59 expands domestic surveillance, lowers standards for surveillance deployment, and trims back government oversight.Dozens of problems have been found in the draft bill by Citizen Lab. The bill Trudeau was supposed to fix is instead morphing into a surveillance state blank check. The Lab finds a whole lot that's unlikable in the legislation.
Longstanding problems with the CSE’s foreign intelligence operations, which are predicated on ambiguous and secretive legal interpretations that legitimize bulk collection and mass surveillance activities.The complete lack of meaningful oversight and control of the CSE’s activities under the proposed active and defensive cyber operations aspects of its mandate.The absence of meaningful safeguards or restrictions on the CSE’s active and defensive cyber operations activities, which have the potential to seriously threaten secure communications tools, public safety, and global security.The absence of meaningful safeguards or restrictions on the CSE’s activities more generally. As drafted, the CSE Act appears to include a loophole which would allow the Establishment to cause death or bodily harm, and to interfere with the “course of justice or democracy,” if acting under its foreign intelligence or cybersecurity powers while prohibiting these outcomes under its new cyber operation powers.Concerns regarding the framework for the CSE’s acquisition of malware, spyware and hacking tools, which may legitimize a market predicated on undermining and subverting, rather than strengthening, the security of the global information infrastructure.Weak and vague protections for the privacy of Canadians and persons in Canada, alongside an abject disregard for privacy rights as an international human rights norm.Extraordinary exceptions to the CSE’s general rule against “directing” activities at Canadians and persons in Canada significantly expand the CSE’s ability to use its expansive powers domestically.Deep tensions at the core of the CSE mandate, which requires the Establishment to both protect and defend against security threats while simultaneously exploiting, maintaining, and creating new vulnerabilities in order to further its foreign intelligence agenda. These tensions are exacerbated by the introduction of new offensive powers and the two new aspects of its mandate.
So, how do you fix it? Well, 54 recommendations are laid out by Citizen Lab, approximately 54 of which supporters of the bill will find unfeasible. The recommendations would put all the stuff back in legislators left out in their desire to expand government power under the cover of national security. More oversight. Fewer powers. Refined definitions. More public reporting. These are all enhancements Canada's intelligence agencies are unlikely to find beneficial.With a great deal of editing, C-59 could become a streamlined, responsible answer to the national security question. Instead, it's hardly better than the atrocity it's replacing, despite Trudeau's pre-campaign promises.

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posted at: 12:02am on 22-Dec-2017
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Top Do My Coursework Reviews!

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Top Do My Coursework Reviews! The 30-Second Trick for Do My Coursework Sometimes deadlines from modules may come in the same time, also it is essential to organize your workload to satisfy these deadlines. Is critical that you understand that your coursework is an immense piece of effort and also a endeavor that is true. […]The post Top Do My Coursework Reviews! appeared first on Adotas.

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posted at: 12:00am on 21-Dec-2017
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Snagging Consumers' Attention: Will AI Help? A Sizmek Infographic

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Consumers' attention is spread across increasingly more channels every year in 2012 people had an average of 3 social media accounts, in 2016 they have an average of 7. Additionally, a recent Microsoft report showcases user action is down to 8 seconds yikes! No wonderbrands face an uphill battle when it comes to […]The post Snagging Consumers’ Attention: Will AI Help? A Sizmek Infographic appeared first on Adotas.

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posted at: 12:00am on 21-Dec-2017
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Apple Bullies Pharmacy Over Trademark Because All The Apples Are Belong To Them

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For roughly as long as Apple went through business-puberty and grew up into a big-boy company, it has held the somewhat strange belief that only it is allowed to use anything resembling an image of an apple as part of any kind of corporate branding. This has resulted in all kinds of bullying episodes and disputes over the logos of other companies that have little to no resemblance to Apple's iconic logo and typically involve companies that don't remotely compete with it either.But if Apple was hoping for some kind of chilling effect to be the result of these bullying efforts, it's only logical that this chilling effect would need to be renewed now and again. Fortunately, some silly pharmacy called Red Apple Interactive Pharmacy had the audacity to file a trademark application for the following logo.


Does that look like Apple's iconic logo?

No, it does not. Does the pharmacy compete with Apple in any way related to anything in trademark law? No, it does not. Did any of that stop Apple from opposing the trademark application of Red Apple Interactive Pharmacy. No, it most certainly did not.
Apple filed its opposition yesterday, December 18, claiming that the applied-for mark would cause a likelihood of confusion and dilution by blurring. The document filed by Apple cited the company’s apple logo, the mark ‘Apple’ and the mark ‘Apple Watch’ as some of the registrations used to oppose the applied-for mark. The Apple logo covers classes 9 (computer hardware and programs); 25 (analysis and consultation in the field of business information management); 29 (data storage services); and 41 (education and training services).
This is bullying in its purest form. There is not a shred of potential or real customer confusion about which to worry in this case. The logos aren't similar enough to cause concern, the companies are not competing, and even the most moronic hurried person is not walking going to try to buy prescription drugs thinking its from the same company that made their iPhone.One would think there were better efforts on which to spend Apple's valuable time beyond these frivolous, bullying efforts.

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posted at: 12:00am on 21-Dec-2017
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Congress Backs Down From Terrible Surveillance Bill; Running Out Of Time

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Just this morning we wrote about a last minute plan by surveillance hawks in Congress to rush through a really bad bill to extend Section 702, which enables widespread domestic surveillance by the NSA. We recommended letting your elected officials know what a bad bill it was (leading at least one of our commenters to mock us, saying contacting your elected officials is useless). Turns out: it worked (for now). The bill has been taken off the table and won't be voted on today. Senators Rand Paul and Ron Wyden had promised to filibuster such a bill on the Senate side to stop it, and it appears that widespread criticism caused the House to kill the bill for now.

Of course, Congress is now running out of time if it wants to extend the program. It technically expires at the end of the year (though large parts of the program can continue beyond that for at least some period of time). Devin Nunes, who was the main sponsor of the bill, appears frustrated, as he should for pushing so hard on such a bad bill:
But by midafternoon Wednesday, Nunes told reporters that the reauthorization effort was dead for now and that decisions about how to proceed were being made above my pay grade. The House Rules Committee also canceled plans to review the proposed legislation Wednesday afternoon.
It's still possible that Congress may try to shove a 702 extension into the "must-pass" spending bill next week -- though a whole bunch of folks in Congress have warned leadership that they will not accept this. Of course, we've gone through things kind of like this before. If you don't recall, the other controversial program, Section 215, expired before Congress was able to agree on a reform package, and that helped get Congress to finally agree to significant reform to the program after a few weeks of it technically no longer existing. A more likely solution would be a short term (30 or 60 day?) renewal, forcing the debate into January.

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posted at: 12:00am on 21-Dec-2017
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More Than 60% of Video Plays Will be on Mobile by Mid-2018, Ooyala Study Finds

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More than 58% of video plays globally - a record - occurred on mobile devices in the third quarter of 2017, per the Q3 2017 Global Video Index released byOoyala, a provider of software and services that simplify the complexity of producing, streaming and monetizing video. This represents the sixth consecutive quarter in which mobile […]The post More Than 60% of Video Plays Will be on Mobile by Mid-2018, Ooyala Study Finds appeared first on Adotas.

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Court Says German Intelligence Agency Can No Longer Hoard Billions Of Metadata Records

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A two-year legal battle of German intelligence agency metadata collections has ended. And the German Federal Intelligence (BND) agency has lost.

Germany’s foreign intelligence agency (BND) must not store the metadata - such as phone numbers - of international phone calls for the purpose of intelligence analysis, a court rules on Thursday.[...]Media freedom organization Reporters Without Borders filed a lawsuit in June 2015 against the BND, saying it had breached the organization’s secrecy and harmed the partners and reporters it worked with.
This is a big decision -- somewhat on par with the revamp of the Section 215 metadata program here in the US that took place following the Snowden leaks. But it might be bigger than that. BND collects over 11 billion records every year. And it shares this haul with the NSA and GCHQ.This was revealed via documents leaked to German news agency Die Zeit. The BND was grabbing metadata at a rate of 220 million records per day. This is only a small part of the BND's haul, much of which appears to be harvested from internet cables and satellite transmissions.These revelations caused some problems for the German government, which has generally been careful to keep Stasi comparisons to a minimum. The BND claimed these collections were lawful, but top government officials weren't so sure. This lawsuit appears to have settled the "metadata" question at least.The end of this legal battle bears some resemblance to Section 215 v. 2.0 here in the US. The Reuters report says the BND will no longer be able to "store" metadata records for intelligence analysis. There appears to be no restraint on collecting records, which likely means the BND will need to approach companies directly to obtain metadata. This means some semblance of targeting will be shoehorned into the BND's collection system and that metadata interception (in bulk) from internet cables is no longer an option.It's a small win but it's a good one. And I'm sure it surprised the hell out of the intelligence agency. But thanks to Ed Snowden and other leakers, bulk surveillance -- especially the kind that sweeps up domestic data -- is no longer acceptable.

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Study Of Las Vegas PD Body Cameras Shows Reductions In Complaints, Use Of Force

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We're nowhere closer to reaching a Unified Theory of Police Body Cameras, but at least we're still compiling data. So far, there's no definitive proof body cameras reduce police misconduct, but there's at least some evidence they're better than nothing at all.Early adopters showed a surprising amount of reduction in use of force by officers. A 2012 study in Rialto, California showed a 67% drop in force usage by officers wearing cameras. Since then, results have been all over the map. The largest study conducted to date -- covering the Washington DC PD's rollout of its body camera pilot program -- suggested cameras weren't reducing force usage or lowering the number of citizen complaints. A second study of the same group seemed to indicate the problem wasn't that cameras had no deterrent effect, but that officers were still very selective about camera activation -- hence the lack of improvement.Another study has been released -- this one compiled by UNLV and the Center for Naval Analyses. It shows mainly positive results from the Las Vegas PD's body camera program. (via Grits for Breakfast)

Among those wearing cameras, the study showed a 37 percent reduction in the number of officers involved in at least one use-of-force incident and a 30 percent reduction in the number of officers with at least one complaint filed against them.The study estimated the cameras could save Metro $4 million a year as the result of fewer complaints and the quicker resolution of complaints.
Not only were complaints reduced, but officers with cameras did more policework.
Officers wearing the cameras issued 6.8 percent more citations and made 5.2 percent more arrests than officers without cameras, the study found.
Contrary to officers' fears cameras would be used by supervisors to play misconduct "gotcha," the cameras were instrumental in clearing officers of misconduct allegations far more frequently. From the report [PDF]:
Officers reported few problems regarding civilian reactions to BWCs, little change in their own behavior while wearing BWCs, and few issues regarding how non-camera-wearing officers reacted to BWCs. On balance, officers mentioned more positives than negatives regarding BWCs, noting their satisfaction with how BWCs protected them when civilians filed complaints and allowed them to introduce their own narratives as they approached a call for service or a potentially serious incident.
According to the study, camera footage has been used to close more than 500 internal investigations, with 462 of those exonerating the officer. The remaining cases resulted in disciplinary actions, including the termination of one officer. While it still seems odd such a high percentage of officers would be cleared, the fact remains officers' fears of managerial gotcha tactics are unfounded.The addition of body cameras has another positive effect, one that goes straight to the bottom line. With footage available for use in internal investigations, the cameras' initial cost is far outweighed by net savings for taxpayers. From the study summary [PDF]:
When considering the investigator’s modified hourly wage and hours spent investigating a complaint of misconduct, considerable cost savings are realized when BWC video is available. Rather than a combined 91 hours of investigative time costing $6,776 without BWCs, the estimate is slightly over 7 hours of investigative time costing $554, for a difference of over $6,200 per complaint of misconduct.
This initial study should be followed by others if we're going to able to glean any info about the long-term effects of body camera deployment. As officers become used to carrying around a semi-neutral witness to every interaction with the public, there's a chance the tools of accountability will become tools of officer exoneration only. Cameras are in use in dozens of law enforcement agencies, but footage often remains exempt from public disclosure, shielding officers from outside accountability. On top of that, footage seems most likely to go "missing" when officers appear to have engaged in misconduct. Without strict disciplinary measures, the problem with "missing" recordings will only get worse.

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Comcast's Push For A Shitty New Net Neutrality Law Begins In Earnest

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As we've been noting for a while, the FCC's 3-2 vote to kill net neutrality is really only the beginning of a new chapter in the fight for a healthy, competitive internet. The rules won't truly be repealed until 60 days after they hit the federal register in January. And even then, the repeal will have to survive a multi-pronged legal assault against the FCC, accusing it of ignoring the public interest, ignoring feedback from countless experts, and turning a blind eye to all of the procedural oddities that occurred during its proceeding (like, oh, the fact that only dead and artificial people appear to support what the FCC is up to).ISPs know that this legal fight faces a steep uphill battle with all of the procedural missteps at the FCC. That's why we've been warning for a while that ISPs (and their army of think tankers, sock puppets, consultants, and other allies) will soon begin pushing hard for a new net neutrality law. One that professes to "put this whole debate to bed," but contains so many loopholes as to be useless. The real purpose of such a law? To codify federal net neutrality apathy into law, and to prevent the FCC from simply passing tougher rules down the road.Just like clockwork, Comcast responded to last week's net neutrality killing vote with a blog post by top Comcast lobbyist David Cohen (the company, for the record, hates it when you call Cohen a lobbyist) calling for a new, Comcast-approved law. Cohen declares that it's "time for Congress to act and permanently preserve the internet," while repeatedly and comically trying to downplay Comcast's own role in the chaos we're currently witnessing:

"Unfortunately, there are others who want to continue engaging in a never ending game of back and forth, creating unnecessary anxiety and contributing to an unneeded level of hysteria. Some will undoubtedly continue threatening litigation that does nothing to protect consumers or freedom of the Internet."
Funny, since the one doing the litigating is Comcast, which sued to overturn both the FCC's 2010 and 2015 net neutrality protections. Regardless, Cohen would have you believe that the only path forward at this point is the creation of a new net neutrality law. One, Cohen knows very well would be quite literally written by Comcast thanks to our campaign-cash-slathered Congress. Such a law would, Comcast argues, end the "regulatory ping pong" that Comcast itself is perpetuating:
"It's now time for all of us to take advantage of this moment in time and end the cycle of regulatory ping pong we've been trapped in for over a decade and put this issue to rest once and for all. And there's a simple way to do this -- we really must have bipartisan congressional legislation to permanently preserve and solidify net neutrality protections for consumers and to provide ongoing certainty to ISPs and edge providers alike."
So what would a Comcast-approved net neutrality law look like? Comcast has repeatedly made it clear that it supports a ban on the blatant throttling or blocking of websites and services by ISPs, since that's not something ISPs were interested in doing anyway. ISPs long ago realized there's an ocean of more subtle ways to abuse a lack of competition in the broadband market. For example. why block Netflix outright (and risk a massive PR backlash) when you can impose arbitrary and unnecessary usage caps and overage fees that only apply to Netflix, not Comcast's own content?So, expect any Comcast-approved law to outlaw all of the things large ISPs never intended to do, while ignoring all of the more subtle areas that the net neutrality fight has evolved to cover. For example, a Comcast-approved law won't even mention caps or zero rating. Nor will it address the shenanigans we've seen on the interconnection front. But any Comcast-approved law will include ample loopholes allowing Comcast to do pretty much whatever it likes provided it ambiguously suggests it's for the health of the network (a major problem in the FCC's flimsy 2010 rules).Since he played a starring role the last time ISPs tried this, expect Senator John Thune to play a starring role in this effort. You should also expect an ocean of editorials from ISP-funded policy folk (where financial conflicts of interest aren't disclosed) to start popping up on websites and newspapers nationwide insisting a net neutrality law is the only path forward and that anybody that opposes this push simply isn't being reasonable.And while many lawmakers and media folk will be tempted to support this push arguing it's better than no rules at all that's not really true. If flimsy and poorly-written, this new Comcast-approved legislation could simply codify federal net neutrality apathy into law, while banning any future FCCs' or Congress' (say, a theoretical one not quite so beholden to ISP cash) from passing real protections down the line. The best bet at stopping this net neutrality repeal currently rests with the courts. Should that fail we can revisit this conversation, but only if voters are able to drive ISP-loyal marionettes out of office.

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Five Below, Trendy Retailer, Sues 10 Below, Ice Cream Seller, For Trademark Infringement

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When it comes to frivolous trademark lawsuits, you think you've seen it all, but then one comes along that makes you throw up your hands. Here at Techdirt, we understand that the average individual might not know some of the broader nuances of trademark law, such as the focus on customer confusion, or the requirement, in most cases, that the parties reside within the same industry or market. But that understanding goes out the window when we're talking about a lawsuit brought by a large corporation that, like, totally has lawyers and stuff. I use that tone and vernacular specifically as preparation for stating that Five Below, the large retailer with trendy products for less than five bucks, has sued 10 Below, a small chain of ice cream shops.And before you ask, yes, pretty much all of the media covering this is actually pointing out how divergent the markets and industries of these two companies is, often in spectacularly funny fashion.

One store sells remote-controlled poop, mini-plasma balls, and Mongolian Faux Fur Blankets, all for $5 or less. The other store sells that trendy rolled ice cream.But Five Below (currently 600 locations) says that 10 Below (five locations, only one in Philly) is violating the discount store's trademarks, and the company has told the rolled ice cream shop to find a new name.
For anyone who has watched trademark proceedings in the past, this is something of a laugher. Claiming that anybody might be confused between the type of things that Five Below sells and an ice cream shop is going to be something of a tough sell in any courtroom. And, once you understand the reason for each company's name, you will quickly realize that this is not the case of 10 Below trying to trade on Five Below's good name. Five Below sells things for five dollars or less, where 10 Below refers to the way the ice cream shops make their product, including dropping the temperature to minus-ten degrees. There's just not synergy between the names here at all. In the filing (below), Five Below makes much of its sales of candy and ice cream at its stores, except that I can't find ice cream listed in this section on its website and the candy referenced is merely other brands being sold there.And IP attorneys looking through all of this seem to agree.
"It seems to me that you have a very large company pounding its chest and trying to intimidate a smaller company," says Flaster Greenberg intellectual property attorney Jordan LaVine, whose clients include Martha Stewart and The New York Times. "This is a classic example of trademark bullying. It's an unfortunate situation for a smaller company that might not have the money to defend itself."Plus, 10 Below first opened in New York City in 2015, when Five Below already had a presence there, but Five Below didn't take them to court until more than two years later."They should have taken action a lot sooner than the end of 2017," says LaVine.
In other words, this is pretty much ticking off every checkbox for how to lose a trademark bullying lawsuit. It's enough to wonder whether all of this came down to 10 Below opening a location near Five Below's company HQ in Philadelphia and this is all coming from executives that noticed and went on an ego trip. Regardless, this will hopefully be quickly laughed out of court.

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New Forrester Study Reveals Enterprise Marketers Significantly Exposed to Mobile Fraud

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In a recent commissioned study conducted byForrester Consultingon behalf of AppsFlyer this November, marketers weresurveyed about their top challenges and goals for mobile marketingin the upcoming year. In this survey, Forrester polled 250 marketers whose companies spend at least $1 million a month on digital advertising. The survey also dove deep into the issue of […]The post New Forrester Study Reveals Enterprise Marketers Significantly Exposed to Mobile Fraud appeared first on Adotas.

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SRAX Publishes White Paper Outlining Details of Blockchain Technology BIG Platform

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SRAX plans to be the first public company to deliver a transparent data management and distribution system through a secure blockchain platform, token reward, and open source governance structure. Social Reality, Inc.has released detailed development plans of the company’s blockchain identification graph technology - BIG Platform.The 55-page BIG Platform White Paper outlines the plan for […]The post SRAX Publishes White Paper Outlining Details of Blockchain Technology BIG Platform appeared first on Adotas.

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

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Five Years AgoThis week in 2012, more and more people were coming out against the efforts of the ITU's WCIT, including both Tim Berners-Lee joining the already-active Vint Cerf and Mozilla expressing its concerns. Though the White House denied that it was prepared to dump the ITU, it was firm in refusing to support a bad treaty. The ITU itself was doing a really bad job of pretending to respond to people's complaints, and even though a whole bunch of countries ended up refusing to sign the treaty, the boss decided to go ahead and declare victory anyway.Ten Years AgoThis week in 2007, people were digging in to the recently introduced PRO-IP bill, with the DOJ coming out against the legislation, even as Hollywood's favorite lawmaker complained it wasn't strong enough, and the inimitable William Patry explaining the many problems with the bill. North of the border, Canada was stalling out in its efforts to introduce its own version of the DMCA as public opposition continued to grow rapidly. And, in a piece of news that is especially amusing given recent events, people were just realizing that you could pretty much submit anything to the FCC's public comment system, including fake comedy entries claiming to be from Leon Trotsky, George W. Bush and... Donald Trump.Fifteen Years AgoThis week in 2002, there was a lot of uncertainty in the world of internet distribution and media distribution in general. We believed predictions that the DVD would be the last physical format, perhaps underestimating Hollywood's aggression on that front — like the fact that device makers appeared poised to give in to demands to put copy protection in everything. The Balkanization of the web into many walled gardens was becoming really concerning (though of course it was still silly for folks like the New York Times to be predicting "the end of free content"), but some folks like Tim O'Reilly were at least able to see the bigger picture on issues like piracy. And while it's easy to forget today that it wasn't always that easy or cheap to get yourself a web host for your small business (let alone personal) needs, in 2002 it was a big deal that a major player like Yahoo announced it would be getting into the small business hosting game.

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New Documents And Testimony Shows Officers Lied About Their Role In An Arrested Teen's Death

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Earlier this year, we covered the horrific story of the death of a 5'4" 110-lb. 18-year-old at the hands of the Mesquite (TX) police department. The teen, suffering from a bad acid trip, was tased multiple times, threatened with death by an officer, and left to die in a jail cell with little more than a cursory nod towards his health and wellbeing.Graham Dyer's parents were unable to obtain any details about their son's death from the Mesquite PD. The department refused to turn over records, pointing to state law allowing it to withhold records on arrested suspects who never faced criminal charges. This exemption may have made sense to lawmakers at the point it was passed. But in-custody deaths are inherently questionable. This exemption does little more than give law enforcement agencies everything they need to cover up misconduct.Fortunately, Dyer's parents didn't stop there. They asked the FBI to open an investigation into their son's death. The FBI closed its investigation without forwarding it to the DOJ for charges but the investigation did serve at least one purpose: it allowed Dyer's parents to finally obtain records related to their son's last night on earth.What they found was horrifying. Video showed their son thrashing around in the back of a police car, incoherent and completely unrestrained. Captured audio captured an officer threatening to kill their son if he didn't calm down. The in-car video also showed the same officer repeatedly tasing their son in the testicles. (The officer claims he was aiming for the "inner thigh" but Dyer kept moving. Considering a taser is effective almost anywhere it's placed, why place it so close to a person's testicles unless you're hoping to "accidentally" tase that part of the arrestee?) They also saw their son dragged from the police car at the jail sally port, laying on the floor with an officer's foot on his head.Without these records from the FBI, the Dyers would never have known what led to their son's death. The Mesquite PD's refusal to turn over records also served its own purpose: it ran the clock on the statute of limitations. The state can no longer bring criminal charges against the officers -- despite the DA saying there's evidence of criminal behavior.But that can't prevent the officers from being sued. The Dyers have taken the Mesquite PD to court and now, at long last, the PD is being forced to hand over the documents it refused to give to the teen's parents. What's in these documents -- and the officers' testimony -- only adds to the portrait of these officers' depraved indifference.To begin with, the officers who arrested Dyer showed almost zero concern for his wellbeing. Not once did they consider bringing the teen to a nearby hospital. Nor was any sort of health check given when Dyer was turned over to the local jail. But the arresting officers had every reason to believe Dyer might be seriously injured.

While being loaded into a cruiser, Dyer banged his head several times against the car. During the first mile on the drive to the city jail, he slammed his head 19 times against the side door, back seat or metal cage separating the car’s front and back.Halfway to the jail, in what they have described as an attempt to calm him down, the officers pulled to the side of the road. One used his Taser, shocking Dyer in his testicles.Some police departments call for a medical evaluation after Taser use. Instead of diverting to the emergency room a half-mile away, however, the officers resumed driving. No additional restraints were applied, and during the second half of the trip Dyer hit his head against the car’s interior 27 more times.At the jail, officers unloaded the handcuffed and leg-tied Dyer onto the sally-port floor outside the jail. There, they watched him bang his head again on the concrete pad.
According to their own testimony, none of the officers informed jail staff about possible head trauma suffered by Dyer. Nor did anyone ask for medical care until after Dyer had been laying motionless in a jail cell for two hours.On top of that, the officers' stories -- backed by apparently falsified reports -- are falling apart.
The Dyers have noted that, at the least, the depositions given by the five police officers who responded to the middle school on Aug. 13, 2013, have challenged the official version of Graham’s arrest that police initially presented to them.In their pleadings, police described Graham and his friends as belligerent and combative. But in individual depositions, the officers conceded the teens were mostly cooperative. Graham, for example, was kept on the ground for more than 10 minutes with modest effort, they said.[...]In their original incident report, the Mesquite officers had written: “Dyer could not calm down and walk to the patrol unit, therefore officers had to carry Dyer to the patrol unit.” Yet the video depicts him walking to the cruiser.At the jail, the police report again described Graham as combative: “It took multiple officers and detention officers to remove Dyer from the back seat of the patrol unit, escort him inside the jail, and placed him in a restraint chair and padded cell for his safety.” The video, however, shows him lying mostly motionless on the ground.
It's a compound lie. Dyer was never placed in a restraint chair. He laid on the concrete floor until officers booked him and left him in a cell to finish dying.Even though the statute of limitations prevents the DA from bringing charges against the officers, it doesn't prevent the Mesquite PD from handing out its own discipline. But it has done nothing. All officers involved in Dyer's death remain employed.Fortunately, the FBI's investigation has given the Dyers the documentation they need to pursue legal action against the Mesquite PD. But that may be the only good to have come out of this. A bill brought by a state rep to close the exemption the Mesquite PD used to wait out the statute of limitations died on the House floor. And in the end, it won't be the involved officers paying for the teen's death, it will be the state's taxpayers.

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Cop Shuts Off Dashcam During Drug Dog Sniff. Appeals Court: This Is Fine.

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If cops have the ability and opportunity to record a traffic stop, should it be held against them when they don't? Arguments have been made to that effect for a few years now. Dashcams have been in wide use for at least a couple of decades. Law enforcement agencies all over the US are issuing body cameras to officers. But it seems whenever something questionable happens, footage is nowhere to be found, or what there is of it is almost useless.Unfortunately, years of discussion by (mainly) defense lawyers hasn't resulted in policy changes. Worse, it hasn't budged the judicial needle much. In rare cases, the absence of footage is used against officers, but in those cases, it mainly seems to be because efforts were made to destroy footage already captured.In this case [PDF] reviewed by the Sixth Circuit Appeals Court, no effort was made post facto to destroy footage. Instead, an officer proactively prevented footage from being created by disabling the dashcam recording the traffic stop. (via FourthAmendment.com)The defendant made a few different arguments for suppression of evidence obtained via a search of his vehicle. Citing Rodriguez, he claimed the wait for the K9 unit unnecessarily prolonged the traffic stop. The appeals court disagreed, saying its interpretation of the Supreme Court's decision gives officers about 20 minutes to freely violate citizens' rights.

Defendant next argues that the search violated the Fourth Amendment because the officers extended the stop beyond the time required to investigate the traffic violation in order to conduct a canine sniff. The district court determined that the delay was not excessive, relying upon United States v. Collazo, 818 F.3d 247, 257-58 (6th Cir. 2016), in which we countenanced a traffic stop that exceeded twenty-one minutes based on the totality of the circumstances. Here, the district court observed that the canine unit appeared within ten minutes of the stop, the car’s paperwork, which was a rental, did not include any of the passengers as authorized drivers, and the GPS information indicated that defendant had been out-of-state, which was prohibited by the terms of his parole. While these factors might individually have an innocent explanation, the court found that “from a law enforcement perspective all that adds up . . . to a reasonable suspicion for an extension, which . . . wasn’t very long anyway.”
This completely ignores Supreme Court precedent, which made it clear it wasn't the length of the rights violation, but rather the violation itself. Once the purpose of the traffic stop has been achieved, any fishing expeditions by law enforcement past that point are Constitutional violations, whether it's five minutes, ten minutes, or a half hour. A holding like this makes it that much easier for officers to slow roll traffic stops so they can run a drug dog around a car they stopped for a lane change violation. That's what appears to have happened here and both courts (district, appellate) said this is fine.
Trooper Boven returned to his cruiser after collecting everyone’s identification and ran the information through two law enforcement databases to check for outstanding warrants and to confirm that Mercedes Hunt was a valid driver. Defendant contends that Trooper Boven entered the information slowly in order to prolong the traffic stop until the canine unit arrived, which it did shortly after he finished processing the licenses.
In this case, there was plenty to be reasonably suspicious about, hence the call for the K9 unit. But once the K9 unit arrived something strange happened. The officer turned off his dashcam, ostensibly to "protect" the confidentiality of an informant.
Once Deputy Osbun arrived, Trooper Boven explained the situation to him to “keep him in the loop” and for officer safety. He also turned off the dashboard camera. According to his testimony, he did so to prevent information about the confidential informant from coming to light in case the stop revealed no drugs. After speaking with Deputy Osbun, however, Trooper Boven apparently forgot to restart the dashboard camera and, as a result, there is no footage of the search of the car. In total, twenty minutes elapsed before the camera was restarted.
The defendant challenged this, stating the missing footage prevented him from directly challenging the supposed probable cause generated by the dog's nose. And there were sufficient reasons on record to warrant doing so.
Defendant contends that the lack of a visual record of the search undermines his ability to challenge the legitimacy of the canine alert to narcotics. First, there are no records maintained of the dog’s prior performance in the field. Second, Deputy Osbun recalled up to six false alerts at the suppression hearing, which defendant contends is a significant number given that dogs are deployed only when the presence of drugs is suspected. Third, the lack of dashboard camera footage makes it nearly impossible for defendant to challenge whether Deputy Osbun’s interaction with the dog may have influenced its subsequent alert. Finally, defendant characterizes the missing video footage as “spoliation” for which the government must be held responsible.
The district court, however, didn't view this as spoliation of evidence. For the most part, the legal argument is sound. You can't ruin evidence that doesn't exist. The problem is that if you can prevent such evidence from ever existing, you can probably get your questionable actions excused by the courts.The Appeals Court affirms the lower court's decision. While the totality of the circumstances makes this a less-than-ideal test case, the fact remains too much slack is being cut by the courts. The camera could have been left on. Any concerns the trooper had about his informant's confidentiality could have been addressed by the department. They could have been presented to the court prior to turning over the footage in case redactions were warranted. But shutting off a camera during a stop -- especially a pretextual stop where an officer deliberately slowed down his ticket-writing duties to bring a drug dog to the scene -- should be treated as a failure to preserve evidence by law enforcement.In this case, the Sixth Circuit does double damage: it ignores the issues raised by cops disabling cameras during traffic stops, and gives officers in its jurisdiction 20 minutes in which to violate rights (and the Supreme Court's Rodriguez decision) without fear of reprisal.

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Affluent Americans' Holiday Wish List

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Hitwise, a global marketing intelligence company, created an audience of Americans with household incomes of $250,000 or more, putting them in the 2% of American earners, according to theWall Street Journal. Hitwise then looked at their online shopping searches conducted between November 19 through December 9, 2017 and compared them to those of the average […]The post Affluent Americans’ Holiday Wish List appeared first on Adotas.

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AdTrader Launches Potential Class Action Suit Against Google for Failing to Repay Money Collected for Fraudulent or Invalid Traffic

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AdTrader, an online ad agency, has accused Google of failing to repay monies collected for invalid traffic, either made invalid through fraud or mistakes.Ina legal brief filed in a US district court in San Jose, CA, this week, AdTrader asserts that Google failed to refund almost $500,000 paid to place ads on websites that drove […]The post AdTrader Launches Potential Class Action Suit Against Google for Failing to Repay Money Collected for Fraudulent or Invalid Traffic appeared first on Adotas.

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NBA2K18 Is Removing User Made Content From The Game Over IP Infringement, Refuses Refunds To Anyone Who Bought It

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One of the tensions in the digital world that I find fascinating is what a content or platform creator must feel when deciding just how much freedom it wants to give to its fans. The benefits of giving fans the freedom to tinker is especially noticeable in the video game space, where long traditions exist for modding and making custom user-created content. Most game publishers' embrace of this sort of thing ranges from a wink and a nod to actively fostering the modding community.The NBA2K series, on the other hand, has actually incorporated custom made content into the game's platform, allowing players to create and share custom clothing and accessory designs. The latest iteration of the game is no different, although this version of the game is notably allowing this custom content to be sold for the same "virtual currency" (VC) used everywhere else in the game. VC can be earned through play, or bought with real world money. All of this was going along swimmingly until 2K discovered, shockingly, that its custom content store was full of designs that pretty clearly infringed on all kinds of trademarks and other intellectual property.

In NBA 2K18, players can create custom shirts in myCareer mode, which can then be voted on by other players. These are purely cosmetic items that will show up on a player character in the myPark portion of the game, where players play 3 on 3 street basketball. If the shirt reaches 100 votes, the player who created it can sell it for the game’s virtual currency, VC. Shirts initially went for 3,500 VC, but last month 2K made all custom shirts free. You can buy 15,000 VC for five dollars. The problem is a lot of players are making shirts with copyrighted logos or mimicking real brands.Players on Reddit and YouTube are saying that both shirts they’ve created and shirts they have purchased are being removed from their inventories. One player who reached out to Kotaku was able to get a shirt refunded for his shirts, but said that he only got 10,000 VC, the price of about three shirts, when he says he paid for 10 shirts total at 3,500 VC each.
That person's account appears to be shared by others on Twitter and elsewhere. So, 2K created a platform for custom made content, allowed its customers to buy that content, and then nixed the content without offering a full refund? That's not a good look from a publisher.What's also missing from the accounts on Reddit of those that made this infringing custom content is any sort of notice from 2K about their work being taken down, or the reason behind the takedowns. It appears that instead, the publisher just disappeared the content, sending it into the void. To be clear, the company can police its game in this manner, but it could have given custom content creators notice of a copyright claim at the very least.So, by playing copyright cops, 2K has managed to piss off both the buyers and sellers of user-made game content. Much of that content is indeed plainly infringing, but refusing to make good with the customers that bought the content on 2K's platform, using 2K's currency, to be played in 2K's game, is a horrible look.

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Suburban Express, Which Sued Over Online Reviews Claiming It Had Racist Drivers, Cheerfully Sends Out Racist Advertisement

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Remember Suburban Express? It's been a few years since we've had the pleasure of writing about the company that buses students between the University of Illinois and Chicago, or its lawsuit happy owner, Dennis Toeppen. Toeppen and his company have engaged in some fairly anti-consumer behaviors, most of which have to do with hefty three-figure fines unilaterally assessed to passengers for the most minor of infractions, like showing up for the wrong bus or on the wrong day. But some of the online critics also brought up issues with drivers for the company who treated foreign exchange students like trash in front of other passengers.Now, one of Toeppen's excuses for filing lawsuits against those specific critics is that this foreign exchange student was apologized to, though the company has never said from who or at what time that apology was issued. One would think such an apology was an indication of regret over those racist comments, had such an apology ever actually been issued. Judging by a recent advertisement Suburban Express sent out for its Christmas bus schedule, it seems like the drivers take their cues from the company at large.

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Companies generally don't advertise that students will ride buses with: "passengers like you. You won't feel like you're in China when you're on our buses." Why? Well, because catering to any asshole that can't stand being on a bus with someone who looks a bit different from them isn't the MO for most people with a soul. One does wonder whether any lawsuits over the reviews accusing the company of racism would have survived all this being entered into evidence.But, as per usual, Suburban Express was quick with an apology. And it's just dripping with remorse.
When called out for a racist advertisement, companies don't generally apologize for that by insisting that a major public university is terribly run because it admits a large number of foreign students, nor does it call that "selling out." For the record, the actual percentage of Chinese-born students at U of I is much lower, not to mention that the claim that higher-paying foreign exchange students somehow are a burden on Illinois residents seems like a self-defeating argument.Regardless, the Illinois Attorney General has decided to get involved, opening an investigation into the company to determine if Suburban Express violated the Illinois Human Rights Act. And, whaddya know, shortly after Lisa Madigan got involved, the company apologized again.
No need to read the entire apology. It's actually apologetic, both for the initial advertisement and the first apology. Apologizing for an apology isn't generally a good look, but the reputation Suburban Express has built for itself practically begs you to read this supposedly sincere apology in a tone of sarcasm, because nothing in the history of the company suggests that we should take this as anything other than the shivering, whimpering attempt to avoid the scrutiny of a state attorney general known as a bulldog.Best of luck to Suburban Express in getting itself out of this one, and even more luck to any foreign student finding herself in need of a ride to Champaign-Urbana.

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Comic Con Verdict: Salt Lake Comic Con Loses The Battle, Now Seeks To Win The War

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As you will all know, we've been covering the trademark case between San Diego Comic-Con and Salt Lake Comic Con pretty much since this whole dispute began some three years ago. From the outset, this whole thing seemed wholly unreasonable. Whatever trademarks SDCC managed to get past the USPTO, there are roughly a zillion comic cons across the country, few of which have any licensing arrangement with SDCC, meaning the plaintiff in this case hasn't bothered to enforce its trademarks for some time. That generally leads to the mark being abandoned, or considered generic. Either should have kept SLCC in the clear. Add to all that the fact that this is arguably a trademark that should never have been granted on the grounds that it's almost purely descriptive -- a "comic con" is a comic convention -- and many observers thought this was going to be an easy win for SLCC in court, including this writer.Well, the jury has come back, and it managed to rule for San Diego Comic-Con instead.

In a case that could potentially complicate the lives of comic convention organizers the country over, a federal jury has ruled in San Diego Comic-Con’s favor in a suit brought against Salt Lake Comic Con for violating copyright law with their use of the term “comic con.” The verdict, which was arrived at on Friday afternoon, found SDCC’s trademark is valid, and that Salt Lake Comic Con used it without permission, according to a report by Fox13 in Salt Lake City.
That sound you hear in the distance is a hundred other comic convention organizers slapping their own foreheads. With this ruling, which SLCC may appeal, comic cons all over the place may feel more pressure to give in to any licensing demands from SDCC. Although, perhaps those other cons just need to run out the clock -- more on that in a minute.I said SLCC may appeal this ruling for two reasons. First, the damages the jury awarded are almost laughably small and nowhere near what SDCC was asking for.
San Diego Comic-Con initially sought up to $12 million in damages from Dan Farr and Bryan Brandenburg, Salt Lake Comic Con’s organizers, but was rewarded only $20,000. According to the ruling, the violation was not a “willful infringement” of the copyright.“It felt like it was a draw,” Brandenburg told Fox13. He told the news organization that he was currently considering whether or not to appeal. Additionally, Salt Lake Comic Con has proceedings underway with the US trademark office to officially cancel San Diego Comic-Con’s trademark.
And that last bit is the other reason it may not appeal and was my reference above to other cons simply running out the clock. The real misstep here might be in San Diego Comic-Con opening up this can of worms by bullying other cons over its abandoned, generic, descriptive trademark, with the potential end result being one of its victims getting that trademark cancelled entirely. Were I any other comic con in some other city in America, I would be trying to help SLCC getting this mark cancelled in any way I could. It would be a poetic end, to be sure, no matter what one jury thought of that actual case of trademark infringement.So, more to come, I am sure.

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What Is Video Ad FraudAnd Why Does It Matter?

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There's been a lot of talk about video ad fraud since this Buzzfeed story back in October, but there seems to still be a lot of confusion about what actually constitutes video ad fraud and why it really matters in the grand scheme of things. So what if some other company gets ripped off by […]The post What Is Video Ad FraudAnd Why Does It Matter? appeared first on Adotas.

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If You Are Going To Worry About Bitcoin's Energy Consumption, Worry About Server Farms Too -- For More Than One Reason

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Bitcoin has been much in the public eye recently. Most of the attention has been focused on the extraordinary rise in its price as measured against traditional currencies. But another aspect that has been exercising people is its energy usage, as a post on the Digiconimist site explains:

The continuous block mining cycle incentivizes people all over the world to mine Bitcoin. As mining can provide a solid stream of revenue, people are very willing to run power-hungry machines to get a piece of it. Over the years this has caused the total energy consumption of the Bitcoin network to grow to epic proportions, as the price of the currency reached new highs. The entire Bitcoin network now consumes more energy than a number of countries, based on a report published by the International Energy Agency.
Currently, the country closest to Bitcoin in terms of electricity consumption, expected to be around 32 terawatt-hours this year, is Denmark. Some are predicting that by 2020, the Bitcoin system will use as much electricity as the entire world does today. Others aren't so sure. Here's Ars Technica:
When Bitcoin launched in 2009, each block came with a 50-bitcoin reward for the miner who created it. This figure is scheduled to fall by half every four years. It fell to 25 bitcoins in 2012 and 12.5 bitcoins in 2016. The reward will fall again to 6.25 bitcoins in 2020. When the mining industry's revenue falls by half, its energy consumption should fall by the same proportion, since, if it didn't fall, mining would become an unprofitable activity.
In any case, a new article in the Guardian reminds us that Bitcoin is just one part of a much larger energy consumption problem that the digital world needs to address:
The communications industry could use 20% of all the world's electricity by 2025, hampering attempts to meet climate change targets and straining grids as demand by power-hungry server farms storing digital data from billions of smartphones, tablets and internet-connected devices grows exponentially.
It doesn't really matter which of Bitcoin and the server farms will consume the most power in years to come -- clearly both will be large, and both will require efforts to increase the availability of low-cost renewable energy so as to minimize their environmental damage. But there's a fundamental way in which the two sectors differ.Bitcoin is burning up the tera-watts to carry out meaningless calculations in order to win the prize of the next cryptocurrency block. Server farms need power in order to store detailed records of everything we do online, or with our connected devices, alongside masses of Internet of Things data streams. Whatever it is doing, Bitcoin is certainly not threatening our privacy, and arguably is enhancing it. But loss of privacy is exactly the risk arising from the use of massive server farms around the world.The main reason why they are being built is to hold unprecedented quantities of personal data that can be analyzed and the results sold in some way -- whether for advertising, or for other purposes. We constantly see stories about sensitive information being leaked on a massive scale, or legally acquired and then used in troubling ways. Alongside worthy concerns about the way that Bitcoin mining can degrade our physical world, we should worry more about how data mining can degrade our more personal space.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Amazon Advertising Biz: Will It Overtake Facebook or Google?

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Adotas talks with Michael Connolly (pictured left), CEO and co-founder at Sonobi,about the impact that Amazon is having on digital advertising as its Amazon Media Group goes up against Facebook and Google. Q: Why are advertisers now starting to pay attention (ad budgets, dedicated resources, etc.) to Amazon? A: When Amazon has its eyes set […]The post Amazon Advertising Biz: Will It Overtake Facebook or Google? appeared first on Adotas.

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Online vs In-Store: The Changing World of Retail

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Hospitality Industry Group Pushes Back On Portland's Attempt To Trademark Bully A Local Brewery

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Just a quick update from Portland, Oregon, folks. After the city engaged in some truly impish behavior by trying to bully aside a local brewery that has a trademark on Portland's iconic jumping-deer sign, there have been no further negotiations on a resolution between the two sides. See, the city of Portland really wants to license the trademark for the image of the sign to national and international macrobrewers, whereas Old Town Brewing just wants to have the same trademark rights it has legally held for that image in the alcohol industries since 2012. You might have thought that a refusal of the mark by the USPTO would have ended this story. You would be wrong.Apparently, the city has filed multiple trademark applications in the hopes that something, anything, will get approved. This is according to a Portland hospitality industry group, which has taken notice of the city's actions and is firing off angry letters to its own mayor as a result.

The Old Town Hospitality Group, which counts 25-plus restaurants and taverns, said in a letter to Portland Mayor Ted Wheeler that the city is "wasting taxpayer money." The issue relates to a trademark held by Old Town Brewing on the "leaping deer" logo, which adorns the "Portland Oregon" sign above the Burnside Bridge.The Old Town Hospitality Group called on the city "to stop filing trademark application after trademark application for an image that the U.S. Patent and Trademark Office has repeatedly determined is confusing. Tell the city’s attorneys that it is wrong and an abuse of power to attempt to bury Old Town Pizza & Brewing in legal fees."
It's worth repeating that Old Town Brewing is in Portland. Its patrons, and likely its owners, are constituents of the very city actively trying to pretend its trademark doesn't exist while burying the tax-paying business in legal fees for no legitimate reason. Simply wanting really badly to license a trademark it doesn't own doesn't justify the city's actions. And, now that it's not just the brewery pushing back, but an industry group of member companies along with it, it might just be a matter of time before enough of the regular public gets wind of this and City Hall has a very real problem on its hands.Or it could stop harrassing a local business, I suppose, but that seems like an awful lot to ask.

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It Was Twenty(-odd) Years Ago Today When The Internet Looked Much Different Than It Does Now

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Last week, Mike and I were at a conference celebrating the 20th anniversary of the Supreme Court decision in Reno v. ACLU, a seminal case that declared that the First Amendment applied online. What makes the case so worth a conference celebrating it is not just what it meant as a legal matter - it's a significant step forward in First Amendment jurisprudence - but also what it meant as a practical matter. This decision was hugely important in allowing the internet to develop into what it is today, and that evolution may not be something we adequately appreciate. It's easy to forget and pretend the internet we know today was always a ubiquitous presence, but that wasn't always so, and it wasn't so back then. Indeed, it's quite striking just how much has changed in just two decades.So this seemed like a good occasion to look back at how things were then. The attached paper is a re-publication of the honors thesis I wrote in 1996 as a senior at the University of California at Berkeley. As the title indicates, it was designed to study internet adoption among my fellow students, who had not yet all started using it. Even those who had were largely dependent on the University to provide them their access, and that access had only recently started to be offered on any significant a campus-wide basis. And not all of the people who had started using the internet found it to be something their lives necessarily needed. (For instance, when asked if they would continue to use the internet after the University no longer provided their access, a notable number of people said no.) This study tried to look at what influences or reasons the decision to use, or not use, the internet pivoted upon.I do of course have some pause, now a few decades further into my career, calling attention to work I did as a stressed-out undergraduate. However, I still decided to dig it up and publish it, because there aren't many snapshots documenting internet usage from that time. And that's a problem, because it's important to understand how the internet transitioned from being an esoteric technology used only by some into a much more pervasive one seemingly used by nearly everyone, and why that change happened, especially if we want to understand how it will continue to change, and how we might want to shape that change. All too often it seems tech policy is made with too little serious consideration of the sociology behind how people use the internet - the human decisions internet usage represents - and it really needs to be part of the conversation more. Hopefully studies like this one can help with that.

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Media Rating Council Issues LandmarkDigital Audience-Based Measurement Standards

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The Media Rating Council (MRC) has released new standards for digital audience-based measurement.TheDigital Audience-Based Measurement Standardsbuild on the MRC's prior work on viewable impression measurement and invalid traffic filtration requirements and spell out recommended practices for the collection and processing of information used in the assignment of audience characteristics to impression-level data. Its release sets […]The post Media Rating Council Issues LandmarkDigital Audience-Based Measurement Standards appeared first on Adotas.

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4 Goals for Mobile App Performance Marketers in 2018

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According tocomScore, consumers spend nearly half of all time spent interacting with digital media in apps on their mobile devices. It's boom time for mobile app marketers, and many are attracting sizeable investments from VCs or angel investors.But with money comes fraud, and marketers are struggling to find ways to eliminate it. At the same […]The post 4 Goals for Mobile App Performance Marketers in 2018 appeared first on Adotas.

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Why Does China Love The 'Sharing Economy'? Not Because Of Communism...

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Something strange has been happening in China. People have been going nuts about bicycles. Specifically, investors have gone crazy over startups that allow people to rent bikes for a fraction of a dollar per hour, and then leave them anywhere, rather than only at special bike stations -- what is known as "dockless" bike-sharing. And now that sector is in trouble, as Bloomberg reports:

In the space of 18 months, dockless bike-sharing has become one of the hottest investment trends in China, with the two biggest players each having raised over $1 billion in venture funds, respectively. That money has funded a revolution on the traffic-choked streets of Chinese cities, giving urbanites a low-cost, carbon-free means to get around quickly. What it hasn't produced is a viable business model. A little over a year into China's bike-sharing boom, the industry's future looks precarious.
Given the extremely low margins, that's no surprise. What is more surprising is that billions of dollars have been invested in these startups, and in similar ones based on renting out everyday objects for short periods of time, letting people pay by using smartphones to scan in QR codes. Other examples include companies offering umbrellas, basketballs, refrigerators, luxury handbags, phone chargers, and even sex dolls (that one didn't last long). An illuminating article in the New York Times has a plausible explanation for China's fascination with the so-called "sharing economy", even though it has nothing to do with real sharing:
None of China's bike-sharing companies are turning a profit yet. But even as they fight for market share, the data is the destination. "Collecting data is the first goal of the sharing economy," says William Chou, the head of Deloitte's telecoms, media and technology practice in China. Every time consumers scan the QR code on a bicycle -- or basketball, handbag, umbrella -- they provide information about habits, locations, behaviors and payment histories. That's invaluable not just to [Chinese Internet giants] Tencent and Alibaba but also to city planners seeking precise information about where to build roads, bridges and subways.
In other words, these "sharing" services are conceptually similar to Facebook or Google: they are provided (nearly) free of charge, but you pay with detailed information about what you do. In the case of Facebook and Google, it's data about your online activities; for the "sharing economy", it's about what you do in the physical world. That's highly prized by companies that want to sell something to people. In China, it's also of great interest to someone else -- the government:
what happens as this data filters into China's new social-credit system, which promises to rate every individual by her financial, social and political worth? In fact, Beijing has authorized Tencent and Alibaba to conduct social-credit pilot testing, and their bikes serve as the perfect vehicles. There are no walls of privacy. The government has the ability to access company data, good or bad, faster than you can scan a QR code.
The ability of "sharing" companies to capture, and governments to access, highly-personal data is an important issue for potential customers in the West, which currently lags behind China in the uptake of these kinds of services. However convenient some of them seem, it's worth considering whether you may be paying more than just the attractively-low fees when you use them.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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FCC Boss 'Jokes' About Being A 'Verizon Puppet' At Tone Deaf Industry Gala

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As we've well-documented, Trump's FCC is currently under fire for not only gutting net neutrality, but for giving a crash course in what regulatory capture looks like. In just a short period of time the agency has moved to protect cable's monopoly over the cable box, gut media consolidation rules exclusively for the benefit of Sinclair broadcasting, protect prison phone monoplies, weaken broadband deployment metrics, kill broadband funding for the poor, and make it easier for business broadband monopolies to hamstring competitors and keep prices absurdly high.That said, every year like clockwork, the FCC holds its "telecom prom" in Washington DC. It's traditionally an event where telecom industry executives, lobbyists, FCC staffers, consumer advocates and policy wonks all have a much-needed laugh and blow off steam. It's also a wonderful opportunity to line up to kiss the ring in the hopes of impacting future policy. Normally this sector shindig barely makes a blip on the media radar. But given the FCC's decision to continually give consumers the policy equivalent of a massive middle finger throughout 2017, this year's event took on a notably different tone.Unsurprisingly, FCC staffers clearly thought this year's event was a great opportunity to make a few jokes about Pai's reputation as a walking rubber stamp for the telecom sector. After all, a little self-deprecation and ribbing has been part of the proceeding for years. But apparently, nobody told FCC staff writers that parody, satire and other forms of humor are supposed to be notably different from the reality you're lampooning.After making numerous jokes about how he was "colluding" with industry giants like Sinclair broadcasting (you can watch a video of Pai's presentation here), Pai (a Verizon regulatory lawyer from 2001 to 2003) went so far as to present a video he made with Verizon exec Kathy Grillo. In it, Pai and Grillo engage in an adorable little skit where they collude to install Pai as a "puppet" chairman of the FCC at Verizon HQ back in 2003:

Verizon executive: "As you know, the FCC is captured by industry. But we think it's not captured enough. We want to brainwash and groom a Verizon puppet to install as FCC chairman. Think Manchurian Candidate."Ajit Pai: "That sounds awesome."Verizon executive: "I know, right? There are only two problems. First, this is going to take 14 years to incubate. We need to find someone smart, young, ambitious, but dorky enough to throw the scent off."Ajit Pai: "Hello."Verizon executive: "So you will do it?"Ajit Pai: "Absolutely. But you said there was another issue?"Verizon executive: We need to find a Republican who can win the presidency in 2016 to appoint you FCC chairman. I think our best bet is an outsider, but I have no idea who that would be. If only somebody can give us a sign.
Get it? Get it? The joke is that Pai, who used to work for Verizon, now works at the FCC to largely do Verizon's bidding, whether that's supporting the erosion of consumer broadband privacy rules or gutting net neutrality. The problem of course is that this "joke" is predominately true. If you dig back through Pai's record over the years as boss and as vanilla FCC Chairman, you'd be hard pressed to find a single time he stood up to Verizon or AT&T on any issue. That loyalty has even extended to voting down attempts to hold AT&T accountable for the outright defrauding of its own customers. Too funny!Pai of course then proceeded to make several zingers that make light of concerns that he's gutting decades old media consolidation restrictions solely to the benefit of Sinclair broadcasting:
"People ask me, 'what keeps you up at night?' and it's actually pretty easy: the thought of the FCC having to resolve a retransmission dispute between Verizon and Sinclair," Pai said. "I mean, how do you choose between a longtime love and your newfound crush?"
Oh my! A revolving door regulator making light of the fact he can't decide which giant company he should mindlessly placate is utterly hilarious! Where oh where do you get your material from?I'm sure there will be plenty of folks that try to argue that this isn't a big deal because they were just making a joke. But the destruction of net neutrality and the massive, negative impact it will have is decidedly unfunny. The FCC's refusal to help law enforcement discover who's behind the massive fraud and identity theft that occurred on the agency website is decidedly unfunny. The fact that the current FCC is the tech policy equivalent of a giant middle finger to consumers, startups, the poor and the health of the internet couldn't be any less funny. The closest it might get is absurdist.There's healthy debate and ribbing over policy and then there's what the Ajit Pai's FCC is up to: a massive, wholesale dismantling of nearly all oversight of one of the least competitive and least liked duopolies in American industry. Followed by petty gloating and Orwellian missives about how giving a blanket policy handout to Comcast somehow restores internet freedom. We really haven't seen public anger at tech policy on this scale since SOPA, and that anger is likely to triple once the real-world impact of these protectionist policies begin to be truly felt over the next few years.As we noted when the FCC tried to hide its plan behind the Thanksgiving holiday, these folks appear to have zero awareness of the massive backlash these extremist policies are fermenting (especially among Millennial voters). So while it's kind of adorable the FCC thinks regulatory capture and corruption are such a fucking hoot, we'll have to see if folks like Pai are still laughing in a few years when their obvious post-FCC political aspirations run face-first into those who remember this attack on net neutrality -- and the fact that 2017 sure as shit wasn't anything to laugh about.

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

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Five Years AgoThis week in 2012, the ITU was holding its World Conference on International Telecommunications to try to, more or less, "fix the internet" (not that it was broken). Their ideas about speeding up infrastructure built-out were more likely to slow it down, and it was unclear who many of the new proposed rules actually covered. They rushed to approve a deep packet inspection standard in secret, then turned out to be really bad at secrecy. Amidst all this it was no surprise that Congress managed to pass a unanimous resolution telling the ITU to keep its hands off the internet.Ten Years AgoThis week in 2007, Apple (while navigating the iPhone patent minefield) was proposing a plan to make extortion an explicit part of DRM, while Nielsen was for some reason trying to become a copyright cop. Perfect 10 was losing in its attempts to blame anyone with money for infringement, rather than the infringer while the MPAA, in an instance of extremely amusing irony, was forced to take its anti-piracy kit for universities offline for violating the GPL license on code therein. This was also the week that we saw the introduction of the PRO IP Act, which would be signed into law the following year.Fifteen Years AgoThis week in 2002, file sharing was in the legal crosshairs as Morpheus and Grokster went to court. Deals site FatWallet challenged a crazy DMCA claim from Wal-Mart over posting sale prices, leading to a public outcry and, later in the week, Wal-Mart backed down. We got a good example of licensing insanity when Finnish taxi drivers were forced to pay for the music they play in their taxis, and in the least surprising news ever, analysis of broadband prices following the recent Comcast/AT&T Broadband merger showed that they were going up.

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SLCC Rankles Judge With Social Media Posts As A Jury Prepares To Rule

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We've been following the trademark dispute between the Salt Lake Comic Con and the San Diego Comic-Con for some time now, including all of its strange ups and downs. Despite this whole dispute starting something like three years ago, the trial itself has kept a brisk pace, with SLCC already resting its defense and jury deliberations beginning this week as well. While we'll have to wait for the jury's decision, the trial has gone pretty much as we expected. SDCC rolled out its trademark registration that it appears to have forgotten it ever had until recently from an enforcement perspective, along with some commissioned surveys suggesting that the public views the word "comic-con" as a brand and not a generic term. SLCC has pointed out that there are a ton of other comic cons out there, few of which have any licensing agreement with SDCC, and SLCC had expert witnesses poke some glaring holes in the SDCC's survey.

Andrew Baker, associate professor of marketing at San Diego State University, reviewed the survey for Salt Lake Comic Con and testified Wednesday that the results are flawed. Because of risks he saw of "good participant bias," and because the online survey didn't include a way to weed out unreliable responses from people who may have attempted to fill out the survey for money, Baker criticized the results as inconclusive."This study cannot be relied upon to tell us the percentage of people who think comic con is a brand," Baker testified.
Bryan Brandenburg, one of the partners behind SLCC, took the stand to recount the process by which they came up with the name Salt Lake Comic Con. As you'd expect, he recounted searching around for other similar conventions, noting that nearly all of them were using the "comic con" phrase, or some variant of it, and concluding that this is just what those types of shows are called. It's an understandable position, particularly given the descriptive nature of the phrase. A "comic con" is a "comic convention." Simple. One would hope the jury would understand that simple fact.But there was some minor drama in the courtroom surrounding SLCC's desire to speak out about the case on its social media platforms, specifically to do with Brandenburg's testimony and the defense he would offer.
The post announced that Brandenburg would take the witness stand to show that "comic con is owned by the people, by all the fans that experience the joy and celebration of comic con in cities all over the world."Battaglia prohibited such arguments in the trial based on objections raised beforehand by San Diego. He warned that if Brandenburg intended to make any such statements during his testimony, "tell him to bring his toothbrush with him."
Notably, Brandenburg did not raise that defense on the stand, so His Honor was not forced to put him in jail. But this wasn't the only remark Judge Battaglia made on the subject. He expanded upon it in a way that shows him bristling with the striking down of his earlier gag order on SLCC from speaking at all about the case.
"The circuit seems to believe people can say whatever they want in the world and in the media, but they don't get that privilege in my courtroom," Battaglia noted Wednesday.
Well, okay then. While I've cheered on SLCC discussing the case in public for the benefit of that public, and while we were quite critical of Battaglia's gag order, the freedom to speak is not without its dangers. It's a little surprising that SLCC would be so cavalier with its public comments on social media sites that run directly contrary to the orders of a judge who had already tried to slap it with a gag order. That's just silly and a sign that, whatever happens moving forward, SLCC should probably get its PR house in order.Regardless, the jury is in deliberations and you can be sure we'll be commenting on the results they bring back.

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Top EU Data Protection Body Asks US To Fix Problems Of 'Privacy Shield' Or Expect A Referral To Region's Highest Court

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The Privacy Shield framework is key to allowing personal data to flow legally across the Atlantic from the EU to the US. As we've noted several times this year, there are a number of reasons to think that the EU's highest court, the Court of Justice of the European Union (CJEU), could reject Privacy Shield just as it threw out its predecessor, the Safe Harbor agreement. An obscure but influential advisory group of EU data protection officials has just issued its first annual review of Privacy Shield (pdf). Despite its polite, bureaucratic language, it's clear that the privacy experts are not happy with the lack of progress in dealing with problems pointed out by them previously. As the "Article 29 Data Protection Working Party" -- the WP29 for short -- explains:

Based on the concerns elaborated in its previous opinions ... the WP29 focused on the assessment of both the commercial aspects of the Privacy Shield and on the government access to personal data transferred from the EU for the purposes of Law Enforcement and National Security, including the legal remedies available to EU citizens. The WP29, assessed whether these concerns have been solved and also whether the safeguards provided under the EU-U.S. Privacy Shield are workable and effective.
As far as the commercial aspects of Privacy Shield are concerned, the WP29 is unhappy about a number of important "unresolved" issues such as "the lack of guidance and clear information on, for example, the principles of the Privacy Shield, on onward transfers [of personal data] and on the rights and available recourse and remedies for data subjects."The issue of US government access to the personal data of EU citizens is even thornier. Although the WP29 welcomed efforts by the US government to become more "transparent on their use of their surveillance powers", the collection of and access to personal data for national security purposes under both section 702 of FISA and Executive Order 12333 were still a problem. On the former, WP29 suggests:
Instead of authorizing surveillance programs, section 702 should provide for precise targeting, along with the use of the criteria such as that of "reasonable suspicion", to determine whether an individual or a group should be a target of surveillance, subject to stricterscrutiny of individual targets by an independent authority ex-ante.
As regards the Executive Order 12333, WP29 wants the Privacy and Civil Liberties Oversight Board (PCLOB) "to finish and issue its awaited report on EO 12333 to provide information on the concrete operation of this Executive Order and on its necessity and proportionality with regard to interferences brought to data protection in this context." That's likely to be a bit tricky, because the PCLOB is understaffed due to unfilled vacancies, and possibly moribund. In conclusion, the WP29 "acknowledges the progress of the Privacy Shield in comparison with the invalidated Safe Harbor Decision", but underlines that the EU group has "identified a number of significant concerns that need to be addressed by both the [European] Commission and the U.S. authorities." It spells out what will happen if they aren't sorted out:
In case no remedy is brought to the concerns of the WP29 in the given time frames, the members of WP29 will take appropriate action, including bringing the Privacy Shield Adequacy decision to national courts for them to make a reference to the CJEU for a preliminary ruling.
That is, it will ask the EU's highest court to rule on the so-called "adequacy decision" of the European Commission, where it decided that Privacy Shield offered enough protection for EU personal data moving to the US. There's a clear implication that WP29 doubts the CJEU's ruling will be favorable unless all the changes it has requested are made soon. And without the Privacy Shield framework, it will be much harder to transfer personal data legally across the Atlantic. Moreover, the EU's data protection laws are about to become even more stringent next year, when the new General Data Protection Regulation (GDPR) is enforced. Organizations in breach of the GDPR can be fined up to 4% of annual global turnover, which means even the biggest Internet companies will have a strong incentive to comply.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Tapad Partners with Freckle IoT to Enable Cross-Device Offline Attribution for Brands

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The Tapad Device Graph Complements Freckle's IoT Capabilities to Extend Scale and Precision of Audience Data Tapad, the leader in cross-device marketing technology andFreckle IoT, the global leader in multi-touch, offline attribution, today announced they are partnering to provide brands with a holistic and insightful view of their customers, in predefined locations in all global […]The post Tapad Partners with Freckle IoT to Enable Cross-Device Offline Attribution for Brands appeared first on Adotas.

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The Moneytizer, a Programmatic Advertising Platform for Small and Midsized Companies, Launches in US

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The Moneytizer, a French advertising platform dedicated to optimizing the ad revenues of small- and medium-sized websites, has announced its launch in the US market. The platform currently counts more than 1,000 small- and medium-sized websites across the US as users of its technology; worldwide users of the technology number close to 8,000. Recognizing the […]The post The Moneytizer, a Programmatic Advertising Platform for Small and Midsized Companies, Launches in US appeared first on Adotas.

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UK Court Says Company Is Innocent In Massive Data Breach Caused By Vindictive Employee, But Must Nonetheless Pay Compensation

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It's well known that the EU has laws offering relatively strong protection for personal data -- some companies say too strong. Possible support for that viewpoint comes from a new data protection case in the UK, which follows EU law, where the judge has come to a rather surprising conclusion. Details of the case can be found in a short post on the Panopticon blog, or in the court's 59-page judgment (pdf), but the basic facts are as follows.In 2014, a file containing personal details of 99,998 employees of the UK supermarket chain Morrisons was posted on a file-sharing Web site. The file included names, addresses, gender, dates of birth, phone numbers (home or mobile), bank account numbers and salary information. Public links to the file were placed elsewhere, and copies of the data sent on a CD to three local newspapers, supposedly by someone who had found it on the Internet. In fact, all the copies originated from Andrew Skelton, a Senior IT Auditor in Morrisons, as later investigations discovered. According to the court, Skelton had a grudge against the company because of a disciplinary process that took place in 2013. As a result of the massive data breach in 2014, Skelton was sentenced to eight years in prison.The current case was brought by some 5,500 employees named in the leaks, who sought compensation from Morrisons. There were two parts to the claim. One was that Morrisons was directly to blame, and the other that it had "vicarious liability" -- that is, liability for the actions or omissions of others. The UK judge found that Morrisons was not directly liable, since it had done everything it could to avoid personal data being leaked. However, as the Panopticon blog explains:

having concluded that Morrisons was entirely legally innocent in respect of Skelton's misuse of the data, the Judge held that it was nonetheless vicariously liable for Skelton's misdeeds
That is a legal bombshell as far as UK privacy law is concerned, since it means that a company that does everything it reasonably can to prevent personal data being revealed can nonetheless be held vicariously liable for the actions of an employee, even a malicious one. That clearly offers an extremely easy -- if potentially self-damaging -- route for disgruntled employees who want to harm their employers. All they need to do is intentionally leak personal data, and the company they work for will have vicarious responsibility for the privacy breach. In fact, even the judge was worried by the implications of his own decision:
The point which most troubled me in reaching these conclusions was the submission that the wrongful acts of Skelton were deliberately aimed at the party whom the claimants seek to hold responsible, such that to reach the conclusion I have may seem to render the court an accessory in furthering his criminal aims.
As a result, the judge granted leave for Morrisons to appeal against his judgment that it was vicariously liable. Hundreds of thousands of companies around the UK will now be hoping that a higher court, either nationally or even at the EU level, overturns the ruling, and sets a limit on those super-strong data protection laws.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Opening Statements In The Trademark Battle Of The Comic Cons, While Other Regional Cons Go Full Judas

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Our regular readers will know that we've been covering the years-long trademark lawsuit between the famous San Diego Comic-Con and the Salt Lake ComicCon since the very beginning. The whole thing has been something of a saga, with the SDCC issuing various threats and filing a lawsuit, while the SLCC has managed to fumble its way through court, getting slapped around for attempting various counter-logical defenses and even getting a gag order on it temporarily, unconstitutionally barring it from talking about the case publicly.Well, the court heard opening statements in the case this past week, with the SDCC trotting out the same studies it had presented during the pre-trial motions.

Callie Bjurstrom, attorney for San Diego Comic-Con told jurors that Salt Lake Comic Con hijacked the Comic-Con trademark. That it “remained a small, intimate comic convention for decades” and that it wasn’t until the early 2000s that “the secret was out: Comics were cool and Comic-Con was the place to be to catch what was hot and what was next”. And as hundreds of similar conventions sprang up in cities across the country, Salt Lake Comic Con tried to “hijack” the trademark, to “steal the Comic-Con brand” saying “You don’t need to use ‘Comic-Con’ in your name to identify your comic and popular-arts convention… Convention is a generic term. Comic-Con is a brand” and that Salt Lake Comic Con is duping consumers into believing their events are associated, especially when they parked an Audi convertible near the San Diego Convention Center during the 2014 show, wrapped with promotions for the Salt Lake event.SDCC commissioned a study that showed 82 percent of consumers recognize Comic-Con as a brand – a higher brand recognition rate than Jello and that “You don’t take or steal something that’s not valuable.”
Of course, the problem with this study is that no matter what the public in the SDCC's sample indicated, the simple fact is that comic conventions throughout the country have been using the term "comic con" with wild abandon. As they did so, it seems that the SDCC was in some sort of trademark hibernation for years, with no action against all of these national comic cons that I can find. SLCC made the same point in its opening argument, their defense seemingly settling on the notion that the term "comic con" had become generic.
Attorneys for the Salt Lake Comic Con and Dan Farr Productions said the phrase has become generic, part of the public commons, and therefore unprotectable. Michael Katz with Maschoff Brennan said that “Comic Con” is a generic term used to refer to a type of convention and that the show “looked to the industry” in naming their convention in 2013. “They used the same formula: Salt Lake to refer to where they were, and Comic Con to refer to what they were”. That Comic Con was a “national brand” and there could be no confusion between the one in San Diego and the one in Utah, which he called a “flyover state”, and that theirs was a “homegrown” event where four out of five attendees came from Utah, and it was so specific to the state that it didn’t run on Sundays because of Utah’s large religious population. And that “I don’t think we’re here because of large numbers of people confusing San Diego Comic-Con with Salt Lake Comic Con. … They have not been harmed by little Salt Lake. They have not lost a single customer to us. We are small potatoes”.
It seems that the SDCC fully anticipated this defense and decided to attempt to undermine it by finding a comic con out there, any comic con, to enter into a laughably cheap licensing agreement. That SDCC is doing this only at the same time it is bringing this suit to trial makes its motive plain and naked. It's a shameless attempt to give its long-abandoned trademark the imprimatur of now having an actual licensee. As disappointing as the SDCC's actions are, those of the sellout cons are all the more so. Just read the press release from Rose City Comic Con in Portland about how it licensed the "comic con" mark and you'll get an idea of just how likely it is that the SDCC basically scripted this thing for them.
“Rose City Comic Con, Portland, Oregon’s largest comics and pop-culture convention, is proud to announce its association with San Diego Comic Convention for its three-day event taking place September 7-9, 2018 at the Oregon Convention Center. Rose City Comic Con received the license at no additional cost to the show, and acknowledges the trademark owned by San Diego Comic Convention and is excited to affiliate itself with the prestigious event.”“Comic-Con, the San Diego convention, is without question the biggest and most important event in the comics and popular arts industry every year. To have the respected event recognize the hard work of Rose City Comic Con by providing a license agreement is really remarkable for the city of Portland and the incredible community of creators we’re lucky to have here,” said Rose City Comic Con founder Ron Brister.
So moist does Rose City seem to be over its free license that it must have failed to understand the motive for this free gift by the SDCC and the damage it might do to all of the other comic cons out there that are now or might in the future be under threat by SDCC. Now, I don't believe that SDCC managing to squeeze a few licensees from this national barrel of turnips suddenly means that it didn't long ago abandon the "comic con" mark, but it seems obvious that these sorts of free licenses aren't for everyone. I expect the SLCC, for instance, would have jumped at a free license early on in this process. Perhaps it would instead have stood its ground on principle, but given the enormous cost in time and money, not to mention that this thing has dragged out now for several years, I doubt it.So nice job, Rose City. While one con fights not just for its life, but for the common sense notion that "comic con" should no longer be considered a legit trademark, you went full Judas. Hope those 30 pieces of silver are worth it.

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The Strange Fight Over Who Should Take John Conyers Spot Atop The Judiciary Committee

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As you may have heard, Rep. John Conyers recently stepped down from his role as Ranking Member (basically top member of the minority party) on the powerful House Judiciary Committee, and this week has announced his retirement, in response to multiple accusations of sexual harassment. That has kicked off something of an interesting and important debate over who should replace him as ranking member on the Judiciary Committee.The next in line by seniority is Rep. Jerry Nadler. But right behind him is Rep. Zoe Lofgren. By way of disclosure, I'll note that I've gotten to know Lofgren over the years, and have donated to her election campaign. But even before I'd ever spoken to her, I've noted how she remains one of the few people in Congress who seems to consistently do the right thing on basically all of the issues that we care about at Techdirt. You can see our past coverage of stories involving Lofgren. Most specifically on copyright and surveillance, she hasn't just been on the right side, she's been leading the way. She is, almost single-handedly, the person who stopped SOPA from passing. She has consistently raised important issues and introduced important bills and amendments concerning copyright, NSA surveillance and the CFAA among other things.Obviously, I think she'd make a great ranking member for the Judiciary Committee (or the chair should the House flip sides in the future). So I was happy to see her recently announce her intention to run for the Ranking Member position against Nadler. Who knows if she'll actually get the position, but I found it odd that upon announcing it, she was immediately attacked by, of all places, The Intercept, which put forth a really strange article accusing Lofgren of being a Google shill. This was strange on multiple levels -- though, I get it. Lofgren gets called a "Google shill" for the same reasons that we do here at Techdirt. Because, even though we frequently disagree with Google on a variety of issues, on the whole we support many of the same policies that protect free speech and open innovation online.That's also true of Lofgren. While she's supported key policies on copyright, online speech, innovation and surveillance, she's similarly pushed back against Google quite frequently as well. She's publicly criticized the company for its lack of diversity. She's voted against a bill to expand H1-B visas that Google supported. She voted against Trade Promotion Authority (which Google stupidly supported -- as noted in one of my links above) that paved the way to moving forward on TPP. On top of that, the tech industry has mostly pushed back on CFAA reform, such as Lofgren's Aaron's Law, because companies want to have it as a tool to use against employees at times. Just recently, Lofgren has started digging into competition inssues in Silicon Valley, warning about the lack of competition and how it's a problem -- a position that, more than likely, Google finds worrisome.That's just part of why it's so odd that the Intercept, of all publications, would post this article suggesting that Lofgren doesn't belong as the ranking member on the Judiciary Committee just because she's "close" to Google. Even odder, is the fact that the authors of the piece -- two reporters whose work I've long respected, Ryan Grim and Lee Fang -- focus entirely on claiming that Lofgren is a product of Google, while ignoring anything about Nadler. Not only has Nadler been on the wrong side of many of these same key issues, if you consider Lofgren somehow tied to Google (again, incorrectly) then you would similarly have to conclude that Nadler is in the pocket of the legacy entertainment industry, and their ongoing quest to destroy the internet as we know it. If you start looking at Nadler's campaign finance situation, it sure looks like he's the MPAA and the RIAA's favorite Congressman.In the last campaign cycle, the RIAA gave significantly more to Nadler than any other Democrat. Same with Disney. Same with Sony. Same with Time Warner. Same with Universal Music. Same with the Association of American Publishers. Same with ASCAP. While Viacom gave a bit more to three other members, Nadler was the 4th highest support on the Democratic side. Comcast gave a little more to Conyers, but again, Nadler is near the top of the list. The Grammys have given more to Nadler than any other Democrat, and he repays them by holding events with them all the time.There's a pretty clear pattern here. If the legacy copyright players want something on the Democratic side, Nadler's their guy. And, maybe that doesn't matter to the Intercept. Maybe it doesn't matter that bad copyright policies that he promotes would have serious downsides to the way the internet works, to free speech and to privacy. Maybe, the Intercept has decided that any possible "connection" to Google is worse than everything else. But considering that the whole creation of The Intercept came about because of the Snowden revelations, and a key focus of The Intercept is to report on the evils of government surveillance, it's kind of surprising that it would publish an article promoting Nadler over Lofgren while ignoring that Nadler has not always been a close friend of surveillance reform. It's true that he's sponsored some reform efforts, including the USA Freedom Act, but just last month he was seen voting against an important amendment brought forth by Lofgren, to end backdoor searches in the ongoing effort to reform Section 702.So it seems odd that the Intercept is effectively arguing that Nadler would make a better ranking member on Judiciary, even as Lofgren has a stronger record on stopping government surveillance, just because some (falsely) believe that Lofgren is "tied" to Google. And, at the very least, if they're going to tar Lofgren because her views sometimes align with Google's, it seems that it could at least treat Nadler equally by looking into his close connections with the legacy entertainment business.

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Defining The Real World Graph

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The Real-World Graph maps out the connection between people and places, giving insight into how people move and behave in the real world - the places they go to, where they shop and travel, and how often they do so. The mapping of this journey is crucial information: It can power anything requiring an understanding […]The post Defining The Real World Graph appeared first on Adotas.

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Another Reason To Distinguish Alcohol Markets In Trademarks: Actual Infringement Defended By Use Across Alcohol Products

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A brief review of all of the articles I've written in these here pages about sweet, delicious alcohol mostly have to do with trademark spats between drink-makers, including many in which I've made the point that it's high time for the USPTO to get a little more subtle when it comes to its alcohol marketplace designations. Beer isn't wine, and wine isn't liquor, and the public looking to buy one of those is quite unlikely to confuse one product for another. The focus of many of those posts was how this lack of distinction between the alcohol markets has resulted in too many aggressive trademark lawsuits and threat letters that hardly seemed necessary.But there is a flip side to all of this that serves as another perfectly good reason for the USPTO to make a change. Recently, one liquor distiller sued another in what seems like a fairly plausible trademark infringement case.

Few Spirits, the maker of Breakfast Gin, has taken the Michigan-based Gray Skies Distillery to court over the planned December launch of its new whiskey, Breakfast Rye. As reported by MLive.com, Few’s counsel sent a notice in October telling Gray Skies it had “prior rights and registration” to Breakfast Gin, and told it to cease any use of Breakfast Rye. In the lawsuit, it alleged trademark infringement, unfair competition, and violation of Michigan’s Consumer Protection Act. In response, Gray Skies submitted a letter of protest to Few’s pending trademark application.The Breakfast Gin producer is now seeking an injunction to prevent Gray Skies from selling Breakfast Rye, including damages if it goes up for sale in stores or in bars.
Now, we could spend time talking about just how valid a trademark the word "breakfast" is in the liquor industry -- whether it's generic, whether it's overtly common, and whether or not its actually somewhat descriptive of the flavor or ingredients within each liquor product itself. Frankly, I don't want to do that in this post. The trademark seems valid to me and it certainly isn't striking any well-tuned outrage chords in my psyche.But one of the defenses proffered by Gray Skies' attorney, Thomas Williams, in its opposition to Few's trademark application shows exactly the problem with a lack of market distinctions in the alcohol industry, except in reverse.
"The use of 'breakfast' to describe alcoholic beverage products that have characteristics, aromas or flavors reminiscent of breakfast foods, is replete in the marketplace," Williams wrote. "For example, Founders Brewing Company markets and sells Founders Breakfast Stout and Founders Canadian Breakfast Stout. Dogfish Head markets and sells Beer for Breakfast Stout."
Except that none of that should actually matter. Few shouldn't be denied a trademark on the word "breakfast" due to the plethora of beer brews using the word in their names. Different alcohol medium, different customer base, different market. That the USPTO doesn't recognize any of that is the problem, of course, but it's disappointing to see the lawyers for a member of the industry ignore all of that over a simple trademark opposition. It's worth noting as well that the same lawyer, Williams, does not trot out this defense in response to the lawsuit Few filed. There instead he relies on the overall trade dress and, remarkably, claims that gin and whiskey customers are discerning enough to discriminate between types of spirits.
One of the factors in trademark law focuses on the likelihood of confusion over a product by consumers. Buyers of craft spirits are very discriminating, Williams said."I think we would vigorously dispute that anybody's going to be confused when you put the two products side by side in the market, he said.
Pick a lane, counselor.By ignoring obvious market distinctions in the alcohol industries, the USPTO has allowed lawyers like Williams to try to play both sides of the argument. On the one hand, oppose a trademark because of similar marks in the beer industry. On the other hand, claim that similar marks within the spirits industry are just fine because gin and whiskey are basically in different markets. A little clarity through common sense any time now, USPTO.

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MARKETERS RECEIVE C- GRADE FOR MARKETING INTELLIGENCE PROWESS: INDEPENDENT STUDY

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Only 26 Percent of Marketing Firms Have Appointed Senior Data Execs, Most Rely on Backwards-looking Tools, and Firms are Struggling to Collaborate on Data Marketers were awarded an average grade of C-minus for marketing intelligence capabilities, according to a newly commissioned study conducted by Forrester Consulting on behalf of Velocidi. The findings were based on […]The post MARKETERS RECEIVE C- GRADE FOR MARKETING INTELLIGENCE PROWESS: INDEPENDENT STUDY appeared first on Adotas.

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Senator Kamala Harris Serves Up A Not-Completely-Terrible Revenge Porn Bill

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Senator Kamala Harris -- famous here mostly for her constant, Quixotic attempts to turn Backpage into a criminal defendant -- is now crafting laws at the federal level. Her support for the internet-crippling SESTA is already known. Her next target, apparently, is revenge porn purveyors.Harris' bill [PDF] will likely be remembered more for its too-clever acronym than its content. The ENOUGH Act of 2017 (brace yourself: Ending Nonconsensual Online User Graphic Harassment) is another attempt to criminalize revenge porn at the federal level. The problem is the subject matter is slippery and difficult to nail down precisely enough to avoid First Amendment concerns.The bill does make an attempt at narrowly crafting a definition and at least tries to limit the liability of platforms hosting user-generated content, but it still has some issues. For one, the definition of images covered by the act is a bit too vague to prevent the possible criminalization of harmless images.

The term ‘intimate visual depiction’ means any visual depiction (as that term is defined in section 2256(5)), in original or modified format, of an individual who is reasonably identifiable from the image itself or information displayed in connection with the image, in which—(A) the individual is engaging in sexually explicit conduct; or(B) the naked genitals or post-pubescent female nipple of the individual are visible.
The non-consensual sharing of photos of men clad only in their underwear is apparently fine as only the female nipple is afforded protection. And if all it takes is an exposed female nipple to trigger possible charges, anyone who captures images of wardrobe malfunctions, breastfeeding mothers, or topless protesters better have some waiver forms on hand.But beyond that, there's the issue of sharing of any explicit depiction without the consent of all parties. Any non-consensual sharing of depictions of sexual activity and/or nudity is criminalized unless the person can show the sharing was a "matter of public concern." This would be the bill's journalism exception. There are also exceptions for law enforcement, legal proceedings, and "good faith" reporting of unlawful activity.What makes this bill a bit better than many of its competitors is the burden placed on the government to prove intent.
[I]t shall be unlawful to knowingly use any means or facility of interstate or foreign commerce to distribute an intimate visual depiction of an individual—(1) with knowledge of or reckless disregard for—(A) the lack of consent of the individual to the distribution;(B) the reasonable expectation of the individual that the depiction would remain private; and(C) harm that the distribution could cause to the individual; and(2) without an objectively reasonable belief that such distribution touches upon a matter of public concern
The bill also drags service providers into the mix, but fortunately doesn't expect them to police content or otherwise threaten their Section 230 protections. The only service providers that would be targeted would be those that "intentionally solicit and predominantly distribute content" that the provider "knows" is in violation of the law. So, there's intent needed to be proven there as well.Still, the bill has some questionable components. First, the bill treats threats of publication as equally criminal as actual publication. In both cases, violators could be subject to an unspecified fine and up to five years in prison. It also includes an extraterritoriality clause that would allow the US to pursue overseas violators as long as the subject depicted was an American. We'll have to see if that still holds up once Congressional lawyers have taken a look at it.Overall, the bill isn't terrible. It requires a showing of intent, something other revenge porn laws have disregarded. It does still present some First Amendment issues because the stipulations attached to violation (expectation depiction would remain private, distribution would cause harm to the subject depicted, etc.) are bound to swallow up some journalistic endeavors or documentation of sexual assault allegations (if the latter isn't shared exclusively with law enforcement). The edge cases will be left to prosecutors' discretion, which definitely isn't a good thing. All the evidence needed to argue for less prosecutorial discretion is the long string of embarrassments committed by prosecutors pursuing charges against sexting teens.Given the aggressiveness of Harris' pursuit of Backpage for sex trafficking, it's somewhat of a surprise to a Harris-backed revenge porn bill take a mostly hands off approach to internet service providers. Still, there's a chance the bill could be made worse after a few markup rounds, turning it from an almost-acceptable piece of legislation into a speech-chilling, Section 230-damaging monstrosity.

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Where Credit's Due: Budweiser Goes The Cool And Funny Route On Microbrewery's 'Dilly Dilly' Craft IPA

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I like to give credit where credit is due. When it comes to the myriad posts we've written about Budweiser or its parent company Anheuser-Busch, the credit has mostly been to do with being intellectual property bullies and all around megalith caricatures. That said, the company's actions surrounding a recent case of actual trademark infringement show the company not to be without humor or grace when it actually tries.Minneapolis brewery, Modist Brewery, recently unveiled a new double IPA it decided to call "Dilly Dilly." If that isn't ringing any bells, you must not have seen the series of kingly ads for Bud Light that I find funny, although I can't describe exactly why.


As part of the ad campaign, Budweiser trademarked the phrase "dilly, dilly", because of course they did. Whatever problems we might have with the practical application of trademark law in modern times, the phrase is creative, unique, and with the ad campaign it has become an identifier for the Bud Light brand. Modist Brewery even knew about the trademark. And it expected Bud Light to push back.
According to The Growler Magazine, the owners had an idea they would be getting a message from Bud Light after they found out “Dilly Dilly” had already been trademarked as a slogan.“But then we said, ‘Screw it, let’s see what happens.’ And that’s what happens,” Kale Anderson told the magazine.
Yes, Budweiser did indeed respond...by sending an on-theme messenger to Modist Brewery.

In case you can't see the video, the "messenger" from Budwesider states the following.
“Hear ye, hear ye!” he began. “Dear friend of the crown, Modist Brewery Company, congratulations on the new brew: Dilly Dilly Mosaic Double IPA ...” the man read. “We are duly flattered by your royal tribute. However, ‘Dilly Dilly’ is the motto of our realm. So we humbly ask that you keep this to a limited edition one-time-only run. This is by order of the king. Disobedience shall be met with additional scrolls, then a formal warning, and finally, a private tour of the pit of misery.”
To make sure the disposition of the message was clear, the messenger goes on to gift two Super Bowl tickets to the brewery, as the game will be in Minnesota this year. Rather than being the bully, Budweiser added some humor to its request that the brewery, which knew about the trademark, simply not continue the run of the IPA under the infringing name past the limited run, and it managed to do so in an entertaining and congenial way. As far as cease and desists go, this is about as good as it gets.And Budweiser is earning high praise in the press for all this, extending its branding message and bathing the Bud Light product in positive coverage. That's a pretty good look and a welcome departure for a company not known for being so human and accommodating.

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Protecting Data in Programmatic Video with a Data Ecrow

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  Programmatic video ad buying remains on a steep growth curve, despite a handful of hurdles that stand in its path. One of the issues holding back industry-wide adoption is data privacy, a concern shared by both buyers and sellers. As media companies and ad buyers activate more first- and third-party data to improve targeting, […]The post Protecting Data in Programmatic Video with a Data Ecrow appeared first on Adotas.

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Shereta Williams on the Future of TV Advertising

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Shereta Williams, President atVidea,shares her insights into the way thatmajor technological changes in the industry are reshaping how TV advertisements are bought and sold. She feels that everything from what it means to drive that actual change within your organization to the way in which artificial intelligence (AI) will shape digital advertising will be important […]The post Shereta Williams on the Future of TV Advertising appeared first on Adotas.

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Top EU Privacy Campaigner Says He Wants Lots Of Money For 'None Of Your Business'

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We've just written about the Austrian privacy activist Max Schrems, and his continuing battle with Facebook. But it seems Schrems now wants to take things up a notch. He's hoping to found a new privacy organization called the "European Center for Digital Rights", with the domain name of noyb.eu - "none of your business":

The focus of noyb will be on commercial data processing by corporations. Corporate practices are rarely transparent. Internet users are commonly confronted with unlawful practices, agreements and terms and conditions. Their data is linked and sold behind the back of these consumers. Phenomena like big data, profiling and selective targeting are common practice today and will only grow in the future.
Noyb's weapon of choice will be a new EU privacy law:
In May 2018, the new EU General Data Protection Regulation (GDPR) comes into force. It includes massive improvements in the area of privacy enforcement for users. NGOs like noyb will be able to directly take actions for consumers with the relevant authorities and in court, e.g. through class action suits or strategic group action.
It's not all legal actions. Noyb also plans to publish guidelines and best practices to give advice to businesses on how to follow the new GDPR rules to avoid being sued. It also plans to create new digital tools for privacy complaints and privacy inquiries, as well as whistleblowing tools. In the short term, these are some possible goals (pdf):
TECHNICAL: Testing Environment for Apps. As an initial technical research project the organization could review the actual data use by the most popular smartphone apps and thereby develop a testing environment for consistent testing of apps. Existing research have e.g. shown that some apps access GPS locations or contacts beyond what is strictly necessary for the function used [an important aspect of the GDPR]. The generated evidence could lead to rankings, complaints or legal procedures.LEGAL: Smartphone Operating Systems. Apple and Google dominate the smartphone market. Their policies are based on a "take it or leave it" basis and allow these companies significant access to the most personal device of most consumers. Enforcement actions in this area could have a substantial impact in the daily life of almost every citizen.
By the end of 2018 noyb hopes to have achieved the following:
Cooperation with at least five major privacy NGOs, five consumer rights organizations, five universities or research institutions and five hacker institutions/spaces.Basic network of lawyers at least in Austria, Germany, Ireland, Luxembourg and the US.Support of 10 small external enforcement actions through the enforcement fund.
In the long-term, it has even more ambitious plans. For example, widening the scope of the noyb organization from privacy to other digital rights such as net neutrality, or related consumer rights, and to set up national NGOs in countries that currently lack local initiatives. Of course, this all requires money. Noyb estimates that it needs a minimum of €250,000 in the start-up period of 2018, while the regular operating costs will be around €500,000 per year. It is hoping a combination of sponsorship and crowdfunding will provide those amounts.Raising money will probably be the organization's biggest challenge. After all, Schrems has shown more than once that he can take on the biggest Internet companies and win. As with those victories, it's important to note that the legal framework that noyb intends to use may be purely European, but the global nature of the Internet and the companies that serve it means the impacts of any successful legal actions are likely to be felt worldwide.Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

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Angry, Threatening Lawyer Fails To Sue As Promised, Drops His SLAPP Suit

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A couple weeks back we wrote about the somewhat odd decision making of an angry lawyer named Jason Lee Van Dyke, whom we'd also written about years ago for some spectacularly bad lawyering. This year he's also gotten really really pissed off at three (very different) people: Ken White, Asher Langton and Talib Kweli. The first two have appeared on Techdirt many times. Ken is a criminal defense and First Amendment lawyer. Asher has an astounding ability to sniff out frauds online. And Talib is a musical genius among other things. But, Van Dyke has spent months angrily lashing out about them on the internet (well, the lashing out at Kweli was more recent).When we last checked in on him, he was threatening to add those three individuals -- plus the Huffington Post -- to a fairly obvious SLAPP suit that he had already filed in Texas against an Ohio-based publication called the Mockingbird. Lots of people had pointed out that Texas has a fairly robust anti-SLAPP law, which could lead to Van Dyke having to pay up -- and Van Dyke's response (not atypical from his earlier responses) was to lash out and threaten more lawsuits and to promise violence if he was sanctioned.

He then went so far as to contact Mockingbird's lawyer to ask for leave to amend the existing lawsuit with the three individuals mentioned above, plus the Huffington Post (which had also written about the lawsuit).So... despite the promises to add more names to the lawsuit, that didn't happen. And despite the claims that he was going to just keep fighting the lawsuit... a few days later, Van Dyke agreed to dismiss the suit with prejudice, and the judge agreed. Gerry Bello at Mockingbird has a post on this as well, which reveals that Van Dyke told Bello's lawyer that the reason for the dismissal was that his "immediate supervisor at the company where I am employed" had "instructed" Van Dyke to dismiss the case. It is not clear where Van Dyke is currently employed or who told him to do this. Van Dyke has generally held himself out as being self-employed as a lawyer.One hopes that this is actually Van Dyke recognizing that repeated threats of both violence and lawsuits against critics is not a particularly wise idea. I'm not holding my breath that this is the case, however. In the meantime, we've heard from others that various bar complaints have been filed against Van Dyke, and given his actions and statements, at the very least you have to wonder how much longer he'll be able to practice law, no matter who "employs" him.

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Programmatic Advertising Benefits, Trends & Solutions: A Koeppel Direct Infographic

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Programmatic advertising is one of today's hottest marketing trends, with both B2B and B2C companies leveraging the technology. In the latest infographic from direct response agency Koeppel Direct, the company explains the current trends, pitfalls, solutions, and projected growth of programmatic advertising. The infographic, Measuring the Impact of Programmatic Advertising, reveals that currently, 62% of […]The post Programmatic Advertising Benefits, Trends & Solutions: A Koeppel Direct Infographic appeared first on Adotas.

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posted at: 12:01am on 05-Dec-2017
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$24 Billion in Goods Abandoned in Online Shopping Carts on Black Friday

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Even as online retailers like Amazon hit company records for CyberMondaysales, consumers across the web abandoned $24 billion worth of goods in their shopping carts during BlackFridayand CyberMonday. Meanwhile, retail advertisers saw their efforts convert at a higher rate on BlackFridaythis year than in 2016.That’s according to data from the online advertising companyIgnitionOne, drawn from […]The post $24 Billion in Goods Abandoned in Online Shopping Carts on Black Friday appeared first on Adotas.

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posted at: 12:01am on 05-Dec-2017
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This Week In Techdirt History: November 26th - December 2nd

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Five Years AgoThis week in 2012, the copyright crowd was still reeling from the RSC report by Derek Khanna, and desperately trying to downplay it by chanting copyright is property! At the same time, Chris Dodd was trying to claim that the silly Facebook "copyright notice" that gets passed around proves everyone's love of copyright. But this same week, a case against UCLA over the streaming of licensed DVDs was dismissed, and Disney itself was sued for copyright infringement (though frankly that suit was pretty ridiculous). Oh, and Techdirt was also accused of infringement — and posted an open letter in response.Ten Years AgoThis week in 2007, movie producers were busy pissing off their directors and record labels were busy pissing off their musicians, all because artists could see the value of downloads and remixes and the suits couldn't. The MPAA's attempts to "help" universities fight file sharing looked a lot like distributing a malicious rootkit, and people were getting wise to the BSA's vindictive campaign over pirated software. The Romantics were closing the age-old gap in the music industry's permission culture when it comes to cover songs, and suing a licensed cover for sounding too much like the original, and the French government was working on a plan to kick file-sharers off the internet that would grow into the failure that was HADOPI.Ten Years AgoThis week in 2002, AOL-Time Warner was really committing to the walled garden game by musing about cutting off Time Magazine content from the wider web, anti-piracy groups were developing the strategy of just sending bills to file-sharers, and ISPs were considering an idea that, yes, was new at the time: data caps on home broadband. Internet rights activists in Spain won a victory against anti-internet legislation, while in the artist world people were becoming more afraid of copyright than government censorship. And, even though fifteen years later not much has changed, people were realizing that the antivirus software model was deeply broken, and kind of a racket.

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posted at: 12:00am on 03-Dec-2017
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What Happens If The DOJ Ends Up With Martin Shkreli's Sole Copy Of The Wu Tang Clan Album?

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So, this story has been bouncing around the internet quite a bit today, but in case you somehow missed it, the Justice Department is seeking to get its hands on the only copy of the Wu Tang Clan album Once Upon a Time in Shaolin. In case you somehow missed this story, there are a few separate background pieces that are necessary to explain. First up, as a combination business model experiment/publicity stunt, back in 2014, Wu Tang Clan announced that it would be selling just a single copy of their latest album. It was an interesting attempt to bring some sort of scarcity back to music and see how the market would respond.A year and a half later, a totally different story dominated the news. A story about a pharmaceutical company most people hadn't heard of, named Turing Pharmaceutical, buying up the rights to a drug called Daraprim, that many AIDS and cancer patients relied on... and jacking up the price on it from $13.50 per pill to $750 per pill. Soon after that, the young CEO of Turing, named Martin Shkreli, had his smirking face plastered all over the news for his trollish "I'm a villain, but so fucking what" response to all the hatred directed his way.What does one story have to do with the other? Well, sometime after Martin Shkreli became everyone's favorite villain, it was revealed that he was the one who had purchased Once Upon a Time in Shaolin for $2 million. While Shkreli, at times, has hinted at releasing the music, or even reselling it, nothing much has come of it. At the very end of 2015, Shkreli was arrested -- not over jacking up drug prices, but for securities fraud.Right after the arrest, Sarah Jeong wrote a fantastic article about how the arrest might lead to the album getting out. The 4th item on the list... asset forfeiture:

If Shkreli is convicted, the direct proceeds of his crimes will now belong to the government. This is what is known as criminal asset forfeiture. (The government has not sought civil asset forfeiture here, which is a slightly different form of seizure that does not require convicting a person of a crime.)The United States has requested the forfeiture of "any property, real or personal, which constitutes or is derived from proceeds traceable" to the crimes in the indictment against Martin Shkreli. But when the US attorney said he did not know where the funds for the purchase of the Wu-Tang album came from, he was implying that the album would not be the subject of criminal asset forfeiture.However, in our wild and improbable hypothetical, the album is implicated in the case and ends up being seized. If Shkreli is convicted, then the album might then become the subject of criminal forfeiture. The multi-million-dollar work of art would then end up on GSA Auctions, alongside dilapidated drug-running Chevrolets and extremely questionable lab equipment.
So... it's now two years later and that "wild and improbable hypothetical" has become fact. The government has filed for criminal forfeiture of Shkreli's assets. You may recall that he was convicted earlier this year and is in jail. As a quick side note: this is different than civil asset forfeiture -- the process we regularly complain about involving law enforcement taking money and assets from people without ever charging anyone for a crime. This is criminal asset forfeiture, after the person has been convicted of the crime, and where the government seeks to disgorge them of the profits from the criminal activity.Here, the Justice Department notes that Shkreli owes them a lot of money. And it wants to get at his assets:
The Court should hold Shkreli financially accountable for his criminal conduct by requiring him to forfeit the amounts above, which total $7,360,450.00, and enter a forfeiture money judgment against him in that total amount. As set forth herein, this total amount represents a conservative computation of the proceeds Shkreli personally obtained as a result of his three different securities fraud crimes of conviction. Furthermore, pursuant to 21 U.S.C. § 853(p) and Fed. R. Crim. P. 32.2, the government seeks forfeiture of certain substitute assets of Shkreli in order to partially satisfy the forfeiture money judgment.
Got that last part? Basically, he should cough up this money, but if he can't we're going after his other assets... including:
Specifically, the following substitute assets owned by Shkreli have, to date, been identified and now that Shkreli has been convicted, the Court should direct that they be forfeited to the United States in partial satisfaction of his forfeiture money judgment: (a) $5 million in cash that is currently held in an E*Trade brokerage account ending in the digits 0258 as security for Shkreli's bond, pursuant to orders of the Court dated January 7, 2016, August 24, 2016 and October 19, 2017; (b) Shkreli's interest in and the monetary value of any and all shares held in an entity called Turing Pharmaceuticals; (c) the album Once Upon a Time in Shaolin by the Wu Tang Clan, as well as any proceeds derived from the sale of such album; (d) the album The Carter V by Lil Wayne, as well as any proceeds derived from the sale of such album; (e) an Enigma machine, as well as any proceeds derived from the sale of such machine; and (f) a Picasso painting, as well as any proceeds derived from the sale of such painting.
The other album listed, the Lil Wayne one, is another one that Shkreli claims he's the sole owner of. Except, of course, that one appears to have been a leak of some sort, and not through a Wu Tang style sale.Of course, does this mean that once the US government gets it, the Wu Tang album can be released to the public? It would be a strange world if the US government were suddenly the record label for what would likely be a hugely popular album. But... that's unlikely to be how it works. Wu Tang Clan likely still holds the copyright (there was no indication that they also transferred the copyright with the album, though it's possible?). Jeong went through some of the scenarios in her post two years ago:
The weird thing is that it's not clear what happens to the contract that Shkreli signed when he bought the album. Presumably, the contract allowed him to transfer his limited distribution rights if he ever sold the physical record to another person. But what happens if the record gets seized by the federal government as part of a criminal forfeiture?Let's say the government seizes the record, sells it on GSA Auctions, and then I buy it and upload the whole thing onto the internet. If Shkreli had uploaded the whole album for free, Wu-Tang couldn't sue himas per the terms of the contract. But if I do it, there's no contract preventing Wu-Tang from suing me, even though I'm now the rightful owner of the One True New Wu-Tang Album.That is, unless the government manages to successfully seize Shkreli's intellectual property rights in the Wu-Tang album.Seizing the actual rights to the album would certainly be an odd move, but not unprecedented. In May, the federal government tried to seize the trademarks of the Mongol Nations motorcycle club after securing criminal convictions against many of its members, and then bringing a RICO indictment against the club itself. They ultimately failedbut not because trademark seizure isn't possible.Still, the Mongol Nations forfeiture was likely targeted at suppressing future use of the trademark, rather than setting up a government-owned Mongol Nations swag shop. "I don't think the FBI will start a Wu-Tang imprint," said Parker Higgins, copyright activist at the Electronic Frontier Foundation.
And, of course, don't expect to FOIA it away from the government either. Attempts to get other copyright-covered works via FOIA haven't worked out so well.Still, prying it out of Shkreli's hands, at least increases the possibility that wherever else it ends up may be more likely to figure out a way to get it out into the world...

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posted at: 12:00am on 02-Dec-2017
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Epic Sues 14 Year Old It Accuses Of Cheating In Videogames After He Counternotices a DMCA On His YouTube Video

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We called it. When Blizzard decided several years ago to try to twist copyright law into one hell of a pretzel in the name of going after video game cheaters, we said it was going to open the the door to other developers and publishers abusing the law in the same way. Blizzard's theory is that using a cheat in its games, particularly in its multiplayer games, was a violation of the EULA and created a copyright violation when the cheater continued to play the game he or she only "licensed." A deep dive into the actual substance of the copyright claims reveals them to be laughable, except Blizzard is rarely joined in court by its defendants, so no challenge to its pretzel-theory of copyright is ever put forward. Shortly after all of this, Riot Games joined in on this fun, deciding to apply the well-salted pretzel copyright logic to groups making cheats for League of Legends.And, since it's not a real party until you have a third, now Epic Games is getting in on the action. And Epic went big for its first go around, deciding to actually sue a fourteen year old child who didn't make a cheat for Epic's Fortnite, but simply used a cheat. The fourteen year old was swept up in lawsuits filed against several cheaters for copyright infringement and, by all accounts, this fourteen year old was something of a pain in the ass for Epic.

One of the accused is a young man, who was banned at least 14 times since he started playing. Every time Epic took action, he simply created new accounts under false names and continued to play and cheat at Fortnite. What Epic Games probably didn’t know is that the cheater in question is a minor. The company likely obtained his name via YouTube or elsewhere, without knowing his real age.
This is the danger of suing end users using illicit cheats rather than going after the groups and sites that make those cheats available: kids play games. Kids also, apparently, agree to the very EULA that Epic is asserting triggers copyright infringement through the use of the cheat. Kids also occasionally have awesome moms, who angrily inform the court of all the reasons that this copyright suit is bullshit. The whole letter from the fourteen year old's mother is worth a read, but here are the most relevant portions.
Please note parental consent was not issued to [my son] to play this free game produced by Epic Games, INC,” the mother writes in her letter.Epic claims that cheaters cause the company to lose money, but the mother doesn’t buy this since it’s a free game. Instead, she believes that the company is trying to blame her son for its failure to curb cheaters.“It is my belief that due to their lack of ability to curve cheat codes and others from modifying their game, they are using a 14-year-old child as a scape goat to make an example of him.”
On top of all of this, a lawsuit against a fourteen year old simply for using a cheat for a video game is a public relations nightmare. On the other hand, Epic is in a horrible position. It would look odd to simply drop the suit against the fourteen year old because he's fourteen and still pursue the suits against the non-minor parties. Either what was done was either copyright infringement or it wasn't (it wasn't, but that's besides the point). The whole thing just looks... petty.Meanwhile, as pointed out first by Torrentfreak, Epic has responded to the Mom's letter, which you can read here. The key argument that Epic makes is that it did not violate the law against naming a minor because it didn't know the kid was only 14 -- but then says that the mother's letter waived the teen's privacy anyway -- and thus asks the court for guidance on whether to ask the court to seal the information (which is already widely distributed) or not.
We did not violate Rule 5.2(a) or Local Civil Rule 17.2 because we did not know when we filed the papers that Defendant was a minor. Although there is an argument that by submitting the Letter to the Court containing Defendant's name and address, Defendant's mother waived this protection.... we plan to include only Defendant's initials or redact his name entirely in all future filings with the Court, including this letter.This letter is to request the Court's guidance on whether the Court would like us to file a motion to seal the papers currently on the docekt that include Defendant's full name, re-file versions of those papers with Defendant's name redacted, or take any other remedial action.
Of course, another option would be not to abuse copyright law this way. Then Epic wouldn't have this problem.

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posted at: 12:00am on 02-Dec-2017
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Seattle Newspaper Files Petition To Peel Back Layers Of Court-Aided Surveillance Secrecy

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A Seattle newspaper is looking to bring some more transparency to law enforcement surveillance tactics. Working with the EFF, The Stranger is making a First Amendment argument about sealed court dockets. The government loves to seal dockets related to criminal cases, especially if agencies have deployed certain surveillance tech or have issued warrants to compel tech company assistance under the Stored Communications Act. (It also loves to shut tech companies up by appending indefinite gag orders to warrants and subpoenas.)And courts, for the most part, have been playing along. The DC District is notorious for this, thanks to it being home to many DOJ prosecutions. The Stranger's petition [PDF] asks the court to reconsider this constant, usually indefinite sealing of dockets, arguing that this secrecy runs contrary to public interest.

Petitioner seeks access to these judicial records to better understand and inform the public about how the government is using current laws to gain access to individuals' private information, including how often law enforcement officers seek and obtain orders from this Court allowing access to such information.Going forward, publicly docketing electronic surveillance cases and unsealing the applications, orders, and other judicial records in those cases, after there is no longer any need for secrecy, will similarly further the public's understanding of the law and the judicial process in electronic surveillance cases, and serve the deep-seated American principle of open access to the courts.
While there is an argument to be made for maintaining secrecy in regards to certain law enforcement tools and techniques, sealing entire dockets isn't the answer. The government could still keep certain filings under wrap or, better yet, actually have to justify limited redactions to the court before locking anything up.The good news is courts might be a bit more welcoming of these arguments. Suits filed in other districts have resulted in the unsealing of a number of court dockets and the release of more information about government surveillance use. While it can be justifiable to withhold certain details about surveillance techniques, the public still has a right to access information pertaining to the general use of surveillance tech to gain a better understanding about what their governments are doing in their name and with its money. The Stranger is hoping its filing will kill off a key designation that often results in court docket black holes.
If our petition succeeds, the court will no longer use the grand jury designation for electronic surveillance cases, and information regarding those cases would show up on PACER, the online database for federal court documents. A favorable ruling would also free up more than five years-worth of records on electronic surveillance in Western Washington. At the very least, such records could tell us how often police ask the courts to authorize electronic surveillance in this district.
In terms of Stingray use alone, more than a decade of surreptitious spying has been hidden from the general public. In some cases, it's been hidden from the courts themselves. With law enforcement agencies moving towards more digital surveillance deployment, the courts have an obligation to push the government towards more transparency since the government is often unwilling to make these concessions itself.

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posted at: 12:00am on 01-Dec-2017
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House Internet Censorship Bill Is Just Like The Senate Bill, Except Worse

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SESTA and FOSTA Are Cut from the Same Cloth. Both Would Be Disastrous for Online Communities

There are two bills racing through Congress that would undermine your right to free expression online and threaten the online communities that we all rely on. The Stop Enabling Sex Traffickers Act (SESTA, S. 1693) and the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA, H.R. 1865) might sound noble, but they would do nothing to fight sex traffickers. What they would do is force online web platforms to police their users' activity much more stringently than ever before, silencing a lot of innocent voices in the process.We've already written extensively about SESTA and the dangers it would pose to online communities, but as the House of Representatives considers moving on FOSTA, it's time to reiterate that all of the major flaws in SESTA are in FOSTA too.

Section 230 Protects Online Communities. Don't Weaken It.

Like SESTA, FOSTA would erode a law referred to as Section 230. Passed in 1996, Section 230 says that online platforms can't be held liable for their users' speech, except in certain circumstances. Without Section 230, it would be extremely risky to host other people's speech online: one lawsuit could destroy your company. Most social media sites wouldn't exist, or they'd look very different from the ones we enjoy today.Section 230 strikes an important balance for when and how online platforms can be held liable for their users' speech. Contrary to SESTA's supporters' claims, Section 230 does nothing to protect platforms that are directly involved with breaking federal criminal law. If an Internet company is directly contributing to unlawful activity, the Department of Justice can and should prosecute it.Under FOSTA, a site would be on the hook if a court simply found that someone had used it for sex trafficking purposes. The law would force platforms to become much more restrictive in their moderation policies, which is likely to disproportionately silence marginalized groups.FOSTA carves an even bigger hole out of Section 230 than SESTA does. It defines the state law exemption to Section 230 more broadly, applying it to "any State criminal statute" related to sex trafficking. State sex trafficking laws are notoriously inconsistent: in Alaska and Massachusetts, for example, statutes define trafficking so broadly that they don't require any indication that someone was forced or coerced into sex work. FOSTA could open the door to litigation far beyond the sex trafficking activities it's intended to target.

Broad Criminal Law Would Hurt Legitimate Communities

Like SESTA, FOSTA expands federal sex trafficking law to sweep in third parties that unknowingly facilitate sex trafficking (like web platforms), but FOSTA defines those third parties even more broadly than SESTA does, criminalizing conduct by "any person or entity and by any means that furthers or in anyway aids or abets" sex trafficking. It even goes a step further by explicitly making it a crime to be a provider of an Internet service that was used for sex trafficking purposes, provided that you acted in "reckless disregard" of the possibility that your service could be used for trafficking (we've written already about the dangers of applying the "reckless disregard" standard to online intermediaries).Remember, Congress already made it it a federal crime to "advertise" sex trafficking online, via the SAVE Act of 2015. No new law is necessary to prosecute platforms that knowingly facilitate sex trafficking ads. If the Department of Justice has failed to prosecute platforms that violate the SAVE Act, then lawmakers should demand an explanation. In the meantime, Congress shouldn't pass laws threatening every other online community.

Bottom Line: These Bills Go After the Wrong Targets

We've talked a lot about the damage that SESTA and FOSTA would do to speech and communities online. Just as important is what they would not do: fight sex trafficking.SESTA and FOSTA are perfect examples of Congress choosing an easy target rather than the right target. It's easy to prosecute Internet companies, but Congress must do the serious work of understanding traffickingits causes, its perpetrators, and the online tools law enforcement can use to fight itand find better solutions to find and punish traffickers.Since SESTA and FOSTA were first introduced, many experts in sex trafficking have stepped forward to explain that these bills are the wrong solutionthat they would put victims of sex trafficking in much worse predicaments, moving them from the safety of the Internet to a dangerous streetwhere they are much less likely to get help.It's not pleasant to confront the dark realities of sex trafficking, but Congress must. Otherwise, it risks passing a bill that would harm the very victims it's trying to help.Reposted from EFF's Deeplinks blog

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posted at: 12:00am on 01-Dec-2017
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